Smallwood v. State

Gilbert, C. J., delivered the opinion of the Court. ⁴⁶⁴ This case involves a conviction for a May 1975 bank robbery 1 at a November 1980 trial on a September 1979 indictment. Expectantly, pre-indictment delay is the major issue on appeal. THE FACTS The record discloses that a jury in the Circuit Court for Calvert County, presided over by Judge Perry G. Bowen, Jr., found James Winston Smallwood to be one of three men who held up the Maryland Bank and Trust Company in Lexington Park, Maryland, on May 19, 1975. Smallwood was determined.by the jury to be guilty of 1) robbery with a dangerous and deadly weapon; and 2) grand larceny.

For the purpose of sentencing, Judge Bowen merged the latter conviction with the former and imposed a term of 20 years imprisonment "to run consecutively to any sentence previously imposed by any other court.” 2 PRE-INDICTMENT DELAY Appellant asserts that his "due process rights were violated by the State’s lengthy pre-indictment delay.” 3 I. The Supreme Court in United States v. Lovasco, 431 U.S. 783 , 97 S.Ct. 2044 , 52 L.Ed.2d 752 (1977), amplified its holding in Hoffa v. United States, 385 U.S. 293, 310 , 87 S.Ct. 408, 417 , 17 L.Ed.2d 374, 386 (1966), that "[t]here is no constitutional right to be arrested,” by declaring that "pros ⁴⁶⁵ ecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect’s guilt beyond a reasonable doubt.” 431 U.S. at 791 , 97 S.Ct. at 2049 , 52 L.Ed.2d at 760 . Not only would prosecutions commenced solely on probable cause be a helter-skelter undertaking, but they would wreak havoc with an accused’s pocket book, emotions, family, liberty, and life and subject the accused to public scorn. 4 United States v. Marion, 404 U.S. 307 , 92 S.Ct. 455 , 30 L.Ed.2d 468 (1971). Justice Marshall in Lovasco penned that there was no "clear constitutional command” within "the Due Process Clause of the Fifth Amendment” that would require that Court to "adopt a rule” mandating prosecution immediately upon a showing of probable cause. 431 U.S. at 795 , 97 S.Ct. at 2051 , 52 L.Ed.2d at 762 . There are a number of reasons why the Court would avoid such a rule: 1) An immediate arrest or indictment of a person might impair, if not preclude, the bringing of charges against other persons involved in the same criminal act; 2) Even if the immediate arrest or indictment did not foreclose the State’s right to proceed against other persons, perceived jointly or severally criminally liable, such indictment might well lead to multiple trials rather than one joint trial.

The savings in time and money of a single trial are too obvious to require explanation; 3) Arrest or indictment on the basis of probable cause alone will inevitably lead to the trial of a number of cases where there is little if any chance of proving guilt beyond a reasonable doubt; 4) The increase in the number of cases brought to trial will strain an already overburdened system and add to the onus borne by the taxpayers who ultimately must foot the bill for the total costs of most prosecutions; 5 5) The guilty may escape convictions because ⁴⁶⁶ prosecutions are brought before the State obtains adequate evidence to sustain a conviction; 6) Making a decision to prosecute immediately upon obtaining probable cause would tend to preclude the prosecutor’s deciding that a prosecution was, under the circumstances, unjustified. "The decision to file criminal charges, with the awesome consequences it entails, requires consideration of a wide range of factors in addition to the strength of the .. . [State’s] case, in order to determine whether prosecution would be in the public interest.” (Footnote omitted). 431 U.S. at 794 , 97 S.Ct. 2051 , 52 L.Ed.2d at 761-62 . The American Bar Association Project on Standards for Criminal Justice, The Prosecution Function § 3.9 (App. Draft 1979), states that prosecutors are not obligated to prosecute everyone charged with a crime or crimes. Cases do arise when the prosecutor, consistent with the public interest, will decline to prosecute, notwithstanding that the evidence will likely support a conviction.

Section 3.9 lists several "factors which the prosecutor may properly consider in exercising his or her discretion....” Those factors are: "(i) the prosecutor’s reasonable doubt that the accused is in fact guilty; (ii) the extent of the harm caused by the offense; (iii) the disproportion of the authorized punishment in relation to the particular offense or the offender; (iv) possible improper motives of a complainant; (v) reluctance of the victim to testify; (vi) cooperation of the accused in the apprehension or conviction of others; and (vii) availability and likelihood of prosecution by another jurisdiction.” 6 ⁴⁶⁷ In short, "Delay is preferable to error.” 7 II. Lovasco was, as we have seen, concerned with the Due Process Clause of the Fifth Amendment. That particular clause of the Fifth Amendment, however, has never been held applicable to the States, and, therefore, Lovasco is not binding upon us. Nevertheless, Smallwood is not left adrift in a litigious sea sans sail or oar.

On the contrary, available for his protection and applicable are the Declaration of Rights to the Maryland Constitution and the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. We shall now consider each of those protections.

