Marks v. State

Decision Date01 September 1989
Docket NumberNo. 1728,1728
Citation578 A.2d 828,84 Md.App. 269
PartiesMorris MARKS, Jr. v. STATE of Maryland. ,
CourtCourt of Special Appeals of Maryland

Fred R. Joseph (Joseph, Greenwald and Laake, P.A. on the brief), Greenbelt, for appellant.

Margaret M. Schweitzer, Sp. Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Alexander Williams, Jr., State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee.

Argued before MOYLAN, KARWACKI and GETTY (JAMES S.), Retired, Specially Assigned, JJ.

KARWACKI, Judge.

On July 25, 1987, Jeffrey Reynard Brown (Brown) was abducted, assaulted, and robbed. Appellant and a co-defendant, Rudolph Saint Dwyer (Dwyer), were arrested and indicted by the Grand Jury of Prince George's County for various crimes as a result of that episode. Appellant was charged with robbery with a deadly weapon, use of a handgun in the commission of a felony, assault with intent to murder, kidnapping, assault with intent to disable, theft of property worth less than $300, and obstruction of justice.

On September 4, 1987, appellant's counsel entered his appearance and requested a speedy trial. Trial was originally scheduled for November 30, 1987. Because continuances had been requested and granted, a hearing was held on February 22, 1988, to determine whether the trial date should be extended beyond February 26, 1988, the 180 day time limit imposed by Md.Code Ann., Art. 27, § 591 and Rule 4-271. State v. Hicks, 285 Md. 310, 403 A.2d 356 (1979). The judge designated by the administrative judge of the Circuit Court for Prince George's County to conduct that hearing granted the continuance. Appellant's trial began on May 25, 1989, and ended on June 1, 1989. Appellant was found guilty of robbery with a deadly weapon, use of a handgun in the commission of a felony, kidnapping assault with intent to disable, carrying a handgun, and obstruction of justice. He was sentenced to a total of 83 years imprisonment with credit for 143 days served. In his appeal from those judgments, appellant raises four issues:

I. Did the court err in finding good cause to extend the trial date beyond the 180 day time limit mandated by Maryland law?

II. Did the court err in denying appellant's motion to dismiss the charges against him based on his allegation that he was denied the right to a speedy trial?

III. Did the court err in denying appellant's motion in limine and appellant's motion for severance of the obstruction of justice charge?

IV. Did the court err in denying appellant's motion for new trial which was based on remarks made by the State's Attorney during closing arguments?

We answer these questions in the negative and affirm.

We can briefly summarize the evidence which supported appellant's convictions. On the morning of July 25, 1987, Brown was forced into an automobile which was driven by Dwyer and occupied by appellant, who was armed with a handgun. Dwyer and appellant repeatedly beat Brown, forced him to remove all of his clothing, and then threw him out of the car in a wooded area. Brown reported the occurrence to the police who apprehended Dwyer and appellant the same day.

I.

A criminal defendant must be tried within 180 days of his appearance or the appearance of his counsel before the circuit court. Md.Code Ann., Art. 27, § 591; Rule 4-271. Violation of this mandate is a ground for dismissal. State v. Hicks, 285 Md. 310, 318, 403 A.2d 356 (1979). The 180 day clock in the instant case began to run on September 4, 1987, when appellant's attorney entered his appearance. Although the case was promptly scheduled for trial on November 30, 1987, postponements of the trial were requested on several occasions by the State and on others by the defense. As the Hicks limit of February 26, 1988, approached, the State requested another postponement because the victim of the crimes at issue, Brown, had not been located by its investigators. At the hearing on this request, Assistant State's Attorney Laura Gwinn advised the court that she had learned that Brown was no longer at the address which he had given. When his telephone number was dialed, the person who answered said that Brown did not live there anymore and that Brown's whereabouts were unknown. Ms. Gwinn said that two of the State's investigators were attempting to locate Brown. Further, she explained that the Northern Action team of the Prince George's County Police Department knew Brown as a drug dealer in the Kanawha Street area and that members of the team advised her on a number of occasions that Brown had not been seen for the last several months. Finally, she emphasized that she would like the opportunity to continue her attempts to locate Brown because of the seriousness of the charges. Appellant's counsel opposed the motion, claiming that there was not good cause for the court to postpone the trial date. The court concluded that since both of the defendants were free on bond and because of the serious nature of the charges, the State should have another opportunity to locate Brown. The State's motion for continuance was granted.

On March 21, 1988, appellant made a motion to dismiss for violation of Md.Code Ann., Art. 27, § 591 and of Rule 4-271, claiming that good cause had not been shown by the State. The docket reflects that on May 13, 1988, a motions date of June 23, 1988, was set and a trial date was set for August 15, 1988. On June 23, 1988, the motions hearing was continued because the Assistant State's Attorney was ill.

On July 18, 1988, a hearing was conducted on appellant's motion to dismiss. The court denied the motion, ruling that the State had made reasonable efforts to locate Brown prior to February 26, 1988, even though it had later come to light that he had been incarcerated in the Maryland penal system on other charges at that time. The trial date was continued until November 28, 1988.

