State v. Lawless

Moylan, J., delivered the opinion of the Court. The propensity of the appellee, Richard William Lawless, to transgress the criminal law with essential contemporaneity on both sides of the Prince George’s County-Montgomery County line has once again thrown sand into the overtaxed machinery of court, prosecutor’s office, clerk’s office, sheriff’s office and Department of Correction. For the second time within the decade vis-a-vis this appellee, that machinery has malfunctioned. In Lawless v. State, 3 Md. App. 652 , we dealt with his contention that he had there been denied his constitutional right to a speedy trial before his conviction in Montgomery County.

There had been an eleven-month delay between indictment on April 6, 1966, and his receipt of that indictment or even informal notice thereof on March 1, 1967. The apparent reason for the delay was that he had been, during the interim, “incarcerated either in Prince George’s County or in the House of Correction.” We there dismissed his speedy trial contention because he had not shown that he had “suffered actual prejudice caused by the undue delaying tactics of the State.” Lawless v. State, supra, 660-661. In the situation at bar, the appellee finds himself in similar straits, but for the fact that the trial priorities between the two counties have now been reversed and the eleven-month period between indictment and notice of indictment has now lengthened to eighteen months. On December 19, 1968, the appellee was arrested in Montgomery County for a series of burglaries, house ²²³ breakings and larcenies.

The Montgomery County authorities notified police officials in Prince George’s County. On February 5,1969, two detectives from Prince George’s County interviewed the appellee at the Montgomery County Detention Center. As a result of information there gathered, the appellee was indicted by the Grand Jury for Prince George’s County on April 2, 1969, on charges of housebreaking. During this, his latest odyssey through the perils of law enforcement, the appellee journeyed from the Montgomery County Detention Center to the Clifton T. Perkins State Hospital to the Patuxent Institution.

The process of Prince George’s County was, at best, apparently never closer than one full step behind him. On April 7, 1969, five days after the appellee’s Prince George’s County indictment, a Writ of Habeas Corpus Ad Testificandum was sent to the sheriff of Montgomery County for service upon the appellee in order to bring him before the Prince George’s County Circuit Court for arraignment. For whatever reason, the appellee was not produced. On September 29, 1970, a Writ of Habeas Corpus Ad Testificandum was sent to the Commissioner of the Department of Correction for service upon the appellee.

The record is silent as to its return. On October 1, 1970, a Writ of Habeas Corpus Ad Prosequendum was sent to the Patuxent Institution for service upon the appellee. On October 8, 1970, the appellee was produced and arraigned in Prince George’s County. Following the arraignment on October 8, defense counsel was appointed for the appellee on October 22.

On October 29, a Motion for Discovery and Inspection was filed on the appellee’s behalf. On November 5, it was noted in the records of the court that the State’s Attorney’s Office had granted full informal discovery to counsel for the appellee. On December 31 a Motion to Suppress Evidence was filed. Also, on December 31, the appellee filed a Motion to Dismiss the Indictment against him because of the failure of the State to grant him a speedy trial.

After a hearing before Judge William H. McCul ²²⁴ lough on January 21, 1971, the Motion to Dismiss was granted. The State appeals. Between the arraignment on October 8, 1970, and the granting of the Motion to Dismiss on January 21, 1971, there is no question but that the appellee’s case was processed with commendable expedition. The only time period that concerned the court below and that concerns us now is the eighteen-month period between indictment on April 2, 1969, and arraignment on October 8, 1970.

THE “DUE PROCESS” CLAIM At the hearing below and before us, the appellee advanced two allegedly distinct constitutional claims. He contended firstly that, completely aside from any “speedy trial” claim under the Sixth Amendment, he was denied “due process of law” generally under the Fourteenth Amendment, in that the lack of timely notice of the charges against him frustrated his efforts to prepare a proper defense to those charges. It is difficult to grasp the fine distinction he attempts to draw between this and his more specific Sixth Amendment claim. To the extent to which the failure to give timely notice of charges creates some conceivable “due process” right beyond that involved in the question of a “speedy trial”, we feel as we did in Stevenson v. State, 4 Md. App. 1 , 17-18: “The appellants were apprised of the crimes charged by the indictments ultimately delivered to them and, in view of our holding that their defense was not prejudiced by the delay in trial and as they have not yet been tried (since 30 August 1967 by their specific request), they have received the indictments in due time to plead and to prepare for their defense.

