Wilson v. State

Morton, J., delivered the opinion of the Court. Appellants, Leon Levi Wilson and James Willis Green, were each convicted by a jury in the Criminal Court of Baltimore (Sklar, J., presiding) of robbery with a dangerous and deadly weapon and use of a handgun in the commission of a crime of violence. Additionally, Wilson was found guilty of assault. Wilson was sentenced to twenty years imprisonment for the robbery, concurrent to a ten year term for the handgun violation and consecutive to a four year term for the assault.

Green received concurrent eight year terms for the robbery and the handgun charge. Because we agree with the appellants’ contention that they were denied their constitutional right to a speedy trial, no elaboration of the facts leading up to their convictions is necessary. Suffice it to say that they accosted the male victim with a gun and robbed him of $22. Both appellants were arrested on November 30, 1974.

Their case was first called for trial on June 23,1975, but was postponed because not enough jurors were available. The trial, rescheduled to begin on October 17, 1975, was again ²⁹⁶ postponed by the State because no court was available when appellants prayed a jury trial. Wilson filed a motion to dismiss his indictment for lack of a speedy trial on October 22, 1975. The motion was heard and denied on January 13, 1976, by Judge Hargrove.

On the other hand, Green first requested a speedy trial on October 28, 1975. He filed a motion on January 7,1976, to dimiss the indictment for lack of same. The motion was heard and denied by Judge Sklar on January 19,1976. After the October 17, 1975, postponement, the trial was rescheduled to begin on January 13, 1976, at which time it was postponed once again, this time because Green’s counsel was unavailable.

One week later, on January 19, 1976, the trial began. Both appellants were incarcerated continuously from the date of their arrest to the date of the trial. In treating their contention that they were denied a speedy trial, 1 we note, at the outset, that the length of delay between the date of arrest and date of trial, 13 months and 3 weeks, is of sufficient “constitutional dimension” to “trigger” the four-fold analytical process enunciated in Barker v. Wingo, 407 U. S. 514, 530 (1972), Jones v. State, 279 Md. 1 (1976) and Epps v. State, 276 Md. 96, 109 (1975). The four factors in the balancing test are (a) length of delay, (b) the reason for the delay, (c) the defendant’s assertion of his right and (d) prejudice to the defendant.

Dealing with the factors in their order of ascending pre-eminence in this case, we first consider the Defendant’s Assertion of Right prong. Appellant Wilson moved to dismiss the indictment for lack of speedy trial on October 22, 1975, while appellant Green filed a motion for speedy trial on October 28,1975, as well as a motion to dismiss for lack of same on January 7,1976. Both appellants were arrested on November 30,1974. Both appellants endured postponements of trial on June 23, 1975, ²⁹⁷ and October 17, 1975.

Neither appellant demanded a speedy trial until after that point. Thus, it was not until after two postponements and nearly 11 months from the date of arrest that appellants sought affirmatively to assert their right to a speedy trial. Thereafter, the State moved with reasonable expedition, approximately three months, to bring appellants to trial. While Barker explicitly rejected the “demand-waiver” rule, it added the following caveat: “This does not mean, however, that the defendant has no responsibility to assert his right.

We think the better rule is that the defendant’s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right. Such a formulation * * * would * * * allow a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a purely proforma objection.” Barker, supra, at 528-29 . It is our view that whatever weight is to be accredited to appellants by reason of their demand for a speedy trial, it is counter-balanced by the fact that they waited until after two trial postponements and eleven months to do so; a lack of frequency in their demands; and the State’s diligent effort to try them thereafter. We balance this factor to be neutral with minimal significance to be given either side.

It is clear, in light of Barker , that here the State must shoulder the blame under the Reason for Delay prong. See, e.g., Evans v. State, 30 Md. App. 423, 428 (1976). Appellants were twice ready to proceed with the trial only to have it postponed because “not enough jurors were available” and “no court was available.” “[T]he ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Barker, supra, at 531 . Barker , however, noted that “different weight should be assigned to different reasons. * * * A more neutral reason such as negligence or overcrowded courts should be weighed less heavily” than a deliberate attempt to delay the trial for ²⁹⁸ tactical purposes.

Id. We balance this prong in appellants’ behalf but attach to it minor weight in light of the circumstances. In considering the Length of Delay prong, 2 we treat it with the Prejudice to the Defendant prong since, in this case at least, the two are inextricably meshed. “A certain quantitative and qualitative degree of delay gives rise to a rebuttable presumption of prejudice and will shift the burden of going forward with the evidence from the accused to the State. Before that critical point is reached, there rests upon