Fields v. State

DAVIS, Judge. STATEMENT OF THE CASE Appellants, Darnell “Pooh” Fields and Clayton “Coco” Colkley were charged with the first-degree murder of James “Buck” Bowens, the attempted first-degree murder of Yvette Hollie and William Courts, the first-degree assault of Hollie and Courts, conspiracy to murder Courts and related weapons offenses. Trial was conducted from March 24, 2005 to April 1, 2005 in the Circuit Court for Baltimore City (Glynn, J.) and a jury convicted Colkley of the second degree murder of Bow-ens, attempted first degree murder of Courts and both appellants of the assault of Courts in the first-degree and conspiracy to murder Courts, the use of a handgun in the commission of a crime of violence and the unlawful wearing or carrying of a handgun. On May 24, 2005, the court imposed an aggregate sentence of forty-five years for Fields and life imprisonment plus fifty years for Colkley.

Appellants appealed their convictions separately which we combine and restate as follows. QUESTIONS PRESENTED 1. Did the trial court err when it received a jury note and never informed appellants, nor defense counsels, of the note, nor of what, if any, response the court would give, thereby denying appellants of the right to be present at a critical stage of the trial and the right to provide input for the court’s response to the jury? 2. Did the trial court err in refusing to dismiss the charges against appellants based on the denial of a speedy trial considering that: 1) there was over a [twenty] month delay between appellants’ arrest and trial; 2) the delay was overwhelmingly attributable to the State; 3) appellants continually demanded a speedy trial and argued against continuous postponements; and 4) the prejudice to appellants of such a lengthy period of pre-trial incarceration is apparent and well-recognized? ⁵⁰⁴ 3.

Did the trial court err in refusing to grant Fields’ motion for a mistrial when a police officer, in response to a prosecutor’s question, indicated that [eight] bags of marijuana had been found at a house where Fields resided, thereby corroborating earlier claims by a State’s witness that Fields was a marijuana dealer? The following issues are presented only by appellant Colkley: 4. Was Colkley tried in violation of Criminal Procedure Article § 6-103? 5. Did the trial court err in admitting irrelevant and prejudicial other crimes evidence as to Colkley? 6.

Did the State present insufficient evidence to convict Colkley of conspiracy to commit murder? Because we answer appellants’ first question in the affirmative, we shall reverse appellants’ convictions and remand for further proceedings. Although appellants’ claims that they were denied the Constitutional right to a speedy trial presents a close question in our view, we affirm the circuit court’s denial of appellants’ motions to dismiss. For guidance of the circuit court on remand, we shall reach the three questions raised only by appellant Colkley and the third question raised by Fields, affirming the trial court as to those issues.

STATEMENT OF FACTS This case emanates from a shooting which occurred in the area of Lafayette Avenue and Port Street in Baltimore City on the evening of May 28, 2003, which left Bowens dead and William Courts and Yvette Hollie wounded. Following the shooting, co-defendants Fields and Colkley were arrested. Neither Courts nor Hollie identified appellants as the shooters. Courts testified that, at the time of the shooting, he was sitting by himself on the steps of a house in the middle of the 1700 block of Port Street drinking beer and Jack Daniels.

Bowens or “Buck” was down the street. At some point, Courts heard a car slam on its brakes. The car was gray and ⁵⁰⁵ had “dark tinted” windows. Someone wearing a baseball cap — Courts did not see who as he kept his head down— “hopped out” of the car and shot him.

Courts attempted to flee, but fell to the ground and the gunman stood over him and continued shooting. Courts was later taken to Johns Hopkins Hospital, where he was treated for ten gunshot wounds to his chest, stomach, side, back, hip and arm. Courts subsequently learned that Bowens and Hollie had also been shot and that Bowens had died. Courts did not recall Bowens saying anything to him or to anyone in the gray car prior to the shooting.

He also was not acquainted with Colkley or Fields and did not know why anyone, including Colkley and Fields, would want to kill him or Bowens. Hollie testified that she was visiting friends on Port Street at the time of the shooting. While sitting outside drinking, she heard gunfire coming from the direction of Lafayette Avenue. Hollie attempted to get children playing in the vicinity indoors and, as she did so, she felt a stinging sensation in her right arm and realized she had been shot.

Hollie later gave a statement to Detective Sergeant Darryl Massey (hereinafter Sergeant Massey) in which she indicated that she looked up when the shooting began and saw a person getting out of a car in the middle of the street holding a gun. Hollie also stated that she knew Colkley from when she was a child and would have recognized him had she seen him outside that day. Hollie met prior to trial with Colkley’s attorney, Howard Cardin, whom she advised that she did not see Colkley or Fields that day. The sole witness to identify appellants as the shooters at trial was Jermaine “Polish” Lee.

According to Lee, on May 28, 2003, he was sitting on the steps of a vacant house on Port Street drinking beer with Bowens and Courts when an “older model boxed four door” car rapidly pulled around the corner from Lafayette Avenue. Fields was driving the car, which had tinted windows. Lee and his friends were “on point,” or on their guard, because of a shooting in January of that year, but Bowens told them to “chill” when he saw that Fields was driving the car. Bowens then approached the passenger side ⁵⁰⁶ of the car with his hand “in his dip.” At that time, Colkley opened the passenger door and came out of the car “in a falling motion,” shooting Bowens in the chest.

Bowens ran in the direction of Lafayette and Fields got out of the car and began shooting. The back doors of the car opened, but Lee did not see who got out because he ran away as well. While fleeing, Lee turned down an alley and made his way to a friend’s house to call for an ambulance. He went outside shortly thereafter and found Bowens lying on the ground in front of a store at the corner of Milton Avenue and Lafayette, but left without waiting for the ambulance to arrive.

