Borgen v. State

ALPERT, Judge. Facts and Proceedings On September 21, 1981, Arthur Lineberry, manager of a Texaco station located at 600 Quince Orchard Road, Gaithersburg, Maryland, arrived at work and discovered that a tool chest containing various automotive tools had been broken into. It appeared to Lineberry that none of the doors of the premises had been broken or pried. Nine days later Lineberry provided the police with an inventory of the stolen tools.

On December 19, 1981, Walter Henry Borgen, appellant, was arrested for his alleged involvement in two offenses not related to the offenses herein alleged and escorted to the Germantown police station. Montgomery County Police Department Detective Donald Deaton informed appellant that a search warrant relevant to the unrelated offenses had been executed at appellant’s residence earlier that day. Later that day, appellant’s home was searched again by Detective Deaton. No warrant was issued for this search and it is disputed whether appellant voluntarily consented to the search. 1 Detective Deaton and Lineberry went to appellant’s home and Deaton led Lineberry to the rear of the house where various tools were observed.

Lineberry in ⁶⁶ spected the tools and identified those that he thought had been stolen from the Texaco Station. At trial Lineberry identified a number of tools as either belonging to him or the Texaco Station. On January 8, 1982, appellant was charged in a two-count indictment with theft over $300 and storehouse breaking with intent to commit a felony. On February 4, 1982, trial was set for June 15, 1982.

Prior to trial, appellant’s trial counsel moved to suppress various items of evidence seized from his residence December 19, 1981. On April 23, 1982, after a full hearing, the court denied appellant’s motion. On May 19, 1982, the State filed a motion in which it sought a continuance of the trial date to a date not therein mentioned, on the ground that the Assistant State’s Attorney was involved in a five-to-ten day case which would begin on June 14, 1982, the day before the designated trial date. Judge David Cahoon, Administrative Judge of the Circuit Court for Montgomery County, withheld ruling on the motion for continuance until June 10, 1982, granted the motion, and continued the trial until November 15, 1982.

Appellant filed a motion to dismiss the indictment on June 22,1982, alleging that the continuance violated his “right to speedy trial and due process” and was in derogation of Maryland Rule 746. Appellant’s motion was heard and denied by Judge Calvin Sanders on August 6, 1982. At that time appellant was offered an advanced trial date by both the Assistant State’s Attorney and the trial judge. Our review of the record indicates that no response was ever made by appellant or his trial counsel.

On the day of trial appellant renewed his motion to dismiss for lack of speedy trial, which was again denied by the court. Appellant was convicted on Count I of the indictment, theft over $300., and acquitted on Count II, the storehouse breaking charge. On February 18, 1983, he was sentenced to five years to the Division of Correction, consec ⁶⁷ utive to a sentence which appellant was then serving. 2 Noting a timely appeal, he argues: I. The lower court erred in concluding that it had no discretion to review the administrative judge’s ruling that the State had demonstrated good cause to postpone the trial date beyond the 180-day period established by Rule 746.

II

The administrative judge erred in determining that the State’s reason for seeking a continuance constituted good cause for postponement of the trial date.

III

Appellant was denied his constitutional right to a speedy trial when his trial was held 328 days after his arrest.

IV

Appellant’s consent to a warrantless search of his residence was involuntary under the totality of the circumstances. V. The evidence was insufficient to convict appellant of theft over $300. Perceiving no error, we shall affirm. I. When the State moved for a continuance of the June 15, 1982 trial date, the appellant filed no answer to the motion, nor did he make any immediate objection.

Subsequently, when the trial date was set for five months in the future, appellant moved to dismiss the indictments, alleging that he was being denied his constitutional right to a speedy trial and also because of a violation of Maryland Rule 746. Maryland Rule 746 implements Md.Ann.Code, art. 27, § 591 (1957,1982 Repl.VoL, 1983 Cum.Supp.) which mandates that a trial date be set no later than 180 days from the date of arraignment or the appearance or appointment of counsel for the accused, whichever shall occur first. Under ⁶⁸ Rule 746 the appropriate sanction for failure to bring a case to trial within 180 days is dismissal of the charges. State v. Hicks, 285 Md. 310, 385 , 403 A.2d 356 (1979).

A postponement may be granted only by the administrative judge and only upon a showing of good cause for not commencing the trial on the assigned date and good cause for the extent of the delay. State v. Frazier et al., 298 Md. 422, 448 , 470 A.2d 1269 (1984). In Frazier, the Court of Appeals held that an administrative judge’s decision “concerning the need for a postponement and the rescheduling of a criminal trial should be accorded great weight.” At 453, 470 A.2d 1269 . Thus, the review to be undertaken by a trial judge when considering an administrative judge’s finding of good cause should be similar to that undertaken by an appellate court, i.e., was there an abuse of discretion by the administrative judge?

