Daniels v. State

Lowe, J., delivered the opinion of the Court. Appellant was convicted, of possession and distribution of narcotics, by a jury in the Circuit Court for Cecil County. Immediately before his trial on February 11, 1975, he moved to dismiss the indictments on the ground that he had been denied a speedy trial. The judge deferred ruling on the motion until after the trial.

Soon after the jury’s verdict was returned, a hearing was held on the motion. After substantial evidence was presented on the speedy trial issue, the judge denied appellant’s motion in a written opinion expressly setting forth his findings of fact. 1 234567Because our review of the record ⁴³⁴ has revealed sufficient evidence to support his factual conclusions, our opinion will be based upon the facts as he found them. The essence of the complaint was that although appellant had been charged with a crime he was not arrested, notified or tried for over sixteen months. The significant dates are as follows: 1.

Narcotics sold to undercover officer June 9, 1973 June 15, 1973 2. Warrant taken out by officer (appellant first becomes an “accused”) September 27, 1973 3. Appellant indicted January 16, 1974 4. Appellant arrested (and received his first knowledge of the pending charge) January 8,1975 5.

Appellant arraigned January 13, 1975 6. Appellant tried and convicted. February 11,1975 The Length of Delay Appellant first became an accused by the execution of a warrant for his arrest on September 27, 1973. * 2 Thus, the ⁴³⁵ length of the delay before trial was sixteen and one-half months. That length of time is of sufficient “constitutional dimension” to require that we analyze the delay by utilizing the “balancing test” mandated by Barker v. Wingo, 407 U. S. 514, 530 ; Epps v. State, 276 Md. 96, 111 ; State v. Jones, 18 Md. App. 11, 22-23 .

Reasons for Delay The appellant contends that the State should be charged with the full period of delay between warrant and arrest because insufficient effort was expended in the search for and arrest of appellant. The search conducted by the police was certainly something less than a “manhunt.” However, according to the testimony of a police officer, customary interdepartmental procedures were followed and physical efforts were made as time permitted. Little was known of appellant’s customary hangouts and efforts to find him were limited because, according to one officer’s testimony, the search for appellant was not of high priority. The police efforts to apprehend appellant were casual at best and clumsy at worst. 3 Appellant’s arrest on January 8, 1975 was almost inadvertent.

The State’s Attorney described the circumstances: “During approximately the last week of December of ’74 I went on vacation right around Christmas/time for a 2 week period. When I was home I got a hold of the Cecil Whig and I saw a marriage license between a Jerry Daniels. I didn’t do anything about it. Then when I came back into ⁴³⁶ my office sometime after the first of the year there was also a copy of a disorderly conduct warrant, if I remember correctly, with a Jerry Wayne Daniels.

I called Trooper Macken as a result of these discoveries and I said ‘This may or may not be your boy’. That may not be the exact words I used, but in essence that is what I was saying. Trooper Macken came up and he got the new address. If I remember correctly, there was an address — if there was an address on the warrant — and I don’t recall whether there was a complete address in the newspaper or not, but I believe he went downstairs and got a complete address off the marriage application.” The trial judge attempted to identify the periods of time when the police “did all that could be expected and was reasonably needed to attempt to apprehend” the accused.

He also tried to determine how much of the police department’s neglect was excusable. We think it beyond the scope of our judicial vision to judge the adequacy of the time and effort expended by the police in quest of appellant. That appellant was not intentionally eluding the police is obvious since he did not know he was being sought. On the other hand, his nomadic life style (eight jobs at different geographic locations and five residences during the period of delay) helps to explain, if not excuse, their failure to apprehend him.

