Marks v. State

KARWACKI, Judge. On July 25, 1987, Jeffrey Reynard Brown (Brown) was abducted, assaulted, and robbed. Appellant and a co-defendant, Rudolph Saint Dwyer (Dwyer), were arrested and indicted by the Grand Jury of Prince George’s County for various crimes as a result of that episode. Appellant was charged with robbery with a deadly weapon, use of a handgun in the commission of a felony, assault with intent to murder, kidnapping, assault with intent to disable, theft of property worth less than $300, and obstruction of justice.

On September 4, 1987, appellant’s counsel entered his appearance and requested a speedy trial. Trial was originally scheduled for November 30, 1987. Because continuances had been requested and granted, a hearing was held on February 22, 1988, to determine whether the trial date should be extended beyond February 26, 1988, the 180 day time limit imposed by Md.Code Ann., Art. 27, § 591 and Rule 4-271. State v. Hicks, 285 Md. 310 , 403 A.2d 356 (1979).

The judge designated by the administrative judge of the Circuit Court for Prince George’s County to conduct that hearing granted the continuance. Appellant’s trial began on May 25, 1989, and ended on June 1, 1989. Appellant was found guilty of robbery with a deadly weapon, use of a handgun in the commission of a felony, kidnapping, ²⁷⁵ assault with intent to disable, carrying a handgun, and obstruction of justice. He was sentenced to a total of 88 years imprisonment with credit for 143 days served.

In his appeal from those judgments, appellant raises four issues: I. Did the court err in finding good cause to extend the trial date beyond the 180 day time limit mandated by Maryland law?

II

Did the court err in denying appellant’s motion to dismiss the charges against him based on his allegation that he was denied the right to a speedy trial?

III

Did the court err in denying appellant’s motion in limine and appellant’s motion for severance of the obstruction of justice charge?

IV

Did the court err in denying appellant’s motion for new trial which was based on remarks made by the State’s Attorney during closing arguments? We answer these questions in the negative and affirm. We can briefly summarize the evidence which supported appellant’s convictions. On the morning of July 25, 1987, Brown was forced into an automobile which was driven by Dwyer and occupied by appellant, who was armed with a handgun.

Dwyer and appellant repeatedly beat Brown, forced him to remove all of his clothing, and then threw him out of the car in a wooded area. Brown reported the occurrence to the police who apprehended Dwyer and appellant the same day. I. A criminal defendant must be tried within 180 days of his appearance or the appearance of his counsel before the circuit court. Md.Code Ann., Art. 27, § 591; Rule 4-271.

Violation of this mandate is a ground for dismissal. State v. Hicks, 285 Md. 310, 318 , 403 A.2d 356 (1979). The 180 day clock in the instant case began to run on September 4, 1987, when appellant’s attorney entered his appearance. Although the case was promptly scheduled for trial on November 30, 1987, postponements of the trial were re ²⁷⁶ quested on several, occasions by the State and on others by the defense.

As the Hicks limit of February 26, 1988, approached, the State requested another postponement because the victim of the crimes at issue, Brown, had not been located by its investigators. At the hearing on this request, Assistant State’s Attorney Laura Gwinn advised the court that she had learned that Brown was no longer at the address which he had given. When his telephone number was dialed, the person who answered said that Brown did not live there anymore and that Brown’s whereabouts were unknown. Ms. Gwinn said that two of the State’s investigators were attempting to locate Brown.

Further, she explained that the Northern Action team of the Prince George’s County Police Department knew Brown as a drug dealer in the Kanawha Street area and that members of the team advised her on a number of occasions that Brown had not been seen for the last several months. Finally, she emphasized that she would like the opportunity to continue her attempts to locate Brown because of the seriousness of the charges. Appellant’s counsel opposed the motion, claiming that there was not good cause for the court to postpone the trial date. The court concluded that since both of the defendants were free on bond and because of the serious nature of the charges, the State should have another opportunity to locate Brown.

