Hines v. State

⁶⁴⁵ BLOOM, Judge. Howard Hines, appellant, was convicted by a jury in the Circuit Court for Prince George’s County (Melbourne, J., presiding) of murder in the first degree (both premeditated and felony murder), attempted rape in the first degree, and third degree sexual offense. He received consecutive sentences of life imprisonment for the first degree murder and attempted first degree rape and a consecutive sentence of ten years imprisonment for the third degree sex offense. In this appeal, Hines asserts that: 1. the trial court erred in denying his motion to dismiss for violation of the Interstate Agreement on Detainers; 2. the trial court erred in denying his motion to dismiss based on the denial of his constitutional right to a speedy trial; 3. the trial court erred in admitting an oral statement obtained by Maryland police while appellant was in custody in Alabama; 4. the evidence was insufficient to support his convictions; 5. absent proof beyond a reasonable doubt that the victim was alive at the time of the alleged sexual acts, appellant could not be convicted of felony murder, attempted rape in the first degree and third degree sexual offenses; 6. the trial court erred in denying his motion for mistrial during the deliberations of the jury; and 7. the trial court erred in its instructions to the jury by (a) instructing the jury with respect to flight as evidence of consciousness of guilt, (b) failing to instruct the jury that it was necessary to prove that the victim was not unconscious at the time the alleged attempted first degree rape occurred, and (c) failing to instruct the jury that the opinion of a medical expert must be within a reasonable degree of medical probability. ⁶⁴⁶ In our discussion, we will combine appellant’s first two assertions under the general heading of “The Motions to Dismiss,” and we will combine his fourth and fifth contentions under the general heading of “Sufficiency of the Evidence.” I. THE MOTIONS TO DISMISS A. Chronology of Events On June 21, 1979, the nude body of Michiyo Nakada, a twenty-three-year-old student at the University of Maryland, was found in a ditch in a wooded area near .the apartment house in which she resided.

She had been stabbed to death. Appellant became a suspect in the homicide shortly after the crime. Appellant’s parole officer in Alabama was contacted, and an Alabama warrant for appellant was then put into the NCIC computer with a notation to contact the Maryland authorities if appellant was arrested or detained. An F.B.I. fingerprint stop was also placed.

Nevertheless, no one notified police authorities in Maryland when appellant was eventually arrested in Atlanta, Georgia, on January 21, 1981, or when he was extradited from Georgia to Alabama in March 1981. It was not until January 19, 1982, that Maryland police learned that appellant was in a prison in Alabama. Corporal Mike Morrissette and Detective Michael Ferriter of the Prince George’s Police Department went to Alabama and interrogated appellant at the prison on January 27, 1982. Upon their return to Maryland, they obtained an arrest warrant charging appellant with the murder of Michiyo Nakada.

The warrant was issued in Maryland on February 1, 1982, and sent to the prison authorities in Alabama. Appellant refused to accept the papers when service was attempted on February 20. Appellant was subsequently indicted for murder, robbery and related offenses 1 on ⁶⁴⁷ March 31, 1982, and a copy of that indictment with detainer was sent to the prison officials in Alabama. On May 11, an attempt was made to serve appellant with a copy of the indictment and an Interstate Agreement on Detainers (IAD) Form I (which notifies the prison of the indictment and detainer, advises him of his rights under the Interstate Agreement on Detainers, and informs him of the procedures required to exercise those rights).

Appellant refused to accept those documents. It was stipulated, however, that at some point in time appellant did receive a copy of the statement of charges with the arrest warrant that he had refused to accept on February 20. On May 24, 1982, appellant sent various documents to the Clerk of the Circuit Court for Prince George’s County. The documents, which were received and docketed on May 28, consisted of a four page, hand-lettered “Motion for Speedy Trial” to which was attached (1) a printed document labeled “Inmate Summary 02/09/82” that furnished some information as to appellant’s prisoner status; (2) an affidavit (dated February 2, 1982, but not notarized until May 14, 1982) as to the truth of the matters asserted in the Motion and (3) IAD Form II, “Inmate’s Notice of Place of Imprisonment and Request for Disposition of Indictments, Informations or Complaints.” The IAD form was dated May 24, 1982.

