Hewitt v. Department of Public Safety & Correctional Services

Mason, J., delivered the opinion of the Court. On March 1, 1976, the Secretary of the Department of Public Safety and Correctional Services issued an order ⁷¹¹ reinstating the administrative conviction of Sammie Hewitt for violation of an institutional rule. From an affirmance of the Secretary’s order by the Baltimore City Court, Hewitt appeals and in substance contends that the lower court erred in finding that there was substantial evidence to support appellant’s administrative conviction of being under the influence of marijuana. The record reveals that Hewitt, while incarcerated at the Maryland House of Correction, was charged with the violation of several institutional rules by the following report: [Hewitt was] [b]rought to the hospital approximately 8:25 p.m. to be processed for suspicion of consumption of [a controlled dangerous substance].

Upon arrival, inmate’s speech slurred, gait unsteady and pupils constricted. While obtaining urine for narc. screening, inmate stated “I don’t know why you are getting urine from me, I am high from smoking marijuana and it surely will not show up in my urine, ha ha.” Inmate was advised that the above statement was sufficient for disciplinary action and he further stated “I will say I made the above statement because I was under heavy interrogation.” The report was signed by R. Slaysman, a correctional officer, and L. Stewart, a correctional officer and licensed practical nurse. An Adjustment Team 1 was convened to hear the charges. The complaining officers were not called to testify at this hearing by either Hewitt or the institution.

Hewitt denied that he had admitted smoking marijuana and instead contended that he only inquired whether rñarijuana would show up in a drug test. The Adjustment Team, in a two to one decision, found Hewitt guilty of violating Rule 7, which in relevant part prohibits: “Being intoxicated (by homemade intoxicants or commercial intoxicants or being under the influence of any kind of drug, barbituate, and/or amphetamine not prescribed ⁷¹² ...).” Hewitt was sentenced to sixty days in isolated confinement. Pursuant to the procedures set out in Md. Ann. Code, Art. 41, § 204F (d), Hewitt filed a complaint with the Inmate Grievance Commission (the Commission) on the ground that there was insufficient evidence to support his conviction. At a hearing before the Commission, a member of the Adjustment Team testified that their decision was based upon the report of Officers Stewart and Slaysman.

Officer Stewart’s testimony at this hearing was consistent with the report submitted to the Adjustment Team. In a written opinion, the Commission concluded that there was insufficient evidence to justify the administrative conviction and reversed the decision of the Adjustment Team for the following reasons: The team did not call the accusing officer to qualify his adjustment report and to permit Mr. Hewitt to cross-examine his accuser. The officer’s adjustment report was simply accepted by the team as factual, including the officer’s impression that Mr. Hewitt was intoxicated. No officer saw this inmate smoking marijuana and the inmate stated that although he admitted smoking marijuana, he did so only because, after being so accused by Mr. Stewart, he was subjected to “heavy interrogation.” Marijuana, as physical evidence, was never found on the person of inmate Hewitt and, of course, none was presented at the adjustment hearing.

It is to be noted that two other charges were placed against Mr. Hewitt; Rule 8 — possession of narcotics, barbituates, etc., and Rule 18 — passing or receiving contraband. He was found not guilty on these two counts. The statement by Mr. Stewart that because Mr. Hewitt was observed to be of unsteady gait cannot be accepted by the Commission as sufficient proof that he was, in fact, “high” and under the influence of a CDS, suspected to be marijuana. ⁷¹³ The institution stated that a urine test is given in all such cases, primarily to rule out the presence of drugs other than marijuana. It is recognized that marijuana will not show up in a urinalysis and, in this instance, the laboratory analysis was negative for all drugs identified and included in the Drug Abuse Screen.

As to the statement by Mr. Hewitt that, following “heavy interrogation”, he admitted smoking marijuana, the Commission finds it not unreasonable to accept the inference that the accused was expostulating under duress. He at no time pled guilty to the charges. In an Order dated March 1, 1976, the Secretary reversed the Commission’s decision and reinstated the Adjustment Team’s conviction, stating: The conclusions of the Inmate Grievance Commission were based on the fact that there was insufficient evidence before the Adjustment Team to justify its verdict. This conclusion was based in part on the fact that the Adjustment Team did not call the accusing officer to testify (although his report was read at the hearing) and that Mr. Hewitt was thereby denied the opportunity to cross-examine his accuser.

The conclusion reached by the Inmate Grievance Commission is contrary to the doctrine layed down by the Supreme Court in Wolff vs. McDonnell 94 S.