White v. State

LEAHY, J. Science and technology play a vital role in the criminal justice system, especially in cold cases, by, for example, exonerating the innocent and identifying the guilty through advances such as forensic DNA testing. But technology can also trample important constitutional protections, as demonstrated by the incessant struggle to protect privacy rights. Technical innovations must, therefore, satisfy the perennial dictates of the United States and Maryland Constitutions before they may be utilized in a criminal case. In this appeal, we examine, among other things, whether use in the courtroom of a two-way video conference in lieu of physical, in-court testimony by one of the State’s forensic technicians violated Appellant Robert Armstrong White’s constitutional right to confrontation. ³⁶² Two women—T.K. and E.L. 1 —were raped during separate incidents in Montgomery County, Maryland in 1979.

Despite the investigations launched in each case, their assailant was never identified. Approximately three decades later, the Montgomery County Police Department reopened these cold cases and sent the forensic evidence collected in each case to the lab for DNA testing—an investigative tool not available in the 1970s. 2 Those DNA analyses ultimately revealed a match with Appellant’s DNA. Consequently, in the spring of 2012, Appellant was separately tried for each case before two different judges in the Circuit Court for Montgomery County. At trial, the State presented the testimony of Jeanne Hostetler, the serologist who examined the original rape kits in each case, via two-way video conference.

The juries in each case ultimately convicted Appellant of the first-degree rapes, as well as other related offenses. In his timely appeal, 3 Appellant presents three questions for our review, which we have reordered: I. Did the trial court err in denying Appellant’s motion to dismiss based on Appellant’s right to a speedy trial?

II

Did the trial courts err in admitting testimony via video conference in violation of Appellant’s confrontation rights?

III

Did the trial court err in allowing the State to make improper and prejudicial statements at closing argument? ³⁶³ We hold that the circuit court properly denied Appellant’s motion to dismiss filed in the second trial because Appellant’s right to a speedy trial was not violated. Specifically, we conclude that, under the good faith standard applied to the government’s dismissal of charges announced in United States v. MacDonald, 456 U.S. 1 , 102 S.Ct. 1497 , 71 L.Ed.2d 696 (1982), the speedy-trial clock did not begin to run in this case until the filing of the second statement of charges and detain-er, and the resulting delay did not impair Appellant’s right to a speedy trial. We also hold that after conducting a fact-sensitive inquiry, the circuit court did not err in finding Ms. Hostetler unavailable to testify at trial, and correctly determined that under the circumstances, admission of her testimony via two-way video conference subject to full cross-examination in lieu of physical, in-court testimony did not violate Appellant’s constitutional right to confrontation pursuant to the principles espoused in Maryland v. Craig, 497 U.S. 836 , 110 S.Ct. 3157 , 111 L.Ed.2d 666 (1990). Appellant failed to preserve his argument that the State made improper and prejudicial arguments during closing, and we conclude that the prosecutor’s statements did not deny Appellant his fundamental right to a fair trial as to warrant plain error review.

Accordingly, we affirm the judgments of the trial courts. BACKGROUND In 2009, the Montgomery County Police Department reopened two cold cases involving the 1979 rapes of T.K. and E.L. The DNA of the semen samples taken from each case was run through the Combined DNA Index System and revealed a match to Appellant’s DNA. 4 The State then ob ³⁶⁴ tained a search warrant for the buccal swab of Appellant, and additional testing of the buccal swab with the samples taken from each cold case confirmed the DNA match. 5 In T.K’s case, Appellant was charged with two counts of first-degree rape, two counts of second-degree rape, and robbery with a dangerous weapon. In E.L.’s case, Appellant was charged with two counts of first-degree rape, two counts of second-degree rape, first-degree sexual offense, and kidnapping. 6 Although the crimes relating to each victim were charged in the same indictment, Appellant requested, and the State ultimately agreed, that each case be tried separately. A. Trial One—March 19-22, 2012—Judge McCormick Presiding T.K. testified that in March of 1979, she was twenty years old, working at the National Bureau of Standards and at the Montgomery Ward, and attending a night class at Montgomery College in Rockville, Maryland.

On March 12th, after her class ended at 8:30 p.m., she left the building and started walking toward her car in the parking lot. Suddenly a man grabbed her from behind and placed his arm across her mouth. He stuck a sharp object, which she thought was a knife, against her neck. The man told her not to make any noise and dragged her into the cover of nearby pine trees.

The man made T.K. pull her pants down and forced her to engage in vaginal intercourse. He made her wear a sweater over her head so she could not see. After making her pull her pants up again, he dragged her to another location, still holding the sharp object to her neck. Again he forced her to ³⁶⁵ pull her pants down, got on top of her, and repeated the rape.

