State v. Ferguson

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 576
September Term, 2012

No. 2184
September Term, 2012

______________________________________

STATE OF MARYLAND

v.

DEVIN FERGUSON

CONSOLIDATED CASES

Eyler, Deborah S.,
Zarnoch,
Sharer, J. Frederick
(Retired, Specially Assigned),

JJ.

Opinion by Sharer, J.

Filed: August 28, 2014
 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. 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 [I]ndictment against
Ferguson “with prejudice”?

2. Did the court err in dismissing the superseding 2012
[I]ndictment 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).

2
This 2011 Indictment, filed in Case No. 11242001, was scheduled for trial on February 17,

2012.

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.

3
 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 Indictment; 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.

4
 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.”

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

5
 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 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

6
 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 transporting a handgun), resulting in a final judgment. The appeal

from that judgment is before us in No. 576, Sept. Term 2012.

7
 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 2011Indictment. 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 prossing 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

8
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 defend against the accusation and avoid a second prosecution for the same criminal

offense.” Williams v. State, 302 Md. 787, 791 (1985); see In re Roneika S., 173 Md. App.

577, 591-92 (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. “[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 (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 (2008) (citation

omitted), aff'd on other grounds, 413 Md. 247 (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

9
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 (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 prosecutor elects to proceed on a
new indictment, information or other charging document.

Huebner v. District Court of Maryland, 62 Md. App. 462, 470 (1985), aff'd, 305 Md. 601

(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 (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 (quoting Denicolis

v. State, 378 Md. 646, 661 (2003)).

When a motion to dismiss an indictment stems from allegations of improper

prosecutorial conduct, however, Maryland courts have held that the nature of such conduct

must warrant invalidating the grand jury’s action and that “[e]ven deliberate or intentional

misconduct may not serve as grounds for dismissal absent a finding of prejudice to the

10
defendant.” State v. Deleon, 143 Md. App. 645, 664, 667 (2002). In this context, prejudice

may be shown by establishing that, but for the alleged misconduct, the grand jury likely

would not have indicted the defendant. See id.

The State’s Claims of Error

“In a criminal case, the State may appeal . . . . from a final judgment granting a

motion to dismiss or quashing or dismissing any indictment, information, presentment, or

inquisition.” Md. Code, § 12-302(c)(1)-(2) of the Courts & Jud. Proc. Article (“CJP”). The

State challenges the dismissal of Counts 1 and 3 in both the 2011 and the 2012 Indictments.

Specifically, the State contends that “the court committed two errors in dismissing” those

counts of the original 2011 indictment. First, the court “erred in finding that the language

of the two challenged counts was defective” because “[t]he indictment sufficiently put

Ferguson on notice of the charge and provided sufficient information to allow him to

prepare a defense.” Second, the court “erred in dismissing the counts ‘with prejudice’” so

that “this dismissal precluded prosecution under the superseding indictment,” because

“[j]eopardy had not attached and there is no procedural bar to proceeding under the second

indictment.” In turn, the State maintains, “[t]hese errors led the court to commit a third error

on December 7, 2012, when it dismissed the [2012 Indictment] on the grounds that the April

6 ruling on the 2011 [I]ndictment precluded the State from moving forward on the 2012

[I]ndictment.” We shall consider each judgment of dismissal in turn.

11
 I. Dismissal of the 2011 Indictment “With Prejudice”
(Appeal No. 576, Sept. Term 2012)

The 2011 Indictment identified Ferguson by name and two aliases, and set forth the

date and address of the offense, as well as the name of the charging police officer and other

witnesses. But Counts 1 and 3 did not identify the disqualifying conviction that served as

a predicate for those charges.

Count 1 charged Ferguson with violating Md. Code, § 5-133(c) of the Public Safety

Article (“PS”),1 as follows:

The Jurors of the State of Maryland for the body of the City of
Baltimore, do on their oath present that the aforesaid
DEFENDANT(S), late of said City, heretofore on or about the
date(s) of offense set forth above, at the location(s) set forth
above, in the City of Baltimore, State of Maryland, having been
convicted of a [crime of violence, as defined in Public Safety
Article, Section 5-101/ a violation of Criminal Law Article,

1
PS § 5-133(c)(1) provides:

A person may not possess a regulated firearm if the person was
previously convicted of:

(i) a crime of violence;

(ii) a violation of § 5-602, § 5-603, § 5-604, § 5-
605, § 5-612, § 5-613, or § 5-614 of the Criminal
Law Article [pertaining to drug-related felonies];
or

(iii) an offense under the laws of another state or
the United States that would constitute one of the
crimes listed in item (i) or (ii) of this paragraph if
committed in this State.

