Clark v. State

• Decision Date: 26 June 2001
• Docket Number: No. 102,102
• Citation: 364 Md. 611,774 A.2d 1136
• Parties: Jack D. CLARK v. STATE of Maryland.
• Court: Maryland Court of Appeals

774 A.2d 1136

364 Md. 611

Jack D. CLARK v. STATE of Maryland.

No. 102, Sept. Term, 2000.

Court of Appeals of Maryland.

June 26, 2001.

Geraldine K. Sweeney and Amy E. Brennan, Asst. Public Defenders (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Sarah Page Pritzlaff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, and LAWRENCE F. RODOWSKY (Retired, Specially Assigned), JJ.

HARRELL, Judge.

On 7 October 1982, George Wilker and Lurty Wood were murdered in the course of an attempted robbery at a bar in Baltimore County. Fifteen years later, Jack D. Clark, Petitioner, was arrested and charged with the crimes. In the Circuit Court for Baltimore County, a jury convicted Petitioner of two counts of first degree felony murder, one count of attempted armed robbery with a deadly weapon, and one count of the use of a handgun in the commission of a crime of violence. The trial judge sentenced him to life imprisonment and life concurrent for the felony murders, twenty years concurrent for the attempted robbery with a deadly weapon, and twenty years concurrent(the first five to be served without the possibility of parole) for the use of a handgun in the commission of a crime of violence. On appeal, the Court of Special Appeals, in an unreported decision, affirmed. We granted Petitioner's petition for writ of certiorari, Clark v. State, 362 Md. 34, 762 A.2d 968 (2000), to address the following questions:

1. Where the fifteen year pre-indictment delay caused Petitioner conceded and substantial actual prejudice to the presentation of his defense, could his due process claim be defeated because he did not prove that the State purposefully delayed so as to gain a tactical advantage?

2. Where trial was held sixteen years after the crimes occurred, was it error to preclude Petitioner from questioning the State's star witness about an intervening injury which caused memory problems?

I.

On 7 October 1982, at approximately 5:30 a.m., George Wilker and Lurty Wood were shot to death during the course of a robbery attempt at a bar called the Alcove, located on Pulaski Highway in Baltimore County. The crimes were investigated by the Baltimore County Police. Detective Capel was the chief investigator. Certain interviewed witnesses reported seeing four suspicious men, one of whom wore a red bandana around his neck, in the bar the night before the murders. Other witnesses reported speaking with four men, one of whom displayed a gun, in the parking lot of the bar the night before the murders. The police also questioned three eyewitnesses to the attempted robbery. Two of the eyewitnesses, George Barnstorf, the bar owner, and a Mr. Trotter, saw a man, wearing a bandana over his mouth, with one of the victims just before the shooting. A third eyewitness, a Mr. Moog, told police he saw two white males beating one of the victims before that victim was shot.

The police focused their initial investigation on four suspects—Petitioner, Julius (Bo) Stallings, Chadwick Gregory Grimes (Chad), and Charles Michael Grimes (Michael). Photo arrays, including pictures of Petitioner, Chad Grimes, and Michael Grimes, were shown to Barnstorf and Trotter. Neither was able to make an identification.¹ There is no record of photographs being shown to Moog.

Also during the initial investigation, a red bandana was found near the point of entry the perpetrators used to enter the bar. Two hairs were found on the bandana. These two hairs, plus hair samples from Chad and Michael Grimes, were sent to the FBI for analysis in October 1982. One hair was consistent with that of Chad Grimes's sample. The other hair was inconsistent with both of the samples supplied by Chad and Michael Grimes.

Detective Capel questioned each of the four suspects and thereafter completed an Application for a Statement of Charges for each of them. Although the police believed they had enough evidence to charge the four suspects, they questioned whether they had sufficient evidence at this time for the State to mount a successful prosecution. Thus, the Applications were never submitted to a court and the case remained unsolved and dormant in police homicide files from 1986 until 1996.

On 16 September 1998, at the pretrial motion to dismiss hearing in Petitioner's prosecution, Detective Phillip Marll, who started in the homicide division on 15 September 1986, but did not familiarize himself with the Alcove bar murders case until sometime in 1996, testified regarding the dormancy of this case:

[PETITIONER'S TRIAL ATTORNEY]: Is there a reason why a double homicide case would not be worked for a period of approximately ten years, sir? [MARLL]: The only answer to that, I think in Baltimore County, going back to the early `50s, we have about one hundred eighty open homicide cases. You take that and you couple it with a caseload of active cases that are coming in, and speaking from `86 on, thirty-five to forty-five murders per year, that would be why we wouldn't generally be able to take some time in going back over old cases.

