State v. Lawless

• Decision Date: 21 October 1971
• Docket Number: No. 18,18
• Citation: 283 A.2d 160,13 Md.App. 220
• Parties: STATE of Maryland v. Richard William LAWLESS.
• Court: Court of Special Appeals of Maryland

Page 220

13 Md.App. 220

283 A.2d 160

STATE of Maryland v. Richard William LAWLESS.

No. 18.

Court of Special Appeals of Maryland.

Oct. 21, 1971.

Certiorari Denied Jan. 10, 1972.

Josef Rosenblatt, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty., Devereaux F. Thomas and Eugene Muskus, Asst. State's Attys. for Prince George's County, on brief, for appellant.

Graydon S. McKee, III, Upper Marlboro, for appellee.

Argued before THOMPSON, MOYLAN and GILBERT, JJ.

MOYLAN, Judge.

The propensity of the appellee, Richard William Lawless, to transgress the criminal law with essential contemporaneity on both sides of the Prince George's County-Montgomery County line has once again thrown sand into the overtaxed machinery of court, prosecutor's office, clerk's office, sheriff's office and Department of Correction. For the second time within the decade vis-a-vis this appellee, that machinery has malfunctioned.

In Lawless v. State, 3 Md.App. 652, 241 A.2d 155, we dealt with his contention that he had there been denied his constitutional right to a speedy trial before his conviction in Montgomery County. There had been an eleven-month delay between indictment on April 6, 1966, and his receipt of that indictment or even informal notice thereof on March 1, 1967. The apparent reason for the delay was that he had been, during the interim, 'incarcerated either in Prince George's County or in the House of Correction.' We there dismissed his speedy trial contention because he had not shown that he had 'suffered actual prejudice caused by the undue delaying tactics of the State.' Lawless v. State, supra, 660-661, 241 A.2d 161. In the situation at bar, the appellee finds himself in similar straits, but for the fact that the trial priorities between the two counties have now been reversed and the eleven-month period between indictment and notice of indictment has now lengthened to eighteen months.

On October 19, 1968, the appellee was arrested in Montgomery County for a series of burglaries, housebreaking During this, his latest odyssey through the perils of law enforcement, the appellee journeyed from the Montgomery County Detention Center to the Clifton T. Perkins State Hospital to the Patuxent Institution. The process of Prince George's County was at best, apparently never closer than one full step behind him. On April 7, 1969, five days after the appellee's Prince George's County indictment, a Writ of Habeas Corpus Ad Testificandum was sent to the sheriff of Montgomery County for service upon the appellee in order to bring him before the Prince George's County Circuit Court for arraignment. For whatever reason, the appellee was not produced. On September 29, 1970, a Writ of Habeas Corpus Ad Testificandum was sent to the Commissioner of the Department of Correction for service upon the appellee. The record is silent as to its return. On October 1, 1970, a Writ of Habeas Corpus Ad Prosequendum was sent to the Patuxent Institution for service upon the appellee. On October 8, 1970, the appellee was produced and arraigned in Prince George's County.

and larcenies. The Montgomery County authorities notified police officers in Prince George's County. On February 5, 1969, two detectives from Prince George's County interviewed the appellee at the Montgomery County Detention Center. As a result of information there gathered, the appellee was indicted by the Grand Jury for Prince George's County on April 2, 1969, on charges of housebreaking.

Following the arraignment on October 8, defense counsel was appointed for the appellee on October 22. On October 29, a Motion for Discovery and Inspection was filed on the appellee's behalf. On November 5, it was noted in the records of the court that the State's Attorney's Office had granted full informal discovery to counsel for the appellee. On December 31 a Motion to Suppress Evidence was filed. Also, on December 31, the appellee filed a Motion to Dismiss the Indictment against him because of the failure of the State to grant him a speedy trial. After a hearing before Judge William H. McCullough Between the arraignment on October 8, 1970, and the granting of the Motion to Dismiss on January 21, 1971, there is no question but that the appellee's case was processed with commendable expedition. The only time period that concerned the court below and that concerns us now is the eighteen-month period between indictment on April 2, 1969, and arraignment on October 8, 1970.

on January 21, 1971, the Motion to Dismiss was granted. The State appeals.

