State v. Henson

BELL, Judge. We granted the State’s petition for certiorari to resolve whether, when the State, in good faith, dismisses charges pending against a defendant and later indicts that defendant for the same charges, the period between the defendant’s arrest on the initial charges and his indictment is included in the speedy trial calculus. The motions judge held that it is ³²⁹ not. 1 On direct appeal, the Court of Special Appeals, in an unreported opinion, held to the contrary—that the time for speedy trial analysis in this case began to run from the date of the initial arrest. Consequently, it remanded the case, without affirmance or reversal, for hearing on the merits.

Contrary to the intermediate appellate court’s holding, we conclude that, ordinarily, the period during which no prosecution is pending as a result of a good faith dismissal of charges by the State, in this case, from nolle pros to indictment, is not considered in the speedy trial analysis. Where, however, the dismissal was not in good faith, the entire period, counting from the date of arrest or formal charge under the first prosecution, controls. Because, in this case, there has been no factual determination whether the nolle pros was entered in good faith, the trial court will be required, on remand, to make that determination preliminary to addressing the speedy trial merits. I. Erik Henson, the respondent, was indicted, on May 8, 1990, for assault with intent to murder and related charges growing out of a shooting that occurred on May 11, 1989.

After his arrest on February 22, 1992, he filed a motion in the Circuit Court for Prince George’s County to dismiss that indictment for lack of speedy trial. The proffers of counsel made at the hearing on the motion revealed that there had been a previous prosecution, in connection with which the respondent was arrested on May 25, 1989. That prosecution was terminated on July 26, 1989, when the State dismissed, by nolle pros, the charges then pending against the respondent. Although a summons was mailed to the respondent at his last known ³³⁰ address, shortly after the indictment was filed, it was never served.

A bench warrant, which was issued after the respondent failed to appear at the scheduled arraignment on the indictment, was not served until he was arrested on the indictment. The respondent argued that the trigger for the invocation of his speedy trial right was his arrest on May 25, 1989. Thus, he asserted, counting from that date, the entire period, including that between dismissal of the charges and indictment, had to be considered in determining whether his speedy trial right had been infringed. The State agreed so far as the triggering mechanism is concerned.

It disagreed, however, that the respondent’s speedy trial right had been violated. 2 In support of the latter position, “assuming that defendant’s speedy trial began to run from the date of his arrest in May of 1989, the State went back and tried to put together everything that happened between the date of the offense, 1989 and the time of the indictment.” Reviewing each step of that process, the State sought to justify its actions. It pointed out that, although a subpoena had been issued for him to do so, the victim did not appear before the Grand Jury and, therefore, a body attachment issued for the victim. The State also acknowledged that it had “some problem with [the victim’s] story” and that its inability to locate the victim hampered its further investigation of the victim’s story. The State also sought to demonstrate that it had made reasonable efforts to contact the respondent once he had been indicted.

Thus, the State noted that it: sent a summons to the respondent’s last known address shortly after the indictment was filed; requested and received a bench warrant when the respondent did not appear for arraignment; and checked the jails and the Department of Parole & Probation for the respondent. The State then concluded: ³³¹ There has been no assertion that this defendant has been prejudiced in any way. There is no indication that he is having witness problems as a result of this. There is no assertion that he had any difficulty or concerns, or that he was injured in any way.

I don’t think that the defense has established that there was a violation of his speedy trial rights. Disagreeing with both the respondent and the State as to “when you start counting,” the motions court took the matter under advisement. In its subsequently filed order, it concluded: Defendant moved for a speedy trial on March 20, 1992, and filed a motion to dismiss for lack of speedy trial on May 26, 1992. When ruling upon a motion to dismiss for lack of speedy trial, the court looks to the date the defendant was arraigned, not the date of the offense.

