State v. Toney

• Decision Date: 01 September 1988
• Docket Number: No. 43,43
• Citation: 315 Md. 122,553 A.2d 696
• Parties: STATE of Maryland v. Paul D. TONEY. ,
• Court: Maryland Court of Appeals

Page 122

315 Md. 122

553 A.2d 696

STATE of Maryland v. Paul D. TONEY.

No. 43, Sept. Term, 1988.

Court of Appeals of Maryland.

Feb. 28, 1989.

Stuart O. Simms, State's Atty. for Baltimore City, J. Joseph Curran, Jr., Atty. Gen., Ann N. Bosse, Asst. Atty. Gen., Baltimore, all on brief, for petitioner.

Jose Felipe Anderson, Asst. Public Defender, Alan H. Murrell, Public Defender, Baltimore, both on brief, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

MURPHY, Chief Judge.

Maryland Code (1957, 1987 Repl.Vol.) Art. 27, § 591 and Maryland Rule 4-271 require that a criminal case in the circuit courts of the State be tried not later than 180 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court. ¹ Both the statute and the Rule authorize the administrative judge or that judge's designee to change a trial date beyond the 180-day period "for good cause shown." The issue raised in the present case is whether a designated administrative judge abused his discretion or committed an error of law when he determined that the unavailability of the prosecutor assigned to try the case constituted good cause for postponement.

I.

On June 25, 1986, an altercation occurred between Paul D. Toney and Charles McClain, during which Toney shot and stabbed McClain, causing his death. Toney was charged on July 18, 1986, with first and second degree murder and related weapons violations. He first appeared before the Circuit Court for Baltimore City on August 13, 1986; on that date the 180 day clock began to run. Toney was rearraigned on September 3, 1986, and trial was scheduled for November 12, 1986. Because no courtroom was available on that date, the case was postponed until November 21, 1986. On that date, the parties appeared before designated administrative judge Edward J. Angeletti. Over Toney's objection, the State requested a postponement for reasons related to the late receipt of certain evidence. Judge Angeletti found good cause for the postponement and rescheduled trial for December 22, 1986.

On that date, the parties appeared again before Judge Angeletti. The State, represented by Gary Ticknor, the prosecutor assigned to the case, requested that the case be postponed because he was scheduled to begin trial before Judge Robert I.H. Hammerman on January 5, 1987, in a series of four murder cases unrelated to the Toney case. Ticknor explained that because of the holiday interruptions, the numerous motions to be heard in the unrelated cases, and the fact that Toney intended to call ten witnesses, it would be impossible to complete trial of Toney's case by January 5.

Toney objected to the postponement, and Judge Angeletti ordered that trial begin that afternoon before Judge Kathleen O. Friedman. Because Judge Friedman was then unavailable to try the Toney case, Judge Angeletti agreed to a postponement, finding that the lack of an available court constituted good cause. After noting that Ticknor would be trying a series of four murder cases beginning January 5, Judge Angeletti ordered that the Toney case "be put in for a trial, no later than the first week of February," and that there would be no further postponements.

Trial was thereafter set for February 6, 1987 before Judge Arrie W. Davis. Because Ticknor was still trying the unrelated murder cases, Assistant State's Attorney Sandra Kemick represented the State. She requested that the case be called and then continued by Judge Davis until Ticknor became available. Toney objected. He argued that calling the case and then allowing it to be continued was an attempt to evade the 180 day requirement of § 591 and Rule 4-271. Judge Davis properly declined to proceed in the manner requested by the State, and instead referred the case to acting administrative judge Kenneth L. Johnson.

Both Toney and Ticknor appeared at the hearing before Judge Johnson. Upon inquiry by the court, Toney stated that he was unwilling to waive the 180 day limit. Ticknor nevertheless, argued that there was good cause for granting a postponement. He first advised the court of the importance of the case. He said that he had developed a "rapport" with a key prosecution witness, one who was not related to, or a friend of the victim, as were the other State witnesses; that this key witness was afraid to testify but, because of Ticknor's rapport with the witness, he would appear for trial; and that such a rapport was not readily transferable to another prosecutor. Ticknor said he was prepared to prosecute the Toney case immediately upon the conclusion of the cases he was then trying.

