Steffey v. State

⁶⁴⁹ ALPERT, Judge. The central question in this appeal is whether a violation of a police officer’s immunity under § 728(b)(7)(ii) of the Law Enforcement Officers’ Bill of Rights (LEOBOR), Md. Ann. Code art. 27, §§ 727-734D, warrants dismissal of an indictment against that officer. A Prince George’s County grand jury indicted the appellant, George B. Steffey, on six counts, including misconduct in office. Appellant moved to dismiss the indictments.

At a pre-trial motions hearing, Judge Robert J. Woods denied appellant’s motion. Appellant then was tried before a jury, which found him guilty on the misconduct count. He appeals from that conviction. Appellant was an officer with the Prince George’s County Police Department working the night shift at the time of the subject incident in September 1988.

The following statement of facts is based upon his unrefuted testimony concerning the incident. On the night before the incident, while assisting another officer in a routine arrest following a traffic stop, appellant found a BB handgun in the arrestee’s car. He placed the gun in the back of his police cruiser so he could inventory the gun when he returned to the station at the end of his shift. Appellant did not perform the inventory, however, because he did not see the officer he had assisted in the arrest and therefore could not get the case number from him.

While working a second job as a security guard later that day (following the night shift), appellant purchased a C02 cartridge and a package of BBs from a hardware store at Eastover Shopping Center where he worked. At one point, he went behind the shopping center and fired the BB gun several times, discovering that it only fired about every fourth time because of a malfunctioning spring. That night, appellant and Corporal Clarence Voundy were specially assigned to patrol certain open-air “drug markets.” On the way to one of the drug areas in two separate cruisers, the officers stopped behind an elementary school to allow appellant to put on his blue jumpsuit uniform over ⁶⁵⁰ his standard uniform. While appellant was putting his uniform on, Voundy noticed the BB gun in the back of appellant’s car.

After asking appellant if he could see the gun, Voundy took it out and began shooting at nearby signs. Appellant and Voundy then proceeded to the assigned drug area. As they exited their vehicles, Voundy again asked appellant for the BB gun. Appellant handed the gun and the remaining pellets to Voundy, who outranked appellant.

The officers took a concealed route toward the drug market, hoping to surprise the alleged dealers who were standing around possibly engaging in drug transactions. Before appellant and Voundy “could implement their plan of attack,” someone else fired a gunshot and the crowd dispersed. Moments later, the officers came upon three individuals whom they believed had run from the drug area. Appellant and Voundy identified themselves as police officers and told the three suspects to lie on the ground.

Appellant took control of two of the suspects, Calvin Proctor and another, unidentified man. Voundy handled the third suspect, Rodney L. Simms. Appellant had conducted a search of his two suspects and was beginning to question Proctor about drugs he had found on the ground near Proctor when he heard Simms yell, “Ouch! Ouch!

That hurt.” Appellant then looked over and saw Voundy standing over Simms, pointing the BB gun at him. Appellant noticed blood running down the side of Simms’s face. Appellant testified that: I didn’t know what to do. I took and told Mr. Proctor to get on the ground.

Clarence started hollering. “There’s nothing coming out of the damn gun.” He was taking the gun and he was doing this (indicating) with his hand with the gun. I walked over to Clarence and I placed my left hand on Corporal Voundy’s left shoulder and I said, “What did you do that for?” ⁶⁵¹ Corporal Voundy started laughing and said, “Steffey, they’re drug dealers. They’re never going to say nothing.” Within hours after the incident, Simms filed a complaint with the Prince George’s County Police Department, alleging the use of unnecessary and excessive force in effecting an arrest. According to Simms’s version of the incident, he and Proctor were on their way to pick up a friend when they were stopped by two officers, one black and one white.

(Voundy is black; appellant is white.) When Simms denied having any drugs, the black officer took out a gun and began firing at the back of his head. Simms felt only air coming out of the gun until the black officer yelled, “It’s nuthin’ in this damn gun. It’s nuthin’ in this damn gun.” The white officer then went over to the black officer and Simms heard what sounded like a pinging sound against metal. Moments later, the black officer fired two more times at the back of Simms’s head, striking him with BBs both times.

The black officer then lifted up Simms’s jacket and shirt and shot him in the back six times. After the attack, Simms and Proctor were ordered to run away from the scene. At the trial Simms admitted that he never saw the white officer pass any BE pellets to the black officer. He alleged, however, that he had heard the white officer say to the black officer, “I have something for you to put in this gun.” Simms admitted during cross-examination that his written statement to the police on the night of the incident made no mention of the white officer saying anything to the black officer.

Appellant was called into the police department’s Internal Affairs Section (IAS) a few hours after the incident. Pursuant to the LEOBOR, Lieutenant Phillip Constantino informed appellant (1) that he was under investigation in connection with the incident, (2) that he was being ordered to write a “duress statement” concerning the incident, and (3) that he had the right to postpone making the duress statement for ten days in order to obtain an attorney. ⁶⁵² Appellant exercised his right to wait until he found an attorney. That night appellant was again called into IAS. During this period, appellant was not free to leave the police station.

Constantino served appellant with a document notifying him of the administrative charges against him. According to Constantino’s testimony at the motions hearing, while he was serving appellant with the document, appellant said, “That is not me. I was there. I didn’t do this.” Constantino testified that he then advised appellant that he should have an attorney present.

Because Constantino felt “uncomfortable” listening to what he termed appellant's “utterances,” he called his commanding officer, Captain McDonald, into the room. According to Constantino, McDonald then asked appellant where he got the BBs. The trial judge and Constantino then held the following discussion: THE COURT: So, who asked that question? THE WITNESS: The Captain did, sir.

