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Law Digest — Maryland Court of Special Appeals — Dec. 20, 2018

Court of Special Appeals

Administrative Law, Summary decision: The administrative law judge did not err in granting summary decision dismissing a father’s administrative appeal of an indicated child neglect finding following the father’s guilty plea to a related criminal charge that arose out of the indicated child neglect pursuant to Md. Code, Family Law §5-706.1(b)(3)(ii) because, under the statute, when the Department of Social Services moved for summary decision to dismiss the administrative appeal based on the finding of guilt of the related criminal charge and presented uncontroverted evidence that the finding of guilt of the related criminal charge arose out of the same finding of indicated neglect, the ALJ was deprived of the discretion to rule other than to dismiss the appeal. I.B. v. Frederick County Department of Social Services, No. 1497, Sept. Term, 2017.

Constitutional Law, Police power: Requiring hookah lounges in the County to close at midnight was a valid exercise of Baltimore County’s police power, regardless of whether the restriction was encompassed within the Baltimore County Zoning Regulations’ definition of “hookah lounge,” because, as a charter county, Baltimore County had express power to pass ordinances to protect the public health and safety, and the County’s restriction on the hours of operations of hookah lounges fell squarely within this ambit. Baddock v. Baltimore County, Maryland, No. 1271, Sept. Term, 2017.

Criminal Procedure, Illegal sentence: Where he trial court initially imposed upon the defendant a total sentence of 18 years’ incarceration, with 15 years’ incarceration for kidnapping, three years to be served consecutively for second-degree assault, and one year concurrent for driving under the influence, and subsequently, upon resentencing the defendant, imposed a sentence of 18 years’ incarceration for kidnapping alone, merged the assault count, and reimposed the one-year concurrent sentence for driving under the influence, the trial court imposed an illegal sentence because, although the aggregate term of incarceration remained the same, the statutorily-mandated increase in time until parole eligibility resulting from the sentencing increase for kidnapping constituted imposition of a more severe sentence prohibited by Md. Code, Courts and Judicial Proceedings §12-702(b). Thomas v. State, No. 1416, Sept. Term, 2017.

Evidence, Expert testimony: Where a former city police chief was charged with misconduct in office based on allegations that, while serving as police chief, he intentionally skewed an investigation into a traffic incident in order to protect a police officer due to their mutual membership in a Masonic Lodge, the trial court erred by refusing to admit the defendant’s proffered expert testimony regarding law enforcement office discretion because the proffered testimony could have shown that the defendant’s actions were reasonable and proper in light of the special considerations a police chief confronts in exercising his or her discretion and, thus, could have directly rebutted the State’s circumstantial evidence of corrupt intent, and, because this error was not harmless, a new trial was the appropriate remedy. Sewell v. State, No. 2183, Sept. Term, 2016.

 

Administrative Law

Summary decision

BOTTOM LINE: The administrative law judge did not err in granting summary decision dismissing a father’s administrative appeal of an indicated child neglect finding following the father’s guilty plea to a related criminal charge that arose out of the indicated child neglect pursuant to Md. Code, Family Law §5-706.1(b)(3)(ii) because, under the statute, when the Department of Social Services moved for summary decision to dismiss the administrative appeal based on the finding of guilt of the related criminal charge and presented uncontroverted evidence that the finding of guilt of the related criminal charge arose out of the same finding of indicated neglect, the ALJ was deprived of the discretion to rule other than to dismiss the appeal.

CASE: I.B. v. Frederick County Department of Social Services, No. 1497, Sept. Term, 2017 (filed Nov. 29, 2018) (Judges Woodward, Reed & SHARER (Senior Judge, Specially Assigned)).

FACTS: In July 2015, I.B. took his children to church, unintentionally leaving his infant daughter in her car seat in the back of the car, on a hot day with the front windows slightly open. Authorities were called, and they removed the child from the car. I.B. acknowledged that, while attending to the other children, he had forgotten that his daughter was in the car. The incident was reported to the Department of Social Services, which initiated an investigation, ultimately making a finding of indicated child neglect.

I.B. requested a contested case hearing pursuant to Maryland Code (1984, 2012 Repl. Vol., 2015 Supp.), Family Law Article (“FL”) §5-706.1(b)(1), but, as provided by the statute, that proceeding was stayed pending the outcome of the associated pending criminal case, in which I.B. was charged with neglect of a minor and confinement of a minor in an unattended vehicle. The State nol prossed the child neglect charge and I.B. pleaded guilty to confinement of a minor, a misdemeanor, subjecting the offender to both a monetary fine and imprisonment. He was afforded probation before judgment.

