author: SHARER, J.

text:
    135 A.3d 541
    George Doran NOTTINGHAM v. STATE of Maryland.
    No. 1602,
    Sept. Term, 2014.
    Court of Special Appeals of Maryland.
    April 27, 2016.

      Daniel Kobrin (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.
    Benjamin A. Harris (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for appellee.
    Panel: ZARNOCH, LEAHY and J. FREDERICK SHARER (Retired, Specially Assigned), JJ.

       Zamoch, Robert A., J., participated in the conference of this case while an active member of this Court; he participated in the adoption of this opinion as a retired, specially assigned member of this Court.

   SHARER, J.

In 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 death.

A jury 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 except intoxication.

The circuit court imposed a sentence of seven years’ imprisonment for involuntary manslaughter and concurrent five-year sentences for each of the other convictions. Nottingham 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.

We hold 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.

Accordingly, we shall vacate his conviction for affray, affirm all other judgments of conviction, and remand for further proceedings.

FACTUAL BACKGROUND

Most of 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 State. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

During 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 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 ensue[d].”

Nottingham “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.

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 leave.

Unbeknownst 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.

Shortly 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.

After the first jury trial resulted in a mistrial, a new trial was scheduled for October 10, 2013, but the State moved for a 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 affray.

Nottingham 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 Nottingham was convicted of involuntary manslaughter, assault in the second degree, reckless endangerment, and affray.

Additional facts will be noted as pertinent to discussion of the issues.

DISCUSSION

I. The affray instruction

The court instructed the jury on the offense of affray as follows:

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.

Nottingham 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 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 instruction — namely, that to convict a defendant of an affray, the State must prove that the fighting was “to the terror of the people.”

We begin with the question whether the instruction given was a correct statement of the law and conclude that it was not. We next consider and reject Nottingham’s claim that no affray instruction was appropriate in light of the evidence (or lack thereof). Finally, we address the effect of the instructional error on the verdicts.

A. Affray

Affray is “the fighting together of two or more persons, either by mutual consent or otherwise, in some public place, to the terror of the people.” Dashiell v. State, 214 Md.App. 684, 689, 78 A.3d 916 (2013) (citation and quotation omitted). Although affray shares common elements with common law assault and battery, it is, unlike assault and battery, not a crime against the person; rather, affray is “a crime against the public and its aim is to protect the peace.” Hickman v. State, 193 Md.App. 238, 252, 996 A.2d 974 (2010).

Hickman involved facts not dissimilar to those before us in this appeal, i.e., a barroom fight escalating into the death of one of the participants. Writing for the Court, Judge Arrie Davis, observed that the case was “one of first impression, namely, whether the common law crime of an affray exists in Maryland[.]” Hickman, 193 Md.App. at 247, 996 A.2d 974. Discussing the crimes of assault and battery, vis a vis, the then-recent legislative re-codification of those common law offenses into statutory offenses, the Court held that affray remains as a viable, chargeable common law offense in Maryland.

In so holding, the Court pointed out that “[u]nlike other states, which have codified the common law offense of affray, Maryland has not and, therefore, if the offense exists, it is clearly only as a matter of common law.” Id. at 248, 996 A.2d 974. The Court further observed that “Maryland case law does demonstrate that common law affray has, historically, been a chargeable common law offense.” Id. at 249, 996 A.2d 974.

Because the offense remains viable in Maryland, the “public place” and “terror to the people” elements remain likewise viable. “The ‘public place’ and ‘terror to the people’ elements of affray are closely related,” and “evidence that a fight occurred in a ‘public place’ may be sufficient to establish, ipso facto, that the fight resulted in ‘terror to the people.’” Dashiell, 214 Md.App. at 690, 78 A.3d 916. To prove the “terror to the people” element, the State “need only show that the acts and surrounding circumstances were ‘likely to strike terror in anyone,’” not that they “actually” have “in any specific individual.” Id. at 691, 78 A.3d 916 (quoting Schlamp v. State, 390 Md. 724, 737, 891 A.2d 327 (2006)).

In Dashiell, we sought to clarify the relationship between the “public place” and “terror to the people” elements of affray, relying on Lewis Hochheimer’s treatise, in which he stated that, as to affray, “[tjerror need not actually exist among the people”; rather, “[i]n a legal sense, fighting in public is to the terror of the people.” Dashiell, 214 Md.App. at 691, 78 A.3d 916 (quoting Lewis Hochheimer, The Law of Crimes and Criminal Procedure, ch. 36, § 243, at 281 (2d ed. 1904)). It appears that this comment was interpreted by the State, in requesting the instruction, and by the trial court, in giving the instruction, so as to obviate altogether the “terror to the people” element of affray.

Nonetheless, “public place” and “terror to the people” are distinct elements of the crime of affray, both of which, like any element of a charged offense, must be proven by the State, beyond a reasonable doubt. Indeed, the early common law commentators appear to have been in substantial agreement that affray consists not only of fighting in a public place, but that such fighting must be “to the terror of his majesty’s subjects.” 4 Sir William Blackstone, Commentaries on the Laws of England 144 (New ed. 1825); accord 3 Joseph Chitty, A practical treatise on the criminal law: comprising the practice, pleadings, and evidence, which occur in the course of criminal prosecutions 821 n.(x) (3d Am. ed. 1836) (“An affray is a public offence to the terror of the king’s subjects---Every assault does not include an affray, as where the assault does not terrify the people in general, it being committed in private[.]”); 1 William Hawkins, Pleas of the Crown 487 (8th ed. 1824) (“It is said, that the word ‘affray’ is derived from the French word effraier, to terrify, and that, in a legal sense, it is taken for a public offence to the terror of the people.”).

Subsequent cases establish that, to prove an affray, the State must, at minimum, show that the fighting and surrounding circumstances were likely to result in terror to the public. Two decisions are instructive in that regard: State v. Heflin, 27 Tenn. 84 (1845), and Carwile v. State, 35 Ala. 392 (1860).

In Heflin, the Supreme Court of Tennessee addressed the sufficiency of an indictment charging an affray, which failed to expressly allege that the fight occurred in a public place. The indictment in that case stated that

Bartlett Travis and William Heflin, late of the county of Montgomery, laborers, on the twenty-second day of February, one thousand eight hundred and forty-six, with force and arms, in the county aforesaid, an affray did make by then and there fighting together in the town of Clarksville, greatly to the terror of the good people[.]

Id. at 84-85.

In holding that the indictment was insufficient, the Court observed

that there may be an assault which will not amount to an affray, as where it happens in a private place out of the hearing or seeing of any except the parties concerned, in which case it cannot be to the terror of the people.

Id. at 85-86 (quoting 1 Hawkins, supra, at 487). Not only did the Tennessee Supreme Court hold that to “constitute an affray, a necessary and indispensable ingredient is that the fighting must be in some public place,” id. at 85, it further held that the omission of the “public place” element necessarily meant that the indictment did not sufficiently allege that the fighting “be to the terror of the people,” despite the fact that the indictment itself contained similar “terror” language. We conclude that, considering Heflin, an indictment charging affray must expressly state both that the fighting occurred in a public place and that it tended to cause terror to the people.

In Carwile v. State, supra, 35 Ala. 392, the Supreme Court of Alabama addressed whether “a place within an enclosed lot, ninety feet from a street” in a town, and “which could be seen from the street, is a public place, according to the import of the phrase in the common-law definition of an affray.” Id. at 393. In concluding that it was, the Court noted that the “distinguishing characteristic of an affray is the terror to the people actually resulting, or presumed to result, from the fighting in a public place,” and that, under the circumstances before it, “[tjerror to the people” could be “presumed from the fighting in a public place.” Id. at 394. Although Carwile held that terror could be presumed from the fact that fighting occurred in a public place, it did not countenance omission of the “terror to the people” element from a jury instruction, nor is it plausible that it could have, given its characterization of that element as the “distinguishing characteristic of an affray.”

As we made clear in Hickman,

An affray is an aggravated disturbance of the public peace and is an offence exclusively against the public. An affray is, therefore, characterized as a public disturbance, a crime against the public and its aim is to protect the peace.... As stated by the renowned authority on the English common law, Sir Matthew Hale, “An assault is but a wrong to the party, but an affray is a wrong to the Commonwealth.”

193 Md.App. at 252-53, 996 A.2d 974 (internal citations, quotations, and footnote omitted).

In the instant case, the trial court omitted any mention of the “terror to the people” element from its instruction to the jury as to the crime of affray. In so doing, the trial court erred.