THE COURT: He asked him . that question? THE WITNESS: And then it was realized that we were probably wrong in asking that and everything stopped. He was told he should have his attorney. THE COURT: Did he answer the question?

THE WITNESS: Yes, sir. THE COURT: And what did he say? THE WITNESS: He got it on Nova Avenue from a drug arrest made by Officer Qualls, that the drug [sic] had been in the vehicle that— THE COURT: What else did he say as a response to that as to the BB’s and— THE WITNESS: Again, that was the second time. He had already told me about where he had gotten the BB’s, and he reiterated that statement in front of Captain McDonald.

THE COURT: And what did he say to Captain McDonald? 1 ⁶⁵³ THE WITNESS: That he was there, he got the BB’s and the C02 at Eastover Shopping Center. THE COURT: Did he tell you that he had gotten the BB’s at Eastover Shopping Center, or did he just tell you — I’m looking now at page 13 of the Grand Jury testimony— that he had bought the BB’s, you had said to the Grand Jury that he said, yeah, I was there and I bought the BB’s? THE WITNESS: That was originally what he had said to me. The second time the word “Eastover Shopping Center” did come out.

MS. GWINN [for the State]: I’m not sure what he’s referring to as the second time. THE WITNESS: When he reiterated to Captain McDonald— THE COURT: That’s when he said they were bought at Eastover. Appellant eventually submitted a written duress statement, apparently after he had made the “utterances” to Constantino.

Appellant and Voundy were indicted by a Prince George’s County grand jury and charged in a six-count indictment with two counts of assault, one count of assault and battery, false imprisonment, carrying a dangerous weapon openly with the intent to injure, and misconduct in office. The court severed the cases for trial. Appellant was tried before a jury, with Judge Woods presiding. The jury found him not guilty of the first five counts but guilty of the sixth count, misconduct in office.

Judge Woods sentenced appellant to 30 days’ incarceration. Appellant filed a timely appeal and presents to this court three arguments which we shall set forth in order. I. The Court erred by not granting Steffey’s Motion to Dismiss the Indictment based on the ground that the State violated his right, created by statute in the Law ⁶⁵⁴ Enforcement Officers Bill of Rights, that compelled testimony not be used in a criminal proceeding. Maryland Ann.Code art. 27, § 728(b)(7)(h), part of the LEOBOR, provides in pertinent part that: The results of any ... interrogation, as may be required by the law enforcement agency under this subparagraph are not admissible or discoverable in any criminal proceedings against the law enforcement officer when the law enforcement officer has been ordered to submit thereto.

While testifying before the grand jury, Lieutenant Constantino discussed what occurred immediately after he served the administrative charges on appellant. According to Constantino, [Appellant] became distraught, and he looked at me, said, “Why are you doing this? Are you doing this because I didn’t make a statement?” At that time I told him, “No. Because the evidence is there, and you didn’t notify your sergeant of the incident.” That’s when he stated to me, “I didn’t do this. This is not me.” He said, “Yeah, I was there, and I bought the BBs.” He said, “I bought the C02, but I did not do the shooting.” It was then I told him, “You have already asked for an attorney.

You are violating your own rights.” Feeling uncomfortable myself that he was now this distraught and making these statements, I went and asked Captain McDonald, who is my immediate supervisor, to come into the room. That’s when he also made utterance that, yes, he had gotten the BB gun from another officer. Okay. Again I told him, “You have to make none of these statements.

You have already asked for an attorney.” When asked by a grand juror whether appellant had admitted to buying the pellets and C02, Constantino replied, ⁶⁵⁵ “That’s right. At that time he had said that he had bought the BBs and C02 at Eastover....” Appellant filed a number of pre-trial motions, including a motion to suppress and a motion to dismiss the indictment. During the motions hearing before Judge Woods, appellant moved to supplement his motion to dismiss the indictment on the grounds that Lieutenant Constantino revealed some of appellant’s compelled statements to the grand jury and that this revelation violated appellant’s statutory rights under § 728(b)(7)(ii). Defense counsel argued (1) that Constantino could only have known where appellant bought the BBs and C02 from the written duress statement, and (2) that all of the statements appellant made to Constantino were made under duress.

Appellant’s attorney admitted, however, that appellant also had made statements about the incident to officers other than Lieutenant Constantino. Judge Woods denied appellant’s motion to dismiss the indictment, saying, [Cjlearly the lieutenant did add the words “at Eastover”, and Officer Steffey was under duress when those words were added to the Grand Jury and he was under duress when the entire proceedings started in the police station. I’m not going to dismiss the indictment, and the reason I’m not going to do it is ... the Court finds that Officer Steffey not only to Lieutenant Constantino, but with other officers had the habit — habit because he was distraught because of what was occurring and apparently wanted to explain himself, made a lot of gratuitous statements. In fact, they got so gratuitous in this case that the lieutenant became uneasy and went out to get Captain McDonald.

Captain McDonald came back and asked a question that should not have been asked, and as to that statement and as to anything else that was said as a result of that, of course, I would suppress it, but I will not dismiss the indictment. I do not think it reaches that stage. ⁶⁵⁶ We note first that, according to Lieutenant Constantino’s unrefuted testimony at the motions hearing, appellant told him without being prompted that he was there when Corporal Voundy shot Simms with the BB gun, and that he had bought the BBs (and, presumably the C02 cartridge). 1 These admissions clearly were “blurts,” see