Following disposition of the criminal charges, the stay was lifted in the Family Law proceeding. DSS moved for summary decision to dismiss the request for hearing based on the finding of guilt in the criminal proceeding, pursuant to FL §5-706.1(b)(3)(ii). I.B. opposed the summary decision on the ground that the criminal charge was not similar to the Family Law neglect offense and that the criminal court did not find him guilty of neglect. The administrative law judge issued a summary decision granting the Department’s motion. I.B. sought judicial review of the ALJ’s decision in the circuit court, which affirmed the decision.

I.B. then appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: On appeal, I.B. challenged the sufficiency of the factual record to support the ALJ’s grant of summary decision. He contended that the exhibits relied upon by the Department of Social Services to support its motion to dismiss were wholly deficient regarding the conviction, and contained inconsistencies and inaccuracies that required a contested hearing. DSS asserted that I.B.’s dispute of material fact argument was not addressed in his response to the DSS’s motion for summary decision and, therefore, was not preserved. Alternatively, DSS argued that even had I.B. not waived this argument, the disputed facts he proffered were not material to the ALJ’s decision.

The COMAR motion for summary decision provisions are clear that a response to such a motion “shall identify the material facts that are disputed.” COMAR 28.02.01.12D(2). Here, I.B. did not present any dispute of material facts before the ALJ; rather, he focused on the fact that the criminal charge was not based on neglect and did not share the same elements. Judicial review of an agency decision is limited to evidence and issues presented from the record before it. See Md. Code, State Gov’t §10-214(a). Therefore, I.B.’s belated attempt to challenge the previously uncontested facts and evidence presented to the ALJ, for the first time in his petition and memorandum in support of judicial review, was without merit. See Allmond v. Dep’t of Health & Mental Hygiene, 448 Md. 592, 606 (2016).

Notwithstanding that failure, neither FL §5-706.1(b)(3)(ii), nor the related COMAR provision, 07.02.26.06C(1), limit what criminal charges relating to the indicated neglect are dispositive of an administrative appeal based on a finding of guilt. See FL §5-706.1(b)(3)(ii). Thus, when DSS moved for summary decision to dismiss the administrative appeal based on the finding of guilt of the related criminal charge and presented uncontroverted evidence that the finding of guilt of the related criminal charge arose out of the same finding of “indicated neglect,” the ALJ was deprived of the discretion to rule other than to dismiss the appeal. In his generic response, without particularity, to the DSS motion to dismiss, I.B. failed to assert the existence of any evidence to controvert that which was presented by DSS. He could not now challenge the sufficiency of the evidence relied on by the ALJ.

Accordingly, the judgment of the circuit court was affirmed.           

COMMENTARY: I.B. additionally contended that, if an element necessary for a finding of neglect is in dispute and was not adjudicated in the criminal proceeding, a hearing is required. In support, of his argument, he relied on Tabassi v. Carroll Cty. Dep’t of Soc. Servs., 182 Md. App. 80 (2008), in which Tabassi sought judicial review of an ALJ’s grant of DSS’s motion to dismiss based on the finding of guilt in a related criminal proceeding. The Court of Special Appeals held that dismissal of the administrative appeal of an alleged abuser or neglector is warranted where an accused is found guilty of criminal charges stemming from the same conduct that serves as the basis for a finding of abuse or neglect and the requisite status of the individual to the child has been adjudicated or is not disputed. Id.

I.B. read into the Tabassi holding that, when the elements of the criminal charges are different from the Family Law offenses and if an element of the Family Law offense was not adjudicated in the criminal proceeding, a hearing should be afforded to adjudicate it in the ALJ’s proceeding. He failed to recognize, however, his failure to timely contest any of the facts asserted or evidence offered concerning the elements of indicated child neglect against him. As such, his reliance on Tabassi was misplaced. The essence of the holding in Tabassi was that all elements of indicated neglect, said to be disputed, are to be resolved at the administrative stage of the proceedings. Because I.B. raised no disputed facts, and because there was no dispute that he was the child’s parent, Tabassi was factually inapposite to the arguments that he now raised. As such, there was no merit to his argument that a hearing was required.

