Greene v. State

Alpert, J. Anthony Greene, appellant, was convicted in two separate trials by a jury sitting in the Circuit Court for Montgomery County of drug related crimes. In the first trial, a jury convicted him of possession of cocaine. In the second trial, a jury convicted him of possession of clonazepam, possession of alprazolam, and two counts of possession of oxycodone. 1 Appellant appeals from both cases, raising two questions, which we have rephrased slightly: I. 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?

II

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 2-4-July 13, 2015-possession of cocaine with the intent to distribute; possession of hydrocodone with the intent to distribute; and possession of hydrocodone 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 6, 2016, appellant was tried on the charges alleging illegal drug activity on July 13, 2015 (counts 2 through 4). He was ultimately convicted of possession of cocaine with the intent to distribute. After the court granted appellant's motion for a new trial, he was re-tried on December 19, 2015, and, as stated above, he was found guilty of simple possession of cocaine.

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 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (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 the day of the last indictment: March 17, 2016.

The State then argues that the delay between that date and the date when the circuit court denied his motion, a delay of four months, was not of constitutional dimension. The State also argues that appellant's due process argument is without merit because appellant failed to show actual prejudice or that the State had caused the delay with the intent to gain a tactical advantage over him. 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, 792 A.2d 1160 (2002) (citations omitted). See also Jules v. State , 171 Md. App. 458 , 481-82, 910 A.2d 553 (2006) (citing Glover , supra ), cert. denied , 396 Md. 525 , 914 A.2d 769 (2007). Nonetheless, we defer to the trial court on the findings of historical facts, unless clearly erroneous. Glover , 368 Md. at 220 -21 , 792 A.2d 1160 (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, 812 A.2d 342 (2002). See also Figgins v. Cochrane , 403 Md. 392 , 409, 942 A.2d 736 (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[.]" U.S. Const. Amend.

VI

This right is applied to the States through the Fourteenth Amendment. Klopfer v. North Carolina , 386 U.S. 213 , 222-23, 87 S.Ct. 988 , 18 L.Ed.2d 1 (1967). We apply the balancing test articulated by the United States Supreme Court in Barker , supra , to determine whether a defendant's constitutional speedy trial right has been violated. State v. Kanneh , 403 Md. 678 , 687, 944 A.2d 516 (2008) (citation omitted).

The four factors of a Barker analysis consist of the length of the delay, the reason for the delay, the defendant's assertion of his right to a speedy trial, and any prejudice to the defendant because of the delay. Divver v. State , 356 Md. 379 , 388, 739 A.2d 71 (1999) (citation omitted). "None of the four factors is either a necessary or sufficient condition to finding a denial of speedy trial rights. ... Rather they are related factors and must be considered together with such other circumstances as may be relevant." Id. at 394 , 739 A.2d 71 (quotation marks, citations, and brackets omitted).

The initial Barker factor "is actually a double enquiry." Doggett v. United States , 505 U.S. 647 , 651, 112 S.Ct. 2686 , 120 L.Ed.2d 520 (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 , 112 S.Ct. 2686 (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 , 112 S.Ct. 2686 (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, 92 S.Ct. 455 , 30 L.Ed.2d 468 (1971). See also In re Thomas J. , 372 Md. 50 , 73, 811 A.2d 310 (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 , 739 A.2d 71 ). In United States v. MacDonald , 456 U.S. 1 , 102 S.Ct. 1497 , 71 L.Ed.2d 696 (1982), the United States Supreme Court held that "the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges." MacDonald , 456 U.S. at 7 , 102 S.Ct. 1497 . "Once charges are dismissed, the speedy trial guarantee is no longer applicable." Id. at 8 , 102 S.Ct. 1497 (footnote omitted).

The Supreme Court stated that any undue delay after the Government, acting in good faith, dismisses charges must be scrutinized under the Due Process Clause of the Fifth Amendment, not the Speedy Trial Clause of the Sixth Amendment. Id. at 7 , 102 S.Ct. 1497 . The Supreme Court reasoned as follows, why a dismissal of charges in good faith operates to start the speedy trial clock anew from the date of the filing of the new charging document: [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. Id. at 8-9 , 102 S.Ct. 1497 . The Maryland Court of Appeals formally recognized the MacDonald good-faith exception in State v. Henson , 335 Md. 326 , 338, 643 A.2d 432 (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 effect[.]" 2 Id. If those two factors are present, "the period preceding the earlier dismissal is not counted in the speedy trial analysis." Id. See also Nottingham v. State , 227 Md. App. 592 , 614, 135 A.3d 541 (2016) ("[S]o long as the State acted in good faith, the nolle prosequi terminates the original prosecution, and the speedy trial clock starts anew from the date of the filing of the new charging document.") (citations omitted). 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 possession of hydrocodone, based on the items found in his possession at the time of his arrest. He was released on bail. 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 was served with the arrest warrant for the events underlying his first trial. The State responds that because it acted in good faith when it later nol prossed and re-charged those counts, the triggering date for speedy trial purposes occurred on March 17, 2016. We shall look at the time between July 14, 2015, and March 17, 2016, more closely to determine whether any of that delay counts in a speedy trial analysis. 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 motion and during argument before the motions court accounted for why it had nol prossed the charges. The State explained that while appellant was on bail on the initial charges, the police continually uncovered new and ever more serious drug offenses committed by appellant. There is nothing in the record that suggests that the State did not act in good faith or that the delay of one month after his arrest was done purposefully to avoid a speedy trial claim. Moreover, appellant does not set forth any argument to the contrary under the MacDonald exception for this period.

Therefore, under the circumstances presented, we are persuaded that the circuit court's factual findings, i.e., that there was no evidence of bad faith by the State in its decision-making process in nol prossing and re-charging the documents, were not clearly erroneous. 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 , 643 A.2d 432 . 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-indicted, appellant was stopped for a traffic violation in the same vehicle involved in the other pending charges.

The car was searched and, after a K-9 scan indicated the presence of drugs, the police found, among other things, cocaine and a digital scale. Appellant was arrested and posted bond. The police continued to receive reports of appellant's drug dealing and discovered that a picture on one of the cell phones seized from appellant during an earlier search showed him with a handgun. That picture was forwarded to the county's firearm unit to determine whether the firearm was real and the specific type of firearm.

That information was then forwarded to the federal ATF to determine if there was a possible firearm offense. In the meantime, on December 14, 2015, the police observed suspicious activity between appellant and another person, who was subsequently followed and stopped by the police, and who then informed the police that he had purchased cocaine from appellant. The police later obtained a warrant to search appellant's home in mid-January. 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 proceeding, to save time and resources. At the time of the motions hearing, the court noted that discovery comprised 13,000 pages. 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