State v. Becker

Lowe, J., delivered the opinion of the Court. No constitutional right gives greater concern to this Court than the fundamental Sixth Amendment guarantee that an accused shall enjoy the right to a speedy trial. There is a delicate balance to be maintained in assuring expeditious prosecution which is not an exclusive benefit of an accused. . . there is a societal interest in providing a ⁵⁵¹ speedy trial which exists separate from, and at times in opposition to, the interests of the accused. The. inability of courts to provide a prompt trial has contributed to a large backlog of cases in urban courts which, among other things, enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the system.” Barker v. Wingo, 407 U. S. 514, 519 .

In part to obviate defense manipulation by hyper-technical application of this right and yet assure its protective application, the Supreme Court “attempted to set out the criteria by which, the speedy trial right is to be judged.” Barker, 407 U. S. at 516 . The keystone among those criteria was the question of whether the accused was prejudiced. The Court recognized that “unlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused’s ability to defend himself.” 1 The case at bar provides a novel twist to that much-litigated issue. A dismissal was granted by the trial judge below and the State appealed.

Appellee was indicted by the Grand Jury of Baltimore County for automobile larceny. Since time is at the root of the issue before us we will recite the record revelations chronologically. August 27, 1973 — Indictment filed. Capias issued.

September 7, 1973 — Motion for discovery and inspection by defendant in proper person. September 20, 1973 — Petition for Habeas Corpus ad testificandum filed by defendant in proper person due to his federal incarceration, to obtain transportation, etc. and reciting intent to retain counsel for pre-trial motions. September 21+, 1973 — The court alerted Public Defender by letter. ⁵⁵² September 7, 1973 — Writ of Habeas Corpus issued. 2 September 27,1973 — State answered discovery motion. October 5, 1973 — Defendant moved to dismiss indictment for lack of evidence.

October 11, 1973 — Defendant moved to inspect Grand Jury minutes. October 12, 1973 — Petition for order for out-of-state witnesses for defendant filed by Public Defender. October 16, 1973 — Defendant filed Motion for Bill of Particulars. October 19, 1973 — State excepted thereto.

October 2k, 1973 — Defendant filed Motion to Suppress Identification. October 29, 30, 1973 — Defendant’s letters to court asserting defenses and complaining of counsel and court conduct. Defendant dismissed Public Defender assigned to him. November 6, 1973 — Correspondence expressing intent to retain private counsel.

November 12, 1973 — Court correspondence in reply — also notice of bail set. January 31, 197k — Motion for transcript of hearing filed. February 7, 197k — Motion to waive counsel filed. February 13, 197k — Pre-trial motions set for hearing on March 15,1974.

February 26, 197k — State’s answers to motions to dismiss, discover, and inspect filed. March 15, 197k — Docket entries reflect action on all motions filed. The entry regarding waiver of counsel reads as follows: “Hearing had on Defendant Becker’s motion filed February 7, 1974; motion granted, then, at Becker’s request, motion DENIED on ground Defendant ⁵⁵³ Becker now says he does not want to waive his constitutional right to counsel. ...” April 16, 197k — Hearing on April 16, 1974 pursuant to defendant’s motion for out-of-state witnesses and evidence. The court instructed the State’s Attorney to do whatever was necessary to provide defendant with his request: “Yes.

I am going to put the burden on you [the Assistant State’s Attorney] to do the secretarial work on this. You can do the same thing, Mr. Becker, you can issue a subpoena to them. But I think you can get it if you simply write to them and explain the situation, Mr. Austin, [Assistant State’s Attorney] and tell them if they don’t provide it — tell them you are willing to pay for a copy — but if they don’t provide it, then they will be put to the trouble — we will issue an out-of-state subpoena, and require them to produce somebody here. I think when you tell them that, that you will get it.” The court then considered defendant’s evidentiary needs for trial, item by item, recommending to the State’s Attorney the procedure to follow in assisting the accused.

The case was assigned for trial on the 29th of April, which the State expressed as one reason it had “been pushing hard” and was so willing to assist Defendant at the court’s suggestion. The court deferred discussion on the out-of-state witnesses motion and marked it “hearing had on Becker’s request to subpoena out-of-state witnesses, continued to 4/24/74 at 3: P.M.” This was done because the State’s Attorney “knows what follow-up he has to do and you [Becker] know what follow-up you have to do .... By that time you ought to know whether you can get these things or not.” Defendant then did another about face on his request for counsel. In response to the court’s question after admonishing him “You’ve got to make up your mind.

