Jackson v. State

BLOOM, Judge. Appellant, Edward A. Jackson, was convicted by a jury in the Circuit Court for Baltimore City of first degree rape, first degree sexual offense, and assault with intent to murder. In an unreported per curiam opinion, we reversed those convictions and remanded the case for retrial. Jackson v. State, No. 1001, September Term, 1983 (filed April 27, 1984).

The State petitioned for a writ of certiorari but on October 2,1984, the Court of Appeals denied the petition. State v. Jackson, 301 Md. 43 , 481 A.2d 802 (1984). Some twenty months after our mandate, Jackson was retried and again convicted by a jury of the same offenses, together with a fourth offense, carrying a deadly weapon, as to which no judgment had been entered at the conclusion of the first trial. The court imposed a life sentence for the rape and concurrent lesser sentences for the other offenses.

The principal issue raised by this appeal is whether appellant’s constitutional right to a speedy trial was abridged by the lengthy delay in retrying him. Appellant also asserts that the trial court erred in refusing to grant certain jury instructions he requested and that retrial on the weapon charge was barred by the constitutional prohibition against double jeopardy. We reject appellant’s speedy trial contention and his assertions of error in the instructions. With respect to his double jeopardy argument, we find that the issue has not been preserved for appellate review. ⁶⁵⁰ Background Despite our mandate and the denial of certiorari by the Court of Appeals, for some unexplained reason, Jackson’s case was permitted to languish until 18 December 1985, when it appeared on the circuit court’s arraignment docket.

Jackson moved for dismissal of the indictments, asserting a denial of his constitutional right to a speedy trial; that motion was dismissed. Trial was held on 29 January 1986 and Jackson was again convicted by a jury. The court sentenced Jackson to concurrent terms of life imprisonment (rape), twenty-five years (assault with intent to murder), thirty years (sexual offense), and three years (carrying a deadly weapon). The first three sentences were imposed under article 27, section 643B(c), thus rendering Jackson ineligible for parole for twenty-five years.

Speedy Trial As Judge Moylan stated for this Court in State v. Wilson, 35 Md.App. 111 , 371 A.2d 140 (1977): “It is axiomatic, from all of the massive case law upon the subject, that the mere running of the calendar will not be viewed in isolation and has little significance divorced from the questions of reason for delay and prejudice, which are, respectively, its cause and its effect.” Id. at 117 , 371 A.2d 140 . Because there is no constitutional right to be tried within a specific period of time, the determination of whether a defendant has been denied a speedy trial necessarily is made on a case by case basis. Barker v. Wingo, 407 U.S. 514, 530 , 92 S.Ct. 2182, 2191 , 33 L.Ed.2d 101 (1972); Epps v. State, 276 Md. 96 , 345 A.2d 62 (1975). Although an ad hoc approach is required, we are not without guidance as to the methodology to be employed in assessing a claimed deprivation of a speedy trial.

The Supreme Court, in Barker v. Wingo, supra, provided the conceptual framework necessary to arrive at a consistent and principled application of the Sixth Amendment’s guarantee: a four-factor balancing test. Those four factors are: 1. Length of delay, ⁶⁵¹ 2. Reason for delay, 3.

Defendant’s assertion of his right, 4. Prejudice to the defendant. 1 The balancing of the four factors is required only when the length of the delay is of a constitutional dimension. Powell v. State, 56 Md.App. 351, 358 , 467 A.2d 1052 (1983), cert. denied, 298 Md. 540 , 471 A.2d 745 (1984). Due to the unusual nature of this appeal—a claimed denial of a speedy retrial—the speedy trial clock is not triggered by the arrest of Jackson or the filing of formal charges.

Cf. State v. Gee, 298 Md. 565, 567-72 , 471 A.2d 712 , cert. denied, 467 U.S. 1244 , 104 S.Ct. 3519 , 82 L.Ed.2d 827 (1984). The triggering event in this appeal is the issuance of our mandate on 28 May 1984 which reversed Jackson’s first conviction. Coleman v. State, 49 Md.App. 210, 220 , 431 A.2d 696 (1981); Tisdale v. State, 41 Md.App. 149, 160 , 396 A.2d 289 (1979).

Since the State concedes, perforce, that the twenty month delay between 28 May 1984 and 29 January 1986 is of a constitutional dimension, we advance to consideration of the four factors. Barker v. Wingo, supra, [407 U.S.] at 533, 92 S.Ct. at 2193 . 1. Length of Delay As mentioned above, the length of delay is twenty months. 2. Reason for the Delay The Supreme Court has recognized that degrees of fault should be associated with various causes of delay in bring ⁶⁵² ing an accused to trial.

