Brown v. State

ON MOTION FOR RECONSIDERATION SALMON, Judge. In Brown v. State, 359 Md. 180 , 753 A.2d 84 (2000), the convictions of appellant, Keith Alexander Brown, for first degree murder and use of a handgun in the commission of a felony, were vacated and the case was remanded for a new trial. The second trial lasted sixteen days. The State called thirty witnesses, and the defense called seven.

After the re ⁵⁵¹ trial, appellant was convicted of second degree murder and use of a handgun in the commission of a felony. With exceptions that will be discussed infra, the evidence introduced at the second trial was similar to that at the first. The Court of Appeals, in Brown v. State, accurately summarized that evidence as follows: Makea Stewart was found dead around 3:30 a.m. on September 10, 1995 in an alleyway behind 3326 Gwynns Falls Parkway, in Baltimore City. She had been shot eight times with a .380 caliber handgun that was owned by petitioner and was later recovered from his car.

Petitioner’s fingerprints were found on the magazine of the weapon. A witness, Jerry Manns, reported hearing gunshots from his kitchen window at approximately the time of Ms. Stewart’s reported death. From his window, he saw an African-American male in his twenties leave the alley and drive off in a small two-door car with a malfunctioning muffler. He saw the same man return a short time later with a gun in his hand.

Manns heard a single gunshot and then saw the man get back into his car and leave. It was later established that petitioner, an African-American male, drove a two-door Mazda with a faulty muffler. Near Ms. Stewart’s body Detective Barlow discovered her pager, which showed that several calls had been made to the pager from a cellular phone later found in petitioner’s possession. Ms. Stewart’s mother, Jill Sullivan, informed Detective Barlow that Ms. Stewart had been having an affair with a married man named Keith, that her daughter told her two days before the murder that she (Ms. Stewart) was pregnant with Keith’s baby and that she was going to confront Keith about the pregnancy.

A friend of Ms. Stewart, Cassandra Green, testified at trial that she overheard Ms. Stewart telling petitioner that she might be pregnant and that petitioner told the victim that he knew she was pregnant and that she had a decision to make. Genetic tests confirmed that, at the time of her death, Ms. Stewart was pregnant with petitioner’s child. ⁵⁵² The State’s theory was that petitioner, from the very inception of his marriage to Ms. Brown, was romantically involved with Ms. Stewart, that Ms. Stewart became pregnant as a result of the affair, that petitioner insisted that she abort the pregnancy, that she refused, and that he killed her because he feared that the pregnancy would wreck his marriage. Petitioner made clear, both at the outset and throughout the trial, that his defense was based on the proposition that his wife, who was aware of his affair with the victim and had threatened both him and the victim in the past, killed the victim out of jealousy. He asserted that position to the court in arguing a pre-trial motion, he asserted it to the jury in his opening statement, he implied it in his own testimony and in the cross-examination of some of the State’s witnesses, and he again asserted it more directly in closing argument.

Ms. Brown [appellant’s wife] then testified that on September 9, 1995—the night of the murder—petitioner returned home at around 4:00 a.m., that she asked him where he had been and that he refused to tell her. Ms. Brown then got into an argument with petitioner about his talking with the victim. .In response to the question, “What happened then,” Ms. Brown said, apparently to everyone’s surprise, “He told me he killed her and I didn’t believe him.” Ms. Brown recounted two additional conversations. Later that evening, they learned from television news that two bodies had been found, “and I asked if one of them was her and he said yes.... ” Id. at 183-86 , 753 A.2d 84 . The Court of Appeals reversed appellant’s convictions in Brown, supra, because the trial court erred in admitting into evidence appellant’s wife’s testimony that he had confessed to ⁵⁵³ her that he had killed the victim.

The Court of Appeals ruled that appellant’s (alleged) communication to his wife was protected, and thus inadmissible, pursuant to the privilege set forth in section 9-105 of the Courts and Judicial Proceedings Article of the Maryland Code (1973, 2002 Repl.Vol.). The mandate of the Court of Appeals was issued on July 10, 2000. The three major differences between the evidence introduced in the first and second trials were: (1) in the second trial, appellant’s wife did not testify concerning statements about the murder made to her by appellant; (2) appellant’s videotape testimony from the first trial was introduced by the State at the second trial, but appellant did not take the stand in his own defense during that trial; and (3) the bullets and the bullet casings found at the scene and the gun owned by appellant were not available to be introduced into evidence at the second trial. Despite those differences, appellant’s defense in the second trial was the same as the one he unsuccessfully advanced in the first trial, i.e., that his wife used his gun to kill Makea Stewart.

