Phillips v. State

Bashunn Phillips v. State, No. 3245, September Term, 2018. Opinion by Kenney, J. CRIMINAL LAW – TIME OF TRIAL – DECISIONS SUBSEQUENT TO 1966 – CONSTITUTIONAL AND STATUTORY PROVISIONS Under Article 21 of the Maryland Declaration of Rights, “in all criminal prosecutions, every man hath a right . . . to a speedy trial[.]” And we have held that “[t]he speedy trial right under the Maryland Constitution is coterminous with its Federal counterpart and any resolution of a claim under the Sixth Amendment will be dispositive of a parallel claim under Article 21.” Erbe v. State, 25 Md. App. 375, 380 (1975), aff’d, 276 Md. 541 (1976) (internal citation and quotation marks omitted). CRIMINAL LAW – TIME OF TRIAL – DECISIONS SUBSEQUENT TO 1966 – DELAY ATTRIBUTABLE TO PROSECUTION No Maryland appellate decision had specifically addressed whether and how delays caused by interlocutory appeals initiated by the State should be weighed in a speedy trial analysis. On the other hand, federal courts have held that an interlocutory appeal by the prosecution “is a valid reason that justifies delay” and ordinarily the resulting delay will not be accorded “any effective weight” in a speedy trial analysis.

United States v. Loud Hawk, 474 U.S. 302 , 315–16 (1986); see also United States v. Bishton, 463 F.2d 887, 889 (D.C. Cir. 1972) (“the time spent on appeals is not generally included for purposes of calculating the period of delay in prosecution”). But if the issue appealed by the prosecution is “clearly tangential or frivolous,” the delay resulting from the appeal should weigh heavily against it. Loud Hawk, 474 U.S. at 315–16. CRIMINAL LAW – TIME OF TRIAL – DECISIONS SUBSEQUENT TO 1966 – DELAY ATTRIBUTABLE TO PROSECUTION As set forth in United States v. Herman, 576 F.2d 1139, 1146 (5th Cir. 1978), which we find instructive in the Barker v. Wingo, 407 U.S. 514 , 530–33 (1972), analysis in this case, relevant factors to assess the reasonableness of the interlocutory appeal include the strength of the government’s position on the appealed issue, the importance of the issue in the posture of the case, and the seriousness of the crime.

The defendant bears the burden of showing that the State acted in bad faith in pursuing the interlocutory appeal. Circuit Court for Anne Arundel County Case No. 02-K-14-001626 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 3245 September Term, 2018 ______________________________________ BASHUNN CHRISTOPHER PHILLIPS v. STATE OF MARYLAND ______________________________________ Fader, C.J., Nazarian, Kenney, James A., III (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Kenney, J. ______________________________________ Filed: April 30, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2020-10-16 09:32-04:00 Suzanne C. Johnson, Clerk Appellant, Bashunn Christopher Phillips, was charged with the December 10, 2013 murder of Shar’ron Mason on July 18, 2014. His trial began approximately four years later on July 9, 2018. The extended aspect of this delay began on August 7, 2015, when appellant filed a motion in limine to exclude evidence related to cell tower maps that the State intended to use to establish the approximate location of appellant’s cell phone on the morning of December 10, 2013.1 The circuit court granted appellant’s motion, and the State requested in banc review.2 When the in banc panel reversed the order in limine, appellant appealed and the State responded with a motion to dismiss.

In Phillips v. State, 233 Md. App. 184 (2017) (Phillips I), this Court denied the State’s motion to dismiss the appeal and reversed the ruling of the in banc panel for lack 1 Relying on Reed v. State, 283 Md. 374 (1978) and other authority appellant asked the Circuit Court for Anne Arundel County to exclude evidence involving a “drive test” purportedly measuring the coverage area of a cell phone tower that was used by appellant’s cell phone on the date of Ms. Mason’s murder. The circuit court explained a “drive test” in its memorandum opinion as follows: A drive-test is generally conducted by cell phone providers using either a scanner or test phone to measure the signal strength in order to determine the true coverage area for a particular cell tower and any gaps in their network. The person drives around a particular neighborhood and the JDSU equipment plots the latitude, longitude, and energy emitted by the cell tower at the location. JDSU is an abbreviation for “JDS Uniphase Corporation,” the company that creates the drive test software. 2 Black’s Law Dictionary (11th ed. 2019) defines “en banc” [from the Law French “on the bench”] as “[w]ith all judges present and participating; in full court” and explains that it is “[a]lso spelled in banc.” The Maryland Constitution and the Maryland Rules use “in banc,” which we use except in quoting references to “en banc” in the record. of jurisdiction.

