Carter v. State , 77 Md. App. 462 ( 1988 )

ALPERT, Judge.

On April 19, 1988, John Carter was found guilty on one count of credit card misuse after a trial in the Circuit Court for Baltimore County that proceeded on an agreed statement of facts. He was sentenced to five years imprisonment, with all but eighteen months suspended, and placed on probation for two years to begin subsequent to his release from incarceration. This appeal was noted on April 25, 1988.

Speedy Trial

The sole issue presented on appeal is whether appellant’s constitutional right to a speedy trial was violated.¹ We set forth a chronology of relevant dates:

August 25, 1987: Appellant arrested for credit card misuse; warrant for violation of probation served on Appellant at time of arrest.

August 30, 1987: Defense counsel entered appearance; Motion for Speedy Trial filed.

September 2, 1987: Probation revocation before Judge Sfekas; probation revoked, Appellant sentenced to eighteen months in Division of Correction.

September 4, 1987: Appellant transferred from Baltimore County Detention Center to Division of Correction.

September 17, 1987: First trial date in District Court; Appellant “was in the DOC, no writ was issued. He was not transported for trial ...”

October 22, 1987: Eighteen month sentence imposed on September 2, 1987, for violation of probation by Judge Sfekas modified to eighteen months’ work release at the Baltimore County Detention Center; Appellant not transferred from Division of Correction, however, because of six month sentence to Baltimore City Jail previously imposed by Judge Prevas in Circuit Court for Baltimore City.

November 2, 1987: Sentence in Baltimore City case modified by Judge Prevas so that Appellant could begin work release.

December 30, 1987: Second trial date in District Court; Appellant in Baltimore City Jail; no writ issued, Appellant not transported to court; bond increased to $40,000 for failure to appear.

January 22, 1988: Appellant “moved from the Baltimore County Detention Center and placed in the Work Release Program.”

February 23, 1988: Third trial date in District Court; Appellant’s motion to dismiss for lack of speedy trial denied; trial postponed at State’s request over Appellant’s objection.

March 8, 1988: Bail review; Appellant released on personal recognizance in this case.

March 15, 1988: Jury trial prayed.

March 28, 1988: Appellant arraigned in Circuit Court; motion to dismiss filed.

April 19, 1988: Hearing on motion to dismiss; agreed statement of facts read, and sentence imposed.²

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court set forth four factors to be examined and balanced in determining whether a particular defendant’s constitutional right to a speedy trial has been violated. These factors are (1) length of delay, (2) reason for the delay, (3) defendant’s assertion of his right, and (4) prejudice to the defendant. Id. at 530, 92 S.Ct. at 2191; Brady v. State, 291 Md. 261, 264-65, 434 A.2d 574 (1981); Fuget v. State, 70 Md.App. 643, 649, 522 A.2d 1371 (1987); Ferrell v. State, 67 Md.App. 459, 463, 508 A.2d 490 (1986).

A. Length of Delay

Before such an “ad hoc” analysis can be made, the length of delay, recognized as “a triggering mechanism,” must be examined to determine whether it arises to a constitutional dimension so as to be considered “presumptively prejudicial.” Barker, supra, 407 U.S. at 530-31, 92 S.Ct. at 2191-92; State v. Gee, 298 Md. 565, 578-79, 471 A.2d 712 (1984). The Supreme Court added that “the length of delay that will provoke such an inquiry is necessarily dependent upon the particular circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Barker, supra, 407 U.S. at 530-31, 92 S.Ct. at 2191-92.

We hold that under the circumstances of this case a seven-month, twenty-five day delay between appellant’s arrest and the hearing on April 19, 1988 is presumptively prejudicial. The case sub judice, involving credit card misuse, was conceptually and factually uncomplicated. No formal trial was conducted because an agreed statement of facts, which took only a few minutes to read, was introduced. Under these circumstances, such a delay triggers the Barker v. Wingo balancing test.³

B. Reason for Delay

In recognition of the fact that some delay between arrest and trial is necessary for preparation, see Ferrell, supra, 67 Md.App. at 463, 508 A.2d 490; Epps v. State, 276 Md. 96, 111-12, 345 A.2d 62 (1975), the time interval between August 25, 1987 (date of arrest) and September 17, 1987 (the first scheduled trial date) will be assigned a neutral status. The key period of time involved in our analysis is September 17, 1987 through March 15, 1988. During that time, the first two trial dates were postponed because of the State’s failure to cause a writ to be issued to the Department of Correction so that the defendant could be produced at trial. Postponement of the third trial date was requested by the State over the appellant’s objection. The reason behind this request does not appear in the record before us. The State would have us assign a more neutral status to such a delay, arguing that such delays can be “attributable to the ordinary operation of the court administrative system.” We disagree.

In Brady v. State, supra, the Court of Appeals cited “prosecutorial indifference” as the reason for a similar delay and “the factor most determinative of the [speedy trial] issue” in that case. Id., 291 Md. at 269, 434 A.2d 574. Brady was charged with breaking and entering, released on bail, and was then notified that the charges had been dropped. Unbeknownst to him, a grand jury subsequently indicted him on the same charges. He was incarcerated in the Baltimore City Jail for six months on unrelated charges and, upon release, was transferred to Anne Arundel County Detention Center to await trial on the breaking and entering charges. He was subsequently tried and convicted nearly 14 months after his original arrest. On appeal, the Court of Appeals reversed, stating, “As we see it, the State, in the performance of its public trust, has a duty to coordinate the efforts of its various criminal divisions in attempting to locate a defendant.” Id. at 267, 434 A.2d 574.

In Strickler v. State, 55 Md.App. 688, 466 A.2d 51 (1983), this court held that a 23 month delay in bringing Strickler to trial on escape charges while he was incarcerated on unrelated charges was inexcusable, especially where the defendant made three requests for disposition of the escape charges. The court provided:

If as in Brady, the State is held accountable for its failure to ascertain that a person sought for trial is already detained within the correctional system, then, patently, it is accountable when it knows that the individual sought is within that system.

Strickler, as State v. Hicks, 285 Md. 310, 403 A.2d 356 (1979), makes clear, was under “no duty to bring himself to trial.” That is the responsibility that is shouldered by the State and, in the words of Hicks, that duty on the part of the State “is not excused merely because the prisoner is incarcerated in another jurisdiction.” 285 Md. at 320, 403 A.2d at 361.

Strickler’s case falls within the perimeters staked out by Brady and Gee. The appellant was an accused, and he was in custody. It was, under the holding of Hicks, supra, the State’s duty to bring him to trial promptly, and its failure to perform what it was obliged to do is tantamount to the lack of prosecutorial diligence condemned in Brady v. State, supra.

Id. at 693-94, 466 A.2d 51. John Carter’s first two trial dates were postponed due to the State’s inexcusable failure to bring him to trial. The third trial date was postponed upon a request by the State for reasons unknown. In the meantime, nearly six months had passed. The State’s inaction transcends the bounds of mere negligence, which is “a more neutral reason” for justification of the length of delay, and rises to the level of “prosecutorial indifference” condemned in Brady and Strickler.

C. Assertion of Bight

The defendant asserted his right to a speedy trial in a motion for a speedy trial filed a few days after his arrest. Although he did not immediately complain after the first two postponements of his trial, he did object when his trial date was postponed a third time. His request for a jury trial, necessitating a transfer of the case to circuit court and the further delay subsequently caused is a delaying factor that we cannot ignore. We have no problem assigning the delay from March 15 (date on which defendant made the request) to April 19 (date of hearing) to the appellant. Appellant did not seek a jury trial until the last minute possible, the date upon which the trial in the District Court had been rescheduled after the State’s prior request for a continuance had been granted. According to the prosecutor, the State was ready to proceed in District Court on that date. The fact that appellant waived his right to a jury trial after he caused the case to be transferred to Circuit Court casts some doubt upon the sincerity of appellant’s demand for a speedy trial in the Circuit Court.⁴ He assigns no mitigating reasons for this delaying action taken after the time within which his right to a speedy trial was supposedly violated.⁵

D. Prejudice

In Barker v. Wingo, supra, the Supreme Court articulated three interests that the right to a speedy trial is 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.

