Hines v. State

• Decision Date: 17 April 1984
• Docket Number: No. 1094,1094
• Citation: 473 A.2d 1335,58 Md.App. 637
• Parties: Howard HINES v. STATE of Maryland. Sept. Term 1983.
• Court: Court of Special Appeals of Maryland

Page 637

58 Md.App. 637

473 A.2d 1335

Howard HINES v. STATE of Maryland.

No. 1094 Sept. Term 1983.

Court of Special Appeals of Maryland.

April 17, 1984.

Clarence W. Sharp, Assigned Public Defender, with whom was Alan H. Murrell, Public Defender, on brief, for appellant.

Ann E. Singleton, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County and David Simpson, Asst. State's Atty. for Prince George's County, on brief, for appellee.

Argued before WILNER, BLOOM and GETTY, JJ.

BLOOM, Judge.

Howard Hines, appellant, was convicted by a jury in the Circuit Court for Prince George's County (Melbourne, J., presiding) of murder in the first degree (both premeditated and felony murder), attempted rape in the first degree, and third degree sexual offense. He received consecutive sentences of life imprisonment for the first degree murder and attempted first degree rape and a consecutive sentence of ten years imprisonment for the third degree sex offense. In this appeal, Hines asserts that:

1. the trial court erred in denying his motion to dismiss for violation of the Interstate Agreement on Detainers;

2. the trial court erred in denying his motion to dismiss based on the denial of his constitutional right to a speedy trial;

3. the trial court erred in admitting an oral statement obtained by Maryland police while appellant was in custody in Alabama;

4. the evidence was insufficient to support his convictions;

5. absent proof beyond a reasonable doubt that the victim was alive at the time of the alleged sexual acts, appellant could not be convicted of felony murder, attempted rape in the first degree and third degree sexual offenses;

6. the trial court erred in denying his motion for mistrial during the deliberations of the jury; and

7. the trial court erred in its instructions to the jury by

(a) instructing the jury with respect to flight as evidence of consciousness of guilt,

(b) failing to instruct the jury that it was necessary to prove that the victim was not unconscious at the time the alleged attempted first degree rape occurred, and

(c) failing to instruct the jury that the opinion of a medical expert must be within a reasonable degree of medical probability.

In our discussion, we will combine appellant's first two assertions under the general heading of "The Motions to Dismiss," and we will combine his fourth and fifth contentions under the general heading of "Sufficiency of the Evidence."

I. THE MOTIONS TO DISMISS

A. Chronology of Events

On June 21, 1979, the nude body of Michiyo Nakada, a twenty-three-year-old student at the University of Maryland, was found in a ditch in a wooded area near the apartment house in which she resided. She had been stabbed to death. Appellant became a suspect in the homicide shortly after the crime. Appellant's parole officer in Alabama was contacted, and an Alabama warrant for appellant was then put into the NCIC computer with a notation to contact the Maryland authorities if appellant was arrested or detained. An F.B.I. fingerprint stop was also placed. Nevertheless, no one notified police authorities in Maryland when appellant was eventually arrested in Atlanta, Georgia, on January 21, 1981, or when he was extradited from Georgia to Alabama in March 1981. It was not until January 19, 1982, that Maryland police learned that appellant was in a prison in Alabama.

Corporal Mike Morrissette and Detective Michael Ferriter of the Prince George's Police Department went to Alabama and interrogated appellant at the prison on January 27, 1982. Upon their return to Maryland, they obtained an arrest warrant charging appellant with the murder of Michiyo Nakada. The warrant was issued in Maryland on February 1, 1982, and sent to the prison authorities in Alabama. Appellant refused to accept the papers when service was attempted on February 20. Appellant was subsequently indicted for murder, robbery and related offenses ¹ on March 31, 1982, and a copy of that indictment with detainer was sent to the prison officials in Alabama. On May 11, an attempt was made to serve appellant with a copy of the indictment and an Interstate Agreement on Detainers (IAD) Form I (which notifies the prison of the indictment and detainer, advises him of his rights under the Interstate Agreement on Detainers, and informs him of the procedures required to exercise those rights). Appellant refused to accept those documents. It was stipulated, however, that at some point in time appellant did receive a copy of the statement of charges with the arrest warrant that he had refused to accept on February 20.

