Wilson v. State

• Decision Date: 10 December 1969
• Docket Number: No. 96,96
• Citation: 259 A.2d 553,8 Md.App. 299
• Parties: Dennis R. WILSON a/k/a Dennis R. Willson v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 299

8 Md.App. 299

259 A.2d 553

Dennis R. WILSON a/k/a Dennis R. Willson v. STATE of Maryland.

No. 96.

Court of Special Appeals of Maryland.

Dec. 10, 1969.

William A. Swisher, Baltimore, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., Howard L. Cardin and James B. Dudley, State's Atty., and Asst. State's Attys., on the brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

The sole question presented by this appeal is whether appellant has been denied his constitutional right to a speedy trial and/or due process of law by reason of what he terms the 'unbelievable inefficiency and inexcusable neglect' of the State's Attorney of Baltimore City in not more promptly bringing his case to trial.

The pertinent facts are these: Appellant, a fourteen year old boy, was arrested on November 7 or 8, 1967 for the murder and robbery on November 2, 1967 of Joseph Pecora. Unable to post bail, appellant was lodged in the Baltimore City jail where, on November 15, 1967, he became fifteen years of age. On November 28, 1967, appellant was jointly indicted with Thomas McCoy, Albert Matthews, and Edward Powers for murder and robbery.

On December 11, 1967, appellant was brought before Judge Meyer Cardin in the Criminal Court of Baltimore the arraignment. Upon ascertaining that appellant was without counsel, the court directed the entry of a not guilty plea on his behalf, and stated it would appoint counsel to represent him. On January 5, 1968, appellant was brought before Judge Anselm Sodaro for arraignment. After determining that no counsel had been appointed to represent appellant, the court stated that it would make such an appointment; and on January 10, 1968, counsel appointed by the court entered his appearance on appellant's behalf. Sometime in either January or February, 1968, Assistant State's Attorney James Dudley was specially assigned to prosecute the appellant and his codefendants, including a fifth youth-Joseph McClain-who was separately indicted as an accessory before the fact to the murder and robbery of Mr. Pecora. A motion for discovery and inspection was filed by appellant's counsel in January of 1968; the State promptly answered.

On June 11, 1968, Powers was separately tried by Judge Sodaro at a one day court trial and found guilty of first degree murder. He was sentenced on June 14, 1968 to life imprisonment.

On September 20, 1968, appellant, acting through his counsel, filed a motion for a speedy trial.

On November 12, 1968, McCoy moved for a severance. Two days later, on November 14, 1968, his trial commenced before a jury, Judge J. Gilbert Prendergast presiding. The jury found him guilty after a three day trial. Sentence was deferred pending the filing of a motion for a new trial.

On December 9, 1968, appellant's case was called for trial before Judge Solomon Liss. The State requested and was granted a postponement because of the unavailability of State's witnesses. Judge Liss directed that the case be rescheduled and tried within one or two weeks.

McCoy was sentenced to life imprisonment on December 10, 1968.

On December 17, 1968, Matthew's trial by jury commenced, Judge Liss presiding. After a four day trial, the jury found him guilty of first degree murder. He was sentenced to life imprisonment on January 7, 1969.

Although not entirely clear from the record, it appears that McClain's trial was held over a four day period in February and March of 1969. The disposition of the trial is not shown by the record.

On April 9, 1969, appellant filed a motion to dismiss the indictments against him alleging therein that he was then sixteen years of age; that he had been held in jail since November 8, 1967; that previously, on September 20, 1968, he had filed a motion for a speedy trial; that on December 9, 1968, his case was scheduled for trial before Judge Liss, at which time the State requested its seventh postponement; that in postponing the case, Judge Liss told the State's Attorney to reschedule the trial within one week; and that in all the case was scheduled for trial some nine times, both prior to and after the filing of his speedy trial motion, the last time being on March 14, 1969. Appellant claimed in his motion that he had been illegally detained since his arrest and that the State had no witnesses who could testify against him; for these reasons, appellant moved the court to dismiss the indictments.

