State v. Kanneh

⁶⁸⁴ GREENE, J. This case arises from a criminal proceeding in which Mahamu Kanneh was charged with sexual abuse of a minor and related offenses. Although Kanneh was arrested on August 18, 2004, his trial was repeatedly postponed for different reasons, mainly the time it took to process the DNA evidence, and the inability to secure a qualified interpreter in Kanneh’s native language of Vai. 1 Finally, on July 17, 2007, the court dismissed the case on the grounds that Kanneh’s right to a speedy trial had been violated. The State appealed to the Court of Special Appeals, and before the intermediate appellate court could hear the case, we granted certiorari. State v. Kanneh, 402 Md. 352 , 936 A.2d 850 (2007).

We shall hold that the 35 month delay in this case, while of sufficient length to require us to engage in a speedy trial analysis, does not justify a conclusion that Kanneh’s right to speedy trial was violated. FACTUAL AND PROCEDURAL BACKGROUND Montgomery County Police arrested Kanneh for sexual abuse of a minor child on August 18, 2004. On December 3, 2004, Kanneh was charged by indictment, in the Circuit Court for Montgomery County, with sexual abuse of a minor and related offenses. 2 Kanneh’s attorney entered her appearance on January 18, 2005, and a trial date was set for April 5, 2005. At a scheduling conference held on January 28, 2005, the State pointed out that the DNA evidence would likely not be ready in time for the April 5, 2005 trial date, and Kanneh’s counsel ⁶⁸⁵ agreed, noting that the defense also needed time to review the results.

Defense counsel stated “we certainly don’t have a problem with [ ] June 6th.” The trial date was rescheduled for June 6, 2005, and both parties agreed to another status conference on March 4, 2005. During that same January 28, 2005 scheduling conference, Kanneh first disclosed to the trial court that English was his second language and requested an interpreter for his native language, Vai. 3 At the status conference on March 4, 2005, the State indicated that the DNA evidence had still not been processed, and the parties set the date of May 27th, 2005 for a motions hearing. On May 27, 2005, defense counsel requested a continuance because she had not yet received the DNA results, nor had the State. At that same hearing, Kanneh, through his attorney, waived his right to be tried within 180 days, pursuant to Md.Code (2001), § 6-103 of the Criminal Procedure Article. 4 On May 31, 2005, the court rescheduled the trial for November 28, 2005, as a result of the unavailability of the DNA evidence. ⁶⁸⁶ At a motions hearing on November 1, 2005, the parties discussed their efforts to secure an interpreter for Kanneh.

Neither the State, nor Kanneh’s attorney had been able to locate an interpreter, and for that reason, the trial judge postponed the case until January 23, 2006. At a motions hearing on January 13, 2006, although it appeared that the parties had found an interpreter, they realized that this interpreter was not qualified to perform simultaneous interpretation for a trial that had the potential to last four or five days. As a result, the trial judge postponed the trial date until May 8, 2006. Again, at a motions hearing on May 3, 2006, the parties brought to the court’s attention the likelihood that they would be unable to secure an interpreter by the trial date, and the trial date was postponed until October 16, 2006.

In anticipation of that trial date, at a hearing on September 22, 2006, the parties met for a motions hearing, where the State asked the court to proceed to trial without an interpreter. The State presented the court with a transcript of Kanneh’s interview with the police, which was conducted in English. In response, Kanneh’s counsel noted that, even in the transcript, there were instances where the detective had to explain words and instances where Kanneh’s answer was inappropriate to the question being asked. Kanneh’s attorney also noted that without an interpreter to help her communicate with Kanneh, she was unable to determine whether the problems communicating were the result of a language barrier or a mental health issue.

The court did not rule on the State’s motion to proceed without an interpreter, and instead ordered a competency evaluation. On that same date, the court postponed the trial date to February 26, 2007. Someone was finally secured 5 to interpret the proceedings, and she was present during a motions hearing on February 16, 2007. On that date, however, the interpreter indicated that she had “just had some pretty serious surgery” and the ⁶⁸⁷ court rescheduled the trial date for July 30, 2007, because it would be “cruel and unusual to expect a person having just had some major surgery to be compelled to be here in discomfort.” On February 23, 2007, Kanneh filed a written opposition to the February 16, 2007 postponement and at a status conference on March 1, 2007, indicated his intent to file a motion to dismiss on the basis that his right to a speedy trial had been violated.

On June 20, 2007, Kanneh filed a “Memorandum of Law on Violation of Mr. Kanneh’s Speedy Trial Rights.” On July 17, 2007, the court granted Kanneh’s motion to dismiss. In doing so, the trial court addressed the four factor test established in Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972). The court determined that Kanneh had been prejudiced because he had been on pretrial supervision for almost three years. Weighing the lengthy delay in this case and the reasons for the delay, namely the DNA evidence and the need for an interpreter, the court came to the conclusion that Kanneh’s right to a speedy trial had been violated.

