State v. Hiken

Moore, J., delivered the opinion of the Court. ²⁶⁰ In compliance with Maryland Rule 746, 1 the trial of appellee, Stanley Hiken, under four indictments charging him with arson and related crimes, was scheduled for December 19, 1977 in the Criminal Court of Baltimore, 3 months and 12 days from the date of the indictments. The trial did not take place as scheduled, however, essentially because the State’s evidence — in the possession of the Baltimore Police Department Arson Squad — was subpoenaed approximately 2 weeks before the trial date by the United States District Court for the District of New Jersey in connection with a grand jury investigation in that jurisdiction of the same occurrence. 2 Nine months and 23 days from the date of Mr. Hiken’s arrest, the court below (Allen, J.) granted appellee’s second motion to dismiss for lack of a speedy trial. The State seeks a reversal. Finding no error, we will affirm. 3 I There was no evidentiary hearing below.

Appellee’s motion to dismiss for lack of a speedy trial was granted at the last ²⁶¹ of five proceedings in open court 4 on June 30, 1978 after extensive colloquies between court and counsel and upon a proffer of evidence with which the State substantially agreed. The operative facts may be summarized as follows: Appellee, Stanley Hiken, conducted a formal men’s wear business in Baltimore City. In connection with this business, Hiken maintained a warehouse for formal wear storage at 1640 East Baltimore Street which was owned by S. Hiken Formal Wear, Inc. A fire occurred at the warehouse on December 11,1976. A 9-month investigation into the fire was conducted by the Office of the State’s Attorney and the Arson Squad of the Baltimore City Police Department.

During this 9-month period, Mr. Hiken’s records were subpoenaed as were members of his family and other individuals who appeared and testified before the grand jury. Mr. Hiken ultimately was charged, in four separate indictments, with arson of the warehouse, 5 conspiracy, 6 solicitation, and insurance fraud. 7 On September 7, 1977, the date of the indictments, Hiken was arrested at his place of business in the 3600 block of Eastern Avenue in Baltimore City. Detective John Dillon of the Arson Squad took him from his establishment in handcuffs and drove him to the Southeastern District of the Baltimore City Police Department. There, after the prosecution pressed for the surrender of his passport, he was released on his own recognizance.

A trial date was set for December 19,1977. In November, the United States District Court for the District of New ²⁶² Jersey 8 subpoenaed appellee’s business records. 9 An Assistant United States Attorney in New Jersey, Thomas McKay, III, was aware of Mr. Hiken’s Maryland trial date. Nevertheless, at a meeting in his office in Camden, New Jersey on December 7,1977, 10 attended by appellee’s counsel, James F. Murphy, Jr., by Assistant State’s Attorney Haven Kodeck of Baltimore City, and Detective John Dillon of the Baltimore City Police Department, Mr. McKay served a subpoena duces tecum upon Detective Dillon, returnable before the grand jury in Camden on December 13, 1977. Mr. Dillon was ordered to bring “all documents, reports, physical evidence, or other materials in [his] possession pertaining to the investigation of a fire at 1640 E[ast] Baltimore Street, Baltimore, Maryland, on 12/11/76.” Detective Dillon delivered documentary and physical evidence to the New Jersey grand jury on December 13,1977, as required by the subpoena.

Thereupon, Mr. Kodeck indicated to Mr. Murphy that a request for a change of Mr. Hiken’s trial date of December 19, 1977 would be made. No motion was filed. Mr. Murphy requested a formal hearing, on the record, in the chambers of'the Honorable Anselm Sodaro, then Administrative Judge. Proceedings before Judge Sodaro, December 16, 1977.

Appellee’s counsel assured Judge Sodaro that he was ready and desirous to proceed to trial. The court suggested to Mr. Kodeck that xerox copies of the State’s evidence be obtained but the latter responded that copies could not be provided “at this late date.” With extreme reluctance, Judge Sodaro removed the case from the-.trial calendar, preserving, however, the December 19th trial date for the hearing of ²⁶³ motions, filed on December 14th and December 16th, to dismiss all but the arson indictment. Judge Sodaro stated: “Imust agree with counsel\ for both parties, that the United States Attorney acted highhandedly, and not only did he act high-handedly, but he has, in fact, caused embarrassment to the defense and the State, and the administration of justice of this city, because, obviously, it’s an important case. It was especially set for trial for a particular court.” (Emphasis added.) He also stated that upon the return of the evidence from New Jersey, forecast by Mr. Kodeck for the following month, he would “make available, the Court to which this case has been assigned, Criminal Court Part XI, at anytime, even including the postponement of cases and assignments that have been scheduled for the Court so that this case may proceed expeditiously.” Proceedings before Judge Allen, December 19, 1977.

