Calhoun v. State

• Decision Date: 07 October 1982
• Docket Number: No. 1670,1670
• Citation: 451 A.2d 146,52 Md.App. 515
• Parties: William CALHOUN a/k/a William Burns Calhoun v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 515

52 Md.App. 515

451 A.2d 146

William CALHOUN a/k/a William Burns Calhoun v. STATE of Maryland.

No. 1670.

Court of Special Appeals of Maryland.

Oct. 7, 1982.

Mark Colvin, Assigned Public Defender, for appellant.

Richard Rosenblatt, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Sandra A. O'Connor, State's Atty., for Baltimore County and Robert Lazzaro, Asst. State's Atty. for Baltimore County on the brief, for appellee.

Argued Before LOWE, J., and RAYMOND G. THIEME, Jr. and HILARY CAPLAN, Specially Assigned Judges.

RAYMOND G. THIEME, Jr., Specially Assigned Judge.

William Calhoun, a/k/a William Burns Calhoun, the appellant, was charged by indictment with premeditated murder, felony murder, robbery with a deadly weapon, kidnapping, use of a handgun in the commission of a crime of violence, and related offenses. On July 22-29, 1981, in the Circuit Court for Baltimore County, the Honorable Cullen H. Hormes heard and denied appellant's motion to suppress physical evidence and a statement appellant gave to the police. On October 13-15, 1981, the appellant was tried by a jury, Judge Hormes presiding. Appellant was convicted of premeditated murder, felony murder, robbery with a deadly weapon, kidnapping, and use of a handgun in the commission of a crime of violence. On October 15, 1981, appellant was sentenced to life imprisonment plus twenty years. The appellant claims that the trial judge erred because he:

1. failed to suppress the appellant's statement; and

2. denied the appellant's constitutional right to a speedy trial; and

3. denied the appellant's right to be tried within 180 days as required by Maryland Rule 746.

The appellant's three issues will be considered seriatim.

I. Denial of the Motion to Suppress Statement

Appellant seeks reversal of the trial court's determination that the confession need not be suppressed based upon an alleged noncompliance with Maryland District Rule 723 which provides in pertinent part:

"A defendant who is detained pursuant to an arrest shall be taken before a judicial officer without unnecessary delay and in no event later than 24 hours after arrest. A charging document shall be filed promptly after arrest if not already filed."

As a preliminary matter, it should be noted that noncompliance with Maryland District Rule 723 at the time of the suppression hearing did not mandate suppression of the statement, but rather noncompliance was merely a factor to be considered in making a determination as to overall voluntariness. Maryland Annotated Code, Courts and Judicial Proceedings Article 10-912 (1980 Repl. Vol., 1982 Cum.Supp.). Section 10-912 became effective July 1, 1981. While admittedly this effective date was subsequent to the arrest and making of the statement, it was in effect at the time of the suppression hearing and therefore applies to this case. See, generally, McClain v. State, 288 Md. 456, 419 A.2d 369 (1980). No challenge to voluntariness generally was ever lodged against the confession in this case, and therefore there is no basis on which to suppress the statement.

In this case, appellant waived his right to a prompt presentment immediately after he was arrested for the homicide at 3:00 p.m. on January 15, 1981. Appellant now contends that the waiver is of no effect due to the incarceration prior to the homicide arrest. While appellant properly states that under Logan v. State, 289 Md. 460, 425 A.2d 632 (1981), a waiver of prompt presentment does not foreclose objection to a preceding detention, the Court of Appeals made clear in Kennedy v. State, 289 Md. 54, 421 A.2d 1376 (1981), that the improper detention without presentment must relate to the same crime for which the statement is obtained. In this case, the original detention of which appellant complains related to his detention based on the suspected narcotics violation. Although he was implicated through a statement by his brother earlier in the day, the information provided by appellant's brother was new information that had to be corroborated through an additional search. Such conduct was totally reasonable and, as the Court of Appeals pointed out in Kennedy, there is no right to be arrested on a specific charge. In this case, appellant was not arrested on the homicide charge until 3:00 p.m. Thus, any previous delay is not proper for consideration in conjunction with this case. As appellant waived his right to a prompt presentment upon being arrested on the homicide charge, the trial court properly refused to suppress his statement.

