Baltimore Police Department v. Ellsworth

WRIGHT, J. This appeal arises from the decision of a Baltimore City Police Department trial board (the “Board”) finding appellee, Joshua Tripp Ellsworth, a detective in the Homicide Unit, guilty of two violations of the Baltimore City Police Department Administrative Rules and Regulations. The appellant, the Baltimore City Police Department (“BPD”), charged Det. Ellsworth with seven violations based on incidents that occurred on August 7, 2009. At the hearing before the Board, the BPD called Ofc.

Daniel Redd as a fact witness. Det. Ellsworth sought to impeach Ofc. Redd’s credibility based on an ongoing investigation of Ofc.

Redd’s alleged drug dealing, but was not provided with, or permitted to introduce, extrinsic evidence of Ofc. Redd’s activities. On August 19, 2011, Det. Ellsworth filed a Petition for Judicial Review of the Board’s decision in the Circuit Court for Baltimore City contending that the BPD was required to provide the evidence of Ofc.

Redd’s activities under the “exculpatory evidence” provision of the Law Enforcement Officer’s Bill of Rights (“LEOBR”), ²⁰¹ McLCode (2003, 2011 Repl.Vol.) Public Safety Article (“PS”) § 3-104(n). The circuit court reversed the decision of the Board and remanded the matter for further proceedings. This timely appeal followed. Questions Presented The BPD asks us to determine the following: 1.

Did the Circuit Court err in finding that [BPD] violated the rights of the Appellee under LEBOR [sic] § 3-104(n)(l) by failing to disclose any information regarding the FBPs investigation of a witness in the trial board, Daniel Redd, for distributing controlled dangerous substances and handgun violations? 2. Did the Circuit Court err in finding that [BPD] violated the rights of the Appellee under LEBOR [sic] § 3-104(n)(l) without analyzing whether the error was harmless or that the prejudice was probable. Because we answer the first question in the affirmative and affirm the decision of the Board, we need not address BPD’s second question. Facts and Procedural History On August 7, 2009, BPD’s Northwestern District Patrol Unit (“Patrol”), along with several other units, including DDU 1 and Homicide, responded to the possible abduction of a young female correctional officer from a hair salon at 4600 West Northern Parkway (the “Salon scene”).

Sergeant Milton Snead, a DDU supervisor, spoke with Sgt. Deneen Williams of the Family Crimes Unit (“FCU”) who asked him to send units to the Salon scene, gather information, and report back before FCU sent any units to investigate. Sgt. Snead informed Ofc.

Redd, Det. Thomas Bender, and Lt. Damien Carter (who was off-duty at the time) and Sgt. John Jackson notified Det.

Ellsworth of the possible abduction at the Salon scene. ²⁰² When Ofc. Redd and Det. Bender arrived at the Salon scene, Det. Ellsworth and Sgt.

Jackson were already present along with with several other units and several correctional officers. Ofc. Redd and Det. Bender spoke to Det.

Ellsworth, who informed them that Homicide was not handling the investigation. Ofc. Redd gave Det. Ellsworth his cell phone so that Det.

Ellsworth could update Sgt. Williams. When he finished, Det. Ellsworth told Ofc.

Redd that FCU would respond to the scene. It is unclear whether FCU ever responded to the Salon scene. As the BPD conducted a preliminary investigation at the Salon scene, a second possible crime scene was identified in the 2700 block of West Garrison Boulevard (the “Garrison scene”). The second crime scene was preliminarily identified based on a van matching the description of one involved in the alleged abduction and an address allegedly associated with the suspected kidnapper (“the suspect”).

The initial BPD officers to respond to the Garrison scene consisted of Patrol units commanded by Sgt. Jonathan Brickus. Lt. Carter testified that when he arrived at the Garrison scene, the scene was unsecured and Sgt.

Brickus, as the ranking Patrol person at the scene, was in charge. According to Ofc. Sharron Mason of the Northwest District Foot Patrol, Sgt. Brickus was the “acting lieutenant that day.” However, Lt.

Carter was the permanent ranking supervisor present at the scene. Ofc. Mason arrived at the same time as Lt. Carter and Sgt.

Brickus, followed by Ofcs. Monique Lucien and Richard Rouse. Dets. Kendall Rickburg and Augustus Lake were next.

Det. Ellsworth, Ofc. Redd, and Det. Bender arrived shortly thereafter.

Lt. Carter and Sgt. Brickus began formulating an investigation strategy after they arrived but had not settled on a plan when Det. Ellsworth arrived.

Additionally, there was some confusion about who would be handling the investigation. When Det. Ellsworth reached the scene, he told Sgt. Brickus that Homicide was not handling the investigation; either FCU or DDU was in charge.

