Davis v. State

Powers, J., delivered the opinion of the Court. An understanding of the history of this case is helpful to an understanding of the issues we must now decide. The present appeal is the third arising from charges upon which Elijah Davis, the appellant, was arrested in Baltimore in July of 1970. We are now asked to reverse judgments of the Criminal Court of Baltimore against him on two of several indictments returned in August, 1970.

The pertinent charges are that Davis: 1. Unlawfully did possess certain controlled paraphernalia, to wit: 5000 gelatin capsules, which was suitable for the packaging of individual quantities of controlled dangerous substances, in sufficient quantities and under circumstances which reasonably indicate an intention that such controlled paraphernalia be used for the illegal manufacture and distribution of controlled dangerous substances, and 2. Unlawfully did possess a certain controlled dangerous substance of Schedule III, to wit: Phenobarbital. On 1 February 1972 the Criminal Court of Baltimore, Grady, J., heard and denied a motion by appellant to dismiss five pending indictments against him for lack of a speedy trial.

Davis took an immediate appeal from that order. We ³²⁰ entertained the appeal. 1 We affirmed the order denying the motion. We said, in part, in an unreported opinion: “All of the indictments were filed on 31 August 1970. The appearance of appellant’s retained counsel was entered in each case on 11 September 1970.

Additional counsel later entered appearances. On 16 September 1970 appellant was arraigned and pleaded not guilty in each case. Motions for discovery were filed in proper person in February 1971. There is nothing to indicate that either appellant’s own counsel of record or the State’s Attorney’s office was ever made aware of these motions.

The dockets record no further proceedings until the cases were called for trial on 1 February 1972. “At that time appellant asked for a court trial; his codefendant elected a jury trial. The court then severed the two cases. After some discussion about discovery, appellant’s counsel made a motion to dismiss due to lack of a speedy trial. From the transcript of what followed we glean that appellant asserted that at the time of arraignment he demanded a speedy trial.

The transcript of the arraignment shows no such request. He also said he ‘put it on the motion when I came back from escape.’ It also appears that some time after his arraignment on the charges in this case, appellant was confined under a sentence in another case or cases. Also, he had other indictments pending against him besides those in the record before us. “Upon his plea of insanity in another unidentified case, he spent some time at the Clifton T. Perkins Hospital. For some period of time his whereabouts were unknown because he had escaped from confinement.

His counsel recalled that there had been certain postponements of scheduled trials because appellant was not ready to go to trial. Specifically in August 1971 a scheduled trial was ³²¹ postponed because appellant requested a jury. Appellant testified that in October 1971 his counsel told him that on February 1st he was going to get the charges dropped.” After we affirmed the order of the Criminal Court of Baltimore and remanded the cases for further proceedings, Davis petitioned the Court of Appeals for a writ of certiorari. His petition was denied.

The denial of certiorari was noted on the docket of the Criminal Court of Baltimore on 27 March 1973. In April appellant in proper person filed motions for a speedy trial, and to suppress evidence. In June he was notified that his trial would be held on 25 September 1973. The previous time the cases had been called for trial, on 1 February 1972, appellant had accomplished a severance by asking for a court trial when his codefendant elected a jury trial.

The record indicates that the cases were called on 25 September 1973 as a court trial. Davis then prayed a jury trial. The case was rescheduled for a jury trial on 25 October 1973. On that date the case was called before Judge Dorf, on the two indictments now before us.

Davis then waived his right to a jury, and elected to be tried by the judge. Trial was held on 25,26 and 29 October 1973. Judge Dorf found Davis guilty on each of the two charges, and imposed consecutive sentences of four years on each. Davis appealed from those judgments.

Because of what we held to be an error in admitting evidence seized in an automobile search, we reversed both judgments in an unreported opinion and remanded the case for a new trial. At the new trial, held before Judge Cardin and a jury beginning on 13 March 1975, Davis was again found guilty on each of the two charges. Before the taking of evidence' was commenced Judge Cardin heard and denied a motion to dismiss the charges for lack of a speedy trial, and a motion to suppress evidence. After sentences were imposed, Davis noted the appeal now under consideration.

In his brief and argument here, he presents these questions: 1. Was the Appellant denied a speedy trial and was he therefore entitled to a dismissal of the indictments? ³²² 2. Was there sufficient probable cause for the issuance of a search warrant? 3. Is the Plain View doctrine inapplicable when searches are conducted beyond the confines of a valid search warrant? 4.

Was the evidence of the gelatin capsules insufficient to sustain a conviction under Article 27, Section 287? 1. Speedy Trial Appellant argues this contention in two parts, both of which were presented and argued to Judge Cardin at the trial below. First, he contends that his motion to dismiss the indictments should have been granted because he was not brought to trial within 120 days after his request for final disposition of the indictments. The record shows, and appellant concedes, that he did not comply with the requirements of Code, Art. 27, § 616S.

He asserts, nonetheless, that the principles of the Intrastate Detainer statute should be applied to him. He argues that the Court of Appeals, in State v. Barnes, 273 Md. 195 , 328 A. 2d 737 (1974), 2 held that § 616S should be liberally construed so as to effectuate its purpose. The liberal construction applied in State v. Barnes was to hold that the mailing of two required notices, one by registered mail and one by ordinary mail, both actually received, was sufficient compliance with the requirement that both notices be sent by registered mail. The Court of Appeals went on to say, at 209: “We do not suggest, however, that any such liberal construction to effectuate the purposes of the statute should absolve proof by competent evidence of those conditions precedent necessary for bringing the provisions of the statute into play.” There simply was no proof in this case of the necessary ³²³ conditions precedent.

We cannot construe non-compliance as compliance. Appellant also argues that the indictments should have been dismissed because he was denied his constitutional right to a speedy trial. The lapse of time to which he points is the period between 27 March 1973, when the docket records the denial of certiorari in his prior appeal, and 25 October 1973, when his trial before Judge Dorf began. We have examined the record in the light of the principles expressed in Barker v. Wingo, 407 U. S. 514 , 92 S. Ct. 2182 , 33 L.Ed.2d 101 (1972); Epps v. State, 276 Md. 96 , 345 A. 2d 62 (1975); and other cases there discussed.

We have made our independent constitutional appraisal of whether appellant was denied his constitutional right to a speedy trial by this time interval of slightly less than seven months. We find that under the circumstances of this case the lapse of time was not sufficiently inordinate to constitute a “triggering mechanism” to engage in the “sensitive balancing process” of reviewing the conduct of both the prosecution and the appellant which gave rise to the delay. Epps v. State, 276 Md. at 111 . We are persuaded that in alternating his elections from time to time between jury trial and court trial, the appellant manipulated his right of election in a fluid strategy designed to frustrate the attempts of the State to bring him to trial.

We do not mean to suggest that an accused may not make full use of all procedures available to him, but we do say that he may not complain of the result of his own strategy. 2. The Search Warrant The paraphernalia and the pills, for possession of which appellant was convicted in this case, were seized by police in the course of the execution of a warrant to search appellant’s automobile and seize a .45 caliber automatic pistol and 12 gauge shotgun, said to be evidence relating to the commission of a crime pertaining to kidnapping. Appellant attacks the search warrant because its validity is necessary to the validity of the seizure of the paraphernalia and the pills. He says first that the affidavit ³²⁴ supporting the application for the warrant was not under oath, and second, that the affidavit did not show probable cause for the issuance of the warrant.

It is perfectly clear that the application for the warrant was supported by a sworn statement of facts. The statement, typewritten on a single sheet of Police Department stationery, was signed at the bottom by Lieut. Edwin Boston, who described himself as “Affiant”. It was also signed by