State v. Hamilton

Orth, J., delivered the opinion of the Court. The Supreme Court of the United States has said that the right to a speedy trial is “one of the most basic rights preserved by our Constitution,” Klopfer v. North Carolina, 386 U. S. 213, 226 , a guarantee “as fundamental as any of the rights secured by the Sixth Amendment,” id. at 223 . But, as is not unusual, it has furnished little guidance as to the meaning and application of the right. Mr. Justice Brennan pointed out in his concurring opinion in Dickey v. Florida, 398 U. S. 30, at 40 , that the Court has given scant attention to questions essential to the definition of the speqdy trial guarantee, and has yet even to trace its contours.

He observed that before Klopfer only three of the Court’s opinions 1 dealt at any length with the right, and each of them was decided with little analysis of its scope and content. Klopfer ⁵⁸⁴ itself attempted no extensive analysis; nor did the later decision, Smith v. Hooey, 893 U. S. 374 . And the Court did not consider the effect of the application of the speedy trial clause to the states in Dickey . The opinion of the Court in United States v. Marion, 92 S. Ct. 455 , note 7 at 460, stated that the Court had interpreted the Sixth Amendment’s speedy trial guarantee in only a small number of cases, listing eight.

This Court, on the other hand, since its inception five years past, has been obliged to construe and apply the right to a speedy trial in criminal prosecutions in some sixty reported opinions rendered in cases which have bobbed up in the wake of Jones v. State, 241 Md. 599 . We considered the right as guaranteed by Art. 21 of the Declaration of Rights, Constitution of Maryland, 2 and since Klopfer was decided on 13 March 1967, 3 as guaranteed by the Sixth Amendment to the Constitution of the United States. 4 Provided no significant guidance by the Supreme Court, we enunciated principles on the foundation of prior opinions of our Court of Appeals. In applying them to the cases coming before us we early recognized that “[t]he right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances.

It secures rights to a defendant. It does not preclude the rights of public justice.” Beavers v. Haubert, supra, at 87. And we observed the caution that “[wjhile justice should be administered with dispatch, the essential ingredient is orderly expedition and not mere speed.” Smith v. United States, 360 U. S. 1, 10 . 5 In our considerations we were confronted from time to time with the question when during the criminal ⁵⁸⁵ process the right to a speedy trial attaches. Following the lead of the Court of Appeals, we consistently held that the right to a speedy trial does not arise until a prosecution has been instituted and that an accused cannot successfully complain of delay in the institution of the prosecution on speedy trial grounds if it is within the applicable period of limitations.

We summarized these holdings thusly in State v. Lawless, 13 Md. App. 220 , 229-230: “In reckoning delay, it is well settled that for ‘speedy trial’ purposes, we look only at the time from the commencement of the prosecution (by way of warrant, information or indictment) to the time of trial. Although a general ‘due process’ right might be involved, there is no ‘speedy trial’ right guarding against undue delay in the pre-indictment or pre-arrest phase of a criminal proceeding.” 6 At long last the Supreme Court has answered the question in United States v. Marion, supra. Fortunately our holdings are in accord with its determination, which has ⁵⁸⁶ become “the Supreme Law of the State” on the point. Art. 2, Declaration of Rights, Constitution of Maryland; Wilson v. Turpin, 5 Gill 56 ; Howell v. State, 3 Gill 14 . 7 Marion asserts that “the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an ‘accused.’ ” At 459.

However, invocation of the speedy trial provision need not await indictment, information or other formal charge. It is also invoked by “the actual restraints imposed by arrest and holding to answer a criminal charge.” At 463. However, the Court expressly declined “to extend the reach of the Sixth Amendment to the period prior to arrest.” The rationale of the holding stems from the words of the amendment — “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial * * (emphasis added). Thus, the Court pointed out at 459, “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.” 8 The provision affords no protection to those not yet accused, nor does it require the government to discover, investigate, and accuse any person within any particular period of time.

Its guarantee runs to a criminal defendant and the guarantee is that the prosecuting authorities “will move with the dispatch which is appropriate to insure him an early and proper disposition of the charges against him,” that is orderly expedition and not mere speed. Ibid. The Court viewed the speedy trial provision in the light of the circumstances surrounding its adoption, as it had been construed by opinions of the Supreme Court, in the context ⁵⁸⁷ of federal and state efforts to implement it, and with regard to its purposes. It found nothing to indicate that it does not mean what it appears to say.