Although it may be that the appellants were not furnished copies of the indictments ‘as soon as practicable’ after they were prepared, Rule 719 a provides no sanction for violation of this requirement and prosecution is not precluded ²²⁵ thereby in the absence of a constitutional violation. See Schuette v. State, 228 Md. 340; Ballam v. Warden, 196 Md. 644 . We cannot justify the failure of the State to furnish the appellants copies of the indictments promptly, but, under the circumstances of this case, we find no denial of their constitutional rights.” 1 If there be any general “due process” claim the appellee is asserting which is not subsumed within the “prejudice” aspect of the “speedy trial” consideration, it would appear to be directed at the ultimate integrity of the trial itself. That being the case, the claim is premature.

It should await appellate review of an actual conviction, so that we could then consider whether the appellee had, indeed, been denied “liberty or property without due process of law.” 2 Suffice it to say that the hearing judge appeared clearly to base his decision exclusively on the specific Sixth Amendment right. THE “SPEEDY TRIAL” CLAIM We turn, therefore, to a consideration of the appellee’s second contention — that he was denied a “speedy trial” under the specifics of the Sixth Amendment 3 as applied to the states via the Fourteenth Amendment. Klopfer v. North Carolina, 386 U. S. 213 . ²²⁶ Aside from making it clear that the Sixth Amendment right to a “speedy trial” is binding upon the states, the Supreme Court has given little guidance as to the specific content of the right and little direction as to precisely how the guarantee is to be implemented. As was noted by Mr. Justice Brennan, in his concurring opinion in Dickey v. Florida, 398 U. S. 30 , at 40: “It is timely to note that the Court has as yet given scant attention to these and other questions essential to the definition of the speedy-trial guarantee.

Before Klopfer , only three of our opinions dealt at any length with the right, and each was decided with little analysis of its scope and content. See Beavers v. Haubert, 198 U. S. 77 , . . . (1905) ; Pollard v. United States, 352 U. S. 354 , . . . (1957) ; United States v. Ewell, 383 U. S. 116 , . . .

(1966). Klopfer itself attempted no extensive analysis; nor did our later decision, Smith v. Hooey, 393 U. S. 374 , . . . (1969). And today we do not consider the effect of the application of the Speedy Trial Clause to the States.

Thus, although we said in Klopfer that the right to a speedy trial is ‘one of the most basic rights preserved by our Constitution,’ ... a guarantee ‘as fundamental as any of the rights secured by the Sixth Amendment,’ ... we have yet even to trace its contours.” The Court of Appeals has had occasion to deal with the “speedy trial” question in 25 reported opinions. During the existence of this Court thus far, we have had to deal with the same question in a grand total of 58 reported opinions. 4 From this massive corpus of case law, ²²⁷ certain fundamental principles have been thoroughly distilled. Pre-eminent is that the right to a speedy trial is a relative one and the time within which trial must be had to satisfy the constitutional guarantee depends on the facts and circumstances of the particular case. 5 In evaluating those facts and circumstances on a case-by-case basis, four factors 6 come into play: (1) The length of the delay, (2) The reason for the delay, (3) Prejudice to the accused, and (4) Waiver by the accused. WAIVER Waiver will, in and of itself, dispose of a contention that an accused has been denied a speedy trial, no matter what the other factors may involve. 7 Waiver is a self- ²²⁸ contained phenomenon. 8 In the case at bar, however, no ²²⁹ evidence was adduced that the appellee had ever been informed of the charges pending against him and was ever, therefore, in a position to make any demand or request for a prompt disposition of those charges.

Waiver is, as a result, no factor in this case. THE DELAY-REASON-PREJUDICE COMPLEX “The other three factors are relative and must be considered together in arriving at a decision in each case.” Hall v. State, 3 Md. App. 680, 686 . In this three-factored analysis, the “delay” factor is the initial and primary object of examination. The “reason” factor and the “prejudice” factor are, respectively, its cause and effect.