T.K. testified that she was a virgin, that she was scared, and that when she whimpered, he admonished her to be quiet. She related that she thought he was going to cut her neck and that she was probably going to die. The man then made T.K. hand over a pack of cigarettes and her wallet, containing checks and $8.00. As he smoked a cigarette, and while holding her checkbook and driver’s license, he asked her to affirm her address and that her name was T.K. He threatened her, stating, “if you tell anybody about this....

I will go back to this house ... and fire up the house and burn everybody in it.” Next he threw her car keys. After retrieving them, T.K. got into her car and drove to her parents’ house where she lived. Her mother called the police. When the police officer arrived, T.K. told him what had happened and provided a description of her assailant, although she admitted that she was unable to get a good look at him.

She told the officer that the man had been masked, but could not remember other details. Once she arrived at Suburban Hospital, she met with a female officer and received a pelvic exam performed by a doctor. Thomas Schirf, who at the time of trial was retired from the Montgomery County police force, testified that he was the primary detective involved in T.K.’s case. After refreshing his recollection by referring to a report that he prepared during the investigation, Detective Schirf testified that he received a phone call at around 11:15 p.m. regarding a rape on March 12, 1979, and that he drove over to T.K.’s home.

T.K. described her attacker as a “Negro male, age unknown, 5'8", medium build, wearing a green Army field jacket, white knit hat pulled over face, white gloves or hands wrapped with a white cloth.” Detective Schirf collected T.K.’s clothing for evidence. Then T.K. accompanied Detective Schirf to the crime scene, where she pointed out the pine trees and wooded area and recounted what had occurred. Immediately thereafter, Detective Schirf took T.K. to Suburban Hospital, where a doctor conducted a pelvic exam and collected samples for a rape collection kit in ³⁶⁶ the presence of female officer, Sheila Rahn. After the evidence was gathered, Detective Schirf placed the evidence into sealed bags that ultimately went to the crime lab in a sealed box.

He then gave the box to Detective Gibson, who delivered the box to Jeanne Hostetler, a serologist. Sheila Feeney (maiden name Rahn), a retired Montgomery County police officer, testified that she witnessed T.K.’s pelvic exam and the doctor’s collection of swabbings for T.K’s rape kit. She obtained the samples and swabs from the doctor conducting the exam and placed them back into the kit. Jeanne Hostetler then testified—via video conference—that she was a forensic serologist for the Montgomery County Police Department in 1979. 7 She received the box of evidence in T.K’s case in sealed condition and opened the box to conduct a serological analysis of the items therein.

To conduct this analysis, she cut small portions of the swabbings for her examination and replaced the remaining portions into the original containers. After her examination, she placed the containers back into the box, sealed it, and returned the box to another detective. T.K’s assailant could not be identified during the initial investigation. Detective Joe Mudano, a detective in Montgomery County Police Department’s Cold Case Unit, testified that in May 2009, he reopened the investigation into T.K.’s rape.

Detective Mudano began his investigation by collecting all of the materials from the original investigation, including the crime scene photographs and the old police files from the County’s Archives. He also obtained the original evidence box from the secured Evidence Storage Facility. The box was closed, and the tape on the box was “kind of ragged,” but “still intact with the initials of who sealed it in all respects, top and bottom.” It contained the victim’s clothing from the night of the rape, and the forensic evidence obtained by the hospital, including vaginal and cervical swabs. Detective Mudano took the vagi ³⁶⁷ nal and cervical swabs, without opening the glass tubing or touching the swabs, and placed them into a sealed evidence bag, which he brought to Bode Technology, a private company that performed DNA testing for the County.

He then obtained a buccal swab—a Q-tip swab from the inside of a person’s cheek—from T.K. After the initial DNA test results came back, Detective Mudano obtained a search warrant to obtain a buccal swab from Appellant. Detective Mudano testified that upon executing that warrant, Appellant responded that “it was not in his best interest to cooperate or comply with the warrant to provide us a sample.” Appellant did, however, ultimately comply. The State then called several Bode Technology analysts who assisted in the process for DNA analysis in T.K’s case, including the cutting, extraction, amplification, and sequencing of the buccal and cervical swab samples. 8 Amy Baldwin, a forensic DNA analyst at Bode Technology Group, testified that the DNA analysis indicated that Appellant’s DNA profile matched one of the DNA profiles extracted from the cervical swab from T.K. She testified that “[t]he probability of randomly selecting an unrelated individual with th[e] DNA profile [in TK’s case] at 15 of the 15 areas tested is about 1 in 190 septillion in the U.S. Caucasian population, 1 in 1.2 septillion in the U.S. African-American population and 1 in 50 septillion in the U.S. Hispanic population.” Barry Segelken, an employee with the Motor Vehicle Administration, testified confirming Appellant’s address in 1979—-a location demonstrated to be only five miles away from Montgomery College. ³⁶⁸ On March 23, 2012, the jury convicted Appellant of two first-degree rapes of T.K. and robbery, but acquitted Appellant of robbery with a dangerous weapon. B. Trial Two—April 10-13, 2012—Judge Greenberg Pre-sidling E.L., twenty-two years old in November 1979, testified that on November 16, 1979, she went to Walter Johnson High School to attend her younger brother’s band performance.