12
 Section [5-602/ 5-603/ 5-604 5-605/ 5-606/ 5-612/ 5-613/
5-614]], did possess a regulated firearm, in violation of Public
Safety Article, Section 5-133 of the Annotated Code of
Maryland; against the peace, government, and dignity of the
State.

[PS 5-101(c); PS 5-101(g)(1); PS 5-133(c)] 2 2030

(Emphasis added.)

The State contends that the circuit court erred in dismissing this count because

pleading the specific nature of the disqualifying conviction is “not necessary to charge the

offense.” Ferguson responds that

[t]his count is defective because an element of the offense is
charged in the disjunctive, not in the conjunctive. In other
words, it alleges that Mr. Ferguson’s possession of a firearm
was illegal because he had a conviction for either a crime of
violence or a violation of Criminal Law Article, § 5-602 or § 5-
603 or § 5-604 or § 5-605 or § 5-606 or § 5-612 or § 5-613 or
§ 5-614. The virgule ( / ) is used to indicate alternative choices.
It means, “or.” See Pelican Nat’l Bank v. Provident Bank, 381
Md. 327, 338 n.10 (2004) (explaining what a virgule signifies).

Like Count 1, Count 3 of the 2011 Indictment features language from the statute

prohibiting possession of a firearm by a person previously convicted of a disqualifying

felony, in violation of Md. Code, § 5-622(b) of the Criminal Law Article,2 as follows:

2
Section 5-622(b) provides in pertinent part:

(b) Prohibited - A person may not possess, own, carry, or
transport a firearm if that person has been convicted of:

(1) a felony under this title;
(continued...)

13
 The Jurors of the State of Maryland for the body of the City of
Baltimore, do on their oath present that the aforesaid
DEFENDANT(S), late of said City, heretofore on or about the
date(s) of offense set forth above, at the locations set forth
above, in the City of Baltimore, State of Maryland, did possess,
own, carry, and transport a firearm after being convicted of: 1.
a felony under this subheading; 2. An offense under the laws
of the United States, another state, or the District of Columbia
that would be a felony under this [sic] 3. Conspiracy or
attempt to commit [insert wording from paragraph 1 or 2
above]; against the peace, government and dignity of the State.

blank statute code 1 0692 [sic]

(Emphasis added.)

The State reiterates that its failure to identify Ferguson’s disqualifying conviction, by

itself, did not justify dismissal of Count 3. In his brief, Ferguson contends that, apart from

omitting the predicate conviction, “[t]he language of Count 3 is defective because it makes

no sense.” In support, he contends “[i]t is apparent to anyone reading the language of Count

3 that words necessary to make clear the violation alleged are missing.”

2
(...continued)

(2) a crime under the laws of another state or of the United
States that would be a felony under this title if committed in
this State;

(3) conspiracy to commit a crime referred to in paragraphs (1)
and (2) of this subsection; or

(4) an attempt to commit a crime referred to in paragraphs (1)
and (2) of this subsection.

14
 To our knowledge, there is no Maryland precedent deciding whether the State must

identify the predicate or disqualifying conviction when charging these offenses.3 We need

not decide that question, however, because the 2011 Indictment was superseded by the 2012

Indictment, which Ferguson concedes was adequate to charge the two handgun offenses

alleged in Counts 1 and 3. As the prosecutor intended, the superseding 2012 Indictment

mooted any flaws in the original 2011 Indictment.4 See Guy v. State, 91 Md. App. 600, 606

3
Cf. Bremer v. State, 18 Md. App. 291, 307-10 (1973) (rejecting argument that
indictment for possession of a firearm was “fatally defective” because it did not “identify
the weapon sought to be referred in any manner, even as being a pistol,” because the
State was not required to identify the specific type of firearm in the charging document
and defendant “demanded and was granted particulars” concerning the type of firearm
involved).
4
In Count 1 of the 2012 Indictment, the State alleged that Ferguson,

having been convicted of a violation of Criminal Law Article,
Section 5-602, to wit: 2006 POSSESSION WITH THE
INTENT TO DISTRIBUTE CDS UNDER BALTIMORE
CITY CIRCUIT COURT CASE NO. 106023043, did possess
a regulated firearm, to wit: SMITH AND WESSON .38
CALIBER REVOLVER in violation of Public Safety Article,
Section 5-133(b) . . . .
(continued...)

