King v. State

• Decision Date: 20 January 1969
• Docket Number: No. 135,135
• Parties: Rebert KING, Senior v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 652

5 Md.App. 652

249 A.2d 468

Rebert KING, Senior v. STATE of Maryland.

No. 135.

Court of Special Appeals of Maryland.

Jan. 20, 1969.

[249 A.2d 470] Sidney S. Campen, Jr., Easton, for appellant.

Henry J. Frankel, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Baltimore, William B. Yates, II, State's Atty. for Dorchester Co., Cambridge, on the brief, for appellee.

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

ORTH, Justice.

The appellant was found guilty by a jury in the Circuit Court Indictment No. 2183-Storehouse breaking with intent to steal goods of the value of $100 and upwards; 5 years.

for Dorchester County of the following offenses and sentences were imposed as designated:

Indictment No. 2184-Storehouse breaking with intent to steal goods of the value of $100 and upwards (1st count); grand larceny (2nd count); 5 years on each count to run concurrently on each count but consecutively with the sentence in No. 2183.

Indictment No. 2185-Storehouse breaking with intent to steal goods of the value of $100 and upwards; 5 years to run consecutively with the sentences in No. 2183 and No. 2184.

On appeal from the judgments he contends:

I He was denied a speedy trial.

II The testimony of an accomplice was not corroborated.

III An oral statement made by him was improperly admitted in evidence.

IV The trial court erred in refusing to grant his request, made during the course of the trial, that his court appointed attorney be dismissed and new counsel be appointed to represent him.

I SPEEDY TRIAL

Every accused within the ambit of the Constitution of the United States is guaranteed a speedy trial by its sixth amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1; State v. Long and Nelson, 1 Md.App. 326, 230 A.2d 119. Every accused under the jurisdiction of this State is also guaranteed a speedy trial by Article 21 of the Maryland Declaration of Rights and, in addition to these federal and State constitutional rights, has a statutory right, under certain circumstances, to a trial within a specified time by the provisions of Md.Code, Art. 27, §§ 616A-616R pertaining to interstate detainers and § 616S pertaining to intrastate detainers. And by Md.Rule 709 an accused not indicted may

seek an immediate trail upon petition waiving his right to action by the grand jury, § a, whereupon the State's Attorney shall immediately file an information against him (except in a case originating before a trial magistrate which is to be tried upon warrant) § b; when such petition has been filed the accused 'shall be tried, without regard to term of court, within such reasonable time as to accord him a speedy trial,' § c. We have considered the constitutional rights to a speedy trail and discussed the rules of law relating thereto in a number of cases from Allen v. State, 1 Md.App. 249, 229 A.2d 446 to Frazier v. State, 5 Md.App. 88, 245 A.2d 614. In State v. Long and Nelson, 1 Md.App. 326, 230 A.2d 119 , we stated that the time within which trial must be had by the provisions of Art. 27, §§ 616A-616S applied only to prisoners serving a sentence and against whom a detainer had been filed and held that there was no statutory direction, either directly of by implication, that all those accused of a crime must be tried within a specified time. But we have had no occasion to consider fully the provisions of §§ 616A-616S or Md.Rule 709. The instant case, however, brings Art. 27, § 616S before us, as the appellant claims that he was not only denied his constitutional rights to a speedy trial but that a detainer was lodged against him for the crimes which are the subject of this appeal while he was a prisoner serving a sentence in a correctional institution under the jurisdiction of the Department of Correction, that he requested that he be tried and that he was not tried within the time prescribed by the statute.

The Intrastate Detainer Act

Chapter 628, Acts 1965, effective 1 June 1965, codified as Art. 27, § 616S ¹, applicable at the time of the appellant's trial on 7 March 1968, ² provided in relevant part:

'(a) Request by prisoner; statement from warden having custody.-Whenever the Department of Correction (b) Duty to imform prisoner.-The warden or superintendent having custody of the prisoner shall inform the prisoner within 15 days in writing of the source and contents of any untried indictment, information, or complaint against said prosoner concerning which the warded or superintendent has knowledge, and of the prisoner's right to make a request for final disposition thereof.

receives a [249 A.2d 472] detainer against any prisoner serving a sentence in any correctional institution under the jurisdiction of the Department, any such prisoner shall be brought to trial within 120 days after the request of the prisoner for final disposition of the indictment, information, or complaint has been delivered to the State's attorney of the City of Baltimore or of the county in which the indictment, information, or complaint is pending and to the appropriate court; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be filed within 30 days of the prisoner's notification of any untried indictment, information, or complaint and shall be accompanied by a statement from the warden or superintendent having custody, setting forth the term of the 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 date of parole eligibility of the prisoner, and any decisions of the Board of Parole and Probation relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.

(c) Dismissal when action not commenced.-If action is not commened on the matter for which request for disposition was made, within the time limitation set forth in subsection (a) above, the court shall no longer have jurisdiction thereof, and the untried indictment shall have no further force or effect; and in Obviously the objective of the Act was to assure a prisoner incarcerated in the designated institutions of this State against whom a detainer was filed on a charge to be prosecuted in this State, a trial on such charge within the time limitation upon delivery to the State's attorney and court of the prisoner's request. While the Act may be praised for its objective, it may be more damned for its provisions establishing the procedure to attain the objective. The provisions are vague, obscure and with one exception, lack sanctions to compel compliance with them. ³ In our discussion of the Act hereinafter 'indictment' means 'any untried indictment, information or complaint against a prisoner'; 'warden' means 'warden, superintendent or county or city law enforcement officer having custody of the prisoner'; 'statement' means the statement from the warden specified in § 616S(a); and 'request' means the request of the prisoner for final disposition of the indictment.

such case the court shall enter an order dismissing the untried indictment with prejudice.'

The Act first refers to the request of the prisoner in that part of subsection (a) providing that when a detainer has been received by the Department of Correction (and by amendment by any county or city jail) the prisoner shall be brought to trial within the time limitation after the request of the prisoner has been delivered to the appropriate State's attorney and court. It then provides that the request 'shall be filed' within 30 days of the prisoner's notification of the indictment. It does not say who is to file the request or where it is to be filed. The Attorney General has interpreted the filing provision to mean that the request of the prisoner must be made by him within 30 Subsection (b) requires the warden to inform the prisoner within 15 days in writing of the source and contents of the indictment, concerning which the warden has knowledge, and of the prisoner's right to make a request for final disposition thereof. It does not specify when the 15 days starts to run. We think the 15 day period would commence when the warden received knowledge of the indictment. As the Act contemplates that the detainer would be received by the Department of Correction, it assumes that the proper officials would then notify the warden; the warden would then have knowledge. However, the Act does not provide for such notification. As the time within which the prisoner shall be brought to trial runs from the time his request is delivered to the State's attorney and court, as he cannot make the request until he is notified of the indictment, as he need not be notified of the indictment until the warden has knowledge of it, as the warden would not have the requisite knowledge of it until he was informed about the detainer, and as there is no requirement that the warden be notified of the detainer, the prisoner would be precluded from invoking the Act or the invoking of the Act by the prisoner could be indefinitely delayed by the mere failure or delay of the proper officials to notify the warden that the detainer had been received. We do not feel that the knowledge of the Department of Correction as to an indictment, obtained by receipt of a detainer, is knowledge of the warden. The Act specifically provides that the information as to the indictment is that concerning which the warden has knowledge. We can only take this to mean actual knowledge, for the warden could not inform the prisoner of that which he had only constructive knowledge. And, in any event, even if the warden had actual knowledge of the indictment and failed to give the prisoner the information required, the prisoner would Subsection (c) of the Act provides that if 'action is not...