Jones v. State
| Decision Date | 08 March 1966 |
| Docket Number | No. 495,495 |
| Citation | 217 A.2d 367,241 Md. 599 |
| Parties | James Lawrence JONES v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Elsbeth Levy Bothe, Baltimore, for appellant.
Donald Needle, Asst. Atty. Gen., Baltimore (Thomas B. Finan, Atty. Gen., and Charles E. Moylan, Jr., State's Atty. for Baltimore City, Baltimore, on the brief), for appellee.
Before PRESCOTT, C. J., and HAMMOND, HORNEY, OPPENHEIMER and McWILLIAMS, JJ.
Appellant, charged in two pending indictments with armed robbery, has appealed a denial by a trial judge of the Criminal Court of Baltimore to grant his motion to dismiss, which alleged he has been denied his constitutional right to a speedy trial.
The State has moved to dismiss the appeal, alleging that no final judgment has been entered in the trial court; hence the appeal is premature. Following the previous holding of this Court in Harris v. State, 194 Md. 288, 71 A.2d 36, the motion will be overruled.
Appellant bases his claim of a denial of a speedy trial on an agreed statement of facts, which, in outline, follows. He was arrested on January 8, 1965 (all dates hereafter will be in 1965, unless otherwise noted), and since has been continuously confined in jail. On January 29, the Grand Jury returned 3 indictments against him and 2 co-defendants (whose names are Goode and Sample), charging contemporaneous armed robberies of 3 alleged victims. He was arraigned on March 5, pled not guilty, and reserved his right to a jury trial. Goode was arraigned on March 31, and, after pleading insanity, was transferred to the State hospital for pretrial medical examination.
The 3 indictments against appellant, together with 10 others against Goode (with co-defendants other than appellant) were 'specially assigned' to Donald Needle, Esq., then an Assistant State's Attorney, for prosecution. As a result, the scheduling of trials on these indictments was not handled through the usual procedures of the State's Attorney's office, but through arrangements with Mr. Needle.
On March 29, counsel for the appellant, Mrs. Bothe (formerly Miss Elsbeth Levy), wrote a letter to Mr. Needle, in which, after complaining about the appellant 'being forced to attend line-ups and being refused permission to consult with' counsel, she stated:
Mr. Needle replied by letter, as of March 31, in which, inter alia, he stated: * * *.
Early in April, appellant's counsel called at the office of Mr. Needle to discuss a trial date. He took the position that appellant should not be accorded a separate trial, and telephoned the Hospital to urge that the examination of Goode be expedited. Earlier, on February 17 and March 15, the other co-defendant, Sample, had filed preliminary motions. Mrs. Bothe objected to the delay and requested that a trial date be set, but this was not done.
A written motion requesting a severance was filed by Mrs. Bothe on April 30, and she sent a copy thereof to Mr. Needle together with the following letter:
'April 30, 1965
'Dear Donald:
'Enclosed herewith is Motion for Separate Trial in the above, original of which is also being mailed this date to the Clerk's office.
'I learned today that [Sample] is demanding his counsel's withdrawal from the case, and that Judge Sklar is probably going to appoint new counsel for Sample. Inasmuch as Jones has been awaiting trial nearly four months because of one, and now perhaps also the other co-defendant's delays, it would seem that his trial should proceed separately for that reason.
'I have a case in on Tuesday morning (May 4th), and want to try to see Judge Sklar sometime that day with reference to Jones' severance and speedy trial. Would you call me Monday, and say when it would be convenient for you to go with me to his chambers.
(Miss) Elsbeth Levy [Bothe]'
Appellant's counsel was unsuccessful in arranging the suggested meeting between counsel for the parties and the Court, but met with the trial judge, in the absence of the Assistant State's Attorney, sometime during the week preceding May 24. On May 24, she wrote Judge Sklar:
'May 24, 1965
'Dear Judge Sklar:
'You may recall that I talked with you last week with reference to the above named defendant's Motion for Severance on his co-indictments with defendants Abraham Goode and Hayes Sample.
