State v. Gee

CHARLES E. ORTH, Jr., Retired, Specially Assigned Judge.

I

(1] The guidelines for the application of the “amorphous” and “slippery” right to a speedy trial guaranteed by the Sixth Amendment to the United States Constitution are ⁵⁶⁸ loud and clear. 1 .In several cases beginning with United States v. Marion, 404 U.S. 307 , 92 S.Ct. 455 , 30 L.Ed.2d 468 (1971) the Supreme Court of the United States has declared that “the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an ‘accused’.... On its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution.” Marion at 313 , 92 S.Ct. at 459 . A person becomes an “accused” only upon his arrest or the filing of an indictment, information or other formal charge against him. Before the intervention of arrest or formal charge the Sixth Amendment speedy trial clause is not relevant.

Any passage of time between crime and arrest or charge is considered in terms of due process of law and statutes of limitation. Id. at 321-325 , 92 S.Ct. at 2187-89 . The Supreme Court has consistently adhered to this view of the speedy trial clause. See United States v. MacDonald, 456 U.S. 1, 6-8 , 102 S.Ct. 1497, 1501-02 , 71 L.Ed.2d 696 (1982); United States v. Lovasco, 431 U.S. 783, 788-792 , 97 S.Ct. 2044, 2048-50 , 52 L.Ed.2d 752 , reh. den., 434 U.S. 881 , 98 S.Ct. 242 , 54 L.Ed.2d 164 (1977); Dillingham v. United States, 423 U.S. 64, 64-65 , 96 S.Ct. 303, 303 , 46 L.Ed.2d 205 ⁵⁶⁹ (1975); Moore v. Arizona, 414 U.S. 25, 26-27 , 94 S.Ct. 188, 189-90 , 38 L.Ed.2d 183 (1973); Kirby v. Illinois, 406 U.S. 682, 689-690 , 92 S.Ct. 1877, 1882 , 32 L.Ed.2d 411 (1972).

In Lovasco the Court expressly affirmed the Marion view. It observed that the Court’s “analysis of the language, history, and purposes of the [speedy trial] Clause persuaded [it] that only ‘a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge . . . engage the particular protections’ of that provision.” 431 U.S. at 788-789 , 97 S.Ct. at 2048 , quoting Marion, 404 U.S. at 320 , 92 S.Ct. at 463 . It then advanced further reasons why the Marion rule was sound: “It requires no extended argument to establish that prosecutors do not deviate from ‘fundamental conceptions of justice’ when they defer seeking indictments until they have probable cause to believe an accused is guilty; indeed it is unprofessional conduct for a prosecutor to recommend an indictment on less than probable cause. It should be equally obvious that prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect’s guilt beyond a reasonable doubt.

To impose such a duty ‘would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself’....” 431 U.S. at 790-791 , 97 S.Ct. at 2048-49 (footnote and citation omitted). Upon the intervention of an arrest or formal charge the Sixth Amendment speedy trial right is invoked. There follows “a balancing test, in which the conduct of both the prosecution and the defendant are weighed.” Barker v. Wingo, 407 U.S. 514, 530 , 92 S.Ct. 2182, 2192 , 33 L.Ed.2d 101 (1972). Barker identified some of the factors which are to be assessed in determining whether a defendant has been deprived of the right.

It enumerated four factors: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Id. at 530 , 92 S.Ct. at 2192. The Court observed, “The length of the delay is to some extent a triggering mechanism. Until there is ⁵⁷⁰ some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Id.

II

Nathaniel Tony Gee went to trial before a jury in the Circuit Court for Baltimore County on 16 February 1982. He was found guilty of the crimes of robbery with a deadly weapon and the use of a handgun in the commission of a felony. The procedural steps leading to the trial had commenced some time before. On 3 January 1981, a police officer applied for a statement of charges with respect to Gee. 2 The application was acted on the same date.

A District Court Commissioner granted the application and filed a “Statement of Charges” whereby Gee was charged with the felony of robbery with a deadly weapon and the misdemeanor of the use of a handgun in the commission of the robbery. At the same time the Commissioner issued a warrant for the arrest of Gee. Attempts to serve the warrant were unsuccessful. On 4 February 1981, Gee was arrested on other charges and was incarcerated under the jurisdiction of the Division of Correction.

The record before us does not show on what date the authorities interested in the arrest warrant learned of his whereabouts. In any event, a detainer against Gee with respect to the charges of 3 January 1981, was filed on 9 September 1981. A week later Gee requested disposition of that.case under the Intrastate Detainer Act. The arrest warrant was served on him on 7 October 1981, and on 2 November an indictment was returned.

He was arraigned on 17 November and trial was set for 3 December. On 30 November he filed a motion to dismiss the indictment for lack of a speedy trial. The motion was heard on 3 December. Trial on the indictment was postponed at Gee’s request.

The motion to dismiss was ⁵⁷¹ denied on 4 December. The case proceeded to trial on 16 February 1982 after Gee’s demand for discovery and motion to produce documents had been answered by the State. Gee appealed from the judgments entered on his convictions. The Court of Special Appeals agreed with Gee’s contention that he had been denied a speedy trial.

