Stevenson v. State

Orth, J., delivered the opinion of the Court. The appellants were arrested in the District of Columbia in 1965, Stevenson on 3 July and Borum on 6 or 7 July. They were- ⁴ incarcerated in the District of Columbia jail, tried and convicted of the offenses with which they were charged and sentenced to imprisonment. Both were transferred to the District of Columbia Reformatory at Lorton, Virginia in 1966, Stevenson on 3 March and Borum on 14 October and both are incarcerated there at this time. 1 On 14 September 1965 the appellants were jointly charged under four indictments returned by the grand jury of Montgomery County.

Indictment No. 7172 charged rape, assault with intent to rape and assault and battery. Indictment No. 7173 charged robbery with a deadly weapon, attempted robbery with -a deadly weapon, robbery and assault with intent to rob. Indictment No. 7174 charged the breaking of a dwelling in the daytime with intent to steal, larceny and receiving stolen goods. Indictment No. 7175 charged another offense of breaking a dwelling house with intent to steal.

The only other entry on the dockets states, in each case: that a motion to stet the indictment was granted on 28 October 1965, and although the docket entries do not show the reason therefor, it apparently was because of the ruling in Schowgurow v. State, 240 Md. 121 . Indictments Nos. 7367, 7366, 7368, and 7365 charging the same offenses respectively as the prior indictments were thereafter returned on 15 November 1965 and are now pending. The docket entries as to each of the indictments returned on 15 November show under date of 19 September 1966: “Copy of Ind. mailed to deft. E. S. B.” As subsequent docket entries refer to the appellants by their initials, we take this to mean the appellant Borum.

The entries on the docket for each pend:ing indictment further show in relevant part : “March 14, 1967 — Deft. M.C.S. motion for withdrawal of detainers fd. in No. 7365 Crim. May 17, 1967 — Order of Court appointing attorney for Deft. M.C.S. & E.S.B., fd.

June 14, 1967 — Deft.’s motion to dismiss, fd. ⁵ August 14, 1967 — Petitions and order of Court granting writ of Habeas Corpus Prosequendum and writ, fd. in No. 7365 Crim. August 28, 1967- — -Hearing on Deft’s. M.S.C. and E.S.B.’s motion to dismiss before Judge Pugh, Miss Wissenbach rept. and motion continued.” The dockets indicate that the hearing was resumed on 30 August and the motion was granted as to the second count of indictment No. 7366 and denied as to all other counts in all the indictments. The docket with respect to indictment No. 7365 contains one additional entry: “August 15, 1967 — Writ issued ret: Aug. 25,1967, 10:00 A. M.” 2 Each appellant testified in support of his motion to dismiss the indictments.

Borum said that he “surrendered to the District of Columbia police July the 7th — July the 6th — ’65.” He was in the city jail in Washington until 14 October 1965 when he was transferred to Lorton and at the time of the hearing was incarcerated there under sentence. He never received notification of the charges lodged in Montgomery County but about a month after he was placed in the District of Columbia jail he “received a small piece of paper by a tier runner * * * That’s a guy that runs up and down and brings you soap and stuff.” The paper contained information that a “detainer had been placed against my record for the charge of rape. And that was all.” He denied receiving copies of the indictments pending against him or of the indictments which were stetted. The first time he saw any indictments was on 16 May 1967 when his ⁶ counsel showed him the pending indictments.

He had never seen any bench warrants that were issued for his arrest. He knew what a bench warrant looked like and the small piece of paper delivered by the tier runner was not a bench warrant. It was a “standard form” with the word “rape” typed in and a “Mr. Thrailkill’s name typed into it.” About September (the year is not specified but apparently it was 1965) a friend brought a newspaper article to him in his cell in which his name and that of Stevenson appeared as having been indicted for rape in Montgomery County. It gave “no specific dates or circumstances nor anything.” He knew nothing about being re-indicted.

He never had an attorney to represent him in the Maryland proceedings until 8 February 1967 in the habeas corpus matter (the same attorney was appointed for him in the pending cases on 17 May 1967) and was not financially able to employ one. He had mailed a petition for a writ of habeas corpus in proper person in October 1966 and Stevenson mailed one in January 1967. With regard to the charges in Maryland he had never been arraigned, never had a preliminary hearing or any hearing other than on the petition for a writ of habeas corpus. He alleged that he was prejudiced by the fact of the detainers being lodged against him at Lorton as they resulted in his being placed in “maximum security.

