Lurz v. State

JOHN J. BISHOP, Judge, Retired, specially assigned. Appellant Jay Timothy Lurz was convicted by a Baltimore County jury of first degree assault, first degree burglary, stalking, and resisting arrest. He presents five questions: 1. Was the Appellant improperly charged by criminal information in the circuit court? 2.

Did the trial judge err in determining that the Appellant had waived his right to be represented by counsel under Rule 4-215(e)? 3. Did the trial judge make a proper determination of the Appellant’s competency to be tried or to waive represen ⁶⁹ tation by counsel, after being informed by the prosecutor of the Appellant’s mental health history? 4. Did the trial judge err in denying the motion to suppress? 5. Did the trial judge improperly deny Appellant’s challenge for cause during jury selection?

We shall recount only those facts necessary to resolve the questions presented. I. Appellant contends that he was improperly charged by a criminal information in the circuit court because the charging document was not filed in accordance with the requirements of Rule 4—201(c)(2) and, therefore, that the circuit court erred in denying his motion to dismiss. The Law Article 27, § 592 provides, in pertinent part: § 592. Charge by criminal information; right to preliminary hearing.

(a) Charge by criminal information.—In all cases involving a felony, other than a felony within the jurisdiction of the District Court, in which the accused has not requested a preliminary hearing within ten days after being informed by the court or court commissioner of the availability of such a hearing, or in all cases in which a preliminary hearing has been held and probable cause to hold the accused has been found, the State’s Attorney may charge by information. (b) Right to preliminary hearing.— (1) In any case where the defendant has been charged with a felony, other than a felony within the jurisdiction of the District Court, the defendant shall be advised by the court or court commissioner, at the time of the initial appearance required by Maryland Rule 4-213 of his right to request a preliminary ⁷⁰ hearing. The defendant may make that request at the time of the initial appearance or at any time within ten days thereafter. If the defendant fails to request a preliminary hearing within the ten-day period, it is waived.

The Court of Appeals has implemented the statute by adopting Md. Rules 4-201 and 4-221, which provide, in pertinent part: Rule 4-201. Charging document—Use. (a) Requirement.—An offense shall be tried only on a charging document. (c) In the circuit court.—In the circuit court, an offense may be tried * * * (2) on an information if the offense is ...

(C) any [felony not within the jurisdiction of the District Court] and lesser included offense if ... the defendant has been charged with the felony as to which a preliminary hearing has been waived ... Rule 4-221. Preliminary hearing in District Court. (a) Request and waiver.—A defendant charged with a felony that is not within the jurisdiction of the District Court may request a preliminary hearing at or within ten days after an initial appearance pursuant to Rule 4-213(a).

The preliminary hearing shall be held in the District Court. Failure to make a timely request is a waiver of a preliminary hearing, unless the court orders otherwise. Within three days after a defendant waives a preliminary hearing expressly or by not making a timely request, the clerk shall forward to the State’s Attorney a written notice of the waiver or a copy of the docket entries showing the waiver. Within ten days after a defendant waives a prelimi ⁷¹ nary hearing, the State may request a preliminary hearing.

(f) Action required by State’s Attorney.—Within 30 days after a finding by the court of probable cause or within 30 days after the defendant waives a preliminary hearing, the State’s Attorney shall: (1) File a charging document in circuit court; (2) Amend the pending charging document or file a new charging document charging the defendant with an offense within the jurisdiction of the District Court; or (3) Enter a nolle prosequi or have the charge marked stet on the docket as provided in Rules 4-247 and 4-248. After hearing on the record in the presence of the defendant and for good cause shown, the court may extend the time within which the State’s Attorney shall take such action. (g) Dismissal for lack of prosecution.-—If the State’s Attorney fails to comply with section (f) of this Rule, the court shall enter an order of dismissal for lack of prosecution. A dismissal pursuant to this section is without prejudice.

