Jacocks v. Montgomery County

BLOOM, Judge. This Law Enforcement Officers’ Bill of Rights (LEOBR) 1 case began with an accusation of conduct unbecoming a police officer and resulted in an official reprimand that was appealed to the Circuit Court for Montgomery County and from thence to this court. In 1980, appellant, Sergeant 2 Thomas B. Jacocks, Jr., was in charge of the Warrant and Fugitive Section of the Montgomery County Police Department. That section is ⁹⁹ part of the department’s Investigative Services Bureau, which was then headed by Major Steven Filyo.

As a result of a February 1980 audit of the Warrant and Fugitive Section conducted by personnel of another section, Major Filyo decided to implement certain changes recommended in the audit report. Appellant, insisting that those changes were unwarranted, unnecessary and unwise, requested a meeting with Major Filyo to discuss the matter. Filyo balked at first but reluctantly agreed to a meeting. Consequently, on April 14, 1980, there was a meeting attended by appellant, Major Filyo, and several other officers.

At that meeting appellant voiced his objections to certain recommendations contained in the audit report. The following day Major Filyo met in his office with appellant and Sergeant James L. Bohn of the Youth Division. Major Filyo had called that meeting to discuss the handling of juvenile warrants. During the course of the discussion, appellant became extremely angry because of the changes Major Filyo proposed to make in departmental procedures.

According to Sergeant Bohn, appellant told Major Filyo that “he could take his job and stick it up his ass.” Sergeant Bohn also testified that appellant told the major that he was “fed up with the bullshit that has been going on” and that the major could stick his recommendations “up his ass.” In Sergeant Bohn’s opinion, appellant was “out of control.” Appellant questioned Major Filyo’s competence and told the major that he would not make any of the changes unless he was ordered to do so by the chief of police. Sergeant Bohn, embarrassed by appellant’s tirade, excused himself and left the office. Police personnel who were in the vicinity of Major Filyo’s office at the time of the meeting later testified that they had heard appellant’s outburst. Susan Anastasi, Major Filyo’s administrative aide, testified that she heard appellant state that he “was tired of this bullshit.” In addition, Sergeant Richard K. Stone testified that he heard appellant shouting in the major’s office and that appellant’s voice ¹⁰⁰ “was angry, it was very loud.

Not loud enough to understand the words, however, but it was — we could hear the shouting, and it lasted for approximately five minutes.” As a result of that meeting, Major Filyo directed a memorandum to the Chief of the Montgomery County Department of Police requesting that appellant be transferred. Major Filyo later requested that a formal investigation be conducted by the Office of Internal Affairs (OIA). Subsequently, on June 13 appellant was charged via a written memorandum with conduct unbecoming a police officer. Rather than accept the punitive action offered by the chief, ¿ two day suspension without pay and a transfer to the Field Services Bureau, appellant chose to exercise his right to an administrative evidentiary hearing pursuant to the Law Enforcement Officers’ Bill of Rights.

The hearing board found that appellant’s behavior toward Major Filyo during the April 15 hearing constituted conduct unbecoming a police officer. In light of appellant’s long term and excellent record of service, the board recommended only that appellant receive an official letter of reprimand. The chief followed that recommendation and issued a formal letter of reprimand, whereupon appellant appealed to the Circuit Court which affirmed appellee’s action. On appeal to this court, appellant raises the following issues: 1.

Whether disclosure is required of all relevant portions of oral, unrecorded pre-trial statements of witnesses called by the county before Law Enforcement Officer Bill of Rights Hearing Boards. 2. Whether the admission into evidence of a tape-recorded interview and a transcript of said tape, acknowledged to be hearsay, was harmless error due to the introduction by appellant of a memorandum addressing some of the matters contained on the tape. 3. Whether the wholesale admission into evidence of witness statements provided under Chief, Montgomery County Department of Police v. Jacocks is reversible error. ¹⁰¹ 4. Whether the hearing board erred in allowing a witness to remain in the hearing room after a request for sequestration of all witnesses. 5.

