Stewart v. State

Orth, J., delivered the opinion of the Court. This case presents the issue whether a defendant in a criminal prosecution by the State of Maryland may appeal, before trial, a circuit court’s order denying his motion to dismiss the indictment because of an alleged violation of his right to a speedy trial guaranteed by the Sixth Amendment to the Constitution of the United States 1 and by Article 21 ⁵⁵⁹ of the Declaration of Rights of the Constitution of Maryland. 2 We hold that he may not. I Gregory Victor Stewart was charged under an indictment filed in the Circuit Court for Prince George’s County with armed robbery and nine related offenses. Trial was scheduled for 4 May 1977.

On 3 May he filed a motion to dismiss the indictment, alleging that he had been denied a speedy trial. When the case came on for trial the next day, the court determined the motion as a preliminary matter. Upon a plenary hearing, the motion was denied. Stewart submitted to the court forthwith an order “for an immediate appeal from the court’s denial” to the Court of Special Appeals.

When the appeal reached the intermediate appellate court, we granted a writ of certiorari before decision by it. The appeal was heard by us on 6 January 1978. II By order of 20 June 1977, 432 U. S. 905 , 97 S. Ct. 2948 , the Supreme Court of the United States granted certiorari in United States v. MacDonald, which had been decided on 23 January 1976 by the United States Court of Appeals, Fourth Circuit, and reported in 531 F. 2d 196 . The case was argued before the Supreme Court on 9 January 1978, and we thought that it was advisable to await the decision before determining the appeal before us because of the apparent similarity of the issues.

The case was decided on 1 May 1978 by a unanimous court. United States v. MacDonald, 435 U. S. 850 , 98 S. Ct. 1547 (1978). On 24 January 1975 the grand jury of the United States District Court for the Eastern District of North Carolina indicted Jeffrey R. MacDonald on three counts of first-degree murder. Among a number of pretrial motions submitted by MacDonald which were denied by the District Court were a ⁵⁶⁰ motion to dismiss the indictment because of the denial of his Sixth Amendment right to a speedy trial and another to dismiss on double jeopardy grounds.

The United States Court of Appeals for the Fourth Circuit stayed the trial and allowed an interlocutory appeal. By a divided vote, it reversed the District Court’s denial of the motion to dismiss on speedy trial grounds and remanded the case with instructions to dismiss the indictment. United States v. MacDonald, 531 F. 2d 196 (4th Cir. 1976). The Court of Appeals panel majority recognized that the denial of a pretrial motion in a criminal case generally'is not appealable, but it assumed jurisdiction on two grounds: (1) the speedy trial claim was pendent to the double jeopardy claim, the denial of which it had held to be appealable before trial in United States v. Lansdown, 460 F. 2d 164 (4th Cir. 1972); (2) alternatively, although conceding that “[n]ot every speedy trial claim... merits an interlocutory appeal,” and that “[generally this defense should be reviewed after final judgment,” the court stated that it was “the extraordinary nature of MacDonald’s case that persuaded us to allow an interlocutory appeal.” 531 F. 2d at 199 .

On the merits, the majority concluded that MacDonald had been deprived of his Sixth Amendment right to a speedy trial. The Supreme Court granted certiorari because of the importance of the jurisdictional question to the criminal law. 435 U. S. at 853 . It reversed the judgment of the appellate court and remanded the case for further proceedings. Id. at 863 .

Ill The Supreme Court found that MacDonald presented the issue “whether a defendant, before trial, may appeal a federal district court’s order denying his motion to dismiss an indictment because of an alleged violation of his Sixth Amendment right to a speedy trial.” Id. at 850 (emphasis in original). The reason underlying the conclusion that he may not was, “ri]n sum,” that the Court declined “to exacerbate pretrial delay by intruding upon accepted principles of finality to allow a defendant whose speedy trial motion has been denied before trial to obtain inter ⁵⁶¹ locutory appellate review.” Id. at 863. The precise holding was that “the Court of Appeals lacked jurisdiction to entertain [MacDonald’s] speedy trial appeal.” Id. at 857. We look to see how the Court reached this holding.