Lee described Bowens and Courts as his close friends, but did not discuss the shooting with the police until his subsequent arrest where he was held without bail on July 2, 2003. Arrested with two other men, Qonta “Little Guy” Waddell and Broderick “Billy” Campbell, and a juvenile, Lee was charged with multiple handgun and drug offenses. On or around July 23, 2003, Lee informed a corrections officer that he wished to speak to the police and, within a few hours, he was transported to the police department, where he identified appellants as the individuals he saw exit the car on Port Street and shoot Bowens and Courts. Wfiiile he was in the Baltimore City Detention Center following his arrest, Lee was contacted by Derrick Tummer, a fellow inmate, who arranged a meeting with Colkley in the prison.

At the meeting, although Colkley did not do anything to physically intimidate him, Lee testified that he agreed to sign an affidavit offered by Colkley because Lee “was scared for [his] life.” On November 25, 2003, Lee met with Cardin and signed a statement indicating that, before meeting Colkley in the detention center, he had never seen Colkley before. At the time of trial, the charges against Lee from his arrest in July 2003 were still pending and, additionally, he faced another charge for bringing drugs into a jail facility as well as a violation of probation for distribution of cocaine for which he could receive an additional six years in prison. Lee was unable to post bond until his bail was reduced by fifty percent in November or December of 2003. Lee had not been threat ⁵⁰⁷ ened or expressly promised anything in exchange for his testimony, but Lee admitted that he was “hoping it [would] maybe help [him] out” and evidence introduced at a motions hearing on March 22, 2005 indicated that he told the prosecutor and a detective that he believed he would get a benefit in his cases if he cooperated.

Waddell and Campbell, the men with whom Lee was arrested in July of 2003, recanted at trial statements to the police wherein they implicated appellants in the shooting. According to Waddell, who was given immunity to testify, he was with a woman named Tiffany Smith at a Holiday Inn on Moravia Road in Baltimore on May 28, 2003. Waddell denied that he knew appellants and stated that he was unable to identify either of them. Within days of the May 28th shooting, Waddell, who admittedly sold drugs in the area of Lafayette Avenue and Port Street, was driving with David Courts, William’s brother.

David was shot and the car crashed into a bridge abutment. David was killed and Waddell was subsequently arrested and charged with possessing a handgun in the car, made bail and was arrested again on July 2, 2003 with Lee and Campbell. The following day, Sergeant Massey took Waddell’s taped statement, which was played at trial, in which he indicated that he had asked to speak to Sergeant Massey after he was arrested. In the taped statement, he told Sergeant Massey that he witnessed the shooting of Bowens and Courts on May 28, 2003.

According to Waddell, he was standing at the “top of the street” when a gray-colored Grand Marquis with a purple roof drove down the street and stopped. Bowens, who was standing next to the passenger side of the car, approached and said, “That’s Pooh,” referring to Fields, a man Waddell had purchased marijuana from in the past. Four people with guns — Fields from the driver’s door, Colkley from the right rear door and a man named “Penguin” from the left rear door 1 — exited the car and began shooting. Waddell hid be ⁵⁰⁸ hind a van during the shooting and, after the gunmen returned to their vehicle and left, he departed without checking on any victims.

From photographic arrays, Waddell identified Colkley and Fields and, from a third array, Waddell identified a man named “Edward,” who, he alleged, got out of the rear seat of the car on the driver’s side and fired a gun down the street. Contrary to Sergeant Massey’s testimony, Waddell maintained at trial that he was high on cocaine during the entire questioning and could not recall any of his identifications or the recorded account of the shooting. However, he admitted that his motivation for more drugs fueled his desire to get out of jail following his arrest in July of 2003 and, thus, he had a reason to speak to the police. Waddell subsequently met with Colkley’s attorney after obtaining his business card from a fellow inmate.

After Colkley’s attorney explained that, because he represented Colkley, he could not simultaneously represent Waddell, he asked Waddell to discuss the case and Waddell agreed to talk, stating that, although he knew Colkley, he had not seen him shoot anyone. Campbell also testified that he was at the corner of Lafayette and Milton “[h]elping someone” on May 28, 2003 and, thus, was not present during the incident at issue. At the sound of gunfire, he then ran North along Milton Avenue in the direction of North Fulton Street. Campbell was transported to the police station on July 3, 2003 after his arrest with Waddell and Lee, where he gave a taped statement to Sergeant Massey, which was played for the jury.

His statement indicated that he was on Lafayette Avenue “looking at a girl’s pictures” when a silver Marquis with tinted windows and a burgundy roof turned onto Port Street without slowing down. Bowens and Courts were in the ⁵⁰⁹ middle of the street and, as Campbell rode his bicycle to the corner, he saw four men get out of the car and shoot down the street; he then jumped off of the bike and leaned against a wall. The driver of the car, who Campbell had been told was a man named “Pooh,” had “dreads.” The man who alighted from the right rear passenger seat was wearing a yellow shirt. Campbell also heard another person shooting from a different direction and, after the shooting ceased, he saw Courts on the ground with gunshot injuries and learned that Bowens had been shot as well and was around the corner.

Campbell denied having a gun that day but acknowledged that a man named Edwin Boyd was there and had also been shot. In a second statement to the police on July 7, 2003, which was also played at trial, Campbell described the car in which the shooters arrived as a “silver Crown Victorian” with a burgundy roof and identified Fields as the driver and Colkley as the passenger in the back seat wearing a yellow shirt. Campbell denied seeing the other two passengers fire any shots. He heard about twelve shots fired from what he believed was an “automatic revolver,” such as “a nine or a thirty-eight,” and because some of the bullets came in his direction, he fled.