This stops any parole proceeding and work release proceeding or any outside activity that Norton sponsors in the jurisdiction there * * * It also hindered me from going on bond, making bond in that jurisdiction, because if you’ve got a detainer against you you can’t make a bond there because the detainer is outstanding against you.” 'On cross-examination he stated that when he had received the paper from the tier runner he wrote three or four letters. Two ■of them came back. “The first time I mailed it to the wrong person; somebody said I didn’t, they couldn’t have dealings with this and I would have to write the Sheriff’s department. I mailed it to the Sheriff’s department and then that letter came back stating, referring me to the Detective Thrailkill department. And I just, you know, stopped right there.” He did not file a paper in a court in Maryland until the petition for writ of habeas corpus.

He was represented by an attorney regarding the charges in the District of Columbia and he told her about the detainer ⁷ and asked her “what possibly could I do about it.” She replied that she could not have anything to do with that case as “she was confined to the case in the District of Columbia.” When he received the paper from the tier runner, he was faced with three trials in the District of Columbia. He did not consider the petition for a writ of habeas corpus to be a request for a speedy trial; he was seeking information about the charges against him in Montgomery County. “This is the first time that I had any opportunity to pursue anything in this jurisdiction * * * I had no time at that time (when he received the paper), at that particular time or way in ’66.” He urged that Maryland should have let him “at least know a date so I could inform my witnesses or try to get a witness or try to recollect in my own mind what happened on that date, try to reconstruct something for it * * * If you could serve a bench warrant against me stating rape you could have put the date, rape against whom, whom I am supposed to have assaulted and whose house I broke into * * * What do I do? I write to any Judge and say, ‘I’d like a speedy trial on rape ?’ ” Stevenson testified that he was arrested 3 July 1965 and had been incarcerated since that time — in the District of Columbia jail until 3 March 1966 and thereafter at Lorton. He claimed that he first learned of the charges pending in Montgomery County in “the middle part of September 1965” when he was given “a piece of paper stating there was a detainer lodged against my record for rape in favor of Detective Thrailkill.” This was the only information he received until he was shown the indictments in May of 1967.

Prior to 8 February 1967 he had no attorney to represent him or advise him regarding the charges in Maryland. The attorney representing him with regard to the charges in the District of Columbia told him he represented him only on those charges and suggested that he “hire a lawyer. At that time I didn’t have no money to hire a lawyer.” He was prejudiced by being denied parole “because of the detainers placed against my record, and work release was denied to me because of the detainer. I was told I could not receive work release to support my wife and children because I had detainers placed against my record.” tie found out that his brother-in-law (Borum) “had filed a habeas corpus” and ⁸ “took the same motion and had someone type it up for me and filed it in January of — January the 16th or 19th, 1966” (the correct date was January 24, 1967).

On cross-examination he stated that he had talked to Borum about the detainer when they “went to the District court to answer the indictment” charging them with offenses in the District of Columbia. He did not write to anyone about the rape charge and particularly not “Inspector Thrailkill” because that officer had threatened him the night he was arrested, telling him that unless he made certain statements against Borum he would be charged “with a rape and seven or eight unsolved housebreaking charges in Maryland.” Copies of the docket entries pertaining to indictments Nos. 7172, 7173, 7174 and 7175 were admitted in evidence as the appellants’ exhibits. A deputy United States Marshal testified that he had transported federal prisoners into Maryland on a writ of habeas corpus prosequendum but on cross-examination stated that he did so on order of “a district court judge for the District of Maryland” and had no authority to do so on an order of a state judge. Inspector Fred P.-Thrailkill of the Montgomery County Police testified for the State.

He identified a copy of a letter of transmittal dated 19 November 1965 sent to Deputy Chief Hart-nett of the Metropolitan Police Department as a detainer to be placed on Ernest Spencer Borum. He also identified a copy of a letter of transmittal dated 6 July 1965 to the same person. He said that the original was attached to a state warrant and an affidavit charging Stevenson with rape. Its purpose was to have the warrant filed as a detainer.

He identified a third document as a similar copy of a letter regarding Borum and said that the original contained a warrant and an affidavit. The documents were admitted in evidence. On cross-examination he stated that indictments are not sent “unless they are requested” and that there was “nothing in the file to indicate there was a request.” When the appellants were re-indicted, new bench warrants on each indictment were sent to the Metropolitan Police Department on 19 November 1965 with a request to file them as detainers and to return the previous rape warrants and officer’s affidavits. His files contained nothing to show that anything else ⁹ had been sent in connection with the charges.

