State v. Temoney

⁵⁷¹ Weant, J., delivered the opinion of the Court. On 14 June 1979, a jury in the Circuit Court for Prince George’s County found the appellee, James Tony Temoney, guilty of first degree rape, first degree sexual offense, robbery with a deadly weapon, and carrying a dangerous weapon openly with intent to injure. At the sentencing disposition on 30 July 1979, the appellee was committed to the jurisdiction of the Division of Correction for the balance of his natural life for the first degree rape and the first degree sexual offense, these life sentences to run consecutively; as to the robbery with a deadly weapon charge, Mr. Temoney received a twenty year sentence to run consecutively to the two life sentences; and finally, he was given a three year sentence for the weapon offense, which was to be served concurrently with the twenty year sentence for armed robbery. Thereafter, both the appellee and the State noted timely appeals to this Court.

In his appeal Mr. Temoney argues as follows: I. The trial court erred in refusing to grant a continuance.

II

The trial court erred in denying [his] motion to dismiss for denial of a speedy trial and due process.

III

The court erred in allowing into evidence statements induced by hypnosis.

IV

The trial court erred in its instructions on hypnosis evidence. V. The evidence was insufficient to convict [him] of the crimes charged.

VI

The photographic array used to identify [him] was prejudicial and suggestive.

VII

Trial counsel’s representation was ineffective and a denial of his sixth amendment rights. The State not only rejects each of the above arguments as being unmeritorious, but further contends in its own appeal that "[t]he trial court improperly refused to sentence ⁵⁷² Temoney under the mandatory provisions of Maryland Code, Article 27, Section 643B (c).” For purposes of clarity we will outline the facts pertinent to each argument as we address it. Moreover, we will speak to the appellee’s contentions first, since that response will dictate whether we need discuss the merits of the State’s argument. — Mr. Temoney’s appeal — I. The appellee asserts three grounds for his claim that the trial court erred in refusing to grant his requested continuance, and that therefore a reversal of his convictions is required. First, he opines that it was error for the trial judge not to refer the matter of a continuance over to the administrative judge as required by Maryland Rule 746. 1 But see Guarnera v. State, 20 Md. App. 562 , 573 n. 1, 318 A.2d 243 , 248 n. 1, cert. denied, 272 Md. 742 (1974).

Because Mr. Temoney did not raise this particular objection at trial, he has failed to preserve it for appeal. Maryland Rule 1085. Second, while conceding that according to Maryland Rule 746 "a continuance may only be granted upon a showing of extraordinary cause,” the appellee argues that he did in fact show extraordinary cause in that his counsel, in placing his reasons for the continuance on the record, 2 stated that he was "just not properly prepared for this trial.” In responding to this argument, we find Walter v. State, 4 Md. App. 373, 243 A.2d 626 (1968) to be helpful; there we stated at pages 376-77, 243 A.2d at 627 -28: It is elementary that a continuance is within the sound discretion of the trial court, Bright v. State, ⁵⁷³ 1 Md. App. 657 , 232 A.2d 544 . The appellants urge however the right to counsel is so fundamental that the action of the court deprived them of counsel.

In Ungar v. Sarafite, 376 U.S. 575 , 84 S. Ct. 841 , 11 L. Ed. 2d 921 , the Supreme Court of the United States considered the problem involving the denial of a continuance which allegedly deprived the accused of his right to engage counsel and at 376 U.S. 589 , 84 S. Ct. 849 the Court said: "The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Avery v. Alabama, 308 U.S. 444 , 84 L. Ed. 377 , 60 S. Ct. 321 . Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. Chandler v. Fretag, 348 U.S. 3 , 99 L. Ed. 4 , 75 S. Ct. 1 .

There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Nilva v. United States, 352 U.S. 385 , 1 L. Ed. 2d 415 , 77 S. Ct. 431 ; Torres v. United States, 270 F.2d 252 (C.A. 9th Cir.); cf. United States v. Arlen, 252 F.2d 491 (C.A. 2d Cir.).” The circumstances in the case subjudice do not convince us that the trial court’s "denial of a continuance [was] so arbitrary as to violate due process.” Had Mr. Temoney chosen to dismiss his counsel for the alleged improper preparedness and then sought a continuance to seek new ⁵⁷⁴ counsel, the trial court would not necessarily have been required to grant the requested delay. Guarnera, 20 Md. App. 562 , 318 A.2d 243 .

Thus, we are disinclined to hold that the appellee showed extraordinary cause, and that therefore the trial court clearly abused its discretion in failing to grant the requested continuance. Finally, because of the State’s alleged failure to provide discovery, the appellee argues that the only remedy available was the granting of a continuance. A review of the record indicates that, like this Court, the trial court was not persuaded that Mr. Temoney was prejudiced by having to go to trial as scheduled. See Powell v. State, 23 Md. App. 666 , 329 A.2d 413 (1974).

Again, the triaLcourt’s discretion was not clearly abused when the requested continuance was denied.

II

The record before us shows that the victim first identified Mr. Temoney as her assailant on 28 July 1978; however, Mr. Temoney was not indicted until 10 January 1979, approximately five and one half months later. Moreover, the appellee was not brought to trial until 12 June 1979, i.e., one hundred and fifty-three days from the date of indictment. Believing that both of these intervals constituted improper delays, 3 the appellee filed a motion to dismiss. While the trial court’s disposition of this motion is not as pellucid as we might desire, it appears that the court did in fact consider both of the asserted grounds for dismissal when it denied such.