Thus the rule is that the right to a speedy trial attaches when the putative defendant in a criminal cause becomes the accused by the arrest of him or by the charging of him under the authorized procedures of this State. Marion also furnishes some guidance in another area. In that case it was the indictment which activated the speedy trial clause, 9 and the defendants did not claim there was an unconstitutional delay between indictment and trial. They relied only on potential prejudice and the passage of time between the alleged crime and the indictment.

The Court said, at 465, “There is * * * no need to press the Sixth Amendment into service to guard against the mere possibility that pre-accusation delays will prejudice the defense in a criminal case since statutes of limitation already perform that function.” 10 But, it added, the statute of limitations does not fully define rights of a person with respect to events occurring prior to the time he becomes an “accused.” The opinion of the Court seems to acknowledge that “actual prejudice” re- ⁵⁸⁸ suiting from pre-accusation delays may require the dismissal of the prosecution under the due process provision of the Fifth Amendment. 11 But we are again left uniiiformed. The Court said: “However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires dismissal of the prosecution.” At 465. Yet we are to some extent advised, subject to the caveat that it would be unwise for the Court at this juncture to attempt to forecast its decision in such cases: “Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution. To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case.” At 465-466.

Some light on the thinking of the majority of the Court 12 is shed by the discussion in reversing the grant below of the motion dismissing the indictment: “The 38 month delay between the end of the scheme charged in the indictment and the date the defendants were indicted did not extend beyond the period of the applicable statute of limitations here. Appellees have not, of course, been able to claim undue delay pending trial, ⁵⁸⁹ since the indictment was brought on April 19, 1970, and dismissed on June 8, 1970. Nor have the appellees adequately demonstrated that the pre-indictment delay by the Government violated the Due Process Clause. No actual prejudice to the conduct of the defense is alleged or proven, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them.

Appellees rely solely on the real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment. Events of the trial may demonstrate actual prejudice, but at the present time appellees’ due process claims are speculative and premature.” At 466. We can only conclude that with respect to pre-accusation delay the burden is on the defendant to demonstrate violation of due process.

He must show actual prejudice to the conduct of the defense and that the prosecution intentionally delayed to gain some tactical advantage over him or to harass him. The real possibility of prejudice inherent in any extended delay is not enough. 13 ⁵⁹⁰ Marion leaves unanswered what are the criteria for denial of the Sixth Amendment right to a speedy trial, the right being applicable, as we have seen, to delay between the time the person becomes the “accused” to the time of trial. We shall, therefore, not depart from our holdings with respect thereto, which we reviewed at length in State v. Lawless, supra. We have applied them as firmly established as recently as Hoss v. State, 13 Md. App. 404 and they apparently have been accepted by the Court of Appeals as indicated by the denial of certiorari from time to time as to cases in which they were the basis of our decision.

We shall abide with them until the Supreme Court tells us nay. We turn to the instant case. On 12 July 1971 an indictment was filed in the Circuit Court for Baltimore County presenting by the first count that HUGO ALEXANDER HAMILTON, Jr. on 30 December 1969, in the daytime, did unlawfully break a dwelling house with intent to steal. Related offenses were charged in five additional counts.

Capias was issued the same day and on 13 July was returned “Cepi Jail.” A personal recognizance was filed on 14 July 1971 and the same day counsel was appointed to represent Hamilton. On 27 July 1971 he filed, by his attorney, a “Motion to Quash Indictment.” 14 It alleged that the Baltimore County Police ⁵⁹¹ Department on 13 January 1970, as a result of investigation, had obtained a warrant charging Hamilton with the breaking of the dwelling on 30 December 1969. On 3 June 1970 the warrant was recalled by the State’s Attorney’s Office for Baltimore County and no further legal proceedings were taken at the time. On 8 April 1971 the police, upon authority of the State’s Attorney, reactivated the warrant and on 1 July arrested Hamilton on its authority.

On 12 July the grand jury for Baltimore County indicted him on the charge. He claimed denial of due process and denial of a speedy trial. He asserted that “it has become impossible for the defendant to locate certain witnesses who will be necessary to the defendant’s case at the time of trial,” and that the denial of a speedy trial “also causes undue hardship in the preparation of defendant’s case.” He moved that the indictment be quashed, requesting a hearing. 15 At the hearing on 2 August 1971 in the Circuit Court for Baltimore County it was stipulated that “the facts alleged in the motion” were correct. No other evidence was offered.

The judge below summarized the situation: “In any event, you [the State] knew who he was, and you let him sit around for 18 months, and then filed an