Harris v. State

• Decision Date: 03 February 1969
• Docket Number: No. 179,179
• Citation: 6 Md.App. 7,249 A.2d 723
• Parties: Melvin Junior HARRIS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 7

6 Md.App. 7

249 A.2d 723

Melvin Junior HARRIS v. STATE of Maryland.

No. 179.

Court of Special Appeals of Maryland.

Feb. 3, 1969.

[249 A.2d 725] Morris Lee Kaplan, Baltimore, with Michael Lee Kaplan, Baltimore, on brief, for appellant.

Donald Needle, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and Fred K. Grant, State's Atty. and Asst. State's Atty. for Balitmore City, respectively, on brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.

ORTH, Judge.

The appellant, Melvin Junior Harris, contends on this appeal that the lower court erred:

I in denying a motion to dismiss the indictments;

II in proceeding to trial of the general issue when the III in not determining the admissibility of evidence as to his identification at a lineup prior to trial of the general issue;

appellant made known his desire to appeal preliminarily from the judgment on the motion to dismiss;

IV in the admission of evidence obtained by an unreasonable search and seizure;

V in rendering verdicts of guilty when the evidence was not sufficient to sustain the convictions.

HISTORY OF THE CASE

Harris was convicted in the Criminal Court of Baltimore at a court trial which began on 25 January 1968 and concluded on 29 January of the following crimes and sentences were imposed as indicated on 14 February:

Indictment No.6421-assault with intent to rape Sharron Lee Boggs (1st count) -' to serve the balance of his natural life from 28th September, 1964, under the Jurisdiction of the Department of Correction.'

Indictment No.6418-assault with intent to murder Sharron Lee Boggs (1st count)-10 years concurrent with No.6421.

Indictment No.6419-unnatural and perverted sexual practice with Sharron Lee Boggs (1st count)-10 years consecutive with No.6421.

Indictment No.6420-robbery of Virginia M. Bogar with a deadly weapon (1st count)-20 years consecutive with No.6421.

Indictment No.6422-daytime breaking of the dwelling house of Homer Boggs and another with intent to steal (1st count)-5 years concurrent with No.6421.

Indictment No.1835-robbery of Sharron Lee Boggs with a deadly weapon (1st count)-10 years concurrent with No.6421.

Indictments Nos.6418-6422, inclusive, were filed on 21 December 1965 and indictment No.1835 on 27 April 1966. Harris had been charged in 1965 under indictments Nos.4062-4066, inclusive, with the crimes charged in indictments Nos. 6418-6422,

tried thereon of 5 October 1965 and convicted. He appealed and the appeals were pending when the opinion in Schowgurow v. State, 240 Md. 121, 213 A.2d 475, was filed. Counsel then representing him filed a motion to dismiss indictments Nos.4062-4066 on the basis of the Schowgurow decision and his former counsel, who had represented him at the trial, had also filed such a motion. On 29 December 1965 Harris was brought into the Criminal Court of Baltimore for arraignment on indictment Nos.6418-6422. It was brought to the court's attention that the prior indictments were pending 'on a motion to dismiss under Schowgurow.' The court granted the motion to dismiss.

I

THE MOTION TO DISMISS THE INDICTMENTS

The Dismissal of the Prior Indictments

Although Harris had been represented by two experienced counsel whose appearances were entered eight days after his re-indictment, he filed a motion to dismiss the indictments in proper person on 11 October 1967. The motion, consisting of five pages of printing by hand, alleges insofar as we can ascertain, that at the time the prior indictments had been dismissed he had not had a remand hearing and had not been informed that he could waive objection to those indictments and have the appeal he had noted determined or that if he elected to void them he could be reindicted and retried. ¹ When the case was called for trial on 25 January 1968 the motion was heard preliminarily. Counsel for Harris and the Assistant State's Attorney argued at length but no evidence was produced on the point except the transcript of the arraignment on 29 December 1965 at which time the indictments were dismissed, and we consider the matter on the record before us. Harris now urges that since it was error to dismiss the prior indictments, it was error not to dismiss the subsequent indictments. '(T)he granting of the motion by the court was a mere formality, in no way harmful or prejudicial to appellant's rights. The Driver directive sets forth a procedural formula to be followed when the defendant has not raised a challenge and is thus entitled to be duly and fully informed of his rights in order to allow him to make an intelligent and knowing election of whether to take advantage of his rights under the Schowgurow decision or knowingly waive these rights.'

