Bethea v. State, 691

• Decision Date: 29 May 1975
• Docket Number: No. 691,691
• Citation: 338 A.2d 390,26 Md.App. 398
• Parties: John William BETHEA v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 398

26 Md.App. 398

338 A.2d 390

John William BETHEA v. STATE of Maryland.

No. 691.

Court of Special Appeals of Maryland.

May 29, 1975.

Edward J. Angeletti, and George E. Burns, Asst. Public Defenders, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

David B. Allen, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. allen, State's Atty., and Joseph Lyons, Asst. State's Atty., Baltimore City, on the brief, for appellee.

Argued before MOYLAN, MENCHINE and DAVIDSON, JJ.

MENCHINE, Judge.

On May 9, 1974 John William Bethea came to trial in the Criminal Court of Baltimore charged with armed robbery and related offenses allegedly committed on August 18, 1973. He previously had been acquitted of entirely unrelated offenses allegedly committed on the same date.

At the earlier, unrelated trial of the appellant for those other offenses, certain records of the American Ice Company had been admitted in evidence and two of its employees, a Mr. Williams and a Mr. Phillips, had testified. It is plain from the record that those records and the testimony of the witnesses had tended to support an alibi defense of the appellant on the same date as the subject charges and may have influenced acquittal. Edward J. Angeletti, assistant public defender, who had represented appellant at the earlier trial, was his counsel also in the subject trial.

On the morning of the scheduled date for trial, defense counsel sought postponement from the administrative judge upon the ground that the records of the American Ice Company were not available for the subject trial because 'the man who had the keys to the room where the records were stored was in New Jersey.' The State opposed the requested postponement and it was denied. It developed subsequently, (but prior to commencement of trial) that although a Mr. Williams of the American Ice Company was able to make the records available, a Mr. Phillips of that company was confined in the Baltimore County General Hospital for operative procedures being performed on the morning of trial. It then was represented to the administrative judge that: 'Mr. Phillips is in fact the most vital witness for the defendant in terms of the time and the meaning of the records that I previously referred to and without him the defendant will not get a fair trial under any circumstance.' The second requested postponement, again opposed by the State, again was denied. The trial went forward and resulted in conviction of the appellant for armed robbery and a handgun offense. ¹

On appeal it is contended, inter alia, that refusal of the requested postponement was an abuse of judicial discretion by the administrative judge. Believing that it was and because remand for a new trial is thus necessary, we do not reach other contentions respecting alleged errors in the substantive trial.

This Court early made plain that a requested postponement of a criminal case upon the ground of the absence of an allegedly necessary witness should be granted only if:

1. It was made to appear that there was a reasonable expectation of securing the evidence of the witness within a reasonable time;

2. The proffered evidence was competent and material;

3. The case could not be fairly tried without the proffered evidence, and

4. The party seeking postponement had exercised reasonable diligence to secure the evidence prior to the date assigned for trial.

Hainesworth v. State, 9 Md.App. 31, 36, 262 A.2d 328, 330; Nichols v. State, 6 Md.App. 644, 646, 252 A.2d 499, 500; Clark v. State, 6 Md.App. 91, 100, 250 A.2d 317, 322.

We pointed out in Guarnera v. State, 20 Md.App. 562, 573, 318 A.2d 243, 248, that legislative enactment of Article 27, § 591(a) ² vested exclusive power to postpone the trial date of a criminal case in the administrative judge of the court, and that 'even the power of the administrative judge to postpone is not entirely discretionary, but may be exercised only 'for extraordinary cause shown by the moving party". Guarnera, supra, also had declared P. 574, 318 A.2d p. 249: '* * * that it makes not the slightest difference whether a continuance requested is the fifth, the third, or the very first-the reasons for it must satisfy the administrative judge that they meet the test of extraordinary cause.' Maryland Rule 740 is couched in language identical with that of the statute. Thus the Legislature and the Court of Appeals of Maryland severally have mandated that 'extraordinary cause' must be shown by the party moving for a postponement. Moreover, we are acutely aware of the necessity for expeditious trials of criminal cases generally and in Baltimore City in particular and mindful that both statute and rule mandate a most careful scrutiny of the facts and circumstances giving rise to a requested postponement.

