Clark v. State

HARRELL, Judge. On 7 October 1982, George Wilker and Lurty Wood were murdered in the course of an attempted robbery at a bar in Baltimore County. Fifteen years later, Jack D. Clark, Petitioner, was arrested and charged with the crimes. In the Circuit Court for Baltimore County, a jury convicted Petitioner of two counts of first degree felony murder, one count of attempted armed robbery with a deadly weapon, and one count of the use of a handgun in the commission of a crime of violence.

The trial judge sentenced him to life imprisonment and life concurrent for the felony murders, twenty years concurrent for the attempted robbery with a deadly weapon, and twenty years concurrent(the first five to be served without the possibility of parole) for the use of a handgun in the commission of a crime of violence. On appeal, the Court of Special Appeals, in an unreported decision, affirmed. We granted Petitioner’s petition for writ of certiorari, Clark v. State, 362 Md. 34 , 762 A.2d 968 (2000), to address the following questions: 1. Where the fifteen year pre-indictment delay caused Petitioner conceded and substantial actual prejudice to the presentation of his defense, could his due process claim be defeated because he did not prove that the State purposefully delayed so as to gain a tactical advantage? 2.

Where trial was held sixteen years after the crimes occurred, was it error to preclude Petitioner from questioning the State’s star witness about an intervening, injury which caused memory problems? ⁶¹⁵ I. On 7 October 1982, at approximately 5:80 a.m., George Wilker and Lurty Wood were shot to death during the course of a robbery attempt at a bar called the Alcove, located on Pulaski Highway in Baltimore County. The crimes were investigated by the Baltimore County Police. Detective Capel was the chief investigator. Certain interviewed witnesses reported seeing four suspicious men, one of whom wore a red bandana around his neck, in the bar the night before the murders.

Other witnesses reported speaking with four men, one of whom displayed a gun, in the parking lot of the bar the night before the murders. The police also questioned three eyewitnesses to the attempted robbery. Two of the eyewitnesses, George Barnstorf, the bar owner, and a Mr. Trotter, saw a man, wearing a bandana over his mouth, with one of the victims just before the shooting. A third eyewitness, a Mr. Moog, told police he saw two white males beating one of the victims before that victim was shot.

The police focused their initial investigation on four suspects — Petitioner, Julius (Bo) Stallings, Chadwick Gregory Grimes (Chad), and Charles Michael Grimes (Michael). Photo arrays, including pictures of Petitioner, Chad Grimes, and Michael Grimes, were shown to Barnstorf and Trotter. Neither was able to make an identification. 1 There is no record of photographs being shown to Moog. Also during the initial investigation, a red bandana was found near the point of entry the perpetrators used to enter the bar.

Two hairs were found on the bandana. These two hairs, plus hair samples from Chad and Michael Grimes, were sent to the FBI for analysis in October 1982. One hair was consistent with that of Chad Grimes’s sample. The other hair was inconsistent with both of the samples supplied by Chad and Michael Grimes. ⁶¹⁶ Detective Capel questioned each of the four suspects and thereafter completed an Application for a Statement of Charges for each of them.

Although the police believed they had enough evidence to charge the four suspects, they questioned whether they had sufficient evidence at this time for the State to mount a successful prosecution. Thus, the Applications were never submitted to a court and the case remained unsolved and dormant in police homicide files from 1986 until 1996. On 16 September 1998, at the pretrial motion to dismiss hearing in Petitioner’s prosecution, Detective Phillip Marll, who started in the homicide division on 15 September 1986, but did not familiarize himself with the Alcove bar murders case until sometime in 1996, testified regarding the dormancy of this case: [PETITIONER’S TRIAL ATTORNEY]: Is there a reason why a double homicide case would not be worked for a period of approximately ten years, sir? [MARLL]: The only answer to that, I think in Baltimore County, going back to the early '50s, we have about one hundred eighty open homicide cases. You take that and you couple it with a caseload of active cases that are coming in, and speaking from '86 on, thirty-five to forty-five murders per year, that would be why we wouldn’t generally be able to take some time in going back over old cases.

Within the last few years the old cases had become something of a[n] interest to go back on and work on, but it’s nothing — we don’t have, if you will, an old case squad. There’s nothing that compels us to go back and work the old cases. And there was nothing in '86, actually through '96, that forced us to go back and work old cases. So the case would be sitting back there.

It’s not closed. If any information came in on it, somebody would have grabbed up on it and ran with it. So this case, along with the other hundred seventy, hundred eighty other cases that were sitting back there ⁶¹⁷ were just waiting for a matter of a phone call from '86 to '96,1 would say. Detective Marll, with his partner, Detective Tincher, became inspired to re-investigate the murders as the result of driving by the Alcove Bar while it was being torn down in 1996.

Seeing the demolition, they “both commented, T wonder what happened with the double homicide that occurred there.’ ” Curiosity piqued, they pulled the case file. After examining the file, Detective Marll decided to pursue it further. He admitted, however, that in 1996 the case was a “back-burner” issue that he and his partner worked on between their active cases, as time permitted. The detectives began the re-investigation by updating information in the file.

They shortly learned that two of the eyewitnesses had died, Barnstorf in 1985 and Trotter in 1995, and that Bo Stallings, one of the four original suspects, died in 1989. Detective Marll focused his investigation on Chad Grimes because of the evidence that it may have been his hair that was found in 1982 on the bandana. He was forced to abandon this avenue, however, when Chad Grimes was murdered in Baltimore City in January 1997. Marll then focused on Chad’s brother, Michael Grimes. 2 Believing there was sufficient probable cause, Marll obtained an arrest warrant for the surviving Grimes brother based on essentially the same facts used by Detective Capel in the unfiled 1982 Application for Statement of Charges. 3 When questioned in 1982, Michael Grimes had denied knowledge of the crimes.