Citing Abney v. United States, 431 U. S. 651 , 97 S. Ct. 2034 (1977), DiBella v. United States, 369 U. S. 121 , 82 S. Ct. 654 (1962), Parr v. United States, 351 U. S. 513 , 76 S. Ct. 912 (1956) and Cobbledick v. United States, 309 U. S. 323 , 60 S. Ct. 540 (1940), the Supreme Court in MacDonald pointed out that it had frequently considered the appealability of pretrial orders in criminal cases. 435 U. S. at 853 . Interlocutory or “piecemeal” appeals are disfavored. The traditional and basic principle, embodied in 28 U.S.C. § 1291 , 3 is that finality of judgment is required as a predicate for federal appellate jurisdiction. “The rule of finality has particular force in criminal prosecutions because ‘encouragement of delay is fatal to the vindication of the criminal law.’ ” Id. at 853, 854 , (quoting Cobbledick, 309 U. S. at 325 ). The Court in criminal cases has twice departed from the general prohibition against piecemeal appellate review, and in each instance relied on the final judgment rule’s “collateral exception” articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 545-547 , 69 S. Ct. 1221 (1949).

Stack v. Boyle, 342 U. S. 1, 12 , 72 S. Ct. 1 (1951) determined that an order denying a motion to reduce bail could be reviewed before trial. Abney, supra, 431 U. S. at 659 , held that there may be an interlocutory appeal of an order denying a pretrial motion to dismiss an indictment on double jeopardy grounds. MacDonald gave the basis of the Abney holding: “In so holding, the Court emphasized the special features of a motion to dismiss based on double jeopardy. It pointed out, first, that such an order ⁵⁶² constitutes ‘a complete, formal and, in the trial court, a final rejection of a criminal defendant’s double jeopardy claim.

There are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred by the Fifth Amendment’s guarantee. Hence, Cohen's. threshold requirement of a fully consummated decision is satisfied.’ 431 U. S. at 659 . Secondly, it noted that ‘the very nature of a double jeopardy claim is such that it is collateral to, and separable from, the principal issue at the accused’s impending criminal trial, i.e., whether or not the accused is guilty of the offense charged.’ Ibid. Finally, and perhaps most importantly, ‘the rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence.’ Id., at 660 . . . .” 435 U. S. at 855, 856 . [46 U.S.L.W. at 4396], MacDonald then proceeded to apply the principles enunciated in those precedents to the case before it, finding their application “straightforward.” 4 Ibid.

Like the denial of a motion to dismiss an indictment on double jeopardy grounds, a pretrial order rejecting a defendant’s speedy trial claim is not final in the sense of terminating the criminal proceedings in the trial court. Therefore, if it may be appealed before trial, it is because it satisfies the criteria identified in Cohen and Abney as sufficient to warrant suspension of the established rules against piecemeal review before final judgment. The Court believed it clear that the criteria were not satisfied. This is so because (1) the denial of a motion to dismiss on speedy ⁵⁶³ trial grounds is not a fully consummated decision, and (2) it is not collateral to and separable from the principle issue at the impending criminal trial of the accused, i.e., whether or not he is guilty of the offense charged.

As to the first, most speedy trial claims are best considered only after the relevant facts have been developed on trial. Of the four factors listed in Barker v. Wingo, 407 U. S. 514 , 92 S. Ct. 2182 (1972), that are to be weighed in determining whether an accused has been deprived of his Sixth Amendment right to a speedy trial the most serious is prejudice to the defendant from the delay. Barker at 532 . “Before trial, of course, an estimate of the degree to which delay has impaired an adequate defense tends to be speculative. The denial of a pretrial motion to dismiss an indictment on speedy trial grounds does not indicate that a like motion made after trial — when prejudice can be better gauged -- would also be denied.

Hence, pretrial denial of a speedy trial claim can never be considered a complete, formal, and final rejection by the trial court of the defendant’s contention; rather, the question at stake in the motion to dismiss necessarily ‘remains open, unfinished [and] inconclusive’ until the trial court has pronounced judgment. Cohen , 337 II. S. at 546. . . MacDonald, 435 U. S. at 858, 859 .

