Epps v. State

O’Donnell, J., delivered the opinion of the Court. The sole question here presented upon our grant of a writ of certiorari to the Court of Special Appeals is the frequently argued question whether a defendant in a criminal case was denied his constitutional right to a speedy trial. The appellant, Larry Epps — together with two co-defendants, Morris Bea and Erskin Evans, was convicted by a jury in the Criminal Court of Baltimore on August 23, 1973 — one year and 15 days after his arrest, of having robbed, with a dangerous or deadly weapon (a knife), one Wilbert McNeil and taking from him a radio-tape recorder valued at $59.95 plus $3.00 in cash. See Maryland Code (1957, 1971 Repl.

Vol.) Art. 27, § 488. Epps, who did not testify at his trial, was sentenced on September 14, 1973 by the presiding judge (Watts, J.) to a term of 15 years. 1 McNeil was robbed at about 2 a.m., August 9, 1972 by three men, one of whom carried a knife and another a stick. Immediately following the incident, McNeil ran down the street where he encountered a policeman, to whom he reported the robbery. Cruising with the officer in a police car, McNeil, within a brief interval, observed the bandit trio; one was carrying a radio, the other was still armed with a stick.

When the police officer ordered them to “halt,” one of the group took flight. A witness identified Epps as the fugitive. Later the same day, Officer William Surratt was informed by a restaurant owner that Epps was a suspect in the robbery of McNeil. Officer Surratt investigated and after discerning that Epps was carrying a radio bearing the ⁹⁹ initials “W.M.” arrested him.

Epps at that time was in possession of a knife. Following that arrest, Epps remained confined in the Baltimore City Jail, unable to arrange bail, up to the date of his trial — August 22,1973. It appears that at a pre-trial conference on December 4, 1972, between an assistant state’s attorney and counsel who represented each of the defendants, there was no suggestion that any of them wished to elect a jury trial; the cases were thus scheduled, as to each, on the non-jury trial assignment. When the cases first came on for trial, on December 28, 1972 in the Criminal Court of Baltimore (before Prendergast, J.), Bea and Evans, upon arraignment, each elected trial by jury; the appellant requested that he be tried non-jury.

See Maryland Rule 741. Through counsel Epps asked “to be tried today and separately,” moving as well for a severance, and asserted prejudice from a joint trial. See Rule 735. In a dialogue with the court in those proceedings, counsel explained that Bea and Evans had “just made up their minds this past week or so” to elect a jury trial.

Judge Prendergast was of the view that such request should have been made before the day of the trial and was satisfied that no such election had theretofore been indicated. Although it appeared that both Bea and Evans — as well as Epps — were then prepared to go to trial, no jury panel was in attendance during that post-Christmas week. 2 The prosecutor advised the court that it was his preference “to keep all the three defendants together and present all the evidence at one time against [them];” that the cases should be tried together, that separate trials “would certainly be duplicitous” and that he was “in favor of postponing the case in its entirety and having it reset as quickly as possible.” In granting the postponement, Judge Prendergast stated “There may be [a] delay in granting a ¹⁰⁰ trial, because of this last-minute change of heart, but I don’t think your clients have any cause to complain that they have been denied a speedy trial since they are the cause of this.” (Emphasis added) Epps’ motion for severance, predicated as it was solely upon the fact that he did not wish to be tried with his co-defendants with a resultant “unfair light upon his case,” was denied. The trials of each of the defendants were rescheduled for April 13, 1973 — apparently as the first “open” jury trial calendar date, but those proceedings were also postponed by the Administrative Judge, see Rule 1211, when at 4 p.m. on that date the cases had not been “reached” and there was “no jury court available.” They were rescheduled for June 12, 1973. On that assigned date they were again postponed by the trial judge, concurred in by the Administrative Judge, because Officer Surratt, the arresting officer, had collapsed on June 8, 1973 while on duty, due to “extreme high blood pressure” and had been ordered confined to bed for at least a month.

