Widomski v. Chief of Police of Baltimore County

• Decision Date: 07 February 1979
• Docket Number: No. 511,511
• Citation: Widomski v. Chief of Police of Baltimore County, 397 A.2d 222, 41 Md.App. 361 (Md. App. 1979)
• Parties: Melvin WIDOMSKI v. CHIEF OF POLICE OF BALTIMORE COUNTY.
• Court: Court of Special Appeals of Maryland

Page 361

41 Md.App. 361

397 A.2d 222

Melvin WIDOMSKI v.CHIEF OF POLICE OF BALTIMORE COUNTY.

No. 511.

Court of Special Appeals of Maryland.

Feb. 7, 1979.

Leo Howard Lubow, Baltimore, with whom were Paul Mark Sandler and Freishtat & Schwartz, Baltimore, on the brief, for appellant.

John A. Austin, Asst. County Sol., for Baltimore County and Edward F. Seibert, Chief Asst. County Sol., with whom was J. Carroll Holzer, County Sol., on the brief, for appellee.

Argued before GILBERT, C. J., and MASON and MacDANIEL, JJ.

GILBERT, Chief Judge.

This appeal has grown out of a "Jekyll and Hyde" operation nefariously conducted by a few Baltimore County police officers assigned to the Dundalk area in 1970-1972.The Internal Affairs Section of the County Police Department supplied the answer to Juvenal's ¹ question of "who is to guard the guards themselves," by uncovering the clandestine turnabout activities of those few police officers who used their shields as a license to steal.During the course of Internal Affair's investigation, it discovered that the appellant, Lieutenant Melvin Widomski, believed to be a knowledgeable witness, was, in fact, one of those that the investigators sought.As a direct result of the discovery Widomski was subsequently dismissed from the force.He appealed the dismissal to the Circuit Court for Baltimore County, where Judge Walter R. Haile affirmed the action taken by the Chief of Police in firing Widomski.

The appellant seeks to have this Court reverse the judgment of the circuit court and order appellant's reinstatement as a police lieutenant.

To accomplish that end, we would have to conclude that Judge Haile erred in upholding the Baltimore County Police Department Disciplinary Board's (Board) finding that Widomski was guilty of lying, filing false reports, receiving stolen goods, and of petty theft.The basis of the request for reversal is not that Widomski did not do the acts attributed to him, but rather that the police department's investigators failed to adhere to the procedural requirement of the "Law-Enforcement Officers' Bill of Rights."Md.Ann.Code art. 27, §§ 727-734D.

Widomski presents us with nine (9) issues masquerading as but three (3).Before considering them, seriatim, we shall briefly set out the facts from which this appeal arose, adding in our subsequent discussion of an issue, such further facts as necessary to that particular matter.

In the year 1976, the Internal Affairs Division of the Baltimore County Police force conducted an investigation of improper and illegal conduct by police officers attached to the Dundalk district during the time period 1970-1972.At the time under scrutiny, then Corporal Widomski had been stationed in Dundalk.On two dates, March 11, 1976, and June 18, 1976, police officers assigned to Internal Affairs interviewed Widomski in connection with the investigation, but according to testimony at the Board hearing, Widomski was not then a suspect.Lieutenant William Ferrell, acting on orders from a superior, ² conducted a polygraph examination of Widomski on August 6, 1976, "to see if (Widomski) had any knowledge that had been undisclosed" with respect to the Dundalk investigation.³

Lieutenant Ferrell's testimony was that when he administered a polygraph test, he usually asked follow-up questions when the interviewee answered in a manner that "would arouse . . . (Ferrell's) suspicions" as to the truthfulness of the answer.He followed that procedure with Widomski.Immediately upon review of the polygraph results, Ferrell determined that Widomski had been untruthful in negatively responding to four (4) questions.⁴Ferrell then returned to the examination room where he informed Widomski that the test "indicated . . . (Widomski) wasn't being completely truthful to some of the questions," and Ferrell asked Widomski if there was "anything else that he wanted to tell me about it."Over objection of appellant, Lieutenant Ferrell was permitted to testify that Widomski named "at various times different officers that he had observed doing different things."We infer, in the light of the nature of the proceedings before the Board, that "doing different things" meant things of an unlawful nature.

