Nottingham v. State

SHARER, J. In January 2013, at the conclusion of a night of drinking at an Ocean City tavern, appellant, George Doran Nottingham, got into a fight with his friend, Michael Post. That fight concluded when Nottingham “sucker punched” Post, causing Post to fall and suffer fatal head injuries. An indictment was returned in the Circuit Court for Worcester County, charging Nottingham with assault in the second degree and involuntary manslaughter for his role in Post’s death. A jury trial ensued, in August 2013, but ended in a mistrial.

Trial was re-scheduled for December of that year. Shortly before the scheduled retrial, the State entered a nolle prosequi to the original indictment and thereafter obtained a new indictment, charging Nottingham with involuntary manslaughter, assault in the second degree, reckless endangerment, intoxication, and affray. Following a second jury trial, Nottingham was convicted of all charges except intoxication. 1 The circuit court imposed a sentence of seven years’ imprisonment for involuntary manslaughter and concurrent five-year sentences for each of the other convictions. Nottingham ⁵⁹⁹ thereafter noted this appeal, raising the following questions, which we have re-cast: I. Whether the circuit court erred in instructing the jury on the crime of affray; and II.

Whether Nottingham’s right to a speedy trial was violated, where the State delayed his retrial by postponing his case and opportunistically re-charging him. We hold that the circuit court erred in omitting an element of the crime of affray from its jury instruction and that the error, under the circumstances of this case, was not harmless, as to the affray charge. Because, however, that error had no effect on the verdicts for second-degree assault and reckless endangerment, either of which was a valid predicate offense underlying the manslaughter conviction, we affirm the remaining convictions. We further hold that Nottingham’s right to a speedy trial was not violated.

Accordingly, we shall vacate his conviction for affray, affirm all other judgments of conviction, and remand for further proceedings. FACTUAL BACKGROUND Most of the facts in this case are not in dispute, as there were surveillance cameras in and outside of the bar where the crimes occurred, and film footage obtained from those cameras was admitted into evidence at Nottingham’s trial. Where there may be any differing inferences to be drawn from those facts, we present them in a light most favorable to the State. Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979).

During the evening of January 25, 2013, Nottingham, Post, and a third friend, Robert Jackson, were drinking together in the Harbor Inn, a bar in Ocean City. Shortly before closing time, in the early morning of January 26, what had been, in the words of the bartender, Herbert “Buddy” Groff, “kidding around and playing” turned into a fight when Post and Jackson took Nottingham’s cell phone and hid it from him. According to one witness, William Wilkens, Nottingham then ⁶⁰⁰ began to look “all over” for his phone, “throwing bar stools” and hurling obscenities. He eventually discovered that Post had the phone and demanded to know why Post had not so informed him.

Then, in Wilkens’s words, “stupidity ensue[d].” Nottingham “pushed” or “bumped” Post in the chest. Post, in turn, “got aggravated” and pushed Nottingham back. Nottingham also punched Post several times, including at least once in the face, and also pushed Wilkens in the “[c]hest or throat” area. Groff then intervened, telling Nottingham to “just stop it.” As it was approximately 1:40 a.m.

(twenty minutes before closing), Groff, after separating the men, asked “Mike Post to go out the front door,” asked “Robert Jackson to go out the back door,” and allowed Nottingham to remain, “because he had the tab” for all three men that evening. As Post left, he, in the words of Wilkens, “flipp[ed] off’ Nottingham. Nottingham “paid his tab” and remained in the bar for a few minutes, when he approached the front of the bar, near the front door. Groff moved to block Nottingham from leaving, standing between him and the bar and suggesting that Nottingham leave through the back door instead.

Nottingham told Groff that he “just want[ed] to go home,” and Groff, seeing no one outside, relented and allowed Nottingham to leave. Unbeknownst to Groff, Post was still outside. Upon seeing Post, Nottingham punched him once in the face, knocking him to the ground and causing him to land on his head. According to the pathologist from the Office of the Chief Medical Examiner who performed the autopsy on Post, the cause of death was the head injury he sustained from that fall.