With respect to the second, “[t]here exists no such divorce between the question of prejudice to the conduct of the defense (which so often is central to an assessment of a speedy trial claim) and the events at trial. Quite the contrary, in the usual case, they are intertwined.” Ibid. But, the Court continued, “[e]ven if the degree of prejudice could be accurately measured before trial, a speedy trial claim nonetheless would not be sufficiently independent of the outcome of the trial to warrant pretrial appellate review.” Ibid. In any event, “[a] central interest served by the Speedy Trial Clause is the protection of the factfinding process at trial.

The essence of a defendant’s Sixth Amendment claim ⁵⁶⁴ in the usual case is that the passage of time has frustrated his ability to establish his innocence of the crime charged. Normally, it is only after trial that that claim may fairly be assessed.” Ibid. Moreover, the Court declared, the denial of a motion to dismiss on speedy trial grounds does not actually involve an important right which would be lost, probably irreparably, if review had to await final judgment. The Court went on to say that despite some superficial attraction in the argument that the right to a speedy trial — by analogy to the rights represented by the double jeopardy claim in Abney , the demand for reduced bail in Stack , and the posting of security at issue in Cohen — must be vindicated before trial in order to insure that no nonspeedy trial is ever held, the argument fails both doctrinally and pragmatically: “Unlike the protection afforded by the Double Jeopardy Clause, the Speedy Trial Clause does not, either on its face or according to the decisions of this Court, encompass a ‘right not to be tried’ which must be upheld prior to trial if it is to be enjoyed at all;.

It is the delay before trial, not the trial itself, that offends against the constitutional guarantee of a speedy trial. If the factors outlined in Barker v. Wingo, supra, combine to deprive an accused of his right to a speedy trial, that loss, by definition, occurs before trial. Proceeding with the trial does not cause or compound the deprivation already suffered. “Furthermore, in most cases, as noted above, it is difficult to make the careful examination of the constituent elements of the speedy trial claim before trial. Appellate courts would be in no better position than trial courts to vindicate a right that had not yet been shown to have been infringed.” 435 U. S. at 861 .

The Court thought that the application of the principles articulated in Cohen and Abney to speedy trial claims was in itself dispositive, compelling the conclusion that such claims are not appealable before trial. Id. It reinforced its conclu ⁵⁶⁵ sion, however, “by the important policy considerations that underlie both the Speedy Trial Clause and 28 U.S.C. § 1291 .” Ibid. One of the principal reasons for strict adherence to the doctrine of finality in criminal cases is the speedy trial guarantee.

Di Bella, 369 U. S. at 126 . “Fulfillment of this guarantee would be impossible if every pre-trial order were appealable.” MacDonald, 435 U.S. at 861 . The Court discussed the policy consideration: “Many defendants, of course, would be willing to tolerate the delay in a trial that is attendant upon a pretrial appeal in the hope of winning that appeal. The right to a speedy trial, however, ‘is generically different from any of the other rights enshrined in the Constitution for the protection of the accused’ because ‘there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interest of the accused.’ Barker v. Wingo, 407 U. S. at 519 . See also United States v. Avalos, 541 F. 2d 1100, 1110 (CA5 1976), cert. denied, 430 U. S. 970 (1977).

Among other things, delay may prejudice the prosecution’s ability to prove its case, increase the cost to society of maintaining those defendants subject to pretrial detention, and prolong the period during which defendants released on bail may commit other crimes. Dickey v. Florida, 398 U. S. 30, 42 (1970) (Brennan, J., concurring). “Allowing an exception to the rule against pretrial appeals in criminal cases for speedy trial claims would threaten precisely the values manifested in the Speedy Trial Clause. And some assertions of delay-caused prejudice would become self-fulfilling prophecies during the period necessary for appeal.” Ibid. The Court advanced one final argument why, as a matter of policy, pretrial appeals on speedy trial grounds should be disallowed. “As the Court previously has observed, there is nothing about the circumstances that will support a ⁵⁶⁶ speedy trial claim which inherently limits the availability of the claim.

