Guy v. State

ROSALYN B. BELL, Judge. Billy Guy, a/k/a Damon Hackett, pled guilty in the Circuit Court for Baltimore City to two counts of conspiracy to distribute cocaine, one count of use of a juvenile to distribute cocaine, one count of conspiracy to smuggle cocaine, one count of conspiracy to smuggle heroin, and one count of heroin conspiracy involving Western Union. 1 Guy pled not ⁶⁰³ guilty, on an agreed statement of facts, to two charges of violating Md.Code Ann. Art. 27, § 286(g)(2) (1957, 1992 Repl. Vol.) 2 (hereinafter referred to as the drug kingpin conspiracy charges). The trial judge found Guy guilty of the drug kingpin conspiracy charges and sentenced him to 20 years in prison, without the possibility of parole, as required by Md.Code Ann. Art. 27, § 286(g)(2)(i) (1957, 1992 Repl.

Vol.). Guy has appealed, contending that the trial judge erred: — in failing to grant a postponement, or to allow Guy’s counsel to seek a postponement from the administrative judge, after the State obtained superseding indictments on the day of trial; — in refusing to dismiss the indictments for duplicity because they charged Guy with several acts stated in the disjunctive rather than the conjunctive; — in denying Guy’s motion to suppress evidence obtained from Guy following his arrest for loitering in a “drug-free zone”; and — in holding that the Baltimore City ordinance forbidding loitering in a “drug-free zone” was constitutional. We will reverse on the first issue, but will discuss the others in the event they might be relevant to a new trial. FACTS 3 On September 7, 1990, a grand jury in Baltimore City returned two indictments 4 charging Guy with violation of ⁶⁰⁴ Art. 27, § 286(g). 5 During several days of pretrial motions, Guy moved to dismiss the drug kingpin conspiracy indictments as vague because they did not provide a definition of the term “drug kingpin.” On March 6, 1991, the trial judge “dismissed” the kingpin conspiracy indictments, but allowed the State to “amend” the indictments to include the statutory definition of a drug kingpin.

The next day, the State “amended” the “dismissed” indictments to include the statutory definition of “kingpin” set forth in Art. 27, § 286(g)(1). Guy immediately moved for a postponement to consider the amended indictments. The trial judge denied the motion and also refused to allow Guy to go to the administrative judge to ask for a postponement. Guy then moved to dismiss the amended indictments on vagueness grounds.

The trial judge again denied the motion. On the same day, March 6, the State obtained “new” indictments from the grand jury, which were identical to the “old” indictments, as amended. On March 11,1991, the day the trial was set to begin, the State moved to arraign Guy on the “new” (March 6) indictments, in lieu of the amended indictments. The stated purpose of this request was to “remove the issue of amended indictment from the appellate court.” Over Guy’s objection, the trial judge granted the State’s motion.

The trial judge then arraigned Guy on the new kingpin conspiracy indictments. Guy pled not guilty and, when the trial judge asked him if he wanted a jury trial or a court trial, Guy requested time to consult with his attorney. Following a brief recess, Guy’s counsel declined to enter his appearance on the new indictments. Guy’s counsel did, however, request a postponement to consider the new in ⁶⁰⁵ dictments. 6 Specifically, he pointed out to the trial judge that the new indictments were stated in the disjunctive, rather than the conjunctive, and thus may have violated the principles enunciated in State v. Beers, 21 Md.App. 39 , 318 A.2d 825 (1974).

The trial judge denied the request for a postponement and told Guy’s counsel that he was “wrong” about the Beers issue. At the State’s suggestion, the trial judge then elected a jury trial for Guy 7 and, when Guy requested a public defender, appointed his counsel (who had moments earlier declined to enter his appearance) as an assigned public defender, over counsel’s objection. That same day, a jury was empaneled and sworn. 8 On March 13, 1991, Guy pled not guilty, on an agreed statement of facts, to the drug kingpin conspiracy charges. The trial judge found him guilty of both charges.

On April 16,1991, the trial judge sentenced Guy to 20 years in prison without the possibility of parole, the minimum sentence allowed under Art. 27, § 286(g)(2)(i). Guy then appealed to this Court. ⁶⁰⁶ POSTPONEMENT/DISMISSAL On appeal, appellant contends that the trial judge erred in two ways: first, when he refused to grant a postponement, or allow appellant to seek a postponement from the administrative judge, on the superseding indictments on March 11; and second, when he refused, on the same date, to dismiss the superseding indictments as duplicitous. We agree with appellant’s first contention, but reject the second. Therefore, we will reverse.

We explain. Initially, we note that there was a great deal of argument in the trial court over the proper way to handle the amendments to the September 7 drug kingpin conspiracy indictments. As the State pointed out in introducing the March 6 indictments, however, the new indictments mooted the issue of amendments to the original drug kingpin conspiracy indictments. While we have some questions about the trial judge’s reasoning on these issues, we need express no opinion on any issues relating to the amendment of the March 6 indictments.

Appellant objected to the new indictments, claiming (1) that he had not had an opportunity to review them; and (2) that they were duplicitous because they charged him with several different acts stated in the disjunctive. The trial judge focused his inquiry on appellant’s request for a postponement on appellant’s preparedness for trial: “THE COURT: All right. First, Mr. Stein, is there anything that — I have heard you before, and I’ve listened to all your requests for postponements and so forth, but is there any new information with respect to what has occurred this morning, that would place you in a position of unpreparedness to go forth with the kingpin trial? “MR. STEIN: Your Honor, I was— “THE COURT: Of course, you are not representing him at the moment. “MR.

