Tunnell v. State

Anthony Marlin Tunnell v. State of Maryland No. 28, September Term 2019 Criminal Procedure – Speedy Trial – Deadline for Trial. Under a State statute and related court rule, a criminal trial in a circuit court must commence within 180 days of the defendant’s first appearance in that court or entry of appearance of defense counsel – a requirement often referred to as the “Hicks rule.” Under the Hicks rule, a trial may be continued from the scheduled trial date if the administrative judge (or designee) finds good cause for the continuance. Unless the defendant waives the Hicks rule, a failure to comply with the Hicks rule is to result in dismissal of the charges. Maryland Code, Criminal Procedure Article, §6-103; Maryland Rule 4-271.

Criminal Procedure – Speedy Trial – Deadline for Trial. The deadline for commencing trial under the Hicks rule is not automatically extended by the length of time needed for a party to obtain a DNA analysis of evidence. Nor is that deadline automatically extended when a party needs a continuance of the trial date to make a timely disclosure, in accordance with Maryland Code, Courts & Judicial Proceedings Article, §10-915, of the party’s intention to introduce DNA evidence. However, either of those circumstances may be good cause for an administrative judge to grant a continuance of the trial date under the Hicks rule.

Criminal Procedure – Speedy Trial – Postponement of Trial Date – Appellate Review. A defendant who seeks appellate review of the decision of an administrative judge to grant a continuance of a trial for good cause that ultimately results in a trial date beyond the deadline under the Hicks rule has the burden of showing that the circumstances did not constitute good cause as a matter of law, that the administrative judge abused the judge’s discretion in making a finding of good cause, or that there was an inordinate delay in rescheduling the trial. Criminal Procedure – Speedy Trial – Postponement of Trial Date – Determination of Good Cause. Although there was some confusion in the circuit court in this case as to whether a request for a DNA examination of evidence “tolled” the deadline for trial under the Hicks rule, the administrative judge did not abuse his discretion or err as a matter of law when he found good cause for postponing the originally scheduled trial date based on the prosecution’s need to provide additional discovery to the defendant.

Nor did the defendant carry his burden of demonstrating that there was an inordinate delay in rescheduling the trial date when the trial commenced a little more than a month after the Hicks date. Circuit Court for Worcester County IN THE COURT OF APPEALS Case No. C-23-CR-17-000018 OF MARYLAND Argument: November 4, 2019 No. 28 September Term, 2019 ANTHONY MARLIN TUNNELL V. STATE OF MARYLAND _____________________________________ Barbera, C.J., McDonald Watts Hotten Getty Booth Greene, Clayton, Jr. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by McDonald, J. Watts, J., dissents. ______________________________________ Filed: January 16, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-04-03 14:14-04:00 Suzanne C. Johnson, Clerk The aphorism “justice delayed is justice denied” states a principle common to most legal systems.1 A tool to avoid delay is to set a deadline – the bane and prod of those who must do what needs to be done. Like most rules of general application, deadlines have exceptions.

This case concerns the application of an exception to the deadline for the trial of a criminal case in a State circuit court. Under a State statute and related court rule, collectively known as the “Hicks rule,” a criminal trial in a circuit court must commence within 180 days of the first appearance of the defendant or defense counsel in that court, a deadline known as the “Hicks date.” Unless the defendant consents to a trial date beyond the Hicks date, a continuance of the trial beyond the Hicks date may be granted only for “good cause.” In this case, the trial of Petitioner Anthony Marlin Tunnell on murder and firearms charges was postponed from the original trial date when the administrative judge found good cause for a continuance based on the State’s need to provide additional discovery to the defense. However, both the court and the prosecution apparently believed that the deadline under the Hicks rule was “tolled” or extended for the period of time during which evidence was at a laboratory for DNA analysis. Mr. Tunnell’s trial ultimately began approximately 40 days after the Hicks date. 1 The Wikipedia entry for this aphorism documents various statements of this principle ranging from the ancient Hebrew scriptures to the Magna Carta to William Penn to Martin Luther King, Jr.’s Letter from Birmingham Jail.

