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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 909 September Term, 2003

BALTIMORE CITY POLICE DEPARTMENT v. STATE OF MARYLAND

Murphy, C.J., Krauser, Barbera, JJ.

Opinion by Barbera, J.

Filed: September 2, 2004

This case involves a pre-trial order of the Circuit Court for Baltimore City directing that certain portions of a law enforcement officer's confidential personnel file be disclosed to a defendant in a criminal case. As we shall discuss, central to our

disposition of this appeal is that the court ordered discovery of this confidential information without first conducting an in camera review of the officer's personnel file to ascertain whether it contains matters to which the defense is entitled. This Baltimore appeal City was Police precipitated Department by a motion, filed to by the a

("Department"),

quash

subpoena filed by counsel for Tevonne Clark, one of two defendants in the underlying criminal case and appellee here. The subpoena

sought the records of the Department's Internal Affairs Division ("IAD") concerning Detective Michael Dressel. Detective Dressel

had participated in the arrest of appellee and was scheduled to testify at appellee's trial on drug charges that, in part, arose out of the arrest. Appellee sought disclosure of Detective Dressel's personnel record because it contained information concerning an accusation by one or more officers that Dressel had been dishonest in an

unrelated matter.

Appellee sought the information for purposes of

cross-examination of the officer at trial. The circuit court granted in part and denied in part the Department's motion to quash. The court did not review Detective Nevertheless,

Dressel's IAD file, either alone or with counsel.

the court ordered the Department to disclose to appellee the portions of the IAD file that contained "any statement made by a named police witness that he [Officer Dressel] engaged [in

dishonesty] in the past." The Department has appealed, challenging that order.1 Two days after we heard oral argument in the case, we issued an order reversing the circuit court's order and remanding the case to that court with directions that it "enter orders (1) granting the `Motion to Quash and/or for Protective Order' . . . , and (2) quashing the subpoena duces tecum for the Department's disciplinary records." We further ordered, however, that our disposition be

without prejudice to the rights of appellee and/or his co-defendant to seek appropriate relief from the circuit court pursuant to two of our prior decisions, Blades v. Woods, 107 Md. App. 178 (1995), and Reynolds v. State, 98 Md. App. 348 (1993). We stated that the

reasons for our order would be explained in an opinion to follow. This is that opinion.

The court's order is an appealable order. Soc. Svcs. v. Stein , 328 Md. 1, 20-21 (1992).

1

See Baltimore City Dep't of

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BACKGROUND The parties stipulated to a joint statement of the case pursuant to Maryland Rule 8-413(b).2 follows: This matter arises from the criminal trials of co-Defendants Mr. Tevonne Clark and Lynwood Smith, criminal case nos. 102113037 and 102113038. This matter is currently being heard before [] the Circuit Court for Baltimore City. On June 12, 2003, a suppression hearing was held in the matter. During the hearing [Assistant State's Attorney ("ASA")] Rita Wisthoff-Ito moved to limit the examination of Baltimore Police Detective Michael Dressel, so as to exclude inquiries into an Internal Affairs Division (IAD) investigation of Det. Dressel. Importantly, the IAD investigation was not related to the underlying facts of the Messrs. Smith and Clark's cases. Rather, the IAD investigation involved allegations of dishonesty unrelated to the instant case. Counsel for Mr. Clark, Assistant [Public Defender] Margaret Teahan, opposed the ASA Wisthoff-Ito's request, and argued in favor of access. The very next day, Ms. Teahan served a subpoena duces tecum upon the Baltimore Police Department (BPD) for the production of all IAD files relating to Detective Dressel. (Exh. 1). Soon thereafter, counsel for the BPD, Peter Saar, appeared and moved to quash
2

The statement reads as

Maryland Rule 8-413(b) provides, in pertinent part: If the parties agree that the questions presented by an appeal can be determined without an examination of all the pleadings and evidence, they may sign and, upon approval by the lower court, file a statement showing how the questions arose and were decided, and setting forth only those facts or allegations that are essential to a decision of the questions.

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the subpoena duces tecum. [Ms. Teahan] has since left the Baltimore City Public Defender's Office, and her cases have been assumed by Daniel O'Connell, Assistant Public Defender. Ruling from the bench, [the court] denied the motion to quash and ordered the production and disclosure of all IAD files relating to Det. Dressel that contained sustained findings of misconduct. In addition thereto, [the court] also ordered the production and disclosure of any IAD files containing allegations of dishonesty. In support of his decision, [the court] cited Mulligan v. State, 18 Md. App. 588 (1973); Robinson v. State, 354 Md. 287 (1999); Jorgensen v. State, 80 Md. App. 595 (1989); Faulk v. State's Atty for Harford Cnty, 299 Md. 493 (1984); Hammen v. BCPD, 373 Md. 440 (2003), and Prince George's County, Maryland v. The Washington Post Co., 149 Md. App. 289 (2003). The record also contains the transcripts of the two hearings at which this matter was discussed, and from which we glean the following additional information.3 On the occasion of its initial

order, the court directed the Department to disclose to defense counsel "whatever statement any police officer made about

[Detective Dressel]."

The parties appeared before the court the

following day to discuss the Department's intended appeal and its effect upon the proceedings in the underlying criminal case. At

The transcripts of these hearings were supplied to us by the parties. Although this is an expedited appeal, we are not precluded from considering information in the record but not included in the parties' joint statement of the case. See Md. Rule 8-413(b) ("The appellate court may . . . direct the lower court clerk to transmit all or part of the balance of the record in the lower court as a supplement to the record on appeal.").

3

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that time, the court restated its earlier ruling, adding some clarification of it: After hearing arguments on defendant Clark's subpoena duces tecum, pursuant to Maryland [] Rule 4-264 for tangible evidence before trial, and 4-265 for evidence at trial, and the motion for protective order filed by the Baltimore Police Department, the Court grants said motion for protective order in part, limiting access to the IAD files with respect to . . . Michael Dressel, except that any statement made by a Baltimore City police officer that Officer Dressel engaged in dishonesty in a now completed investigation in which Officer Dressel has been exonerated shall [be] the subject of the subpoena, and that the Court relied on Mulligan versus State 18 Md. App. 588 from 1973 as to the scope of cross-examination as it relates to whether the subpoenaed information is material. In its written order filed later that day, the court stated its ruling in slightly broader terms: IT IS HEREBY ORDERED this 13th day of June, 2003, by the Circuit Court of Baltimore City that the Motion is GRANTED IN PART limiting access to IAD files with respect to Michael Dressel, except any statement made by a named police witness that he engaged [in dishonesty] in the past, shall be disclosed by IAD to Assistant Public Defender, Margaret Teahan, with a copy forwarded to Assistant State's Attorney, Rita Wisthoff-Ito. From that order, this appeal was noted. DISCUSSION I. Appellee's subpoena duces tecum, filed pursuant to Maryland Rules 4-264 and 4-265, sought disclosure before appellee's criminal

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trial of records that have been made confidential by statute, specifically Maryland's Public Information Act ("PIA" or "Act"), Maryland Code (1984, 1999 Repl. Vol., 2003 Supp.),

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