Although the statute and the rule became effective subsequent to our decisions in Hainesworth, Nichols and Clark, all supra, we believe that the criteria heretofore recited, as synthesized from those decisions, remain viable as guides to the determination whether 'extraordinary cause' has been shown. Of necessity this judgment must be made on a case to case basis. We shall examine the record in the light of the mandates imposed upon us by statute and rule, utilizing the recited criteria.

Reasonable Expectations of Later Availability of Witness

That the absent witness had undergone operative procedures on the morning of trial is a conceded fact. The moving party made the following proffer:

'* * * The indications from the receptionist at the hospital was that Mr. Phillips would probably be released on Saturday or at the latest Monday.

'His wife was under the impression he would be there four days. The receptionist said possibly only until Saturday. It's obvious that he's not going to be able to appear here for this trial. * * * Having undergone that procedure myself I'm aware of the recuperative periods that are required before full mobility and action can be resumed. The reason for it is that the nose becomes a mass of bleeding tissue and is completely packed after rhinoplasty and takes several weeks before the danger of hemorrhaging in that are passes.'

There was no evidence to the contrary.

Competence and Materiality of the Evidence

The witness Phillips had in fact testified in the earlier, unrelated trial. The defense of alibi on the same date had been asserted therein. That trial resulted in acquittal. The proffered evidence clearly was competent and material. The trier of fact necessarily would be required to evaluate the testimony of Phillips in reaching a decision upon the criminal agency of the accused for the subject offenses. In short, his testimony might influence their decision upon the basic question of guilt or innocence.

The Evidence as Necessary to a Fair Trial

The moving party proffered that:

'* * * I stand here and on the record I boject to going to trial without having Mr. Phillips available to testify. That Mr. Phillips is in fact the most vital witness for the defendant in terms of the time and the meaning of the records that I previously referred to and without him the defendant will not get a fair trial under any circumstances.'

After acknowledging that the State's case was 'weak' the prosecutor said:

'The State opposed this post-ponement as it would oppose all other post-ponements where it was ready to proceed and where it did not believe that there would be reversible error.

'Mr. Phillips the witness who is needed by the defense or who is requested by the defense testified in the first trial. That trial proceeded in the same manner with Mr. Williams from the Ice Company testifying with all records available to him. Mr. Williams was cross examined fully. Mr. Phillips then testified obviously on direct examination and again was cross examined fully.

'Mr. Phillips' testimony at that time was very limtied. It consisted primarily from my notes of the following: That he was employed by the American Ice Company. He was a platform cashier. The company was located at 2100 W. Franklin Street. On August the 18th, 1973 the Ice Company opened at approximately 6:15 and that he started to work at 7:00. He then discussed the number code for the various tickets that were sold. He then talked about a man named Mr. Starkey (phonetically) who was a dealer and lots of times would come in at a specific hour. He could not recall Mr. Starkey coming in that time, could not recall Mr. Bethea coming in on the particular day, but could state that he had bought ice in the past on quite a few occasions. He could not recall the time Mr. Starkey came in but indicated Mr. Starkey would be able to recall the time he came in.

'That was the extent of his testimony. He was very minimally cross examined because he did not contribute much either to the State's case or the defense's case. It is the State's position at this time because of his prior testimony, it was not essential at that time to the defense and because the State is willing to stipulate to what the testimony was and is willing to have the entire transcript of Mr. Phillips' testimony brought in that the case should not be delayed for that reason.'

Responding to the State's offer, counsel for appellant said:

'* * * Mr. Phillips did not testify immediately after Mr. Williams did in the last trial in point of time. That's important because Mr. Williams had all of the records from the ice company. Mr. Phillips did not have those records available to him when he testified. Mr. Phillips said if he had those records available he would be able to tell us very closely the approximate times that the slips were signed and that the ice was purchased by the person that those slips would indicate purchase the ice at the time they purchased them. That evidence was not available at the last trial because Mr. Williams had those slips and took them back with him to the ice house or the ice company.

'Mr. Phillips...