Darby v. State

Wilner, J., delivered the opinion of the Court. About 10:30 in the evening of June 27,1978, as they were returning home, Mr. and Mrs. Warren Weaver were met at the entrance to their apartment building by two young men who, at gunpoint, relieved them, respectively, of their wallet and purse. Appellant and a co-defendant were ultimately arrested and charged with a number of offenses arising from the incident. The cases against the two suspects were severed, and after a jury trial in the Circuit Court for Prince George’s County, appellant was convicted of two counts of armed robbery and sentenced to prison for ten years.

In this appeal, appellant asks the following questions: "1. Did the judge err in denying Appellant’s motion to dismiss for lack of speedy trial? "2. Did the trial judge err in denying Appellant’s motion to suppress his confession?

"3. Did the trial judge err in overruling defense objection to the jury instructions concerning the confession?” ⁵⁸⁷ (1) Speedy Trial The chronology of relevant events is as follows: (1) July 20,1978: appellant arrested. This starts the clock running. (2) August 29, 1978: defense counsel enters his appearance.

(3) September 1, 1978: appellant petitions for "reverse waiver” to Juvenile Court (see Md. Ann. Code art. 27, § 594A). (4) September 26, 1978: trial set for November 9, 1978. (5) October 5, 1978: waiver investigation ordered, report to be submitted by November 23, 1978; trial date of November 9, 1978, obviously not possible. (6) November 28,1978: waiver petition heard and denied; trial scheduled for December 11, 1978.

(7) December 11, 1978: prosecutor assigned to the case is ill; trial rescheduled for February 28, 1979. (8) February 28, 1979: no courtroom available, trial rescheduled for April 10, 1979. (9) March 1, 1979: motion to dismiss for lack of speedy trial filed by appellant. (10) April 10-12, 1979: motion to dismiss for lack of speedy trial denied; trial conducted; ends in hung jury, mistrial declared.

(11) August 13-14, 1979: retrial, ends in convictions. Appellant’s motion to dismiss dealt only with the delay between arrest and the first trial. He did not complain in the trial court and has not complained here about the additional interval between the two trials. Accordingly, we shall consider the speedy trial issue raised by him only as it relates to the eight-month, twenty-day period from July 20, 1978 to April 10, 1979.

Appellant attacks the court’s ruling on two grounds. He asserts, we think correctly, that the nearly nine-month interval suffices to trigger the balancing test or procedure mandated by Barker v. Wingo, 407 U.S. 514 (1972). See Epps ⁵⁸⁸ v. State, 276 Md. 96 (1975). From this, he argues (1) that the trial court failed to consider the four balancing factors, but decided the motion solely upon a finding that appellant had not suffered actual prejudice, and (2) that if the balancing test were considered, it would necessitate a finding that his right to a speedy trial had indeed been violated.

His complaint, then, is that the court erred both in its ultimate finding and in the process used to develop or support it. We disagree on both points. With respect to the process, at the hearing conducted on the speedy trial motion, appellant’s chief complaint was that, by reason of the delay since February 28, 1979 (when trial was postponed because of the lack of a courtroom) an important defense witness — the co-defendant, Robert Johnson — had become unavailable. Most of the testimony and argument at that hearing concerned the importance of Mr. Johnson’s testimony, the efforts of the defense to secure Johnson’s appearance, the fact that he had been available on February 28, and his current unavailability due to residence in the District of Columbia.

After a recess, the court was able to locate Mr. Johnson and secure his‘appearance as a defense witness. 1 That element of prejudice was therefore satisfactorily resolved. During the course of the hearing, there was some discussion about the earlier postponements and the reasons for them, and the court was aware that appellant had been incarcerated since his arrest. Counsel’s argument, however, throughout the proceeding, centered on the particular prejudice resulting from Johnson’s presumed unavailability. When Johnson appeared, the court denied the motion with this explanation: "Motion to Dismiss for Lack of Speedy Trial is ⁵⁸⁹ denied.