Campbell also identified Colkley from a photographic array. Campbell testified that he was taken to the police station against his will and told what to say by Sergeant Massey. Sergeant Massey threatened him with a charge of the attempted murder of Boyd to ensure his compliance. Sergeant Massey also told him that his one million dollar bail would not be reduced if he did not cooperate.

Sergeant Massey and Detective Kerry Snead, who was present during Campbell’s second interview, denied promising Campbell anything, threatening him or telling him what to say in his statement. After he had been in jail for two months, Campbell’s family posted his bail, but he was arrested again in December of 2003 for the attempted murder of a police officer. When he was returned to prison, he arranged through another inmate, whom he identified as Stanley Bronson, to meet with Colkley’s ⁵¹⁰ attorney. Colkley, in shackles, along with his attorney, visited Campbell on February 3, 2004.

The State presented evidence that Boyd went to the hospital on his own sometime after the shooting seeking treatment for a gunshot wound to his left eye. In a taped statement to Sergeant Massey on June 13, 2003, Boyd identified Campbell as the person who shot him. A week later, Sergeant Massey received a telephone call from Jack Rubin, a criminal defense attorney, who stated that he was representing Boyd, that Boyd did not know anything about the shooting, and that Sergeant Massey should not contact Boyd directly anymore. Boyd, who the State alleged to have been one of the shooters on May 28, 2003, died prior to trial and, therefore, was unavailable to be called as a witness by either side.

Appellants were arrested on July 9, 2003 and were interrogated at the police station and told by Sergeant Massey that appellants and Boyd were suspects in the May 28th incident. At some point, Fields began crying and said that “he was scared.” Field’s interrogation was not taped. Sergeant Massey also informed Colkley that he was a suspect in the shooting. Colkley denied having any knowledge about the incident but admitted that he “knew of’ Courts.

Colkley also indicated that he was with Rubin and Boyd when Rubin called Sergeant Massey and that Rubin had advised him that Boyd’s statement would not be admissible in court because Boyd was a juvenile and his parents were not present during his interrogation. Over objection by defense counsel, Sergeant Massey testified that Colkley stated “several times” that he was “going to beat these bodies.” Finally, Colkley denied knowing “Fields or a Poo[h].” However, as Sergeant Massey was escorting Colkley away from the interrogation room, Colkley “yelled” at the door to the holding room in which Fields was located “Yo Yo Poo[h] what you telling them people.” Ballistics evidence recovered from the scene included twenty-six nine millimeter and .45 caliber cartridge cases, three nine millimeter bullets, a .38 or .357 caliber bullet, and a .38 or ⁵¹¹ .357 caliber bullet jacket. Bullets and cases were found in the middle of the 1700 block of Port Street where Courts was shot, and others, including a number of the nine millimeter cases, were collected further north near the intersection of Port Street and Lafayette Avenue. A bicycle, believed to belong to Campbell, was recovered near the shell cases that were found on Lafayette Avenue.

James Waxter, who testified for the State as an expert in firearms identification, had determined that at least four guns had been fired based upon that evidence. Waxter opined that additional guns also may have been fired because insufficient markings on two of the .45 caliber cases and one of the nine millimeter bullets made identification of which gun was used to fire them impossible. While at the hospital, Bowens, Courts and Boyd were tested for gunshot residue. The test for Bowens came back negative, but Courts and Boyd were found to have gunshot residue on both of their hands.

Bowens’ autopsy, performed by Dr. Zabiullah Ali, indicated that he was killed by a single gunshot wound to the right side of his chest. Sergeant Massey testified that the bullet was a nine millimeter. The sole witness called by the defense was Colkley who testified that, in May 2003, he was living at 2648 North Port Street and working at Eastside Tire installing car stereos. He denied being in the 1700 block of Port Street on the evening of May 28, 2003, or taking part in the shooting.

Colkley also denied saying anything to Fields at the police station following their arrest and testified that he told Sergeant Massey that he knew a man named Pooh, but did not know him by the name of Darnell Fields. Colkley, who was twenty-nine years old at the time of trial, admitted that he had been convicted of selling drugs between his 18th and 19th birthdays. Colkley met Tummer while awaiting trial and found out that Tummer also had a case pending involving Lee. Colkley arranged to meet with Lee upon learning that Lee informed Tummer that Colkley had nothing to do with the shooting.

At the meeting, Lee agreed to give a statement to Colkley’s ⁵¹² counsel to that effect. Additional facts will be provided as warranted. DISCUSSION I Appellants initially claim that the trial court erred when it received a jury note and never informed appellants, nor their defense counsel, of the note, or of what, if any, response the court would give, thereby denying appellants their right to be present at a critical stage of the trial and their right to provide input for the court’s response to the jury. The official record contains a note, not reflected in the transcripts, apparently from juror number seven, marked as “Court’s Exhibit #4.” The juror note asks the following questions: “Where [sic] there different kinds of shell casing or How many different gun [sic] were used during the shooting.” The note further asks “Was the same gun use to shoot all [of] the victims.” Appellants contend that neither they nor their counsel were aware of this communication and, as such, were not given a chance to be present during this communication, if any, between the jury and the trial court.

Further, they were unaware of what, if any, response the Court gave to the jury to address this note. Because appellants and their trial counsel were completely unaware that this juror note was submitted to the court, appellants could not have made a knowing and intelligent waiver of their right to be present or to be represented by counsel during this critical stage. Thus, as the record is absolutely silent on how this note was handled by the court, it is clearly reversible error. In support of this assertion that they had an absolute right to be present at “every stage of the trial,” they cite Md. Rule 4 — 326(d), Articles 5 and 21 of the Maryland Declaration of Rights, the Sixth and Fourteenth Amendments of the United States Constitution and Maryland common law.

