Lee v. State

ALPERT, Judge. This speedy trial case is somewhat novel in that Larry Nathan Lee, the appellant, was indicted on two different occasions for the very same offenses. Although the first indictment was dismissed, the second ultimately led to Lee’s conviction by a Montgomery County jury for forgery and uttering. At the center of this appeal is whether the speedy trial clock began to tick at the second indictment or when a detainer was filed shortly before the first indictment. ¹⁷¹ THE PROCEEDINGS An arrest warrant was issued against appellant on June 8, 1982, and a detainer was filed with the Division of Correction on June 11, 1982.

The original indictment was filed August 5, 1982. 1 On August 25, 1982, a bench warrant was forwarded to the Maryland Reception Center, where appellant was incarcerated on other charges, to serve as a detainer on the indictment. On August 31, 1982, appellant filed a request in the Montgomery County District Court for disposition on the intrastate detainer. Although a copy of this request was forwarded to the State’s Attorney’s Office, no action was taken on it until the day trial was to commence — March 8, 1983. 2 The record indicates only that the request for disposition was misplaced in the case file of the State’s Attorney’s Office. The indictment was dismissed without prejudice on March 8th because of the State’s failure to comply with the Intrastate Detainer Act.

The period between the indictment and dismissal was approximately seven months. Appellant was reindicted upon the same charges on March 10, 1983, and a trial date of April 11, 1983, was set. The period of time between the first indictment and this trial date was a little over eight months. Appellant moved for a continuance on April 11th because his attorney was unable to appear due to a scheduling conflict.

A new trial date of August 29, 1983, was set; however, the State moved for a continuance on July 26, 1983, because of the unavailability of the victim. Another new trial date was set for December 12, 1983, and appellant was then tried and convicted on the forgery and uttering charges. ¹⁷² Appellant now asserts that the trial court erred in denying his motions to dismiss for lack of a speedy trial. 3 Appellant’s trial began approximately sixteen months after the first indictment and nine months after the second indictment. THE LAW The Supreme Court of the United States delineated a four pronged balancing test to determine whether a defendant-appellant has been denied his right to a speedy trial. 4 Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972). Four factors must be examined and weighed, including: (1) the length of the delay; (2) the reason for the delay; (3) defendant’s assertion of his right; and (4) any prejudice to the defendant because of the delay.

Before any of these factors can be examined and weighed, however, the appellant must first demonstrate that the length of the delay is of constitutional dimension. 407 U.S. at 530 , 92 S.Ct. at 2192 . This initial triggering mechanism is further complicated in the case sub judice because the appellant was indicted for the same offenses on two separate occasions. Hence, our first and most difficult task is to determine whether the speedy trial analysis begins in June or July 1982 or with the March 1983 indictment. Although we have not located a Supreme Court or Maryland case which precisely decides the issue, we believe that the reasoning of the Supreme Court in United States v. MacDonald, 456 U.S. 1 , 102 S.Ct. 1497 , 71 L.Ed.2d 696 (1982), coupled with the ratiocination of the Court of Appeals in several recent Rule 746 cases, suggests that the ¹⁷³ date of the first detainer pending the first indictment is the triggering date.

We explain. In United States v. MacDonald, 456 U.S. 1 , 102 S.Ct. 1497 , 71 L.Ed.2d 696 (1982), an Army captain was charged in March of 1970 with the murders of his pregnant wife and two children. The military charges were dropped later that year and Captain MacDonald was granted an honorable discharge. 456 U.S. at 4-5 , 102 S.Ct. at 1499-1500 . Army intelligence continued their investigation of the murders at the request of the Justice Department.

Justice evaluated the various Army reports and ultimately submitted the matter to a grand jury. On January 24, 1975, Captain MacDonald was indicted for the murders of his three family members. Id. at 5 , 102 S.Ct. at 1500 . MacDonald was convicted on two counts of second-degree murder and one count of first-degree murder.

He appealed these convictions, contending that his Sixth Amendment right to a speedy trial had been violated. MacDonald asserted that the speedy trial clock was triggered by his first indictment. The Supreme Court disagreed and found no constitutional infraction. The Court observed that once the charges were dropped, MacDonald was “in the same position as any other subject of a criminal investigation.” Id. at 8-9 , 102 S.Ct. at 1502 .

MacDonald’s personal liberty was not then restrained by the Government. Id. at 9 , 102 S.Ct. at 1502 . As to the existence of two indictments, the Court opined that “the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges.” Id. at 7 , 102 S.Ct. at 1501 (emphasis added). 5 The teachings of MacDonald have subsequently been applied by a number of courts. For example, in United ¹⁷⁴ States v. Pullen, 721 F.2d 788 (11th Cir.1983), the defendant was indicted on two separate occasions for conspiracy to make and of making false statements and reports concerning loan and credit applications.

The first indictment was dismissed without prejudice by motion of the government. 721 F.2d at 789 . Pullen was reindicted two years later, convicted, and then appealed, raising a speedy trial issue. Relying on MacDonald , the eleventh circuit held that the speedy trial clause “is no longer applicable when the government, acting in ‘good faith’ formally drops the charges.” Id. at 791. Similarly, the Colorado Court of Appeals held that the critical time period commenced with the second arraignment, when original charges were dismissed in good faith.

People v. Watson, 666 P.2d 1114, 1116 (Colo.App.1983). Although this appeal does not involve the voluntary dismissal of charges by the State, the Supreme Court’s recitation of the concept of “good faith” plays an important role in our analysis. Recent Maryland Rule 746 cases are instructive. We are cognizant that analysis under former Rule 746 (now Maryland Rule 4-271) differs from that employed in Sixth Amendment speedy trial cases.

