Lee v. State

Menchine, J., delivered the opinion of the Court. Bernard Jerome Lee was convicted of distribution of heroin in a non-jury trial in the Criminal Court of Baltimore upon submission to the court under a statement of facts. He was sentenced to fine and imprisonment. He thus states the issues on appeal: 1.

The trial court erred by denying the appellant’s motion to dismiss the addendum. 2. The appellant was denied a speedy trial with respect to both the main offense and the addendum. The Addendum The record shows that although an addendum was filed by the State on May 1,1975, no trial upon the issue whether the appellant was a second offender was ever had. At arraignment and trial no reference was made to the addendum.

The sentence imposed upon the appellant, again without reference to an addendum, was less than the maximum authorized for a first offense. In such circumstances we perceive no appellate issue relating to the addendum. Speedy Trial On December 10, 1973, the appellant was indicted on a charge of distribution of heroin. He had been arrested the previous day.

He was released on bail on December 13,1973. ⁶⁷³ The record shows that although a panel attorney was appointed for the accused by the office of the district public defender, 1 two experienced private counsel on January 16, 1974, 2 jointly filed a series of motions bearing the following descriptive titles: 1. Motion for a Bill of Particulars. 2. Motion for discovery and inspection with respect to electronic interception or eavesdropping. 3. Motion to compel All State’s witnesses to submit to polygraph tests. 4.

Motion for production of exculpatory information. 5. Motion to interview State’s witnesses. 6. Motion for discovery and inspection. Answers to those motions were filed by the State on June 12, 1974.

Hearings on all motions were had on June 12,1974, but held sub curia. No decision upon them by that hearing judge ever thereafter was made. The last docket entry of June 12, 1974, consists of the notation “Reset for trial 28 June 1974.” The record shows that the State was ready for trial at that time but the appellant declared he could not proceed in the absence of rulings upon his several motions. We think he was entirely justified in taking that position.

On June 19, 1974, counsel for the appellant filed memoranda of law in support of the motion for particulars and the motion for production of exculpatory information. ⁶⁷⁴ Except for a cryptic entry on April 16, 1975, “Pursuant to the motion for discovery and inspection filed,” 3 the docket entries reflect no further action in the case until May 19, 1975, when hearings on preliminary motions were rescheduled before a second judge. All motions were disposed of on May 20 and 22, 1975. Trial was commenced on July 21, 1975. In Barker v. Wingo, 407 U. S. 514 , 33 L.Ed.2d 101 , 92 S. Ct. 2182 (1972), the Supreme Court of the United States rejected inflexible approaches to a determination whether the constitutional right to a speedy trial has been abridged.

Instead, after announcing that “.. . any inquiry into a speedy trial claim necessitates a functional analysis of the right in a particular context of the case. ..,” (Baker at 522, [112], [2188]), the Supreme Court declared: “The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.” (Barker at 530 , [116], [2191-92]). The Supreme Court then discussed the application of such a test, saying at 530, [116-17], [2192]: “A balancing test necessarily compels courts to approach speedy trial cases on an ad hoe basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” The trial judge denied the motion to dismiss the indictment.

The Court of Appeals in Epps v. State, 276 Md. 96, 109 , 345 A. 2d 62, 71 (1975), thus succinctly stated the course to be followed in appellate review following rejection of such a motion by the trial court: “In making our independent constitutional appraisal of whether the appellant was denied his ⁶⁷⁵ constitutional right to a speedy trial we must under the holding in Barker v. Wingo ‘engage in a difficult and sensitive balancing process’ in which ‘the conduct of both the prosecution and the defendant are weighed’ and ‘considered together with such other circumstances as may be relevant’ the four enumerated and related factors. 407 U. S. at 533 . Realizing that Barker ‘prescribes “flexible” standards based on practical considerations,’ Strunk v. United States, supra, at 438, and that the ‘right to a speedy trial is not a theoretical or abstract one but one rooted in hard reality in the need to have [the] charges promptly exposed’ Dickey v. Florida, 398 U. S. 30, 37 (1970), we must determine whether the State did ‘discharge its “constitutional duty to make a diligent, good-faith effort to bring [Epps] [to trial]”.’ Moore v. Arizona, supra, at 26; Smith v. Hooey, supra, at 383.” We shall, accordingly, examine the record, utilizing the balancing test factors set forth in Barker v. Wingo, supra. Length of Delay In Barker v. Wingo, supra, the Supreme Court had said at 530-31, [117], [2192]: “The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.

Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.” The skeletal dates are these: Arrest December 9,1973 Indictment December 10,1973 Trial July 21,1975. ⁶⁷⁶ The full period of time intervening between arrest and trial was nineteen months. Such a delay in and of itself does not demonstrate a violation of the Sixth Amendment’s guarantee of a speedy trial. United States v. Ewell, 383 U. S. 116, 120 , 15 L.Ed.2d 627, 630 , 86 S. Ct. 773, 776 (1966). As will be explained in our discussion of the “reason for delay” we do not find this entire time period to constitute the critical period of delay.

In any case, we are persuaded that the length of delay is such as to trigger a necessity for careful consideration of all factors of the balancing process. Reason for Delay Our examination of the record shows not the slightest indication that the delay was occasioned by á deliberate attempt to delay the trial in order to hamper the defense. The delay in the subject case, having stemmed from more neutral causes, should not be weighted as heavily against the State. Barker v. Wingo, supra, at 531, [117], [2192].

The period of delay breaks down into two separate segments, namely: (a) from arrest, December 9, 1973 to hearing upon motions, June 12, 1974 and (b) from June 12, 1974 to trial date, July 21, 1975. We find it necessary separately to examine the reasons for delay as to the two periods. December 10, 1973 to June 12, 1974 Mindful of the admonition that “A defendant has no duty to bring himself to trial,” (Barker v. Wingo, supra, at 527, [115], [2190]), we believe that this period of delay — standing alone — would not, in the circumstances of this case, have triggered k necessity for further consideration of the other factors of the “balancing test.” We find nothing in the record to indicate other than “neutral reasons” for this segment of the delay and do not consider its length to be beyond reasonable bounds under the facts of this case. ⁶⁷⁷ June 12, 197k to July 21, 1975 Shortly after the scheduled hearing (June 12, 1974) upon pre-trial motions, at which the issues had been held sub cuña, the hearing judge was appointed administrative judge and found himself unable to continue to act in the case. At that point the case was sent hack to the criminal assignment office.

No reassignment of the case occurred until pending motions were heard and decided on May 19,20 and 22,1975. The initial hearing judge had directed the State to cause transcripts of certain eavesdrop tapes to be prepared and submitted to the court by June 26, 1974. The State acknowledged that eavesdrop tapes had been made, but announced that its sole reliance would be upon named eyewitnesses, and that the tapes would not be used at trial. Nonetheless the hearing judge ordered that the tapes be prepared and submitted to him for in camera inspection.

They were not submitted to the court until “early 1975.” The only explanation by the State for that delay was that the police officer assigned to accomplish the transcription “was transferred from the Narcotics Strike Force to the Northeastern District in the late summer of 1974.” We find that the explanation fails to justify the tardy reassignment of the cause on May 19, 1975. There was testimony, to be sure, by the initially assigned assistant State’s attorney, whose responsibility for the case ended with his appointment as Deputy State’s Attorney, that tends to mitigate to some degree the blame attaching to the State. He testified as follows: “Q Did Mr. Cardin or Mr. Kroop demand of you that they wanted this case to be set in for trial? A Did they demand that a trial date be set?

Q Yes, sir. A I can’t recall that, because they had their Motions outstanding. They wanted those disposed of. Q Had there ever been a mention to you since June ⁶⁷⁸ 12th of possibly stetting this case at any period of time on behalf of Mr. Lee?

A I really am not sure that the word stet ever came into it. Q Or not called to trial for one reason or another? A Yes. Q And could you tell the Court what reasons those might have been, to the best of your recollection?

A The suggestion was made that we not try this case or prosecute Mr. Lee here in the State of Maryland until the Federal Indictments against him had been disposed of.” [ 4 ] The quoted testimony was not denied. Thus the State’s role in the delay is somewhat mitigated. Nonetheless, on balance we conclude that the delay from June 12, 1974 to May 19,1975, should be attributed to State neglect. The period from May 19, 1975 to July 21,1975, following the hearing and decision upon preliminary motions, clearly is within reasonable bounds.

In sum, we believe that the critical period of delay is from June 12, 1974 to May 19, 1975, a period of eleven months and one week. Assertion of the Right In Barker v. Wingo, supra, the Supreme Court declared: “The defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” (at 531-32, [117-18], [2192-93]). ⁶⁷⁹ No attempt to obtain a speedy trial was made by two experienced, competent private counsel for the appellant until May 19,1975, when they orally moved for dismissal of the indictment upon the ground that the accused had been deprived of his constitutional right to a speedy trial. This factor in the balancing test weighs heavily against the accused.

Prejudice Appellant suggests that Moore v. Arizona, 414 U. S. 25 , 38 L.Ed.2d 183 , 94 S. Ct. 188 (1973), compels a conclusion “that a delay of 19 months is so lengthy as to require a