Those aborted trials were then rescheduled for August 22,1973. On June 13, 1973, Epps filed a written motion to dismiss the indictment for lack of a “speedy trial,” alleging that one of his witnesses, David Epps, who would have established an alibi for him, had the case been tried December 28,1972, was no longer available since he was then serving with the U. S. Armed Forces in Korea. 3 Upon a hearing on the motion just before the appellant’s trial on August 22, 1973, Judge Watts requested a proffer and Epps’ attorney stated: “As to Larry Epps there was a witness by the name of David Epps who was an alibi witness who knew at the time of the alleged crime Larry Epps, the Defendant, was in his company elsewhere in another place from that described in the indictment from that presented by the Prosecution.” ¹⁰¹ Apparently assuming that the alibi witness, David Epps, was a member of the appellant’s immediate family, Judge Watts, in denying the motion, commented: “The Court is mindful of the fact that brothers and sisters and mothers appear and give certain kind of testimony, which I don’t accept. In other words, it gets down to that issue of what he heard the brother say, he was with him, which would be a form of prejudice sufficiently to deny the State the right to try its case fairly on a serious charge of robbery without [sic] a deadly weapon.” (Emphasis added) When counsel informed the court that David Epps was the appellant’s cousin, Judge Watts expressed the view that counsel could ask the court “again to consider it,” at the close of the State’s case. 4 Upon being re-arraigned on August 22,1973 Epps through counsel then — apparently for the first time — elected a jury trial. Following his conviction, the appellant, pursuant to Rule 759 a and b filed motions for a “new trial and an arrest of judgment,” urging error in the denial of his motion for dismissal of the indictment for failure to have granted him a speedy trial.

In those post-trial proceedings on September 14, 1973 Epps testified that his cousin, David Epps, was in attendance in the court on December 28, 1972 and would have then testified that the appellant was with him at the cousin’s home, at 1711 West Baltimore Street, at the time when the crime was “supposed to have happened.” In an unreported per curiam opinion, the Court of Special Appeals affirmed the appellant’s conviction in Epps and Bea v. State [No. 59, September Term, 1974, filed September 24, 1974.] That Court, in rejecting Epps’ claim that he had been denied a speedy trial, held that the four-month delay from ¹⁰² August 9, 1972 to December 28,1972 (almost a period of five months) was “chargeable to the State”; that the three and one-half-month delay from December 28,1972 until April 13, 1973 was “chargeable to the appellant”; and that the two-month delay from April 13 to June 12, 1973 and the two-month, nine-day delay from June 12 to August 22, 1973 was attributable to “neutral” causes. The Court concluded that the delay, solely attributable to the State, was not of “constitutional dimensions” and that Epps was not prejudiced by the unavailability of his alibi witness, for he “could, through appropriate military channels, have taken the deposition of his witness and could have read the same to the jury.” We disagree with both this reasoning and the result reached and conclude that the appellant was denied his right to a speedy trial within the guarantee of the Sixth Amendment to the U. S. Constitution and Article 21 of the Maryland Declaration of Rights. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . .” U. S. Const. Amendment YI. Article 21, Maryland Declaration of Rights, provides “That in all criminal prosecutions every man hath a right. . . to a speedy trial by an impartial jury. . . .” The Supreme Court in discussing this Sixth Amendment right in United States v. Ewell, 383 U. S. 116 (1966), in an opinion written by Mr. Justice White, stated: “This guarantee is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.

However, in large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ¹⁰³ ability of society to protect itself. Therefore, this Court has consistently been of the view that ‘The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances.

It secures rights to a defendant. It does not preclude the rights of public justice.’ Beavers v. Haubert, 198 U. S. 77, 87 . ‘Whether delay in completing a prosecution . . . amounts to an unconstitutional deprivation of rights depends upon the circumstances. . . . The delay must not be purposeful or oppressive,’ Pollard v. United States, 352 U. S. 354, 361 . ‘[T]he essential ingredient is orderly expedition and not mere speed.’ Smith v. United States, 360 U. S. 1,10 .” 383 U. S. at 120 . (emphasis added) The history of the application of the guarantee of the right to a speedy trial has been characterized by few criteria enunciated by the Supreme Court which have definitively and concisely articulated when the right has been violated.