She pulled into the parking lot, and as she was turning her car off, her door suddenly flung open, and a man shoved her down and said, “Don’t look at me. Keep your head down.” After telling someone nearby to “get out of here,” he got into the car and began to drive away from the school. When the car came to a stop, the man directed E.L. to take her clothes off. E.L. briefly felt a cold piece of metal on her left side and thought it could have been a knife.

The man instructed her not to look at him or she would “get it” and made her wrap her shirt around her head so she could not see him. He then “forced intercourse.” Next he made E.L. engage in fellatio, threatening her to “do it nicely and you won’t get hurt.” He then instructed her to lay face down and again forced vaginal intercourse on her. The man then drove E.L. back to the school and stopped the car. He said, “I’m going to leave you here now and don’t look up or you’re going to get it and everyone is going to get it ... count to 50 and then you can get up.” After he left, E.L. was afraid to move, but slowly dressed herself, went into the school, and went directly to a police officer to tell him she had been raped.

She was then taken to Suburban Hospital, where she received a pelvic exam in the presence of a female officer. She remembered swabbings and her clothing being taken. Catherine Stavely, a retired Montgomery County police officer at the time of trial, testified that she responded to the hospital on November 16, 1979 to investigate the rape of E.L. While there, she interviewed E.L. and obtained a statement ³⁶⁹ about what had happened, which was recorded in her report and read aloud to the jury. She stated that she was unable to identify the suspect because E.L. only got a brief look at the suspect and that the fingerprint processing did not successfully reveal any latent prints.

She was also present during the pelvic examination conducted at the hospital and witnessed the collection of swabbings and samples for the rape kit. She then put the items into the rape kit bag, sealed it, and delivered the bag to Jeanne Hostetler for serology testing. Jeanne Hostetler testified via video conference that in 1979, she worked as a serologist at the Montgomery County Police Department. She received E.L.’s rape kit from Ms. Stavely and conducted an analysis of the items.

This required her to take small cuttings from the swabs/clothing and then place them back into the containers in sealed condition. She then placed the containers back in to the evidence box and sealed it. Appellant’s counsel cross-examined Ms. Hostetler about the items of clothing she examined. She agreed that she was unable to identify a suspect from her testing.

Detective Mudano, a detective in Montgomery County Police Department’s Cold Case Unit, testified that in late 2009 or January 2010, he reopened the 1979 rape of E.L. He began by collecting the original evidence bag, including the rape kit, from the County’s evidence storage facility. No clothing was located, although he had knowledge that E.L.’s clothing had been taken into custody. The bag was intact, taped, and sealed, bearing, among other things, the victim’s name. The items therein were then transferred to another bag and resealed.

Detective Mudano clarified that he only transferred the cervical and saliva swabbings from the rape kit, and did not fully open them. He then hand-carried the evidence bag to Bode Technology for DNA testing. He also obtained the original photos taken at the scene and all police reports. Again, after learning that there was a male DNA profile obtained from the cervical swabbing in E.L.’s rape kit, Detec ³⁷⁰ tive Mudano obtained a search warrant to obtain a buccal swab from Appellant. 9 Upon being served with the warrant, Appellant responded that “he did not think it was in his best interest to comply with the warrant.” However, Appellant ultimately complied, and the sample was thereafter brought to Bode Technology for testing.

As in the prior trial, the State called several Bode Technology DNA analysts who assisted in the process for DNA analysis in E.L.’s case. 10 Julie Ferragut, a senior DNA analyst at Bode Technology qualified as an expert in the field of forensic DNA analysis, testified that she reviewed the work of the other analysts and produced a final report. She opined that the DNA profile extracted from the sperm fraction of the cervical swabbing matched the DNA profile obtained from Appellant’s buccal swab. She testified that the “probability of randomly selecting an unrelated individual with this DNA profile at 11, at 15 lo[c]i is 1 in 500 trillion in the U.S. Caucasian population; 1 in 66 trillion in the U.S. African American population; and 1 in 150 trillion in the U.S. Hispanic population.” Again, Barry Segelken from the Motor Vehicle Administration testified that Appellant’s address in 1979 was five miles away from the school. ³⁷¹ On April 13, 2012, the jury found Appellant guilty of two counts of first-degree rape of E.L., first-degree sexual offense, and kidnapping. C. Sentencing On May 30, 2012, in T.K’s case, Judge McCormick imposed two consecutive sentences of life imprisonment for the first-degree rapes to run consecutively to any sentence Appellant was currently serving, 11 and consecutive sentence of 10 years for robbery.

