Clark v. State

CATHELL, Judge. James Edward Clark, appellant, was convicted by a jury in the Circuit Court for Prince George’s County of assault with intent to murder and related offenses, and he was subsequently sentenced to ten years. Appellant presents three questions on appeal: I. Did the trial judge err in denying Appellant’s motion to dismiss for lack of a speedy trial?

II

Did the trial judge err in admitting evidence of other crimes?

III

Did the trial judge err in excluding relevant evidence? As the factual determinations are not at issue in this appeal, we will only touch upon the background, and then supply facts as necessary to analyze the legal issues raised. Appellant lived with Daryle Denice Willet, the victim, on and off for almost two years. Willet testified that on December 9, 1989, she called appellant and asked him to pick her up.

She had moved out of his house several days earlier, but now had nowhere to go and wanted to return. Appellant picked Willet up and bought her some crack cocaine on the way home. Once they arrived at appellant’s house, Willet changed her mind and refused to go inside. She walked towards a ³⁸⁵ nearby elementary school and approached the car of a man named Joe.

According to Willet, when she tried to get into Joe’s car, appellant grabbed her, dragged her to the school, beat her, stabbed her, and then fled. Appellant was indicted on January 9, 1990, for stabbing Willet approximately nine times. On May 21, 1990, the State nolle prossed 1 the indictment because the State’s main witness, Willet, refused to cooperate or testify against appellant. A second indictment was filed on March 17, 1992, after Willet agreed to cooperate with the prosecution.

The trial began on September 14, 1992. I “The Sixth Amendment [to the United States Constitution] guarantees that, ‘[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial....’” Doggett v. United States, — U.S.-,-, 112 S.Ct. 2686, 2690 , 120 L.Ed.2d 520 (1992). This right is “ ‘fundamental’ and is imposed by the Due Process Clause of the Fourteenth Amendment on the States.” Barker v. Wingo, 407 U.S. 514, 515 , 92 S.Ct. 2182, 2184 , 33 L.Ed.2d 101 (1972) (footnote omitted). The Supreme Court has identified “some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right.... [They] identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. at 530 , 92 S.Ct. at 2192 (footnote omitted).

Maryland has “applied these four factors in resolving speedy trial cases.... ” State v. Bailey, 319 Md. 392, 409 , 572 A.2d 544 cert. denied, 498 U.S. 841 , 111 S.Ct. 118 , 112 L.Ed.2d 87 (1990) (and cases cited therein). The Sixth Amendment right to a speedy trial is ... not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected pri ³⁸⁶ marily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. United States v. MacDonald, 456 U.S. 1, 8 , 102 S.Ct. 1497, 1502 , 71 L.Ed.2d 696 (1982).

In making its independent constitutional analysis, this Court must determine as a threshold issue whether the length of delay is presumptively prejudicial. To some extent, the length of the delay is a triggering mechanism. Barker, 407 U.S. at 530 , 92 S.Ct. at 2192 ; Bailey, 319 Md. at 410 , 572 A.2d 544 . 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 [the] 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.

Howell v. State, 87 Md.App. 57, 80 , 589 A.2d 90 cert. denied, 324 Md. 324 , 597 A.2d 421 (1991) (citing Brady v. State, 291 Md. 261, 266 , 434 A.2d 574 (1981)). To analyze the delay, we must first set out the sequence of events. ³⁸⁷ December 9, 1989 Attack occurs December 19, 1989 Appellant is arrested January 9, 1990 First indictment is filed May 21, 1990 State’s Attorney nolle prosses charges March 17, 1992 Appellant is reindicted April 2, 1992 Appellant’s counsel enters appearance and demands speedy trial June 22, 1992 Trial date is postponed at State’s request, without objection August 19, 1992 September 14, 1992 Joint motion for continuance is granted Trial This sequence of events can be divided into three relevant periods; first, from December 19, 1989, the date appellant was arrested, to May 21, 1990, when the original charges were nolle prossed. This was a period of just over five months. The second time period, from May 22, 1990, to March 16, 1992, is a span of almost twenty-two months, during which appellant had no restrictions on his liberty and was, “at most, in the same position as any other subject of a criminal investigation.” MacDonald, 456 U.S. at 8-9 , 102 S.Ct. at 1502 .

The third period extends from March 17, 1992, the day appellant was reindicted, to September 14,1992, the day of trial. This was a period of approximately six months. 2 Of course, the length of the delay cannot be computed unless it is known when the period of delay starts. United States v. Marion, 404 U.S. 307 , 92 S.Ct. 455 , 30 L.Ed.2d 468 (1971), provided this criterion. The speedy trial clock starts ticking when a person is arrested or when a formal charge is filed against him.

Id. at 313 , 92 S.Ct. at 459. See State v. Gee, 298 Md. [565], 568, 471 A.2d 712 [1984], The Supreme Court has consistently adhered to this view.... So it is clear that “[u]pon the intervention of an arrest or a formal ³⁸⁸ charge the Sixth Amendment speedy trial right is invoked.” Gee, 298 Md. at 569 , 471 A.2d 712 . Bailey, 319 Md. at 410 , 572 A.2d 544 .

