State v. Brown

ELDRIDGE, Judge. This case involves the requirement, set forth in Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 591, and Maryland Rule 4-271, that the trial of a circuit court criminal case ordinarily commence within 180 days. A criminal information was filed on May 12, 1993, in the Circuit Court for Dorchester County, charging Otis Alexander ⁶¹¹ Brown with second degree rape, child abuse and related offenses. The charges were based on allegations that Brown had forcibly raped his twelve-year-old stepgranddaughter on March 14,1993.

Defense counsel’s appearance was entered on May 21, 1993. Consequently, the 180-day period for commencing trial of the case, prescribed by Art. 27, § 591, and Rule 4-271, would have expired on November 17, 1993. 1 On July 21, 1993, defense counsel filed a motion to compel discovery. Trial was initially ⁶¹² scheduled for August 3, 1993, well within the 180-day period. Upon the defendant’s requests, the trial date was first postponed until August 31, 1993, and then postponed until October 5,1993.

The October 5th trial date was, nevertheless, 43 days before the expiration of the 180-day period. When the case was called for trial on October 5, 1993, the State nol prossed the entire case. The prosecuting attorney, in setting forth the reason for the nol pros, stated that the underwear which the victim had been wearing when the offenses occurred had been sent to the Maryland State Police Crime Laboratory for DNA testing, that the results of the DNA testing had not yet been received, and that the results of the testing were necessary both for compliance with the defendant’s discovery motion and for the State’s trial preparation. On January 11, 1994, after the DNA test results had been received, Brown was again charged, by an indictment filed in the Circuit Court for Dorchester County, with the rape and child abuse of his stepgranddaughter occurring on March 14, 1993.

In February 1994, Brown filed a motion to dismiss, contending that the State had violated the requirement under Art. 27, § 591, and Rule 4-271, that Brown’s trial commence within 180 days. Brown also claimed a violation of his right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution and Article 21 of the Maryland Declaration of Rights. At the hearing on the motion to dismiss, held on March 10, 1994, Brown’s attorney acknowledged that there was a “need” for the results of the DNA testing and that if the State, on October 5, 1993, had sought a further postponement of the trial date instead of filing a nol pros, the postponement probably would have been granted. The defense argued that the 180-day period under § 591 and Rule 4-271 for trial expired on November 17, 1993, that the State had not sought and obtained, in accordance with the statute and the rule, a postponement of the trial to a date beyond the 180-day deadline, and that, therefore, dismissal was the appropriate ⁶¹³ sanction.

Defense counsel alternatively argued that there had been a violation of Brown’s constitutional right to a speedy trial. Thereafter, in a thorough opinion rendered orally in court, the circuit court (Donald F. Johnson, J.) denied the motion to dismiss, holding that there had been no violation of § 591 and Rule 4-271 and that the defendant’s constitutional right to a speedy trial had not been violated. Pursuant to an agreement, Brown pled not guilty to the count charging child abuse and was tried on that count on an agreed statement of the State’s evidence. In addition, the results of the DNA test were admitted.

The agreed statement and test results disclosed that Brown forcibly engaged in vaginal intercourse with his twelve-year-old stepgranddaughter on March 14, 1993, that the child had been left in Brown’s care and custody at the time, that the DNA profiles obtained from the semen found on the child’s underwear matched the DNA profile of Brown, and that the chances of selecting a person other than Brown “having a matching DNA profile would be one in five billion.” The circuit court (Richard D. Warren, J.) found Brown guilty of child abuse, and the State nol prossed the remaining charges. Subsequently Brown was sentenced to a four-year term of imprisonment. Brown appealed to the Court of Special Appeals, presenting the following two questions: (1) whether the circuit court erred in denying the motion to dismiss based on the alleged violation of Art. 27, § 591, and Rule 4-271; (2) whether Brown’s constitutional right to a speedy trial had been violated. The Court of Special Appeals, in an unreported opinion, agreed with Brown that there had been a violation of § 591 and Rule 4-271, and reversed the conviction.

The intermediate appellate court, relying on Curley v. State, 299 Md. 449 , 474 A.2d 502 (1984), explained as follows: “We fully agree with the State that waiting for the DNA test results would have represented good cause for a postponement prior to the November 17, 1993, deadline and almost assuredly would have been granted by any reasonable judge. The State’s problem, however, is that it failed ⁶¹⁴ to take this necessary and prescribed step to avoid the foreclosing effect of the 180-day rule. “The situation before us is controlled by Curley v. State, 299 Md. 449 [ 474 A.2d 502 ] (1984). Maryland follows the approach under which a nol pros tolls the running of a 180-day clock and the clock starts anew with the filing of a replacement indictment, subject to one very important exception. If the purpose or effect of the nol pros and subsequent recharging is to avoid the 180-day time limit, then the clock is deemed to have started running with the filing of the initial charge and is deemed to continue to run unaffected by the procedural maneuvering. ****** “There is no suggestion in this case that the State was doing anything in an underhanded fashion.

