Powell v. State

ALPERT, Judge. Vernon Brooks was murdered on December 12,1979. Two years and nearly nine months later, Melvin Dwayne Powell (appellant) was convicted of that murder in the second degree and was later sentenced, pursuant to Md.Code Ann. Art. 27, § 643B (1957,1982 Repl.Vol.) to a period of incarceration of 30 years without parole. After noting a timely appeal, appellant complains that: I. He was denied his constitutional right to a speedy trial.

II

He is entitled to dismissal of the charges as a result of the State’s lack of compliance with the Interstate Agreement on Detainers.

III

The trial court erred in instructing the jury that the testimony of a single eyewitness is sufficient to sustain a conviction.

IV

The evidence was not sufficient to sustain a mandatory sentence without parole under Article 27, § 643B. Since we hold that appellant’s complaints as to the first three issues are without merit, we shall affirm the conviction of murder in the second degree. Because the evidence was not sufficient to sustain a mandatory sentence without parole under Article 27, § 643B, we shall vacate the sentence and remand this case to the Circuit Court for Baltimore City for imposition of a proper sentence. ³⁵⁶ I. Speedy Trial A. The Chronology 12/12/79 Vernon Brooks was stabbed in the chest at about 8:30 P.M. and died later that day. 12/13/79 An arrest warrant was issued charging appellant with the Brooks murder. 3/18/81 Appellant was arrested by federal authorities in New York for a parole violation and was incarcerated in that State. Federal parole was subsequently revoked and he was sentenced to eight months. 4/7/81 Baltimore City Police wrote to the United States Marshall Service in New York requesting that Appellant be detained as a result of murder charges in Maryland.

That communication purportedly 1 included a copy of the district court warrant charging Appellant with the murder of Brooks, and asked that this warrant be treated as a detainer. 4/9/81 Appellant, incarcerated in New York, received a letter from his “case manager” informing him that Maryland authorities wanted him detained in New York. Appellant asked his case manager for forms to enable him to file for a speedy trial under the detainer statute. She responded that the Maryland authorities had failed to comply with the procedural requirements for a formal detainer, so he could not request a speedy disposition. While incarcerated, Appellant’s transfer to a lower-security area was revoked because of the alleged Maryland detainer. 4/22/81 Appellant was indicted for the murder of Vernon Brooks. 6/81 (specific date unspecified) Appellant transferred to Petersburg, Virginia, to serve the balance of his federal ³⁵⁷ sentence.

While there, he was informed that his scheduled transfer to a “halfway house” would not go through because of the Maryland charges. 9/13/81 Maryland authorities filed a “formal detainer” according to uncontradicted evidence introduced at the hearing on the motion to dismiss for lack of speedy trial. 9/29/81 The “formal detainer” was received by the appropriate federal authorities. 10/2/81 Appellant requested a speedy trial under the Interstate Agreement on Detainers. 11/24/81 Appellant was transferred to Maryland. 12/15/81 Appellant was arraigned. Case set for trial on March 29, 1982. 3/29/82 Case postponed at Appellant’s request, because new counsel had entered the case and needed time for preparation. Case rescheduled for August 17, 1982. 8/17/82 Case postponed because prosecutor was on vacation. 9/8/82 Trial began. B. The Law Sometime before trial appellant apparently 2 moved to dismiss the charges because he was denied his constitutional right to a speedy trial and further because the State violated the Interstate Agreement on Detainers.

There is no constitutional right to be tried within a specified period of time. Denial of the right must be determined on a case-by-case basis balancing both the conduct of the defendant and the State. Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972); Epps v. State, 276 Md. 96 , 345 A.2d 62 (1975). A four factor test has ³⁵⁸ evolved for determining whether a particular defendant has been denied a speedy trial.

Those four factors are: 1. Length of delay. 2. Reason for delay. 3. The defendant’s assertion of the right. 4.

Prejudice to the defendant. The balancing of the four factors is required only when the length of the delay is of constitutional dimension. State v. Lawless, 13 Md.App. 220 , 283 A.2d 160 (1971), cert. denied, 409 U.S. 855 , 93 S.Ct. 192 , 34 L.Ed.2d 99 (1972). The delay herein being 33 months and 27 days, as explained infra, is of constitutional dimension. 1.

