Greene v. StateGreene v. State
CRIMINAL LAW – CONSTITUTIONAL SPEEDY TRIAL AND DUE PROCESS RIGHTS – Holding that the trial court did not abuse its discretion in determining that the State acted in good faith in twice nolle prossing the charges against appellant so that the delay caused by the nolle prosses did not count in a constitutional speedy trial analysis. Additionally, the trial court did not abuse its discretion in determining that appellant failed to show that he suffered actual prejudice by the pre-indictment delay or that the delay was the product of a deliberate act by the State to gain a tactical advantage. Accordingly, appellant failed to establish a violation of his constitutional speedy trial or due process rights.
CRIMINAL LAW – SUBJECT MATTER JURISDICTION – LESSER INCLUDED OFFENSE – Holding that possession of a prescription drug without a valid prescription, see
- Did the trial court err when it denied his motion to dismiss his first trial because his constitutional speedy trial and due process rights had been violated?
- Did the trial court err when it allowed the jury in his second trial to convict him of lesser included offenses for which he was not charged?
For the following reasons, we shall affirm the judgments.
PROCEDURAL FACTS
The facts of each particular trial are not in issue, for the two questions appellant raises concern legal issues. To answer the questions raised, we shall provide an overview of the procedural facts followed by greater detail in the discussion section below.
On March 17, 2016, appellant was charged in a 13-count indictment with various offenses involving alleged drug dealing on five different dates. Specifically, appellant was charged as follows:
Count 1 -- July 6, 2015 – distribution of cocaine
Counts 5-6 -- September 30, 2015 – possession with the intent to distribute cocaine and possession of cocaine
Count 7 -- December 14, 2015 – distribution of cocaine
Counts 8-13 -- January 11, 2016 – two counts of possession with the intent to distribute oxycodone; possession with the intent to distribute alprazolam (Xanax); possession of alprazolam; possession with the intent to distribute clonazepam (Klonopin); and possession of hydromorphone (Dilaudid)
On June 29, 2016, appellant filed a written motion to dismiss the first six counts of the indictment against him, arguing, among other things, that the State had failed to bring him to trial on those counts in a timely manner, and therefore, the court should dismiss his case because the State had violated his constitutional rights to a speedy trial and due process. Appellant focused on the fact that the State had twice nol prossed and re-charged those counts before the March 17th indictment. The State filed a written motion opposing appellant‘s motion, arguing that it had acted in good faith in nol prossing and re-charging the counts, and there were no constitutional violations.
On July 14, 2016, a hearing was held on appellant‘s motion. Appellant specifically stated at the hearing that his speedy trial and due process arguments apply only to the first six counts in the March 17, 2016 indictment. Based on the record and argument, the court found no bad faith by the State and ruled that any delay was not of constitutional dimension. The court denied the motion, ruling that there had been no violation of appellant‘s speedy trial or due process rights. On August 18, 2016, the circuit court granted appellant‘s motion to sever the charges, holding that they were not mutually admissible at one trial.
On September 8, 2016, appellant was tried on the charges alleging illegal drug activity on January 11, 2016 (counts 8 through 13). As stated above, he was convicted of four simple possession counts: possession of clonazepam, possession of alprazolam, and two counts of possession of oxycodone.
Appellant was sentenced on June 26, 2017 in both trials. He filed a direct appeal for review in our court the following day. We shall provide additional facts below to answer the questions raised.
DISCUSSION
I.
Appellant argues on appeal that the circuit court erred when it denied his motion to dismiss the charges that alleged criminal conduct on July 13, 2015, because the State failed to bring his case to trial in a timely manner in violation of his speedy trial and due process rights. As to his speedy trial claim, appellant specifically argues that the delay between the date of his arrest and the start of his first trial, a delay of 14 months, was of constitutional dimension and that the balancing of the four factors in Barker v. Wingo, 407 U.S. 514 (1972) weigh in favor of dismissal. The State disagrees and counters that because it had acted in good faith in nol prossing and re-charging those counts, the triggering date was
A. Sixth Amendment speedy trial violation?
We review the trial court‘s denial of a motion to dismiss on speedy trial grounds by conducting a de novo constitutional analysis. Glover v. State, 368 Md. 211, 220 (2002) (citations omitted). See also Jules v. State, 171 Md. App. 458, 481-82 (2006) (citing Glover, supra), cert. denied, 396 Md. 525 (2007). Nonetheless, we defer to the trial court on the findings of historical facts, unless clearly erroneous. Glover, 368 Md. at 220-21 (citations omitted). A finding of fact is clearly erroneous, not when the fact is “weak, shaky, [or] improbable,” but rather when it has “no evidentiary basis whatsoever[.]” State v. Brooks, 148 Md. App. 374, 399 (2002). See also Figgins v. Cochrane, 403 Md. 392, 409 (2008) (“If any competent material evidence exists in support of the trial court‘s factual findings, those findings cannot be held to be clearly erroneous.“) (quotation marks and citations omitted).
