Phillips v. State

Decision Date30 April 2020
Docket NumberNo. 3245,3245
PartiesBASHUNN CHRISTOPHER PHILLIPS v. STATE OF MARYLAND
CourtCourt of Special Appeals of Maryland

BASHUNN CHRISTOPHER PHILLIPS
v.
STATE OF MARYLAND

No. 3245

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018
April 30, 2020


CRIMINAL LAW - TIME OF TRIAL - DECISIONS SUBSEQUENT TO 1966 - CONSTITUTIONAL AND STATUTORY PROVISIONS

Under Article 21 of the Maryland Declaration of Rights, "in all criminal prosecutions, every man hath a right . . . to a speedy trial[.]" And we have held that "[t]he speedy trial right under the Maryland Constitution is coterminous with its Federal counterpart and any resolution of a claim under the Sixth Amendment will be dispositive of a parallel claim under Article 21." Erbe v. State, 25 Md. App. 375, 380 (1975), aff'd, 276 Md. 541 (1976) (internal citation and quotation marks omitted).

CRIMINAL LAW - TIME OF TRIAL - DECISIONS SUBSEQUENT TO 1966 - DELAY ATTRIBUTABLE TO PROSECUTION

No Maryland appellate decision had specifically addressed whether and how delays caused by interlocutory appeals initiated by the State should be weighed in a speedy trial analysis. On the other hand, federal courts have held that an interlocutory appeal by the prosecution "is a valid reason that justifies delay" and ordinarily the resulting delay will not be accorded "any effective weight" in a speedy trial analysis. United States v. Loud Hawk, 474 U.S. 302, 315-16 (1986); see also United States v. Bishton, 463 F.2d 887, 889 (D.C. Cir. 1972) ("the time spent on appeals is not generally included for purposes of calculating the period of delay in prosecution"). But if the issue appealed by the prosecution is "clearly tangential or frivolous," the delay resulting from the appeal should weigh heavily against it. Loud Hawk, 474 U.S. at 315-16.

CRIMINAL LAW - TIME OF TRIAL - DECISIONS SUBSEQUENT TO 1966 - DELAY ATTRIBUTABLE TO PROSECUTION

As set forth in United States v. Herman, 576 F.2d 1139, 1146 (5th Cir. 1978), which we find instructive in the Barker v. Wingo, 407 U.S. 514, 530-33 (1972), analysis in this case, relevant factors to assess the reasonableness of the interlocutory appeal include the strength of the government's position on the appealed issue, the importance of the issue in the posture of the case, and the seriousness of the crime. The defendant bears the burden of showing that the State acted in bad faith in pursuing the interlocutory appeal.

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Circuit Court for Anne Arundel County
Case No. 02-K-14-001626

REPORTED

Fader, C.J., Nazarian, Kenney, James A., III (Senior Judge, Specially Assigned), JJ.

Opinion by Kenney, J.

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Appellant, Bashunn Christopher Phillips, was charged with the December 10, 2013 murder of Shar'ron Mason on July 18, 2014. His trial began approximately four years later on July 9, 2018. The extended aspect of this delay began on August 7, 2015, when appellant filed a motion in limine to exclude evidence related to cell tower maps that the State intended to use to establish the approximate location of appellant's cell phone on the morning of December 10, 2013.1 The circuit court granted appellant's motion, and the State requested in banc review.2 When the in banc panel reversed the order in limine, appellant appealed and the State responded with a motion to dismiss.

In Phillips v. State, 233 Md. App. 184 (2017) (Phillips I), this Court denied the State's motion to dismiss the appeal and reversed the ruling of the in banc panel for lack

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of jurisdiction. The Court of Appeals granted certiorari review and, on February 20, 2018, affirmed our holding that the State had no authority to seek in banc review of an evidentiary ruling in State v. Phillips, 457 Md. 481, 512 (2018) (Phillips II).

Throughout the pre-trial delay, appellant was incarcerated. On April 8, 2018, he filed a motion to dismiss for violations of his right to a speedy trial, which the circuit court denied on June 15, 2018.

Appellant presents one question in his timely appeal:

Was his right to a speedy trial violated?

As we explain below, we answer that question "no" and affirm the decision of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND
Timeline of Events

Appellant was indicted on July 18, 2014 and arrested on July 22, 2014 on charges related to the murder of Ms. Mason on December 13, 2013. On July 25, 2014, he filed his first request for a speedy trial as part of an omnibus motion. The court granted appellant's August 7, 2015 motion in limine on February 12, 2016, and that same day, the State requested in banc review of the court's ruling based on Maryland Constitution, Article IV,

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section 22,3 and Maryland Rules 4-3524 and 2-551.5 Previously, a trial date of March 9, 2016 had been postponed because the hearing on appellant's motion in limine had not been completed.

