Neal v. State

• Decision Date: 11 February 1974
• Docket Number: No. 407,407
• Citation: Neal v. State, 20 Md.App. 20, 314 A.2d 710 (Md. App. 1974)
• Parties: Darlene A. NEAL v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 20

20 Md.App. 20

314 A.2d 710

Darlene A. NEAL v. STATE of Maryland.

No. 407.

Court of Special Appeals of Maryland.

Feb. 11, 1974.

Murray L. Deutchman, Rockville, for appellant.

Arrie W. Davis, Asst. Atty. Gen., with whom were Francis B. Bruch, Atty. Gen., Andrew L. Sonner, State's Atty., for Montgomery County, and Frank Santoro, Asst. State's Atty., for Montgomery County, on the brief, for appellee.

Argued before ORTH, C. J., and MORTON and THOMPSON, JJ.

ORTH, Chief Judge.

This case provides an opportunity to reexamine some aspects of appellate review in criminal causes. Specifically, we shall look again at the position taken with regard to the right of an accused to an immediate appeal from a pre-trial refusal of the trial court to dismiss the indictment ¹ under which he is charged.

I

The right of the State to appeal in a criminal case is severely limited by statute ² and by constitutional guarantees to the accused. ³ The right of an accused to appeal is much broader. The general rule is that he may appeal from a final judgment. ⁴

Courts Art. § 12-301. ⁵. The restrictions on the right or appeal bestowed upon an accused are, in the main, matters of procedure rather than of substance. Under Maryland Rule 1035, we are directed 'not (to) entertain or consider an appeal taken from a pro forma order or judgment,' and are required by the Rule to dismiss such appeals 'as prematurely taken.' We said in Raimondi v. State, 8 Md.App. 468, 470, 261 A.2d 40, 41: 'The cases have long recognized the principle that an appeal in a criminal case is premature until after final judgment, viz., that appeals from interlocutory orders of the trial court in criminal cases are not allowed.' So in Raimondi, we held that an order denying a motion by the accused to dismiss an indictment on the ground that widespread publicity prevented a fair trial was an interlocutory order and not immediately appealable. We pointed out that we reached the same conclusion '* * * that there is no right to file an immediate appeal from a denial of a pretrial motion to suppress evidence allegedly seized in contravention of the Fourth Amendment to the federal constitution, Harris v. State, 6 Md.App. 7, 249 A.2d 723 [314 A.2d 712] Pearce v. State, 8 Md.App. 477, 261 A.2d 39 . . . (1970); from an order overruling the defendant's constitutionally grounded exceptions to the State's answer to his motion for discovery and inspection, Dodson v. State, 8 Md.App. 478, 261 A.2d 38 . . . (1970); from the granting of the State's motion in a noncapital case for a change of venue, Davis v. State, 8 Md.App. 480, 261 A.2d 37 . . . (1970); from refusal to grant a motion to dismiss an indictment on the ground that the State's witnesses had made pretrial identifications of the accused in contravention of the principles enunciated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, see Powers v. State, 8 Md.App. 487, 261 A.2d 44 . . . (1970); or from refusal to grant a motion to dismiss indictments on the ground that they were technically defective, Greathouse v. State, supra, 5 Md.App. 675, 249 A.2d 207. See also Kardy v. Shook, 237 Md. 524, 207 A.2d 83, holding that an order of the trial court permitting the taking of a pretrial deposition is interlocutory in nature and not immediately appealable.' 8 Md.App. at 474-475, 261 A.2d at 43. In Edwards v. State, 16 Md.App. 255, 295 A.2d 811, we held that an order denying a motion to quash charges was interlocutory and the appeal was premature where the only ground was failure of the State to comply with provisions of the Interstate Detainer Act. In Kable v. State, 17 Md.App. 16, 299 A.2d 493, we concluded that notice of appeal from a denial of the accused's motion to dismiss the criminal information charging bribery on the ground he was entitled to indictment by a grand jury was an interlocutory nonappealable order. We observe that an accused may still obtain appellate review of all of these matters in the event he is convicted of the substantive offense upon trial on the merits. Rule 1087 provides: 'On an appeal from a final judgment, every interlocutory order which has previously been entered in the action shall be open to review by this Court unless an appeal has theretofore been taken from such interlocutory order and been decided on the merits by this Court.' ⁶

In the face of the rule that there can be no appeal except from a final judgment, the Court of Appeals, and the Court of Special Appeals following its lead, have entertained an immediate appeal from the refusal of the trial court prior to trial to dismiss an indictment because of the lack of a speedy trial. ⁷ Jones v. State, 241 Md. 599, 217 A.2d 367; Harris v. State, 194 Md. 288, 71 A.2d 36; Stevenson v. State, 4 Md.App. 1, 241 A.2d 174. And in Brown v. State, 2 Md.App. 388, 234 A.2d 788, we held that an immediate appeal would lie, prior to trial on the merits, from the denial of a motion asserting a violation of the constitutional right not to be twice put in jeopardy. This was done as a corollary to the rule prohibiting appeals from interlocutory orders. It was explained in Pearlman v. State, 226 Md. 67, 71, 172 A.2d 395, 397.

