Zarnoch [*] , Leahy, Sharer, J. Frederick (Retired, Specially Assigned), JJ.
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.
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 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.
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 (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 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 continuance, a request which was granted over defense objection. 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.
Additional facts will be noted as pertinent to discussion of the issues.
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 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). ...