Glover v. State

A.2D 1160 GLOVER, Matthew Robert Maryland. STATE Term, 67, Sept. No. 2001. Maryland. Appeals

Court March Jr., Burns, (Stephen Asst. Public Defender E. George E. Defender, brief), Baltimore, Harris, petitioner. Public (J. Curran, Jr., White, Atty. Joseph Asst. Gen. Zoe Gillen brief), Baltimore, respondent. for Atty. Maryland, on Gen. BELL, C.J., ELDRIDGE, RAKER, Argued before HARRELL, BATTAGLIA, WILNER, CATHELL, JJ. BATTAGLIA, Judge. petitioner to was required

We are determine whether the speedy pursuant to a trial to right denied his the Sixth Constitution and Article Amendment of the United States that, Rights. given hold Maryland Declaration We of the namely, delays this that the result- the circumstances of case— attempts acquire unavailability judges ed evidence, fact that the record does complete DNA petitioner’s right to a prejudice establish —the judgment affirm the was not violated. We therefore grounds on than those Special Appeals, but different Court court. employed by appellate intermediate Proceedings Legal I. Facts and Scherer, death of Charles whose This case arises from the Aberdeen, Maryland, on body was discovered in a vacant lot subsequently A deter- February 1998. medical examiner injuries mined the cause of death to be blunt force to the head strangulation resulting beating. from a severe Glover, petitioner, The Robert Matthew was arrested for later, 26, 1999, and year February the murder one on was Bail degree indicted for first murder March 1999. was pre- for petitioner denied. The remained confined the entire period, ultimately slightly which than amounted more months, During petition- months. fourteen these fourteen was postponed er’s trial three times. initially July

Trial was scheduled for in the Circuit County. requested postpone- Court for Harford The State ment, however, ground on the that DNA test results had not judge been from the lab.1 received crime The found the good DNA granting absence test results be cause for postponement, postpone- but stated that “this motion [for analysis compared The DNA extracted from bloodstains on the jeans petitioner. pocket sample victim's and a blood from the precise samples date on which the were collected is unclear from the sample appears, record. It that a blood was taken from the petitioner petitioner brought police headquarters when the questioning, a lew months after the murder. According samples Maryland were sent to the Laboratory petitioner's arraignment Police Crime sometime after the whatsoever, no really consequencé meaning is of no or ment] judge a on 19th you’re going not to have the simply because any For these July to hear this case event.”2 [of 1999] reasons, it to postponement charged court granted the the the State. 1, 1999, but on that

Trial was rescheduled for November date, postponement due to the granted the court another that administra- unavailability judge jurors.3 Finding of a reasons,were court postponement, bases for the the tive the At delay. postponement with the the charged party neither client, that hearing, counsel commented her the petitioner’s that but petitioner, “unhappy postponement” about that, petitioner nothing to “there’s explained she had could be done.” January

Trial was for 2000. One week then rescheduled trial, however, to petitioner to moved prior the date fact that did suppress the DNA evidence due to the the State discovery DNA provide complete4 defense with the 23, 1999, thereby failed to until December materials 29, 1999, early May samples had April or but on June late Investigation’s laboratory Bureau crime for to be sent to the Federal l'999, July August analysis. reports, dated a more detailed Two generated respectively, from these and returned to were tests County exclude the the Harford Sheriff’s Office. Neither test could jeans petitioner possible as a source of the DNA from the victim’s pocket. trial, petitioner In his motion to dismiss for lack of 12, 1999, that contends it was not until on or about October generally provided reports; laboratory DNA notes that provided accompany DNA test results were not until late December 1999. hearing postponement motion in the Court for 2. The on the for Circuit 1999; County July verbally granted the court Harford occurred postponement request. the State’s from, difficulty securing judge appears 3. It that the resulted least part, judges the retirement of one of the on the Circuit Court for County, position Harford whose remained unfilled at the time the trials were scheduled. serology reports provided The DNA test results and were etc., regarding testing procedures, petitioner; the lab notes that DNA be disclosed comply requirement with the evidence trial, Code, thirty days prior pursuant Maryland Section 10-915(c)(2) Proceedings and Judicial Article.5 the Courts suppression results The court ruled test remedy too would be extreme the State’s failure petitioner complete provide discovery with the materials trial, therefore, thirty days prior petitioner’s to and denied suppress. granted charged motion to A and continuance continuance, respect petitioner’s the State. With postponing again, counsel voiced some concern over the trial denied, but that suppression stated because the motion was only remedy a postponement, although “the other is defense, I, postponement, Mr. Glover and don’t want the but only remedy that’s the other we have.” results, generally accompany that provided the lest were not to the petitioner, reports to the nor at the time the were received. See supra suppression hearing, also 1. represented note At llie the Stale that, lab, upon receiving immediately the notes from the crime the State copy petitioner hand-delivered a of the materials to the on December 23, 1999. (1974, Maryland Repl.Vol.), Code Section 10-915 of the Courts Proceedings provides, pertinent part: and Judicial Article in (c) Purposes. any proceeding, criminal the evidence of a DNA —In profile prove disprove identity any person, is admissible to or if party seeking profile: to introduce the evidence of a (1) writing party parties by Notifies in the other or mail at least 45 days any proceeding; before criminal and Provides, (2) applicable requested writing, party if and the other parties days any or proceeding least 30 before criminal with: (i) generation First copy reproductions film or suitable of autoradi- blots, blots, ographs, gels, strips, dot slot silver stained test control strips, any generated and analysis; other results in the course of the (ii) Copies laboratory generated having this tried necessity for case family, victim’s as to the conclusion, and I said to Mrs. quicker as brought and con- in our numerous éarlier [petitioner’s counsel] Caruso intention, I also versations, my believe she it was that trial date would if we could move agreed, that we see today.” up concerns, moved the trial date the court

