Travers v. Baltimore Police Dept.

• Citation: 693 A.2d 378,115 Md.App. 395
• Decision Date: 01 September 1996
• Docket Number: No. 1325,1325
• Parties: Antoine TRAVERS v. BALTIMORE POLICE DEPARTMENT ,
• Court: Court of Special Appeals of Maryland

Page 395

115 Md.App. 395

693 A.2d 378

Antoine TRAVERS v. BALTIMORE POLICE DEPARTMENT

No. 1325, Sept.Term, 1996.

Court of Special Appeals of Maryland.

May 6, 1997.

G. Matthew Immler (Schlachman, Belsky & Weiner, P.A., on the brief), Baltimore, for Appellant

Bernard Ilkhanoff, Assistant Solicitor (Frank C. Derr, Deputy Solicitor, on the brief), Baltimore, for Appellee.

Argued before MOYLAN, HARRELL and SONNER, JJ.

HARRELL, Judge.

Antoine Travers, a former member of the Baltimore City Police Department (the Department), was charged with violating various rules and regulations promulgated by the Department. The Police Commissioner, in accordance with a hearing board's finding of guilt as to all charges and recommendation of termination, issued a final order terminating Mr. Travers's employment with the Department. The Circuit Court for Baltimore City affirmed the Department's final order. Mr. Travers appeals his termination to this court contending (1) procedural violations and (2) that some of the board's findings were not supported by sufficient evidence. Because we conclude that the board's findings as to two of the specifications supporting the charges against appellant were not supported by substantial evidence, we must vacate the judgment of the

circuit court and instruct it to remand this case to the Department to reconsider what action it shall take against appellant in light of our decision.

ISSUES

Appellant presents the following issues, rephrased by us as:

1. Whether the board committed legal error by admitting the hearsay testimony of Lieutenant James Henderson and Officer John Moore concerning appellant's alleged assault on Ms. Elizabeth Nelson.

2. Whether the decision of the board was supported by sufficient evidence.

FACTS

As a result of an off-duty incident occurring on 23 October 1994, the Baltimore City Police Department, on 14 August 1995, charged appellant with various violations of Departmental Rules and Regulations. We have excerpted the Department's charging document as follows:

CHARGE 1

Violation of Rule 1, Section 13

Section 13: No member of the department shall at any time be insubordinate or disrespectful to a superior.

Specification: On or about [23 October 1994], Police Officer Antoine Travers was insubordinate and disrespectful to superior officers when he failed to leave the apartment of Ms. Elizabeth Nelson as directed by Lieutenant James T. Henderson.

CHARGE 2

Violation of Rule 1, Section 14

Section 14: No member of the department shall willfully disobey any lawful command or order, either verbal or Specification 1: On or about [23 October 1994], Police Officer Antoine Travers disobeyed a lawful command or order from Lieutenant James T. Henderson to leave the apartment of Ms. Elizabeth Nelson.

written, of any superior or other member designated to command.

Specification 2: On or about [12 January 1995], Police Officer Antoine Travers disobeyed a lawful command or order from Major Barry Powell to appear at the offices of the Internal Investigation Division on [25 January 1995].

CHARGE 3

Violation of Rule 1, Section 18

Section 18: No member of the department shall intentionally violate any Federal or State law or City ordinance.

Specification: On or about [23 October 1994], Police Officer Antoine Travers assaulted and battered Ms. Elizabeth Nelson.

CHARGE 4

Violation of Rule 1, Section Conduct

Rule 1, Conduct: Any breach of the peace ... or any conduct on the part of any member of the department, ... which tends to undermine the good order, efficiency or discipline of the department, or which reflects discredit upon the department or any member thereof, or which is prejudicial to the efficiency and discipline of the department, even though these offenses may not be specifically enumerated or laid down, shall be considered conduct unbecoming a member of the Baltimore Police Department, and subject to disciplinary action by the Police Commissioner.

Specification 1: On or about [23 October 1994], Police Officer Antoine Travers was insubordinate and disrespectful to Specification 2: On or about [23 October 1994], Police Officer Travers disobeyed a lawful command or order from Lieutenant James T. Henderson to leave the apartment of Ms. Elizabeth Nelson.

superior officers when he failed to leave the apartment of Ms. Elizabeth Nelson as directed by Lieutenant James T. Henderson.

Specification 3: On or about [12 January 1995], Police Officer Antoine Travers disobeyed a lawful command or order from Major Barry Powell to appear at the offices of the Internal Investigation Division on [25 January 1995].

Specification 4: On or about [23 October 1994], Police Officer Antoine Travers assaulted and battered Ms. Elizabeth Nelson.