They represent the possible “fault” that led to the delay and the possible “harm” that flowed from the delay. THE THRESHOLD QUESTION OF “CONSTITUTIONAL DIMENSION” Before proceeding to an analysis of possible causation and possible consequence, however, we need know first whether there was, indeed, any delay and, if so, whether it was a delay of constitutional proportions. In reckoning delay, it is well settled that for “speedy trial” purposes, we look only at the time from the commencement of the prosecution (by way of warrant, information or indictment) to the time of trial. Although a general “due process” right may be involved, there is no “speedy trial” right guarding against undue delay in the pre-indictment or pre-arrest phase of a criminal proceed ²³⁰ ing. 9 Nor is there any “speedy trial” right guarding against undue delay in the entertainment and disposition of a Motion for a New Trial, 10 or of an appeal, * 11 or of a defective delinquency determination. 12 It is also well settled that in computing “delay,” we are concerned only with that passage of time fairly attributable to the State and not with the passage of time which is attributable to the tactics or other actions of the accused. 13 In looking then at the period of time taken by the State to bring a “case” to trial, our threshold question is whether that period is of “constitutional dimension” — that is, Has there been, in fact, any true “delay” in the constitutional sense?

Recognizing that the right to a “speedy trial” is not the right to an immediate trial, 14 but that time must be allowed for reasonable preparation on the part of the prosecution and for the orderly process of the case from indictment to retention (or appointment) of counsel to arraignment to trial, 15 we reckon as “delay” only the passage of time beyond that which is the obvious requirement of orderly procedure. If, upon preliminary examination, we may determine that there has been no “delay” of “constitutional dimension” ²³¹ — 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. 16 - 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.” Barnett v. State, 8 Md. App. 35, 38-39 . There is no need to look to the subtle interaction of the three factors: (1) the length of delay, (2) reason for delay, and (3) prejudice to the accused. There is no need to consider the question of waiver, hereinbefore discussed.

IrT the present case, the appellee has successfully crossed the threshold of “constitutional dimension.” A lapse of eighteen months between indictment and arraignment is significant and it is worthy, under the Sixth Amendment, of further analysis. It is, furthermore, clear that the source of the delay was the State. It was the ²³² State which was unable to produce the appellee for speedier arraignment, although he was at all times somewhere within its custody. It was the State which was unable to effect service of the indictment upon the appellee, which notice would have imposed upon him a mutual responsibility for getting his case to trial lest he waive his right to complain.

The hurdle of “constitutional dimension” having been cleared and waiver not being dispositive, we turn to the more complex consideration of the interaction of (1) the length of the delay, (2) the reason for the delay, and (3) the prejudice to the accused. THE PRESUMPTION-GENERATING QUESTION OF “SUBSTANTIAL” DELAY At a hearing upon a motion to dismiss charges because of an alleged denial of the right to a speedy trial, the burden of proof (that is, the risk of non-persuasion of the hearing judge) is initially upon the accused, as he is the moving party. He may produce initially, and the State may produce by way of response, any evidence available on the questions of length of delay, reason for delay, and waiver. In the weighing of these questions, no presumptions are thrown into the balance on either side of the scales.

Because of its more speculative nature, however, the question of prejudice cannot be so straightforwardly handled. Traditionally, three approaches have been used to arrive at a determination of prejudice. 17 One approach is that it is incumbent upon the accused to make a showing of actual prejudice 18 or at least a strong possibility of prejudice resulting to him or to his defense from the delay. Another approach is that prejudice will be conclusively presumed and necessarily follows from long delay. 19 The middle position, and that used in this State, is that a ²³³ certain quantitative and qualitative degree of delay gives rise to a rebuttable presumption of prejudice and will shift the burden of going forward with the evidence from the accused to the State. Before that critical point is reached, there rests upon the accused, as the moving party, the burden of persuading the hearing judge either (1) that he has suffered actual prejudice, in cases where he has made no demand for a speedy trial, or (2) that he has suffered the strong possibility of prejudice, in cases where he has made a demand for a speedy trial. 20 Once that critical point has been reached, however, the presumption of prejudice arises and the burden of going forward with the evidence shifts to the State.

