Divver v. State

RODOWSKY, Judge. The petitioner, John Edward Diwer (Diwer), contends that he was denied his constitutional right to a speedy trial in the ³⁸² District Court of Maryland. Before addressing the merits of that contention we must decide whether that issue was unreviewable on petitioner’s de novo appeal to the Circuit Court for Howard County and, if reviewable there, in what manner that review was to have been conducted. On May 25, 1996, at approximately 12:15 a.m., a Howard County police officer arrested Diwer for driving while intoxicated or driving under the influence of alcohol in violation of Maryland Code (1977, 1999 Repl.Vol.), § 21-902(a) and (b) of the Transportation Article (TA).

He was also charged with failure to stop for a steady red traffic light in violation of TA § 21-202(h). These charges are within the exclusive original jurisdiction of the District Court of Maryland. Md.Code (1974, 1998 Repl.Vol.), § 4-301(a) of the Courts and Judicial Proceedings Article (CJ). Four days after his arrest Diwer demanded a speedy trial in the District Court.

Sixteen days after his arrest the State served notice on Diwer that it was seeking enhanced punishment based on Diwer’s two prior violations of TA § 21-902(b). Accordingly, Diwer faced a potential sentence of three years imprisonment and a $3,000 fine. TA § 27-101(k)(l). Thereafter, there was no activity in this case until February 20.1997, approximately nine months after Diwer’s arrest.

On that date the District Court notified Diwer that his trial would be held on June 10, 1997, one year and sixteen days after his arrest. There is no evidence that any party to this action had requested a delay in setting the trial date, and there was no earlier trial date from which the case was postponed to June 10.1997. In the District Court on June 10 Diwer moved to dismiss the charges against him on the ground that he had been denied his constitutional right to a speedy trial. No transcript of the hearing on that motion has been filed in the record, and we would not expect one to have been prepared in view of CJ § 12—401(f) under which appeals from the District Court in criminal cases “shall be tried de novo.” The record does show that Diwer’s motion was denied, that he was found guilty of ³⁸³ driving under the influence and of the traffic signal violation, and that he was sentenced on August 19,1997.

Diwer appealed to the Circuit Court for Howard County and demanded a speedy trial in that court. He also moved in the circuit court to dismiss the charges against him based on the denial of a speedy trial in the District Court. In its answer the State averred that “[t]he delay was necessitated by the fact that the District Court of Maryland, District 10, serving Howard and Carroll Counties, was short 2 judges for a significant time during the applicable period.... In addition, the Carroll County District Court had been operating without one judge from May, 1995, until February 1996, placing an additional strain on the Howard County judges.” A hearing was held on that motion, and the record of that hearing was transcribed.

It consists of arguments of counsel and of colloquy with the court. No testimony was taken or proffered. Counsel for Diwer represented to the circuit court that the District Court had denied his motion to dismiss after concluding that the delay was not of constitutional magnitude. The prosecutor, based on information received from the prosecutor who had handled the case against Diwer in the District Court, agreed, adding that the District Court, in view of its conclusion on the length of the delay, did not engage in any balancing test (see Part II, infra).

The circuit court expressed uncertainty as to the period that it was to consider on a de novo appeal for purposes of determining if the right had been denied. Counsel were directed to brief the matter, and the hearing on the motion to dismiss was rescheduled. At the resumed hearing on the motion to dismiss the circuit court denied the motion, concluding that the relevant period was from arrest to trial in the District Court, but that there was no “unconscionable delay.” The circuit court said that it “knows full well” that Diwer’s trial was set in the District Court at “a time when the District Court [sitting in Howard County] was shy of two judges.” ³⁸⁴ At the trial de novo, Diwer pled not guilty, and the parties agreed on what the testimony of the arresting officer would be had he appeared in person. Diwer did not contest the officer’s stipulated testimony.

Included in the evidence that the officer would have given were statements made by Diwer that he knew he had run the red light, that he had had ten beers to drink, and that he was too drunk to perform certain field sobriety tests. Diwer was convicted in the circuit court and sentenced. He petitioned this Court for the writ of certiorari which we granted. I The State contends that Diwer’s claim of denial of a speedy trial in the District Court is, in effect, unreviewable.

