State v. Jones

• Decision Date: 01 June 1973
• Docket Number: No. 385,385
• Citation: 18 Md.App. 11,305 A.2d 177
• Parties: STATE of Maryland v. Marion Thomas JONES.
• Court: Court of Special Appeals of Maryland

Page 11

18 Md.App. 11

305 A.2d 177

STATE of Maryland v. Marion Thomas JONES.

No. 385.

Court of Special Appeals of Maryland.

June 1, 1973.

Emory A. Plitt, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County and E. Garrison Neal, Asst. State's Atty. for Prince George's County, on the brief for appellant.

James Ignatius Keane, College Park, with whom were DePaul, Willoner & Kenkel, College Park, on the brief, for appellee.

Argued before MORTON, MOYLAN and MENCHINE, JJ.

MOYLAN, Judge.

To dismiss, with prejudice, at indictment for armed robbery, because a defendant claims he was denied a speedy trial, is a severe sanction. It is the final denial of organized society's right to bring an accused transgressor before the bar of justice. In the face of vexing delays, lesser remedies may well commend themselves: the State may be put to the extraordinary burden of proceeding to trial on short or well-nigh immediate notice; a defendant's request for pretrial release, on bail or recognizance, may take on additional merit. ¹ To say, however, that the people, because they have not yet successfully retooled an overtaxed and obsolescent system to meet the demands of a computerized age, must forfeit forever the right to proceed against an accused felon, is an extreme and ultimate step to be taken only for the weightiest of reasons. The words of Justice Cardozo are pertinent, 'Justice, though due to the accused, is due to the accuser also . . . We are to keep the balance true.' ²

In State v. Lawless, 13 Md.App. 220, 283 A.2d 160, we analyzed at length the Sixth Amendment right to a speedy trial, distilling the teaching of twenty-five decisions of the Court of Appeals and fifty-eight decisions of this Court ³ upon the subject, as well as eight opinions of the Supreme Court which had, as of that time, treated the right. Since the promulgation of that opinion, the Supreme Court has twice addressed itself to the speedy trial issue: in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

United States v. Marion made explicit what was at best implicit in Lawless as to the moment at which the right to a speedy trial first attaches, at 404 U.S. 320, 92 S.Ct. 463:

'(I)t 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 the speedy-trial provision of the Sixth Amendment.'

Since the Sixth Amendment, by its terms, provides that 'in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial,' we look to the moment when an individual first becomes an 'accused' for the engagement of the Sixth Amendment gears which sets the speedy trial clock to running. In State v. Hamilton, 14 Md.App. 582, 287 A.2d 791, Chief Judge Orth incisively analyzed the holding and impact of Marion.

If Marion resolved a possible ambiguity, Barker v. Wingo changed the Maryland law in one significant regard. It left unchanged our traditional approach to speedy trial analysis to the effect that, in evaluating the claim, four factors come into play:

(1) The length of the delay,

(2) The reason for the delay,

(3) Prejudice to the accused, and

(4) Waiver.

Hall v. State, 3 Md.App. 680, 685-686, 240 A.2d 630; Lawless, 13 Md.App. at 227, 283 A.2d 160. We had, however, treated the waiver factor as 'a self-contained phenomenon'. We had held that the failure to demand a speedy trial could, under appropriate circumstances, in and of itself 'dispose of a contention that an accused had been denied a speedy trial, no matter what the other factors may involve,' unless the accused showed actual prejudice. Lawless, at 227-229, 283 A.2d at 167-168; Fabian v. State, 3 Md.App. 270, 286, 239 A.2d 100. Where waiver did not dispose of the contention, we then looked to the interaction of the three remaining factors, to 'the delay-reason-prejudice complex'.

