Wilson v. State

⁶⁴² Okth, J., delivered the opinion of the Court. We hold, contrary to the decision of the Circuit Court for Carroll County, and in accord with the decision of the Court of Special Appeals, that the prosecution of Robert Michael Wilson by the State of Maryland for crimes he is alleged to have committed in May 1971 is not precluded by the speedy trial guarantee of the Sixth Amendment to the Constitution of the United States. In so holding, however, we bear in mind, as we emphasized in Jones v. State, 279 Md. 1, 7 , 367 A. 2d 1 (1976), cert. denied, 431 U. S. 916 (1977), that “[a] defendant has no duty to bring himself to trial; the State has that duty... .” Barker v. Wingo, 407 U. S. 514, 527 , 92 S. Ct. 2182 (1972). See Epps v. State, 276 Md. 96, 118 , 345 A. 2d 62 (1975).

It follows, therefore, that the State may not excuse delay in bringing an accused to trial merely because he is incarcerated for other offenses in this or other jurisdictions. As the Chief Judge of this Court observed in dissenting in Jones , the result reached by the majority “should serve as a bitter lesson to prosecutors and judges throughout the State not to risk playing Russian roulette with the public’s right to have criminal defendants brought to the bar of justice on a timely basis.” Id. 279 Md. at 22 (Murphy, C. J., dissenting). It is manifest that Wilson was not brought to trial with commendable dispatch, and we do not suggest that he was. As we shall see, it is primarily because of certain affirmative actions on the part of Wilson himself, resulting in a judicial order preventing trial during a period of the delay, which tips the balance so as to permit prosecution.

Only the unique circumstances of this case lead to the conclusion that the failure of the State to effect an earlier trial did not violate the constitutional guarantee. Wilson was arrested in Carroll County, Maryland on 26 May 1971. On 24 January 1972 six true bills (indictments nos. 3356 to 3361, inclusive) were filed in the Circuit Court for Carroll County presenting that on 26 May 1971 he committed five offenses of assault with intent to murder certain police officers, a burglary and fourteen other crimes arising out of those offenses. On 30 October 1975 all of the indictments were dismissed by order of the Circuit Court for Carroll ⁶⁴³ County upon Wilson’s motion alleging that he was denied a speedy trial.

On direct appeal by the State, the Court of Special Appeals vacated the order and remanded the case for trial. State v. Wilson, 35 Md. App. 111 , 371 A. 2d 140 (1977). We granted Wilson’s petition for a writ of certiorari. We affirm the judgment of the Court of Special Appeals.

I The federal constitutional dictate for a speedy trial is simply set out: “In all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial____” U. S. Const, amend.

VI

However, in the decade since the Supreme Court of the United States declared in Klopfer v. North Carolina, 386 U. S. 213, 222-226 , 87 S. Ct. 988 (1967), that the speedy trial clause of the Sixth Amendment applies to the states through the Fourteenth Amendment, that guarantee has spawned some 144 decisions of the Supreme Court of the United States and the appellate courts of this State. 1 The reason for the plethora of cases on the issue is readily apparent. Although the guarantee is plainly stated, and the factors to be considered in determining whether it has been violated have been firmly established, each case turns on its own particular facts. The infinite variety of circumstances bearing on the question and the vagaries of human conduct place each case in a unique factual posture, so that no case controls another as factually apposite. The sanction for denial of the right to a speedy trial is severe — dismissal of the charge. 2 Thus, in each speedy trial ⁶⁴⁴ case there is a direct confrontation between the rights of the accused and the rights of public justice.

The courts are guided in this determination of which rights shall prevail in a given case by Barker v. Wingo, supra: ‘ ‘The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed. “A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. 407 U. S. at 530 . We have accepted these four factors as expressed in Barker•, deemed them to be of primary importance and applied them in resolving the speedy trial cases before us.

See Jones v. State, 279 Md. at 6 ; Erbe v. State, 276 Md. 541, 546-547 , 350 A. 2d 640 (1976); Smith v. State, 276 Md. 521, 527-528 , 350 A. 2d 628 (1976); Epps v. State, 276 Md. at 104-109. II The circumstances leading to the arrest of Wilson are set out in detail in the opinion of the Court of Special Appeals, State v. Wilson, 35 Md. App. at 132-134 , and narrated in substance in an agreed statement in Wilson’s brief pursuant to Maryland Rule 828 g. Suffice it to say that as a result of information received from a confidential informant, Wilson was observed by police officers in flagrante delicto burglarizing a Carroll County residence on 26 May 1971, fired at the officers, escaped, was apprehended later that night and shot during the course of his arrest. The next day he was charged with assault with intent to murder and burglary.