Shortly afterward, Nottingham went back inside the bar and told the people inside that Post had “slipped” and fallen. Nottingham, Jackson, and Wilkens went outside and tried unsuccessfully to revive Post. Groff called an ambulance, but Post was pronounced dead at 2:20 a.m. After the first jury trial resulted in a mistrial, a new trial was scheduled for October 10, 2013, but the State moved for a ⁶⁰¹ continuance, a request which was granted over defense objection. 2 A new trial date of December 10, 2013, was set.

Shortly before that date, the State entered a nolle prosequi to the original indictment and thereafter, on December 17, 2013, obtained a new indictment, charging Nottingham with involuntary manslaughter, assault in the second degree, reckless endangerment, intoxication, and affray. Nottingham moved to dismiss, on the ground that his right to a speedy trial had been violated. After a hearing, on February 14, 2014, the circuit court denied that motion. The case was ultimately retried, before a jury, on June 16, 2014, and Nottingham was convicted of involuntary manslaughter, assault in the second degree, reckless endangerment, and affray. 3 Additional facts will be noted as pertinent to discussion of the issues.

DISCUSSION I. The affray instruction The court instructed the jury on the offense of affray as follows: The Defendant remains charged with the crime of affray. In order to convict the Defendant of affray, the State must prove that the Defendant willfully engaged in a fight with [the victim] in a public place. Nottingham contends that the trial court erred in overruling his objection to the jury instruction given for affray. He raises two distinct claims of instructional error: first, that there was insufficient evidence of either mutual combat or ⁶⁰² terror to the public and that, therefore, the instruction given was not generated by the evidence; and second, that the circuit court, in adopting the State’s proposed affray jury instruction, omitted an element of the crime of affray from the instruction — namely, that to convict a defendant of an affray, the State must prove that the fighting was “to the terror of the people.” We begin with the question whether the instruction given was a correct statement of the law and conclude that it was not.

We next consider and reject Nottingham’s claim that no affray instruction was appropriate in light of the evidence (or lack thereof). Finally, we address the effect of the instructional error on the verdicts. A. Affray Affray is “the fighting together of two or more persons, either by mutual consent or otherwise, in some public place, to the terror of the people.” Dashiell v. State, 214 Md.App. 684, 689 , 78 A.3d 916 (2013) (citation and quotation omitted). Although affray shares common elements with common law assault and battery, it is, unlike assault and battery, not a crime against the person; rather, affray is “a crime against the public and its aim is to protect the peace.” Hickman v. State, 193 Md.App. 238, 252 , 996 A.2d 974 (2010).

Hickman involved facts not dissimilar to those before us in this appeal, i.e., a barroom fight escalating into the death of one of the participants. Writing for the Court, Judge Arrie Davis, observed that the case was “one of first impression, namely, whether the common law crime of an affray exists in Maryland[.]” Hickman, 193 Md.App. at 247 , 996 A.2d 974 . Discussing the crimes of assault and battery, vis a vis, the then-recent legislative re-codification of those common law offenses into statutory offenses, the Court held that affray remains as a viable, chargeable common law offense in Maryland. In so holding, the Court pointed out that “[u]nlike other states, which have codified the common law offense of affray, ⁶⁰³ Maryland has not and, therefore, if the offense exists, it is clearly only as a matter of common law.” Id. at 248 , 996 A.2d 974 .