In Barker v. Wingo, the Court stated: 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 than with the defendant.

Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay. Id. at 531 , 92 S.Ct. at 2192 . For the purpose of assessing fault we break down the twenty months at issue into three periods: A. 29 May 1984 to 2 October 1984 (127 days) B. 3 October 1984 to 18 December 1985 (442 days) C. 19 December 1985 to 29 January 1986 (42 days). A. 29 May 1984 to 2 October 1984 During the four months in which the State’s application for certiorari was pending, the State chose not to retry Jackson, although it possessed the authority to do so.

See Skeens v. Paterno, 60 Md.App. 48, 64-65 , 480 A.2d 820 , cert. denied, 301 Md. 639 , 484 A.2d 274 (1984). That delay is charged to the State. We recognize, however, that it was reasonable for the State to wait until after the Court of Appeals decided not to review our reversal of Jackson’s conviction before proceeding with a retrial; therefore, the four months will not be weighted heavily. Cf.

Hines v. State, 58 Md.App. 637, 654-56 , 473 A.2d 1335 (1984) (delay resulting from reasonable decision to determine whether witnesses were available before attempting to obtain custody of accused from another sovereign was chargeable to State but not given great weight). ⁶⁵³ B. 3 October 1984 to 18 December 1985 This period encompasses the time which passed between the denial of certiorari by the Court of Appeals and the appearance of Jackson’s name on the circuit court’s arraignment docket. The State cannot explain how fourteen and one-half months were allowed to pass before Jackson was called to appear before the court. Counsel surmises that a clerical error occurred which permitted the case to fall through the cracks. This 442-day period is charged against the State.

Regarding the weight to be assigned this delay, Barker v. Wingo indicates that a delay resulting from negligence should be weighted less heavily than one resulting from a deliberate attempt to undermine the defense. Barker v. Wingo, supra, [407 U.S.] at 531, 92 S.Ct. at 2192 . This does not mean, however, that a negligent delay cannot be weighted heavily. In Wilson v. State, 44 Md.App. 1 , 408 A.2d 102 (1979), cert. denied, 446 U.S. 921 , 100 S.Ct. 1858 , 64 L.Ed.2d 275 (1980), this Court stated that the degree of weight to be attributed to a delay resulting from negligence increases in direct proportion to the length of the delay.

Id. at 10, 408 A.2d 102 . That principle has since yielded to the general proposition that a delay which results from prosecutorial indifference or negligence must be weighted heavily against the State. E.g., Ferrell v. State, 67 Md.App. 459, 464 , 508 A.2d 490 (1986); Lee v. State, 61 Md.App. 169, 178-79 , 485 A.2d 1014 , cert. denied, 303 Md. 115 , 492 A.2d 616 (1985); Powell v. State, supra, [56 Md.App.] at 361, 467 A.2d 1052 . In Brady v. State, 291 Md. 261 , 434 A.2d 574 (1981), a delay of fourteen months was weighted heavily against the State because of what the Court dubbed “prosecutorial indifference.” The State was unable to locate the defendant even though he was already incarcerated on an unrelated charge.

Despite his being “right under their noses,” the authorities made no attempt to inform Brady of the pending charges. Id. at 267 , 434 A.2d 574 . The Court ⁶⁵⁴ found the State’s lack of diligence to be the determinative factor in its decision to reverse Brady’s conviction. “Brady’s trial was not delayed because of someone’s professional judgment regarding allocation of scarce resources, but because of the inexcusable failure of the State to check for Brady’s presence within the correctional system itself.” Id. at 269-70 , 434 A.2d 574 . We find the unexplained loss of Jackson’s case within the criminal justice system to be as much a matter of “prosecutorial indifference” as the State’s failure to locate Brady within the correctional system.

Accordingly, the 442-day period will be weighted very heavily against the State. C. 19 December 1985 to 29 January 1986 We find that the 42-day delay between Jackson’s appearance before the court on 18 December 1985 and trial was allowable for orderly pretrial preparation and we charge this time to neither party. Cf. Ferrell v. State, supra, [67 Md.App.] at 462, 508 A.2d 490 .