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]”
The initial Barker factor “is actually a double enquiry.” Doggett v. United States, 505 U.S. 647, 651 (1992).
[T]o trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay . . . since, by definition, he cannot complain that the government has denied him a ‘speedy’ trial if it has, in fact, prosecuted his case with customary promptness.
Id. at 651-52 (citation omitted). “If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” Id. at 652 (citation omitted). The length of delay for speedy trial analysis is measured from the earlier of the date of arrest, filing of indictment, or other formal charges, to the date of trial. United States v. Marion, 404 U.S. 307, 320-21 (1971). See also In re Thomas J., 372 Md. 50, 73 (2002) (“‘the length of delay is measured from the date of arrest or filing of indictment, information, or other formal charges to the date of trial.‘“) (quoting Divver, 356 Md. at 388-89).
[T]he formerly accused is, at most, in the same position as any other subject of a criminal investigation. Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life. . . . But with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. . . . Following dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation.
The Maryland Court of Appeals formally recognized the MacDonald good-faith exception in State v. Henson, 335 Md. 326, 338 (1994). In Henson, the Maryland Court of Appeals held that the State terminates a prosecution in “good faith” when the State “does not intend to circumvent the speedy trial right, and the termination does not have that
We now turn to the facts before us. As stated above, the question with which we must begin any speedy trial analysis is whether the delay was of constitutional dimension. To answer that question, we must first determine the start and end dates in the case before us.
On July 7, 2015, Montgomery County Police officers, who had observed appellant engaging in what they believed was a drug transaction, obtained an arrest warrant, which they executed a week later, on July 14th. During appellant‘s arrest, the police found in his possession and seized, among other things, 13.9 grams of cocaine, 20 hydrocodone pills in a bottle without a label, a digital scale, and two cell phones. On that day, appellant was brought to district court and charged with possession with intent to distribute cocaine and
On August 14, 2015, the State nol prossed the charge of possession of cocaine with the intent to distribute, the felony charge. Less than six weeks later, on September 24, 2015, a grand jury indicted appellant for possession of cocaine with the intent to distribute and possession of hydrocodone. However, the State again nol prossed the charges on January 7, 2016, and re-charged appellant on March 17, 2016, adding a charge of possession of hydrocodone with the intent to distribute. On July 14, 2016, the court denied appellant‘s motion for dismissal based on speedy trial and due process violations.
Trial commenced on September 6, 2016. Prior to choosing the jurors, the State nol prossed the possession with intent to distribute hydrocodone charge. After both parties rested, the court granted appellant‘s motion for judgment of acquittal as to the possession of hydrocodone charge. Appellant was convicted of possession of cocaine with the intent to distribute. Following the circuit court‘s grant of his motion for a new trial on October 21, 2016, appellant was re-tried on December 19, 2016 and found guilty of possession of cocaine.
Appellant argues that the triggering date for speedy trial purposes occurred on July 7, 2015, when the first set of charges involving drug dealing were filed against him. Appellant is wrong.3 At the earliest, the triggering date is July 14, 2015, when appellant
We are persuaded that the time between July 14, 2015, when appellant was arrested on the underlying charges, and August 14, 2015, when the State nol prossed the possession with intent to distribute cocaine, does not count in our speedy trial analysis for the simple reason that appellant has failed to shoulder the burden of showing that the circuit court‘s finding that the State had acted in good faith was clearly erroneous. The State in its written
The time between August 14, 2015, when the State nol prossed the charges, and September 24, 2015, when the State re-indicted appellant, also does not count in a speedy trial analysis because no charges were pending against appellant. This period, however, is relevant in our due process analysis below.
We are also persuaded that the time between when the State re-indicted appellant on September 24, 2015, and when the State again nol prossed the charges on January 7, 2016, does not count in our speedy trial analysis. As stated above, the MacDonald exception provides that so long as the State acted in good faith, the nol pros terminates the original prosecution, and the speedy trial clock starts anew from the date of the filing of the new charging document. See Henson, 335 Md. at 336–38. Again, the State in its written motion and during argument before the motions court explained in detail why it nol prossed the charges. Specifically, on September 30, 2015, less than a week after being re-
Given the two indictments, continuing multiple reports of appellant‘s ongoing drug dealing, and the impending execution of the search warrant, the State believed that appellant was engaged in the criminal enterprise of drug trafficking, and decided to terminate the two indictments so as to consolidate those cases and any anticipated charges resulting from the yet-to-be executed search warrant. The State argued that terminating the cases would allow the State more time to resolve the ongoing firearm investigation and upgrade the simple possession of hydrocodone on July 13 to possession with the intent to distribute. The State argued that from the ongoing criminal activity they saw a “common pattern or common scheme” that indicated that the State should proceed in a single trial
Appellant does not argue that the circuit court‘s findings that the State had acted in good faith were clearly erroneous, but argues in the context of the second Barker inquiry, i.e., discerning the reasons for the delay, to whom the delay should be assigned, and how heavily it should weigh, that the delay was “not legitimate” because there was “no valid reason . . . for the State to believe that the charges stemming from entirely separate incidents on separate dates could be tried together.” “Therefore the ‘reasons for delay’ factor should be weighed heavily against the State.” Based on the record before the motions court and the clearly erroneous standard of review by which we review the lower court‘s ruling on questions of fact, we are persuaded that appellant again fails to shoulder his burden of showing that the circuit court‘s finding of an absence of bad faith was clearly erroneous. Accordingly, this time does not count toward the length of the delay.
