Harris v. State

Orth, J., delivered the opinion of the Court. The appellant, Melvin Junior Harris, contends on this appeal that the lower court erred: I in denying a motion to dismiss the indictments ; II in proceeding to trial of the general issue when the ¹¹ appellant made known his desire to appeal preliminarily from the judgment on the motion to dismiss; III in not determining the admissibility of evidence as to his identification at a lineup prior to trial of the general issue; IV in the admission of evidence obtained by an unreasonable search and seizure; V in rendering verdicts of guilty when the evidence was not sufficient to sustain the convictions. HISTORY OF THE CASE Harris was convicted in the Criminal Court of Baltimore at a court trial which began on 25 January 1968 and concluded on 29 January of the following crimes and sentences were imposed as indicated on 14 February: Indictment No.6421—assault with intent to rape Sharron Lee Boggs (1st count)—“to serve the balance of his natural life from 28th September, 1964, under the Jurisdiction of the Department of Correction.” Indictment No.6418 — assault with intent to murder Sharron Lee Boggs (1st count)—10 years concurrent with No.6421. Indictment No.6419 — unnatural and perverted sexual practice with Sharron Lee Boggs (1st count)—10 years consecutive with No.6421.

Indictment No.6420—robbery of Virginia M. Bogar with a deadly weapon (1st count)—20 years consecutive with No.6421. Indictment No.6422—daytime breaking of the dwelling house of Homer Boggs and another with intent to steal (1st count)—5 years concurrent with No. 6421. Indictment No.1835 — robbery of Sharron Lee Boggs with a deadly weapon (1st count)—10 years concurrent with No.6421. Indictments_Nos. 6418-6422, inclusive, were filed on 21 December 1965 and indictment No.1835 on 27 April 1966.

Harris had been charged in 1965 under indictments Nos. 4062-4066, inclusive, with the crimes charged in indictments Nos. 6418-6422, ¹² tried thereon on 5 October 1965 and convicted. He appealed and the appeals were pending when the opinion in Schowgurow v. State, 240 Md. 121 was filed. Counsel then representing him filed a motion to dismiss indictments Nos. 4062-4066 on the basis of the Schowgurow decision and his former counsel, who had represented him at the trial, had also filed such a motion. On 29 December 1965 Harris was brought into the Criminal Court of Baltimore for arraignment on indictment Nos. 6418-6422.

It was brought to the court’s attention that the prior indictments were pending “on a motion to dismiss under Schowgurow.” The court granted the motion to dismiss. I THE MOTION TO DISMISS THE INDICTMENTS The Dismissal of the Prior Indictments Although Harris had been represented by two experienced counsel whose appearances were entered eight days after his re-indictment, he filed a motion to dismiss the indictments in proper person on 11 October 1967. The motion, consisting of five pages of printing by hand, alleges insofar as we can ascertain, that at the time the prior indictments had been dismissed he had not had a remand hearing and had not been informed that he could waive objection to those indictments and have the appeal he had noted determined or that if he elected to void them he could be reindicted and retried. 1 When the case was called for trial on 25 January 1968 the motion was heard preliminarily. Counsel for Harris and the Assistant State’s Attorney argued at length but no evidence was produced on the point except the transcript of the arraignment on 29 December 1965 at which time the indictments were dismissed, and we consider the matter on the record before us.

Harris now urges that since it was error to dismiss the prior indictments, it was error not to dismiss the subsequent indict ¹³ ments. But he does not suggest that the prior indictments, dismissed, as he claims, in error, and his appeal thereunder be reinstated so that his fate may be determined on the convictions under the prior indictments. He apparently feels that he should go free. We know of no authority, nor does he cite any, which would compel his release, immune from further prosecution on the charges, on a finding that the prior indictments were improperly dismissed.

At the most it would seem that justice would dictate that the convictions under those indictments would stand subject to appellate review of them on the appeal he filed from them. But we are not faced with that question because we find no error in the dismissal of the prior indictments. No authority is cited in the appellant’s brief in support of his assertion that the prior indictments were improperly dismissed. But in Blake v. State, 2 Md. App. 492 it was contended, in reliance on the remand order in Driver v. State, No. 78, September Term 1965, Maryland Court of Appeals, that the absence of counsel at a hearing on a motion to dismiss indictments under the Schowgurow decision was a deprivation of the right to counsel at all stages of the proceedings.

We distinguished Driver in that Blake’s counsel had previously filed a written motion to “quash” the indictments. We said, at 495: “[T]he granting of the motion by the court was a mere formality, in no way harmful or prejudicial to appellant’s rights. The Driver directive sets forth a procedural foimula to be followed when the defendant has not raised a challenge and is thus entitled to be duly and fully informed of his rights in order to allow him to make an intelligent and knowing election of whether to take advantage of his rights under the Schowgurow decision or knowingly waive those rights.” We found that Blake had made his election under Schowgurow when his counsel filed the motion prior to the hearing and that it was not essential that counsel be present at the hearing. Here Harris made his election when his counsel filed the motion to dismiss.

In open court when the indictments were dismissed, his counsel stood at his side. Pleas of not guilty and not guilty by ¹⁴ reason of insanity had been entered on the new indictments and Harris made no objection to the dismissal of the prior indictments as had been moved by him. Finding no error in the dismissal of the prior indictments, their dismissal is no ground for the dismissal of the subsequent indictments. 2 Speedy Trial Harris also claims that the motion to dismiss should have been granted because he was denied a speedy trial. At the hearing the only evidence on the question was by copies of two letters to him, one dated 16 November 1966 from the bailiff of Chief Judge Dulany Foster stating that Harris’ letter of 3 November requesting, among other things, a speedy trial, had been forwarded to Judge Shirley B. Jones and the other dated 30 November 1966 from Judge Jones’ bailiff stating that the matter was not pending before her but that his letter was forwarded to the Clerk of the Criminal Court for inclusion in the file of the case and that a copy of the letter on behalf of Judge Jones had been sent to each of his attorneys.

