Sewell v. State

Panel: Wright, Leahy, Friedman, JJ. * Leahy, J. ⁵⁷⁸ Kelvin Sewell was Chief of the Pocomoke City Police Department (the "Department") from December 2011 to July 2015. Sewell 1 alleged that Pocomoke City terminated him in 2015 for refusing to fire Officer Franklin Savage and Lieutenant Lynell Green. Sewell's termination occurred in the same year that he and Savage filed a series of complaints with the United States Equal Employment Opportunity Commission ("EEOC") alleging various forms of racial discrimination against the Department and, eventually, the Worcester County Sheriff's Department and the State's Attorney for Worcester County. 2 ⁵⁷⁹ Following Sewell's termination from the Department, and while his complaints were pending before the EEOC, the State Prosecutor began investigating Sewell's conduct as Police Chief based, in part, on information provided by the State's Attorney for Worcester County. The State Prosecutor looked specifically at Sewell and Green's handling of the investigation into a 2014 traffic incident in which Douglas Matthews, driving home from a meeting at the Prince Hall Masonic Lodge, hit and damaged two unoccupied parked cars.

The State alleged that Sewell, a Mason, conspired with Green, also a Mason, to commit the common-law misdemeanor of official misconduct by directing their subordinates to resolve the incident without charging or citing Matthews because of their "membership in the Mason brotherhood." On July 16, 2016, a Worcester County grand jury indicted Sewell for corruptly committing misconduct in office and conspiring to commit the misconduct with Green. ⁶¹² To rebut the charge that he acted corruptly, Sewell maintained that his handling of the investigation was reasonable under the circumstances and consistent with the routine discretion that a small-town police chief exercises. He offered two expert witnesses who would have testified, among other things, to the considerations and objectives that impact a police chief's exercise of discretion during an investigation. The circuit court, however, granted the State's motion to exclude Sewell's experts' testimony, deciding that such testimony would not assist the fact-finder. At trial, the alleged association between Sewell and Matthews through their membership in the Prince Hall Masonic Lodge did not emerge from the evidence.

The State focused, instead, on eliciting testimony that described Sewell's conduct as "unusual" and out of the ordinary. The jury convicted Sewell of misconduct in office but acquitted him of conspiring with Green. ⁵⁸⁰ On appeal, Sewell raises five issues that drive at the fairness of the proceedings below: "1. The jury's verdict finding Chief Sewell guilty of misconduct in office was not based on sufficient evidence." "2. The trial court abused its discretion in excluding Chief Sewell's expert on law enforcement officer discretion." "3.

The trial court erred in admitting Officer Barnes's lay opinion testimony concerning whether it was right or wrong for Chief Sewell to instruct her to write up the traffic incident as an accident." "4. The trial court abused its discretion in denying Chief Sewell's motion to dismiss for government misconduct without a hearing." "5. The trial court abused its discretion in denying Chief Sewell's motion for new trial." Sewell asks this Court to dismiss the case against him with prejudice or, alternatively, remand for a new trial. We will grant the alternative relief.

Although the State failed to show that Sewell's membership in the Prince Hall Masonic Lodge motivated his actions or had any relevance to the crimes charged, we (the majority) conclude that the balance of the circumstantial evidence presented at trial was enough to surmount the legal sufficiency hurdle. Still, the trial court erred by excluding Sewell's expert witnesses. The trial judge failed to appreciate that the proffered testimony was relevant and would have shed light on issues that are "beyond the ken" of the average layperson. This error prejudiced Sewell, especially given that the State's case rested on circumstantial proof of corrupt intent provided by subordinate officers who worked for the Department that Chief Sewell alleged had discriminated against him and fired him retaliatory.

We discern no abuse of discretion in the trial court's decision to deny Sewell's motion to dismiss for government misconduct without a hearing. In light of these holdings, we do not reach Sewell's final issue on appeal. ⁵⁸¹ The right to a fair trial is enshrined in our laws. Under the circumstances presented in this case, the risk of unfairness is intolerably high. We remand for a new trial.

BACKGROUND The Traffic Incident Around 11:30 at night on November 21, 2014, a phone call woke Gayle Conrad as she slept in her home on Cedar Street in the "north sector" of Pocomoke City. It was a neighbor calling to let her know that a vehicle had struck her husband's truck, which was parked on the street in front of ⁶¹³ the Conrad house, and that the vehicle had left the scene. She went outside and saw that her grandson's vehicle, which was parked behind her husband's truck, was also damaged. Then, she observed "a wheel and part of an axle" that did not belong to either her husband's truck or her grandson's car lying in the road between the two vehicles.

After Ms. Conrad called the Department, a dispatch officer reported the incident over the Department's radio and asked for a nearby officer to report to Ms. Conrad's residence for "a hit and run." The driver was Douglas Matthews, a correctional officer, who later claimed that he fell asleep while driving home from a late meeting at the Prince Hall Masonic Lodge, just four to five blocks from his home. After hitting the two unoccupied cars parked in front of the Conrad home, he immediately drove about two blocks farther to his own home and called to report the accident to Green. Meanwhile, around the same time, Pocomoke City Police Officer Damien McGlotten, who was on patrol in the south sector of the city, and Officer Tanya Barnes, who was on patrol in the north sector of the city, were responding to a noise complaint at an apartment complex in the south sector of Pocomoke City. After dispatch reported the hit and run, McGlotten and Barnes got into their respective patrol vehicles and drove to the scene.

McGlotten later explained that, although the hit and run occurred in the north sector, the dispatcher assigned the call to him because Barnes had been ⁵⁸² assigned to the noise complaint and "hadn't cleared her call yet ... saying she was back in service." Once McGlotten arrived at the Conrad residence, he observed the damage to the vehicles and proceeded to interview Ms. Conrad and her husband to find out what they knew about what happened. Barnes arrived next, and sometime thereafter, Green arrived on the scene and spoke with the officers and witnesses. McGlotten testified at trial that he found Green's presence to be "unusual" because "the call came out extremely late," Green hadn't notified anyone that evening that he was on shift, and he was not in uniform at the time. A call came over the radio stating that the vehicle responsible for the hit and run had been located a few blocks away in front of the Matthews' residence.

Corporal Brad Morgan radioed that he had found a suspect, Matthews, who was not drunk or impaired, just scared. According to McGlotten, when he informed Green that he was going to respond to that location, Green instructed him to stay at the crash scene. McGlotten agreed, and both he and Barnes remained at the crash scene while Green went to the Matthews' residence. After approximately 20 or 30 minutes, Green radioed to McGlotten to "come over" to the Matthews' residence.

