Lewellen v. Esteppe

ADAM LEWELLEN v. DAVID ESTEPPE

No. 2009

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

December 4, 2015

UNREPORTED

Hotten, Reed, Salmon, James P. (Retired, Specially Assigned), JJ.

Opinion by Hotten, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Appellant, Adam Lewellen, a former detective with the Baltimore City Police Department, pled guilty to perjury and misconduct in office after fabricating evidence included in an application for a search warrant. Appellee, David Esteppe, who was the target of the fraudulent search warrant, thereafter filed a complaint for damages against appellant in the Circuit Court for Baltimore City. After a bench trial, the circuit court found that appellee had established negligence, violations of Articles 24 and 26 of the Maryland Declaration of Rights, and civil conspiracy. The circuit court awarded appellee $166,007.67 in compensatory damages, and appellant challenges that order, presenting four questions for our review:

I. Does a [circuit] court err in admitting as substantive evidence in a civil trial a statement of facts to support a guilty plea from a related criminal proceeding?

II. In an action in which a [circuit] court finds [appellant's] actions to initially have been unlawful but to have then converted into being lawful, does a trial court err in awarding damages occurring after [appellant's] conversion to lawful conduct?

III. Does a [circuit] court err in not granting judgment in favor of [a] police officer on a claim of negligence when the [circuit] court finds all elements of the defense of public official immunity in favor of the [appellant]?

IV. Does a [circuit] court err in finding against a defendant for a claim of civil conspiracy when a plaintiff fails to establish all elements?

For the reasons that follow, we shall affirm the judgment of the circuit court.

FACTUAL BACKGROUND

On March 27, 2014, appellant pled guilty to one count of perjury and one count of misconduct in office. After the circuit court found that appellant's plea was knowing and voluntary, the Assistant State's Attorney ("ASA") proffered the factual basis for the plea:

If this matter had gone forward, the State would have produced evidence to show that the [appellant] before the Court today seated left of counsel at trial table, was a sworn public officer for the Baltimore City Police Department since 2007 and, in particular, the periods in question with respect to these two cases he was still, in fact, an officer in March 2012 as well as June 2012, the dates pertinent in this case.

Your Honor, State would have produced evidence to show that [appellant] knew a young lady by the name of Ms. Brandi Chelchowski. He had been friends with her for years and their relationship was a close one.

The State would have also produced evidence to show that Ms. Chelchowski entered into a relationship in late 2011 with a gentlemen by the name of David Esteppe [(appellee)]. That relationship between Chelchowski and [appellee] ended sometime between January and February 2012.

We would have produced evidence to show that [appellee] was the one who ended that relationship with Ms. Chelchowski which angered her. She became more and more aggressive and threatening towards [appellee] to include saying things to the effect, "I have cop friends and you're going down." Most specifically, on March 19, 2012, after a hearing between the two of them, between Chelchowski and [appellee], subsequent to that hearing, she pulled up next to [appellee] and said something to the effect of, "You're going down next week."

That brings us, Your Honor, to March 27, 2012. State would have produced evidence to show that [appellant] before the court today, obtained, applied for and obtained a search warrant for [appellee's] home located at 3127 Foster Avenue. He swore out that application for a search warrant before the Honorable Judge Avery, then of the District Court. He swore under oath and under penalties of perjury before Judge Avery and in the Affidavit in Support of Probable Cause for that application, [appellant] averred that he had a Confidential Informant [("CI")], No. 2688, who heexplained in that Affidavit, during the third week of March 2012 had made a phone call to [appellee] in order to arrange a purchase of cocaine.

[Appellant] further averred that CI 2688 did, in fact, make a control purchase from [appellee] at his home at 3127 Foster Avenue which is in Baltimore City, Maryland and that he was - in fact, purchased cocaine from [appellee] at that location. That was the basis - the phone call and the purchase was the basis for the search warrant that the [appellant] swore out before Judge Avery.