Chronology The following is a chronology of the pertinent events: 9-14-98 = Appellant appeared before a District Court Commissioner pursuant to Md. Rule 4-213 and was advised “that he has a right to have a preliminary hearing by request made now or within ten days; that failure to make a timely request will result in waiver of such hearing. Defendant defers election.” (R. 16) 9-28-98 = The clerk of the District Court sent a “Notice to State’s Attorney” indicating that Appellant ⁷² “failed to request a preliminary hearing within 10 days after initial appearance, thereby waiving right to a preliminary hearing. 9/24/98 As a result of the above action, you have 30 days from the above date to comply with the provisions of Maryland Rule 4-221. 10/26/98” (R. 22) 10- 20-98 (?) = A “letter” on State’s Attorney letterhead, dated October 16,1998, To: Jane, From: Babs, states: “Request a hearing for the purpose of amending count 7 only.” It does not bear a date stamp, but the following is handwritten on it: “11^-98 PH Copy to Babs, SAO 10-20-98” (R. 24) 11- 4-98 = A District Court “Defendant Trial Summary” recites: “The Preliminary Hearing in the above case was POSTPONED today, 11/04/98 REASON: 995; STATE REQ. You will be notified of your next trial/hearing.” Handwritten: “PH 11/25/98” (R. 26) 11- 25-98 = A District Court “Felony Docket” form recites: “Cnt 7 amended as to dates.” (R. 36) On that same date, a District Court “Defendant Trial Summary” recites: “The Preliminary Hearing in the above case was POSTPONED today, 11/25/98” (R. 38) 12- 4-98 = A Criminal Information was filed in the Circuit Court for Baltimore County. (R. 4-9) On March 8,1999, the circuit court conducted a suppression hearing at which Appellant moved to dismiss the charges on ⁷³ the ground that the criminal information was not filed within the time permitted by Md. Rule 4-221 (f)(1).

That motion was ultimately decided: THE COURT: ... He was given his right to a preliminary hearing. He had ten days to file a request for one. He didn’t file it. [DEFENSE COUNSEL]: The State then filed a request for one,' which wasn’t held, according to Mr. Lurz’s statement.

THE COURT: Then it was continued and then a criminal information occurred. I don’t see—your arguiw at is convoluted and perhaps I don’t understand it but it is denied. Appellant appeared for trial on June 2, 1999, and he renewed his motion to dismiss: ;• [DEFENSE COUNSEL]: Your Honor, we had a motions hearing, I believe it was on March eighth. At that time I made a Motion to Dismiss on the grounds that the charges in this case were not properly filed.

That was based on Mr. Lurz’s denial of a preliminary hearing or at least a denial of his rights to have the procedure followed regarding a preliminary hearing. I would advise the Court something of which [the hearing judge] was not aware. Mr. Lurz indicates he did in fact demand a preliminary hearing, but for some reason due to some clerical error, that never made it to the file. Unfortunately, I am probably stuck with the clerical error.

But for the record Mr. Lurz indicates he did in a timely fashion demand a preliminary hearing. He indicates he did that not initially, when he appeared in front of the District Court Commissioner, but about 24 hours later, when he appeared in front of a District Court Judge for a bail review, it was then that he indicates he did demand a preliminary hearing. That somehow didn’t make it to the file and that wish of his was never carried out. THE COURT: Do you have any verification of that fact? [DEFENSE COUNSEL]: No, sir.

MR. LURZ: Excuse me, could I speak? THE COURT: Yes. ⁷⁴ MR. LURZ: Okay, what happened was, I told him I wasn’t actually sure if I had filed(sic) through at the, what was it, bail review when I was informed about it, but while I was in the Baltimore County jail, I had sent, I had asked the Police Department, who I spoke to, to file for the preliminary hearing.

And on, what was it, it was on September 28rd, I have the letter, it says a review preliminary hearing will be held, which was within the ten day period of when I requested it. So at that time I thought my request had been put in, because I had received a letter within ten days. THE COURT: Well, do you have a letter or any other document indicating that you requested a preliminary hearing? [DEFENSE COUNSEL]: Your Honor, I think what he’s indicating is that my office wrote to him indicating there would be a preliminary hearing. I am understanding him to say that he doesn’t have any documentation from the court itself, is that correct, Mr. Lurz?