The Court further observed that “Maryland case law does demonstrate that common law affray has, historically, been a chargeable common law offense.” Id. at 249 , 996 A.2d 974 . Because the offense remains viable in Maryland, the “public place” and “terror to the people” elements remain likewise viable. “The ‘public place’ and ‘terror to the people’ elements of affray are closely related,” and “evidence that a fight occurred in a ‘public place’ may be sufficient to establish, ipso facto, that the fight resulted in ‘terror to the people.’” Dashiell, 214 Md.App. at 690 , 78 A.3d 916 . To prove the “terror to the people” element, the State “need only show that the acts and surrounding circumstances were ‘likely to strike terror in anyone,’” not that they “actually” have “in any specific individual.” Id. at 691 , 78 A.3d 916 (quoting Schlamp v. State, 390 Md. 724, 737 , 891 A.2d 327 (2006)). In Dashiell , we sought to clarify the relationship between the “public place” and “terror to the people” elements of affray, relying on Lewis Hochheimer’s treatise, in which he stated that, as to affray, “[tjerror need not actually exist among the people”; rather, “[i]n a legal sense, fighting in public is to the terror of the people.” Dashiell, 214 Md.App. at 691 , 78 A.3d 916 (quoting Lewis Hochheimer, The Law of Crimes and Criminal Procedure, ch. 36, § 243, at 281 (2d ed. 1904)). 4 It appears that this comment was interpreted by the State, in requesting the instruction, and by the trial court, in ⁶⁰⁴ giving the instruction, so as to obviate altogether the “terror to the people” element of affray.

Nonetheless, “public place” and “terror to the people” are distinct elements of the crime of affray, both of which, like any element of a charged offense, must be proven by the State, beyond a reasonable doubt. Indeed, the early common law commentators appear to have been in substantial agreement that affray consists not only of fighting in a public place, but that such fighting must be “to the terror of his majesty’s subjects.” 4 Sir William Blackstone, Commentaries on the Laws of England 144 (New ed. 1825); accord 3 Joseph Chitty, A practical treatise on the criminal law: comprising the practice, pleadings, and evidence, which occur in the course of criminal prosecutions 821 n.(x) (3d Am. ed. 1836) (“An affray is a public offence to the terror of the king’s subjects---Every assault does not include an affray, as where the assault does not terrify the people in general, it being committed in private[.]”); 1 William Hawkins, Pleas of the Crown 487 (8th ed. 1824) (“It is said, that the word ‘affray’ is derived from the French word effraier, to terrify, and that, in a legal sense, it is taken for a public offence to the terror of the people.”). Subsequent cases establish that, to prove an affray, the State must, at minimum, show that the fighting and surrounding circumstances were likely to result in terror to the public. 5 Two decisions are instructive in that regard: State v. Heflin, 27 Tenn. 84 (1845), and Carwile v. State, 35 Ala. 392 (1860). In Heflin, the Supreme Court of Tennessee addressed the sufficiency of an indictment charging an affray, which failed to expressly allege that the fight occurred in a public place.

The indictment in that case stated that Bartlett Travis and William Heflin, late of the county of Montgomery, laborers, on the twenty-second day of February, one thousand eight hundred and forty-six, with force and arms, in the county aforesaid, an affray did make by ⁶⁰⁵ then and there fighting together in the town of Clarksville, greatly to the terror of the good people[.] Id. at 84-85. In holding that the indictment was insufficient, the Court observed that there may be an assault which will not amount to an affray, as where it happens in a private place out of the hearing or seeing of any except the parties concerned, in which case it cannot be to the terror of the people. Id. at 85-86 (quoting 1 Hawkins, supra, at 487). Not only did the Tennessee Supreme Court hold that to “constitute an affray, a necessary and indispensable ingredient is that the fighting must be in some public place,” id. at 85, it further held that the omission of the “public place” element necessarily meant that the indictment did not sufficiently allege that the fighting “be to the terror of the people,” despite the fact that the indictment itself contained similar “terror” language.

We conclude that, considering Heflin, an indictment charging affray must expressly state both that the fighting occurred in a public place and that it tended to cause terror to the people. In Carwile v. State, supra, 35 Ala. 392 , the Supreme Court of Alabama addressed whether “a place within an enclosed lot, ninety feet from a street” in a town, and “which could be seen from the street, is a public place, according to the import of the phrase in the common-law definition of an affray.” Id. at 393. In concluding that it was, the Court noted that the “distinguishing characteristic of an affray is the terror to the people actually resulting, or presumed to result, from the fighting in a public place,” and that, under the circumstances before it, “[tjerror to the people” could be “presumed from the fighting in a public place.” Id. at 394. Although Carwile held that terror could be presumed from the fact that fighting occurred in a public place, it did not countenance omission of the “terror to the people” element from a jury instruction, nor is it plausible that it could have, given its ⁶⁰⁶ characterization of that element as the “distinguishing characteristic of an affray.” As we made clear in Hickman , An affray is an aggravated disturbance of the public peace and is an offence exclusively against the public.