The second-degree rape offenses merged. That same day, in E.L.’s case, Judge Greenberg imposed two consecutive sentences of life imprisonments for first-degree rape, a consecutive sentence of life imprisonment for first-degree sexual offense, and a consecutive sentence of 30 years for kidnapping. All sentences were to run consecutive to any previously imposed sentence. Appellant filed an appeal of both convictions and sentences on June 4, 2012.

Additional facts are presented as they pertain the issues addressed in the discussion. DISCUSSION I. Constitutional and Statutory Speedy Trial Rights Appellant contends the circuit court erred in denying his motion to dismiss for the State’s failure to timely bring his case to trial in violation of (1) the Intrastate Detainer Act (“IDA”), 1999 Laws of Maryland, ch. 54 (H.B. 11) (codified at Maryland Code (1999, 2008 RepLVol.), Correctional Services Article (“CS”) §§ 8-501 to -503); (2) Maryland Rule 4-271 (commonly known as the Hicks 12 rule); and (3) his constitutional right to a speedy trial. Appellant’s motion to dismiss, filed on April 4, 2012, challenged only the timeliness of his ³⁷² second trial; therefore, only the timeliness of trial two before Judge Greenberg is preserved for our review. The State initially obtained a district court statement of charges on November 23, 2010.

A warrant was issued. Appellant was incarcerated at the time of the charges, so the warrant automatically converted into a detainer. But Appellant was never served with the arrest warrant because the State entered a nolle prosequi (“nol pros”) 13 on April 15, 2011, claiming that due to the unavailability of a witness, the State could not go forward with the case. Appellant disputes the State’s ground for entering the nol pros contending instead, that the State filed the nol pros to circumvent the Hicks rule.

The State obtained a new statement of charges, warrant, and detainer on July 22, 2011. The undisputed operative dates for our analysis include the following: • November 23, 2010: The district court issued a statement of charges and an arrest warrant/detainer, because Appellant was serving a sentence on an unrelated conviction at the time. 14 • February 1, 2011: The State received Appellant’s request for disposition under the IDA. • April 15, 2011: The State entered a nolle prosequi, or “nol pros” as to the statement of charges. • April 19, 2011: The arrest warrant/detainer was recalled. ³⁷³ • July 22, 2011: The district court issued a statement of charges (relating to the same charges) and an arrest warrant/detainer. • August 31, 2011: The arrest warrant was served on Appellant, and Appellant appeared before the district court. • September 29, 2011: The State filed an indictment in the circuit court. With these dates in mind, we turn to each of Appellant’s three arguments. A. The Intrastate Detainer Act We quickly dispose of Appellant’s argument that the circuit court erred in concluding the IDA was not violated.

Under this Act, “[a]n inmate shall be brought to trial within 120 days after the inmate has delivered a written request for a final disposition of the indictment, information, warrant, or complaint” to the State’s attorney and the appropriate court. CS § 8-502(b). If an action is not brought to trial within 120 days, “the untried indictment, information, warrant, or complaint has no further force or effect” and “the court, on request of the inmate or the inmate’s counsel, shall enter an order dismissing the untried indictment, information, warrant, or complaint without prejudice.” CS § 8-503(e) (emphasis added). The circuit court found that the State did not violate the IDA because the State received Appellant’s request for disposition on February 1, 2011 and, within the required 120-day timeframe, disposed of Appellant’s case by nol prossing the charges.

We agree. Appellant did not file a request for disposition for the second detainer filed against him on July 22, 2011. Therefore, the only detainer at issue is the first detainer filed on November 23, 2010. As to the first detainer, Appellant properly requested final disposition under the IDA, and the State received this request on February 1, 2011.

The State thereafter entered a nol pros for the November 23, 2010, charges on April 15, 2011, and the detainer was revoked on ³⁷⁴ April 19, 2011. Based on these facts, the detainer was “disposed of’ within 120 days of Appellant’s request. Even if the State had filed the nol pros after 120 days, the relief that would have been afforded for such a violation was already provided: a dismissal without prejudice. See Gilmer v. State, 389 Md. 656, 670 , 887 A.2d 549 (2005) (“Obviously the type of nolle prosequi which does not bar future prosecution under another charging document has the same effect as a dismissal without prejudice.” (quoting State v. Morgan, 33 Md. 44, 46 (1870))).

