Sewell v. State, No. 2183, Sept. Term, 2016

• Court: Court of Special Appeals of Maryland
• Writing for the Court: Leahy, J.
• Citation: 197 A.3d 607,239 Md.App. 571
• Parties: Kelvin SEWELL v. STATE of Maryland
• Decision Date: 29 November 2018
• Docket Number: No. 2183, Sept. Term, 2016

239 Md.App. 571
197 A.3d 607

Kelvin SEWELL
v.
STATE of Maryland

No. 2183, Sept. Term, 2016

Court of Special Appeals of Maryland.

November 29, 2018

Argued by: Lloyd Liu (Barry Coburn, Washington, D.C.) on the brief, for Appellant.

Argued by: Kelly Madigan (Emmet Davitt State Prosecutor for MD on the brief), Towson, MD, for Appellee.

Panel: Wright, Leahy, Friedman, JJ.^*

Leahy, J.

239 Md.App. 578

Kelvin Sewell was Chief of the Pocomoke City Police Department (the "Department") from December 2011 to July 2015. Sewell¹ alleged that Pocomoke City terminated him in 2015 for refusing to fire Officer Franklin Savage and Lieutenant Lynell Green. Sewell's termination occurred in the same year that he and Savage filed a series of complaints with the United States Equal Employment Opportunity Commission ("EEOC") alleging various forms of racial discrimination against the Department and, eventually, the Worcester County Sheriff's Department and the State's Attorney for Worcester County.²

239 Md.App. 579

Following Sewell's termination from the Department, and while his complaints were pending before the EEOC, the State Prosecutor began investigating Sewell's conduct as Police Chief based, in part, on information provided by the State's Attorney for Worcester County. The State Prosecutor looked specifically at Sewell and Green's handling of the investigation into a 2014 traffic incident in which Douglas Matthews, driving home from a meeting at the Prince Hall Masonic Lodge, hit and damaged two unoccupied parked cars. The State alleged that Sewell, a Mason, conspired with Green, also a Mason, to commit the common-law misdemeanor of official misconduct by directing their subordinates to resolve the incident without charging or citing Matthews because of their "membership in the Mason brotherhood." On July 16, 2016, a Worcester County grand jury indicted Sewell for corruptly committing misconduct in office and conspiring to commit the misconduct with Green.

197 A.3d 612

To rebut the charge that he acted corruptly, Sewell maintained that his handling of the investigation was reasonable under the circumstances and consistent with the routine discretion that a small-town police chief exercises. He offered two expert witnesses who would have testified, among other things, to the considerations and objectives that impact a police chief's exercise of discretion during an investigation. The circuit court, however, granted the State's motion to exclude Sewell's experts' testimony, deciding that such testimony would not assist the fact-finder.

At trial, the alleged association between Sewell and Matthews through their membership in the Prince Hall Masonic Lodge did not emerge from the evidence. The State focused, instead, on eliciting testimony that described Sewell's conduct as "unusual" and out of the ordinary. The jury convicted Sewell of misconduct in office but acquitted him of conspiring with Green.

239 Md.App. 580

On appeal, Sewell raises five issues that drive at the fairness of the proceedings below:

"1. The jury's verdict finding Chief Sewell guilty of misconduct in office was not based on sufficient evidence."

"2. The trial court abused its discretion in excluding Chief Sewell's expert on law enforcement officer discretion."

"3. The trial court erred in admitting Officer Barnes's lay opinion testimony concerning whether it was right or wrong for Chief Sewell to instruct her to write up the traffic incident as an accident."

"4. The trial court abused its discretion in denying Chief Sewell's motion to dismiss for government misconduct without a hearing."

"5. The trial court abused its discretion in denying Chief Sewell's motion for new trial."

Sewell asks this Court to dismiss the case against him with prejudice or, alternatively, remand for a new trial. We will grant the alternative relief.

