McNeil v. State, 173

CourtCourt of Special Appeals of Maryland
Citation112 Md.App. 434,685 A.2d 839
Docket NumberNo. 173,173
PartiesAnthony Dorvell McNEIL v. STATE of Maryland. ,
Decision Date01 September 1996

George Harper, Upper Marlboro, for Appellant.

Diane Keller, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore and Jack B. Johnson, State's Attorney for Prince George's County, Upper Marlboro, on the brief), for Appellee.



In this appeal, we shall construe Maryland Code, Courts and Judicial Proceedings Article ("C.J.") § 12-302(c)(3) (1957, 1996 Repl.Vol.), which permits the State to lodge an interlocutory appeal challenging a trial court's suppression of evidence. Anthony McNeil, appellant, was charged with armed robbery and attempted murder. When the Circuit Court for Prince George's County granted appellant's motion to suppress his confession, the State noted an appeal. After the State sought to withdraw its appeal, the case proceeded to trial. A jury convicted McNeil of attempted second degree murder and armed robbery, for which he was sentenced to a total of 40 years imprisonment. On appeal, McNeil presents the following questions:

I. Does the State's abandonment of an interlocutory appeal require dismissal of the underlying prosecution?

II. Does the State's abandonment of an interlocutory appeal require exclusion of any evidence acquired during the pendency of that appeal?

III. Does a trial court lack jurisdiction to try a criminal case while a State's interlocutory appeal is pending, under C.J. 12-302?

IV. Did the trial court deny the defendant his rights to confront and cross examine the witnesses against him, by improperly limiting his cross-examination?

For the reasons that follow, we shall remand for further proceedings concerning the first and second questions. We shall answer the remaining questions in the negative.

Factual Summary

Anthony McNeil and Blaise McNeil 1 were charged with the armed robbery and attempted murder of Pamela Mills. The State alleged that, on May 10, 1994, the two men stole money and drugs from the townhouse shared by Mills and her boyfriend and, during the robbery, McNeil shot Mills three times.

On September 22, 1995, the court held a hearing on McNeil's motion to suppress his confession. The court granted the motion, concluding that the confession was "tainted" by police questioning before McNeil was advised of his constitutional rights. Trial was rescheduled for September 27, 1995. On that date, the State noted an appeal from the suppression order, pursuant to C.J. § 12-302(c)(3). In accordance with the statutory requirements, it certified that the appeal was not taken for purposes of delay and that the confession was material to the case. The State never paid the filing fee for the appeal, however. 2

Also on September 27, 1995, the State moved to continue the trial and, because of the appeal, asked the court to find good cause for the postponement. 3 The court (Missouri, J.) granted the continuance, but declined to find good cause for the postponement. Instead, the court instructed counsel to obtain a new trial date consistent with statutory speedy trial requirements, and noted that "if the Court of Special Appeals is still tied up with the case, at that time then I will consider granting good cause...." Consistent with the court's instructions, trial was rescheduled for November 6, 1995. On that date, Blaise pleaded guilty to assault with intent to murder. McNeil's case was "trailed" until November 7th, apparently because his lawyer was involved in another matter.

On November 7, 1995, the court (McKee, J.) advised McNeil that he had received from the prosecutor a notice to withdraw the State's appeal. McNeil objected, asserting that the State had improperly attempted to dismiss the appeal under Md. Rule 8-203(a) and that, in any event, the State could not dismiss an appeal taken under C.J. § 12-302(c)(3). As the appeal was still pending, he also contended that the court did not have jurisdiction to try the case. The following colloquy is relevant:

COURT: The record should indicate that just moments ago the State handed to me a notice of withdrawal of appeal pursuant to Rule 8-203(a) and it's accepted by the Court.

DEFENSE COUNSEL: Your Honor, that rule is not the correct rule. That is the rule for striking of a notice of appeal by the court.

Now, 8-601, that being Maryland 8-601 does appear on [sic] an appellant to dismiss appeal at any time before an opinion of the court is announced by filing a notice of dismissal. But it specifies that it must be filed in the Court of Special Appeals and then a copy must be placed in the court file in the Circuit Court, if the Circuit Court still has possession of the file. I point that out because the Court right now doesn't have the jurisdiction to try this case until the State actually files it in the Court of Special Appeals. And that has two consequences.