'I pointed out to you at that time, that Jones had been incarcerated awaiting trial since the first week in January, 1965; that one of the co-defendants (Goode) had been referred to Clifton T. Perkins State Hospital for pre-trial mental examination which had not been completed; that the other (Sample) had requested a change of lawyers which was delying his trial preparations; and that the State was refusing to set a trial date for Jones, despite my persistent requests on his behalf, until the others were ready to be tried with him. Jones has been ready for many weeks.
'I also asked that you grant a severance on the basis that Jones could not receive a fair trial in the event that incriminatory statements of the co-defendants were admitted. All parties have asked or reserved their rights to be tried before a jury, and it is difficult to conceive that a jury would disregard the Court's admonition to ignore their application to Jones who has consistently denied his guilt.
* * *
* * *
'I do not feel it is necessary to thoroughly explore this defendant's absolute right to a separate trial as this, in any event, seems to be his only remedy to the right of a speedy trial. I feel that the State should, at this point, be compelled to try Jones promptly, or to dismiss the indictments against him for want of prosecution. He has been in jail and ready for trial for nearly five months!
'In the even that Jones' case is not set for trial within one week, I will move for its dismissal, and trust that you will take appropriate action. I hope that you will see fit to order a prompt and separate trial for this man, and that it will not be necessary to afford him his rights.
Yours respectfully,
(Miss) Elsbeth Levy [Bothe]'
Although there was no written response to the above letter, in early June, the indictments were set for trial, as to appellant alone, the trial date being June 16, before Judge Sklar and a jury, in the Criminal Court of Baltimore. The trial date was agreed upon by counsel for the appellant and the State.
During the last weeks of June, the State's Attorney's office had scheduled an unprecedented number of cases for trial in an effort to clean up a large backlog of untried cases prior to the summer recess.
Both parties had summoned witnesses, and were prepared to proceed with trial on June 16. However, the appellant's case was not reached, due to a pending jury trial which was held over from the preceding day and continued on into the following day. Because of the extraordinarily heavy dockets during this period in the Criminal Courts of Baltimore, appellant's case was not reset for a jury trial before the end of the term. On this subject, Mr. Needle wrote to Mrs. Bothe.
'June 24, 1965
'Dear Miss Levy:
'Confirming our telephone conversation of yesterday, please be advised that I will be out of town from June 25, 1965, to July 10, 1965, attending military summer encampment in Savannah, Georgia, and therefore will be unable during that time to prosecute the above-captioned cases which have been specially assigned to me.
'As you know, the above cases were set on the docket for trial, before Judge Albert Sklar and a jury on June 16, 1965, but unavoidably could not be reached because of another pending jury trial.
'It is my understanding that there will be no juries available after next week, during the summer recess. Furthermore, it will be physically impossible for any Assistant State's Attorney to try these cases with a jury next week because of the already overcrowded trial dockets.
'If you desire to have the cases tried next week non-jury, Mr. A. Samuel Peregoff of this office will be happy to accommodate you and has consented to prosecute them at my request. Also, I will be happy to try the cases nonjury after my return from military duty and will, if necessary, come in during my vacation period during the summer to accommodate you.
'If your client wants to be tried by a jury, however, there seems to be no alternative but to set a trial in September when jurors will be available.
'Please contact either myself or Mr. Peregoff concerning this matter. Kindest personal regards.
Yours very truly,
/s/ Donald Needle'
On June 23, co-defendant Goode (who had been released from the Hospital on May 17) was tried on a single statement of facts on all three indictments--Nos. 212, 211 and 210--by Judge Sklar sitting without a jury. He was found guilty on all indictments, and sentenced to a total of twenty years in the Maryland Penitentiary with referral to Patuxent Institution. Some of the other cases against Goode remain open.
On June 28, appellant...
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