B. The instruction

The State submitted a requested instruction to the trial court, based, the prosecutor asserted, on the language of Dashiell. The court ultimately instructed the jury, based on the State’s request, that

[t]he 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.

Defense counsel objected, not to the particular language of the instruction, but to the giving of the affray instruction at all, arguing that the evidence did not support the instruction.

In the discussion of the State’s proposed instruction, the following, turning on the import of Dashiell, was said:

[PROSECUTOR]: ... Dashiell[ ] deals squarely with the issue. The issue before the Court was whether or not the State needed to prove that it was to the terror of the public, which is what common law — the language of common law.

The Court, in Dashiell, stated that it need not be to the terror of the public, that ipso facto, if it happens in a public place, a fight is terror to the public. That is the square holding of Dashiell.

THE COURT: Wait a minute now. But it says in a public place to the terror of the'people.

[PROSECUTOR]: That is the common law language, but Dashiell deal[t] with that issue. Because the issue before the Court in Dashiell was whether or not the State needed to prove that there were people in terror, because they had not.

The Court of Special Appeals said that they need not show that there was any terror to the public, that ipso facto, if there is a fight in a public space, it is considered terror to the public, it need not be part of the elements the state need prove. And that is the square holding of Dashiell.

THE COURT: It’s a question, what is meant by, to the terror of the people? I think what [Defense Counsel] is saying, that phrase to the terror of the people means there must be a public disturbance that must affect the people.

But I understand reading the case, it was an or conjunction, either in a public place or to the terror of the people. It means, if you’ve got one or the other of them, you’ve got the instruction, so I read the case. So, I will accept your instruction on affray.

As we have concluded, the instruction, by omitting the “to the terror of the people” element, was erroneous. The State’s reliance on Dashiell in its urging of the instruction given was misplaced. Dashiell was charged, not with affray, but with involuntary manslaughter. Our discussion concluded that Dashiell was entitled to an instruction that self-defense was a defense to affray, to the extent that affray was an underlying element of the involuntary manslaughter charge.

Thus, we reaffirm that affray is a viable common law offense in Maryland and that, when charged, and if the evidence justifies, a defendant is entitled to an instruction that contains both inherent elements of the crime — “in a public place” and “to the terror of the people.”

C. Sufficiency of the evidence as to affray

We next address Nottingham’s claim that there was insufficient evidence of either mutual combat or terror to the people and that, consequently, no affray instruction was appropriate in this case.

Claims of instructional error are governed by Maryland Rule 4-325, which provides in part:

(c) How Given. The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding. The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.

(e) Objection. No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury. An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object.

Rule 4-S25(c) requires that a trial court give a requested jury instruction “where ‘(1) the instruction is a correct statement of law; (2) the instruction is applicable to the facts of the case; and (3) the content of the instruction was not fairly covered elsewhere in instructions actually given.’” Cost v. State, 417 Md. 360, 368-69, 10 A.3d 184 (2010) (quoting Dickey v. State, 404 Md. 187, 197-98, 946 A.2d 444 (2008)). Only the second condition, whether the instruction was “applicable to the facts of the case,” is at issue here. But before we can address Nottingham’s claim, we must first determine, as the State suggests, which parts of that claim are preserved and which are not.

Nottingham made a timely objection to the circuit court’s affray jury instruction. He contended, inter alia, that, although it was clear that he had assaulted the victim in a public place, there was “absolutely no public surrounding it, no evidence of any individuals around.” In response to the State’s incorrect assertion that, under Dashiell, it was unnecessary to prove terror to the public, Nottingham countered that, in Dashiell, unlike in the present case, “there were other people present.” Then, following the trial court’s instruction, Nottingham repeated his objection, agreeing with the court’s characterization of that objection — that “it has to be a public disorder or some[ ] ... other person put in fear[.]”

At no time did Nottingham object to the challenged jury instruction on the ground that there was insufficient evidence of mutual combat. That issue is therefore not preserved. Md. Rule 4-325(e). As to that issue, reversal would be appropriate only if the alleged error were “plain.” Id. Given the evidence that Nottingham assaulted Post at least three times; that Post “pushed” Nottingham at least once during the fight; and that, upon being ejected from the tavern, Post “flipped ... off’ Nottingham as he was leaving, it is clear that there was no plain error (or indeed, any error at all) as to whether there was sufficient evidence of mutual fighting to warrant an affray jury instruction.

On the other hand, Nottingham’s claim that there was insufficient evidence of terror to the public to warrant an affray jury instruction is preserved. That claim, however, is without merit. Given the evidence that, inside the bar and in the presence of the bartender and other patrons, Nottingham threw several bar stools and punched Post at least once, and that there was mutual pushing and shoving, it is clear that there was sufficient evidence “that the acts and surrounding circumstances were likely to strike terror in anyone” observing the fight. Dashiell, supra, 214 Md.App. at 691, 78 A.3d 916 (citation and quotation omitted). We therefore conclude that an affray jury instruction was generated by the evidence.

D. The effect of the instructional error on the verdicts

Having concluded that the circuit court erred in omitting, in its jury instruction, any mention whatsoever of the “terror to the people” element of the crime of affray, but that it was appropriate to instruct the jury as to affray, under the evidence presented in this case, we turn next to consider the effect of the error on the verdicts. The leading case addressing the applicability of harmless error analysis to such an instructional error is Neder v. United States, 527 U.S. 1, 8-15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), which held that the omission of an element of an offense from a jury instruction is amenable to Chapman harmless error analysis.

In applying harmless error analysis in Neder, the Supreme Court framed the question before it as “whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.” Id. at 19, 119 S.Ct. 1827. If, in answering that question, “a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” Id. at 17, 119 S.Ct. 1827.

The State was required to show that Nottingham engaged in affray, that is, “the fighting together of two or more persons, either by mutual consent or otherwise, in some public place, to the terror of the people.” Dashiell, supra, 214 Md.App. at 689, 78 A.3d 916 (citation and quotation omitted). The element omitted from the instruction, that the fighting was “to the terror of the people,” was contested below. Moreover, the part of the fighting when the fatal blow was struck occurred outside, in the winter, at an early morning hour. Although we do not hesitate to say that, given that a portion of the fighting occurred inside the tavern, in the presence of others, there was sufficient evidence to establish “that the acts and surrounding circumstances were likely to strike terror in anyone,” id. at 691, 78 A.3d 916, we cannot say that this evidence was “overwhelming,” Neder, 527 U.S. at 17, 119 S.Ct. 1827, or that no rational jury could have concluded otherwise. Id. at 19, 119 S.Ct. 1827. We therefore conclude that the error was not harmless, and we vacate Nottingham’s conviction for affray.

“Under the law of this State, where there is a conviction for only one offense and an erroneous instruction on that offense, the judgment is ordinarily vacated and the case remanded for a new trial.” State v. Hawkins, 326 Md. 270, 290, 604 A.2d 489 (1992) (citation omitted). “However, where there are multiple offenses involved, as is the case here, the remedy for an error in the instructions on one of the offenses depends upon the degree to which the erroneous instruction taints each individual conviction.” Id. at 291, 604 A.2d 489.

As “terror to the people” is not an element of either assault in the second degree or reckless endangerment, it is clear that the erroneous affray instruction “despoiled only” the affray verdict, leaving the other two verdicts “chaste and pure,” and “there is no good cause to wash out the judgment entered on” the convictions for assault in the second degree and reckless endangerment. Id. Moreover, as the jury was properly instructed that it could convict Nottingham of involuntary manslaughter if it found him guilty of any of three predicate offenses — affray, assault in the second degree, or reckless endangerment — and it is clear from the verdicts that the jury found him guilty of both assault in the second degree and reckless endangerment, we hold that the conviction for involuntary manslaughter also is untainted by the error.

II. Speedy trial

Nottingham contends that, in “opportunistically” postponing his case by entering a nolle prosequi to the original indictment and thereafter obtaining a new indictment, the State caused his right to a speedy trial to be violated and that, therefore, the charges against him should have been dismissed. This contention is without merit.

The right to a speedy trial is guaranteed under the Sixth Amendment, made applicable to the states by the Fourteenth Amendment, as well as Article 21 of the Maryland Declaration of Rights. State v. Kanneh, 403 Md. 678, 687, 944 A.2d 516 (2008). In addressing a claimed violation of that right, we apply the four-factor balancing test articulated by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), “in which the conduct of both the prosecution and the defendant are weighed.” Kanneh, 403 Md. at 687-88, 944 A.2d 516 (quoting Barker, 407 U.S. at 530, 92 S.Ct. 2182); Glover v. State, 368 Md. 211, 221, 792 A.2d 1160 (2002).

