Odem v. State

DAVIS, J. This ease arises from the denial of a Motion to Dismiss filed by appellants, Jack Odem and Michael D. Brassel. 1 Appel ⁶⁸⁶ lants were served with Baltimore City District Court criminal summonses on November 11, 2005, charging Odem with three counts of second-degree assault and Brassel with one count of second-degree assault. The alleged victims, Akhenaton Ramses Bonaparte, IV, Patrice Shelton and Grace Broadwater, filed applications for a statement of charges on October 29, 2005, November 10, 2005 and November 11, 2005, respectively. Counsel for appellants filed omnibus motions with their appearances that included Motions for Speedy Trial and Motions to Dismiss. The District Court thereafter granted the motions to dismiss subsequent to a May 5, 2006 argument.

On May 26, 2006, the State’s Attorney for Baltimore City filed four separate criminal informations in the Circuit Court for Baltimore City against Odem and Brassel for second-degree assault based upon the same incident. Appellants filed a Joint Motion to Dismiss on September 19, 2006 and the trial court conducted a hearing on October 26, 2006, after which the motions were denied. Appellants filed a timely interlocutory appeal and, on March 21, 2007, this Court granted appellants’ request to consolidate and present the following question for our review: I. Did the trial court err in denying [appellants’ Joint Motion to Dismiss? FACTUAL AND PROCEDURAL BACKGROUND On October 23, 2005, 2 appellants were involved in an altercation with the three alleged victims that occurred outside of the Maria D’s Restaurant located in or around the 1000 block of Light Street in Baltimore City.

In their respective applications for charges, the alleged victims claimed that the police officers were “on duty” at the time of the altercation. Subsequent to the three applications for charges filed by the alleged victims, appellants were served with District Court criminal summonses. The first ⁶⁸⁷ trial date, December 19, 2005, was postponed in advance on December 14, 2005 and reset for January 18, 2006. On January 11, 2006, the State provided appellants with witness statements and related documents in connection with the investigation.

Omnibus motions were filed and appearances of counsel were entered on December 29, 2005 and January 12, 2006 for Brassel and Odem, respectively. Appellants appeared for trial on January 18, 2006 and both defense attorneys requested postponements that the court granted and the court reset trial for February 28, 2006. The District Court postponed trial on February 28, 2006, due to the unavailability of a judge and reset the case for trial on May 5, 2006. When the case was called for trial in the District Court on May 5, 2006, appellant’s attorney stated that they were “[p]roceeding by way of trial your honor but there’s [sic] some Preliminary Motions I believe that we’d like to argue.” Not guilty pleas were entered and appellants waived their right to jury trial and elected a bench trial.

After the District Court found that a jury trial had been waived, appellants’ counsel informed the court that two preliminary matters with respect to the charging documents had to be addressed. Initially, defense counsel proffered that complainants Shelton and Broadwater were minors and unable to file complaints until they reached the age of majority. The court reserved ruling on that motion stating, “[w]ell, for reasons previously indicated I think the best course at this stage is to [reserve] ruling ... you will have the, the chance to ..., fully explore this issue as the trial progresses and ... I’ll, I’ll make a final ruling ... before the trial completes.” Appellants view this statement by the court as proof that it was conducting trial. 3 ⁶⁸⁸ Appellants’ argument in support of their second preliminary-matter was that the charging documents were defective and in contravention of section 2-608 of the Courts and Judicial Proceedings Article, requiring an investigation before charges can be filed against an officer.

Appellants contended that the defects arose because appellants were on duty or put themselves on duty by effectuating the arrest of Bonaparte and the State did not conduct an investigation or make recommendations to the District Court Commissioners before issuing the charging documents. Appellants’ counsel argued that the officers were on duty, requiring that the court conduct the 2-608 procedure, swpra; that the procedure was not followed; and, if the court ruled in their favor, the charging documents would be defective and, therefore, the charges should be dismissed. Appellants and the State disagreed as to whether there was an investigation or whether the officers were on duty at the time of the altercation and subsequent arrest. The District Court judge noted that it appeared to him that “there [was] a dispute as to those facts and some testimony [was] going to have to be uh taken for the court to make a determination on this motion ----” (Emphasis added.) Appellants then argued their motions to dismiss asserting, inter alia, that the State failed to comply with Maryland Code Courts & Judicial Proceedings § 2-608 4 because the officers were on duty at the time of the alleged attacks by virtue of the fact that they were effectuating an arrest of Bonaparte.

Preliminarily, the State argued there had been an investigation and that the section did not apply because the officers were not on duty. Testimony of A. Thomas Krehely, Jr., Chief of the Police Misconduct Division In addressing that second preliminary matter, the State called A. Thomas Krehely, Jr., Assistant State’s Attorney, ⁶⁸⁹ Chief of the Police Misconduct Division. Krehely was sworn and testified that he received a faxed statement of charges on November 3, 2005 for appellant Odem. He contacted the Internal Affairs Division, which subsequently forwarded him a five or six page report, outlining the investigation of both appellants.