On the reverse side of the affidavit there is what appears to be a faint carbon copy imprint of a hand-lettered document addressed to Prince George’s County Sheriff James Y. Aluisi and entitled “Letter Requesting Resolution of Detain-er.” Appellant contended that he made three copies of the Inmate’s Notice of Place of Imprisonment and Request for Disposition (IAD Form II), sent one copy to Sheriff Aluisi at the Prince George’s County Courthouse and one copy to the Clerk of the Court in care of the Attorney General, and kept one copy for himself. According to Captain William Feeney ⁶⁴⁸ of the Sheriff’s office, the practice of that office is to forward any IAD requests or requests for speedy trial to Ms. Walters in the State’s Attorney’s office and no record of receipt is retained by the Sheriff. Ms. Walters, in turn, was certain that the State’s Attorney’s office received no papers from the sheriff or directly from appellant. It did receive from the Clerk’s office a photocopy of the hand-lettered motion for speedy trial with none of the exhibits attached thereto.

The State’s Attorney forwarded a request for temporary custody (IAD Form V) to the Alabama prison authorities on September. 17, 1982. On November 22 appellant filed a motion to dismiss the indictment for denial of speedy trial. He was returned to Maryland on December 21 and arraigned on December 23. Additional motions were filed, including a motion to dismiss for violation of the Interstate Agreement on Detainers.

The motions to dismiss were heard and denied by Judge Howard Chasanow. Thereafter, the rape indictment was returned. The motions to dismiss were renewed at trial and again denied. B. Interstate Agreement on Detainers The Interstate Agreement on Detainers, codified as Md. Ann.Code art. 27, §§ 616A through 616R, provides in Title III [§ 616D(a) ] that a prisoner serving a term of imprisonment who has a detainer or an untried charge lodged against him by a prosecutor in another State shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: ...

The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount ⁶⁴⁹ of good time earned, the time of parole eligibility of the prisoner, and any decisions of the State parole agency relating to the prisoner. Subsection (b) provides: The written notice and request for final disposition referred to in subsection (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested. Several supplemental provisions to the IAD have been added by the Maryland Legislature. Article 27, § 616Q, for example, provides: As to any request by a person imprisoned in another party state for trial in this State, written notice shall not be deemed to have been caused to be delivered to the prosecuting officer and the appropriate court of this State in accordance with § 616 D(a), ... until such notice or notification is actually received by the appropriate court and by the appropriate State’s attorney of this State, his deputy, an assistant, or any other person empowered to receive mail on behalf of the State’s attorney.

These notice requirements are designed to bring to the attention of the operative State officials the request of the prisoner so that such authorities can take the necessary steps, within the time provided, to set in motion the machinery necessary to bring the pending case to trial. State v. Barnes, 273 Md. 195 , 328 A.2d 737 (1974). The notice requirements of § 616D(a), particularly the provision that the request of the prisoner “shall be accompanied by a certificate of the appropriate official having custody of the prisoner” containing the information specified, are “mandatory and not directory.” Isaacs v. State, 31 Md.App. 604, 611 , 358 A.2d 273 (1976). The purpose of these notice requirements is to enable the State’s Attorney “to evaluate whether the nature of the charges pending against the ⁶⁵⁰ accused was of such a severe degree as to merit further trial in this State in the light of the sentence then being served in the other state that was a party to the interstate agreement.” Id.

The burden is on the prisoner to request the benefits of the agreement. State v. Wilson, 35 Md.App. 111 , 371 A.2d 140 (1977), aff'd, 281 Md. 640 , 382 A.2d 1053 , cert. denied, 439 U.S. 839 , 99 S.Ct. 126 , 58 L.Ed.2d 136 (1978). Therefore, before the interstate agreement is-invoked, the prisoner must make a request for final disposition of his case in the appropriate manner. State v. Boone, 40 Md. App. 41 , 388 A.2d 150 (1978).