Length of Delay The appellant became an accused entitled to a speedy trial upon commencement of his prosecution by way of arrest, warrant, information or indictment, whichever first occurred. State v. Hunter, 16 Md.App. 306, 311 , 295 A.2d 779 (1972). See also Gee v. State, 54 Md.App. 549 , 459 A.2d 608 and Strickler v. State, 55 Md.App. 688 , 466 A.2d 51 (1983). The arrest warrant having been issued on December 13, 1979, we compute from that date to commencement of trial, September 9, 1982 — a delay of 33 months and 27 days.

Even if we compute from April 7, 1981, the date Baltimore City Police first knew of appellant’s whereabouts, there is a delay of seventeen months, which is not only of constitutional dimension, but which is also presumptively prejudicial to the accused. Epps v. State, 276 Md. 96 , 345 A.2d 62 (1975). See also Strickler, supra. When the length of the delay is presumptively prejudicial, the burden of going forward on the question of prejudice shifts to the State.

Wilson v. State, 34 Md.App. 294 , 367 A.2d 970 , cert. denied, 280 Md. 736 (1977). 2. Reason for the Delay The appellant and the State share, although not equally, the “blame” for delay. ³⁵⁹ (i) Delay by the State Because the record does not disclose when the Baltimore City Police first became aware of the fact that the appellant was in federal custody, we can only infer such knowledge as of April 7,1981, the date they attempted to lodge a detainer by mailing the warrant to the U.S. Marshall Service in New York, along with the request that it be used as a detainer. For reasons never explained or argued below, the federal authorities, according to appellant’s uncontradicted recitation of what his “case manager” told him, had concluded that Maryland authorities had failed to comply with the procedural requirements for a “formal detainer.” Although the Interstate Agreement on Detainers, Md. Code, Art. 27 § 616A, et seq., does not define the word “detainer,” in State v. Boone, 40 Md.App. 41, 44 , 388 A.2d 150 (1978), we opined that “it is generally recognized that the term refers to a notice directed to prison authorities informing them that charges are pending in another jurisdiction against an inmate.” Although the Baltimore City Police Department’s “detainer” would seem to pass muster under the Boone definition, according to the appellant it was not sufficient under the Agreement to trigger his right to request final disposition of all untried charges, see Art. 27, § 616D, but was sufficient to preclude certain privileges available to those who were not so “detained.” In any event, a determination of the validity, vel non, of the April 7, 1981 “detainer” is not dispositive of the State’s obligation to provide the appellant a speedy trial. The mere fact that defendant is incarcerated in another jurisdiction does not relieve the State of its obligation to afford the accused a speedy trial.

State v. Hicks, 285 Md. 310, 320 , 403 A.2d 356 (1979). See also Smith v. Hooey, 393 U.S. 374 , 89 S.Ct. 575 , 21 L.Ed.2d 607 (1969). Notwithstanding the seriousness of the charges, a “formal detainer” triggering appellant’s rights under the agreement was not lodged until September 29, 1981. Assuming arguendo that the federal authorities or the case manager erred in the ³⁶⁰ initial determination as to alleged insufficiency of the “first” detainer, absent from the record is evidence of any effort by the State to try the subject’s outstanding murder indictment.

This apparent indifference on the part of the State may have delayed appellant’s right to prompt disposition (within 180 days of proper notice by the defendant to the appropriate authorities) under the Interstate Agreement on Detainers. See Article 27, § 616D. Although our decision today is not predicated on a violation of that Agreement, we cannot ignore the underlying purpose of the Agreement in analyzing the “reasons for delay.” As the Court of Appeals stated in State v. Barnes, 273 Md. 195, 205-06 , 328 A.2d 737 (1974): It has long been recognized that detainers for untried charges — whether interstate or intrastate in nature — may result in ‘undue and oppressive incarceration.' Undue delay in the disposition of such detainers has been recognized as minimizing the possibility that a defendant incarcerated might receive a sentence at least partially concurrent with the term he is serving and that under the procedures widely practiced, the duration of his imprisonment may be increased and the conditions under which his confinement must be served greatly worsened because of the pendency of an additional charge against him and the potentiality of additional punishment. Similarly, it has been recognized that a long delay in the trial of the detainer charge may impair the ability of the accused to defend himself since he is often in a prison far removed from the place where the added offense allegedly took place, resulting in an impairment of his ability to keep apprised of the whereabouts of witnesses, and isolates him from the ready availability of the assistance of his counsel.