Krehely did not recommend charges because, on his review of the facts, appellants “were not exercising their official duties at the time this incident occurred and under the statute, [] that is the only way we can make a recommendation as if the act occurs in the course of executing their duties.” Krehely summarized the facts contained in the Police Department investigative report faxed to him, including statements from Lieutenant Butler and Sergeant Murphy, who gave statements that both appellants were extremely intoxicated when they arrived on the scene, in violation of Departmental General Orders. 5 Krehely testified on cross-examination that he had not seen appellant Brassel’s Application of Charges and that his inquiry into the matter was limited to the Internal Affairs report. Krehely further testified on cross-examination that he consulted with Deputy State’s Attorney Haven Kodak, Internal Affairs Detective Mike Corran and the author of the investigative report, Sergeant Cherry Albright, but that he never spoke to any of the officers on the scene, appellants, witnesses or the Baltimore City State’s Attorney prior to making his decision. He further testified that, although he had received Bonaparte’s Application for Statement of Charges, he had not viewed either Shelton’s or Broadwater’s Application for Statement of Charges. Finally, Krehely had had a discussion with the court commissioner regarding certain people (apparently the complainants) designated INAUDIBLE in the record, but, from this discussion, he never learned whether “they were going to or had taken out charges.” ⁶⁹⁰ Argument of Counsel and Decision Essentially, contending that the court must focus on the officers’ acts in determining whether they were committed “in the course of executing the duties of [a] law-enforcement officer,” the Assistant State’s Attorney argued: Thank you your honor and thank you Mr. Krehely.

I would first uh I would your honor I’m sorry I don’t have a separate copy. I’ll give it to you. Hoyer v. Humphries is a Court of Appeals case from “1991” if I may read the language uh, “A police officer may be on duty twenty-four hours a day, necessity may be on call and may under certain circumstances have an obligation to act under law enforcement capacity even when on his own time. That does not have or lead to the conclusion that the officers [are] always acting in furtherance of the state’s business of law enforcement and that all conduct is incidental to police work.

Even though police may be said to be on duty all the time cases regularly hold that [a] police officer act[s] outside the scope of his employment when he acts for his own personal reasons and not as furtherance of the employer’s law enforcement junction.” Uh, this involves a case where a police assaulted a uh one or two victims your honor and I would provide this too if you would like to review the case. (Emphasis added). When asked whether § 2-608 is invoked whenever there is an allegation of criminal behavior on the part of a police officer, the Assistant State’s Attorney responded: Whether or not the behavior was uh part of a lawful, say a lawful arrest or a lawful uh law enforcement action. Um, if not of course it does not fall within the statute and Mr. Krehely made that determination after reviewing the facts that these are — this is criminal behavior. * * * These were not — think this was criminal activity.

It was not uh .... excuse me, it was not performed as a matter of ⁶⁹¹ uh, it was not a law enforcement duty. It was not within the scope of their employment. Um, that is sort of that is factual determination in which Mr. Krehely made of course. Your honor we’ll also have to make some facts of the Proffer, the officers were extremely intoxicated.

They did not initially identify themselves. They provoked and assaulted the victims uh not without identifying themselves as officers. Uh, it was certainly an unlawful arrest and assaultive behavior that is the State’s position. Counsel for appellants, in arguing that the officers were on duty, insisted that their clients were engaged in effectuating an arrest, quintessentially a function of law enforcement.

Moreover, they alluded to statements in the complainants’ applications in which it was asserted, inter alia, that the complainants referred to appellants having been on duty and “revealing that they were cops.” In issuing its ruling, the District Court opined: Uh thank you. Alright um, the court appreciates uh the arguments of counsel on both sides as the court indicated uh I came into this not knowing anything about the case. Um, counsel have done excellent jobs of uh presenting the issues clearly here made. Um, I have looked carefully at uh C J 2-608, Subsection B. I believe that that language has to be read um in such a way as would give meaning to that section.

Uh, if every time a police officer uh committed a criminal offense uh by virtue of that fact he would not be (INAUDIBLE) of executing his duties. There would be no reason for this statute to exist in my view. Uh, the statute does exist for cases where there is an allegation of an offense allegedly committed in the course of executing the duties of the law enforcement officer. The court has review[ed] each of the applications in this case which is what I think I must look at because it is the allegations of the application that Subsection B deals -with and I think a fair reading of all of those applications uh does indicate to this court that um, those applications do allege an offense committed in the course of executing the duties of a law enforcement officer.

I’m not making a factual finding that ⁶⁹² that’s what’s occurred I’m just making a finding that that’s what is alleged in each of those applications. Once I make that finding uh it is a prerec ... prerequisite according to Subsection D of CJ 2-608 that the State’s Attorney uh not only make investigation which Mr. Krehely indicated was made in this case but also that uh the State’s Attorney write (INAUDIBLE)recommendation there is no evidence before the court that there was any recommendation by the State’s Attorney’s Office. I do agree with Ms. Embry that it is not the State’s Attorney herself; Ms. Jessamy who has the duty to do this but the authorized representatives of her office must both investigate and make a recommendation unless they both of those things uh Subsection D says that a Statement of Charges may not be filed. Accordingly I must deny and grant in the motion to dismiss with respect to each of the defendants on each of these cases.