When appellee’s motions came on for consideration by the court (Allen, J.) on December 19,1977 — the date which was to have been the trial date — counsel for Mr. Hiken informed the court at the outset that his motions were addressed to the related charges but not the “substantive indictment,” the arson indictment. He said, “We request an immediate trial on that issue.” Subsequently, he informed Judge Allen: “[I] sincerely believe that my client is entitled to an immediate trial. The defense is ready to proceed and indicated to the chief judge on Friday that we were ready to proceed.” The court observed that the matters presented were of some complexity and that the State should file a reply. The State requested, and received, a period of three weeks for that purpose.

Proceedings before Judge Allen, January 17, 1978. When the case came again before the court on the pending ²⁶⁴ motions on January 17, 1978, Judge Allen stated at the very outset: “Mr. Kodeck, Mr. Murphy has made his position very clear, he insists on trial for his client, as he calls it, immediate trial. ” (Emphasis added.) The State then advised the court that it had been unable to complete the research necessary to respond to the defense’s motions. An additional two-week period of time was requested. Judge Allen granted the request but ordered that “the material” be submitted to him by January 31 and that the hearing be held on February 7th.

Before the conclusion of the proceedings, counsel for Mr. Hiken restated his objections to the original postponement of the trial and informed Judge Allen of the proceedings in New Jersey which had been the occasion of the change of the trial date by Judge Sodaro. Counsel stated that “extraordinary cause” within the meaning of Rule 746 had not been shown and that the State should have moved to quash the subpoena served upon Detective Dillon. The court ordered that a transcript of the proceedings before Judge Sodaro be obtained. The court also ruled, “at this time I’m going to deny Mr. Murphy’s motion for an immediate trial.

I guess it it’s a motion for speedy trial.” Proceedings before Judge Allen, February 8, 1978. 11 The court, having read the State’s memorandum in response to appellee’s pending motions addressed to the indictment charging conspiracy, solicitation, and insurance fraud, questioned the State’s Attorney and defense counsel extensively with respect to the matters of law and fact involved before taking the' motions under advisement. He assured counsel that he would rule expeditiously upon the motions. 12 Before adjournment, the court inquired of counsel whether the case had been continued indefinitely by Judge ²⁶⁵ Sodaro or merely “postponed.” The State replied, “It was just continued until such time as the evidence that was subpoenaed from [the] Baltimore City Police Department to [the] New Jersey authorities was returned to the Baltimore City Police Department.” Counsel for the defendant confirmed this statement but added, “But it’s a situation, I think, you know, a rose by any other name and regardless of whether it’s characterized as a postponement or a continuance, I continue to insist upon an immediate trial for my client and have done so at every juncture.” The court then rejoined: “Mr. Murphy [defense counsel], it’s very clear that you are laying the groundwork brick-by-brick. You always ask for an immediate trial and what I’m concerned about is this: maybe I really shouldn’t be concerned about it but we don’t have any control over this continuance if we are dependent upon another jurisdiction and another court system to release some documents and we are now, how many months since indictment? MR.

MURPHY: September was the indictment. THE COURT: September 7th, October, November, December, January, five months, and with Mr. Murphy insisting very strongly at every meeting, insisting on an immediate trial we may be moving towards the point that our courts are going to say that, appellate courts are going to say that a continuance is a postponement. I really think. I don’t know what could be done about it but it seems to me the State ought to make some sort of demand for the return of these records.

I think the burden is on the state to make some motion in that direction. Have you done that as yet? MR. KODECK-.Not as yet, Your Honor.

I believe that the prospects of getting them back are very imminent. THE COURT: Because when Mr. Murphy gets up around six months he’s going to be talking about ²⁶⁶ speedy trial and things like that and I don’t know what the Court of Appeals would do in a situation where we have allowed, not we, but the State has allowed instruments to get out of its hands that delay the trial and have not insisted on getting them back. So, I’ll dispose of all your motions within a day or so and let you know. MR.

MURPHY: Thank you, Your Honor. Again, the issue where the evidence is and why it’s unavailable to the State has again come up and Your Honor is familiar with the history of how it got there and the prejudicial effect it has on my client as proffered the last time we were in court. So, it is for that reason that I request that the indictment be dismissed and that the dismissal order entered very shortly. THE COURT: I will rule on your motions.

That’s the best I can do. I will rule on your motions —.” (Emphasis added.) The court’s ruling on the motions was almost immediately forthcoming. On February 15,1978, Judge Allen (a) dismissed the indictment charging solicitation to commit arson; (b) denied the motion to dismiss the insurance fraud indictment; (c) denied a motion to suppress certain financial records allegedly acquired contrary to Md. Ann. Code art. 11, §§ 224-227 (Supp. 1978); and (d) denied the motion to dismiss the conspiracy indictment, granting the State leave to amend that indictment “by interlineation to add the names of co-conspirators whose identities were known or should have been known to the Grand Jury at the time of indictment.” Further Motions to Dismiss Indictments. On March 2, 1978, counsel for Mr. Hiken filed a motion to dismiss the remaining three indictments, claiming that the State’s “action and inaction” had violated Mr. Hiken’s right to a speedy trial.