Do you want counsel or don’t you? The defendant responded “I want to represent myself.” April 25, 197k — Hearing on motion to sever trial from that of a co-defendant and on request for out-of-state ⁵⁵⁴ witnesses. The trial date was postponed partially because of the unavailability of the witnesses and partially because of the unavailability of the co-defendant who requested a postponement. The court denied the motion to sever but because of defendant’s complaint that this caused him a delay in trial the court said: “The case will not be further postponed, Mr. Austin.

On May 31st the State will proceed to trial or the Court will direct an entry of a nol pros. Understand that? MR. AUSTIN: Yes, Your Honor.

THE COURT: That is for sure. If I am sick in bed or if I am dead or dying, if I have a broken skull or something, I am going to send a memorandum to Judge Barrett and Judge Proctor that if anything happens to me, that some other judge would be appointed to preside so that the case can go forward. MR. BECKER: Thank you, Your Honor.

THE COURT: This man is entitled to get his case tried. Now, I recognize there have been an awful lot of pleadings going on here since he filed a motion for a speedy trial, 3 and a lot of it has been instigated by him, which has the effect of postponing a trial, and for that reason I don’t think Mr. Becker’s constitutional rights have been injured in any way. Assign it for May 31st, it will not be taken out of the assignment, and will be tried.... THE COURT: All right.

Motion for Severance denied. Motion Re Subpoenas for Out-of-State Witnesses denied, this motion having been adjusted by the State and defendant in open court. Case assigned for 5/31/74. No further postponements to be granted.

Of course, if someone dies that will be a different proposition, and I will reverse myself, but I don’t want anybody to die. ⁵⁵⁵ MR. BECKER: Your Honor, do I make another application for the two witnesses that we agreed on for the new date, the 31st, or does that cover that, too? THE COURT: Which two? MR.

BECKER: Mr. Sarsfeld and Mr. Gililand he said they are going to appear voluntarily. THE COURT: He [the State’s Attorney] is going to notify them, and you also notify them of the trial date, and tell them it is your understanding that they will come voluntarily, and that you want them here, and please to respond to your correspondence, and advise you that they will be here. And if they say, no, they are not coming, let me know. MR.

BECKER: Thank you, Your Honor.” May 28, 197k — In addition to receiving defendant’s waiver of his demand for jury trial, defendant’s request for out-of-state witnesses was reheard. When the State refused to stipulate to the testimony of the witnesses the court said the witnesses would be made available: “THE COURT: I will afford Mr. Becker the necessary wheels, whatever they are, I don’t know, I am not going to look it up, whatever is necessary for him to issue a subpoena action, and I will grant it as to these two individuals. That is all you want now? MR.

BECKER: That is all I want. THE COURT: If that is so, it is obvious the case cannot go forward tomorrow. MR. BECKER: This again was a delay on his part, your Honor, on the State’s part.

THE COURT: I understand that. But you want them here. MR. BECKER: Yes.

THE COURT: So the delay has been given for your benefit. You can’t get a subpoena in their hands — ⁵⁵⁶ MR. BECKER: He’s in Washington, D.C., and Mr. Gililand is in the Federal Penitentiary in Lewisburg, Pennsylvania. THE COURT: You can’t get a subpoena in their hands today, that is obvious.

But I will assign the case for trial — any other pretrial motions? THE COURT: Do you need an order for issuance of subpoenas for these two out-of-State witnesses? MR. AUSTIN: I will prepare it, your Honor.

THE COURT: Prepare an order, and get Mr. Becker — you have been very cooperative, Mr. Austin — and give Mr. Becker further cooperation to get the names and addresses, if you don’t already have them, and see to it that a subpoena, the necessary order is signed, and a subpoena is issued. How long will it take non-jury? THE COURT: Why don’t the two of you go back in the State’s Attorney’s office and get these gentlemen separately on the phone, and find out when they are available, and assign it for a time when they can be here? And if necessary I will recess this jury case, say, from a Tuesday to a Thursday or a Monday to Wednesday, or something like that, and fit this in so we can get rid of it; I want to get rid of it, you want to get rid of it.

MR. BECKER: One other question, your Honor. Again, Mr. Austin indicated to me again this morning that Mr. Lano will appear voluntarily. Do you remember, we talked about the F.B.I., and you said notify the local office here?

Again I ask you the same question. MR. AUSTIN: To my knowledge, he said as long as we give him sufficient notice he would be here. THE COURT: Talk to him today on the phone, ⁵⁵⁷ and say, look, we appreciate your willingness to appear voluntarily, don’t get mad with us, we are going to issue you a subpoena anyway.” June 3, 197k — Defendant filed Motion to Dismiss Indictments for Lack of Prosecution.