15
(1992). Because there is no dispute that the charges in the 2012 Indictment are sufficient,

the only justiciable issue in this appeal (i.e., No. 576) is whether the court erred in

dismissing the 2011 Indictment “with prejudice.” Our decision on that question will dictate

the result in No. 2184, because if, as the State contends, “the words ‘with prejudice’ were

without legal meaning,” then the judgment dismissing the 2011 Indictment “had no

preclusive effect which would in any way prohibit the State from proceeding with the 2012

[I]ndictment.”

We agree with the State that the court erred in dismissing the 2011 Indictment “with

prejudice.” The State has broad discretion to file a superseding indictment at any time

before jeopardy attaches, which in Case No. 11242001 did not occur because trial did not

begin, so that Ferguson was not at risk of “a determination of guilt.” See generally Odem

v. State, 175 Md. App. 684, 699-700, 703 (2007) (Jeopardy has not attached during a

preliminary hearing on the sufficiency of a charging document.). Here the State filed the

2012 Indictment before the rescheduled trial date on the 2011 Indictment, for the good faith

4
(...continued)
In Count 3 of the 2012 Indictment, the State alleged that Ferguson

did POSSESS, OWN, CARRY AND TRANSPORT A
FIREARM to wit: SMITH AND WESSON .38 CALIBER
REVOLVER after having been convicted of 2006
POSSESSION WITH INTENT TO DISTRIBUTE CDS
UNDER BALTIMORE CITY CIRCUIT COURT CASE
NO. 106023043 in violation of Criminal Law Article, Section
5-622(b) . . . .

16
purpose of supplying the very information that Ferguson had complained was missing from

the 2011 Indictment. The court expressly recognized the State’s right to do so, but

disapproved of the prosecutor’s failure to notify defense counsel or the court of the

superseding indictment before the rescheduled trial date.

Based on the colloquy set forth above, we conclude that the circuit court premised its

decision to dismiss Counts 1 and 3 of the 2011 Indictment “with prejudice” on its collateral

determination that the State failed to provide what the judge considered to be appropriate

notice of the superseding 2012 Indictment. The court was incensed by the State’s belated

notice of the superseding indictment, apparently in contravention of the court’s usual and

preferred practice. The court effectively sanctioned the State for failing to notify court and

counsel of the superseding indictment, by dismissing Counts 1 and 3 in the 2011 Indictment

‘with prejudice.” We conclude that such dismissal is not supported by the law or the record.

Neither the circuit court nor Ferguson have cited legal authority for dismissing an

indictment “with prejudice.” Because jeopardy never attached to the 2011 Indictment, the

State had authority to file the superseding indictment at any time before trial began. Cf.

Odem, 175 Md. App. at 703 (jeopardy does not attach at preliminary hearing to decide if a

charging document is sufficient); Stovall v. State, 144 Md. App. 711, 728 (2002)

(superseding indictment may be filed at any time before trial begins). Moreover, we are not

aware of any statute, rule, or precedent that would allow a court to invalidate a grand jury’s

decision to re-indict a criminal defendant under a superseding indictment on the ground that,

17
thereafter, the prosecutor belatedly notified the defendant and court that she had obtained

such a superseding indictment.5 Accordingly, there is no legal basis for the court’s dismissal

of the 2011 Indictment “with prejudice.”

