Powell v. State

• Decision Date: 17 December 1974
• Docket Number: No. 241,241
• Citation: 23 Md.App. 666,329 A.2d 413
• Parties: Roy Willard POWELL v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 666

23 Md.App. 666

329 A.2d 413

Roy Willard POWELL v. STATE of Maryland.

No. 241.

Court of Special Appeals of Maryland.

Dec. 17, 1974.

Edward J. Petrick, Assigned Public Defender, Baltimore, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Martin M. Mrozinski, Asst. Atty. Gen., and Francis B. Burch, Atty. Gen., and Milton B. Allen, State's Atty., for Baltimore City, and Stephen H. Sacks, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Argued before ORTH, C. J., and MOYLAN and MENCHINE, JJ.

ORTH, Chief Judge.

CASE SUMMARY

The first count of an indictment filed in the Criminal Court of Baltimore on 19 March 1973 against ROY WILLARD POWELL presented that on 3 March 1973 he '. . . feloniously, wilfully and of deliberately premeditated malice aforethought did murder one Hattie C. Thurman. . . .' ¹ Code, Art. 27, § 616. The indictment came on for trial before a jury on 18 October 1973. At the close of all the evidence the court granted a motion for judgment of acquittal as to murder in the first degree. Code, Art. 27, § 593; Maryland Rule 755b. The case, therefore, as to the major offense, went to the jury for them to decide whether Powell was guilty of the homicide, and if he was, whether the killing was murder in the second degree or manslaughter. Wood v. State, 191 Md. 658, 666-668, 62 A.2d 576; Gray v. State, 6 Md.App. 677, 684, 253 A.2d 395; McFadden v. State, 1 Md.App. 511, 516, 231 A.2d 910. See Epperson v. State, 7 Md.App. 464, 473, 256 A.2d 372. A verdict of murder in the second degree was announced on 19 October 1973 by the Forelady and confirmed by unanimous concurrence upon poll. Rule 758, §§ a and d. The verdict was harkened. The imposition of sentence was deferred pending the determination of a motion for a new trial. The motion was heard and denied. On 11 December, after receipt of a presentence investigative report, Powell was sentenced to 30 years accounting from the date of the offense. He appealed.

FACTS

Powell does not protest the legality of the evidence which the jury found sufficient to prove the corpus delicti of murder in the second degree and his criminal agency. He questions, not the fact of his guilt, but the circumstances surrounding its determination. Therefore, there is no need to dwell on the sordid details of the murder. ² We give such factual posture of his prosecution as is necessary to resolve the two contentions he advances. ²

ISSUE ONE

'The appellant was denied due process of alw by the actions of the State and trial court forcing appellant to abandon either his motion for a speedy trial or his objection to the failure of the State to timely comply with his motion for discovery and inspection.'

The first contention revolves around three motions filed by Powell, a motion for discovery and inspection, a motion to dismiss the indictment for failure to comply with the discovery request, and a motion for a speedy trial. The motion for discovery, requesting information usually sought by such means, was filed on 17 April 1973. on 19 April a supplemental motion for a copy of the autopsy and medical examiner's report was filed. The motion to dismiss the indictment and the motion for a speedy trial were filed on 5 October 1973. The motion to dismiss was predicated upon the failure of the State to comply with the discovery requests. It pointed out that trial had been set for 18 October and alleged that it was imperative that Powell 'be in possession of the information asked for in the Discovery and Inspection Motion to properly prepare this case for trial.'

He explicitly objected 'to a postponement by the State in order to gain more time to answer the Motion for Discovery' because he had also filed a motion for a speedy trial. The motion for a speedy trial simply read that Powell 'hereby requests a speedy trial in the above captioned case.'

On 17 October the State answered the motion for discovery, substantially giving, or agreeing to make available, the information requested, except for a copy of the autopsy report, which was not specifically mentioned. The autopsy report was shown to defense counsel the next day, several minutes before the case came on for trial. When the indictment was called for trial, the motions were heard on argument of counsel as preliminary matters.

