Wilson v. State

Lowe, J., delivered the opinion of the Court. On February 11,1975, Kenneth Maurice Wilson, appellant, was tried and convicted in the Criminal Court of Baltimore of the rape and robbery of Lulu Mae Vicks. On February 24, 1975 he was tried and convicted of having carnal knowledge of and committing perverted practices on, Jo Ann Murcer. Both cases were appealed to this Court where the judgments were affirmed by per curiam decisions.

Appellant then filed a post conviction petition alleging eleven errors on which to base reversals. The post conviction judge granted a belated appeal citing poor representation of appellant’s direct appeal. This Court dismissed the appeal sua sponte. “The legislative grant of jurisdictional authority to hear post conviction complaints did not coincidentally vest the trial court with the power, not formerly conferred, to examine appellate operations.” Wilson v. State, 39 Md. App. 113, 118 (1978). The Court of Appeals reversed and remanded for our consideration of the merits.

Wilson v. State, 284 Md. 664 (1979). Appellant’s main contention involves the denial of his speedy trial right in both the Vicks and Murcer cases. The ³ following is a composite of appellant’s entanglements with the judicial system in those two cases which we will subsequently dissect for analytical purposes. On August 15, 1973 appellant was arrested for having carnal knowledge of and committing perverted practices on Jo Ann Murcer.

The court released him on his own recognizance the next day. Appellant was arrested again 3-y2 months later on November 30,1973, for the rape and robbery of Lulu Mae Vicks. He was charged and released on bail. Appellant was once more incarcerate;! a month later on New Year’s Eve, 1973, on burglary charges.

The State finally arraigned appellant in both the Murcer and Vicks cases on March 20, 1974, 7 months, 5 days after the Murcer arrest and 3 months, 20 days after the Vicks arrest. At that time the court referred him to Clifton T. Perkins State Hospital for evaluation in response to his pleas of not guilty by reason of insanity in both cases. As soon as the Perkins’ medical report was filed on May 14, 1974, the court set the date for prosecution of all cases pending against appellant 1 as June 11, 1974. The cases were postponed due to the illness of defense counsel and were reset for August 8, 1974.

Soon after the first trial postponement, appellant wrote a letter to Judge Anselm Sodaro expressing anxiety about the delays, and requesting a speedy trial. On August 8, 1974, the second scheduled trial date, Judge Sodaro elected to proceed with one of the cases other than that of Murcer or Vicks. At that trial, appellant challenged the admissibility of identification testimony which the State had proferred as evidence. Judge Sodaro asked counsel for legal memoranda on that point of law and scheduled a new trial date for November 6,1974.

The third scheduled trial date for the cases before us was again postponed and reset for November 13,1974 when Judge Sodaro declared a mistrial in the pending case. On November 13,1974 judge and jury were unavailable which necessitated a fifth rescheduling of the Murcer and Vicks cases. ⁴ Judge Dulany Foster, then presiding, elected to hear the Vicks case on January 9, 1975. That case was delayed once more due to unavailability of key State witnesses and the illness of the victim. Shortly thereafter appellant moved pro se to dismiss the indictments against him for denial of a speedy trial.

The denial of that motion as applied to the Murcer and the Vicks cases are the decisions we are now reviewing. Trial began on February 11, 1975 in the Vicks case (with Judge Baylor presiding) which concluded in a conviction. The Murcer case began on February 24, 1975. The same judge presided which was also an issue contested as prejudicial, denied by the court and subject to appeal here.

Appellant contends that he was denied speedy trials under the Sixth Amendment of the United States Constitution as applied to the states via the Fourteenth Amendment. Garnered from the massive volume of case law on the speedy trial issues are certain pertinent fundamental principles. As this Court explained in State v. Lawless, 13 Md. App. 220,227 (1971), the right to a speedy trial is a relative one which depends on the facts and circumstances of the particular case. The Supreme Court has given guidance in evaluating those facts and circumstances on a case-by-case basis. “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.” Barker v. Wingo, 407 U.S. 514, 530 (1972) (footnotes omitted). One of the “circumstances” of this case is that we are reviewing the judgment of a trial court made five years ago ⁵ in light of that half-of-a-decade’s changed thinking on the length of time it should take to bring an accused to trial.

