Widomski v. CHIEF OF POLICE OF BALTIMORE CTY.

Gilbert, C. J., delivered the opinion of the Court. This appeal has grown out of a “Jekyll and Hyde” operation nefariously conducted by a few Baltimore County police officers assigned to the Dundalk area in 1970-1972. The Internal Affairs Section of the County Police Department supplied the answer to Juvenal’s 1 question of “who is to guard the guards themselves,” by uncovering the clandestine turnabout activities of those few police officers who used their shields as a license to steal. During the course of Internal Affairs’ investigation, it discovered that the appellant, Lieutenant Melvin Widomski, believed to be a knowledgeable witness, was, in fact, one of those that the investigators sought.

As a direct result of the discovery, Widomski was subsequently dismissed from the force. He appealed the dismissal to the Circuit Court for Baltimore County, where Judge Walter R. Haile affirmed the action taken by the Chief of Police in firing Widomski. The appellant seeks to have this Court reverse the judgment of the circuit court and order appellant’s reinstatement as a police lieutenant. To accomplish that end, we would have to conclude that Judge Haile erred in upholding the Baltimore County Police ³⁶³ Department Disciplinary Board’s (Board) finding that Widomski was guilty of lying, filing false reports, receiving stolen goods, and of petty theft.

The basis of the request for reversal is not that Widomski did not do the acts attributed to him, but rather that the police department’s investigators failed to adhere to the procedural requirement of the “Law-Enforcement Officers’ Bill of Rights.” Md. Ann. Code art. 27, §§ 727-734D. Widomski presents us with nine (9) issues masquerading as but three (3). Before considering them, seriatim, we shall briefly set out the facts from which this appeal arose, adding in our subsequent discussion of an issue, such further facts as necessary to that particular matter. In the year 1976, the Internal Affairs Division of the Baltimore County Police force conducted an investigation of improper and illegal conduct by police officers attached to the Dundalk district during the time period 1970-1972.

At the time under scrutiny, then Corporal Widomski had been stationed in Dundalk. On two dates, March 11,1976, and June 18,1976, police officers assigned to Internal Affairs interviewed Widomski in connection with the investigation, but according to testimony at the Board hearing, Widomski was not then a suspect. Lieutenant William Ferrell, acting on orders from a superior, 2 conducted a polygraph examination of Widomski on August 6, 1976, “to see if [Widomski] had any knowledge that had been undisclosed” with respect to the Dundalk investigation. 3 Lieutenant Ferrell’s testimony was that when he administered a polygraph test, he usually asked follow-up questions when the interviewee answered in a manner that “would arouse ... [Ferrell’s] suspicions” as to the truthfulness of the answer. He followed that procedure with Widomski.

Immediately upon review of the polygraph results, Ferrell determined that Widomski had been untruthful in ³⁶⁴ negatively responding to four (4) questions. 4 Ferrell then returned to the examination room where he informed Widomski that the test “indicated ... [Widomski] wasn’t being completely truthful to some of the questions,” and Ferrell asked Widomski if there was “anything else that he wanted to tell me about it.” Over objection of appellant, Lieutenant Ferrell was permitted to testify that Widomski named “at various times different officers that he had observed doing different things.” We infer, in the light of the nature of the proceedings before the Board, that “doing different things” meant things of an unlawful nature. Appellant’s counsel, who had requested and obtained from the Board a continuing objection to Ferrell’s testimony because of the “lack of voluntariness of the interrogation” by Ferrell, a short while later interposed another objection on the ground that the interview had become accusatory, and that at that stage Widomski should have been formally informed of his rights under Md. Ann. Code art. 27, § 728 (b). The Board chairman sustained the objection, stating: ³⁶⁵ Asked whether the Board would accept the testimony already elicited, [the chairman] responded: ³⁶⁴ “ ‘This Board rules that at the time we got from the inquisitory stage until the time there was a positive reaction on the polygraph, there should have been a professional view from the law enforcement officer’s viewpoint that he should have been advised of his rights, and we are going to discontinue any more testimony with this witness.’ ” ³⁶⁵ “ ‘To the point that we have heard so far, but this will be a consideration in our final judgment, so I say to you that this Board feels as professional law enforcement officers that this man’s rights were violated once we set the seed [sic] to move from the inquisitory and it was felt validly from his reactions and response from a professional polygraph operator that, in fact, now he could become a party.’ ” Immediately following the polygraph examination, Sgt. Philip Huber of the Internal Affairs Section, was told to “interview” 5 Widomski “in reference to certain revelations that were brought out in the polygraph examination and I [Sgt.