Defendant was rearraigned on March 9, 1992, and has been subjected to delay of only 110 days as of the date of this order. Thus, the defendant has not been prejudiced in any way. The Court of Special Appeals reversed. 3 It said: The speedy trial clock started running on May 25, 1989, the date appellant was arrested. The State’s decision to dismiss the charges while they tried to track down the victim in this case did not stop the clock from running.

The decision was chargeable to the State and was not within ³³² appellant’s control. The decision to indict appellant on the same charges that had been previously dismissed was also chargeable to the State. More importantly, appellant was indicted and later tried on those same previously dismissed charges. Accordingly, we find that the delay in the case sub judice was presumptively prejudicial and should have triggered the four-factor analysis enunciated in Barker, supra.

We shall therefore remand this case, without affirmance or reversal, to the circuit court for a hearing on the merits of the speedy trial claim. We do not believe, as opined by the trial court, that the motions court applied the four-part Barker test and found appellant’s claim lacking. The motions court decision was clearly rooted in its belief that the length of delay had been only 110 days, and not in any belief that the Barker balancing test had been satisfied. On remand, the court must make its own finding of fact, then apply the four-part test to those facts.

Slip op. at 7-8. The motions court having defined the applicable period as running from the date of the respondent’s arraignment on the indictment, rather than from the date of indictment, the State concedes that a remand for speedy trial analysis is appropriate.

II

The constitutional standard applicable in speedy trial cases was enunciated in Barker v. Wingo, 407 U.S. 514, 530 , 92 S.Ct. 2182, 2192 , 33 L.Ed.2d 101, 117 (1972). ‘When the [pretrial] delay is of a sufficient length, it becomes ‘presumptively prejudicial,’ thereby triggering a ‘balancing test [which] necessarily compels courts to approach speedy trial cases on an ad hoc basis.’ ” Brady v. State, 288 Md. 61, 65 , 415 A.2d 1126, 1128 (1980), quoting Barker, 407 U.S. at 530 , 92 S.Ct. at 2192 , 33 L.Ed.2d at 116-117 . The factors to be weighed are “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker, 407 U.S. at 530 , 92 S.Ct. at 2192 , 33 L.Ed.2d at 117 . Because whether a period is presumptively prejudicial, or not, ³³³ depends upon the length of a pre-trial delay, the first factor “is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Id.

And this factor cannot be applied until it is determined from what point the period of delay is measured. State v. Bailey, 319 Md. 392, 410 , 572 A.2d 544, 552 (1990). It is well settled 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.” United States v. Lovasco, 431 U.S. 783, 788-89 , 97 S.Ct. 2044, 2047-48 , 52 L.Ed.2d 752, 758 , reh’g denied, 434 U.S. 881 , 98 S.Ct. 242 , 54 L.Ed.2d 164 (1977), quoting United States v. Marion, 404 U.S. 307, 320 , 92 S.Ct. 455, 463 , 30 L.Ed.2d 468, 479 (1971). Thus, it is only [u]pon the intervention of an arrest or formal charge [that] the Sixth Amendment speedy trial right is invoked.” State v. Gee, 298 Md. 565, 569 , 471 A.2d 712, 714 , cert. denied, 467 U.S. 1244 , 104 S.Ct. 3519 , 82 L.Ed.2d 827 (1984).

See also Bailey, 319 Md. at 410 , 572 A.2d at 552 . In the usual case, the entire period from arrest or formal charge to trial is the applicable period for speedy trial analysis. Where, however, the prosecution is terminated and reinstituted, the period may be different; although the analysis will be the same, depending upon the fact finding, the period to which the analysis must be applied may be of shorter duration. See United States v. Loud Hawk, 474 U.S. 302 , 106 S.Ct. 648 , 88 L.Ed.2d 640 (1986); United States v. MacDonald, 456 U.S. 1 , 102 S.Ct. 1497 , 71 L.Ed.2d 696 (1982).

