Tunstall v. State

Gilbert, J., delivered the opinion of the Court. The Appellants were jointly tried and convicted in the Criminal Court of Baltimore of the offense of armed robbery. For the reasons set forth herein, we shall reverse and remand the case for a new trial. The Appellants assign, inter alia, as reasons for their appeal: 1.

That they were denied the right to a speedy trial. 2. That they were placed in double jeopardy in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States. 3. That the trial judge erred in refusing the voir dire request of the Appellants. I The Appellants argue that although they were arrested on the 18th day of October, 1969, they were not tried until October 21, 1970.

We have carefully examined the docket entries and find the following: Presentment on November 5, 1969; indictment filed November 26, 1969; arraignment and pleas, December 16, 1969; appearance of counsel, January 2, 1970; motions for discovery and inspection, January 23, 1970; motion to employ expert witness on January 29, 1970; a hearing on the motion to employ expert witness on February 20, 1970; motion for a speedy trial, in proper person, May 8, 1970; motion to dismiss indictment, July 17, 1970; rearraignment and pleas, jury trial prayed July 20, 1970; voir dire, July 20, 1970; trial, July 21, 1970; mistrial, July 21, 1970; motion for a speedy trial, in proper person, July 29, 1970; motion to dismiss indictment and/or ⁷²⁵ speedy trial, August 14, 1970; request for hearing on motion to dismiss and/or a speedy trial, September 3, 1970; medical report on State’s witness filed September 16, 1970; trial October 21,1970. No record has been presented to us of the proceedings before Judge Harris on the dates, July 20 and 21, 1970, albeit we are informed in the briefs that the State’s witness, Mr. Abramowitz, could not recall the details and that a mistrial was declared. The first motion for a speedy trial was filed on May 8, 1970, and the Appellants were brought to trial on July 21, 1970, which was 73 days later. We cannot find that the delay was of such an unreasonable nature as to bring it within the prohibition stated in Bryant v. State, 4 Md. App. 572 (1968).

The second and third requests for a speedy trial were made July 29, 1970 (in proper person) and August 14, 1970, respectively. The case proceeded to trial on October 21, 1970, which was 92 days after the mistrial. We held in Barnett v. State, 8 Md. App. 35, 39 (1969) : “* * *. The right to a speedy trial is a relative one and the time within which trial must be had to satisfy the guaranty depends on the facts and circumstances of the particular case.

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 of the right by the accused.” In Westmoreland v. State, 8 Md. App. 482 (1970), this court, in commenting upon a denial of a motion for speedy trial where more than three months time elapsed between the .time of the filing of the