When questioned in 1998 by Detec ⁶¹⁸ tives Marll and Tichner, Michael Grimes claimed to have lied in 1982 and implicated himself and Petitioner in the crimes. In addition, he agreed to plead guilty and to testify against Petitioner. Petitioner was arrested at his home in North Carolina the day after Michael Grimes was questioned. Petitioner’s trial was scheduled for 15 October 1998.

Prior to trial, the State sought additional DNA testing of the red bandana, which remained in police custody. On 8 October 1998, the trial date was postponed to allow time for the DNA testing to be completed. The State was permitted to have an expert at Cellmark Laboratories perform polymerase chain reaction (PCR) DNA testing on a spot of saliva found on the bandana. The results of the testing supplied a profile from which Petitioner could not be excluded.

This DNA evidence was introduced at trial. Also before trial, Petitioner’s trial attorney filed, on 9 September 1998, a motion to dismiss, alleging that the preindictment delay deprived Petitioner of due process. Petitioner’s trial attorney proffered several ways in which the defense had been prejudiced by the delay of fifteen years, including the death of an alibi witness, the death and/or other loss of potentially exonerating eyewitnesses, and the loss of evidence tending to incriminate one of the other suspects. Specifically, as Petitioner’s trial counsel expounded at the hearing on the motion to dismiss, Jean Rinesman, Petitioner’s claimed alibi witness, had died; eyewitnesses Barnstorf and Trotter had died; and the third eyewitness, Moog, could not be located.

Petitioner’s defense attorney argued that these circumstances prejudiced Petitioner’s case: Back when, I guess, when the case was hot, so as to speak, each [4] of these men were shown photo arrays on separate ⁶¹⁹ days. Each photo array contained a picture of [Petitioner]. And there was no identification made. I think I can probably get around that by calling people to the stand that compiled the photographic array and ask them certain questions that don’t obviously call for a hearsay response.

But what I am losing is something that I can’t prove because these witnesses are dead, and that’s the opportunity to bring these gentlemen into court and perhaps have them get a good look at [Petitioner] and say, “That’s not the guy I saw do all these horrible things that night.” Not just say, “I don’t know, I can’t say if it is him or if it’s not him,” but actually the potential would exist, your Honor, that they would say or could say, “I’m certain that that’s not the person that was observed.” That opportunity is gone. Additionally, Petitioner’s attorney noted, as mentioned supra, two of the four original suspects were dead. One of the suspects, Bo Stallings, apparently previously admitted to a man named Mike Miller that he, Stallings, was involved in the murders; both Stallings and Miller were dead, however, before Petitioner was charged. The prosecutor expressly conceded that there had been prejudice to Petitioner’s defense during the fifteen year lapse before charges were filed: I mean, we will concede there’s prejudice with regard to Barnstorf, Trotter, Miller, and all of the significant points he brought up as well as he argues.

We believe we have also been prejudiced because of the delay as well. And we believed the reason he called Detective Marll is so they could determine the justification for the delay. The State argued, however, citing Smallwood v. State, 51 Md.App. 463 , 443 A.2d 1003 (1982), that dismissal was not mandated because the defense failed to prove that the State purposefully delayed indicting Clark to gain a tactical advantage. The trial judge denied Petitioner’s motion to dismiss.

The judge reasoned: ⁶²⁰ The problem in this case — and the State concedes that there is prejudice with regard to the Defense in this case, and likewise, the Court believes that because of the — some witnesses are deceased at this point that there is some prejudice that has been attached to the State, because they are in a difficult position as well. The question is whether or not the government’s delay violates what is, quote, in the fundamental conception of justice and the community sense of fair play and decency. I mean, the Court must weigh the> facts, what the allegations are in this case, that the Defendant did in fact commit two murders in the course of an armed robbery. That is obviously an extremely serious case.

The testimony is clear that the State, back at the time the crimes occurred, although they had some probable cause to believe that this Defendant and others were responsible for the robbery and the crimes, they did not have sufficient evidence with which to bring indictments and to proceed before a jury or judge to present .evidence which they believe could convict beyond a reasonable doubt and to a moral certainty. There was a delay. The detectives in this case, who have been longtime homicide detectives in Baltimore County, as Detective Marll points out, by happenstance wondered what happened to the double murders at the Alcove Bar whenever they noticed it being demolished one particular day while driving down the road. They pull the case back out and attempt to resurrect what had transpired and to pursue what leads they had.

Now, there wasn’t DNA testing back in the early '80’s, at the time this episode occurred, and now have pursued other means of investigation. The difference between what this case is and the Barker [5] case that [Defense Counsel] cites to the Court is crystal ⁶²¹ clear. In the Barker case, that oral argument the counsel for the State of North Carolina, presumably the Attorney General’s Office or someone has in here unequivocally and candidly stated that North Carolina’s justification for the pre-indictment delay was mere convenience and that the court conceded, quote, that North Carolina was negligent in not prosecuting the defendant earlier, end of quote. There is absolutely no such circumstance in this particular case.

It’s clear to the Court that the State could not prosecute the Defendant back when the initial investigation took place. And balancing the fundamental conception of justice and the community sense of fair play and decency, the Court determines that the — that it would be improper for me to dismiss the case for pre-indictment delay. Accordingly, the motion to dismiss that’s been filed is hereby denied. On 14 April 1999, at Petitioner’s trial and before the direct testimony of Michael Grimes, the trial court seemed inclined to allow Petitioner’s trial attorney to ask — in a “yes or no” question format — Michael Grimes whether he had filed a Maryland Worker’s Compensation claim alleging some type of psychiatric injury and disability.

In this context, it seemed clear that defense counsel intended to probe further whether the reported 1991 work-related injury affected Grimes’s memory. The trial court, however, also ruled in limine that the defense could not use documents relating to Grimes’s worker’s compensation claim for impeachment purposes. Petitioner’s trial attorney argued that the witness’s ability to remember was an important issue because the witness would be testifying about events that transpired sixteen years earlier. The trial court ruled that there was nothing in the workers’ compensation documents to denigrate Grimes’s ability to recall the specific events at issue and that the memory problems reported by Grimes in 1991 did not relate to his veracity and credibility at the time he witnessed the 1982 events.

