State v. Jones

Moylan, J., delivered the opinion of the Court. To dismiss, with prejudice, an indictment for armed robbery, because a defendant claims he was denied a speedy trial, is a severe sanction. It is the final denial of organized society’s right to bring an accused transgressor before the bar of justice. In the face of vexing delays, lesser remedies may well commend themselves: the State may be put to the extraordinary burden of proceeding to trial on short or well-nigh immediate notice; a defendant’s request for pretrial release, on bail or recognizance, may take on additional merit. 1 To say, however, that the people, because they have not yet successfully retooled an overtaxed and ¹⁵ obsolescent system to meet the demands of a computerized age, must forfeit forever the right to proceed against an accused felon, is an extreme and ultimate step to be taken only for the weightiest of reasons.

The words of Justice Cardozo are pertinent, “Justice, though due to the accused, is due to the accuser also ... We are to keep the balance true.” 2 In State v. Lawless, 13 Md. App. 220 , 283 A. 2d 160 , we analyzed at length the Sixth Amendment right to a speedy trial, distilling the teaching of twenty-five decisions of the Court of Appeals and fifty-eight decisions of this Court 3 upon the subject, as well as eight opinions of the Supreme Court which had, as of that time, treated the right. Since the promulgation of that opinion, the Supreme Court has twice addressed itself to the speedy trial issue: in United States v. Marion, 404 U. S. 307 , 92 S. Ct. 455 , 30 L.Ed.2d 468 (1971), and in Barker v. Wingo, 407 U. S. 514 , 92 S. Ct. 2182 , 33 L.Ed.2d 101 (1972). United States v. Marion made explicit what was at best implicit in Lawless as to the moment at which the right to a speedy trial first attaches, at 404 U. S. 320 : ¹⁶ Since the Sixth Amendment, by its terms, provides that “in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial,” we look to the moment when an individual first becomes an “accused” for the engagement of the Sixth Amendment gears which sets the speedy trial clock to running.

In State v. Hamilton, 14 Md. App. 582 , 287 A. 2d 791 , Chief Judge Orth incisively analyzed the holding and impact of Marion . ¹⁵ "[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.” ¹⁶ If Marion resolved a possible ambiguity, Barker v. Wingo changed the Maryland law in one significant regard. It left unchanged our traditional approach to speedy trial analysis to the effect that, in evaluating the claim, four factors come into play: (1) The length of the delay, (2) The reason for the delay, (3) Prejudice to the accused, and (4) Waiver. Hall v. State, 3 Md. App. 680, 685-686 , 240 A. 2d 630 ; Lawless , at 227. We had, however, treated the waiver factor as “a self-contained phenomenon”.

We had held that the failure to demand a speedy trial could, under appropriate circumstances, in and of itself “dispose of a contention that an accused had been denied a speedy trial, no matter what the other factors may involve,” unless the accused showed actual prejudice. Lawless , at 227-229; Fabian v. State, 3 Md. App. 270, 286 , 239 A. 2d 100 . Where waiver did not dispose of the contention, we then looked to the interaction of the three remaining factors, to “the delay-reason-prejudice complex”. In the first full analysis of the speedy trial right ever undertaken by the Supreme Court, Barker ameliorated the foreclosing effect of waiver, in one of its aspects at least.

It rejected the so-called “demand-waiver doctrine,” whereby “a defendant waives any consideration of his right to speedy trial for any period prior to which he has not demanded a trial”. 4 In eschewing the absolutism of the “demand-waiver ¹⁷ doctrine”, however, the Supreme Court by no means relieved a defendant of his responsibility and obligation to demand trial. That factor, although no longer able to operate in a vacuum, nevertheless remains a strong consideration in the ultimate equation. Barker said, at 407 U. S. 528 -529: “We reject, therefore, the rule that a defendant who fails to demand a speedy trial forever waives his right. This does not mean, however, that the defendant has no responsibility to assert his right.

We think the better rule is that the defendant’s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right. Such a formulation avoids the rigidities of the demand-waiver rule and the resulting possible unfairness in its application. It allows the trial court to exercise a judicial discretion based on the circumstances, including due consideration of any applicable formal procedural rule. It would permit, for example, a court to attach a different weight to a situation in which the defendant knowingly fails to object from a situation in which his attorney acquiesces in long delay without adequately informing his client 5 or from a situation in which no counsel is appointed.

