State v. Hunter

• Decision Date: 26 October 1972
• Docket Number: No. 109,109
• Court: Court of Special Appeals of Maryland
• Parties: STATE of Maryland v. Charles Ernest HUNTER.

Page 306

16 Md.App. 306

295 A.2d 779

STATE of Maryland v. Charles Ernest HUNTER.

No. 109.

Court of Special Appeals of Maryland.

Oct. 26, 1972.

Francis B. Burch, Atty. Gen., with whom were Gary Melick, Asst. Atty. Gen., Milton B. Allen, State's Atty., and Michael S. Libowitz, Asst. State's Atty., for Baltimore City, on the brief, for appellant.

No appearance at argument of appellee.

Submitted on Brief to MORTON, ORTH, and GILBERT, JJ.

GILBERT, Judge.

The State of Maryland, appellant, has appealed the entry by a judge in the Criminal Court of Baltimore of a 'general dismissal' of an indictment that charged Charles Ernest Hunter, appellee, with the crimes of robbery with a deadly weapon, assault, and related charges.

The State contends that the judge abused his discretion in 'ordering dismissal of the indictment.'

The record reveals that the appellee was arrested on the night of September 3, 1971, along with Charles Howard and Tanya Robinson, ¹ for the assault and the robbery with a deadly weapon of a taxicab driver. The amount taken was two dollars. Counsel was appointed to represent the appellee on October 12, 1971, but thereafter withdrew because appellee's privately retained attorney entered his appearance.

The latter attorney filed a 'Motion To Dismiss' on December 13, 1971, in which he alleged, inter alia, that the appellee had been incarcerated sans indictment from Septmber 3, 1971, that he had made efforts to obtain a speedy trial, and that he had 'lost contact' with 'many important witnesses.' The motion requested the dismissal of all 'charges against (appellee) or in the alternative to release (appellee) on his own recognizance until such time as the State sees fit to present his case to the Grand Jury of Baltimore City.' ²

The indictment was brought forth on January 12, 1972. The motion to dismiss was heard on February 17, 1972, and the 'general dismissal' was entered on March 1, 1972.

At the hearing on the motion, appellee's counsel recited the history of the case, in which he included his endeavors to have the matter taken before the Grand Jury. He further informed the court that the file had been misplaced in the office of the Clerk of the Criminal Court of Baltimore. Neither of the contentions was denied by the State. The main effort, however, on the part of the appellee was directed toward a showing of actual prejudice to the appellee occasioned by the State's Attorney's delay in taking the case before the Grand Jury.

The delay in the instant case was approximately 4 1/2 months from the date of arrest to the date of indictment, one month from the filing of the motion to dismiss to the date of the indictment, and 24 days from the date of the indictment to the date of the hearing on the motion.

The State here argues that the 'lower court's dismissal of the instant indictment was couched in the terms 'general dismissal' and that neither legal nor factual findings were made in support of the court's conclusion.' We note from the record that the trial judge did state:

'I could prepare (specific findings) if it's necessary. I have gone over the cases and I have gone over the memorandum of the State and of the defendant and I discussed or told you, I think, earlier what I propose to do. But if it's needed-I would not be able to give it forthwith, but I will do it if you would request it.'

The Assistant State's Attorney responded that the State 'would not request it at this time.' They apparently did not request it at any other time either, as the record is devoid of such specific findings.

The right to a speedy trial is a guarantee afforded to every accused by the Sixth Amendment to the Constitution of the United States and by Art. 21 of the Maryland Declaration of Rights. The Supreme Court, in United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966), speaking through Mr. Justice White, said that the purpose of the Sixth Amendment is:

'(T)o prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.'

Mr. Justice Powell recently said in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972):

'The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused.

'* * * (U)nlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused's ability to defend himself.'

