Powell v. State

• Decision Date: 01 September 1983
• Docket Number: No. 137,137
• Citation: 56 Md.App. 351,467 A.2d 1052
• Parties: Melvin Dwayne POWELL v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 351

56 Md.App. 351

467 A.2d 1052

Melvin Dwayne POWELL v. STATE of Maryland.

No. 137, Sept. Term, 1983.

Court of Special Appeals of Maryland.

Nov. 9, 1983.

Michael R. Braudes, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

No brief or appearance for appellee.

Submitted before GILBERT, C.J., and ALPERT and BLOOM, JJ.

ALPERT, Judge.

Vernon Brooks was murdered on December 12, 1979. Two years and nearly nine months later, Melvin Dwayne Powell (appellant) was convicted of that murder in the second degree and was later sentenced, pursuant to Md.Code Ann. Art. 27, § 643B (1957, 1982 Repl.Vol.) to a period of incarceration of 30 years without parole.

After noting a timely appeal, appellant complains that:

I. He was denied his constitutional right to a speedy trial.

II. He is entitled to dismissal of the charges as a result of the State's lack of compliance with the Interstate Agreement on Detainers.

III. The trial court erred in instructing the jury that the testimony of a single eyewitness is sufficient to sustain a conviction.

IV. The evidence was not sufficient to sustain a mandatory sentence without parole under Article 27, § 643B.

Since we hold that appellant's complaints as to the first three issues are without merit, we shall affirm the conviction of murder in the second degree. Because the evidence was not sufficient to sustain a mandatory sentence without parole under Article 27, § 643B, we shall vacate the sentence and remand this case to the Circuit Court for Baltimore City for imposition of a proper sentence.

I. Speedy Trial

A. The Chronology

12/12/79 Vernon Brooks was stabbed in the chest at about 8:30 P.M. and died later that day.

12/13/79 An arrest warrant was issued charging appellant with the Brooks murder.

3/18/81 Appellant was arrested by federal authorities in New York for a parole violation and was incarcerated in that State. Federal parole was subsequently revoked and he was sentenced to eight months.

4/7/81 Baltimore City Police wrote to the United States Marshall Service in New York requesting that Appellant be detained as a result of murder charges in Maryland. That communication purportedly ¹ included a copy of the district court warrant charging Appellant with the murder of Brooks, and asked that this warrant be treated as a detainer.

4/9/81 Appellant, incarcerated in New York, received a letter from his "case manager" informing him that Maryland authorities wanted him detained in New York. Appellant asked his case manager for forms to enable him to file for a speedy trial under the detainer statute. She responded that the Maryland authorities had failed to comply with the procedural requirements for a formal detainer, so he could not request a speedy disposition. While incarcerated, Appellant's transfer to a lower-security area was revoked because of the alleged Maryland detainer.

4/22/81 Appellant was indicted for the murder of Vernon Brooks.

6/81 (specific date unspecified) Appellant transferred to Petersburg, Virginia, to serve the balance of his federal sentence. While there, he was informed that his scheduled transfer to a "halfway house" would not go through because of the Maryland charges.

9/13/81 Maryland authorities filed a "formal detainer" according to uncontradicted evidence introduced at the hearing on the motion to dismiss for lack of speedy trial.

9/29/81 The "formal detainer" was received by the appropriate federal authorities.

10/2/81 Appellant requested a speedy trial under the Interstate Agreement on Detainers.

11/24/81 Appellant was transferred to Maryland.

12/15/81 Appellant was arraigned. Case set for trial on March 29, 1982.

3/29/82 Case postponed at Appellant's request, because new counsel had entered the case and needed time for preparation. Case rescheduled for August 17, 1982.

8/17/82 Case postponed because prosecutor was on vacation.

9/8/82 Trial began.

B. The Law

Sometime before trial appellant apparently ² moved to dismiss the charges because he was denied his constitutional right to a speedy trial and further because the State violated the Interstate Agreement on Detainers.

There is no constitutional right to be tried within a specified period of time. Denial of the right must be determined on a case-by-case basis balancing both the conduct of the defendant and the State. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Epps v. State, 276 Md. 96, 345 A.2d 62 (1975). A four factor test has evolved for determining whether a particular defendant has been denied a speedy trial. Those four factors are:

1. Length of delay.

2. Reason for delay.

3. The defendant's assertion of the right.

4. Prejudice to the defendant.

The balancing of the four factors is required only when the length of the delay is of constitutional dimension. State v. Lawless, 3 Md.App. 220, 283 A.2d 160 (1971), cert. denied, 409 U.S. 855, 93 S.Ct. 192, 34 L.Ed.2d 99 (1972). The delay herein being 33 months and 27 days, as explained infra, is of constitutional dimension.