The brief of the appellant refers to these letters as showing that demand for a speedy trial had been made. But he presents no argument in support of the contention, merely baldly asserting that he had been denied a speedy trial because of “long delay” and that he was prejudiced when the State indicted him on “the new charge.” He makes no allegation that the delay was capricious, arbitrary or oppressive on the part of the State, his only allegation of prejudice is without merit (see note 2 herein) and he made no showing of a strong possibility of prejudice to him. The record shows that a substantial part of the delay in trial was not properly chargeable to the State but was attributable to his own actions. He filed a plea of insanity on 29 December 1965 and on the same day was transferred to Clifton T. Perkins State Hospital for examination.

The report of examination was filed on 3 March 1966 and on 11 March 1966 upon his petition he was authorized to employ a psychiatrist at State ex ¹⁵ pense. He withdrew the plea of insanity on 9 February 1967 when he came into court for re-arraignment. It also appears, however, that by order of court Harris was referred again for psychiatric evaluation and was examined by Dr. Dennis T. Jones, the acting chief medical officer of the Supreme Bench of Baltimore City on 19 April 1967 to determine if he was competent to stand trial and responsible for his criminal conduct under the new test to become effective 1 June 1967. Chapter 709, Acts 1967.

The report was dated 15 May 1967. When the case came on for trial on 25 January 1968 defense counsel said that Harris had been examined “by Dr. Battle, by Dr. Jones, by the Clifton T. Perkins Hospital” and found competent to stand trial and “legally sane at the time of the alleged commissions of the act.” He then withdrew the pleas of insanity with the expressed concurrence of Harris. He filed three motions in proper person on 11 October 1967. The two which moved for dismissal of the indictments did not, as far as we can ascertain, give as a ground the denial of a speedy trial and the other moved for exclusion of identification evidence. 3 The appellant’s brief is devoid of any authority in support of his contention that he was denied a speedy trial although we have fully discussed the constitutional aspects of the right in a number of cases.

See for example, Frazier v. State, 5 Md. App. 88 ; Brown and Montgomery v. State, 4 Md. App. 141; Stevenson v. State, 4 Md. App. 1; Hall v. State, 3 Md. App. 680 ; Fabian v. State, 3 Md. App. 270 ; State v. Long and Nelson, 1 Md. App. 326 . Applying the rules of law stated in those cases we find, on the record before us, that the appellant was not denied a speedy ¹⁶ trial and there was no error in the denial of the motions to dismiss on that ground. II APPEAL PROM THE JUDGMENT ON THE MOTION TO DISMISS On 26 January 1968 after the lower court denied the motion to dismiss the indictments it said, “[W]e are now ready to proceed on the merits of the case.” Defense counsel, claiming a right to appeal from the denial of the motion prior to trial, requested a continuance for the purpose of that appeal. The State agreed that such an appeal would lie but opposed any continuance, urging immediate trial of the general issue.

The court said that the trial date was set by agreement of the parties, and “[i]t was the understanding of all parties that they were going to dispose of the case” (defense counsel indicated this was not his understanding). The court stated that several days had been set down to dispose of the motions and the trial. When the trial date was agreed upon no request was made to hear the motions preliminarily. The State has summoned its witnesses “and has gone to some expense and some trouble to bring them in.” The court did not feel that a denial of the motion to postpone the case would in any way prejudice the appellant.

It thought that a postponement for the reason advanced made “after all the witnesses have been summoned and after they have appeared * * * is not justification for the granting of the motion” for postponement. It denied the motion. The argument in the appellant’s brief on this point consists of a bald allegation that the lower court “was certainly in error in refusing the defendant the right to appeal its decision when it denied the Motion to Dismiss” and a quotation from Brown v. State, 2 Md. App. 388 at 393 , in substance correct but inaccurately set out, that an appeal will lie, prior to a trial on the merits, from a denial of a motion alleging a denial of the constitutional right to a speedy trial. The allegation is based on an incorrect premise.

The lower court did not preclude appellate review of its judgment on the motion to dismiss. A timely appeal was filed from the convictions, and the point being preserved and raised was properly before us and has been dis ¹⁷ posed of. By denying a continuance the court merely precluded appellate review of the denial of the motion to dismiss prior to a trial on the merits and the case proceeding to trial did not result in any significant delay in obtaining the review sought. The question is whether the court, in the circumstances, erred in denying a postponement of trial.

A state is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all. Griffin v. Illinois, 351 U. S. 12, 18 . But when such a right is granted by a state, persons are protected from invidious discriminations with respect thereto or from improper denials of the right by the Due Process and Equal Protection Clauses flowing to the state through the Fourteenth Amendment. See McCoy v. Warden, 1 Md. App. 108, 121 .

In Maryland a defendant in a criminal action is granted the right to appeal from any conviction as provided by Md. Code, Art. 5, §§ 12 and 12A. And it has been established that an appeal will lie, prior to a trial on the merits, on the denial of a motion asserting a violation of the constitutional right to a speedy trial, as a corollary to the general rule that an appeal in a criminal case is premature until after final judgment. Greathouse v. State, 5 Md. App. 675 . “The corollary is subject to the qualification that even though a constitutional right is