PRACTICE TIPS: The Maryland Family Law statute regarding confinement of a minor states that a person who is charged with the care of a child under the age of eight years may not allow the child to be locked or confined in a motor vehicle while the person charged is absent and the motor vehicle is out of the sight of the person charged.

Constitutional Law

Police power

BOTTOM LINE: Requiring hookah lounges in the County to close at midnight was a valid exercise of Baltimore County’s police power, regardless of whether the restriction was encompassed within the Baltimore County Zoning Regulations’ definition of “hookah lounge,” because, as a charter county, Baltimore County had express power to pass ordinances to protect the public health and safety, and the County’s restriction on the hours of operations of hookah lounges fell squarely within this ambit.

CASE: Baddock v. Baltimore County, Maryland, No. 1271, Sept. Term, 2017 (filed Nov. 28, 2018) (Judges Meredith, Berger & ZARNOCH (Senior Judge, Specially Assigned)).

FACTS: In May 2014, the Baltimore County Council passed a bill requiring hookah lounges in the County to close between midnight and 6:00 a.m. every day. Specifically, the bill amended the Baltimore County Zoning Regulations (“BCZR”) to include a definition of “Hookah Lounge” that restricted the hours of operation of hookah lounges. This restriction on hours of operation prompted the two plaintiffs, the corporation that operated the Towson Nights hookah lounge and the landlord of the Towson Nights premises, to challenge the bill on constitutional and other grounds. Before the bill went into effect, Towson Nights had stayed open until 2:00 a.m. Sunday through Thursday, and until 3:00 a.m. on Fridays and Saturdays.

Towson Nights contended that, absent the County ordinance, approximately 90% of its business would take place between 11:00 p.m. and 2:00 a.m. The plaintiffs first challenged the constitutionality of the bill in an administrative proceeding. The administrative law judge upheld the constitutionality of the bill, as did the Board of Appeals in a subsequent de novo appeal. The plaintiffs sought judicial review in the circuit court, which affirmed the Board’s decision. The plaintiffs then appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: On appeal, the plaintiffs first argued that Baltimore County’s placement of time restrictions in a zoning ordinance was ultra vires. However, regardless of whether the restriction was encompassed within the BCZR definition of “hookah lounge,” the provision restricting hours of operation was an exercise of the County’s police power and not a zoning law. See Piscatelli v. Bd. of Liquor License Comm’rs, 378 Md. 623, 639 (2003). Elsewhere in its ordinance, the Baltimore County Council generally authorized hookah lounges as a permitted use. Because the partial restriction on hours of operation contained within the definition of “hookah lounge” did not affect whether any particular site within Baltimore County could or could not be operated as a hookah lounge, it was not a zoning law.

The plaintiffs also claimed that the restriction on business hours was tantamount to a cessation of lawful use of the business, which should have entitled Towson Nights to an “amortization” period longer than the 45 days given to comply with the act. Again, however, the requirement to close at midnight did not prohibit use as a hookah lounge, and therefore, dids not render Towson Nights a nonconforming use. As such, the plaintiffs’ amortization argument was likewise without merit.

The appropriate inquiry hinged on whether requiring hookah lounges to close at midnight was an otherwise valid exercise of the County’s police power. The power of a political subdivision of this State to enact laws depends on the extent to which the General Assembly has delegated to it its legislative powers which are plenary, except as limited by constitutional provisions. Montgomery Citizens League v. Greenhalgh, 253 Md. 151, 158 (1969). As a charter county, Baltimore County received a grant of express powers from the General Assembly. See id. at 159. Accordingly, Baltimore County had the authority to pass local laws upon all matters covered by its grant of express powers from the General Assembly.

Those express powers specified that, as a charter county, Baltimore County had authority to pass any ordinance, resolution, or bylaw not inconsistent with State law that “may aid in maintaining the peace, good government, health, and welfare of the county.” Md. Code (2013), Local Government Article, §10-206(a)(2). In short, Baltimore County was granted the express power to pass ordinances to protect the public’s health and safety. The County’s restriction on the hours of operations of hookah lounges fell squarely within this ambit.