Whether appellant’s actions, as found by the hearing board, constitute conduct unbecoming an officer as set forth in the Montgomery County Police Department’s General Order DR 80-9, Rule 14. I During the OIA’s investigation, several persons were interviewed, some of whom later testified at the hearing. In each instance, the investigator had an unrecorded discussion with the witness before conducting a recorded interview. Appellant requested access to copies of statements given by those witnesses who “will be called by the county in an effort to prove their case in chief.” In denying appellant’s request, the county made clear that appellant would not be allowed to see the statements even after the witnesses had testified at the hearing.

Appellant then brought an action in the Circuit Court for Montgomery County seeking, among other relief, an order directing the county to disclose those pre-hearing statements. The circuit court ordered the county “to produce ‘for inspection and use as evidence at the hearing the statements to the Department of Internal Affairs of all witnesses who have testified at the administrative hearing on the charges brought against [appellant].’ (Emphasis supplied.)” That order was appealed to this-court. Chief, Montgomery County Dept. of Police v. Jacocks, 50 Md.App, 132, 134, 436 A.2d 930 (1981). We agreed with the circuit court that the principles announced in Jencks v. United States, 353 U.S. 657 , 77 S.Ct. 1007 , 1 L.Ed.2d 1103 (1957), as adopted by Carr v. State, 284 Md. 455 , 397 A.2d 606 (1979), dictate “that [appellant’s] right to cross-examine the witnesses against him would be rendered ineffective unless he had access to their earlier statements.” Jacocks, 50 Md.App. at 134 , 436 A.2d 930 .

We disagreed, however, with the breadth of the circuit court’s ¹⁰² order. We held that “[t]he pre-trial statements need not be disclosed until the witness has completed his testimony on direct examination, and, even then, only those portions pertaining to matters about which he testified are subject to disclosure.” Id. at 143, 436 A.2d 930 . Consequently, the department provided transcripts of the recorded portions of the interviews to appellant’s counsel after each witness testified on direct examination. Appellant contends, however, that the department’s action was not enough.

He argues “that under Maryland Law he was entitled to a summary of the oral statements made by the Court’s witnesses prior to the interviews recorded and transcribed by the OIA or, in the alternative, to the notes made by the investigators of such conversations.” Appellant’s position is based upon a misunderstanding of our use of the word “statements” and of the Jencks rule. Jencks had been convicted of falsely swearing, in an affidavit filed with the National Labor Relations Board, that he was not a member of the Communist Party. His conviction rested in part upon the testimony of two paid F.B.I. informants. These informants had made regular written reports to the F.B.I. describing the events about which they later testified.

At trial, Jencks’s motion requesting copies of those reports was denied. The Supreme Court reversed the conviction noting “the ‘crucial nature’ of the testimony offered by the two witnesses and the singular importance to Jencks that that testimony be impeached.” Id. at 138, 436 A.2d 930 . The Court observed that “[ejvery experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory.” Jencks, 353 U.S. at 667 , 77 S.Ct. at 1013 . The Court further noted that unless the witness “admits conflict . . . the accused is helpless to know or discover conflict without inspecting the reports.” Id. at 668 , 77 S.Ct. at 1013 (footnote omitted).

Shortly after the Court’s decision in Jencks , Congress codified the Court’s holding in what has come to be known ¹⁰³ as the “Jencks Act.” That statute defines “statement,” in relation to a witness called by the United States, as: (1) a written statement made by said witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or (3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury. 18 U.S.C. § 3500 (e). Cases interpreting the Jencks Act have held that a defendant’s right to obtain witnesses’ prior statements does not include the right to obtain investigator’s notes concerning discussions with witnesses. In Strickland v. United States, 389 A.2d 1325 (D.C.1978), the defendant sought reversal of his convictions on four counts of first degree murder and one count of possession of a dangerous weapon. In the course of the homicide investigation, a key prosecution witness made certain comments to a detective.

