Epps v. State

• Decision Date: 06 October 1975
• Docket Number: No. 236,236
• Citation: 276 Md. 96,345 A.2d 62
• Parties: Larry EPPS v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 96

276 Md. 96

345 A.2d 62

Larry EPPS v. STATE of Maryland.

No. 236.

Court of Appeals of Maryland.

Oct. 6, 1975.

Alfred L. Scanlan, Shea & Gardner, Washington, D.C. and Gerald N. Klauber, Baltimore, on the brief, for appellant.

James G. Klair, Asst. Atty. Gen., Baltimore, Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

O'DONNELL, Judge.

The sole question here presented upon our grant of a writ of certiorari to the Court of Special Appeals is the frequently argued question whether a defendant in a criminal case was denied his constitutional right to a speedy trial.

The appellant, Larry Epps-together with two co-defendants, Morris Bea and Erskin Evans, was convicted by a jury in the Criminal Court of Baltimore on August 23, 1973-one year and 15 days after his arrest, of having robbed, with a dangerous or deadly weapon (a knife), one Wilbert McNeil and taking from him a radiotape recorder valued at.$59.95 plus $3.00 in cash. See Maryland Code (1957, 1971 Repl.Vol.) Art. 27, § 488. Epps, who did not testify at his trial, was sentenced on September 14, 1973 by the presiding judge (Watts, J.) to a term of 15 years. ¹

McNeil was robbed at about 2 a. m., August 9, 1972 by three men, one of whom carried a knife and another a stick. Immediately following the incident, McNeil ran down the street where he encountered a policeman, to whom he reported the robbery. Crusing with the officer in a police car, McNeil, within a brief interval, observed the bandit trio; one was carrying a radio, the other was still armed with a stick. When the police officer ordered them to 'halt,' one of the group took flight. A witness identified Epps as the the fugitive.

Later the same day, Officer William Surratt was informed by a restaurant owner that Epps was a suspect in the robbery of McNeil. Officer Surratt investigated and after discerning that Epps was carrying a radio bearing the initials 'W. M.' arrested him. Epps at that time was in possession of a knife.

Following that arrest, Epps remained confined in the Baltimore City Jail, unable to arrange bail, up to the date of his trial-August 22, 1973.

It appears that at a pre-trial conference on December 4, 1972, between an assistant state's attorney and counsel who represented each of the defendants, there was no suggestion that any of them wished to elect a jury trial; the cases were thus scheduled, as to each, on the non-jury trial assignment.

When the cases first came on for trial, on December 28, 1972 in the Criminal Court of Baltimore (before Prendergast, J.), Bea and Evans, upon arraignment, each elected trial by jury; the appellant requested that he be tried non-jury. See Maryland Rule 741. Through counsel Epps asked 'to be tried today and separately,' moving as well for a severance, and asserted prejudice from a joint trial. See Rule 735. In a dialogue with the court in those proceedings, counsel explained that Bea and Evans had 'just made up their minds this past week or so' to elect a jury trial. Judge Prendergast was of the view that such request should have been made before the day of the trial and was satisfied that no such election had theretofore been indicated.

Although it appeared that both Bea and Evans-as well as Epps-were then prepared to go to trial, no jury panel was in attendance during that post-Christmas week. ²

The prosecutor advised the court that it was his preference 'to keep all the three defendants together and present all the evidence at one time against (them);' that the cases should be tried together, that separate trials 'would certainly be duplicitous' and that he was 'in favor of postponing the case in its entirety and having it reset as quickly as possible.' In granting the postponement, Judge Prendergast stated 'There may be (a) delay in granting a trial, because of this last-minute change of heart, but I don't think your clients have any cause to complain that they have been denied a speedy trial since they are the cause of this.' (Emphasis added)

Epps' motion for severance, predicated as it was solely upon the fact that he did not wish to be tried with his co-defendants with a resultant 'unfair light upon his case,' was denied. The trials of each of the defendants were rescheduled for April 13, 1973-apparently as the first 'open' jury trial calendar date, but those proceedings were also postponed by the Administrative Judge, see Rule 1211, when at 4 p. m. on that date the cases had not been 'reached' and there was 'no jury court available.' They were rescheduled for June 12, 1973. On that assigned date they were again postponed by the trial judge, concurred in by the Administrative Judge, because Officer Surratt, the arresting officer, had collapsed on June 8, 1973 while on duty, due to 'extreme high blood pressure' and had been ordered confined to bed for at least a month. Those aborted trials were then rescheduled for August 22, 1973.