Lt. Carter told Det. Ellsworth that ²⁰³ DDU was not handling the investigation. Sgt.

Brickus contacted Sgt. Williams, who informed him that FCU would handle the domestic part of the case and she would contact Homicide to determine who was handling the abduction. 2 As a result, it was not clear when Det. Ellsworth arrived that Patrol and Sgt. Brickus, as the Patrol supervisor, were relinquishing control of the investigation.

The BPD did not know which house on the block, if any, contained the suspect and victim. Det. Ellsworth initially joined Lt. Carter and Sgt.

Brickus where they were positioned but, before a formal plan was established, Det. Ellsworth turned away from them and began to walk toward 2727 West Garrison Avenue (“the House”). When Sgt. Brickus realized Det.

Ellsworth was walking toward the House, he told Det. Ellsworth not to go down the street. Det. Ellsworth did not respond to Sgt.

Brickus. Sgt. Brickus “yelled again, ‘Don’t go down the street.’ ” When Det. Ellsworth did not stop, Sgt.

Brickus yelled that if Det. Ellsworth continued, he was suspended. Det. Ellsworth yelled back to Sgt.

Brickus, “do what you got to do.” Lt. Carter then “yelled to Det. Ellsworth to come back and he complied, no issues.” Det. Ellsworth was not suspended that night.

As Det. Ellsworth walked back, Sgt. Brickus met him in the street and the two engaged in a “heated” exchange before numerous civilians and BPD officers. Sgt.

Brickus demanded that Det. Ellsworth turn over his badge and handgun, and Det. Ellsworth resisted. Sgt.

Brickus reached for Det. Ells-worth’s badge and Det. Ellsworth pulled away. The two exchanged words with Det.

Ellsworth telling Sgt. Brickus that he did not have the authority to suspend him as he was not his supervisor. Lt. Carter intervened, informed Det.

Ellsworth that he (Lt. Carter) was his supervisor, and instructed Det. ²⁰⁴ Ellsworth to surrender his badge and handgun to Sgt. Brickus. Det.

Ellsworth complied. Lt. Carter separated Det. Ellsworth and Sgt.

Brickus telling Det. Ellsworth to go sit in his car and call the Homicide supervisor. Approximately twenty minutes after telling Det. Ellsworth to sit in his car, Lt.

Carter instructed Ofc. Redd and Det. Bender to begin investigating by talking to the neighbors on the street. At that point, Det.

Ellsworth was sitting on the hood of his car per Lt. Carter’s instructions. Lt. Carter then received a phone call from Maj.

David Engel, his own supervisor, and walked away from the Garrison scene to brief Maj. Engel on the situation and scene. When Det. Bender went down the street to talk to neighbors, Det.

Ellsworth accompanied him. After speaking to a man living next door to the House, Det. Bender and Det. Ellsworth stepped over the porch rail and onto the porch of the House.

Det. Bender looked through the mailbox and either Det. Bender or Det. Ellsworth knocked on the door of the House.

As they were knocking on the door, Sgt. Brickus noticed them and looked for Lt. Carter to have Lt. Carter intervene.

Lt. Carter had “drifted away” from the Garrison scene, while still on his cell phone, and was unavailable. Sgt. Brickus ran to the House and ordered both Det.

Bender and Det. Ellsworth to get off the porch. Det. Bender immediately complied but Det.

Ellsworth did not. Sgt. Brickus interposed himself between Det. Ellsworth and the door and again told Det.

Ellsworth to get off the porch. When Det. Ellsworth refused, Sgt. Brickus pushed him off the porch.

Det. Ellsworth then attempted to re-enter the porch but Sgt. Brickus rebuffed him, turned him around, and took out his handcuffs. Det.

Ellsworth told Sgt. Brickus something to the effect of “arrest me.” Seeing the altercation, Sgt. Jackson told Lt. Carter that Det.

Ellsworth and Sgt. Brickus were “at it again” and ran down the street. Reaching the two men, Sgt. Jackson separated Sgt.

Brickus and Det. Ellsworth. Sgt. Jackson walked with Det.

Ellsworth back in the direction of Lt. Carter. Sgt. ²⁰⁵ Brickus put his handcuffs away and also walked back. Meanwhile, Lt.

Carter told his supervisor that he was placing himself on duty and taking charge of the Garrison scene because “it was getting ridiculous.” Shortly after Sgt. Jackson separated Sgt. Brickus and Det. Ellsworth, Lt.

