Darrikhuma v. State

• Decision Date: 01 September 1989
• Docket Number: No. 672,672
• Citation: 568 A.2d 1150,81 Md.App. 560
• Parties: Hrangsote DARRIKHUMA v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 560

81 Md.App. 560

568 A.2d 1150

Hrangsote DARRIKHUMA v. STATE of Maryland.

No. 672, Sept. Term, 1989.

Court of Special Appeals of Maryland.

Feb. 5, 1990.

Victoria S. Keating, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Gwynn X. Kinsey, Jr., Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Frank R. Weathersbee, State's Atty. for Anne Arundel County, Annapolis, on the brief), for appellee.

Argued before MOYLAN and CATHELL, JJ., and JAMES S. GETTY, Judge of the Court of Special Appeals (retired), Specially Assigned.

CATHELL, Judge.

On appeal from his conviction for the offense of driving while intoxicated, appellant asserts that the trial court made three errors that mandate reversal. Those alleged errors are:

1. The court below erred in denying appellant's motion to dismiss the charging document because appellant had not properly been served with it.

2. The court below erred in allowing into evidence the results of a breathalyzer test, where the record shows that said test was consented to by appellant without adequate knowledge of his rights.

3. The court below erred in limiting appellant in his cross-examination of a key State's witness.

Facts

Mr. Darrikhuma was arrested and charged with driving while intoxicated and other charges. After the roadside accosting was completed, the appellant was transported to a Maryland State Police installation for processing. That processing included chemical testing as provided by statute. At the installation appellant was given what is commonly referred to as his DR-15 advice of rights. Included in that advice was a litany that informed him that he had the right to additional chemical alcohol testing by a physician of his own choice after the test performed by the police technician.

At trial Darrikhuma moved for dismissal alleging that the citation had not been properly served in that it had been served on him by a District Court Commissioner, and that such service was improper. On appeal we are informed by the appellee that "the prosecutor elected not to present evidence that Woods, the apprehending officer, did effect service so that the trial court could rule on the legal question of service by a District Court Commissioner."

The Law

1.

Maryland Code (1987 Repl.Vol., 1989 Cum.Supp.), § 26-201 of the Transportation Article provides:

(a) Authority of police officer to charge.--A police officer may charge a person with a violation of any of the following ...:

(1) The Maryland Vehicle Law, including any rule or regulation adopted under any of its provisions ....

(b) Issuance of citation.--A police officer who charges a person under this section shall issue a written traffic citation to the person charged.

Maryland Code (1984 Repl.Vol.), § 2-605(b) of the Courts and Judicial Proceedings Article provides:

(b) Criminal and traffic process.--All criminal and traffic process, including warrants and summonses for witnesses, shall be served by the constables ..., or by the sheriffs ... or by State or local police as the administrative judge of the district shall direct.... [emphasis added]

Rule 4-102 of the Maryland Rules provides:

(b) Citation.--"Citation" means a charging document, other than an indictment, information, or statement of charges, issued to a defendant by a peace officer or other person authorized by law to do so. [emphasis added]

Rule 4-212(h) provides, "The person issuing a citation, other than for a parking violation, shall serve it upon the defendant at the time of its issuance." (emphasis added)

We have not been directed by the parties to any Maryland case, statute or Rule that expressly authorizes a District Court Commissioner to serve traffic citations on defendants. We have found none and what we have found indicates to the contrary.

The leading case on the subject appears to be State v. Preissman, 22 Md.App. 454, 323 A.2d 637 (1974). There the sole question was whether a District Court Commissioner had the power to serve process where a defendant was charged with Housing Code violations of a criminal nature.

The pertinent section of the Maryland Code in effect at the time stated "[a]ll criminal and traffic process, including warrants ... shall be served by the sheriffs ... or by State or local police as shall be determined by rule." Id at 457-58, 323 A.2d 637 (emphasis in original). Then Maryland District Rule 706(f)(1) provided that a summons could be served by any officer authorized by law to execute a warrant.

We said in Preissman at 458-59, 323 A.2d 637:

Although it is singularly unlikely the legislature contemplated the situation presented here ..., the section appears on its face to establish the exclusive methods by which ... criminal process shall be served. It is evident that the legislature intended to reserve the latter task to persons specially trained for the difficulties that could arise in connection therewith....