The trial ⁶²² court ruled that evidence suggesting psychiatric problems resulting from the work-related injury occurring subsequent to the 1982 events was inadmissible. The jury ultimately convicted Petitioner. Clark appealed to the Court of Special Appeals claiming, inter alia, that he was entitled to dismissal of the charges due to the long preindictment delay, or that at least he was entitled to a new trial because the trial judge improperly limited his inquiry regarding the state of Michael Grimes’s ability to recall accurately the 1982 events to which he testified. The Court of Special Appeals affirmed, in an unreported opinion, the Circuit Court’s judgments.

The intermediate appellate court, relying on Smallwood v. State, 51 Md.App. 463 , 443 A.2d 1003 (1982), employed a two “pronged” test to determine whether Petitioner’s right to a fair trial was prejudiced improperly by the pre-indictment delay of fifteen years. Under this test, one seeking dismissal for a pre-indictment delay must prove “(1) actual prejudice to the accused, and (2) that the delay was purposefully made by the State to gain a tactical advantage over the accused.” (Citing Smallwood, 51 Md.App. at 472 , 443 A.2d at 1008 ). The Court of Special Appeals noted, as to the first element of the test, that it had been conceded that Petitioner was prejudiced by the “significant lapse in time between the offenses committed and the criminal trial” due to the loss of a potential alibi witness, a potential exonerating witness, two- eyewitnesses, and two alleged coconspirators. The court reasoned, as to the second element, that “[m]ere delay ... absent an ulterior motive, does not necessarily deprive a defendant of due process” and that, in Petitioner’s case, “there was no showing that the delay was an intentional, calculated tactic utilized by the State to obtain an advantage over [Petitioner] at trial.” With regard to the question of whether Petitioner should have been permitted to inquire, during cross-examination of the State’s witness, Michael Grimes, into his medical and psychiatric history that included evidence of memory problems, reported in 1992, caused by an injury occurring in 1991, ⁶²³ the court answered in the negative.

The Court of Special Appeals explained that the trial court did not abuse its discretion in not permitting this cross-examination because “Grimes’s 1992 psychiatric problems were not a proper subject of inquiry because they did not relate to his perception at the time of the criminal incident.” In reaching this conclusion, the court stated: It is not proper to ask the witness, “Are you under the care of a psychiatrist?” People receive psychiatric treatment for many reasons that have nothing to do with any component of credibility. On the other hand, the question, “Were you suffering from schizophrenia at the time you witnessed this incident?” is not an unfair attack upon the witness’s character for veracity. If the witness was indeed schizophrenic at the time of the incident, his ability to observe accurately and to retain the observation correctly may have been so impaired that his present testimony is incorrect even though he is doing his very best to supply truthful information. (Quoting Joseph P. Murphy, Jr., Maryland Evidence Handbook § 1302(D), at 506 (3d ed.1999) (citations omitted)).

We agree with the Court of Special Appeals’s holding with regard to whether Petitioner was denied due process due to the fifteen year pre-indictment delay. We disagree, however, with its holding that Petitioner should not have been permitted to cross-examine Michael Grimes relating the possibility of memory problems.

II

Pre-indictment Delay Petitioner argues that the Court of Special Appeals applied the wrong test in its analysis of the question of whether due process was violated due to the pre-indictment delay. He contends instead that we should adopt a test that balances prejudice to the defense against the State’s reasons for the delay. In so arguing, Petitioner submits that what the test should be represents an open question for Maryland, as there is no controlling authority from the U.S. Supreme Court or ⁶²⁴ this Court. Petitioner contends that the better-reasoned, persuasive authority employs a balancing test.

Petitioner concludes that applying a balancing test to the record in the present case leads to the electable conclusion that Petitioner was denied due process. A. What has the U.S. Supreme Court said? In United States v. Marion, 404 U.S. 307 , 92 S.Ct. 455 , 30 L.Ed.2d 468 (1971), the U.S. Supreme Court was asked to consider whether the dismissal “of a federal indictment was constitutionally required by reason of a period of three years between the occurrence of the alleged criminal acts and the filing of the indictment.” Marion, 404 U.S. at 308 , 92 S.Ct. at 457 , 30 L.Ed.2d 468 . In Marion , the defendants argued that their Sixth Amendment right to a speedy trial 6 had been violated by a three year pre-indictment delay and that the delay was “so substantial and inherently prejudicial that the Sixth Amendment required the dismissal of the indictment.” Marion, 404 U.S. at 313 , 92 S.Ct. at 459 , 30 L.Ed.2d 468 .

The Court determined that the Sixth Amendment did not apply because the Sixth Amendment speedy trial provision does not become engaged until indictment or until “the putative defendant in some way becomes ‘an accused.’ ” Id. The Court reasoned: The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.... ” On its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been “accused” in the course of prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time. The Amendment would appear to guarantee ⁶²⁵ to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him. “The essential ingredient is orderly expedition and not mere speed.” Id.

(alteration in original) (quoting Smith v. United States, 360 U.S. 1, 10 , 79 S.Ct. 991 , 3 L.Ed.2d 1041 (1971)). The Court acknowledged that inordinate delay among arrest, indictment, and trial may impair a defendant’s defense, but that “the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense.” Marion, 404 U.S. at 320 , 92 S.Ct. at 462 , 30 L.Ed.2d 468 . Thus, the Sixth Amendment speedy trial provision does not apply to the time preceding indictment. 7 Marion, 404 U.S. at 321 , 92 S.Ct. at 463-64 , 30 L.Ed.2d 468 (“But we decline to extend the reach of the amendment to the period prior to arrest.”). The Court expounded: Until ... [indictment] occurs, a citizen suffers no restraints on his liberty and is not subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer.