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Appellant, arguing that the in banc panel was without jurisdiction to hear the appeal, filed a Motion to Dismiss State's Request for In Banc Review. Appellant contended that Article IV, section 22, of the Maryland Constitution permits in banc review only when a direct appeal is allowed and the State had no statutory right to appeal the court's order. The State responded that in banc review of a trial court's decision was not an "appeal," and that the Maryland Constitution provided the right to an in banc determination in this context.

On February 25, 2016, trial was postponed until August 29, 2016 at the State's request over defense counsel's objection.6 At the postponement hearing, defense counsel argued that, in seeking in banc review, the State was "delay[ing] trial for a motion that has no merit." The in banc panel denied appellant's motion to dismiss on March 24, 2016, stating that it would reconsider the motion after a hearing.

The in banc panel held a hearing on May 17, 2016, and, on June 3, 2016, issued a Memorandum Opinion & Order denying the appellant's motion to dismiss and reversed the circuit court's decision excluding the drive-test evidence.

Appellant noted an interlocutory appeal to this Court on June 13, 2016. The State moved to dismiss the appeal, arguing that appellant lacked the statutory authority to appeal

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an evidentiary ruling before a trial had been conducted, and that the proper avenue to appeal the in banc panel's decision was to do so after the trial.

We issued a reported opinion on June 28, 2017, stating that "the case law is unambiguous that 'when no appeal from a circuit court order could be taken to the Court of Special Appeals . . . , then no appeal can be taken to a court in banc.'" Phillips I, 233 Md. App. at 212 (quoting Bd. of License Comm'rs for Montgomery Cty. v. Haberlin, 320 Md. 399, 407 (1990)). We held that the in banc panel did not have jurisdiction to review the trial court's ruling on the motion in limine because it was not a final judgment, and that the exception provided to the State under CJP § 12-302(c)(3)(i) did not apply because the evidence was not excluded by the court on constitutional grounds. As to the State's contention that appellant had to wait to appeal the in banc panel's decision, we stated:

[T]he proper time to appeal a decision of an in banc panel is directly after the decision of the in banc panel. A party who waits to appeal until after remand and final judgment by the circuit court loses the ability to argue those points decided by the in banc panel. This is contrary to the State's contention, just mentioned, that Phillips must wait until after a trial and verdict to offer any allegations of error concerning the in banc panel's decision. In fact, if Phillips were to follow the State's advice and wait until a full trial, verdict, and appeal to this Court, he would be foreclosed from offering argument concerning the decision of the in banc panel[.]

Phillips I, 233 Md. App. at 197-98 (internal citations and footnotes omitted).

On October 10, 2017, the Court of Appeals granted the State's certiorari petition. On February 20, 2018, that Court, in Phillips II, 457 Md. 481, affirmed the judgment of this Court that the ruling on appellant's motion in limine was not subject to in banc review.

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The Speedy Trial Motion and Hearing

On April 8, 2018, appellant, alleging that his right to a speedy trial had been violated, filed a motion to dismiss. He contended that, while delays caused by defense appeals in criminal cases are "not relevant to the speedy trial analysis," the delay in this case was "initiated by the State's attempt to pursue an appeal to which it was not entitled." Citing Ward v. State, 52 Md. App. 63, 77 (1982), appellant acknowledged that "[d]elays caused by government appeals should be charged against the State only when the appeal is taken in bad faith or as a dilatory tactic." But "[t]he State should have known that from the plain language of the Maryland Rules, the Maryland Constitution, and applicable statutes that it had no legal basis to support filing the request for an in banc panel." In appellant's view, all delays after March 9, 2016 were attributable to the State:

As [appellant] either requested or acquiesced to all postponements prior to February 25, 2016, [he] does not argue that the entirety of the delay in this case was attributable to the State. However, all of the delay after the March 9, 2016, trial date was postponed should be charged to the State.

In its April 23, 2018 response, the State did "not dispute that the speedy trial clock began to run on July 18, 2014 and that the subsequent delay [was] sufficient to merit constitutional scrutiny." It acknowledged that the delay "is a factor to be a considered" but, relying on Glover v. State, 368 Md. 211, 225 (2002), it stated that it was "not a weighty factor." The State countered appellant's contention that it was responsible for all delays occurring after March 9, 2016 as "not consistent with the case law." And that the "intervening delay, between August 29, 2016 and October 10, 2017 [was] attributable to

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the [appellant] . . . . because [he] was pursuing an appeal of the unanimous ruling of the three judge panel."7

At the June 15, 2018 hearing on his speedy-trial motion...

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