See Porter v. ⁵¹³ State, 289 Md. 349 , 424 A.2d 371 (1981); Taylor v. State, 352 Md. 338 , 345 — 46, 722 A.2d 65 (1998). Further, this right is substantive and absolute. Stewart v. State, 334 Md. 213, 225 , 638 A.2d 754 (1994). The record is devoid of any reference to the note at issue labeled as “Court’s Exhibit #4.” As appellants assert, neither the transcripts nor record reveal any communication with the jury about the note.

Furthermore, neither Fields nor Colkley have any recollection of the note nor did prosecutor Gerard B. Volatile. The trial judge indicated that he did not remember the note, but opined that he would have instructed the jury to “decide the case on the evidence” and “[t]here is no chance [the court] would have simply ignored the note if [it] knew about it.” The trial judge suspected “that it may have been dealt with in the midst of other cases and that portion of the proceeding was not transcribed.” The Court of Appeals, in Denicolis v. State, 378 Md. 646, 657-59 , 837 A.2d 944 (2003), considered a claim similar to that asserted in the case sub judice. A note received by the court in Denicolis was marked as an exhibit, but the record revealed no mention of or response to it. Denicolis, 378 Md. at 653 , 837 A.2d 944 .

It was “not time-stamped, and apparently counsel were unaware of it until after the verdict had been taken____” Id. Because, in the case at bar, it is “not so clear cut” whether the trial judge informed the parties of the note, the State argues that “[t]he failure to recall does not necessarily mean that the note was not properly handled by the trial court.” An appellant has the burden of producing a record to rebut the general presumption that a trial court’s actions are correct. Denicolis, 378 Md. at 657 , 837 A.2d 944 (citing Mora v. State, 355 Md. 639, 650 , 735 A.2d 1122 (1999)). In the instant case, the State argues that the affidavit from the trial judge is the record that appellants must prove defective and absent an affirmative statement that the note was not discussed, we should hold that there was compliance with Rule 4-326. ⁵¹⁴ Maryland Rule 4 — 326(d), in setting the parameters for communications with the jury, provides: [t]he court shall notify the defendant and the State’s Attorney of the receipt of any communication from the jury pertaining to the action as promptly as practicable and in any event before responding to the communication.

All such communications between the court and the jury shall be on the record in open court or shall be in writing and filed in the action. The clerk or the court shall note on a written communication the date and time it was received from the jury. Thus, the trial court must notify the parties of any communication before responding to it. Denicolis, 378 Md. at 657 , 837 A.2d 944 .

The notes received in Denicolis came after the jury retired to deliberate. Id. at 653 , 837 A.2d 944 . The note at issue in Denicolis asked for a definition of solicitation and the record reflected no response or any mention of the note. Id.

The State contends that the note at issue was not a request, as in Denicolis , for a legal definition, but rather for clarification of the evidence, which in any event would have been handled by the trial judge with an admonition to the jury to decide the case based on the evidence before it. There is no possibility of a prejudicial answer and thus, it posits, there can be no “non-harmless” error before this Court. The Court in Denicolis held that the failure to inform appellant or his attorney about the note received by the trial court constituted error. Id. at 658 , 837 A.2d 944 .

Seizing upon the court’s affirmation that “there is no chance we would have simply ignored the note if we knew about it” and “it may have been dealt with in the midst of other cases,” the State maintains that “a trial court’s actions and decisions are generally presumed to be correct” and it is appellants’ burden “to produce a record sufficient to show otherwise.” Denicolis, 378 Md. at 657 , 837 A.2d 944 , citing Mora v. State, 355 Md. 639, 650 , 735 A.2d 1122 (1999). The State’s argument is circular. The very circumstances extant, i.e., the fact that there was no ⁵¹⁵ proceeding, at which appellants could have developed a trial record, absolves appellants of any responsibility or burden to produce a record. At most, the State’s only argument would be that the content of the note did not relate to the jury’s deliberations.

Under the circumstances, any burden to show that the failure to properly respond to the jury communication pursuant to the dictates of Maryland Rule 4-326 was harmless rests squarely on the State. The record must affirmatively show that the failure to respond to the communication was not prejudicial. Id. at 659 , 837 A.2d 944 (citing Noble v. State, 293 Md. 549, 563 , 446 A.2d 844 (1982)). In the usual fact pattern, the complaint is that the record reflects that a trial judge has received and responded to a communication from the jury in the absence of the accused and/or his attorney.

In such case, the asserted violations are that a defendant has been denied the right to be present at a critical stage of the proceedings and, therefore, unable to object to an allegedly inappropriate response by the court or offer a response that the defendant contends to be appropriate and argued to be — in some instances — a more direct response to the question posed by the jury than that proposed by the trial judge or prosecutor. The unclear and inexplicable circumstances surrounding the pedigree and disposition of State’s Exhibit # 4 present different potential deprivations of appellants’ rights. We cannot know whether appellants were denied the right to be present at a time — clearly a critical stage of the proceedings — that the court considered and responded to the jury note. We are further not aided by the affidavits submitted by counsel indicating that they have no recollection of the existence of— or response to — the note, or by the court’s affidavit indicating that it would have routinely advised the jury that it should rely on its recollection of the evidence and that the disposition of the note may have been transcribed during another court proceeding.