It accepted his assertion that there had been a delay of 11 months in bringing him to trial, running from the issuance of the warrant for his arrest on 3 January 1981 to the hearing on 3 December 1981 of his motion to dismiss the indictment. Deeming this interval to be presumptively prejudicial, the court looked to the other three interrelated factors. It thought that the facts and circumstances surrounding the delay as to Gee was so similar to those present in the delay in bringing one Willie Frederick Brady to trial that the opinions of the Court of Appeals in that case, resulting in a dismissal of the charges against Brady, were controlling. 3 Acting under its belief that it was bound by our Brady opinions to reach the same result with respect to Gee, the Court of Special Appeals reversed the judgments entered by the trial court. Gee v. State, 54 Md.App. 549 , 459 A.2d 608 (1983).

III

In making our independent constitutional appraisal of whether Gee was denied his Sixth Amendment right to a speedy trial we turn to the first factor to be assessed— length of delay. In ascertaining the length of delay we must first determine when the speedy trial right was acti ⁵⁷² vated. As we have seen, this would occur upon an arrest or upon the filing of a formal charge. It is obvious that the issuance of the warrant of arrest placed no actual restraint upon Glee’s liberty.

Thus, the “arrest” requirement of the speedy trial rule was in no way satisfied by the mere issuance of the warrant. The Supreme Court teachings leave no doubt whatsoever that the issuance in itself of an arrest warrant as a prelude to arrest, even though based, as it must be, upon probable cause to believe that the potential arrestee committed the crime, does not suffice to activate the speedy trial right. To satisfy the “arrest” aspect of the Supreme Court rule, the warrant must be “executed by the arrest of the defendant. ...” See Maryland District Rule 720 f. It follows that if the issuance of the arrest warrant were to be the means of starting the speedy trial clock, it would have to be on the basis that the warrant constituted a “formal charge” in the contemplation of the Sixth Amendment.

So we look to the status of the arrest warrant here which was issued by a judicial officer of the Maryland District Court.

IV

As defined in the rules of the Maryland District Court, a warrant is a written order by a judicial officer (a District Court judge or commissioner, M.D.R. 702 f) directed to a peace officer commanding him to arrest the person named in it. M.D.R. 702 m. There must be attached to it a copy of the charging document. M.D.R. 720 e.

A charging document includes a statement of charges. M.D.R. 702 a. A statement of charges is based on an accusation made by a peace officer or other person. M.D.R. 702 i.

It must contain a reference to the statute or other authority for the crimes alleged. M.D.R. 711 a. Before arrest a statement of charges may be filed by a judicial officer upon written application containing “a verified statement by a peace officer or a statement by a person, signed before the judicial ⁵⁷³ officer under oath, which shows probable cause that the defendant committed the offense charged.” M.D.R. 720 b. As we have noted, the warrant with the appended statement of charges is executed by the arrest of the defendant.

M.D.R. 720 f. A copy of the warrant and the charging document must be served on the defendant as soon as possible after his arrest. Id. 4 A defendant may be tried in the District Court upon the document consisting of the warrant and the statement of charges when the offense charged is under the jurisdiction of that court. M.D.R. 710 d.

He may be tried in the circuit court upon that document when he prays a jury trial in the District Court or appeals from a judgment of the District Court. Maryland Rule 710 d. With exceptions not here relevant, the District Court does not have jurisdiction of an offense otherwise within its jurisdiction if a person is charged with an offense arising from the same circumstances but not within the District Court’s jurisdiction. In that case the circuit court has exclusive original jurisdiction over all the offenses.

Md.Code (1974, 1983 Cum.Supp.) § 4-302(e) of the Courts and Judicial Proceedings Article. Trial in such event may be had only in the circuit court upon an indictment (a charging document returned by a grand jury, Md.Rule 702 c) or an information (a charging document in which the accusation is made by the State’s Attorney and which is filed with the court, Md.Rule 702 d). See Md.Rule 710 a. 5 ⁵⁷⁴ V. We think that the document consisting of a warrant of arrest and statement of charges on which the warrant is based (warrant-statement of charges) is a “formal charge” in the contemplation of the speedy trial right when a defendant is subject to be tried on that document. In that event the criminal prosecution has truly commenced and the putative defendant has become an “accused.” The State has committed itself to prosecute and the adverse positions of State and defendant have solidified. “It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” Kirby v. Illinois, 406 U.S. at 689 , 92 S.Ct. at 1882 .

A warrant-statement of charges on which a defendant can be tried is tantamount to an indictment or an information. Therefore, its mere issuance marks the commencement of the “criminal prosecutions” to which alone the explicit guarantees of the Sixth Amendment are applicable. Id. at 690 , 92 S.Ct. at 1882. On the other hand when the defendant cannot be tried under the warrant-statement of charges he is not held to answer a criminal charge on the basis of that document.

Its issuance does not mark the onset of formal prosecutorial proceedings to which the Sixth Amendment guarantee is applicable, nor has the putative defendant thereby become an “accused.” The State has not by the issuance of such a warrant-statement of charges committed itself to prosecute. Before it can proceed the grand jury must indict or the State’s Attorney must file an information. Neither is obliged to do so. Until an indictment has been returned or an information filed the adverse positions of State and defendant have not solidified, nor is the defendant at that point faced with the prosecutorial forces of organized society and immersed in the intricacies of substantive and procedural law.

In such circumstances the warrant-statement of charges is not the equivalent of an indictment or an information. It is not a “formal charge” and thus, its mere issuance does not activate the speedy trial provision. ⁵⁷⁵ The opinions of this Court support this view inasmuch as they have been in full