Singh v. State

Raghbir Singh v. State of Maryland, No. 3365, Sept. Term 2018. Opinion by Arthur, J. CRIMINAL PROCEDURE—CONSTITUTIONAL RIGHT TO SPEEDY TRIAL To evaluate whether a defendant has been denied the constitutional right to a speedy trial, the length of delay usually includes the entire period from an initial arrest or formal charge until trial. The starting point may be different when the State brings charges in an original indictment and then brings additional charges in a superseding indictment. As to any charge included in both the original indictment and the superseding indictment, the starting point is the date of the original indictment.

As to any charge added in the superseding indictment, the starting point is the date of the superseding indictment unless (1) the additional charge is based on the same conduct previously charged and (2) the State could have, with diligence, brought the additional charge at the time of the original indictment. Circuit Court for Montgomery County Case No. 134894C REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 3365 September Term, 2018 ______________________________________ RAGHBIR SINGH v. STATE OF MARYLAND ______________________________________ Berger, Arthur, Eyler, James R. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Arthur, J. ______________________________________ Filed: August 26, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-08-26 15:33-04:00 Suzanne C. Johnson, Clerk On July 11, 2017, Jennifer Johnson died from a drug overdose.

In March of 2018, a Montgomery County grand jury indicted Raghbir Singh for the murder of Johnson, distribution of heroin, and conspiracy to distribute heroin. In December of 2018, the grand jury issued a superseding indictment with additional charges related to the distribution of carfentanil.1 The State subsequently withdrew the original indictment. Singh moved to dismiss the charges against him, contending that the State had violated his constitutional right to a speedy trial. The Circuit Court for Montgomery County denied the motion, based on the premise that the period of delay did not begin until the grand jury issued the superseding indictment.

Singh entered a conditional guilty plea, reserving his right to seek appellate review of the denial of his motion to dismiss. In this appeal, Singh contends that the circuit court erred when it denied his motion to dismiss on speedy trial grounds. As explained in this opinion, we conclude that the court evaluated that motion based on an erroneous premise. Pursuant to Maryland Rule 8-604(d), we shall remand the case without affirming, reversing, or modifying the judgment.

The purpose of the remand proceedings is for the court to reevaluate the alleged violation of Singh’s right to a speedy trial. 1 This opinion uses the term “superseding indictment” because both parties have used that term. That term has no special meaning under the Maryland Code or Maryland Rules. Generally speaking, a superseding indictment is a “second or later indictment that includes additional charges or corrects errors in an earlier one.” Indictment, BLACK’S LAW DICTIONARY (11th ed. 2019). FACTUAL AND PROCEDURAL BACKGROUND A. The Death of Jennifer Johnson On June 11, 2017, Jennifer Johnson was found dead inside her apartment in Montgomery County.

Near her body, the police recovered drug paraphernalia (a syringe and a burnt spoon with residue) and her cell phone. Shortly before her death, Johnson had exchanged text messages with Amy Bormel. The text messages indicated that Bormel had arranged for a male acquaintance to deliver heroin to Johnson’s workplace in exchange for $40 in cash. A medical examiner later concluded that Johnson died as a result of a combined intoxication of carfentanil (an analogue of the synthetic opioid fentanyl), alprazolam (an anti-anxiety medication), and free morphine.

According to the State’s discovery disclosures, “heroin breaks down to free morphine” inside the human body. B. Controlled Purchase of Heroin from Bormel On June 12, 2017, the day after Johnson’s death, police officers worked with a confidential informant to arrange a controlled purchase of heroin from Bormel. The officers observed Bormel leaving her residence with Raghbir Singh, who drove Bormel into Baltimore City. Later, on a phone call, Bormel told the informant that she was taking her “man” to a doctor’s appointment.

Bormel asked to meet the informant at a shopping center near the doctor’s office. Bormel alone met the informant and exchanged heroin for cash. Afterwards, the officers arrested Bormel and recovered another bag of heroin from her person. Based on its appearance, the officers believed that the heroin was mixed with 2 carfentanil.