Responding to these 17, 1,May 2000. July 2000 to 2000, his 19, petitioner the moved to dismiss case April On of the trial under the Sixth Amendment speedy for lack of a Maryland 21 of the and Article United States Constitution Court, May the Rights. On Circuit Declaration of analysis speedy for claims enun- the four factor applying Wingo, 407 U.S. S.Ct. ciated in Barker hearing suppression concerned two statements 6. The March by police headquarters on March 17 and petitioner at made the State failed to suppressed these statements because The court prepon- statements voluntariness of the defendant’s establish the derance of the evidence. (1972), motion to dismiss re- granted L.Ed.2d 101 the that the inordinate The court ruled petitioner.7 leased the presumptively prejudicial in was length delay this case Barker. Fur- required scrutiny constitutional under and thus had petitioner unquestionably filed recognizing ther the occasions, separate trial on two the speedy his demand for reason for remaining on the two factors: the court focused respect to With delay prejudice and the the defendant. court found that: delay, for the reasons why, explanation has no as after “the State offered sample April in having defendant’s blood obtained the completely reports were test results unavailability 1999. The December 23rd of available until discovery in and is test resulted failures [DNA results] delay this case.” bottom-line reason for the ultimate indictment, it found that trial court dismissed the because every postponement this case responsible the State was and in favor of weighed delay against the State the entire petitioner. the defendant was Finally, respect whether pre-trial prejudiced by delay,8 the court ruled prejudice. and constituted actual oppressive incarceration was delayed coupled indictment The court further inferred impaired the defense. with the of the case petitioner deprived court found that the Because the trial, right speedy his constitutional to a indictment was dismissed. detail, infra, applied the four

7. As will be discussed and in further (1) (2) length delay; in a are: factors trial determination (3) delay; right the reasons for the defendant’s invocation of his to a Barker, trial; (4) speedy prejudice to the defendant. See and 530, 2192, U.S. at 92 S.Ct. at 33 L.Ed.2d at factor, 8. To determine the final courts must consider three elements: pre-trial oppressive; whether the incar- whether the incarceration was concern; anxiety ceration caused the excessive defendant Barker, 532, delay impaired whether the the defense. See 407 U.S. at 2193, 92 S.Ct. at 33 L.Ed.2d at 118. 8-201, Maryland appealed the State Pursuant to Rule which, opinion, unreported in an Special Appeals Court petitioner’s case. Court’s dismissal reversed the Circuit petitioner’s Appeals concluded Special The Court of date, by complain- an trial “could have obtained earlier counsel by putting that was scheduled ing about the trial date and/or that a motion to dismiss would be filed on notice the State particular on or before a date.” the trial was scheduled unless emphasized petitioner that the Special Appeals The Court 13, trial January date object did not when the 2000, 17, complain about the July and did rescheduled (at 23, point March 2000 which newly scheduled trial date until 2000). April The intermediate the trial was advanced did not petitioner court appellate further stressed and, quoting April until speedy assert his issue Maryland E. Jr., Richard P. Gilbert Moylan, Charles & (Michie § 42.3 at 527 Procedure, Practice Criminal Law: 1983), stated, ‘Try today!’ cry is a far request, me “[t]he never, try ‘Try you did not me request, that other me because ” Appeals grounds, Special Court of yesterday!’ On these speedy right violation of the vacated found no petitioner’s dismissal of case. Circuit Court’s issued, sought, and we a writ of certiorari petitioner Special Appeals the Court of erred determine whether case. See vacating the Circuit Court’s dismissal (2001). agree 365 Md. 781 A.2d 778 While we court, disagree appellate we judgment the intermediate reasoning. with its

II. of Review Standard on a to dismiss reviewing judgment motion trial, right constitutional to a we for violation of the independent analysis. own constitutional See State make our 554-55, denied, 392, 415, v. 319 Md. 572 A.2d cert. Bailey, (1990); 112 L.Ed.2d 87 see also 498 U.S. S.Ct. 1102,1106 366 Md. 784 A.2d Crosby (2001)(stating that “when the issue is whether constitutional right infringed, independent make our own has been we

