State v. Ferguson

J. FREDERICK SHARER, J. (Retired, Specially Assigned) In these consolidated appeals, the State challenges related decisions by the Circuit Court for Baltimore City to dismiss two indictments charging Devin Ferguson, appellee, with handgun offenses. In August 2011, the State indicted Ferguson on three firearms charges, including two counts of possessing a firearm after having been convicted of a disqualifying crime. When the parties appeared for trial in February 2012, Ferguson complained that the indictment failed to identify his predicate conviction and contained other ambiguities, but trial was postponed for lack of a courtroom.

In the interim before the rescheduled trial date, Ferguson filed a motion to dismiss the indictment, and the State, “out of an abundance of caution,” obtained a superseding indictment charging him with the same offenses, specifying the predicate conviction, and eliminating the ambiguities about which Ferguson complained. We shall refer to the original indictment as the 2011 Indictment and the superseding indictment as the 2012 Indictment. When the parties appeared on the rescheduled trial date, the prosecutor advised that the State was prepared either to proceed on the 2011 Indictment, to amend that indictment, or to nol pros the original indictment and proceed on the 2012 Indictment. The circuit court disapproved of the State having filed the superseding indictment without notifying either the court or defense counsel until the parties appeared for trial. ⁶⁷⁴ The court ruled that the 2011 Indictment was defective and dismissed it “with prejudice.” The State appeals that judgment, in No. 576, Sept. Term 2012.

Ferguson thereafter moved to dismiss the 2012 Indictment on the ground that dismissal of the 2011 Indictment “with prejudice” precludes the State from proceeding on the 2012 Indictment. The court granted the motion. The State appeals that judgment, in No. 2184, Sept. Term 2012. These consolidated appeals collectively present the following questions: 1.

Did the court err in dismissing the 2011 [Ijndictment against Ferguson “with prejudice”? 2. Did the court err in dismissing the superseding 2012 [Ijndictment against Ferguson? We answer both questions “yes,” agreeing with the State that the circuit court erred in dismissing the original 2011 Indictment “with prejudice” and in dismissing the superseding 2012 Indictment on the basis of that erroneous ruling. FACTS AND LEGAL PROCEEDINGS When Ferguson was arrested on August 2, 2011, he was allegedly in possession of a handgun.

On August 30, 2011, a Baltimore City grand jury indicted him on three charges: Count 1: possessing a regulated firearm after having been convicted of a disqualifying crime of violence or drug crime, in violation of Md.Code, § 5—133(c) of the Public Safety Article; Count 2: wearing, carrying, or transporting a handgun, in violation of Md.Code, § 4-203 of the Criminal Law Article (“Crim.”); and Count 3: possessing, owning, carrying, or transporting a firearm after having been convicted of a felony, in violation of Crim. § 5-622(b). This 2011 Indictment, filed in Case No. 11242001, was scheduled for trial on February 17, 2012. ⁶⁷⁵ On that date, before jury selection began, defense counsel complained that Counts 1 and 3 of the 2011 Indictment failed to identify the predicate disqualifying conviction. The prosecutor acknowledged the omission but argued that the indictment was not defective because of it and informed the court that Ferguson’s disqualifying conviction was for possession of a controlled dangerous substance with intent to distribute. Although both sides were prepared for trial, no court was available, and trial was postponed until April 6, 2012.

Explaining that it did not have time to conduct a full hearing on Ferguson’s oral motion to dismiss Counts 1 and 3, the court advised defense counsel to file a written motion, which was likely to be heard on the rescheduled trial date. Defense counsel did so on February 27, 2012. Instead of filing a written response to that motion, as would have been appropriate, the State obtained, on March 30, 2012, a superseding indictment that identified the predicate conviction and clarified other language. When the parties appeared on April 6, 2012, defense counsel complained that he had not been served with the new indictment and had only learned of its existence the previous day at 4:30 p.m., when he received an email with an attachment that he could not open.

Defense counsel again asked the court to dismiss Counts 1 and 3 of the 2011 Indictment and to send the case out for trial on Count 2. The prosecutor explained that she did not file an opposition because, based on the court’s earlier remarks, her impression was that “you were going to let the trial court decide that issue.” She maintained that the original 2011 Indictment was not defective and that the 2012 Indictment had been filed “in an abundance of caution” after defense counsel challenged the 2011 Indictment. She advised that Ferguson was scheduled to be arraigned on the 2012 Indictment on May 16, 2012. In light of defense counsel’s complaints, the prosecutor suggested that Ferguson had a choice between (1) proceeding to trial that day, either on the original 2011 Indictment or an amended version of it substantially in the form of the 2012 Indict ⁶⁷⁶ ment; and (2) awaiting arraignment on the 2012 Indictment, then proceeding to trial in that case.