See Dickey v. Florida, 398 U. S. 30, 40-41 (1970). That Court in Klopfer v. North Carolina, 386 U. S. 213, 223 (1967) made clear however that the right is “as fundamental as any of the rights secured by the Sixth Amendment” and is imposed by the Due Process Clause of the Fourteenth Amendment on the States. See Smith v. Hooey, 393 U. S. 374 (1969). Antecedent to 1972, on those few occasions when the question of the application of the right visited the Supreme Court, that Court acted on a case-by-case basis.

See Beavers v. Haubert, 198 U. S. 77 (1905); Pollard v. United States, 352 U. S. 354 (1957); United States v. Ewell, supra; Klopfer v. North Carolina, supra; Smith v. Hooey, supra; Dickey v. Florida, supra; United States v. Marion, 404 U. S. 307 (1971). This Court in Jones v. State, 241 Md. 599 , 217 A. 2d 367 (1966) in an opinion by Chief Judge Prescott, stated: “There is little difficulty in stating the law relating to the alleged denial of a speedy trial; however, there is considerable difficulty, at times, in applying that law to the circumstances of a ¹⁰⁴ particular case. This right to a ‘speedy trial’ is guaranteed to all who are accused of crime by Article 21 of the Maryland Declaration of Rights and by the Sixth Amendment to the Federal Constitution, both of which are self executing. Harris v. State, supra, [ 194 Md. 288 , 71 A. 2d 36 1950 )].

Since there is no definition of the term in the Constitutions, and the varied circumstances surrounding particular cases are innumerable, and, for the main part, unforeseeable, the term has properly been held to be a relative one, with the determination of the question as to whether or not an accused has been denied a speedy trial depending upon the facts of each particular case. State v. Murdock, 235 Md. 116 [ 200 A. 2d 666 (1964)].” 241 Md. at 608 , 217 A. 2d at 372-73 . In 1972, the Supreme Court, in Barker v. Wingo, 407 U. S. 514 (1972), pointed out that “[t]he right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused” and that “[i]n addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to the interest of the accused.” It then postulated that “the right to [a] speedy trial is a more vague concept than any other procedural rights,” that it is “impossible to determine with precision when the right has been denied” 407 U. S. at 519, 521 , and concluded that although a defendant’s constitutional rights to a speedy trial cannot be established by any inflexible rule, the denial of the right must be determined on an ad hoc basis balancing both the conduct of the prosecution and that of the defendant. In enunciating such a “balancing test” the Court identified four factors as criteria in determining through a “functional analysis” whether or not a particular defendant has been denied this Sixth Amendment right.

The Supreme Court rejected “two rigid approaches” which had been urged upon it as “ways of eliminating some of the ¹⁰⁵ uncertainty” in the application of the right. Finding “no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months” the Court rejected the criterion that a criminal defendant must “be offered a trial within a specified time period,” although recognizing that the states were “free to prescribe a reasonable period consistent with constitutional standards.” 407 U. S. at 523 . The Court similarly rejected the “demand-waiver doctrine” which “provides that a defendant waives any consideration of his right to speedy trial for any period prior to which he had not demanded a trial,” pointing out “[a] defendant has no duty to bring himself to trial; the state has that duty as well as the duty of insuring that the trial is consistent with due process” 407 U. S. at 527 . Compare Harris v. State, 194 Md. 288, 297-98 , 71 A. 2d 36,40 (1950) (decided prior to Barker v. Wingo).

Mr. Justice Powell, who delivered the opinion for the majority of the Court, stated: “We have shown above that the right to a speedy trial is unique in its uncertainty as to when and under what circumstances it must be asserted or may be deemed waived. But the rule we announce today, which comports with constitutional principles, places the primary burden on the courts and the prosecutors to assure that cases are brought to trial. We hardly need add that if delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine, the demand rule aside. “We, therefore, reject both of the inflexible approaches — the fixed-time period because it goes further than the Constitution requires; the demand-waiver rule because it is insensitive to a right which we have deemed fundamental. The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed [footnote omitted]” 407 U. S. at 529-30 .