Appellant's counsel, who had requested and obtained from the Board a continuing objection to Ferrell's testimony because of the "lack of voluntariness of the interrogation" by Ferrell, a short while later interposed another objection on the ground that the interview had become accusatory, and that at that stage Widomski should have been formally informed of his rights under Md.Ann.Code art. 27, § 728(b).The Board chairman sustained the objection, stating:

" 'This Board rules that at the time we got from the inquisitory stage until the time there was a positive reaction on the polygraph, there should have been a professional view from the law enforcement officer's viewpoint that he should have been advised of his rights, and we are going to discontinue any more testimony with this witness.' "

Asked whether the Board would accept the testimony already elicited, (the chairman) responded:

" 'To the point that we have heard so far, but this will be a consideration in our final judgment, so I say to you that this Board feels as professional law enforcement officers that this man's rights were violated once we set the seed (Sic ) to move from the inquisitory and it was felt validly from his reactions and response from a professional polygraph operator that, in fact, now he could become a party.' "

Immediately following the polygraph examination, Sgt. Philip Huber of the Internal Affairs Section, was told to "interview"⁵ Widomski "in reference to certain revelations that were brought out in the polygraph examination and I (Sgt. Huber) was not told any of the revelations."After giving Widomski a "Notification to Accused of a Complaint," an explanation of the Police Officers' Bill of Rights, and Miranda ⁶ warnings, Sgt. Huber began to interrogate appellant.The questioning was tape recorded.

At the hearing before the Board, the appellant's attorney objected to Sgt. Huber's testimony, regarding his interrogation of Widomski.The objection was double barreled: 1) Art. 27, § 728(b)(8) was not complied with inasmuch as the taped record did not include the portion of the interrogation wherein the appellant was given his rights, and 2) a question of voluntariness of appellant's statement was raised by the virtue of a strike out on the "Explanation of Police Officers' Rights" form.The form contained a question which asked, "Do you want a lawyer present at this time?"Widomski's response of "yes" was written in the appropriate place, was crossed out and then the word "no" was written.The initials of appellant, "MW," appear alongside the reply "no."The Board overruled the objection.

Over the continuing objection by appellant's counsel, Sgt. Huber told the Board that during the interrogation, Widomski said he had "taken a box of grass seed" valued at $5, "a Fisher-Price toy," valued at between $6 and $8, "two trash cans" and "a can of car wax"; that Widomski failed to report improprieties of other officers for fear of retaliation; that Appellant Widomski knew that another officer, after deliberately driving a police vehicle into a store door in order to gain entry into the building, filed a false report to cover up the impropriety; that appellant accepted a ladies watch and a pair of sunglasses from other officers; and that Widomski accepted fifteen dollars from an officer who gave that sum to him without comment.

Widomski did not testify.The Board, as we have seen, adjudged Widomski guilty of a number of the charges and recommended his dismissal from the department stating:

"What concerned us was the overview that those three minor larcenies impugned the credibility of . . . (Widomski) to actively function as a supervisor over the control of his people and failed to give him, allow him the flexibility to come forth in that time frame of 1970 to '72 when conditions were conclusive in this Department that there were other resources he could have sought out . . . but . . . these minor larcenies . . . didn't permit him to do that.

The Board feels that his future, to testify in situations where there is a one on one and no physical evidence present and the guilt or the innocence of a Defendant would be based solely on the basis of the Lieutenant's testimony would certainly be an issue by any defense."⁷

The Chief of Police concurred, and Widomski was dismissed as of the date of his suspension.

I.

"Whether the decision of the Disciplinary Board is null and void for the reason that incident to its deliberations the Board played and considered portions of a tape that were not admitted into evidence?"

This issue arises from a misunderstanding of what was admitted into evidence, the tape recording of Sgt. Huber's interrogation of Widomski or a highly selective portion of that tape.Widomski asserts the latter, while the Chief of Police maintains it is the former.During the course of an argument over appellant's objection to testimony from Sgt. Huber in regard to the stolen sunglasses, Huber stated that his recollection was refreshed by his own notes of what was on the tape.Departmental counsel said that Widomski had been furnished a copy of the tape.Counsel for Widomski declared, "I would like to hear the tape at this time in regard to that one limited area."Major Vittek, the chairman of the Board, replied, "All right, we will rule on the admissibility and bring the tape in, or else we can be sitting here."Counsel for Widomski announced, "I have a copy (of the tape) if you can find a machine."The matter of the tape was "skipped" at that point and Sgt. Huber continued his testimony concerning Widomski's statement to Huber.Following the completion of Huber's testimony, the question of the tape again arose.Major Vittek opined:SU "The issue with the...