The officers also arrested Singh while he was standing outside the doctor’s office and seized a cell phone from his person. Separately, Bormel and Singh made recorded statements in custody. The officers obtained a warrant to search Bormel’s residence, where they seized phones and electronic devices. A few weeks later, the officers obtained a warrant to search the devices for evidence of the distribution of heroin or carfentanil.

C. Charges Associated with the Controlled Purchase from Bormel On June 13, 2017, one day after the arrests, the State brought charges against Bormel and Singh in the District Court of Maryland for Montgomery County. Bormel was charged with distribution of a controlled dangerous substance, possession of a controlled dangerous substance with intent to distribute it, and possession of a controlled dangerous substance. Singh was charged with conspiracy to distribute a controlled dangerous substance and conspiracy to possess a controlled dangerous substance with intent to distribute it. At the State’s request, Singh was held without bond.

The district court forwarded both sets of charges to the Circuit Court for Montgomery County, where the State obtained indictments against Bormel and Singh. The indictment against Bormel charged her with two counts of distribution of a controlled dangerous substance, three counts of possession of a controlled dangerous substance with intent to distribute it, and one count of possession of a controlled dangerous substance.2 The indictment against Singh alleged that he had conspired with 2 The indictment against Bormel is not part of the record in this appeal. The docket entries do not specify the substances that she was accused to have distributed. 3 Bormel to distribute heroin, to distribute carfentanil, and to possess heroin with intent to distribute it. At the time of his arrest, Singh had been released on bond pending a trial on unrelated burglary charges.

On February 13, 2018, Singh entered a guilty plea in that case to one count of second-degree burglary. Singh received a sentence of 10 years of imprisonment, with all but three years suspended. Singh began serving the remainder of that sentence at a correctional facility in Washington County. The circuit court scheduled the trial on the charges against Singh to begin on February 28, 2018.

Singh moved to suppress physical evidence seized upon his arrest (i.e., his cell phone) and the statement that he made in custody. At a hearing on February 23, 2018, the court determined that police officers had arrested Singh without probable cause, and thus that the evidence obtained as a result of the arrest must be suppressed. One week later, when the trial was scheduled to begin, the State entered a nolle prosequi as to the charges against Singh. The prosecutor stated that the State was unable to proceed because it had lost contact with the informant.

Based on her sale of heroin to the informant, Bormel entered a guilty plea to one count of distribution of a controlled dangerous substance on April 18, 2018. The court sentenced Bormel to 10 years of imprisonment and suspended all but one year of that sentence. D. Original Indictment for the Killing of Johnson On March 29, 2018, a Montgomery County grand jury issued indictments against Bormel and Singh for the killing of Johnson and for heroin distribution. 4 The indictment against Singh included three counts. The first count alleged that Singh “feloniously killed Jennifer Johnson[.]” This count used the statutory short form of an indictment for murder or manslaughter.3 The second count alleged that Singh unlawfully distributed heroin.

The third count alleged that Singh conspired with Bormel to distribute heroin. At the State’s request, the circuit court issued a bench warrant authorizing Singh’s arrest in Montgomery County. The State later asked the court to recall that warrant because Singh was incarcerated in Washington County, serving the sentence for his burglary conviction. The State secured Singh’s presence for subsequent court appearances by obtaining writs directing the Maryland Correctional Transportation Unit to transport him to the Montgomery County courthouse.