The plaintiffs additionally argued that the requirement to close at midnight violated substantive due process. Economic regulation is valid under the United States Constitution when it “rests upon some rational basis within the knowledge and experience of the legislators.” United States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938). In attempting to argue that the time restrictions were not rationally related to either the public’s health or safety, the plaintiffs claimed that mere concerns about potential late-night criminal activity were not a rational justification for the bill, that isolated instances of rowdiness by hookah lounge patrons must be dealt with on a case-by-case basis of enforcement rather than through a categorical regulation aimed at all hookah lounges in the County, and that potentially valid health concerns about exposure to tobacco smoke were not rationally addressed by simply requiring hookah lounges to close at midnight.

Contrary to the plaintiff’s contentions, however, the County’s regulation was plainly a rational attempt at protecting the public’s safety and welfare. Preventive measures aimed at shielding the public from potential exposure to criminal activity can be a valid exercise of the police power. See Dawson v. State, 329 Md. 275, 285-86 (1993). In the executive summary of the bill prepared for Councilmembers by the County’s Legislative Counsel, the County stated that in a six-month-period prior to the bill’s adoption, there were 37 arrests and 39 calls for service at various hookah lounges throughout the County, all occurring after 9:00 p.m. Moreover, two separate stabbing incidents occurred outside the plaintiffs’ own hookah lounge after midnight on the very day that the bill went into effect.

And despite hookah’s relatively benign reputation, the scientific literature has linked hookah use to health problems including chronic bronchitis, lung cancer, oral cancer, prostate cancer, heart disease and pregnancy complications similar to those seen with cigarette smoking, as well as to the hepatitis C virus and herpes from sharing mouthpieces. Hookah Is Not Harmless, Experts Say, 29 No. 13 Westlaw J. Tobacco Industry 6 (2014). Thus, public health concerns about exposure to tobacco smoke likewise rationally supported the County’s regulation of operating hours. For these reasons, Baltimore County’s requirement that hookah lounges close at midnight was a valid exercise of the County’s police power.

Accordingly, the judgment of the circuit court was accordingly affirmed.

COMMENTARY: The plaintiffs additionally contended that requiring hookah lounges but not similar businesses (such as cigar bars, liquor licensed establishments, restaurants, billiard rooms, and convenience stores) to close at midnight was an arbitrary distinction that violated the Equal Protection Clause of the 14th Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. However, equal protection review of economic regulation under Article 24 of the Maryland Declaration of Rights employs the least exacting and most deferential standard of constitutional review, namely, rational basis review, under which a legislative classification will pass constitutional muster so long as it is rationally related to a legitimate governmental interest. Tyler v. City of College Park, 415 Md. 475, 501 (2010). As discussed, legitimate concerns for the public safety and welfare undergirded the County’s requirement that hookah lounges close at midnight.

The fact that the County did not require other businesses that offered late-night diversions to close at midnight did not create an arbitrary distinction that rose to the level of an equal protection violation, especially considering that there was no contention by the plaintiffs that the County drew upon suspect distinctions or trampled upon any fundamental rights in differentiating between late-night establishments. Furthermore, a concern for the public safety did not require Baltimore County to “strike at all evils in the same way” by, for instance, requiring all sites offering late-night entertainment to close at midnight. Lonaconing Trap Club, Inc. v. Md. Dep’t of Env’t, 410 Md. 326, 346 (2009). Indeed, requiring hookah lounges to close at midnight could very well free up police resources to address safety concerns arising at the 2:00 a.m. hour, when bars closed. Because the County’s restriction rationally advanced the legitimate government objective of protecting the citizenry, there was no equal protection violation.

PRACTICE TIPS: The rational basis test applied to economic regulations is highly deferential; it presumes a statute is constitutional and should be struck down only if the reviewing court concludes that the Legislature enacted the statute irrationally or the statute interferes with a fundamental right. Courts thus perform a very limited function when determining whether an economic regulation pursues legitimate governmental ends through rational means: a legislative enactment will not be held void if there are any considerations relating to the public welfare by which it may be supported. Where there are plausible reasons for the legislative action, the court’s inquiry is at an end.

Criminal Procedure

Illegal sentence

BOTTOM LINE:  Where he trial court initially imposed upon the defendant a total sentence of 18 years’ incarceration, with 15 years’ incarceration for kidnapping, three years to be served consecutively for second-degree assault, and one year concurrent for driving under the influence, and subsequently, upon resentencing the defendant, imposed a sentence of 18 years’ incarceration for kidnapping alone, merged the assault count, and reimposed the one-year concurrent sentence for driving under the influence, the trial court imposed an illegal sentence because, although the aggregate term of incarceration remained the same, the statutorily-mandated increase in time until parole eligibility resulting from the sentencing increase for kidnapping constituted imposition of a more severe sentence prohibited by Md. Code, Courts and Judicial Proceedings §12-702(b).

