State v. Armstrong

Wilner, J., delivered the opinion of the Court. Two wrongs may not make a right, but they can create some sticky issues on appeal, which are what we have here. The first wrong was committed by the Circuit Court for Baltimore County; it acted precipitously in dismissing pending indictments against appellees when the Court of Appeals filed its first Opinion in State v. Hicks, 285 Md. 310 (1979). The State then compounded the error when it aborted its appeals from those actions and attempted to salvage the prosecutions by obtaining new indictments.

The question before us is whether the Circuit Court again erred when it frustrated that attempt by dismissing the subsequent indictments. Maryland Rule 746 a, as it read in June, 1979, provided that "[w]ithin 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 ..., a trial date shall be set which shall be not later than 120 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723 ....” 1 On June 25,1979, the Court of Appeals filed its initial Opinion in Hicks , in which it concluded that (1) the requirement that a case be brought to trial within 120 days, absent a postponement "for extraordinary cause shown,” 2 was mandatory and not ⁶⁴³ directory, and (2) the sanction for its violation was dismissal of the charges lodged against the defendant. See 285 Md. at 318 . To say that this decision (which overruled the Court’s earlier holding in Young v. State, 266 Md. 438 (1972), and announced a new, and wholly unexpected, method of enforcing the Rule) caused some consternation among prosecutors and trial courts throughout the State would be the epitome of understatement.

It appeared to place in jeopardy dozens — perhaps hundreds — of pending criminal prosecutions, as a result of which the Attorney General, on July 13, 1979, moved the Court to reconsider what it had done. On July 19, 1979, the Court issued a second Opinion, 285 Md. at 334 , denying the motion for reconsideration but determining that the rule laid down in the first Hicks Opinion should operate prospectively only, "applying only to future criminal prosecutions and only to those pending cases where, as of our mandate in this case, there have been no appearances of counsel or first appearances of defendants pursuant to Rule 723.” 285 Md. at 338 . The Court’s mandate issued on July 25, 1979; that is the effective date, so to speak, of the Hicks interpretation of Rule 746. The charges against Messrs.

Armstrong (No. 47) and Leslie (No. 105) were in the "pipeline” when the first Hicks Opinion was filed. Armstrong had been arrested September 23, 1978, and indicted for armed robbery and related offenses on November 6, 1978. He was "arraigned” on November 22, and, on November 30, defense counsel entered his appearance. Trial was scheduled, and postponed, on three occasions: December 20, 1978, because a jury was unavailable; 3 February 26, 1979, because defense counsel was ill; May 1, 1979, because a judge was unavailable.

Four ⁶⁴⁴ days after the first Hicks Opinion was announced — June 29, 1979 — Armstrong filed a motion to dismiss the indictment for failure to bring the case to trial within 120 days. On July 3, 1979, the trial court, without waiting for the Court of Appeals mandate to issue, dismissed the indictment, solely on the basis of Maryland Rule 746, as interpreted in the first Hicks Opinion. 4 The State’s initial response to the dismissal was to file an appeal to this Court, which it did on July 18, 1979, the day before the Court of Appeals issued its second Opinion. Had that appeal been prosecuted, in light of the second Hicks Opinion, it is likely that the dismissal would have been reversed and the case remanded for further proceedings. 5 But the State chose a different strategy. On August 21,1979, it dismissed the appeal and, two days later, moved the trial court to reconsider its July 3 decision.

That the court declined to do, however, concluding, on September 19, 1979, that it had no authority to reconsider its order. No appeal was taken from that action. Finding itself then out of court entirely, the State re-indicted Armstrong for the same offenses. Armstrong would have none of that, however, and moved to dismiss the new indictment on the grounds that it represented a deprivation of due process of law, his right to a speedy trial, and his privilege against double jeopardy.

The court rejected those claims but, on January 8, 1980, dismissed the indictment "on the issue that I will call res judicata or Maryland Rule 746.” The court’s theory, more precisely, was that (1) the July 3 dismissal must be regarded as having been with prejudice, and when the State withdrew its appeal, that dismissal became final and binding and thus served to bar a ⁶⁴⁵ re-prosecution, and (2) alternatively, as more than 180 days had, by then, elapsed since Armstrong’s "arraignment,” or the first appearance of counsel, to permit a re-prosecution at that stage would serve only to circumvent the letter, spirit, and intent of Rule 746. The State’s appeal in No. 47 is from that decision, dismissing the second indictment. The saga of appellee Anthony Leslie raises the same issues. Leslie was arrested September 5, 1978, and, like Armstrong, was charged with armed robbery and related offenses.

A formal indictment was returned October 9,1978, and on October 20 defense counsel entered his appearance and elected a jury trial. Trial was initially scheduled for January 9, 1979, but was postponed, over Leslie’s objection, because of a crowded docket — the case could not be reached that day. The same thing occurred on March 16, 1979, the next scheduled date, and trial was reset for July 10, 1979. Hicks I, of course, intervened; and, on July 5, 1979, Leslie moved to dismiss the indictment, with prejudice, for failure to "bring him to trial as prescribed by Maryland Rule 746.” The delay at that point was 10 months.