Therefore, both grounds have been preserved for appellate review; they are however devoid of merit. As to pre-indictment delay, this Court had occasion to address this very issue in Dorsey v. State, 34 Md. App. 525 , 368 A.2d 1036 , cert. denied, 280 Md. 730 (1977). There we stated at pages 537-38, 368 A.2d at 1044 : Where a defendant can demonstrate actual ⁵⁷⁵ prejudice ... in circumstances where the delay between the occurrence of the criminal offense and the date of arrest or indictment is unduly long and the actions of the State in delaying were unreasonable, deliberate and oppressive, the due process clause would demand a dismissal of the indictment. [Citations omitted]. Accordingly, we do not believe that the circumstances in the instant case "demand a dismissal of the indictment.” While it may be true that Mr. Temoney was unable to prepare his defense, he admits that this is due in part to his incarceration for another offense.

Furthermore, there is no evidence that the State deliberately postponed bringing the indictment in question until it was assured that Mr. Temoney’s preparation of his defense would be hampered. In fact, the record indicates that although the victim identified the appellee as her attacker on 28 July 1978, it was not until late November that the police were able to link the appellee with the apartment complex where the rape occurred. Finally, the subsequent month and a half delay cannot be characterized as "unduly long,” "unreasonable, deliberate and oppressive.” A dismissal of the indictment for this particular delay is therefore not warranted. Nor do we find the pretrial delay cause for dismissal of the indictment.

The one hundred and fifty-three day interval exceeded the permissible delay period by a mere thirty-three days. See Wilson v. State, 44 Md. App. 1 , 408 A.2d 102, 106 (1979). Moreover, when this thirty-three day period is analyzed in terms of Barker v. Wingo’s, 407 U.S. 514 , 92 S. Ct. 2182 , 33 L. Ed. 2d 101 (1972), four factor balancing test — the four factors being 1) length of delay, 2) reasons for delay, 3) assertion of the speedy trial right, and 4) prejudice to the defendant, id. at 530 , 92 S. Ct. at 2192 , 33 L. Ed. 2d at 114 , we are unpersuaded that dismissal is mandated. The appellee’s trial was originally scheduled for 23 April 1979.

Had it been held on this date, the speedy trial issue would fall by the wayside. However, on 18 April 1979 the State was granted a continuance, over the appellee’s ⁵⁷⁶ objection, in order that it might process, fingerprint, photograph, and obtain hair samples from the appellee. While the appellee objected to the continuance granted on April 18 no ground was stated; in fact, he waited until two days prior to the second trial date to assert his speedy trial right. Moreover, on the day of trial he sought a continuance on the ground that he was unprepared.

When these facts are balanced, we are unable to say that Mr. Temoney’s indictment should have been dismissed.

III

The prosecuting witness testified at trial that at the time she was attacked, on 16 May 1978, she observed her assailant for approximately five to eight minutes. It was not until sometime in mid-July, however, that she remembered that the man who raped her had "a white spot on the end of his penis.” This distinguishing trait was not brought to the attention of the police immediately because the prosecutrix was embarrassed. Then, on 28 July 1978, while she was undergoing hypnosis at the request of the police, the prosecuting witness told Dr. Chemol 4 and Corporal Frank Gale 5 about the white mark she had observed; neither knew about this mark beforehand. On the same day that she relayed this new information to the police, the prosecuting witness also identified her assailant by way of photographic array.

None of the pictures in the array displayed full anatomy or the genital area. A month later, the prosecutrix again identified her attacker by picking his picture out of an array. At trial, and again here, the appellee objected to the court’s permitting the statements induced by hypnosis to be introduced as evidence. The trial judge did not err, however, in admitting this testimony.

As we stated in Harding v. ⁵⁷⁷ State, 5 Md. App. 230, 236 , 246 A.2d 302, 306 (1968), cert. denied, 252 Md. 731 , cert. denied, 395 U.S. 949 , 89 S. Ct. 2030 , 23 L. Ed. 2d 468 (1969): The fact that she ... achieved her present knowledge after being hypnotized concerns the question of the weight of the evidence which the trier of facts, in this case the jury, must decide. [Citations omitted]. In passing, we note that Mr. Temoney’s reliance upon Reed v. State, 283 Md. 374 , 391 A.2d 364 (1978) is somewhat misplaced. Reed stands for the proposition that before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field. Thus, according to the Frye [ v. United States, 293 F. 1013 (D.C. Cir. 1923)] standard, if a new scientific technique’s validity is in controversy in the relevant scientific community, or if it is generally regarded as an experimental technique, then expert testimony based upon its validity cannot be admitted into evidence.

Id. Reed, 283 Md. at 381 , 391 A.2d at 368 . Accordingly, Mr. Temoney argues that "[h]ypnosis has not been established as an approved scientific method and the introduction into evidence of testimony concerning hypnosis and hypnotically induced testimony was in error.” We do not believe that Reed can be read as broadly as the appellee suggests. Assuming that the scientific validity of the hypnosis technique is in controversy, 6 while such would preclude the admission of expert opinion deduced from that technique, id.

(citing Frye, 293 F. at 1014 ), it would not also preclude, as Mr. Temoney argues, the admission of a description of the procedure used to hypnotize the victim or the hypnotically induced ⁵⁷⁸ testimony itself. 7 Thus, the appellee’s argument that Reed vitiates the viability of Harding fails.

IV

In light of our response to argument III, we are disinclined to say that the trial judge’s instruction as to how the jury should view the evidence induced by hypnosis was error. V. The question whether or not the evidence adduced at trial was sufficient to convict Mr. Temoney of the crimes charged is answered by viewing said evidence in' the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307 , 99 S. Ct. 2781, 2789-90 (1979);