Those factors are: (1) the “[l]ength of delay”; (2) the “reason for the delay”; (3) the “defendant’s assertion of’ his speedy trial right; and (4) “prejudice to the defendant.” Barker, 407 U.S. at 530, 92 S.Ct. 2182. None of these factors is, in itself, either necessary or sufficient to find a violation of the speedy trial right; instead, “they are related factors and must be considered together with such other circumstances as may be relevant.” Id. at 533, 92 S.Ct. 2182. But, before we apply the four-factor test, we must first determine whether the delay was of sufficient length to be deemed “presumptively prejudicial,” because, unless “there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Id. at 530, 92 S.Ct. 2182.

In determining whether there was a sufficient delay to trigger a constitutional speedy trial analysis, we must first ascertain the parameters of the time in question — the starting point and ending point. Ordinarily, in a case in which there was a retrial following the declaration of a mistrial, the starting point for computing the length of delay begins at the time when the mistrial was declared, and the. relevant time period runs until the commencement of the retrial. Icgoren v. State, 103 Md.App. 407, 420, 653 A.2d 972 (1995). That determination is changed, however, by the fact that, three days before the scheduled retrial, the State entered a nolle prosequi to the original charging document and, one week later, filed a new indictment. The Maryland rule in such case is that, so long as the State acted in good faith, the nolle prosequi terminates the original prosecution, and the speedy trial clock starts anew from the date of the filing of the new charging document. See State v. Henson, 335 Md. 326, 336-38, 643 A.2d 432 (1994); accord Clark v. State, 97 Md.App. 381, 393-94, 629 A.2d 1322 (1993) (“If the prior termination of charges is done in good faith, we start the speedy trial clock at the second indictment.”) (footnote omitted).

The State presented this very argument at the February 14, 2014 motions hearing, citing Clark and United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), in support, specifically pointing out that prosecutorial good faith “can include changes to a charging document.” At the conclusion of argument, the circuit court denied Nottingham’s motion to dismiss without articulating specific grounds, stating merely, “I find there’s no violation.”

Although the motions court did not articulate the basis of its ruling, it appears that it adopted the State’s argument, as it did not engage in the Barker four-factor balancing test. In this respect, the instant case is distinguishable from Henson, where the trial court likewise did not engage in the balancing test, Henson, 335 Md. at 332, 643 A.2d 432, but where, because the “State’s good faith in dismissing the charges ... was neither presented to, nor decided by, the motions court,” id. at 389, 643 A.2d 432, it was necessary to remand so that the circuit court could make findings as to whether the State had acted in good faith and whether Henson’s speedy trial right had been violated, once the relevant time period had been determined. Id. at 340, 643 A.2d 432.

Here, in contrast, given that the State’s argument focused almost exclusively on good faith, and given the presumption that, “absent a misstatement of law or conduct inconsistent with the law, a trial judge is presumed to know the law and apply it properly,” we conclude that the motions court found, as a fact, that the State acted in good faith in entering a nolle prosequi to the original indictment and, one week later, returning a new indictment. Medley v. State, 386 Md. 3, 7, 870 A.2d 1218 (2005) (brackets omitted) (citation and quotation omitted); see also Morris v. State, 153 Md.App. 480, 489-90, 837 A.2d 248 (2003) (observing that, where motions court merely announces its ruling, “without announcing any findings of fact,” appellate court “will resolve ambiguities and draw inferences in favor of the prevailing party and against the losing party”). Because, given that implicit finding, the speedy trial clock began on December 17, 2013, the date when the new indictment was filed, the motions court was obviously correct in denying, on February 14, 2014, Nottingham’s motion for speedy trial, as it is clear that a two-month delay falls well short of triggering the Barker analysis. See, e.g., Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (observing that, generally, a delay triggers a speedy trial analysis “at least as it approaches one year”); Divver v. State, 356 Md. 379, 389-90, 739 A.2d 71 (1999) (observing that delay as brief as eight months could trigger constitutional speedy trial analysis); State v. Ruben, 127 Md. App. 430, 440, 732 A.2d 1004 (1999) (observing that “delay of nearly 11 months from arrest to trial was of constitutional dimension, albeit barely so”); Icgoren, supra, 103 Md.App. at 423, 653 A.2d 972 (delay of eleven months and thirteen days “barely” of constitutional dimension); Howard v. State, 66 McLApp. 273, 291, 503 A.2d 739 (1986) (delay of eight months and 26 days of constitutional dimension).

JUDGMENT OF THE CIRCUIT COURT FOR WORCESTER COUNTY REVERSED AS TO AFFRAY CHARGE; ALL OTHER JUDGMENTS OF CONVICTION AFFIRMED. CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS ASSESSED ONE HALF TO WORCESTER COUNTY AND ONE HALF TO APPELLANT.

      . Different judges presided at the first trial, including the speedy trial motions hearing, and the second trial.

      . The request for continuance was made by the State based on "trial conflicts.” At the motions hearing, the motions court observed that Nottingham’s assertions of prejudice as a result of the delay were "speculative” and, at least implicitly, determined good cause and denied the motion to dismiss.

      . The circuit court granted a motion for judgment of acquittal as to the intoxication count.

      . Hochheimer, in turn, cited State v. Sumner, 36 S.C.L. (5 Strob.) 53 (S.C.Ct.App.1850), in support. In that case, the court addressed, among other things, whether the State was required to prove "that the people were terrified.” Id. at 56. Sumner held that "[t]he existence of terror among the people, as a matter of fact, does not require proof.” Id. The court further explained that, although affray "must be charged to have been in a public place,” if "proved accordingly, ... it is presumed” that “the inference of law will be strong enough to import whatever of terror may be a necessary ingredient." Id.

      . To the extent that State v. Sumner, supra, 36 S.C.L. (5 Strob.) 53, holds otherwise, we decline to follow it.

      . The State misconstrues Nottingham's appellate claim as, in part, a challenge to the sufficiency of the evidence. In fact, Nottingham does not directly challenge the sufficiency of the evidence; indeed, his brief does not even mention Maryland Rule 4-324, the rule which governs motions for judgment of acquittal, the vehicle for raising such a challenge. Only because a challenge to a jury instruction on the ground that it was not generated by the evidence inevitably injects the question of evidentiary sufficiency into the case is the latter question before us. See Dishman v. State, 352 Md. 279, 292, 721 A.2d 699 (1998) (observing that, in considering whether a requested jury instruction was generated by the evidence, a reviewing court must determine whether the proponent of the instruction "produced that minimum threshold of evidence necessary to establish a prima facie case that would allow a jury to rationally conclude that the evidence supports the application of the legal theory desired”).
      Given that the remedy for an instructional error is typically reversal and the opportunity for a new trial, see, e.g., State v. Hawkins, 326 Md. 270, 290-91, 604 A.2d 489 (1992), whereas the remedy for evidentiary insufficiency is outright acquittal, see, e.g., Evans v. Michigan, 568 U.S. -, -, 133 S.Ct. 1069, 1073, 185 L.Ed.2d 124 (2013), we would face a dilemma if Nottingham’s instructional claim had merit, because the possibility would arise of reversing a conviction and ordering a retrial, despite having found that the evidence was insufficient to warrant a State-requested jury instruction and, therefore, surely insufficient to sustain the conviction. Because, as we explain, the affray instruction was generated by the evidence, we need not confront that dilemma.

      . In federal criminal trials, there are two standards of harmless error, depending upon whether the error at issue is "constitutional.” Claims of non-constitutional error in federal criminal cases are governed by the standard articulated in Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), under which an error requires reversal only if it “had substantial and injurious effect or influence in determining the juiy’s verdict.” Claims of constitutional error in federal criminal trials, in contrast, are governed by the more stringent standard articulated in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), under which an error requires reversal unless a reviewing court is "able to declare a belief that it was harmless beyond a reasonable doubt.” The latter standard applies to all errors, whether or not of constitutional dimension, in Maryland criminal trials. Dorsey v. State, 276 Md. 638, 657-59, 350 A.2d 665 (1976). Thus, Neder applied the Dorsey harmless error standard.

      . Indeed, it was fortuitous that the act was captured on a surveillance video camera, as there were no other witnesses at the time the fatal blow was struck.