III

Maryland has no statute prescribing the time in which a prosecution for a felony must be commenced. 8 When, as here, there is no such statute, we turn to the common law in order to ascertain the applicable period of limitations, if any. The reason for our turning to the common law is found in the State Constitution. There, in Article 5 of the Declaration of Rights, Constitution of Maryland, it is mandated "[t]hat the ⁴⁶⁸ Inhabitants of Maryland are entitled to the Common Law of England” and acts of Parliament as they existed on July 4, 1776. "At common law, criminal proceedings may be instituted at any time during the life of an offender.” Hochheimer, Law of Crimes and Criminal Procedure § 87 (1897); 1 Wharton, Criminal Law (14th Ed. 1978) § 90.

Accord, Clark & Marshall, The Law of Crimes § 6.20 (7th Ed. 1967). See also Archer v. State, 145 Md. 128, 138 , 125 A. 744, 750 (1924). Thus, it is clear that any indictment, otherwise validly brought against Smallwood for the bank robbery of May 19, 1975, will not fail merely because it was handed down by the Grand Jury for St. Mary’s County 9 more than four years after the offense was committed.

IV

Having established that there is no statutory or common law bar to the prosecution of Smallwood, we now examine whether there is a Maryland Constitutional barrier to his prosecution. Article 24 of the Declaration of Rights to the Maryland Constitution provides: "[N]o man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land. ” (Emphasis supplied). 10 The phrase "Law of the land” has been consistently "equated” 11 to "due process of law” as that term is employed ⁴⁶⁹ in the Constitution of the United States of America. Pitsenberger v. Pitsenberger, 287 Md. 20 , 410 A.2d 1052 , appeal dismissed, 449 U.S. 807 (1980); Crawford v. State, 285 Md. 431, 452 , 404 A.2d 244, 254 (1979); Mazor v. State, Dept. of Correction, 279 Md. 355 , 369 A.2d 82 (1977); Northhampton Corp. v. Washington Suburban Sanitary Commission, 278 Md. 677, 366 A.2d 377 (1976); Aero Motors, Inc. v. Administrator, Motor Vehicle Administration, 274 Md. 567, 587 , 337 A.2d 685, 700 (1975); The Baltimore Belt Railroad Co. v. Baltzell, 75 Md. 94, 99 , 23 A. 74, 76 (1891), and decisions of the Supreme Court with respect to the due process clause of the Fourteenth Amendment "are practically direct authorities.” Sanner v. Trustees of Sheppard And Enoch Pratt Hospital, 278 F. Supp. 138 (D. Md.), aff'd, 398 F.2d 226 (4th Cir.), cert. denied, 393 U.S. 982 (1968); Northhampton Corp. v. Washington Suburban Sanitary Commission, supra, 278 Md. at 686 , 366 A.2d at 383 ; Bureau of Mines v. The George’s Creek Coal & Land Co., 272 Md. 143, 321 A.2d 748 (1974); Allied American Mutual Fire Insurance Co. v. Commissioner, 219 Md. 607, 616-17 , 150 A.2d 421, 427 (1959). In discussing pre-indictment delay, one should bear in mind that the Sixth Amendment right to a speedy trial is not involved.

That constitutional principle is not operable until " 'the putative defendant in some way becomes an "accused....” ’ ” State v. Hamilton, 14 Md. App. 582, 586 , 287 A.2d 791, 793 (1972), quoting United States v. Marion, supra at 459; State v. Lawless, 13 Md. App. 220, 229-30 , 283 A.2d 160, 168 (1971). See United States v. MacDonald, 30 Cr. L. 3111 (1982). This Court, in State v. Hunter, 16 Md. App. 306, 311 , 295 A.2d 779, 782 (1972), interpreted Marion and Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972). ⁴⁷⁰ We said with respect to the Sixth Amendment speedy trial provision: "[I]t is patent that in order to calculate a constitutionally proscribed delay in bringing a matter to trial, we must look back to the date of the commencement of a prosecution by way of arrest, warrant, information or indictment, whichever shall first occur, and then forward to the date of the trial or hearing.” That triggering mechanism is inapposite in the instant case because, as Judge Moylan observed for this Court in Lawless , "Although a general 'due process’ right may be involved, there is no 'speedy trial’ right guarding against undue delay in the pre-indictment or pre-arrest phase of a criminal proceeding.” (Footnote omitted).

The only Maryland case that we have found that discusses pre-indictment delay is Dorsey v. State, 34 Md. App. 525, 537 , 368 A.2d 1036, 1044 (1977). There, Judge Moore, for this Court, said: "[A]bsent a showing of actual prejudice, compared to possible prejudice, 'the applicable statute of limitation ... is usually considered the primary guarantee against bringing overly stale criminal charges.’ ... Where a defendant can demonstrate actual prejudice, however, in circumstances where the delay between the occurrence of the criminal offense and the date of arrest or indictment is unduly long and the actions of the State in delaying were unreasonable, deliberate and oppressive, the due process clause would demand a dismissal of the indictment.” (Citations omitted). Dorsey , decided before Lovasco , was not quite as forcible as our Nation’s highest Court chose to be in Lovasco .

There, ⁴⁷¹ the Supreme Court made clear that something more than actual prejudice to an accused was necessary before an indictment could be dismissed on Fifth Amendment due process grounds. Although Lovasco was decided on the basis of the Due Process