See Barker v. Wingo, 407 U. S. at 521-522, 530 . Unlike a double jeopardy claim, which requires at least a colorable showing that the defendant once before has been in jeopardy of federal conviction on the same or a related offense, in every case there will be some period between arrest or indictment and trial during which time ‘every defendant will either be incarcerated... or on bail subject to substantial restrictions on his liberty.’ Id., at 537 (White, J. concurring). Thus, any defendant can make a pretrial motion for dismissal on speedy trial grounds and, if § 1291 is not honored, could immediately appeal its denial.” Ibid. See footnote 3, supra.

IY Maryland also disfavors interlocutory or “piecemeal” appeals, and has enacted a law (comparable to the federal statute) which has been construed to mean that a defendant in a criminal proceeding may appeal only from a final judgment. Maryland Code (1974) § 12-301 of the Courts and Judicial Proceedings Article; 5 Neal v. State, 272 Md. 323, 324 , 322 A. 2d 887 (1974); Lee v. State, 161 Md. 430, 434 , 157 A. 723 (1931). However, we have applied a well-recognized corollary to the rule of finality of judgment as a predicate to appellate jurisdiction. This corollary permits an appeal from a seemingly interlocutory order which denies an absolute constitutional right.

Neal at 325 . The corollary, in turn, is qualified by the principle that an appeal will not lie from an ⁵⁶⁷ apparently interlocutory order, even though it denies a constitutional right, if the order is based upon the rightful exercise of a trial court’s discretion. Pearlman v. State, 226 Md. 67, 71 , 172 A. 2d 395 (1961). In Harris v. State, 194 Md. 288 , 71 A. 2d 36 (1950), we applied the corollary to the rule and entertained an immediate appeal from the refusal of a trial court to quash an indictment on speedy trial grounds.

We stated: “While it is perfectly true that an appeal will not lie from a judgment that is not final... and ordinarily denial of a ‘motion to quash’ is not a final judgment, on the other hand it is just as true that when a prisoner claims that he has been denied a speedy trial and has thereby become entitled to be freed of further proceedings in a case, and his claim is decided against him, this is a final ruling denying his claimed right, from which an appeal will lie.” 6 Id. at 294 . In Jones v. State, 241 Md. 599 , 217 A. 2d 367 (1966), the defendant filed a motion to dismiss the indictments against him, claiming that he had been denied his constitutional right to a speedy trial. The trial court denied the motion, the defendant appealed, and the State moved to dismiss the appeal, alleging that as no final judgment had been entered in the trial court, the appeal was premature. We disposed of the State’s motion based on the Harris holding: “Following the previous holding of this Court in Harris v. State, 194 Md. 288 , the motion will be overruled.” Jones at 601 .

Until 1974, decisions of the Court of Special Appeals consistently followed the holdings of Harris and Jones . In a number of cases, under the corollary to the rule prohibiting appeals from interlocutory orders, it entertained, before trial on the merits, an appeal from an order denying a defendant’s motion to dismiss an indictment grounds on a violation of his right to a speedy trial or his right not to be placed twice in ⁵⁶⁸ jeopardy. 7 On 11 February 1974, the Court of Special Appeals decided Neal v. State, 20 Md. App. 20 , 314 A. 2d 710 . It thought that whether a speedy trial had been denied or whether an accused will be twice put in jeopardy will usually turn on the facts and circumstances present in the particular case. Thus, it concluded, the determination of the question by the trial court would seem to involve an application of judicial discretion as to the functioning of the right squarely under the qualification of the corollary as recognized in Pearlman and Lee.

Neal, 20 Md. App. at 29-30 . It declared that it would “follow the rule of Pearlman and Lee except in those cases where the trial judge concludes that the constitutional right exists and is applicable but nevertheless refuses to apply it.” It stated that “[t]o the extent that this is a departure from our cases heretofore decided, we depart from them.” Id. at 30. Neal concerned double jeopardy. The Court of Appeals reviewed the decision on grant of a writ of certiorari.

Neal v. State, 272 Md. 323 , 322 A. 2d 887 (1974). We did not “share the view that a determination that double jeopardy does or does not exist involves an exercise of discretion. To us, the defense of double jeopardy is a liminal constitutional issue, raised at