Nevertheless, the reasoning of the Court of Appeals and the concept of good faith lends support to our decision. In Curley v. State, 299 Md. 449 , 474 A.2d 502 (1984), the State posited that it nol prossed the defendant’s case on the basis of insufficient evidence and because of the request made of the State by the family of the victim. The Court of Appeals ruled that although the 180-day period ordinarily would begin anew with the filing of new charges, an exception exists where a nol pros had the purpose or the effect of circumventing the rule. 299 Md. at 462 , 474 A.2d 502 . Essentially, the Court looked to whether the State’s actions were functionally in good faith when the Court said “[rjegardless of the prosécuting attorney’s motives, the necessary effect of the nol pros was an attempt to evade the dismissal resulting from ¹⁷⁵ the failure to try the case within 180 days.” Id. at 463-63 , 474 A.2d 502 .

A case which appears to be somewhat similar to the instant case is State v. Phillips, 299 Md. 468 , 474 A.2d 512 (1984), another Rule 746 case. There the first indictment was dismissed on the defendant’s motion that the charging documents were defective. The Court of Appeals distinguished between those charges which are nol prossed and those dismissed on the defendant’s motion. “In the latter situation, courts generally hold that the speedy trial period prescribed by statute or rule begins running anew with the second prosecution.” 299 Md. at 471, 474 A.2d 512 . Thus, the second indictment was deemed the starting date of the 180-day period.

The instant appeal is distinguishable from Phillips in two respects. First, here we are dealing with a constitutional issue as opposed to a specific time period governed by a rule or statute. Second, the defendant’s motion in Phillips was acted upon in a timely manner, as opposed to seven and one-half months after it was filed. Returning to MacDonald and its progeny — there the second indictment served to commence the critical time period because of the government’s exercise involving good faith. 6 In these cases the government did not deliberately attempt to circumvent the mandate of the Sixth Amendment by dismissing the charges.

Instead, a sound prosecutorial decision was made. While this is not the situation referred to in footnote 12 of MacDonald, 456 U.S. at 10 , 102 S.Ct. at 1503 , where charges were dropped to avoid the consequences of the speedy trial rule, neither is this a case where the good faith apparent in MacDonald is evident. “Good faith” in this context presupposes the diligence apparent in ¹⁷⁶ MacDonald in bringing a case to trial; there, after the dismissal of the military charges, the civilian ones were not brought until a much more extensive investigation was completed. See also State Farm Ins. Co. v. White, 248 Md. 324, 332-33 , 236 A.2d 269 (1967) (good faith in the context of an insurance policy means “being faithful ... to the duty or obligation owed”; negligence is relevant in determining whether one acted in good faith).

In the instant appeal, the charges were dismissed by the Circuit Court of Montgomery County because of the State’s failure to comply with the Intrastate Detainer Act. The appellant recognized his rights under the Detainer Act and on August 31, 1982, filed a request for disposition on the detainer; however, there was no action taken until the day trial was to begin, March 8, 1983. On that date the indictment was dismissed and two days later appellant reindicted. Clearly the nine month delay present here and the immediate reindictment is not indicative of any due diligence on the part of the State.

More than a decade ago, the Court of Appeals recognized that detainers may result in “undue and oppressive incarceration” and that “[i]n an effort to ameliorate such conditions, which were found to ‘produce uncertainties which obstruct programs of prisoner treatment and rehabilitation’ and in order ‘to encourage the expeditious and orderly disposition of such charges,’ the General Assembly ... enacted the Intrastate Agreement on Detainers Act.” State v. Barnes, 273 Md. 195, 205-06 , 328 A.2d 737 (1974). Subsequently, we observed that “[i]n order to redress the existing grievances, the operative state officials are charged with taking the necessary steps to bring the pending case to trial, once their attention has been brought to the inmate’s request for such action.” Wise v. State, 30 Md.App. 207, 210 , 351 A.2d 160 (1976). Perhaps the most essential of those “operative state officials” is the State’s Attorney. Cast upon that office is the solemn duty to effectuate the General Assembly’s clear mandate — to bring the case to trial promptly and in accordance with the ¹⁷⁷ statute. 7 Neglect of that duty is to perpetuate rather than obviate the mischief that the Intrastate Detainer Act sought to remedy.

The negligent misplacing of appellant’s request for disposition which caused dismissal of the indictment, although not amounting to bad faith, simply is not the same as a good faith dismissal sanctioned by the MacDonald court. Consequently, we look to the period of the first indictment to determine when the speedy trial clock began to tick. The date of the first indictment, however, is not the triggering date. A detainer was filed against appellant on June 11, 1982, while he was incarcerated in another jurisdiction within the State.

It was at this time that appellant was actually restrained as if arrested. In State v. Gee, 298 Md. 565 , 471 A.2d 712 (1984) the Court of Appeals, while falling short of recognizing the filing of the detainer as the triggering date, nonetheless noted the similarity between an arrest and a detainer. Judge Orth, speaking for the Court, said that a detainer [l]ike an arrest, ... placed a restraint on Gee, seriously interfering with his liberty, by precluding his freedom upon release from incarceration by reason of the other convictions, and by its impact on such prison privileges he may have enjoyed. It may be said that the detainer subjected him to further public obloquy, and created anxiety in him, his family and his friends, as with an actual arrest. 298 Md. at 577-78 , 471 A.2d 712 (footnotes omitted).

We believe that the restraints the detainer placed upon appellant’s liberty were sufficient to satisfy the requirements of