The Court of Appeals granted certiorari review and, on February 20, 2018, affirmed our holding that the State had no authority to seek in banc review of an evidentiary ruling in State v. Phillips, 457 Md. 481, 512 (2018) (Phillips II). Throughout the pre-trial delay, appellant was incarcerated. On April 8, 2018, he filed a motion to dismiss for violations of his right to a speedy trial, which the circuit court denied on June 15, 2018. Appellant presents one question in his timely appeal: Was his right to a speedy trial violated?

As we explain below, we answer that question “no” and affirm the decision of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND Timeline of Events Appellant was indicted on July 18, 2014 and arrested on July 22, 2014 on charges related to the murder of Ms. Mason on December 13, 2013. On July 25, 2014, he filed his first request for a speedy trial as part of an omnibus motion. The court granted appellant’s August 7, 2015 motion in limine on February 12, 2016, and that same day, the State requested in banc review of the court’s ruling based on Maryland Constitution, Article IV, 2 section 22,3 and Maryland Rules 4-3524 and 2-551.5 Previously, a trial date of March 9, 2016 had been postponed because the hearing on appellant’s motion in limine had not been completed. 3 Article IV, section 22, of the Maryland Constitution provides: Where any trial is conducted by less than three Circuit Judges, upon the decision or determination of any point, or question, by the Court, it shall be competent to the party, against whom the ruling or decision is made, upon motion, to have the point, or question reserved for the consideration of three Judges of the Circuit, who shall constitute a court in banc for such purpose; and the motion for such reservation shall be entered of record, during the sitting at which such decision may be made; and the procedure for appeals to the Circuit Court in banc shall be as provided by the Maryland Rules.

The decision of the said Court in banc shall be the effective decision in the premises, and conclusive, as against the party at whose motion said points, or questions were reserved; but such decision in banc shall not preclude the right of Appeal by an adverse party who did not seek in banc review, in those cases, civil or criminal, in which appeal to the Court of Special Appeals may be allowed by Law. The right of having questions reserved shall not, however, apply to trials of Appeals from judgments of the District Court, nor to criminal cases below the grade of felony, except when the punishment is confinement in the Penitentiary; and this Section shall be subject to such provisions as may hereafter be made by Law. 4 Maryland Rule 4-352 states: In banc review of a circuit court's judgment or determination is governed by the provisions of Rule 2-551, except that the right of review does not apply to criminal actions exempted under the Maryland Constitution. In applying Rule 2-551, references to Rules 2-517, 2-520, and 2-533 shall be construed as references to Rules 4-322, 4-325, and 4-331(a) respectively. 5 Maryland Rule 2–551 provides in pertinent part: (a) Generally. When review by a court in banc is permitted by the Maryland Constitution, a party may have a judgment or determination of any point or question reviewed by a court in banc by filing a notice for in banc review. 3 Appellant, arguing that the in banc panel was without jurisdiction to hear the appeal, filed a Motion to Dismiss State’s Request for In Banc Review.

Appellant contended that Article IV, section 22, of the Maryland Constitution permits in banc review only when a direct appeal is allowed and the State had no statutory right to appeal the court’s order. The State responded that in banc review of a trial court’s decision was not an “appeal,” and that the Maryland Constitution provided the right to an in banc determination in this context. On February 25, 2016, trial was postponed until August 29, 2016 at the State’s request over defense counsel’s objection.6 At the postponement hearing, defense counsel argued that, in seeking in banc review, the State was “delay[ing] trial for a motion that has no merit.” The in banc panel denied appellant’s motion to dismiss on March 24, 2016, stating that it would reconsider the motion after a hearing. The in banc panel held a hearing on May 17, 2016, and, on June 3, 2016, issued a Memorandum Opinion & Order denying the appellant’s motion to dismiss and reversed the circuit court’s decision excluding the drive-test evidence.