Moreover, we are not persuaded by the State’s attempt to distinguish Denicolis on the basis that, in that decision, the court was confronted with a request for clarification of a legal issue — the definition of solicitation — as opposed ⁵¹⁶ to a factual issue, as here, where the jury wanted clarification of the testimony of the firearms expert as such testimony was probative as to who and how many gunman fired shots killing Bowens and wounding Hollie and Courts. Regarding the fact that the note made inquiry about a factual matter, because the note was not date stamped or time stamped, the possibility exists that the note was submitted before the jury retired to begin its deliberations. If submitted before the defense rested its case, appellants could have tailored their presentation to address the jury’s concerns and, at any time before the conclusion of all of the evidence, they could have moved to reopen their case. Assuming the note was submitted after the jury retired to deliberate, because of the centrality to criminal agency of the question posed, the error in the failure to afford appellants an opportunity to offer input cannot be harmless.

Aside from the fact that the response, if any, is not reflected in the record and thus is unknown, appellants could have offered proposed responses, including, but not limited to, requesting that the trial judge order the court reporter re-read the testimony of the expert witness. We hold that the failure to afford appellants the opportunity to be present when or if the court disposed of the note in the case at hand constituted error under Denicolis . But, in this case, where we cannot know whether the court acted at what would have undisputedly been a “critical stage,” the mere failure of the jury to receive a response to its communication denied appellants’ rights. Stated otherwise, even if Denicolis were arguably not implicated, an equally significant right is denied.

Although we do not know what action was taken in response to the jury’s note, what we do know is that the note was submitted and marked as an exhibit in the proceedings and what we must surmise is that there is a real possibility, if not probability, that the jury never received an answer to a substantive question it deemed important to its determination of who murdered Bowens and wounded Hollie and Courts. ⁵¹⁷ Sixty years ago, the Supreme Court of the United States, in Bollenbach v. U.S., 326 U.S. 607, 612-13 , 66 S.Ct. 402, 405 , 90 L.Ed. 350 (1946), explained: The jury was obviously in doubt as to Bollenbaeh’s participation in the theft of the securities in Minneapolis and their transportation to New York. The jury’s questions, and particularly the last written inquiry in reply to which the untenable ‘presumption’ was given, clearly indicated that the jurors were confused concerning the relation of knowingly disposing of stolen securities after their interstate journey had ended to the charge of conspiring to transport such securities. Discharge of the jury’s responsibility for drawing appropriate conclusions from the testimony depended on discharge of the judge’s responsibility to give the jury the required guidance by a lucid statement of the relevant legal criteria. When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy.

(Emphasis added). Thus, we are not required, on this appeal, to determine whether the actions of the trial judge in responding to a jury communication constituted error or harmless error because we simply do not know what the response, if any, was. We hold that, because the burden is on the State to demonstrate that any error was harmless, the failure to afford appellants an opportunity to participate in determining the proper response constitutes reversible error. We shall therefore reverse and remand for further proceedings.

II A Appellant Colkley contends that he was tried in violation of the statutory right to a speedy trial under Maryland Rule 4-271 and Maryland Code Annotated, Criminal Procedure Article § 6-103. 2 Colkley grounds the contention on the fact that ⁵¹⁸ over one year and eight months passed between his arrest and trial. “During that time, his case was postponed at least five times, always over his objection, for reasons including the unavailability of the court, the State’s Attorney, and the State’s witnesses.” Colkley assigns error to the trial court’s denial of his motion to dismiss because the postponements were unreasonable. We disagree. The timeline from appellants’ arrests and first appearance of counsel and the trial of Fields and Colkley is as follows: July 9, 2003 Colkley and Fields arrested Aug. 4, 2003 Indictments filed. Oct. 7, 2003 Defendants arraigned; counsel enter appearances.

Oct. 14, 2003 Colkley files motion for speedy trial. Dec. 18, 2003 Prosecutor, Carrie Bauer, enters appearance on behalf of the State. Feb. 4, 2004 First trial date; postponement requested by counsel for Fields; postponement by the State in case against Colkley; administrative court finds good cause to postpone beyond 180-days. Feb. 13, 2004 Motion to Dismiss filed by Colkley.

April 5, 2004 180-day (Hicks) deadline. May 10, 2004 Second trial date; postponement due to court unavailability; all parties indicate readiness for trial; administrative court finds good cause. June 17, 2004 Prosecutor, Gerald Volatile, enters appearance on behalf of the State. Oct. 19, 2004 Fourth trial date; postponement requested by the State because prosecutor unavailable due to another trial as well as unavailability of the trial court; administrative court finds good cause; case rescheduled for January 12, 2005.

Jan. 5, 2005 State requested postponement due to heavy workload relating to a new position he was given within the State’s Attorney’s Office and the complicated circumstances of the cases against Colkley and Fields, including the immunity requests for the State’s witnesses; administrative court finds good cause and, taking into consider ⁵¹⁹ ation the schedules of all parties, sets trial date for March 22, 2005, “the nearest in time we could find good cause to get it in.” March 22,2005 Motions to Dismiss, in limine, argued. March 24, 2005 Motion to Dismiss denied; jury sworn In Maryland, the scheduling of a Criminal proceeding is governed by Section 6-103 3 of the Criminal Procedure Article. Section 6-103 reads: (a) Requirements for setting date. — (1) The date for trial of a criminal matter in the circuit court shall be set within 30 days after the earlier of: (1) the appearance of counsel; or (ii) the first appearance of the defendant before the circuit court, as provided in the Maryland Rules. (2) The trial date may not be later than 180 days after the earlier of those events.

(b) Change of date. — (1) For good cause shown, the county administrative judge or a designee of the judge may grant a change of the trial date in a circuit court: (1) on motion of a party; or (ii) on the initiative of the circuit court. (2) If a circuit court trial date is changed under paragraph (1) of this subsection, any subsequent changes of the trial date may only be made by the county administrative judge or that judge’s designee for good cause shown. (c) Court rules. — The Court of Appeals may adopt additional rules to carry out this section. Md.Code Ann., Criminal Procedure § 6-103.

