Circuit Court for Montgomery County Case No. 129119
Deborah S., Meredith, Alpert, Paul E. (Senior Judge,
Specially Assigned), JJ.
Greene, appellant, was convicted in two separate trials by a
jury sitting in the Circuit Court for Montgomery County of
drug related crimes. In the first trial, a jury convicted him
of possession of cocaine. In the second trial, a jury
convicted him of possession of clonazepam, possession of
alprazolam, and two counts of possession of
oxycodone. Appellant appeals from both cases, raising
two questions, which we have rephrased slightly:
I. Did the trial court err when it denied his motion to
dismiss his first trial because his constitutional speedy
trial and due process rights had been violated?
II. Did the trial court err when it allowed the jury in his
second trial to convict him of lesser included offenses for
which he was not charged?
following reasons, we shall affirm the judgments.
facts of each particular trial are not in issue, for the two
questions appellant raises concern legal issues. To answer
the questions raised, we shall provide an overview of the
procedural facts followed by greater detail in the discussion
March 17, 2016, appellant was charged in a 13-count
indictment with various offenses involving alleged drug
dealing on five different dates. Specifically, appellant was
charged as follows:
Count 1 -- July 6, 2015 - distribution of cocaine
Counts 2-4 -- July 13, 2015 - possession of cocaine with the
intent to distribute; possession of hydrocodone with the
intent to distribute; and possession of hydrocodone
Counts 5-6 -- September 30, 2015 - possession with the intent
to distribute cocaine and possession of cocaine
Count 7 -- December 14, 2015 - distribution of cocaine
Counts 8-13 -- January 11, 2016 - two counts of possession
with the intent to distribute oxycodone; possession with the
intent to distribute alprazolam (Xanax); possession of
alprazolam; possession with the intent to distribute
clonazepam (Klonopin); and possession of hydromorphone
29, 2016, appellant filed a written motion to dismiss the
first six counts of the indictment against him, arguing,
among other things, that the State had failed to bring him to
trial on those counts in a timely manner, and therefore, the
court should dismiss his case because the State had violated
his constitutional rights to a speedy trial and due process.
Appellant focused on the fact that the State had twice
nol prossed and re-charged those counts before the
March 17th indictment. The State filed a written motion
opposing appellant's motion, arguing that it had acted in
good faith in nol prossing and re-charging the
counts, and there were no constitutional violations.
14, 2016, a hearing was held on appellant's motion.
Appellant specifically stated at the hearing that his speedy
trial and due process arguments apply only to the first six
counts in the March 17, 2016 indictment. Based on the record
and argument, the court found no bad faith by the State and
ruled that any delay was not of constitutional dimension. The
court denied the motion, ruling that there had been no
violation of appellant's speedy trial or due process
rights. On August 18, 2016, the circuit court granted
appellant's motion to sever the charges, holding that
they were not mutually admissible at one trial.
September 6, 2016, appellant was tried on the charges
alleging illegal drug activity on July 13, 2015 (counts 2
through 4). He was ultimately convicted of possession of
cocaine with the intent to distribute. After the court
granted appellant's motion for a new trial, he was
re-tried on December 19, 2015, and, as stated above, he was
found guilty of simple possession of cocaine.
September 8, 2016, appellant was tried on the charges
alleging illegal drug activity on January 11, 2016 (counts 8
through 13). As stated above, he was convicted of four simple
possession counts: possession of clonazepam, possession of
alprazolam, and two counts of possession of oxycodone.
was sentenced on June 26, 2017 in both trials. He filed a
direct appeal for review in our court the following day. We
shall provide additional facts below to answer the questions
argues on appeal that the circuit court erred when it denied
his motion to dismiss the charges that alleged criminal
conduct on July 13, 2015, because the State failed to bring
his case to trial in a timely manner in violation of his
speedy trial and due process rights. As to his speedy trial
claim, appellant specifically argues that the delay between
the date of his arrest and the start of his first trial, a
delay of 14 months, was of constitutional dimension and that
the balancing of the four factors in Barker v.
Wingo, 407 U.S. 514 (1972) weigh in favor of dismissal.
The State disagrees and counters that because it had acted in
good faith in nol prossing and re-charging those
counts, the triggering date was the day of the last
indictment: March 17, 2016. The State then argues that the
delay between that date and the date when the circuit court
denied his motion, a delay of four months, was not of
constitutional dimension. The State also argues that
appellant's due process argument is without merit because
appellant failed to show actual prejudice or that the State
had caused the delay with the intent to gain a tactical
advantage over him.
Sixth Amendment speedy trial violation?
review the trial court's denial of a motion to dismiss on
speedy trial grounds by conducting a de novo
constitutional analysis. Glover v. State, 368 Md.
211, 220 (2002) (citations omitted). See also Jules v.
State, 171 Md.App. 458, 481-82 (2006) (citing
Glover, supra), cert. denied, 396
Md. 525 (2007). Nonetheless, we defer to the trial court on
the findings of historical facts, unless clearly erroneous.
Glover, 368 Md. at 220-21 (citations omitted). A
finding of fact is clearly erroneous, not when the fact is
"weak, shaky, [or] improbable, " but rather when it
has "no evidentiary basis whatsoever[.]" State
v. Brooks, 148 Md.App. 374, 399 (2002). See also
Figgins v. Cochrane, 403 Md. 392, 409 (2008) ("If
any competent ...