The motion was heard by Judge Charles D. Harris on April 22, 1969, at which time the appellant testified that he had been incarcerated in the Baltimore City jail since his arrest; that he had, through counsel, filed a motion to dismiss for lack of a speedy trial on September 20, 1968; that he had also personally filed a motion for a speedy trial on February 17, 1969; that on December 9, 1968, his case was called for trial before Judge Liss but, because the State wasn't prepared to proceed, the case was postponed; and that Judge Liss said 'he would bring this case up for trial within two weeks' and that 'there would be no more breaks for either side.' The appellant offered no further evidence.

The State then proceeded to put on evidence through the testimony of James Dudley, the Assistant State's Attorney specially assigned to prosecute all the indictments growing out of the Pecora murder and robbery. Dudley testified that the first recorded communication he had with appellant's counsel was on March 15, 1968, at which time he indicated by letter that the case was being scheduled for trial on April 9, 1968; that this date was then changed by the State's Attorney to May 22, 1968; that while only two postponements are actually shown on the court's docket-one being December 9, 1968 and the other March 14, 1969-he had been in 'constant contact' with appellant's counsel 'mostly orally by communications in our office or on the street, or in the hallways'; ¹ that he had scheduled the case for trial on at least seven occasions but the 'system' of scheduling cases for trial was such that the case 'had to be pulled out at the last minute before the day of trial,' either because of continuing jury trials in the court in which the case was scheduled or 'because of the known time that cases previously scheduled would take.' In this connection, Dudley testified that previously scheduled gambling cases took approximately three weeks in the Criminal Court and this required a postponement of appellant's case; that a series of bank robberies also necessitated postponing appellant's case because they took in excess of three weeks trial time, 'and they weren't about to interrupt the trials to begin this case.' Dudley further testified 'there has only been two occasions, one occasion both occasions the State reluctantly requested a postponement,' namely, 'the date in December being unavailability of a witness, and, two witnesses to be exact; and the date in March was my personal illness.' Dudley stated that the 'system' of scheduling cases was under the control of the State's Attorney for Baltimore City.

Asked on cross-examination to explain the 'system' of scheduling cases for trial, Dudley stated that there were seven or eight criminal courts within the Supreme Bench of Baltimore City hearing criminal cases; that the State's Attorney selects the court within which each case will be tried; that he schedules, in advance, seven or eight cases a day in each court 'for the next three weeks'; and that on the scheduled trial date, it sometimes happens that a previously scheduled case is still in the process of being tried, so that witnesses for the scheduled trial must be told not to appear. Dudley testified that in scheduling appellant's case for trial, 'no significant interruptions' of the assigned trial date were foreseen; that because appellant's various codefendants had been tried by four different judges assigned to the criminal courts, only three judges remained who could hear appellant's case; that because the trials of appellant's codefendants had taken three days at a minimum to try, it was necessary to begin appellant's case on 'a day on which we could begin a jury trial where the entire panel would be available for three days.'

Dudley reiterated that of the seven postponements in appellant's case since September 20, 1968, five resulted 'because of continuing trials of major significance, the twenty some armed robberies or jury trials that were in progress for two or three days, which only left us to start on a Friday afternoon.' Dudley also testified, in effect, that the scheduling of appellant's case was complicated by the fact that he vacillated between a court and jury trial.

In denying appellant's motion to dismiss the indictments, Judge Harris concluded from the evidence that the postponements on December 9, 1968 and March 14, 1969 were both justified, it not being reasonable to require another assistant prosecutor to try the case when Dudley's illness caused the latter postponement. The court stated that because of the increase in jury trials, and the fact that such trials take approximately three times longer to conclude than a court trial, a large backlog of untried cases had developed-and this despite an increase in the number of judges and prosecutors assigned to the trial of criminal cases. The court referred to Dudley's testimony that appellant vacillated between a court and jury trial, and that only three judges of the criminal court remained available to hear appellant's case (assuming he elected a court trial). The court stated that while there were other judges assigned to the civil, equity, and juvenile courts who could have been asked to hear appellant's case, they too labored under a heavy backlog of cases, as great as that in the criminal court. In this connection, Judge Harris noted that there were no security facilities in these courts. ...