Powell's argument on appeal is the same as his argument below. Defense counsel told the trial court:

'On . . . April 16, 1973 the defendant filed with the State a motion for discovery and inspection pursuant to rule 728. On April 18th the defendant filed a supplemental motion for discovery and inspection, in that case asking for the autopsy report. As of the date of the motion, the motion was filed at least and mailed to the Clerk on the 4th of October, the defendant had not received the answers. In addition to that, as a courtesy prior to the filing of a motion, Your Honor, I sent a letter on August 15, 1973 to the State Attorney's office making reference to this file and indictment number as follows: 'Gentlemen, on April 16, 1973 I filed a discovery motion in this case which to this date has not been answered. Would you please do so immediately since this defendant has been languishing in jail sometime and I'd like to prepare the case and get him to trial. That was done at the instruction of the defendant in this case, whatever visit I made to him at the jail, has asked me the moment I walked in the door 'Is the State answering the motion for discovery?', upon which I answered in the negative. Pursuant to his request I filed a motion for a speedy trial on the motion to dismiss. The reason we did this is as follows. The remedies that have been held at the Court of Special Appeals and Court of Appeals with respect to the discovery motions, is that the remedy that lies therein is not dismissal, per se; but is a postponement or some time for the defense to orient itself and get defense in the particular case. * * * To complete this I might point out that last afternoon I concluded another jury trial, a six-day jury trial in Part I. I was handed by the Assistant State's Attorney, Mr. Sacks, who is here today, for the first time the answer to discovery in this case. Less than twenty-four hours before this case was to begin. And that did not include the autopsy report. Now the autopsy report was just briefly shown to me for the first time five minutes ago before this case was to begin. Now there is a speedy trial motion in this case. The Chief Judge already refused the State's right to dismiss, to postpone this case, and for that reason we are asking to have this case dismissed and the reason is very simple. The State is putting us in a position to wait until the last minute to provide the defense with the information entitled under 728, less than twenty-four hours ahead of time, leaving the only remedy available under this as a postponement. Now I am not asking for a postponement.'

The court said:

'I am not disagreeing with you that it was improper for them not to give you the information you sought prior to the day before trial. You are luckier than some people. Some people don't get it until an hour before trial. You received it a day before. Where in fact have you been prejudiced by this information?'

Defense counsel replied:

'Well Your Honor, I haven't had an opportunity to discover who the State's witnesses are going to be in this case at all. I found out for the first time late yesterday afternoon who the State intends to prove its case in chief with. I don't see the autopsy report which shows the manner of death until five minutes before trial. In effect what the State is doing, is forcing the defense into the position of a postponement which is precisely why the speedy trial motion was filed. In other words the State waits until the last minute in a case before it comes to trial when this case was set in many, many weeks ago.'

The court asked if a postponement was requested. Defense counsel made clear that he did not want a postponement:

'I request a dismissal, because the State is forcing a postponement on the defense when there is a speedy trial motion here. I have no remedy. I don't wnat to postpone the case, I want to go ahead with the case. But the State waits until the last minute to provide me with the information. I have a Hobson's choice, ³ I'm in the middle. That's why the speedy trial motion and the motion to dismiss was filed. So the State effectively precluding the defendant from a speedy trial by filing their answers to the motions, and I point out to Your Honor this moiton had been filed for months. As a courtesy before even thinking this additional motion to dismiss, I sent them a letter back in August, August the 15th and asked please, you know, to do it. They didn't do it. They wait until the day before trial and give me some of the answers, show me the autopsy record for the first time five minutes before I come to trial. And they put the defense in an impossible position. There's only one remedy to this, that is to dismiss this indictment against the defendant and dismiss the case. Now there's no other way we can proceed because effectively he is precluding the defendant to his right to a speedy trial. This defendant stood ready to come to trial today and stands ready to come to trial.'

The court indicated that it was willing to refer the matter to the Chief Judge of the Supreme Bench for postponement. See Code, Art. 27, § 591(a). Defense counsel said: 'I'm not asking for a postponement, I'm asking for a dismissal.'

The judge ruled: 'I'm denying the motion to dismiss because of the failure to file the answers to discovery before they were filed yesterday, which is twenty-four hours before the case. I'm reserving my decision on the moiton for a speedy trial at this time.' See Harris v. State, 6 Md.App. 7, 16-19, 249 A.2d 723, cert denied 255 Md. 741. The motion for a speedy trial was denied at the close of all the...