Although the State failed to show that Sewell's membership in the Prince Hall Masonic Lodge motivated his actions or had any relevance to the crimes charged, we (the majority) conclude that the balance of the circumstantial evidence presented at trial was enough to surmount the legal sufficiency hurdle. Still, the trial court erred by excluding Sewell's expert witnesses. The trial judge failed to appreciate that the proffered testimony was relevant and would have shed light on issues that are "beyond the ken" of the average layperson. This error prejudiced Sewell, especially given that the State's case rested on circumstantial proof of corrupt intent provided by subordinate officers who worked for the Department that Chief Sewell alleged had discriminated against him and fired him retaliatory. We discern no abuse of discretion in the trial court's decision to deny Sewell's motion to dismiss for government misconduct without a hearing. In light of these holdings, we do not reach Sewell's final issue on appeal.

239 Md.App. 581

The right to a fair trial is enshrined in our laws. Under the circumstances presented in this case, the risk of unfairness is intolerably high. We remand for a new trial.

BACKGROUND

The Traffic Incident

Around 11:30 at night on November 21, 2014, a phone call woke Gayle Conrad as she slept in her home on Cedar Street in the "north sector" of Pocomoke City. It was a neighbor calling to let her know that a vehicle had struck her husband's truck, which was parked on the street in front of

197 A.3d 613

the Conrad house, and that the vehicle had left the scene. She went outside and saw that her grandson's vehicle, which was parked behind her husband's truck, was also damaged. Then, she observed "a wheel and part of an axle" that did not belong to either her husband's truck or her grandson's car lying in the road between the two vehicles. After Ms. Conrad called the Department, a dispatch officer reported the incident over the Department's radio and asked for a nearby officer to report to Ms. Conrad's residence for "a hit and run."

The driver was Douglas Matthews, a correctional officer, who later claimed that he fell asleep while driving home from a late meeting at the Prince Hall Masonic Lodge, just four to five blocks from his home. After hitting the two unoccupied cars parked in front of the Conrad home, he immediately drove about two blocks farther to his own home and called to report the accident to Green.

Meanwhile, around the same time, Pocomoke City Police Officer Damien McGlotten, who was on patrol in the south sector of the city, and Officer Tanya Barnes, who was on patrol in the north sector of the city, were responding to a noise complaint at an apartment complex in the south sector of Pocomoke City. After dispatch reported the hit and run, McGlotten and Barnes got into their respective patrol vehicles and drove to the scene. McGlotten later explained that, although the hit and run occurred in the north sector, the dispatcher assigned the call to him because Barnes had been

239 Md.App. 582

assigned to the noise complaint and "hadn't cleared her call yet ... saying she was back in service."

Once McGlotten arrived at the Conrad residence, he observed the damage to the vehicles and proceeded to interview Ms. Conrad and her husband to find out what they knew about what happened. Barnes arrived next, and sometime thereafter, Green arrived on the scene and spoke with the officers and witnesses. McGlotten testified at trial that he found Green's presence to be "unusual" because "the call came out extremely late," Green hadn't notified anyone that evening that he was on shift, and he was not in uniform at the time.

A call came over the radio stating that the vehicle responsible for the hit and run had been located a few blocks away in front of the Matthews' residence. Corporal Brad Morgan radioed that he had found a suspect, Matthews, who was not drunk or impaired, just scared. According to McGlotten, when he informed Green that he was going to respond to that location, Green instructed him to stay at the crash scene. McGlotten agreed, and both he and Barnes remained at the crash scene while Green went to the Matthews' residence. After approximately 20 or 30 minutes, Green radioed to McGlotten to "come over" to the Matthews' residence.

When McGlotten and Barnes arrived at the Matthews' residence, they met Morgan, and shortly thereafter, Sewell arrived on the scene dressed in plain clothes. The officers met out front of the Matthews' residence, where McGlotten briefed Sewell on the accident and subsequent investigation. McGlotten would later testify that "it was pretty unusual" to have both Green and Sewell "show up late" to the scene of a "basic accident" and for "both to be in plain clothes."

Following the briefing, Sewell assigned the call to Barnes, and told her that "it was just an accident" and that "it wasn't a hit a[nd] run." McGlotten then left the scene, and Barnes followed Sewell inside the Matthews' residence,...