The time between January 7, 2016, when the State nol prossed the charges, and March 17, 2016, when the State re-indicted appellant, is not part of a speedy trial analysis for the reason noted above -- no charges were pending against appellant. Again, this period is relevant in our due process analysis below.
In sum, we agree with the State that based on the lower court‘s findings that the State had acted in good faith in nol prossing and re-indicting, the triggering date for speedy trial analysis is March 17, 2016.
Appellant argues that the end date for purposes of a speedy trial analysis is when his first trial began on September 6, 2016. The State argues that the ending date is July 14,
Nottingham appears to be novel in this respect for we have found no other case that used as the end date, the date the motion court denied a motion to dismiss for a lack of speedy trial. Our case law search reveals that it is generally the date of trial, not the date of the lower court‘s ruling on a motion to dismiss, that counts as the end date for speedy trial purposes, except, where the lower court grants the motion to dismiss and no trial occurs. See Marion, 404 U.S. at 320-21 (stating that it is the trial date that serves as the end date for speedy trial purposes); In re Thomas J., 372 Md. at 73 (same); Divver, 356 Md. at 388-89 (same); State v. Gee, 298 Md. 565, 579, cert. denied, 467 U.S. 1244 (1984) (same). See also Glover v. State, 368 Md. 211, 218-19 (2002) (end date for speedy trial purposes is when the motion to dismiss was granted). Nevertheless, whether the end date is calculated from the date of the circuit court‘s denial of appellant‘s motion to dismiss on July 14, 2016 (a span of less than four months) or appellants’ first trial date on September 6, 2016 (a span of less than six months), neither span amounts to a delay of constitutional dimension for a case involving felony drug charges. See State v. Gee, 298 Md. at 578 (stating that the Court was “not aware of an opinion of the Supreme Court of the United States or of the appellate courts of this State which holds that a delay of six months is of constitutional dimension“) (footnote omitted). See also Tapscott v. State, 106 Md. App. 109, 125 (1995) (a delay of more than seven months is not of constitutional dimension),
B. Fourteenth Amendment due process violation?
The Due Process Clause of the Fourteenth Amendment states: “nor shall any State deprive any person of life, liberty, or property, without due process of law[.]”
To show a Due Process violation: “[A] defendant must show that the pre-indictment delay caused him actual, substantial prejudice and that the delay was the product of a deliberate act by the government designed to gain a tactical advantage.” Clark v. State, 364 Md. 611, 631 (2001) (citing Marion, 404 U.S. 307 and United States v. Lovasco, 431 U.S. 783 (1977)). Actual prejudice caused by the passage of time means the “impair[ment of] memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise [impair] his ability to defend himself.” Id. at 625-26 (quotation marks and citation omitted). In Smallwood v. State, 51 Md. App. 463, 465-66 (1982), we offered many examples that militate against a finding of an intent to impair the accused‘s defense when evaluating proffered good-faith and well-reasoned bases for pre-indictment delay. For instance, waiting to consolidate multiple cases into one joint trial and allowing evidence to
A total of roughly four months are relevant in appellant‘s due process claims – the time between August 14, 2015 (when the State first nol prossed the charges) and September 24, 2015 (when the State re-indicted appellant), and the time between January 7, 2016 (when the State nol prossed the charges a second time), and March 17, 2016 (when the State re-indicted appellant a second time). We can quickly dispose of appellant‘s due process claim because appellant has failed to show that the delay caused any actual prejudice, or that the State acted deliberately in securing the delay to gain a tactical advantage.
At the hearing on appellant‘s right to a speedy trial and due process, appellant‘s attorney in fact acknowledged that appellant had sustained no actual prejudice. While the circuit court did not make a specific ruling on this prong, given the statement by the defense, that no evidence was presented to the contrary, and the trial court‘s ultimate conclusion that no violation occurred, we conclude that the motions court found no actual prejudice. See Nottingham, 227 Md. App. at 615 (recognizing that “absent a misstatement of law or conduct inconsistent with the law, a trial judge is presumed to know the law and apply it properly“) (citing Morris v. State, 153 Md. App. 480, 489–90 (2003) (observing that, where motions court merely announces its ruling, “without announcing any findings of fact,” appellate court “will resolve ambiguities and draw inferences in favor of the prevailing party and against the losing party“)). Moreover, the circuit court found that there was no evidence of “prosecutorial misbehavior,” and appellant has not persuaded us
II.
