Brown v. State

EYLER, Judge. This appeal involves application of Rule 4-271 and Maryland Code (1957, 1996 Repl.Vol.), Art. 27, § 591, which require that the State bring all circuit court criminal cases to trial within 180 days of the earlier of the appearance of counsel or the first appearance of the defendant. Specifically, we are asked to consider whether there was inordinate delay between the pertinent postponement and the ultimate trial date necessitating dismissal of appellant’s criminal charges. We shall hold that, under the circumstances of this case, the delay between postponement and ultimate trial date was inordinate, in violation of the requirements of Rule 4-271 and § 591.

Consequently, we shall reverse the judgment of the trial court and remand the case for dismissal of the charges. Facts In February 1996, appellant, James T. Brown, Jr., was arrested for crimes committed on January 26, 1996. Appellant first appeared in the District Court on March 26, 1996 and his bail was set at $1,000. On June 25, 1996, appellant was arraigned in the Circuit Court for Baltimore City and the case was scheduled for trial on September 25, 1996.

On September 25, the case was postponed because of the unavail ²⁴⁸ ability of a judge and was rescheduled for trial on December 12,1996. On December 12, the case was once again postponed because of the unavailability of a judge. 1 The case was rescheduled for February 18, 1997, and on February 18, the case was again postponed because of the unavailability of a judge. The case was scheduled for March 5 but was postponed because of the unavailability of a judge, and because the State’s Attorney was on family leave. In addition, a motion filed on that date indicated that defense counsel was in trial in another case.

The motion did not request a postponement but, instead, sought dismissal of the charges. The case was rescheduled for March 31 but was again postponed because of the unavailability of a judge and rescheduled for June 19. Similarly, the trial was rescheduled and postponed due to unavailability of a judge on June 19, July 11, October 22, and October 24. At the July 11, 1997 hearing, the trial judge suggested that the parties put the case on the “move docket” 2 in order to get the case to trial.

The State’s Attorney replied that he was in trial every day. Defense counsel replied that he was on vacation in August. The case finally was tried beginning on October 28, 1997, approximately sixteen months after appellant’s circuit court arraignment. The record reflects that appellant declined to waive his rights under State v. Hicks, 285 Md. 310 , 403 A.2d 356 (1979), on each occasion the case was postponed.

In addition, on March 5, 1997, appellant filed a motion captioned “Motion to Dismiss Criminal Charges for Violation of Defendant’s Speedy Trial, Due Process and Hicks Rights.” The motion was denied and was renewed by appellant at the commencement of trial on October 28, 1997. The trial court found that the administrative judge had granted each of the above postpone ²⁴⁹ ments based on a finding of good cause, that none of the postponements constituted an abuse of discretion, and that appellant had not shown that he was prejudiced by the delay. Accordingly, the trial court denied appellant’s renewed motion to dismiss the charges. Ultimately, appellant was convicted by a jury of a third degree sexual offense, a fourth degree sexual offense, and common law assault.

The trial court merged the lesser offenses into the third degree sexual offense and sentenced appellant to two years imprisonment. Discussion On appeal, appellant asserts both that his speedy trial rights under the federal constitution were violated and that the requirements of Rule 4-271 and Article 27, § 581 were violated. Because we agree with appellant’s latter contention, we shall not reach the constitutional issues. See State v. Lancaster, 332 Md. 385 , 404 n. 13, 631 A.2d 453 (1993).

Pursuant to Rule 4-271 and Article 27, § 591, the State is required, in the circuit court, to bring all criminal defendants to trial within 180 days after the appearance of counsel or the first appearance of the defendant, whichever is earlier, unless the trial is postponed for good cause by the administrative judge or his or her designee. This date, which in this case was December 22, 1996, has come to be known as the Hicks date, in recognition of the fact that in State v. Hicks, 285 Md. 310 , 403 A.2d 356 (1979), the Court of Appeals held that the requirement is mandatory. With the exception of limited circumstances, such as the defendant’s express consent to a trial date outside the statutory period, see Dorsey v. State, 349 Md. 688, 702-03 , 709 A.2d 1244 (1998), the sanction for noncompliance with these provisions is dismissal of the charges. Id.; State v. Cook, 322 Md. 93, 96-97 , 585 A.2d 833 (1991); Calhoun v. State, 299 Md. 1, 6 , 472 A.2d 436 (1984); Hicks, 285 Md. at 334-35 , 403 A.2d 356 .

In order to satisfy the requirements of Hicks , a postponement that postpones the trial date beyond the 180 day ²⁵⁰ deadline must meet the following three conditions: (1) a party or the court must request the postponement; (2) good cause must be shown by the moving party; and (3) the county administrative judge, or a judge designated by him or her, must approve of the extension of the trial date. Franklin v. State, 114 Md.App. 530 , 691 A.2d 257 , cert. denied, 346 Md. 241 , 695 A.2d 1229 (1997); State v. Robertson, 72 Md.App. 342, 347 , 529 A.2d 847 (1987). The Court of Appeals has held that “[a] case postponed for good cause may yet run afoul of the statute and rule if, after a valid postponement, there is inordinate delay in bringing a case to trial.” Rosenbach v. State, 314 Md. 473, 479 , 551 A.2d 460 (1989). In Rosenbach , the Court went on to explain: The purpose of the rule is to promote the expeditious disposition of criminal cases, [State] v. Frazier, 298 Md. [422], 456-57, 470 A.2d at 1282-1283 [(1984)], and this purpose is not served if, after a good cause postponement, nothing further is done to achieve that goal.