221 448, 457, State, v. 343 Md. Jones appraisal”); constitutional 723, 736, State, 248, (1996); 335 Md. Carroll v. 682 A.2d 253 (1994). 376, a de novo constitutional perform We 646 A.2d 383 hand; in facts of the case light particular in appraisal findings of fact unless court’s doing, accept a lower so we State, 424, 432, 769 v. 363 Md. See Rowe clearly erroneous. of a trial 879, (2001)(conducting a de novo review A.2d 883 to a respect with denial legal/constitutional conclusions court’s Amendment, but the Fourth suppress a motion to under of findings of fact are reviewed under that a trial court’s stating State, 272, standard); 359 Md. Cartnail v. clearly erroneous (2000) this (maintaining that Court does 753 A.2d 525 Ruben, v. 127 fact-finding); novo engage not de denied, 1004, 1008, 430, 438, 356 Md. A.2d cert. Md.App. 732 (1999). 496, 740 A.2d 613

III. Discussion speedy analysis applied constitutional to be Supreme Court by context was articulated United States L.Ed.2d in Barker v. 407 92 33 Wingo, U.S. S.Ct. (1972). consistently applied the Barker factors 101 We have considering alleged violations of both the Sixth Amend- when 21 of of and Article ment the United States Constitution State, v. Maryland Rights.9 Declaration of See Divver 9. The 6th United states: Amendment of the States Constitution prosecutions, enjoy right all criminal the accused shall "[i]n speedy public trial....” U.S. amend. VI. Const Maryland Rights states: Article 21 of the Declaration every right ... prosecutions, “in all criminal man hath a to a Rights, jury. impartial an ...” Md Decl of art. 21. guarantees, 6-103 of the In addition to the constitutional Section shown, good provides cause is Criminal Procedure Article that unless (or days may after the defendant’s

the trial not be later than 180 counsel’s) appearance Specifically, 6-103 before the court. Section states: § Trial date 6-103. (a) setting Requirements date.— (1) court shall The date for trial of a criminal matter the circuit days the earlier of: be set within 30 after counsel; (i) appearance or 379, 388, (1999)(affirming A.2d that this Court Md. Supreme interpretation Court’s considers the United States “very persuasive, although the Sixth Amendment be necessarily controlling” respect proper application Maryland RightsXquoting 21 of the Declaration Article (1978) Stewart 282 Md. A.2d State, 628, v. A.2d 632 and Smith 276 Md. 350 409, 552; Bailey, also (1976)); at A.2d see 319 Md. 572 at State, 261, 264-65, 574, (1981); Md. 434 A.2d 576 Brady 291 denied, State, 1, 1, cert. 6, (1976), Jones v. 279 Md. 367 A.2d 5 Erbe v. 2177, (1977); 915, L.Ed.2d 225 431 U.S. 97 S.Ct. 53 State, 541, 640, (1976). 546, 350 A.2d 643 276 Md. pre-trial delay length

A of sufficient post-indictment, triggers and scru presumptively prejudicial thereby becomes States, Doggett the Barker factors. See v. United tiny under 2686, 2690-91, 647, 651-52, 120 L.Ed.2d 505 112 S.Ct. U.S. (1992). demonstrated, 520, is delay 528 such a courts Once following must four factors determine whether balance the length delay, has a constitutional violation occurred: delay, the defendant’s assertion of his the reasons for the presence prejudice trial and of actual speedy right, Barker, at at defendant. 407 U.S. S.Ct. accord 117; Doggett, at at at L.Ed.2d U.S. S.Ct. Thus, length L.Ed.2d at 528. is a court, (ii) appearance the first of the defendant before the circuit as Maryland provided in the Rules. (2) may days The trial date not be later than 180 after the earlier those events. (b) Change of date.— shown, (1) good county judge cause administrative or a For may change designee judge grant a trial in a of the of the date circuit court: (1) party; of a or on motion (ii) on the initiative of the circuit court. (2) (1) changed paragraph If a circuit court trial date is under subsection, any changes may only subsequent date this trial desig- county judge judge's be made administrative or that good nee for cause shown. (c) Appeals may adopt Court Court of additional rules rules. —The carry out this section. (2001), § 6-103 of the Crim. Pro. Art. See Md.Code and triggers analysis constitutional enquiry” as it both “double constitutional determining whether a defendant’s is a factor 505 U.S. Doggett, trial has been violated. See right speedy to a 2690, 120 L.Ed.2d at 528. 112 S.Ct. at exclusive, they provide the four factors are not While practitioners may and determine by which framework courts has right of a constitutional which integrity and ensure the fluid, amorphous, unquantifiable, as often been described necessarily compels speedy which courts to consider 414-15, 572 See 319 Md. at Bailey, cases on an ad hoc basis. right (stating A.2d at 554 that because the impossible ... it is to determine “amorphous slippery denied”); right Brady v. precision with when the has been (discussing difficulty 291 Md. at 434 A.2d at 577 balancing stating weighing the factors test difficulty ... it is function of the court to “[d]espite this factors, analy- through employ sift various some reasoned important sis to which are more and which have determine just as to which greater impact, and reach determination Erbe, 546, 276 at A.2d at 643 way tip”); the scales Md. 350 balancing “necessarily compels that a test courts to (noting basis”)(quoting trial cases on an ad hoc approach speedy 530, 2192, Barker, 92 at at 116- 407 U.S. at S.Ct. 33 L.Ed.2d 17). Therefore, independent appraisal our constitutional petitioner’s speedy begins effectively trial claims most factor-by-factor approach. with a Length Delay