We list subsequent events in chronological order. ⁶⁴⁵ 6 June 1971 Wilson was released on bail. He had flown to Maryland from Boston on the day of the burglary. Upon being released, he returned to Massachusetts. August 1971 Doni Crone died.

Wilson later claimed that she would have testified that she employed him to replevy her goods from the residence he broke and entered. 5 August 1971 Wilson was arrested in Massachusetts on a charge of accessory after the fact to manslaughter. Unable to make bail, he was detained in jail pending trial. November 1971 Wilson was brought to Maryland and arraigned in the United States District Court for the District of Maryland on charges of conspiracy and interstate transportation of stolen traveler’s checks. After arraignment, he was returned to Massachusetts and a federal detainer placed against him.

January 1972 Wilson was tried and found guilty of the Massachusetts charge, sentenced to 6% to 7 years and incarcerated in the Massachusetts Correctional Institution. 24 January 1972 Six indictments charging Wilson with crimes committed in Carroll County on 26 May ⁶⁴⁶ 1971 were filed in the Circuit Court for Carroll County. 6 February 1972 Wilson wrote the attorney representing him on the pending federal charges in Maryland asking if he had filed a motion for a speedy trial in the State case, and, if not, requesting that he do so. 29 February 1972 The attorney replied by letter that he did not believe that indictments had been returned. He advised against pressing for an indictment. April 1972 Wilson was tried in the United States District Court for the District of Maryland on the federal charges, was found not guilty on 18 May 1972 and returned to Massachusetts on 2 June. 12 July 1972 Wilson was brought to Maryland pursuant to a federal writ of habeas corpus ad prosequendum. 18 July 1972 Wilson was arraigned in the United States District Court for the District of Maryland on an indictment charging interstate transportation of stolen jewelry. He asked the federal judge to return him to Massachusetts. 14 July 1972 ■Pursuant to writs of habeas corpus filed 18 July, Wilson appeared before the Circuit Court for Carroll County tb be arraigned on the State charges.

According to the ⁶⁴⁷ State’s Attorney for Carroll County, he became aware that Wilson would be in Maryland on 14 July less than two weeks before. Immediately prior to the arraignment Wilson consulted with a public defender. During the arraignment Wilson requested that he be represented by the attorney representing him on the federal charges. He told the court that he had no objection to postponing a conference to make such arrangement until the next time he was in Maryland.

After the arraignment and his return to the Baltimore City Jail, he told an officer that he would like to see “one of these Public Defenders.” He later claimed that he wrote a U. S. marshal on 13 July stating that he would like to remain in Maryland pending trial on the State charges. 6 August 1972 Wilson was returned to Massachusetts. He had not seen a public defender. 24 August 1972 A Carroll County detainer was sent to the Massachusetts Correctional Institution with a copy to Wilson. Wilson later asserted that on 25 August 1972 he signed a request for a speedy trial with respect to the Carroll County charges ⁶⁴⁸ and filed forms under the Interstate Detainer Act. There is no documentary evidence that he in fact did either. 31 October 1972 Wilson filed a civil action in the United States District Court for the District of Massachusetts seeking a restraining order forbidding the State of Maryland, the United States District Court for the District of Maryland, and the State of Massachusetts from removing him to the Carroll County Circuit Court or the United States District Court for the District of Maryland. 1 February 1973 A special prosecutor for the Carroll County case, appointed in October 1972, requested that the court set the case for trial as soon as possible. 9 February 1973 Two public defenders entered their appearance as counsel for Wilson. 13 February 1973 The case was scheduled for trial on 8 May 1973, and Wilson was so notified. 9 April 1973 A formal request was forwarded to the Massachusetts Correctional Institution to make Wilson available for trial in Carroll County on 8 May. 1 May 1973 The Circuit Court for Carroll County upon agreement of ⁶⁴⁹ counsel reset the trial for 10 July 1973. 10 May 1973 Wilson filed a pro se motion to dismiss the Carroll County indictments for lack of a speedy trial. 5 June 1973 A request was made to the Massachusetts Correctional Institution for temporary custody of Wilson so he could be tried in Carroll County on 10 July 1973.