We hold that the Hicks rule does not incorporate a mechanism for “tolling” or extending the Hicks date. Nevertheless, the administrative judge did not abuse his discretion when he found good cause for the continuance of the trial date and Mr. Tunnell has not carried his burden of demonstrating that there was an “inordinate delay” in the new trial date. Accordingly, we affirm his conviction. I Background A. The “Hicks Rule” A criminal trial in a Maryland circuit court must begin within 180 days of certain triggering events.

This deadline is set forth in statute and rule. In its current iteration, the statute provides: (a) (1) The date for trial of a criminal matter in the circuit court shall be set within 30 days after the earlier of: (i) the appearance of counsel; or (ii) the first appearance of the defendant before the circuit court, as provided in the Maryland Rules. (2) The trial date may not be later than 180 days after the earlier of those events. (b) (1) For good cause shown, the county administrative judge or a designee of the judge may grant a change of the trial date in a circuit court: (i) on motion of a party; or (ii) on the initiative of the circuit court.

(2) If a circuit court trial date is changed under paragraph (1) of this subsection, any subsequent changes of the trial date may only be 2 made by the county administrative judge or that judge’s designee for good cause shown. (c) The Court of Appeals may adopt additional rules to carry out this section. Maryland Code, Criminal Procedure Article (“CP”), §6-103. This Court has adopted a rule consistent with the statute.

Maryland Rule 4-271. As is evident, the statute does not specify the consequences of a failure to begin a trial by the statutory deadline. In a 1979 decision involving prior versions of the statute and rule,2 this Court held that compliance with the deadline in the rule was mandatory and that any postponement beyond that deadline must be authorized by the administrative judge for the requisite cause.3 State v. Hicks, 285 Md. 310, 318 , on motion for reconsideration, 285 Md. 334 (1979). The Court held that a failure to commence a trial in accordance with this timeline necessitates dismissal of the charges with prejudice.

Id. The requirements 2 The statute was enacted in 1971 and codified as Maryland Code, Article 27, §591. Chapter 212, Laws of Maryland 1971. In its original form, the statute set the deadline for trial at “six months” after a triggering event.

The statute was later amended to replace that time frame with the roughly equivalent “180 days,” a specification perhaps more amenable to precise computations. Chapter 378, Laws of Maryland 1980. As part of code revision, the statute was recodified as amended, without substantive change, as part of the then new Criminal Procedure Article in 2001. Chapter 10, §2, Laws of Maryland 2001.

As first adopted in 1977, the rule was codified as Maryland Rule 746 and provided that a trial should commence within 120 days of a triggering event. In November 1979, the Court amended the rule on an emergency basis to have the same deadline as the statute. The rule was recodified as Maryland Rule 4-271 in 1984. 3 The original versions of the statute and rule required a showing of “extraordinary cause” to change a trial date. Shortly after the Hicks decision, the General Assembly amended the statute to substitute a standard of “good cause.” Chapter 378, Laws of Maryland 1980.

This Court amended the rule to conform it to the statutory amendment. 3 established by the statute and rule are often referred to colloquially as the “Hicks rule” and the deadline for commencing trial under those provisions as the “Hicks date.” As discussed at greater length later in this opinion, the Hicks rule was intended primarily to carry out the public policy favoring the prompt disposition of criminal cases, independent of a defendant’s constitutional right to a speedy trial under the Sixth Amendment of the federal Constitution and Article 21 of the Maryland Declaration of Rights. Compliance with the Hicks rule would also presumably satisfy the constitutional constraint. See 5 W. LaFave, et al., Criminal Procedure §18.3(c) & n. 71 (4th ed. Dec. 2019 update) (noting that state speedy trial statutes usually impose stricter time limits than the constitutional standard).

B. The Murder of James Allen and the Prosecution of Mr. Tunnell On the evening of December 1, 2016, 26-year old James “Bumpy” Allen was murdered in a shooting in Pocomoke City. There apparently were no eyewitnesses to the shooting, although at least one person observed Mr. Allen shortly after he was shot, staggering and bloodied from his wounds. The police retrieved various items from the scene of the murder, which were sent off for forensic analysis,4 and commenced an investigation. Shortly after the murder, Mr. Tunnell was taken into custody.