Toney acknowledged that the case was an important one. But, he argued, the State should have made earlier efforts to transfer the case to another prosecutor who could undertake to develop the same rapport with the witness. Toney noted that the case had already been postponed twice. He said that another prosecutor could undertake the assignment upon five days' preparation.

The administrative judge found good cause for the postponement and the trial was rescheduled for March 17, 1987. On that date the case was called for trial before Judge Arrie Davis, with Assistant State's Attorney Patricia Wenck representing the State. Wenck had replaced Ticknor as the assigned prosecutor in the Toney case because Ticknor was still trying the unrelated murder cases which had been the cause of his continuing unavailability. Toney moved to dismiss the indictment on the ground that § 591 and Maryland Rule 4-271 had been violated. He again argued that Ticknor's unavailability due to the conflict with his trial schedule was not good cause for a postponement. Toney contended that the State's Attorney's Office should have provided a substitute counsel in light of its knowledge of Ticknor's trial schedule. And he also noted that substitute counsel had in fact been provided for the trial beginning on March 17, 1987, indicating that such a substitution was possible.

Judge Davis observed that in granting each of the prior postponements the administrative judge had found good cause to exist. Expressing reluctance to set aside the administrative judges' finding of good cause, Judge Davis denied Toney's motion to dismiss. The case proceeded to trial, and on March 24, 1987, the jury convicted Toney of second degree murder, use of a handgun in the commission of a crime of violence, and unlawfully wearing and carrying a concealed deadly weapon. On April 28, 1987, Judge Davis imposed concurrent twelve year sentences, of which seven years were suspended, for the murder and handgun convictions and imposed a concurrent three year sentence for the deadly weapon conviction. Judge Davis also ordered that Toney be placed on five years' probation upon release.

Toney appealed to the Court of Special Appeals, raising seven issues, which included the question of whether the lower court had abused its discretion or committed an error of law in finding good cause for postponing the case beyond the 180-day limit of § 591 and Rule 4-271. In Toney v. State, 74 Md.App. 397, 537 A.2d 1218 (1988), the intermediate appellate court held that the administrative judge had violated the mandate of the statute and the Rule. It indicated that the critical hearing occurred on February 6, 1987 when Judge Johnson granted the postponement which carried the case beyond the 180 day limit. It noted that under Goins v. State, 293 Md. 97, 442 A.2d 550 (1982), Calhoun v. State, 52 Md.App. 515, 451 A.2d 146 (1982), rev'd on other grounds, 299 Md. 1, 472 A.2d 436 (1984), and State v. Farinholt, 54 Md.App. 124, 458 A.2d 442 (1983), aff'd 299 Md. 32, 472 A.2d 452 (1984), a postponement beyond the 180 day limit required that three conditions be satisfied: (1) a party or the court sua sponte must request the postponement; (2) good cause must be shown by the moving party; and (3) the county administrative judge or that judge's designee must approve the extension of the trial date. Initially, the court found that the first and third conditions had been satisfied--that the State had requested a postponement and that administrative judge Johnson had granted the State's request for a postponement.

The court then considered the second requirement--whether the State had shown good cause for a postponement. It indicated that a finding of good cause "would at least include a determination that there has been a showing by the moving party ... that reasonable diligence has been exercised to avoid the postponement and a finding that the need to postpone outweighs the detriment which the delay may cause to the public interest." 74 Md.App. at 410, 537 A.2d 1218. The court defined reasonable diligence as persistent effort and assiduity. Id. It then found that the State had not satisfied the reasonable diligence standard because it had not provided substitute counsel when it was aware of Ticknor's conflicting trial schedule. It added, however, that it was not suggesting that the unavailability of an assigned prosecutor could never amount to good cause to postpone beyond the 180 day deadline. Rather, the court indicated that good cause might be found when an "unforeseen event and circumstance arises close to the trial date in a case which, because of its complexity, must, in fairness to the State, be tried by a previously assigned prosecutor." Id. at 412-13, 537 A.2d 1218. The court noted that the Toney case was not complex, that the circumstances causing Ticknor's conflict were not unforeseen, that these events did not arise close to the trial date, and that the Baltimore City State's Attorney's Office had a sufficiently large staff that a substitute could have been provided. Consequently, the court concluded that Ticknor's unavailability did not constitute good cause for a postponement. Based upon its finding that § 591 and Rule 4-271 had been violated, the court ordered that the...