A Departmental Trial Board hearing was conducted on 4 December 1995 to adjudicate those charges. We have excerpted the relevant portions of the board's Finding[s] of Fact that accurately summarized those proceedings.

Officer [John] Moore testified that on [23 October 1994] at 0351 hours he ... responded to 2433 Brambleton Road, Apt. 3D.... Officer Moore was called ... to take an assault report from Ms. Elizabeth Nelson.... Ms. Nelson reports she returned to her home ... to find the door locked and a chain on the door. In an attempt to get the attention of her boyfriend, Officer Travers, who was inside, Ms. Nelson rang the buzzer, knocked on the door and set off Officer Travers'[s] auto alarm. After getting no response at the door, Ms. Nelson squeezed into the apartment. She found Officer Travers in the bedroom. After a brief pushing encounter, Ms. Nelson called Officer Travers'[s] sister and was advised by her not to say anything to Officer Travers. Ms. Nelson reports she laid down in bed at which time Officer Travers grabbed her by the neck, threw her against a wall, and slapped her twice. Ms. Nelson reports she scratched Officer Travers on the arm after being slapped. Officer Moore Lieutenant James T. Henderson ... testified. [He] reports he responded to the scene of a domestic assault at the request of Sergeant [Reginald] Hendrix. Lieutenant Henderson testified that upon his arrival, he found the following people present: Ms. Nelson, her mother, Officer Travers, Sergeant Hendrix, Officer Moore and Officer Byron Carter. After speaking with Sergeant Hendrix and seeing a rent receipt in Ms. Nelson's name, Lieutenant Henderson observed redness on Ms. Nelson's neck and a puffy face. Lieutenant Henderson advised Officer Travers to leave the apartment. When Officer Travers refused, Lieutenant Henderson informed Officer Travers of his need to keep his job.... Again, Officer Travers refused. Lieutenant Henderson then told Officer Travers he would be arrested if he did not leave. Concerned for Ms. Nelson's safety, Officer Travers was arrested when he refused to leave. Lieutenant Henderson testified he never "ordered" Officer Travers to leave, but made it clear he should leave. Under re-direct examination, Lieutenant Henderson testified it was possible both Ms. Nelson and Officer Travers were both the legal occupants; however, he did not want Ms. Nelson to leave. Lieutenant Henderson also described Officer Travers as antagonistic and [u]ncooperative. In response to a question from the Board, Lieutenant Henderson testified the only evidence that Officer Travers lived there ... were several bags of clothing on the floor.

testified Ms. Nelson did not require medical attention and he did observe her face was "puffy"....

The Department called Major Barry Powell, C.I.B [Criminal Investigations Bureau], to testify. [He] testified that in January, 1995 ... Officer Travers was assigned to his command. He further testified that on [12 January 1995] he personally ordered Officer Travers to appear at I.I.D. [Internal Investigations Division] on 25 January 1995 to provide a statement.... Under [cross-]examination, Major Powell testified that Officer Travers may have been on Medical Leave on [25 January 1995]; however, he would still be obligated to respond to I.I.D. if he was ambulatory.

Major Powell also cited the officer's responsibility to notify I.I.D. if he [could not] attend.

* * *

... Officer Travers was called to testify and stated he had been on stress medical leave since 24 January 1995. He testified this was caused by his "immediate" transfer to the Central District which occurred on [23 January 1995]. Officer Travers testified that on [23 October 1994] he resided at 2433 Brambleton Road, Apt. 3D and had lived there since February 1994. He also stated his property was there. Officer Travers testified that on 23 October 1994 at 0330 hours he was home in bed. He was awakened when Ms. Nelson came into the bedroom and assaulted him. Officer Travers testified he pushed her off and held her at bay, but he denied choking her. Officer Travers testified that when police arrived, he obeyed when told by the sergeant and later by the lieutenant to "shut up and sit down". He testified that Lieutenant Henderson never told him to leave the apartment and that he was never disrespectful to the [L]ieutenant or any other Officer. Officer Travers also testified that after his arrest, he filed an assault report against Ms. Nelson but never pursued charges. Officer Travers testified that the criminal case against him was dismissed, but later acknowledged that a nolle prosequi had, in fact, been entered in the case.... Officer Travers testified that on [24 January 1995] at 0650 hours he called the Central District and reported on "stress medical" to Officer Barnes.... He also testified that he did not have to report to I.I.D. on 25 January 1995 because he was on medical leave and that it was not his responsibility to notify them of his inability to report.

... Officer Travers testified ... that "everything I own" was in the apartment that night.... Officer Travers testified that he did speak with Ms. Nelson before the first Disciplinary Hearing on [12 October 1995]...