In Barker v. Wingo five and one-half years to trial under the circumstances was not too long. If that were to occur in Maryland today, any time beyond four months would have to be justified as an extraordinary circumstance to avert dismissal. The Barker v. Wingo evaluating criteria were presumably those which the trial court in this case was bound to apply in determining whether appellant had been denied a speedy trial, but there was also a statutory guide by the Legislature indicating its view of how long is too long for the State to bring an accused to trial. Md. Code, Art. 27, § 591.

Significantly, the statutory guideline appears addressed more to recognition of an outside limit for trial preparation allowed the State or what is referred to as a reasonable time for “orderly procedure”, see Epps v. State, 276 Md. 96, 112 (1975); see also State v. Lawless, supra at 230, in getting the case to trial. It provided six months for that purpose but did not start the time running until appellant was arraigned or represented. “(a) Within two weeks after the arraignment of a person accused of a criminal offense, or within two weeks after the filing of an appearance of counsel or the appointment of counsel for an accused in any criminal matter, whichever shall occur first, a judge or other designated official of the Circuit Court or the Criminal Court of Baltimore City in which the matter is pending, shall set a date for the trial of the case, which date shall be not later than six months from the date of the arraignment of the person accused or the appearance or the appointment of counsel for the accused whichever occurs first. The date established for the trial of the matter shall not be postponed except for extraordinary cause shown by the moving party and only with the permission of the administrative judge of the court where the matter is pending. (b) The judges of the Court of Appeals of ⁶ Maryland are authorized to establish additional rules of practice and procedure for the implementation of this section in the Criminal Court of Baltimore City and in the various circuit courts throughout the State of Maryland.” Md. Code, Art. 27, § 591.

Despite its language we held that section to be directory not mandatory, Young v. State, 15 Md. App. 707 (1972), and the Court of Appeals adopted our view in Young v. State, 266 Md. 438 (1972). The plethora of appellate speedy trial opinions following that holding do not appear to have acknowledged the statute even as a benchmark, considering the proportionately few references found to it in the many published cases. As concern heightened for speedy trials, the Court of Appeals found authority in subsection (b) of § 591 to restrict further the time within which a case should be brought to trial. It adopted Md. Rule 746 to be effective July 1, 1977, which reflected not only the Legislature’s policy but emulated its language.

However, the Court shortened the time allowed in which to set a case for trial and the time within which it had to be tried. “a. General Provision. Within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel), a trial date shall be set which shall be not later than 120 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel). b. Change of Trial Date.

Upon motion of a party made in writing or in open court and for extraordinary cause shown, the county administrative judge or a judge designated by him may grant a change of trial date.” Md. Rule 746. Two years later, on June 25,1979, the Court announced that it had not only been wrong in adopting our view in Young ⁷ (that the statute was directory only), but that both statute and rule were mandatory, and dismissal was the sanction for violation. State v. Hicks, 285 Md. 310 . Although the new interpretation of the statute and rule and the dismissal sanction is to be applied prospectively only, it is apparent that the Legislature, even pre-Hicks', considered an orderly procedure for trial preparation to be six months and the Court of Appeals since July 1, 1977, less than that by two months.

While the rule (and presumably the statute) are considered by the Court of Appeals to be nonconstitutional procedural rules, see Hicks, supra, it is apparent from the similarity of purpose and sanction adopted to enforce them, that when considering the length of delay in bringing an accused to trial in the constitutional speedy trial context, the time factors in these nonconstitutional procedural rules should not have been — and cannot now — be ignored. To say that what we now know and declare an appropriate time limit of orderly judicial procedure should not be applied to a case presently considered (because the system had not finally determined it five years ago) strains reasoning beyond credulity. Therefore, although we will use the traditional balancing act of Barker v. Wingo, in the constitutional sense, we will not lose sight of the born-again vision of orderly procedure gospel evangelized by Hicks . In doing so we cannot help but note that neither statute nor rule appears to address a delay which may occur between arrest and arraignment, but until told otherwise, it will be considered as part of the whole and upon the same scales.