Counsel entered an appearance on behalf of Singh and filed, among other things, a written demand for a speedy trial. During discovery, the State disclosed an autopsy report, in which the medical examiner concluded that Johnson died from a combined intoxication of carfentanil, alprazolam, and free morphine.4 Over the State’s objection, the court ordered the State to submit a bill of particulars. In response, the State alleged that, on July 11, 2017, Singh “caused the death of Jennifer Johnson” through “his involvement in the sale of heroin and carfentanil to Ms. Johnson.” The State alleged that, on that date, Singh and Bormel had “conspired to 3 See Md. Code (2002, 2012 Repl. Vol.), § 2-208 of the Criminal Law Article. 4 The record does not disclose the date of the medical examiner’s report. 5 distribute heroin and carfentanil to Johnson” and that Singh had “provided heroin and carfentanil” to Johnson.

The State wrote that Singh was “charged with murder under the theory of depraved heart murder[,]” based on the allegation that he “acted with extreme disregard for the life of Ms. Johnson and the potential consequences of the distribution of heroin and carfentanil.” The State initially moved for a joint trial against both Bormel and Singh. At a hearing in July of 2018, however, the State withdrew that motion. The prosecutor explained that the State preferred to try the defendants separately because the State intended to offer the statements that each of them made after their arrests. The prosecutor acknowledged that the State intended to “relitigate” the admissibility of Singh’s statement, which had already been suppressed in the previous case.

The State then requested a postponement of the trial against Singh. After a scheduling discussion with counsel, the trial judge determined that the next available date for the beginning of a four-day trial would be in January of 2019. The trial judge observed that a postponement until that time would cause the trial to begin after the 180- day time period prescribed by Md. Rule 4-271.5 The trial judge referred the postponement request to the administrative judge. Defense counsel told the administrative judge that Singh “did not want to wait” until January 2019 for his trial.

The administrative judge asked Singh himself whether he 5 The trial of a criminal case in the circuit court must begin no later than 180 days after the earlier of the appearance of counsel or the first appearance of the defendant before the circuit court. Md. Rule 4-271(a). For good cause shown, the administrative judge may postpone the trial beyond that 180-day period. Id. 6 would waive his right to have his case tried within the 180-day time period, and Singh replied: “I wish to be tried within 180 days.” Finding that “good cause” existed for the postponement, the administrative judge postponed the trial until January 14, 2019.6 E. The Superseding Indictment At a hearing on December 14, 2018, one month before the rescheduled trial date, the prosecutor said that the State wished to “put on the record” that Singh had rejected an offer to plead guilty to heroin distribution in exchange for “a sentence in the seven to ten year range.” The prosecutor then announced that the State would seek “a superseding indictment” that would include additional charges for the distribution of carfentanil, which might result in “an additional 20 year maximum” sentence, and the distribution of a mixture of heroin and carfentanil, which might result in “an additional ten years.”7 The prosecutor said that the State planned to “make a plea offer” to Bormel and “potentially ask her to testify” against Singh, but that these actions “had not been done yet.” The prosecutor concluded: “We simply did not do the superseding indictment before today to 6 The record is unclear regarding the defense’s position on the postponement request.

Almost immediately after Singh declined to waive his right to be tried within the 180-day period, the administrative judge asked whether it was “correct” to say that “the defense [wa]s not objecting to the postponement.” Defense counsel replied, “That’s correct.” 7 Effective May 25, 2017, the General Assembly created an additional offense, with a penalty of up to 10 years of imprisonment, for the knowing distribution of fentanyl, any analogue of fentanyl, or a mixture that contains heroin and a detectable amount or fentanyl or any analogue of fentanyl. See 2017 Md. Laws ch. 569 (enacting § 5-608.1 of the Criminal Law Article). 7 give [Singh] an opportunity to have one last chance at the plea offer.” In response, defense counsel “object[ed] to any postponement of the trial date[.]” Defense counsel added that Singh wanted to “have his day in court as soon as possible.” On December 20, 2018, the grand jury issued an eight-count superseding indictment against Singh.8 The first two counts charged Singh with second-degree murder of Johnson and involuntary manslaughter of Johnson. The next three counts alleged that Singh distributed heroin, distributed carfentanil, and knowingly distributed a mixture that contained heroin and carfentanil. The final three counts alleged that Singh conspired with Bormel to distribute heroin, to distribute carfentanil, and to distribute a mixture that contained heroin and carfentanil.