It simply made a mistake in the method it chose to accomplish its purpose. There is no suggestion that there was anything defective in the initial charge. The new indictment was indistinguishable from the initial charge. Although the State was not guilty of any ulterior motive or nefarious purpose in entering the nol pros, the nol pros nonetheless had the effect of circumventing the 180-day rule.” Since it held that the conviction should be reversed because of a violation of § 591 and Rule 4-271, the Court of Special Appeals did not reach the defendant’s alternative contention that his constitutional right to a speedy trial had been infringed.

The State then filed in this Court a petition for a writ of certiorari, presenting the single question of whether the Court of Special Appeals erred in finding a violation of § 591 and Rule 4-271 and reversing Brown’s conviction on this basis. According to the State, the intermediate appellate court misapplied this Court’s opinion in Curley v. State, supra, 299 Md. 449 , 474 A.2d 502 , and overlooked our opinion in State v. Glenn, 299 Md. 464 , 474 A.2d 509 (1984). The State contends that the Court of Special Appeals’ decision in this case is inconsistent with both Curley and Glenn . ⁶¹⁵ We have granted the State’s petition and shall summarily reverse the judgment of the Court of Special Appeals. We agree with the State that the decision of the Court of Special Appeals is inconsistent with the principles set forth in the Curley and Glenn opinions.

Both Curley v. State and State v. Glenn concerned the application of the 180-day requirement for circuit court criminal trials, set forth in § 591 and Rule 4-271 (then numbered Rule 746), when the prosecuting attorney files a nol pros prior to the expiration of the 180-day period, thereafter causes the same charge or charges to be refiled against the defendant, and the trial under the second charging document is held more than 180 days after the arraignment or the initial appearance of counsel under the first charging document. In Curley v. State, the defendant was charged by information, filed in the Circuit Court for Anne Arundel County, with manslaughter by automobile and related offenses. His trial was initially scheduled for a date which was very early in the running of the 180-day period; this trial date, however, was postponed in accordance with the procedures of § 591 and the rule. For some reason not shown by the record, a new trial date was never assigned.

On the date that the 180-day period for trial expired, with no trial date assigned, no prior notice to the defense, and no ability to begin trying the case that day, the prosecuting attorney entered a nol pros with respect to all charges against the defendant Curley. More than three months later, the State filed a second information charging Curley with the same offenses that had been charged under the prior information. Thereafter, Curley filed a motion to dismiss the second information on the ground, inter alia, that the 180-day trial requirement of § 591 and the implementing rule had been violated. Curley argued that whenever the State nol prossed pending circuit court charges and later refiled the same charges, the 180-day period for commencing trial, prescribed by the statute and rule, should always run from the defendant’s arraignment or the first appearance of counsel under the initial charging document, and that the running of the period should not be tolled after the nol pros ⁶¹⁶ was filed.

The circuit court rejected Curley’s argument and denied the motion to dismiss. After his trial and conviction, Curley appealed to the Court of Special Appeals, and the intermediate appellate court certified the case to this Court. See Rule 8-304. This Court’s opinion in Curley initially reviewed cases in other jurisdictions having statutes or rules somewhat like Art. 27, § 591, and Rule 4-271.

The Court observed that cases elsewhere had basically taken three different approaches in applying statutory time limits for criminal trials to the situation where the prosecution nol prossed the charges and later filed the same charges. We pointed out that (1) some cases hold that the running of the time period is neither tolled nor ended by the nol pros, and that the same period continues to run when the charges are refiled, 2 (2) cases in other jurisdictions look to the date of the first charge but toll the running of the statutory time for the period during which no charges are pending, (3) a third category of cases takes the position that when criminal charges are nol prossed and later refiled, the time period for commencing trial ordinarily begins to run anew after the refiling. We further pointed out that the cases in this third category “generally recognize an exception where the prosecution’s action is intended or clearly operates to circumvent the statute or rule prescribing a time limit for trial.” Curley, 299 Md. at 459 , 474 A.2d at 507 . Our Curley opinion went on to adopt the approach taken by the cases in the third category, reasoning that this approach was more consistent with Maryland law regarding the nature of a nol pros and with the purpose of Art. 27, § 591, and the implementing rule.

We set forth our basic holding in Curley as follows (299 Md. at 462, 474 A.2d at 508): “We hold, therefore, that when a circuit court criminal case is nol prossed, and the state later has the same charges refiled, the 180-day period for trial prescribed by § 591 and ⁶¹⁷ Rule 746 ordinarily begins to run with the arraignment or first appearance of defense counsel under the second prosecution.” Our Curley opinion also agreed with the exception recognized by the cases in the third category, namely that where the nol pros had the purpose or necessary “effect of circumventing the requirements of § 591 and