State v. Frazier, supra, at 450-453, 470 A.2d 1269 . See also State v. Green, 54 Md.App. 260, 266 , 458 A.2d 487 (1983). Frazier explained the rationale for according great deference to an administrative judge’s postponement ruling: The major safeguard contemplated by the statute and rule, for assuring that criminal trials are not needlessly postponed beyond the 180-day period, is the requirement that the administrative judge or his designee, rather than any judge, order the postponement. This is a logical safeguard, as it is the administrative judge who has an overall view of the court’s business, who is responsible ‘for the administration of the court,’ who assigns trial judges, who ‘supervise^] the assignment of actions for trial,’ who supervises the court personnel involved in the assignment of cases, and who receives reports from such personnel.

Consequently, the administrative judge is ordinarily in a much better position than another judge of the trial court, or an appellate court, to make the judgment as to whether good cause for the postponement of a criminal case exists. Moreover, with regard to the extent of a postponement, even though the administrative judge may not personally select or approve the new trial date in a postponed case, such selection is made by personnel operating under his ⁶⁹ supervision and reporting to him. When he postpones a case, he is generally aware of the state of the docket in the future, the number of cases set for trial, and the normal time it will likely take before the case can be tried. 298 Md. at 453-454 , 470 A.2d 1269 (footnotes omitted) (emphasis supplied). After hearing arguments from counsel on the motion to dismiss, Judge Sanders rendered his oral opinion and stated in pertinent part: Although the order does not specifically say so, I think I have to assume that Judge Cahoon made a determination based on the content of the motion that the State had some good cause, in his opinion, for postponement, and saw fit to grant the motion, and I really don’t think that it’s for this court at this time to review that finding.

So I think, as far as your motion with regard to 746, I think that there has been compliance with 746(b) which. . .. Seizing upon these extemporaneous words of Judge Sanders, appellant argues that while the trial judge did have limited discretion to review the administrative judge’s postponement decision, his failure to exercise any discretion resulted in a denial of appellant’s rights under Rule 746. See, Colter v. State, 297 Md. 423, 426 , 466 A.2d 1286 (1983). Initially, we point out that State v. Frazier, supra and State v. Green, supra, were rendered subsequent to Judge Sanders’ consideration of this matter.

Consequently, Judge Sanders did not have the benefit of those decisions’ guidelines when reviewing the administrative judge’s determination of good cause for the continuance. Although it is arguable that he did not review the administrative judge’s finding of good cause, it is equally arguable that he did since Judge Sanders had before him the State’s motion for continuance, its reasons therefor, and the explanation made in argument at the hearing by the Assistant State’s Attorney. By stating that, “I think there has been compliance with 746(b),” Judge Sanders was effectively ruling that there was ⁷⁰ good cause and exercising the limited discretion articulated by the Court of Appeals in Frazier. 3 II. The State’s continuance motion was based on a newly assigned prosecutor’s scheduling conflict.

Appellant contends that the administrative judge abused his discretion by finding that this ground constituted good cause for granting the continuance. Appellant further contends that the other reason advanced by the State at the hearing of the motion to dismiss — the reorganization of the Montgomery County State’s Attorney’s Office — was not a matter presented to the administrative judge. It is clear to this Court that appellant did not object to the fact of the continuance but only to the length of the continuance. We note that the State’s motion of continuance was filed on May 19, 1982, but that an order granting that motion was not signed until June 10, 1982, thus indicating that the appellant had at least 20 days to object to the continuance.

As there were reasons that could have constituted good cause in the motion and since appellant did not object to the continuance, 4 it can hardly be said that the administrative judge abused his discretion in granting a continuance. One of the administrative judge’s responsibilities under Maryland Rule 746(b) is to see that a continuance is not extended unnecessarily. State v. Frazier, supra. The extent of the delay to the new trial date did not manifest an abuse of discretion as the State explained that appellant had ⁷¹ received the earliest possible trial date.

State v. Frazier, supra, 298 Md. at 462 , 470 A.2d 1269 . In view of the presumption of validity the administrative judge’s “good cause” ruling carries, State v. Frazier, supra, and considering the fact that appellant made no objection to the motion for continuance, it would not have been unreasonable for the administrative judge to assume that appellant consented to a new trial date.

III

Appellant contends that he was denied his constitutional right to a speedy trial because the period of time from arrest to trial was approximately 11 months. We have previously explained that part of the delay resulted from the granting of the State’s motion for continuance. Thereafter appellant made two separate motions to dismiss the indictment. At the first motion hearing on August 6, 1982, appellant focused his argument on the alleged violation of Maryland Rule 746.

Appellant renewed his motion to dismiss on November 15, 1982, the morning of the trial. There, appellant based his motion on his constitutional right to a speedy trial. Appellant asserted that he had been prejudiced by the delay because certain evidence — receipts for the tools that were the subject of the theft — was lost when appellant’s landlord evicted appellant and his wife from their home. Appellant further claimed that he could not now locate a witness he had intended to call to prove appellant’s ownership of the tools because that witness had moved sometime after the continued trial date.