Appellant noted an interlocutory appeal to this Court on June 13, 2016. The State moved to dismiss the appeal, arguing that appellant lacked the statutory authority to appeal Issues are reserved for in banc review by making an objection in the manner set forth in Rules 2–517 and 2–520. Upon the filing of the notice, the Circuit Administrative Judge shall designate three judges of the circuit, other than the judge who tried the action, to sit in banc. 6 Appellant had either requested or agreed to all postponements before February 25, 2016. 4 an evidentiary ruling before a trial had been conducted, and that the proper avenue to appeal the in banc panel’s decision was to do so after the trial. We issued a reported opinion on June 28, 2017, stating that “the case law is unambiguous that ‘when no appeal from a circuit court order could be taken to the Court of Special Appeals . . . , then no appeal can be taken to a court in banc.’” Phillips I, 233 Md. App. at 212 (quoting Bd. of License Comm’rs for Montgomery Cty. v. Haberlin, 320 Md. 399, 407 (1990)).

We held that the in banc panel did not have jurisdiction to review the trial court’s ruling on the motion in limine because it was not a final judgment, and that the exception provided to the State under CJP § 12-302(c)(3)(i) did not apply because the evidence was not excluded by the court on constitutional grounds. As to the State’s contention that appellant had to wait to appeal the in banc panel’s decision, we stated: [T]he proper time to appeal a decision of an in banc panel is directly after the decision of the in banc panel. A party who waits to appeal until after remand and final judgment by the circuit court loses the ability to argue those points decided by the in banc panel. This is contrary to the State’s contention, just mentioned, that Phillips must wait until after a trial and verdict to offer any allegations of error concerning the in banc panel’s decision.

In fact, if Phillips were to follow the State’s advice and wait until a full trial, verdict, and appeal to this Court, he would be foreclosed from offering argument concerning the decision of the in banc panel[.] Phillips I, 233 Md. App. at 197–98 (internal citations and footnotes omitted). On October 10, 2017, the Court of Appeals granted the State’s certiorari petition. On February 20, 2018, that Court, in Phillips II, 457 Md. 481 , affirmed the judgment of this Court that the ruling on appellant’s motion in limine was not subject to in banc review. 5 The Speedy Trial Motion and Hearing On April 8, 2018, appellant, alleging that his right to a speedy trial had been violated, filed a motion to dismiss. He contended that, while delays caused by defense appeals in criminal cases are “not relevant to the speedy trial analysis,” the delay in this case was “initiated by the State’s attempt to pursue an appeal to which it was not entitled.” Citing Ward v. State, 52 Md. App. 63, 77 (1982), appellant acknowledged that “[d]elays caused by government appeals should be charged against the State only when the appeal is taken in bad faith or as a dilatory tactic.” But “[t]he State should have known that from the plain language of the Maryland Rules, the Maryland Constitution, and applicable statutes that it had no legal basis to support filing the request for an in banc panel.” In appellant’s view, all delays after March 9, 2016 were attributable to the State: As [appellant] either requested or acquiesced to all postponements prior to February 25, 2016, [he] does not argue that the entirety of the delay in this case was attributable to the State.

However, all of the delay after the March 9, 2016, trial date was postponed should be charged to the State. In its April 23, 2018 response, the State did “not dispute that the speedy trial clock began to run on July 18, 2014 and that the subsequent delay [was] sufficient to merit constitutional scrutiny.” It acknowledged that the delay “is a factor to be a considered” but, relying on Glover v. State, 368 Md. 211, 225 (2002), it stated that it was “not a weighty factor.” The State countered appellant’s contention that it was responsible for all delays occurring after March 9, 2016 as “not consistent with the case law.” And that the “intervening delay, between August 29, 2016 and October 10, 2017 [was] attributable to 6 the [appellant] . . . . because [he] was pursuing an appeal of the unanimous ruling of the three judge panel.”7 At the June 15, 2018 hearing on his speedy-trial motion, appellant again stated that the relevant period of delay “is between March of 2016 and today [June 15, 2018],” arguing: Although Mr. Phillips was indicted in July of 2014, for that first two-year period, we either agreed to or asked for the postponements. The delay that I’m talking about is from the request from the – for the three-judge panel and the postponement in March of 2016. There are places in the State’s response where they refer to the fact that Mr. Phillips was serving a sentence during the time of the delay in his trial, and that’s important because the prejudice that I’m talking about for the purpose of speedy trial analysis is pre-trial incarceration. * * * What I am arguing is that the delay was initiated by the State because they filed an en banc review.