      . Inexplicably, the State does not raise this contention in its brief. We may, however, affirm a judgment on any ground apparent from the record, especially given that this issue was raised in and, as we explain, decided by the court below. See, e.g., State v. Phillips, 210 Md.App. 239, 270, 63 A.3d 51 (2013).

      . United States v. MacDonald, 456 U.S. 1, 7, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), held that "the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges.” That decision did not directly address whether the time from a defendant's initial arrest until the dismissal of charges should be counted in a speedy trial claim raised after a new indictment is issued. In State v. Henson, 335 Md. 326, 338, 643 A.2d 432 (1994), the Court of Appeals interpreted MacDonald to hold that "the period preceding the earlier dismissal is not counted in the speedy trial analysis.”

      . Although it obviously could not have been error for the circuit court to have begun trial, on June 16, 2014, that is, six months after the new indictment was filed, given that Nottingham did not renew his speedy trial motion at that time, we further note that the Court of Appeals observed, in State v. Gee, 298 Md. 565, 578, 471 A.2d 712 (1984), that it was "not aware of an opinion of the Supreme Court of the United States or of the appellate courts of this State which holds that a delay of six months is of constitutional dimension.” Indeed, it could even be argued that Nottingham affirmatively waived his speedy trial claim when, at the beginning of the retrial, the court asked: "And to the extent any procedural things didn’t go right in order, do you waive that?” To which defense counsel replied, "We do, Your Honor.” As the State does not contend that Nottingham thereby waived his speedy trial claim, we shall not rely upon this ground in affirming the circuit court's denial of it.


source: Caselaw Access Project

author: LEAHY, J.

license: Public Domain

text:
    135 A.3d 866
    William HARRIS, a minor by his mother, Natonia Ratchford v. HOUSING AUTHORITY OF BALTIMORE CITY.
    No. 43,
    Sept. Term, 2015.
    Court of Special Appeals of Maryland.
    April 27, 2016.
    Reconsideration Denied June 7, 2016.

      A. Reza Davani (Saul E. Kerpelman & Associates, PA, on the brief), Baltimore, MD, for appellant.
    Dennis C. Whelley (Rollins, Smalkin, Richards & Mackie, LLC, on the brief), Baltimore, MD, for appellee.
    Panel: BERGER, NAZARIAN, and LEAHY, JJ.
   LEAHY, J.

In 2012, Natonia Ratchford sued the Housing Authority of Baltimore City (“Appellee” or “HABC”) on behalf of William Harris, her minor son, for injuries due to lead-based paint exposure that occurred years earlier, between 2003 and 2007. HABC was the owner of a row house where William lived or visited during this period.

The September 2012 complaint, filed in the Circuit Court for Baltimore City, contained allegations of negligence and violations of the Maryland Consumer Protection Act against HABC. Following discovery and a stay of proceedings, HABC filed a motion for summary judgment based on Appellants’ failure to comply with the Local Government Tort Claims Act’s (“LGTCA”) notice requirement, as well as Appellants’ failure to demonstrate good cause for a waiver of the notice requirement. Appellants responded, inter alia, with an affidavit from Ms. Ratchford stating that in 2004 she had given HABC oral notice of her intention to sue HABC for William’s injury due to lead exposure. The court granted HABC’s motion. From this judgment, Appellants filed a timely appeal posing the following questions, which we have rephrased and reordered:

1. Is there an absolute requirement that substantial compliance under the LGTCA include written notice, so that oral notice of a claim made by the mother of a lead poisoned minor to the designated representative of HABC necessarily fails as substantial compliance?

2. Did the Circuit Court err by determining whether Appellants demonstrated good cause for waiver of the notice requirements under the LGTCA rather than submitting the issue to a jury?

3. Did the trial court err as a matter of law by misinterpreting and misapplying the test for good cause under the LGTCA?

4. Did the trial court err as a matter of law by not excluding hearsay testimony which the HABC submitted in support of its Motion for Summary Judgment?

We affirm the judgment of the circuit court. Without deciding whether oral notice could ever substantially comply with the LGTCA notice requirement, we hold that Ms. Ratchford’s 2004 oral notice failed to fulfill the purpose of the requirement — which is to apprise the local government unit of its potential liability in time for it to conduct its own investigation “while the evidence was still fresh and the recollection of the witnesses was undiminished by time, sufficient to ascertain the character and extent of the injury and [the local government’s] responsibility in connection with it.” Ellis v. Housing Authority of Baltimore City, 436 Md. 331, 343, 82 A.3d 161 (2013) (citation and internal quotation marks omitted). We further hold that the circuit court did not abuse its discretion by failing to find good cause for a waiver of the notice requirement, nor did the circuit court usurp the role of the jury in making this determination itself. Finally, even if the hearsay issue were relevant to the circuit court’s grant of summary judgment, which it was not, the circuit court did not improperly consider hearsay in its grant of summary judgment.

BACKGROUND

William Harris was born on January 11, 2003. The complaint in the underlying action alleges that, from 2003 to 2010, he lived at or frequented the row house located at 2238 Guilford Avenue (“the Property”), and that his mother, Natonia Ratchford, was a tenant, resident, or invitee of the Property. The HABC’s precise role — whether it be as property owner, landlord, landlord’s agent, or property manager — in regard to the Property is not pleaded in the underlying complaint, but an affidavit submitted by HABC avers that HABC “owned the property when [Appellants] claim [] to have lived and/or visited there.”

Although the Property was built before 1978, the record does not contain evidence of lead-based paint hazards within the Property. An April 7, 1994 report prepared for the Property by Micron, Inc., an environmental assessor, revealed no lead-based paint hazards. A Maryland Department of the Environment inspection report dated March 29, 1994, states that the Property passed the relevant certification criteria. The Property then received a full risk reduction inspection and passed the certification criteria in 2001. The Property passed further inspections in 2004, 2006, and 2009.

William’s blood tested positive for lead several times between December 30, 2003, and June 14, 2007. The highest level readings were 19 micrograms per deciliter on July 16, 2004, and 11 micrograms per deciliter on October 18, 2004.

Ms. Ratchford executed an affidavit in the underlying case on January 20, 2014, describing certain events that occurred in 2004. She averred that, in 2004, the Property’s bedrooms, living room, and dining room had “chipping, peeling and flaking paint,” and she observed William putting paint chips in his mouth. In her affidavit, Ms. Ratchford further stated:

6. I called the housing manager at my rental office numerous times and complained about the chipping, peeling and flaking paint. In approximately 2004, after I got one of William’s lead tests that showed he had lead in his blood, I was so furious that I went to the rental office and I showed them the results of the lead test. I was so angry that I told the HABC I was going to sue them for poisoning my child.

7. In response to my threat to sue, the HABC had someone come in to do a lead test. The HABC also had maintenance people come to the house and paint over the chipping, peeling, and flaking paint. I relied on the HABC in believing that this was the only thing they could do in response to my complaints and threat to sue, and that painting over the deteriorated paint would stop William from having lead in his blood.

8. However, the paint kept chipping, peeling, and flaking onto the floor and windowsills. To address the ongoing problem, the HABC had maintenance people come every year to paint over the chipping, peeling, and flaking paint.

I relied on the HABC in believing that this regular upkeep would prevent William from having lead in his blood. (Emphasis supplied).

Nevertheless, Appellants waited until September 6, 2012, to file suit against HABC in the Circuit Court for Baltimore City, alleging negligence and violations of the Maryland Consumer Protection Act.

On January 9, 2015, HABC filed a motion for summary judgment, arguing that Appellants had failed to comply with the LGTCA requirement that one who intends to sue a local government entity must provide notice within 180 days of the tort’s occurrence. HABC also contended that Appellants had not demonstrated good cause for waiver of the requirement and that HABC had suffered prejudice as a result of Appellants’ failure to comply with the LGTCA. HABC filed with its motion an affidavit by William M. Peach, III, Director of Housing Management Administration, who had been employed by HABC since 1987. The affidavit stated that, before 2011, HABC’s record retention policy was to destroy records after three years and that HABC no longer had complete records for the Property for the time that William was a resident or visitor of the Property. Mr. Peach’s affidavit further averred to his attempts to contact people employed by HABC from 2003-10 in order to find information concerning Appellants’ claims:

6. Some of the HABC managers involved in the operation and/or maintenance of the property when the Plaintiff claim[s] to have resided at and/or visited there are no longer employed by the HABC. In cases where I have been able to find current employees of HABC who were in any managerial capacity during the time-frame referenced in Plaintiffs complaint they have been uniformly unable to recall anything about the condition of specific property during the time frames referenced in Plaintiffs Complaints.