A. The specific delay per no duration of constitutes a se While dimension, Barker, 523, delay at 92 of constitutional 407 U.S. 2188, (finding quantify S.Ct. at 33 L.Ed.2d at 113 basis for no ing specific length speedy right might a at which the be violated), employed proposition pre-trial that a we have delay greater year “presump than days one fourteen Divver, tively prejudicial” on several occasions. See 356 Md. 389-90, (1999); 265, 76-77 at Brady, at 739 A.2d at 291 Md. (fourteen-month delay gives prima 434 A.2d at 576 rise to a claim); Jones, 6, 5; speedy 279 Md. at 367 A.2d at facie 224 State, 62, (1975); 72 see also 276 Md. 345 A.2d

Epps V. State, 686, 1266, 675, 414 A.2d Battle v. 287 Md. (1980)(noting eight-month, that conceded that an the State dimension). twenty-day delay might be of constitutional Court, can Supreme delay that be emphasized As degree, at on the crime dependent, least some tolerated Barker, 407 for which the defendant has been indicted. See that (stating 33 L.Ed.2d at 117 U.S. at 92 S.Ct. ordinary that can for an street crime is delay “the be tolerated serious, charge”). considerably complex conspiracy than a less presented in Divver v. Unlike the circumstances (1999), delay found Md. 739 A.2d 71 where we days uniquely months and sixteen to be “of inordinate twelve length relatively [for for a run-of-the-mill District Court case alcohol],” A.2d at driving under influence of id. at judice, unneces delay the case sub while somewhat delay involving a sary, was not an-inordinate for murder case DNA complex evidence. not validate auto charges

While the nature of the do trial, matically specified Bailey, a duration of see (finding drug possession A.2d at Md. at themselves, justify in and of do not charges, distribution delay), cognizant degree courts of both the two-year must be complexity particular charge associated with a potential impact an adverse verdict would have on the accused. case, society In a an in an example, murder has interest trial, 395-96, expeditious (discussing see id. at 572 A.2d at 545 trial), but generally providing the societal interest society ensuring also has an interest in of life sentences imprisonment upon or death are rendered the most exact exactness, possible. may provide verdicts evidence inordinate, delay society may and to the extent that the is not potentially which DNA weigh precision provides the evidence heavily proceeding more than with a murder trial without such expediency. in the name of evidence delay certainly requires The fourteen-month constitu scrutiny. tional It as to overwhelming, is not so length delay, the other factors. The potentially override Erbe, 547, itself, factor, 276 Md. at weighty see and of is not a (stating length “delay is the least A.2d at 644 the ”)(quoting factors identified in Barker conclusive of the four (E.D.Pa. Brown, 1000, 1002 F.Supp. v. United States 1973)), delay closely correlat but rather the duration factors, to the other such as the reasonableness ed delay explanation delay, for the the likelihood State’s pronouncedly to more assert his may cause the defendant longer delay that a right, presumption and the delay may greater length harm. “The cause the defendant significant as it appears principally ... to be affects delay and it had legitimacy of the reasons for the likelihood Florida, 30, 12, n. prejudicial Dickey effects.” U.S. (1970)(Bren- n. 12 1574 n. 26 L.Ed.2d 90 S.Ct. nan, J., concurring). Delay

B. The Reasons for the pro- subscribed to the continuum Bailey, supra, we Supreme respect in Barker with nounced Court pre-trial delay: for a reasons govern-

Closely length delay related to is the reason the Here, too, assigns justify delay. different ment A assigned should to different reasons. deliber- weights be hamper attempt ate order weighted heavily against government. defense should be negligence A neutral reason such as or overcrowded more weighted heavily courts should be less but nevertheless responsibility the ultimate for such should considered since government rather than circumstances must rest with the reason, as a Finally, with the defendant. a valid such witness, delay. missing justify appropriate should serve to Barker, 407 (quoting 319 Md. at 572 A.2d at 553 Bailey, 117). at 92 S.Ct. at 33 L.Ed.2d U.S. continuum, analyze

Pursuant to this we will delays during post-indictment, pre-trial peri occurred requested postponement, od of the case. The first 226 State, unavailability resulted from dual factors: yet

a and the fact that the DNA test results had not judge crime lab. The first factor —the unavaila returned clearly bility judge of a neutral reason. While the State —is factor, Divver, will for this see 356 Md. at be held accountable Jones, 8-9; 391, 78; 12, A.2d at 279 Md. at 367 A.2d at 739 Smith, 531, 634-35, weigh 350 A.2d at it will not 276 Md. at heavily against the State. The second factor —the unavailabil justification a valid ity of the DNA test results —is these technical, highly circumstances. DNA evidence is often re quiring completion courts to allow more time for of the tests review, by parties, say, both of the results. This is not to permit that we will the State to act a lackadaisical contrary, just duty fashion. as the State “has a to On the of its various criminal divisions in coordinate the efforts defendant,” 267, attempting Brady, to locate a 291 Md. at 434 duty A.2d at so have a does the State coordinate the divisions, including responsible criminal those for labo various necessary ratory analysis, bring defendant to trial. This includes, course, duty ensuring discovery that critical mate rials, evidence, properly such as DNA are monitored and for, collecting simply accounted and not dust state or regard request federal labs. to the State’s initial crime postponement, we find no evidence that the State failed to act therefore, diligent in a manner and we conclude that these grounds postponement justified. for the were both neutral and digress momentarily jurisdictions

