Phillips v. State

• Decision Date: 30 April 2020
• Docket Number: No. 3245, Sept. Term, 2018,3245, Sept. Term, 2018
• Citation: 227 A.3d 779,246 Md.App. 40
• Parties: Bashunn Christopher PHILLIPS v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

246 Md.App. 40

227 A.3d 779

Bashunn Christopher PHILLIPS

v.STATE of Maryland

No. 3245, Sept. Term, 2018

Court of Special Appeals of Maryland.

April 30, 2020

Submitted by: Katherine P. Rasin (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Submitted by: Karinna M. Rossi (Brian E. Frosh, Attorney General, on the brief), Baltimore, MD, for Appellee.

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

Kenney, J. 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, 163 A.3d 230 (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 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, 179 A.3d 965 (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, 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.

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 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, 163 A.3d 230 (quoting Bd. of License Comm’rs for Montgomery Cty. v. Haberlin , 320 Md. 399, 407, 578 A.2d 215 (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, 163 A.3d 230 (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, 179 A.3d 965, affirmed the judgment of this Court that the ruling on appellant’s motion in limine was not subject to in banc review.

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, 447 A.2d 872 (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, 792 A.2d 1160 (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 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, appellant again stated that the relevant period of delay "is between March of 2016 and today [June 15, 2018]," arguing:

Although Mr. Phillips was indicted in July of 2014, for that first two-year period, we either agreed to or asked for the postponements. The delay that I’m talking about is from the request from the – for the three-judge panel and the postponement in March of 2016.

There are places in the State’s response where they refer to the fact that Mr. Phillips was serving a sentence during the time of the delay in his trial, and that’s important because the prejudice that I’m talking about for the purpose of speedy trial analysis is pre-trial incarceration.

* * *

What I am arguing is that the delay was initiated by the State because they filed an en banc review. And the decisions by both the Court of Special Appeals and the Court of Appeals are very clear, and they agree with the argument that we’ve been making from the very beginning, which is that the three—judge en banc review is a state law remedy that’s rarely pursued, but it’s treated as an equivalent to an appeal, and that you can only file an en banc review of something that you are entitled to appeal to the Court of Special Appeals, and because they didn’t have that right, they did not have the right to request an en banc review.

In addition, appellant argued that "the en banc was requested in bad faith" and that "[t]he fact that three judges end up being wrong shouldn’t be held against [appellant] for the purpose of speedy trial." Appellant claimed that, even without the excluded evidence, the State had cell phone tower evidence showing that appellant’s phone was not using the tower closest to his home at the time of the murder:

So, the State had the evidence that it needed. It was upset by the Court’s ruling and was grasping at straws to find any possible way to get it overturned, and in order to do so, it pursued a remedy that was

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