State v. Long

• Decision Date: 25 May 1967
• Docket Number: No. 162,162
• Citation: 1 Md.App. 326,230 A.2d 119
• Parties: STATE of Maryland v. David Lawrence LONG and Raymond Nelson, Jr.
• Court: Court of Special Appeals of Maryland

Page 326

1 Md.App. 326

230 A.2d 119

STATE of Maryland v. David Lawrence LONG and Raymond Nelson, Jr.

No. 162.

Court of Special Appeals of Maryland.

May 25, 1967.

Certiorari Denied Sept. 21, 1967.

Franklin Goldstein, Asst. Atty. Gen., Baltimore, Robert C. Murphy, former Atty. Gen., Franklin Goldstein, Asst. Atty. Gen., Baltimore, Leonard T. Kardy, State's Atty. for Montgomery County, Rockville, John C. Hancock, State's Atty. for Charles County, LaPlata, on the brief, for appellant.

Robert C. Heeney, Rockville, for appellee Nelson.

John F. McAuliffe, Rockville, for appellee Long.

Before MORTON, THOMPSON, and ORTH, JJ., and W. ALBERT MENCHINE and PAUL T. PITCHER, Special Judges.

ORTH, Judge.

This is an appeal by the State of Maryland from an order of May 23, 1966 of Chief Judge J. Dudley Digges, presiding in the Circuit Court for Charles County, dismissing an indictment charging the appellees with rape, upon a motion to dismiss filed by each appellee alleging denial of a speedy trial.

The chronological sequence of events material to this appeal is as follows:

October 10, 1965-Appellees arrested on charge of rape.

October 22, 1965-Preliminary hearing in the People's Court of Silver Spring. Held for action of the Grand Jury and bond denied.

November 15, 1965-Appellees and Earle Agustus Little, Jr., not a party to this appeal, indicted on charges of rape, assault with intent to rape and assault of Mary Arden Batch.

November 29, 1965-Appellees and Little arraigned before the Circuit Court for Montgomery County. Appellees plead not guilty; Little stood 'moot.' Trial date set for December 15, 1965.

December 6, 1965-Little filed plea of not guilty by reason of insanity. Order of court for examination.

December 7, 1965-Petition for bond filed by each appellee.

December 14, 1965-Petitions denied after hearing.

December 23, 1965-Motion for speedy trial filed by each appellee.

February 17, 1966-Order of court to transport Little to Montgomery County.

March 28, 1966-Motion for discovery and inspection filed by each appellee.

April 1, 1966-Earle A. Little, Jr. filed suggestion for removal. Order of court that indictment of Little be transmitted to Charles County for trial. State filed suggestion for removal of Little and appellees. Order of the court that case of Little and appellees be transferred to Charles County for trial.

May 11, 1966-Motion to dismiss the indictment filed by each appellee.

May 12, 1966-Answer to motions for discovery and inspection filed by State.

May 19, 1966-Motion for severance filed by each appellee.

May 20, 1966-Motion to dismiss the indictment filed by Little. Hearing on motions to dismiss, motions for severance and motions for discovery. Motion to dismiss overruled as to Little.

May 23, 1966-Motion to dismiss as to each appellee granted and indictment dismissed as to each appellee.

It appears that the case as to appellees was not tried on December 15, 1965, the trial date originally set, because the State had it taken out of the assignment without consulting counsel for appellees. The State proffered no specific reason why this was done. It further appears that a trial date of April 19, 1966 had been set, although the record does not disclose when it was set. The State and counsel for appellees agree that it was prior to March 28, 1966 on which date each appellee filed a motion for discovery and inspection. It also appears that a trial date of May 24, 1966 was set and that counsel for appellees were so notified by letter of April 22, 1966 from an Assistant State's Attorney. This sequence of events is as disclosed by the record before us, including a transcript of the proceedings at the hearing on the motions to dismiss, made part of the record by agreement of counsel. No testimony was presented at the hearing, either orally or by affidavit.