That critical point on the delay scale where the presumption arises and where the burden shifts has been denominated the point of “substantial” delay. 21 To rebut the presumption, the State must persuade the hearing judge that the accused suffered no serious prejudice beyond that resulting from ordinary and inevitable delay. 22 ²³⁴ In the present case, the hearing judge appeared clearly to rule not that the appellee had shown any actual prejudice or even “a strong possibility of prejudice”, but rather that the delay between indictment and arraignment was “substantial” and that a presumption of prejudice followed automatically therefrom. Our focus then, in making an independent, reflective constitutional judgment on the propriety of the lower court’s ruling, is narrowed to the single question of whether the eighteen-month delay, on the facts of this case, was “substantial.” There is no precise measuring rod by which to determine when a delay becomes “substantial”; that deter ²³⁵ mination must be made in the light of the facts and circumstances of each particular case. 23 Just as the other two factors of (1) reason for delay and (2) prejudice interact with the factor of “length of delay” in determining the ultimate constitutional question of whether a speedy trial has been denied, so too, to the extent to which evidence as to them has been adduced, by whomsoever produced, do they bear upon the intermediate and procedural question of whether that delay is “substantial.” We begin, therefore, with the proposition that the period of delay, even as to this intermediate issue of whether it shall be deemed “substantial,” must be considered only in relation to the other two factors. If our words about relativity mean anything, it is that in the algebra of the Sixth Amendment even a greater delay coupled with non-oppressive and non-purposeful motivation and coupled with a lesser likelihood of prejudice may well yield a product less “substantial” than would a significantly shorter delay coupled with oppressive or purposeful motivation and coupled with a greater likelihood of prejudice. 24 This Court has been called upon to determine whether a particular delay amounted to a “substantial delay” on twelve prior occasions. A rapid survey of those decisions indicates clearly that the “length of delay” is not the key factor in making such a determination.

On nine occasions we found that the delay was not “substantial.” On two occasions, we found that it was. On another occasion, we found it necessary to send the case back for further evidentiary findings with respect to the other factors which have so vital a bearing on any determination. Reviewing each case on its peculiar circumstances, we held in Britton v. State, 10 Md. App. 70 , that a delay of four months was “not substantial”; in Graham v. State, ²³⁶ 6 Md. App. 458 , that a delay of eight months was “not substantial”; in Johnson v. State, 4 Md. App. 648 , that a delay of eleven months was “not substantial”; in Wilson v. State, 8 Md. App. 653 , that a delay of eleven months was “not substantial.” On the other hand, in Caesar v. State, 10 Md. App. 40 , we held, under all of the circumstances in that case, that a delay of twelve months was “substantial.” We there said, at 49, “It is not the length of the delay here, but the reasons for it that are significant.” However, we held in Brown v. State, 4 Md. App. 141 , that a delay of fourteen months was “not substantial” ; in Frazier v. State, 5 Md. App. 88 , that a delay of sixteen months was “not substantial.” On the other hand, in Wilson v. State, 8 Md. App. 299 , we held, under all of the circumstances in that case, that a delay of seventeen months was “substantial.” We there said, at 312, “As indicated, we think the delay in trial was substantial, not primarily because of the duration of the time elapsed, but in the light of the particular and unusual circumstances surrounding such delay which were existent in this case.” In contrast to the Wilson holding, however, we held in King v. State, 6 Md. App. 413 , that a delay of twenty-one months was “not substantial.” The holding in King was in a “due process” context, but the appraisal of “substantial delay” would not be dissimilar to that in a “speedy trial” context. We held in Stevenson v. State, 4 Md. App. 1 , that a delay of twenty-one months and thirteen days was “not substantial” and in State v. Williams, 6 Md. App. 5 , that a delay of twenty-three months was “not substantial.” In Barnett v. State, 8 Md. App. 35 , in a case where the length of the delay was one of eight months, we could not determine whether the delay was “substantial” or “not substantial” in the absence of factual findings below as to all of the other factors which must enter into the ultimate equation.

We there remanded the case for further evidentiary findings. 25 ²³⁷ It is, therefore, axiomatic that the mere running of the calendar will not be viewed in isolation and has little significance divorced from the questions of motivation for delay and prejudice, which are, respectively, its cause and its effect. It is the more minimal values which we assign to the second and third factors in the case now before us that persuade us that the court below was in error in finding that the delay was “substantial,” which finding was the predicate for its ultimate ruling-that the indictment be dismissed for the lack of a “speedy trial.” 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. At one end of the “reason” spectrum, where the State takes affirmative delaying action for good and valid cause, such as where a key prosecution witness is temporarily missing, a vital laboratory analysis must be completed, a principal must be tried before an accessory may be proceeded against, an examination as to incompetency or insanity must be made, etc., there is little difficulty in resolving either the intermediate “substantiality” issue or the ultimate “speedy trial” issue in favor of the State. 26 ²³⁸ At the far end of the “reason” spectrum, it redounds to the clear detriment of the State, on either the intermediate or the ultimate issue, where the motivation of the State is shown to be “purposeful or oppressive.” This is the only category of motivation which has been clearly condemned by the Supreme Court. In Pollard v. United States, 352 U. S. 354 , the Court said, at 361, “The delay must not be purposeful or oppressive.