The detective made notes of these comments — notes which the Court described as “miscellaneous” and which were gathered “from three separate interviews with [the witness] over a two-day period.” Id. at 1329 . The Court held that these notes were not statements within the Jencks Act and that, consequently, the prosecution was not obligated to provide them to the defendant. The Court pointed out that such notes “have been thought to fall outside the Jencks Act because they are ‘rough,’ ‘general,’ ‘sketchy,’ and/or ‘hasty,’ and thus not verbatim statements of the witness. . . . ” Id. at 1329 (citation omitted) [quoting Hardy v. United States, 316 A.2d 867 , 870 n. 3 (D.C.1974)]. Although Maryland has not enacted legislation similar to the Jencks Act, the Court of Appeals adopted the Jencks rule in Carr v. State, supra.

We had an opportunity to ¹⁰⁴ apply Carr in Whitehead v. State, 54 Md.App. 428 , 458 A.2d 905 (1983). At Whitehead’s trial, defense counsel sought to impeach the testimony of a prosecution witness. To facilitate the impeachment, Whitehead’s attorney “asked to be allowed to inspect notes made by three different police officers and by an assistant State’s Attorney during pretrial interviews of [the witness].” Id. at 439 , 458 A.2d 905 . We affirmed the trial court’s refusal to require production of the notes, holding that, while prior signed statements of witnesses whose testimony incriminated the accused are recoverable under Jencks and Carr , investigator’s notes of a conversation with a witness are not producible for impeachment purposes.

Appellant claims “that Whitehead , while at first blush appearing to be diametrically opposed to Appellant’s position, can be distinguished, and actually supports the reversal of the hearing board’s determination.” Whitehead not only, appears to be, it is diametrically opposed to appellant’s position. Appellant relies on the fact that Whitehead had been provided a summary of the witness’s oral statements to support his contention that production of such summaries is a matter of right under Carr . That is simply not the law. The fact that Whitehead had been given summaries of witnesses’ oral statements was not the basis for our holding that he was not entitled to an inspection of the investigators’ notes.

That Whitehead received more information than that to which he was entitled does not mean that all similarly situated persons are entitled to such prosecutorial largess. Apparently, the OIA investigators conferred at length with each of the witnesses before conducting the recorded interviews. Appellant contends that since these “pre-interview interviews” were used to prepare both the investigators and the witnesses for the recorded interviews, in which some matters previously discussed were omitted, he was entitled either to summaries of the unrecorded interviews or the investigators’ notes concerning them. We reject that ¹⁰⁵ contention.

Statements to which appellant was entitled under Jencks, Carr, and Whitehead were statements useful for impeachment of the witnesses who made them. Someone else’s notes, memoranda, recollections or interpretations of the witnesses’ remarks are not Jencks material. II Major Filyo died prior to the administrative hearing. A tape recording of OIA’s interview of Major Filyo was admitted into evidence at the hearing.

Appellant argues that the tape recording should not have been admitted because it was hearsay and, therefore, incompetent evidence required to be excluded under art. 27, § 730(c). That statute provides: “Evidence. — Evidence which possesses probative value commonly accepted by reasonable and prudent men in the conduct of their affairs shall be admissible and shall be given probative effect. The hearing board conducting the hearing shall give effect to the rules of privilege recognized by law, and shall exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence. All records and documents any party desires to use shall be offered and made a part of the record.

Documentary evidence may be received in the form of copies of excerpts, or by incorporation by reference.” We need not decide whether, under this statute, hearsay evidence is necessarily incompetent evidence 3 because we agree with the trial court’s conclusion that any error in admitting the tape into evidence was clearly harmless. Before the tape of OIA’s interview of Major Filyo was offered ¹⁰⁶ into evidence, appellant had introduced into evidence a memorandum from Major Filyo to the chief of police describing the events of the April 15 meeting. The matters contained in the tape recording were found by the court to be merely cumulative of those set forth in the memorandum introduced by the