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from the Circuit Court for Worcester County. Dale R. Cathell,
BY: Daniel Kobrin (Paul B. DeWolfe, Public Defender on the
brief) all of Baltimore, MD. FOR APPELLANT
BY: Benjamin A. Harris (Brian E. Frosh, Attorney General on
the brief) all of Baltimore, MD. FOR APPELLEE
BEFORE: Zarnoch[*], Leahy, Sharer, J. Frederick
(Retired, Specially Assigned), JJ.
Md.App. 598] Sharer, J.
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
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
circuit court imposed a sentence of seven years'
imprisonment for involuntary manslaughter and concurrent
five-year sentences for each of the other convictions.
Nottingham [227 Md.App. 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.
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.
we shall vacate his conviction for affray, affirm all other
judgments of conviction, and remand for further proceedings.
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
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979).
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 [227 Md.App. 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
" 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.
" 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 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.
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.
the first jury trial resulted in a mistrial, a new trial was
scheduled for October 10, 2013, but the State moved for a
[227 Md.App. 601] 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
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
was convicted of involuntary manslaughter, assault in the
second degree, reckless endangerment, and
facts will be noted as pertinent to discussion of the issues.
The affray instruction
court instructed the jury on the offense of affray as
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.
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 [227
Md.App. 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 ...