KELVIN SEWELL v. STATE OF MARYLAND
Court of Special Appeals of Maryland, Leahy, November 29, 2018,
Misconduct in Office – Expert testimony regarding police procedure is relevant to a criminal charge of misconduct against an officer based on discretion.
Concur and Dissent – Friedman – Sewell should have been granted MJOA
Facts:
In 2014, Kelvin Sewell was Chief of Police of the Pocomoke City Police Department in Worcester County.
Officers at the time were investigating a possible DUI involving a traffic collision and hit and run. The striking vehicle hit two unattended cars and left a wheel at the scene. The driver, Douglas Matthews, made his way home with a 3-wheeled car and parked in his driveway.
Officers were able to track the car back to Matthews’ home. However, soon after arriving at Matthews’ home, a lieutenant in plain-clothes showed up and, soon after, Sewell responded as well, also wearing plain clothes. Neither Sewell nor the lieutenant was believed to be working at the time.
Sewell reassigned the investigation to another officer, and when the officer investigating the collision asked the driver of the striking vehicle whether he was drinking and why he left the scene of the accident, Sewell answered for the driver and said, “it was just an accident” and that “it wasn’t a hit and run.” Matthews was not issued any citations. The officers on scene would later testify that Sewell’s actions were “unusual.”
It was subsequently revealed that Matthews, the lieutenant, and Sewell all belonged to the Prince Hall Masonic Lodge. It was also revealed that after he drove home from the collision, Matthews called the lieutenant directly (instead of 911), who then called Sewell.
Sewell was subsequently charged with misconduct in office for allegedly attempting to cover up this incident.
At trial, Sewell attempted to have two expert witnesses testify about police discretion and a police-chief’s handling of investigations, but the trial court found that expert testimony wasn’t needed.
Sewell was convicted of misconduct in office and appealed, making several arguments. One of these arguments was that his experts should have been allowed to testify. Another was that there wasn’t enough evidence to convict him of misconduct.
Held: The Court held that because the questions of police authority and discretion were central to the case, and because average jurors don’t know how police discretion functions, Sewell’s experts should have been allowed to testify.
Misconduct in Office – A police officer commits the crime of misconduct in office when he engages in “corrupt behavior” in the exercise of his duties or while acting under color of law.
Motive – Motive is not required to prove a crime, but can help establish criminal intent.
Motive – Group Membership – Membership in a purely legal organization is not enough to assume improper motive on the part of members to help each other. For membership in a legal organization to prove motive, the government must offer specific evidence that shows this.
From the Case: “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. Common membership alone, without more, was not competent to prove Sewell acted with corrupt intent.”
Misconduct – Circumstantial evidence may be used to determine an officer’s intent
From the Case: Here, both officers “testified repeatedly that Sewell’s behavior that night was ‘unusual’ and ‘out of the ordinary.'” This included that the chief would show up at the scene of a “basic accident,” especially at “that time of night,” and in plain clothes. Moreover, Sewell’s reassignment of the investigation, his answering for the driver, the fact that the driver called the lieutenant directly instead of 911, and the lack of credibility of the driver’s story (that he fell asleep) was enough evidence to convict Sewell of misconduct in office.
Misconduct – An officer does not act with “corrupt” intent where he exercises discretion in a manner consistent with regular practice.
From the Case: The State put the scope of Sewell’s discretion squarely at the center of its case by offering circumstantial evidence of corrupt intent, viz., that his actions were unusual and out of the ordinary. Whether Sewell properly exercised his discretion is clearly relevant to the
determination of whether his “unusual” conduct was corrupt.
Expert Testimony – An expert will only be allowed to testify if that testimony would assist the judge/jury in deciding an issue.
From the Case: “Sewell’s proffered expert testimony was relevant because it could have shown that his actions were reasonable and proper in light of the special considerations a police chief confronts in exercising his or her discretion.” “We, as appellate judges, cannot say that we know the accepted processes and objectives that a captain of police should employ and consider in choosing when to reassign officers on an ongoing investigation and when to exercise his or her official discretion to not issue a citation following an investigation.”
Retaliatory Prosecution – Where an independent prosecutor investigates and determines that criminal charges are appropriate, the case doesn’t need to be dismissed just because it was referred to the prosecutor by a biased party.