(emphasis added) ¹⁰⁶ In formulating such “balancing test” the four factors enumerated were (a) length of delay, (b) the reason for the delay, (c) the defendant’s assertion of his right and (d) prejudice to the defendant. The length of delay was held by the Court to be the “triggering mechanism” since “[u]ntil there is some delay which is presumptively prejudical there is no necessity for inquiry into the other factors that go into the balance,” and since “the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.” 407 U. S. a¡ 530-31. The Court observed that a “nine months” delay “may be wholly unreasonable under the circumstances.” 407 U. S. at 528 . The Barker Court noted that “[c]losely related to the length of delay is the reason the government assigns to justify the delay,” pointing out as one extreme that “[a] deliberate attempt to delay the trial in order to hamper the defense should be more heavily weighed against the government” while “[a] more neutral reason, such as negligence or over crowded courts should be weighed less heavily, but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” The Court was of the view that a “valid reason, such as a missing witness, should serve to justify appropriate delay” as an example of the opposite extreme.

Although the Supreme Court rejected the “demand-waiver doctrine,” as a rigid criterion, it concluded that a defendant’s assertion or failure to assert his right to a speedy trial was nonetheless one of the factors to be considered; it held that an assertion of such right “is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right,” since a “failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” 407 U. S. at 531-32 . In discussing the factor of prejudice the Court identified three interests of defendants which the speedy trial right was designed to protect: (i) to prevent oppressive pre-trial incarceration; (ii) to minimize anxiety and concern of the ¹⁰⁷ accused and (iii) to limit the possibility that the defense will be impaired. The Court was of the view that the last of these was the most serious interest “because [of] the inability of a defendant adequately to prepare his case skews the fairness of the entire system;” that prejudice to the defendant “is obvious” if witnesses die or disappear during the delay and that there is equal prejudice if defense witnesses are unable to recall accurately events of the distant past. The Supreme Court additionally pointed out that where the defendant is “locked up” in jail during the interval “he is hindered in his ability to gather evidence to contact witnesses or otherwise prepare his defense.” 407 U. S. 532 -33.

In connection with the application of the criteria in the “balancing test” Mr. Justice Powell stated further: “We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process, [footnote omitted] But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.” 407 U. S. at 533 . 5 ¹⁰⁸ In Barker v. Wingo, the Court, while recognizing that a violation of the right to a speedy trial “leads to the unsatisfactorily severe remedy of dismissal of the indictment” with a result that a “defendant who may be guilty of a serious crime may go free without having been tried” nevertheless held that dismissal is the “only possible remedy.” 407 U. S. at 522 . The standards enunciated in Barker were referred to in Strunk v. United States, 412 U. S. 434 (1973), holding that dismissal was “the only possible remedy” where a speedy trial had been denied, and were re-stated in Moore v. Arizona, 414 U. S. 25 (1973) in rejecting the view, under the test in Barker , that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right.

Antecedent to the holdings in Barker v. Wingo, supra, from a massive corpus of case law — in both this Court and in the Court of Special Appeals certain fundamental principles had been thoroughly distilled. Pre-eminent was that the right to a speedy trial is relative and that the time within which trial must be held to satisfy the constitutional guarantee depends on the facts and circumstances of each particular case; that in evaluating those facts and circumstances on a case-by-case basis four factors came into play. They were: (1) the length of the delay, (2) the reason for the delay, (3) prejudice to the accused and (4) waiver by the accused. See State v. Lawless, 13 Md. App. 220, 226-27 , 283 A. 2d 160, 166 (1972) and cases therein cited at n. 5, 6.