On January 24, 2017, a grand jury in the Circuit Court for Worcester County returned a six-count indictment 4 The results of that analysis ultimately did not establish a direct connection to Mr. Tunnell. Neither party introduced the forensic results at trial, although, as recounted later in this opinion, Mr. Tunnell considered doing so. 4 against him related to the murder. Mr. Tunnell was tried before a jury on three of those counts during September 11-12, 2017.5 The State’s case consisted of: • testimony of Mr. Tunnell’s niece concerning text messages that she received from Mr. Tunnell indicating that he believed that her boyfriend and Mr. Allen had stolen a marijuana stash that had been hidden near the Tunnell residence in Virginia and that Mr. Tunnell was planning a violent revenge; • testimony of others who observed Mr. Tunnell in Pocomoke City near the time and location of the shooting with two men in a car wearing ski masks; • eyewitness testimony that Mr. Allen was seen staggering and dying on the street shortly after the shooting; • testimony concerning the recovery of physical evidence, including a ski mask, at the scene of the shooting; and • telephone company records documenting Mr. Tunnell’s text messages. Mr. Tunnell elected not to testify and called one alibi witness.

After deliberating for an hour, the jury found Mr. Tunnell guilty of first-degree murder.6 Mr. Tunnell appealed his conviction, raising a number of issues that, he argued, required reversal of his conviction.7 In an unreported opinion, the Court of Special Appeals 5 Prior to the trial, the State’s Attorney nolle prossed three counts charging Mr. Tunnell with various firearms violations. 6 At the close of the State’s case, the trial judge granted Mr. Tunnell’s motion for judgment of acquittal on one count charging possession of a firearm by a person previously convicted of drug trafficking, in violation of Maryland Code, Public Safety Article, §5- 133(c). The jury acquitted Mr. Tunnell of the remaining count charging him with use of a firearm in the commission of a crime of violence, in violation of Maryland Code, Criminal Law Article, §4-204(b). 7 Among those issues were an alleged discovery violation by the prosecution, the sufficiency of the evidence to support Mr. Tunnell’s conviction, the Circuit Court’s 5 rejected those contentions and affirmed his conviction. Tunnell v. State, 2019 WL 1313412 (March 22, 2019). Mr. Tunnell filed a petition for a writ of certiorari, which we granted in part.

The issue before us concerns neither the sufficiency of evidence at trial nor any trial ruling made by the Circuit Court. Rather, it concerns whether the timing of Mr. Tunnell’s trial complied with the Hicks rule. Accordingly, we will recount in some detail the pretrial proceedings concerning the scheduling of Mr. Tunnell’s trial. C. Pretrial Proceedings An Assistant Public Defender entered his appearance on behalf of Mr. Tunnell on February 2, 2017.

It is undisputed that, as a result, the deadline for commencing Mr. Tunnell’s trial – the Hicks date – was August 1, 2017. The Circuit Court issued a notice that set April 7, 2017 as the date for a hearing on pretrial motions and May 9, 2017 as the date for the trial – a date well before the Hicks date. During the course of four pretrial proceedings before four different judges of the Circuit Court, the trial date was ultimately postponed to September 11, 2017 – a date after the Hicks date. 1. April 7 Hearing On April 7, 2017 – the date originally designated for a pretrial motions hearing – the parties appeared before the administrative judge of the Circuit Court.

Mr. Tunnell was represented by the Assistant Public Defender. The State’s Attorney informed the judge decision not to grant a mistrial as a result of a witness’ reference to Mr. Tunnell’s incarceration, and the alleged violation of the Hicks rule, which is the subject of this opinion. 6 that a “large package” of discovery materials had been sent to defense counsel, but that there were additional investigative reports, audio recordings, and a requested DNA examination that the State still expected to receive and turn over to the defense in discovery. The State’s Attorney requested a postponement of the trial date and asked that the currently scheduled trial date (May 9, 2017) be converted to a status conference. Referring to what apparently was a widely-shared misconception, the State’s Attorney told the judge that a postponement granted as a result of the pending DNA examination would “toll” the Hicks date and cited Maryland Code, Courts & Judicial Proceedings Article (“CJ”), §10-915.8 Defense counsel neither opposed nor consented to a postponement, but expressed a willingness to go to trial as soon as discovery was made and the court set a trial date.