In the first trial, as in the second, the State’s evidence against appellant was based on circumstantial evidence, namely: (1) immediately after the victim was shot, an African-American male ran from the scene and drove away in a two-door Mazda with a faulty muffler; (2) appellant owned a car that sounded and looked like the one seen leaving the murder scene; (3) several days after the murder, the police seized a gun owned by appellant from appellant’s car; (4) two ballistics experts testified that the gun found in appellant’s car fired the shots that killed the victim; (5) blood and tissue of the victim, together with appellant’s fingerprint, were found on appellant’s gun; (6) appellant had a motive to kill the victim; and (7) the victim’s pager, which was found near her body shortly after the murder, showed that a call had been made to her pager about one-half hour before the 3:30 a.m. murder, from a cellular phone later found in appellant’s possession. A major problem in retrying appellant was the fact that some of the physical evidence used to convict in the first trial ⁵⁵⁴ was inadvertently destroyed by the police after the first trial. The items that were destroyed and the dates of their destruction were: (1) the bullets recovered from the victim’s body— destroyed in February 2000; (2) the shell casings found next to the victim’s body—destroyed between April 19 and June 27, 2000; and (3) the murder weapon, which was owned by appellant—destroyed on October 13, 2000. The destruction of these items was due- to a series of mistakes by the Baltimore City Police Department.

In this appeal, appellant raises five questions, viz: 1. Was appellant’s right to a speedy trial violated by a nineteen-month delay between the date of the Court of Appeals mandate and the date that the second trial commenced? 2. Did the trial judge commit reversible error by denying appellant’s motions for a mistrial, which were based on the fact that the jury was repeatedly reminded by various witnesses that defendant had previously stood trial? 3. Did the trial court err in failing to suppress evidence uncovered as a result of a validly issued search warrant that was executed by police officers in a venue where they had no jurisdiction? 4.

Did the trial court commit reversible error in allowing, the prosecutor to play a videotape of appellant’s testimony from the first trial when appellant’s testimony in that prior trial was “compelled” by the erroneous admission into evidence in the first trial of testimony that violated appellant’s marital privilege? 5. Did the trial judge improperly enhance the sentence appellant received on remand for the handgun conviction? ISSUE 1: DENIAL OF MOTION TO DISMISS FOR LACK OF SPEEDY TRIAL As mentioned earlier, the mandate of the Court of Appeals in Brown v. State was filed on July 10, 2000. Appel ⁵⁵⁵ lant’s second trial commenced almost exactly nineteen months later on February 11, 2002.

Appellant contends that a delay of this magnitude denied him his right to a speedy trial. In deciding whether appellant’s right to a speedy trial was unconstitutionally abridged, we consider only the period between the date the mandate was issued and the date that trial commenced. See Icgoren v. State, 103 Md.App. 407, 420 , 653 A.2d 972 (1995)(When deciding a speedy trial issue, courts are generally “only concerned with the period between the receipt of an appellate mandate, if the prior conviction is reversed, and the subsequent retrial.”). The right of an accused to a speedy trial is guaranteed by Article 21 of the Maryland Declaration of Rights, as well as by the Sixth Amendment to the Constitution of the United States. 1 Maryland Courts usually construe Article 21 in accord with the Supreme Court’s construction of the Sixth Amendment’s speedy-trial right, inasmuch as the Supreme Court’s interpretation is “very persuasive, although not necessarily controlling.” Stewart v. State, 282 Md. 557, 570 , 386 A.2d 1206 (1978).

In 1972, the Supreme Court established a four-factor test to aid in determining whether a defendant’s constitutional right to a speedy trial was violated. Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972). Those factors are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right, and (4) the prejudice to the defendant. State v. Bailey, 319 Md. 392, 409 , 572 A.2d 544 (1990).

Maryland has adopted these factors as aids to be used by courts in evaluating whether the State has violated its own speedy trial requirements. Divver v. State, 356 Md. 379, 388 , 739 A.2d 71 (1999). ⁵⁵⁶ In this case, the trial judge held a hearing concerning appellant’s motion to dismiss for lack of speedy trial. The court denied the motion. In reviewing the motions court’s denial, we accept the circuit court’s findings of facts unless clearly erroneous, Borgen v. State, 58 Md.App. 61, 75 , 472 A.2d 114 (1984), but we make our own independent constitutional appraisal.