We to observe other similarly accepted delay in have some order ensure the scientifically judgment possible, specifically most accurate Stroud, respect to DNA v. 459 evidence. See State N.W.2d (1990) delay testing 335 that a to obtain (holding DNA good delay meets the cause standard when the reason for was control, DNA outside the state’s evidence was essential to case, prove the State’s the defendant failed to he legally recognizable prejudice by would delay); suffer Gray (Miss.1998)(explaining v. So.2d days of 247 for a capital excessive murder case particularly “was in a position because the defendant to bene- being him from exculpated if it DNA evidence fit from the Marcus, N.J.Super. murder”); for ... prosecuted denied, 157 cert. N.J. (App.Div.1996), A.2d delays in the defen that the (1998)(fínding 724 A.2d 803 relating to admissi complex issues dant’s trial due to “the protracted efforts and defendant’s bility of evidence “legitimate and substantial experts” were his own DNA obtain trial”); Rojo, 126 delay in defendant’s State for the reasons weigh heavily (1998)(refusing to N.M. 971 P.2d samples because processing in DNA against the State could DNA evidence processing for allowing additional time exculpate or of an accurate result increase the likelihood defendant). obtaining DNA evi Thus, delays minor in while State, nor heavily against weighed not be dence will analysis, DNA seeking his or her own against a defendant upon clear demonstrations delays likely will not be tolerated the attainment aggressively pursue to monitor or a failure these results. case occurred postponement petitioner’s in the

The second because, provide to both again, Court was unable the Circuit trial. While it is somewhat judge jury petitioner’s for the would scheduled twice without disturbing that a case be available, only can be judge postponement this basis for the deemed neutral. petitioner, postponement, requested

The third while comply in with the fact a result of the State’s failure Granted, the DNA discovery guidelines for DNA evidence. results, themselves, petitioner were submitted to the well test 10-915, but the thirty-day requirement within the Section testing procedures pertaining notes from the crime lab petitioner until methodology not delivered to the were (and approximately twenty days prior to trial approximately hearing). motions’ It is days prior ten to the scheduled produce failure to unclear from the record whether the State’s discovery obligations reports pursuant complete clear, however, it that the negligence; to a rises level securing the materials neces- aggressive failed to be thorough While we sary petitioner’s for its and the review. may intensity that the scientific of DNA evidence understand than that which slightly acquisition entail more time for normally acceptable, would be we do not understand deemed accept and cannot failure to monitor the division State’s responsible producing this critical evidence. DNA evi- factual circum- potential, depending dence has the stances, virtually inculpatory. or completely exculpatory to be such, that all obligated As the State is ensure materials necessary validity to an evaluation of the of the DNA test available to the defense as well as the State. results are timely in a provide Because the State failed to these results fashion, petitioner and his counsel were left with no choice agree postponement. but to to another Despite diligence our admonition for the State’s lack of time, postponed delays when the case-was for the third case, whole, largely as a stem neutral rea- addition, as con- appears sons. the State have been delays petitioner cerned with the as the and there is slightest implication good that the State failed to act faith. Assertion(s) Right Speedy to a Trial C. The the strength the and timeliness of a defendant’s

Often delay speedy right assertion of his trial indicate whether the lengthy begins experi has been and whether the defendant Barker, prejudice delay. ence from that See 407 U.S. at 531- 2192-93, 117-18; at Bailey, 92 S.Ct. at 33 L.Ed.2d 319 Md. judice at at 552. sub petitioner A.2d The the case right speedy his to a trial. first twice asserted He demanded 1999, only trial in March of two months speedy after his Then, year April indictment.10 one later on the petitioner speedy moved to dismiss his case for violation of his trial right. petitioner, question, without satisfies this factor. petitioner speedy

10. The filed a demand for trial in the District Court Court, proceeded When on March 1999. the case to the Circuit he filed the demand in Circuit Court on March the largely upon Special Appeals relied The Court support third surrounding postponement the circumstances aggressively assert petitioner failed to its conclusion the failed, according right. petitioner speedy his trial Because right, adequately assert the Appeals, to Special to the Court of to the attributable delay cause of was deemed more that, agree upon than the State. While we petitioner rather in a six-month postponement third resulted learning 19, 1999), could (January 13, July petitioner have, have, immediately asserted his probably should trial, speedy disagree to a we must with the excessive right places on this facet of the weight Special Appeals the Court of and timeliness of the assertion vigorousness case. The deemed, It be speedy right is a consideration. cannot itself, delay; nor can it be in and of the cause for the a constitutional violation determining factor whether departure marks our from the decision of the occurred. This fact, court, upon and in is the basis appellate intermediate opine today. which we Prejudice