1. Length of Delay

The appellant became an accused entitled to a speedy trial upon commencement of his prosecution by way of arrest, warrant, information or indictment, whichever first occurred. State v. Hunter, 16 Md.App. 306, 311, 295 A.2d 779 (1972). See also Gee v. State, 54 Md.App. 549, 459 A.2d 608 and Strickler v. State, 55 Md.App. 688, 466 A.2d 51 (1983).

The arrest warrant having been issued on December 13, 1979, we compute from that date to commencement of trial, September 9, 1982--a delay of 33 months and 27 days. Even if we compute from April 7, 1981, the date Baltimore City Police first knew of appellant's whereabouts, there is a delay of seventeen months, which is not only of constitutional dimension, but which is also presumptively prejudicial to the accused. Epps v. State, 276 Md. 96, 345 A.2d 62 (1975). See also Strickler, supra. When the length of the delay is presumptively prejudicial, the burden of going forward on the question of prejudice shifts to the State. Wilson v. State, 34 Md.App. 294, 367 A.2d 970, cert. denied, 280 Md. 736 (1977).

2. Reason for the Delay

The appellant and the State share, although not equally, the "blame" for delay.

(i) Delay by the State

Because the record does not disclose when the Baltimore City Police first became aware of the fact that the appellant was in federal custody, we can only infer such knowledge as of April 7, 1981, the date they attempted to lodge a detainer by mailing the warrant to the U.S. Marshall Service in New York, along with the request that it be used as a detainer. For reasons never explained or argued below, the federal authorities, according to appellant's uncontradicted recitation of what his "case manager" told him, had concluded that Maryland authorities had failed to comply with the procedural requirements for a "formal detainer."

Although the Interstate Agreement on Detainers, Md.Code, Art. 27 § 616A, et seq., does not define the word "detainer," in State v. Boone, 40 Md.App. 41, 44, 388 A.2d 150 (1978), we opined that "it is generally recognized that the term refers to a notice directed to prison authorities informing them that charges are pending in another jurisdiction against an inmate." Although the Baltimore City Police Department's "detainer" would seem to pass muster under the Boone definition, according to the appellant it was not sufficient under the Agreement to trigger his right to request final disposition of all untried charges, see Art. 27, § 616D, but was sufficient to preclude certain privileges available to those who were not so "detained."

In any event, a determination of the validity, vel non, of the April 7, 1981 "detainer" is not dispositive of the State's obligation to provide the appellant a speedy trial. The mere fact that defendant is incarcerated in another jurisdiction does not relieve the State of its obligation to afford the accused a speedy trial. State v. Hicks, 285 Md. 310, 320, 403 A.2d 356 (1979). See also Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). Notwithstanding the seriousness of the charges, a "formal detainer" triggering appellant's rights under the agreement was not lodged until September 29, 1981. Assuming arguendo that the federal authorities or the case manager erred in the initial determination as to alleged insufficiency of the "first" detainer, absent from the record is evidence of any effort by the State to try the subject's outstanding murder indictment. This apparent indifference on the part of the State may have delayed appellant's right to prompt disposition (within 180 days of proper notice by the defendant to the appropriate authorities) under the Interstate Agreement on Detainers. See Article 27, § 616D.

Although our decision today is not predicated on a violation of that Agreement, we cannot ignore the underlying purpose of the Agreement in analyzing the "reasons for delay." As the Court of Appeals stated in State v. Barnes, 273 Md. 195, 205-06, 328 A.2d 737 (1974):

It has long been recognized that detainers for untried charges--whether interstate or intrastate in nature--may result in 'undue and oppressive incarceration.' Undue delay in the disposition of such detainers has been recognized as minimizing the possibility that a defendant incarcerated might receive a sentence at least partially concurrent with the term he is serving and that under the procedures widely practiced, the duration of his imprisonment may be increased and the conditions under which his confinement must be served greatly worsened because of the pendency of an additional charge against him and the potentiality of additional punishment. Similarly, it has been recognized that a long delay in the trial of the detainer charge may impair the ability of the accused to defend himself since he is often in a prison far removed from the place where the added offense allegedly took place,...