But he does not suggest that the prior indictments, dismissed, as he claims, in error, and his appeal thereunder be reinstated so that his fate may be determined on the convictions under the prior indictments. He apparently feels that he should go free. We know of no authority, nor does he cite any, which would compel his release, immune from further prosecution on the charges, on a finding that [249 A.2d 727] the prior indictments were improperly dismissed. At the most it would seem that justice would dictate that the convictions under those indictments would stand subject to appellate review of them on the appeal he filed from them. But we are not faced with that question because we find no error in the dismissal of the prior indictments. No authority is cited in the appellant's brief in support of his assertion that the prior indictments were improperly dismissed. But in Blake v. State, 2 Md.App. 492, 235 A.2d 569, it was contended, in reliance on the remand order in Driver v. State, No. 78 September Term 1965, Maryland Court of Appeals that the absence of counsel at a hearing on a motion to dismiss indictments under the Schowgurow decision was a deprivation of the right to counsel at all stages of the proceedings. We distinguished Driver in that Blake's counsel had previously filed a written motion to 'quash' the indictments. We said, 2 Md.App. at 495, 235 A.2d at 571:

We found that Blake had made his election under Schowgurow when his counsel filed the motion prior to the hearing and that it was not essential that counsel be present at the hearing. Here Harris made his election when his counsel filed the motion to dismiss. In open court when the indictments were dismissed, his counsel stood at his side. Pleas of not guilty and not guilty by

reason of insanity had been entered on the new indictments and Harris made no objection to the dismissal of the prior indictments as had been moved by him. Finding no error in the dismissal of the prior indictments, their dismissal is no ground for the dismissal of the subsequent indictments. ²

Speedy Trial

Harris also claims that the motion to dismiss should have been granted because he was denied a speedy trial. At the hearing the only evidence oin the question was by copies of two letters to him, one dated 16 November 1966 from the bailiff of Chief Judge Dulany Foster stating that Harris' letter of 3 November requesting, among other things, a speedy trial, had been forwarded to Judge Shirley B. Jones and the other dated 30 November 1966 from Judge Jones' bailiff stating that the matter was not pending before her but that his letter was forwarded to the Clerk of the Criminal Court for inclusion in the file of the case and that a copy of the letter on behalf of Judge Jones had been sent to each of his attorneys. The brief of the appellant refers to these letters as showing that demand for a speedy trial had been made. But he presents no argument in support of the contention, merely baldly asserting that he had been denied a speedy trial because of 'long delay' and that he was prejudiced when the State indicted him on 'the new charge.' He makes no allegation that the delay was capricious, arbitrary or oppressive on the part of the State, his only allegation of prejudice is without merit (see note 2 herein) and he made no showing of a strong possibility of prejudice to him. The record shows that a substantial part of the delay in trial was not properly chargeable to the State but was attributable to his own actions. He filed a plea of insanity on 29 December 1965 and on the same day was transferred to Clifton T. Perkins State Hospital for examination. The report of examination was filed on 3 March 1966 and on 11 March 1966 upon his petition he was authorized to employ a psychiatrist at State expense.

                He withdrew the plea of insanity on 9 February 1967 when he came into court for re-arraignment.  It also appears, however, that by order of court Harris was referred again for psychiatric evaluation and was examined by Dr. Dennis T. Jones, the acting chief medical officer of the Supreme Bench of Baltimore City on 19 April 1967 to determine if he was competent to stand trial and responsible for his criminal conduct under the new test to become effective 1 June 1967.  Chapter 709, Acts 1967.  .  the report was dated 15 May 1967.  When the case came on for trial on 25 January 1968 defense counsel said that Harris had been examined 'by Dr. Battle, by Dr. Jones, by the Clifton T. Perkins Hospital' and foudn competent to stand trial and 'legally sane at the time of the alleged commissions of the act.'  He then withdrew the pleas of insanity with the expressed concurrence of Harris.  He filed three motions in proper person on 11 October 1967.  The two which moved for dismissal of the indictments did not, as far as we can ascertain, give as a ground the denial of a speedy trial and the other moved for exclusion of identification evidence.  3  The appellant's brief is devoid of any authority in support of his contention that he was denied a speedy trial although we have fully discussed the constitutional aspects of the right in a number of cases.  See for example, Frazier v. State, 5 Md.App. 88, 245 A.2d

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