It would also allow a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a purely proforma objection. 6 ” Unchanged is our law that a defendant’s conduct which causes delay will not redound to the detriment of the State, ¹⁸ whether the result is reached by simply subtracting this time period from the “delay” factor ab initio or by considering it as “waiver” by affirmative conduct. See Lawless , at 228, n. 8; State v. Oglesby, 8 Md. App. 415, 418 , 260 A. 2d 363 . Barker is very emphatic on this point, at 407 U. S. 529 : “We hardly need add that if delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine, the demand rule aside.” A close reading of Barker makes evident that waiver generally of the right to a speedy trial has not been eroded, but only that variety of waiver formerly inferable from the failure to make a demand. The net effect is that the mere failure to demand a speedy trial is no longer an ipso facto waiver of the speedy trial right, but is rather but one factor to be considered in interaction with the three others.

See State v. Hunter, 16 Md. App. 306, 314-315 , 295 A. 2d 779 . The continuing and heavy impact of non-demand, even in its new role as a constituent factor, is nonetheless made very clear by Barker , at 407 U. S. 532 : “We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” We have now, therefore, as a tool of analysis, the four-factored calculus of delay-reason-assertion of right-prejudice. With these tools, we approach the case at bar. The Delay The appellee, Marion Thomas Jones, was charged with committing an armed robbery on March 14, 1970, upon Oscar Fremont Smith, a fellow construction worker.

No pre-indictment arrest was made. The first formal action in the case was the indictment by the Grand Jury for Prince ¹⁹ George’s County on May 20,1970. That was the day on which the appellee became an “accused”; that was the time at which his right to a speedy trial engaged. On the same day that the indictment was handed down, a bench warrant was issued for the appellee’s arrest.

The complicating factor in the case was that the appellee lived in the District of Columbia. Mrs. Enid Smith, a clerk with the Warrant and Fugitive Squad of the Prince George’s County Sheriff’s Department, testified that she received the bench warrant on May 22, 1970, two days after the indictment was handed down. A routine investigation “checking the employment, last known address, and so forth” was conducted by the Sheriff’s Department. It ascertained the last known address as “2614 University Place, N.W., Washington, D.C.” A cover letter containing that information and a copy of the arrest warrant were forwarded to the Metropolitan Police Department of Washington, D. C., on June 2,1970.

The information furnished by the Prince George’s County Sheriff’s Office to the Metropolitan Police Department as to the appellee’s residence was correct as of the time it was furnished. The appellee did reside at 2614 University Place, N.W., during the spring of 1970. He subsequently moved away. Whether he moved away, however, before the Metropolitan Police had a fair chance to serve him or at some later time during the ensuing year is highly problematical.

At the ultimate hearing on the motion to dismiss the indictment, held on May 15, 1972, the appellee’s efforts to establish just when he left 2614 University Place were hopelessly inconsistent. At one point, he testified that he thought that he had remained at that residence for about a year after the date of the alleged offense. That would have brought him down to March, 1971, and would have given the Metropolitan Police a nine-month opportunity to have reached him at a correct address. At another point in his testimony, however, the appellee stated that he had been living at his present address of 2501 17th Street, N.W., for five months, and that he had lived at 2910 13th Street, N.W., for a year prior to that.

This would have taken him out of 2614 University Place in December, 1970, at the very latest. ²⁰ A third and possibly fourth version of the move from 2614 Univeristy Place entered the picture with the testimony of the appellee’s wife. She was sure that the move away from that address had been effected during the summer months. After tentatively identifying the date of the move as the summer of 1971, she admitted that she could not be sure whether they had moved during the summer of 1971 or the summer of 1970. She thought that the move had been a year or a year and one-half before.

She placed the most recent move from 2910 13th Street, N.W., to 2501 17th Street, N.W., as of “the first of the year”, that is, as of January, 1972. Before that was a year at 2910 13th Street, arguably eliminating the summer of 1971 for the move away from 2614 University Place. If that first move was, indeed, in the summer of 1970, it would have thwarted the efforts of the Metropolitan Police Department to make successful service at what had been theretofore a correct address. In any event, for whatever the reason, the Metropolitan Police failed to come up with the appellee.

On October 23,1970, the State’s Attorney’s Office received the permission of the court to place the case upon the stet docket for the reason that the appellee had not yet been located or arrested. The bench warrant, however, remained in full force and effect. The State made it clear that the entry of the stet was only for “administrative purposes,” in order not to carry an inactive case on the active docket. It was the clear intent of the State to remove the case from the stet docket and to proceed with trial immediately upon the apprehension of the appellee.

The entry of the stet, moreover, does not appear to have affected in any fashion whatsoever the effort, however diligent or however lackadaisical it may have been, to locate the appellee. The stet appears to have been a mere bookkeeping device. The Sheriff’s Office of Prince George’s County received its first official return upon its request to the Metropolitan Police Department on September 14, 1971. The formal response was, “Unable to locate, subject not living at given address.” This return came some fifteen months after the request had been forwarded. ²¹ Mrs. Smith then described the standard procedures to be followed after a responding jurisdiction has indicated that it is unable to locate a wanted suspect.

