Wheeler v. State

CATHELL, Judge. On July 13, 1990, Edward Wheeler was convicted by a jury in the Circuit Court for Allegany County (Sharer, J.) of first degree rape, second degree rape, first degree sexual offense, second degree sexual offense, kidnapping, and assault with intent to rape. The trial judge merged the convictions for second degree rape, sexual offense, and assault. Wheeler was sentenced to concurrent life terms on ⁵¹⁷ the rape and sexual offense convictions, and 30 years on the kidnapping conviction.

All but 35 years was suspended. On appeal, Wheeler contends that: 1. He was denied his constitutional right to a speedy trial; 2. He was denied his right to be present at the hearing at which trial was continued beyond the 180-day limit; 3.

There was an inordinate delay in bringing the case to trial; 4. The court erred in allowing the prosecutor to question him about showing Charles Netzer a gun; 5. The court erred in restricting his cross-examination of the complaining witness; and 6. The court erred in allowing the complaining witness to remain in the courtroom after testifying and then permitting her to testify in rebuttal.

According to the testimony of the prosecuting witness, the appellant lured her away from her boyfriend, by promising to provide her with marijuana, to a spot where he produced a gun and told her he also had a knife. Upon receiving her promise to cooperate, he put the gun away, pulled her down an embankment, and forced her to engage in cunnilingus and sexual intercourse with him. We shall address appellant’s first three contentions together, as each of them relates to the delay in bringing Wheeler to trial. Appellant was arrested on August 26, 1988.

The public defender entered his appearance on October 28, 1988. The trial finally commenced on July 11, 1990, over 22 months after appellant’s arrest. The Supreme Court enunciated a four-factor balancing test in Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972), 1 used to determine whether an accused had been denied a constitutional right to a speedy trial. The four factors are: (1) the length of the delay; (2) ⁵¹⁸ the reasons for the delay; (3) the accused’s assertion of the right; and (4) the prejudice resulting from the delay.' Length of the Delay The arrest of a defendant, or formal charges, whichever first occurs, activates the speedy trial right.

State v. Gee, 298 Md. 565, 572 , 471 A.2d 712 , cert. denied, 467 U.S. 1244 , 104 S.Ct. 3519 , 82 L.Ed.2d 827 (1984). In the case at bar, the period between arrest and trial was approximately 23 months. A delay of almost two years is presumptively prejudicial, Smith v. State, 276 Md. 521 , 350 A.2d 628 (1976) (16 months); Epps v. State, 276 Md. 96 , 345 A.2d 62 (1975) (over 12 months); Howell v. State, 87 Md. App. 57 , 589 A.2d 90 (1991); Schmitt v. State, 46 Md.App. 389 , 416 A.2d 296 , cert. denied, 288 Md. 742 (1980), and certainly sufficient to trigger an analysis of the four factors enunciated in Barker, 407 U.S. 514 , 92 S.Ct. 2182 . Our review of the record indicates that the delay incrementally occurred as follows: The First Postponement On or about February 1, 1989, the State requested a continuance in order to conclude a DNA typing analysis.

This continuance was to March 27, 1989. The Second Postponement On March 27, 1989, the State and the defendant jointly requested a continuance in order for the defense to procure an independent DNA analysis and for the State to transfer its DNA result to written form. This continuance was to August 16, 1989, which carried the trial date past the 180-day requirement of Md. Rule 4-271. The Third Postponement On August 14, 1989, the defense requested another continuance to obtain further DNA typing analysis.

The new trial date was scheduled for November 8, 1989. ⁵¹⁹ The Fourth Postponement Prior to November 8, 1989, the State requested and received a continuance based on health problems of the complaining witness which were purported to be complications relating to a pregnancy. The defendant was also having problems locating a missing witness and did not object to the continuance. The case was then continued to May 30, 1990. The Fifth Postponement On May 29, 1990, new counsel appeared for the defendant and moved to have the case dismissed, which was denied and also moved for a further continuance.