When McGlotten and Barnes arrived at the Matthews' residence, they met Morgan, and shortly thereafter, Sewell arrived on the scene dressed in plain clothes. The officers met out front of the Matthews' residence, where McGlotten briefed Sewell on the accident and subsequent investigation. McGlotten would later testify that "it was pretty unusual" to have both Green and Sewell "show up late" to the scene of a "basic accident" and for "both to be in plain clothes." Following the briefing, Sewell assigned the call to Barnes, and told her that "it was just an accident" and that "it wasn't a hit a[nd] run." McGlotten then left the scene, and Barnes followed Sewell inside the Matthews' residence, where they found Matthews in the living room with his wife. Barnes attempted to ask Matthews if he was under the influence of any alcohol or medication but, she claimed, Sewell responded ^{614 583} for Matthews and said that he "wasn't drinking." Barnes eventually completed a report characterizing the incident as an "accident," as Sewell had directed.

The Department did not charge Matthews with a crime or issue him a citation. Indictment About 20 months after the Matthews incident, on July 19, 2016, a Worcester County grand jury indicted Sewell on two counts: (1) conspiracy to commit misconduct in office and (2) misconduct in office. The indictment charged that Sewell, conspiring with Green, did "corruptly commit misconduct in office by knowingly, willfully, and intentionally, under the color of his office, interfering with the legitimate investigation of a motor vehicle accident by subordinate police officers for the personal benefit of an acquaintance, Correctional Officer Captain Douglas E. Matthews." Motion to Dismiss for Retaliatory Prosecution Prior to trial, on October 12, 2016, Sewell filed a motion to dismiss the indictment for governmental misconduct. He alleged that the charges filed against him constituted retaliatory prosecution based on a series of lawsuits he had filed against the Pocomoke City Police Department and Worcester County State's Attorney's Office.

In March 2015, while still Chief of the Department, Sewell filed a federal complaint of discrimination with the EEOC against the Department, which he later amended on June 9, 2015, to also include a charge of racial discrimination against the Worcester County Sheriff's Office. The Pocomoke City Council and Mayor terminated Sewell on June 29, 2015, after which he amended his EEOC complaint again-this time to allege retaliatory termination based on his refusal to fire Savage and Green, both of whom had their own charges of discrimination pending against the Department. 3 ⁵⁸⁴ The EEOC issued determinations on April 29, 2016, finding reasonable cause to believe that Sewell was "subjected to harassment in retaliation for protected activity[,]" and "discharged in retaliation for protected activity." See EEOC Determinations re: Charge Nos. 531-2015-01013; 531-2015-02134. Sewell alleged in his memorandum in support of his motion to dismiss the indictment that the timing of the indictment and Worcester County State's Attorney's involvement in the investigation were "curious" and showed improper prosecutorial motives. According to Sewell, the investigation against him was a "vague morass of allegations of wrongdoing[,]" until late September 2015, when "the case, as it would come to be known in its current form, coalesced, in large part due to the involvement of [the State's Attorney]." In response to a September 22 inquiry from an investigator for the State Prosecutor, the State's Attorney forwarded four reports that he felt suggested that "Sewell may have improperly intervened in different traffic citations[,]" including the Matthews incident.

Sewell alleged that "it [wa]s no coincidence that the pattern of th[e] prosecution [wa]s proceeding almost essentially as [the State's Attorney] outlined." Sewell concluded that, following his "very heated and very public dispute" with the Department and State's Attorney's office, they acted in concert with investigators ⁶¹⁵ from the Office of the State Prosecutor to orchestrate and engineer the present case and its underlying investigation. Sewell attached 13 exhibits to his motion to dismiss, including copies of the EEOC complaints and the EEOC's determinations, and memoranda from the State Prosecutor's office and its investigator that outline their interviews related to the investigation into Sewell. These investigatory memoranda tended to show that the State Prosecutor did not limit its investigation to the Matthews' incident but also considered several other allegations related to Sewell and his time as Chief of the Department. The two other exhibits were a ⁵⁸⁵ transcript of Matthews' testimony before the grand jury in which he stated that he was sober at the time of his crash and a note that was allegedly left on the windshield of Sewell's car that contained explicit, racist language and warned Sewell that a Pocomoke City Councilman is "tel[l]ing people in pocomoke to go against you" and "is working hard to get rid of you." The State responded by characterizing as baseless Sewell's accusation that the State's Attorney "orchestrated and engineered" the State Prosecutor's case against him.

The State declared that the only role that the State's Attorney played in the investigation was to respond to the State Prosecutor's request for information and that "neither [the State Prosecutor] nor anyone else outside of the Office of the State Prosecutor was involved in any way whatsoever with the State's decision to prosecute [ ] Sewell criminally." Notably, the State highlighted three occasions when Sewell conceded that he did not believe the State Prosecutor was motivated by racial or retaliatory bias. Sewell failed to proffer "any facts whatsoever that indicate the State Prosecutor had any communication whatsoever with any of these parties concerning the charges in the indictment." Consequently, the State asserted that "no evidentiary hearing [wa]s warranted" because Sewell "proffered no verifiable facts amounting to any evidence tending to show the existence of the State's bad faith." On November 3, 2016, the circuit court denied Sewell's motion to dismiss without holding an evidentiary hearing. 4 ⁵⁸⁶ The State's Motion to Exclude Sewell's Expert Witness Sewell notified the State that he intended to call two expert witnesses to testify that his conduct on the night of the Matthews incident was a reasonable exercise of his discretion under the circumstances. He proffered that the witnesses would testify, in part, "about the various considerations that police officers are trained to analyze in deciding whether the issuance of a citation is appropriate, and whether and when it is appropriate to detain a person and seek testing for alcohol or other impairing substances." The State moved ⁶¹⁶ in limine to exclude Sewell's proffered experts on police officer discretion. The State argued that the charge of official misconduct required the trier of fact "to decide whether or not Defendant Sewell wrongfully interfered in an accident investigation being conducted by subordinate officers, not whether or not he individually acted within his discretion in not taking further action against Matthews." According to the State, this "proffered expert testimony w[ould] not assist the trier of fact [ ] to understand the evidence or to determine a fact in issue, rather it w[ould] tend to confuse the jury by misdirecting their attention away from the real issue." Sewell opposed the State's motion, arguing that his proffered experts would assist the finder of fact because the allegations against him "go directly to the Chief's exercise of discretion[,]" and his experts "w[ould] assist the trier of fact by explaining the ambit of discretion that is accorded to law enforcement officers and their supervisors and how that ambit of discretion applies to the facts of the present case." Along with Sewell's opposition brief, he included the curriculum vitae and an affidavit from Steven Ashley, one of his proffered experts.

In his affidavit, Ashley, a former law enforcement manager, risk management professional, and criminal justice trainer who had testified as an expert in over 30 criminal cases, ⁵⁸⁷ related, "I [ ] understand that Officer Barnes contends that Chief Sewell interfered with her questioning of Mr. Matthews.... I also understand that Officer Barnes has testified to the effect that Chief Sewell may have committed some impropriety by suggesting it was her responsibility to write the accident report. The officers on the scene did not conduct field sobriety tests on Matthews, nor did they subject him to a breathalyzer test." Ashley then observed that, as evidenced by The Pocomoke City Police Department Written Directives, officers have broad discretion and must weigh various considerations. He explained that this "broad discretion applies to all aspects of an investigation, including what inquiries to make or not make, how an incident is reported, and determining what are the pertinent facts to consider." Ashley opined that "it would have been within Chief Sewell's discretion to answer inquiries from Officer Barnes[,]" and that "supervisors or officers in a supervisory position are within their discretion to delegate various responsibilities, including the writing of an accident report.