In the first full analysis of the speedy trial right ever undertaken by the Supreme Court, Barker ameliorated the foreclosing effect of waiver, in one of its aspects at least. It rejected the so-called 'demandwaiver doctrine,' whereby 'a defendant waives any consideration of his right to speedy trial for any period prior to which he has not demanded a trial'. ⁴ In eschewing the absolutism of the 'demand-waiver doctrine', however, the Supreme Court by no means relieved a defendant of his responsibility and obligation to demand trial. That factor, although no longer able to operate in a vacuum, nevertheless remains a strong consideration in the ultimate equation. Barker said, at 407 U.S. 528-529, 92 S.Ct. at 2191:

'We reject, therefore, the rule that a defendant who fails to demand a speedy trial forever waives his right. This does not mean, however, that the defendant has no responsibility to assert his right. We think the better rule is that the defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right. Such a formulation avoids the rigidities of the demand-waiver rule and the resulting possible unfairness in its application. It allows the trial court to exercise a judicial discretion based on the circumstances, including due consideration of any applicable formal procedural rule. It would permit, for example, a court to attach a different weight to a situation in which the defendant knowingly fails to object from a situation in which his attorney acquiesces in long delay without adequately informing his client ⁵ or from a situation in which no counsel is appointed. It would also allow a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection.' ⁶

Unchanged is our law that a defendant's conduct which causes delay will not redound to the detriment of the State whether the result is reached by simply subtracting this time period from the 'delay' factor ab initio or by considering it as 'waiver' by affirmative conduct. See Lawless, 13 Md.App. at 228, n. 8, 283 A.2d 160; State v. Oglesby, 8 Md.App. 415, 418, 260 A.2d 363. Barker is very emphatic on this point, at 407 U.S. 529, 92 S.Ct. 2191:

'We hardly need add that if delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine, the demand rule aside.'

A close reading of Barker makes evident that waiver generally of the right to a speedy trial has not been eroded, but only that variety of waiver formerly inferable from the failure to make a demand.

The net effect is that the mere failure to demand a speedy trial is no longer an ipso facto waiver of the speedy trial right, but is rather but one factor to be considered in interaction with the three others. See State v. Hunter, 16 Md.App. 306, 314-315, 295 A.2d 779. The continuing and heavy impact of non-demand, even in its new role as a constitutent factor, is nonetheless made very clear by Barker, at 407 U.S. 532, 92 S.Ct. 2193:

'We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.'

We have now, therefore, as a tool of analysis, the four-factored calculus of delay-reason-assertion of right-prejudice.

With these tools, we approach the case at bar.

The Delay

The appellee, Marion Thomas Jones, was charged with committing an armed robbery on March 14, 1970, upon Oscar Fremont Smith, a fellow construction worker. No pre-indictment arrest was made. The first formal action in the case was the indictment by the Grand Jury for Prince George's County on May 20, 1970. That was the day on which the appellee became an 'accused'; that was the time at which his right to a speedy trial engaged.

On the same day that the indictment was handed down, a bench warrant was issued for the appellee's arrest. The complicating factor in the case was that the appellee lived in the District of Columbia. Mrs. Enid Smith, a clerk with the Warrant and Fugitive Squad of the Prince George's County Sheriff's Department, testified that she received the bench warrant on May 22, 1970, two days after the indictment was handed down. A routine investigation 'checking the employment, last known address, and so forth' was conducted by the Sheriff's Department. It ascertained the last known address as '2614 University Place, N.W., Washington, D.C.' A cover letter containing that information and a copy of the arrest warrant were forwarded to the Metropolitan Police Department of Washington, D.C., on June 2, 1970.

The information furnished by the Prince George's County Sheriff's Office to the Metropolitan Police Department as to the appellee's residence was correct as of the time it was furnished. The appellee did reside at 2614 University Place, N.W., during the spring of 1970. He subsequently moved away. Whether he moved away, however, before the Metropolitan Police had a fair chance to serve him or at some later time during the ensuing year is highly problematical. At the ultimate hearing on the motion to dismiss the indictment, held on May 15, 1972, the appellee's efforts to establish just when he left 2614 University Place were hopelessly inconsistent. At one point, he testified that he thought that he had remained at that residence for about a year after the date of the alleged offense. That would have brought him down to March, 1971, and would have given the Metropolitan Police a nine-month opportunity to have reached him at a correct address. At another point in his testimony, however, the appellee stated that he had been living at his present address of 2501 17th Street, N.W., for five months, and that he had lived at 2910 13th Street, N.W., for a year prior to that. This would have taken him out of 2614 University Place in ...