Appellant‘s second trial concerned drug-related crimes that occurred on January 11, 2016, and a jury ultimately convicted appellant of possession of clonazepam, possession of alprazolam, and two counts of possession of oxycodone.
Appellant argues on appeal that the circuit court lacked subject matter jurisdiction to convict him of possession of clonazepam and two counts of possession of oxycodone because he was never charged with simple possession of those drugs, only with possession with the intent to distribute those drugs.4 He recognizes that a criminal charge confers subject matter jurisdiction in the circuit court for lesser included charges under a Blockburger5 analysis. See Johnson v. State, 427 Md. 356, 376 n.12 (2012) (citing Hagans v. State, 316 Md. 429, 447-50 (1989) for the proposition that a defendant may be convicted of an uncharged lesser included offense but only if it meets the Blockburger test). Appellant argues, however, that simple possession of a medically prescribed drug is not a
Although appellant only raised this argument after his trial, the argument is properly before us because questions of jurisdiction may be raised at any time. See
The rules of statutory construction are long- and well-settled in Maryland:
The cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature. A court‘s primary goal in interpreting statutory language is to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by the statutory provision under scrutiny.
To ascertain the intent of the General Assembly, we begin with the normal, plain meaning of the statute. If the language of the statute is unambiguous and clearly consistent with the statute‘s apparent purpose, our inquiry as to the legislative intent ends ordinarily and we apply the statute as written without resort to other rules of construction. We neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we do not construe a statute with “forced or subtle interpretations” that limit or extend its application.
We, however, do not read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute‘s plain language to the isolated section alone. Rather, the plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim, or
policy of the Legislature in enacting the statute. We presume that the Legislature intends its enactments to operate together as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute‘s object and scope. Where the words of a statute are ambiguous and subject to more than one reasonable interpretation, or where the words are clear and unambiguous when viewed in isolation, but become ambiguous when read as part of a larger statutory scheme, a court must resolve the ambiguity by searching for legislative intent in other indicia, including the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process. In resolving ambiguities, a court considers the structure of the statute, how it relates to other laws, its general purpose and relative rationality and legal effect of various competing constructions.
In every case, the statute must be given a reasonable interpretation, not one that is absurd, illogical or incompatible with common sense.
State v. Bey, 452 Md. 255, 265–66 (2017) (quotation marks and citations omitted).
Appellant argues that the “unless” clause of
Appellant fails to discuss the impact of another section in Maryland‘s drug laws that makes clear that the “unless” language creates an exception, not an element the State must prove in simple possession of a prescribed drug case.
(b)(1) In the absence of proof that a person is a registrant or holder of an order form issued under § 5-303(d) of this title, the person is presumed not to be a registrant or holder of a form.
(2) The person has the burden of proof to rebut the presumption.
Viewing the statutory scheme as a whole, the above language clearly frees the State from having to prove the absence of a prescription to secure a conviction for simple possession of a prescribed drug. Therefore, we hold that the “unless” language in
Were we to adopt appellant‘s reasoning, the State would have to negate the possibility of a valid prescription in every possession of a prescription drug case, a near impossible task. Such an interpretation would be “absurd, illogical [and] incompatible” with the statutory scheme to criminalize illegal possession of drugs. Our holding is also in accord with other jurisdictions who have faced this issue in the context of the federal Controlled Substance Act, see
For the foregoing reasons, we shall affirm the judgments.
JUDGMENTS AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
Notes
Icgoren v. State, 103 Md. App. 407, 420, cert. denied, 339 Md. 167 (1995). Accordingly, it appears that the only viable period for consideration is between the lower court‘s grant of appellant‘s motion for a new trial and his second trial date. Neither party, however, has raised this issue so we shall not address it.[I]t is clear to us that the Maryland cases having similar factual situations, as well as the weight of authority elsewhere, support a holding, and we so hold, that, in construing a party‘s right to a speedy trial under the Sixth Amendment of the Federal Constitution and Article 21 of the Declaration of Rights of Maryland‘s Constitution, in a serial trial context, we are generally, absent extraordinary circumstances not present here, only concerned with the period between the receipt of an appellate mandate, if the next prior conviction is reversed, and the subsequent retrial, or the period between the declaration of a mistrial and the commencement of the retrial. In the case sub judice, we will, thus, only consider the period from the date of the mistrial of appellant‘s second trial and the commencement of his third trial.