State v. Bailey, 319 Md. at 415 , 572 A.2d 544 . As the Court of Appeals has reminded us, the review of a speedy trial motion should be “practical, not illusionary, realistic, not theoretical, and tightly prescribed, not reaching beyond the peculiar facts of the particular case.” Id. In this case, the trial court concluded that the nineteen-month delay from the date of the mandate to the commencement of the trial was of constitutional dimensions. Whether a delay is of constitutional dimensions must be decided “in light of the complexity of the case and the severity of the charges.” Dalton v. State, 87 Md.App. 673, 686 , 591 A.2d 531 (1991).

In discussing the first prong of the Barker factors, the Court of Appeals, in Glover [ v. State, 368 Md. 211 , 792 A.2d 1160 (2002) ], reasoned that “the delay that can be tolerated is dependent, at least to some degree, on the crime for which the defendant has been indicted.” Glover [ v. State ], 368 Md. [211,] 224, 792 A.2d 1160 [ (2002) ](citing Barker, 407 U.S. at 531 , 92 S.Ct. 2182 ). The Court of Appeals contrasted Divver v. State, 356 Md. 379 , 739 A.2d 71 (1999), in which appellant was being tried for driving under the influence^] and a delay of twelve months and sixteen days was held unreasonable. Notwithstanding, the fact that trial did not commence for over eighteen months is not dispositive. The Court of Appeals held, in Erbe v. State, 276 Md. 541, 547 , 350 A.2d 640 (1976), that “delay is the least conclusive of the four factors identified in Barker.” Erbe, 276 Md. at 547 [ 350 A.2d 640 ] (quoting United States v. Brown, 354 F.Supp. 1000, 1002 (E.D.Pa.1973)).

Indeed, in Barker , the delay was ⁵⁵⁷ in excess of three years, yet not held unreasonable when balanced with the other factors. Wilson v. State, 148 Md.App. 601, 632 , 814 A.2d 1 (2002). Here, the case was complex, and the charges were extremely serious ones. Nevertheless, we agree with the trial court that the delay was sufficiently protracted so as to be of constitutional dimensions.

See Epps v. State, 276 Md. 96, 111 , 345 A.2d 62 (1975)(A robbery case where a delay of one year and fourteen days was “sufficiently inordinate to constitute a ‘triggering mechanism.’ ”); Icgoren, 103 Md.App. at 423 , 653 A.2d 972 (A murder trial in which a delay of eleven months from date of mistrial to retrial was held to be “barely ... of constitutional dimension[s].”). See also Lewis v. State, 71 Md.App. 402, 417 , 526 A.2d 66 (1987)(Nineteen-and-a-half-month delay was presumptively prejudicial.). Because a nineteen-month delay is of constitutional dimensions, we must next consider the reasons for delay. In doing so, a court should assign different weight to various reasons for the delay, depending on who is at fault.

This was explained in Marks v. State, 84 Md.App. 269 , 578 A.2d 828 (1990): “A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.” Id. at 282 , 578 A.2d 828 (quoting Barker, 407 U.S. at 531 , 92 S.Ct. 2182 ). The trial judge, in making his Barker v. Wingo analysis, divided the nineteen-month delay into discrete time periods.

We shall do likewise. ⁵⁵⁸ A. The Period Between the July 10, 2000,. Mandate and the First Scheduled Trial Date on March 27, 2001 The trial court concluded that the approximately eight-and-a-half-month period that went by between the date of the mandate and the date of the first scheduled trial date was necessary for the orderly administration of justice and constituted a reasonable amount of time to allow the State and the defendant to prepare for trial. B. Period Between March 27, 2001, and July 11, 2001 On the date the trial was initially set to commence, March 27, 2001, the State asked for a postponement. The reason for the request was due to the unavailability of Jerry Manns, who had testified in the first trial that at the approximate time of the murder he was near the scene of the murder and (1) heard several gunshots; (2) saw a lone African-American male run from the murder scene, and drive away; (3) saw the African-American male return and then heard an additional shot fired; (4) saw the lone male leave once again in a small two-door car with a defective muffler.

