Gonzales v. State

CHARLES E. ORTH, Jr., Judge, Specially Assigned. The Circuit Court for Howard County dismissed the indictment which charged Nelson Gonzales with various violations of the controlled dangerous substances laws. The Court of Special Appeals reinstated the indictment on appeal by the State. State v. Gonzales, 82 Md.App. 411 , 571 A.2d 1267 (1990).

Gonzales sought and obtained from us a writ of certiorari. We are asked to review the propriety of the dismissal of the indictment. I. The indictment was handed down on 15 December 1988. It was dismissed on 16 August 1989.

In pre-trial maneuvering by Gonzales, he filed three motions which could lead to dismissal: ⁶⁴ 1) On 22 December 1988 Gonzales filed a motion demanding a speedy trial. 2) The same day he filed a motion to dismiss the indictment, which included as reasons, “(a) any defect in the institution of the prosecution; (b) any defect in said charging document, and/or (c) improper venue.” 3) On 16 August 1989 he filed a motion to dismiss the indictment and gave as reason that “[t]his matter is scheduled for trial on a date beyond the 180th day in violation of Maryland Rule 4-271.” A. Gonzales never pursued motions one and two. They were not tried and decided by the trial court, and we have no need now to address them. Md. Rule 8-131(a). B. The third motion was presented squarely to the trial judge who dismissed the indictment. 1 We give a compendium of the events leading to the dismissal of the indictment as gleaned from the record and from the transcript of the proceedings at which the motion was considered.

There were three attempts to bring Gonzales to trial. All were aborted. The initial trial date was 12 April 1989. The day before the trial, the Assistant State’s Attorney filed a request for postponement “in the interest of justice.” He represented that the State was informed on 10 April that Gonzales was currently incarcerated in the Frederick County Detention Center, and he alleged that “there is insuffi ⁶⁵ cient time to issue a Writ for the defendant’s appearance on April 12, 1989.” The request was granted, and trial was reset for 5 June 1989.

On 20 April the State filed a motion to consolidate for trial Gonzales’ indictment with those of two co-defendants, Antoine M. Walker and Vincent I. Prentice. Gonzales objected, but at a hearing on the motion on 18 May Gonzales was not brought into court. His counsel’s request that the matter be continued until 5 June, the day of trial, was granted. Gonzales was brought into court on 5 June, but the trial was again postponed.

The docket entry reads: Case pp due to lack of judicial resources. Good Cause found. Reset notice 8-16-89 signed (Judge Kane). As we have seen, Gonzales then filed a motion to dismiss the indictment and for reason stated: This matter is scheduled for trial on a date beyond the 180th day in violation of Maryland Rule 4-271.

The Clerk docketed the motion as filed on 16 August, the day set for trial. When the case was called on that day, the Assistant State’s Attorney informed the judge that Gonzales was not present. He indicated that the State had another “minor problem.” The chemist summoned to testify for the State, whose appearance had been demanded by Gonzales, was on vacation. The prosecutor said: I have not brought her back at this point.

I suppose it would be possible but I hesitate doing that in that we did bring her in one day last week and she sat all day as part of her vacation. I have had some discussions with defense counsel. Pm not sure where all of them stand at this point. What I would be suggesting if there could be no agreement as to the chemist’s analysis that the motions be heard in this case and that the trial be postponed for about two weeks until we could have [the chemist] back.

That is preliminarily where uh this case is. The judge, obviously hopeful that something could be accomplished that day, asked about the motion to consolidate the indictments. Gonzales’ counsel said that he was against the consolidation but that, in any event, he could not ⁶⁶ proceed without the presence of Gonzales. Walker’s counsel said that he objected to consolidation.

Prentice’s counsel said he was for consolidation but that he “need[ed] Mr. Gonzales here.” Upon inquiry by the judge, the prosecutor informed him that all three of the cases were “past the hundred and eighty day [period]” but that a “good cause postponement was granted past a hundred and eighty days.” Gonzales’ counsel brought up his motion to dismiss: [Y]esterday, I filed with the Clerk of the Circuit Court for Howard County a motion to dismiss for violation of the hundred and eighty day rule. When this matter was postponed on June the fifth, 1989,1 objected on behalf of Mr. Gonzales who was present in Court at that time — was brought in by Frederick County on that date. We did object and the case was continued beyond the hundred and eightieth day despite our objection. And once again I feel I can’t litigate my motion without the presence of my client.

He repeated: Your Honor, I do not think I can litigate my motion to dismiss for violation of the hundred and eighty day rule due to the fact that the State of Maryland failed to produce my client for trial today. It’s a critical stage in the proceedings and I feel that Mr. Gonzales not only has a right to be here but should be here. The judge said that he understood. Gonzales’ counsel emphasized that Gonzales was in court on 5 June 1989, the last prior trial date.

He noted that “Mr. Gonzales has been in Frederick County Detention Center for a significant period of time.” He declared that “certainly all parties knew about that.” The judge observed that Gonzales “was produced here [on 5 June 1989] pursuant to the issuance of a writ,” and asked the prosecutor, “Why wasn’t a writ issued for today?” The Assistant State’s Attorney said: I do not know. Our office was aware of where Mr. Gonzales was as well as the Clerk’s Office____ So I can’t answer that. ⁶⁷ The judge gave the prosecutor the opportunity to state his position on Gonzales’ motion to dismiss. The response was: Your Honor, I don’t believe that motion should be granted. We’re at this point past the hundred and eighty days with the finding of good cause by the Court to postpone past the hundred and eighty day mark.