If Chief Sewell assigned the writing of the report to Officer Barnes, it is my opinion that decision was within his discretion." A circuit court judge considered these arguments along with several other motions at a hearing held on November 22, 2016. The court delivered a brief oral ruling in which it granted the State's motion to exclude Sewell's experts, and stated that the proffered expert testimony "would not assist the jury as trier of fact in resolving the issues, and, in fact, I believe it might [ ] lead to confusion." Trial The case proceeded to trial on December 1, 2016. The State called as the first witness Gayle Conrad, who testified to the events of the evening following the accident. She related that several officers came and left her home, but that "nobody seemed to know what to do." The State's next witness was Anthony Tull, a member of the Prince Hall Masonic Lodge 5 ⁵⁸⁸ located ⁶¹⁷ in or near Pocomoke City.

Tull stated that he knew Matthews, Sewell, and Green as fellow Masons and that Sewell had been a member of the Prince Hall Masonic Lodge "approximately since 2014." Tull also stated that Sewell had been to "some" Mason-related events but "not very many." He related that both Sewell and Green were relatively new members of the lodge. After he explained the activities of the lodge in the community, the State asked again how often he saw Sewell at Mason-related events, to which he responded: "Not ⁵⁸⁹ very many. Truthfully not very many, but he has been to some." McGlotten was the State's first witness from the Department. He began his testimony by describing how the Department divided the City into the north and south sectors and explained that "when an officer is not back in service in their sector, the other sector officer handles the call or the dispatcher knows automatically to pass it to them, so that way it expedites the response." He and Barnes were responding to an incident at Sunshine Village in the south sector of the city when he heard the call come in over the radio to "respond to 712 Cedar Street for a hit and run" in the north sector.

He believed that Dispatch assigned the call, located in Barnes' sector, to him because "Barnes hadn't cleared her call yet basically saying she was back in service," even though they had completed their call to Sunshine Village. Both officers got into their respective vehicles and drove over to Cedar Street. Once McGlotten arrived at the scene of the accident, he observed "a wheel laying in the street" and "the damage that was done to vehicles that were on the scene." He exited his patrol vehicle and contacted the car's owner to "figure out exactly what they saw, what happened." At some point during the investigation, Green arrived on the scene. McGlotten explained that Green ⁶¹⁸ was his boss.

The State Prosecutor asked him whether "it was unusual that you saw Lieutenant Green at the scene at 712 Cedar Street?" McGlotten told the members of the jury why it was unusual: A. The call came out extremely late. It was near midnight.... The lieutenants typically when they're working, if they're assigned ... back then they would do day and evening shift, you would know that they were on duty.... And at that point he hadn't throughout the whole evening notified that he was on shift or working. * * * Q. Do you remember what he was wearing that evening?

A. He was dressed in plain clothes. Q. Is that unusual? ⁵⁹⁰ A. Yes. Q. Why? A. The uniform that he would have been wearing if he works evening shift, we call it BDU uniforms.

According to McGlotten, a radio call from Morgan came over the radio stating that the vehicle responsible for the hit and run had been located a few blocks away in front of the Matthews' residence. Green instructed him to stay at the scene with Barnes while he went to the Matthews' residence. The State again asked McGlotten "[d]id you think it was unusual that Lieutenant Green asked you to stay?" He said that he did, and when asked to explain to the jury why it was unusual, he elaborated: "Being that there was nothing else left for me to do, I had already run the registration of the vehicles and everything was done[.]" McGlotten and Barnes eventually went over to the Matthews' residence. When they arrived, McGlotten saw that both Morgan and Green were there, and eventually "Chief Sewell arrived and was driving ... a departmental issued" car.

The State again directed McGlotten's testimony to what was unusual about Sewell's arrival: Q. So, Officer McGlotten, first your boss, Lieutenant Green, is at the scene. Now your boss['s] boss, Chief Sewell, is at the scene. Is that unusual? A. Yes.

Q. Tell the ladies and gentlemen of the jury why. A. This is -- this incident is a basic accident. We go through these processes. I mean, there's at least one a week in the City of Pocomoke where there's accidents that do occur....

And for that time of night, [ ] both Lieutenant Green and Chief Sewell to show up that late out there and both be in plain clothes, it was pretty unusual[.] * * * Q. What's Chief Sewell wearing that evening? ⁵⁹¹ A. He was wearing a dark colored hoodie, I believe it was black, and shorts, dark colored shorts. Q. He wasn't wearing a uniform? A. No. When Sewell arrived, McGlotten met with the officers on the scene and gave Sewell a "recap" of what was going on. Then Sewell looked at him and asked, "whose call is this[?]" McGlotten stated that it was his call-"[i]t was assigned to me." The prosecutor asked next: Q. What does Chief Sewell do A. He paused probably for about five seconds and he said -- he basically he was, like okay.

And then that's -- Officer Barnes ends up speaking up and says that she can take the call. ⁶¹⁹ Q. Let's talk a minute before we talk about Officer Barnes. Let's talk about that five second pause. Was that unusual? A. Yes.

The trial court then sustained the defense's objection to the last question and answer, as it was without foundation. McGlotten continued his testimony by explaining that he wasn't okay with Sewell assigning the case to Barnes because he "didn't know the reason behind it[,]" and "had already basically put in the work and done everything other than talk to the suspect." On cross-examination, however, McGlotten agreed that when Sewell asked who was assigned the investigation, he "explained that it should have been assigned to Officer Barnes, but she was busy when the call was dispatched, so I w[as] the first responder and the one who began the investigation," but "Officer Barnes volunteered to take it, so Sewell said that Barnes could take it." On re-direct, the State Prosecutor asked McGlotten to explain to the jury how assignments work within the Department. He responded: "Typically it's I want to say customary that if it's assigned to you, you just go and handle it. Otherwise, it looks almost as though you're also ⁵⁹² complaining and everything like that.

And when you also ... already handled the majority of the incident, the incident is essentially yours." Following brief testimony from Ms. Conrad's husband about his observations from that night, the State Prosecutor called Barnes as a witness. Again, the State Prosecutor's questions focused largely on what she found "unusual" about the night in question. Barnes confirmed after each question that she considered things to be unusual-the wheel in the road at Ms. Conrad's house, the missing wheel at the Matthews' house, and the police chief responding to a call that did not involve a major crime. Fixed on the "unusual" motif, the State next inquired whether there was "anything unusual to [Barnes] about the way" Sewell asked her and McGlotten who was handling the call.