On May 24, 1982, appellant sent various documents to the Clerk of the Circuit Court for Prince George's County. The documents, which were received and docketed on May 28, consisted of a four page, hand-lettered "Motion for Speedy Trial" to which was attached (1) a printed document labeled "Inmate Summary 02/09/82" that furnished some information as to appellant's prisoner status; (2) an affidavit (dated February 2, 1982, but not notarized until May 14, 1982) as to the truth of the matters asserted in the Motion and (3) IAD Form II, "Inmate's Notice of Place of Imprisonment and Request for Disposition of Indictments, Informations or Complaints." The IAD form was dated May 24, 1982. On the reverse side of the affidavit there is what appears to be a faint carbon copy imprint of a hand-lettered document addressed to Prince George's County Sheriff James V. Aluisi and entitled "Letter Requesting Resolution of Detainer."

Appellant contended that he made three copies of the Inmate's Notice of Place of Imprisonment and Request for Disposition (IAD Form II), sent one copy to Sheriff Aluisi at the Prince George's County Courthouse and one copy to the Clerk of the Court in care of the Attorney General, and kept one copy for himself. According to Captain William Feeney of the Sheriff's office, the practice of that office is to forward any IAD requests or requests for speedy trial to Ms. Walters in the State's Attorney's office and no record of receipt is retained by the Sheriff. Ms. Walters, in turn, was certain that the State's Attorney's office received no papers from the sheriff or directly from appellant. It did receive from the Clerk's office a photocopy of the hand-lettered motion for speedy trial with none of the exhibits attached thereto.

The State's Attorney forwarded a request for temporary custody (IAD Form V) to the Alabama prison authorities on September 17, 1982. On November 22 appellant filed a motion to dismiss the indictment for denial of speedy trial. He was returned to Maryland on December 21 and arraigned on December 23. Additional motions were filed, including a motion to dismiss for violation of the Interstate Agreement on Detainers. The motions to dismiss were heard and denied by Judge Howard Chasanow. Thereafter, the rape indictment was returned. The motions to dismiss were renewed at trial and again denied.

B. Interstate Agreement on Detainers

The Interstate Agreement on Detainers, codified as Md.Ann.Code art. 27, §§ 616A through 616R, provides in Title III [§ 616D(a) ] that a prisoner serving a term of imprisonment who has a detainer or an untried charge lodged against him by a prosecutor in another State

shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: ... The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the State parole agency relating to the prisoner.

Subsection (b) provides:

The written notice and request for final disposition referred to in subsection (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.

Several supplemental provisions to the IAD have been added by the Maryland Legislature. Article 27, § 616Q, for example, provides:

As to any request by a person imprisoned in another party state for trial in this State, written notice shall not be deemed to have been caused to be delivered to the prosecuting officer and the appropriate court of this State in accordance with § 616 D(a), ... until such notice or notification is actually received by the appropriate court and by the appropriate State's attorney of this State, his deputy, an assistant, or any other person empowered to receive mail on behalf of the State's attorney.

These notice requirements are designed to bring to the attention of the operative State officials the request of the prisoner so that such authorities can take the necessary steps, within the time provided, to set in motion the machinery necessary to bring the pending case to trial. State v. Barnes, 273 Md. 195, 328 A.2d 737 (1974). The notice requirements of § 616D(a), particularly the provision that the request of the prisoner "shall be accompanied by a certificate of the appropriate official having custody of the prisoner" containing the information specified, are "mandatory and not directory." Isaacs v. State, 31 Md.App. 604, 611, 358 A.2d 273 (1976). The purpose of these notice requirements is to enable the State's Attorney "to evaluate whether the nature of the charges pending against the accused was of such a severe...