The State’s motion for continuance was granted. On March 21, 1988, appellant made a motion to dismiss for violation of Md.Code Ann., Art. 27, § 591 and of Rule 4-271, claiming that good cause had not been shown by the State. The docket reflects that on May 13, 1988, a motions date of June 23, 1988, was set and a trial date was set for August 15, 1988. On June 23, 1988, the motions hearing was continued’because the Assistant State’s Attorney was ill.

On July 18, 1988, a hearing was conducted on appellant’s motion to dismiss. The court denied the motion, ruling that the State had made reasonable efforts to locate Brown prior to February 26, 1988, even though it had later come to light ²⁷⁷ that he had been incarcerated in the Maryland penal system on other charges at that time. The trial date was continued until November 28, 1988. Then, on November 18, 1988, appellant’s counsel filed a motion to continue the trial date because appellant had retained two new attorneys on November 15, 1988, because of irreconcilable differences with his former attorney, and one of appellant’s new attorneys planned to be out of the jurisdiction on November 28, 1988, for a long scheduled vacation.

The court granted this motion on November 30, 1988, and the trial date was set for March 6, 1989. The docket entry on March 6, 1989, reflects that the trial was continued yet again because appellant’s co-defendant’s attorney was in another trial. The trial was then scheduled for May 24,1989. On May 24,1989, the docket reflects that the trial was continued until May 25, 1989, and finally on May 25, the trial began.

The purpose of the 180 day rule is to protect the societal interest in the prompt trial of criminal cases; the benefits that the rule confers upon defendants are incidental. State v. Hicks, supra, 285 Md. at 320 , 403 A.2d 356 . The determination as to what constitutes good cause, warranting an extension of the trial date beyond the Hicks limit, is a discretionary one which .. carries a presumption of validity.” State v. Green, 54 Md.App. 260, 266 , 458 A.2d 487 (1983), aff'd, 299 Md. 72 , 472 A.2d 472 (1984). This discretionary determination is “... rarely subject to reversal upon review.” State v. Frazier, 298 Md. 422, 451 , 470 A.2d 1269 (1984).

Reversal of a finding of good cause is only warranted where there is “... a clear abuse of discretion or a lack of good cause as a matter of law.” State v. Toney, 315 Md. 122, 131 , 553 A.2d 696 (1989). Appellant argues that the efforts by the State did not satisfy a due diligence standard. Appellant was arrested on July 25, 1987. The case was not assigned to an investigator who could help the Assistant State’s Attorney locate Brown until October of 1987, one month before the ²⁷⁸ originally scheduled trial date.

In January of 1988, another investigating officer, Detective James Wiseman, was assigned the search for Brown, but he had not located Brown before the February 22, 1988, good cause hearing. Detective Wiseman had made three or four trips to the address Brown had furnished the State in his attempt to locate him. He checked the District of Columbia records to see if Brown had been arrested there. Wiseman left a card on the door of the apartment where he thought that Brown was living.

Wiseman did not look at the Assistant State’s Attorney’s file for information which might have helped him to locate Brown. Appellant argues that if these investigators had used due diligence they would have discovered that Brown was then incarcerated in the Maryland penal system. Further, appellant claims that defense counsel informed the Assistant State’s Attorney as early as October 1987 that Brown was probably in jail. Thus, appellant concludes that the good cause finding on February 22, 1988, which extended the trial date beyond 180 days was in error.

We disagree. First, appellant’s reliance on a due diligence requirement is misplaced. In fact, in State v. Toney, supra, 315 Md. at 133 , 553 A.2d 696 , the Court rejected this standard. Second, at the time of the hearing, the evidence before the court supported its ruling that good cause existed for continuing the trial date.