Following a hearing on July 10, the court granted Leslie’s motion and dismissed the indictment on the basis of the first Hicks Opinion. The State filed an immediate appeal — July 11 — but, on August 17, 1979, dismissed the appeal and moved the trial court to reconsider its July 10 order in light of the revised Hicks . As with Armstrong, the court refused to reconsider its action on the ground that it had no authority to reopen the dismissal. A new indictment, based on the same alleged offenses, was obtained October 15,1979; a motion to dismiss was filed November 2; and the motion was granted, for the same reasons expressed in the Armstrong case, on January 9, 1980.

This appeal followed. 6 ⁶⁴⁶ As noted in the preceding discussion, in dismissing the indictments now before us, the court acted upon two theories: (1) that the dismissal of an indictment with prejudice is a final binding judgment (until overturned), and when the State dismissed its appeal, the judgment, even if based on an erroneous construction of the law, became res judicata, barring the State from relitigating the issues concluded by it; and (2) that to permit a prosecution at this time, even if founded upon a new indictment, would serve to circumvent, and thus to frustrate the requirement of Rule 746. As the trial court seemed to recognize, these concepts are closely interrelated; they merely approach the problem from somewhat different perspectives. The State’s perspective is altogether different. Relying primarily on Irvin v. State, 276 Md. 168 (1975), it argues that, subject only to double jeopardy constraints, which are not present here, the State is fully at liberty to bring new indictments based upon the same charges that were earlier dismissed, whatever the reason for the dismissal and whether the dismissal was with or without prejudice.

We think the State’s reliance on Irvin is misplaced, however, and its argument much too simplistic. Notwithstanding some rather broad language in the Opinion, Irvin dealt with an entirely different issue than that presented here. In Irvin , parts of a multi-count indictment were dismissed by the court prior to trial; the State nol prossed the remaining counts and appealed the dismissal. While the appeal was pending, the defendant, Irvin, was re-indicted on similar charges, tried on that second indictment, and convicted.

The issue before the Court of Appeals, upon Irvin’s appeal from the ultimate conviction, was a jurisdictional one. Certiorari was granted to consider the "narrow point” of whether "the State could proceed to trial on the latter indictment while the appeal on the fírst was still pending,” (e mphasis supplied) the contention being that the State’s appeal from the dismissal of the first indictment, during its pendency, had ousted the trial court of jurisdiction to consider the second. 276 Md. at 170, 171 . ⁶⁴⁷ The Court concluded that the loss of jurisdiction, asserted by Irvin, extended only with respect to the particular indictment involved in the State’s appeal, and did not preclude the State from obtaining a new indictment and proceeding to trial on it. It was in that context — the jurisdictional one based entirely upon the pendency of the appeal — that the Court observed (citations omitted) at p. 172: "There is no question but that a criminal defendant may be indicted more than once for the same offense... and that any irregularity in a prior indictment may be corrected in a later indictment upon which the defendant may be tried. . . . [Emphasis supplied.] "If an indictment is dismissed, the order is a final judgment as regards that indictment.... and is appealable .... If the State appeals, the indictment which was dismissed comes within the exclusive jurisdiction of the appellate court, but not an indictment which may be returned later.” (Emphasis in the original.) Hopefully with tongue in cheek, the State suggests that the only difference between Irvin and the cases subjudice is that the State’s appeal was still pending in Irvin when the new indictments were returned.

That, of course, is a crucial difference. The jurisdictional issue, which was all that was considered and decided in Irvin , is simply not present when the appeal has been dismissed prior to the return of the subsequent indictment. That alone serves to distinguish Irvin and render it inapposite. More, perhaps, than the holding in Irvin , however, the State seeks succor from some of the language used in the Opinion — that quoted above.

Those general statements, while inherently true, cannot be read out of context. Whether a new indictment can properly be returned depends, to a large extent, on the circumstances under which the first indictment was dismissed. Irvin referred to a dismissal based upon an irregularity in the indictment ⁶⁴⁸ itself, 7 and did not address at all, even in the limited context before it, the situation of a dismissal for some more substantive extrinsic reason — by reason of a speedy trial violation, for example, or because the defendant had already been placed in jeopardy for the same offense, or because the statute of limitations had run on the prosecution. All that was determined in Irvin was that the mere pendency of an appeal did not preclude a new indictment.

The issue here, of course, is whether the dismissal of the appeal, leaving the lower court judgment intact, also had that effect, particularly where the judgment rested upon the purported violation of a speedy trial requirement. The factual circumstances of the cases sub judice are, of course, somewhat unusual; but the issue raised by them is not a novel one. It has been addressed in varying contexts and with varying results, in other States. In some instances, the result has been governed by specific statutory language.

In State v. Rolax, 479 P.2d 158 (Wash. App., 1970), and Crockett v. Superior Court, 535 P.2d 321 (Cal., 1975), for example, statutes that required the dismissal of charges not brought to trial within 60 days expressly barred re-prosecution only in the case of misdemeanors, thus either expressly or implicitly allowing