Barnes responded that it was unusual because Sewell was "looking directly at [her] ... [j]ust kind of implying that he wanted me to take the call." After the third time Sewell asked, she told him she would take the call. Barnes then testified that when she asked Matthews if he had been drinking or was impaired by medication, and why he left the scene of the accident, Sewell answered for Matthews the two times she asked Matthews these direct questions. She said that Sewell directed her "to write it as an accident report," and advised her "that it wasn't a hit and run, and that the driver of the vehicle was not intoxicated or impaired." So, she wrote an accident report, which Green signed as her supervising officer. The State asked her about what she did later that evening: [STATE]: Okay. [ ] Officer Barnes, based on what happened that evening, what did you do when you were - after you were off-duty? [DEFENSE]: Objection.

That's going to ask for an opinion, too. THE COURT: No. It asks what she did. That's permitted. [BARNES]: I called my pastor. [DEFENSE]: Objection. ⁵⁹³ THE COURT: No. He asked what she did. She called her pastor. [STATE]: Why did you call your pastor? [DEFENSE]: Objection.

THE COURT: Sustained. [STATE]: What did you tell your pastor? [DEFENSE]: Objection. ⁶²⁰ THE COURT: Overruled. [STATE]: And I'm not asking you to go into any personal details. [BARNES]: I advised him that I had a call that I wasn't sure about and I needed him for [sic] pray for me. And I explained to him some of the details. During Barnes's cross-examination, the defense played the call that was radioed in by Morgan when he found Matthews' car: [DEFENSE]: Were you able to hear that? [BARNES]: Yes. * * * [DEFENSE]: Did you hear a reference in there about it's not alcohol or drug related? [BARNES]: Yes. [DEFENSE]: The suspect just got scared? [BARNES]: Yes. [DEFENSE]: Whose voice was that? [BARNES]: Corporal Morgan. After Barnes testified, the State called Matthews as its final witness.

Matthews testified that he fell asleep in the four to five blocks between the lodge and the scene of the accident. Once he struck the car, he "got up and gathered" himself and "somehow maneuvered" his vehicle to his house, where his vehicle "ceased to move." Matthews could not explain why he did not stop at the scene of the accident or how he managed to drive his vehicle, which was missing a wheel, to his house. ⁵⁹⁴ Matthews testified that, upon reaching his house, he "panicked" and telephoned Green. He could not explain why he panicked, nor could he explain how he "fell asleep in a four or five block ride," and had "no memory" of what happened. He said he had Green's card, so he called him to report the accident.

He stated that he had one drink much earlier in the night but was not intoxicated. The State never asked Matthews if he had any relationship with or had ever met Sewell. Following Matthews' testimony, Sewell moved for a judgment of acquittal. He argued that the State's evidence was "completely consistent with the proposition that Chief Sewell, right or wrong, [ ] truly believed that this was an accident." He insisted the State had produced no evidence that he harbored corrupt intent and no evidence to support its theory that "he was trying to put his thumb on the scales for a fellow [M]ason." The trial judge ruled that "there's sufficient evidence ... to support the allegations of the State, so I'm going to deny your motion." Sewell took the stand at the start of the defense case.

He explained that, on the night of the Matthews incident, he was "working the 4:00 to 12:00 shift," parked in the parking lot of a local Walmart. He parked there because he had received reports that the store's security had been involved in "foot chases with people stealing" and that one of the store's employees might be "selling narcotics in the parking lot." He was dressed in plain clothes at the time because he oftentimes grew "tired of being in uniform all day long." While in the Walmart parking lot, Sewell heard the radio call reporting the accident, so he decided to drive to the scene of the accident. He did so because "it sounded like a lot of commotion and everything," and he wanted to "figure out what's going on" and "to be of assistance" in "straightening things out." When he reached the scene of the accident, however, he heard a radio report from Morgan indicating that the suspect's vehicle had been located at the Matthews' residence. During that same radio report, which was played for the jury, Morgan stated that ⁶²¹ Matthews was "not drunk or ⁵⁹⁵ impaired" and that he was "just scared." On cross-examination, Sewell admitted that Green had also called to inform him that Matthews was involved in the accident.

In response to a question by the State, Sewell said that this was "not unusual" because he and Green "talk on the phone a lot" and Sewell "always show[s] up on scenes." After staying at the scene of the accident for "a brief moment," Sewell drove to the Matthews' residence, where he encountered Morgan and Green. He went into the house and asked Matthews if he was "okay." In so doing, Sewell "got close" to Matthews. He said he asked Matthews no further questions but could tell that "[h]e did not have alcohol on his breath" or slurred speech, so he concluded Matthews was not intoxicated. His training taught him to distinguish mistakes of the head, like drinking and purposefully hitting a car, and mistakes of the heart: "I came to the conclusion that it was a mistake of the heart.

He fell asleep. He tried to make it home. And he wasn't intoxicated." Sewell then went outside, where he met Barnes and McGlotten, and asked the officers, "who's writing this?" According to Sewell, Barnes "immediately said, 'I'm writing this.' " From Sewell's perspective, it was Barnes' assignment because it was her post and, when he asked, Barnes responded immediately that she was writing the report, so he instructed her to write it as an accident. He explained that, when he became Chief, he divided the city into sectors based on crime data in the Department's Compstat program 6 and that officers are assigned ⁵⁹⁶ to a specific sector in which they have "post integrity," meaning, "don't want another officer handling calls on your post.

You want to take care of your own post." He explained that Compstat is "an effective way to track officers, what they do out there on a daily basis," and "[b]asically track[s] everything they do from their day-to-day operations." Accordingly, Sewell testified, Barnes took the call "and that was it." After speaking with Barnes, Sewell got back in his vehicle and returned to the Walmart parking lot. Sewell asserted that he did not try to intimidate Barnes, and that Matthews' status as a Mason did not affect his determination that the incident was simply an accident. He also explained that "officers assigned to the north [sector] know they answer calls on the north or investigate cases on the north." Later, the State asked Sewell why he refused to allow Barnes to interview Matthews in his home following the incident. He replied that he was "never inside the house with Officer Barnes at all" and that "she was lying." At the close of all evidence, Sewell again moved for a judgment of acquittal, and the circuit court reserved its ruling.

The circuit court instructed the jury on the law, including the elements of the charge of misconduct in office: ⁶²² Misconduct in office is corrupt behavior by a public official in the exercise of his duties of office or while acting under color of office. In order to convict the defendant of this offense, the State must prove, one, that the defendant was a public officer, two, that the defendant acted in his official capacity, and three, that the defendant corruptly did an unlawful act. The word corruption is used in the sense of depravity, perversion or taint. The conduct must be a willful abuse of authority.