D. to the Defendant factor, prejudice actual analyzing the fourth defendant, are, essence, considering against the harms we (i) right protect: oppressive which the seeks (ii) incarceration; accused; anxiety and pre-trial concern (iii) impairment Bailey, accused’s See defense. Barker, 416-17, at (quoting Md. at A.2d at 555-56 407 U.S. 118). 33 L.Ed.2d at 92 S.Ct. constitutional di- pre-trial While the incarceration was of factors, requiring scrutiny under the Barker we do mension unduly oppressive given that it inordinate or not believe Specifically, peti- factual circumstances of this case. delayed quest, by as a result of a both tioner’s parties, complete for and accurate DNA and adminis- evidence delays resulting unavailability judges. from trative element, respect

With to the second we have delay a “can recognized prolonged that emotional stress from 230 prospect ... in the presumed

be to result uncertainties than, or receiving longer trial or of a sentence facing public to, presently serving one he is consecutive —uncertainties Jones, A.2d 279 Md. at 367 prompt that a removes.” States, 434, 439, Strunk United (quoting at 12 U.S. (1973)). intangible L.Ed.2d Those S.Ct. prevail only countervailing “should if the personal factors by the are those connected considerations offered Divver, prosecutorial case loads.” crowded dockets Barker, at (quoting A.2d at 78-79 407 U.S. Md. at 121)(White, J., at concur- 33 L.Ed.2d 92 S.Ct. requires than an that ring). prejudice Actual more assertion living anxiety in a state of constant due the accused has been indicia, delay. than a naked pre-trial Some more assertion, an support the dismissal of indictment needed Bailey, for 319 Md. at 572 A.2d at 555-56. prejudice. judice, the case sub petitioner’s alleged counsel that “[o]bvi- ously, very anxious and concerned about time [the [Glover’s] home, ... ... house and [lost] he’s been he incarcerated] family....” Certainly intangible distanced from these [is] any for accused who is incarcerated factors are troublesome prior only trial. factors lengthy for a duration These postpone- if the State’s sole basis for the prevail, was crowded dockets. Because the attainment of the ments reason, justifiable initially, was a at least for materials weigh heavily will not factors postponement, we these petitioner. elements, potential the most is the Of the three serious ability adequate an delay impair present will defense system. fairness of adversarial thus skew the the entire impairment A in trial can result one’s defense factors, unavailability tangible due to both such as the records, intangible or loss or destruction of witnesses factors, including fading ques- about incident in memories exculpatory in the wit- tion and decrease likelihood can nesses be found. impairment

The trial court inferred an de- period elapsed of the time between the fense because

231 offense, indictment, of trial.11 and the date date dismiss, petitioner to hearing on the motion During the memories, but this and faded missing witnesses alluded to pre-indictment largely respect was argument made us.12 We cannot presently not an issue before delay, which is peti- that indicates that the any on the record find evidence delay, and we impaired as a result of the tioner’s defense was impairment an or unwilling presume infer such are when, earlier, delay was not excessive as we stated existed in States Supreme As Court stated United or inordinate. 321-322, Marion, 30 S.Ct. U.S. (1971), L.Ed.2d arrest, time, may impair or after

Passage of whether before lost, memories, deprive to be the defendant cause evidence witnesses, ability his interfere with of and otherwise is possibility prejudice But this defend himself. Amendment reason to wrench the Sixth not itself sufficient in is inherent prejudice its context. Possible proper short; Govern- delay, may it also weaken the any however ment’s case. added). found judge that the trial

(emphasis To the extent clearly findings his of fact were errone- prejudice, we believe ous.

IV. Conclusion task, Balancing undoubtedly four factors is a sensitive by each specific presented on the facts completely dependent task, carrying this difficult we are unique case. out analysis begins period speedy trial with the 11. The of lime relevant 26, 1999, indictment, case, February filing see date of or this arrest 388-89, Divver, the date of the Md. at 739 A.2d at and not 24, 1998). (February offense delay process petitioner challenged pre-indictment due 12. The (1) grounds. petitioner required prevail, To was to establish both (2) delay purposefully prejudice, made actual advantage gain over See Clark v. State to a tactical the accused. (2001). did not 774 A.2d The trial court 364 Md. delay pre pre-indictment rule motion. The issue on the delay indictment is not before this Court. petitioner’s right that our task is to ensure that the mindful violated; mindful, we are also trial has not been to ensure the often result efforts during a trial. The fairness of highest quality fairness in which DNA evidence particularly trial is sensitive cases guilt or innocence may play determining a critical role availability of acquisition or of an accused murderer. that a DNA does not mean defendant’s evidence contrary, and with rights import. have diminished On the hand, emphasize at we wish to that the respect to the case in DNA aggressive pursuit was not as its of the evi- State documents, dence, as supporting both results and the the test Md.Code, statute, required § under see 10-915 we believe Proceedings (outlining and Article the the Courts Judicial presented thirty DNA at requirement that evidence be least trial), universally accepted duty days prior to under the to trial. 319 Md. bring Bailey, the State to the defendant See Nevertheless, at at 545. we do not believe that 572 A.2d delay unduly prejudiced the defendant. the case, namely circumstances of this the at- peculiar The evidence, coupled DNA with the tempts acquire complete prejudice, that no on the established fact evidence record petitioner’s speedy leads us to our conclusion the Therefore, disagree was not violated. while we with the right affirm reasoning Special Appeals, of the Court of we judgment. ultimate THE APPEALS