The trial was then scheduled for July 11, 1990. [2] We shall discuss each of these periods, applying the tests of Barker, supra, and its progeny. Reasons for the Delay The First Postponement The State requested that the defendant provide a blood sample for testing. According to argument made by the State at a May 1990 hearing on a Motion to Dismiss on speedy trial grounds, this blood sample was not voluntarily given as had been previously agreed to and was only produced on February 1, 1989, pursuant to either a court order or search warrant. 3 Thus, the State argued, there was a necessity for a continuance in order to test the blood recently obtained. The court granted the continuance and reset the trial date to March 27, 1989.

The defense did not object to the postponement. When a delay is necessitated by the failure of the State to prepare its case, that delay weighs heavily against it. Brady v. State, 291 Md. 261 , ⁵²⁰ 267, 434 A.2d 574 (1981), Ferrell v. State, 67 Md.App. 459, 464 , 508 A.2d 490 (1986). See also Howell, 87 Md.App. at 84 , 589 A.2d 90 , and cases therein cited.

When, however, that delay is caused, at least in part, by the defendant’s reneging on an agreement, the delay should not be chargeable to the state. The Second Postponement The State and the defense joined in a Motion for Continuance on March 27, 1989. The State informed the court that DNA testing had been completed and the results orally furnished to the State, but that it would take five to six weeks to get a written report. The appellant’s attorney informed the court that he needed time to respond to the State’s test results: BY THE COURT: Mr. Donahue, initially Mr. Wheeler is not present.

You’re satisfied to proceed with this matter without his presence, is that correct? MR. DONAHUE: Yes sir. BY THE COURT: You’ve discussed with him whatever it is you’re about to tell me?

MR. DONAHUE: Until this morning I didn’t know about the results of the test, Your Honor, but we had previously discussed the possibilities of depending on the results of the State’s analysis, having our own analysis done____ I would move that a continuance be granted to allow me to make or on behalf of the Defendant an analysis ... proper analysis of the situation. BY THE COURT: All right. Then this is another joint motion for a continuance, correct, gentlemen?

MR. HAMILTON: Yes. MR. DONAHUE: Yes sir.

The court granted what it considered to be a joint request for continuance. It requested that each party inform it as to how much time would be needed for that party to be ready in respect to the DNA issue. The appellant responded by letter from his counsel dated March 31,1989, in which ⁵²¹ the defense informed the court it would need an additional 12 weeks after the 5 weeks within which the State would receive the report, or a total of 17 weeks. The court then rescheduled the trial to August 16, 1989.

The appellant argued below in his later Motion to Dismiss, and argues on appeal, that the State waited until six days before the original trial date to request a blood sample from appellant. Wheeler argues that because the State waited to get a blood sample, it somehow caused the appellant to delay getting a sample of his own blood tested. Therefore, the appellant argues, his joining in the request for a continuance should not result in this delay being considered neutral. The appellant chose to wait until the results of the State-procured tests were completed before seeking testing on his own.

There is no allegation that the State directly interfered with Wheeler’s ability to initiate his own testing. This time is not chargeable to the State. This new trial date carried the trial past the 180-day requirement of Md. Rule 4-271. The postponement request, however, was made at least jointly by the parties, and thus was requested by the appellant. 4 We, therefore, decline to hold that the provisions of Md. Rule 4-271 have been impermissibly violated.

See Miller v. State, 53 Md. App. 1, 6 , 452 A.2d 180 (1982), cert. denied, 295 Md. 302 (1983) (discussing former Md. Rule 746). We said in State v. Lattisaw, 48 Md.App. 20, 29 , 425 A.2d 1051 , cert. denied, 290 Md. 717 (1981), “As [State v.] Hicks [ 285 Md. 310 , 403 A.2d 356 (1979)] makes clear, the 180-day requirement is not entirely for the accused’s benefit, and can be waived by ⁵²² counsel.” (Emphasis in original.) 5 The Third Postponement The defendant filed a Motion for Continuance based upon the need of the defense to conduct its own DNA typing to counter the results of the State test. He argued that, because the State had used the firm Cellmark, the defense was compelled to employ a New York firm, Life Codes Corporation, and that that firm’s results would not be available in time for trial. We fail to see how the State’s actions in any way infringed upon appellant’s ability to (1) obtain a blood sample from the appellant and have it tested prior to the State’s testing, and (2) to submit a sample to Cellmark prior to the State’s submission.