Passage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and ⁶²⁶ otherwise with his ability to defend himself. But this possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context. Possible prejudice is inherent in any delay, however short; it may also weaken the Government’s case. Marion, 404 U.S. at 321-22 , 92 S.Ct. at 463-64 , 30 L.Ed.2d 468 (footnotes omitted).

The Supreme Court envisioned the primary protection against the presumption of prejudice that may arise from extended pre-indictment delay to be the applicable statute of limitations. 8 Marion, 404 U.S. at 322 , 92 S.Ct. at 464 , 30 L.Ed.2d 468 (“As we said in United States v. Ewell, [ 383 U.S. 116, 122 , 86 S.Ct. 773 , 15 L.Ed.2d 627 (1966)], ‘the applicable statute of limitations ... is ... the primary guarantee against bringing overly stale criminal charges.’ ” (second and third alterations in original)). Because the appellees in Marion based their argument on presumed prejudice inherent in the delay of three years between the crime and the filing of the indictment, the Court noted that it need go no further in its discussion “for the indictment was the first official act designating [the defendants] as accused individuals and that event occurred within the statute of limitations;” mindful, however, that the case was being remanded for further proceeding, the Court added the following pertinent comments: [S]ince a criminal trial is the likely consequence of our judgment and since appellees may claim actual prejudice to their defense, it is appropriate to note here that the statute of limitations does not fully define the appellees’ rights with respect to the events occurring prior to indictment. Thus, the Government concedes that the Due Process Clause of the ⁶²⁷ Fifth Amendment [9] would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. Cf.

Brady v. Maryland, 373 U.S. 83 , [ 83 S.Ct. 1194 , 10 L.Ed.2d 215 ] (1963); Napue v. Illinois, 360 U.S. 264 [ 79 S.Ct. 1173 , 3 L.Ed.2d 1217 ] (1959). However, we need not and could not now, determine when and in what circumstances actual prejudice resulting from prv-accusation delays requires the dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution. To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case.

It would be unwise at this juncture to attempt to forecast our decision in such cases. Marion, 404 U.S. at 324-25 , 92 S.Ct. at 465-66 , 30 L.Ed.2d 468 (emphasis added) (internal footnotes omitted). The Court concluded: [Defendants] rely solely on the real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence be lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that [defendants] cannot receive a fair trial and to therefore justify the dismissal of the indictment.

Marion, 404 U.S. at 325-26 , 92 S.Ct. at 466 , 30 L.Ed.2d 468 . Five years after Marion, the Court amplified its dicta in Marion regarding pre-indictment delay in United States v. Lovasco, 431 U.S. 783 , 97 S.Ct. 2044 , 52 L.Ed.2d 752 (1977). 10 ⁶²⁸ In Lovasco , which involved approximately an eighteen month delay between when the alleged crime occurred and when the indictment was filed, the Court considered the circumstances in which the U.S. Constitution may require an indictment to be dismissed due to delay in the obtention of the indictment. Lovasco, 431 U.S. at 784 , 97 S.Ct. at 2046 , 52 L.Ed.2d 752 . The Court began by reiterating that Manon had determined: (1) that the Speedy Trial Clause of the Sixth Amendment does not apply to pre-indictment delay; (2) that statutes of limitations “provide the primary guarantee against bringing overly stale criminal charges”; and, (3) that a statute of limitations does not define fully a defendant’s rights prior to indictment and, thus, the Due Process Clause plays a limited role “in protecting against oppressive delay.” Lovasco, 431 U.S. at 788-89 , 97 S.Ct. at 2048 , 52 L.Ed.2d 752 (internal quotation marks omitted) (quoting Marion, 404 U.S. at 320 n. 8, 324, 322, 92 S.Ct. at 460 n. 8, 465, 464, 30 L.Ed.2d 468 ).

The Court rejected Lovasco’s argument that Manon endorses that “due process bars prosecution whenever a defendant suffers prejudice as a result of pre-indictment delay.” Lovasco, 431 U.S. at 789 , 97 S.Ct. at 2048 , 52 L.Ed.2d 752 (emphasis added). The Court explained that Marion “establishes only that proof of actual prejudice makes a due process claim concrete and ripe for adjudication, not that it makes the claim automatically valid.” Lovasco, 431 U.S. at 789 , 97 S.Ct. ⁶²⁹ at 2048, 52 L.Ed.2d 752 . (referring to Marion, 404 U.S. at 324-25, 322 , 92 S.Ct. at 464-65 , 30 L.Ed.2d 468 ). The Court reiterated a two element test for evaluating pre-indictment delay: “Manon makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” Lovasco, 431 U.S. at 790 , 97 S.Ct. at 2048-49 , 52 L.Ed.2d 752 (emphasis added).

Rejecting the notion that there was a constitutional right to have charges filed with any expediency, 11 the Court provided some insight into evaluating the reasons for the delay in the context of the Due Process Clause: [T]he Due Process Clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor’s judgment as to when to seek an indictment. Judges are not free, in defining “due process,” to impose on law enforcement officials our “personal and private notions” of fairness and to “disregard the limits that bind judges in their judicial function.” ... Our task is more circumscribed. We are to determine only whether the action ⁶³⁰ complained of — here, compelling [defendant] to stand trial after the Government delayed indictment to investigate further — violates those “fundamental conceptions of justice which lie at the base of our civil and political institutions,” ... and which define “the community’s sense of fair play and decency.” Lovasco, 431 U.S. at 790 , 97 S.Ct. at 2048-49 , 52 L.Ed.2d 752 (citations omitted).