The right to a speedy trial is relative, and the time within which the trial must be had depends on the facts and circumstances of each particular case. Barker v. Wingo, supra; State v. Lawless, 13 Md.App. 220, 227, 283 A.2d 160 (1971); Stevenson v. State, 4 Md.App. 1, 10-11, 241 A.2d 174 (1967). The facts and circumstances in each particular case should be viewed in the light of four factors: (1) The length of the delay, (2) The reason for the delay, (3) Prejudice to the accused, and (4) Waiver by the accused. State v. Lawless, supra; Caesar v. State, 10 Md.App. 40, 42, 267 A.2d 750 (1970); Barnett v. State, 8 Md.App. 35, 39, 257 A.2d 466 (1969); Graham v. State, 6 Md.App. 458, 461, 251 A.2d 616 (1969); Frazier v. State, 5 Md.App. 88, 92, 245 A.2d 614 (1968); Hall v. State, 3 Md.App. 680, 685-686, 240 A.2d 630 (1968).

In a sesquipedalian opinion, State v. Lawless, supra, Judge Moylan characterized the first, second and third facts set forth above as 'The Delay-Reason-Prejudice Complex.' It is that 'complex' that we consider in the instant case because waiver, the fourth factor, is not applicable here.

The Supreme Court said in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971):

'Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy and create anxiety in him, his family and his friends. These considerations were substantial underpinnings for the decision in Klopfer v. North Carolina, supra; 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); see also Smith v. Hooey, 393 U.S. 374, 377-378, 89 S.Ct. 575, 576-577, 21 L.Ed.2d 607 (1969). So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engages the particular protections of speedy-trial provisions of the Sixth Amendment.

Invocation of the speedy-trial provision thus need not await indictment, information or other formal charge. * * *.' (Emphasis supplied).

Thus it is patent that in order to calculate a constitutionally proscribed delay in bringing a matter to trial, we must look back to the date of the commencement of a prosecution by way of arrest, warrant, information or indictment, whichever shall first occur, and then forward to the date of the trial or hearing. We have previously held that the measure for determining a speedy trial began by way of 'warrant, information or indictment,' State v. Lawless, supra. We now, in the light of United States v. Marion, supra, modify our earlier holdings. See also State v. Hamilton, 14 Md.App. 582, 287 A.2d 791 (1972). In the instant case, we do not perceive the delay to be of constitutional dimension.

Chapter 212, Acts of 1971, now codified as Art. 27, § 591, says in pertinent part:

'(a) Within two weeks after the arraignment of a person accused * * *, or within two weeks after the filing of an appearance of counsel * * * for an accused in any criminal matter whichever shall occur first, a judge or other designated official (of the court) in which the matter is pending, shall set a date for the trial of the case, which date shall be not later than six months from the date of the arraignment * * *, or the appearance * * * of counsel for the accused whichever occurs first. The date established * * * shall not be postponed except for extraordinary cause shown * * * and only with the permission of the administrative judge * * *.'

The Court of Appeals of Maryland was authorized to establish rules to implement the statute. Rule 740 of the Maryland Rules was adopted June 1, 1972, and provides:

'The date of trial and postponements shall be governed by Code, Article 27, section 591.'

There is nothing in the record in this case to indicate that appellee's counsel relied upon the provisions of Art. 27, § 591, nor do we have the advantage of knowing whether, vel non, counsel included the same in a memorandum submitted to the trial judge. ³ Even if we assume that counsel urged the above quoted statutory provision upon the trial court, or that the judge relied upon it, we, nevertheless, interpret the Act as being directory, and not mandatory. It provides a declaration of legislative policy, but it dehors sanctions. ⁴

We said in Young v. State, 15 Md.App. 707, 710, 292 A.2d 137, (1972): ⁵'The Legislature did not explicitly provide the extreme sanction of dismissal of an indictment for administrative noncompliance. We cannot conclude that so extreme a sanction was implicit in the legislative act.'

The statute was not implemented by the Court of Appeals until June 1, 1972, which is approximately 3 1/2 months after the hearing on the motion to dismiss had occurred. Moreover, Rule 740, similarly to the statute, provides no sanctions for failure to comply with it.

In discussing 'reason for delay,' Justice Powell stated in Barker, supra, 407 U.S. at 531, 92 S.Ct. at 2192:

'* * * (D)ifferent weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence or overcrowded courts should be...