It has even been stated that the pendency of such a detainer constitutes a serious impediment to the prisoner’s ability to take maximum advantage of the institutional opportunities for rehabilitation. The State’s lack of effort to bring the appellant to trial belies any serious intent to facilitate the purpose of the ³⁶¹ agreement but do indeed indicate a certain indifference to appellant’s confinement. In Brady v. State, 291 Md. 261, 269 , 434 A.2d 574 (1981), the Court of Appeals in balancing the four factors held the factor most determinative of the issue in that case was “the reason for the delay: prosecutorial indifference.” Thus the reason for delay from April 7, 1981 to March 29, 1982 (11 months and 22 days) must be weighed heavily against the State. Brady, supra.

Obviously, the delay from March 29, 1982 through August 17, 1982 having been caused by appellant’s request for postponement is charged to the appellant. On the other hand, the three-week delay from August 17 to September 8, 1982 due to postponement caused by prosecutor’s vacation was chargeable to the State. The Brady court in its balancing process allowed no time for reasonable preparation of the case by the prosecution or for the orderly process of the case. See Epps, infra.

In a pre-Brady decision, Wilson v. State, 44 Md.App. 1, 17 , 408 A.2d 102 , cert. denied, 286 Md. 755 , cert. denied, 446 U.S. 921 , 100 S.Ct. 1858 , 64 L.Ed.2d 275 (1980), although we allowed 180 days for pre-trial preparation and orderly process, we ordered dismissal because we found “7V2 months of sheer neglect in addition to 6 months excused more than can be tolerated.” The Brady court seems to apply greater weight to “prosecutorial indifference” (sometimes therein characterized as the State’s neglect) than either the Supreme Court or pre-Brady courts applied to “negligence of state officials.” For example, Judge Digges in explicating the “Reasons for Delay” observed in Smith v. State, 276 Md. 521, 528 , 350 A.2d 628 (1976): In Barker , Mr. Justice Powell, for the Supreme Court, expressed the view that ‘different weights should be assigned to different reasons [for delay].’ 407 U.S. at 531 , 92 S.Ct. at 2192 . Initially, he observed that ‘[a] deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government.’ Id. He then indicated that prolongation of trial due to the negligence of state officials, understaffing of state offices ³⁶² or overcrowded courts, while not to be considered neutral, is to be ‘weighted less heavily’ toward a finding of a violation of the Sixth Amendment right. Id.; Strunk v. United States, 412 U.S. 434, 436 , 93 S.Ct. 2260, 2262 , 37 L.Ed.2d 56 (1973).

See also Jones v. State, 279 Md. 1, 6-7 , 367 A.2d 1 (1976); cert. den., 431 U.S. 915 , 97 S.Ct. 2177 , 53 L.Ed.2d 225 (1977). Even if we were to strictly apply the Wilson formula by subtracting 6 months (180 days) from the total of 12 months and 14 days attributed solely to the State, there still remains 6 months and 14 days of “sheer neglect.” (ii). The Defendant's Delay We have not overlooked nor shall we condone the longest single period of the delay — that period of time from December 13, 1979 to March 18, 1981, a time span which we must attribute to the appellant. Before rendering her decision denying appellant’s Motion to Dismiss, the trial judge stated: “So I assume a warrant was promptly issued.

So I think the record should reflect he absented himself from any ability to be prosecuted for the period December 12,1979 until March 18,1981.” In her oral opinion, she observed that appellant “became the suspect in December of 1979 and a warrant was issued for him. He escaped the attention of the authorities by his own acts until March of 1981 when he was arrested [in New York] on an unrelated charge....” 3 Appellant’s trial counsel made no objection to those remarks. Testifying at the hearing on his Motion to Dismiss, appellant was emphatic about his numerous efforts to request prompt disposition under the interstate agreement, but at no time did he indicate surprise about receiving notice of an outstanding murder warrant. Therefore, it was reasonable for the trial court to infer that appellant’s disappearance immediately after the murder and ³⁶³ issuance of the warrant was more than mere coincidence.