The Analysis — length of the delay — The duration of the delay plays a hybrid role in our analysis. It is the mechanism which triggers the analysis, as well as a factor to be considered in the balancing process. See State v. Wilson, 35 Md. App. 111 (1977), aff'd, 281 Md. 640 (1978). The period comprising the date of appellant’s arrest to the start of judicial proceedings is the crucial delay for this factor. ⁸ United States v. Marion, 404 U.S. 307 (1971).

This delay-equaled 14-½ months in Vicks and 18 months in Murcer. Appellee concedes that the delay in both cases reached a “constitutional dimension” and triggered the four factor balancing analysis. The concession comes with good grace but is hardly without persuasive precedent. See Epps v. State, supra, (12 month and 14 day delay held to be of constitutional dimension).

See also State v. Statchuk, 38 Md. App. 175 (1977) (10 month and 21 day delay also held to be of constitutional dimension). Although many of the periods of delay overlap and will be jointly discussed, we will set forth a separate chronology for each. — the Murcer case — August 15, 1973 Appellant arrested. August 16, 1973 Recognizance taken (out on own recognizance). September 24, 1973 Criminal information filed.

October 9, 1973 Information served and receipt filed. October 9, 1973 Appearance of defense counsel filed. December 14, 1973 Order to rescind prior pre-trial release order. J. Sklar.

February 13, 1974 Insanity Plea filed. March 20, 1974 Arraignment. Referred by Court Order to Clifton Perkins State Hospital for evaluation. J. Sodaro.

May 14, 1974 Perkins’ Medical Report dated May 10, 1974. Filed by clerk May 14, 1974. June 11, 1974 Trial postponed. Foster, C.J.

(Illness of defense counsel). June 21, 1974 Letter written by appellant to Judge Sodaro asking for bail reduction and speedy trial. August 8, 1974 Series of cases against appellant came before J. Sodaro. State elected to begin companion case.

Murcer case postponed. Court continued case called pending memoranda from counsel on a ⁹ motion raised. Murcer case to be reset with continued case. Sodaro, J. November 6, 1974 Sodaro declared mistrial in companion case.

Reset remaining cases for Nov. 13, 1974. November 13, 1974 Postponed. No judge or jury available to hear cases. January 9, 1975 Vicks case begun.

Murcer case postponed. State witness for Vicks case unavailable and victim ill. Rescheduled for February 11, 1975. Foster, C.J. January 30, 1975 Pro se motion to Dismiss Indictments.

February 11, 1975 Vicks trial. Completed February 19, 1975. February 24, 1975 Murcer trial begun. Baylor, J. - the Vicks case — November 30, 1973 Appellant arrested.

December 14, 1973 Recognizance taken. Arrest Warrant and Recognizance Application stamped: Held for action of Grand Jury 1/18. March 6, 1974 Presentment filed. March 19, 1974 Indictment filed.

March 20, 1974 Arraignment. Plea of Not Guilty by Reason of Insanity. Referred to Clifton Perkins State Hospital for evaluation. March 21, 1974 Appearance of defense counsel filed.

May 14, 1974 Perkins’ Medical Report dated May 10, 1974. Filed by clerk May 14, 1974. June 11, 1974 Trial postponed. Foster, C.J.

(Illness of defense counsel.) Trial reset for August 8. June 21, 1974 Letter written by appellant to Judge Sodaro asking for bail reduction and speedy trial. Order of Court setting bail. August 8, 1974 Series of cases against appellant came before J. Sodaro.

State elected to begin ¹⁰ a companion case. Court continued that case pending memoranda from counsel pertinent to a motion raised. Trial later reset for Nov. 6, 1974. November 6, 1974 J. Sodaro declared inistrial in companion case (due to length of delay.

Defense counsel took two months to supply requested memorandum). Reset remaining cases against appellant for November 13, 1974. November 13, 1974 Postponed. No judge or jury available to hear cases.

Munger, J. Rescheduled for January 9, 1975. January 9, 1975 Postponed. State witness for Vicks’ case unavailable and victim ill. Rescheduled for