Huber] was not told any of the revelations.” After giving Widomski a “Notification to Accused of a Complaint,” an explanation of the Police Officers’ Bill of Rights, and Miranda 6 warnings, Sgt. Huber began to interrogate appellant. The questioning was tape recorded. At the hearing before the Board, the appellant’s attorney objected to Sgt.

Huber’s testimony, regarding his interrogation of Widomski. The objection was double barreled: 1) Art. 27, § 728 (b) (8) was not complied with inasmuch as the taped record did not include the portion of the interrogation wherein the appellant was given his rights, and 2) a question of voluntariness of appellant’s statement was raised by the virtue of a strike out on the “Explanation of Police Officers’ Rights” form. The form contained a question which asked, “Do you want a lawyer present at this time?” Widomski’s response of “yes” was written in the appropriate place, was crossed out and then the word “no” was written. The initials of appellant, “MW,” appear alongside the reply “no.” The Board overruled the objection. ³⁶⁶ Over the continuing objection by appellant’s counsel, Sgt.

Huber told the Board that during the interrogation, Widomski said he had “taken a box of grass seed” valued at $5, “a Fisher-Price toy,” valued at between $6 and $8, “two trash cans” and “a can of car wax”; that Widomski failed to report improprieties of other officers for fear of retaliation; that Appellant Widomski knew that another officer, after deliberately driving a police vehicle into a store door in order to gain entry into the building, filed a false report to cover up the impropriety; that appellant accepted a ladies watch and a pair of sunglasses from other officers; and that Widomski accepted fifteen dollars from an officer who gave that sum to him without comment. Widomski did not testify. The Board, as we have seen, adjudged Widomski guilty of a number of the charges and recommended his dismissal from the department stating: “What concerned us was the overview that those three minor larcenies impugned the credibility of... [Widomski] to actively function as a supervisor over the control of his people and failed to give him, allow him the flexibility to come forth in that time frame of 1970 to ’72 when conditions were conclusive in this Department that there were other resources he could have sought out ... 'but ... these minor larcenies ... didn’t permit him to do that. The Board feels that his future, to testify in situations where there is a one on one and no physical evidence present and the guilt or the innocence of a Defendant would be based solely on the basis of the Lieutenant’s testimony would certainly be an issue by any defense.” 7 The Chief of Police concurred, and Widomski was dismissed as of the date of his suspension. ³⁶⁷ I. “Whether the decision of the Disciplinary Board is null and void for the reason that incident to its deliberations the Board played and considered portions of a tape that were not admitted into evidence?” This issue arises from a misunderstanding of what was admitted into evidence, the tape recording of Sgt.

Huber’s interrogation of Widomski or a highly selective portion of that tape. Widomski asserts the latter, while the Chief of Police maintains it is the former. During the course of an argument over appellant’s objection to testimony from Sgt. Huber in regard to the stolen sunglasses, Huber stated that his recollection was refreshed by his own notes of what was on the tape.

Departmental counsel said that Widomski had been furnished a copy of the tape. Counsel for Widomski declared, “I would like to hear the tape at this time in regard to that one limited area.” Major Vittek, the chairman of the Board, replied, “All right, we will rule on the admissibility and bring the tape in, or else we can be sitting here.” Counsel for Widomski announced, “I have a copy [of the tape] if you can find a machine.” The matter of the tape was “skipped” at that point and Sgt. Huber continued his testimony concerning Widomski’s statement to Huber. Following the completion of Huber’s testimony, the question of the tape again arose.