Thus, the court below, in finding that appellant himself delayed his trial, would not allow him to take advantage of a delay for which he was responsible. It is well settled that “[a]n accused cannot take advantage of a [trial] delay for which he was responsible, whether caused by action or inaction on his part . . . where delay is caused by his absence from the state, by his absconding, escaping, or becoming a fugitive from justice.” 21A Am. Jur.2d Criminal Law § 861. In Cates v. United States, 379 A.2d 968 (D.C.1977) the District of Columbia Court of Appeals held that appellant was not denied a speedy trial notwithstanding a lapse of fifty-nine months between arrest and trial.

Cates and a companion had been arrested within minutes of an attempted robbery of a taxi driver on May 27,1971. At the time of arrest, he gave his name to the police as Alford L. McNeil. He was arraigned under that name and released on his own recognizance but thereafter failed to appear at the preliminary hearing on the case. On October 5, 1971, a federal grand jury returned an indictment charging Alford L. McNeil with assault with intent to commit robbery and related charges.

Meanwhile, Cates had fled to North Carolina and was arrested and imprisoned there on different charges. There he used the name John Merrick Williams. In December 1975, District of Columbia authorities located Cates in the North Carolina prison through the use of fingerprints. At his subsequent arraignment he claimed that he was not the person who had been arrested in 1971, however, an additional fingerprint examination revealed that the prints belonged to the same person.

Later, when the prosecution sought a court-ordered modification of the indictment to correct appellant’s first name, appellant would not acquiesce in this amendment. On April 6, 1976 the government submitted the case to the grand jury for re-indictment and a new indictment was issued on April 6, 1976 ³⁶⁴ in the name of Harold L. Cates, a/k/a Alford McNeil, a/k/a John M. Williams. He was brought to trial on April 30,1976 and convicted of assault with a dangerous weapon and assault with intent to commit robbery. Cates appealed, claiming inter alia that he was denied a speedy trial and that the government was negligent and failed to make good faith efforts to locate him.

In affirming the conviction, the court said: Even if we were to assume arguendo that the government was negligent, in this case appellant’s own actions more than counterbalanced the weight to be accorded any presumed inefficiency on the part of the prosecution. Appellant gave a false name when he was arrested; he became a fugitive from the District of Columbia; in order to conceal his true identity from law enforcement officials, he used another name when he was arrested in North Carolina; and, although he was paroled for approximately eleven months in 1973, he made no effort to return to the District to clear up the pending charges. Courts have held that ‘[i]t is well established that where the defendant’s unlawful flight of hiding out is the reason for the delay in his trial, he is held to have waived his right to a speedy trial.’ United States v. Judge, 425 F.Supp. 499, 502 (D.Mass.1976), citing United States v. Cartano, 420 F.2d 362, 364 (1st Cir.), cert. denied, 397 U.S. 1054 , 90 S.Ct. 1398 , 25 L.Ed.2d 671 (1970); Dickey v. Florida, 398 U.S. 30, 48 , 90 S.Ct. 1564,1574 , 26 L.Ed.2d 26 (1970) (Brennan, J., concurring); 57 A.L.R.2d 318 ; Speedy Trial Act, 18 U.S.C. § 3161 (h)(3) (1975). See also United States v. Thor, 512 F.2d 811, 815 (5th Cir.), cert. denied, 423 U.S. 1014 , 96 S.Ct. 445 , 46 L.Ed.2d 384 (1975).

Thus, appellant’s fugitivity and his use of three names during the period between arrest and trial must be given considerable weight in determining the causes for the delay of his trial. (Emphasis supplied.) See also U.S. v. Carter, 603 F.2d 1204 (5th Cir.1979). ³⁶⁵ Where a two-year delay occurred between defendant’s robbery indictment and subsequent trial, but 18 months of the two-year delay were directly attributable to the fact that the defendant had jumped bail and left the state, the Supreme Court of Rhode Island held that the defendant was not denied his constitutional right to a speedy trial. State v. Newman,