(Emphasis supplied). Mr. Peach affirmed that a search through HABC’s records did not reveal any notice of any injury to William due to lead exposure at the Property until the filing of the lawsuit in 2012:

7. I have caused a search of all of the HABC’s files and records for any complaints, letters, notices or related documentation made by the Plaintiff or anyone in the Plaintiffs family prior to service of suit in this case regarding a claim for damages because of Plaintiffs alleged injurious exposure to lead-based paint at the property during the time the Plaintiff claims to have lived or visited there and I have found none. The first documentary evidence found regarding Plaintiffs claims for damages as a result of alleged injurious exposure to lead-based paint at the property was this lawsuit upon it on September 14th 2012.

The affidavit then stated that because of the untimely notice, HABC was prejudiced because it was not able to perform a physical investigation of the Property during the time of William’s alleged injuries:

8. Because of Plaintiffs untimely notice, the HABC was deprived of any opportunity to respond to an appropriate statutory notice and conduct a full, litigation-focused, physical investigation of any alleged “defective paint” condition at the property during the time that Plaintiff claims to have resided at and/or visited there and was deprived of any opportunity to document the alleged defective condition with photographs, or to take depositions for preservation of evidence.

Appellants filed a response in opposition to summary judgment on January 27, 2015, arguing that: (1) Appellants needed additional time to procure expert testimony as to evidence of when facts existed to support each element of Appellants’ negligence claim; (2) Appellants substantially complied with the LGTCA’s notice requirements; (3) there was good cause to waive the LGTCA’s notice requirement; and (4) HABC failed to affirmatively demonstrate prejudice that would preclude waiver of the LGTCA’s notice requirement. Appellants attached the affidavit of Ms. Ratchford, quoted at length supra, to its response. HABC filed a reply on February 18, 2015.

On February 25, 2015, the circuit court heard oral argument on the motion for summary judgment. HABC argued that there was no strict compliance or substantial compliance with the LGTCA’s notice requirement and that an affidavit, by itself, could not equate to substantial compliance. HABC further contended that there was no good cause for waiver of the notice requirement and that HABC would be prejudiced because of the fact that too much time had now passed for HABC to be able to defend the case effectively.

Appellants responded, saying that Ms. Ratchford’s oral notice, as set out in the January 20, 2014 affidavit, substantially complied with the LGTCA’s notice requirement. Even if it did not, Appellants argued, inter alia, that there was also good cause for waiving the notice requirement because there was an elevated blood-lead level and “timely notice of [] chipping, [] peeling, and flaking paint.” Appellants further argued that good cause existed because Appellants relied on the fact that HABC had sent a person to check the Property for lead and painted the Property several times. The court reserved on the ultimate question of summary judgment so that it could deliver a written decision.

In an order entered March 11, 2015, the circuit court granted HABC’s motion for summary judgment. The court explained, in its memorandum accompanying the order, that it was more likely that Ms. Ratchford’s threat of suit was intended to prod HABC into repairing the Property, rather than an actual threat of legal action, but that, for purposes of summary judgment, the court had to accept as true her statement that she actually intended to file suit against HABC. The court found that Appellants “cannot satisfy the LGTCA notice requirement on the basis of Ms. Ratchford’s testimony that she gave notice of an intention to sue orally only.”

The court similarly found that Appellants had not demonstrated “good cause” to waive the notice requirement. The court observed the similarity of the facts of this case to those in Housing Authority of Baltimore City v. Woodland, 438 Md. 415, 92 A.3d 379 (2014), in which the Court of Appeals affirmed a circuit court’s finding of good cause under the LGTCA. The court, however, distinguished Woodland by noting that, in that case, HABC moved the tenants after they threatened to sue, in distinction to the instant case in which Appellants were not moved to another location. The court then cited Woodland for the proposition that a circuit court has wide discretion to determine the presence of good cause. The court stated that a gap of “approximately ten years” between the threat of a lawsuit and the eventual filing of suit did not demonstrate good cause that would excuse non-compliance with the statutory notice requirement. Appellants timely noted the instant appeal on March 16, 2015.

DISCUSSION

I.

Oral Notice and Substantial Compliance Under the LGTCA

Appellants contend that Natonia Ratchford’s oral notice, as sworn to in her affidavit, substantially complied with the LGTCA’s notice requirement. Appellants rely on Ellis v. Housing Authority of Baltimore City, 436 Md. 331, 82 A.3d 161 (2013), reconsideration denied (2014), claiming that it supports the proposition that oral notice may be sufficient to substantially comply with the LGTCA’s notice requirement. Accordingly, Appellants maintain that the trial court erred in not finding that Ms. Ratchford’s oral notice satisfied the test outlined in Ellis for substantial compliance.

In riposte, HABC argues that the narrow holdings in Ellis did not embrace a determination that oral notice alone could constitute substantial compliance with the notice requirement. HABC presses that no Maryland appellate court has held that oral notice alone is sufficient to substantially comply with the requisites of the LGTCA. Those cases in which substantial compliance has been found have always involved a writing constituting notice within the statutory notice period. HABC maintains that the purpose of the notice requirement is to protect local governments from meretricious claims and that this purpose is eviscerated if oral notice is allowed to constitute substantial compliance with the notice requirement.

We review the trial court’s determination as to whether the Appellants substantially complied with the LGTCA’s notice requirement as a matter of law. Woodland, 438 Md. at 428, 92 A.3d 379 (citation omitted). In 2004, the LGTCA provided, in pertinent part:

(a) Notice required. — Except as provided in subsection (c) of this section, action for unliquidated damages may not be brought against a local government or its employees unless the notice of the claim required by this section is given within 180 days of the injury.

(b) Manner of giving notice. — (1) ... the notice shall be given in person or by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, by the claimant or the representative of the claimant, to the county commissioner, county council, or corporate authorities of a defendant local government, or: (i) In Baltimore City, to the City Solicitor____

(3) The notice shall be in writing and shall state the time, place, and cause of the injury.

Maryland Code (1973, 2002 Repl. Vol.), Courts and Judicial Proceedings Article (“CJP”), § 5-304. (Emphasis added).

Therefore, to strictly comply with the LGTCA as it existed in 2004, a plaintiff suing a local government entity had to provide written notice of the claim, in person or by certified mail, within 180 days of the injury.

A plaintiff who has failed to strictly comply with the LGTCA’s notice requirement — as Appellants have done in the present case — may still demonstrate substantial compliance by fulfilling the four-part test laid out in Ellis:

(1) the plaintiff makes “some effort to provide the requisite notice”; (2) the plaintiff does “in fact” give some kind of notice; (3) the notice “provides ... requisite and timely notice of facts and circumstances giving rise to the claim”; and (4) the notice fulfills the LGTCA notice requirement’s purpose, which is “to apprise [the] local government of its possible liability at a time when [the local government] could conduct its own investigation, i.e., while the evidence was still fresh and the recollection of the witnesses was undiminished by time, sufficient to ascertain the character and extent of the injury and [the local government’s] responsibility in connection with it.”

Ellis, 436 Md. at 342-43, 82 A.3d 161 (brackets in Ellis) (quoting Faulk v. Ewing, 371 Md. 284, 298-99, 808 A.2d 1262 (2002)).

In Ellis, the Court of Appeals consolidated two cases in which Brittany Ellis and Tyairra Johnson separately sued HABC for negligence and violations of the Maryland Consumer Protection Act arising out of their alleged exposure to lead-based paint. 436 Md. at 337, 82 A.3d 161. In Johnson’s case, her mother submitted an affidavit stating that, in 1993, she saw her child put chipping paint in her mouth and “immediately complained to a housing manager of [HABC] about chipping paint.” Id. at 340, 82 A.3d 161 (internal quotations omitted). She asked the housing manager to fix the paint issue and “threatened to sue [HABC] if [HABC] did not fix the violations causing injuries to [Johnson].” Id. (brackets in original; internal quotations omitted). Seven years later, in 2000, Johnson’s mother received a blood-lead level test result for Johnson stating that she had elevated blood-lead levels, and, in 2011, Johnson sued HABC. Id.