Manns was a crucial witness for the State, because his testimony seriously undermined appellant’s defense that his wife killed the victim. ■ As a ground for the continuance, the prosecutor told the trial judge that the State had located Mr. Manns, in Ohio, only a few days previously. The State proffered that it had been unable to find Manns earlier because, although a detective had been sent to Manns’s last-known address in Maryland, family members in Maryland had been “totally uncooperative” and would not provide information about Manns’s whereabouts. According to the prosecutor’s representation, the detective discovered, only a few days before March 27, 2001, that Manns had moved to Columbus, Ohio. The prosecutor stressed that Manns’s live testimony was necessary because at the first trial the judge inadvertently failed to tape record Manns’s testimony.

Appellant’s counsel vigorously opposed the request for a continuance, but it was nevertheless granted. Trial was reset for July 11, 2001. ⁵⁵⁹ C. July 11, 2001, Postponement On the morning of July 11, 2001, the prosecutor again asked for a postponement due to the State’s inability to produce Manns for trial. The prosecutor proffered that the Baltimore City detective working on this case had contacted the Franklin County prosecutor’s office in Columbus, Ohio; a woman employee was assigned by the Columbus police to assist Maryland in obtaining Manns’s presence for trial. The woman assigned to the job repeatedly failed to return calls from the prosecutor’s office.

The prosecutor subsequently learned that the woman had been terminated and that prior to her termination she had failed to take any of the steps necessary to have Manns served in Ohio. When this problem was discovered, the State contacted a Detective Feldman from the Columbus homicide division, who located Manns at a new address. Manns was very uncooperative with Detective Feldman and said that he would not return to Maryland for trial and “would not accept any service.” Again, over the vigorous objection of appellant, the State received a postponement. Because of the necessity for the second postponement, the prosecutor offered to set the case in for September 2001, but this could not be done due to a conflict with defense counsel’s schedule.

Trial was re-set for November 5, 2001. D. Postponement of the November 5, 2001, Trial Date On November 5, 2001, both the State and the defendant were ready for trial, but a courtroom was unavailable. The case was continued for nine days. E. November 14, 2001, Postponement All parties were again available to begin trial on November 14, 2001, but another murder case was put on the schedule ahead of the subject case.

The prosecutor suggested that the trial be placed on the “move list,” which meant that the case would start any time a judge became available. Defense counsel opposed that suggested solution, however, on the grounds that unless the trial started immediately there would ⁵⁶⁰ not be enough time to complete the case before conflicts in his schedule developed. The case was reset for February 4, 2002. F. February 4, 2002, Postponement On February 4, 2002, a three-day postponement was granted due to the fact that the lead homicide investigator in the case, Frank Barlow, had retired and was on vacation until February 7.

The morning and afternoon of February 7 were devoted to the court hearing line-by-line arguments concerning what portions of the videotape of appellant’s prior trial testimony could be introduced. In the late afternoon of February 7, counsel for appellant asked that the videotape be edited “to avoid showing the jury either the judge, the prosecutor, or the defense attorney.” Counsel’s request was made in order to minimize the chance of disclosure to the jury of the fact that there had been a previous trial. The trial judge granted a continuance so that the State could, if possible, edit the videotape to “eliminate the picture of anybody except the witness.” Trial commenced on Monday, February 11, 2002. Analysis As already mentioned, the trial court ruled that the period between July 10, 2000, and March 27, 2001, was the “ordinary and usual period of time” necessary for “preparation and arrangement for trial” and was neutral.

The prosecutor who had tried the first case had become a District Court judge in the interim, and since the first trial, the original trial counsel for appellant had been disbarred. New counsel for appellant did not enter his appearance until October 16, 2000. There were voluminous trial transcripts and trial exhibits to be reviewed and numerous witnesses to be contacted and re-interviewed. Appellant does not take issue with the court’s finding that the first eight-and-a-half months of delay should not be weighed against either the State or the defense.

We agree that the first eight and one-half months of the delay were neutral. ⁵⁶¹ The period between March 27 and July 10, 2001, and between July 10 and November 5, 2001, was weighed against the State by the trial court. The court reasoned that if the delay had been caused by a “pure” witness problem, the delay in securing Mr. Manns’s presence at trial would be considered neutral. But the motions judge weighed against the State the fact that it had not exercised sufficient diligence in securing Manns’s trial testimony. In the words of the motions judge, “the conduct of the State was not egregious, but it is more serious than neutral unavailability of a witness.” The State does not take issue with the court’s finding concerning the delay between March 27 and September, 2001.