Save for the one factor of “waiver by the accused” the standards applied were identical to those later enumerated in Barker . Subsequently, the Barker-Wingo “balancing test” and its criteria have been consistently applied by the Court of Special Appeals. See State v. Hunter, 16 Md. App. 306, 314-15 , 295 A. 2d 779, 783 (1972), pointing out that the Supreme Court in Barker had rejected “the rule that a defendant who fails to demand a speedy trial forever waives his right” and had stated that “the better rule is [that] the defendant’s assertion of, or failure to assert, his right to a ¹⁰⁹ speedy trial is one of the factors to be considered.” See also State v. Jones, 18 Md. App. 11, 16-18 , 305 A. 2d 177, 180-81 (1973) which noted that “[i]n the first full analysis of the speedy trial right ever undertaken by the Supreme Court, Barker ameliorated the foreclosing effect of waiver, in one of its aspects at least,” when it rejected the “demand-waiver doctrine” but further observed “that a defendant’s conduct which causes delay will not redound to the detriment of the State, whether the result is reached by simply subtracting this time period from the ‘delay’ factor ab initio or by considering it as ‘waiver,’ by affirmative conduct.” In making our independent constitutional appraisal of whether the appellant was denied his constitutional right to a speedy trial we must under the holding in Barker v. Wingo “engage in a difficult and sensitive balancing process” in which “the conduct of both the prosecution and the defendant are weighed” and “considered together with such other circumstances as may be relevant” the four enumerated and related factors. 407 U. S. at 533 . Realizing that Barker “prescribes ‘flexible’ standards based on practical considerations,” Strunk v. United States, supra, at 438, and that the “right to a speedy trial is not a theoretical or abstract one but one rooted in hard reality in the need to have [the] charges promptly exposed” Dickey v. Florida, 398 U. S. 30, 37 (1970), we must determine whether the State did “discharge its ‘constitutional duty to make a diligent, good-faith effort to bring [Epps] [to trial]’.” Moore v. Arizona, supra, at 26; Smith v. Hooey, supra, at 383.

(a) Length of Delay For purposes of the right to a “speedy trial,” consideration of any delay in bringing the appellant’s case to trial requires a computation from the date on which the defendant became “an accused,” from the date he was subjected to “actual restraints imposed by arrest and [held] to answer [the] criminal charge” (August 9, 1972) up until the date his case was tried (August 22, 1973). See United States v. Marion, supra, at 320; State v. Hamilton, 14 Md. App. 582,586 , 287 A. 2d 791, 793-94 (1972); see also State v. Jones, supra, at 15-16, 305 A. 2d at 180 ; State v. Hunter, supra. ¹¹⁰ The appellant, of course, upon being charged “was not entitled to demand an immediate trial,” Jones v. State, supra, at 610, 217 A. 2d at 374 ; sufficient time must be allowed for the reasonable preparation of the case on the part of the prosecution and for the orderly processes of the case “because of the many procedural safeguards provided an accused.” United States v. Ewell, supra; State v. Lawless, supra. For “speedy trial” purposes the delay involved is reckoned only in connection with “the passage of time beyond that which is obviously within the requirements of orderly procedure.” State v. Lawless, supra, at 230, 283 A. 2d at 169 . In Barker v. Wingo, the Supreme Court expressed the view that an interval of nine months “may be wholly unreasonable under the circumstances.” 407 U. S. at 528 .

See United States v. Butler, 426 F. 2d 1275, 1277 (1st Cir. 1970), cited in Barker v. Wingo, where a delay of nine months was held overly long, absent a good reason, in a case that depended on eye-witness testimony. In Jones v. State, supra, this Court applied the constitutional guarantee where there was a delay of nearly ten months in a trial for armed robbery. See also Caesar v. State, 10 Md. App. 40 , 267 A. 2d 750 (1970) (where there was a delay of twelve months which was occasioned “to meet the convenience of individuals”), and Barnett v. State, 8 Md. App. 35 , 257 A. 2d 466 (1969) (where a delay of eight months was sufficiently significant to require a remand for further evidentiary findings in connection with the assertion by the appellant that a witness who could substantiate a valid defense had become unávailable as a result of the delay.) In Dickey v. Florida, supra, Mr. Justice Brennan in his concurring opinion