And the decisions by both the Court of Special Appeals and the Court of Appeals are very clear, and they agree with the argument that we’ve been making from the very beginning, which is that the three—judge en banc review is a state law remedy that’s rarely pursued, but it’s treated as an equivalent to an appeal, and that you can only file an en banc review of something that you are entitled to appeal to the Court of Special Appeals, and because they didn’t have that right, they did not have the right to request an en banc review. In addition, appellant argued that “the en banc was requested in bad faith” and that “[t]he fact that three judges end up being wrong shouldn’t be held against [appellant] for 7 August 29, 2016 was the trial date set at the February 25, 2016 hearing for a delay requested by the State. October 10, 2017 was when the Court of Appeals granted the State’s petition for writ of certiorari. 7 the purpose of speedy trial.” Appellant claimed that, even without the excluded evidence, the State had cell phone tower evidence showing that appellant’s phone was not using the tower closest to his home at the time of the murder: So, the State had the evidence that it needed. It was upset by the Court’s ruling and was grasping at straws to find any possible way to get it overturned, and in order to do so, it pursued a remedy that was illegal, that should have immediately been dismissed, that shouldn’t have been pursued in the first place, and they caused a delay of over two years additional to the delay that had already happened.

The State “agree[d] that the delay caused by the request for the three-judge panel is obviously attributable to the State,” but it argued that the most important Barker8 factor is prejudice to the defendant. And that appellant, limiting his prejudice to his pre-trial incarceration, had not articulated prejudice “that would impact the trial itself.” The State also noted: But I think at the end of the day, I do agree with [appellant] that the case that’s controlling in this is [United States v.] Herman[, 576 F.2d 1139, 1146 (5th Cir. 1978)], although it’s not a state case. Maryland state cases haven’t really delved into this issue specifically to a great extent, which is I think wh[y] both parties are relying on Herman. Herman really has the standard that the Maryland courts have adopted.

When you’re looking at the reasons for the delay and determining whether that reasoning — whether the reasons for the delay sort of counts for or against the State or Defense in terms of the speedy trial analysis. On June 26, 2018, the circuit court issued its order, denying appellant’s motion to dismiss. In a footnote, the court explained its balancing of the Barker factors: 8 In determining whether the defendant’s right to a speedy trial has been violated, the Supreme Court of the United States has set forth four factors that the court must weigh, which we will discuss in more detail later. Barker v. Wingo, 407 U.S. 514 , 530–33 (1972). 8 Defendant acknowledges that he either requested or acquiesced to all postponements prior to February 25, 2016.

Thus, the length of the delay will be counted from February 25, 2016 and is more than two years and four months. However, “[t]he length of delay, in and of itself, is not a weighty factor, but rather the duration of the delay is closely correlated to the other factors, such as the reasonableness of the State's explanation for the delay, the likelihood that the delay may cause the defendant to more pronouncedly assert his speedy trial right, and the presumption that a longer delay may cause the defendant greater harm.” Glover v. State, 368 Md. 211, 225 (2002). Defendant argues that all delays after from February 25, 2016 are attributable to the State’s pursuit of an appeal to which it was not entitled under . . . Md. Rule 2-551, Md. Code Ann., Courts and Judicial Proceedings Article § 12-302, and Article IV, § 22 of the Maryland Constitution.

The State does not dispute that the delays from February 25, 2016 to August 29, 2016 and after October 10, 2017 are attributable to the State. However, the State argues that the delay between August 29, 2016 and October 10, 2017, when Defendant was pursuing his appeal of the three-judge panel, is attributable to Defendant. This delay was completely foreseeable and a direct result of State’s initial appeal. Indeed, Defendant had no choice but to pursue its appeal of the Court’s in banc order.

However, this Court does not find that the State filed the in banc request as a dilatory tactic. This Court does find that there was no substantial justification based upon existing law and the applicable rules for the filing of an in banc. The argument that since three (3) judges proceeded with the in banc is not persuasive. The delay from February 25, 2016 must be held against the State.