THE DEFENDANT: Yes. Right here on September 23rd, and I was locked up on September 14th. This was nine days and I received this letter from the Public Defender’s Office stating I was going to have a preliminary hearing. So, my understanding was that my request had been filed. [DEFENSE COUNSEL]: I would hand up to the Court a copy of the letter that he has, or the letter he has handed to me.

It’s a letter signed by Ms. Chappell of our office. I believe it simply indicates the charging procedure, just informing him that we are going to be representing him, this is a felony case, and the usual procedures will be followed and one of those things that’s mentioned is a preliminary hearing. A lengthy colloquy ensued, involving the court, both counsel, and Appellant, during which Appellant quoted.sections (g) and (f) of Rule 4-221. He argued that the State’s failure to file a criminal 'information within the time permitted by Rule 4- ⁷⁵ 221(f) precluded his being charged in the circuit court on a charging document other than an indictment.

The court denied the renewed motion, commenting, inter alia, that “I am satisfied that the State requested a preliminary hearing within the ten day period of time.” On appeal, Appellant asserts that the “new evidence” (his assertion that he requested a preliminary hearing and the letter from the Public Defender’s Office) introduced during the renewal of his motion to dismiss required the court to make a finding of fact. He notes that the trial judge was “clearly erroneous” in finding that the State made a timely request for a preliminary hearing in the District Court. He makes much ado about whether the State’s request was timely, whether a preliminary healing was held at all, and whether the criminal information was filed within the time permitted by Rule 4-221(f). We think it is much ado about nothing.

As Judge Moylan noted in Tyler v. State, 105 Md.App. 495, 514 , 660 A.2d 986 (1995), rev’d 342 Md. 766 , 679 A.2d 1127 (1996): If the ruling was correct for the reasons advanced by the trial judge, it will be affirmed. If it turns out to have been correct for any other reason, it will also be affirmed. We are not scrutinizing the trial court’s reasoning in arriving at his decision. We are scrutinizing the naked decision itself.

State v. Breeden, 333 Md. 212 , 227 n. 5, 634 A.2d 464 (1993); Robeson v. State, 285 Md. 498, 502 , 403 A.2d 1221 (1979); Aubinoe v. Lewis, 250 Md. 645, 649 , 244 A.2d 879 (1968). The question before us is whether the circuit court was correct in denying the motion to dismiss. From our review of the record, we are satisfied that: 1. The appellant did not request a preliminary hearing in the District Court. 2.

The State did not make a timely request for a preliminary hearing in the District Court. 3. No preliminary hearing was held in the District Court. ⁷⁶ 4. The criminal information filed in the circuit court was not filed within the time permitted by Rule 4—221(f). Of the four matters listed, only the first is material to our decision.

The case of State v. Graziano, 71 Md.App. 652 , 527 A.2d 52 , cert. denied, 311 Md. 324 , 534 A.2d 991 (1987), also involved criminal informations filed beyond the time permitted by Rule 4—221(f). Relying on Rule 4-221 (g), the Circuit Court for Prince George’s County dismissed several criminal informations. This Court reversed. Judge Wilner explained: The Circuit Court construed section (g) as applying to the late-filed criminal information, which, in each case, is what it dismissed.

The State argues that section (g) has no application in the Circuit Court or to the subsequently filed criminal information or indictment. It reads the Rule, correctly we think, as simply directing the District Court to dismiss a stale charge pending in that court. Rule 4-221 was derived from former Md. District Rule 727; indeed, sections (e), (f), and (g) are taken nearly verbatim from sections h., i., and j. of M.D.R. 727. Notwithstanding the unfortunate and possibly confusing use of the word “court” rather than “District Court” in section (g) of the current version of the Rule, it was, and is, a rule that applies to proceedings in the District Court and has nothing to do with the validity of an indictment or information subsequently filed in the Circuit Court.

The obvious and necessary purpose of section (g) is to clear the District Court docket of a case over which that court has no further authority to act and, at the same