The Court held that Johnson did not substantially comply with the LGTCA’s notice requirement for two reasons. Id. at 345, 82 A.3d 161. First, the Court explained that “Johnson’s mother threatened HABC if it did not fix the chipping paint----” Id. (emphasis in original). There was no substantial compliance because the threat was conditional; “[a] plaintiff does not substantially comply with the LGTCA notice requirement where the plaintiff demands that a local government fix a defect, but neither explicitly nor implicitly indicates that the plaintiff intends to sue the local government regarding an injury resulting from the defect.” Id. (citing Halloran v. Montgomery Cnty. Dep’t of Pub. Works, 185 Md.App. 171, 187, 968 A.2d 1104 (2009)). Second, the Court determined that because Johnson’s mother did not learn of the elevated blood-lead level, constituting the injury, until six or seven years after the alleged oral notice, it was not possible that her oral notice constituted substantial compliance with the LGTCA’s notice requirement because the injury had not arisen until after the threat. Id. at 346, 82 A.3d 161.

In Ellis’s case, the University of Maryland sent Ellis’s mother a letter in June 1992 stating that Ellis’s blood-lead test revealed 14 micrograms of lead per deciliter. Id. at 338, 82 A.3d 161. At the same time, HABC also received a University of Maryland form letter containing Ellis’s blood-lead level results, but the record was not entirely clear as to how HABC received these test results. Id. at 338, 345, 82 A.3d 161. In 2010, 18 years after the first blood-lead level test, Ellis sued HABC. Id. at 338, 82 A.3d 161. The Court observed that there was no indication in the record of any complaint from the Ellis family to HABC concerning lead-based paint hazards. Id. at 344, 82 A.3d 161. The Court stated that its “conclusion [wa]s unchanged by the circumstance that HABC received the results of Ellis’s first blood-lead level test.” Id. Because there was no notice from Ellis indicating an intention to file suit, the Court held that there was no substantial compliance. Id.

The Court of Appeals rejected both appellants’ contentions that HABC had notice of their injuries simply because HABC was legally required to inspect properties for deteriorated lead paint and should have been aware that older dwellings frequently contain lead paint. Id. at 347, 82 A.3d 161. The Court held that “[a] plaintiff does not substantially comply with the LGTCA notice requirement where the plaintiff does not ‘in fact’ give some kind of notice.” Id. at 347, 82 A.3d 161 (quoting Faulk, 371 Md. at 299, 808 A.2d 1262).

Returning to the case on appeal, Ms. Ratchford’s affidavit does say that she told the HABC in 2004 that she was going to sue them for poisoning her child. Thus, Ms. Ratchford does not run afoul of two of the problems Johnson faced in Ellis. The affidavit frames her notice in unequivocal terms and is not conditional on the dwelling being repaired. Further, she had notice of the injury before making the threat because she had the result from one of William’s blood tests. If we take Ms. Ratchford’s affidavit as true, as we must, we observe that Appellants satisfy the first two of the four requirements presented in Ellis, id. at 342-43, 82 A.3d 161 — she did make an effort to provide notice, and she did in fact give some kind of notice.

The issue, therefore, is whether Ms. Ratchford’s oral notice substantially complied with the remaining requirements articulated in Ellis. We agree with the circuit court, and conclude that the oral notice described in Ms. Ratchford’s affidavit did not fulfill the purpose of the LGTCA notice requirement, which is to apprise the local government unit of potential liability in time for the local government to conduct its investigation. See id. at 343, 82 A.3d 161 (quoting Faulk, 371 Md. at 298-99, 808 A.2d 1262). The oral notice was insufficient to permit the local government to conduct an investigation that would allow it “ ‘to ascertain the character and extent of the injury and [the local government’s] responsibility in connection with it.’” Id. (quoting Faulk, 371 Md. at 298-99, 808 A.2d 1262). As the circuit court noted in its memorandum opinion:

This case illustrates the problem. A plaintiff or a relative of a plaintiff, long after passage of the notice period, might assert by affidavit or in testimony that he or she gave notice orally. The alleged recipient of the notice may have little reason to remember the alleged conversation; indeed, as here, the alleged recipient may not even be identified specifically. A plaintiff should not be able to satisfy what is otherwise a strict statutory requirement on this basis alone.

Appellants aver that, in 2004, Ms. Ratchford informed unknown HABC employees in the rental office that she was going to sue HABC. However, she gave no written notice to any employee or agent of HABC, and Appellants did not file suit until September 6, 2012 — eight years later. As Mr. Peach’s affidavit notes, HABC had no way, in 2012, to find the alleged recipient of Ms. Ratchford’s oral notice. Moreover, Ms. Ratchford’s professed oral notice to unidentified HABC rental office employees with unknown authority failed to apprise HABC of its potential liability at a time and in a manner that would have allowed HABC to mount an investigation to determine its own liability, see Ellis, 436 Md. at 342-43, 82 A.3d 161 (quoting Faulk, 371 Md. at 298-99, 808 A.2d 1262), especially when Appellants did not bring suit until eight years after the alleged oral notice. We conclude that Ms. Ratchford’s oral notice lacking such details could not satisfy the purpose of the statute to “ ‘protect the municipalities and counties of the State from meretricious claimants and exaggerated claims.’” See Moore v. Norouzi, 371 Md. 154, 167, 807 A.2d 632 (2002) (quoting Williams v. Maynard, 359 Md. 379, 389-90, 754 A.2d 379 (2000)).

For the foregoing reasons, we hold that Ms. Ratchford’s oral notice in 2004 to an unnamed employee in HABC’s rental office did not substantially comply with the LGTCA’s notice requirement.

II.

Good Cause for Waiver

Appellants next argue that the jury, not the judge, is the body responsible for determining good cause, i.e., whether the plaintiff acted with the degree of diligence of an ordinarily prudent person in the same or similar circumstances. In what appears to be an alternative argument, Appellants also argue that it was inappropriate for the circuit court to step into the jury’s shoes and make the determination of good cause, or lack thereof, itself. HABC responds that the plain language and the purpose of the LGTCA’s notice provision, as well as the case law surrounding it, determine that this is an issue to be decided by the judge, not the jury, before trial. To require that every suit proceed to a jury for a determination of good cause would defeat the purpose of the statute.

The Court of Appeals instructs that we review for abuse of discretion a trial court’s conclusion as to whether a plaintiff showed good cause for the plaintiffs failure to comply with the LGTCA notice requirement. Ellis, 436 Md. at 348, 82 A.3d 161 (citing Prince George’s Cnty. v. Longtin, 419 Md. 450, 467, 19 A.3d 859 (2011)). See also Rounds v. Maryland-Nat’l Capital Park and Planning Comm’n, 441 Md. 621, 644-45, 109 A.3d 639 (2015) (reviewing for abuse of discretion circuit court’s finding that plaintiffs failed to demonstrate good cause). Our task on appeal is not “to decide ‘good cause’ afresh, but rather, to decide whether the trial court abused its discretion in its good cause determination.” Woodland, 438 Md. at 434, 92 A.3d 379 (citing Rios v. Montgomery Cnty., 386 Md. 104, 121, 872 A.2d 1 (2005)). “An abuse of discretion in a ruling may be found “where no reasonable person would share the view taken by the trial judge.’ ” Id. at 435, 92 A.3d 379 (quoting Consol. Waste Indus., Inc. v. Standard Equip. Co., 421 Md. 210, 219, 26 A.3d 352 (2011)) (emphasis added) (some internal quotations omitted).

Clearly, the applicable standard of review is premised on the assumption that it is the duty of the trial court to determine whether a plaintiff has shown good cause for the failure to comply with the LGTCA’s notice requirement. Appellants’ contention that the judge inappropriately usurped the role of the jury is plainly without merit according to the applicable statute:

(c) Waiver of notice requirement. — Notwithstanding the other provisions of this section, unless the defendant can affirmatively show that its defense has been prejudiced by lack of required notice, upon motion and for good cause shown the court may entertain the suit even though the required notice was not given.

CJP § 5-304(c) (emphasis added). Thus, even when a plaintiff does not strictly or substantially comply with the LGTCA’s notice requirement, a trial court may, upon a finding of good cause, waive the notice requirement. Id. After a finding of good cause, the trial court may only waive the notice requirement if the defendant cannot affirmatively demonstrate prejudice. Id.