June 7, 197k — The hearing on Motion to Dismiss Indictments for Lack of Prosecution was treated by the court as being a motion to dismiss on grounds of lack of speedy trial. The motion was granted by the court which placed the blame for delay on the State seemingly because the State had not produced the defendant’s out-of-state witnesses: “THE COURT: The case was set for February 7th, and it was postponed at the State’s request. 4 We had a hearing before me on April 16th relative to getting these out-of-state witnesses present for trial on the 29th, and at the hearing I told you that you would have until April 24th to notify Mr. Becker’s out-of-state witnesses so that the trial could go forward on April 29th. And there was a further hearing on April 25th, at which time the case was postponed because, in my opinion because of the lack of vigor and industry on the part of the State in getting this case ready for trial, it was postponed until May 31st. Implicit in all this conversation relative, for example, to Mr. Sarsfeld, on page 7: ‘Mr. Austin: He is in Washington, D. C., with the Federal Energy Office, your Honor.

I can call him back and tell him we would like to have him here, and it would be up to Mr. Becker to discuss his testimony with him.’ ‘The Court: Call him, and arrange to have him here. That takes care of that.’ At that time on page 15 of the transcript the May 31st date was postponed because of your request, because you said Mr. Corbin was in ⁵⁵⁸ custody out in Missouri, and you couldn’t get him here. You could have gotten him here, you have just told me you could have, you answered my question directly, yes. 5 MR. AUSTIN: Your Honor, as I recall, if I may be heard briefly, your Honor came into criminal jury with the April term of court.

As soon as your Honor got into criminal jury I contacted your office, got a trial date of the 29th. THE COURT: We had preliminary hearings so that it could go forward on the 29th. MR. AUSTIN: Your Honor, the interstate agreement on detainers gives the prisoner whose ' custody is requested 30 days to object.

And acting as fast as I could, there was not 30 days between the time we requested him and the time of the trial; although we had thought that perhaps — THE COURT: Wait a minute, Mr. Austin. Don’t quibble on this. We had a hearing, and I assigned this case for hearing on April 29th, and you could have notified him any time after that case was assigned for hearing on April 29th. Thereafter it was postponed until May 31st.

So you had well more than 30 days. MR. AUSTIN: Not prior to the 29th trial date, your Honor. THE COURT: You had plenty of time prior to the May 31st trial date.

MR. AUSTIN: He was here for the 31st trial date, your Honor. As you recall, Mr. Goldberg could not be present, and — THE COURT: But the State wouldn’t go forward as to this man without going forward as to Corbin. I don’t care about Corbin, he is not before me.

This ⁵⁵⁹ man is entitled to a speedy trial. And I told you at that time, and I will read it. ‘The case will not be further postponed, Mr. Austin. On May 31st the State will proceed to trial or the court will direct an entry of a nol pros. Understand that?

Mr. Austin: Yes, your Honor. The Court: That is for sure. If I am sick in bed or if I am dead or dying, if I have a broken skull or something, I am going to send a memorandum to Judge Barrett and Judge Proctor that if anything happens to me, that some other judge would be appointed to preside so that the case can go forward.’ It is now June 7th, and Mr. Becker has made a motion for a dismissal of the charges against him. MR.

AUSTIN: May I be heard briefly? THE COURT: You have been heard, I heard you until you sat down, Mr. Austin; you can’t get five or six bites at the same apple. Sit down, Mr. Austin. You have a right to take an appeal from my ruling.

The Defendant has made a motion to dismiss the indictments for lack of prosecution. There eventually has to be a time when under the law and under the decisions of the Supreme Court a person who is asking to be tried has a right to be tried or have the charges dismissed. That time has been reached in this case. The motion will be granted.

You can still go forward as to the co-defendant. The entry will read — MR. BECKER: I think he’s left the courtroom, your Honor. THE COURT: What?

Tell him to come back here, Mr. Tormino. MR. SEIBERT: He thought you were finished, your Honor. MR.

BECKER: Your Honor, on behalf of myself and my family I’d like to thank you. THE COURT: Don’t thank me, I am simply doing the duty that is imposed upon me by my oath of office. ⁵⁶⁰ MR. BECKER: Thank you, your Honor. THE COURT: The docket entry will read: Defendant Becker’s motion to dismiss granted.

Indictment dismissed as to the Defendant Becker.” The judge was correct when he advised the State that it had a right to appeal. State v. Hunter, 10 Md. App. 300, 307 . We