The administrative judge granted the State’s request, stating that the need to complete discovery “alone” was good cause for a continuance. Like the State’s Attorney, the administrative judge also specifically referred to the prospective DNA examination as a basis for a continuance as “it does, in fact, toll the Hicks date.” The court did not set a new trial date and left May 9, 2017 on the calendar as a motions hearing date. 8 CJ §10-915 concerns the admissibility of DNA profiles in criminal proceedings and requires that a party seeking to introduce such evidence provide notice and discovery to other parties by at least a specified number of days before a proceeding. CJ §10-915(d) provides a trial court with discretion to grant a continuance if the party seeking admission of such evidence is unable to make a timely disclosure. As explained later in this opinion, a delay occasioned by an effort to obtain a DNA analysis or to make a timely disclosure under CJ §10-915 may be “good cause” for obtaining a continuance of a trial date beyond the Hicks date.

However, this statute does not provide for automatic “tolling” of the Hicks date. See Part II.B. of this opinion. 7 Three weeks later, the Assistant Public Defender withdrew his appearance on behalf of Mr. Tunnell. Private defense counsel entered her appearance on April 29, 2017. As a result, the May 9 hearing was converted to another status conference. 2.

May 9 Status Conference On May 9, 2017, the Deputy State’s Attorney and Mr. Tunnell’s new defense counsel appeared before a different judge of the Circuit Court for the status conference. The prosecutor moved “to continue what is an ongoing postponement.” He noted that he had just provided Mr. Tunnell’s new counsel with “a voluminous amount of discovery,” that he expected to make additional discovery, and that, while a preliminary DNA report had been received, he expected to receive the full report soon. He asked for a postponement to a “date not yet determined.” He repeated the understanding that the delay for the full DNA report tolled the Hicks date and advised that he would call the assignment office after the report arrived to determine a date convenient for all parties and the court. Defense counsel joined the motion while expressing Mr. Tunnell’s desire to get a trial date as soon as possible.

The Circuit Court granted the motion. 3. August 8 Status Conference Three months later, on August 8, 2017, the parties appeared for a status conference before yet another judge of the Circuit Court. Since the previous hearing, no motions had been filed by either side as to the trial date.9 However, the status conference focused entirely on the effort to schedule a trial date in compliance with the Hicks rule. 9 As part of a form omnibus motion filed at the outset of the case, the Assistant Public Defender who initially represented Mr. Tunnell had asserted that the prosecution 8 The State’s Attorney presented the court with transcripts of the April and May status conferences and summarized the prior events – the scheduling of the original trial date of May 9 in light of a Hicks date of August 1, 2017, the delay in obtaining the full DNA report, the finding of “good cause” for a postponement of the trial by the administrative judge, the receipt of the DNA report on May 18 and its delivery to defense counsel.10 The prosecutor stated that one of the reasons he had asked for the status conference was to set a trial date consistent with what he referred to as the “new Hicks date,” which he identified as September 12, 2017. That calculation was apparently based on the understanding that the delay in obtaining the DNA report “tolled” the Hicks date for a period equivalent to that delay, which the prosecutor calculated to expire on September 12.11 He asked the court to schedule a motions hearing and the trial before that date.

He also detailed some potential scheduling issues, but promised that the State would be ready to try the case on was barred as a result of, among other things, a violation of the Hicks rule. That omnibus motion was filed together with the defense counsel’s entry of his appearance on February 2, 2017 – the first day of the 180-day period under the Hicks rule. As best we can tell, neither party later made reference to that motion in the Circuit Court. In any event, a form omnibus motion that prematurely raises a host of issues that may never pertain to the particular case may be ineffective to preserve an appellate issue.