A mere error in judgment or mistake is not enough to constitute corruption. ⁵⁹⁷ Law enforcement officials have discretion to issue citations and make arrests. Discretion in this context means that police officers are not required to make arrest or issue citations even if they have probable cause to believe that a person committed or is committing a violation. You may consider the fact that police officers are not required to make arrests or issue citations even if they have probable cause in determining whether or not [Sewell's] conduct constitutes corrupt action beyond a mere error in judgment. The jury ultimately convicted Sewell of misconduct in office.

Sewell thereafter filed a renewed motion for judgment of acquittal, as well as a motion for a new trial, arguing, as he does here, that the evidence was insufficient to sustain the conviction and that the State Prosecutor made misrepresentations to the circuit court about his office's contacts with the State's Attorney, which raised doubts about the fairness of the verdict. Following a hearing, the court denied Sewell's motions for judgment of acquittal and for a new trial. Sewell noted his timely appeal to this Court on January 3, 2017. DISCUSSION I. Motion to Dismiss Sewell complains that the circuit court erred in denying his pretrial motion to dismiss without holding an evidentiary hearing.

He maintains that a court must grant a defendant an evidentiary hearing when the defendant moves to dismiss on the grounds of vindictive and/or retaliatory prosecution if the defendant presents some evidence tending to show the State acted in bad faith. According to Sewell, he offered the court three verifiable circumstances that tended to show the prosecution was retaliatory: (1) he had filed the EEOC claims against the State's Attorney, Sheriff's Office, and the Department; (2) the State's Attorney substantially drove the State Prosecutor's allegations against him; and (3) the State Prosecutor ⁵⁹⁸ "ignored" allegations that Sewell made regarding improper conduct by the State's Attorney. Sewell avers that "the information presented showing an ulterior, improper motive for this prosecution warranted a grant of an evidentiary hearing." The State responds that the circuit court was correct to deny Sewell's motion without a hearing because the State Prosecutor's office conducted its own independent investigation into Sewell's official misconduct, regardless of the State's Attorney's responses to requests for information. Moreover, the State points out that Sewell expressly stated on three occasions that he was not accusing the State Prosecutor of bad faith.

Instead, he offered a theory that the State's Attorney manipulated the State Prosecutor's office without, according to the State, "any facts whatsoever to support his conspiratorial theory that the State ha[d] been 'manipulated' by the ⁶²³ Worcester County State's Attorney or anyone else." In McNeil v. State , this Court adopted a standard governing a defendant's right to an evidentiary hearing on a claim of prosecutorial misconduct. 112 Md. App. 434 , 465, 685 A.2d 839 (1996). After assessing the standards employed by several federal courts of appeal, this Court "conclude[d] that a defendant is entitled to a hearing, if timely requested, to prove or dispel his claim of misconduct if he proffers verifiable facts amounting to 'some evidence tending to show the existence of' the State's bad faith." Id. at 465 , 685 A.2d 839 (adopting language from U.S. v. Berrios , 501 F.2d 1207 , 1211 (2d Cir. 1974) ). Sharing the concern articulated by the Seventh Circuit of " 'the prospect of government prosecutors being called to the stand by every criminal defendant for cross-examination as to their motives,' " we cautioned that "[a] mere general allegation of prosecutorial misconduct is not sufficient to warrant the granting of an evidentiary hearing." Id. (quoting U.S. v. Falk , 479 F.2d 616 , 620 (7th Cir. 1973) ).

Therefore, such an intrusion on the prosecutor is warranted " in limited circumstances , ... if the defendant 'presents facts sufficient to raise a reasonable doubt' about the prosecutor's motive." Id. (quoting Falk , 479 F.2d at 620-21 ) (emphasis added). ⁵⁹⁹ In Robinson v. State , this Court decided several issues, including whether a defendant was entitled to an evidentiary hearing on his claim of vindictive prosecution. 209 Md. App. 174 , 184, 58 A.3d 514 (2012), overruled on other grounds by Dzikowski v. State , 436 Md. 430 , 456, 82 A.3d 851 (2013). In response to a fight outside of a bar, Robinson drove his car into one of the bar's security guards, who happened to be an off-duty deputy with the Prince George's County Sheriff's Office. Id. at 180-81, 58 A.3d 514 .

The State charged Robinson criminally but then nol prosed the charges. Id. at 181 , 58 A.3d 514 . A month later, the State charged Robinson again, leading Robinson to allege vindictive prosecution and request an evidentiary hearing. Id. at 181, 184 , 58 A.3d 514 .

Robinson asserted that his prosecution was retaliatory because the State recharged him only after he had "filed a notice of intent to file suit against the police[.]" Id. at 184 , 58 A.3d 514 . The circuit court denied his motion without an evidentiary hearing and this Court affirmed, concluding that Robinson did not meet the standard set out in McNeil . Id. at 190 , 58 A.3d 514 . We reasoned that Robinson "provided the circuit court with no evidence of actual vindictiveness, nor did he provide verifiable facts supporting his claim of vindictive prosecution." Id.

It was not enough that the State refiled its charges after Robinson filed his civil suit. We ruled that "[a] claim of vindictive prosecution based solely on the timing of the filing of the charges, without some evidence of actual bad faith, does not rise beyond the level of mere conjecture." Id. Returning to the case before us, we discern no error in the court's decision to deny Sewell's motion without an evidentiary hearing. The record demonstrates that Sewell conceded, on three occasions prior to the court's decision, that he was not accusing the party against whom he directed his motion, the State Prosecutor, of governmental misconduct: 1.

In his memorandum supporting his motion to dismiss, Sewell stated specifically, "[o]ur arguments are not directed at the specific attorneys litigating this case: Emmett Davitt or Kelly Madigan. Instead our discussion ⁶⁰⁰ focuses on the investigators in this case, and another prosecutor," the State's Attorney. ⁶²⁴ 2. In a memorandum supporting his motion to compel discovery, Sewell reiterated, "The State correctly notes that, at a meeting which we sought with Mr. Davitt and Ms. [Madigan], we referred to our series of prior interactions with Mr. Davitt and told him that we did not believe that he personally was motivated by racial animus or retaliatory motive." 3. In his motion for an evidentiary hearing, Sewell indicated that he did not believe that the State Prosecutor "has been animated by personal racial bias." Instead, Sewell argued that the State Prosecutor "has been manipulated into bringing this prosecution by the State's Attorney for Worcester County, the investigators working for the Special Prosecutor's Office, the Worcester County Sheriff, and the Maryland State Police." Apart from these concessions, we also observe that the facts alleged in Sewell's motion and the exhibits attached thereto focused on the conduct of local agencies unconnected to the State Prosecutor. 7 None of this constituted verifiable evidence that the State Prosecutor was engaged in a conspiracy with the local officials, or that the State prosecution was "orchestrated and engineered" by the Worcester County State's Attorney.