The Court then reiterated, as it had pronounced in Manon, that “investigative delay is fundamentally unlike delay undertaken by the Government solely ‘to gain tactical advantage over the accused.’ ” Lovasco, 431 U.S. at 795 , 97 S.Ct. at 2051 , 52 L.Ed.2d 752 (quoting Marion, 404 U.S. at 324 , 92 S.Ct. at 465 , 30 L.Ed.2d 468 ). The Court stated that “to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time.” Lovasco, 431 U.S. at 795-96 , 97 S.Ct. at 2051-52 , 52 L.Ed.2d 752 . In so concluding, the Court reasoned: Rather than deviating from elementary standards of ‘fair play and decency,’ a prosecutor abides by them if he refuses to seek indictments until he is completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt. Penalizing prosecutors who defer action for these reasons would subordinate the goal of ‘orderly expedition’ to that of ‘mere speed,’....

This the Due Process Clause does not require. Lovasco, 431 U.S. at 795-96 , 97 S.Ct. at 2051 , 52 L.Ed.2d 752 (citations omitted). Therefore, to establish a federal due process violation, a defendant must show that the pre-indictment delay caused him actual, substantial prejudice and that the delay was the product of a deliberate act by the government designed to gain a tactical advantage. The Court again stopped short of “determining in the abstract the circumstances in which preaccusation delay would require dismissing prosecutions.” 12 Lovasco, 431 U.S. at 796 , 97 S.Ct. at 2052 , 52 ⁶³¹ L.Ed.2d 752 (citation omitted); see also supra note 10.

Since Marion and Lovasco , the Court merely has reiterated its test for determining a due process violation with regard to pre-indictment delay. In United States v. Gouveia, 467 U.S. 180, 192 , 104 S.Ct. 2292, 2299 , 81 L.Ed.2d 146 (1984), the Court stated that “the Fifth Amendment requires the dismissal of an indictment, even if it is brought within the statute of limitations, if the defendant can prove that the Government’s delay in bringing the indictment was a deliberate device to gain an advantage over him and that it caused him prejudice in presenting the defense.” Four years later, in Arizona v. Youngblood, 488 U.S. 51, 57 , 109 S.Ct. 333, 337 , 102 L.Ed.2d 281 (1988), the Court noted that in Marion it had required actual prejudice to the defense and a showing that the Government intentionally delayed indictment to gain some tactical advantage or to harass. B. What have the Lower Federal Courts Said? Petitioner would have us believe that the U.S. Supreme Court has not established a two element test for pre-indictment delay, and thus the Court of Special Appeals incorrectly, initially in State v. Hamilton, 14 Md.App. 582 , 287 A.2d 791 (1972), relied on Marion in formulating a two part test with two mandatory requirements, rather than a test that balances the two elements against each other.

Petitioner argues that the proper test is a balancing test — balancing the prejudice to the defendant caused by the delay against the State’s reasons for the delay. Petitioner finds succor for his view in the opinions of a minority of U.S. Circuit Courts of Appeal. Petitioner believes that it is this minority view that correctly interprets the U.S. Supreme Court’s decisions in Marion and Lovasco . In making his argument, Petitioner directs our attention to the following from a law review article: ⁶³² In United States v. Marion, the Supreme Court accepted in dictum the government’s concession that intentional prosecutorial delay transgresses due process strictures when the delay is undertaken for the purpose of gaining tactical advantage over a defendant who thereby suffers prejudice.

The precise language of the portion of the opinion discussing intentional tactical delay indicates that the Court was not describing the standard for due process violations in this context. Because the appellee had claimed neither actual prejudice nor intentional delay, the Court expressly declined to elaborate a standard. Instead, it provided an illustration of one egregious situation that such a standard would likely proscribe. In other words, the Court was establishing the dice process ceiling to the problem.

Several circuits, however, have fixed the ceiling and the floor in identical locations, requiring both actual prejudice and intentional tactical delay as the minimum showing for a due process violation. Petitioner’s Br. at 21 (alterations in original) (quoting Phyllis Goldfarb, When Judges Abandon Analogy: The Problem of Delay in Commencing Criminal Prosecutions, 31 Wm. & Mary L.Rev. 622-23 (1990)). Petitioner primarily relies on Fourth and Ninth Circuit cases, 13 which clearly represent the minority view adopting a balancing test. The Ninth Circuit has explained the appropriate balancing test as the following: Pre-indictment delay that results from negligence or worse may violate due process.

See United States v. Swacker, 628 F.2d 1250 , 1254 n. 5 (9th Cir.1980)____Whether due process has been violated is decided under a balancing test and ‘if mere negligent conduct by the prosecutors is asserted, then obviously the delay and/or prejudice suffered by the defendant will have to be greater.’ United States v. Moran, 759 ⁶³³ F.2d 777, 782 (9th Cir.1985) (as amended). The defendant must show actual prejudice from the delay, and the court must balance the length of the delay with the reasons for the delay. United States v. Ross, 123 F.3d 1181, 1184-85 (9th Cir.1997) (emphasis added), cert. denied, 522 U.S. 1066 , 118 S.Ct. 733 , 139 L.Ed.2d 670 (1998). Similarly, the Fourth Circuit, in Howell v. Barker, 904 F.2d 889 (4th Cir.1990), cert. denied, 498 U.S. 1016 , 111 S.Ct. 590 , 112 L.Ed.2d 595 , stated: Applying these principles of due process to the case at hand, we cannot agree with the position taken by the State of North Carolina and those other circuits which have held that a defendant, in addition to establishing prejudice, must also prove improper prosecutorial motive before securing a due process violation.

Taking this position to its logical conclusion would mean that no matter how egregious the prejudice to a defendant, and no matter how long the preindictment delay, if a defendant cannot prove improper prosecutorial motive, then no due process violation has occurred. This conclusion on its face, would violate fundamental conceptions of justice, as well as the community’s sense of fair play. Moreover, this conclusion does not contemplate the difficulty defendants either have encountered or will encounter in attempting to prove improper prosecutorial motive. Barker, 904 F.2d at 895 .