This result, the State submits, is a byproduct of the de novo review. Because this State has a two tier trial system as the method of judicial review for persons convicted in the District Court, no transcript of the District Court proceedings is ordered and prepared, and, as the State sees it, there can be no review of the District Court’s ruling on Diwer’s motion to dismiss. The premise of the State’s argument is that the circuit court could determine whether Diwer’s right to a speedy trial was violated in the District Court only on a record made in the District Court. From this the State concludes that the speedy trial clock starts again with the de novo appeal and that the only issue in the circuit court is whether the appellant has been denied a speedy trial in the circuit court, measured from the noting of the de novo appeal.

We reject the State’s premise and its conclusion. Under the appeal statute, CJ § 12—401(f), the Maryland Rules of Procedure, and practice under those rules, the issue may be redetermined on de novo appeal. There is nothing to prevent a circuit court from deciding whether an appellant’s right to a speedy trial was denied in the District Court based upon a record that is made in the circuit court. ³⁸⁵ CJ § 12-401 (f) confers a right of appeal on defendants convicted in criminal cases in the District Court. The appeal is to the circuit court of the county in which the judgment was entered.

CJ § 12-403. The “appeal shall be tried de novo.” CJ § 12-401(f). There are only two instances in which an appeal in a criminal case may be taken from the District Court to a circuit court on the record made in the District Court. The first is an appeal permitted under limited circumstances to the State.

CJ § 12-401(b) and (c). The other is “in any case in which the parties so agree.” CJ § 12—401(f); Maryland Rule 7-102(a)(3). Under the State’s argument in this case, an accused who, by a motion made in the District Court, unsuccessfully asserts a denial of a constitutional right may have review only in those cases in whieh the prosecutor at any given time chooses to agree to an appeal on the record of the motions hearing. There is no textual, historic, or public policy basis for that interpretation.

A motions practice in the District Court is permitted under Maryland Rule 4-251(a). If the motion is filed before trial, it is to be in writing, unless the court otherwise directs, and it is to state the grounds upon which it is made and the relief sought. Rule 4-251(a). Motions to suppress or exclude evidence that are filed before trial are by rule deferred for determination at trial.

Rule 4-251(b). Otherwise, “motions may be determined at any appropriate time.” Id. Consequently, Diwer was in compliance with the Rules when he orally moved to dismiss in the District Court. Rule 7-112 applies to all “appeals heard de novo in the circuit court.” In the circuit court, with certain exceptions not relevant in this case, the appeal proceeds “in accordance with the rules governing cases instituted in the circuit court.” Rule 7-112(c)(3).

Under motions practice in the circuit court Divver’s motion to dismiss based on denial of a speedy trial in the District Court was a motion asserting a “defense ... capable of determination before trial without trial of the general issue,” and, as such, could “be raised by motion filed at any time before trial.” Rule 4-252(d). Indeed, Rule 4-252(g) specifically addresses the “determination of a motion to dis ³⁸⁶ miss for failure to obtain a speedy trial,” and gives the circuit court a discretion to defer that determination until after trial. Under the State’s argument in the case before us, there could be no motions practice in the circuit court on de novo appeals where the determination of the motion required taking some evidence on the same issue on which the District Court had taken evidence. Thus, an accused who was convicted in the District Court, after a motion to suppress evidence had been denied, would be unable to obtain a ruling in the circuit court that evidence was unlawfully obtained by the State, because there would be no record of the testimony taken in the District Court.

This construction of the de novo appeal statute makes a hollow shell of Rules 7-112(c)(3) and 4-252. Rather, on a de novo appeal, where it is necessary to take evidence in order to determine a pretrial motion, that evidence is taken anew in the circuit court. Further, the effect of the position advocated by the State is that an accused who is initially convicted in the circuit court, after unsuccessfully seeking dismissal on denial of speedy trial grounds, has a right to have that ruling reviewed on appeal to the Court of Special Appeals, but an accused who is convicted under the same circumstances in the District Court would have no right to relitigate that issue on de novo appeal to the circuit court. That construction of the de novo appeal statute raises serious equal protection questions and should be rejected on that ground.