Upon receipt of the proper statutory notice, the State is expected to see that the case is actually tried within the 180 days, Dennett v. State, 19 Md.App. 376 , 311 A.2d 437 (1973), but this period does not begin to run until the prisoner’s notice and request are actually received by both the appropriate prosecuting officer and court. Davidson v. State, 18 Md.App. 61 , 305 A.2d 474 (1973). Appellant argues that he had attempted to comply with the IAD by his motion for speedy trial and that since the State’s Attorney’s office had received a copy of that motion there had been actual notice' and substantial compliance to invoke the provisions of the IAD. Therefore, he contends, the State’s failure to bring him back to Maryland and try him within 180 days required dismissal of the indictment as provided in § 616D(d).

Appellant relies on State v. Barnes, 273 Md. 195 , 328 A.2d 737 (1974), to support his argument that when the State’s Attorney and the “appropriate court” have actual knowledge that a prisoner is invoking the act, even though the notice is defective, failure to bring the prisoner to trial within the prescribed time will result in dismissal of the indictment. Barnes , however, involved the Intrastate Detainers Act, Md.Code Ann. art. 27, § 616S, where the required certificate of the person having custody of the prisoner, setting forth detailed information as to the prisoner’s ⁶⁵¹ status, is significantly less important to the State’s Attorney than a certificate under the Interstate Agreement would be. Moreover, a general motion for a speedy trial is not the same as a request for disposition under the IAD. Wise v. State, 30 Md.App. 207, 211 , 351 A.2d 160 (1976).

Based on the evidence before him, Judge Chasanow found that the State’s Attorney had received only a copy of appellant’s Motion for Speedy Trial without any of the attachments or exhibits filed with the Clerk. He also found that neither Ms. Walters nor the Assistant State’s Attorney to whom the case was initially assigned ever examined the documents on file in the Clerk’s office, there being no need to do so. Consequently, the State’s Attorney did not have actual knowledge of appellant’s intent to invoke the IAD. Those findings, being supported by uncontradicted evidence, are certainly not clearly erroneous and thus will not be disturbed on appeal.

Md.Rule 1086. The court did not err in denying appellant’s motion to dismiss for the alleged violation of the IAD because, as Judge Chasanow correctly ruled, appellant did not properly invoke the IAD and there was no actual notice to the State’s Attorney. There was no violation. C. Speedy Trial The determination of whether a defendant has been denied his constitutional right to a speedy trial requires the application of a balancing test, weighing the conduct of both the prosecution and the defendant with particular respect to the four factors set forth by the Supreme Court in Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972).

These factors are (1) length of delay, (2) reason for delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) prejudice to the defendant as a result of the delay. 1. Length of delay In making our own independent constitutional determination of whether appellant was denied his Sixth Amendment ⁶⁵² right to a speedy trial, we turn first, as did Judge Chasanow, to the factor of length of delay. In order to ascertain the length of delay, we must first determine when the speedy trial right was activated. At the hearing on appellant’s motion for dismissal, Judge Chasanow properly disregarded the lapse of time from June 1, 1979 (the date of the crime) to February 1, 1982 (the date the warrant was issued).

The Supreme Court of the United States has made it abundantly clear that the Sixth Amendment speedy trial provision has no application until the putative deféndant in some way becomes an “accused....” ... On its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been “accused” in the course of that prosecution. • • United States v. Marion, 404 U.S. 307, 313 , 92 S.Ct. 455, 459 , 30 L.Ed.2d 468 (1971). Any lapse of time between the crime and the date on which the accused is arrested or charged with the crime can be considered only in terms of due process of law or statutes of limitation; the Sixth Amendment speedy trial clause has no relevancy to that interval of time. Id. at 321-325 , 92 S.Ct. at 463-466.

