Nocera v. State

Lowe, J., delivered the opinion of the Court. Appellant David Vincent Nocera was tried in the Circuit Court for Prince George’s County for assault with intent to murder and assault and battery. The charges arose from a ³¹⁸ fracas between a number of revelers and the police officers who attempted to mute the din of their music. Appellant was acquitted by the court, sitting without a jury, of the first crime, but convicted of the second.

He raises five contentions upon appeal, but because our review of the record convinces us that appellant was denied the right to a speedy trial, we shall only address that'issue. The relevant progress of events was as follows: 7/20/75 - Appellant arrested. 8/22/75 - Petition for immediate trial and waiver of rights to grand jury indictment. 11/5/75 - Indictment filed despite waiver two months earlier. 11/20/75 - Appellant failed to answer when called for arraignment; bench warrant issued. 11/26/75 - Counsel for appellant entered appearance; plea of “not guilty” filed. 12/5/75 - Appellant released on $10,000 property bond. 1 12/10/75 - Trial scheduled for 2/3/76. 2/3/76 - Trial continued upon State’s request due to illness of the assaulted officer; trial scheduled for 4/1/76. 3/19/76 - Appellant’s motion to continue trial due to prospective absence of defense witness filed. 3/24/76 - Motion for continuance granted; trial scheduled for 6/1/76. 5/24/76 - Appellant’s motion to consolidate this and related cases filed. 6/1/76 - Motion to consolidate denied; trial continued upon State’s request due to ³¹⁹ the fact a prosecuting attorney had not been assigned to the case; 2 trial scheduled for 6/18/76; “no further continuances” noted on docket sheet. 6/8/76 - Appellant’s motion to consolidate filed. 6/15/76 - Motion to consolidate denied; trial continued upon State’s request due to prosecuting attorney’s trial of another ease; trial scheduled for 7/28/76. 7/28/76 - Trial continued at State’s request due to illness of the assaulted officer; trial scheduled for 9/20/76; “no further continuances to be granted due to the illness of Officer Henegan” noted on docket sheet. 7/80/76 - Appellant’s motion to reconsider motion to consolidate filed. 8/18/76 - Motion denied. 9/20/76 - Oral motion to dismiss for lack of speedy trial made and denied; trial commenced. 9/22/76 - Verdict rendered. The interval we must consider in deciding whether appellant was denied a speedy trial begins on date of arrest, United States v. Marion, 404 U. S. 307, 320 , and ends on the day trial commenced. Epps v. State, 276 Md. 96, 109 , but see State v. Wilson, 35 Md. App. 111, 116 , where time stopped running at the date of the hearing on the motion to dismiss.

The delay here of 14 months is great enough to require us to scrutinize the facts incident to the continuum in light of the ³²⁰ standards set forth in Barker v. Wingo, 407 U. S. 514 . See Dorsey v. State, 34 Md. App. 525 . Assertion of the Right The least significant factor here is “assertion of the right”, although the right, when it is properly asserted, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right to speedy trial. Barker, supra, 407 U. S. at 531 ; Jones v. State, 279 Md. 1 .

In August 1975 appellant petitioned the district court for an immediate trial pursuant to Md. Rule 709 a. Although this rule was not designed as an alternative way to assert one’s constitutional right to a speedy trial, State v. Murdock, 235 Md. 116, 119 , appellant’s petition for “an immediate trial date in order to insure the presence of all witnesses at trial and the accuracy of their testimony” waiving any grand jury rights, can reasonably be construed as putting the State on notice that appellant desired a prompt resolution of the charges against him. “Invocation of the speedy trial provision thus need not await indictment, information or other charge.” United States v. Marion, supra, 404 U. S. at 321 . Contrary to what the State suggests (but does not state) in its brief, a formal motion for a speedy trial is not a prerequisite to the invocation of the right. See Smith v. State, 276 Md. 521, 532 ; Epps v. State, supra, 276 Md. at 117-118.

Although no written motion for a speedy trial was ever filed, appellant argues that he repeatedly requested a speedy trial and moved orally for such at the February 3, June 1, June 15 and July 28 hearings. We find no notations of such motions on the docket or elsewhere in the record, and the State does not concede that such motions were made. Accordingly, we reject appellant’s allegations. But unlike the record in Barker v. Wingo, supra, the record here does show opposition to the State’s motions to continue which can be construed, if not as a formal assertion of his right, at least as indicative of an intent not to abandon it.

See Barker v. Wingo, supra, 407 U. S. at 534 . The ³²¹ significance of the relationship between appellant’s opposition to the State's motions for a continuance and appellant’s own motions to consolidate cannot, on this record, be fully analyzed. While appellant argues that he had solid legal basis for his motions and that, when they were denied, he was prepared to go to trial immediately, the State argues that appellant was not in fact prepared for trial, and that the motions for consolidation belie any request for an immediate trial. Here, too, only appellant’s assertion upon appeal and our speculation, not evidence in the record, can be used to resolve the conflict, and we accordingly decline to so speculate.

This evidentiary void points up the need for counsel to develop fully and on the record all the reasons assigned during the hearing on the motion to dismiss for lack of a speedy trial. Cf. Brady v. State, 36 Md. App. 283 (1977). The only motion with regard to a speedy trial confirmed by the record and made in the circuit court was the one advanced on the day of trial to dismiss the indictment for lack of a speedy trial.

This, of course, was not a motion to be tried, but a motion not to be tried, State v. Murdock, supra, 235 Md. at 121 , and, therefore, does not tend to support appellant’s argument that he effectively demanded a speedy trial. See Evans v. State, 30 Md. App. 423, 430-431 ; Todd and Merryman v. State, 26 Md. App. 583 . While we conclude that there is some evidence of record which tends to support appellant’s contention that he demanded a speedy, trial, the evidence is not such as to compel giving this factor “strong evidentiary weight”. Barker, supra, 407 U. S. at 531 .

On the other hand, the appellant had no duty to bring himself to trial — that burden was upon the State. Barker, supra, 407 U. S. at 529 , Epps v. State, supra, 276 Md. at 105. Accordingly the evidence is sufficient to overcome the effect of the rule that a failure to assert the right will make it difficult to prove denial of a speedy trial. Barker, supra, 407 U. S. at 532 .

On the facts here, we consider “assertion of the right” a neutral factor. ³²² Prejudice The next factor to evaluate is prejudice. As explicated by State v. Wilson, supra, 35 Md. App. at 127-136 , there may be prejudice to the person by way of pretrial incarceration; anxiety, financial strain and loss of employment; and there may be prejudice to the defense through loss of witnesses or fading memory. Incarceration is apparently not a factor in this case, but anxiety and other prejudices to the person are presumed “at the very instant when review itself is necessitated.” State v. Wilson, supra, 35 Md. App. at 123 . The fact that appellant was required to post a $10,000 property bond might add a grain of actual prejudice, but inasmuch as appellant neither here nor below argued that any particular hardship attended this