State v. Barnes

O’Donnell, J., delivered the opinion of the Court. The respondent, Roland Douglas Barnes, came into the custody of the House of Correction on May 18, 1972, pursuant to a sentence to serve a one-year term for assault, dating from April 26, 1972, imposed by the District Court. 1 In any event, on the day before his arrival — May 17, 1972 — he was both presented and indicted by the Grand Jury for the City of Baltimore for the murder of one Leotho Holloway on February 1, 1972. 2 As a result of the Grand Jury action and the capias issued thereon, the Sheriff of Baltimore City on May 26, 1972 filed a detainer with the Warden of the House of Correction. The respondent was officially notified of the detainer four days later. On June 9, 1972, a letter dated June 5, with enclosures attached 3 was sent by certified mail — return receipt ¹⁹⁷ requested — on behalf of the respondent by the Warden to Milton B. Allen, the State’s Attorney for Baltimore City requesting that the indictment upon which the detainer was based “be disposed of as soon as possible.” Endorsed on the bottom of the letter was a notation that a copy thereof, as well as of the enclosures, were being sent to the Clerk of the Criminal Court of Baltimore, with copies for the inmate and his institutional file.

One of the enclosures contained a request by the respondent that counsel be assigned him. A classification counselor at the House of Correction testified that personnel in that office processed the paper work on behalf of the inmates; that although the original letter and enclosures were sent to the State’s Attorney by Certified mail, copies addressed to the Clerk of the Criminal Court, at that time, were sent by first-class mail. 4 He further testified that there was nothing in the file to establish the date on which the copies addressed to the Clerk were actually mailed. The letter addressed to the State’s Attorney (with enclosures) was date-stamped as having been received in that office on June 12 and the return receipt is so postmarked. In accordance with established inter-office procedures the State’s Attorney forwarded the documents to the Criminal Assignment Office of the Supreme Bench of Baltimore City, the agency designated for the assignment of criminal cases for trial; according to the date stamp affixed on the documents in the assignment office it took just seven days for the documents to journey from one floor of the Court House to the next.

The Criminal Assignment Office noted on the documents that it was a request for “Speedy ¹⁹⁸ Trial,” placed a notation to that effect on their control card and returned the documents to the Case Preparation Section of the State’s Attorney’s office to await a certification of readiness for trial. The Acting Criminal Assignment Commissioner testified that although it was the responsibility of that office to notify the Public Defender of those defendants, incarcerated within the Department of Correctional Services, awaiting trial on other charges who requested the assignment of counsel, such notification in the respondent’s case was not given until the “early part of November.” Other than the notation upon the letter to the State’s Attorney that a carbon copy was being sent to the Clerk of the Criminal Court, there was no record of the date on which the copies were mailed; the Clerk testified that after making a persistent and diligent search the copies were found, with no recorded date of receipt, misfiled alphabetically under “S.” 5 For 139 days the respondent’s request for trial was negatively — if not affirmatively — ignored, since it was only on November 6, 1972, that the Public Defender appointed a panel attorney to represent the respondent. Following a pretrial conference on December 19, 1972, between his counsel and an Assistant State’s Attorney, February 21, 1973, was fixed as the first available open date for the jury trial requested by the respondent. On December 21, 1972, the respondent, pro se, filed a “Motion for Writ of Default” which prayed that the murder indictment be dismissed for failure of the State’s Attorney to comply with the provisions of Maryland Code (1957, 1971 Repl.

Vol.) Art. 27, § 616S, in that he had not been brought to trial within the time provided from the receipt by the State’s Attorney of his request for trial. When, on the appointed day, the murder indictment came on for trial in the Criminal Court of Baltimore, the trial court (Levin, J.), although recognizing our holdings in Hoss ¹⁹⁹ v. State, 266 Md. 136, 292 A. 2d 48 (1972), rev’g Hoss v. State, 13 Md. App. 404 , 283 A. 2d 629 (1971), under the provisions of the Interstate Agreement on Detainers Act (Art. 27, §§ 616A-616R), was nonetheless persuaded that the holdings by the Court of Special Appeals in King v. State, 5 Md. App. 652, 249 A. 2d 468 (1969), under the Intrastate Detainers Act (Art. 27, § 616S) mandated a strict and literal compliance with the provisions of the section. Finding that the Clerk of the Criminal Court did not receive its copy of the respondent’s request by certified mail and absent proof of the exact date on which the copies were mailed, or actually received by the Clerk, the trial court held that the Act was not strictly complied with and denied the motion to dismiss the indictment. Following a jury trial, the respondent, on February 23, 1973, was found guilty of murder in the first degree.