Appellants also argue that Article 23 of the Declaration of Rights requires that the good cause issue be submitted to the jury. Appellants analogize the underlying action to a mandamus proceeding and state that, while the ultimate decision of good cause is for the court, the underlying factual issues are for the jury to decide. HABC responds that Ellis held that the LGTCA did not violate Article 19 of the Maryland Declaration of Rights, and that the same reasoning should apply to Appellants’ argument under Article 23. This argument is not preserved. We have scoured the record without finding any instance of an argument before the circuit court concerning whether Article 23 of the Maryland Declaration of Rights requires the issue of good cause to be submitted to the jury. Maryland Rule 8-131 (a) provides that “[ojrdinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court[,]” and we do not depart from this practice now, especially when Appellants cite no Maryland cases in the briefing that suggest Article 23 requires that the issue of good cause be decided by a jury.

We now turn to Appellants’ argument that the court erred in its good cause determination. “A plaintiff shows good cause for his or her failure to comply with the LGTCA notice requirement where the plaintiff ‘prosecute[s] his [or her] claim with th[e] degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.’ ” Ellis, 436 Md. at 348, 82 A.3d 161 (alteration in Ellis) (emphasis supplied) (quoting Rios, 386 Md. at 141, 872 A.2d 1). A plaintiff suing a local government also “shows good cause for his or her failure to comply with the LGTCA notice requirement where the plaintiff reasonably relies on ‘misleading’ representations by a local government.” Id. at 348^49, 82 A.3d 161 (quoting Rios, 386 Md. at 141-42, 872 A.2d l). The fact that a plaintiff is a minor at the time of an injury, however, does not, by itself, constitute good cause. Id. at 351, 82 A.3d 161 (citing Rios, 386 Md. at 144, 872 A.2d 1). The trial court, knowing the context and facts of the case, is best positioned to determine good cause. Woodland, 438 Md. at 435, 92 A.3d 379 (citing Moore v. Norouzi, 371 Md. 154, 183, 807 A.2d 632 (2002)).

In Woodland, the appellee child received test results showing elevated blood-lead levels at two time periods in 1997. Id. at 422, 92 A.3d 379. After the second test, the appellee’s mother visited the HABC’s management office and discussed the blood test results with the property manager. Id. at 422-23, 92 A.3d 379. The property manager then requested a modified risk reduction and lead dust test for the subject property. Id. at 423, 92 A.3d 379. The report resulting from that test recommended relocation, and HABC relocated the appellee and her family. Id. Twelve years later, the appellee sued HABC. Id. The circuit court found both substantial compliance and good cause to waive the notice requirement. Id. at 424, 92 A.3d 379.

On appeal, the Court of Appeals concluded that the circuit court erred in its substantial compliance finding but nonetheless held that it was not an abuse of discretion for the circuit court to find that the appellee met the good cause exception. Id. at 425, 92 A.3d 379. The Court stressed that a circuit court has wide discretion whether to find good cause to waive the notice requirement. Id. at 434-36, 92 A.3d 379. The Court stated “that it was not unreasonable for the trial judge to conclude that Woodland’s mother and grandmother acted with a reasonable degree of diligence under the circumstances.” Id. at 435, 92 A.3d 379. The Court explained that ordering the expert inspection of the property and the relocation of the appellee’s family could have reasonably induced appellee’s family “to believe that they had done enough, in terms of notice” and that “[tjhese circumstances could reasonably have justified, in the trial judge’s mind, the conclusion that the Woodland family reasonably relied on HABC’s prompt and curative action in not giving additional notice.” Id. at 436, 92 A.3d 379. The Court held that, in those circumstances, the circuit court did not abuse its discretion in finding that the appellee’s family had good cause for failing to comply with the LGTCA’s notice requirement. Id. at 437, 92 A.3d 379.

In the instant case, there is no allegation or suggestion of misleading representations by the local government. However, Ms. Ratchford averred in her affidavit that in response to her oral threat, the HABC sent people to do a lead test and “had maintenance people come to the house and paint over the chipping, peeling, and flaking paint.” She claimed that she “relied on the HABC in believing that this was the only thing they could do in response to my complaints and threat to sue, and that painting over the deteriorated paint would stop William from having lead in his blood.”

The circuit court, in its memorandum and order, analyzed the foregoing information and found good cause to be lacking. The court distinguished Woodland, explaining that, in that case, HABC moved the tenants to another unit after the threat of suit. The present action, however, “was brought approximately ten years after [ ] Ratchford’s threat to sue the HABC.” The circuit court explained that the oral complaint in 2004 might satisfy ordinary diligence, but that Ms. Ratchford’s failure to follow through with the claim was not reasonable. The court found the lack of tenant relocation in this case important, stating that this “undercut[] any notion that the HABC’s response to her threat was so complete as to remove any need to act further.” After analyzing the information, the circuit court exercised its discretion in concluding that Appellants had not shown good cause.

We agree with the circuit court, and conclude that it did not abuse its discretion in finding that good cause was lacking, nor did the court inappropriately step into the shoes of the jury. Given the circuit court’s wide discretion as enunciated in Woodland, id. at 434-36, 438, 92 A.3d 379, we hold that it was not an abuse of discretion for the circuit court to conclude that Appellants had not demonstrated good cause for a waiver of the LGTCA notice requirement. Unlike in Woodland, id. at 423, 92 A.3d 379, HABC did not move William to a new property, so there is no suggestion that HABC was not required to take any further action to address Ms. Ratchford’s alleged oral complaint. Further, the eight-year span of time between the alleged oral notice and the filing of suit evidences a lack of good cause. We cannot say that no reasonable person would share the view taken by the circuit court. See id. at 435, 92 A.3d 379 (quoting Consol. Waste Indus., Inc., 421 Md. at 219, 26 A.3d 352). As discussed further below, the court did not abuse its discretion in considering the length of time between oral notice and the filing of the complaint.

We conclude the circuit court did not abuse its discretion in not finding good cause to waive the LGTCA notice requirement.

III.

Good Cause Test

Appellants next argue that the trial court committed reversible error because it misinterpreted the test for good cause. Appellants contend that the time that a plaintiff files suit is irrelevant to a determination of good cause and maintains that the notice issue and the statute of limitations issue are two distinct concepts. Appellants appear to be arguing that considering the time of filing suit is reversible error, thereby implying that it is not subject to an abuse of discretion standard.

HABC- responds that the test for a good cause waiver is whether a plaintiff prosecuted a claim “with a degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.” HABC contends that the large amount of time that elapsed between 2004, the date of the alleged oral notice, and 2012, the date of filing suit, demonstrates a lack of ordinary diligence. HABC maintains that even if another trial judge would have reached a different result, it is not an abuse of discretion for the circuit court to rule as it did here.

As discussed supra, “[a] plaintiff shows good cause for his or her failure to comply with the LGTCA notice requirement where the plaintiff ‘prosecute[s] his [or her] claim with th[e] degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.’” Ellis, 436 Md. at 348, 82 A.3d 161 (alteration in Ellis) (emphasis supplied) (quoting Rios, 386 Md. at 141, 872 A.2d 1). We conclude that the time of filing suit is patently relevant to determining the degree of a plaintiffs diligence in prosecuting her claim under the LGTCA. Certainly, the Court of Appeals has examined the time between injury and lawsuit in analyzing good cause in the past. See Ellis, 436 Md. at 350, 82 A.3d 161 (concluding that it was not an abuse of discretion for the circuit court to find that there was no good cause when the appellants waited 18 and 11 years to sue, respectively).

The circuit court determined that good cause for waiver did not exist when Ms. Ratchford complained of William Harris’s alleged lead exposure in 2004, but waited until 2012 to file a complaint. The circuit court did not abuse its discretion when it considered the substantial length of time between the alleged oral complaint and the time of filing suit.

IV.

Hearsay

Finally, Appellants argue that the trial court committed error in refusing to exclude hearsay from the Peach affidavit in its ruling for summary judgment. Specifically, Appellants take issue with the following statement:

6. Some of the HABC managers involved in the operation and/or maintenance of the property when the Plaintiff claim[s] to have resided at and/or visited there are no longer employed by the HABC. In cases where I have been able to find current employees of HABC who were in any managerial capacity during the time-frame referenced in Plaintiffs complaint they have been uniformly unable to recall anything about the condition of specific property during the time frames referenced in Plaintiffs Complaints.

(Emphasis supplied). Appellants contend that the foregoing statement is hearsay. HABC responds that the statement is not hearsay because it is only offered for the purpose of demonstrating Mr. Peach’s difficulty in finding information concerning the Property and is not offered for the truth of the matter asserted, i.e., that the employees actually do not recall details surrounding the Property. HABC further argues that the trial court never addressed this issue because it did not reach the issue of prejudice to HABC. HABC contends that the statement is only relevant to the issue of prejudice, and that because the court found in favor of HABC on the good cause issue, it never had opportunity to reach the issue of prejudice.

