Cottman v. State, 1, September Term, 2006.

• Court: Court of Special Appeals of Maryland
• Writing for the Court: Greene
• Citation: 912 A.2d 620,395 Md. 729
• Parties: Nathaniel COTTMAN v. STATE of Maryland.
• Docket Number: No. 1, September Term, 2006.,1, September Term, 2006.
• Decision Date: 08 December 2006

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912 A.2d 620 395 Md. 729 Nathaniel COTTMAN
v.
STATE of Maryland. No. 1, September Term, 2006. Court of Appeals of Maryland. December 8, 2006.

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George E. Burns, Jr., Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), Baltimore, for Petitioner/Cross-Respondent.

Edward J. Kelly, Asst. Atty. Gen. (J, Joseph Curran, Jr., Atty. Gen. of MD, on brief), Baltimore, for Respondent/Cross-Petitioner.

Argued Before: BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

GREENE, Judge.

On June 2, 2004, after a non-jury trial in the Circuit Court for Baltimore County, Nathaniel Cottman, Jr. ("Petitioner") was convicted of distribution of cocaine, conspiracy to distribute cocaine, and possession of cocaine. He was sentenced as a repeat offender to ten years in prison, without the possibility of parole, for distribution of cocaine. The remaining convictions were merged for sentencing purposes. After filing a timely notice of appeal to the Court of Special Appeals, both Petitioner and the State waived oral argument and submitted their respective cases on brief.

On August 18, 2005, in response to Petitioner's request, the trial judge granted Petitioner a new trial, thereby vacating the underlying judgment of conviction and sentence. As we shall explain further in this opinion, the State was not entitled to file a notice of appeal from the order granting a new trial. On October 31, 2005, not having been informed by counsel of that intervening event, the Court of Special Appeals filed its written opinion affirming

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the Circuit Court's initial judgment and sentence. On November 4, 2005, prior to the Court of Special Appeals's issuance of the formal mandate,¹ Petitioner requested that the appellate court withdraw its opinion and dismiss the appeal as moot, in light of the Circuit Court's decision to grant him a new trial prior to the filing of the Court of Special Appeals's written opinion. On December 15, 2005, the Court of Special Appeals denied both of Petitioner's requests.

Petitioner filed a petition for writ of certiorari² in this Court and the State filed a cross-petition.³ We granted both petitions. Cottman v. State, 391 Md. 577, 894 A.2d 545 (2006). The main issue now before this Court is whether the Court of Special Appeals erred when it failed to dismiss the appeal and withdraw the reported opinion, after being informed that the Circuit Court had granted Petitioner a new trial. The Circuit Court issued its order granting Petitioner a new trial while the appeal from the judgment and sentence was pending in the intermediate appellate court. The effect of granting a new trial was to vacate the original judgment and conviction in the trial court that constituted the basis of the appeal. Any issue with regard to the propriety or effect of the grant of a new trial, as to the subject matter on appeal, could not have been decided on appeal for two reasons: (1) the appeal was noted long before the grant of a new trial; and (2) as a practical matter, the issue with regard to the propriety of granting a new trial could not have been raised by the prior notice of appeal. Thus, in this context, the trial court's grant of a new trial constituted an event that the appellate court should have taken into consideration in issuing a mandate. The trial court had fundamental jurisdiction to grant a new trial and, under the circumstances, the granting of a new trial rendered the appeal pending in the Court of Special Appeals moot. Although the Court of Special Appeals had discretion to allow its reported opinion on the moot issues to stand, it had no choice but to reflect in its mandate that the appeal was dismissed.

FACTUAL BACKGROUND

On August 14, 2002, at approximately 5:45 a.m., undercover Detective, Earnest Moore, drove into the parking lot of the Kingsley Park Apartment Complex in Baltimore

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County. A woman, later identified as Ms. Benson, yelled "hey, come here," and then walked with a man over to Detective Moore's vehicle. Detective Moore later identified the man as Petitioner. According to Detective Moore, Ms. Benson asked him whether he was a police officer. After Detective Moore stated that he was not a police officer, Petitioner asked "are you sure you're not police"? When Detective Moore answered in the negative, Petitioner walked two feet forward to the left fender of the vehicle and looked up and down the road, while Ms. Benson stayed next to Detective Moore. After some additional discussion, Ms. Benson pulled a small bag of cocaine from underneath her tongue in exchange for a marked twenty-dollar bill from Detective Moore. After the transaction, Detective Moore provided a surveillance team with a description of both subjects. The surveillance team stopped Petitioner and Ms. Benson. A short time later, Detective Moore returned to the area of the previous sale and identified both Petitioner and Ms. Benson, who were then formally arrested. The police did not find any drugs or money on Petitioner's person during the search incident to his arrest.