Complementing Section 6-103 is Maryland Rule 4-271, 4 which states, in pertinent part: (a) Trial Date in Circuit Court. (1) The date for trial in the circuit court shall be set within 30 days after the earlier of the appearance of counsel or the first appearance of the ⁵²⁰ defendant before the circuit court pursuant to Rule 4-213, and shall be not later than 180 days after the earlier of those events. When a case has been transferred from the District Court because of a demand for jury trial, and an appearance of counsel entered in the District Court was automatically entered in the circuit court pursuant to Rule 4-214(a), the date of the appearance of counsel for purposes of this Rule is the date the case was docketed in the circuit court. On motion of a party, or on the court’s initiative, and for good cause shown, the county administrative judge or that judge’s designee may grant a change of a circuit court trial date.

If a circuit court trial date is changed, any subsequent changes of the trial date may be made only by the county administrative judge or that judge’s designee for good cause shown. The Court of Appeals, in State v. Hicks, 285 Md. 310, 318 , 403 A.2d 356 (1979), held that the speedy trial requirement of Rule 746 was mandatory and, absent extraordinary cause, “dismissal of the criminal charges is the appropriate sanction.” The Court held that the provisions of then Rule 746 were of mandatory application for the prosecution and defense alike and that the rules were not “mere guides or benchmarks to be observed, if convenient.” Id. Thus, the sanction of dismissal may be ordered when a trial date does not comply with the prescribed statutory 180 day period in Maryland Rule 4-271 and Criminal Procedure Article § 6-103. See Dorsey v. State, 349 Md. 688 , 709 A.2d 1244 (1998); Hicks, supra. “The sanction of dismissal, where that sanction is applicable, is not for the purpose of protecting ⁵²¹ a criminal defendant’s right to a speedy trial; instead, it is a prophylactic measure to further society’s interest in trying criminal cases within 180 days.” State v. Brown, 307 Md. 651, 658 , 516 A.2d 965 (1986) (citing Farinholt v. State, 299 Md. 32, 41 , 472 A.2d 452 (1984)).

The goal of the dismissal sanction is to foster prompt disposal of criminal matters at the circuit court level. State v. Brown, 355 Md. 89, 108 , 733 A.2d 1044 (1999). A determination by the administrative judge to extend the trial date beyond 180 days is given “wide discretion” and carries a “heavy presumption of validity.” See Tapscott v. State, 106 Md.App. 109, 122 , 664 A.2d 42 (1995), aff'd, 343 Md. 650 , 684 A.2d 439 (1996); Dalton v. State, 87 Md.App. 673, 682 , 591 A.2d 531 , cert. denied, 325 Md. 16 , 599 A.2d 89 (1991); State v. Green, 54 Md.App. 260, 266 , 458 A.2d 487 (1983), aff'd, 299 Md. 72 , 472 A.2d 472 (1984). If it is the administrative judge who extends the trial date and the order is supported by necessary cause, the postponement is valid and both the requirements and purposes of the statute and rule have been fulfilled.

See State v. Parker, 347 Md. 533, 539 , 702 A.2d 217 (1995) (quoting Rosenbach v. State, 314 Md. 473, 479 , 551 A.2d 460 (1989); State v. Cook, 322 Md. 93, 97 , 585 A.2d 833 (1991); Goins v. State, 293 Md. 97, 111-12 (1982)). A trial judge entertaining a motion to dismiss must accord the administrative judge deference. Parker, 347 Md. at 538 , 702 A.2d 217 (quoting State v. Frazier, 298 Md. 422, 451-54 , 470 A.2d 1269 (1984)). Moreover, the discretionary decision of the administrative judge as to whether good cause existed is rarely subject to reversal on review.

Frazier, 298 Md. at 451-54 , 470 A.2d 1269 . “The burden of demonstrating a clear abuse of discretion is on the party challenging the discretionary ruling on the postponement.” Brown, 355 Md. at 98 , 733 A.2d 1044 , accord State v. Toney, 315 Md. 122, 138 , 553 A.2d 696 (1989). Thus, a defendant seeking dismissal on Hicks grounds bears “the burden of demonstrating either a clear abuse of discretion or a lack of good cause as a matter of law.” Brown, 355 Md. at 108 , 733 A.2d 1044 . ⁵²² In the instant case, Colkley disputes the length of delay between the first postponement and the next scheduled trial date of May 10, 2004. The postponement was due to the illness of the attorney for Colkley’s co-defendant Fields. The prosecutor stated that there was a disappearance of a witness in Colkley’s other criminal case and that she had another case beginning the Monday of the week following, the time Fields’ attorney expected to recuperate.

The trial court properly sent the case to the administrative judge. The administrative judge heard from the State that it could not guarantee that the witness would be located by Monday of the following week nor could the defense guarantee that Fields’ attorney would have recuperated from the flu. The administrative judge found good cause. We perceive no abuse of discretion or lack of good cause as a matter of law.

B The second contention raised by both appellants is that they were denied their constitutional right to a speedy trial under the Sixth Amendment of the United States Constitution, Article 21 of the Maryland Declaration of Rights and the dictates of the Supreme Court decision in Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972). In Barker , the Court provided a balancing test that “necessarily compels courts to approach speedy trial cases on an ad hoc basis.” Id. at 530 , 92 S.Ct. 2182 . The factors outlined by the Court include “[ljength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. (footnote omitted).