As the State pointed out in its opposition to his motion to dismiss, "Sewell d[id] not proffer any facts whatsoever that indicate the State Prosecutor has had any communications whatsoever with [the State's Attorney, the Sheriff, or ⁶⁰¹ the State Police]." Even now on appeal, Sewell cannot say how the State's Attorney manipulated the State's Prosecutor. Without verifiable facts or allegations of misconduct by the State Prosecutor, Sewell relies on the timing of his indictment, which he believes was "curious." But, as we ruled in Robinson , "[a] claim of vindictive prosecution based solely on the timing of the filing of the charges, without some evidence of actual bad faith, does not rise beyond the level of mere conjecture." 209 Md. App. at 190 , 58 A.3d 514 . We hold that Sewell failed to "present facts sufficient to raise a reasonable doubt about the [State Prosecutor's] motive," McNeil , 112 Md. App. at 465 , 685 A.2d 839 (internal quotations omitted), and therefore, the circuit court did not err in denying his motion without an evidentiary hearing.

II

Evidence of Official Misconduct At Sewell's trial, the State carried its burden to adduce sufficient evidence to convict Sewell of official misconduct and, therefore, the court was correct in denying the motion for acquittal for the reasons stated below. We hold, however, that the trial court committed reversible error by precluding Sewell from introducing expert witness testimony in his defense. A. Official Misconduct First, we review the elements necessary to prove official misconduct, which is a common-law misdemeanor in Maryland. Leopold v. State , 216 Md. App. 586 , 604, 88 A.3d 860 (2014) (citing ⁶²⁵ Duncan v. State , 282 Md. 385 , 387, 384 A.2d 456 (1978) ).

Misconduct in office is defined as "corrupt behavior by a public officer in the exercise of the duties of his [or her] office or while acting under color of" his or her office. Id. (quoting Duncan , 282 Md. at 387 , 384 A.2d 456 ); see also Rollin M. Perkins & Roland N. Boyce, Criminal Law 543 (3d ed. 1982). Although it is a singular offense, the crime of official misconduct covers three modes of behavior: (1) misfeasance, (2) malfeasance, and (3) nonfeasance. ⁶⁰² State v. Carter , 200 Md. 255 , 262-63, 89 A.2d 586 (1952).

" 'Nonfeasance is the omission of an act which a person ought to do; misfeasance is the improper doing of an act which a person might lawfully do; and malfeasance is the doing of an act which a person ought not to do at all.' " Id. at 262 , 89 A.2d 586 (quoting Bell v. Josselyn , 69 Mass. 309 , 311 (1855) ). By way of example, a public officer tasked with awarding government contracts can commit malfeasance by rewarding a political donor with a public contract that the officer had no authority to grant and may commit misfeasance by rewarding the donor with a contract that is within the officer's authority to grant. Perkins & Boyce, supra , at 545. Accordingly, a public officer commits malfeasance by corruptly exceeding the scope of his or her authority and commits misfeasance by acting within the scope of his or her authority but doing so corruptly.

Compare Piper v. Pearson , 68 Mass. 120 , 123 (1854) (holding that a magistrate was liable for finding the plaintiff in contempt in an action over which the magistrate had no authority to preside) with People v. Norton , 7 Barb. 477 , 478, 480-81 (N.Y. App. Div. 1849) (explaining that, although the law may grant an officer "discretionary jurisdiction" to grant liquor licenses, that discretion cannot be "willfully abused[,]" and the officer may not grant or refuse to grant a license based on "corrupt and improper motives"). As in any other criminal prosecution, in a case of official misconduct, the burden of proof lies with the State to prove the official guilty beyond a reasonable doubt. Harryman v. State , 359 Md. 492 , 505, 754 A.2d 1018 (2000). Over 150 years of decisional law confirms that, regardless what type of act (or omission) forms the basis of a charge of official misconduct, the State must prove that the public officer acted "willfully, fraudulently, or corruptly." Friend v. Hamill , 34 Md. 298 , 304 (1871) ; see also Hiss v. State , 24 Md. 556 , 561 (1866) (relying on Lord Mansfield for the proposition that a justice of the peace may be liable for a discretionary act only if he exercises his discretion "maliciously or corruptly").

This is because official misconduct covers only " corrupt behavior by a ⁶⁰³ public officer" in the exercise of his or her duties. Duncan , 282 Md. at 387 , 384 A.2d 456 (emphasis added). Requiring that the State prove corrupt intent in misfeasance cases shields public officers from liability for "the consequences of mistakes honestly made." Bevard v. Hoffman , 18 Md. 479 , 483 (1862) ; see also People v. Feerick , 93 N.Y.2d 433 , 692 N.Y.S.2d 638 , 714 N.E.2d 851 , 857 (1999) (explaining that the mens rea requirement protects officers from criminal liability for honest mistakes). As the Court of Appeals explained in 1862, "the nature of our institutions equally demands, that public officers, acting faithfully and honestly in the discharge of their duties, and within the limits of their constitutional powers, shall be protected from liability for mistake or errors of judgment from which none are exempt; provided that they are unmixed with fraud or corruption ." Bevard , 18 Md. at 483 (emphasis added).

The Court underscored this point later that century in Mincher v. State , ruling that when a public official is reposed with judgment and discretion in the discharge ⁶²⁶ of his or her functions, that official may not be held liable, civilly or criminally, for misconduct in office "except for acts done willfully, fraudulently, or corruptly." 66 Md. 227 , 235-36, 7 A. 451 (1886) (citing Friend , 34 Md. at 304 ; Bevard , 18 Md. at 484 ). A jury acquitted Mincher, a voter registration officer, of all charges except one. Id. at 231, 7 A. 451 . The jury found him guilty of violating a voter registration statute for "knowingly making and publishing [ ] a false and misleading" voter registration list.

Id. at 231-32 , 7 A. 451 . Mincher claimed that the indictment was defective because it did not aver that he acted either willfully, fraudulently, or corruptly. Id. at 235-36 , 7 A. 451 . The Court of Appeals agreed that such proof is required "wherever the registration act devolves upon such officer the duty of exercising judgment in the discharge of their functions." Id. at 236 , 7 A. 451 .

The Court concluded, however, that "[t]he duty of making out, completing, and publishing the two lists provided for in this section [of the statute] does not involve the exercise of any judgment whatever, nor is it left to the discretion of such officers to make out and publish the lists ... it was only ⁶⁰⁴ necessary for the count to charge, as it does, that the acts set out in it were unlawfully and knowingly done by the traverser." Id. In the case of malfeasance, then, the conduct in question falls outside of the official's discretion and authority, and, if done willfully, is corrupt on its face. See id. at 235-36 , 7 A. 451 . The fact-finder can therefore infer the element of corruption without direct evidence of the official's intent to act corruptly because "wil[l]fulness and bad intent" are "necessary or probable accompaniments" of malfeasance.