See Sinclair v. State, 444 Md. 16, 27-36 (2015). 10 The State’s Attorney informed the court that the State had decided not to use information from the report in its case. 11 The State’s Attorney also indicated that he wished to have the Circuit Court clerk’s office make corrections in the court’s electronic case filing system (MDEC) to reflect the “new” Hicks date of September 12. That request was apparently accomplished. A review of the electronic record for the Circuit Court case reveals a “comment” for the date of the hearing that alludes to a “suspension” of the Hicks date for 41 days, consistent with the tolling theory. 9 September 11. The court clerk agreed with the prosecutor’s calculation of the “tolling” period and the Circuit Court accepted the premise that September 12 was the new deadline for commencing the trial.

Defense counsel then raised a question as to whether the Hicks date could be tolled. While acknowledging that delays in the receipt of DNA reports had been a commonly- accepted basis for postponing a trial date, she questioned whether there was a basis in statute or case law for “tolling” the Hicks date. Defense counsel stated: …What I’m trying to understand and again, maybe it’s not – my understanding it needs to be, you know, solidified here, but the Court’s understanding. I don’t understand why – I’m trying to find out where the precedent is for tolling Hicks.

I know it’s always been a procedure that we’ve done, we’ve always tolled Hicks with regard to DNA. I would like to know if there’s a statute or case that specifically says that, just for satisfaction on that particular issue. … Our argument would be that even though – even if you did toll Hicks and even if the second postponement was to get the DNA, our problem is that there was still enough time to set the case back in well within the Hicks date in compliance with the DNA coming back. Defense counsel took the position that the original August 1 Hicks date still applied and that, in the absence of a postponement that explicitly took the trial date beyond that date, it had remained the obligation of the State and the Circuit Court to bring Mr. Tunnell to trial by that date. The upshot of that argument was that Mr. Tunnell’s trial had not begun by the deadline set by statute and rule.

In response to questions from the Circuit Court, defense counsel conceded that she had agreed at the May 9 hearing to seek a new trial date from the clerk’s office jointly with the prosecutor, but had not done so. Defense counsel also argued that the delay in obtaining the full DNA report had been unnecessary because the prosecution had unnecessarily obtained the report in two 10 parts, and suggested that there had been no basis for the indefinite postponement that the administrative judge had previously granted. After the Circuit Court pointed out that the transcript of the earlier proceeding demonstrated that the administrative judge had explicitly found “good cause” for the postponement, defense counsel returned to the issue of “tolling” the Hicks date as a result of a request for a DNA examination. Defense counsel argued: Your Honor, the argument is that if there is a tolling of Hicks then why – why did all of these other cases go to the Court of Appeals?

I don’t see in the cases that I’m pulling up anything about tolling Hicks or about that being an issue. So I just would like to have some authority so we know what we’re arguing about on how the tolling of Hicks works. Is it a statutory tolling or is it by case law? And again, I wasn’t able to find anything on it.

The cases that I found were situations basically arguing Hicks, but they don’t say anything about well, the case was tolled, I don’t see anything to that effect. In response, the Circuit Court noted that the potential for a Hicks date to be “tolled” appeared to be “recognized,” although that recognition was “not dispositive.” The court also concluded that the administrative judge’s finding of “good cause” for a postponement “still stands irrespective of the Hicks [tolling] analysis.” The prosecutor offered to conduct some research on the issue. The court and the parties worked out the schedule for a motions hearing and trial in light of the court’s understanding of the “revised Hicks date” of September 12, 2017 and the constraints of defense counsel’s calendar.12 A pretrial motions 12 The court offered to schedule the trial in August, but defense counsel stated that her schedule did not permit her to agree to an August trial date. 11 hearing was scheduled for September 1 and the trial was scheduled to commence on September 11. At the conclusion of the hearing, the court and the parties discussed whether Mr. Tunnell would waive the Hicks deadline in order for the defense to present the arguably favorable DNA results13 at trial – which would require 45 days advance notice by the defense under CJ §10-915.

Defense counsel stated that Mr. Tunnell did not wish to waive the Hicks deadline for that purpose if it would preclude him from raising the Hicks issue on appeal. The Circuit Court declined to provide an “advisory opinion” on that question. The defense elected not to waive the Hicks deadline at that juncture pending defense counsel’s research concerning “options,” such as an interlocutory appeal on the Hicks date issue.14 4. September 1 Motions Hearing On September 1, 2017, the parties appeared for the motions hearing before another judge, who was also assigned to try the case.

