Wheeler v. State
| Decision Date | 01 September 1990 |
| Docket Number | No. 1641,1641 |
| Parties | Edward WHEELER v. STATE of Maryland. , |
| Court | Court of Special Appeals of Maryland |
Mark Colvin, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.
Carmen M. Shepard, Asst. Atty. Gen., Baltimore (J. Joseph Curran, Jr., Atty. Gen., Baltimore and Robert W. Hamilton, Former State's Atty. for Allegany County, Cumberland, on the brief), for appellee.
Submitted before BLOOM, CATHELL and MOTZ, JJ.
On July 13, 1990, Edward Wheeler was convicted by a jury in the Circuit Court for Allegany County (Sharer, J.) of first degree rape, second degree rape, first degree sexual offense, second degree sexual offense, kidnapping, and assault with intent to rape. The trial judge merged the convictions for second degree rape, sexual offense, and assault. Wheeler was sentenced to concurrent life terms on the rape and sexual offense convictions, and 30 years on the kidnapping conviction. All but 35 years was suspended.
On appeal, Wheeler contends that:
1. He was denied his constitutional right to a speedy trial;
2. He was denied his right to be present at the hearing at which trial was continued beyond the 180-day limit;
3. There was an inordinate delay in bringing the case to trial;
4. The court erred in allowing the prosecutor to question him about showing Charles Netzer a gun;
5. The court erred in restricting his cross-examination of the complaining witness; and
6. The court erred in allowing the complaining witness to remain in the courtroom after testifying and then permitting her to testify in rebuttal.
According to the testimony of the prosecuting witness, the appellant lured her away from her boyfriend, by promising to provide her with marijuana, to a spot where he produced a gun and told her he also had a knife. Upon receiving her promise to cooperate, he put the gun away, pulled her down an embankment, and forced her to engage in cunnilingus and sexual intercourse with him.
We shall address appellant's first three contentions together, as each of them relates to the delay in bringing Wheeler to trial. Appellant was arrested on August 26, 1988. The public defender entered his appearance on October 28, 1988. The trial finally commenced on July 11, 1990, over 22 months after appellant's arrest.
The Supreme Court enunciated a four-factor balancing test in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), 1 used to determine whether an accused had been denied a constitutional right to a speedy trial. The four factors are: (1) the length of the delay; (2) the reasons for the delay; (3) the accused's assertion of the right; and (4) the prejudice resulting from the delay.
The arrest of a defendant, or formal charges, whichever first occurs, activates the speedy trial right. State v. Gee, 298 Md. 565, 572, 471 A.2d 712, cert. denied, 467 U.S. 1244, 104 S.Ct. 3519, 82 L.Ed.2d 827 (1984). In the case at bar, the period between arrest and trial was approximately 23 months. A delay of almost two years is presumptively prejudicial, Smith v. State, 276 Md. 521, 350 A.2d 628 (1976) (16 months); Epps v. State, 276 Md. 96, 345 A.2d 62 (1975) (over 12 months); Howell v. State, 87 Md.App. 57, 589 A.2d 90 (1991); Schmitt v. State, 46 Md.App. 389, 416 A.2d 296, cert. denied, 288 Md. 742 (1980), and certainly sufficient to trigger an analysis of the four factors enunciated in Barker, 407 U.S. 514, 92 S.Ct. 2182.
Our review of the record indicates that the delay incrementally occurred as follows:
The First Postponement
On or about February 1, 1989, the State requested a continuance in order to conclude a DNA typing analysis. This continuance was to March 27, 1989.
On March 27, 1989, the State and the defendant jointly requested a continuance in order for the defense to procure an independent DNA analysis and for the State to transfer its DNA result to written form. This continuance was to August 16, 1989, which carried the trial date past the 180-day requirement of Md. Rule 4-271.
On August 14, 1989, the defense requested another continuance to obtain further DNA typing analysis. The new trial date was scheduled for November 8, 1989.
