Bowie v. State

Moylan, J., delivered the opinion of the Court. The broad complaint of the appellant, Wright Weedon Bowie, is that he made a “deal” with the State and the State broke the bargain. The general cry of “Foul” takes on legal specificity in the parallel but distinct contentions 1) that an implicit grant of immunity foreclosed prosecution of the instant cases and 2) that his constitutional right to a speedy trial was infringed. Both claims were denied by Judge Samuel W. Barrick at a pretrial hearing in the Circuit Court for Frederick County, and both are here appealed.

The denial of the latter is properly before us. The denial of the former was interlocutory in nature and is, therefore, prematurely challenged. The calendar of surface events is simple. The actions beneath the surface are somewhat murkier.

The appellant was charged by the Grand Jury for Frederick County for drug-related offenses under two separate indictments on May 21, 1969. That being the moment when he first became an “accused,” all speedy trial calculations must be reckoned from that point. United States v. Marion, 30 L.Ed.2d 468 ; State v. Hamilton, 14 Md. App. 582 . On November 17, 1969, six months later, the State’s Attorney petitioned and the court ordered that the cases be transferred to the stet docket.

On November 25, 1970, an additional twelve months later, the State’s Attorney petitioned and the court ordered that the cases be removed from the stet docket. On January 7, 1971, an additional six weeks later, the appellant moved to have the indictments dismissed. Since we consider the speedy trial claim within the context of that motion, the running of the calendar will be frozen as of that date. The overall ⁵⁷⁰ period of time from indictments to motion is nineteen and one-half months.

At the pretrial hearing, both the appellant and the appellant’s counsel testified. The State’s Attorney did not. From its probing cross-examination of the appellant, however, the State’s position was, in part at least, developed. The evidence established that sometime in July, 1969, the appellant, on his own initiative, sought to make a “deal” for himself by offering information to the State in exchange for some form of leniency.

The appellant, aided by counsel, prepared a three-page memorandum, promising various items of underworld intelligence, which the appellant was ostensibly willing to divulge. Appellant’s counsel arranged for him to meet with the State’s Attorney and several law enforcement officers. That meeting occurred on July 31, 1969. The testimony is utterly chaotic as to the nature of any agreement that may have come out of that meeting.

It is clear, however, that the appellant sought the meeting. It is also apparent that the maximum consideration which the appellant was then seeking was a disposition of “probation without verdict” on the pending indictments. As a tactical judgment, he did not seek that disposition immediately but settled on a holding position “that his case be postponed for the time being.” The three-page memorandum is not part of the record, but its concluding paragraph is: “I would feel it proper that his case be postponed for the time being. Although I have not made up my mind, I do not feel at the present time that I want to ask for its dismissal or a nolle pros, since I would be concerned about his security.

I believe that I would ask of the State’s Attorney consideration of a request on his part for ‘probation without verdict’. My client at one time worked for the Government, and I want to keep his record in such condition that he might be able to obtain re-employment there should ⁵⁷¹ he apply. At the same time, I am concerned at this time about a request for a nolle pros in view of the fact that it may endanger either his life or physical being. (s) Richard E. Zimmerman Attorney for Wright Weedon Bowie July 31, 1969 I have read the within papers, verified to the truth of the same and agreed to the undertaking suggested by my Attorney.

(s) Wright W. Bowie” The appellant acknowledged that he did learn subsequent to this July 31st meeting that the indictments against him would be placed upon the stet docket. In his testimony, he made the further claim that it was his expectation that this tentative termination of the charges would become absolute at some future time. Upon our independent constitutional review, we find that the appellant, by his actions, waived his right to a speedy trial. We agree with the finding of Judge Barrick: “Here the cases were placed on the Stet Docket with the acknowledgment and apparent blessing of the defendant and his attorney.

At no time has there been a request that the cases be brought to trial. According to the memorandum that Bowie’s attorney prepared for his files after the conference on July 31, 1969, Bowie’s attorney requested that these cases be ‘postponed for the time being.’ The memorandum goes on to indicate that he, Bowie’s attorney, had not made up his mind as to the best way to dispose of these cases as far as Bowie was concerned and apparently was quite willing for them to go on the Stet Docket. Although there may have been an assumption that this action would finally dispose of them, and therefore both Bowie and his attorney may have been ⁵⁷² lulled into a false sense of security, this still amounts to a waiver of a speedy trial. It seems to the Court that one cannot acquiesce to all the procedural aspects concerning the trial of these cases and then plead that he was denied a speedy trial.” The waiver in this case was not by mere inaction, from which position of disadvantage the appellant might redeem himself by a showing of actual prejudice coupled with a showing of undue delaying tactics or bad faith by the State.

State v. Lawless, 13 Md. App. 220, 227, n. 7 ; Fabian v. State, 3 Md. App. 270, 286 . It consisted, rather, of affirmative action on his part which is absolutely foreclosing of the speedy trial claim. State v. Lawless, supra, 227-229, especially par. 5 of n. 8 and cases cited therein. The appellant did not simply acquiesce in delay but deliberately sought to avoid trial.