II. Denial of Constitutional Right to Speedy Trial

The delay in the instant case between the time of arrest and the actual trial was just under nine months; January 15, 1981 to October 13, 1981. Before there is any need to apply the four factors encompassed in the speedy trial balancing test, the length of the delay must be of constitutional dimension. In this case, trial was originally set to encompass multiple murders by multiple defendants. Thus, it was not a simple, garden variety homicide.

Even if a constitutional analysis is applied, it is clear that the trial court properly denied the motion to dismiss the indictment. In addition to triggering the four factor balancing test, length of the delay is a factor to consider in achieving the balance. Wilson v. State, 44 Md.App. 1, 408 A.2d 102 (1979). When placed on the scale, a delay of under nine months carries little weight in the balance.

With regard to reasons for the delay, appellant concedes that the initial three months and five days of the delay was necessitated by "orderly process" of the case and is not weighed against the State.

On April 21, 1981, appellant filed a plea of not guilty by reason of insanity necessitating an evaluation by the Clifton T. Perkins Hospital. As reflected by the docket entries, the referral to Perkins was made on April 21, 1981. Under Art. 59, § 26 of the Maryland Code, 60 days are allotted for the evaluation of the competency of an accused. The fact that a referral has been made does not mean that there must be an immediate transportation for evaluation to Perkins. In fact, subsection e of Art. 59, § 26 specifically addresses instances where the transportation is not immediately accomplished. In this case, the report from Perkins was filed within the 60-day time period and, thus, the entire time between April 21 and June 8 was not chargeable to the State as it was necessitated by the insanity plea.

The time between the filing of the Perkins' report and the holding of the pretrial motions hearing (June 8 to July 22) is chargeable to the State, as the State must shoulder the burden to bring an accused to trial. This time period is due very little weight in the balance because a pretrial motions hearing had previously been scheduled for April 23, 1981, and the only basis for that postponement was the filing of the insanity plea. Moreover, as discussed in the preceding argument, this time period was still within the first 180 days following the first appearance in court and therefore no "alert" could be implied. Further, at this point in the chronology of events, there had been no demand nor inquiry toward the attainment of a speedy trial. As appellant concedes in his brief, the period between the start of the suppression hearing (July 22) until the first trial date (August 4) is clearly not chargeable to the State.

As appellant notes, the Court of Appeals in Jones v. State, 279 Md. 1, 12, 367 A.2d 1 (1977), acknowledged that an election to try a severed co-defendant before the appellant is a period of time chargeable to the State. Thus, the State is responsible for the final delay, August 4 to October 13, 1981.

In summary the only periods of delay chargeable to the State were the five and one-half weeks between the filing of the insanity report and the holding of the suppression hearing and the two months and nine days necessitated by trying the co-defendant first. Both periods of delay chargeable to the State were done without malice and not for the sole purpose of denying appellant a speedy trial. Rather, they were necessitated by appellant being implicated along with others and by appellant filing an insanity defense. Thus, even these periods of delay should not be heavily weighed.

It is conceded that on August 4, 1981, appellant specifically noted his refusal to consent to any postponement and noted his willingness to proceed to trial on that date. He had previously opposed severance despite noting the clear Bruton problem involved. He, thus, in effect, asserted his right to a speedy trial at that time. He again asserted his right through the filing of a motion to set trial date filed on August 14 and again at a hearing on that motion filed August 24, 1981.

Appellant does not complain of any prejudice resulting from the delay that hampered his defense. Rather his claim of prejudice relates to his pretrial incarceration. While this type of prejudice is certainly worthy of weight in the balance, it is not entitled to as great a weight as where the delay hampers the ability to prepare a defense. Furthermore, the part of the delay appellant implies is unreasonable (from the trial date of August 4 when his case was not called) totals only two months and nine days.

In summary the overall delay in this case was not so great and of the approximately nine months between arrest and trial only the five and one-half weeks between the insanity report and motions hearing and the two months and nine days at the end are chargeable to the State. These time periods are not entitled to great weight in the balance as they were readily explained, and did not prejudice appellant's ability to defend himself. Thus, under these circumstances, dismissal of the indictment is not warranted.

III. Violation of Rule 746

Appellant urges in his brief that "... because he neither sought nor expressly consented to a trial date in violation of Rule 746, the charges...