Prior to November 8, 1989, the State requested and received a continuance based on health problems of the complaining witness which were purported to be complications relating to a pregnancy. The defendant was also having problems locating a missing witness and did not object to the continuance. The case was then continued to May 30, 1990.
On May 29, 1990, new counsel appeared for the defendant and moved to have the case dismissed, which was denied and also moved for a further continuance. The trial was then scheduled for July 11, 1990. 2
We shall discuss each of these periods, applying the tests of Barker, supra, and its progeny.
The State requested that the defendant provide a blood sample for testing. According to argument made by the State at a May 1990 hearing on a Motion to Dismiss on speedy trial grounds, this blood sample was not voluntarily given as had been previously agreed to and was only produced on February 1, 1989, pursuant to either a court order or search warrant. 3 Thus, the State argued, there was a necessity for a continuance in order to test the blood recently obtained. The court granted the continuance and reset the trial date to March 27, 1989. The defense did not object to the postponement. When a delay is necessitated by the failure of the State to prepare its case, that delay weighs heavily against it. Brady v. State, 291 Md. 261 267, 434 A.2d 574 (1981), Ferrell v. State, 67 Md.App. 459, 464, 508 A.2d 490 (1986). See also Howell, 87 Md.App. at 84, 589 A.2d 90, and cases therein cited. When, however, that delay is caused, at least in part, by the defendant's reneging on an agreement, the delay should not be chargeable to the state.
The State and the defense joined in a Motion for Continuance on March 27, 1989. The State informed the court that DNA testing had been completed and the results orally furnished to the State, but that it would take five to six weeks to get a written report. The appellant's attorney informed the court that he needed time to respond to the State's test results:
The court granted what it considered to be a joint request for continuance. It requested that each party inform it as to how much time would be needed for that party to be ready in respect to the DNA issue. The appellant responded by letter from his counsel dated March 31, 1989, in which the defense informed the court it would need an additional 12 weeks after the 5 weeks within which the State would receive the report, or a total of 17 weeks. The court then rescheduled the trial to August 16, 1989.
The appellant argued below in his later Motion to Dismiss, and argues on appeal, that the State waited until six days before the original trial date to request a blood sample from appellant. Wheeler argues that because the State waited to get a blood sample, it somehow caused the appellant to delay getting a sample of his own blood tested. Therefore, the appellant argues, his joining in the request for a continuance should not result in this delay being considered neutral.
The appellant chose to wait until the results of the State-procured tests were completed before seeking testing on his own. There is no allegation that the State directly interfered with Wheeler's ability to initiate his own testing. This time is not chargeable to the State.
This new trial date carried the trial past the 180-day requirement of Md. Rule 4-271. The postponement request, however, was made at least jointly by the parties, and thus was requested by the appellant. 4 We, therefore, decline to hold that the provisions of Md. Rule 4-271 have been impermissibly violated. See Miller v. State, 53 Md.App. 1, 6, 452 A.2d 180 (1982), cert. denied, 295 Md. 302 (1983) (discussing former Md. Rule 746). We said in State v. Lattisaw, 48 Md.App. 20, 29, 425 A.2d 1051, cert. denied, 290 Md. 717 (1981), "As [State v.] Hicks [285 Md. 310, 403 A.2d 356 (1979) ] makes clear, the 180-day requirement is not entirely for the accused's benefit, and can be waived by counsel." (Emphasis in original.) 5
The defendant filed a Motion for Continuance based upon the need of the defense to conduct its own DNA typing to counter the results of the State test. He argued that, because the State had used the firm Cellmark, the defense was compelled to employ a New York firm, Life Codes Corporation, and that that firm's results would not be available in time for trial.
We fail to see how the State's actions in any way infringed upon appellant's ability to (1) obtain a blood sample from the appellant and have it tested prior to the State's testing, and (2) to submit a sample to Cellmark prior to the State's submission. This time is chargeable to the defense.
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