The prejudice that the defendant was complaining of was the inability to have a particular witness here to testify in his behalf. That witness is now here. That is the only grounds I heard. I mean, at this time, the only allegation I heard, as far as prejudice to this defendant because of delay.

That prejudice has now been eliminated. The motion is denied.” (Emphasis supplied.) Counsel did not then question the court’s ruling or suggest the failure to consider the other elements of the balancing test. We concur with appellant that where, as here, the delay is sufficient to trigger the Constitutional balancing test, all elements of it must be weighed and considered by the court. But that does not mean that the court must necessarily articulate its findings as to elements about which there appears to be no dispute.

There was simply no argument here as to the length of the delay or when appellant asserted his right; and, to the extent there was any disagreement about the reasons for the delay, the court made its position clear when that subject was being discussed. In announcing its ruling, the court confined its remarks to the only element that was really contested, but we shall not presume from that a failure to consider all of the required elements. Neither do we agree that the court erred in its ultimate conclusion. A delay of less than nine months, though sufficient to trigger the balancing test, is not a grossly inordinate one.

Both by Rule and statute, a six-month period is generally regarded in this State as reasonable for ordinary trial preparation, especially so when complicated by the filing of a waiver petition necessitating a social service investigation. The case would have been tried within the six-month period — indeed within five months — but for the illness of the prosecutor. The four-month delay occasioned by that and the unavailability of a courtroom on February 28, 1979, though chargeable to the State under the Barker-Epps formula, is not accorded the same weight or significance as ⁵⁹⁰ a deliberate delay. There was, of course, no evidence of deliberateness here; for the most part, the State made reasonable efforts to proceed expeditiously after the first postponement.

In articulating the assignment of responsibility under Barker , we would characterize the five-month period from arrest to December 11, 1978, as essentially neutral, and the four-month period from then until trial as chargeable to the State but not heavily so. Appellant did not assert his right to a speedy trial until March 1, 1979 (and then only by motion to dismiss, not a demand for immediate trial), and trial was in fact held forty days later. Our one possible disagreement with the trial court concerns the element of prejudice. Quite apart from the presumptive prejudice attendant to any delay of Constitutional dimension, appellant suffered actual prejudice from his incarceration for the nearly nine-month period.

This was not mentioned by the court which, as noted, commented only upon the prejudice alleged by Johnson’s presumed unavailability. That does not mean, of course, that the court ignored the substantial prejudice emanating from appellant’s incarceration. On balance, given the length of delay, the reasons for it, the delay in asserting the right, and the prejudice, we do not believe there has been a Constitutional violation. The motion to dismiss was therefore properly overruled.

(2) Suppression of the Confession Appellant moved, pretrial, to suppress any confession made by him on the ground that it was involuntary. The docket entries reveal that this motion was heard by the court during the course of appellant’s first trial — on April 11, 1979 — and was denied. The transcript of the first trial is not included in the record now before us, and we therefore do not know what evidence was offered in support of or in opposition to the confession at that time. We know only that the motion was denied, and infer from that that the confession was admitted into evidence. ⁵⁹¹ The first trial, as noted, ended in a mistrial, and the suppression motion — still alive — was set for hearing on the first morning of the second trial.

The issue was not addressed preliminarily, however, but arose during the testimony of Officer Larry Begett. Officer Begett, and his colleague Officer Robert Edgar, had initially responded to the call for assistance by the Weavers, had observed and stopped appellant and his co-defendant some 10 minutes later in the general vicinity of the robbery, and had released the pair (notwithstanding Mrs. Weaver’s positive identification of them) because of their uncertainty as to the reliability of the identification. Begett’s next contact with appellant came on July 20, 1978 — some four weeks later — when he accompanied District of Columbia police officers to appellant’s home in the District in order to effect his arrest in connection with the Weaver robberies. Begett saw appellant again the following night — July 21 — at the Hyattsville Police Station.

He said that he had advised appellant of his various "Miranda” rights and had