The Court of Appeals reiterated the well-settled standard of review when considering a motion to dismiss based on the alleged denial of the right to a speedy trial in Glover v. State, 368 Md. 211, 220-21 , 792 A.2d 1160 (2002): In reviewing the judgment on a motion to dismiss for violation of the constitutional right to a speedy trial, we make our own independent constitutional analysis. See State v. Bailey, 319 Md. 392, 415 , 572 A.2d 544, 554-55 , cert. ⁵²³ denied, 498 U.S. 841 , 111 S.Ct. 118 , 112 L.Ed.2d 87 (1990); see also Crosby v. State, 366 Md. 518, 526 , 784 A.2d 1102, 1106 (2001) (stating that “when the issue is whether a constitutional right has been infringed, we make our own independent constitutional appraisal”); Jones v. State, 343 Md. 448, 457 , 682 A.2d 248, 253 (1996); Carroll v. State, 335 Md. 723, 736 , 646 A.2d 376, 383 (1994). We perform a de novo constitutional appraisal in light of the particular facts of the case at hand; in so doing, we accept a lower court’s findings of fact unless clearly erroneous. See Rowe v. State, 363 Md. 424, 432 , 769 A.2d 879, 883 (2001) (conducting a de novo review of a trial court’s legal/constitutional conclusions with respect to a denial of a motion to suppress under the Fourth Amendment, but stating that a trial court’s findings of fact are reviewed under a clearly erroneous standard); Cartnail v. State, 359 Md. 272, 282 , 753 A.2d 519, 525 (2000) (maintaining that this Court does not engage in de novo fact-finding); State v. Ruben, 127 Md.App. 430, 438 , 732 A.2d 1004, 1008 , cert. denied, 356 Md. 496 , 740 A.2d 613 (1999).

In weighing the relevant factors, the Supreme Court observed: 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. 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.

Barker, 407 U.S. at 533 , 92 S.Ct. 2182 (footnote omitted). LENGTH OF THE DELAY The State and appellants agree that the length of the delay was over twenty months (July 9, 2003 to March 24, ⁵²⁴ 2005). In assessing the length of the delay, Barker teaches us: The length of the delay 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.

Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge. Barker, 407 U.S. at 530-31 , 92 S.Ct. 2182 (footnote omitted). Considering the length of the delay, the trial court observed that the twenty-month delay discussed infra was prejudicial and, thus, triggers the balancing of the factors.

The Court in Epps v. State, 276 Md. 96, 111 , 345 A.2d 62 (1975), held a delay of one year and fourteen days as “presumptively prejudicial.” Jones v. State, 279 Md. 1, 6 , 367 A.2d 1 (1976). Thus, in the case sub judice, the twenty month delay is presumptively prejudicial and, thus, we turn to an analysis of the remaining factors. REASON FOR THE DELAY In establishing benchmarks for weighing the reason for the delay, the Barker Court said: Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons.

A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather ⁵²⁵ than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay. Barker, 407 U.S. at 531 , 92 S.Ct. 2182 (footnote omitted).

Appellants assert that the twenty-month delay between the date of their arrest and trial was overwhelmingly attributable to the State because of an unexplained lengthy delay between their arrest and the first trial date, courtroom unavailability and prosecutorial unpreparedness. We address the relevant dates. Delay between Arrest and First Trial Date Appellants contend that the seven month delay from the time of their arrest on July 9, 2003, to the first trial date on February 4, 2004, should be weighed against the State because neither Fields nor Colkley had any control over the time within which the trial was initially set and no reason has been given by the State for the delay. There is no precise formula for computing an unconstitutional delay.

Dorsey v. State, 34 Md.App. 525, 533 , 368 A.2d 1036 (1977). In Dorsey, we opined that an almost eleven month delay for a relatively uncomplicated drug case triggered an inquiry into the factors enunciated in Barker. Id. The trial court found that the complexity of the case, including witness availability, contributed to the delay.

Accepting the court’s conclusion as to the reason for this delay, we accord it less weight, but charge it against the State because “the ultimate responsibility for such circumstances rests with the government.” Id. First Trial Date — Wednesday, February 4, 2004 Fields’ defense counsel did not appear due to a reported illness at the first scheduled trial date. Consequently, substitute counsel requested a brief postponement on Fields’ behalf and explained that Fields’ counsel would be available “at the latest the beginning of next week.” The trial judge suggested to the Administrative Court that “the case be ⁵²⁶ placed on either the move list, movable until Monday, or a short postponement.” The prosecutor argued to the administrative judge against placing the matter on the move list, noting that the “lead detective is going to be out of the country the last [two] weeks here in February and the first week in March,” and that there were also “5th [A]mendment privilege” issues raised by the witnesses that she needed to address in regard to witnesses. The Court granted the postponement generally upon a finding of “good cause” and trial was subsequently scheduled for May 10, 2004.

Fields contends that the time between the first scheduled day of trial and the following Monday is attributable to him, but argues that the remainder of the time between the first and second trial date should not be so attributed as the delay he requested was only until the “beginning of next week.” Further, Fields and Colkley agreed with the judge that the case should be put on the “move list,” but according to appellants, the prosecutor was against the idea for the reasons stated supra. Thus, appellants argue that Fields’ counsel was responsible for the five day delay while the State is essentially responsible for the length of the delay afterward because the State was seeking to have the matter postponed a much longer time than necessary. The State, in Fields’ view, “was essentially seeking to ‘capitalize’” on Fields’ counsel’s illness in order to secure a needed postponement that would be attributed to appellant. Colkley argues that the State was not available until the beginning of the following week and wanted appellants’ cases to remain consolidated.

Analyzing the State’s reasons reveals that if the matter had been started on Monday, the detective had five days prior to his departure to testify and the 5th Amendment privilege issues claimed by the State as to several of its witnesses prevented any February 4th start regardless. Thus, Fields argues that five days are attributable to Fields and the balance of three months to the State. ⁵²⁷ Although the five days are attributable to Fields and the additional three-month delay to the State, we do not find it unreasonable. The trial judge reviewed the transcript and made a factual finding that reasonable circumstances existed between the illness of appellant’s counsel, court backlog and unavailability of witnesses. The trial court weighed the postponement against the government, but not heavily.