It was not here. It was accidental. . .” In United Stages v. Ewell, 383 U. S. 116, at 120 , the Court reiterated the “purposeful or oppressive” language from Pollard.? 27 In State v. Murdock, 235 Md. 116, 124 , the Court of Appeals adopted the language “purposeful or oppressive” from Pollard . Not without irregularity, this Court has adhered to the same adjectives, “purposeful or oppressive,” as those descriptive of that delay-causing behavior on the part of the State which will not be condoned. 28 There is nothing in the present case to suggest that either the attitude or the course of conduct of the State ²³⁹ was “purposeful or oppressive.” The State was certainly not motivated by “bad faith”; nor was any action or inaction by the State “a deliberate choice for a supposed advantage.” In terms of assessing “fault,” the behavior of the State clearly would not fall under the interdict of “purposefulness” or “oppressiveness.” It is rather in the middle ranges of the “reason” spectrum that analysis becomes less certain. Here the “fault,” if any, on the part of the State is one of omission, rather than of commission.

Here we are concerned not with an affirmative delay-causing decision, either for good cause or for bad cause, but rather with pure inaction. Even within the “inaction” band, there are gradations. On the one hand, there is deliberate and knowing inaction in the face of clear and repeated demands for action. This is the brand of conduct contemplated by our addition of the adjectives “capricious,” 29 “arbitrary” 30 and “unreasonable” 31 to the lexicon of not-to-be-condoned behavior.

This is the category of prosecutorial conduct which was pivotal in our decisions in Wilson v. State, 8 Md. App. 299 , and Caesar v. State, 10 Md. App. 40 , and the decision of the Court of Appeals in Jones v. State, 241 Md. 599 . In each of those cases, there was a persistent refusal to set the case in for trial in the face of repeated demands, requests and efforts by the accused to bring the case on for trial. In the present case, there is no analogy to the situations prevailing in Wilson, Caesar or Jones . The attitude of the State here cannot be described as “capricious,” “arbitrary” or “unreasonable.” There is ²⁴⁰ nothing to suggest that the conduct of the State was “more to meet the convenience of individuals,” “more than mere negligence,” or an exhibit of “unpardonable neglect and total indifference to the. rights of the appellant” — the sort of motivational attitude we deplored in Caesar , at 49-50.

The case at bar presents us not with an instance of deliberate, knowing inaction but rather with an instance of what might be characterized as inadvertent inaction or, perhaps, as halting and less-than-di.ligent action. On three occasions:.,. the State made a. bona fide effort to summons the appeitee for ¡arraignment in Prince George’s County. The third of these efforts was finally successful. It was clearly developed that during that questioned period, the appellee was highly mobile within the correctional system.

He was awaiting trial in Montgomery County, was transferred to the Clifton T. Perkins State Hospital for evaluation as to possible criminal insanity, was transferred back to Montgomery County, was convicted of the charges pending against him in that county and was, directly or indirectly, transferred to the Patuxent Institution for evaluation as to possible defective delinquency. The court below professed to be “completely baffled by the fact that court orders out of this court, writ of habeas corpus ad testificandum, are not served on a defendant that is within the custody of the Maryland authorities.” The court found that the delay was “inexcusable” and “that the State had the defendant incarcerated in various institutions, and that it is certainly not that difficult over a period of eighteen months to locate an accused in the State of Maryland.” Even if we were to accept the lower court’s characterization of the prosecutorial inaction or imperfect action, we point out that there is no case where such lesser and more venial “fault” — of the inadvertent and unknowing variety — has been catalytic in resolving either the intermediate issue, of “substantiality” or the ultimate issue of “speedy trial denial” against the State. We feel that such conduct, on the facts of this case, at least, falls ²⁴¹ within that contemplated by the Supreme Court as “accidental” in