State v. Henry

256 Md.App. 156

286 A.3d 38

STATE of Maryland

v.Niran Marquise HENRY

State of Maryland

v.Lateekqua Jackson

State of Maryland

v.Garrick L. Powell, Jr.

No. 1499, 1500, 1501, Sept. Term, 2021

Court of Special Appeals of Maryland.

October 25, 2022

Reconsideration Denied January 3, 2023

Submitted by: Andrew H. Costinett (Brian E. Frosh, Atty. Gen., on the brief) Baltimore, MD, for Appellant.

Submitted by: Creston P. Smith (Todd W. Hesel, Silverman, Thompson, Slutkin & White, LLC, on the brief) Baltimore, MD, for Appellee.

Argued by: Andrew H. Costinett (Brian E. Frosh, Atty. Gen., on the brief) Baltimore, MD, for Appellant.

Argued by: Jeffrey M. Ross (Paul B. DeWolfe, Public Defender, on the brief of Baltimore, MD), John N. Sharifi, Assigned Public Defender (Law Offices of John N. Sharifi, LLC, on the brief of Rockville, MD), for Appellee.

Panel: Nazarian, Leahy, Lynne A. Battaglia (Senior Judge, Specially Assigned), JJ.^*

Nazarian, J. Niran Marquise Henry, Lateekqua Jackson, and Garrick L. Powell, Jr., were charged with related criminal offenses and consented to consolidate their trials. Their joint trial in the Circuit Court for Anne Arundel County was scheduled for October 26, 2021, one day past the 180-day Hicks¹ deadline. At the time the date was set, the parties, their attorneys, and the court all were unaware of the precise Hicks date due to COVID-19 shutdowns and confusion over whether the Hicks date was tolled.² Moreover, coordinating the schedules of multiple attorneys and co-defendants made finding an agreeable trial date difficult.

At the status conference to set the trial date, one co-defendant agreed to the date expressly while a second stayed silent. The third co-defendant appeared later in the day and was informed of the date the others had chosen. Later, on the appointed trial date itself, all parties appeared. But when the State moved to postpone for good cause, the co-defendants moved to dismiss the indictments for failure to comply with the Hicks rule.

At a hearing after written briefing on the issue, the court granted the motions and dismissed the indictments with prejudice. The State noted this appeal, arguing that the co-defendants consented expressly to the trial date. We hold that on this record, Mr. Henry and Ms. Jackson consented to the trial date expressly and we reverse the trial court's dismissal of their indictments and remand for further proceedings consistent with this opinion. The record does not support a finding that Mr. Powell sought or consented to the trial date expressly, though, and we affirm the dismissal of his indictment.

I. BACKGROUND

On February 3, 2021, Mr. Henry, Ms. Jackson, and Mr. Powell were occupants of a car that was searched by police. The search allegedly recovered drugs, cash, and firearms. The State indicted all three for related offenses on March 12, 2021. Six days later, the State moved to consolidate all three cases.

Counsel for each defendant entered appearances in April 2021. Criminal jury trials were suspended through April 23, 2021, and, by administrative order, the resumption date for days counting toward Hicks was Monday, April 26, 2021. See Final Administrative Order on Jury Trials and Grand Juries During the COVID-19 Emergency (Md. Ct. App. Mar. 28, 2022). Everyone agrees that the 180-day Hicks deadline for this case was Monday, October 25, 2021.³

On June 4, 2021, counsel for Mr. Powell and Mr. Henry appeared for a status conference.⁴ At this conference, a scheduling judge set the trial date for October 26. Counsel for Mr. Henry agreed to the specific date; Mr. Powell's counsel seemed to accept it silently:

THE COURT: [W]hat about a trial?

[PROSECUTOR]: Somewhere after October 4th; that's agreeable for everybody.

THE COURT: All right.

[MR. POWELL'S COUNSEL]: So, somewhere in October.

* * * THE COURT: Okay. And then with regard to the trial, we're looking after October 4th. You have a particular date in mind, attorneys?

[PROSECUTOR]: Fourteenth; 19th; 21st; if those are good.

[MR. POWELL'S COUNSEL]: I'm already in a three-day trial on the 19th.

[PROSECUTOR]: Okay.

[MR. POWELL'S COUNSEL]: Three-day trial, yeah.

[PROSECUTOR]: Twenty sixth; 28th?

[MR. HENRY'S COUNSEL]: Starting on the 26th; that's fine, Judge.

[PROSECUTOR]: That's acceptable.

* * *

THE COURT: Yeah. Okay, so, October 26th for trial. So, Mr. Henry and Mr. Powell, that's your second date, but obviously you have a lot to discuss with counsel before that....

The hearing concluded with no further discussion of the trial date.

Less than thirty minutes later, Ms. Jackson's counsel appeared for a status conference in her client's absence. Ms. Jackson had an outstanding bench warrant, and that gave rise to a discussion about whether a trial date could be set in her case, but the court eventually scheduled her trial for the same date:

[PROSECUTOR]: And can we preliminary—because this is with the other two co-defendants, could we set this in and then deal with things as they come[?]