The witness in question, Brown, was the victim of the serious crimes for which the two defendants were to be tried. This Court has held that good cause exists to extend a trial when a witness is unavailable. Bolden v. State, 44 Md.App. 643, 655-56 , 410 A.2d 1085 (1980), cert. denied, 287 Md. 750 (1980). Even when continuances were subject to a more stringent standard, “extraordinary cause” as opposed to “good cause,” this Court recognized that continuances could be granted when a necessary witness is absent because the fact that a witness is missing constitutes an extraordinary cause for delaying a trial.

Bethea v. State, 26 Md.App. 398, 400 , 338 A.2d 390 (1975). Thus, appellant has failed to demonstrate that the reason ²⁷⁹ for the postponement was not a good cause as a matter of law or that the court abused its discretion in granting the continuance. Appellant also asserts that if there was good cause for granting a continuance at the initial hearing on February 22, 1988, the charges against him still should have been dismissed at the July 18, 1988, hearing on his motion to dismiss when the court learned that Brown had been incarcerated in a Maryland prison on February 22, 1988. Again, we disagree.

Trial judges and appellate courts should not use hindsight in determining whether there was good cause to support an exercise of discretion by the administrative judge or his or her designee to grant a continuance beyond the Hicks date. Morgan v. State, 299 Md. 480, 488 , 474 A.2d 517 (1984). Appellant finally posits that his due process rights were violated by the court which found that there was good cause to continue the trial date because of his national origin. He bases that assertion in part on the following questions which were asked by the court at the February 22, 1988, good cause hearing: THE COURT: Is Jeffrey Reynard Brown a Jamaican?

MS. GWINN [Assistant State’s Attorney]: Yes. THE COURT: And, is he a legal or illegal alien? MS.

GWINN: Do you know, Officer P'letcher? OFFICER FLETCHER: As far as I know, he does have a green card. MS. GWINN: This is Officer Fletcher of the Prince George’s Police Department, who often works the Kanawha Street area and is familiar with the players up there.

THE COURT: Do you know whether he has ties to New York? OFFICER FLETCHER: No, ma’am, I don’t. THE COURT: You just know he is a Jamaican and maybe has a green card and operates out of Langley Park? OFFICER FLETCHER: That is correct. ²⁸⁰ Further, appellant claims that the hearing judge’s prejudice against Jamaicans was manifested in the reasons she gave for finding that there was good cause: THE COURT: Counsel, because this involved some Jamaicans in the Langley Park area, a high drug trafficking area, known notorious for its danger to society, because both of these defendants are out on bond, and because of the very serious nature of the charges, I think the State should have one last opportunity to try to locate their witness.

So, I am going to ask that you go down and find good cause for that reason. And, I will grant the State’s motion for a continuance and ask that you all go down to the Assignment Office and pick a date. We will make a docket entry, No Further Continuances. Appellant did not object to the hearing judge’s line of questioning or to her comments when finding good cause for the postponement.

In fact his counsel attempted to use Brown’s national origin to his benefit in making his argument that the trial date should not be extended because Brown would not be found: I don’t think the State’s proffering anything that would indicate that within the foreseeable future there is good reason to believe that the State’s essential witness is going to be available for any future trial date. I don’t think the State is proffering any matters that my client, Mr. Marks, had anything to do with the unavailability of the State’s witness. I think the Court can perceive that this person has minimal ties to the community and, as a result of all the good faith effort that the police have made in the past, has now relocated from this area, perhaps back to the country of his origin. Since this issue was not raised before the court, it is not preserved for our review.

Rule 8-131(a). Even if this issue were preserved, we find no merit in it. The court questioned Officer Fletcher about Brown’s national origin, so that the court could assess the State’s ²⁸¹ ability to locate Brown, trying to determine whether Brown had gone to another city or back to his native country. The good cause for the continuance was clearly based on the victim’s unavailability as a witness and not upon appellant’s nationality.