An affray is, therefore, characterized as a public disturbance, a crime against the public and its aim is to protect the peace.... As stated by the renowned authority on the English common law, Sir Matthew Hale, “An assault is but a wrong to the party, but an affray is a wrong to the Commonwealth.” 193 Md.App. at 252-53 , 996 A.2d 974 (internal citations, quotations, and footnote omitted). In the instant case, the trial court omitted any mention of the “terror to the people” element from its instruction to the jury as to the crime of affray. In so doing, the trial court erred.

B. The instruction The State submitted a requested instruction to the trial court, based, the prosecutor asserted, on the language of Dashiell . The court ultimately instructed the jury, based on the State’s request, that [t]he Defendant remains charged with the crime of affray. In order to convict the Defendant of affray, the State must prove that the Defendant willfully engaged in a fight with [the victim] in a public place. Defense counsel objected, not to the particular language of the instruction, but to the giving of the affray instruction at all, arguing that the evidence did not support the instruction.

In the discussion of the State’s proposed instruction, the following, turning on the import of Dashiell , was said: [PROSECUTOR]: ... Dashiell[ ] deals squarely with the issue. The issue before the Court was whether or not the State needed to prove that it was to the terror of the public, which is what common law — the language of common law. ⁶⁰⁷ The Court, in Dashiell, stated that it need not be to the terror of the public, that ipso facto, if it happens in a public place, a fight is terror to the public. That is the square holding of Dashiell.

THE COURT: Wait a minute now. But it says in a public place to the terror of the'people. [PROSECUTOR]: That is the common law language, but Dashiell deal[t] with that issue. Because the issue before the Court in Dashiell was whether or not the State needed to prove that there were people in terror, because they had not. The Court of Special Appeals said that they need not show that there was any terror to the public, that ipso facto, if there is a fight in a public space, it is considered terror to the public, it need not be part of the elements the state need prove.

And that is the square holding of Dashiell. THE COURT: It’s a question, what is meant by, to the terror of the people? I think what [Defense Counsel] is saying, that phrase to the terror of the people means there must be a public disturbance that must affect the people. But I understand reading the case, it was an or conjunction, either in a public place or to the terror of the people.

It means, if you’ve got one or the other of them, you’ve got the instruction, so I read the case. So, I will accept your instruction on affray. As we have concluded, the instruction, by omitting the “to the terror of the people” element, was erroneous. The State’s reliance on Dashiell in its urging of the instruction given was misplaced.

Dashiell was charged, not with affray, but with involuntary manslaughter. Our discussion concluded that Dashiell was entitled to an instruction that self-defense was a defense to affray, to the extent that affray was an underlying element of the involuntary manslaughter charge. Thus, we reaffirm that affray is a viable common law offense in Maryland and that, when charged, and if the evidence justifies, a defendant is entitled to an instruction that contains ⁶⁰⁸ both inherent elements of the crime — “in a public place” and “to the terror of the people.” C. Sufficiency of the evidence as to affray We next address Nottingham’s claim that there was insufficient evidence of either mutual combat or terror to the people and that, consequently, no affray instruction was appropriate in this case. 6 Claims of instructional error are governed by Maryland Rule 4-325, which provides in part: (c) How Given. The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding.

The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not ⁶⁰⁹ grant a requested instruction if the matter is fairly covered by instructions actually given. (e) Objection. No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.

Upon request of any party, the court shall receive objections out of the hearing of the jury. An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object. Rule 4-S25(c) requires that a trial court give a requested jury