WIDOMSKI v. CHIEF OF POLICE OF BALTIMORE CTY. No. 511, September Term, 1978.
41 Md. App. 361 (1979)
397 A.2d 222
MELVIN WIDOMSKI v. CHIEF OF POLICE OF BALTIMORE COUNTY.
Court of Special Appeals of Maryland.
Decided February 7, 1979.
Leo Howard Lubow, with whom were Paul Mark Sandler and Freishtat & Schwartz on the brief, for appellant.
John A. Austin, Assistant County Solicitor for Baltimore County, and Edward F. Seibert, Chief Assistant County Solicitor, with whom was J. Carroll Holzer, County Solicitor, on the brief, for appellee.
The cause was argued before GILBERT, C.J., and MASON and MacDANIEL, JJ.
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
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
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,
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
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:
Immediately following the polygraph examination, Sgt. Philip Huber of the Internal Affairs Section, was told to "interview"
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.
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:
The Chief of Police concurred, and Widomski was dismissed as of the date of his suspension.
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 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 Department that he "would like the tape to be in evidence,
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 Widomski'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."
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
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.
Md. Ann. Code, art. 27, § 728 (b) states that "[w]henever 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
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.
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
Then Md. Ann. Code art. 27, § 728 (b) (3) is the statutory basis for Widomski's argument. That section provided:
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"
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:
Basically, Widomski contends that "no record was kept of the dialogue which prompted ... [him] to change to the negative his response to the question `Do you want a lawyer present at this time?'" We glean, although it is by no means clear, that Widomski's position is that the record of the interrogation must be 1) written, or 2) taped or 3) transcribed, and that whichever of the three methods is employed, the other two are excluded. We do not believe such a narrow,
Widomski's next averment presupposes that the Court would decide that Lt. Ferrell and Sgt. Huber obtained evidence in violation of Md. Ann. Code art. 27, § 728. That portion of Lt. Ferrell's evidence that was obtained in violation of the Law-Enforcement Officers' Bill of Rights was not received by the Board. The testimony of Ferrell and Huber that was heard by the Board was admissible. There was, as we have said, no evidence received by the Board that had been obtained in violation of the strictures of Md. Ann. Code art. 27, § 728.
This argument is but a paraphrasing of that raised in II A, above, with Miranda cranked into the matter. To make Miranda applicable there must have been a custodial interrogation of Widomski, an element that he perceives in the instant case. The late Chief Justice Warren penned in Miranda that:
Then Chief Judge Murphy stated in Myers that "the appellant was the prime suspect in a murder case and the police had undertaken to find him." 3 Md. App. at 538, 240 A.2d at 291. The Court held that when the police ordered Myers into their squad car and questioned him while driving to the police station there had been custodial interrogation. The testimony in the case at Bar is markedly different. Widomski was not a suspect until after the polygraph examination. Neither was he "deprived of his freedom of action in any significant way," nor was he "placed in a situation in which he reasonably ... [believed] that his freedom of action or movement ... [was] restricted...." The record does not indicate that Widomski had been either formally ordered to attend the examination, or that he would suffer any penalty for failure to attend.
The record does disclose, however, that Captain Joseph Talley had initially asked Widomski "to be there" for an
We have already seen that when Ferrell interviewed Widomski, the appellant was not a suspect, nor was there any reason to believe he was involved in the misdeeds and unlawful acts of some of the police officers stationed in Dundalk in 1970-1972. Miranda warnings were no more required to be read, at that point, to Widomski than they would be to any witness not a suspect before a statement is made. Miranda simply has no application.
Finally, on the appellant's multilateral "second issue," he argues that "(1) ... [his] statement was not voluntary, and
The Board would not allow Widomski to take the stand for the limited purpose of testifying that his statement to Sgt. Huber was involuntary.
After the objection on the ground of lack of voluntariness to the admission of appellant's statement to Sgt. Huber was overruled, appellant moved that he be allowed to testify exclusively as to the voluntariness of the waiver of his right
Appellant, in this Court, asserts that:
To bolster his argument, he cites us to Boulware v. Battaglia, 344 F.Supp. 889, 902 (D. Del. 1972) for the proposition that "the Fifth Amendment privilege against self-incrimination extends to persons in civil or administrative procedures is clearly established." With that general statement we wholeheartedly agree. Yet, it is just as clearly established in Maryland that administrative bodies are not ordinarily bound by the strict rules of evidence of a law court. Hyson v. Montgomery County Council, 242 Md. 55, 70, 217 A.2d 578, 587 (1966). In that connection, we stated in American Radio-Telephone Service, Inc. v. Public Service Commission, 33 Md.App. 423, 434-35, 365 A.2d 314, 320 (1976), "[a]lthough administrative agencies are not bound by the technical common law rules of evidence, they must observe the basic rules of fairness as to the parties appearing before them." See Dickinson-Tidewater, Inc. v. Supervisor of Assessments, 273 Md. 245, 253, 329 A.2d 18, 24 (1974); Montgomery County v. National Capital Realty, 267 Md. 364, 376, 297 A.2d 675, 681 (1972); Dal Maso v. Board of County Commissioners, 238 Md. 333, 337, 209 A.2d 62, 64 (1965). Procedural due process in administrative law is recognized to be a matter of greater flexibility than that of strictly judicial proceedings. NLRB v.
We think that the mandate of Md. Ann. Code art. 27, § 730, was satisfied in the case at Bar. The police department notified Widomski of the charges and the hearing; kept a record of the hearing; afforded appellant ample opportunity to present both evidence and argument with respect to the issues involved; admitted probative evidence; allowed appellant's counsel wide latitude in cross-examination of Departmental witnesses; and made extensive findings of fact in its report and recommendations to the Police Chief.
Appellant seeks to inject into administrative hearings the criminal law with respect to the admission of confessions. He cites us to a number of cases, all dealing with suppression hearings concerning the voluntariness of confessions. See e.g., Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Bailey v. United States, 389 F.2d 305 (D.C. Cir.1967). Widomski, by his reliance on the criminal confession suppression cases, is in effect equating the instant case to a criminal trial. It is not. Nothing in section 730 requires, or suggests for that matter, that it is the equivalent of a criminal proceeding. Subsection (c) of section 730 does provide, "[t]he hearing Board conducting the hearing shall give effect to the rules of privilege recognized by law," but that wording means that a person may not be compelled to testify against himself. Widomski was not so compelled. He was not called upon by the Department to testify in the case, nor was the fact that he did not testify used against him. Although his admission to Sgt. Huber was received in evidence, Widomski had an opportunity to testify and deny Huber's statement relative to voluntariness but elected not to do so because the Board refused to permit Widomski's testimony to be limited to the voluntariness vel non of the admission. We know of no rule of law that requires
We think due process of law, under either the Maryland or Federal Constitution, was not affronted by the Board's declination of Widomski's proposed "limited" testimony.
We adopt the reasoning of Chief Judge Wright of the U.S. District Court for the District of Delaware, as enunciated in Boulware v. Battaglia, supra:
Judge Haile did not err in affirming the action of the Chief of Police in dismissing Widomski from the Baltimore County Police Department.
Costs to be paid by appellant.
- No Cases Found