Whatever arguable grievance he may have under some distinct theory of immunity granted and then abrogated, his election to pursue an alternative strategy to trial upon the merits is dispositive of the speedy trial issue. It was at the second ground for his motion to dismiss the indictments that the appellant contended that the State had granted him complete immunity on the existing charges, however inartful its methods may have been in implementing that grant. He urges, therefore, that the State was foreclosed from resurrecting the indictments and his motion to dismiss was erroneously denied. Even accepting his theory at face value for the moment, the reneging on a promise of immunity by the State would not, in any event, amount to a denial of an absolute constitutional right.

Every wrong is not, ipso facto, unconstitutional. Whatever bargain a defendant may strike for himself in the prosecutorial marketplace, he possesses no constitutional right to have immunity conferred upon him. The denial of the motion, in this regard, was therefore, a pro forma order, interlocutory in nature, and any appeal therefrom may, under Mary ⁵⁷³ land Rule 1035, be dismissed “as prematurely taken.” Raimondi v. State, 8 Md. App. 468, 470-471 , and cases cited thereat. Although the prematurity of the appeal on this issue would ordinarily be dispositive of the point at this time, we note that the “immunity” issue was interlinked with the “speedy trial” issue as part of a single motion to dismiss the indictments.

The evidentiary hearing elicited testimony on both points. The ruling of the trial court was on both points. Since the record has already been fully reviewed by us and since both points were briefed and argued upon this appeal, we deem it, in the exercise of our discretion and in the interests of judicial economy, not inappropriate to express our opinion on the issue at this time. See Kardy v. Shook, 237 Md. 524, 534-535 .

We agree with the ruling of the trial court. Although the testimony at the hearing below permits of several factual interpretations, under none of the interpretations may the appellant prevail in law. As the moving party, the appellant bore the burden of establishing a clear factual predicate for his theory of defense. Even leaving aside the question of whether the purported agreement was cognizable and enforceable at law, it was required of him to show 1) precisely what the agreement was, 2) his own performance in fulfillment of the agreed upon obligation and 3) an unjustified breaching of the agreement on the part of the State.

The factual picture that unfolds here is, at best, impressionistic. Whatever agreement, if any, emerged from the proceedings of July 31 is, on the face of this record, as Winston Churchill once characterized the Soviet Union, “a riddle wrapped in a mystery inside an enigma.” 1 As to the consideration given by this appellant, it is not clear whether he was to furnish information, as of July 31, about past offenses or whether he was to cooperate with the State on a continuing basis by furnishing information as to such future violations of the crimi ⁵⁷⁴ nal law as would come within his ken. In the latter event, it is not clear how long the obligation would continue. It is not clear what the standard would be for measuring the appellant’s performance.

The petitions of the State to remove the indictments from the stet docket recited, in pertinent part: “SECOND: That the reason given in support of the motion to STET was that the Defendant had offered to cooperate with the State, then and in the future, by supplying information pertaining to the violations of the Drug Laws in Frederick County. THIRD: That not only has the Defendant failed to comply with his agreement, he now stands charged in No. 2671 Criminals in the Circuit Court for Frederick County, Maryland, for maintaining a common nuisance in violation of Section 286 (a) (5) of Article 27 of the Annotated Code of Maryland, amended, which said charge is a violation of the Uniform Controlled Dangerous Substances Act.” As to the consideration given to this appellant, it is not clear whether he received a purported immunity as to the indictments at bar or whether he received a purported immunity as to other crimes as to which he might incriminate himself in the course of furnishing information about them. It is not clear in either event whether he was offered “testimonial immunity” 2 or “transactional immunity.” 3 If it were “testimonial immunity,” appropriate redress would simply be the suppression of any incriminating statements at the time of the trial itself, not dismissal of charges. See United States v. Blue, 884 U. S. 251 , 255.

Even if the law were as the appellant would have' it be, he cannot be deemed to have established successfully at the pretrial hearing the existence of an agreement, ⁵⁷⁵ his own satisfactory performance pursuant to that agreement or the unjustified breach of that agreement on the part of the State. His plight on the state of the facts, however, is compounded by his plight on the state of the law. Even if the facts were as he would have them be, he cannot prevail in law. Immunity, in the first place, could never be granted to the appellant by anyone in the circumstances of this case.

There is no inherent, common law power in the State’s Attorney or in the Grand Jury or in the judge or in anyone else to confer immunity from prosecution. Immunity is exclusively a creation of statute and can only exist where a statute has brought it into being. Maryland has no general immunity statute. There are limited statutory provisions providing for the granting of immunity for certain specific crimes.

See, for example, Article 27, Section 23 (Bribery of Public Officials) ; Article 27, Section 24 (Bribery in Athletic Contests) ; Article 27, Section 39 (Conspiracy to Bribe) ; Article 27, Section 262 (Gambling) ; Article 27, Section 371 (Lottery) ; Article 27, Section 400 (Obtaining Liquor by Minors) ; Article 27, Section 540 (Sabotage) ; Article 33, Section 26-16 (c) (Fair Election Practices); and see State v. Comes, 237 Md. 271 ; State v. Panagoulis, 3 Md. App. 330 . None of those apply to the case