On June 2, 2004, the morning that Petitioner's trial was to begin in the Circuit Court for Baltimore County, Petitioner's counsel appeared before the administrative judge's designee to request a continuance. Petitioner's counsel argued that he had just located a critical witness for the defense and therefore needed more time. The administrative judge's designee denied the motion, noting that the trial had already been postponed four times. The case then proceeded to a trial on the merits.

Detective Moore testified at trial that Petitioner's actions were consistent with those of a lookout in a typical drug deal and that Petitioner and Ms. Benson walked off together after Detective Moore drove away. Detective Moore noted, however, that he never saw Petitioner and Ms. Benson exchange drugs or money with each other.

The trial judge determined that Detective Moore's testimony was "very credible," and that Petitioner had aided and abetted the distribution of drugs. He therefore found Petitioner guilty of distribution of cocaine, conspiracy to distribute cocaine, and possession of cocaine. Prior to sentencing, Petitioner argued that this incident was one of mistaken identity and that he was innocent. The judge offered Petitioner the opportunity to take a polygraph examination, at his own expense, with the understanding that the court would grant him a new trial if the polygraph showed that he was not involved with this incident.⁴ On June 3, 2004, the

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judge sentenced Petitioner to ten years in prison for distribution. Shortly thereafter, Petitioner noted a timely appeal to the Court of Special Appeals.⁵

On July 25, 2005, while Petitioner's appeal was still pending in the Court of Special Appeals and before that court filed its opinion, he filed in the Circuit Court a request for appropriate relief based on the results of the polygraph examination. The Circuit Court held a hearing on this request, and on August 18, 2005, issued an order granting Petitioner a new trial. Petitioner, however, did not notify promptly the intermediate appellate court of this event. On October 31, 2005, more than two months after the Circuit Court granted Petitioner a new trial, the Court of Special Appeals filed its reported opinion, Cottman v. State, 165 Md.App. 679, 886 A.2d 932 (2005), in which it expressed its view on the question of first impression: whether a defendant may be convicted of distribution of a controlled dangerous substance (CDS) on an aiding and abetting theory of culpability. It affirmed the previous judgment of conviction and sentence of the Circuit Court. On November 4, 2005, Petitioner requested, in writing, that the appellate court vacate its opinion and dismiss the appeal, on the basis that the issues were moot, because the Circuit Court had granted Petitioner a new trial before the Court of Special Appeals filed its opinion. Petitioner subsequently filed a memorandum of law, arguing that the Circuit Court retained jurisdiction to award him a new trial while the appeal was pending and that the State had waived any claim to the contrary.

The Court of Special Appeals directed the State to respond to Petitioner's memorandum. On November 17, 2005, the State did so and acknowledged that the Circuit Court retained jurisdiction to make post-judgment rulings in Petitioner's criminal case. It argued, however, that the intermediate appellate court should vacate the order of the Circuit Court granting Petitioner's new trial because the Circuit Court's order frustrated the actions of the appellate court. On December 15, 2005, the Court of Special Appeals denied Petitioner's requests and issued its formal mandate. The intermediate appellate court by its mandate purported to affirm the Circuit Court's judgment of June 3, 2004, which had subsequently been set

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aside by the grant of a new trial. The Court of Special Appeals did not direct the Circuit Court to vacate its order granting Petitioner a new trial.

DISCUSSION A. The Circuit Court's Order Granting Petitioner a New Trial

First, we point to the issues that are not before this Court and were not properly before the Court of Special Appeals. Neither this Court nor the intermediate appellate court obtained jurisdiction to rule on the propriety of the Circuit Court's post-trial order granting Petitioner a new trial, because that order was not the subject matter of the initial appeal. In addition, whether the grant of the new trial interfered with the subject matter on appeal is not an issue before the appellate courts because that issue, likewise, was not the subject matter of the initial appeal. Because these two matters are not issues on appeal, neither the Court of Special Appeals nor this Court has jurisdiction to vacate, reverse, or affirm the order granting Petitioner a new trial.⁶ Notwithstanding these facts, we will discuss the issues...