Then, on November 18, 1988, appellant's counsel filed a motion to continue the trial date because appellant had retained two new attorneys on November 15, 1988, because of irreconcilable differences with his former attorney, and one of appellant's new attorneys planned to be out of the jurisdiction on November 28, 1988, for a long scheduled vacation. The court granted this motion on November 30, 1988, and the trial date was set for March 6, 1989.

The docket entry on March 6, 1989, reflects that the trial was continued yet again because appellant's co-defendant's attorney was in another trial. The trial was then scheduled for May 24, 1989. On May 24, 1989, the docket reflects that the trial was continued until May 25, 1989, and finally on May 25, the trial began.

The purpose of the 180 day rule is to protect the societal interest in the prompt trial of criminal cases; the benefits that the rule confers upon defendants are incidental. State v. Hicks, supra, 285 Md. at 320, 403 A.2d 356. The determination as to what constitutes good cause, warranting an extension of the trial date beyond the Hicks limit, is a discretionary one which "... carries a presumption of validity." State v. Green, 54 Md.App. 260, 266, 458 A.2d 487 (1983), aff'd, 299 Md. 72, 472 A.2d 472 (1984). This discretionary determination is "... rarely subject to reversal upon review." State v. Frazier, 298 Md. 422, 451, 470 A.2d 1269 (1984). Reversal of a finding of good cause is only warranted where there is "... a clear abuse of discretion or a lack of good cause as a matter of law." State v. Toney, 315 Md. 122, 131, 553 A.2d 696 (1989).

Appellant argues that the efforts by the State did not satisfy a due diligence standard. Appellant was arrested on July 25, 1987. The case was not assigned to an investigator who could help the Assistant State's Attorney locate Brown until October of 1987, one month before the originally scheduled trial date. In January of 1988, another investigating officer, Detective James Wiseman, was assigned the search for Brown, but he had not located Brown before the February 22, 1988, good cause hearing. Detective Wiseman had made three or four trips to the address Brown had furnished the State in his attempt to locate him. He checked the District of Columbia records to see if Brown had been arrested there. Wiseman left a card on the door of the apartment where he thought that Brown was living. Wiseman did not look at the Assistant State's Attorney's file for information which might have helped him to locate Brown. Appellant argues that if these investigators had used due diligence they would have discovered that Brown was then incarcerated in the Maryland penal system. Further, appellant claims that defense counsel informed the Assistant State's Attorney as early as October 1987 that Brown was probably in jail. Thus, appellant concludes that the good cause finding on February 22, 1988, which extended the trial date beyond 180 days was in error. We disagree.

First, appellant's reliance on a due diligence requirement is misplaced. In fact, in State v. Toney, supra, 315 Md. at 133, 553 A.2d 696, the Court rejected this standard. Second, at the time of the hearing, the evidence before the court supported its ruling that good cause existed for continuing the trial date. The witness in question, Brown, was the victim of the serious crimes for which the two defendants were to be tried. This Court has held that good cause exists to extend a trial when a witness is unavailable. Bolden v. State, 44 Md.App. 643, 655-56, 410 A.2d 1085 (1980), cert. denied, 287 Md. 750 (1980). Even when continuances were subject to a more stringent standard, "extraordinary cause" as opposed to "good cause," this Court recognized that continuances could be granted when a necessary witness is absent because the fact that a witness is missing constitutes an extraordinary cause for delaying a trial. Bethea v. State, 26 Md.App. 398, 400, 338 A.2d 390 (1975). Thus, appellant has failed to demonstrate that the reason for the...

To continue reading

Request your trial
58 cases
  • Klauenberg v. State
    • United States
    • Court of Appeals of Maryland
    • 25 Agosto 1999
    ...(1982); Tapscott v. State, 106 Md.App. 109, 124, 664 A.2d 42, 49 (1995), aff'd, 343 Md. 650, 684 A.2d 439 (1996); Marks v. State, 84 Md.App. 269, 281, 578 A.2d 828, 834 (1990), cert. denied, 321 Md. 502, 583 A.2d 275 With regard to section 12-106 argument, appellant contends the trial court......
  • Oken v. State
    • United States
    • Court of Appeals of Maryland
    • 1 Septiembre 1994
    ...168, 176, 210 A.2d 732, 736 (1965); Market Tavern, Inc. v. Bowen, 92 Md.App. 622, 657, 610 A.2d 295, 313 (1992); Marks v. State, 84 Md.App. 269, 292, 578 A.2d 828, 839-40 (1990); Hairston v. State, 68 Md.App. 230, 241, 511 A.2d 73, 78 (1986); McDowell v. State, 31 Md.App. 652, 665, 358 A.2d......
  • Tapscott v. State
    • United States
    • Court of Special Appeals of Maryland
    • 1 Septiembre 1994
    ...carries a "heavy presumption of validity". Dalton v. State, 87 Md.App. 673, 682, 591 A.2d 531 (1991) (citing Marks v. State, 84 Md.App. 269, 277, 578 A.2d 828 (1990)). To obtain dismissal for an alleged violation, the defendant has the burden of demonstrating either a clear abuse of discret......
  • Brown v. State, 617
    • United States
    • Court of Special Appeals of Maryland
    • 8 Diciembre 2003
    ...should assign different weight to various reasons for the delay, depending on who is at fault. This was explained in Marks v. State, 84 Md.App. 269, 578 A.2d 828 (1990): "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT