Opinion
No. 1114, September Term, 1979.
Decided May 9, 1980.
CRIMINAL LAW — Speedy Trial — Denial Of — Article 27, § 591 — Maryland Rule 746 — Year In Excess Of Time Admittedly Determined As Adequate For Orderly Procedure Held To Constitute Unjustifiable Delay — Although Maryland Rule 746 Established Maximum Time Within Which Trial Ought To Be Had And, Although Not Mandatorily Applicable In Instant Case, It Nonetheless Is Indicative Of Course Necessary To Be Followed On Review Of Trial Court's Denial Of Dismissal For Lack Of Speedy Trial — State Responsible For Expedition In Bringing Accused To Trial Speedily — Any Delay Exceeding Permissible Period Of Orderly Trial Preparation Must Not Only Be Explained By State But Justified — Where Cause For Continuance Is Not Extraordinary According To Constitutionally Mandated Review of Record On Appeal Ensuing Delay Will Not Be Justified Even If Explained — If Cause For Continuance Is In Fact Extraordinary, Full Period Until New Trial Date Must Be Justified — Administrative Judge And Prosecutor Held Administratively Responsible For Seeing That Continuance, Even When Justified In Purpose, Is Not Extended Unnecessarily. pp. 522, 525-526
H.E.F.
Appeal from the Criminal Court of Baltimore (KAPLAN, J.).
Carla Sue Chance was convicted in a jury trial of second degree murder and from judgment entered thereon, she appeals.
Judgment reversed. Costs not to be reallocated pursuant to Maryland Rule 1082 f.
The cause was argued before MOORE, LOWE and COUCH, JJ.
Patricia A. Logan, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.
Alexander L. Cummings, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State's Attorney for Baltimore City, and Steven Sacks, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
Carla Sue Chance was convicted in the Criminal Court of Baltimore of murdering her erstwhile paramour but the case was not tried for twenty-one months and four days from her arrest. She has raised six assignments of error, but because we are convinced that she was denied a speedy trial, it will be unnecessary to address the other five. We have analyzed the delay pursuant to the admonition of Barker v. Wingo, 407 U.S. 514 (1972), and find that the State was responsible at least for twelve months of the delay, the defendant was responsible at most for two months, and the balance of something over seven months fall under a no-fault category being either neutral or possibly attributable to both State and appellant. See Nocera v. State, 36 Md. App. 317, 322-323 (1977), cert. denied, 281 Md. 741, 742, 744 (1977). In light of the recent rule (Md. Rule 746) and rulings ( State v. Hicks, 285 Md. 310 (1979)) of the Court of Appeals, it is apparent that an unjustified delay in excess of six months is no longer tolerable. But see Wilson v. State, 44 Md. App. 1, 17-18 (1979). Having erred, if at all, on the side of neutrality in our balancing process, we find that a year in excess of time admittedly adequate for "orderly procedure" is too much.
The time periods will be considered in seven parts:
1. 7/6/76 (arrest) to 11/3/76 (continuance) — 3 months 27 days.
Reason — orderly procedure conceded. Epps v. State, 276 Md. 96, 112 (1975).
Neutral
2. 11/3/76 to 3/14/77 — 4 months 11 days State justification
a. Docket entry shows "no court available" — but see Epps v. State, supra at 114-116.
b. State contends delay necessary to investigate defense counsel for alleged subornation, but see Jones v. State, 279 Md. 1, 9-10 (1976), cert. denied, 431 U.S. 915 (1977).
c. Appellant rearrested on separate charge but released same day. No justification.
Charged to State
3. 3/15/77 to 5/16/77 — 2 months 1 day State justification
Absent police witness (for medical reasons), would have been forgiveable, Nocera v. State, 36 Md. App. at 323; however, because witness ultimately was never called and the delay was coincidental while this case was still subject to the investigation of the defense attorney, the delay is not justified.
Charged to State
4. 5/16/77 to 9/14/77 — 4 months (less 1 day) State justification
Defense filed insanity plea after suicide attempt. Case postponed to permit psychiatric evaluation at the Springfield Hospital Center. The first 2 months within which a report must be submitted by the State, Md. Code, Art. 59, § 26(a) is "neutral and reasonable". State v. Statchuk, 38 Md. App. 175, 183 (1977), cert. denied, 282 Md. 739 (1978).
The following 2 months are unexplained and chargeable to the State which is responsible for the delay in reporting as well as for bringing defendant to trial. See Smith v. State, 276 Md. 521, 529 (1976).
Charged to State — 2 months Neutral — 2 months
5. 9/14/77 to 11/29/77 — 2 months 15 days State justification
Jewish holiday for both counsel and the judge. That would excuse one day; however, it should have been foreseen by the court administrator. There is no justification offered for the remaining 2 and 1/2 months.
Charged to State
6. 11/29/77 to 3/3/78 — 3 months 4 days State justification
Joint postponement request. Absence of both State and defense witnesses.
Charged to Neutral
7. 3/3/78 to 4/10/78 — 1 month 6 days State justification
Two witnesses (police officers) unavailable. One was recuperating at home from an accident, the other was attending a police school. Neither excuse was justifiable absent a showing that the police officer recuperating was too ill to attend. Court cases on the other hand come before police seminars.
Charged to State
In no instance but one did the defense consent to the postponements or to their length and several times objected to the delays. On at least three occasions the record shows express objections. Such objections are in themselves assertions for a speedy trial, Nocera, supra, and while not formal assertions by motion, are something more than acquiescence to the inevitable. Appellant is not saddled with the heavy burden of failing to assert altogether, Barker v. Wingo, supra at 532, but neither did she add but little weight to her cause.
Although no specific prejudices were pointed to, appellant testified to her state of mind brought on by anticipation indicating intensely enhanced, presumed prejudices such as anxiety, etc. So much was appellant affected that she claimed, without contradiction, that her suicidal attempt stemmed from the delays working on her known emotional instability. While it is hard to believe that delay was the sole cause of the emotional collapse, we cannot disregard its effect altogether. This is so especially in light of the results of her mental examination, the report of which was brought to us by motion to supplement the record which we granted. That report, submitted to the court on June 3, 1977, urged expedition in the proceedings to aid her condition of anxiety and depression.
"The Forensic Team recommended out-patient therapy to help her to work through her anxiety and depression and other underlying difficulties which she might have on an out-patient basis. It was also recommended that she have a speedy trial which might help her to know where she stands rather than kept waiting which might add to her overall tenseness."
Despite this admonition from its own medical advisors, the State did not get around to trying appellant for ten more months.
The prejudice then is something more "than the presumed prejudice", Smith v. State, supra, but falls short of ascertainable specificity although appellant's contention that the delays brought on the temporary loss of one of her witnesses, compelling her acquiescence to one of the continuances, has a decided ring of plausibility, and we are to be the judges of that. Walker v. State, 12 Md. App. 684, 694 (1971).
The determining factor in our analysis, however, is the length of delay, the excuses therefor and the lack of justification offered by the State. The gradual tightening by the Court of Appeals of tolerable limits has culminated in the enacting of Md. Rule 746 which establishes a six month maximum as the time within which a trial should be had. While that period is not mandatorily applicable here, see Hicks, supra, it is certainly a light beam from which we cannot turn, indicating the path we are expected to follow. The unexcused period of one year beyond the six months that even the Legislature recognizes as a maximum, Md. Code, Art. 27, § 591, is far too much to overlook. Wilson v. State, supra. After all, the State in whatever form, prosecutor, court administrator, mental health examiner or judge, is responsible for expedition in bringing an accused to trial speedily, cf. Smith, supra at 529. Even when the weight of delay is neutralized by circumstance or explanation, the State is not excused from bringing it promptly to trial. Any delays exceeding the permissible period of orderly trial preparation must not only be explained by the State, they must be justified.
When the continuances are requested, e.g., recuperating or ill witnesses, school attendance, religious holidays and even examinations of the accused, the administrative judge must carefully appraise not only the cause (such as illness, etc.) but the degree thereof in order to justify the extraordinary cause for which a continuance may be granted. Md. Code, Art. 27, § 591; Md. Rule 746. If the cause for a continuance was not "extraordinary" according to our constitutionally mandated independent review of the record, the ensuing delay will not be justified, even if explained. For purposes of speedy trial reviews, the State cannot rely entirely upon the fact that a continuance was granted by a judge to excuse the delay thereby caused. And even if the cause for continuance is extraordinary, the full period until the new trial date must then be justified as well.
More importantly, the administrative judge (as well as the prosecutor) is administratively responsible for seeing that a continuance, even when justified in purpose, is not extended unnecessarily. ( E.g., two and a half months for a religious holiday.) There seems no coordination here or in most instances between the purpose for, and the period of, postponements. If the periods are held to a minimum for the purpose granted, even when court-wise defendants are manipulating the system, prompt reassignment will frustrate their purpose by holding their feet to the fire.
With dismissal as the sanction for dalliance, the State's casual efforts in reassigning trials must become intense — prosecutorially, judicially and clerically — lest despite sometime convictions, the guilty go unpunished.
Judgment reversed.
Costs not to be reallocated pursuant to Maryland Rule 1082 f.