Thompson v. State

• Decision Date: 17 May 1972
• Docket Number: No. 528,528
• Citation: 15 Md.App. 335,290 A.2d 565
• Parties: Clarence M. THOMPSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 335

15 Md.App. 335

290 A.2d 565

Clarence M. THOMPSON v. STATE of Maryland.

No. 528.

Court of Special Appeals of Maryland.

May 17, 1972.

Certiorari Denied June 29, 1972.

Gerald A. Kroop, Baltimore, for appellant.

James L. Bundy, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty. for Baltimore City and P. Paul Cocoros, Asst. State's Atty. for Baltimore City, on the brief, for appellee.

Argued before ORTH, THOMPSON and POWERS, JJ.

THOMPSON, Judge.

Clarence M. Thompson was convicted by Judge Paul A. Dorf in the Criminal Court of Baltimore of the illegal possession of phenobarbital and illegal possession of heroin. From these convictions Thompson has appealed alleging that he was denied 'a quick and speedy trial' and therefore his motion to dismiss the indictment should have been granted. Thompson also contends that his convictions cannot stand as the phenobarbital and heroin were discovered during a search following an illegal arrest and therefore should not have been admitted at his trial.

I

The record shows that appellant was arrested on November 19, 1970, and that his convictions resulted from a trial held on May 3, 1971; thus, a total of five and one-half months had elapsed. On December 29, 1970, appellant in proper person filed with the clerk of the Criminal Court a motion to dismiss. On January 20, 1971, presentments were filed. The next day appellant filed, again in proper person, a motion for discovery. A second motion to dismiss was filed on January 25, 1971. On the 26th of January, the Baltimore City Grand Jury filed their indictments for both charges. There are no docket entries covering the month of February 1971. On the 1st day of March, 1971, a letter was filed appointing Clement R. Mercaldo as counsel for the indigent defendant. Shortly thereafter it appears that appellant retained the services of Gerald A. Kroop and on March 11, 1971, Mr. Kroop filed his appearance, a motion for speedy trial and a motion for discovery and inspection. On March 22, 1971, the second motion for speedy trial was filed along with another motion to dismiss the indictments. there are no docket entries for the month of April, 1971. A motion to suppress evidence was filed, trial was held and appellant convicted on May 3, 1971.

Four factors must be considered in a determination of whether appellant has been afforded his Sixth Amendment right to a speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) prejudice to the accused; and (4) waiver by the accused. Hall v. State, 3 Md.App. 680, 240 A.2d 630. In an extensive discussion of this constitutional right in State v. Lawless, 13 Md.App. 220, 229-231, 283 A.2d 160, 168, it was said:

'Before proceeding to an analysis of possible causation and possible consequence, however, we need know first whether there was, indeed, any delay and, if so, whether it was a delay of constitutional proportions.

'In reckoning delay, it is well settled that for 'speedy trial' purposes, we look only at the time from the commencement of the prosecution (by way of warrant, information or indictment) to the time of trial. Although a general 'due process' right may be involved, there is no 'speedy trial' right guarding against undue delay in the pre-indictment or prearrest phase of a criminal proceeding. * * *

'In looking then at the period of time taken by the State to bring a 'case' to trial, our threshold question is whether that period is of 'constitutional dimension'-that is, Has there been, in fact, any true 'delay' in the constitutional sense? Recognizing that the right to a 'speedy trial' is not the right to an immediate trial, but that time must be allowed for reasonable preparation on the part of the prosecution and for the orderly process of the case from indictment to retention (or appointment) of counsel to arraignment to trial, we reckon as 'delay' only the passage of time beyond that which is the obvious requirement of orderly procedure. If, upon preliminary examination, we may determine that there has been no 'delay' of 'constitutional dimension'-if the claim of 'speedy trial' denial is clearly frivolous-if the passage of time is patently not inordinate-we are relieved of all necessity to make further analysis.'

The Supreme Court has since explicated that 'inordinate delay between arrest, indictment and trial may impair a defendant's ability to present an effective defense. * * * (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 speedy-trial provision of the Sixth Amendment.' United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 463, 30 L.Ed.2d 468. The Court recognized that the passage of time however short between 'accusation' and trial may deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself. Marion, supra at 463-464. See also, State v. Hamilton, 14 Md.App. 582, 287 A.2d 791.