In MacDonald , the Supreme Court held that “the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges.” 456 U.S. at 7 , 102 S.Ct. at 1501 , 71 L.Ed.2d at 703 . In that case, MacDonald was charged by the Army with the murder of his wife and two daughters. After an extensive investigation in which a total of 56 witnesses were interviewed, the investigating officer recommended dismissal of the charges. Accepting the recommenda ³³⁴ tion, the Commanding General dismissed the charges.

Almost five years later, based on the continuing investigation of the Army’s Criminal Investigation Division, made at the request of the Justice Department, MacDonald was indicted for those same three murders. The Supreme Court held that MacDonald had not been denied the right to a speedy trial. It rejected the notion, espoused by the Fourth Circuit Court of Appeals, that, notwithstanding their dismissal by the Army, the charges continued to be pending until MacDonald’s indic1> ment. Id. at 9-10 , 102 S.Ct. at 1502-1503 , 71 L.Ed.2d at 704-705 .

In that connection, the Court observed (Id. at 10-11 n. 12, 102 S.Ct. at 1503 n. 12, 71 L.Ed.2d at 705 n. 12): There is no allegation here that the Army acted in bad faith in dismissing the charges. This is not a cáse where the Government dismissed and later reinstituted charges to evade the speedy trial guarantee. The Army clearly dismissed its charges because the Commanding General of MacDonald’s unit, following the recommendation of the Article 32 investigating officer, concluded that they were untrue. There is nothing to suggest that the Justice Department acted in bad faith in not securing an indictment until January, 1975.

After the Army dismissed its charges, it continued its investigation at the request of the Justice Department; the Army’s initial 13-volume report was not submitted to the Justice Department until June, 1972, and supplemental reports were filed as late as August 1973. Within a year, the Justice Department completed its review of the massive evidence thus accumulated and submitted the evidence to a Grand Jury. The grand jury returned the indictment five months later. Plainly, the indictment of an accused—perhaps even more so the indictment of a physician—for the heinous and brutal murder of his pregnant wife and two small children is not a matter to be hastily arrived at either by the prosecution authorities or by a grand jury.

The devastating consequences to an accused person from the very fact of such an indictment is a matter which responsible prosecutors must ³³⁵ weigh carefully. The care obviously given the matter by the Justice Department is certainly not any indication of bad faith or deliberate delay.[ 4 ] III. Both the State and the respondent now recognize the applicability of the rule of MacDonald to this case. Moreover, they both recognize that it presupposes that the termination of the prosecution was done in good faith.

The State maintains that the record reflects that the State acted in good faith, there being, “[a]t the hearing before Judge McCullough, ... no suggestion by defense that the State had acted in bad faith.” The State’s brief at 18. On the other hand, the respondent argues to the contrary, suggesting that “[t]he record, in fact, shows a lack of due diligence on the part of the State.” The Respondent’s brief at 6. The parties also disagree as to whether the period from the initial arrest to dismissal of the charges ought to be counted in the speedy trial analysis. The State maintains that it should not, emphasizing that the charges were dismissed in good faith.

It also points to our treatment in Curley v. State, 299 Md. 449 , 474 A.2d 502 (1984), of the pre-dismissal period, in the Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 591, Rule ³³⁶ 4-271 context, the recognition by the dissenting justices in MacDonald that such period is not to be considered, and the perceived need to interpret the constitutional speedy trial right consistently with the statutory right. For the respondent’s part, he argues that the rationale for the Rule of MacDonald “simply does not apply to exclude the period of time the charges were pending against a defendant,” citing United States v. Columbo, 852 F.2d 19 (1st Cir.1988).

IV

In the Court of Special Appeals, with respect to his speedy trial right, the respondent’s argument was premised on the Sixth Amendment of the United States Constitution. In this Court, albeit presented by the State, the same predicate is advanced. Consequently, what the Supreme Court of the United States has said on the subject is binding on this Court. Accordingly, the Rule of MacDonald applies to the case sub judice—“the Speedy Trial Clause has no application after the