Raimondi v. State

• Decision Date: 23 January 1970
• Docket Number: No. 471,471
• Citation: 8 Md.App. 468,261 A.2d 40
• Parties: Thomas Paul RAIMONDI v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 468

8 Md.App. 468

261 A.2d 40

Thomas Paul RAIMONDI v. STATE of Maryland.

No. 471.

Court of Special Appeals of Maryland.

Jan. 23, 1970.

Certiorari Denied Feb. 10, 1970.

Leon H. A. Pierson and Ronald L. Spahn, Baltimore, for appellant.

Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty. for Baltimore City, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

The appellant Raimondi was indicted on December 19, 1968 and charged with attempted bribery of a member of the Senate of Maryland. On February 6, 1969 appellant filed a motion to dismiss the indictment alleging therein this his case had received such widespread publicity due to certain statements made by the State's Attorney of Baltimore City to the news media that he could not obtain a fair trial anywhere in the State of Maryland 'in the foreseeable future.'

An evidentiary hearing was conducted on the motion to dismiss on June 23, 1969 and July 2, 1969. On September 26, 1969, the motion was denied, the court concluding, after setting forth a detailed statement of its factual findings, that the appellant Raimondi could presently receive a fair trial in the State of Maryland. From this determination, the appellant filed his order for appeal to this court on October 6, 1969. The State moved to dismiss the appeal under Maryland Rule 1035 on the ground that we were without jurisdiction to hear the appeal as it was taken from a pretrial interlocutory order-not a final judgment-and henceforth was not immediately appealable.

Under Maryland Code, Article 5, Section 12, 'a defendant in a criminal action (with exceptions not here pertinent) may appeal to the Court of Special Appeals from any conviction where the sentence is other than death * * *.' Under Maryland Rule 1035, the Court of Special Appeals is directed 'not (to) entertain or consider an appeal taken from a pro forma order or judgment,' and is required by the Rule to dismiss such appeals 'as prematurely taken.' 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. See Pearlman v. State, 226 Md. 67, 172 A.2d 395; Eggleston v. State, 209 Md. 504, 121 A.2d 698; State v. Harman, 199 Md. 209, 86 A.2d 397; State v. Haas, 188 Md. 63, 51 A.2d 647; State v. Mather, 7 Md.App. 549, 256 A.2d 532; Harris v. State, 6 Md.App. 7, 249 A.2d 723; Greathouse v. State, 5 Md.App. 675, 249 A.2d 207. 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.'

In Pearlman v. State, supra, 226 Md. at page 71, 172 A.2d at page 397, the Court of Appeals stated the rule in these terms:

'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. 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 court held in Pearlman 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 this case.

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.' ¹

By way of apparent exception to its rulings in Lee and Pearlman, the Court of Appeals has consistently held that an immediate appeal will lie, prior to a trial on the merits of the case, from a refusal to grant a motion asserting a denial of the constitutional right to a speedy trial. See Jones v. State, 241 Md. 599, 217 A.2d 367; Harris v. State, 194 Md. 288, 71 A.2d 36. The court's reasoning appears based, in part at least, on the thought expressed in Harris at page 294, 71 A.2d at page 39 that should the accused prevail on his motion he would thereby 'become entitled to be freed of further proceedings' in the case. On the authority of these cases, we have recognized in countless cases the right of accused persons to file an immediate appeal in such cases-most have been patently frivolous, see Westmoreland v. State, Md.App., 261 A.2d 35, September Term, 1969 (filed Jan. 23, 1970); some have not been frivolous, see Wilson v. State, Md.App., 259 A.2d 553, September Term, 1969 (filed December 10, 1969). ² And consistent with the apparent rationale underlying the right to take an immediate appeal on the ground of alleged violation of the constitutional right to a speedy trial, we held in Brown v. State, 2 Md.App. 388, 234 A.2d 788, 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 placed in jeopardy for the same offense. 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 case; and, at least with the exception of those cases where the trial judge concludes that the right exists and is applicable but nevertheless refuses to apply it, the determination of the question by the lower court would always seem to involve an application of judicial discretion 'as to the functioning of the right' squarely within the rules enunciated in Pearlman and Lee prohibiting immediate appeals from interlocutory orders.

Whether a real distinction exists between the rationale underlying Lee and Pearlman, on the one hand, and Harris, Jones, and Brown, on the other, makes little difference in appellant's case, since under none of these cases would he have a right to an immediate appeal from the denial of his pretrial motion to dismiss the indictment. As heretofore indicated, appellant's motion asserted that, because of the adverse pretrial publicity, he could not receive a fair trial in the State of Maryland 'in the foreseeable future.' He contends now that, as a result of such publicity, he has been denied his stated and federal constitutional right to be tried by a jury in Baltimore City-the jurisdiction where the alleged crime occurred and in which he was born and reared. He alleges that h...