Smart v. State

ALPERT, Judge. Lawrence Waddell Smart, appellant, was tried and convicted by a jury in the Circuit Court for Prince George’s County (Taylor, J., presiding) of the first degree murder of Kathleen Talbot Campbell. On appeal, appellant argues that he was denied his constitutional right to a speedy trial and that the trial judge committed reversible error by refusing to permit appellant’s counsel to probe extensively the psychiatric history of State witness Larry Odell Smart, appellant’s twin brother, on cross-examination. I. SPEEDY TRIAL A. Chronology of Events On December 15, 1979, Dr. Richard Talbot, Campbell’s brother, entered Campbell’s apartment and discovered she was missing.

The apartment was in disarray and several items were missing. After notification by Dr. Talbot, the Prince George’s County Police Department commenced its ¹³⁰ investigation to locate Campbell. Police investigation during the next six months revealed that Campbell had been living in the same apartment with appellant. Efforts to locate appellant were unsuccessful.

Thereafter, Campbell’s body was discovered and a warrant for appellant’s arrest was issued on June 17, 1980. Assiduous police investigative techniques over the next sixteen months failed to bring appellant to justice. Interviews were conducted and recon-ducted; addresses were checked and rechecked; a national search ensued. On October 19, 1982, appellant was arrested for disorderly conduct in the Washington Metro subway by a Washington Transit Authority Police Officer.

A computer check of appellant’s name, social security number, and date of birth revealed the outstanding arrest warrant. Appellant was taken into custody. On November 3, 1982, appellant was indicted for first degree murder and theft and trial was set for February 22, 1983. B. Pre-Trial Hearing Appellant filed a motion to dismiss the indictments, alleging that he had been denied his constitutional right to a speedy trial.

The matter came on for hearing on April 18, 1983 before Judge Taylor. Finding that the 34 month delay between the issuance of the arrest warrant and the motion hearing was of constitutional dimension, Judge Taylor applied the well-known four-factor test articulated by the Supreme Court in Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972). Judge Taylor concluded that appellant had not been denied his speedy trial right. C. The Law The constitutional right to a speedy trial is an amor-' phous one and it is “impossible to determine with precision when the right has been denied.” Barker v. Wingo, supra at 521 , 92 S.Ct. at 2187 .

Consequently, each case must be independently examined to determine whether a criminal accused has been denied this right. We scrutinize the inter ¹³¹ action of four factors to make our determination: (1) length of delay; (2) reason for delay; (3) the defendant’s assertion of the right; and (4) prejudice to the defendant. Id. at 530 , 92 S.Ct. at 2192 . A threshold consideration is whether the delay is deemed to be of constitutional dimension.

If the delay does not meet this standard, there is no need to proceed to the four-factor test. State v. Lawless, 13 Md.App. 220, 229-32 , 283 A.2d 160 (1971), cert. denied, 264 Md. 749 , cert. denied, 409 U.S. 855 , 93 S.Ct. 192 , 34 L.Ed.2d 99 (1972). At the hearing below the State conceded that the 34-month delay in the case sub judice was of constitutional dimension. As noted, Judge Taylor made a similar finding.

Of course, Judge Taylor was acting without the benefit of the Court of Appeals’ recent decision in State v. Gee, 298 Md. 565 , 471 A.2d 712 (1984). In Gee , the Court held that in a case where an indictment or information is the necessary document upon which a defendant must be tried, the speedy trial clock would begin to tick from the date of arrest or of filing the indictment or information. Id. at pages 567, 568, 471 A.2d 712 . Where the controlling law has changed between the entering of a judgment at trial, and the consideration of the matter on appeal, an appellate court shall apply the law as it exists at the time of appeal unless vested or accrued substantive rights would be disturbed or the legislature shows a contrary intent.

This rule of construction has application to a change effectuated by statute or case law. Grant v. Zich, 53 Md.App. 610, 617 , 456 A.2d 75 (and cases cited therein), cert. granted, 296 Md. 110 (1983); Teays v. Supreme Concrete Block, Inc., 51 Md.App. 166, 167-69 , 441 A.2d 1109 (1981), cert. denied, 293 Md. 547 (1982); 5 Am.Jur.2d Appeal and Error § 729 (1962); Annot., 111 A.L.R. 1317 , 1342 (1937). While we recognize that the Court of Appeals’ Gee did not change existing law, we note that the decision clarified a point of law which had been decided inconsistently. As Judge Taylor’s speedy trial ruling was guided by ¹³² principles held to be incorrect in Gee, we shall apply the law as it has been recently explicated by the Court of Appeals.

Accordingly, under Gee, the length of delay between appellant’s arrest and the motion hearing was one day less than six months. In Gee, the Court of Appeals observed: “We are not aware of an opinion of the Supreme Court of the United States or of the appellate courts of this State which holds that a delay of six months is of constitutional dimension.” Gee, at 578, 471 A.2d 712 . Thus, this length of time is not of constitutional dimension and had this recent decision been in effect at the time of appellant’s hearing, there would have been no need for Judge Taylor to have embarked on an analysis of the four-factor test. State v, Lawless, supra.

Appellant’s motion to dismiss for lack of speedy trial was properly denied.

II

CROSS EXAMINATION ON THE PSYCHIATRIC HISTORY OF STATE WITNESS LARRY ODELL SMART — APPELLANT’S TWIN BROTHER There is no doubt that Larry Odell Smart’s testimony was extremely damaging to appellant. He testified that appellant was living with Kathleen Campbell in 1979. Larry Odell Smart stated that his brother, the appellant, informed him in January 1980 that he had murdered Campbell by strangling her after she awoke following his attempt to electrocute her while she slept. According to Larry Odell Smart, appellant placed the victim’s body in a trash can and threw the can into the Shenandoah River.

This witness stated that appellant’s motive for killing Campbell was to prevent her from carrying out her threats to report him