Upon appeal to the Court of Special Appeals that court, upon the authority of our holdings in Hoss v. State, supra, reversed the judgment imposed and ordered the case remanded for dismissal of the indictment. Barnes v. State, 20 Md. App. 262 , 315 A. 2d 117 (1974). We issued a writ of certiorari upon the petition of the Attorney General on behalf of the State. The pertinent provisions of the Intrastate Detainer Act here in issue (Art. 27, § 616S) read as follows: “(a) Request by prisoner; statement from warden having custody. — Whenever the Department of Correction receives a detainer against any prisoner serving a sentence in any correctional institution under the jurisdiction of the Department or whenever any county or city jail receives a detainer against any prisoner serving a sentence in the county or city jail any such prisoner shall be brought to trial within 120 days after the request of the prisoner for final disposition of the indictment, information, or complaint has been delivered to the State’s Attorney of the City of Baltimore or of the county in which the indictment, information, or complaint is pending and to the appropriate court; provided that for good cause ²⁰⁰ shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

The request of the prisoner shall be filed within 30 days of the prisoner’s notification of any untried indictment, information, or complaint and shall be accompanied by a statement from the warden or superintendent having custody, setting forth the term of the commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the date of parole eligibility of the prisoner, and any decisions of the Board of Parole and Probation relating to the prisoner. The written notice and statement provided herein shall he delivered by certified mail. (c) Dismissal when action not commenced. — If action is not commenced on the matter for which request for disposition was made, within the time limitation set forth in subsection (a) above, the court shall no longer have jurisdiction thereof, and the untried indictment shall have no further force or effect; and in such case the court shall enter an order dismissing the untried indictment with prejudice.” (Emphasis supplied.) The Court of Special Appeals, in ordering the dismissal of the murder indictment upon which the respondent was tried, held “that a delivery of the necessary papers to the assignment office is a delivery to the appropriate court,” and that “[i]mmaterial nonconformity, however, will not vitiate the prisoner’s entitlement under the statute.” In applying our holding in Hoss v. State, supra, Judge Thompson, for the court, stated: “We find the Intrastate Act and the Interstate Agreement to be identical as to purpose and rationale. Hence, we apply to the Intrastate Act the ²⁰¹ liberal construction requirement of Section 616J, in order to encourage expeditious and orderly disposition of outstanding charges against a prisoner then incarcerated under a term of imprisonment. § 616B.

When the State’s Attorney and the appropriate court receive actual notice, the statute has been substantially complied with even though the court did not receive its copy via Certified Mail, [Footnote omitted] as § 616S (a) expressly requires. Failure to bring the appellant to trial within 120 days from the date of delivery to the State’s Attorney (June 12, 1972) and the appropriate court (June 19, 1972), requires that the subject indictment be dismissed with prejudice. § 616S (c). As we indicated earlier, our decision is dictated by Hoss v. State, supra, wherein it was held the provisions of the Interstate Statute were properly invoked and, being self-executing required that the indictment be dismissed. Hoss, supra at 146, quoted from State v. Lippolis, with approval: ‘The Legislature adopted the dismissal sanction not because a prisoner would be prejudiced at trial if trial were delayed more than 180 days after demand but because such a sanction for failure to try defendant within a fixed, reasonable period of time after demand was regarded as essential to produce general compliance with the statutory mandate.

The sanction is a prophylactic measure to induce compliance in the generality of cases.’ ” 6 (Emphasis supplied.) 20 Md. App. at 268 , 315 A. 2d at 121 . In Hoss, supra, the appellant, awaiting sentencing for rape in Pennsylvania, escaped on September 9, 1969; ten days ²⁰² thereafter he killed a Pennsylvania policeman for which he was indicted. On September 22nd a Maryland woman and her daughter, together with the vehicle in which they were riding, disappeared. Hoss was indicted in Allegany County, Maryland, for the kidnapping and abduction of the woman and her child and for the larceny of her motor vehicle.

Following his capture in Iowa and return to Pennsylvania he was sentenced for rape to a term of from ten to twenty years. In July 1970, after Hoss’ conviction of the murder of the police officer, but before sentencing, Maryland authorities filed interstate detainers with the Pennsylvania Bureau of Corrections. In September 1970 the death penalty was imposed on his murder conviction. Before that sentencing Hoss invoked the provisions of the Interstate Agreement on Detainers Act (§§ 616A-616R) for final disposition of the Maryland indictments; this he supplemented with motions, in proper person, demanding a speedy trial and against any continuance, insisting that unless his trial was initiated promptly he would lose the benefit of testimony vital to his defense.

His case was set for trial on January 11, 1971 — within the 180 day provision of Art. 27, § 616D. Prior to trial the State moved for a continuance, asserting that the probable affirmance of his conviction and the execution of the death sentence would render the Maryland trial moot, and that the purpose of the statute, being rehabilitative in nature, should not be applied in the case of one on whom the death sentence had been imposed. The trial court held the motion sub curia until after the 180 day period was tolled, and on March 24, 1971, ruled that Hoss was entitled to a “speedy trial” but was not entitled to a dismissal of the indictments under the Act. This Court, noting that the provisions of § 616J declared that the statute “ ‘shall be liberally construed so as to effectuate its purposes’ ” and finding that the purposes of the statute “go somewhat beyond ‘programs of prisoner treatment and rehabilitation,’ ” held that the provisions of §§ 616D and 616F were self-executing, unless a continuance had been granted in accordance with the provisions of § 616D, and that the failure of the trial court to rule upon the ²⁰³ motion for continuance within the 180 day period required the dismissal of the indictments pending against Hoss.

