Collins v. State

KEHOE, J. Jacquon Lakeem Collins appeals his October 7, 2008, conviction by a jury in the Circuit Court for Dorchester County of attempted second degree murder, assault in the first and second degree, first degree burglary, reckless endangerment, and wearing or carrying a dangerous weapon. Appellant presents three questions, which we have reworded 1 for purposes of this appeal: 1. Did the trial court err in refusing to grant appellant’s motion to dismiss for violation of the Hicks 2 rule? 2. Was the appellant’s right to a speedy trial violated? 3.

Did the circuit err in denying appellant’s motion to suppress evidence of his confession? We answer the first two questions in the negative and conclude the third has not been preserved for appellate review. We affirm the judgment of the circuit court. ¹⁹⁹ Factual and Procedural Background On September 26, 2007, appellant shot Juan Figueroa 3 (Figueroa) at Figueroa’s home in Cambridge, Maryland. Appellant’s version of the events is that he had gone to Figueroa’s home to purchase heroin and that the two began arguing over the price.

Appellant claims that Figueroa then produced a shotgun. A struggle ensued, during which the shotgun discharged, critically wounding Figueroa. The State’s version of events is that appellant broke into Figueroa’s home, armed with a shotgun, and demanded money from Figueroa. Figueroa attempted to defend himself by grabbing the shotgun, but was unsuccessful.

Collins then shot Figueroa. Figueroa was first taken to Dorchester General Hospital and then “life flighted” to the Shock Trauma Center in Baltimore. On September 27, 2007, Detective Christopher Flynn, with the aid of Corporal Jose Hernandez, both with the City of Cambridge Police Department, met Figueroa in his hospital room at the Shock Trauma Center. Figueroa was awake, but unable to speak.

Figueroa could not speak English. With Corporal Hernandez acting as a translator, Detective Flynn presented Figueroa with a photo array containing six photographs of possible suspects, including appellant. 4 Figueroa immediately pointed to appellant’s photograph and, when asked if appellant was the one who shot him, nodded his head up and down. Charges were promptly filed against appellant. On September 28, 2007, the Salisbury Police Department arrested appellant.

Appellant was then transferred to the Cambridge Police Department for questioning, during the ²⁰⁰ course of which he made first an oral and then a written confession to Detective Flynn. On November 20, 2007, the State charged appellant in the District Court for Dorchester County with attempted first degree murder, first degree burglary, first degree assault, second degree assault, wearing and carrying a dangerous weapon with intent to injure, and reckless endangerment. Appellant’s initial appearance was on November 27, 2007. Appellant’s trial was scheduled for April 16, 2008.

On March 24, 2008, Figueroa’s mother contacted the Cambridge Police Department and informed them that she had developed “leads” as to who had shot her son. Appellant’s was not among the names she provided. The Cambridge Police Department informed the Dorchester County State’s Attorney of this on April 14, 2008. The State promptly notified appellant’s counsel.

On April 16, 2008, the day of trial, the State nol prossed the charges against appellant. The transcript of the nol pros proceedings does not reflect the State’s reason for nol prossing the charges. The Cambridge Police Department investigated the information generated by Ms. Figueroa and quickly concluded that appellant had been responsible for the shooting. On May 8, 2008, appellant was indicted by a Grand Jury for the Circuit Court for Dorchester County for attempted first degree murder, first degree burglary, first degree assault, second degree assault, wearing or carrying a dangerous weapon with intent to injure, reckless endangerment, conspiracy to commit murder, and conspiracy to commit first degree assault.

Other than the addition of the two conspiracy counts, the indictment was not substantially different from the earlier statement of charges against appellant. A pre-trial suppression hearing was held on September 18, 2008, on appellant’s motions to suppress Figueroa’s hospital bed identification of appellant’s photograph 5 and appellant’s ²⁰¹ confession. On October 6, 2008, the trial court heard argument on appellant’s motion to dismiss for violation of his Sixth Amendment right to a speedy trial and the Hicks rule. 6 All of appellant’s motions were denied. (We will discuss the evidence presented at the hearings later in this opinion.) At trial, the State presented evidence, in the form of Figueroa’s testimony, that appellant broke into Figueroa’s home on September 26, 2007.

After seeing appellant on a home surveillance system, Figueroa confronted appellant in the kitchen. Appellant was holding a shotgun and demanded money from Figueroa. Figueroa refused, grabbed for the shotgun, and was shot. The State also introduced evidence of Figueroa’s identification and appellant’s confession.