Thus, the dismissal sanction may once again be invoked if, after a good cause postponement, trial is not begun with reasonable promptness. See generally Frazier, supra. But the burden of showing that the post-postponement delay is inordinate in view of all the circumstances, is on the defendant. State v. Brookins, 299 Md. 59, 62 , 472 A.2d 465 (1984); Frazier, 298 Md. at 454, 470 A.2d at 1286.

Id. at 479, 551 A.2d 460 . Thus, when determining whether there has been compliance with the requirements of Hicks , we must engage in a two step analysis: First, we must ask whether there was good cause for the postponement which occurred on the critical trial date, and then we must determine if there was inordinate delay between the time of the good cause postponement and the trial date set by the assignment authority.... State v. Parker, 347 Md. 533, 540 , 702 A.2d 217 (1995). In this case, the critical postponement was December 12, 1996, because that was the postponement that extend ²⁵¹ ed the trial date beyond the 180 day deadline.

See Dorsey, 349 Md. at 701 , 709 A.2d 1244 ; Parker, 347 Md. at 540-41 , 702 A.2d 217 ; Rosenbach, 314 Md. at 478 , 551 A.2d 460 ; Frazier, 298 Md. at 428, 470 A.2d 1269 . In considering whether the requirements of Rule 4-271 were met, we do not examine the propriety of either the prior postponements or subsequent postponements. See Farinholt v. State, 299 Md. 32 , 472 A.2d 452 (1984); Reed v. State, 78 Md.App. 522, 536-37 , 554 A.2d 420 (1989). On the date of the critical postponement, the administrative judge postponed the case due to the unavailability of a judge.

We cannot say that the reason for the postponement failed, as a matter of law, to constitute good cause for the postponement. See, e.g. State v. Bonev, 299 Md. 79, 81 , 472 A.2d 476 (1984); Harper v. State, 299 Md. 75, 78 , 472 A.2d 473 (1984); State v. Harris, 299 Md. 63 , 472 A.2d 467 (1984); Rash v. State, 299 Md. 68 , 472 A.2d 470 (1984); State v. Brookins, 299 Md. 59 , 472 A.2d 465 (1984); McFadden v. State, 299 Md. 55 , 472 A.2d 463 (1984); Frazier, 298 Md. at 422 , 470 A.2d 1269 ; Reed, 78 Md.App. at 537 , 554 A.2d 420 . Nevertheless, the inordinate delay between the postponement and the ultimate trial date requires dismissal of the criminal charges.

As noted above, the question of inordinate delay must be analyzed in view of all of the circumstances of the case. Rosenbach, 314 Md. at 479 , 551 A.2d 460 . We begin, then, with an examination of the charges at issue. Appellant was charged with committing sexual assault upon a twelve year-old girl.

The alleged assault occurred on one occasion, there was no physical evidence, and no other eye witnesses aside from appellant and the minor victim. Ultimately, the State’s case rested upon the testimony of four witnesses — the minor victim, the minor victim’s mother, the investigating detective, and an investigating police officer — and took approximately one trial day to complete. There were no complex legal or medical issues that would justify a lengthy delay to trial. Indeed, as the case presented essentially a credibility contest between the victim and the defendant, the case ideally should have been brought quickly while memories were fresh. ²⁵² Appellant was not tried until more than ten months after the date of the critical postponement and the Hicks deadline.

After the critical postponement, the case was called for trial and postponed seven times due to the unavailability of a judge. Aside from one case when the defendant consented to several postponements, see Wheeler v. State, 88 Md.App. 512, 520-22 , 596 A.2d 78 (1991), we are unaware of any case that even approaches this level of delay. In Pennington v. State, 299 Md. 23 , 472 A.2d 447 (1984), the Court of Appeals held that a delay of 168 days between the critical postponement and the new trial date was “sufficiently long to place the burden on the State to offer some evidence, both in terms of what happened in the instant case as well as the nature of the criminal case scheduling system in Harford County.” Id. at 30 , 472 A.2d 447 . Notably, the new trial date was merely 60 days beyond the Hicks date, as opposed to the approximately 300 days at issue in this case.

The Court noted that the principles set forth in Frazier, supra, 3 may not have been anticipated at the time the motion to dismiss was made. Moreover, the defendant’s motion was oral and thus, the lack of advance notice may have deprived the State of an opportunity to put on evidence. In view of these circumstances, the Court remanded the case for further proceedings on the issue of inordinate delay. In Harris, supra, the Hicks date was January 13, 1982.

When the case first was called for trial on September 10, 1981, it was postponed due to the unavailability of a jury. When it was called again on November 23, 1981, it was postponed due to the unavailability of judge or jury. In December of 1981, the trial court conducted a five day suppression hearing on the defendant’s motion to suppress certain evidence. At the conclusion of the hearing, the trial judge indicated that he would issue a written opinion.

Ultimately, on February 25, ²⁵³ 1982, the trial court filed a sixteen page opinion denying the motion to suppress. The case was then called for trial on March 8, 1982. On that date, the defendant rescinded an