Carter was informed by a supervisor via cell phone that Homicide was taking charge of the investigation. Based on this information and the information that the van and House were not involved with the suspect, Lt. Carter ordered the DDU and Patrol personnel to leave the scene. When only Lt.

Carter, Sgt. Brickus, and Det. Ellsworth remained, Lt. Carter ordered Sgt.

Brickus to return Det. Ellsworth’s handgun and badge. Sgt. Brickus initiated a complaint against Det.

Ellsworth and on August 10, 2010, the BPD charged Det. Ellsworth with seven violations of the following Rules and Regulations of the Police Department of Baltimore City: 1) conduct unbecoming an officer; 2) willfully disobeys [sic] a lawful command or order; 3) unethical conduct of failing to cooperate and assist colleagues; and 4) insubordinate or disrespectful to superior officer. The Charging Committee recommended that Det. Ellsworth be terminated.

Rather than accept the recommended punishment, Det. Ellsworth elected a Trial Board hearing pursuant to PS § 3-107. 3 A three-day hearing began on May 17, 2011, before the Board. The Board consisted of Deputy Maj. Marc Partee, Lt.

Jon Foster, and Ofc. Meng-Ching Liu of the BPD. Both parties were represented by counsel. Seven witnesses testified and twenty-two exhibits were entered into evidence.

During the hearing, Det. Ellsworth’s counsel attempted to impeach Ofc. Redd’s credibility through testimony and evi ²⁰⁶ dence related to an alleged ongoing FBI investigation of Ofc. Redd.

After objection by BPD’s counsel, the Board consulted with its legal counsel regarding the admissibility of the impeachment evidence and did not allow extrinsic evidence of any alleged -wrongdoing by Ofc. Redd to be admitted. The Board found Det. Ellsworth guilty of two of the seven charges against him 4 and recommended seven days loss of leave and a letter of reprimand as punishment.

The Police Commissioner imposed this punishment in Personnel Order 538-11 dated July 19, 2011. The Board also recommended that Det. Ellsworth be transferred from the Homicide Section if the Homicide Commanding Officer wished to do so, but Det. Ellsworth was not transferred.

On August 19, 2011, Det. Ellsworth filed a Petition for Judicial Review in the circuit court arguing that the Board erred in not requiring the BPD to provide “exculpatory” evidence related to Ofc. Redd’s alleged misconduct to Det. Ellsworth.

On January 10, 2012, the circuit court heard the case and reversed the decision of the Board in a Memorandum and Order on January 26, 2012. The circuit court found that the BPD’s “failure to disclose any information regarding the investigation of Ofc. Redd constituted a violation of Det. Ellsworth’s rights under the [LEOBR] and, therefore, constituted an unlawful procedure.” The circuit court remanded the case to the Board for further proceedings.

The circuit court’s decision was entered on March 1, 2012, and the BPD filed this timely appeal. Additional facts will be provided as necessary in the relevant sections below. ²⁰⁷ Standard of Review The scope of judicial review of a LEOBR case is the same as for an administrative appeal. Coleman v. Anne Arundel Cnty. Police Dep’t, 369 Md. 108, 121 , 797 A.2d 770 (2002).

When this Court reviews administrative decisions, “we bypass the judgment of the circuit court and look directly at the administrative decision.” Salisbury Univ. v. Joseph M. Zimmer, Inc., 199 Md.App. 163, 166 , 20 A.3d 838 (2011) (citing White v. Workers’ Comp. Comm’n, 161 Md.App. 483, 487 , 870 A.2d 1241 (2005)). Our inquiry is whether the administrative agency erred not the circuit court acting in its capacity as an intermediate appellate court. Bayly Crossing, LLC v. Consumer Prot.

Div., Office of Atty. Gen., 417 Md. 128, 136 , 9 A.3d 4 (2010). “In reviewing an administrative agency decision, we are limited to determining if there is substantial evidence in the record as a whole to support the agency’s finding and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” Mehrling v. Nationwide Ins. Co., 371 Md. 40, 57 , 806 A.2d 662 (2002) (internal citation omitted). The Court of Appeals explained: In applying the substantial evidence test, a reviewing court decides whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.

A reviewing court should defer to the agency’s fact-finding and drawing of inferences if they are supported by the record. A reviewing court must review the agency’s decision in the light most favorable to it; ... the agency’s decision is prima facie correct and presumed valid, and ... it is the agency’s province to resolve conflicting evidence and to draw inferences from that evidence. Motor Vehicle Admin. v. Carpenter, 424 Md. 401, 412-13 , 36 A.3d 439 (2012) (quoting Md. Aviation Admin. v. Noland, 386 Md. 556, 571 , 873 A.2d 1145 (2005)) (internal citations and quotation marks omitted). An agency’s factual findings are given deferential review, but this Court is not bound by the agency’s interpretation of law, which are reviewed de novo.