Wilson was notified of the request. 15 June 1973 Wilson filed an amended civil action in the United States District Court for the District of Massachusetts requesting a temporary restraining order. 22 June 1973 The United States District Court for the District of Massachusetts granted the requested restraining order. It directed that Wilson not be released from the Massachusetts Correctional Institution to either the State of Maryland or the U. S. marshal. The special prosecutor for Carroll County informed the Circuit Court for Carroll County by letter of the order and stated that, as a result, it was impossible to go to trial on 10 July. He also made known to the court “the authorized comment” of defense counsel that the defense did not want the case ⁶⁵⁰ to go to trial on 10 July 1973 because it would be impossible, under the circumstances, to make adequate preparations for trial in the absence of Wilson.

October 1973 John Robeshard died. Wilson alleged that Robeshard overheard a request that Wilson replevy goods which were in the Carroll County residence. 17 December 1973 Wilson was indicted in Massachusetts for conspiracy to murder Albert De Salvo, the “Boston Strangler.” 24 January 1974 On or about this date the Governor of Massachusetts declared that he would take no action on requests for extradition of Wilson and would not consent to Wilson’s removal from Massachusetts until the “Boston Strangler” charges had been resolved. The Governor ordered the Massachusetts prison authorities not to release Wilson. 9 September 1974 to 1 October 1974 The “Boston Strangler” case was tried and ended in a mistrial because of a hung jury. 10 February 1975 to 5 March 1975 The “Boston Strangler” case was retried and again ended in a mistrial because of a hung jury. April 1975 Wilson finished serving his first sentence on the ⁶⁵¹ Massachusetts conviction as of April 1975.

Although Massachusetts intended to pursue the “Boston Strangler” case, it indicated that it was willing to let him go to trial on the federal charges and on the Maryland charges before trying him a third time. A motion to dissolve the restraining order was filed on 14 April 1975 and granted on 28 April. 28 May 1975 The instant case was scheduled to be tried on 22 July 1975. 11 July 1975 Wilson filed a motion to dismiss the Carroll County indictments on the ground that he was denied a speedy trial. 22-28 July 1975 The motion was heard. 16 October 1975 The motion was reargued at the request of the court. 80 October 1975 The motion was granted. Ill The Length of Delay The elapsed time period between Wilson’s arrest and the hearing on his speedy trial claim was a few days short of four years and two months. The Court of Special Appeals believed this to be “self-evidently of ‘constitutional dimension’ . . . many times over,” and therefore presumptively prejudicial so as to require consideration of the other factors.

Wilson, 35 Md. App. at 120-121 . We agree. In Epps, 276 Md. at 111 , we found that a one year, 14-day interval between arrest and trial was “presumptively prejudicial.” In Jones, 279 Md. at 6 , we ⁶⁵² said; “Since the two year, five-month interval between Jones’ arrest and trial was of considerably more than twice the duration of that in Epps, we are bound to inquire into the other factors included in the balancing process.” 3 Reasons for the Delay We said in Smith, 276 Md. at 528 , that different reasons for delay in prosecuting a defendant should be assigned different weights. In Jones we pointed out how this was done: “[A] continuum exists whereby a deliberate attempt to hamper the defense would be weighed most heavily against the State, a prolongation due to the negligence of the State would be weighed less heavily against it, a delay caused by a missing witness might be a neutral reason chargeable to neither party, and a delay attributable solely to the defendant himself would not be used to support the conclusion that he was denied a speedy trial.” Id. 279 Md. at 6-7 .

This recognized the categories of reasons for delay identified in Barker . “A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such ⁶⁵³ as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.” Id. 407 U. S. at 531 . See Erbe, 276 Md. at 549 .

We explained in Jones: “While we must scrutinize the entire interval between arrest and trial, and attempt to ascribe reasons for particular delays, it is not possible or even desirable to do so with mathematical precision; we will not count up the time chargeable to the State, that chargeable to the defendant, and those delays attributable to neutral reasons, multiply the number of days or months by a parameter assigned for each particular reason and then dismiss the indictment if the defendant ends up with the lower tally. Instead, delays must be examined in the context in which they arise and therefore a lengthy uninterrupted period chargeable to one side will generally be of greater consequence than an identical number of days accumulating in a piecemeal fashion over a long span of time. Finally, we must always bear in mind that the State has the duty to bring the defendant to trial, Barker v. Wingo, supra, 407 U. S. at 527 , 92 S. Ct. at 2190 , and thus lengthy delays by the State, particularly in the face of a defendant’s assertion of his right, are especially significant.” Id. 279 Md. at 7 . Eight months elapsed between Wilson’s arrest and indictment.