After several defense motions were resolved, defense counsel again raised the question whether the delay in obtaining DNA reports “tolled” the Hicks date and whether the State had “dragged out” that delay unnecessarily. The prosecutor responded that it was “a collaterally estopped issue” – i.e., that the matter had already been ruled upon at the August 8 hearing. 13 As noted above, the DNA examination apparently did not directly connect any of the items tested to Mr. Tunnell. 14 Defense counsel presumably determined that an interlocutory appeal was not available or desirable as no such appeal was filed. 12 The Circuit Court agreed with the State, telling defense counsel: Well, I don’t even know what you’re asking from the Court. The Hicks date from the Court’s perspective I gather has been determined at a prior hearing by a judge of this court. And it doesn’t seem to me there’s anything more to talk about with respect to that.

If you believe that that decision by that judge was incorrect and some remedy flows from that and your client is ultimately found guilty of any of these charges, then I suppose that’s an appellate issue to raise. The trial commenced ten days later, as scheduled, on September 11, and concluded the following day. II Discussion A. Preservation Mr. Tunnell asserts that the charges against him should have been dismissed when his trial did not commence by August 1, 2017, because the Circuit Court relied on an erroneous theory that the Hicks date had been “tolled” or extended when the court scheduled the trial after that date.15 As a threshold matter, the State argues that Mr. Tunnell did not adequately preserve the Hicks date issue for appellate review.16 An appellate court “ordinarily” will not address an issue unless “it plainly appears by the record to have been raised in or decided by the trial court.” Maryland Rule 8-131(a). 15 Mr. Tunnell does not assert that his constitutional right to a speedy trial was violated. 16 The Court of Special Appeals agreed with the State that Mr. Tunnell had not preserved the issue, but apparently believed that the question was sufficiently close that it proceeded to address the merits of the issue in its opinion. 13 An appellate court may address an unpreserved issue “if necessary or desirable to guide the trial court.” Id. At the outset of the case, the Assistant Public Defender who initially represented Mr. Tunnell filed a formal, but premature, motion to bar his prosecution for violation of the Hicks rule.17 There was no basis for such a motion at that time, as August 1 was six months in the future and neither the court nor the parties ever referred to that motion, as best we can tell.

The successor defense counsel did not specifically renew that motion and ask for dismissal of the indictment for violation of the Hicks rule when the trial did not begin by August 1. But it is also true that the Circuit Court held an extensive hearing on August 8, 2017, devoted exclusively to the Hicks issue and the selection of an appropriate trial date – a hearing that occupies 36 pages of transcript. At that hearing, defense counsel repeatedly questioned the validity of the “tolling” theory that, in the belief of the State and the Circuit Court, established a “new” Hicks date of September 12. Indeed, the State’s Attorney volunteered to provide the court with legal authority for the tolling theory after that hearing.

No such legal justification was ever provided to the court. It seems clear that the issue of the computation of, and compliance with, the Hicks date was “raised in” the Circuit Court, even if one believes that it was not conclusively “decided by” that court, pending the State’s provision of legal authority for the tolling theory. Perhaps this was not a model for how a defendant should preserve an issue for appellate review. But in this case the purpose of the preservation requirement was 17 See footnote 9 above. 14 adequately served.

It cannot be said that either the State or the Circuit Court was sandbagged by this issue. It is evident from the dialogue between defense counsel and the Circuit Court at the conclusion of the August 8 conference, and the statements of the trial judge and prosecutor at the September 1 motions hearing, that the parties and the court believed that the defense had raised – and lost – the issue of compliance with the Hicks rule in the Circuit Court and that it was a potential appellate issue if the trial resulted in a conviction. Moreover, given the confusion in the trial court concerning the effect of CJ §10-915 on the Hicks date, it appears useful to address this issue as “necessary or desirable to guide the trial court.” B. The Tolling Issue It appears from the discussion at the pretrial hearings that the two prosecutors, as well as the Circuit Court, were under the misimpression that CJ §10-915 “tolls” the Hicks date in some way. The calculations done during the pretrial hearings in the Circuit Court appeared to assume that the length of the interval between the date that evidence is sent to a laboratory for DNA analysis and the date the results are received is to be added to the 180-day time limit.