See Coleman, 369 ²⁰⁸ Md. at 122 , 797 A.2d 770 ; Salisbury Univ., supra, 199 Md. App. at 166 , 20 A.3d 838 (citing Mayer v. Montgomery Cnty., 143 Md.App. 261 , 794 A.2d 704 (2002)); State Dep’t of Assessments & Taxation v. N. Balt. Ctr., Inc., 129 Md.App. 588, 595 , 743 A.2d 759 (2000). However, “the agency’s interpretations and applications of statutory or regulatory provisions ‘which the agency administers should ordinarily be given considerable weight by reviewing courts [and] the expertise of the agency in its own field should be respected.’ ” Noland, 386 Md. at 573 n. 3, 873 A.2d 1145 (quoting Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 69 , 729 A.2d 376 (1999)). Where an administrative decision is premised upon a pure question of law, “we must ‘determine if the administrative decision is premised upon an erroneous conclusion of law.’ ” Bray v. Aberdeen Police Dep’t, 190 Md.App. 414, 424 , 988 A.2d 1106 (2010) (quoting Noland, 386 Md. at 573 n. 3, 873 A.2d 1145 ).

Discussion The BPD argues that the circuit court incorrectly interpreted LEOBR § 3-104(n)(l)(ii) in holding that the BPD failed to turn over “exculpatory material prior to the hearing before the Board.” The BPD asserts that the language of LEOBR § 3-104(n)(l) is “straightforward and unambiguous” in its explanation of what the BPD was required to provide to Det. Ellsworth regarding its investigation of his conduct. The BPD acknowledges that the LEOBR does not provide an internal definition for the terms “exculpatory” and “non-exculpatory,” but avers that the definitions are well established by precedent. The BPD contends that “[n]othing in LEBOR [sic], or the case law interpreting the statute, requires a law enforcement agency to provide impeachment evidence for the witnesses it plans to put on at the trial board against the accused officer.” The BPD argues that information regarding any investigation of Ofc.

Redd is inappropriate as impeachment material and is not exculpatory as to the charges against Det. Ellsworth. ²⁰⁹ Det. Ellsworth responds that the circuit court correctly found that he had a statutory right to request exculpatory evidence, the BPD provided no evidence regarding Ofc. Redd, Det.

Ellsworth was prejudiced because of how the BPD dealt with Ofc. Redd, and “the failure to disclose exculpatory evidence in violation of the statute constituted an unlawful procedure.” Det. Ellsworth avers that the Board allowed the BPD to impede his cross-examination of Ofc. Redd “on the subject of exculpatory evidence” by disallowing the evidence of Ofc.

Redd’s prior bad acts. Det. Ellsworth asserts that if the BPD knew of Ofc. Redd’s alleged misconduct, it “was required to disclose this information before using Ofc.

Redd as a witness against Det. Ellsworth.” We agree with the BPD. As a law enforcement officer, Det. Ellsworth is entitled to the protections of the LEOBR, which grants rights that are not available to the general public or other employees, including notice and the right to a hearing before any punitive action is taken.

See Bray, 190 Md.App. at 424 , 988 A.2d 1106 ; Ocean City Police Dep’t v. Marshall, 158 Md.App. 115, 124 , 854 A.2d 299 (2004). The disciplinary action at issue is a civil matter, rather than a criminal matter, and therefore the Maryland Rules and standards applicable to a civil trial are relevant. See, e.g., Coleman, 369 Md. 108 , 797 A.2d 770 . LEOBR § 3-104(n)(l) states: (n) Information provided on completion of investigation.— (1) On completion of an investigation and at least 10 ten days before a hearing, the law enforcement officer under investigation shall be: (i) notified of the name of each witness and of each charge and specification against the law enforcement officer; and (ii) provided with a copy of the investigatory file and any exculpatory information, if the law enforcement officer and the law enforcement officer’s representative agree to: 1. execute a confidentiality agreement with the law enforcement agency not to disclose any material contained in the investigatory file and exculpatory information for any ²¹⁰ purpose other than to defend the law enforcement officer; and 2. pay a reasonable charge for the cost of reproducing the material.

Det. Ellsworth argues that “exculpatory evidence” includes information that Ofc. Redd committed multiple acts of misconduct, for which the rules of the BPD permit impeachment. 5 Maryland Rule 4-263 governs pretrial procedures in criminal cases. Pursuant to Maryland Rule 4-263, the State’s Attorney is required to disclose both “exculpatory information” and “impeachment information.” Exculpatory