She indicated that those procedures were followed in the case at bar. The State’s Attorney’s Office was asked whether it would authorize extradition of the appellee. It responded, on October 5, 1971, that it would so authorize. This triggered two implementing procedures.

Authorization for extradition within a limited geographic radius is enough to place a look-out for the appellee on the M.I.L.E.S. computer. 7 That means that if at any time a wanted person should show up anywhere in Maryland, or in surrounding jurisdictions whose computerized systems are connected with our own, for a routine traffic charge or for any other reason, he would be immediately “red-flagged” as wanted. The even fuller authorization by the State’s Attorney’s Office to extradite the appellee from any point in the United States brought the F.B.I. into the picture. That blanket authorization of extradition is their prerequisite for taking out a Fugitive Warrant and for apprehending the wanted person wherever he may be found in the country. In the act of putting this additional machinery into operation, the Sheriff’s Department fed in certain supplementary information about the appellee.

They had a new address, which turned out not to be the appellee’s address but which was that of the appellee’s brother. Using the brother’s address, the F.B.I. located and arrested the appellee on March 15, 1972. On March 23, he waived formal extradition and was returned to Maryland. He was brought before the Circuit Court for Prince George’s County for arraignment on March 29,1972.

At that time, the State asked to remove the case from the stet docket. When the appellee objected, the arraignment judge declined to make a ruling but rather set the case down for a further hearing upon the State’s motion to remove the case from the stet docket, as well as on the appellee’s habeas corpus petition seeking immediate release. That hearing was held on May 15, 1972, before Judge James H. Taylor. Judge Taylor denied the habeas corpus petition, granted the State’s ²² motion to remove the indictment from the stet docket, and then further granted the appellee’s oral motion, made on that day, to dismiss the indictment for the lack of a speedy trial.

The State appeals that granting of the motion to dismiss. From that history, we must now reckon the period of delay. The total lapse of time from the appellee’s indictment until Judge Taylor’s granting of the motion to dismiss the indictment was just five days less than two years — from May 20, 1970 to May 15, 1972. Recognizing, however, that the right to a “speedy trial” is not the right to an immediate trial, and that time must be allowed for the orderly processing of the case, we reckon as “delay” only the passage of time beyond that which is the obvious requirement of orderly procedure.

We are, therefore, not concerned with the initial two-week period between May 20 and June 2, 1970. During that time, the case was processed with commendable expedition, as the bench warrant followed the indictment, the bench warrant was forwarded to the Prince George’s County Sheriffs Department, routine checks were completed there, and the arrest warrant was forwarded to the Metropolitan Police Department of Washington, D.C. Nor are we concerned with the period between October 5, 1971, and May 15, 1972. After October 5,1971, when both the M.LL.E.S. computer and the F.B.I. were alerted to be on the look-out for the appellee and the State was committed to bear the expense of extradition from any place in the country, the State had done all that it could reasonably have been expected to do. From the arrest of the appellee on March 15, 1972, through his arraignment on March 29 and the hearing on May 15, the processing of the case moved forward with admirable dispatch.

Even before we examine the question of fault, the only period of true “delay” to be reckoned with is, therefore, that period between June 2, 1970, and October 5,1971 — a period of sixteen months. The Threshold Question of “Constitutional Dimension” Our threshold question in considering speedy trial claims ²³ is that of whether there has been any true “delay” in the constitutional sense. If, upon preliminary examination, we may determine that there has been no “delay” of “constitutional dimension” — if the claim of “speedy trial” denial is clearly frivolous — if the passage of time is patently not inordinate —- we are relieved of all necessity to make further analysis. If this threshold of “constitutional dimension” has not been crossed, there is no need for the delicate weighing of social values in order “to balance the right of the individual to obtain a speedy trial against the right of society to punish those who are properly shown to have committed a crime against it.” There is no need to look to the subtle interaction of the four factors: (1) length of delay, (2) reason for delay, (3) prejudice to the accused, and (4) assertion of the right by the accused.

State v. Lawless, at 229-232. Under the facts of this case, the appellee has successfully crossed the theshold of “constitutional dimension”. A lapse of sixteen months between the initial request to the Metropolitan Police Department and the next escalation of the search process is significant and it is worthy, under the Sixth Amendment, of further analysis. The Reason for Delay Since the only delay which is computed in the first instance is that chargeable to the State, an examination of the reason for that delay becomes, by definition, an examination of motivation on the part of the State or, in many of the cases, “fault” on the part of the State, either in affirmatively bringing about the delay or in inadvertently permitting it to occur.

Barker v. Wingo recognized, as we did in Lawless , that “fault” is a relative notion and that different weights should be assigned to different reasons for delay. The Supreme Court said, at 407 U. S. 531 : “Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to ²⁴ different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government.