[Appellee] came forward, as well as other witnesses came forward, indicating that they believed that the search warrant was, in fact, false and fraudulent. The Internal Affairs Division of the police department began an investigation. They interviewed both [appellee] and CI 2688. Both of them said they did not know each other, they had never met each other, they had never seen each other. [Appellee] explained the CI had never ever been to his house. The CI explained he had never ever set foot nor met [appellee]. He had never bought or sold any type of controlled dangerous substance to or from [appellee]. He had never been to that house, and had never called him on the phone and, in fact, did now know his phone number.

Investigators went further and obtained phone records of both the CI and [appellee] and they corroborated that there had never been any phone contact in March 2012 between those two.

On March 27, in addition to obtaining the search warrant, they then, in fact, executed the search warrant. [Appellant] was the lead on that execution of that search warrant and, Your Honor, no CDS was found during that execution of search warrant.

The investigation began in June 2012 as all of this started being investigated by Internal Affairs. They first interviewed the CI on June 11, 2012 and began asking him these questions about whether or not he knew [appellee] or whether or not he had ever sold or bought drugs or been to his house. At that point, that is when he said, as I've already explained to the Court, he did not know [appellee], had never bought or sold from him and never been to his home.

Subsequent to that interview by IAD of the CI, the CI then explained that later that day, the next morning, he called [appellant]. He worked only at that point in time in June - in March through June 2012 with [appellant].

So he called the [appellant] to say what's going on, why is internal affairs talking to me, am I in trouble?

The next day, June 12, the CI would have testified that before this Court that [appellant] then picked him up at his home, took him to a nearby school - and all this happening in Baltimore City - and told the CI - [appellant] told the CI that he needed him, meaning the CI, he needed the CI to do him a favor and that they were going to call the detective, the IAD detective and recant.

CI would have explained that [appellant] dialed the phone number and had the phone there standing right over him, if you will, directing him what to say and recant what he had told Internal Affairs investigators on June 11 and, in fact, changed his story to say, "I forgot. I did in fact buy from that guy [appellee] one time. I totally forgot."

Also present during that encounter was the [appellant]'s partner, an Officer Sills. He would have testified, Your Honor, that [appellant] appeared agitated that day. He recalls that event when they took the CI to this school parking lot and that [appellant] was agitated, red in the fact and angry, and standing right over the CI as this phone call was made, although he did not hear the particulars of the phone call as he was not close enough to it.

Two days later, June 14, Internal Affairs detectives were - spoke again with the CI. In light of the fact that he sounded very nervous and was stammering and stuttering during that June 12 recantation, they wanted to reach out to him again. They did so, brought him into the Internal Affairs Office and interviewed him again. He then explained to Internal Affairs detectives that [appellant] was there, made him make this phone call saying to him, "You owe me a favor," stood over him and directed him what to say.

The CI would indicate to that Court that on that June 12 day when he was picked up by [appellant], [appellant] was working in full uniform in his police car, as his partner Officer Sills would have indicated, the same as they were on duty when they went and picked him up.

Your honor, again getting back to the execution of the search warrant on March 27, as I indicated, although no controlled dangerous substances were found in [appellee's] home, he did have two hunting guns or shotguns in the home. And due to a prior second degree assault conviction, unbeknownst to [appellee], he's prohibited to having those guns. So he was, in fact, arrested that day, taken to Central Booking and spent a night in jail,all based on, obviously, this bogus and fraudulent perjurious warrant sworn out and obtained by [appellant].

Appellant's attorney stated that he had "[n]o additions, corrections or deletions[]" to this statement. Appellant was also asked by the court whether he had "[a]ny additions, corrections or modifications[,]" and appellant responded "[n]o, Your Honor." The court indicated that it was satisfied, beyond a reasonable doubt, that, "based on the agreed Statement of Facts that has been read into the record," appellant was guilty of perjury and misconduct in office.

On April 23, 2013, prior to appellant's guilty plea, appellee filed an amended complaint against appellant for damages caused by appellant's fabrication of evidence in applying for the search warrant.¹...