JUDGMENT OF COURT OF SPECIAL BY AFFIRMED. TO BE PAID THE PETITION- COSTS ER. RIDGE,

BELL, C.J;, HARRELL, JJ., ELD dissent. HARRELL, J., BELL, Dissenting Opinion by in which C.J. ELDRIDGE, J., join. respectfully I dissent in this fact-bound case. The trial correct, legally my indictment in judge’s dismissal was Contrary Majority’s to the conclusions offered view. delays not occasioned analysis, the record does reflect by testing process DNA and transmittal of results and due, Majority was as the to the defense related documentation at testing (Maj. op. hints, complexities of DNA to the inherent 226). Also, in its claim that the Majority is mistaken than that the was other is devoid of evidence record (Id.). Rather, concededly constitutional diligent by may what be described in this case was caused dimension on institutional snafus benign neglect and as avoidable and its units.1 part of the State by law enforcement authorities victim was discovered therefore, early had access February 1998. The wearing was jeans victim’s blood and the he samples discovered, jeans pocket from a bloodstain on a which

when that became a critical focus was discovered much later go unex- analysis. Unfortunately, reasons record, evidence went pocket on this bloodstain plained April- until sometime late undiscovered the authorities sample had obtained a blood early May 1999.2 The authorities 1998; however, Petitioner was May or June Petitioner February year over a after the not arrested until discovered, until 31 body victim’s and was indicted March 1999. forward- samples

The record is obscure as to when the were ed, laboratory initially, testing. and to which for DNA The 2 postponement request, July filed on State’s written alia, inter grounds postponement, stated as for a “scien- (D.N.A. results) testing tific evidence not back from F.B.I. States, Doggett 1. v. United 505 U.S. 112 S.Ct. 120 L.Ed.2d (1992), Supreme 520 the Court said: diligent prosecution delay, negligence Between and bad-faith official ground. bringing occupies an accused to middle 1rial the While compelling every relief in case where bad-faith would make automatic, virtually negligence automatically relief neither tolera- exactly simply ble the accused how it because cannot demonstrate prejudiced him. 656-57, 112 S.Ct. at 120 at 531. 505 U.S. at L.Ed.2d July prosecutor explained hearing 1999 The to the court at a 2. postponement request the State’s initial the bloodstain on the "going through pocket was discovered while the evidence for a closer look.” July hearing postpone- At on this Crime Lab....” the request, prosecutor represented the the court he ment Maryland Police’s by person was informed from the State sample “that had to Laboratory on 30 June 1999 the be Crime analysis and to the FBI crime lab for more detailed sent on ready July explained for trial on” 19 1999.3 He would not be “just recently” that the Police had received the further State and, “they having a hard time jeans pocket bloodstain were testing they matching preliminary type off and on the pulling do, Finally, FBI crime lab.” so it had to be sent laboratory maintained that the State Police crime prosecutor analysis” required. perform was not able to the “level record, however, any not- of the sam does reveal Rather, testing. appears FBI for it ples ever were sent performed lab both of Maryland that the State Police crime letter, 1999,4 July In a DNA tests this case. dated attorney prosecutor transmitting from to Petitioner’s report Laboratory Division’s lab Maryland State Police Crime (PCR) Polymerase of a Chain Reaction test on results 5 that it still samples, awaiting the State notes was results from the Trace Unit of that division. A second testing results, apparently also from conduct round of DNA test tests lab, relayed to by ed Police crime Petitioner’s State prosecutor a letter dated 8 October 1999. counsel August report, This second Police crime lab dated via apparently contained results obtained the Restriction (RFLP) Length Polymorphism process,6 although Fragment prosecutor argued postponement request mentioned 3. The who also "recently assigned taking only ... over for he had been matter/' assigned prosecutor. an earlier August copy 4. filed with the on 2 A of the letter was court report July any 5. The is dated 7 but does not contain clear samples initially, when and whom the were received indication FBI, samples initially whether the had been routed to the or when the (# It be inferred from the file number F98- test was conducted. could 130), opened in that a file on the matter was Md. n. 6. See Williams v. 744-45 679 A.2d (1996), explanation testing n. 6 for a technical of the PCR and RFLP processes. Thus, report. as in the not mentioned such process was crime lab indeed Police that the State appears prima it facie test, RFLP sophisticated more performing the capable postpone initial in contrary the State’s suggestions to won notwithstanding. also are left We justification ment role, may lab if FBI crime any, what der on this record matter, invocation than the mere played in the other have State’s into the interject some verisimilitude its name postponement. initial justification for the latest, for the Petitioner, at asked August on 23 any regarding lab Police crime testing notes from the State notes supplied the chemist’s testing. prosecutor DNA but, 1999 court testing, at a 20 December from the PCR no him that hearing, personnel that crime lab advised claimed to the RFLP test. Petitioner’s notes were taken relative for the more registered surprise that no notes existed counsel light of the facts that notes were sophisticated RFLP test of the sophisticated on test and the results made the less PCR genetic 3 of the 6 depicted “uninterpretable” RFLP test as jeans pocket profile from the DNA markers obtained profile from compared bloodstain when Petitioner’s sample. his blood hearing, prosecu- days 20 December 1999