A more neutral reason such as negligence or over-crowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.” There was in the case at bar clearly no “purposeful or oppressive” delay, motivated by “bad faith” or representing “a deliberate choice for a supposed advantage.” In terms of assessing “fault,” the behavior of the State clearly did not fall under the interdict of “purposefulness” or “oppressiveness”. Nor was there any persistent refusal to move forward in the face of repeated demands, requests and efforts by an accused to bring the case on for trial. The situation at bar was not such that the attitude of the State could be described as “capricious,” “arbitrary” or “unreasonable” — the sort of motivational attitude we deplored in Caesar v. State, 10 Md. App. 40, 49-50 , 267 A. 2d 750 .

The case at bar presents us not with an instance of deliberate, knowing inaction but rather with an instance of what might, at the very worst, be characterized as “inadvertent inaction” or as “halting and less-than-diligent action”. Lawless , at 237-241. Fault, if any, was minimal or for -what Barker referred to as a “more neutral reason”. It is by no means certain, moreover, that there was indeed any fault, even of this less damning variety.

During all but the final three weeks of the period of delay now before us for analysis, the arrest warrant was in the hands of the Metropolitan Police of the District of Columbia. The request was forwarded to them on June 2, 1970. They replied that they had failed to locate the appellee on September 14,1971. Between September 14 and October 5, the Sheriffs ²⁵ Department of Prince George’s County moved swiftly to notify the State’s Attorney’s Office, to obtain authority for extradition, to place a look-out for the appellee on the M.I.L.E.S. computer, and to request the F.B.I. to issue a Fugitive Warrant.

If the appellee moved from University Place early in the summer of 1970, as well he may have from the vague and scanty evidence before the court below, then the Metropolitan Police were quite understandably “unable to locate” him. It is true, as he reminds us, that the appellee had not dropped from the face of the earth. It is equally true, regrettably but realistically, that, however short it may fall of the resourcefulness of an Inspector Javert or the Northwest Mounted Policeman of childhood fable, the service of process in urban centers today consists of little more than a one-shot trip to the single address appearing on the face of the paper to be served. For understaffed and overtaxed sheriff’s offices and police departments, the handling of thousands of routine requests on an assembly line basis has become, lamentably, the standard, even if not the ideal, of urban court administration.

When suspects drop, even unwittingly, from sight, law enforcement is frequently reduced to waiting for them to show up, sometime, somewhere. The intrepidity of a Henry M. Stanley cannot be the minimum standard for the tolling of the speedy trial calendar. Moreover, even if the move from University Place came later and even if the Metropolitan Police failed in their mission, the State of Maryland will not be held to answer because some other commonwealth’s “constable blundered.” The appellee’s ascription of fault to Maryland is, therefore, reduced to a single plaint. He argues that Prince George’s County should have acted sooner to escalate the search, by plugging in the M.I.L.E.S. computer or by calling out the F.B.I. even pending formal acknowledgment of failure by the Metropolitan Police.

With respect to M.I.L.E.S., no evidence was offered as to when that recent and innovative tool became operational or as to what liability, by way of commitment to extradition, might be ²⁶ incurred by feeding a “wanted notice” into its memory cells. The utilization as well as the development of M.I.L.E.S., and similar imaginative new approaches, by Maryland, and by others, represents a highly commendable effort to fashion new tools to deal with today’s almost overwhelming problems of investigative and prosecutorial mass production. We will not “fault” either the Sheriff’s Department or the State’s Attorney’s Office of Prince George’s County as they struggle, yet imperfectly perhaps, to develop such new and better techniques. Nor will a commitment to carte blanche all-points extradition, the prerequisite for calling in the F.B.I., be accepted as the measure of due diligence.

Extradition budgets are not only finite but generally straitened. We do not read the Sixth Amendment to say that a county of Maryland will be foreclosed from proceeding against a middle echelon fugitive it should fortuitously chance upon, simply because it has been unwilling, or indeed unable, to commit itself, sight unseen, to bear hypothetical extradition costs from Nome or Honolulu. If the evidence upon the merits should ultimately establish that the appellee came from without the State, committed a crime here, and then left, the law’s delay as to him was largely because of the jurisdictional complications which he, wittingly or unwittingly inflicted upon it. For the State’s part, the worst that could be said is not that the proper steps were not taken initially, but only that the Sheriff’s Department or the State’s Attorney’s Office either lacked the resources, or had not devised a technique, for obtaining periodical status reports on dormant cases.

Fault, if any, on the part of Prince George’s County was minimal. Assertion of the Right This factor, in the equation at bar, is zero. The appellee did not know of the charges against him and was, therefore, in no position to make demand. His silence, under the circumstances, cannot redound to his detriment.

Conversely, the State cannot be charged with indifference or inaction in the face of repeated demands for action, since