See Griffin v. Illinois, 351 U.S. 12, 18 , 76 S.Ct. 585, 590 , 100 L.Ed. 891 , 898 (1956) (holding that equal protection was denied to indigents who were refused an appeal because they could not afford a transcript). The State analogizes the result that it seeks here to the result in Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 , 104 S.Ct. 1805 , 80 L.Ed.2d 311 (1984), involving the Massachusetts two tier trial system. 1 Lydon contended that the evidence against him at his first tier trial was legally ³⁸⁷ insufficient to convict and that, because his sole method of review was by a new trial before a jury, there was a violation of his constitutional protection against double jeopardy as enunciated in Burks v. United States, 437 U.S. 1 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978). Lydon, 466 U.S. at 298 , 104 S.Ct. at 1808 , 80 L.Ed.2d at 318 . The Court rejected this contention, viewing the Massachusetts second tier trial as a continuation of the first stage so that jeopardy had not terminated, and the Court analogized the Massachusetts procedure to retrial following an appeal on the record by the defendant, a procedure that does not offend double jeopardy protections under United States v. Ball, 163 U.S. 662 , 16 S.Ct. 1192 , 41 L.Ed. 300 (1896).

Lydon, 466 U.S. at 308 , 104 S.Ct. at 1813 , 80 L.Ed.2d at 324 . Lydon is distinguishable. The insufficiency of the evidence argument advanced by the defendant in that case depended on the specific evidence that had been offered against him and which had not been reproduced. Here, the denial of speedy trial argument is not dependent on the specific evidence introduced in the District Court.

Diwer’s contention can be decided on a record made in the circuit court that is directed to all of the factors relevant to whether there had been a denial of a speedy trial between arrest and trial in the District Court. Credibility issues aside, it is immaterial for the determination of the de novo motion to dismiss whether the evidence in the circuit court matches that in the District Court. Accordingly, we hold that Diwer had a right to move to dismiss the charges against him in the circuit court based on his contention that he had been denied his constitutional right to a speedy trial in the District Court. Because Diwer rests his argument on facts that are not disputed, he did not seek to introduce evidence at the motion hearing in the circuit court.

Nevertheless, had he attempted to introduce evidence, he would not have been barred from so doing. II The right of an accused to a speedy trial is guaranteed by article 21 of the Maryland Declaration of Rights as well as by ³⁸⁸ the sixth amendment to the Constitution of the United States. Diwer’s demand for a speedy trial that was filed in the District Court did not specifically refer to either constitutional provision. Absent Diwer’s having limited his argument, we shall decide this case under article 21.

This Court considers United States Supreme Court precedents interpreting the sixth amendment to be “ ‘ “very persuasive, although not necessarily controlling,” as to the proper construction of Maryland’s parallel Article 21 right.’ ” Stewart v. State, 282 Md. 557, 570 , 386 A.2d 1206, 1213 (1978) (quoting Smith v. State, 276 Md. 521, 527 , 350 A.2d 628, 632 (1976)). Consequently, following the decision by the Supreme Court in Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972), this Court has applied the constitutional standard enunciated in Barker when applying article 21. The standard enunciated in Barker was summarized in State v. Henson, 335 Md. 326 , 643 A.2d 432 (1994), where we said: “ ‘When the [pre-trial] delay is of a sufficient length, it becomes “presumptively prejudicial,” thereby triggering a “balancing test [which] necessarily compels courts to approach speedy trial cases on an ad hoc basis.” ’ Brady v. State, 288 Md. 61, 65, 415 A.2d 1126, 1128 (1980), quoting Barker, 407 U.S. at 530 , 92 S.Ct. at 2192 , 33 L.Ed.2d at 116-117 . The factors to be weighed are ‘[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’ Barker, 407 U.S. at 530 , 92 S.Ct. at 2192 , 33 L.Ed.2d at 117 .

Because whether a period is presumptively prejudicial, or not, depends upon the length of a pre-trial delay, the first factor ‘is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.’