Two after the copies of the chemist’s tor forwarded to Petitioner’s counsel subject of the 27 DNA test that was the notes the second explained to the court August report. prosecutor As the Sup- Motion To January hearing at a 6 Petitioner’s evidence, January on 6 upshot postponement of this another January Although 2000 of the 13 2000 trial date. the court to DNA suppression denied Petitioner’s motion as evi- dence, a granted it later his motion to dismiss for want of trial, concluding expla- that “the State has offered no why reports nation ... DNA test results and were as completely available until 23rd of 1999. Th[at] December unavailability discovery of this in of material resulted failures delay in In is the bottomline reason for the ultimate this case. analysis, responsible every final the State is for each and postponement of this case.” patently

This is what the record of this case reveals. As is clear, delays samples of and attributable to the obtention testing delays laid at of were the feet the State. The Therefore, complexity testing. were not occasioned it Majority, analysis is of concern to me that the its considerations, Wingo glosses Barker v. over and misstates and, instead, analysis what the record shows leads the down a path that no primrose theoretical bears relevance to the facts permissible present and in this In its inferences case. exami- factor, delay” Majority nation of Barker “reasons for technical, highly requir- reasons that “DNA evidence is often ing completion to allow courts more time for the tests 226). review, by parties (Maj. It op. both the results.” acknowledges, duty then the “State to coordi- [has] divisions, including responsible various criminal nate the those laboratory analysis, necessary bring for to trial. defendant includes, course, duty ensuring discovery This that critical materials, evidence, properly such as DNA are monitored for, simply collecting and not dust or accounted regard labs. initial request federal crime the State’s postponement, we find no evidence that the State failed to act therefore, diligent in a manner and we conclude these grounds postponement justi- for the were both neutral and (Id.). fied.” inability for its

Except find “evidence” the record “that to act in a diligent the State failed manner”7 and its erroneous Majority, analysis delay, 7. The later in its of the reasons for chastises comply discovery guidelines the State for its "failure to for DNA postponement for the “grounds [initial] conclusion accept Majority’s I justified,” both neutral were scientific expectations about societal generalizations part company, I howev- testing. of DNA Where complexities er, no evidence acted the State is that this record reveals tó the much and inferences but rather evidence diligently, evidence, which was before contrary. It is this state court, judge me to conclude the the trial leads correct.

792 A.2d 1175 Edward Clarence COHEN v. Maryland. of

STATE Term, Sept. No. 2001. Maryland. Appeals

Court March Rose, (Stephen E. Public E. Har- Peter Assistant Defender Defender, brief), Baltimore, ris, for Public on Petitioner. (J. Halstad, Attorney Joseph Leigh S. Assistant General brief), Curran, Jr., Attorney Maryland, General Baltimore, Respondent. evidence,” locating delivering only regard but to Petitioner (Maj. op. at at notes from the second round of tests chemist's -28). gravamen briefly, Majority Just excuses the as because, view, case, delays ''admonition” in its "the of its whole, 228). (Id. largely stem from neutral reasons.” Funda as generalization judge mentally, with which the trial and I it is that last disagree. notes in connection with the documents, analysis, including custody sizing hybridiza- chain of and information, calculations, worksheets; tion statistical and (iii) Laboratory protocols procedures analysis; utilized (iv) genetic analyzed; The identification of each locus (v) setting A statement genotype profile forth the data and frequencies for the databases utilized. (d) Prerequisites. party provide a is unable to the information —If (c) required days under subsection prior of this section at least 30 proceedings, may grant the criminal the court a continuance permit timely such disclosures. trial was July 2000. The was reset for The trial when, hearing suppression at a one more time rescheduled 2000,6 expressed counsel on March held delay between trial dates. length concern over the very delays were indicated petitioner Counsel as she stated: significant filing plan that I do this court aware “I have made trial, I and will have for lack of motion to dismiss trial, Honor, but Your wilting prepared ahead today on our motions my concern at least I did want to voice just long too July 17th date that I believe date trial dates.” between delays, about Attorney expressed concern also The State’s stating: I honor, in that concern also. was shares “Your the State July 17th date ... conference that set the party not a office, I found out that date had my back to got ... when I concern, I, too, as as the great had well been selected

Notes

notes confusion over whether press the DNA (1) by: presumed for the RFLP test was occasioned existed (2) tests; conducting and RFLP different chemists the PCR 1999; leaving employment September both chemists State (3) person at the Police crime assigned the next contact from the responsible for case could not find the notes lab (4) (which lab); and, it took test were in a file second to search and supervisor involvement of the lab others Essentially, chalked-up prosecutor the notes. locate crime lab internal confusion at unintentional responsibilities. by imprecision the transfer caused

Case Details

Case Name: Glover v. State

Court Name: Court of Appeals of Maryland

Date Published: Mar 6, 2002

Citation: 792 A.2d 1160

Docket Number: 67, Sept. Term, 2001

Court Abbreviation: Md.