State v. Hunter

Gilbert, J., delivered the opinion of the Court. The State of Maryland, appellant, has appealed the entry by a judge in the Criminal Court of Baltimore of a “general dismissal” of an indictment that charged ³⁰⁸ Charles Ernest Hunter, appellee, with the crimes of robbery with a deadly weapon, assault, and related charges. The State contends that the judge abused his discretion in “ordering dismissal of the indictment.” The record reveals that the appellee was arrested on the night of September 3, 1971, along with Charles Howard and Tanya Robinson, 1 for the assault and the robbery with a deadly weapon of a taxicab driver. The amount taken was two dollars.

Counsel was appointed to represent the appellee on October 12, 1971, but thereafter withdrew because appellee’s privately retained attorney entered his appearance. The latter attorney filed a “Motion To Dismiss” on December 13, 1971, in which he alleged, inter alia, that the appellee had been incarcerated sans' indictment from September 3, 1971, that he had made efforts to obtain a speedy trial, and that he had “lost contact” with “many important witnesses.” The motion requested the dismissal of all “charges against [appellee] or in the alternative to release [appellee] on his own recognizance until such time as the State sees fit to present his case to the Grand Jury of Baltimore City.” 2 The indictment was brought forth on January 24, 1972. The motion to dismiss was heard on February 17, 1972, and the “general dismissal” was entered on March 1, 1972. At the hearing on the motion, appellee’s counsel recited the history of the case, in which he included his endeavors to have the matter taken before the Grand Jury.

He further informed the court that the file had been misplaced in the office of the Clerk of the Criminal Court of Baltimore. Neither of the contentions was denied by the State. The main effort, however, on the part ³⁰⁹ of the appellee was directed toward a showing of actual prejudice to the appellee occasioned by the State’s Attorney’s delay in taking the case before the Grand Jury. The delay in the instant case was approximately 41/^ months from the date of arrest to the date of indictment, one month from the filing of the motion to dismiss to the date of the indictment, and 24 days from the date of the indictment to the date of the hearing on the motion.

The State here argues that the “lower court’s dismissal of the instant indictment was couched in the terms ‘general dismissal’ and that neither legal nor factual findings were made in support of the court’s conclusion.” We note from the record that the trial judge did state: “I could prepare [specific findings] if it’s necessary. I have gone over the cases and I have gone over the memorandum of the State and of the defendant and I discussed or told you, I think, earlier what I propose to do. But if it’s needed — I would not be able to give it forthwith, but I will do it if you would request it.” The Assistant State’s Attorney responded that the State “would not request it at this time.” They apparently did not request it at any other time either, as the record is devoid of such specific findings. The right to a speedy trial is a guarantee afforded to every accused by the Sixth Amendment to the Constitution of the United States and by Art. 21 of the Maryland Declaration of Rights.

The Supreme Court, in United States v. Ewell, 383 U. S. 116 , 15 L.Ed.2d 627 , 86 S. Ct. 773 (1966), speaking through Mr. Justice White, said that the purpose of the Sixth Amendment is: “[T]o prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of the accused to defend himself.” ³¹⁰ Mr. Justice Powell recently said in Barker v. Wingo, 11 Cr. L. 3174, 3175-3176 (1972) : “The right to a speedy trial is generically different from the other rights enshrined in the Constitution for the protection of the accused. * * * «* * * [U]nlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused’s ability to defend himself.” The right to a speedy trial is relative, and the time within which the trial must be had depends on the facts and circumstances of each particular case. Barker v. Wingo, supra; State v. Lawless, 13 Md. App. 220, 227 , 283 A. 2d 160 (1971) ; Stevenson v. State, 4 Md. App. 1, 10-11 , 241 A. 2d 174 (1967). The facts and circumstances in each particular case should be viewed in the light of four factors: (1) The length of the delay, (2) The reason for the delay, (3) Prejudice to the accused, and (4) Waiver by the accused.

State v. Lawless, supra; Caesar v. State, 10 Md. App. 40, 42 , 267 A. 2d 750 (1970) ; Barnett v. State, 8 Md. App. 35, 39 , 257 A. 2d 466 (1969) ; Graham v. State, 6 Md. App. 458, 461 , 251 A. 2d 616 (1969) ; Frazier v. State, 5 Md. App. 88, 92 , 245 A. 2d 614 (1968) ; Hall v. State, 3 Md. App. 680, 685-686 , 240 A. 2d 630 (1968). In a sesquipedalian opinion, State v. Lawless, supra, Judge Moylan characterized the first, second and third factors set forth above as “The Delay — Reason—Prejudice Complex.” It is that “complex” that we consider in the instant case because waiver, the fourth factor, is not applicable here. The Supreme Court said in United States v. Marion, 404 U. S. 307 , 92 S. Ct. 455 , 30 L.Ed.2d 468 (1971) : “Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he ³¹¹ is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy and create anxiety in him, his family and his friends. These considerations were substantial underpinnings for the decision in Klopfer v. North Carolina, [ 386 U. S. 213 , 87 S. Ct. 988 , 18 L.Ed.2d 1 (1967)]; see also Smith v. Hooey, 393 U. S. 374, 377-378 , 89 S. Ct. 575, 576-577 , 21 L.Ed.2d 607 (1969).

So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engages the particular protections of speedy-trial provisions of the Sixth Amendment. Invocation of the speedy trial provision thus need not await indictment, information or other formal charge. * * *.” (Emphasis supplied). Thus it is patent that in order to calculate a constitutionally proscribed delay in bringing a matter to trial, we must look back to the date of the commencement of a prosecution by way of arrest, warrant, information or indictment, whichever shall first occur, and then forward to the date of the trial or hearing. We have previously held that the measure for determining a speedy trial began by way of “warrant, information or indictment,” State v. Lawless, supra.

We now, in the light of United States v. Marion, supra, modify our earlier holdings. See also State v. Hamilton, 14 Md. App. 582 , 287 A. 2d 791 (1972). In the instant case, we do not perceive the delay to be of constitutional dimension. Chapter 212, Acts of 1971, now codified as Art. 27, § 591, says in pertinent part: “(a) Within two weeks after the arraignment of a person accused * * *, or within two weeks after the filing of an appearance of counsel * * * for an accused in any criminal mat ³¹² ter, whichever shall occur first, a judge or other designated official [of the court] in which the matter is pending, shall set a date for the trial of the case, which date shall not be later than six months from the date of the arraignment * * *, or the appearance * * * of counsel for the accused, whichever occurs first.

The date established * * * shall not be postponed except for extraordinary cause shown * * * and only with the permission of the administrative judge * * * 99 The Court of Appeals of Maryland was authorized to establish rules to implement the statute. Rule 740 of the Maryland Rules was adopted June. 1, 1972, and