See Carter , 200 Md. at 263 , 89 A.2d 586 . For instance, a jury could infer corrupt intent from the act of a public officer who, in his capacity as police lieutenant, accepted gifts from several persons he allowed to maintain and conduct a house of prostitution in his jurisdiction. See Hitzelberger v. State , 174 Md. 152 , 164-65, 197 A. 605 (1938). In the case of misfeasance, however, because the conduct normally falls within the official's discretion and authority, the State must present evidence that the official intended to act corruptly-with a "sense of depravity, perversion, or taint." Perkins & Boyce, supra , at 542.

The distinctions between nonfeasance, malfeasance and misfeasance are not always clear in the cases that develop. See id. at 545 (observing that the distinction between malfeasance and misfeasance "is much less sharp in the actual cases than it is in legal theory, and ... the courts have had little occasion to indulge in hairsplitting discussions of the problem"). For instance, consider the registration official in Mincher , 66 Md. at 235 -36 , 7 A. 451 . One may argue that he committed misfeasance because his act (publishing a voter registration list) was within the scope of his authority.

But because the official's duty to publish the names of registered voters was deemed ministerial-rather discretionary-his decision to willfully omit from the list the names of some registered voters was beyond the scope of his authority and was, therefore, malfeasance. See id. Chief Judge Marbury declared in Carter , that what matters is "the gravamen of the charge, and it is not particularly ⁶⁰⁵ important what it is called." 200 Md. at 267 , 89 A.2d 586 . In that case, the indictment charged certain officials with corruptly permitting individuals to post improper, inadequate and insufficient bail, and the appellants claimed that the indictment should be dismissed because it "contained in one count three separate and distinct crimes, malfeasance, misfeasance, and nonfeasance in office, and therefore was duplicitous." Id. at 259 , 89 A.2d 586 .

Judge ⁶²⁷ Marbury instructed that the officials were charged with performing their duties corruptly and improperly and that "[w]hether this is called malfeasance or misfeasance or nonfeasance, it is a clear charge of misconduct in office, and it is the only charge contained in the indictment." Id. at 267 , 89 A.2d 586 ; see also Chester v. State 32 Md. App. 593 , 605, 363 A.2d 605 (1976) ("[A]ny corrupt violation by an officer in any of these three ways is a common-law misdemeanor known by some such name as 'misconduct in office' or 'official misconduct.' "). As these cases and the case before us illustrate, the measure of what constitutes official misconduct is an imbricating continuum of proof that runs from evidence of conduct squarely within an officer's discretion undertaken with corrupt intent (misfeasance)-to evidence of conduct clearly exceeding an official's scope of authority such that corrupt intent can be assumed (malfeasance). Conduct that toes the sometimes murky line between what is and what isn't within an officer's scope of authority, 8 falls within the overlay on this continuum. ⁶⁰⁶ One thing is certain: regardless of where on the spectrum between malfeasance and misfeasance that Sewell's alleged conduct falls, the ambit of his discretion remains central in the State's case for official misconduct. B. Sufficiency of the Evidence Sewell's initial challenge on appeal is to the sufficiency of the evidence.

Unless the State presented sufficient evidence at trial to convict him of official misconduct, "there c[an] be no new trial." Bloodsworth v. State , 307 Md. 164 , 167, 512 A.2d 1056 (1986) ; accord Sloan v. State , 70 Md. App. 630 , 632, 522 A.2d 1364 (1987). Sewell contends that "the cornerstone of the State's theory"-that he and Matthews were acquaintances through the Masons-went unproven, leaving "no testimony of any relationship from which the jury could meaningfully infer that Chief Sewell even had a motive to corruptly interfere with the investigation." The remaining evidence, he avers, was insufficient to establish misconduct in office. For example, he submits that the State failed to prove that McGlotten would have reported the accident any differently had he written the report. Sewell contends that, even viewing the evidence ⁶²⁸ in the light most favorable to the State, the evidence at trial was specious and insufficient.

In the State's view, the evidence on point "was overwhelming." The State asserts that, based on the testimony of Barnes ⁶⁰⁷ and McGlotten and the circumstances of Matthews' crash, including the telephone calls between Sewell and Green right before they went to the scene, "a rational trier of fact ... could have found that Sewell acted with corrupt intent when he interfered with the investigation of Matthews' hit-and-run, directed Officer Barnes to declare the incident an 'accident,' and issued no citations." When reviewing the sufficiency of evidence, we view the evidence and any reasonable inferences therefrom in the light most favorable to the State and determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Donati v. State , 215 Md. App. 686 , 718, 84 A.3d 156 (2014) (citations and internal quotations omitted). We do not reweigh the evidence but simply ask whether there was sufficient evidence-either direct or circumstantial -that could have possibly persuaded a rational jury to conclude that the defendant was guilty of the crime(s) charged. Neal v. State , 191 Md. App. 297 , 314, 991 A.2d 159 (2010) (emphasis added); Painter v. State , 157 Md. App. 1 , 11, 848 A.2d 692 (2004). In doing so, "[w]e defer to the fact finder's 'opportunity to assess the credibility of witnesses, weigh the evidence, and resolve conflicts in the evidence[.]' " Neal , 191 Md. App. at 314 , 991 A.2d 159 (citations omitted).

At trial in the underlying case, the parties agreed that Sewell was acting under the color of office. The only element of official misconduct at issue was whether he acted with corrupt intent. To prove corrupt intent, the State need not offer affirmative proof of the official's motives but may instead carry its burden of proof through reasonable inferences. Jones v. State , 440 Md. 450 , 455, 103 A.3d 586 (2014) ("The State may prove a defendant's intent through 'direct [evidence] or circumstantial evidence[.]' " (citations omitted) (alterations in Jones ) ).

As Perkins and Boyce note in their treatise, Criminal Law , "[i]n the search for corruption ... there are many situations in which 'actions speak louder than words.' " Perkins & Boyce, supra , at 542. The question of corrupt intent in a case for misconduct in office is a question ⁶⁰⁸ for the trier of fact. See People v. Hardrick , 258 Mich.App. 238 , 671 N.W.2d 548 , 552 (2003). The State Prosecutor's theory of the case was that Sewell undertook several acts-each of which, in a vacuum, would be unexceptional-but taken together, under "unusual" circumstances, establish his corrupt intent.

According to the State, the circumstantial evidence that proved corrupt intent included: (1) Sewell appeared at a crime scene late at night dressed in plain clothes after receiving a call from Green; (2) Sewell reassigned the primary responsibility for investigating the Matthews incident from McGlotten to Barnes; (3) Sewell answered Barnes' questions about Matthews' sobriety on Matthews' behalf; and (4) Sewell instructed Barnes to write the incident as an accident. To place Sewell's discretionary acts in a context that showed they were improper and therefore corruptly motivated, the State offered testimony from McGlotten and Barnes, Sewell's subordinates, that Sewell's behavior was highly "unusual." The State also offered a potential motive for Sewell to act corruptly: Sewell, Green, and Matthews shared membership in the Prince Hall Masonic Lodge. 1. The Mason Connection It is well established that mere membership in an organization-with aims ⁶²⁹ that are legal or illegal-is insufficient to convict a person of a crime. See, e.g. , Baird v. State Bar of Ariz. , 401 U.S. 1 , 9, 91 S.Ct. 702 , 27 L.Ed.2d 639 (1971) (Stewart, J., concurring in judgment) (summarizing the Supreme Court's jurisprudence to conclude "that mere membership in an organization can never, by itself, be sufficient ground for a State's imposition of civil disabilities or criminal punishment").

