Britton v. State

Thompson, J., delivered the opinion of the Court. Albert Britton, the appellant, was convicted of robbery with a dangerous and deadly weapon by a jury in the Criminal Court of Baltimore, Judge J. Gilbert Prendergast presiding; a sentence of twenty years was imposed, with credit for time served. In this appeal, Britton alleges the trial court erred in: (1) failing to provide a speedy trial; (2) failing to release Britton from custody as required by an order of the United States District Court; (3) declining to receive the testimony of a witness at a former trial who was currently unavailable; (4) failing to exclude certain testimony; (5) denying a motion for mistrial; and (6) violating his protection against double jeopardy. On December 31, 1963, a liquor store in Baltimore City owned by Harry Lipsitz was robbed by at least one man ⁷² armed with a gun.

Mr. Lipsitz established the crime by describing the entry of the robber into his store, his being held at gunpoint, and the taking of money from his person and the cash register, but Mr. Lipsitz could not identify the robber. The identity of appellant as the criminal agent was established by the testimony of William Eggleston, a helper in the liquor store at the time of the robbery. ■ Alibi testimony, presented by the defense, that appellant was twenty blocks away playing cards at the time of the crime was disbelieved by the trier of facts. Additional facts and procedural developments will be presented, as necessary, with the contentions concerning them. I Speedy Trial and Due Process The development of appellant’s case, spanning from the time of the crime in 1963 until the present, includes three trials, the filing of three appeals, a petition for writ of certiorari to the Court of Appeals, and a petition for a writ of habeas corpus in the United States District Court for the District of Maryland.

Britton’s first conviction resulted from a non jury trial in the Criminal Court of Baltimore on June 14, 1965. Due to the pendency of an appeal from that conviction at the time of Schowgurow v. State, 240 Md. 121 , 213 A. 2d 475 , he was granted a new trial. At the second trial on November 7,1966, he was again convicted of robbery with a dangerous and deadly weapon and sentenced to twenty years imprisonment; that conviction was affirmed by this Court in Britton v. State, 2 Md. App. 285, 234 A. 2d 274 . A writ of certiorari to the Court of Appeals of Maryland from the decision of this Court was denied February 15, 1968.

On April 25, 1969, the United States District Court for the District of Maryland granted á petition for a writ of habeas corpus, Britton v. Maryland, 298 F. Supp. 641 , based in large part on Barber v. Page, 390 U. S. 719 , 88 S. Ct. 1318 , 20 L.Ed.2d 255 which was decided subsequent to our decision in Britton v. State, supra, and ordered Britton’s release unless he was retried before August .24,-1969. This order was subsequently extended and ⁷³ on September 10, 1969, after a hearing in open court, the District Court found that the State was complying with its order. In Allen v. State, 1 Md. App. 249 , 229 A. 2d 446 , this Court held that when a trial is delayed as a result of reversals obtained by an accused’s efforts, there is no lack of a speedy trial. Hence, in this case we are concerned only with the time between the granting of the federal writ of habeas corpus procured by appellant on April 25, 1969, and the beginning of trial on September 3, 1969, a period of approximately 131 days.

Even assuming appellant had demanded a speedy trial the same day the writ of habeas corpus was granted, and none of the delay was chargeable to him, the time involved is clearly not substantial; therefore, appellant must show a strong possibility of prejudice, which he has failed to do. See King v. State, 6 Md. App. 413 , 251 A. 2d 628 and Hall v. State, 3 Md. App. 680 , 240 A. 2d 630 for a more complete discussion of the questions. II Failure to Comply with Order of United States District Court Since the United States