The Fourth Circuit concluded that the “better position” is to put the burden on the defendant to prove actual prejudice. Assuming the defendant can establish actual prejudice, then the court must balance the defendant’s prejudice against the government’s justification for delay.... ‘The basic inquiry then becomes whether the government’s action in prosecuting after substantial delay violates fundamental conceptions of justice or the community’s sense of fair play and decency.’ ⁶³⁴ Id. (emphasis added) (citations omitted) (internal quotation marks omitted). We observe, however, that the Fourth Circuit, in Jones v. Angelone, Dir.

Dept. of Corr., Virginia, 94 F.3d 900 (4th Cir.1996), has cast some doubt on the continuing vitality of Howell v. Barker, supra. In Jones , the court was presented with an argument calling for the overruling of Howell based on the .theory that the balancing test employed in Howell was “irreconcilable” with a number of Supreme Court cases, including United States v. Gouveia, supra, in the which the Court explained that “to establish a due process violation based upon pre-indictment delay, a defendant must show not only actual prejudice, but also that the government deliberately caused the delay for tactical gain.” Jones, 94 F.3d at 904-05 (citations omitted). The court acknowledged that every other circuit, other than the Ninth Circuit, had, on the authority of Gouveia^ Marion, Lovasco, and Youngblood , adopted the two part test for evaluating pre-indictment delay. The Fourth Circuit explained, however, that, even under the two part test, Jones could not demonstrate a due process violation as he had not presented any evidence the government delayed indictment to gain a tactical advantage or acted in any other way in bad faith.

Jones, 94 F.3d at 905 . The panel of the Fourth Circuit, in Jones , in any event, recognized that it could not overrule the decision of the panel that decided Howell ; that task being left to the court sitting en banc. 14 Id. ⁶³⁵ Indeed, the majority of the Federal Circuits interpret Marion and Lovasco differently than Petitioner and the Fourth and Ninth Circuits. 15 The majority of the circuits, expressly citing Marion and Lovasco , clearly employ a two element due process test for evaluating pre-indictment delay, requiring a showing of actual prejudice to the defense as well as a showing that the delay was an intentional device employed by the government to gain a tactical advantage. For instance, the U.S. Court of Appeals for the First Circuit in United States v. Kenrick, 221 F.3d 19, 33 (1st Cir.2000), cert, denied, 531 U.S. 961 , 121 S.Ct. 387 , 148 L.Ed.2d 299 , stated that to succeed on a due process claim with regard to pre-indictment delay the defendant must show “that the preindictment delay caused him actual, substantial prejudice [and] that the prosecution orchestrated the delay to gain a tactical advantage over him.” Id. (internal quotation marks omitted) (alteration in original) (quoting United States v. Stokes, 124 ⁶³⁶ F.3d 39, 47 (1st Cir.1997)) (citing Marion, 404 U.S. at 324 , 92 S.Ct. 455 , 30 L.Ed.2d 468 ).

The Second Circuit, presented with a due process claim in the context of a four year delay between the alleged crime and the indictment, stated that “[a] defendant bears the ‘heavy burden’ of proving both that he suffered actual prejudice because of the alleged pre-indictment delay and that such delay was a course intentionally pursued by the government for an improper purpose.” United States v. Cornielle, 171 F.3d 748, 752 (2d Cir.1999) (emphasis added) (citing United States v. Scarpa, 913 F.2d 993, 1014 (2d Cir.1990), cert. denied, 498 U.S. 816 , 111 S.Ct. 57 , 112 L.Ed.2d 32 ; United States v. Hoo, 825 F.2d 667, 671 (2d Cir.1987), cert. denied, 484 U.S. 1035 , 108 S.Ct. 742 , 98 L.Ed.2d 777 (1988)) (discussing Marion, 404 U.S. at 324 , 92 S.Ct. 455 , 30 L.Ed.2d 468 ; Lovasco, 431 U.S. at 795 , 97 S.Ct. 2044 , 52 L.Ed.2d 752 ),. The Third, Sixth, Eight, Tenth, and Eleventh Circuits identify and employ the same two part test as succinctly as the Second Circuit. See United States v. Ismaili, 828 F.2d 153, 167-68 (3rd Cir.1987) (citing Marion, 404 U.S. at 325 , 92 S.Ct. 455 , 30 L.Ed.2d 468 ; Lovasco, 431 U.S. at 789-90 , 97 S.Ct. 2044 , 52 L.Ed.2d 752 ), cert. denied, 485 U.S. 935 , 108 S.Ct. 1110 , 99 L.Ed.2d 271 (1988); United States v. Rogers, 118 F.3d 466, 476 (6th Cir.1997) (quoting United States v. Brown, 959 F.2d 63, 66 (6th Cir.1992)) (citing United States v. Atisha, 804 F.2d 920, 928 (6th Cir.1986); Lovasco, 431 U.S. at 786 , 97 S.Ct. 2044 , 52 L.Ed.2d 752 ), cert. denied, 479 U.S. 1067 , 107 S.Ct. 955 , 93 L.Ed.2d 1003 (1987); United States v. Sturdy, 207 F.3d 448, 451-52 (8th Cir.2000) (citing United States v. Bartlett, 794 F.2d 1285, 1289 (8th Cir.1986), cert. denied, 479 U.S. 934 , 107 S.Ct. 409 , 93 L.Ed.2d 361 ); United States v. Trammell, 133 F.3d 1343, 1351 (10th Cir.1998) (citing Lovasco, 431 U.S. at 789 , 97 S.Ct. 2044 , 52 L.Ed.2d 752 ; United States v. Johnson, 120 F.3d 1107, 1110 (10th Cir.1997)); United States v. Foxman, 87 F.3d 1220, 1222 (11th Cir.1996) (citing Marion, 404 U.S. at 323-27 , 92 S.Ct. 455 , 30 L.Ed.2d 468 ; Lovasco, 431 U.S. at 788-91 , 97 S.Ct. 2044 , 52 L.Ed.2d 752 ). ⁶³⁷ The Fifth Circuit grappled at somewhat greater length than its sister circuits "with the balancing test/two part test choice, but settled on the two part test. In United States v. Crouch, 84 F.3d 1497 (5th Cir.1996) (en banc), cert. denied, 519 U.S. 1076 , 117 S.Ct. 736 , 136 L.Ed.2d 676 (1997), the Fifth Circuit noted that in at least two prior opinions it had discussed a test for pre-indictment delay that depended upon “the due process balancing between the extent of the actual prejudice and the governmental interests at stake.” Crouch, 84 F.3d at 1509 (internal quotation marks omitted) (quoting United States v. Brand, 556 F.2d 1312 , 1317 n. 17 (5th Cir.1977), cert. denied, 434 U.S. 1063 , 98 S.Ct. 1237 , 55 L.Ed.2d 763 (1978)).

