Pearson v. State

Bishop, J., delivered the opinion of the Court. After a court trial in the Circuit Court for Anne Arundel County, Arthur Kent Pearson appeals from a judgment of guilty of conspiracy to violate the controlled dangerous substance laws. He argues that the court erred by denying defense motions to dismiss for lack of a speedy trial and to suppress wiretap evidence. 1. Did the trial court commit reversible error in denying appellant’s motion to dismiss for lack of a speedy trial?

Appellant argues these points: (a) substantial prejudice and violation of due process caused by pre-indictment delay; (b) violation of his right to a speedy trial and trial within 180 days under Rule 746 caused by the failure of the court to consider the time the case was pending in the District Court; (c) post-indictment violation of Rule 746. On August 12, 1980, appellant was arrested and charged under a District Court warrant. It is not clear from the record when defense counsel entered his appearance in the District Court, but it appears that this occurred sometime before the end of August 1980. On February 2, 1981, the District Court case was dismissed because the State decided to take the case before the Grand Jury.

On April 6,1981, the State took the case before the Grand Jury and obtained an indictment. On April 23, 1981, defense counsel entered his appearance in the Circuit Court. On July 17, 20 and 21, 1981, hearings'on motions were held. On October 7, 1981, the case came to trial; judgment was rendered on November 10, 1981. ²¹⁹ a.

Substantial prejudice and violation of due process caused by pre-indictment delay There was a seven month, six day lapse between the District Court charge on August 12, 1980, and the Grand Jury indictment on April 6, 1981. Appellant contends that this pre-indictment delay caused him to suffer substantial prejudice and denied him his constitutional right of due process. As authority for this contention he refers us to United States v. Alderman, 423 F. Supp. 847 (D. Md. 1976), in which the Court found that specific prejudice "woven into the fabric of prosecutorial delay, resulting in a denial of defendant’s Fifth Amendment rights...” required dismissal of the indictment. Id. at 858 .

We find Alderman to be inapposite. In the case before us the trial court found no actual prejudice to appellant. Upon review of the record, we conclude that this finding was not clearly erroneous; Maryland Rule 1086. Nor does the record contain any evidence whatsoever of prosecutorial intent to delay.

See United States v. Marion, 404 U.S. 307 (1971); Smallwood v. State, 51 Md. App. 463 (1982). b. Speedy Trial and Rule 746 Appellant contends that the State circumvented his constitutional right to a speedy trial and Maryland Rule 746 by bringing the charges first in the District Court on August 12, 1980, and then not obtaining a Grand Jury indictment until April 6, 1981. No argument on the constitutional speedy trial issue is presented in appellant’s brief and therefore we will not respond. Maryland Rule 1031 c 5 and f.

Van Meter v. State, 30 Md. App. 406, 407-08 (1976); State Roads Comm. v. Halle, 228 Md. 24, 31-32 (1962). The main thrust of appellant’s argument under Rule 746 is that the State should not be permitted to charge a defendant in the District Court and then subsequently obtain a Grand Jury indictment, yet not be charged under Rule 746 with the time between the District Court charge and the ²²⁰ indictment. Rule 746, however, begins to run not at the time the charge is filed or the indictment handed down, but either when counsel enters his appearance or when the defendant first appears in court pursuant to Rule 723, whichever occurs first. Furthermore, Rule 746 applies only to charges brought in the Circuit Court.

Brown v. State, 27 Md. App. 233 (1975); Maryland Rule 701; Goins v. State, 293 Md. 97, 99 .(1982), see State v. Hicks, 285 Md. 310, 315 (1979), on motion for reconsideration, 285 Md. 334 (1979). There is no provision for tacking the time between the District Court charge and a subsequent Grand Jury indictment to the time that begins running under the rule in the Circuit Court. c. Post-indictment violation of Rule 746 The very short answer to the argument that appellant’s case was not tried within the 180 days required under Maryland Rule 746 is that the time under the rule started running on April 23, 1981, when counsel entered his appearance in the Circuit Court, and trial was held on October 7, 1981. The lapse between these dates was 167 days, well within the 180 day requirement.

Hicks, supra. The second and final question raised is: 2. Did the trial court commit reversible error in denying appellant’s motion to suppress wiretap evidence? a. The burden of proof of minimization The trial court ruled that the State did not have the burden of proving minimization, but that the defense would be required to show that the minimization requirement had not been met.