The question we must first address is whether the clock started ticking on December 19, 1989, when appellant was first arrested, or on March 17, 1992, when he was reindicted. It will mean the difference between a delay of thirty-three months or a delay of six months. In United States v. MacDonald, 456 U.S. 1, 7 , 102 S.Ct. 1497, 1501 , 71 L.Ed.2d 696 (1982), the Supreme Court held that the time “after the Government, acting in good faith, formally drops charges” is not included in a speedy trial analysis. MacDonald, an Army captain, was charged with the murder of his wife and two children.

The military charges were dropped after an extensive investigation, and MacDonald was honorably discharged. Id. at 4-5 , 102 S.Ct. at 1499-1500 . There was no allegation of bad faith in dismissing the charges; in fact the Army dismissed the charges after concluding that they were untrue. Id. at 10 n. 12, 102 S.Ct. at 1502 n. 12.

The Justice Department continued the investigation with the Army’s assistance. MacDonald was reindicted five years later and was ultimately convicted and sentenced to three consecutive life terms. Id. at 5-6 , 102 S.Ct. at 1500-01 . While acknowledging that being subject to a criminal investigation is stressful, and may have adverse consequences, the Court opined that “once the charges instituted by the Army were dismissed, MacDonald was legally and constitutionally in the same posture as though no charges had been made.

He was free to go about his affairs, to practice his profession, and to continue with his life.” MacDonald, 456 U.S. at 10 , 102 S.Ct. at 1502 (footnote omitted). The holding in MacDonald was expressly reaffirmed in United States v. Loud Hawk, 474 U.S. 302, 312 , 106 S.Ct. 648, 654 , 88 L.Ed.2d 640 (1986), where the Court found that under the rule of MacDonald , when defendants are not incarcerated or subjected to other substantial restrictions on ³⁸⁹ their liberty, a court should not weigh that time towards a claim under the Speedy Trial Clause. Maryland seems to have acknowledged the “rule of MacDonald.” Judge Alpert, speaking for this Court, discussing “MacDonald and its progeny,” stated that there the second indictment served to commence the critical time period because of the government’s exercise involving good faith. In these cases the government did not deliberately attempt to circumvent the mandate of the Sixth Amendment by dismissing the charges.

Instead, a sound prosecutorial decision was made---- “Good faith” in this context presupposes the diligence apparent in MacDonald in bringing a case to trial; there, after the dismissal of the military charges, the civilian ones were not brought until a much more extensive investigation was completed. See also State Farm Ins. Co. v. White, 248 Md. 324, 332-33 , 236 A.2d 269 (1967) (good faith in the context of an insurance policy means “being faithful ... to the duty or obligation owed”; negligence is relevant in determining whether one acted in good faith). Lee v. State, 61 Md.App. 169, 175-76 , 485 A.2d 1014 cert. denied, 303 Md. 115 , 492 A.2d 616 (1985) (footnote omitted).

Lee involved an indictment that was dismissed by the trial judge because the State failed, through negligence, to comply with the Intrastate Detainer Act. The State reindicted two days later. Id. at 171 , 485 A.2d 1014 . Judge Alpert held that the dismissal because of the State’s negligence, “although not amounting to bad faith, simply is not the same as a good faith dismissal sanctioned by the MacDonald Court. [3] Consequent ³⁹⁰ ly, we look to the period of the first indictment to determine when the speedy trial clock began to tick.” Id. 61 Md.App. at 177 , 485 A.2d 1014 .

State v. Bailey, 319 Md. 392 , 572 A.2d 544 (1990), presented the Court of Appeals with a similar situation. In February 1986, Bailey was arrested on several narcotics charges. He was later indicted on those charges, but in June 1986 the indictment was nolle prossed. Id. at 397, 572 A.2d 544 .

Bailey was then extradited to South Carolina for sentencing on a previous narcotics conviction. When he began serving that sentence he was reindicted on the charges previously dismissed in Maryland and brought back for trial. Trial commenced in February 1988, two years after his initial arrest in Maryland. Id. at 397-98 , 572 A.2d 544 .

The trial court denied Bailey’s motion to dismiss on speedy trial grounds, but the Court of Special Appeals reversed in an unreported decision. Bailey, 319 Md. at 397 , 572 A.2d 544 . One of the questions presented to the Court of Appeals was whéther the Court of Special Appeals erred in determining that the speedy trial clock should start ticking at the first, and subsequently dismissed, indictment instead of the second indictment. Id. at 408 , 572 A.2d 544 .

The [Court of Special Appeals] observed that if the nolle prosequi were “a legitimate termination of the then pending prosecution, Bailey would lose.... If, however, the nolle prosequi were improper, so that the delay ran from the beginning of the first time period without interruption through the end of the third time period, the State would lose. Bailey, 319 Md. at 405-06 , 572 A.2d 544 . The Court of Appeals noted our conclusion that the State’s purpose in nolle prossing was tactical delay, and therefore they must pay the price of having that time included in the speedy trial analysis.

Id. at 406 , 572 A.2d 544 . While not commenting further, the Court of Appeals accepted the period starting with the first indictment in considering whether the delay was of constitutional dimensions. Id. at 411 , 572 A.2d 544 . ³⁹¹ In the case sub judice, the State maintains that it filed the nolle pros on the first trial date because Willet did not appear and the defendant produced notarized statements in which Willet stated that she did not want to pursue the charges. The question is whether this nolle pros was in “good faith.” It