Schmitt v. State

³⁹⁰ Liss, J., delivered the opinion of the court. Appellant, Charles Olin Schmitt, was charged in the Circuit Court for Prince George’s County by a seven count indictment with housebreaking, larceny, receiving stolen goods and burglary. The cases were submitted to a jury on November 28,1979, and the jury returned guilty verdicts on the burglary and grand larceny charges. Sentences were imposed, and it is from those judgments that this appeal was filed.

The questions raised by the appellant are as follows: 1. Did the trial court err in denying appellant’s motions to dismiss the indictment for lack of a speedy trial? 2. Did the trial court err in denying appellant’s motions to suppress illegally seized evidence? 1. This case presents another in the seemingly unending series of complaints by defendants in criminal prosecutions that they have been denied their Sixth Amendment right to a speedy trial.

Previous decisions of the Supreme Court of the United States, the Court of Appeals of Maryland and our Court have established the guidelines by which we must measure the delay in bringing a defendant to trial. These guidelines necessarily determine whether the defendant is entitled to a dismissal of the indictment against him because of the State’s failure to comply with the requirements of the Sixth Amendment. When the period of delay between a defendant’s arrest and trial is of constitutional dimension, the court is required to consider a four-factor balancing test to determine whether the defendant has been deprived of his right to a speedy trial. See Barker v. Wingo, 407 U.S. 514 , 92 S. Ct. 2182 (1972); Wilson v. State, 281 Md. 640 , 382 A.2d 1053 (1978), aff'g, State v. Wilson, 35 Md. App. 111 , 371 A.2d 140 (1977); Epps v. State, 276 Md. 96 , 345 A.2d 62 (1975); State v. Hiken, 43 Md. App. 259 , 405 A.2d 284 (1979).

Because the balancing test necessarily compels courts to approach speedy trial cases on an "ad hoc” basis, the four factors mentioned in Barker v. Wingo and its progeny must ³⁹¹ be applied individually to the facts in each of the cases considered. These factors are: (1) the length of the delay; (2) the reasons for the delay; (3) the assertion of the speedy trial right; and (4) prejudice to the defendant. (1) Length of delay The speedy trial clock began to run in this case on the date the appellant was arrested, which was March 20, 1979. The trial of his case was commenced and concluded on November 28, 1979.

Thus, the total period involved was eight months and eight days. Unless the court finds this total delay to be of "constitutional dimension” the interaction of the four-pronged balancing test is not triggered. However, in Barker v. Wingo, supra, it is pointed out that whether a delay is of "constitutional dimension” is determined not solely by the length of the period of delay. The Supreme Court there said: [B]ecause of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.

To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious complex conspiracy charge. [ 407 U.S. at 530-31 .] The charges in this case were the common garden variety of burglary and larceny of an apartment. The case was originally set for trial on July 17, 1979 (four months after the arrest), and at no time after that date until the trial on November 28,1979 did the State indicate to the several trial judges who were involved in the case that the State had any difficulty in preparing its case for trial. Certainly the complexity of the case was not offered as a reason for any of the delays which occurred. By way of comparison, we note that in McIntyre v. State, 17 Md. App. 526 , 302 A.2d 672 (1973), a robbery case, and State v. Becker, 24 Md. App. 549 , 332 A.2d 272 (1975), an automobile larceny case, that a delay of six and one half months and nine and one half months, respectively, were held to be of "constitutional dimensions.” Most recently, this ³⁹² Court found a nine month and twenty-three day delay to be sufficiently long to invoke the balancing test even though the charges in the case involved complex issues of conspiracy and insurance fraud.

State v. Hiken, supra, at 272. We conclude, taking in consideration all the facts available to us in the record, that the delay in this case does, indeed, cross the threshold of "constitutional dimension.” In order to assess intelligently the balancing tests it becomes necessary for us to state the chronology of events relevant to the issue of speedy trial as follows: March 20, 1979 — Appellant arrested April 25, 1979 — Indictment filed containing counts 1 through 7. May 23, 1979 — Notice setting case for jury trial on July 17. July 17, 1979 — State motion for continuance granted on grounds of unavailable prosecuting witness.

July 20, 1979 — Notice setting case for jury trial on September 6, 1979. September 6, 1979 — Co-defendant McCoy failed to appear. Case continued because it could not be reached and no other judge available. September 10, 1979 — Notice setting case for jury trial on October 15, 1979.

October 15, 1979 — Case could not be reached and was continued. State’s Attorney involved in another case and no other judge available. Trial reset for November 21. October 15, 1979 — Appellant moved for a speedy trial and moved to dismiss for want of a speedy trial.

October 26, 1979 — Appellant’s motion to dismiss for want of a speedy trial denied. ³⁹³ November 21, 1979 — State motion for a continuance because of unavailable witness granted. Trial date reset for November 28. November 21, 1979 — Appellant’s motion to dismiss for want of a speedy trial denied. November 28, 1979 — Appellant’s motion to sever counts 1 through 3 from counts 4 through 7 denied.

Motion to dismiss for lack of speedy trial denied. (2) Reasons for delay and (3) Assertion of right to speedy trial. In making its analysis, this Court is required to ascertain whether a delay has been caused by the State or the defense and what blame, if any, is associated with the reason for the delay. Barker v. Wingo, supra, at 531 .

Different weight must be assigned to different reasons for delay. Therefore, a deliberate attempt to delay a trial in order to hamper a defendant’s defense must be weighed heavily against the State. On the other hand, more neutral reasons such as negligence or overcrowded courts must be weighed against the State but less heavily. (March 20, 1979 to July 17, 1979) This period is, we conclude, attributable to the orderly processing of appellant’s case and thus not chargeable to the State.

See Nocera v. State, 36 Md. App. 317 , 374 A.2d 608 (1977); State v. Lawless, 13 Md. App. 220 , 283 A.2d 160 (1971). (July 17, 1979 to September 6, 1979) The State urges that the delay in the period between July 17,1979 to September 6,1979 should not be charged against the State because the delay was caused by the absence of the complaining witness who required back surgery. Apparently, no effort was made to reach a stipulation with defense counsel as to a proffer of what her testimony would have been had she been called as a witness. As we see it, it ³⁹⁴ should have been a simple matter to have reached such a stipulation and to have proceeded with the trial on the date scheduled without the necessity for a postponement.

Under these circumstances, we conclude this delay is chargeable against the State. (September 6, 1979 to October 15, 1979) This interval is chargeable against the State. The reason for the postponement on September 6 was that the State’s Attorney handling appellant’s case was trying another case and no other judge was available to hear the instant matter. The period, then, must be weighed against the State, but may not be weighed as heavily as a delay caused intentionally by the State.

State v. Statchuk, 38 Md. App. 175 , 380 A.2d 225 (1977). (October 15, 1979 to November 21, 1979) The period between October 15, 1979 to November 21, 1979 is also chargeable to the State because the same State’s Attorney was involved in another case and no other judge was available to hear appellant’s case. (November 21, 1979 to November 28, 1979) This period must be weighed heavily against the State for the reasons we shall recite. A review of the record discloses that the appellant was unusually diligent in his assertion of his right to a speedy trial.

The record reflects that appellant asserted that right on October 15, 1979, November 21, 1979 and on November 28, 1979. Arguments were heard before three different judges on each of appellant’s motions to dismiss the indictment against him for failure to provide a speedy trial. The motions were denied in each instance. In addition, appellant sought pre-trial release and reduction of bond on at least two occasions before an additional judge and relief was denied in each of those instances, also.

We examine at this