The court assigned a new case number in connection with the superseding indictment. In that case, the State requested a hearing to establish bond conditions. The State asserted that, “[i]n the previous case,” Singh “never had bond conditions set” because he was incarcerated for the sentence on his burglary conviction. The State informed the court that Singh was scheduled for release under the terms of that sentence.

The State asserted that “[o]nce bond conditions [were] in place,” the State would enter a nolle prosequi as to the charges from the original indictment. On January 3, 2019, Singh appeared for a hearing in the case associated with the original indictment. The State entered a nolle prosequi as to the charges from the original indictment. Defense counsel “strenuously object[ed] to the entry of a nolle prosequi” and 8 Along with the entry of appearance of counsel on behalf of the State, the State filed a line informing the clerk of the circuit court: “This is a superseding indictment.” 8 noted that Singh had previously asserted his right to a speedy trial.

The court proceeded to establish bond conditions in the case resulting from the superseding indictment. The court set the bond amount at $100,000 and imposed additional conditions for supervision in the event that Singh might be released on bond before his trial. In the new case, defense counsel filed a written demand for a speedy trial. Defense counsel renewed the discovery requests that it had made in the earlier case.

In response, the State wrote that “[d]iscovery materials regarding the [new] case have been provided” to the defense “in the related case.” The State said: “All discovery was provided in that case and the State is adopting that same discovery.” F. Motion to Dismiss on Speedy Trial Grounds The court scheduled a five-day trial on the charges in the superseding indictment to begin on May 13, 2019. Singh moved to dismiss the charges against him, contending that the State had violated his constitutional right to a speedy trial. In support of his motion, Singh argued that the “starting point” for measuring the length of delay was either July 12, 2017, when he was arrested for suspected involvement in Bormel’s sale of heroin to the informant, or March 29, 2018, when he was first indicted for the killing of Johnson. Singh contended that, using either starting point, the length of delay was presumptively prejudicial and resulted in a violation of his right to a speedy trial.

Singh further contended that the State “intentionally circumvented the scheduled trial date . . . by filing a superseding indictment.” Singh argued that the purpose of the superseding indictment was to subject him to “penalty enhancement” after 9 he had rejected the State’s plea offer. Opposing the motion, the State contended that, for the purpose of assessing Singh’s right to a speedy trial, the period of delay did not begin until December 20, 2018, the date of the superseding indictment. The State asserted that the “superseding indictment was filed in good faith to allow the State to proceed on additional charges[.]” The State argued that the subsequent nolle prosequi of the original indictment had the effect of “restart[ing] the speedy trial clock.” On February 19, 2019, the circuit court heard arguments on Singh’s speedy trial motion. During the hearing, the court asked the prosecutor to explain why the State had pursued the additional charges.

The prosecutor said that the superseding indictment included three additional counts for conspiracy “because the State in the meantime . . . was able to secure the testimony of Ms. Bormel against Mr. Singh[.]” The prosecutor said that the State, through the superseding indictment, was “simply . . . presenting a different theory of the case with the conspiracy charges[.]” According to the prosecutor, after Bormel “agreed that she would testify” against Singh, the State was “able to proceed on a conspiracy theory[.]”9 Defense counsel disputed the premise that the State had “secured” Bormel’s testimony before the date of the superseding indictment. The prosecutor acknowledged that, as of that time, prosecutors were merely in “[d]iscussions” from which it “appeared” 9 The prosecutor’s arguments relied on the incorrect premise that the original indictment did not include the conspiracy charge. In fact, the original indictment had already charged Singh with conspiring with Bormel to distribute heroin. 10 that they might reach a plea agreement with Bormel. Defense counsel argued that the purpose of the superseding indictment was to use the threat of additional penalties “to get the attention” of Singh after he rejected the State’s plea offer.