The warrants did not contain the alleged date of the commission of the crime. He was unable to say what disposition was made of the warrants upon their receipt by the Metropolitan Police Department. He was permitted, however, to testify as to the procedure followed. The letters of transmittal with the attached warrants and affidavits go to the Fugitive Squad. “From the Fugitive Squad if the subject is later transferred to another institution then a letter goes to — a letter of transmittal — goes to that institution with a copy of the warrant as filed by Maryland; would accompany the subject to that institution and remain there until he is released.

And he has to go back to the Fugitive Squad before being turned over to Maryland.” He did not know why the appellants were not brought to trial. The State’s Attorney is informed as to the action taken by the Maryland police authorities; “we leave it up to the State’s Attorney to get the case before the court or any further action at that time to be taken by the State’s Attorney’s office.” The Record Clerk at the Norton Reformatory was produced by the State. Pie testified that Norton is a federal penitentiary “under the District of Columbia government.” He had in his possession the records of the Reformatory with respect to each of the appellants. He identified as part of the records: (1) a memorandum dated 8 July 1965 to Borum “from the District of Columbia Jail Record Office.” It answered the description of the paper Borum said was delivered to him by a tier runner in that it was addressed to Borum and advised him that the District of Columbia Jail was in receipt of a detainer from the Metropolitan Police Department in favor of F. P. Thrailkill, Chief of Detectives, Rockville, Md., charging him with rape and that “this detainer will be placed against your record as of this date.” (2) a letter from the Acting Superintendent of the District of Columbia Jail dated 8 July 1965 acknowledging receipt of the detainer.

(3) a letter from the Metropolitan Police Department dated 8 July 1965 to the Superintendent of the District of Columbia Jail requesting that a detainer be filed against Borum on a local charge of rape. It stated that Borum was wanted by F. P. Thrailkill, Chief of Detectives, Rockville, Md., that the Metropolitan Police Department held a warrant and ¹⁰ further requested that the Department be notified prior to Borum’s release “in order that we may re-arrest him on a fugitive complaint.” Although the Record Clerk was not “quite familiar” with the procedures in the District of Columbia Jail, he testified that “I would say” that document (1) was “the type of memorandum that is given to someone who might be called a tier runner, and delivered to the inmate.” The three documents were admitted in evidence. The Record Clerk also had the file with respect to Stevenson and it was stipulated that as to three documents therein “the exhibits that are now in evidence, as directed to Mr. Borum, are identical and can be considered as additional exhibits for Mr. Stevenson.” On cross-examination he said that document (1) was “the only notification of any type of detainer that would have been delivered to the appellants. The files regarding the appellants did not contain copies of indictments or anything to show that they “were ever sent or furnished copies of any indictments or information” or that they “were ever notified of the existence of any detainer such as robbery, housebreaking, receiving stolen goods, or anything of that nature.” But the files would not contain a record of mail directed to the appellants personally.

The hearing court granted the motion to dismiss the second count of indictment No. 7366 (attempted robbery with a deadly weapon) and denied the motions as to all other counts in each indictment. The appellants contend that they were denied both a speedy trial and due process of law on this appeal from the denial of the motion. SPEEDY TRIAL It is clear that an appeal will lie, prior to a trial on the merits, from a denial of a motion alleging a violation of the constitutional right to a speedy trial. Brown v. State, 2 Md. App. 388, 393 ; Allen v. State, 1 Md. App. 249, 252 .

The right to a speedy trial is guaranteed by Article 21 of the Maryland Declaration of Rights and Amendment VI to the Constitution of the United States. Klopfer v. North Carolina, 386 U. S. 213 ; State v. Long and Nelson, 1 Md. App. 326 . But the right is a relative one and the time within which trial must be had to satisfy the guaranty depends on the facts ¹¹ and circumstances of the particular case. Jones v. State, 241 Md. 599 ; Kelly v. State, 2 Md. App. 730 .

Four factors are relevant to a consideration of these facts and circumstances in determining whether a delay in trial assumes constitutional proportions: (1) the length of the delay; (2) the reason for the delay; (3) prejudice to the accused; and, (4) waiver by the accused. (1) As a general rule it is only after a prosecution has been initiated that the issue of a speedy trial can be raised by an accused ; until the grand jury acts there is no case to be tried. Price v. State, 235 Md. 295, 299 ; Reddick v. State, 219 Md. 95, 100 , quoted in Keyes v. State, 236 Md. 74, 81 . Cf.

Petition of Provoo, 17 F.R.D. 183 , aff’d, 350 U. S. 857 . With respect to delay between arrest and indictment, there is no time