Figueroa also testified that his assailants were wearing masks and dressed all in black. Appellant called Corporal Hernandez to ask whether Figueroa had ever previously mentioned “anyone wearing a black mask” in connection with his shooting. Corporal Hernandez testified “no” and the defense rested. The jury acquitted appellant of attempted first degree murder, but convicted him of attempted second degree murder, first degree burglary, assault in the first and second degree, wearing or carrying a dangerous weapon with intent to injure and reckless endangerment. 7 On October 7, 2008, appellant was sentenced to 30 years imprisonment for attempted second degree murder with a consecutive sentence of 10 years for first degree burglary. 8 Appellant filed a timely appeal. ²⁰² We will discuss additional facts as necessary later in this opinion.

Discussion I. Was the Hicks rule violated? Criminal Procedure Article § 6-103 provides: § 6-103. Trial date (a) Requirements for setting date. — (1) The date for trial of a criminal matter in the circuit court shall be set within 30 days after the earlier of: (1) the appearance of counsel; or (ii) the first appearance of the defendant before the circuit court, as provided in the Maryland Rules. (2) The trial date may not be later than 180 days after the earlier of those events.

(b) Change of date. — (1) For good cause shown, the county administrative judge or a designee of the judge may grant a change of the trial date in a circuit court: (1) on motion of a party; or (ii) on the initiative of the circuit court. (2) If a circuit court trial date is changed under paragraph (1) of this subsection, any subsequent changes of the trial date may only be made by the county administrative judge or that judge’s designee for good cause shown. (c) Court rules. — The Court of Appeals may adopt additional rules to carry out this section. ²⁰³ The Court of Appeals adopted what is now Maryland Rule 4-271 to implement the statute. The language of Rule 4-271(a) tracks the statute.

It states: (a) Trial date in circuit court. (1) The date for trial in the circuit court shall be set within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the circuit court pursuant to Rule 4-213, and shall be not later than 180 days after the earlier of those events.... On motion of a party, or on the court’s initiative, and for good cause shown, the county administrative judge or that judge’s designee may grant a change of a circuit court trial date. If a circuit court trial date is changed, any subsequent changes of the trial date may be made only by the county administrative judge or that judge’s designee for good cause shown.

Appellant’s initial appearance was on November 27, 2007. His trial, if not for the nol pros, therefore, would have had to have been begun by May 27, 2008, in order to avoid a Hicks violation. 9 Appellant contends that the State nol prossed the original charges as a tactical method for circumventing the Hicks rule. He asserts that the State’s stated reason for nol prossing the charges, in order to explore evidence that might exculpate appellant, clearly shows that it was not ready to go to trial and needed more time to gather evidence. Appellant also argues that the nol pros had the actual effect of circumventing the Hicks rule as appellant’s actual trial did not occur until four and one-half months after the expiration of the 180 day deadline in the original prosecution. ²⁰⁴ The State contends that the nol pros of the initial charges was in good faith and did not have the purpose or necessary effect of circumventing the 180-day rule. 10 Writing for the Court of Appeals, Chief Judge Bell has identified the policy considerations underlying § 6-103 and Rule 4-271: [T]he statute and the rule ... have two aspects.

Section 6-103 and Rule 4-271 “set forth [both] a definite time requirement for the trial of criminal cases and an explicit procedure for postponing a case beyond the 180-day limit.” They “codify and implement the chief legislative objective that ‘there should be a prompt disposition of criminal charges in the circuit courts.’ ” Their intended objectives, implemented via the mechanism established by the statute and the rule, are to afford reasonably prompt trials, and eliminate excessive scheduling delays and unjustifiable postponements. Thus, “the mechanism of the Hicks Rule serves as a means of protecting society’s interest in the efficient administration of justice. The actual or apparent benefits [that Section 6-103] and Rule 4-271 confer upon criminal defendants are purely incidental.” State v. Price, 385 Md. 261, 278 , 868 A.2d 252 (2005) (citations omitted). Neither the statute nor the rule expressly provides how the 180 day period is to be calculated when the State nol prosses charges against a defendant and subsequently recharges him on substantially the same charges.

