Brady v. State

Thompson, J., delivered the opinion of the Court. This is an appeal by Clyde E. Brady, appellant, from an order of the Circuit Court for Anne Arundel County dated May 27, 1976, denying a motion to dismiss certain indictments. In that motion and on this appeal appellant alleges he was denied his constitutional rights to a speedy trial and due process of the law. The appeal was filed prior to the trial.

After argument before this Court on the merits the case was reargued on the question of appealability. The record in this case, unlike the record in most such cases, shows that the facts were fully developed in a hearing before the trial judge. We wish to publicly commend counsel for their diligence and call upon other defense counsels and State’s Attorneys to follow their splendid example. Appellant was arrested on November 10, 1973, for the murder of John E. Owens.

He was indicted on December 11, 1973, and his counsel entered his appearance on December 28, 1973. Trial was scheduled, for July 16, 1974, but appellant's trial counsel requested a postponement. Trial was rescheduled for September 19, 1974, but the prosecuting attorney was subpoenaed as a witness in an unrelated trial for that date and the case was reset for trial October 2, 1974. When the ease was called for trial the State entered a nolle prosequi on the indictments against the appellant.

At that time, the appellant demanded an immediate trial and asked to be released. He was denied release because there was a pending charge of violation of probation. When bond was requested on the probation charge, the State opposed bond on the basis that the appellant was a potential danger to the community, particularly to members of the Owens family; he probably would not return for trial because he was aware that a co-defendant might testify against him; and that it might be dangerous to the appellant to be released because ²⁸⁵ there was a strong feeling in the community against him. Despite the State’s arguments, the appellant was later released in December of 1974.

On April 1, 1975, the appellant was rearrested for his alleged involvement in the murder of John E. Owens. He was indicted on June 9, 1975 as an accessory after the fact, and on September 8, 1975, as the murderer of John E. Owens. Trial was scheduled on both indictments for November 18, 1975, but was postponed by appellant’s trial counsel. Appellant concedes in his brief: “Since September 11, 1975 the State has often sought to set a trial date but appellant’s counsel asked that trial dates be deferred, pending the outcome of his Motion to Dismiss [now under consideration] which was filed on January 14, 1976.” Ronald M. Naditch, the Assistant State’s Attorney who was handling the prosecution of the appellant, testified that he wanted to try Alfred R. Howard, a co-defendant, first, in order to get Howard to testify against the appellant.

He did not believe he could successfully prosecute the appellant without Howard’s testimony. Naditch caused the appellant to be arrested on April 1, 1975, because he believed that Howard would testify against him as a result of a plea bargain. He expected Howard . to make a statement incriminating the appellant, however, appellant was indicted only as an accessory after the fact because Howard’s statement did not inculpate the appellant in the actual murder. On September 4, 1975, Naditch interviewed a prisoner named David Henkensiefken about an unrelated ease, and Henkensiefken gave Naditch a statement that was inculpatory to the appellant in the present ease.

Prior to the interview, Naditch did not know Henkensiefken. Naditch presented Henkensiefken’s statement and other evidence to the grand jury, which returned the second murder indictment. Alfred R. Howard was arrested on November 16, 1973, for the murder of John E. Owens. Trial was scheduled for ²⁸⁶ February 20, 1974, but postponed by consent of the State and Howard.

Trial was rescheduled for August 28, 1974, by consent of the State and Howard, but postponed at the request of Howard. On August 20, 1974, the State requested a trial date of August 27, 1974, but Howard's trial counsel advised that that date was not convenient, and that he required additional time to prepare for trial. A trial date of November 19, 1974, was set as a result of the efforts of the State. Howard had the case removed, and trial began on April 1, 1975.

During the trial, a plea bargain was made wherein Howard agreed to testify against the appellant. Appealability This Court in Neal v. State, 20 Md. App. 20 , 314 A. 2d 710 (1974), held that we would no longer follow the rule that there could be an immediate appeal from a pretrial order denying a motion presenting the questions of double jeopardy or the failure to grant a speedy trial. We said: “We believe that the time has come for us to reconsider the position we have taken on the basis of Jones [ 241 Md. 599 , 217 A. 2d 367 (1966)] and Harris [ 194 Md. 288 , 71 A. 2d 36 (1950)]. On only one of the 25 occasions when the claim was before the Court of Appeals and resolved in a reported opinion did it hold the right to a speedy trial had been unconstitutionally denied, and that one case was Jones.

At the time we decided State v. Lawless, 13 Md. App. 220 , on 21 October 1971, we had dealt with the question in 59 reported opinions, including Lawless . On only two occasions did we hold that the right to a speedy trial was unconstitutionally denied, Wilson v. State, 8 Md. App. 299 , and Caesar v. State, 10 Md. App. 40 . See note 4, 13 Md. App. at 226 . Since Lawless , we have considered a claim of the denial of a speedy trial in 19 reported opinions, in none of which did we find that the constitutional right was violated.