The motion stated in part: “7. Nearly six months have passed since the Defendant has been indicted, and the State has taken ²⁶⁷ no action to set these charges for trial on the merits. Defendant again alleges that none of the postponements or continuances requested by the State have been for ‘extraordinary cause’ within the meaning of the above-captioned Rule [746 (b)] because the State has taken no steps to prevent the actions of the federal government which the State alleges to have caused its inability to present its case to a trier o f fact. ” (Emphasis added.) The record contains no response by the State to this motion. It appears that some time in March the evidence was returned by the New Jersey federal authorities.

We are told that the defendant’s counsel was not informed of their receipt. The record does not reflect any action by the State, at that juncture, to obtain a new trial date in accordance with Judge Sodaro’s instructions of December 16, 1977. On May 2, 1978, essentially on the basis of a denial of due process, counsel for Hiken filed a motion to dismiss the indictments and a comprehensive supporting memorandum. The principal grounds for the motion were that: (1) one Monty Artwell, who had previously given testimony under oath before the Baltimore grand jury, and whom Mr. Hiken intended to subpoena as a witness, had given false testimony in New Jersey involving the fire and was subject to a perjury indictment there; 13 and (2) the Maryland State authorities and the New Jersey federal authorities were “engaged in a joint investigation which caused the first postponement of this case and subsequent violations of Defendant’s rights.” The latter violations, as particularized in the motion, were serious, alleging that: State and federal authorities were engaged in an abuse of the grand jury process, the end result of which was to enable Maryland authorities to gather evidence for criminal charges pending before the Criminal Court of Baltimore, which it would not otherwise constitutionally be able to obtain. “The facts of the instant case clearly cry out for the intervention of this Honorable Court,” the memorandum insisted. ²⁶⁸ Judge Allen instructed the State to respond in writing.

Although a reply memorandum was apparently submitted, it is not contained in the record before us. On June 22, 1978, however, Hiken filed a “Second Motion To Dismiss For Lack Of Speedy Trial,” in which it was stated that the State’s answer to the defendant’s May 2nd motion “simply argued that the matters raised therein be deferred until trial.” Appellee’s motion continued: “Specifically and of paramount importance to the instant Motion, the State’s response to the aforegoing Motion mentions absolutely nothing about the Defendant’s claim that the office of the State’s Attorney for Baltimore City and the Baltimore City Police Department has engaged in a deliberate strategy to delay the trial in order to work with the office of the United States Attorney for the District of New Jersey in the hope that the latter law-enforcement agency shall develop evidence not now in the possession of the State. Therefore, the Defendant’s allegations must be taken as true for purposes of the Court’s disposition of this Motion.” (Emphasis in original.) Proceedings before Judge Allen, June 30, 1978. In open court on June 30,1978, 14 extensive colloquies again took place between the court and counsel with respect to the pending motions.

During the course of this hearing, Hiken’s counsel complained again, as he had at virtually every other hearing, that the action of the federal authorities in New Jersey not only made possible the discovery of evidence against Mr. Hiken which normally would not have been available to the State, but that it was also contrary to stated policy of the Department of Justice in connection with the exercise of the power to prosecute a defendant under both ²⁶⁹ federal and state law for the same act or acts. See Claybrooks v. State, 36 Md. App. 295, 304-05, n. 5 , 374 A.2d 365, 371 (1977). That policy, as disclosed in Claybrooks , was based upon a 1959 Memorandum to United States Attorneys from then Attorney General William O. Rogers. It stated that the power to conduct a federal prosecution after a State prosecution "has been used sparingly by the Department of Justice in the past.

The purpose of this memorandum is to insure that in the future we continue that policy. After a State prosecution there should be no federal trial for the same act or acts unless the reasons are compelling.” The federal policy, as represented to the lower court by counsel for Hiken, was, however, that “once there’s a completed State prosecution' the Justice Department will not permit an indictment unless the Attorney General himself authorizes it, so had this case proceeded to trial on December 19, 1977, for better or for worse, whatever the result was for Mr. Hiken, the Justice Department’s policy would have precluded his indictment in New Jersey absent the actual written authorization of the Attorney General of the United States.” The latter statement is not supported by the policy memorandum quoted above from the opinion of this Court in Claybrooks, 15 As previously indicated, there was no evidentiary hearing on June 30, 1978, but counsel for the defendant made a proffer of facts with which the State substantially concurred. ²⁷⁰ At the conclusion of the hearing, appellee’s due process motion filed on May 2, 1978 was denied. The second motion to dismiss for lack of a speedy trial filed on June 22,1978 was granted. The court observed that what “makes the nine months different from any other nine months was the loss to the federal authorities of the evidence required to proceed here, when they really didn’t have to do it and when they could have fought the subpoena and went ahead and tried his case.” Judge Allen concluded that the Barker 16 analysis had been triggered, that appellee’s right to a speedy trial had been repeatedly asserted and that the State’s Attorney had not rebutted the presumption of prejudice which arose from the 9-month, 23-day