On June 13, 1973, Epps filed a written motion to dismiss the indictment for lack of a 'speedy trial,' alleging that one of his witnesses, David Epps, who would have established an alibi for him, had the case been tried on December 28, 1972, was no longer available since he was then serving with the U.S. Armed Forces in Korea. ³

Upon a hearing on the motion just before the appellant's trial on August 22, 1973, Judge Watts requested a proffer and Epps' attorney stated:

'As to Larry Epps there was a witness by the name of David Epps who was an alibi witness who knew at the time of the alleged crime Larry Epps, the Defendant, was in his company elsewhere in another place from that described in the indictment from that presented by the Prosecution.'

Apparently assuming that the alibi witness, David Epps, was a member of the appellant's immediate family, Judge Watts, in denying the motion, commented:

'The Court is mindful of the fact that brothers and sisters and mothers appear and give certain kind of testimony, which I don't accept. In other words, it gets down to that issue of what he heard the brother say, he was with him, which would be a form of prejudice sufficiently to deny the State the right to try its case fairly on a serious charge of robbery without (sic) a deadly weapon.' (Emphasis added)

When counsel informed the court that David Epps was the appellant's cousin, Judge Watts expressed the view that counsel could ask the court 'again to consider it,' at the close of the State's case. ⁴

Upon being re-arraigned on August 22, 1973 Epps through counsel then-apparently for the first time-elected a jury trial.

Following his conviction, the appellant, pursuant to Rule 759 a and b filed motions for a 'new trial and an arrest of judgment,' urging error in the denial of his motion for dismissal of the indictment for failure to have granted him a speedy trial. In those post-trial proceedings on September 14, 1973 Epps testified that his cousin, David Epps, was in attendance in the court on December 28, 1972 and would have then testified that the appellant was with him at the cousin's home, at 1711 West Baltimore Street, at the time when the crime was 'supposed to have happened.'

In an unreported per curiam opinion, the Court of Special Appeals affirmed the appellant's conviction in Epps and Bea v. State (No. 59, September Term, 1974, filed September 24, 1974). That Court, in rejecting Epps' claim that he had been denied a speedy trial, held that the four-month delay from August 9, 1972 to December 28, 1972 (almost a period of five months) was 'chargeable to the State'; that the three and one-half-month delay from December 28, 1972 until April 13, 1973 was 'chargeable to the appellant'; and that the two-month delay from April 13 to June 12, 1973 and the two-month, nine-day delay from June 12 to August 22, 1973 was attributable to 'neutral' causes. The Court concluded that the delay, solely attributable to the State, was not of 'constitutional dimensions' and that Epps was not prejudiced by the unavailability of his alibi witness, for he 'could, through appropriate military channels, have taken the deposition of his witness and could have read the same to the jury.'

We disagree with both this reasoning and the result reached and conclude that the appellant was denied his right to a speedy trial within the guarantee of the Sixth Amendment to the U.S. Constitution and Article 21 of the Maryland Declaration of Rights.

'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . ..' U.S.Const. Amendment VI. Article 21, Maryland Declaration of Rights, provides 'That in all criminal prosecutions, every man hath a right . . . to a speedy trial by an impartial jury . . ..'

The Supreme Court in discussing this Sixth Amendment right in United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966), in an opinion written by Mr. Justice White, stated:

'This guarantee is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself. However, in large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. Therefore, this Court has consistently been of the view that 'The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.' Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950. 'Whether delay in...