The Court of Appeals first considered this issue in the companion cases of Curley v. State, 299 Md. 449, 459-61 , 474 A.2d 502 (1984) and State v. ²⁰⁵ Glenn, 299 Md. 464, 466-67 , 474 A.2d 509 (1984). These decisions, and others applying their holdings in a variety of factual and procedural settings, form the “relevant universe of case law” for resolving claims that the State violated the Hicks rule. Baker v. State, 130 Md.App. 281, 285 , 745 A.2d 1142 (2000). For the purposes of our analysis, it is not necessary to trace the historical development of Maryland’s Hicks rule jurisprudence.

That task has been performed in, among other opinions, State v. Huntley, 411 Md. 288, 293-95 , 300 n. 13, 983 A.2d 160 (2009), Price, 385 Md. at 269-78 , 868 A.2d 252 ; Alther v. State, 157 Md.App. 316, 325-335 , 850 A.2d 1211 , cert. denied 383 Md. 213 , 857 A.2d 1130 (2004); and Baker, 130 Md.App. at 286-93 , 745 A.2d 1142 . It is sufficient to note that, as a general rule, “when a circuit court criminal case is nol pressed, and the state later has the same charges refiled, the 180-day period for trial ... ordinarily begins to run with the arraignment or first appearance of defense counsel under the second prosecution.” Curley, 299 Md. at 462 , 474 A.2d 502 . There are two exceptions. The 180 days continues to run from the first appearance in the first prosecution if the State nol prosses the first charges with the intent of circumventing either the 180 day rule itself or the authority of the administrative judge to schedule criminal cases.

State v. Price, 385 Md. at 278 , 868 A.2d 252 (authority of administrative judge); 11 Ross v. State, 117 Md.App. 357, 370 , 700 A.2d 282 (1997) (requirements of 180 day rule). The second exception to the general rule is when the nol pros of the first set of charges has the necessary effect of circumventing the 180 day rule. State v. Brown, 341 Md. 609, 617 , 672 A.2d 602 (1996); Curley, 299 Md. at 462 , 474 A.2d 502 ; Glenn, 299 Md. at 467 , 474 A.2d 509 ; Baker, 130 Md.App. at 288 , 745 A.2d 1142 . ²⁰⁶ Among these decisions, Huntley stands apart. In that case, the Court of Appeals addressed the scope of the holdings in Hicks and Curley and, to some extent, limited them. 411 Md. at 301-03 , 983 A.2d 160 .

In Huntley, a child abuse case, trial was scheduled to begin 179 days after the defendant’s first appearance. Id. at 291, 983 A.2d 160 . A week before the scheduled trial date, the victim’s family brought additional information to the State indicating that the dates of the offenses in the charging document were incorrect. Id. at 292 , 983 A.2d 160 .

On the day of trial, the State moved to amend the indictment, which motion was denied when the defendant objected. The State then nol prossed the charges and re-indicted the defendant approximately three weeks later. Id. The circuit court granted the defendant’s motion to dismiss the subsequent charges on the basis that the earlier nol pros was to “ ‘evade the effect of [the earlier judge’s] ruling denying the motion to amend.’ ” Id. at 293 , 983 A.2d 160 .

The Court of Appeals 12 vacated the judgment of the circuit court and remanded the case for further proceedings. Writing for the majority of the Court, Judge Harrell stated: We hold that the Curley two-pronged exceptions test, and the concurrent Hicks sanction of dismissal, are inapplicable where the State’s nol pros follows a denial of its motion to amend an indictment, at least where bad faith on the part of the State to delay is not shown. This Court designed the Curley exceptions in order to prevent the State from using its nol pros power to evade the 180-day deadline and delay trial of a defendant’s case beyond 180 days. Where the State’s nol pros instead is used to remedy a genuinely flawed indictment, the concerns of Curley are not present.

The severe sanction of a Hicks dismissal is reserved for situations where the State seeks to circumvent the strictures of § 6-103(a) and Rule 4-271(a)(l) and unjustifiably ²⁰⁷ delay a defendant’s trial beyond 180-days. This is not such a case on the record as it exists presently. Id. at 302-03, 983 A.2d 160 (emphasis added.) Applying these principles to the case at bar, we will first consider whether the Court of Appeals’ holding in Huntley should be extended to include situations such as the one before us. We conclude that it should.