CASE: Thomas v. State, No. 1416, Sept. Term, 2017 (filed Nov. 28, 2018) (Judges Kehoe, Nazarian & RAKER (Senior Judge, Specially Assigned)).

FACTS: Philip Thomas was convicted on June 15, 2016, in the circuit court of kidnapping, second-degree assault, false imprisonment, driving under the influence, and driving while impaired. The trial court imposed a total sentence of 18 years’ incarceration as follows: a term of incarceration of 15 years for kidnapping, three years to be served consecutively for second-degree assault, and one year concurrent for driving under the influence. Thomas appealed to the Court of Special Appeals, which held that Thomas’s sentence for second-degree assault merged into his kidnapping sentence, vacated all of Thomas’s sentences, and remanded for resentencing with instructions that the total of Thomas’s new sentences not exceed the current total of 18 years’ imprisonment.

At resentencing, the State and defense counsel presented their recommendations to the trial court. The State urged that the circuit court impose a sentence of 18 years’ imprisonment for kidnapping and merge the second-degree assault charge, so that the total term of incarceration would remain the same, at 18 years’ incarceration. Defense counsel noted that by increasing the sentence for kidnapping from 15 years’ to 18 years’ incarceration would increase the amount of time until Thomas was eligible for parole. The circuit court disagreed and imposed an 18-year sentence for kidnapping, merged the assault count, and reimposed the concurrent one-year sentence for driving under the influence.

Thomas again appealed to the Court of Special Appeals, which vacated the sentences and remanded to the circuit court for resentencing.

LAW: Thomas argued that the trial court, on remand, imposed an illegal sentence. Specifically, he asserted that the delay in his parole eligibility upon resentencing constituted the imposition of a “more severe” or “increased” sentence and was an illegal sentence prohibited by Md. Code, Courts and Judicial Proceedings, §12-702(b). Pursuant to Md. Code, Criminal Law, §14-101(a), Thomas’s original parole eligibility was set at seven and a half years, i.e., one half of his original 15-year sentence for the violent crime of kidnapping. Upon merging the kidnapping and second-degree assault convictions and resentencing Thomas to the same 18-year aggregate term, albeit solely for the violent crime of kidnapping, Thomas’s new parole eligibility increased to nine years, i.e., one half of his new 18-year sentence for kidnapping.

Md. Code, Courts and Judicial Proceedings §12-702(b) prohibits, absent certain justifications, a court from imposing a “more severe” sentence on resentencing or retrial. Under the statute, the court, upon resentencing or retrial, may not impose a sentence more severe than the sentence previously imposed for the offense unless: (1) the reasons for the increased sentence affirmatively appear; (2) the reasons are based upon additional objective information concerning identifiable conduct on the part of the defendant; and (3) the factual data upon which the increased sentence is based appears as part of the record. Id.; see also North Carolina v. Pearce, 395 U.S. 711 (1969). Whether a delay in Thomas’s parole eligibility constituted an “increased” sentence or a “more severe” sentence prohibited by §12-702 was a matter of first impression in Maryland.

Although Maryland courts had never ruled on this matter, all federal and most of the state appellate courts that have considered the question have agreed that when the minimum term of incarceration before parole eligibility is set by statute, as opposed to being left entirely to the discretion of a parole commission board, a delay in parole eligibility upon resentencing, absent justification, constitutes a prohibited “increased” or “more severe” sentence. See, e.g., Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653 (1974). In fact, even a resentence where the total term of incarceration is less than that of the original sentence is “more severe” if it delays the defendant’s parole eligibility. See, e.g., State v. Soco, 508 So. 2d 915, 917–18 (La. Ct. App. 1987). When parole eligibility is not set by statute but is instead left to the sole discretion of the parole commission board, a resentence of the same total term that nonetheless delays a defendant’s parole eligibility is not a “more severe” sentence. See, e.g., Keawe v. State, 901 P.2d 481 (Haw. 1995).

