Jackson v. State, 819

• Decision Date: 01 September 1997
• Docket Number: No. 819,819
• Citation: 120 Md.App. 113,706 A.2d 156
• Parties: Valentino Maurice JACKSON v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 113

120 Md.App. 113

706 A.2d 156

Valentino Maurice JACKSON v. STATE of Maryland.

No. 819, Sept. Term, 1997.

Court of Special Appeals of Maryland.

Feb. 27, 1998.

Gregory E. Flynn, Rule 16 Student Atty. (Stephen E. Harris, Public Defender and Nancy S. Forster, Asst. Public Defender, on the brief), Baltimore, for appellant.

Diane E. Keller, Asst. Atty. Gen., Baltimore (J. Joseph Curran, Jr., Atty. Gen. and Marna McLendon, State's Atty. for Howard County, Ellicott City, on the brief), for appellee.

Submitted before MOYLAN, EYLER and SONNER, JJ.

EYLER, Judge.

Appellant, Valentino Maurice Jackson, was charged with child sexual abuse and related offenses. On appeal, we are asked to determine if the trial court erred in denying appellant's motion to enforce an agreement with the State and to dismiss the charges against him. Before doing so, we must consider whether the issue is properly appealable at this time. For reasons discussed below, we hold that the issue is appealable, and we affirm the trial court's ruling.

Facts

On March 14, 1997, appellant appeared before the Honorable Lenore R. Gelfman in the Circuit Court for Howard County to argue certain defense motions. As of that time, the trial was scheduled for March 24, and the Hicks ¹ deadline was April 28th. One of the matters argued at the March 14 hearing was appellant's request to review the victim's Department of Social Services records. Counsel for the parties agreed that Judge Gelfman should review the records in camera before making the determination. Judge Gelfman then stated:

I'm just wondering the best way, the most efficient way, the quickest way to review the information and get you the Court's decision and still give you time to review any evidence if in fact the Court orders that it be disclosed.

The prosecutor subsequently informed Judge Gelfman that there would be a request for a new trial date, and after discussion, counsel agreed on May 5 as the new trial date. With respect to Hicks, the following colloquy occurred:

[PROSECUTOR]: We do have a Hicks problem at the end of April, I believe, so we need to get it in some time in April. I'm not suggesting a trial date. I'm just saying that that--I would mention that to the Court.

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[DEFENSE COUNSEL]: I think with regard to the Hicks problem I--you know, consistently in my practice have taken the position that that oughten to drive anything. I mean, in other words, we'll waive whatever we have to waive to avoid a Hicks problem. This case is not going to go away because it doesn't get to trial. I mean, so I think what we ought to be talking about is what's a time frame in which to get done the things that need to get done to get this case prepared for trial, and then if it happens to be after the date that--that Hicks run, we'll waive, do whatever waiver we have to do with regard to that.

THE COURT: Okay. I don't know if therefore you are saying that Defendant waives Hicks if and when it becomes an issue.

[DEFENSE COUNSEL]: I will waive Hicks if it becomes an issue.

THE CLERK: April 28th is the Hicks date.

THE COURT: Okay, that was the next question.

[DEFENSE COUNSEL]: Is there--what's the--I have to be out of the country on assignment the week before, not on vacation. The--with regard to something else I'm doing. What's the--the--is there a week after that? What's the Monday--

THE CLERK: (Indiscernible).

THE COURT: What is the trial date presently?

[PROSECUTOR]: 24th of March.

(Asides.)

[DEFENSE COUNSEL]: No, I don't have any problem right now during that week.

THE COURT: Which week?

[DEFENSE COUNSEL]: May 5th.

[PROSECUTOR]: Now, that is after Hicks.

THE COURT: That's after Hicks.

[DEFENSE COUNSEL]: I know that is after Hicks.

[PROSECUTOR]: May 5th is the week I'm in court, so that is convenient.

[DEFENSE COUNSEL]: Okay.

[PROSECUTOR]: I'm only saying that. I mean, we can--

[DEFENSE COUNSEL]: I understand. I understand. I don't have any problem.

Appellant was then advised of his right to be tried within 180 days of an appearance. As a result of the colloquy which followed, Judge Gelfman found that appellant waived that right. The relevant portion of the transcript is as follows:

[DEFENSE COUNSEL]: Okay. Mr. Jackson, do you understand--I've just explained to you that the State has an obligation to bring you to trial within a hundred and eighty days of your--of the--in this case of the entry of our appearance in October which would run at the end of April. Do you understand that?