So I ... I don’t believe that uh, that that motion has uh, there any grounds for that motion or any grounds for which the Court could dismiss this case for failure to bring the defendant to trial in a hundred and eighty days. In light of— The judge interrupted, “Why isn’t he here today?” The prosecutor confessed: Your Honor, he’s not here because he wasn’t writted. And why he wasn’t writted I have no idea.

At this point, the judge apparently could not countenance more. He granted the motion to dismiss as to Gonzales. He declared: The only way to put an end to problems is to put a cure to it and that is to grant a motion to dismiss. The next time the State will check the files before the trial [and] make sure writs are issued.

II

The Court of Special Appeals was unable to put its finger on the precise reason why the trial judge dismissed the indictment. The motion which the judge granted concerned only the Hicks Rule. On the other hand, considering the history of the abortive attempts to bring Gonzales to trial, the part the State played therein, the explanations of the prosecutor, and the observations and comments of the trial judge, the dismissal may well be deemed to have been provoked by a lack of prompt prosecution. The Court of Special Appeals concluded that whether the dismissal was for violation of the Hicks Rule or for lack of prompt ⁶⁸ prosecution in exercise of an inherent power in the court, the trial judge erred.

State v. Gonzales, 82 Md.App. at 418 , 571 A.2d 1267 . A. The intermediate appellate court, looking to our opinions on the matter, determined that Gonzales had not demonstrated that the Hicks Rule had been violated. Id. at 414-415 , 571 A.2d 1267 . 2 It held: ⁶⁹ [T]he granting of [Gonzales’] motion to dismiss by the trial court must be reversed if it was based on Maryland Rule 4-271. 82 Md.App. at 415 , 571 A.2d 1267 . Gonzales was obviously persuaded by the reasoning of the Court of Special Appeals.

He did not challenge this holding. The Hicks Rule was not raised in his petition for a writ of certiorari, nor was it presented in our order granting the writ. Consequently, the issue is not before us, and we need not address it. Matts v. State, 311 Md. 85, 106 , 532 A.2d 1066 (1987); Allgood v. State, 309 Md. 58, 82 , 522 A.2d 917 (1987); Md. Rule 8-131(b)(1).

B. The Court of Special Appeals also held that the trial court in the case at bar was without authority to dismiss the indictment against Gonzales for lack of prompt prosecution. 82 Md.App. at 418 , 571 A.2d 1267 . Gonzales does not accept this holding. 3 He opines that, at the common law, a trial judge enjoys the inherent power to dismiss an indictment for lack of prosecution. He concedes that the exercise of the power is within the sound discretion of the judge. And, he posits, that on the facts and circumstances of this case, the dismissal of the indictment represented a sound exercise of that discretion. ⁷⁰ (1) The Court of Special Appeals reached its determination that the trial court was without authority under an inherent power to dismiss the indictment by reliance on its State v. Hunter, 10 Md.App. 300 , 270 A.2d 343 (1970), cert. granted, 260 Md. 720 , 271 A.2d 531 (1970), cert. rescinded as improvidently granted, Hunter v. State, 263 Md. 17 , 278 A.2d 608 (1971).

Hunter declared that a trial judge does not possess power under the present state of Maryland law, either inherently or by statute or rule of court, to summarily dismiss a valid indictment prior to trial over the State’s Attorney’s objection upon the ground that there has been a “lack of prosecution” not amounting to the denial of the constitutional right to a speedy trial. Id. 10 Md.App. at 304 , 270 A.2d 343 . It stated: [T]he law of Maryland, while recognizing the denial of the constitutional right to a speedy trial as a valid ground for the court’s dismissal of an indictment, does not countenance such a dismissal upon the court’s own motion for mere “unnecessary delay” or “in furtherance of justice.” Id. at 304-305 , 270 A.2d 343 . It held that the dismissal of the indictments in that case “was an action beyond the power of the [trial] court.” Id. at 305 , 270 A.2d 343 .

This Court warned, in rescinding its issuance of a writ of certiorari as improvidently granted because of other developments in the case: Our action in rescinding the Writ of Certiorari, however, should not be understood to indicate, inferentially or otherwise, our approval of any of the holdings of the Court of Special Appeals in the present case, as set forth in State v. Hunter, 10 Md.App. 300 , 270 A.2d 343 , supra, we preferring to consider those holdings, de novo, when, as and if the present case should again be presented to us. Hunter v. State, 263 Md. at 19 , 278 A.2d 608 . See Daff v. State, 317 Md. 678, 686-687 , 566 A.2d 120 (1989). We noted in Daff, at 686, 566 A.2d 120 , that ⁷¹ this Court has never held that a trial judge in this State has the authority, in the absence of a violation of Rule 4-271 or a violation of a constitutional guarantee of a speedy trial, to dismiss a criminal case for lack of prosecution.

The Court of Special Appeals, however, opted to abide by the decision in its Hunter. It declined “to change that holding absent direction from the Court of Appeals or the Legislature.” State v. Gonzales, 82 Md.App. at 418 , 571 A.2d 1267 . Cf. In re Darryl D., 308 Md. 475, 479 , 520 A.2d 712 (1987).

Again, we prefer to leave to another day the