The State filed a timely notice of appeal to the Court of Special Appeals. Before any proceedings in the intermediate appellate court, we granted certiorari. State v. Kanneh, 402 Md. 352 , 936 A.2d 850 (2007). DISCUSSION We are asked in the present case to determine whether Kanneh’s right to a speedy trial has been violated.

This Court has consistently applied the four factor balancing test announced by the U.S. Supreme Court in Barker to address allegations that a defendant’s right to a speedy trial, as provided by the Sixth Amendment of the United States Constitution and Article 21 of the Maryland Declaration of Rights, has been violated. Glover v. State, 368 Md. 211, 221 , 792 A.2d 1160, 1166 (2002). In Barker , the Supreme Court rejected a bright-line rule to determine whether a defendant’s right to a speedy trial had been violated, and instead adopted “a balancing test, in which the conduct of both the prosecution ⁶⁸⁸ and the defendant are weighed.” Barker, 407 U.S. at 530 , 92 S.Ct. at 2191-92 , 33 L.Ed.2d at 116 . The Court identified four factors to be used in determining whether a defendant’s right to a speedy trial has been violated: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. at 530 , 92 S.Ct. at 2192 , 33 L.Ed.2d at 117 .

None of these factors are “either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.” State v. Bailey, 319 Md. 392, 413-14 , 572 A.2d 544, 554 (1990) (quoting Barker, 407 U.S. at 533 , 92 S.Ct. at 2193 , 33 L.Ed.2d at 118 .). I. Length of Delay This Court has noted that the first factor, the length of the delay, is a “double enquiry,” because a delay of sufficient length is first required to trigger a speedy trial analysis, and the length of the delay is then considered as one of the factors within that analysis. Glover, 368 Md. at 222-23 , 792 A.2d at 1166-67 .

We have also remarked that for purposes of a speedy trial analysis, the length of the delay is measured from the date of arrest. Divver v. State, 356 Md. 379, 388 , 739 A.2d 71, 76 (1999). In the present case, there was a delay of approximately 35 months between the time Kanneh was arrested, and the date Kanneh’s trial was set to begin. We have previously determined that a delay of one year and 14 days “was sufficiently inordinate to constitute a ‘triggering mechanism’ ” such that this Court should engage in a speedy trial balancing analysis.

Epps v. State, 276 Md. 96, 111 , 345 A.2d 62, 72 (1975); see also Glover, 368 Md. at 223 , 792 A.2d at 1167 (explaining that this Court has “employed the proposition that a pre-trial delay greater than one year and fourteen days was ‘presumptively prejudicial’”); Brady v. State, 291 Md. 261, 265 , 434 A.2d 574, 576 (1981) (where the State admitted that a fourteen month delay established a prima facie speedy trial claim). Therefore, we hold that the 35 month delay in this case was sufficiently long such that we should engage in an ⁶⁸⁹ analysis to determine whether Kanneh’s right to a speedy trial was violated. With regard to the length of the delay as a factor in the speedy trial analysis, the Supreme Court said in Barker : “We find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months.” Barker, 407 U.S. at 523 , 92 S.Ct. at 2188 , 33 L.Ed.2d at 113 (holding that even though a delay of five years was extraordinary, the fact that the defendant was minimally prejudiced and did not request a speedy trial counterbalanced the extraordinary delay). Instead, the Court considered the length of the delay as one factor to be used in determining whether the defendant’s right to a speedy trial had been violated.

The Court also noted that the length of the delay “is necessarily dependent upon the peculiar circumstances of the case.” Barker, 407 U.S. at 530-31 , 92 S.Ct. at 2192 , 33 L.Ed.2d at 117 . In particular, “the delay that can be tolerated is dependent, at least to some degree, on the crime for which the defendant has been indicted.” Glover, 368 Md. at 224 , 792 A.2d at 1167 . At a hearing on September 22, 2006, both parties in this case agreed that this was a “very complicated” child abuse case because it involved the presentation of DNA evidence. With respect to DNA evidence and length of delay, this Court has said: “DNA evidence may provide that exactness, and to the extent that the delay is not inordinate, society may weigh the precision which DNA evidence potentially provides more heavily than proceeding with a murder trial without such evidence in the name of expediency.” Glover, 368 Md. at 224 , 792 A.2d at 1168 .

Furthermore, we note that, of the four factors we weigh in determining whether Kanneh’s right to a speedy trial has been violated, “[t]he length of delay, in and of itself, is not a weighty factor.” Glover, 368 Md. at 225 , 792 A.2d at 1168 . See also Erbe v. State, 276 Md. 541, 547 , 350 A.2d 640, 644 (1976) (noting that “delay is the least conclusive of the four factors identified in Barker”) (quoting U.S. v. Brown, 354 F.Supp. 1000, 1002 (E.D.Pa.1973)). Although the delay of 35 ⁶⁹⁰ months in this case is certainly sufficient to merit constitutional scrutiny, the length of the delay is the least determinative of the four factors that we consider in analyzing whether Kanneh’s right to speedy trial has been violated.

II

Reasons for Delay We balance the length of the delay against three other factors, one of which is the reason for the