B. Hicks/Rule 4-271 Next, Appellant charges that the State entered the nol pros of the district court statement of charges in bad faith and with the intention of circumventing Hicks, Maryland Rule 4-271(a)(1), and Maryland Code (2001, 2008 Repl.Vol.), Criminal Procedure Article (“CP”) § 6-103. Section 6-103 and Rule 4-271(a) require the State to bring criminal cases to trial within 180 days of a defendant’s first appearance in the circuit court. 15 See also Hicks, supra, 285 Md. at 318, 403 A.2d 356 (establishing the sanction of dismissal for noncompliance, absent certain exceptions). We need not decide whether the State’s dismissal of the initial district court statement of charges violated Hicks because based on the plain language of Rule 4-271, only proceedings in the circuit court—not the district court— trigger the 180-day clock. Scott v. State, 49 Md.App. 70, 86 , 430 A.2d 615 (1981) (holding that the 180-requirement applies to circuit court, not district court, proceedings); see also State v. Farinholt, 54 Md.App. 124, 130 , 458 A.2d 442 (1983) (“The rule is inapplicable to delays occurring in the district court.” (citing Scott, 49 Md.App. at 86 , 430 A.2d 615 )), aff'd, 299 Md. ³⁷⁵ 32, 472 A.2d 452 (1984).

Here, Appellant’s first appearance before the circuit court was on October 21, 2011; 16 therefore, in order to comply with Rule 4-271, Appellant’s trial had to begin by April 18, 2012. Appellant’s second trial for the rape of E.L. began on April 10, 2012. 17 Thus, Hicks was not violated. Although the circuit court was not required to engage in the analysis, it found that the State acted in good faith when entering the nol pros of the district court statement of charges and did not intend to circumvent Hicks. 18 The court observed that the case was 30 years old; that, at the time of the nol pros, a presumed necessary witness was unavailable for an unknown period of time; and that, from among various options, the State chose not to pursue the charges until the witness could be available. The court also found that the nol pros did not have the necessary effect of circumventing Hicks because it did not “evade” a denial of a motion for continuance. ³⁷⁶ C. Constitutional Right to a Speedy Trial Last, Appellant contends that the circuit court erred in concluding that his constitutional right to a speedy trial was not violated. 19 When reviewing a circuit court’s judgment on a motion to dismiss claiming deprivation of the right to a speedy trial, “we make our own independent constitutional analysis.” Glover v. State, 368 Md. 211, 220 , 792 A.2d 1160 (2002) (citing State v. Bailey, 319 Md. 392, 415 , 572 A.2d 544 , cert. denied, 498 U.S. 841 , 111 S.Ct. 118 , 112 L.Ed.2d 87 (1990)). “We perform a de novo constitutional appraisal in light of the particular facts of the case at hand; in so doing, we accept a lower court’s findings of fact unless clearly erroneous.” Id. at 221 , 792 A.2d 1160 (citations omitted).

The Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantee the right of an accused to a speedy trial. 20 Divver v. State, 356 Md. 379, 387-88 , 739 A.2d 71 (1999). In Barker v. Wingo, 407 U.S. 514, 529-30 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972), 21 the Supreme Court established factors to be balanced to determine whether a defendant was deprived his or her right to a speedy trial. These factors include the “[l]ength of ³⁷⁷ delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. at 530 , 92 S.Ct. 2182 . None of these factors are sufficient alone to establish deprivation of the right to a speedy trial; instead, they “must be considered together with such other circumstances as may be relevant.” Id. at 533 , 92 S.Ct. 2182 .

Courts must “engage in a difficult and sensitive balancing process” while maintaining “full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.” Id. We turn to our review of the Barker factors. 1. Length of Delay The “length of delay” factor is “a term of art that serves two separate and distinct functions in a speedy trial analysis.” Ratchford v. State, 141 Md.App. 354, 358 , 785 A.2d 826 (2001). First, “it identifies the threshold that must be crossed before further analysis is called for[,]” marking “the minimal point” of constitutional dimension.

Id. Unless the delay crosses the line from ordinary delay to presumptively prejudicial delay, “there is no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530 , 92 S.Ct. 2182 . Once the delay triggers the four-factored analysis, we view the length of delay on its merits as a distinct inquiry. Ratchford, 141 Md.App. at 359-60 , 785 A.2d 826 . “[T]he length of delay is measured from the date of arrest or filing of indictment, information, or other formal charges to the date of trial.” Divver, 356 Md. at 388-89 , 739 A.2d 71 (citing State v. Gee, 298 Md. 565, 569 , 471 A.2d 712 , cert. denied, 467 U.S. 1244 , 104 S.Ct. 3519 , 82 L.Ed.2d 827 (1984)).

This case requires a more complex examination to determine which date should serve as the starting point to determine the “length of delay”: November 23, 2010 (the first district court statement of charges, arrest warrant, and detainer); July 22, 2011 (the second district court statement of charges, arrest warrant, and detainer); August 31, 2011 (ser ³⁷⁸ vice of the arrest warrant); or September 29, 2011 (indictment filed). i. November 23, 2010 Statement of Charges, Arrest Warrant, and Detainer The circuit court determined that it would consider the delay to be the period of time from November 23, 2010 to the date the first trial began, March 19, 2012. Appellant, naturally, argues the circuit court properly used November 23, 2010—the district court’s statement of charges and arrest warrant (which was never served)—as the triggering date for the speedy-trial analysis, thereby resulting in a delay of approximately 17 months. We disagree.