The State contends ... the defective service ... "was not fatal to the charges ...," since where a person is before a court under process legally issued by a court of that jurisdiction, the jurisdiction of the court over his person is not affected by the manner in which he was brought before it. The State's reliance on this rule is misplaced, however, because process is not legally issued until it has been ... placed in the hands of a person authorized to serve it with the intention of having it served. [citations omitted]

We have recently referred to Preissman in Village Square v. Crow-Frederick, 77 Md.App. 552, 562, 551 A.2d 471 (1989), saying "If the language is plain and free of ambiguity, and has a definite and sensible meaning, such is conclusively presumed to be the intent of the Legislature in enacting the statute."

The appellee declares to us that the holding in Preissman has been modified as a result of rule changes and refers primarily to the present form of Maryland Rule 4-212(b). Rule 4-212(b), however, expressly excludes its application to citations by stating "[u]nless ... the charging document is a citation...." This exclusion is further illustrated by Rule 4-212(h), which provides, as we have said, that a citation must be served by the person issuing same. This requirement is in no way eliminated by the provision in Maryland Rule 4-213(a)(1) which requires a judicial officer to give a defendant, at initial appearance, "a copy of the charging document if the defendant does not already have one and one is then available...." (emphasis added) The purpose of a Rule 4-213 "Initial Appearance" is not to effectuate service of a citation, but to insure that an already arrested or summonsed defendant is afforded "the full panoply of safeguards...." Davis v. State, 42 Md.App. 546, 557, 402 A.2d 77 (1979) (referring to M.D.R. 723, the predecessor rule to Maryland Rule 4-213). Rule 4-213 does not confer upon a District Court Commissioner authority to serve citations.

The appellee directs our attention to State v. Smith, 305 Md. 489, 505 A.2d 511 (1986), in support of its position that Preissman is not applicable to the case at bar. Smith is in fact inapposite. There the primary question concerned the powers of commissioners to issue statements of charges they were by statute and rule explicitly authorized to issue. The trial judge had determined that commissioners had "no constitutional power to issue and sign a 'Statement of Charges,' " basing his finding on the separation of powers doctrine and constitutional due process of law considerations. Id. at 493, 505 A.2d 511. The Court of Appeals, discussing the constitutional aspects, stated: "[w]e conclude that the issuance of statements of charges by commissioners of the District Court of Maryland, as permitted by the Maryland Rules, is not proscribed as denying due process of law." Id. at 521, 505 A.2d 511 (emphasis added). The Maryland statutes and rules do not permit the service of citations by Commissioners. Thus, Smith has little applicability to the case sub judice.

The trial judge stated in the present case: "I say Priceman [sic] doesn't apply to this case." He was in error. We hold that generally a District Court Commissioner has no authority to effectuate personally the actual service of traffic citations upon defendants.

We note that the record discloses that the arresting officer apparently was present during the proceedings, and thus there may well have been an opportunity for proper service even at that late date. It appears that the prosecutor intentionally chose not to attempt to assert or effect correct service in order to get another ruling that service by the commissioner is proper. (Another judge in Anne Arundel County had, according to the prosecutor, already ruled in the State's favor on this issue in this case.)

A similar situation i.e., refusal by the prosecutor to make corrections, occurred in State v. Romulus, 315 Md. 526, 555 A.2d 494 (1989), where the prosecutor refused to sign an amended information after the trial judge brought a signature defect to his attention. When he refused to correct the information, the trial judge dismissed it. The Court of Appeals, in affirming the trial court's dismissal in Romulus, stated at p. 539, 555 A.2d 494, "[s]o, in Maryland, the omission of a required signature from a pleading is considered a mere irregularity or formal defect which can be remedied."

We likewise point out that the defect of service in this case was a remediable defect, except that the prosecutor chose not to remedy it. By engaging in what must have been the whetting of his intellectual curiosity, the prosecutor has unnecessarily caused another issue to be appealed to this Court at a time when our resources are already fully being utilized. In so doing he has caused us to expend our finite resources in a somewhat extensive mental and logical gymnastic exercise to resolve a matter which could have and should have been resolved in...