Whether or not evidence is hearsay is an issue we review de novo. Bernadyn v. State, 390 Md. 1, 8, 887 A.2d 602 (2005). Here, we observe at the outset that HABC is correct that prejudice is not at issue until there is a finding of good cause. See Halloran, supra, 185 Md.App. at 189, 968 A.2d 1104 (“Such [prejudice] inquiry only arises ... when a claimant has shown good cause to waive the notice provision, and the burden, by statute, shifts to the local government to show that its defense has been prejudiced.” (citation omitted)). See also Longtin, 419 Md. at 467, 19 A.3d 859 (“By the language of the statute, the burden is on the claimant first to show ‘good cause.’ Then, if the local government cannot ‘affirmatively show that its defense has been prejudiced by lack of required notice,’ the court ‘may’ hear the case despite the faulty notice.”). A local government entity need not prove that prejudice would result from a failure to provide timely notice until a court has found that good cause exists to waive the requirement of notice. Id. See also CJP § 5-304(c) (“Notwithstanding the other provisions of this section, unless the defendant can affirmatively show that its defense has been prejudiced by lack of required notice, upon motion and for good cause shown the court may entertain the suit even though the required notice was not given.” (emphasis supplied)). The statement in Mr. Peach’s affidavit concerning his difficulty in finding employees who had any knowledge of the condition of specific property during the time frame of William’s alleged injury is relevant to prejudice, not good cause. The circuit court granted summary judgment because Appellants did not demonstrate good cause and, therefore, did not reach the prejudice inquiry. Because the court did not consider prejudice, the alleged hearsay statement was not relevant to the grounds upon which summary judgment was granted.

For the foregoing reasons, we affirm the circuit court’s grant of summary judgment.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED.

COSTS TO BE PAID BY APPELLANTS.

      . We will refer to William Harris and Natonia Ratchford collectively as “Appellants,” and we will only refer to them individually when relating facts that pertain only to William or to Ms. Ratchford.

      . As discussed infra, William Harris and Ms. Ratchford's precise association with the property is not fully explained in the record.

      .The case was stayed from June 12, 2013 to May 27, 2014.

      . The complaint alleges that Ms. Ratchford was a tenant or "otherwise a lawful resident or invitee" and that William Harris "lived in the dwelling or frequented the dwelling as an invitee of the tenant during 2003-2010.” We observe that a person named Felicia Dorsey signed, as "Lessee,” the “Rehabilitation Housing Program Disclosure of Information on Lead-Based and/or Lead-Based Paint Hazards" form and "Tenant Notification Acknowledgement Form” for the Property on June 29, 2005, December 29, 2006, December 27, 2007, January 14, 2008, January 21, 2009, and January 11, 2010. Ms. Ratchford’s signature, as a second "Lessee” in addition to Ms. Dorsey, appears only on two disclosure forms dated January 14, 2008 and January 21, 2009. The record extract does not include a complete lease agreement.

      . The Reduction of Lead Risk in Housing Subtitle of the Environment Article currently defines "[a]ffected Property” as "a property constructed before 1978 that contains at least one rental unit[.]" Maryland Code (1982, 2013 Repl. Vol.), Environment Article ("EA"), § 6-801(b). The subtitle’s registration and risk reduction requirements apply to affected properties. See EA §§ 6-803, 6-811, 6-815. Thus, the age of the subject property is a relevant consideration for the court at the summary judgment stage in a lead-based paint case, although there is no evidentiary presumption that houses built before 1978 contain lead-based paint. Rowhouses, Inc. v. Smith, 446 Md. 611, 638, 642, 133 A.3d 1054 (2016) (citing Taylor v. Fishkind, 207 Md.App. 121, 143, 51 A.3d 743 (2012)). See also Smith v. Rowhouses, Inc., 223 Md.App. 658, 662 n. 7, 117 A.3d 622 (2015) ("the age of a property alone is not a sufficient factual basis to support a finding that it contained lead-based paint.” (quoting Hamilton v. Kirson, 439 Md. 501, 96 A.3d 714 (2014))).

      . The complete blood-lead level report for William showed the following levels of lead in micrograms per deciliter on the following dates:
      12/30/03-3 7/16/04-19 10/18/04-11 1/28/05-9
      5/05/05-10 12/05/05-10 1/09/06-9 6/05/06-8
      6/14/07-7

      . Notably, the complaint also set out a separate, distinct claim for Natonia Ratchford in her personal capacity for her injury due to, among other things, the emotional pain she suffered and the medical bills she had to pay as a result of William’s lead poisoning. The summary judgment granted by the circuit court was for "all claims” of "Plaintiffs William Harris and Natonia Ratchford.” On appeal the parties present no argument concerning Ms. Ratchford’s distinct claim.

      . Unless otherwise specified, further references to "CJP” in this opinion refer to this replacement volume which was the law in effect in 2004.

      . The General Assembly has since made amendments to the LGTCA. For example, effective October 1, 2015, a plaintiff now has one year after the injury to provide notice of the claim. 2015 Md. Laws, ch. 131 (H.B. 113). This legislative amendment is prospective only. Id. There has been no change to the requirement that notice shall be in writing.

      . Because the issue of good cause frequently arises in these cases in a defendant’s motion for summary judgment, as it did in this case, we caution future litigants not to conflate the applicable standards. It is the circuit court’s responsibility to find — or to not find — whether good cause exists. See CJP § 5-304(c) ("upon motion and for good cause shown the court may entertain the suit ... ”). The standard for this limited good cause inquiry is not the summary judgment standard of Maryland Rule 2-501 — "no genuine dispute as to any material fact.” The circuit court must resolve factual disputes as to good cause, and, once the court makes a finding on whether good cause exists, that finding becomes a relevant (and perhaps the only dispositive) fact in the summary judgment inquiry. That fact is simply no longer disputed, and the question then becomes whether summary judgment is proper.

      . Article 23 of the Maryland Declaration of Rights provides:
      In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.
      The right of trial by Jury of all issues of fact in civil proceedings in the several Courts of Law in this State, where the amount in controversy exceeds the sum of $15,000, shall be inviolably preserved.

      . Article 19 of the Maryland Declaration of Rights provides:
      That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the Land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the Land.

      . In Appellants' reply brief, Appellants attempt to clarify that it is not that the LGTCA violates Article 23 of the of the Maryland Declaration of Rights, but that Article 23 "supports to conclusion that when there is a genuine dispute of fact concerning the issue of good cause, it is not an issue for the trial court, but rather, the trial court must submit that issue to the trier of fact.”

      . A court may consider the following items in its good cause determination:
      excusable neglect or mistake (generally determined in reference to a reasonably prudent person standard), [2] serious physical or mental injury and/or location out-of-state, [3] the inability to retain counsel in cases involving complex litigation, ... [4] ignorance of the statutory notice requirement^] or (5) misleading representations made by representative of the local government.

        Mayor and City Council of Baltimore v. Stokes, 217 Md.App. 471, 486-88, 94 A.3d 159 (2014) (quoting Wilbon v. Hunsicker, 172 Md.App. 181, 205-06, 913 A.2d 678 (2006)). Appellants do not address these considerations on appeal.

      . HABC contends Mr. Peach's statement was not hearsay because it was not offered to prove the truth of the matter asserted, i.e., whether the employees failed to recall the condition of the Property, but rather, to show the difficulty he encountered so many years later finding any information about the condition of the Property. We agree. Maryland Rule 5-801(c) defines “hearsay” as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” (Emphasis supplied). Mr. Peach’s statement was offered to demonstrate the difficulty that Mr. Peach encountered in investigating the facts surrounding Appellants' claim, most of which took place in 2004. Whether those employees are telling the truth about their recollection is irrelevant to Mr. Peach’s professed hardship in tracking down information, and the salient fact is that he found it very difficult to find employees who had any knowledge of the Property during the times at issue in this case. See Stewart v. State, 342 Md. 230, 236, 674 A.2d 944 (1996) (citing Ali v. State, 314 Md. 295, 304, 550 A.2d 925 (1988)) ("when an out-of-court statement is offered for a purpose other than to prove the truth of the matter asserted ... the statement is not hearsay.’’); Dyson v. State, 163 Md.App. 363, 373, 878 A.2d 711 (2005) (citations omitted) ("whether an out-of-court statement is hearsay depends on the purpose for which it is offered at trial.”).