To the extent that there is presumptive prejudice in the two-year and four-month delay, it is overcome by the Defendant’s failure to identify any actual prejudice in his ability to prepare for or proc[e]ed to trial. Defendant filed a demand for a speedy trial on July 25, 2014. Defendant objected to the February 25, 2016 postponement. The State does not dispute that Defendant did assert his right to a speedy trial at said hearing.

In considering the prejudice factor, the Court is to consider the interests of Defendant which the speedy trial right was designed to protect, namely, (a) to prevent oppressive pretrial incarceration; (b) to minimize anxiety and concern of the accused; and (c) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. Barker [v. Wingo, 407 U.S. 514, 532 (1972)]. Defendant’s argument focuses on the length of pretrial incarceration.

However, he makes no claim of anxiety and concern, nor any claim of impairment of preparation 9 of his case. This Court finds that Defendant’s case has been in no way impaired by the delay. After a bench trial that began on July 9, 2018, appellant was convicted of first- degree murder, use of a firearm in a felony, use of a firearm in the commission of a crime of violence, and wearing or carrying a handgun. He was sentenced to life imprisonment on the murder count and twenty years consecutive on the use of a firearm in the commission of a felony.

Further facts will be provided in the discussion. STANDARD OF REVIEW The Court of Appeals has explained: An appellate court reviews without deference a trial court’s conclusion as to whether a defendant’s constitutional right to a speedy trial was violated. See Glover v. State, 368 Md. 211, 220 (2002) (“In reviewing the judgment on a motion to dismiss for violation of the constitutional right to a speedy trial, we make our own independent constitutional analysis.” (Citations omitted)). Howard v. State, 440 Md. 427 , 446–47 (2014).

But, “in so doing, we defer to the circuit court’s first level findings of fact unless clearly erroneous.” Henry v. State, 204 Md. App. 509, 549 (2012) (internal citations omitted). DISCUSSION Contentions Appellant contends that his constitutional right to a speedy trial was violated because of the length of the delay, the reasons for the delay, most specifically the in banc review, his assertion of his right, and the presumed prejudice to him. The State contends that appellant’s constitutional right to a speedy trial was not violated because the “delay in 10 this case was not the product of bad faith and any delay in this prosecution did not appreciably prejudice [appellant].” In its view, the lack of any appreciable prejudice “outweighs the remaining factors.” Analysis Under the Sixth Amendment to the Constitution of the United States, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial[.]” U.S. Const. amend.

VI

Under Article 21 of the Maryland Declaration of Rights, “in all criminal prosecutions, every man hath a right . . . to a speedy trial[.]” And we have held that “[t]he speedy trial right under the Maryland Constitution is coterminous with its Federal counterpart and any resolution of a claim under the Sixth Amendment will be dispositive of a parallel claim under Article 21.” Erbe v. State, 25 Md. App. 375, 380 (1975), aff’d, 276 Md. 541 (1976) (internal citation and quotation marks omitted). As noted above, we apply the four-factor balancing test articulated by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972) to determine whether a defendant’s constitutional right to a speedy trial was violated. See Howard v. State, 440 Md. 427, 447 (2014). Those factors are: (1) the “[l]ength of delay”; (2) the “reason for the delay”; (3) the “defendant’s assertion of” his speedy trial right; and (4) “prejudice to the defendant.” Barker, 407 U.S. at 530 . “None of these factors is, in itself, either necessary or sufficient to find a violation of the speedy trial right; instead, they are related factors and must be considered together with such other circumstances as may be relevant.” Nottingham v. State, 227 Md. App. 592, 613 (2016) (internal citation and quotation marks 11 omitted).

In other words, there is no bright-line rule to determine whether a defendant’s right to a speedy trial had been violated. We employ instead a balancing test in which we weigh “the conduct of both the prosecution and the defendant.” State v. Kanneh, 403 Md. 678, 688 (2008) (quoting Barker, 407 U.S. at 530 ). A. Length of Delay Under a Sixth Amendment speedy trial analysis, the threshold issue is whether the length of the delay is presumptively prejudicial. See Barker, 407 U.S. at 530 (explaining that unless “there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.”).

For that reason, the length of delay plays a dual role “because a delay of sufficient length is first required to trigger a speedy trial analysis, and the length of the delay is then considered as one of the factors within that analysis.” Kanneh, 403 Md. at 688 . We have explained that “[t]he