THE 'DUE PROCESS' CLAIM

At the hearing below and before us, the appellee advanced two allegedly distinct constitutional claims. He contended firstly that, completely aside from any 'speedy trial' claim under the Sixth Amendment, he was denied 'due process of law' generally under the Fourteenth Amendment, in that the lack of timely notice of the charges against him frustrated his efforts to prepare a proper defense to those charges. It is difficult to grasp the fine distinction he attempts to draw between this and his more specific Sixth Amendment claim. To the extent to which the failure to give timely notice of charges creates some conceivable 'due process' right beyond that involved in the question of a 'speedy trial', we feel as we did in Stevenson v. State, 4 Md.App. 1, 17-18, 241 A.2d 174, 185:

'The appellants were apprised of the crimes charged by the indictments ultimately delivered to them and, in view of our holding that their defense was not prejudiced by the delay in trial and as they have not yet been tried (since 30 August 1967 by their specific request), they have received the indictments in due time to plead and to prepare for their defense. Although it may be that the appellants were not furnished copies of the indictments 'as soon as practicable' after they were prepared, Rule 719 a provides no sanction for violation of this requirement and prosecution is not precluded If there be any general 'due process' claim the appellee is asserting which is not subsumed within the 'prejudice' aspect of the 'speedy trial' consideration, it would appear to be directed at the ultimate integrity of the trial itself. That being the case, the claim is premature. It should await appellate review of an actual conviction, so that we could then consider whether the appellee had, indeed, been denied 'liberty, or property, without due process of law.' ² Suffice it to say that the hearing judge appeared clearly to base his decision exclusively on the specific Sixth Amendment right.

thereby in the absence of a constitutional violation. See Schuette v. State, 228 Md. 340, 179 A.2d 864; Ballam v. Warden, 196 Md. 644, 75 A.2d 95. We cannot justify the failure of the State to furnish the appellants copies of the indictments promptly, but, under the circumstances of this case, we find no denial of their constitutional rights.' ¹

THE 'SPEEDY TRIAL' CLAIM

We turn, therefore, to a consideration of the appellee's second contention-that he was denied a 'speedy trial' under the specifics of the Sixth Amendment ³ as applied to the states via the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1.

Aside from making it clear that the Sixth Amendment right to a 'speedy trial' is binding upon the states, the Supreme Court has given little guidance as to the specific content of the right and little direction as to precisely how the guarantee is to be implemented. As was noted by Mr. Justice Brennan, in his concurring opinion in Dickey v. Florida, 398 U.S. 30, at 40, 90 S.Ct. 1564, at 1570, 26 L.Ed.2d 26:

'It is timely to note that the Court has as yet given scant attention to these and other questions essential to the definition of the speedy-trial guarantee. Before Klopfer, only three of our opinions dealt at any length with the right, and each was decided with little analysis of its scope and content. See Beavers v. Haubert, 198 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950, * * * (1905); Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393, * * * (1957); United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627, * * * (1966). Klopfer itself attempted no extensive analysis; nor did our later decision, Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607, * * * (1969). And today we do not consider the effect of the application of the Speedy Trial Clause to the States. Thus, although we said in Klopfer that the right to a speedy trial is 'one of the most basic rights preserved by our Constitution,' * * * a guarantee 'as fundamental as any of the rights secured by the Sixth Amendment,' * * * we have yet even to trace its contours.'

The Court of Appeals has had occasion to deal with the 'speedy trial' question in 25 reported opinions. During the existence of this Court thus far, we have had to deal with the same question in a grand total of 58 reported opinions. ⁴ From this massive corpus of case law,

                certain fundamental principles have been thoroughly distilled.  Pre-eminent is that the right to a speedy trial is a relative one and the time within which trial must be had to satisfy the constitutional guarantee depends on the facts and circumstances of the particular case.  5  In evaluating those facts and circumstances on a case-by-case basis, four factors 6 come into play
                

(1) The length of the delay,

(2) The reason for the delay,

(3) Prejudice to the accused, and

(4) Waiver by the accused.

WAIVER

Waiver will, in and of itself, dispose of a contention that an accused has been denied a speedy trial, no matter what the other factors may involve. ⁷ Waiver is a self-

                contained phenomenon.  8  In the case at bar, however, no  
                evidence was adduced [283 A.2d 168] that the appellee had ever been informed of the charges pending against him and was ever, therefore, in a position to make any demand or request for a prompt disposition of those charges.  Waiver

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