* * *

[MS. JACKSON'S COUNSEL]: I think we can schedule.

COURT CLERK: I don't see why we can't.

[MS. JACKSON'S COUNSEL]: Yeah.

THE COURT: Okay. All right.

[PROSECUTOR]: I'd just like to schedule it—

COURT CLERK: That's your call.

[MS. JACKSON'S COUNSEL]: You can blame me, Judge, if—

THE COURT: I'll blame [defense counsel]; she's really—

[MS. JACKSON'S COUNSEL]: —if they say it's not allowed.

THE COURT: She has screwed this up irreparably, and—

[PROSECUTOR]: Right before she leaves the case.

[MS. JACKSON'S COUNSEL]: Exactly.

THE COURT: Okay. So, let's do it. What—what day did we set the other one?

[PROSECUTOR]: It was August 10th motion, and October 26th, trial.

THE COURT: So, there was two—

[MS. JACKSON'S COUNSEL]: And it won't be me for trial, Your Honor, but I'll make sure—

THE COURT: Okay. Well, we'll set those in the same dates ....

* * *

THE COURT: All right. And do—do let [Ms. Jackson] know, if you hear from her today, that it's in her interest to get here before 4:30.

[MS. JACKSON'S COUNSEL]: I certainly will.

Later that afternoon, Ms. Jackson appeared in person before the same scheduling judge and informed the court that she missed the earlier hearing due to traffic. At that point, another attorney filled in for Ms. Jackson's counsel who, reading counsel's notes, stated that Ms. Jackson's counsel "indicated that she will have a conversation with Ms. Jackson, but that a motions date has already been settled for August 10th, and a trial date for October." The court asked Ms. Jackson, "[D]id you get the dates that were just put on the record of when you're due back?" Ms. Jackson responded, "Yes. Yes, sir," and read the dates back to the court:

THE COURT: What's your August date?

* * *

MS. JACKSON: August the 10th, and—

THE COURT: Okay.

MS. JACKSON:—the other one was October the 20 something—I looked on Case Search.

COURT CLERK: Twenty sixth.

THE COURT: Twenty sixth.

MS. JACKSON: Twenty sixth, okay.

Neither the court nor the parties was aware that the trial date went past the 180-day Hicks deadline at the time of scheduling, and the court didn't make any findings of good cause or waiver.⁵

On October 26, 2021, the trial date, all three co-defendants appeared for trial before the scheduling judge. The State then requested a postponement for good cause (the lead police officer conducting the search of the vehicle was ill), and at that point the court inquired about the Hicks date for the first time. Mr. Powell's counsel stated that the Hicks date had passed and that he "would be moving to dismiss the case." The State responded that "[a]s of yesterday afternoon, everyone, I believe, was ready to go to trial," and that "this was an agreed upon trial date," and requested written briefing on the motion. The court set a briefing schedule and postponed the trial until November 18, 2021.

In his written motion, Mr. Powell argued that the State has the duty to bring a defendant to trial within 180 days, the time limit is mandatory, and thus "the only appropriate sanction for the State's failure to have the matter tried within the 180 time frame and/or seek good cause from the Administrative Judge is dismissal of the charges." Ms. Jackson argued similarly that because "[t]here was no consideration of Hicks at all," dismissal is mandatory under Rule 4-271. The State's response to these two motions cited Jules v. State , 171 Md. App. 458, 475, 910 A.2d 553 (2006), and argued that "[t]he sanction of dismissal is unavailable to a defendant who either, individually or by his attorney, seeks or expressly consents to a trial date in violation of Rule 4-271."

On November 16, 2021, Ms. Jackson and Mr. Powell appeared before a motions judge on their motions to dismiss. Mr. Powell asserted that "[n]obody knew when Hicks was" and that "legal waiver" requires "knowledge of when the actual date is":

COVID was happening, and a lot of things were going on. The status conference, as a matter, happened on June 4th of 2021, and there was still some issues as to how the dates were going to be calculated for Hicks. Nobody knew when Hicks was, and we—we agreed to have a trial date set on ... October 26th of 2021, come to find out, that was three days after the Hicks date. ...

... I believe that the proper remedy in this matter—and the State had—it was their responsibility to find out when Hicks was. They should've been looking at these files, and said, "Oh god, this—this trial date was after Hicks, let's ask for a hearing, and get a good cause hearing on that." I know the State is going to say, "Hey, well, he waived it, you know, by consenting to the date after the date." But, unfortunately, in order to have a legal waiver, you had to have knowledge of when the actual date is.

So, in June of 2021, nobody knew when the actual Hicks date was, and they did nothing. They sat on their hands until we brought it up on the trial date. I'll submit, Your Honor.

THE COURT: Okay. I was not privy—I was not present, and I looked back, and I'm not mentioning anyone's name, but I saw who handled the conference and who set

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