In State v. Gee, the Court of Appeals established that a district court statement of charges and accompanying arrest warrant only constitute a “formal charge” in the speedy-trial context “when a defendant is subject to be tried on that document.” 298 Md. 565, 574 , 471 A.2d 712 (1984) (emphasis omitted). The Court explained that when the charges are within the district court’s jurisdiction, the State is committed to and has commenced the criminal prosecution upon the issuance of the statement of charges. Id. “On the other hand when the defendant cannot be tried under the warrant-statement of charges he is not held to answer a criminal charge on the basis of that document” and, therefore, it is not a “formal charge.” Id. The Court expounded: Its issuance does not mark the onset of formal prosecutorial proceedings to which the Sixth Amendment guarantee is applicable, nor has the putative defendant thereby become an “accused.” The State has not by the issuance of such a warrant-statement of charges committed itself to prosecute.

Before it can proceed the grand jury must indict or the State’s Attorney must file an information. Neither is obliged to do so. Until an indictment has been returned or an information filed the adverse positions of State and defendant have not solidified, nor is the defendant at that point faced with the prosecutorial forces of organized soci ³⁷⁹ ety and immersed in the intricacies of substantive and procedural law. Id.

Here, the initial statement of charges and accompanying arrest warrant included three counts of first-degree rape, one count of kidnapping, and one count of first-degree sex offense. Pursuant to Maryland Code (1973, 2013 Repl.Vol.), Courts and Judicial Proceedings Article § 4-302(a), these crimes are felonies within the circuit court’s exclusive jurisdiction. Accordingly, the State could not prosecute Appellant on those charges in the district court; instead, in order to commit to prosecution, the State would have to obtain an indictment from a grand jury or file a criminal information. Gee, 298 Md. at 574 , 471 A.2d 712 .

Therefore, the November 23, 2010 statement of charges and mere issuance of the arrest warrant did not trigger his speedy-trial right. In addition, the record does not reflect that the arrest warrant was ever actually served, i.e. Appellant was never brought to court on these charges. Had this occurred, the arrest would have triggered his speedy trial right.

Id. at 577 , 471 A.2d 712 . The record does, however, reflect that a detainer was lodged pursuant to that warrant and statement of charges. The Court of Appeals has opined, without deciding, that the filing of a detainer arguably could be the equivalent of an arrest: “Like an arrest, [a detainer] placets] a restraint on [an inmate], seriously interfering with his liberty by precluding his freedom upon his release from incarceration by reason of the other convictions, and by its impact on such prison privileges he may have enjoyed” and “[i]t may be said that the detainer subjects] him to further public obloquy, and create[s] anxiety in him, his family and his friends, as with an actual arrest.” Id. at 577-78 , 471 A.2d 712 (footnotes and citations omitted). Subsequently, this Court has relied on the language in Gee to hold that a detainer initiated the speedy-trial clock.

See Lee v. State, 61 Md.App. 169, 177-78 , 485 A.2d 1014 cert. denied, 303 Md. 115 , 492 A.2d 616 (1985). ³⁸⁰ Yet in this case, the November 23, 2010, detainer was released pursuant to the nol pros entered on April 19, 2011. We are hesitant to conclude that this detainer was the equivalent of an arrest, but because the record reflects that Appellant was up for a parole hearing around the time of the nol pros, we assume the detainer could have impacted his parole hearing. Thus, in light of Gee and Lee , we will presume that the detainer amounted to an arrest and consider whether the subsequent nol pros and consequential release of the detainer was done in good faith. In United States v. MacDonald, 456 U.S. 1, 7 , 102 S.Ct. 1497 , 71 L.Ed.2d 696 (1982), the Supreme Court established that “the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges.” The Supreme Court has explained that when charges are dropped, the formerly accused is, at most, in the same position as any other subject of a criminal investigation.

Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life.... But with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending.... Following dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation. Id. at 8-9 , 102 S.Ct. 1497 .

In State v. Henson, the Court of Appeals formally recognized that the MacDonald good-faith standard is binding on Maryland courts and further held that “where the State terminates a prosecution in good faith, i.e. it does not intend to circumvent the speedy trial right, and the termination does not have that effect, the period preceding the earlier dismissal is not counted in the speedy trial analysis.” 335 Md. 326, 338 , 643 A.2d 432 (1994) (emphasis added). Our courts have had several occasions to apply the MacDonald standard. For example, in Lee, supra, the district ³⁸¹ court issued a statement of charges and an arrest warrant on June 8, 1982, and on June 11, the court lodged a detainer. 61 Md.App. at 171 , 485 A.2d 1014 . On August 5, 1982, the State filed an indictment.