This time is chargeable to the defense. The Fourth Postponement The State moved for a continuance on grounds that the trial might adversely affect the health of the State’s complaining witness. The victim was then pregnant, and the State had been advised by her doctor that the prospect of testifying was causing stress which might result in complications. The State represented that the doctor felt that the best interests of the woman and the baby required that she not testify at that time.

The victim was obviously an essential witness. The court granted the continuance to a time after the anticipated birth of the baby. We were faced with a similar situation involving multiple postponements, based upon the unavailability of a witness due to health reasons, in Howell, 87 Md.App. 57 , 589 A.2d 90 . We said: ⁵²³ The record contains a letter from a clinical psychologist which states that “a court room ordeal will cause my client to experience a full blown psychotic break.” The State’s failure to compel her presence was therefore excusable, and we shall consider this period of delay as neutral.

Id. at 82-83 , 589 A.2d 90 (footnote omitted). We shall, in the case sub judice, also consider this delay as a neutral period and not chargeable to either party. Indeed the facts suggesting this result are stronger here than in Howell because here the defense informed the court at the hearing on the motion that it was having difficulty locating one of its witnesses. After so informing the court, and raising no objection to a continuance, the defense asked the court to review the defendant’s bond.

Accordingly, when the continuance was granted by Judge Sharer, he stated: I will grant the State’s continuance, which I take not to be seriously contested by the Defendant based on the fact the Defendant himself now concedes that an important witness is unavailable to him on the 8th____ Good cause continues to exist____ The court also reduced defendant’s bail at that time.' The Fifth Postponement This continuance was requested by the defense because the defendant had obtained new counsel, who needed^ more time to prepare for the trial. It therefore is chargeable to the appellant. Assertion of the Right The trial date was already scheduled for May 30th when Wheeler first asserted his rights to a speedy trial on May 11th. The Supreme Court, in Barker , held that a speedy trial right is not waived for all time by a failure to demand it, but “[t]his does not mean, however, that the defendant has no responsibility to assert his right.” Id. 407 U.S. at 528 , 92 S.Ct. at 2191 . ⁵²⁴ While the appellant asserted his right to a speedy trial, the record before us reveals that it was asserted for the first time approximately 22 months after his arrest and within 3 weeks of his then-scheduled trial date.

The only delay thereafter was caused by his newly obtained counsel’s request for a continuance. The appellant’s extensive delay in asserting the right in the case at bar is virtually tantamount to a failure to assert the right. In the balancing test, his belated assertion carries little weight. Prejudice Wheeler argued below, in his Motion to Dismiss, that he had been prejudiced during the delay by the enactment of a new statute, now codified as Md.Cts. & Jud.Proc.

Code Ann. § 10-915 (1989 & Supp.1990), declaring DNA analysis as admissible evidence. Prior to the statute’s enactment, such evidence was admissible only if a proper foundation as to its scientific acceptance was laid. See Cobey v. State, 80 Md.App. 31, 43 , 559 A.2d 391 , cert. denied, 317 Md. 542 , 565 A.2d 670 (1989). The new statute merely codified that foundation.

The trial court found that: I’m not prepared to rule that the fact that the Legislature has seen fit to sanctify a testing process that previously was required to be done on a case by case basis creates prejudice to the defendant. We agree. We note, as did Judge Sharer, that both parties apparently utilized DNA testing and that the new statute “will facilitate the introduction of the evidence of his [Wheeler’s] testing just the same as it will facilitate ... the admissibility of evidence offered by the State____” While we agree that extensive incarceration may be presumed to be prejudicial, we note that bail originally set at $100,000 had been lowered to $25,000. At the time the bail was reduced to $25,000, it was pointed out to the trial court that the appellant had an extensive criminal record, including convictions for battery, theft, petty larceny, criminal mischief, assaults, and shoplifting.