COURT: You walk downstairs to the resident appellant [sic] judge's chambers and a fellow down there known as Judge Chasanow, then you would have filed it with the Court of Appeals.

THE STATE: The State will do that.

COURT: And you're going to do that.

McNeil further asserted that the State had taken the appeal in bad faith, in order to delay the trial and gather evidence against him. Additionally, he complained that he was not prepared for trial because he had anticipated a good cause hearing, and not a trial, on November 6, 1995. Consequently, McNeil moved to dismiss the case or exclude evidence that the State had obtained during the pendency of the appeal.

In response, the prosecutor, Lloyd Johnson, explained that Kenneth Eichner, the prosecutor who had handled the suppression hearing, had resigned from the State's Attorney's office, and McNeil's case had been reassigned to him. Johnson denied any "bad faith" by the State and said that he decided to withdraw the appeal after reviewing the file and determining that the appeal would be "counter productive". He also claimed that the filing of the appeal did not preclude the State from continuing its investigation. The court denied McNeil's motion, and the case was reset for trial the next day. A docket entry for November 7, 1995 indicates: "Notice withdrawing the appeal to be filed by the State."

That same day, the police reinterviewed Wayne Bishop, a special police officer in the District of Columbia, who was the fiance of McNeil's sister. 4 Bishop had previously told police that he had accepted a shotgun as a gift from McNeil on the night of the robbery, but that he did not know anything about the robbery. During the second interview, which the prosecutor attended, a police detective told Bishop that he could either talk or he would be "read his rights". Bishop gave the police a second statement in which he said that McNeil and Blaise had confessed to him that they had shot a woman, and that he had seen them with a woman's purse and a large sum of money at his home.

On November 8, 1995, the State filed in the circuit court a Notice of Withdrawal of Appeal. The notice, captioned "IN THE MARYLAND COURT OF SPECIAL APPEALS," requested that the State's appeal be stricken. On the same day, the court (Spellbring, J.) heard additional argument concerning McNeil's objections to the State's effort to withdraw the appeal. McNeil also formally filed a Motion for Appropriate Relief, alleging, inter alia, that it would be contrary to public policy to permit the State to benefit from its abuse of C.J. § 12-302(c)(3). Appellant conceded that the statute seems to permit the State to continue its investigation during the pendency of the appeal. But, if the State is permitted voluntarily to withdraw an appeal, he reasoned that its decision might turn on the result of its investigation, effectively encouraging the State to be dilatory in pursuing the appeal, which the statute clearly prohibits.

McNeil argued that the following facts established the State's bad faith: 1) the State never paid the filing fee for the appeal; 2) three days after the appeal was filed, the State subpoenaed at least one witness, Bishop, for the November 7, 1995 court date, evidencing its intent not to pursue the appeal; 3) the State used the delay to obtain evidence against him; 4) the State failed to advise appellant of its intention to abandon the appeal prior to the court date of November 7th; and 5) the prosecutor participated in the interview in which Bishop was told he could either talk or have his "rights read". The defense requested the following relief:

A. Hold a full evidentiary hearing upon this motion, with testimony from all participants, such as Kenneth Eichner, Esq., Lloyd Johnson, Esq., Vickie Janof, Appeals Clerk, and Linda Anderson, Court Reporter B. Continue trial herein until such an evidentiary hearing can be held;

C. Exclude from any subsequent trial any of the evidence gained by the State since the filing of the interlocutory appeal;

D. Dismiss the instant matter for prosecutorial misconduct.

The State responded that November 6, 1995 was intended as a trial date. The prosecutor submitted an inter-office memorandum to the court, authored by Eichner, dated October 5, 1995, which noted that the C.J. § 12-302(c)(3) appeal had been filed, but did not indicate that the November 6, 1995 date was for any purpose other than trial. Again, McNeil's motion was denied. The court said:

I will deny the defense motion to continue this trial date. I will not consider the motion for appropriate relief ... and the supplemental memorandum in support of a motion for appropriate relief on the basis, I believe, these issues have already been handled by Judge McKee on November 7.... I will deny having any further good cause hearing other than what has already been held placed [sic] on the record before Judge McKee and me. 5

McNeil's trial began on November 8, 1995, and he was convicted...

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