Within the last few years the old cases had become something of a[n] interest to go back on and work on, but it's nothing—we don't have, if you will, an old case squad. There's nothing that compels us to go back and work the old cases.

And there was nothing in `86, actually through `96, that forced us to go back and work old cases. So the case would be sitting back there. It's not closed. If any information came in on it, somebody would have grabbed up on it and ran with it.

So this case, along with the other hundred seventy, hundred eighty other cases that were sitting back there were just waiting for a matter of a phone call from `86 to `96, I would say.

Detective Marll, with his partner, Detective Tincher, became inspired to re-investigate the murders as the result of driving by the Alcove Bar while it was being torn down in 1996. Seeing the demolition, they "both commented, `I wonder what happened with the double homicide that occurred there.'" Curiosity piqued, they pulled the case file. After examining the file, Detective Marll decided to pursue it further. He admitted, however, that in 1996 the case was a "back-burner" issue that he and his partner worked on between their active cases, as time permitted.

The detectives began the re-investigation by updating information in the file. They shortly learned that two of the eyewitnesses had died, Barnstorf in 1985 and Trotter in 1995, and that Bo Stallings, one of the four original suspects, died in 1989.

Detective Marll focused his investigation on Chad Grimes because of the evidence that it may have been his hair that was found in 1982 on the bandana. He was forced to abandon this avenue, however, when Chad Grimes was murdered in Baltimore City in January 1997. Marll then focused on Chad's brother, Michael Grimes.² Believing there was sufficient probable cause, Marll obtained an arrest warrant for the surviving Grimes brother based on essentially the same facts used by Detective Capel in the unfiled 1982 Application for Statement of Charges.³

When questioned in 1982, Michael Grimes had denied knowledge of the crimes. When questioned in 1998 by Detectives Marll and Tichner, Michael Grimes claimed to have lied in 1982 and implicated himself and Petitioner in the crimes. In addition, he agreed to plead guilty and to testify against Petitioner. Petitioner was arrested at his home in North Carolina the day after Michael Grimes was questioned.

Petitioner's trial was scheduled for 15 October 1998. Prior to trial, the State sought additional DNA testing of the red bandana, which remained in police custody. On 8 October 1998, the trial date was postponed to allow time for the DNA testing to be completed. The State was permitted to have an expert at Cellmark Laboratories perform polymerase chain reaction (PCR) DNA testing on a spot of saliva found on the bandana. The results of the testing supplied a profile from which Petitioner could not be excluded. This DNA evidence was introduced at trial.

Also before trial, Petitioner's trial attorney filed, on 9 September 1998, a motion to dismiss, alleging that the pre-indictment delay deprived Petitioner of due process. Petitioner's trial attorney proffered several ways in which the defense had been prejudiced by the delay of fifteen years, including the death of an alibi witness, the death and/or other loss of potentially exonerating eyewitnesses, and the loss of evidence tending to incriminate one of the other suspects. Specifically, as Petitioner's trial counsel expounded at the hearing on the motion to dismiss, Jean Rinesman, Petitioner's claimed alibi witness, had died; eyewitnesses Barnstorf and Trotter had died; and the third eyewitness, Moog, could not be located. Petitioner's defense attorney argued that these circumstances prejudiced Petitioner's case:

Back when, I guess, when the case was hot, so as to speak, each[⁴] of these men were shown photo arrays on separate days. Each photo array contained a picture of [Petitioner]. And there was no identification made.

I think I can probably get around that by calling people to the stand that compiled the photographic array and ask them certain questions that don't obviously call for a hearsay response.

But what I am losing is something that I can't prove because these witnesses are dead, and that's the opportunity to bring these gentlemen into court and perhaps have them get a good look at [Petitioner] and say, "That's not the guy I saw do all these horrible things that night." Not just say, "I don't know, I can't say if it is him or if it's not him," but actually the potential would exist, your Honor, that they would say or could say, "I'm certain that that's not the person that was observed." That opportunity is gone.

Additionally, Petitioner's attorney noted, as...