It argues, however, that the delay between September 2001 and November 27, 2001, should be considered neutral because defense counsel was offered a September trial date by the prosecutor, but the offer was not accepted due to defense counsel’s unavailability. In this regard, the State cites Wilson v. State, 148 Md.App. 601, 640 , 814 A.2d 1 (2002). Wilson , however, does not constitute authority for counting the time after September 2001 against appellant. In Wilson , appellant’s counsel, because of a prior commitment, was obliged to ask for a continuance of a trial date, which the court had set.

Unlike Wilson , appellant’s counsel never asked for a postponement of any trial date; instead, he simply made it known that a suggested (earlier) trial date was unacceptable. Nevertheless, the fact that defense counsel prevented the scheduling of an earlier trial is entitled to at least some consideration, insofar as it explains, in part, the nineteen-month delay, and it shows that the State was not intentionally trying to deprive appellant of his speedy trial right. The continuances granted on November 5, 2001, and November 14, 2001, were caused solely by the unavailability of a courtroom. The lower court weighted that delay against the State, and we agree.

The weight that should be accorded that delay, however, is minimal. See Divver, 356 Md. at 391 , 739 A.2d 71 (Overcrowded court should be weighted less heavily ⁵⁶² but nevertheless should be considered because ultimate responsibility for such circumstances rests with the State.). But see Glover v. State, 368 Md. 211, 227 , 792 A.2d 1160 (2002)(Unavailability of a judge and jury due to overcrowded docket is deemed neutral.). Additionally, the fault for the delay between November 14, 2001, and February 4, 2002, is ameliorated somewhat by the fact that on November 14, 2001, the prosecutor offered to start the case as soon as a courtroom was available after November 14, 2001.

Unfortunately, however, because of defense counsel’s busy schedule, the offer was not accepted. The one-week delay between February 4 and February 11 was not weighed by the motions judge because appellant’s motion to dismiss was heard prior to February 4, 2002. Three days .of that delay were due to the unavailability of a witness, and the remainder was occasioned by appellant’s request to edit the tape of his prior testimony. We consider the first delay against the State, and the second against the appellant, although the weight of either is de minimis as to both.

II

DEFENDANT’S ASSERTION OF HIS RIGHT TO SPEEDY TRIAL On January 5, 2001, appellant filed a motion to dismiss the indictment on speedy-trial grounds. Thereafter, he vigorously asserted his speedy-trial right. The State concedes, and we agree, that appellant, since January 5, 2001, has consistently and persistently asserted his right to a speedy trial.

III

THE PREJUDICE TO DEFENDANT In Barker , the Supreme Court said: A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pre[-] trial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit ⁵⁶³ the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his [or her] case skews the fairness of the entire system.

If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown. Barker, 407 U.S. at 532 , 92 S.Ct. 2182 .

In Icgoren, 103 Md.App. at 421-22 , 653 A.2d 972 , we said: “A problem peculiar to the Barker test is its use of the terms presumption of prejudice and actual prejudice. When there has been a lengthy pretrial delay, one of constitutional dimension, then a presumption arises that the defendant has been deprived of his right to a speedy trial; a presumption of prejudice. Once this presumption asserts itself, a balancing test must be employed which involves a weighing of four factors, one of which is actual prejudice. Actual prejudice involves a consideration of three interests the speedy trial right is meant to protect.

Whatever importance it assumes in the final outcome is a function of the facts of the particular case.” Icgoren, 103 Md.App. at 421-22 , 653 A.2d 972 (quoting Brady v. State, 291 Md. 261, 266 , 434 A.2d 574 (1981)); accord Divver, 356 Md. at 392 , 739 A.2d 71 (distinguishing presumption of prejudice that is created by the length of delay from actual prejudice). In regard to the actual prejudice factor, appellant stresses that he has been in jail since one week after the date of the murder. While factually true, the pre-trial incarceration with which we are concerned is the nineteen months between the date of the Court of Appeals mandate and the date of trial. The incarceration between September 1995 and July 10, 2000, is simply irrelevant for speedy trial purposes.

Icgoren, 103 Md.App. at 420 , 653 A.2d 972 . Although there was no testimony to this effect at the hearing on the motion to dismiss for lack of a speedy trial, ⁵⁶⁴ appellant says, in his brief, that he “had endured the anxiety and concerns that come with a life without parole sentence, which ‘hung over his head’ during his pre-trial incarceration.” No sentence “hung over” appellant’s head between July 10, 2000, and February 11, 2002. The possibility of a life sentence with no parole did, however, “hang over” appellant’s head. Even assuming, arguendo, that appellant did experience some generalized anxiety, allegations of anxiety of this type are accorded little weight.