THE DEFENDANT: Yes.

[DEFENSE COUNSEL]: They must by law do that. Do you understand that if we set the trial date on May the 5th, which we are agreeing to at this point, do you understand that would be beyond that date?

THE DEFENDANT: Yes.

[DEFENSE COUNSEL]: And that in order for the Court to set it on that date you must understand that you are waiving your right to a speedy trial as that is determined--as that is set forth in Maryland law. You are waiving your right to be tried within one hundred and eighty days of our appearance which would be before the end of April. Do you understand that?

THE DEFENDANT: Yes.

[DEFENSE COUNSEL]: And understanding then do you knowingly waive your right to be tried within a hundred and eighty days and accept the court's trial date of May 5th, 1997?

THE DEFENDANT: Yes, I do.

THE COURT: Sir, you're not under the influence today of any alcohol, drugs or medication prescribed or otherwise?

THE DEFENDANT: No, ma'am.

THE COURT: Are you being treated for any psychiatric illness at this time or taking any medication?

THE DEFENDANT: No. Well, I'm seeing a psychiatrist, you know.

[DEFENSE COUNSEL]: He's been getting drug counseling, but that's not for any mental impairment.

THE COURT: Do you--do you find that that interferes with your ability to understand what is being said to you?

[DEFENSE COUNSEL]: No, ma'am.

THE COURT: Do you understand everything that [defense counsel] has said to you and you agree to have this case tried on May 5 which is later than the date that ordinarily would have been set in this case?

THE DEFENDANT: Yes.

THE COURT: Now, I'm just being--okay. Let me make a finding. Defendant waives Hicks. New trial date May 5, 1997. Let me inform Counsel that on May 5 Judge Leasure is the principle [sic] criminal judge, and Judge Sweeney is the backup criminal judge. So it more likely than not will be one of those particular judges.

On April 14, 1997, the State filed a motion to reschedule the trial from May 5 to a date prior to the Hicks deadline. On April 25th, Judge Gelfman held a hearing on that motion. At the hearing, Judge Gelfman was advised of the existence of an agreement that had been reached on March 14 between counsel for the parties but had not been disclosed at that time. Counsel revealed that, on October 23, 1996, the victim's mother had given a bed sheet to the police with an explanation that it had been on the bed when and where the victim had been molested. The bed sheet contained a stain that the State wanted to have subjected to DNA testing. At the April 25 hearing, the prosecutor explained:

Your Honor, when the State filed the Motion after receiving the information back on the sheet, having there been an agreement on the 14th of March, when we were last before the Court. At that time, as the Court recalls, there were various Motions filed by the Defense and there were various materials that the Court was going to review in camera to determine what could be released and what couldn't be released.

And on the 14th of March, which was ten days before the then scheduled trial date, the State at that time did in the middle of the Motions agree with the Defense that the trial date of the 24th would be continued, and that if the information came back on the--on the white fitted bed sheet which excluded the Defendant, the State would dismiss the case.

When that information came back to the State the D.N.A. came back on two different items. One was dated the 13th of March and one was dated the 17th of March. The State was away--this Prosecutor was away the week of the 17th as was told to the Court and to the Defense on the 14th.

We did not get the information from the Maryland State Police--the State's Attorney's Office did not get the information from the Maryland State Police until either the 24th or 26th of March, which was the following week after I returned from the State's Attorney's business out-of-state. And the results came back that the particular white fitted bed sheet had excluded Mr. Jackson caused some concern with the State.

I discussed the matter at length with the State's Attorney--with the Deputy State's Attorney, with the Detective, and then I had to meet with the victim's mother.

When I met with the victim's mother on the 8th of April and I advised the Defendant I was--Defense attorney I was going to meet with the victim's mother, it was determined for the first time, the State's Attorney's Office got additional information, that this white fitted bed sheet which had been alluded to in police reports much earlier as being identified by the victim as her bed sheet and as being the bed sheet that was on her bed when various crimes against her had been committed by the Defendant, it had come to the State's attention--State's Attorney's Office attention on April 8th that this sheet had been used somewhere else. It had been used on the sofa. The sofa had been used by victim's mother and someone who she had been seeing at the time.

As a result of that additional information the State's Attorney's Office advised the Defendant through his Counsel, we were not going to honor the agreement of the 14th and that we were going to proceed forward with the case.

Defense counsel responded:

The only thing that in--you're correct that the agreement itself was never put on the record. Reference was made to the agreement with regard to the continuance.

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On the 14th, ten days before trial, we sat in that room and we reviewed every...