STEIN: I understand that. I was prepared to defend the defendant for a drug kingpin trial. In all candor, I was prepared under the old indictment. ⁶⁰⁷ “THE COURT: Is there anything in the new indictment which simply has the insertion of the description, definition as to Part 1 of the, of the Article 27, which we’ve referred to in the previous arguments? “MR. STEIN: Well, Your Honor— “THE COURT: That allows you, finds you in a position of lack of preparefdjness? “MR.

STEIN: Yes, Your Honor. Because of the new wording of the indictment, if you will note in the definition of kingpin, that the State has now inserted, they have inserted the word ‘or’ when talking about the definition of a kingpin. “I cite to the court State v. Beers, and they only cite— “THE COURT: Give me the words, read the sentence you’re referring to. “MR. STEIN: Yes, sir. Give me one moment, sir. if * ♦ * # * “MR.

STEIN: Well, in the definition in the indictment, they define a kingpin as a person who occupies a position of an organizer, supervisor, financier, or manager. End of quote. Because of the insertion of the word or, it makes the definition in the disjunctive, and I cite to the court State v. Beers, that although while not on all fours, is a case, an interesting case because it is close to the issue that I was going to get to. It makes me unprepared because I believe the defendant now has a real legal argument in addition to the constitutional argument.

And that is that he cannot be charged in a single count. Either he is an organizer or he’s a financier or he’s a manager, and I’m suggesting to the court that if that’s the State’s position, that they don’t know which he is— indeed he may be all of them according to the State — he’s entitled to an indictment that gives him a count, a drug kingpin count with each of those definitions in a separate count. “THE COURT: Oh, I don’t think so at all. I think all the State has to do is accomplish any of those positions. ⁶⁰⁸ It’s the same as a theft charge, or any other charge, which there are multitudinous situations and which you are familiar with as experienced counsel.” (Emphasis added.) This colloquy indicates that two issues were raised by appellant, both of which were rejected by the trial judge: (1) a request for a postponement; and (2) a request to dismiss the indictment as duplicitous. On appeal, appellant argues that the indictment was duplicitous because it charged him with several different acts stated in the disjunctive.

He argues that charging documents phrased in this manner violate the rule of duplicity set forth in Thanos v. State, 282 Md. 709 , 387 A.2d 286 (1978), and State v. Beers, 21 Md.App. 39 , 318 A.2d 825 (1974). As a preliminary matter, the State contends that this issue was not preserved for our review because appellant never formally moved to dismiss the indictment. We do not agree. The State is correct in pointing out that appellant never formally moved to dismiss the indictment for duplicity.

The State fails to recognize, however, that appellant raised the duplicity issue in the context of a request for a postponement. The trial judge, in response to appellant’s proffer, indicated not only his belief that appellant’s argument did not warrant a postponement, but indicated that, even if appellant was given time to research the issue, the trial judge would rule against him. Rule 8-131 restricts our review ordinarily to issues “raised in or decided by” the lower court. Appellant raised the duplicity issue and the trial judge, both on the merits and in the context of the request for a postponement, decided it.

That is as much as the Rule requires. We hold that this issue has been preserved for our review. It has long been held that a single count of a charging document may not charge a criminal defendant ⁶⁰⁹ with more than one offense. Ayre v. State, 21 Md.App. 61, 65 , 318 A.2d 828 (1974).

We also said in that case: “When a statute creates an offense and specifies several different acts, transactions, or means by which it may be committed, an indictment for violation thereof may properly allege the offense in one count by charging the accused in conjunctive terms with doing any or all of the acts, transactions, or means specified in the statute.” Ayre, 21 Md.App. at 65 , 318 A.2d 828 (emphasis added). In Beers, 21 Md.App. at 43 , 318 A.2d 825 , we applied this rule to a situation where a criminal statute set forth several different intents which were sufficient to constitute the crime: “We see no logical reason to require conjunctive allegation of the several means by which a crime is committed, as stated in Ayre v. State, supra, and the numerous authorities there cited, but to permit disjunctive allegation of the several intents with which it may be committed, as in the case before us.” Thus, a single count of a charging document may not charge, in disjunctive terms, the commission of several different acts or transactions, any one of which is sufficient to constitute the crime charged. What both parties to this appeal have failed to recognize, however, is that the duplicity is not, as in Beers and other duplicity cases, in the charging of the act constituting the offense, but in the definition of the term “kingpin.” While being a kingpin is part of the offense defined in Art. 27, § 286(g)(2), the phrase appellant objects to, “organizer, supervisor, financier, or manager,” is not a part of the substantive offense itself. Rather, it is part of § 286(g)(1), which defines the term “kingpin.” While appellant is correct in pointing out that the language of the indictment is stated in the disjunctive, the prohibition against such charging applies only to acts in and of themselves part of the offense charged.

The act charged here is not being an “organizer, supervisor, financier, or manager,” as stated in Art. 27, § 286(g)(1), but being a “kingpin ⁶¹⁰ who conspires” to do various things as stated in § 286(g)(2). Thus, the indictment was not subject to being