See Wheeler v. State, 88 Md.App. 512, 525 , 596 A.2d 78 (1991) (Assertion by defendant that he suffered oppressive pre-trial incarceration and was anxious, without specifying nature of oppression or anxiety, was accorded little significance.). As we recently said in Wilson, supra: The most important factor establishing prejudice ... is the inability to prepare one’s defense. 148 Md.App. at 639 , 814 A.2d 1 . In this regard, appellant contends that because of the State’s “gross negligence,” he was denied his rights of discovery and confrontation includ[ing] his right, subject to appropriate protective order, to have independent testing performed on a weapon, particularly when the weapon is the best, arguably, the only, way to establish criminal agency in a circumstantial evidence case. This argument overlooks several facts.

First, there was no dispute at either trial that the .380 caliber gun, which the police experts tested and which was found in appellant’s car after the murder, was owned by appellant. The gun had appellant’s fingerprints on it, and appellant admitted at the first trial that he owned that weapon. It was also never disputed that DNA tests showed that the victim’s blood and tissue were on appellant’s gun when it was seized by the police about one week after the murder. And, at no time did defense counsel ever seek to examine the blood or tissue recovered, nor was there any challenge to the DNA evidence.

Thus, appellant’s gun was not linked to the murder based solely on ballistic tests. Second, prior to the first trial, appellant had ⁵⁶⁵ ample opportunity to test the gun if he seriously thought that the State’s ballistic experts were mistaken in their belief that bullets fired from his gun killed Makea Stewart. He did not avail himself of that opportunity, however. Instead, his defense at the first trial (and at the second) was that his wife used his gun to kill the victim.

Third, appellant’s argument loses sight of the fact that, in analyzing prejudice caused by delay, we look exclusively at the prejudice caused by the nineteen-month delay between the filing of the Court of Appeals mandate and trial. See Ratchford v. State, 141 Md.App. 354, 360-61 , 785 A.2d 826 (2001), and Icgoren, 103 Md.App. at 435 , 653 A.2d 972 . Prior to July 10, 2000, the police had destroyed all the shell casings they had recovered along with the bullets that were taken from the victim’s body. Therefore, prior to the time the speedy-trial clock started ticking, the evidence needed to perform the ballistic comparison had already been lost.

While it is true that appellant’s gun was destroyed by the police on October 13, 2000, which was about three months after the speedy trial “clock began ticking,” the destruction of the gun did not cause appellant prejudice because, by that time, even if the gun had not been destroyed, there would be no bullets or casings with which to perform a ballistic comparison. Thus the delay between July 10, 2000, and February 11, 2002, did not cause appellant to fail to perform any useful discovery. Moreover, no other actual prejudice was caused by the delay. As mentioned earlier, the trial judge balanced the various Barker factors, and denied appellant’s motion to dismiss the indictment on speedy-trial grounds.

In our view, the motions judge did not err. Wilson, supra, is factually analogous to the case at bar. In Wilson , there was an eighteen-month delay between the date of Ismail Wilson’s arrest and the commencement of his murder trial. Seven months of that delay (between the arrest on December 7, 1999, and the first trial date on July 6, 2000) were deemed to be neutral.

Wilson, 148 Md.App. at 628 , 814 A.2d 1 . And Wilson, like appellant, timely invoked his right to a speedy trial. Id. at 637 , 814 A.2d 1 . ⁵⁶⁶ As against Wilson , twelve months of the delay were chargeable against the State, the last four months of which were heavily charged against the State for failure to provide discovery. Id. at 640 , 814 A.2d 1 .

In Wilson , no demonstrable prejudice was shown, and therefore, we held that dismissal of the case was not warranted. Id. at 651 , 814 A.2d 1 . Nevertheless, we said in Wilson : In our view, the lack of diligence in providing counsel for Wilson and McCoy discoverable materials, including the six[-] month delay in submitting evidence for DNA testing, would warrant a dismissal of the charges against them were they able to establish demonstrable prejudice. Id. at 640 , 814 A.2d 1 .

