Falcon v. State

Morton, J., delivered the opinion of the Court. The Appellant was convicted of second degree murder by a jury in the Criminal Court of Baltimore and sentenced to a term of twelve years. In this appeal, he first contends that he was denied his constitutional right to a speedy trial. The record indicates that at approximately 11:00 P.M. on August 18, 1966, a police officer found the deceased lying in the middle of the street bleeding from multiple stab wounds ⁴⁶⁹ about the face and head.

He was taken to a hospital where he died, as a result of the wounds, on November 25, 1966. The Appellant was arrested on August 19, 1966, and incarcerated on a charge of assault with intent to murder. He remained in jail on this charge until November 25, 1966, at which time the charge was changed to murder. He continued in jail, without bail, from that date until trial.

Counsel was retained by the Appellant on January 9, 1967. A petition for a Writ of Habeas Corpus was filed; a hearing thereon was held January 23, 1967; and it was ordered that unless the Appellant were indicted by January 24, 1967, the Writ would be granted. An indictment was returned within the time specified; the case was scheduled for trial on February 28, 1967, but postponed at the request of the State because of the unavailability of certain witnesses. It was re-scheduled for March 28, 1967, but not reached for trial until March 29, 1967.

The period of time from the murder indictment, upon which he was convicted in this case, and his trial thereon, amounted to approximately three months. During this time, the Appellant made no demand for a speedy trial and he has not alleged or shown that he suffered any actual prejudice by the failure of the State to bring the case to trial at an earlier date during this period. Absent such a showing, he has not been denied his right to a speedy trial. Fabian v. State, 3 Md. App. 270, 286 .

He argues, however, that the period from August 18, 1966, the date of his arrest, to the date he was charged with murder should be considered in determining whether he was denied his right to a speedy trial. The State accounts for the delay in bringing the Appellant to trial during this period by asserting that the victim was too ill to testify and that without his testimony the State could not proceed to trial. While we are at a loss to understand why bail procedures were apparently not available to the Appellant, the fact remains that the charge pending against him during this period was assault with intent to murder and this charge was dismissed on November 25, 1966, or shortly thereafter. During that period, no prosecution for murder, the crime of which he now stands convicted, had been, or could have been placed against him. ⁴⁷⁰ The Court of Appeals of Maryland, and this Court, have held, with exceptions not here pertinent, that the right to a speedy trial does not arise until a prosecution has been instituted and an accused cannot successfully complain of delay in the institution of the prosecution if it is within the applicable period of limitations.

Miller v. State, 239 Md. 136, 139 ; Price v. State, 235 Md. 295, 299 ; Osborne v. State, 3 Md. App. 161, 163 ; Brown v. State, 1 Md. App. 571, 575 . Thus, the Appellant’s argument that the period from his arrest to the date of his prosecution for murder should be considered in determining whether he was denied his right to a speedy trial on the murder charge must fail in the face of this well established principle. As this Court said in Osborne v. State, supra: “While it is true that both the Sixth Amendment to the Federal Constitution and Article 21 of the Maryland Declaration of Rights give an accused the right to a speedy trial, these constitutional mandates have never been extended to encompass an alleged right to a so-called speedy indictment * * The Appellant also contends that he “was denied a preliminary hearing as required under Mallory v. United States, 354 U. S. 449 .” Mallory , on its facts and holding, applies only to federal cases and not to state proceedings. Bean v. State, 234 Md. 432, 444 .

In Fabian v. State, supra, we held that “an accused has no ‘absolute right’ to a preliminary hearing whether he be indicted or charged under a criminal information.” Finally, the Appellant urges that the evidence demonstrated that he acted in self defense and, therefore, the jury’s verdict was in error. It was stipulated by the State and the defense