'There has been applied through the years a corollary to the rule that there can be no appeal except from a final judgment. Action of a trial court which denies an absolute constitutional right, although seemingly interlocutory, will be reviewed by this Court without requiring the complainant to proceed to final judgment and then seek review of the challenged action on appeal from that judgment.'

But in Pearlman the Court of Appeals recognized a qualification to the corollary, which it had indicated in Lee v. State, 161 Md. 430, 157 A. 723. We discussed Lee in Raimondi, at 470-471, 261 A.2d at 41:

'In Lee v. State, 161 Md. 430, 157 A. 723, decided in 1931, the Court of Appeals held that 'its jurisdiction is limited to the reviewing of final actions of the trial court;' accordingly, it declined to 'take up cases from the trial courts piecemeal.' Were it otherwise, the Lee court said, 'then proceedings in every criminal case, great or small, may be stopped and delayed while the accused prosecutes an appeal * * *' on matters preliminary to trial on the merits of the case. And this, continued the court in Lee, 'would add just so much to the resources of those who might find vexatious delays advantageous, and would multiply appeals in criminal cases, often when acquittals, in the end, would render them profitless.' The precise holding in Lee was that the selection of the forum to which a capital case had been removed was within the lower court's discretion and was not a final order immediately reviewable on appeal. Conversely, the court recognized that had there been a refusal to grant the accused his absolute Maryland constitutional right in a capital case to such removal, such a determination would have amounted to a final judgment on the constitutional right and as such would have been immediately open to review on appeal. Lee concluded, on authority of Tidewater Portland Cement Co. v. State, 122 Md. 96, 89 A. 327, that 'only decisions on claims of such absolute constitutional rights have been held reviewable at once,' and that 'orders within the discretion of the lower courts (such as whether to remove a non-capital case) are, on the contrary, not final orders within the meaning of the rules governing the jurisdiction of this court, and are therefore not immediately reviewable, if reviewable at all." ⁸

The Court explained the qualification in Pearlman, 226 Md. at 71, 172 A.2d at 397:

'The corollary is subject to the qualification that even though a constitutional right is involved, action of the lower court rightfully exercising discretion as to the functioning of the right will not be so reviewed.'

The distinction between the corollary and the qualification stands out in Pearlman. The Court held that '* * * a ruling by the lower court recognizing that the defendant was indigent but nevertheless denying him the right to pursue a motion for a new trial as an indigent constituted a final judgment on a constitutional right, from which an immediate appeal would lie, since it terminated the right of the indigent accused to further litigate his case.' Raimondi, 8 Md.App. at 472, 261 A.2d at 42. The Court made clear, however, that its ruling '* * * does not mean that every exercise of discretion or judgment by the trial courts in determining whether an applicant for a new trial motion is or is not an indigent person, or as to how much he can pay towards the cost of a transcript or a lawyer, is immediately appealable.' Pearlman, 226 Md. at 74, 172 A.2d at 399.

We concluded in Raimondi, 8 Md.App. at 472, 261 A.2d at 42:

'We think it clear that Lee and Pearlman share this common thread: that in a criminal proceeding, where the lower court, prior to trial, recognizes the applicability of a particular constitutional right, but nevertheless refuses to apply it in the accused's case, then such action constitutes a final judgment since it involves the nondiscretionary refusal of the court to grant the accused an absolute constitutional right; but it is otherwise where the lower court makes a determination based on the facts and circumstances of the case, that the constitutional right is not applicable to the accused's case, for in that event, as stated by the court in Pearlman, 'even though a constitutional right is involved, action of the lower court rightfully exercising discretion as to the functioning of the right will not be so reviewed."

And we expressed our belief, 8 Md.App. at 473, 261 A.2d at 42:

'But whether a person has been denied a speedy trial or is being placed in double jeopardy will usually turn on the facts and circumstances present in the particular...