Id., 407 U.S. at 532, 92 S.Ct. at 2193.

Appellant argues that his continual detention when he became eligible for the work release program and the jeopardization of his family life were prejudicial to him. Our examination of the record indicates that the defendant was eligible to be transferred to the work release program on January 22, 1988, but because of the detainer against him in this case, such a transfer could not be effected until the lower court released him on his own recognizance at the bail review hearing on March 8. Cf. Schmitt v. State, 46 Md.App. 389, 397, 416 A.2d 296 (1980) (continued incarceration prevented defendant from resolving problem with a detainer issued by another jurisdiction). In fact, the defendant’s failure to appear on December 30, 1987, the second trial date, led to an increase in the amount of bail. This adversely affected his chances of being released from jail pending trial until the situation was subsequently remedied at the March 8 hearing. Of course, the anxiety and concern which the appellant claims could also be attributed to the jail sentences imposed by Judges Sfekas and Prevas.

Balancing

In balancing the above factors, we hold that the appellant's right to a speedy trial has not been infringed. The length of time between arrest and trial could fairly be said to be on the low end of the “constitutional dimension” scale. While we find it relevant that much of the delay was occasioned by the prosecutorial indifference exhibited by the State, we cannot and shall not ignore the fact that the appellant further delayed his trial in March 1988, apparently for tactical reasons to which we are not privy. See part C, supra. On balance we are not prepared to say that the six month trial delay attributable to the State violated appellant’s right to a speedy trial.

JUDGMENT AFFIRMED; APPELLANT TO PAY THE COSTS.

1 . The constitutional right to a speedy trial arises from the Sixth Amendment of the United States Constitution and, in Maryland, from article 21 of the Maryland Declaration of Rights.

2 . This chronology of dates is in large part taken from appellant’s brief, corroborated by our review of the record, and agreed to by the State.

3 . A plethora of Maryland cases have examined when such a balancing test is triggered. Although we recognize that no bright line can or should be developed, it appears from our examination that a less than six month delay is almost never of "constitutional dimension,” see Gee, supra (less than six months not of constitutional dimension); State v. Hunter, 16 Md.App. 306, 295 A.2d 779 (1972) (5-1/2 month delay is not prejudicial); Thompson v. State, 15 Md.App. 335, 290 A.2d 565 (1972), while a delay of over one year usually triggers the Barker v. Wingo balancing test. See Epps v. State, 276 Md. 96, 345 A.2d 62 (1975) (one year, 14 days triggers balancing test); Brady, supra (14 month delay gives rise to a speedy trial claim of prima facie merit); Dorsey v. State, 34 Md.App. 525, 368 A.2d 1036 (1977) (11 months delay was prejudicial); Pyle v. State, 34 Md.App. 60, 366 A.2d 90 (1976) (11 month delay was prejudicial).

4 . Cf., United States v. Kozerski, 518 F.Supp. 1082, 1094 (D.N.H.1981) (because of defendant’s vacillations over whether to represent himself or proceed with counsel, there was no basis to his allegations of prosecutorial delay); People v. Puyear, 48 Ill.App.3d 183, 6 Ill.Dec. 291, 293, 362 N.E.2d 1113, 1115 (1977) (waiver of a jury trial after the case has been set for such a trial and especially late in the statutory 120 day period constitutes delay on part of defendant).

5 . Our analysis of the effect of appellant’s waiver of jury trial might have been different had such a waiver been the result of a plea agreement between appellant and the State.