In addition, there appeared to be an assumption that, if a party belatedly gave notice of an intent to use DNA evidence, the length of a continuance necessary to comply with the disclosure requirements of CJ §10-915 would necessarily be tacked onto the 180-day time limit under the Hicks rule. There are many speedy trial laws that operate in the manner imagined in the trial court. Such statutes identify an event (such as the appearance of counsel) that triggers a speedy trial clock, specify a number of days within which a defendant must be brought to 15 trial, and exclude certain time periods from the computation of those days. In other words, the speedy trial clock may be stopped or “tolled” when such an event occurs and then restarted later.

See 5 W. LaFave, et al., Criminal Procedure §18.3(c) (4th ed. Nov. 2018 update). For example, under the federal Speedy Trial Act,18 a defendant must be brought to trial within 70 days of indictment, but various periods of time are excluded in computing those 70 days – e.g., the period between the filing of a motion and the conclusion of a hearing or other disposition of that motion.19 Some of the excluded periods are limited to delays in the proceedings deemed reasonable, but other periods are excluded without reference to whether the particular delay is reasonable. The exclusion of such time periods from calculations under the Speedy Trial Act is sometimes referred to as “tolling” the speedy trial clock.

See, e.g., United States v. Stoudenmire, 74 F.3d 60, 64 (4th Cir. 1996). Unlike the federal Speedy Trial Act or similar speedy trial statutes in other jurisdictions, the Maryland statute and rule do not rely on a system of counting and excluding time periods to determine the deadline for commencing a criminal trial. The Maryland General Assembly, and this Court, elected not to require such mathematical computations, but instead opted for a system with a benchmark date – the Hicks date – with 18 18 U.S.C. §3161 et seq. 19 Also in contrast to the Hicks rule, a dismissal of charges under the federal Speedy Trial Act may be with or without prejudice, depending upon several factors. 18 U.S.C. §3162 . 16 allowance for a continuance past that date for good cause.20 Thus, under the Hicks rule, a request for a DNA examination of evidence does not automatically extend or toll the deadline for trial. A party’s need to obtain a forensic analysis of evidence, such as a DNA examination, may well constitute “good cause” for an administrative judge to grant a continuance that extends a trial date beyond the Hicks date.

See, e.g., Moody v. State, 209 Md. App. 366, 372-75 (2013); Ashton v. State, 185 Md. App. 607, 619-20 , cert. denied, 410 Md. 165 (2009). Similarly, the circumstances that support a continuance under CJ §10-915 in order for a party to provide the requisite notice of DNA evidence may also amount to good cause for a continuance for purposes of the Hicks rule. Ashton, supra. But a continuance authorized by CJ §10-915 does not automatically toll the Hicks date in the manner imagined in the Circuit Court in this case.

In its appellate filings in this case, the State has appropriately conceded that the request for a DNA examination did not automatically toll the Hicks date under CJ §10-915 20 The courts have also recognized that, although not explicitly stated in the statute and rule, a defendant may consent to a trial date beyond the Hicks date. See Part II.C.1 of this opinion. 17 or otherwise.21 The question then is, putting the tolling theory aside, whether the circumstances of this case require dismissal of the indictment under the Hicks rule.22 C. Whether the Hicks Rule Requires Dismissal in the Absence of “Tolling” 1. The Policies Underlying the Hicks Rule Prior to the Hicks decision, it was widely understood that the deadline for trial set forth in statute and rule was directory rather than mandatory. That understanding was based in part on the absence of any sanction in the statute or rule for failure to meet the deadline – an understanding that was initially confirmed with respect to the statute by the appellate courts.

See Young v. State, 15 Md. App. 707 (Moylan, J.), aff’d, 266 Md. 438 (1972).23 The Hicks decision upended that understanding. In Hicks, the trial was scheduled well within the rule’s (then) 120-day deadline, but postponed when it turned out that the defendant was incarcerated in another state. At a 21 The dissenting opinion argues that the State’s concession means that there is not a “justiciable controversy” before the Court. However, the parties reach different conclusions concerning the consequences in this