Major Vittek opined: “The issue with the tape and the fact that we called for it, and of course, we would like to hear it and we could be here quite some time, so if it’s all right with both of you gentlemen, unless you wish to introduce other people that we haven’t heard, ... [the Board would hear summation].” The Major then exclaimed, “I see we have found it [the tape].” The transcript contains a court reporter note: “(Whereupon the pertinent part of the tape referred to above was played),” followed by the comment of counsel for the Departmént that he “would like the tape to be in evidence, ³⁶⁸ at least for that portion we heard.” The reporter note states “(The tape referred to above was marked Department Exhibit No. 10).” Summation of counsel was heard and then the Board retired to consider the relevant and competent evidence presented at the hearing. The Board found Widomski guilty. Major Vittek then turned to Wido'mski’s attorney and said, “You did have some questions that you acquainted me with..., and I think you better make that a matter of record.” Counsel then explained that it was his “understanding that during the Board’s deliberations a portion of the tape was played by the Board which was not the subject of the point of clarity for which the tape was brought in.” 8 In short, Widomski’s lawyer charged that the Board did not confine its listening of the tape to that portion that dealt with the sunglasses, but that it listened to other parts of the tape which had not been introduced into evidence. The transcript relative to the admission of the tape was read to the Board which ruled, in effect, that irrespective of what Widomski’s attorney believed at the time the tape was offered into evidence, the entire tape was introduced and not just the limited part sought by Widomski.

Our review of the transcript, the pertinent part of which is quoted above, leads us to conclude that although Widomski may have intended that only that specific segment of the tape dealing with the question of the sunglasses was being introduced, the entire tape was admitted without objection. We note that the Departmental counsel said he “would like the tape to be [admitted] in evidence, at least for that portion we heard.” Such a statement is an expression that counsel sought the introduction of the entire tape, but that if the Board would not agree, then the Board should admit at least that portion of the tape to which all had listened. The Board’s admission of the tape into evidence was an acceptance of the entire tape and not just a part of it, regardless of what Widomski’s attorney believed was being received into evidence by the Board. The lack of a timely objection ³⁶⁹ constitutes a waiver.

Widomski’s belated objection that the tape, as distinguished from a mere section of it, was heard by the Board was not only too late, but bottomed on a mistake of fact. In any event, the objection, coming as it did after the Board’s findings were announced, is untimely. II. “Whether the testimony of Lt. Ferrell and Sgt.

Huber should have been excluded from evidence because the interrogations that they conducted contravened MD. ANN. CODE art. 27, § 728 and Miranda v. Arizona?’ Widomski has subdivided issue II into various attacks on the propriety of the admission into evidence of the testimony of Lt. Ferrell and Sgt.

Huber. A. “The polygraph examination conducted by Lt. Ferrell should have been conducted in accordance with Art. 27, § 728 because (1) just prior to the test Widomski conceded that he had been untruthful in a past interview, and (2) the questions asked were of such a nature as to elicit responses which ‘could lead to disciplinary action.’ ” Md. Ann. Code, art. 27, § 728 (b) states that “[wjhenever a law-enforcement officer is under investigation or subjected to interrogation by a law-enforcement agency, for any reason which could lead to disciplinary action, demotion or dismissal, the investigation or interrogation” must be conducted in accordance with various procedures set out in the statute. (Emphasis supplied.) The testimony at the hearing before the Board demonstrates that at the time Widomski was asked to submit to the polygraph examination, he was neither under investigation nor was he interrogated for reasons which “could [have led] to disciplinary action, demotion or dismissal.” In fact, Lt.