The court inquired whether the State would enter a nolle prosequi on Count 2, and defense counsel inquired whether Ferguson would be released from custody if all of the charges in the first case were either dismissed or nol prossed. The prosecutor responded that if trial did not proceed that day on all counts of the 2011 Indictment, the State would nol pros any remaining counts and continue to hold Ferguson under the 2012 Indictment, which was linked to the same tracking number as the original indictment. Defense counsel insisted that it would be “completely unfair” to “step back into arraignment court on this,” in light of the fact that Ferguson would remain incarcerated, the defense had six witnesses prepared to testify that day, and the case had already been postponed beyond the Hicks deadline. At that point, the court inquired why the State had obtained the superseding indictment, pointing out that the omission of the predicate conviction in the original indictment should have been corrected “way before” the rescheduled trial date.

The Assistant State’s Attorney reiterated that the State believed that the original indictment was not defective and proffered that the State identified the predicate conviction in discovery filed on November 11, 2011. She explained that she filed the superseding indictment at the direction of her supervisor “in the event that the Court believes that my counts are defective.” Dissatisfied with that response, the court instructed the Assistant State’s Attorney to get her supervisor. A Deputy State’s Attorney appeared and also took the position that Count 1 was not defective, because it was not necessary to specify the predicate conviction, which in any event had been identified in discovery. As to Count 3, she acknowledged, “that is not that [sic] way we would typically charge a case,” but argued that the charging language was not defective, while conceding that the argument “is more attenuated than the latter.” ⁶⁷⁷ The court strongly criticized the State for obtaining a superseding indictment without notifying the court or defense counsel until the rescheduled trial date.

On Ferguson’s motion to dismiss Counts 1 and 3 of the 2011 Indictment, the court ruled as follows: I do believe that the indictment, let’s see, counts I and III are defective. I do believe that Counsel for defense gave State satisfactory notice that there is to be an argument for it. And the State chose to, instead of advising the Court of its argument in writing or orally at some point before the day of trial, which is today, decided to, on its own, file a superseding indictment believing that this Court would simply allow a superseding indictment to come in at some point in time when there was already a case set for trial. This Court will not allow that.

This indictment, counts I and III are dismissed with prejudice. (Emphasis added.) The prosecutors nonetheless advised the court that they intended to proceed on the 2012 Indictment and that Ferguson would be held under that indictment due to “public safety concerns.” When the trial court reiterated that it found the State’s lack of notice unfair, the Deputy Assistant State’s Attorney inquired, “How can we press charges?” The following colloquy ensued: THE COURT: Here’s how you correct and do it properly. Do—let the Court know that you’re doing it. You don’t just get to supersede while you have this and let me think that we have a trial that’s about to start. [DEPUTY STATE’S ATTORNEY]: I wish we hadn’t....

THE COURT: I understand. And that’s my point. That’s why I’m saying in this case and this case alone. I’m not saying that the State does not have the right to supersede.

You absolutely, positively do. And if there’s a problem with an indictment, you do what you do, but [defense counsel] placed the State on notice a long time ago .... to do it in this manner, candidly speaking, I’m offended and I don’t think it’s fair. So again, in this particular case, no response ⁶⁷⁸ was filed to [defense counsel’s] motion? I’m here for a trial and now I’m told, that “oh no, well, we’ve superseded it.” So basically Court, you have to do what we say and that’s not going to happen in this courtroom. [DEPUTY STATE’S ATTORNEY]: Well, I’m not sure that’s what—we’re not saying that.

We’re saying that we are trying to correct the charges. And I agree with your statement about not responding correctly but I just don’t want the fundamental case (indiscernible). THE COURT: It will be because again under these facts and these facts alone. Let’s be very clear.

I’m not talking about a blanket policy. I’m talking about what is happening in this particular case, the way it’s been presented to the court, being prepared for trial, not prepared for trial and then saying if you want to go to trial that’s fine, but no, well, we have a superseding indictment anyway. I’m offended by that. I mean, basically what you’re saying, not you personally, and not even you personally, is that we tried, we did this, but you know what Judge, if this doesn’t work, don’t worry about it because we have something else for him; and that, that’s not going to work in this courthouse.

It’s just simply not. And that is not what you normally do. [DEPUTY STATE’S ATTORNEY]: No. THE COURT: And like I said, I’m very clear on that. What you would normally do is say, oh, we’ve determined that there is a problem; we’ll supersede. We’ll let you know or we’ll attempt to, to amend and if the defense objects to the amendment, which is absolutely fine, then you file a superseding indictment and you move on.

But, you don’t wait until the date of trial, tell the trial court, okay, we don’t really care what you say or do, because if you dismiss this then we have something else. That ... circumvents the process and I am offended by that and that’s what I see happening in this case and this case only. The State ultimately nol prossed Count 2 of the 2011 Indictment (i.e., misdemeanor wearing, carrying and trans ⁶⁷⁹ porting a handgun), resulting in a final judgment. The appeal from that judgment is before us in No. 576, Sept. Term 2012.