Here, approximately ten. and one-half months of the delay are chargeable to the State (from March 27, 2001, to February 7, 2002). The seven-and-one-half-month delay (March 22—November 5, 2001), due to the State’s inability to ensure Mr. Manns’s attendance at trial, is appropriately weighed more heavily against the State than is the remainder of the delay (November 6, 2001, to February 4, 2002), which was caused by the unavailability of a judge or a courtroom. The State’s intentional failure to provide discovery in Wilson was much more egregious and weighs more heavily against the State than the State’s failure in this case to locate and subpoena Mr. Manns or make a judge and a courtroom available. Although we believe, as did the Wilson Court, that the delay in this case “would warrant dismissal of the charges” if appellant was “able to demonstrate [actual] prejudice,” here, as in Wilson , no actual prejudice was shown.

In light of the fact that there was no actual prejudice (in the sense that appellant’s defense was weakened) and considering the seriousness and complexity of the case, we hold that the motions judge did not err in denying appellant’s motion to dismiss for lack of a speedy trial. 2 ⁵⁶⁷ ISSUE 2: DENIAL OF MISTRIAL MOTIONS Prior to trial, appellant’s counsel filed a motion in limine to prohibit the State or its witnesses from communicating to the jury the fact that appellant previously had been tried or convicted or incarcerated in the Division of Corrections. This motion was granted. Appellant also asked the trial judge to preclude the State from showing a two-hour videotape of appellant’s testimony at the first trial on the grounds that it would communicate to the jury that there had been a prior trial. The trial judge denied this part of the motion in limine, but in an effort to partially ameliorate some of appellant’s concerns, he directed that “no one will expressly state [that there was] a formal trial and conviction,” citing Coffey v. State, 100 Md.App. 587 , 642 A.2d 276 (1994).

The trial judge explained that he was imposing this rule “with the understanding that everyone is seeking to avoid conveying [to] the jury the impression that there was a previous conviction.” Appellant contends that the trial court committed reversible error in allowing the jury to see the two-hour videotape. Appellant argues: ⁵⁶⁸ [T]he jury saw a courtroom, with a judge (although a different judge), a defendant (five years younger) being sworn in as a witness and testifying, a prosecutor (one African-American male now replaced by a white female and an African-American female), and a defense team (one Hispanic female now replaced by two white males). Moreover, in addition to Mr. Brown’s testimony, the two-hour videotape included questions, objections, and argument by opposing counsel, plus constant interplay with the judge. Later, in his brief, appellant continues, On the videotape, Mr. Brown was sworn in as a witness.

Even.though the clerk was not visible, the current jury— then in its ninth day of a 17-day trial and dozens of witnesses later—certainly recognized the routine. Throughout more than two hours of videotape, barely a minute elapsed that was not “peppered” with' comments from the judge, the prosecutor, and defense counsel—all different than the ones seen for the last nine days. There were questions, answers, references to prior testimony, references to the same detective who testified in this case, objections, argument, rulings on objections, moving a [d]efendant’s exhibit into evidence, and stating that Mr. Brown was currently incarcerated. Besides objecting to the showing of the videotape, appellant contends that the trial judge erred in failing to grant a mistrial based on various statements of the prosecution witnesses, which conveyed to the jury the message that there had been a previous trial in which appellant was the defendant.

Because the shell casings, bullets, and gun had been destroyed, the State found it necessary to introduce photographs of the missing items at the second trial. These photographs were sponsored by police witnesses who had testified in the first trial and were called upon to explain why the gun and other items were not being presented. In the course of presenting this testimony, one of the witnesses used the phrase “last trial” in one of his answers and another witness, after being asked when he made a change to a report, said, “I ⁵⁶⁹ made this change before[,] I think[,] the first trial----” Appellant’s counsel made a motion for mistrial immediately after each of the witnesses uttered the forbidden phrases “last trial” and “first trial.” The motions were denied. Additionally, in explaining the use of the photographs, various witnesses used, in the course of their testimony, the phrases “in court,” “introduced into evidence,” and “in a proceeding [that has been] concluded.” Appellant’s counsel made various motions for mistrial in regard to these answers also, on the grounds that the answers “basically told the jury that there was a prior trial in this case.... ” In this appeal, the central thread that runs through appellant’s argument concerning the various mistrial motions, is that a criminal defendant is entitled to a mistrial any time the jury learns that the defendant presently on trial has previously stood trial for the same offense.

In support of that argument, appellant places primary reliance upon Coffey v. State, supra.