Based upon several decisions of this court, including State v. Lawless, 13 Md.App. 220 , 283 A.2d 160 (1971); State v. Hunter, 16 Md.App. 306 , 295 A.2d 779 (1972); and Gee v. State, 54 Md.App. 549 , 459 A.2d 608 (1983), Judge Chasanow concluded that the Speedy Trial Clause was activated by the issuance of the warrant on February 1, 1982. In Lawless 13 Md.App. at 229 , 283 A.2d 160 we stated that in reckoning delay for speedy trial purposes “we look only at the time from the commencement of the prosecution (by way of warrant, information or indictment) to the time of trial”; in Hunter , based on United States v. Marion, supra, we added an actual arrest to the circumstances that will invoke the speedy trial; in Gee , we specifically ⁶⁵³ rejected the State’s contention that the speedy trial clock begins with the actual arrest rather than the earlier issuance of the arrest warrant. We were wrong. In reversing us in State v. Gee, 298 Md. 565 , 471 A.2d 712 (1984), the Court of Appeals pointed out that when the crime is one that can only be tried in the circuit court upon an indictment or information (as distinguished from an offense triable upon a warrant in the district court), the issuance of the warrant does not activate the speedy trial right because it is not a “formal charge.” After the warrant charging Gee with robbery and related offenses was issued, Gee was arrested and incarcerated for other crimes.

A detainer on the robbery charge was filed, and Gee requested disposition of the robbery case under the Intrastate Detainer Act. The arrest warrant was then served on him and he was later indicted. The Court declined to decide whether the lodging of the detainer, which is arguably equivalent to arrest in many respects, activated the speedy trial right. The Court held that in any event the arrest one month later did activate the rights and, whether counting from date of arrest or the earlier date of detainer, the interval from that date to the date of trial (less than six months) was not of constitutional dimension.

In the case sub judice, the original detainer and warrant were received by the Alabama prison authorities on February 3, 1982; the date of the indictment was March 31, 1982; appellant’s motion for dismissal was heard January 21, 1983. A trial date had been set but immediately after his motion to dismiss was denied, appellant requested a postponement. Counting from the indictment to the hearing on the motion, we note a delay of nine months and twenty-one days; counting from date of detainer instead, we note a delay of eleven months and ten days. Either would be of constitutional dimension and sufficient to trigger the Barker v. Wingo balancing test. 2.

Reason for delay We agree with Judge Chasanow’s conclusion that the two month period of time between warrant and indictment ⁶⁵⁴ (one month, three weeks between detainer and indictment) was not unreasonable and that the next fifty-eight days to May 28 (when appellant’s request for a speedy trial' was received) would be the result of reasonably normal processing, considering the fact that appellant was incarcerated in another state. We regard that time as neutral, i.e., not chargeable to either party. When William Shockley, the Assistant State’s Attorney then in charge of the case, received a copy of appellant’s motion for speedy trial, he made a deliberate choice not to request that appellant be returned to Maryland for trial at that time. It was not until September 17 when the IAD Form Y, “Prosecutor’s Request for Temporary Custody,” was sent to Alabama.

Mr. Shockley explained that because the crime had occurred almost three years earlier, he could not be sure that the principal witnesses for the State would be available for trial within the 120 day period allowed the State after such request is honored. 2 He testified that when Ms. Walters asked him in May about filing a prosecutor’s request for custody he told her not to file it at that time [b]ecause I didn’t want to file the paper work and then be caught in a time limitation, where we would bring the defendant back, and then find out that we can’t locate these witnesses. I felt it would be better to try to locate the witnesses, sufficient witnesses, that we could at least prove the case, and then file the paper work and bring the defendant back. At least that way we wouldn’t be working under a severe time restraint as 120 days, once he came back to Prince George’s County. Judge Chasanow weighed that period of three months and twenty days heavily against the State but not as heavily as ⁶⁵⁵ he might have weighed it were it not for Mr. Shockley’s explanation.

In our view, although that period of time is clearly chargeable to the State, it should be given only little weight. The decision to make sure that critical witnesses were available before requesting custody of appellant through the IAD was a reasonable one made necessary by the fact that two-and-a-half years had elapsed after the crime was committed until appellant was found to be in an Alabama prison. Appellant bears responsibility for that lapse of time. On October 6, 1982, the prison authorities in Alabama advised the governor of that state of Maryland’s request for temporary custody of appellant under the IAD.