On April 10, 2012, in Case No. 112089028, defense counsel filed a motion to dismiss Counts 1 and 3 of the 2012 Indictment, on the ground that those counts purported to revive the two counts that were dismissed with prejudice from the 2011 Indictment. On May 30, at the arraignment hearing on the 2012 Indictment, a different judge considered Ferguson’s motion to dismiss Counts 1 and 3 of the 2012 Indictment. The State opposed dismissal, arguing that it was entitled to re-indict Ferguson notwithstanding the “with prejudice” language in the judgment dismissing the 2011 Indictment. The court advised that she intended to hold defense counsel’s motion to dismiss Counts 1 and 3 of the 2012 Indictment sub curia, pending resolution of the State’s appeal challenging dismissal with prejudice of the 2011 Indictment.

When the State requested a decision on its motion, however, the court granted defense counsel’s motion to dismiss counts 1 and 3 of the 2012 Indictment on the basis of the prior judgment dismissing “with prejudice” the same counts in the 2011 Indictment. After nol grossing Count 2, the State appealed the dismissal of Counts 1 and 3 of the 2012 Indictment, in the second appeal before us, No. 2184, Sept. Term 2012. With the parties’ consent, the two appeals have been consolidated for briefing, argument, and decision. DISCUSSION Standards Governing Dismissal of Indictments Maryland Rule 4-202(a) requires a charging document to include, in addition to “the name of the defendant” and “the time and place the offense occurred,” “a concise and definite statement of the essential facts of the offense with which the defendant is charged[.]” In Maryland, “every criminal charge must, first, characterize the crime; and, second, it must provide such description of the criminal act alleged to have been committed as will inform the accused of the specific conduct with which he is charged, thereby enabling him to ⁶⁸⁰ defend against the accusation and avoid a second prosecution for the same criminal offense.” Williams v. State, 302 Md. 787, 791 , 490 A.2d 1277 (1985); see In re Roneika S., 173 Md.App. 577, 591-92 , 920 A.2d 496 (2007).

Under these standards, “little factual detail, beyond a statement of the essential elements of the offense, e.g., the precise manner and means of committing the offense, generally is required in the charging document.” Roneika S., 173 Md.App. at 596-97 , 920 A.2d 496 . “[S]o long as the essential elements of the charged offense have been identified, additional factual detail can be supplied through other means.” Id. at 600-01 , 920 A.2d 496 (citation omitted). See, e.g., Md. Rule 4-241(a) (“the defendant may file a demand ... for a bill of particulars”). Moreover, “ ‘indictments for statutory offenses are sufficient if laid in the words of the statute/ as long as the statutory words are ‘sufficient to meet the practical needs which an indictment is intended to supply[.]’ ” Thomas v. State, 183 Md.App. 152, 185-86 , 960 A.2d 666 (2008) (citation omitted), aff'd on other grounds, 413 Md. 247 , 992 A.2d 423 (2010). Decisions about whether to dismiss charges and whether to re-file charges are uniquely within the State’s broad prosecutorial authority.

Under Maryland Rule 4-247(a), “[t]he State’s Attorney may terminate a prosecution on a charge and dismiss the charge by entering a nolle prosequi on the record in open court.” Entry of a nol pros “is generally within the sole discretion of the prosecuting attorney, free from judicial control and not dependent upon the defendant’s consent.” Ward v. State, 290 Md. 76, 83 , 427 A.2d 1008 (1981). All that a nol pros does ... is carry out the prosecutor’s desire not to proceed against the accused on the basis of that particular charging document. A nol pros does not allay the possibility of a future charge for the same offense. Subject to dismissal on other grounds, the entry of a nol pros causes the matter to lie dormant until and unless the ⁶⁸¹ prosecutor elects to proceed on a new indictment, information or other charging document.

Huebner v. District Court of Maryland, 62 Md.App. 462, 470 , 490 A.2d 266 (1985), aff'd, 305 Md. 601 , 505 A.2d 1331 (1986) (citations omitted). Under Maryland law, a motion to dismiss an indictment issued by a grand jury must be premised on “some substantial defect on the face of the indictment, or in the indictment procedure, or where there is some specific statutory requirement pertaining to the indictment procedure which has not been followed.” State v. Bailey, 289 Md. 143, 150 , 422 A.2d 1021 (1980). In a criminal case, “ ‘a charging document that fails to give adequate notice of the charges is deficient and subject to dismissal[.]’ ” Roneika S., 173 Md.App. at 592 , 920 A.2d 496 (quoting Denicolis v. State, 378 Md. 646, 661 , 837 A.2d 944 (2003)). When a motion to dismiss an indictment stems from