The State attempted to rebut appellant’s contentions by proffering that Detective Deaton, if called, would testify that he had asked appellant’s wife in December 1981 whether there were any receipts for the tools and that Mrs. Borgen replied that she could not find any receipts. Detective Deaton would have further testified that Mrs. Borgen never came forth with any receipts. The trial judge considered defense counsel’s argument and stated: ⁷² Well, here we are in November of 1982. He’s had 11 months to find those receipts.

When is the landlord supposed to have gone in and taken them? All right, he had 6 months to get in or send somebody in, his father, or someone in to get those receipts. I don’t think that shows prejudice at all, Mr. Pinkus. He can’t just sit on his haunches and do nothing to get his case ready.

And if he was going to have a trial on June 15, then he should have known that those receipts would be absolutely essential for that trial and I don’t know why he didn’t try to get them someway before that. So I can’t see that he’s been prejudiced in any way by the delay. There is no constitutional right to be tried within a specified period of time. Denial of the right must be determined on a case-by-case basis, balancing both the conduct of the defendant and the State.

Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972); Epps v. State, 276 Md. 96 , 345 A.2d 62 (1975). A four factor test has evolved for determining whether a defendant has been denied a speedy trial. Those factors are: (1) length of delay; (2) reason for delay; (3) defendant’s assertion of the right; and (4) prejudice to the defendant. We apply those four factors only when the length of the delay is of constitutional dimension.

State v. Lawless, 13 Md.App. 220, 229-32 , 283 A.2d 160 (1971), cert. denied, 264 Md. 749 , cert. denied, 409 U.S. 855 , 93 S.Ct. 192 , 34 L.Ed.2d 99 (1972). See also Powell v. State, 56 Md.App. 351, 358 , 467 A.2d 1052 (1983), cert. denied, 298 Md. 540 , 471 A.2d 745 (1984). We deem the 10 month, 7 day delay in this case to be of constitutional dimension. See State v. Hiken, 43 Md.App. 259 , 272 & n. 20, 405 A.2d 284 (1979).

Accordingly, we shall apply the four-factor test. A. Length of Delay. Appellant became an accused and entitled to a speedy trial upon commencement of his prosecution by way of arrest, information or indictment, whichever first occurred. State v. Gee, 298 Md. 565 , 471 A.2d 712 (1984).

The indictment having been filed on January 8, ⁷³ 1982, we compute from that date to the commencement of trial, November 15, 1982, a delay of 10 months and 7 days. 5 B. Reason for the Delay. The period of time from January 8,1982 to June 15,1982 was required for reasonable preparation of the case by the prosecution and for the orderly process of the case. Wilson v. State, 44 Md.App. 1, 17 , 408 A.2d 102 (1979), cert. denied, 286 Md. 755 , cert. denied, 446 U.S. 921 , 100 S.Ct. 1858 , 64 L.Ed.2d 275 (1980). The period from June 15, 1982 to the trial date of November 15, 1982 would ordinarily be chargeable to the State as the continuance was granted at its request.

However, at the August 6, 1982 hearing on the appellant’s motion to dismiss the indictment, the prosecution offered to make an effort to advance the trial date. The court followed up on the State’s suggestion and stated: I think, as the State has suggested, if Mr. Borgen is in fact desirous of a trial earlier than the November 15 present date, I think we can accomodate him and would do that. The Court will deny your motion to dismiss the indictment in this matter. We want to talk to Mr. Borgen and see if he would like an earlier date than the November. . . .

Trial counsel responded, “I’ll speak with him, Your Honor.” The Court finalized the potential advancement by stating, “Okay, and Mr. Sullivan will make arrangements to advance it.” It is clear, therefore, that advancement of the trial date was conditioned upon appellant’s response. There is nothing whatever in the record to indicate that appellant thereafter sought to advance the trial date. Although we recognize that the burden is upon the State to bring the defendant to trial and that appellant has no burden to bring himself to trial, Strickler v. State, 55 Md.App. 688, 694 , 466 A.2d 51 ⁷⁴ (1983), under the facts of the instant case it appears appellant declined an invitation for an earlier trial date. Accordingly, we hold that if a defendant is offered an earlier trial date, and declines to accept the invitation, either affirmatively or by silence, the period of time from the date of the offer to the earlier trial date is chargeable to the State and the time between an offered advanced trial date and the actual trial date shall be chargeable to the defendant.

Under the circumstances of this case, because appellant did not accept the State’s offer to set an earlier date, a specific date was never set, and we therefore cannot measure the period of time from the hypothetical advanced trial date to the actual trial date. Thus, because appellant’s inaction apparently precluded an earlier trial date, we shall attribute the time from when appellant was offered an advanced trial date (June 15,1982) until the actual trial date (November 15, 1982) to neither the State nor the appellant. C. Assertion of the Right. A defendant’s failure to demand a speedy trial does not constitute a waiver of that right, and is only one consideration when determining whether the right has been denied.

Powell v. State, supra, 56 Md.App. at 365 , 467 A.2d 1052 . Still, this failure to assert a right to a speedy trial is entitled to strong evidentiary weight against a defendant. Id. Although it is arguable that the