At the time he was arrested on the instant charges, he was on parole from a ⁵²⁵ previous assault conviction. 6 Under the circumstances, we find that the pretrial incarceration was not unduly oppressive. As to the elements of anxiety and concern, we are aware, of course, that such delays may well place emotional stress upon those incarcerated, as they contemplate trial and/or sentencing. See Jones v. State, 279 Md. 1, 17 , 367 A.2d 1 (1976), cert. denied, 431 U.S. 915 , 97 S.Ct. 2177 , 53 L.Ed.2d 225 (1977). We are also aware, however, that much of the delay was caused by appellant’s requests for continuances.

We also note that in the argument below on his Motion to Dismiss, Wheeler made only bare assertions; he merely parroted the “oppressive pre-trial incarceration” and “anxious” language of the cases without specifying the nature of his oppression or anxiety. The Court of Appeals, in State v. Bailey, 319 Md. 392, 417 , 572 A.2d 544 (1990), when faced with similar assertions, stated: “Bailey makes the flat assertion in his brief that ‘[throughout the two years he lived with the anxiety and concern naturally caused by a pending prosecution.’ This bald statement, in the circumstances, has little significance.” As the trial court, in the case at bar, opined: There is a bald allegation that he suffered emotional distress as a result of delay. That’s all I’ve heard. And while he has no obligation to prove prejudice, it must be apparent on the record.

We agree. Other than the fact of the incarceration itself, the record contains no evidence of prejudice. There is no evidence that any witnesses were absent at the time of trial that would have been available earlier, or that evidence had disappeared, or that the defense was otherwise hampered. On the basis of the record, we are unable to find that his defense was impaired.

We, therefore, regard the effect of this element as minimal. ⁵²⁶ Balancing Considering the four factors, we do not believe that the trial court erred in denying the Motion to Dismiss. The delay was, of course, of constitutional dimension. In applying the four-factor balancing test, however, we note that, by our calculations, none of the delay is attributed solely to the State. The delay, from November 8, 1989, to May 30, 1990, caused by the pregnancy complications of the victim, causes us some concern.

Considering the nature of the case, i.e., rape, and the nature of the victim’s health problems, we are unable to disagree with the trial judge’s finding that this continuance was necessary. Accordingly, we have held that it was neutral. The remaining delays were either caused solely by the appellant or jointly by appellant and the State. These delays weigh heavily against appellant, as does the appellant’s failure to cooperate with counsel which caused the final delay. 7 We also place emphasis upon appellant’s failure to assert the right until just before the trial, as there is nothing in the record prior to that time to indicate a sincere desire on his part for a speedy trial. 8 We hold that the appellant’s speedy trial rights were not violated.

We perceive no error in the trial court’s denial of Wheeler’s Motion to Dismiss. ⁵²⁷ 4. Did the trial court err in allowing the prosecutor to question Wheeler about showing Charles Netzer 9 a gun? When the State questioned the appellant about showing Netzer a gun, the appellant objected. When asked to specify the grounds, his counsel stated only: “Broad.

General. No foundation.” Wheeler now appears to contend that a prior ruling, concerning a similar question propounded to Netzer when he was on the stand, indicated that the question was designed to elicit inadmissible “other crimes” evidence. This, he asserts, indicates that the trial court’s permitting Wheeler to be asked such a question is reversible error. We decipher his current argument to be based on the admissibility rules relating to “other crimes” evidence.

That ground, as we have said, was not offered when he objected below. He, therefore, has failed to preserve this issue. 10 “[W]hen an objector sets forth the specific grounds for his objection, ... the objector will be bound by those grounds and will ordinarily be deemed to have waived other grounds not specified.” Brecker v. State, 304 Md.