Common membership in an organization may, of course, have relevance at a trial. See e.g. , U.S. v. Beasley , 72 F.3d 1518 , 1527-28 (11th Cir. 1996) ("The First Amendment's protection of beliefs and associations does not preclude such evidence where relevant to a trial issue."); but see U.S. v. Lee Huen , 118 F. 442 , 463 (N.D.N.Y. 1902) (holding that "no rule of law [ ] justifies" an inference that a person would act with ⁶⁰⁹ bias toward another person based solely on their common nationality). Courts may look beyond the defendant's membership to the tenets of the organization, including any illegal aims the organization may have and the defendant's intent to participate in those illegal aims. See, e.g. , Scales v. U.S. , 367 U.S. 203 , 229, 81 S.Ct. 1469 , 6 L.Ed.2d 782 (1961) (holding that, when a defendant is charged with furthering an organization's illegal aims, and that organization has both legal and illegal aims, the government must establish "clear proof that a defendant 'specifically intends to accomplish the [illegal] aims of the organization' ") (citations, original alterations, and internal quotation marks omitted); In re Braverman , 271 Md. 196 , 205-09, 316 A.2d 246 (1974) (summarizing and applying Scales and its progeny); see also Cruz-Quintanilla v. State , 455 Md. 35 , 49, 165 A.3d 517 (2017) ("Because MS-13 has not been shown to be a religious or political organization with both illegal and legal aims, the evidence of the criminal nature of the gang alone was sufficient for sentencing purposes.").

Even when the organization has illegal purposes, the prosecution must establish facts that tend to prove that the defendant's membership could motivate the defendant to commit the crime charged. U.S. v. Dickens , 775 F.2d 1056 , 1058-59 (9th Cir. 1985) (holding that the defendant's association with a criminal organization "d[id] not demonstrate any motive for lying or ... bias in connection with th[e] trial" because the crime was unrelated to the criminal organization and "since it was the defendant himself who was being cross-examined, rather than a witness, ... the defendant's bias in his own behalf was self-evident"); Ayala v. State , 174 Md. App. 647 , 664, 923 A.2d 952 (2007) (holding that a defendant's membership in a gang that rivaled a gang to which the victim purportedly belonged was "probative in establishing motive"). When the defendant belongs to an organization with legal aims, such as the Masons, the State's burden is much higher. 9 ⁶¹⁰ U.S. v. Arias-Izquierdo , 449 F.3d 1168 , 1180 (11th Cir. 2006) (distinguishing membership in a political party from membership in the Aryan Brotherhood because "[m]embership in a political party, by itself, does not necessarily signify anything about a person's truthfulness and is thus distinguishable from 'a secret prison sect sworn to perjury and self-protection' ") (citation ⁶³⁰ omitted). The State must offer admissible evidence specific to the case that tends to establish that the defendant's common membership motivated the defendant to act criminally.

Cf. Scythes v. Webb , 307 F.2d 905 , 909 (7th Cir. 1962) (holding that the government failed to adduce substantial evidence showing that the views of the leader of the Socialist Workers Party had "binding influence" on members of the organization). Otherwise, the State runs the grave risk of convicting persons based solely on their membership in an organization. Applying these precepts to the instant case, the record reveals that the State Prosecutor adduced no evidence connecting Sewell's common membership in the Masons to the crime alleged.

The indictment charged Sewell with "interfering with the legitimate investigation of a motor vehicle accident by subordinate police officers for the personal benefit of an acquaintance," but the State proved only that Sewell and Matthews were both Masons, not that they were acquaintances. When Matthews testified that he called Green following his crash, the State did not ask if he knew Green from the lodge or if he got Green's business card at a Masons event. The State did not ask Matthews any questions about Sewell or any relationship the two men may have had. On direct, Sewell testified that Matthews' membership in the Prince Hall Masonic Lodge did not affect his decision-making ⁶¹¹ and asserted: "If Mr. Matthews did not call the police that night, Mr. Matthews would have been arrested for a hit and run.

The mere fact that Mr. Matthews called the police made it an accident and not a hit and run." The State Prosecutor, while cross-examining Sewell, failed to adduce any evidence that Sewell and Matthews had any prior relationship or ever met at Mason events. Instead, the State only questioned Sewell in regard to his common membership in the Masons: Q. Knowing that you're a fellow [M]ason of Doug Matthews, didn't you think it was inappropriate for you to go handle that call when there's plenty of experienced officers already there? A. Officer Barnes handled the call. I didn't handle the call.

As I've done many times, I've showed up on many calls, so that's not unusual for me to do that. Q. I know. But considering this is a fellow [M]ason and Lieutenant Green has called you and told you about an accident and there's people there, wouldn't it be inappropriate for you to even go as chief and take over this investigation? A. No, sir.

No. I've responded to calls where countless people are involved in situations. I've run to those calls as well. (Emphasis added). The State failed to prove that Sewell was even an active member of the Masons.

Anthony Tull, who the State called as a witness, confirmed that Sewell was a relatively new member of the lodge who attended "maybe at the most four or five meetings" after he moved to Pocomoke City. Nor did the State prove that Sewell harbored any feelings of loyalty toward other Masons that may have permitted the jury to infer that he would act corruptly in public office on behalf of a fellow Mason. Compare State v. Williams , 377 N.J.Super. 130 , 871 A.2d 744 , 753-54 (App. Div. 2005) (affirming the dismissal of a juror based on the juror's stated adherence of loyalty toward fellow Masons); with ⁶¹² Dowdye v. Virgin Islands , 55 V.I. 736 , 751-54 (2011) (holding that voir dire questions into Mason membership were proper to show juror bias but that dismissal of juror based ⁶³¹ on membership in the Masons was unconstitutional without first determining the juror was unable to perform his duties). 10 In fact, when questioned, Sewell testified that he handled the Matthews call just as he had handled many others, and nothing was unusual to him. In short, the State failed to demonstrate any prior acquaintance between Sewell and Matthews or any relevant connection between Sewell and the Masons that, when viewed in the light most favorable to the State, could lead a reasonable jury to conclude that Sewell acted corruptly in furtherance of his membership in the Masons.

See Neal , 191 Md. App. at 314 , 991 A.2d 159 ; Painter , 157 Md. App. at 10 -11 , 848 A.2d 692 . Common membership alone, without more, was not competent to prove Sewell acted with corrupt intent. 2. Sewell's "Unusual" Behavior The State's failure to prove Sewell's motive is not dispositive. The State contends, "[w]hile it was certainly the State's theory that