State v. Barnes

• Decision Date: 26 November 1974
• Docket Number: No. 33,33
• Citation: 273 Md. 195,328 A.2d 737
• Parties: STATE of Maryland v. Roland Douglas BARNES.
• Court: Maryland Court of Appeals

Page 195

273 Md. 195

328 A.2d 737

STATE of Maryland v. Roland Douglas BARNES.

No. 33.

Court of Appeals of Maryland.

Nov. 26, 1974.

Alexander L. Cummings, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty. for Baltimore City and Peter Ward, Asst. State's Atty. for Baltimore City, Baltimore, on the brief), for appellant.

Geraldine Kenney Sweeney, Asst. Public Defender (Dennis M. Henderson, Asst. Public Defender, Baltimore, on the brief), for appellee.

Argued before SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

O'DONNELL, Judge.

The respondent, Roland Douglas Barnes, came into the custody of the House of Correction on May 18, 1972, pursuant to a sentence to serve a one-year term for assault, dating from April 26, 1972, imposed by the District Court. ¹ In any event, on the day before his arrival-May 17, 1972-he was both presented and indicted by the Grand Jury for the City of Baltimore for the murder of one Leotho Holloway on February 1, 1972. ² As a result of the Grand Jury action and the capias issued thereon, the Sheriff of Baltimore City on May 26, 1972 filed a detainer with the Warden of the House of Correction. The respondent was officially notified of the detainer four days later.

On June 9, 1972, a letter dated June 5, with enclosures attached ³ was sent by certified mail-return receipt requested-on behalf of the respondent by the Warden to Milton B. Allen, the State's Attorney for Baltimore City requesting that the indictment upon which the detainer was based 'be disposed of as soon as possible.' Endorsed on the bottom of the letter was a notation that a copy thereof, as well as of the enclosures, were being sent to the Clerk of the Criminal Court of Baltimore, with copies for the inmate and his institutional file. One of the enclosures contained a request by the respondent that counsel be assigned him. A classification counselor at the House of Correction testified that personnel in that office processed the paper work on behalf of the inmates; that although the original letter and enclosures were sent to the State's Attorney by certified mail, copies addressed to the Clerk of the Criminal Court, at that time, were sent by first-class mail. ⁴ He further testified that there was nothing in the file to establish the date on which the copies addressed to the Clerk were actually mailed.

The letter addressed to the State's Attorney (with enclosures) was date-stamped as having been received in that office on June 12 and the return receipt is so postmarked. In accordance with established inter-office procedures the State's Attorney forwarded the documents to the Criminal Assignment Office of the Supreme Bench of Baltimore City, the agency designated for the assignment of criminal cases for trial; according to the date stamp affixed on the documents in the assignment office it took just seven days for the documents to journey from one floor of the Court House to the next. The Criminal Assignment Office noted on the documents that it was a request for 'Speedy Trial,' placed a notation to that effect on their control card and returned the documents to the Case Preparation Section of the State's Attorney's office to await a certification of readiness for trial. The Acting Criminal Assignment Commissioner testified that although it was the responsibility of that office to notify the Public Defender of those defendants, incarcerated within the Department of Correctional Services, awaiting trial on other charges who requested the assignment of counsel, such notification in the respondent's case was not given until the 'early part of November.'

Other than the notation upon the letter to the State's Attorney that a carbon copy was being sent to the Clerk of the Criminal Court, there was no record of the date on which the copies were mailed; the Clerk testified that after making a persistent and diligent search the copies were found, with no recorded date of receipt, misfiled alphabetically under 'S.' ⁵

For 139 days the respondent's request for trial was negatively-if not affirmatively-ignored, since it was only on November 6, 1972, that the Public Defender appointed a panel attorney to represent the respondent. Following a pretrial conference on December 19, 1972, between his counsel and an Assistant State's Attorney, February 21, 1973, was fixed as the first available open date for the jury trial requested by the respondent.

On December 21, 1972, the respondent, pro se, filed a 'Motion for Writ of Default' which prayed that the murder indictment be dismissed for failure of the State's Attorney to comply with the provisions of Maryland Code (1957, 1971 Repl.Vol.) Art. 27, § 616S, in that he had not been brought to trial within the time provided from the receipt by the State's Attorney of his request for trial.