Here, it was appropriate to apply the sound reasoning of the majority of appellate courts, federal and state, that have held that parole eligibility, insofar as it is set by statute and hence predeterminate at the time of a court’s sentencing, is a direct function of the court’s sentence, such that an increase in the time before becoming eligible for parole is an “increased” or “more severe” sentence prohibited absent justification, where the parole eligibility date is set by statute in Maryland, it is a function of the trial judge’s sentence. Hence, a resentence that delays a defendant’s parole eligibility date, as in Thomas’s case, is a “more severe” sentence prohibited by §12-702 absent statutory justification. Accordingly, Thomas’s sentence was vacated and the case was remanded to the circuit court for a new sentencing consistent with the Court’s opinion.

COMMENTARY: The only appellate jurisdiction that does not follow the reasoning of Warden is the State of South Dakota. Although parole eligibility is set by statute in South Dakota, per South Dakota Codified Laws §24-15A-32 or §24-15-5 (the system for offenders sentenced before July 1, 1996), the state does not separate it from the granting of parole and does not view it as a function of the court’s sentence. Instead, the state groups eligibility with the granting of parole, which is an executive act completely unrelated to how a court sentences. State v. Semrad, 794 N.W.2d 760 (S. Dakota 2011).

Evidence

Expert testimony

BOTTOM LINE: Where a former city police chief was charged with misconduct in office based on allegations that, while serving as police chief, he intentionally skewed an investigation into a traffic incident in order to protect a police officer due to their mutual membership in a Masonic Lodge, the trial court erred by refusing to admit the defendant’s proffered expert testimony regarding law enforcement office discretion because the proffered testimony could have shown that the defendant’s actions were reasonable and proper in light of the special considerations a police chief confronts in exercising his or her discretion and, thus, could have directly rebutted the State’s circumstantial evidence of corrupt intent, and, because this error was not harmless, a new trial was the appropriate remedy.

CASE: Sewell v. State, No. 2183, Sept. Term, 2016 (filed Nov. 29, 2018) (Judges Wright & LEAHY) (Judge Friedman, dissenting).

FACTS: Kelvin Sewell was Chief of the Pocomoke City Police Department from December 2011 to July 2015. Sewell 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 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.

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 the way in which Sewell and Green had handled an 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 grand jury indicted Sewell for corruptly committing misconduct in office and conspiring to commit the misconduct with Green. 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.

After Matthews testified, Sewell moved for a judgment of acquittal, insisting that the State had produced no evidence that he harbored corrupt intent and no evidence to support its theory that had intentionally skewed the investigation to protect a fellow Mason. The trial judge denied the motion for judgment of acquittal.

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. 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 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.

Sewell appealed to the Court of Special Appeals, requesting that the case against him be dismissed or, alternatively, remanded for a new trial. The Court of Special Appeals reversed the judgment of the circuit court and remanded the case.

LAW: On appeal, Sewell argued, in part, that the trial court abused its discretion in excluding his experts on law enforcement officer discretion. In his defense, Sewell attempted to call expert witnesses to place his decision-making surrounding the Matthews incident in the context of a police chief’s legitimate duties and proper considerations under the circumstances. Sewell proffered that his experts would testify to the discretion a chief of police enjoys and the objectives, particularly those relevant to a small community, that a chief must consider during an investigation. He averred that without expert testimony on the scope of police discretion, the jury had no baseline to assess how police investigations are conducted, what supervisors on a scene are entitled to do, when and how citations are issued, and what would constitute “a deviation from the norm that raises red flags or from which misconduct may be inferred.”

Maryland Rule 5-702 provides that expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. A criminal defendant is generally permitted to introduce any evidence relevant to the asserted defense. Simmons v. State, 313 Md. 33, 41 (1988). Relevant evidence includes that which “tends to establish or disprove a material fact.” Id. In the context of expert testimony, to be relevant, expert testimony need only provide the fact-finder with appreciable help in resolving the issues presented in the case. Thanos v. State, 330 Md. 77, 95 (1993).