II

Appellant next contends that the court erred in denying appellant’s motion to dismiss the charges against him because he was denied his right to a speedy trial under the Sixth Amendment to the U.S. Constitution and Article 21 of the Maryland Declaration of Rights. Constitutional rights, including an accused’s speedy trial right, may be waived if not raised below. Lewis v. State, 79 Md.App. 1, 17 , 555 A.2d 509 (1989), cert. denied, 316 Md. 549 , 560 A.2d 1118 (1989). At the February 22, 1988, good cause hearing, appellant only raised an issue of speedy trial with respect to the 180 day provisions of Md.Code Ann., Art. 27, § 591 and Rule 4-271.

The 180 day provision is separate and distinguishable from constitutional speedy trial rights. State v. Brown, 307 Md. 651, 657 , 516 A.2d 965 (1986). The record is void of any determination by the trial court as to appellant’s constitutional speedy trial right. Since appellant did not raise this issue below, he has not preserved it for our review.

Rule 8-131(a). Even if appellant had preserved this issue for our review, he still would not prevail. The Supreme Court established a balancing test in Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972), for determining whether there has been a violation of a defendant’s Sixth Amendment speedy trial right. It is only necessary to apply this test after the reviewing court has determined that the delay is of constitutional dimension, a delay which is presumptively prejudicial.

Id. at 530 , 92 S.Ct. at 2192 , 33 L.Ed.2d at 117 . Maryland courts have examined the constitutional threshold question, but have not set a bright line test. See State v. Gee, 298 Md. 565 , 578 n. 11, 471 A.2d 712 ²⁸² (1984), cert. denied, 467 U.S. 1244 , 104 S.Ct. 3519 , 82 L.Ed.2d 827 (1984). The Court has concluded, however, that a delay of one year and 14 days "... was sufficiently protracted to be ‘presumptively prejudicial’.” Epps v. State, 276 Md. 96, 111 , 345 A.2d 62 (1975).

In the instant case, the delay ran from July 25, 1987 (the date appellant was arrested) to May 25, 1989 (the date on which the trial began). Recognizing the aforementioned precedent, the State concedes that the delay in the instant case requires that we apply the Barker balancing test. The four factors to be considered in the balancing test are “... length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, supra, 407 U.S. at 530 , 92 S.Ct. at 2192 , 33 L.Ed.2d at 117 . Concerning the reason for the delay of 22 months, we are required under the balancing test to give different weight to the various reasons for the delay: 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 , 33 L.Ed.2d at 117 (footnote omitted). Recognizing that some delay is essential for preparation of a case between arrest and trial, the time that is devoted to normal pretrial preparation is regarded as neutral and is not charged against either party.

Ferrell v. State, 67 Md.App. 459, 463 , 508 A.2d 490 (1986). Thus, the time delay between the date of arrest, July 25, 1987, and the first trial date, November 30, 1987, is not weighted against the State. ²⁸³ On November 30, 1987, a joint request for continuance was granted. The delay between that date and the date scheduled for the readiness conference, February 4, 1988, is given neutral weight since a joint continuance is not chargeable to either party. Id. at 464 , 508 A.2d 490 .

On February 4, 1988, appellant’s co-defendant requested a continuance which resulted in an 18 day delay between that date and the date of the good cause hearing, February 22, 1988. This delay is chargeable to the State because the State chose to try appellant and his co-defendant jointly. Howard v. State, 66 Md.App. 273, 292 , 503 A.2d 739 (1986), cert. denied, 306 Md. 288 , 508 A.2d 488 (1986). At the February 22 good cause hearing, the State requested a continuance so that Brown could be located.

The continuance was granted, and a readiness conference was set for March 21, 1988. This delay is not attributable to either party because a continuance to locate a missing witness is a neutral reason for a delay and is chargeable to neither party. Lee v. State, 61 Md.App. 169, 180 , 485 A.2d 1014 (1985), cert. denied, 303 Md. 115 , 492 A.2d 616 (1985). On the next scheduled date, March 21, appellant made a motion to dismiss, claiming that good cause had not been shown by the State on February 22.

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