Dorsey, 34 Md.App. at 533 , 368 A.2d 1036 . We accord the delay neutral status. Howell v. State, 87 Md.App. 57, 82 , 589 A.2d 90 , cert. denied, 324 Md. 324 , 597 A.2d 421 (1991) (stating that the time between arrest and the first trial date is usually accorded neutral status). We accept the trial court’s assessment as to this delay.

Second Trial Date — May 10, 2004 The parties appeared and indicated that they were all ready to proceed, but as there was no “court available,” the case was transferred to the administrative judge. The prosecutor informed the judge that this case would take about a week and a half, and the other case in which Colkley was the lone defendant would take approximately one week. The judge was told by the prosecutor that she had a “ ‘much older case’ scheduled to begin the 24th” and, thus, could only send one case to a courtroom at that point. During the ensuing discussion, Fields’ counsel advised the court of a potential issue regarding his availability because his daughter was scheduled to have surgery in New Hampshire.

Fields’ counsel did not request a postponement. The administrative judge elected not to hold the case for a courtroom to become available and, instead, set a new trial date of July 28, 2004. Thus, the nearly three month delay as a result of having no courtroom available is attributable to the State. Barker, supra.

Appellant asserts that we have opined “[w]hile the State will be held accountable for this fact, it will not weigh heavily against the State.” As such, while not as egregious as other postponements in this matter, “the ultimate responsibility for such circumstances must rest with the government ⁵²⁸ rather than the defendant.” Barker, 407 U.S. at 531 , 92 S.Ct. 2182 . The trial judge addressed the delay as follows: Just like the May 10th one, there were issues, personal issues, relating to [appellant’s counsel’s] health in the first one and his daughter’s health in the second one that seemed to be significant events in the decision to postpone the case. So they were probably a mixed bag as to whose fault they were. The case was also complicated by the fact that your client, Mr.— [Colkley’s Counsel]: Colkley.

THE COURT: — Colkley had another case in the system which eventually disappeared. But it seemed to affect the approach which was taken to dealing with the cases. It’s also frankly true, having sat here for the last couple days watching this, that the case is affected severely by the cast of characters involved in the case, the witnesses, the fact that the witnesses fairly, clearly, as is almost always the case, are being pushed and pulled in different directions, which affects their anxiousness to actually appear, testify and get this case resolved, which also tends to make it difficult, it adds to the complexity of a case, frankly, the fact that that’s going on with the witnesses, one of the witnesses having subsequently been murdered. So he’s not here at all.

No evidence in the record suggests that the State was unable to commence the trial, but contrary to appellants’ contention, neither was there evidence that the State purposely delayed trial. After reviewing the tape of the proceedings the trial court stated that “my impression of what happened that day was, that it did come in as a no court available. That was the official reason.” Although the record does not reflect that there was a purposeful delay by the State, it nevertheless must be weighed against the State. ⁵²⁹ Third Trial Date — July 28, 2004 On July 28, 2004, the following transpired: THE COURT: Twice before? For the same reason? [PROSECUTOR]: 5 For various reasons.

It was transferred to me when an attorney in my unit was transferred to another unit. I’ve had the case for approximately a month, I’ve been able to work on it for approximately two weeks. In the process I’ve discovered that a witness that I think should have been summonsed wasn’t summonsed. That witness [sic] actually ran into he did not get his summons, of course it was only issued a week ago.

He didn’t get his summons, wasn’t available today. But the most important problem in my opinion for me, is that the Homicide detective sergeant, who is a necessary witness in both cases, is leaving the country actually, either tonight or tomorrow, definitely by tomorrow, for vacation, he won’t be back until Monday. And essentially Your Honor, essentially I am not prepared to try these cases because I haven’t had enough time to review them. But I do know that some of my necessary witnesses are definitely not available.

THE COURT: Today. [PROSECUTOR]: Today or any time this week, or until sometime early next week. THE COURT: Do we have any dates after next week? [PROSECUTOR]: Madam Clerk said that there were earlier dates, but each Defense attorney had problems. THE COURT: So you already know about that. CLERK: Right, I do (inaudible).

THE COURT: And I can’t get it in any earlier. It’s either don’t postpone it all, or set it in for the earliest date I can get it in. CLERK: (Inaudible). THE COURT: I’m sorry, say it again. ⁵³⁰ CLERK: They couldn’t agree on the dates.

THE COURT: All of these guys are busy, all three of them. [COLKLEY’S COUNSEL]: In actuality Your Honor, I think one of the dates was August 27. Now, I recognize that my client has two cases against him, one of which has a co-defendant — he is a co-defendant with Mr. Fields, the other he is by himself. 27,1 think I was available. I may be wrong on these dates. I think it’s the State that was unavailable. [COLKLEY’S COUNSEL]: 6 No, I’m available Judge for the 27. [PROSECUTOR]: I’m already scheduled for trial that day in another— [COLKLEY’S COUNSEL]: I’m sorry, the State was unavailable that date.

THE COURT: All right. It’s your case now. [PROSECUTOR]: Thank you, yes sir. THE COURT: I’m going to give you a date. If you’re not ready on that date don’t — well, I might be the administrative judge.

It ought not be postponed again. [PROSECUTOR]: I will be ready on that date Your Honor. All parties appeared before the trial court and the assigned State’s Attorney indicated to the court that he had just received this case and had been “working the case for about two weeks” although he had “the file for about four weeks----” In regard to witness unavailability, he explained that “the primary detective, or the sergeant in this case is a necessary witness in both