Summary A. 127 days charged to the State—not heavily weighted; B. 442 days charged to State—heavily weighted; C. 42 days—neutral. 3. Defendant’s Assertion of His Right The defendant’s failure to assert his right to a speedy trial is no longer deemed a waiver of such right. See State v. Jones, 18 Md.App. 11, 16-18 , 305 A.2d 177 (1973). The Supreme Court has recognized, however, that the failure to demand a speedy trial does make it difficult for the defendant to prove that he was deprived of his right.

Barker v. Wingo, supra, [407 U.S.] at 531-32, 92 S.Ct. at 2192 . Of course, “difficult” and “impossible” are not synonymous. Evans v. State, 30 Md.App. 423, 430-31 , 352 A.2d 343 (1976). ⁶⁵⁵ Over the course of the twenty month delay, Jackson did not file a motion for speedy trial. On 20 January 1986, nine days before his retrial, Jackson filed a motion to dismiss predicated upon a claimed deprivation of speedy trial.

When the court heard the motion on 29 January, it inquired of counsel why Jackson had remained silent for so long. Jackson’s attorney, with commendable candor, explained that in light of the inability or refusal of the victim, during the first trial, to identify Jackson as her assailant and the ensuing reversal of his conviction, Jackson opted to wait quietly to see if the State would elect to retry him or dismiss the indictment. We weigh Jackson’s failure to demand a speedy trial heavily against him. Cf.

Powell v. State, supra, [56 Md.App.] at 365-66, 467 A.2d 574 . 4. Prejudice Whenever the length of a delay is deemed to be of a constitutional dimension, a presumption arises that the defendant has been prejudiced; thus, a defendant need not make an affirmative showing of prejudice in order to prevail on a claimed deprivation of his constitutional right to speedy trial. Moore v. Arizona, 414 U.S. 25, 26 , 94 S.Ct. 188, 189 , 38 L.Ed.2d 183 (1973) (per curiam); Jones v. State, 279 Md. 1, 16 , 367 A.2d 1 (1976), cert. denied, 431 U.S. 915 , 97 S.Ct. 2177 , 53 L.Ed.2d 225 (1977). The presumption is rebuttable and may lose its significance in light of evidence tending to negate the presumption and the weight attributed to other factors.

State v. Wilson, supra, [35 Md.App.] at 122-25, 371 A.2d 140 . Prejudice in the context of the denial of speedy trial, whether presumed or actual, comes in two variations: (1) prejudice to the person of the defendant, and (2) prejudice to the conduct of the defense. State v. Wilson, supra, at 127, 37 A.2d 140 . There are two facets to the former variety of prejudice: (a) oppressive pretrial incarceration and (b) anxiety and concern.

Prejudice to the conduct of the defense may manifest itself through faded memories or ⁶⁵⁶ lost witnesses. See Barker v. Wingo, supra, [407 U.S.] at 532, 92 S.Ct. at 2192 . Although our reversal of his earlier convictions had reclothed him with the presumption of innocence, appellant was incarcerated throughout the entire twenty month period, during which time he would ordinarily be expected to have suffered anxiety and concern over his situation; yet, had he asserted his right at any time during the delay, the State would have discovered its error in the processing of Jackson’s case and the matter presumably would have been resolved. Jackson deliberately chose to remain silent, and thus in jail, in the hope that the victim’s failure to recognize him at the first trial and the reversal of his first conviction would prompt the State to drop the indictment against him.

Jackson thus made a conscious choice to trade a lengthy period of confinement, along with its attendant anxiety, for the chance that he might not be prosecuted if he did not force the State’s hand by demanding to be tried. Under these circumstances, we conclude that Jackson himself placed relatively little weight on the prejudice to his person, and we are certainly not inclined to give it any greater weight than he did. The circuit court found that Jackson did not suffer significant prejudice to his defense. Appellant asserted that his defense was seriously hampered by the loss of an alibi witness.

Ordinarily, the loss of a witness is the most serious form of prejudice, see Barker v. Wingo, supra, at 532, 92 S.Ct. at 2192 . In this case, however, the prejudice was mitigated by the fact that a transcript of the witness’s testimony at the first trial was available to the court. Although testimony read to the court may have less impact on the jury than testimony offered by a witness in person, it is also true that testimony read to the court is spared the possibility of being discredited by vigorous cross-examination. We cannot say that the court below was clearly erroneous in its finding that the prejudice to the defense resulting from the absence of the alibi witness was minimal. ⁶⁵⁷ Cf.

Hines v. State, supra, [58 Md.App.] at 656, 473 A.2d 1335 . The Balance Our application of the four factors