The court then criticized this balancing test and stated that, although neither “Marion nor Lovasco is crystal clear on this issue, and each opinion contains some language that can give comfort to either view, ... the better reading of these opinions is that the Supreme Court ... has refused to recognize a claim of pre-indictment delay absent some bad faith or improper purpose on the part of the prosecution.” Crouch, 84 F.3d at 1510 . The Fifth Circuit concluded that the only “due process violation specifically recognized is where the delay not only ‘caused substantial prejudice,’ but also ‘was an intentional device to gain tactical advantage.’ ” Id. (quoting Marion, 404 U.S. 307 , 92 S.Ct. 455 , 30 L.Ed.2d 468 ). 16 The Seventh Circuit underwent a similar analytical metamorphosis with like result. 17 ⁶³⁸ The majority of U.S. Courts of Appeals have embraced the two part test because the two part test, in their view, adequately protects due process, while the balancing test falls short of the mark. The Fifth Circuit stated the inherent problems with the balancing test: [W]hat [the balancing test] seeks to do is to compare the incomparable.

The items to be placed on either side of the balance (imprecise in themselves) are wholly different from each other and have no possible common denominator that ⁶³⁹ would allow determination of which “weighs’ the most. Not only is there no scale or conversion table to tell us whether eighty percent of minimally adequate prosecutorial and investigative staffing is outweighed by a low-medium of actual prejudice, there are no recognized general standards or principles to aid us in making that determination and virtually no body of precedent or historic practice to look to for guidance. Inevitably, then, a ‘length of the Chancellor’s foot’ sort of resolution will ensue and judges will necessarily define due process in each such weighing by their own ‘personal and private notions of fairness,’ contrary to the admonition of Lovasco . Crouch, 84 F.3d at 1512 . 18 The two part test, on the other hand, does not require such a comparison “between the government’s culpability and the effect on trial.” Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 Wash.

U.L.Q. 713, 779 (1999). Rather, [a] defendant must first show that the prosecutorial misconduct had a prejudicial effect on the outcome of the proceeding. ... A defendant must then demonstrate that the prosecutor intended, through the misuse or destruction of evidence, to undermine the ability of the defense to establish its case. There is no room for negligence in a due process analysis that relies on governmental bad faith.

The Supreme Court has been consistent throughout its decisions reviewing knowing use of perjured testimony, destruction of exculpatory evidence, and investigatory delay, in holding that defendant must furnish proof of actual ⁶⁴⁰ prosecutorial intent to harm, not just that government negligence resulted in prejudice. Id. C. Petitioner’s Sixth AmendmenlSpeedy Trial Justification. In addition to seeking to persuade us to enlist with the minority of federal circuits on this proposition, Petitioner relies on Sixth Amendment speedy trial cases in support of adopting a balancing test. 19 As noted, supra, the Supreme Court has made it clear that the Sixth Amendment does not apply to pre-indictment delay.

Petitioner quotes Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972), 20 a Sixth Amendment speedy trial case, to demonstrate that the same concerns exist with providing a speedy trial as with preindictment delay, thus, as is the case with speedy trial violations, a defendant’s right to a fair trial must be protected in the case of pre-indictment delay by a balancing test. Petitioner contends: As the Supreme Court noted [in] Barker v. Wingo, supra, the harm threatened by untimely prosecution includes “oppressive pretrial incarceration,” “anxiety and concern of the ⁶⁴¹ accused,” and “the possibility that the [accused’s] defense will be impaired” by dimming memories and the loss of exculpatory evidence. Of these forms of prejudice, “the most serious is the last because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” [Wingo,] 407 U.S. at 532 , 92 S.Ct. at 2193 , 33 L.Ed.2d at 118 . That same concern with the ability to present a defense is of as much, if not more, of a concern when the latter-to-be accused is not aware during the period of the delay of the necessity to preserve memories and evidence.

Petitioner’s Br. at 22. The Petitioner’s attempted analogy between Wingo and the present case also misapprehends the Court’s opinion in Wingo . The Wingo factors, supra, are but some of the factors to be considered when considering prejudice to the defendant, which is itself a factor to be weighed against three other considerations, see supra note 19, and not necessarily something upon which a Sixth Amendment violation of the Speedy Trial Clause could stand alone. Wingo, 407 U.S. at 533-35 , 92 S.Ct. at 2193-95 , 33 L.Ed.2d 101 .

As one author notes, with regard to the fallacy of such an analogy: The Speedy Trial Clause and the due process analysis both rely on temporal delay as a trigger for protection. It is easy to view them as interchangeable, and the Court’s consideration of the government’s reasons for the delay for a speedy trial violation was reminiscent of the bad faith element of the due process analysis. A closer look, however, shows that the two rights are fundamentally different. The Barker v. Wingo test balanced the government’s reason for a delay against the other factors, including the presumption of prejudice, to determine a constitutional violation.