Appellant was incarcerated from the time of his arrest until his trial 5 1/2 months later; there elapsed 71 days from his arrest until the indictments were filed ¹ and 98 days from the filing of the indictments until trial. For the purposes of this case then, we must decide whether the 5 1/2 month period of time between arrest and trial was a 'delay' of constitutional dimension. We think not.

The right to a speedy trial is a relative one and the time within which trial must be had to satisfy the guarantee depends upon the facts and circumstances of the particular case. Stevenson v. State, 4 Md.App. 1, 241 A.2d 174. From the date of the arrest until indictments were filed there elapsed 69 days; one month later, when it appeared that appellant had not retained an attorney one was appointed by the court; two weeks later appellant had retained an attorney who filed his appearance in court and made a motion for a speedy trial. A second motion for a speedy trial was filed eleven days later and trial was held 54 days after the original motion for speedy trial. During this 54 day period, appellant made motions for discovery and inspection, to dismiss indictments and to suppress and exclude evidence. During this period the State answered the motion for discovery and inspection and issued subpoenas for its witnesses. We think it clear, that unlike Jones v. State, 241 Md. 599, 217 A.2d 367, where delay attributable to the State was shown to be effectuated for the convenience of individuals, if there was any delay here, it was caused by sound, necessary or legitimate reasons.

The appellant alleges he suffered actual prejudice from the delay because his companions at the time of the arrest were not available as witnesses at his trial. It appears that at least one of the witnesses would not have been available after December of 1970. Even if the record were more clear in this respect there was no proffer to show what their testimony, if available, would have been. The only real issue in the case was probable cause for the arrest and the missing witness obviously could not have contributed to the solution of that problem. On this record we feel the appellant has failed to establish actual prejudice. It should also be noted that prejudice as claimed here can occur with the lapse of the shortest time. Indeed a witness can die or disappear within a few hours after the accused is arrested. If prejudice is clearly established it must be weighed against the length of the delay and the reasons therefor. Even if prejudice had been established we could see no denial of the right to a speedy trial on the facts of the instant case.

II

Appellant's second contention is that the heroin and phenobarbital were obtained as a result of an unconstitutional search and seizure and therefore should not have been admitted in evidence under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. The search and seizure are claimed to be unconstitutional because they followed an alleged illegal arrest. See Md. Code, Art. 27, § 594B(c).

An arrest may be made without a warrant provided the arresting officer had probable cause to believe that a felony had been committed and that the person arrested committed it. Probable cause for arrest exists where the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information are sufficient of themselves to warrant a man of reasonable caution in the belief that an offense had been or is being committed by the accused. And those facts and circumstances may come within the officer's knowledge by means of a lookout broadcast over the police radio system. Darby v. State, 3 Md.App. 407, 239 A.2d 584; English v. State, 8 Md.App. 330, 259 A.2d 822; Carwell v. State, 2 Md.App. 45, 232 A.2d 903; Williams v. State, 3 Md.App. 115, 238 A.2d 140.

Officer Robert MacKenzie testified that on November 19, 1970, while working the midnight to 8 a. m. shift, a call came over the police radio '(W)anted in the Northern District for assault and robbery, North Avenue and Guilford, the following described males. No. 1 negro male, short height, no further description. No. 2, negro male, tall, no further description. Weapon used was a revolver. They were last seen operating a 68 or 69 Dodge G.I. Cab, No. 155, going west on North Avenue from Guilford. Information from car 514, Northern District. Complainant's No. K35496. Caution Subjects armed.' About 2:10 a. m. there was a broadcast originating from a patrol car requesting a backup unit as G.I. Cab No. 155 was proceeding westbound in the 900 block of North Avenue and the police car was following it. Officer MacKenzie responded and noted that the cab had three occupants. A request was then broadcast for an additional backup car. When the third police car joined the procession, Officer MacKenzie ordered the cab to stop. At gun point MacKenzie ordered appellant to get out of the...