The State’s Attorney for Carroll County gave as reasons for this delay the lack of an adequate prosecuting staff and the complexity of the case. He testified that he was the only prosecutor. His office was severely understaffed because the case load in Carroll County had quadrupled with the onset of the District Court System. He alone handled all of the cases, including the District Court cases and the ⁶⁵⁴ Juvenile Court cases, as well as advising the police and taking care of new complaints.

The Wilson case involved the study of a great number of police reports. Numerous meetings with police were required to obtain additional facts. Further extensive investigation was necessary, for example, to determine who rented the cars driven by Wilson and other subjects at the time of the burglary, to discover where burglary tools — torches, cutters, and other items seized — had been obtained and by whom, and to ascertain precisely what occurred at the crime scene and thereafter, leading to Wilson’s apprehension. All of this information had to be sifted and digested in order to decide who should be indicted and for what offenses.

Although the ultimate responsibility for unintentional delays caused by over-crowded court dockets or understaffed prosecutors must rest with the prosecution rather than with the defendant, such circumstances are among the factors to be weighed less heavily than intentional delay, calculated to hamper the defense. Strunk v. United States, 412 U. S. 434, 436 , 93 S. Ct. 2260 (1973); Epps, 276 Md. at 112 . The pre-indictment delay here was a “more neutral reason” identified by Barker, 407 U. S. at 531 and quoted in Erbe, 276 Md. at 549 . Wilson concedes this and dismisses the pre-indictment delay by stating: “The eight months from the date of the offense until indictment probably comes within that category that would be weighted less heavily against the State.

The responsibility for that delay rests with the State. Barker probably best described it as negligence.” In the. circumstances, the delay in indictment may not in all fairness be attributed solely to prosecutorial negligence; the fact that the State’s Attorney’s office was seriously understaffed and the complexity of the case are worthy of some consideration. Nevertheless the delay is properly chargeable to the State. We shall consider it in the balancing test, giving it such weight as the circumstances indicate.

We believe that, in the “difficult and sensitive balancing process” in which we must engage, Jones, 279 Md. at 6 , the pre-indictment delay here, standing alone, or considered with the other factors, is not of sufficient weight to tip the scale on the side of denial of a speedy trial. ⁶⁵⁵ Wilson claims: “Subsequent to indictment and until June 26, 1973, the record is clear that that period of time was purposeful and should be ‘weighed heavily against the State.’ ” 4 He declares that these seventeen months “were intentional and oppressive, pure and simple.” We do not see it quite that way. Wilson concedes that he was in jail in Massachusetts but urges that there was no evidence to attribute the delay to his incarceration. He declares “Wilson was at the finger tips of the prosecutors of the State of Maryland under the Uniform Interstate Detainer Act. The State of Maryland intentionally decided not to invoke that act.” He concedes, however, that “[t]here is nothing in either the docket entries or the exhibits contained in the record which suggests that [he] requested a speedy trial or filed any forms under the Interstate Detainer Act in Maryland.” See Maryland Code (1957,1976 Repl.

Vol.) Art. 27, §§ 616A-616R; State v. Barnes, 273 Md. 195 , 328 A. 2d 737 (1974). This, of course, did not relieve the State of its duty which it has, independent of the Act, to bring Wilson to trial. Wilson also asserts that the reason he was not brought to trial between the filing of the indictments and the restraining order was that the State wanted to try him with a codefendant, that the prosecutor “ ‘assumed’ the defense would probably be quite happy if [the trial] could be put off as long as possible,” and that Wilson had no attorney, all of which, he urges, must be weighed heavily against the State. As we have indicated, “[w]hile we must scrutinize the entire interval between arrest and trial, and attempt to ascribe reasons for particular delays, it is not possible or even desirable to do so with mathematical precision____[D]elays must be examined in the context in which they arise----” Jones, 279 Md. at 7 .

The period between the filing of the indictments and the restraining order, are to be considered, subject to the caveat we have noted regarding the duty of the State, in light of Wilson’s arrest and sentence in Massachusetts for accessory after the fact of manslaughter ⁶⁵⁶ and his indictment and trial for conspiracy to murder the “Boston Strangler.” Nor can that period be divorced from Wilson’s own affirmative efforts in the United States District Court for the District of Massachusetts which were successful in preventing his return to Maryland. 5 Those efforts and the result of them did much to offset the reasons for delay weighed against the State. The Defendant’s Assertion of the Right Although Barker rejected the old “demand” doctrine whereunder the failure to demand a speedy trial forever barred a defendant, as a matter of law, from asserting the right to a speedy trial, it reaffirmed that the