By its terms, Huntley is limited to cases where the State unsuccessfully attempts to correct a flawed indictment. Id. In this case, there was nothing defective about the indictment; the nol pros was the result of what the State later asserted was its doubts about the degree of appellant’s involvement in the attack on Figueroa. At the hearing on the motion to dismiss the second indictment, the State offered the following explanation of the reasons for its decision to enter the nol pros: We don’t know if this information [i.e., the information from Figueroa’s mother] explains the existence of a second person or identity of a second person.

We don’t know at this point, because having read this the State believed that from the information contained in here that we were looking at possibly three completely different persons separate and apart from the Defendant. So from the State’s point of view I don’t know if I’ve got additional suspects, I don’t know if I’ve got Brady[ 13 ] information here. It’s certainly potentially Brady information because in the State’s mind it was potentially exculpatory if we had information that would possibly say that it’s not this guy, it is somebody else. So I instructed the police to try to run that information, and the Court probably recalls from prior hearings that we ²⁰⁸ have a language barrier here.

Detective Flynn has to rely on a Spanish speaking officer to go with him to be able to run this information down. Ultimately he did on or about the 15th of April. And we believe that to be the 15th of April, which is the day prior to the entry of the nol pros. The day before that I believe still having not investigated this information, because we’re still within approximately a two week time period, the State committed to a nol pros for the reason that this case was not ready to present to a jury because we had this information and none of us could tell the jury what this meant because we just didn’t know what it was.

So we’re talking about a two week delay there which is unfortunate, but quite frankly good faith requires us to run this information down as expeditiously as possible, and that is certainly what we did. (Emphasis added.) At the close of the hearing, the circuit court addressed the issue of the State’s motivation: I think the overriding factor for [the State’s Attorney’s] office has always been to make sure justice is done and the right person is charged and the right person is convicted. And I don’t believe his office believes that a conviction is the end all be all, his office, they have demonstrated to me is they want to get it right before consequences, severe consequences attach to any suspect. And I think that’s what they were doing here. ^ ij{ sfc N* In this case the underlying reason for the nol pros, as I see it, was that [the State’s Attorney] wanted to make sure that he didn’t have the wrong guy.

And that was to the benefit of the [appellant]. And then thereafter there was a fairly prompt resolution within another three weeks where they ran this thing out and found there was no validity to ²⁰⁹ the original report[ 14 ] (Emphasis added.) To require the State to proceed to trial under such circumstances would be manifestly unreasonable. To be sure, the State could have requested a continuance; instead the State nol prossed the charges, which had the effect of releasing appellant from pre-trial detention. The State promptly investigated the leads suggested by Ms. Figueroa, determined that appellant was in fact criminally responsible, and re-charged him in approximately three weeks.

While the nol pros did delay appellant’s trial beyond 180 days, we conclude, as did the circuit court, that the delay was justifiable. As such, the “severe sanction” of dismissal of the subsequent indictment is not applicable in this situation. Huntley, 411 Md. at 302 , 983 A.2d 160 . We would reach the same result if we applied the Curley test, namely, whether the nol pros had the effect of circum ²¹⁰ venting the 180 day rule or whether the nol pros was entered for the purpose of circumventing the rule.

Curley, 299 Md. at 462 , 474 A.2d 502 ; Baker, 130 Md.App. at 288 , 745 A.2d 1142 . - Necessary Effect - The original charges were nol prossed on April 16, 2008. At that point, there were still 40 days left before the expiration of the 180 day period. In Brown, the nol pros was entered 43 days prior to the expiration of the 180 day period and the Court of Appeals noted that 43 days provided an ample opportunity for the State to obtain a postponement from the administrative judge for good cause. 341 Md. at 620 , 672 A.2d 602 . See also Glenn, 299 Md. at 467 , 474 A.2d 509 (nol pros with 57 days remaining in the 180 day period).

We conclude that there was good cause for a postponement in the case before us and the 40 days remaining before the expiration of the 180 day deadline was more than enough time to obtain one. While appellant points to the fact that his actual trial took place after the 180 day limit expired, the proper focus is on the possible consequences to the State if a nol pros was not entered. As Judge Moylan has explained for this Court: It is the teaching of Curley, Glenn, and Brown that we do not assess the situation by looking backward from the arguably adverse effect, searching for a cause. A mere cause and effect relationship is not enough.

We look, rather, from a potential cause forward, asking not whether the feared effect is a predictable possibility but whether it is, as of that moment, already a foregone conclusion — a necessary effect, an