Gillis v. State

Moylan, J., delivered the opinion of the Court. The appellant Frederick A. Gillis, Jr. was convicted by a ²⁶⁶ Baltimore City jury of possession of heroin. Upon this appeal, he raises four contentions: 1. That he was subjected to a massive campaign of police and prosecutorial abuse; 2.

That he was denied his constitutional right to a speedy trial; 3. That the trial judge erroneously failed to disqualify himself, and 4. That the court erred in not suppressing physical evidence. It will only be necessary for us to address the speedy trial issue.

The appellant Alice Ruth Stevenson was also convicted of possession of heroin with intent to distribute and with the maintaining of a common nuisance. Both in terms of the original criminal activity and the procedural history of the prosecution, the case of Alice Ruth Stevenson was clearly auxiliary to that against Frederick J. Gillis, Jr. Her appellate fortunes will rise or fall with his. The criminal activity charged against both appellants occurred on February 11, 1977. They were both arrested in the course of the same raid and the time clock with respect to both began running on that date.

On December 1,1977, ten months later, both appellants filed a Motion for Speedy Trial. On January 25, 1978, the appellant Gillis filed a Motion to Dismiss for Lack of Speedy Trial. With respect to both appellants, a hearing on their various pretrial motions was conducted between August 16 and August 21, 1978. The motions were denied and the trials leading to their convictions now under review were held.

At the outset, we note the passage of 18 months between arrest and trial is of constitutional dimension and, therefore, is enough to trigger analysis of the four-factored test of Barker v. Wingo, 407 US 514 . The first factor to be considered is simply the arithmetical running of the time clock, unburdened by any value judgments as to why it ran or what resulted from its running. ²⁶⁷ In the special world of speedy trial analysis, the time period of 18 months is significant but not remarkable. It is not so minimal as to skew the remaining analysis according to the other three factors in favor of the State; nor is it so inordinately excessive as to skew analysis of the remaining factors in favor of the appellants. It is simply not the pivotal factor in this case.

The second factor of “demand-waiver” tilts distinctly in favor of the appellants. They each demanded a speedy trial almost nine months before they received that trial. When the demands for speedy trials came, some ten and one-half months had already elapsed since the prosecutions began. As of December 1, 1977, the State was put upon definite notice to move forward expeditiously.

Cognizant of the many logistical burdens that face a busy and overworked prosecutor’s office, we are not condemning a “business as usual” approach during ordinary times. We are simply reminding the State that once the “red alert” has been sounded, it is incumbent to react with a greater sense of urgency. The pace of activity between December, 1977 and August, 1978, which might not have been inappropriate one year earlier in the running of this particular calendar and which might not have been inappropriate if the demand for speedy trial had never been made, became significantly less appropriate after the State was alerted to be at “battle stations.” The prejudice factor is not remarkable in either direction. Alice Ruth Stevenson was free on bail one day after her arrest.

The appellant Frederick J. Gillis, Jr. was incarcerated for one month following his arrest but does not claim that this was a product of undue delay or that the State was derelict for not bringing him to trial within 30 days of his arrest. Nothing was shown one way or the other with respect to pretrial anxiety and nothing was shown with respect to the impact of the delay upon the defense of the case. The appellants were content to rely, as they may, upon the presumption of prejudice arising out of the very delay itself. Although this does not give as much weight to this factor as demonstrated prejudice might, it is enough to tilt the scales ²⁶⁸ mildly in favor of the appellants.

This is so particularly when the State fails to rebut the presumptive prejudice in any way or to diminish its impact. In our judgment, the pivotal factor against the State in this case is that of “fault” or “reason for delay”. Even here, we narrow the focus. On two occasions between February, 1977 and November, 1977, the case was set for trial and was postponed at the request of the defense, because defense counsel was ill.

Any delay, therefore, within this first nine months is chargeable exclusively to the defense. A trial date was finally set for November 18,1977. Even though all delay prior to that point is legitimately chargeable to the defense, it does not mean that we begin our reckoning as if November, 1977 were still February, 1977. The earlier delay, though chargeable to the defense, nonetheless, injects an additional sense of urgency in the proceedings after November, 1977 that would not be present if the case were a new one.

The very age of the case at that point militates toward having a “fast track” available for “intensive care” or “special problem” cases. An additional dimension is present in this case as we assess the reason for delay between November, 1977 and August, 1978. A surface level of analysis would ascribe some of the subsequent delay to the procedural tactics of the defense. An analysis in fuller context, however, reveals that much of the procedural “traffic jam” arose out of the massive barrage of charges brought by the State against the appellant Gillis.

We are not prepared to say that the charges were brought in bad faith for the charges were lodged by appropriate charging authorities — either the State’s Attorney by way of criminal information or the Grand Jury by way of indictment. Nor are we prepared to say that the numerous search and seizure warrants executed against Gillis were obtained or executed in bad faith, for each was issued upon a finding of probable cause by a neutral and