The right to a speedy trial involves a nice balancing of two rights of society-the primary obligation to ascertain the guilty or innocence of an accused, and the accused's right to have the accusation determined without oppressive delay. See Cohen v. U.S., 366 F.2d 363 (1966) 9th Circuit. The right is guaranteed by the State and Federal constitutions. Article 21 of the Maryland Declaration of Rights provides: 'That in all criminal prosecutions, every man hath a right * * * to a speedy trial * * *.' Amendment VI to the Constitution of the United States provides: 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, * * *.' Although the Sixth Amendments to the Federal Constitution applies to and limits the powers of the Federal government, cases involving a violation of a basic or fundamental right will be protected under the due process clause of the Fourteenth Amendment. 'Criminal proceedings arising in a State court, involving such rights, flow through the due process clause of the Fourteenth Amendment, become absorbed in federal process, and will be reviewed by the Supreme Court.' Harris v. State, 194 Md. 288, 71 A.2d 36 (1950). Neither Article 21 nor the Sixth Amendment is implemented by statute but both are self executing. Jones v. State, 241 Md. 599, 217 A.2d 367 (1966). Nor is the phrase 'speedy trial' defined in the Federal Constitution or the Maryland Declaration of Rights.

The Court of Appeals in Jones, at page 608, 217 A.2d at page 373 quotes 22A C.J.S. Criminal Law § 467(4):

'A speedy trial is, in general, one had as soon as the prosecution, with reasonable diligence, can prepare for it; a trial according to fixed rules, free from capricious and oppressive delays, but the time within which it must be had to satisfy the guaranty depends on the circumstances.'

Many states having constitutional provisions similar to that of Maryland have statutes which establish a time limit in which an accused must be tried. Usually under a statute imposing upon a state the duty to bring the accused to trial within a designated time, the state must take the initial action. Harris v. State, supra. Appellees contend that Maryland has enacted a statute imposing upon the State a time within which an accused must be brought to trial. They cite Maryland Code, Art. 27, §§ 616A-616S and urge that this statute provides that any prisoner in this State has an absolute right to demand trial on a pending indictment and to be tried within 120 days of such demand unless on good cause shown, after a hearing, the court decides that a further delay is reasonably required. We do not agree. The statute to which they refer is entitled 'Detainers'. Sections 616A-616R, both inclusive, pertain to interstate detainers and section 616S pertains to intrastate detainers. In both instances, the provisions of the statute apply only when a detainer has been lodged against a prisoner who has entered upon a term of imprisonment. The statute provides for specific procedures to be followed before the outstanding indictment is to be dismissed. It is clear that the appellees do not come within the provisions of the statute and even if they did, the necessary procedural steps have not been taken by them in order to require a dismissal of the indictments against them. Appellees refer to the title of the Act (Senate Bill 361, Chapter 627, Laws of Maryland, 1965) and particularly to the phrase 'AN ACT * * * to declare the policy of this State toward charges outstanding against a prisoner * * *' in support of their contention that the times specified for bringing trial designated in the act apply to them. The phrase cannot be considered out of context and when examined within the proper frame of reference of the entire title and the provisions of the statute, there is no doubt that the legislative intent was not that the statute apply to an accused awaiting trial, even though incarcerated, but only to prisoners who are serving a sentence and against whom a detainer had been placed. Appellees next urge that, even if the statute is not directly applicable to them, the designation of time for trial therein specified should be applied to them by analogy. The legislature has not established a specific time within which those accused of crime must be brought to trial except in the specific instances set forth in Art. 27, §§ 616A-616S. While it is within the legislative power to provide that all those accused of a crime must be tried within a designated time, provided such time does not infringe the constitutional right to a speedy trial, the legislature of this State has not done so directly and we find that it has not done so by implication in Art. 27, §§ 616A-616S.

While a statutory mandate imposes upon the state the duty to bring the accused to trial within a designated time, the Federal Constitution and the Constitution of this State accord the right to a speedy trial. If an accused does not demand the right, he waives it. The Court of Appeals stated in Harris v. State, supra, that the right to a speedy trial is a personal right and, if an accused fails to demand such a trial, he waives the right to it. It has affirmed the rule numerous times. Bonner v. Director, 237 Md. 445, 206 A.2d 708 (1965); Keyes v. State, 236 Md. 74, 202 A.2d 582 (1964); Dyer v. Warden, 214 Md. 626, 135 A.2d 452 (1957); Tutt v. Warden, 199 Md. 691, 87 A.2d 523 (1952); State ex rel. Thompson v. Warden, 198 Md. 668, 81 A.2d 596 (1951). The Court of Appeals in State v. Murdock, 235 Md. 116, 123, 200 A.2d 666, 669, quoted State v. McTague, 173 Minn. 153, 216 N.W. 787, which it had cited with approval and quoted from in Harris v. State, supra:

"The constitutional and statutory provisions for a speedy trial are for the protection of the defendant, but that does not mean that the state is the only one that may initiate action. There is really no reason for the courts to free an accused simply because a dilatory prosecutor has 'gone to sleep at the switch' (no reference to counsel in this case) while the defendant and his counsel rest in silence. We hold that...