The Court rejected the view adopted by the trial court and followed by the Court of Special Appeals that the “ ‘imposition of the death sentence added a new dimension to the circumstances surrounding’ Hoss’ demand for trial under the provisions of the statute,” and held further that even if the motion of the prosecution for continuance had been “timely granted” it would not have constituted “good cause” for “any necessary or reasonable continuance” under § 616D (a). 7 In this Court, in urging a reversal, counsel for the petitioner argues that under the provisions of Art. 27, § 616S, two requirements, inter alia, must be met: (a) the necessary documents (requesting a trial of the indictment which is the subject matter of the detainer and the accompanying statement from the warden) must be delivered both to the State’s Attorney and to the “appropriate court,” and (b) both sets of documents must be delivered by certified mail. Subordinate to that argument it is contended that the Court of Special Appeals erroneously relied upon the holdings in Hoss v. State, supra, in that our decision there, holding that the provisions of the Interstate Agreement on Detainers Act were to be liberally construed and were self-executing, was limited to interstate cases (under Art. 27, §§ 616A-616R), whereas, the Court of Special Appeals in King v. State, 5 Md. App. 652 , 249 A. 2d 468 (1969), followed in Carter v. State, 15 Md. App. 242 , 289 A. 2d 837 , cert. denied, 266 Md. 734 (1972), and in Gibson v. State, 17 Md. App. 246 , 300 A. 2d 692 (1973), has consistently held that the provisions of the Intrastate Detainer Act (under Art. 27, § 616S) — the section here applicable — mandated a strict construction of the latter statute for intrastate cases. Counsel for the respondent counters and argues not only ²⁰⁴ were the provisions of § 616S gratified, by the actual notice received in the Criminal Assignment Office, but that the provisions of both the interstate and intrastate acts are remedial in nature, are in pari materia, are identical “as to purpose and rationale,” and that both should be liberally construed to effectuate the objects of the legislation; they urge us to overrule the holdings in King v. State to the extent that King may here be applicable, contending that if there was a statutory noncompliance, it was caused by the action of state personnel at the House of Correction when they failed to dispatch the copies by certified mail. We do not read King v. State as mandating that § 616S be strictly construed.

The Court of Special Appeals, after analyzing the step-by-step procedure required under the statute found an utter noncompliance with its terms. Judge Orth (now Chief Judge of that Court) noted that “[w]hile the [Intrastate Detainer] Act may be praised for its objective, it may be more damned for its provisions establishing the procedure to attain the objective.” After finding that the provisions “lack[ed] sanctions to compel compliance with them,” he noted that although “we may construe statutes within the legislative intent, we cannot enact legislation and we may not presume a sanction when none is provided.” In holding, upon the facts of the case, that the procedure specified in the statute had not been followed, he stated: “The evidence did not establish that the appellant made request for final disposition of the untried complaints within 30 days of notification of them. The Act was not available to the appellant for that reason. Even on an assumption that the letter of 15 September 1967 was such request, and that it was filed on time, it was not accompanied by a statement from the warden containing the information required by the Act.

The Act was not available to the appellant for that reason. And even if the evidence before the court be considered as showing that the appellant was precluded from filing the request as required because the warden, although he had knowledge, did not inform the ²⁰⁵ appellant of the source and contents of the untried complaints and of the appellant’s right to request final disposition thereof, [Footnote omitted] no relief was available to the appellant under the Act. And even had the evidence proved that the appellant made request as required but that the warden failed to deliver it, accompanied by the statement, to the appropriate State’s attorney and the court, no relief was available to the appellant under the Act. In short, for reasons we have hereinbefore stated, since it was not established that the appellant and the prison officials did all that they were called upon to do by the provisions of the Act, the Act was not invoked, no matter where the fault lay.” (Emphasis supplied.) 5 Md. App. at 665-66 , 249 A. 2d at 476-77 .

Similarly, neither Carter v. State, supra, nor Gibson v. State, supra, are authority for the proposition that § 616S must be strictly construed. In both those cases the section was held inapplicable since in neither had any detainer or notice of a detainer been placed on file with the warden of the institution where the respective appellants were confined. See also Davidson v. State, 18 Md. App. 61 , 305 A. 2d 474 , cert. denied, 269 Md. 757 (1973), where the appellant at the time he attempted to invoke the [interstate] Act was awaiting trial in a Delaware prison and had not entered upon a “term of imprisonment” as required for the application of § 616D (a). 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 ²⁰⁶ 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. See Smith v. Hooey, 393 U. S. 374, 378-80 (1969). See also Note, 77 Yale L.J. 767 , 769-71 (1968); Note, 18 Rutgers L. Rev. 828 , 833-34 (1964).

In some jurisdictions the pendency of such a detainer precludes the prisoner from eligibility for parole consideration; in others it excludes him from placement on work-release programs, and it has been known, because of the potentiality of escape, to cause the prisoner to be confined under more strict and harsh security measures than might otherwise be applicable to his case, except for the detainer on file. 8 In an effort to ameliorate such