Id. Although Appellant filed a request for disposition under the IDA, no action was taken until the day trial was set to begin: March 8, 1983. Id. That day, the circuit court dismissed the indictment without prejudice for violation of the IDA.

Id. According to the State, it had misplaced the defendant’s request for disposition. Id. at 177 , 485 A.2d 1014 . Two days later, on March 10, the State re-indicted the defendant.

Id. at 171 , 485 A.2d 1014 . The defendant moved to dismiss the charges for violation of his right to a speedy trial, and the circuit court denied his motion. Id. On appeal, we recognized that the facts in Lee did not involve a voluntary dismissal like a nol pros, but nevertheless found the MacDonald standard as well as Hicks case law to be instructive. 22 We concluded that the nine-month delay from the defendant’s request for disposition under the IDA to the date of trial was “not indicative of any due diligence on the part of the State.” Id. at 176, 485 A.2d 1014 .

In our view, “[t]he negligent misplacing of [the defendant’s] request for disposition which caused dismissal of the indictment, although not amounting to bad faith, simply is not the same as a good faith dismissal sanctioned by the MacDonald court.” Id. at 177, 485 A.2d 1014 . Looking to the first indictment period, we were ultimately persuaded that the filing of the detainer was sufficient to trigger the speedy-trial clock. Id. at 177-78 , 485 A.2d 1014 . In Clark v. State, we applied MacDonald and concluded that the State acted in good faith when it nol prossed the first indictment. 97 Md.App. 381, 391 , 629 A.2d 1322 (1993).

We found good faith to be “apparent,” because the victim and only ³⁸² eyewitness refused to testify, the victim issued a statement exonerating the defendant, and evidence reflected that the defendant was responsible for the witness’s refusal to testify. Id. Accordingly, we concluded that the case “presented] an appropriate situation in which to apply the MacDonald Rule” and, therefore, looked to the second indictment to begin the speedy-trial clock. Id. at 393-94, 629 A.2d 1322 ; see also Collins v. State, 192 Md.App. 192, 208, 213 , 993 A.2d 1175 (2010) (agreeing with the circuit court that the State acted in good faith in dismissing the original charges when the State wanted to ensure that it would be prosecuting the right person).

Here, the circuit court found that the State acted in good faith in entering the nol pros and thereby releasing the detainer, 23 and we find no error in that determination. The sole identification evidence in both cases was the DNA analysis results completed by Bode Technology (“Bode”), and Amy Baldwin, a forensic DNA analyst employed by Bode, was involved in the DNA testing in each case. Pending before the Court of Appeals at that time was a case presenting the question of whether all DNA analysts who participated in the analysis would be required to testify at trial. 24 In anticipation ³⁸³ of this decision, the State had reason to believe that Ms. Baldwin would be an essential witness. After the State initiated charges in the district court, Bode apparently advised the State that Ms. Baldwin would be working out of the country, but did not advise where or the exact date of her return.

Bode further advised that upon her return, Ms. Baldwin would only be in the United States temporarily before leaving to work on another international contract. Without Ms. Baldwin’s testimony, the State was confident that it could not proceed with the prosecutions at that time and nol prossed the charges. When Ms. Baldwin did, in fact, return to the country, the State filed a new statement of charges. The record, as the circuit court found, does not suggest that the State nol prossed the case in an attempt to undermine Appellant’s right to a speedy trial; rather, it appears that the State, in exercising due diligence, believed it could not successfully proceed with prosecuting Appellant absent the testimony of Ms. Baldwin. 25 The delay between the nol pros (April ³⁸⁴ 15, 2011) as well as the revocation of the detainer (April 19, 2011), and the reinstitution of charges/lodging of a detainer (July 22, 2011) was approximately three months.

The nol pros did not have the purpose of denying Appellant a speedy trial, nor did it have the effect of doing so. We conclude, therefore, that the November 23, 2010 statement of charges, arrest warrant, and detainer did not trigger the speedy-trial clock. ii. The July 22, 2011 Detainer There are three other potential “triggering” dates: the second statement of charges/filing of the detainer on July 22, 2011; the August 31, 2011 service of the arrest warrant; or the September 29, 2011 indictment. The August 31, 2011 service of the arrest warrant certainly triggered the speedy-trial clock, but, following our decision in Lee , we will treat the filing of the detainer on July 22, 2011 as our operative start date.

Accordingly, the delay from July 22, 2011 to Appellant’s second trial on April 10, 2012 was approximately 8.5 months (8 months and 19 days). Because this delay might be construed as presumptively prejudicial and of constitutional dimension, we will proceed to address the Barker factors. See Lloyd v. State, 207 Md.App. 322, 329 , 52 A.3d 161 (2012) (addressing the delay of eight months and fifteen days because the delay “might” be considered presumptively prejudicial), cert. denied, 430 Md. 12 , 59 A.3d 507 (2013). 2. Reason for Delay “The span of time from charging to the first scheduled trial date is necessary for the orderly administration of justice, and is accorded neutral status.” Howell v. State, 87 Md.App. 57, 82 , 589 A.2d 90 (1991) (citations omitted).