Defense counsel asserted that, in fact, there was no change in the prosecution’s theory, as the State previously submitted a bill of particulars alleging that Singh and Bormel distributed heroin and carfentanil to Johnson. The circuit court concluded that State did not “deliberately” enter the nolle prosequi as to the original indictment for the purpose of “avoid[ing] a speedy trial problem[.]” The court said that, according to the prosecutor’s proffer, the State added the new counts in “anticipation of new evidence which would have been the testimony of Ms. Bormel[.]” The court concluded that the relevant timeframe was the period after “the [superseding] indictment . . . and not any prior indictment.” Observing that only two months had elapsed since the issuance of the superseding indictment, the court said that it did not “believe that the timeframe ha[d] been reached whereby prejudice analysis even begins to occur[.]” On that basis, the court denied Singh’s motion to dismiss. G. Judgment Resulting from Singh’s Conditional Guilty Plea At the same hearing in which the court denied the motion to dismiss, the parties informed the court that Singh had agreed to enter a conditional plea of guilty. Singh reserved his right to seek appellate review of the adverse ruling on his motion to dismiss 11 on speedy trial grounds.10 Singh agreed to plead guilty to the charge of involuntary manslaughter from the second count of the superseding indictment.

The State agreed to a “six-year cap on incarceration,” with credit for time served since Singh’s arrest on July 12, 2017. The court accepted the conditional guilty plea and sentenced Singh to 10 years of imprisonment, with all but six of those years suspended, with credit for one year and 223 days of time served. The court also imposed five years of supervised probation. The State entered a nolle prosequi as to the remaining counts.

Thereafter, Singh noted a timely appeal.11 Meanwhile, on February 21, 2019, Bormel entered a guilty plea to one count of distribution of a controlled dangerous substance, based on her role in the sale of heroin to Johnson. The court sentenced Bormel to 20 years of imprisonment, suspended all but 187 days of time served, and imposed five years of supervised probation. DISCUSSION This appeal presents a single question: “Did the circuit court err in denying 10 Maryland Rule 4-242(d)(2) permits a defendant to enter a conditional plea of guilty with consent of the court and the State. As part of the conditional plea, “the defendant may reserve the right to appeal one or more issues specified in the plea that (A) were raised by and determined adversely to the defendant, and, (B) if determined in the defendant’s favor would have been dispositive of the case.” Id.

This right of appeal “is limited to those pretrial issues litigated in the circuit court and set forth in writing in the plea.” Id. 11 While this appeal was pending, the Court of Appeals issued its opinion in State v. Thomas, 464 Md. 133 (2019). The Court held that, in some circumstances, evidence that the defendant sold heroin to a person who later died from an overdose may sustain a conviction for involuntary manslaughter. Id. at 139-40 . 12 [Singh’s] motion to dismiss on constitutional speedy trial grounds?” Singh contends that the circuit court used the incorrect time period to evaluate his right to a speedy trial. He asks this Court to remand the case for a new hearing on the motion to dismiss.

In all criminal prosecutions, the accused has the right to a speedy trial. U.S. Const. amend. VI; Maryland Declaration of Rights art. 21. This guarantee serves “‘to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.’” United States v. Loud Hawk, 474 U.S. 302, 312 (1986) (quoting United States v. Ewell, 383 U.S. 116, 120 (1966)).

The remedy for a violation of this right is dismissal of the charges. See, e.g., Betterman v. Montana, 578 U.S. ___ , ___, 136 S. Ct. 1609, 1615 (2016). This Court reviews “without deference a trial court’s conclusion as to whether a defendant’s constitutional right to a speedy trial was violated.” Howard v. State, 440 Md. 427, 446-47 (2014). Although we make “our own independent constitutional analysis[,]” we accept the trial court’s “findings of fact unless clearly erroneous.” Glover v. State, 368 Md. 211, 220-21 (2002).

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