Lovasco and Mari,on, did not adopt a balancing test.... Unlike the speedy trial right, which arises from a specific constitutional protection requiring the government to act within some general time constraint, due process protects against prosecutorial misconduct related to the use or destruction of evidence. Delay alone is not a due process ⁶⁴² violation, even if the government’s reasons for not acting expeditiously were ill-considered or reflected a slovenly approach to the investigation. Henning, supra, at 777.

It is clear then that, unlike in a Speedy Trial Clause balancing test, the element of prosecutorial misconduct, which amounts to more than mere negligence, 21 is a necessary component to a due process violation as that is what due process protects against. It follows that for ⁶⁴³ there to be a due process violation for pre-indictment delay, there must be both actual prejudice and government delay to gain a tactical advantage. D. Maryland Cases Regarding Pre-indictment Delay As noted, supra, the Court of Special Appeals has adopted and employed the two element test over the balancing test for evaluating due process claims with regard to pre-indictment delay. See Smallwood, 51 Md.App. 463 , 443 A.2d 1003 ; Dorsey v. State, 34 Md.App. 525 , 368 A.2d 1036 (1977), cert. denied, 280 Md. 730 ; Blake v. State, 15 Md.App. 674 , 292 A.2d 780 (1972); State v. Hamilton, 14 Md.App. 582, 589 , 287 A.2d 791, 795 (1972).

The issue is a matter of first impression for this Court. We determine that the Court of Special Appeals correctly chose and applied the two element test of Marion and Lovasco . As noted supra, Maryland has no statute prescribing a time limit for seeking an indictment for felonies and peneteniary misdemeanors. We look to the common law for guidance as required by Article 5 of the Declaration of Rights, Constitution of Maryland, which mandates “[t]hat the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of the Law, and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six.” As the Court of Special Appeals correctly noted in Smallwood , “[a]t common law, criminal proceedings may be instituted at any time during the life of an offender.” Smallwood, 51 Md.App. at 468 , 443 A.2d at 1006 (internal quotation marks omitted) (quoting Hochheimer, Law of Crimes and Criminal Procedure § 87 (1897); 1 Wharton, Criminal Law § 90 (14th ed.

(1978)). Therefore, assuming that the indictment against Petitioner was otherwise validly brought, the indictment does not fail merely because it was brought fifteen years after the crime was committed. Cf. Smallwood, 51 Md.App. at 468 , 443 A.2d at 1006 .

We now turn to the Maryland Constitution to determine whether there is any barrier to be found regarding Petition ⁶⁴⁴ er’s “delayed” prosecution. Article 24 of the Declaration of Rights to the Maryland Constitution, addressing due process, provides: [n]o man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land. We long ago determined that the phrase, “the Law of the land,” “mean[s] the same thing” as “due process of law” as used in the Fourteenth Amendment of the U.S. Constitution. 22 Baltimore Belt R.R. v. Baltzell, 75 Md. 94, 99 , 23 A. 74, 74 (1891); see e.g. Department of Transportation v. Armacost, 299 Md. 392, 415-16 , 474 A.2d 191, 202-03 (1984) (“The due process clause of Article 24 of the Maryland Declaration of Rights and the fourteenth amendment to the federal constitution have the same meaning; and we have said that Supreme Court interpretations of the federal provision are authority for the interpretation of Article 24.” (Citing Pitsenberger v. Pitsenberger, 287 Md. 20, 27 , 410 A.2d 1052 (1980), appeal dismissed, 449 U.S. 807 , 101 S.Ct. 52 , 66 L.Ed.2d 10 (1980))); Pitsenberger, 287 Md. at 27 , 410 A.2d at 1056 (same) (citing Barry Properties v. Fick Bros., 277 Md. 15, 22 , 353 A.2d 222 (1976); Bureau of Mines v. George’s Creek, 272 Md. 143, 156 , 321 A.2d 748 (1974)).

Although Lovasco and Marion were decided on the basis of the Due Process Clause of the Fifth Amendment to the U.S. Constitution, as the Court of Special Appeals stated in Smallwood , we perceive no reason in this case to address whatever distinction there may be between the due process clause of ⁶⁴⁵ the Fifth Amendment and that of the Fourteenth Amendment. We shall in the matter sub judice treat “due process,” whether in the Fifth or Fourteenth Amendment, as being equated to the “Law of the land.” Smallwood, 51 Md.App. at 471 , 443 A.2d at 1007-08 . Therefore, following Marion and Lovasco , and the majority of the U.S. Courts of Appeal employing the two part test to assess a due process violation, 23 those who assert a pre-indictment delay must prove (1) actual prejudice 24 to the accused and (2) that the delay was purposefully made by the State to gain a tactical advantage over the accused. 25 See Smallwood, 51 Md.App. at 472 , 443 A.2d at 1008 . ⁶⁴⁶ E. Application of the Two Part Test to the Present Case We now must determine whether the Court of Special Appeals correctly applied the two part test to the facts of the present case. The Court of Special Appeals stated: In the case sub judice, there was no showing that the delay was an intentional, calculated tactic utilized by the State to obtain an advantage over appellant at trial.

The police initially investigated the crimes, interviewed witnesses and suspects, and pursued leads. Yet, the police did not obtain information necessary to move forward on the case until they re-interviewed Michael Grimes 15 years after the crimes, and obtained his cooperation. The court committed no clear error in its denial of appellant’s claim of unconstitutional pre-indictment delay. We agree with the Court of Special Appeals.

In this instance, as George Washington once wrote to Thomas Jefferson, “[d]elay is preferable to error.” Smallwood, 51 Md.App. at 467 , 443 A.2d at 1005 (quoting Thomas Jefferson in a letter to George Washington dated 16 May 1792). Even though Petitioner concededly suffered actual prejudice due to the loss of witnesses and other suspects, supra p. 619, 26 no evidence was adduced that the State pur ⁶⁴⁷ posefully delayed Petitioner’s arrest to gain a tactical advantage over him. The investigation by Detective Capel