Ferrell flatly said, “I was told that he ³⁷⁰ was not a suspect, don’t worry about his rights during the polygraph examination.” The Lieutenant was asked, “Did Captain Willináki indicate to you that Lt. Widomski might be involved in this?” His response was, “No, not in any way other than the possibility that he might, having been there at the time, have had knowledge of what was going on.” We believe it was reasonable for the Board to conclude that at that point in the case, Widomski was thought to be merely a witness who might possibly aid the Department’s investigation, and there was no necessity to conduct the polygraph examination in accordance with Md. Ann. Code art. 27, § 728. The Board determined that the examination of Widomski moved from the inquisitorial stage to the investigatory stage when Lt. Ferrell decided that Widomski had not been completely truthful in his answers.

The Board did not allow Ferrell to testify as to anything Widomski said after Ferrell made his decision relative to Widomski’s untruthfulness, because Widomski had not been advised of his rights pursuant to section 728. Inasmuch as the testimony by Lt. Ferrell was limited to events occurring prior to the time Widomski became a suspect, there was no violation of section 728. B. “The Huber interrogation violated art. 27, § 728 because (1) it immediately succeeded Ferrell’s interrogation, thereby subjecting Widomski to two interrogators rather than to one as required, and (2) a complete record was not kept of the interrogation.” To reach this issue we have to assume that Widomski is focusing his attack on that part of Lt.

Ferrell’s questioning that came into being after Ferrell decided Widomski was a suspect. We so assume because there was no interrogation of Widomski within the meaning of the statute until the matter moved from an inquisitorial to an accusatorial status. Ferrell’s testimony relative to the accusatorial stage was not ³⁷¹ admitted so that we have no way of knowing the length, breadth or depth of his questioning of Widomski. We shall, however, give Widomski the better of it by inferring that the interrogation cut three ways, “deep, wide and continuously.” With that inference firmly in mind, we begin our trek toward a resolution of the Huber interrogation.

Then Md. Ann. Code art. 27, § 728 (b) (3) is the statutory basis for Widomski’s argument. That section provided: “The law-enforcement officer under investigation shall be informed of the name, rank, and command of the officer in charge of the investigation, the interrogating officer, and all persons present during the interrogation. All questions directed to the officer under interrogation shall be asked by and through one interrogator.” 9 We do not interpret section 728 (b) (3) in the same manner as Widomski, nor do we observe anything in the statute that proscribes successive interrogations, particularly when, as here, the questioning was conducted by a different police officer in a different locale, so long as there is compliance with Md. Ann. Code art. 27, § 728 (b) (6). Subsection (b) (6) mandates that interrogation periods shall be a reasonable length and timed so as to allow for personal necessities and rest periods.

No complaint relative to subsection (b) (6) is registered by Widomski. Therefore, we consider only subsection (b) (3). We read that subsection to mean that at a particular interrogation session only one person may conduct the interrogation. The subsection was enacted to avoid the use of the so-called “Mutt and Jeff,” or “Good Guy, Bad Guy” ³⁷² approach to interrogating a suspect, whereby one or more of the interrogators adopts a harsh, threatening attitude calculated by words or tone of voice to intimidate the suspect into admission, while the other interrogator assumes the posture of a friend of the downtrodden and the protector of the suspect.

That posture, of course, is equally effective in bringing about the suspect’s confession. Such action falls short of the prohibited “third degree.” It is directed toward the psychic rather than the physical. The former is a permissible police tactic, the latter is not. The interrogation of Widomski by Huber was conducted within the frame work of the “Law-Enforcement Officers’ Bill of Rights.” Judge Haile did not err in concluding that the Board properly admitted Huber’s testimony concerning that interrogation.

The second part of Widomski’s assault on the Huber interrogation is focused on then subsection 728 (b) (8) of the Law-Enforcement Officers’ Bill of Rights which provided: “A complete record, either written, taped or transcribed, shall be kept of the complete interrogation of a law-enforcement officer, including all recess periods. A copy of the record shall be available to the officer or his counsel upon request.” 10 Basically, Widomski contends that “no record was kept of the dialogue which prompted