State v. Wilson

• Decision Date: 08 March 1977
• Docket Number: No. 1366,1366
• Citation: 35 Md.App. 111,371 A.2d 140
• Parties: STATE of Maryland. v. Robert Michael WILSON.
• Court: Court of Special Appeals of Maryland

Page 111

35 Md.App. 111

371 A.2d 140

STATE of Maryland. v. Robert Michael WILSON.

No. 1366.

Court of Special Appeals of Maryland.

March 8, 1977.

Certiorari Granted June 1, 1977.

Albert Gallatin Warfield, III, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen. and Thomas E. Hickman, State's Atty., for Carroll County on the brief, for appellant.

Orrin J. Brown, III, Assigned Public Defender, Ellicott City, Md., for appellee.

Argued before GILBERT, C. J., and MOYLAN, DAVIDSON and LOWE, JJ.

MOYLAN, Judge.

What is the denial of the right to a speedy trial? As Professor Anthony G. Amsterdam, a recognized champion of defendants' rights, has pointed out, ¹ it is not one thing but many things. What represents an inordinate delay within the contemplation of the Sixth Amendment, therefore, depends upon precisely what it is that the defendant seeks when he asserts a 'speedy trial' claim. It is one thing when he demands, 'I have a right to a speedy trial; therefore, try me immediately.' It is yet another when he demands, 'I have a right to a speedy trial; therefore, release me upon my recognizance if you do not intend to give me an immediate trial.' It is yet something else again when he demands, 'I had a right to a speedy trial; therefore, dismiss forever all charges against me.' In view of what is at stake, it makes all the difference in the world to discover that end which a defendant is seeking to attain. The request, 'Try me today$,' is a far cry from that other request, 'Try me never, because you did not try me yesterday$' As Professor Amsterdam points out:

'. . . (T)here is not one speedy trial right, there are many speedy trial rights, and . . . in asking whether or not the right to a speedy trial has been denied, the old law professor's question 'For what purpose?' is all important.

. . . I think the test for when a trial is too long delayed for Sixth Amendment purposes is one thing where a defendant is asking for a trial. There it will be very brief indeed and he may have a right to a very quick trial. It may be shorter, if what he is asking for is release from confinement pending trial. It will be somewhat longer, where what he is asking for is the right to have the charges dismissed without prejudice and it might be quite long, indeed, before he is entitled to dismissal of the charges with prejudice.'

There is a gaping disparity between ordering an immediate trial, releasing upon bail or recognizance, and dismissing with ultimate prejudice society's accusation of outlawry. The values invigorating the Sixth Amendment are vitally engaged when an accused seeks expeditious resolution of the charges against him; those values are sometimes shamelessly exploited when an accused waits to turn to the Sixth Amendment for the first time in order to avoid that resolution of the charges against him. In making a reflective and independent constitutional judgment, we will not be indifferent to the way in which and the purpose for which one seeks to use the law.

In dealing with the dismissal of an indictment because of a denial of the right to a speedy trial, appellate courts are not engaged in abstract, academic exercises. They cannot ignore the stark reality of the heavy and foreclosing sanction employed. It is no mere exclusion of evidence, which permits society to try again to prove its accusation with other and untainted evidence. It is no mere reversal of a conviction, which permits society to try again to prevail at a trial free from error. It is the final judgment that society is forever powerless to proceed against a potentially dangerous outlaw in its midst. It is the severity and finality of the sanction that must give us pause in applying it. As the Supreme Court pointed out in Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101, 112 (1972):

'The amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy.'

That philosophical imperative of Barker v. Wingo, which case is the star by which we steer, found expression by us in State v. Jones, 18 Md.App. 11, 14-15, 305 A.2d 177, 179:

'To dismiss, with prejudice, an 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 pre-trial release, on abil or recognizance, may take on additional merit. 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. Dubose, 17 Md.App. 292, 300, 301 A.2d 32, 36, former Chief Judge Orth (now Associate Judge of the Court of Appeals) incisively recognized the attitude of caution and forbearance with which courts must approach this problem, because the application of so extreme a sanction would 'preclude the rights of public justice, because it meant that (the defendant), charged with a serious crime, went free without being tried.' We reaffirm what we said in McIntyre v. State, 17 Md.App. 526, 534, 302 A.2d 672, 677:

'The law does not lightly wield a sanction so ultimately destructive of society's fundamental right to have transgressors stand before the bar of justice upon the merits of the cause.'

It is, of course, the Federal Constitution which is here involved. The supreme expositor of that Constitution is the Supreme Court of the United States. The recent, and the most probing, examination of both the letter and the undergirding spirit of the constitutional provision in found in Barker v. Wingo. ³ That case is the touchstone to which we shall return and return and return again in testing the facts at hand against its informing standards. From that jurisprudential point of departure, we move to the consideration of the case at hand.

The appellee, Robert Michael Wilson, was arrested by Maryland State Police in Carroll County on May 26, 1971. The Sixth Amendment clock began ticking on that day. The appellee filed, in the Circuit Court for Carroll County, a motion to dismiss the pending indictments because of a denial of his right to a speedy trial on July 11, 1975. The hearing on that motion commenced on July 22, 1975. The Sixth Amendment clock stopped ticking on that day. It had registered 1,518 days. Fifty months. Four years and two months. That is a very long time. Standing alone, however, four years and two months tells us absolutely nothing. We need to know what happened in those four years and two months.

After the hearing on the motion was concluded on July 23, 1975, and the submission of memoranda by both the appellee and the State, the hearing judge asked for reargument on October 16 in light of the then recently promulgated case of Epps v. State, 276 Md. 96, 345 A.2d 62. On October 30, 1975, the hearing judge ruled that the appellee had been denied his constitutional right to a speedy trial. The motion to dismiss the indictments was granted. The State has filed a timely appeal from that order of the court.

We are guided by a case law so massive that, in terms of guidance, it has long since passed the point of diminishing returns. That case law bearing directly upon the State of Maryland consists of 13 decisions of the Supreme Court of the United States, 29 decisions of the Court of Appeals of Maryland, and 98 reported decisions of the Court of Special Appeals of Maryland. ⁴ In the last analysis, however, the be-all and end-all of necessary wisdom is Barker v. Wingo.

At the very threshold of analysis, Barker v. Wingo demonstrates, by its example as well as by its language, that the initial shock wave of reading the bottom line on the time register may not, ipso facto, dispose of a question which involves the intricate interplay of that and many other variables. The Sixth Amendment clock in that case registered 1,907 days. Sixty-three months. Five years and three months. That also is a very long time. Indeed, an even longer time than that now before us. Notwithstanding that very long time, the Supreme Court held that the Sixth Amendment right to a speedy trial had not been denied. The yardstick alone will not do.

The Four-Factor Balancing Test

It is axiomatic, from all of the massive case law upon the subject, that the mere running of the calendar will not be viewed in isolation and has little significance divorced from the questions of reason for delay and prejudice, which are, respectively, its cause and its effect. The Supreme Court has explicitly rejected 'the inflexible approach-the fixed-time period because it goes further than the Constitution requires.' Barker v. Wingo, 407 U.S. at 529, 92 S.Ct. at 2191. Barker v. Wingo, rather, mandates a balancing test:

'The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.

A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some...