When on the appointed day, the murder indictment came on for trial in the Criminal Court of Baltimore, the trial court (Levin, J.), although recognizing our holdings in Hoss v. State, 266 Md. 136, 292 A.2d 48 (1972), rev'g, Hoss v. State, 13 Md.App. 404, 283 A.2d 629 (1971), under the provisions of the Interstate Agreement on Detainers Act (Art. 27, §§ 616A-616R), was nonetheless persuaded that the holdings by the Court of Special Appeals in King v. State, 5 Md.App. 652, 249 A.2d 468 (1969), under the Intrastate Detainers Act (Art. 27, § 616S) mandated a strict and literal compliance with the provisions of the section. Finding that the Clerk of the Criminal Court did not receive its copy of the respondent's request by certified mail and absent proof of the exact date on which the copies were mailed, or actually received by the Clerk, the trial court held that the Act was not strictly complied with and denied the motion to dismiss the indictment. Following a jury trial, the respondent, on February 23, 1973, was found guilty of murder in the first degree. Upon appeal to the Court of Special Appeals that court, upon the authority of our holdings in Hoss v. State, supra, reversed the judgment imposed and ordered the case remanded for dismissal of the indictment. Barnes v. State, 20 Md.App. 262, 315 A.2d 117 (1974). We issued a writ of certiorari upon the petition of the Attorney General on behalf of the State.

The pertinent provisions of the Intrastate Detainer Act here in issue (Art. 27, § 616S) read as follows:

'(a) Request by prisoner; statement from warden having custody.-Whenever the Department of Correction receives a detainer against any prisoner serving a sentence in any correctional institution under the jurisdiction of the Department or whenever any county or city jail receives a detainer against any prisoner serving a sentence in the county or city jail any such prisoner shall be brought to trial within 120 days after the request of the prisoner for final disposition of the indictment, information, or complaint has been delivered to the State's Attorney of the City of Baltimore or of the county in which the indictment, information, or complaint is pending and to the appropriate court; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be filed within 30 days of the prisoner's notification of any untried indictment, information, or complaint and shall be accompanied by a statement from the warden or superintendent having custody, setting forth the term of the commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the date of parole eligibility of the prisoner, and any decisions of the Board of Parole and Probation relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.

(c) Dismissal when action not commenced.-If action is not commenced on the matter for which request for disposition was made, within the time limitation set forth in subsection (a) above, the court shall no longer have jurisdiction thereof, and the untried indictment shall have no further force or effect; and in such case the court shall enter an order dismissing the untried indictment with prejudice.' (Emphasis supplied.)

The Court of Special Appeals, in ordering the dismissal of the murder indictment upon which the respondent was tried, held 'that a delivery of the necessary papers to the assignment office is a delivery to the appropriate court,' and that '(i)mmaterial nonconformity, however, will not vitiate the prisoner's entitlement under the statute.' In applying our holding in Hoss v. State, supra, Judge Thompson, for the court, stated:

'We find the Intrastate Act and the Interstate Agreement to be identical as to purpose and rationale. Hence, we apply to the Intrastate Act the liberal construction requirement of Section 616J, in order to encourage expeditious and orderly disposition of outstanding charges against a prisoner then incarcerated under a term of imprisonmnet. § 616B. When the State's Attorney and the appropriate court receive actual notice, the statute has been substantially complied with even though the court did not receive its copy via Certified Mail, (Footnote omitted) as § 616S(a) expressly requires. Failure to bring the appellant to trial within 120 days from the date of delivery to the State's Attorney (June 12, 1972) and the appropriate court (June 19, 1972), requires that the subject indictment be dismissed with prejudice. § 616S(c).

As we indicated earlier, our decision is dictated by Hoss v. State, supra, wherein it was held the provisions of the Interstate Statute were properly invoked and, being self-executing required that the indictment be dismissed. Hoss, supra, 266 Md. at 146, 292 A.2d 48, quoted from State v. Lippolis, with approval:

'The Legislature adopted the dismissal sanction not because a prisoner would be...