Since the IAD allows the prisoner thirty days within which to file an objection to such request, the period of thirty days after October 5 was properly found by Judge Chasanow to be neutral, not chargeable to either party. Considering the complexity of the case, the number of witnesses and the logistics of bringing appellant back to Maryland (he was returned to Maryland on December 23, 1982, and indicted), the periods of time from the first week in November to January 21, 1983 (hearing on motions to dismiss) and then to March 3, 1983 (the scheduled trial date) were reasonable, normal times for orderly processing and scheduling. Indeed, taking into account the nature of the crime, the number of witnesses, the fact that it took the State two-and-a-half years to find appellant after he became the principal suspect and the fact that appellant was then in an Alabama prison, the entire period of time except for three months and twenty days to the proposed trial date of March 3, 1983, represents normal, reasonable time for orderly processing and scheduling. The delay from March 3 to May 24, 1983, when the trial began, was requested by appellant and is chargeable to him.

The period of three months and twenty days from May 28, 1982, to September 17, 1982, must be charged against the State because the prosecutor intentionally chose not to take steps to have appellant returned to Maryland during that time. As we ⁶⁵⁶ have indicated, however, we assign very little weight to that period since appellant’s conduct made such choice a reasonable and prudent one. 3. Assertion of right to speedy trial Appellant unquestionably asserted his right to a speedy trial by filing a hand-lettered request for speedy trial in May 1982. What is questionable is the sincerity of that request.

As Judge Chasanow pointed out, if appellant had accepted the warrant and IAD Form I when the Alabama prison authorities attempted to serve them on him in February 1982 and if he had thereafter properly invoked the IAD, he could have insured that his trial would take place within 180 days. Instead of making a proper request through the warden of the prison in which he was incarcerated, appellant sent the wrong papers to the wrong place. 4. Prejudice to appellant Appellant was not incarcerated as a result of this murder charge. He was incarcerated as a result of a parole violation in Alabama.

Although there was evidence that the pendency of a murder charge in another state would require that appellant be placed in the category of “close supervision,” there was other evidence to the effect that that factor was irrelevant inasmuch as appellant was being held in isolation or segregation as a result of two fights in May 1982. Judge Chasanow’s finding of fact that the type or nature of appellant’s incarceration was not made more burdensome by the pendency of the murder charge is not clearly erroneous. Appellant complained that the delay in bringing him to trial made it difficult for him to locate favorable witnesses. Based on the evidence pertaining to the State’s difficulty in locating its witnesses, Judge Chasanow found that the difficulty confronting both parties in locating witnesses was primarily due to the two-and-a-half year delay between June 21, 1979, and January 1982 rather than the one year delay ⁶⁵⁷ after appellant was discovered to be in an Alabama prison.

The earlier, longer period was found to be more critical. Again, this finding is not clearly erroneous. There is, of course, a presumption of prejudice to the accused resulting from any delay in bringing him to trial, if for no other reason than the fact that the mere pendency of the charge will undoubtedly prey on his mind. We assign some weight to this factor but not much weight.

Summary — speedy trial Having weighed and balanced all of the factors in accordance with our constitutionally mandated obligation to make an independent determination on the speedy trial issue but giving due deference to Judge Chasanow’s first level fact finding, we have no hesitancy in holding that appellant was not denied his constitutional right to a speedy trial.

II

APPELLANT’S ORAL STATEMENT Corporal Mike Morrissette and Detective Michael Ferriter of the Prince George’s County Police Department went to Alabama and interrogated appellant in an investigative unit office at the Kilby Correctional Facility on January 27, 1982. Throughout the interrogation, which extended over a period of some fifteen hours, appellant denied committing the crime even when the officers directly accused him of it. According to the officers, however, appellant did make certain statements they regarded to be inculpatory. Appellant told them that an acquaintance in Washington sent him to John Dent to see if he could get a maintenance job at the apartment complex.

On the day of the homicide after helping Dent, he got high on marijuana and walked to Prince George’s Plaza. On the way back through the path in the woods he met two boys and asked them for marijuana. He also saw a girl or some children with school books and a girl with a grocery bag. The next thing he remembered he was back in Dent’s apartment.

When Dent’s ⁶⁵⁸ brother told him about the murder, he changed clothes and left because he thought the police would suspect him since he was a new face in the area. He left that evening, took a bus to Washington and then to New York City. When Detective Ferriter gave him a scenario in which he