Expert testimony is not required on matters of which the jurors would be aware by virtue of common knowledge, but is required when the subject of the inference is so particularly related to some science or profession that it is beyond the ken of the average layman. Wood v. Toyota Motor Corp., 134 Md. App. 512, 518 (2000). Whether proffered expert testimony will be admitted turns not on whether the trier of fact could possibly decide the issue without the expert testimony, but on whether the testimony would be useful to the jury. Sippio v. State, 350 Md. 633, 649 (1998). Expert testimony, like other evidence, is subject to Maryland Rule 5-403, which permits a trial court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

In the present case, to show that Sewell’s actions were not corrupt, he needed expert testimony on the issue of what is normal and consistent behavior within the scope of a police chief’s discretion. Sippio, 350 Md. at 649. 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. The expert testimony could have directly rebutted the State’s circumstantial evidence of corrupt intent, an element of the crime charged, by demonstrating that his decision-making regarding the Matthews incident was not “unusual,” but proper and consistent with how a small-town police chief would typically exercise his or her discretion under similar circumstances.

At trial, the State’s witnesses called into question the reasonableness of Sewell’s discretionary acts. The court then permitted Sewell to testify, without objection, that his actions throughout the investigation were an exercise of his discretion. The State Prosecutor’s proof of Sewell’s corrupt intent depended largely on two subordinate officers, Pocomoke City Police Officer Damien McGlotten and Officer Tanya Barnes, who testified that Sewell’s handling of the Matthews investigation was out of the ordinary and strongly implied that they disagreed with Sewell’s decisions. Although lay jurors might have first-hand experience interacting with police officers during a traffic stop, they are unlikely to be aware of the policies and procedures that a police department has in place regarding the internal handling of investigations, or the broad discretion the officers enjoy in assigning personnel and handling cases. See Sage Title Grp., LLC v. Roman, 455 Md. 188, 218-19, reconsideration denied (2017).

Thus, Sewell’s proffered expert testimony was relevant in that it tended to make more probable Sewell’s defense that he did not possess corrupt intent, and the trial court’s failure to appreciate the relevancy of this evidence was an error of law. And although Maryland Rule 5-403 permits a trial court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence, in this case the trial court could not have could not have properly balanced the probative value of Sewell’s proffered expert testimony because the court erroneously found that the evidence was not relevant to begin with. As such, the court abused its discretion in excluding Sewell’s expert testimony.

Credibility was a principal component in the State’s case against Sewell. The State elicited testimony repeatedly from Sewell’s subordinates that his behavior was “unusual.” These perceived deviations from the ordinary permitted the inference that Sewell acted with corrupt intent. In his own testimony, Sewell testified that his behavior was not, in fact, unusual; instead, he insisted that he behaved consistent with the way he believed a police chief should under the circumstances. Sewell’s proffered experts would have supported his testimony, and their testimony would have aided the jury’s assessment as to who was telling the truth. Dionas v. State, 436 Md. 97, 108 (2013). Given that the trial court’s error was one affecting the jury’s ability to assess a witness’s credibility, it was not harmless error. Therefore, the judgment of the circuit court was reversed, and the case was remanded for a new trial.

COMMENTARY: Sewell additionally argued that there was insufficient evidence to support his conviction of misconduct in office. He contended 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 asserted, was insufficient to establish misconduct in office.

The only element of official misconduct at issue was whether Sewell acted with corrupt intent. To prove corrupt intent, the State was not required to offer affirmative proof of the official’s motives but could instead carry its burden of proof through reasonable inferences. Jones v. State, 440 Md. 450, 455 (2014). In this case, the facts surrounding the accident and the testimony concerning the subsequent investigation, together with the reasonable inferences drawn therefrom, were sufficient to permit the jury to conclude that Sewell’s actions were corrupt and not just a mere error of judgment. As such, there was no insufficient evidence to support his conviction.

DISSENT: The testimony of two subordinate police officers, McGlotten and Barnes, that Sewell’s behavior was “unusual” was insufficient evidence for the State’s case to proceed to the jury. While the question of corrupt intent is one for the jury, when, as here, the question of intent can be answered only by speculation, the issue of intent is not permitted to go to the jury. Bible v. State, 411 Md. 138, 160 (2009). As a result, the trial court erred in denying Sewell’s motions for judgment of acquittal. Sewell’s conviction should have been reversed, and his retrial barred by double jeopardy. See Scott v. State, 454 Md. 146, 167 (2017), cert. denied, 138 S. Ct. 652 (2018).

PRACTICE TIPS: Although it is a singular offense, the crime of official misconduct covers three modes of behavior: (1) misfeasance, (2) malfeasance, and (3) nonfeasance. 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.