In the instant case, the court did not find that the period from July 2011 to trial was unusual. Indeed, after the statement of charges and detainer were issued on July 22, 2011, Appellant was served with the arrest warrant on August 31, 2011. The State filed an indictment in the circuit court on September 29, 2011, and Appellant’s first appearance was on October 21, 2011. A hearing was scheduled for January 6, 2011, and both ³⁸⁵ parties agreed to postpone the pre-trial hearing to February 9, 2012.

At that hearing, the parties scheduled Appellant’s trial for the first victim in March and for the second victim in April. In our view, this sequence of events reflects the natural progression of trial preparation and is accorded neutral status. 3. Assertion of Speedy Trial Right Whether and how a defendant asserts his right is closely related to the other factors we have mentioned.... The more serious the deprivation, the more likely a defendant is to complain.

The defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. Barker, 407 U.S. at 531-32 , 92 S.Ct. 2182 . Even if Appellant’s request for action under the IDA pursuant to the first statement of charges and detainer would have constituted a request for speedy trial, he did not file another request when the second detainer was lodged.

The record reflects that Appellant first asserted his right to a speedy trial by filing the motion to dismiss on April 4, 2012, six days before his second trial. We also accord this factor neutral weight. 4. Prejudice “Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect”: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.

Barker, 407 U.S. at 532 , 92 S.Ct. 2182 (footnote omitted). In the case at bar, the court found no oppressive pre-trial incarceration because Appellant was already incarcerated; that ³⁸⁶ there was no specific testimony that Appellant suffered any anxiety; and, given the lack of testimony to demonstrate otherwise, that there was no impediment to Appellant’s case given that the case was 30 years old. We agree that there was no oppressive pre-trial incarceration and there is no evidence in the record that Appellant suffered any additional anxiety and concern beyond that which is expected when charges are pending. Most importantly, we are unable to discern any impairment to the defendant’s case.

The cases underlying this appeal were cold cases, and we are of the view that any damage to Appellant’s case would have resulted from the passage of time from 1979 to 2011, not from 2011 to 2012. 5. Balancing of the Barker Factors Upon balancing the foregoing factors, we conclude that Appellant’s right to a speedy trial was not violated. The 8.5-month delay from the filing of the detainer to his second trial date largely resulted from the natural progression of judicial administration, first presenting the charges to the grand jury, lodging an indictment, permitting discovery, and conducting pre-trial hearings before trial. Moreover, it was Appellant’s request to have the cases relating to two different victims tried separately, and there were no trial postponements requested by the State.

Therefore, we affirm the circuit court on its denial of Appellant’s motion to dismiss.

II

Right to Confrontation By the time the two cold cases went to trial, Jeanne Hostetler was retired, living in Arizona, and unable to travel due to a debilitating back condition. Appellant challenges the State’s contention that this witness, an important link in the chain of custody of Appellant’s DNA, was subject to full cross-examination during her testimony via two-way video conference, and asserts that the admission of her testimony by the court violated Appellant’s Sixth Amendment right to confrontation. Appellant contends that the absence of physical face-to-face confrontation is only permitted when necessary to ³⁸⁷ further an important public policy and where the testimony is otherwise reliable, and he maintains neither circumstance was present here. The State responds that the admission of Ms. Hostetler’s testimony via video conference did not violate Appellant’s constitutional rights to confrontation because the testimony was a reliable, live two-way video that allowed Appellant to see Ms. Hostetler and Ms. Hostetler to see Appellant.

Indeed, during the hearing before Judge McCormick and during the second trial, Appellant’s counsel questioned and cross-examined Ms. Hostetler. Moreover, the State contends that permitting the two-way live video testimony in this case furthered the public policy of resolving cold cases and protecting the witness. We agree with the State. Skype Hearing On Monday March 19, 2012 at Appellant’s first trial, the State advised Judge McCormick that Ms. Hostetler advised the State three days earlier, late Friday afternoon, that she could not travel to Maryland to testify due to back problems stemming from a prior vertebrae-fusion surgery.

The State proposed the possibility of procuring her testimony by using Skype. 26 The next day, Judge McCormick held a hearing to examine Ms. Hostetler via Skype out of the jury’s presence. 27 Employing the Skype technology in the courtroom, the State presented Ms. Hostetler’s testimony that she was a 63- ³⁸⁸ year-old retired forensic serologist of the Montgomery County Policy Department and lived in Arizona. She received and intended to comply with the State’s