The State thereafter filed new criminal informations in the Circuit Court for Baltimore City on May 26, 2006. At the hearing on appellants’ Joint Motion to Dismiss on October 26, 2006, the circuit court initially addressed the propriety of the State’s decision to file new criminal informations in the circuit court, rather than appeal the decision of the District Court: [APPELLANTS’ COUNSEL]: He ultimately granted our motion to dismiss because of the overall violations and the Courts and Judicial Proceedings violations that had occurred. That was never appealed. That is, as a matter of law, a final decision in this matter.

Even though the State tries to argue in their motion, as kind of a back-door way appeal, that he was incorrect, but I submit to you, Your Honor, that is a final order. It was not appealed. They did not take any exceptions to those findings. Thereafter, these defendants were recharged with the identical crime, for the identical alleged crimes.

There’s actually, I think, a total of, between the two of them, Mr. Brassel’s charged with one assault, and Mr. Odem’s charged with assaulting three people. And everyone says while they were working as police officers, this occurred. ⁶⁹³ Mr. Corheli (phonetic), at the trial, was called as a witness for the State. Mr. Corheli, Assistant State’s Attorney, testified at that hearing about both facts— THE COURT: You said at the trial. It really wasn’t a trial, was it? [APPELLANTS’ COUNSEL]: I think it was a trial.

The witnesses were sequestered. The matter was called for trial, and we had a hearing, and evidence had been submitted. So, yes, I think — and I’ll cite the cases, but I think that constitutes the beginning of a trial under both Maryland law— THE COURT: Well, you put some cases in your brief that I haven’t had a chance to read yet but, you know, in this Court certainly, it’s not uncommon for us to hold hearings prior to criminal trials on suppression and other issues. Jeopardy doesn’t attach at that point. [APPELLANTS’ COUNSEL]: In the District Court, there are specific rules governing specific motions which control.

And at the District Court level, Your Honor, I think we’ve briefed it. But at the District Court level, there is a rule, and it’s Maryland Rule 4-251. THE COURT: And it says? [APPELLANTS’ COUNSEL]: It deals with motions in the District Court. THE COURT: And what does it say? [APPELLANTS’ COUNSEL]: And, essentially, Your Honor, what it says is if it’s a defective charging document, then it has to be handled preliminarily.

But that’s not what we filed our motion for, and that’s not what we were alleging at the time of that hearing. It says all other motions — and I think it’s B-l in the B Section, the very last sentence — and I don’t have the statute in front of me. But it seems to me the last part of that paragraph deals with all other motions may be entertained at the appropriate time. THE COURT: Yes. ⁶⁹⁴ [APPELLANTS’ COUNSEL]: So District Court procedure is quite different than this Court’s procedure, the way it handles its motions.

THE COURT: It doesn’t say anything about jeopardy. [APPELLANTS’ COUNSEL]: No, but it says — it doesn’t — there are certain mandatory motions, and there are certain non-mandatory motions that must be heard before trial. In fact, it talks about certain things regarding — let me get to the— THE COURT: Courts can reserve issues for trial. [APPELLANTS’ COUNSEL]: But that wasn’t done here. It wasn’t done. We’ve got the transcript.

Nothing was reserved by the Judge who heard this case. Nothing. He reserved on nothing. THE COURT: My point.

He didn’t wait until trial started. He decided as a preliminary matter, didn’t he? [APPELLANTS’ COUNSEL]: No. No. It wasn’t a preliminary matter. This trial had been called — they were called for trial, and witnesses were put on and sworn. THE COURT: I understand.

Okay. [APPELLANTS’ COUNSEL]: But if you look at Section B— THE COURT: Um-hum. [APPELLANTS’ COUNSEL]: — it talks about what has to be heard before trial, which is not what we’re dealing with. It also says that the offense shall be made and determined before the first witness is sworn. So by definition— THE COURT: Where does it say that? [APPELLANTS’ COUNSEL]: The submittal of Paragraph B. THE COURT: Okay. [APPELLANTS’ COUNSEL]: So we certainly didn’t have a defective charging document alleged, or there’s been a clear violation. Now, at the District Court level, it’s presumed Judge Mann knew what he was doing.

It wasn’t ⁶⁹⁵ appealed, and it wasn’t discussed at any level regarding that issue. We had a — we had a final judgment. THE COURT: Why isn’t that an estoppel issue? [APPELLANTS’ COUNSEL]: It is an estoppel — the State should be estopped from arguing it again. THE COURT: And we’re arguing double jeopardy, and we’re arguing speedy trial.

But if there’s a final determination that they can’t go forward on the merits, why aren’t they estopped? [APPELLANTS’ COUNSEL]: They