It would be impossible for us to prescribe a minimum standard of diligence for the police in seeking out an accused. Too many intangible factors affect the amount of effort which can and should be expended, e.g., the degree of crime, the danger the fugitive poses to society, work load of the law enforcement agency, etc. Furthermore, any attempt to do so may undermine police investigations (as well as equivocate an accused’s rights) by putting pressure on the State to arrest a suspect while his whereabouts are known, rather than after their investigation is thoroughly completed, for fear that post indictment efforts to apprehend him may fall short of some judicially mandated ⁴³⁷ standard. The language of the Supreme Court in Hoffa v. U.S., 385 U. S. 293 , 310 is particularly pertinent: “There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long.

Law enforcement officers are under no constitutional duty to call a. halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.” The Sixth Amendment guidelines are those Judge Moylar discussed in State v. Jones, supra, 18 Md. App. at 24 : “There was in the case at bar clearly no ‘purposeful or oppressive’ delay, motivated by ‘bad faith’ or representing ‘a deliberate choice for a supposed advantage.’ In terms of assessing ‘fault,’ the behavior of the State clearly did not fall under the interdict of ‘purposefulness’ or ‘oppressiveness’. Nor was there any persistent refusal to move forward in the face of repeated demands, requests and efforts by an accused to bring the case on for trial. The situation at bar was not such that the attitude of the State could be described as ‘capricious,’ ‘arbitrary’ or ‘unreasonable’ — the sort of motivational attitude we deplored in Caesar v. State, 10 Md. App. 40, 49-50 , 267 A. 2d 750 . The case at bar presents us not with an instance of deliberate, knovring inaction but rather with an instance of what might, at the very worst, be characterized as ‘inadvertent inaction’or as ‘halting and less-than-diligent action’.

Lawless, at 237-241. Fault, if any, was minimal or for what Barker referred to as a ‘more neutral reason’.” (Emphasis added). ⁴³⁸ In the case before us it is by no means certain that the lack of a more vigorous search by police caused the full period of delay. The court below assessed five months against the State after analyzing their efforts to apprehend appellant. We eschew such analysis because of the aforementioned precedential danger inherent in deciding what degree of diligence is necessary to avoid blame.

Moreover, for purposes of this appeal, we need not do so, for even if we assumed the entire period to have been a “more neutral reason,” the total lack of any prejudice to appellant caused by the delay precludes a dismissal for lack of a speedy trial. Assertion of the Right “This factor, in the equation at bar, is zero. The [appellant] did not know of the charges against him and was, therefore, in no position to make demand. His silence, under the circumstances, cannot redound to his detriment.

Conversely, the State cannot be charged with indifference or inaction in the face of repeated demands for action, since such demands, understandably, were never made. The demand factor is neither a plus nor a minus for either party.” State v. Jones, 18 Md. App. at 26-27 . Prejudice Obviously, if an accused did not know that he was an accused, two of the three “interests of defendants which the speedy trial was sought to protect,” Barker v. Wingo, 407 U. S. at 532 , are not adversely affected. As pointed out in Smith v. State, 276 Md. 521 , one such interest is to avoid oppressive pretrial incarceration.

Since appellant was not arrested until thirty-four days before he was tried, that “interest” does not pertain to the facts of this case. Secondly: “The speedy trial right was also intended to minimize the anxiety of the accused, his family and friends, and to protect the accused from public scorn, financial ruin and having to curtail his ⁴³⁹ speech and associations.” Smith v. State, 276 Md. at 533. Considerations of this nature were described in Moore v. Arizona, 414 U. S. 25 , 26-27: “ . . . [Prejudice to a defendant caused by delay in bringing him to trial is not confined to the possible prejudice to his defense in those proceedings. Inordinate delay, ‘wholly aside from possible prejudice to a defense on the merits, may ‘seriously interfere with the defendant’s liberty, whether he is free on bail or not, and . . . may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.’ United States v. Marion, 404 U. S. 307, 320 , [ 30 L.Ed.2d 468 , 92 S. Ct. 455 ] (1971).

These factors are more serious for some than for others, but they are inevitably present in every case to some extent, for every defendant will either be incarcerated pending trial or on bail subject