Since the inception of our Court we have had the question of double jeopardy before ²⁸⁷ us in some 18 reported cases. In only two, State v. Campbell, 7 Md. App. 538 , and Jones v. State, 17 Md. App. 504 , did we find that another trial would put the accused twice in jeopardy. 9 The piece-meal appellate review of immediate, and, with very few exceptions, patently frivolous appeals from a refusal to dismiss an indictment on an allegation of denial of a speedy trial or of double jeopardy does just what the Court in Lee [ 161 Md. 430 , 157 A. 723 (1931)] anticipated. ‘[Proceedings in every criminal case, great or small, may be stopped and delayed while the accused prosecutes an appeal * * * [adding] just so much to the resources of those who might find vexatious delays advantageous, and [multiplying] appeals in criminal cases * * * Lee , at 434. We believe that it is now more beneficial to the proper administration of criminal justice and of little detriment in the circumstances to the vast majority of those accused of crime, that we follow the rulings of Lee and Pearlman [ 226 Md. 67 , 172 A. 2d 395 (1961)] rather than the apparent exceptions of Jones and Harris. The Court of Appeals granted certiorari and reversed that part of our decision pertaining to double jeopardy.

Neal v. State, 272 Md. 323 , 322 A. 2d 887 (1974). In Taylor v. State, 22 Md. App. 370 , 323 A. 2d 648 (1974), we examined the holding in Neal v. State, supra 272 Md. 323 , and concluded: “The express message of the Court of Appeals in Neal is unmistakable. A denial of a motion to ²⁸⁸ dismiss an indictment on the ground of double jeopardy is appealable immediately. The underlying message of Neal is equally unmistakable, i.e., our decision in Neal v. State with respect to the holding that a denial of a motion to dismiss for lack of speedy trial is interlocutory and thus not immediately appealable is still viable.” Id. at 372.

The Court of Appeals first recognized the right of an immediate appeal in speedy trial cases in Harris v. State, supra. In 1950, when Harris was decided, criminal appeals in Maryland were a rarity, whereas now they are routine, and as pointed out in detail in Neal v. State, supra 20 Md. App. 20 , questions concerning speedy trials arise in many of them. The rule allowing an immediate appeal in such cases is burdensome because in most cases it means that there will be two appeals instead of one. As we pointed out in Taylor v. State, supra and Neal v. State, supra 20 Md. App. 20 , the delay involved in the appeal frequently serves as a weapon in the hands of an accused.

In addition to the time that is required to process the appeal in this Court, such a hypothetical accused could, and frequently does, petition the Court of Appeals for certiorari. After that Court has acted upon the petition, the accused still has ninety days in which to petition the Supreme Court of the United States for a writ of certiorari, all of which will further delay the trial. As early as Harris v. State, 6 Md. App. 7 , 249 A. 2d 723 (1969), this Court pointed out under Maryland Rule 725 a, the trial judge could withhold ruling on such a motion, for determination at the trial of the general issue. Under new Maryland Rule 736 e which becomes effective July 1, 1977, a motion to dismiss an indictment for denial of a speedy trial can be disposed of at the trial on the merits.

Many times there are good reasons to postpone decision on such a motion until the trial, especially where the issue of prejudice to the accused is raised. It would seem that if a trial judge, after proper hearing before trial, felt that the motion should be ²⁸⁹ granted, he would rule on it immediately. If he had doubts concerning prejudice, or for any other reason felt that the motion should be denied, he would quite properly withhold decision thereon until after the trial. As we said in Taylor v. State, supra at 374, the right to immediate appeal should not be dependent upon whether or not the trial judge withholds his decision.

In Smith v. State, 11 Md. App. 631 , 276 A. 2d 228 (1971), we held that there could be an immediate appeal in cases involving preindictment delay, i.e., denial of due process. This question is so intertwined with speedy trial problems that we depart therefrom for the same reasons stated above and expressly overrule Smith v. State, supra, as well as similar expressions in other cases. See State v. Lawless, supra at 225, n.2. We summarily, and without opinion, applied our new speedy trial rule to a case involving preindictment delay in O’Dell v. State, No. 235, September Term, 1976, filed May 14, 1976, cert. denied, Md., Petition Docket No. 151, September Term, 1976, filed July 14, 1976.

Appellant’s counsel concedes that the setting of a precedent is important but he argues that the appellant’s rights are important to him and that he has chosen to appeal even though he is incarcerated pending the disposition of the case. In view of this, we will express our thoughts on the issues by way of dicta. Eastgate Associates v. Apper, 276 Md. 698, 704 , 350 A. 2d 661 (1976). Due Process of Law The appellant contends that when the State entered a nolle prosequi on October 2, 1974, over his objection, and later indicted him for the same offense, he was denied due process of the law.

This contention is two-fold. First, it is alleged that the Maryland law as it concerns the State’s right to enter a nolle prosequi amounts to a per se denial of due process. Second, even if the Maryland law does not amount to a per se denial of due process, the use of this tool by the State in this case was “unreasonable, oppressive and capricious.” We do not agree. ²⁹⁰ Maryland Rule 711 stated that “[a] nolle prosequi of an indictment may be entered by the State’s Attorney only in open court.” The entry of a nolle prosequi under this rule is a matter “within the exclusive -province and