Sections 10-401 to 10-412 of the Maryland Courts and Judicial Proceedings Article and 18 United States Code, ²²¹ §§ 2510-2520 govern the interception of wire or oral communications, Courts and Judicial Proceedings Article, § 10-408 (e) provides that every order authorizing an interception "... shall contain a provision that the authorization to intercept. . . shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception. . . .” 18 U.S. Code, § 2518 (5) contains the identical language. The foregoing "requires the intercept procedure to be conducted so as to reduce to the smallest possible number the interception of 'innocent’ calls,” United States v. Focarile, 340 F. Supp. 1033, 1047 (D. Md. 1972), aff'd sub nom. United States v. Giordano, 469 F. 2d 522 (4th Cir. 1972), aff'd 416 U.S. 505 , 94 S.Ct. 1820 , 40 L. Ed. 2d 341 (1974); United States v. Manfredi, 488 F. 2d 588, 600 (2d Cir. 1973); see United States v. Clerkley, 556 F. 2d 709, 715-16 (4th Cir. 1977). The burden of proof of minimization is on the State, United States v. Rizzo, 491 F. 2d 215, 217-18 (2d Cir. 1974); Poore v. State, 39 Md. App. 44, 71 (1978); however, all that is required of the State is to produce evidence showing prima facie compliance with the minimization requirements, and then the burden of production and persuasion shifts to the defendant.

Id.; See United States v. Manfredi, supra. At the time he heard the motion to suppress, the trial judge in this case had before him the order and the return, which included the tapes and 109 typewritten logs. The intercept order contained the following: "ORDERED that every effort be made to intercept only those communications which reasonably may be expected to relate to the aforesaid crimes, and that the designated operators of the said electronic devices, and the supervisors in charge of the investigation shall make a diligent effort to minimize the interception of communications which are not otherwise subject to interception, and to this ²²² end a continuing log shall be maintained of these [sic] precise time, dates, duration and location of each intercepted communication or fragment thereof, as well as the parties thereto, if identifiable, and the general subject matter thereof, This language conforms with the statute. Although the return itself makes no reference at all to minimization, the tapes and logs must be considered parts of the return.

When so considered the return, including especially the logs, clearly indicates compliance with the order as to minimization and the extent of minimization. This convinces us that the State met its burden of making a prima facie showing of compliance with the statute. The trial court’s misallocation of the burden of proof concerning minimization was patently harmless for two reasons. First, as has been shown, the State met its burden of showing minimization.

Second, the evidence produced by appellant and his co-defendants, far from weakening the State’s case, actually showed that the police complied with the minimization requirement. A burden of proof may be "satisfied by the actual proof of the facts which need to be proved, regardless of which party introduces the evidence.” Sergeant Co. v. Pickett, 285 Md. 186, 203-04 (1979) (emphasis in original); Parish v. Milk Producers Ass’n, 261 Md. 618, 692 (1971); 31A C.J.S. Evidence, § 104, at 175-76 (1964). Even if the State failed to make a prima facie showing of compliance, and therefore the court erred in requiring the defendants to produce evidence to show failure to minimize, the evidence the appellant and others elected to produce would have rendered the error harmless. In Spease and Ross v. State, 275 Md. 88, 99 (1975) the Court pointed out that: "The standard for compliance with the requirement to minimize is the overall reasonableness of the totality of the conduct of the monitoring agents in light of the purpose of the wiretap and the infor ²²³ mation available to the agents at the time of interception.” Spease also provides us with the following: "A synthesis of the numerous court decisions dealing with the minimization requirement suggests that there are a number of factors which aid courts in determining the reasonableness of an interception.

These include: (1) the nature and scope of the crime being investigated; (2) the sophistication of those under suspicion and their efforts to avoid surveillance through such devices as coded conversations; (3) the location and the operation of the subject telephone; (4) government expectation of the contents of the call; (5) the extent of judicial supervision; (6) the duration of the wiretap; (7) the purpose of the wiretap; (8) the length of the calls monitored; (9) the existence of a pattern of pertinent calls, which the monitoring agents could discern so as to eliminate the interception of non-pertinent calls; (10) the absence of monitoring of privileged conversations.” Id. at 100 . Based on our review of the evidence, including the testimony, the transcripts and the logs, and considering the nature and scope of the controlled dangerous substance question, the obvious sophistication of those under surveillance, the location of the dwelling where the telephone was located, the expectation set out in the affidavit, the extent of judicial supervision, the duration, purpose and length of the calls monitored, coupled with the pattern of the pertinent calls and the clear efforts made by the agents not to monitor privileged conversations, we conclude that the minimization requirement was met. The only non-pertinent conversations that were actually monitored were those on which the agents had to make a judgment call. There were several conversations only partially monitored that we believe could lawfully have been completely monitored, if the agents erred, they did so to the benefit of those under ²²⁴ scrutiny.

The standards for minimization were met. Spease, supra; Poore, supra; Salzman v. State, 49 Md. App. 25 (1981). Failure to Seal the Tapes Section 10-408 (g) (2) of the Courts and Judicial Proceedings Articles provides: "(2) Applications made and orders granted under this subtitle shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs.

The applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for ten years.” At the conclusion of the interception the tapes, along with certain documentation, were delivered into the custody of the judge who had signed the original order. The judge placed this evidence in a box, taped the box, placed his signature on the tape and delivered the box into the custody of the