Furthermore, we are not persuaded that a dismissal with prejudice, even if available,

was warranted in this case. During the February 17 proceedings, the prosecutor responded

to defense counsel’s complaints about the 2011 Indictment, advising the court that she had

informed defense counsel, via discovery responses delivered more than two months before

trial, that Ferguson’s predicate conviction was a 2006 felony possession of controlled

dangerous substances with intent to distribute. Indeed, defense counsel insisted that he was

ready for trial on all three charges, demonstrating that, notwithstanding any alleged defects

in the 2011 Indictment, Ferguson had adequate notice of the charges against him and

adequate opportunity to prepare for trial. When defense counsel nevertheless insisted on

dismissal of Counts 1 and 3, the court instructed the parties to take up Ferguson’s motion

with the trial court on the rescheduled trial date. When Ferguson filed a written motion to

dismiss Counts 1 and 3 of the 2011 Indictment, the State responded by obtaining a

5
We recognize that dismissing and refiling an indictment may be restricted when
the purpose of doing so is to avoid the 180-day trial deadline mandated under Rule
4-271(a) and State v. Hicks, 285 Md. 310, 318 (1979). There can be no such contention
here, given that the February 17, 2012, postponement carried the case past the Hicks date
before the State obtained the superseding indictment in March 2012. Cf. State v.
Huntley, 411 Md. 288, 299 (2009) (dismissal to correct an allegedly defective charging
document, even if the effect of the dismissal is that the case is tried more than 180 days
from the original appearance in court, does not violate Rule 4-271).

18
superseding indictment that addressed the alleged deficiencies. In light of Ferguson’s

complaints and the court’s concerns about Counts 1 and 3, the State acted reasonably and

within its authority in doing so. At the April 6 hearing, just a week after the grand jury

returned the superseding indictment, the prosecutor proffered that her failure to notify the

court and defense counsel of the superseding indictment was merely an ill-advised oversight.

The court accepted that explanation.

On this record, we cannot fairly characterize the prosecutor’s failure to advise court

and counsel of the superseding indictment as “misconduct.” Moreover, her failure to notify

court and defense counsel in no way tainted the indictment itself because it occurred after

the indictment was returned. Because the prosecutor’s failure to give notice could not have

prejudiced Ferguson before the grand jury, this is not the type of “prosecutorial misconduct”

that might warrant dismissal of an indictment. Cf. Deleon, 143 Md. App. at 662-69

(Assuming court had power to dismiss indictment based on prosecutor’s failure to disclose

exculpatory evidence to grand jury, dismissal was not warranted where such evidence was

provided to the defendant before trial and there was no showing of prejudice); Clark v. State,

140 Md. App. 540, 562-63 (2001) (prosecutor’s unintentional but misleading failure to

present exculpatory DNA evidence to the grand jury did not warrant dismissal of the

indictment where evidence would not have negated guilt or precluded indictment).

We conclude that, even assuming arguendo that the court had the power to sanction

prosecutorial misconduct by dismissing the indictment with prejudice, so as to preclude a

19
superseding indictment, such a dismissal with prejudice was not warranted here. The court

therefore erred in dismissing the 2011 Indictment with prejudice.

II. Dismissal of the 2012 Indictment
(No. 2184, Sept. Term 2012)

After dismissal of the 2011 Indictment, the State attempted to proceed on the 2012

Indictment. When the parties appeared on May 30, the court declined to conduct the

arraignment pending the State’s appeal of the dismissal of the 2011 Indictment, in No. 576,

Sept. Term 2012. The State subsequently requested a ruling so that these related appeals

could be reviewed together. On December 7, 2012, the court dismissed the 2012 Indictment

without arraigning Ferguson, on the ground that the dismissal of the 2011 Indictment “with

prejudice” barred the State from proceeding on the 2012 Indictment. The State noted this

appeal and moved to consolidate it with No. 576.

As we explained in No. 576, our resolution of this appeal “piggybacks” on our

determination that the court had no authority or grounds for dismissing the 2011 Indictment

with prejudice. Because the court erred in dismissing the 2011 Indictment with prejudice,

we hold that the court also erred in dismissing the superseding 2012 Indictment. We shall

reverse that judgment and remand for further proceedings on the 2012 Indictment.

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IN NO. 576, SEPT. TERM 2012, THE
JUDGMENT IN NO. 11242001 IS VACATED
TO THE EXTENT THAT THE DISMISSAL
PURPORTS TO BE “WITH PREJUDICE.”

IN NO. 2184, SEPT. TERM 2012, THE
JUDGMENT IN N O .1 1 2089028 IS
REVERSED. CASE REMANDED FOR
FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION.

COSTS TO BE PAID BY APPELLEE.

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