OCEAN CITY — In essentially what boiled down to a possession versus distribution issue, a state appeals court this week denied a request for a mistrial in a case involving an illegal drug sale to an undercover police officer on the Boardwalk.
On June 15, 2018, Dashawn Coward, now 21, of Pottsville, Pa., and Sean Dotson, 19, of Pottsville, approached an Ocean City Police Department (OCPD) undercover narcotics detective on the Boardwalk and asked the officer if he was interested in buying cocaine. OCPD undercover detectives agreed and followed Coward and Dotson off the Boardwalk to complete the sale.
According to the accepted facts in the case, Coward reached into his pants and produced two vials of cocaine, which he handed to Dotson. Dotson then handed to vials of cocaine to the undercover detective in exchange for the agreed-upon $80. Coward was arrested later that night and was charged with possession and distribution of cocaine.
In January 2019, a Worcester County Circuit Court jury found Coward guilty of distribution of cocaine and he was sentenced to one year in jail. However, somewhat oddly, the jury did not find Coward guilty of the lesser possession of cocaine change. After the verdicts were read and the jury was discharged, Coward’s defense attorney called for a mistrial, opining there could not be a distribution conviction without a possession conviction.
Coward contends the verdicts are legally inconsistent because the Court of Appeals has held that possession of a controlled dangerous substance is a necessary element in the crime of distribution of that substance. Essentially, he argues if the jury found him not guilty of possessing the cocaine, how could he be convicted of distributing the cocaine?
There was a question of the timing of the defense’s objection to the alleged “inconsistent verdicts.” The judge had already excused the jury and thanked them for their service when the defense counsel raised the objection about the inconsistencies in the possession versus the distribution verdicts.
According to court documents, the defense attorney objected to the court “receiving this verdict as it’s legally inconsistent. The defense attorney asked for the judge to grant a mistrial and schedule a new trial. The prosecutor countered the verdicts reflected the jury’s belief Dotson had possession of the cocaine during the controlled buy and that it was Coward who merely directed him to provide the cocaine to the OCPD detective during the sale.
In its opinion released this week, the Court of Special Appeals ruled even if the high court was inclined to believe Coward could be convicted of distributing the cocaine without actually possessing it, a mistrial could not be granted because of the timing of the objection.
“Accepting without deciding that the verdicts were legally inconsistent, we nevertheless hold that this issue is not properly before us,” the opinion reads. “To preserve for review any issue as to allegedly inconsistent verdicts, a defendant in a criminal trial by jury must make known his or her position before the verdicts become final and the trial court discharges the jury.”
In a large sense, the Court of Special Appeals opined declaring a mistrial and granting Coward a new trial was not an option because it was too late given the circumstances surrounding the case.
“In the instant case, Coward was given multiple opportunities to argue the alleged inconsistency in the verdicts before the jury was excused,” the opinion reads. “Even after making his untimely objection, Coward did not ask the court to reconvene the jury or to direct the jury to remain in the jury room while the issue of inconsistency was argued. Rather, he asked the court to grant a mistrial, which is not a remedy for an inconsistent verdict.”