*1 the court left room and their had discharge not been recorded. proper ruling. We think this awas Id. at A.2d 472.
In the instant the jury case had upon, deliberated permissible arrived at a verdict of on guilty charge handgun use of the commission of a crime violence. The jurors returned to the jury prepared box to announce their charge, verdict on well as as their not guilty remaining verdicts on the I charges. logical see no reason holding precluded were from they rendering their guilty handgun charge verdict on the merely they because polled first announced and their guilty were on verdicts charges. the other Until jury discharged dispersed, they should be able to they return the verdict had reached, yet but not announced.
Judges Rodowsky and McAuliffe have authorized me to state they join dissenting in this opinion.
Court of April 23, 1990. *3 Gwynn Jr., X. Kinsey, (J. Asst. Atty. Gen. Joseph Curran, Jr., Atty. Gen., brief), both on Baltimore, for petitioner.
John L. Kopolow, Asst. (Alan Public Defender Murrell, H. Defender, Public brief), both on Baltimore, for respondent.
395 COLE, ELDRIDGE, MURPHY, C.J., before Argued ADKINS, JJ., and RODOWSKY, McAULIFFE and of the Court ORTH, Jr., Judge Associate E. CHARLES (retired), Assigned. Appeals Specially Jr., Assigned. ORTH, Judge, Specially E. CHARLES
I enjoy the accused shall prosecutions, In criminal all speedy trial.... right to a ... Carolina, 386 v. Klopfer amend. North
U.S. Const. VI. 993, (1967), estab 988, 18 1 87 S.Ct. L.Ed.2d U.S. “fundamental,” and is right trial speedy lished that the to a Process Clause of the Fourteenth Due “imposed 407 U.S. v. Wingo, Barker Amendment States.” (1972). The 2182, 2184, 33 514, 515, S.Ct. L.Ed.2d any “from distinguished speedy to a trial is be right in the Constitu rights the other enshrined [United States] at 92 S.Ct. protection of the accused.” Id. tion is a societal It is different that there generically at 2186. separately trial “which exists providing speedy interest to, of the from, times in the interests opposition and at “deprivation It is accused.” Id. different is not advantage. Delay accused’s right may work Id. at an uncommon defense tactic.” S.Ct. is a “[P]erhaps importantly, most trial Id. concept procedural rights.” than other vague more right, “amorphous” The nature of the *4 2188, 522, at at “slippery,” id. 92 S.Ct. precise a impossible pinpoint it time
make[s] waived, but right when must be asserted process not argue placing protect- fact does for burden A has no right on defendants. defendant ing solely trial; as bring duty has that himself to State duty that the is consistent duty insuring as the trial well Moreover, earlier due for the reasons process. with bringing expressed, society particular has a interest 396 prosecutions,
swift and society’s representatives are the ones protect who should that interest. 527, (footnotes
Id. at 92 omitted). S.Ct. at 2190 And it is also
impossible to determine precision right with when the has been denied. We definitely say cannot long how is too long a system justice where is supposed to be swift but deliberate. consequence, As a there point is no fixed the criminal process when the State can put the defendant to the choice of either exercising or waiving right to a trial. speedy (footnote
Id. at 92 omitted). S.Ct. at 2187 Therefore, as Barker said at 522 “any into inquiry speedy trial claim necessitates a functional analysis right in the particu- lar context of the case.” right
The speedy trial is necessarily It is relative. consistent delays depends upon circumstances. It rights secures to a defendant. It does preclude rights of public justice. Haubert, 77, 87,
Beavers v. 198 573, 576, U.S. 25 S.Ct. 49 (1905), L.Ed. 950 quoted 407 Barker U.S. at 92 S.Ct. at 2187.
In Barker,
Court,
the Supreme
time,
the first
at-
tempted to set out the criteria
right
which
is to
judged.
be
407
atU.S.
at
In doing
S.Ct.
so, the Court rejected
rigid
two
approaches
“fixed time
—a
period,”
is,
a defendant must be offered a trial within a
specified
period,
time
and a “demand-waiver” rule under
which consideration of the
restricted to those cases
in which the accused has demanded a
trial.
Id. at
523-528,
397 II A con- Supreme Court’s observations of the The acuteness speedy trial of the quality character and cerning the us to upon It calls case at hand. home brought by are aby offended were rights constitutional whether determine in a criminal to trial Bailey bringing Ray Alex County. Montgomery Court for in the Circuit prosecution offend- were not rights that the court concluded The circuit It they were. held Special Appeals The Court ed. conviction Bailey’s upon entered judgment reversed court. prius nisi imposed by sentence and the jury Term, 1988, 17 filed 737, September No. Bailey v. for the petition The filed a State unreported. April conditional filed a Bailey certiorari. of a writ of issuance and ordered petitions granted We cross-petition. to us. case certified
B criminal saga in the adventure Maryland The he was 1986 when February on Bailey began career of charged and County, Maryland, Montgomery arrested in Sub- Dangerous of the Controlled various violations of John time, the name he fancied stances Act. At and aliases,1 he was so booked Vron, and many one of Jury indictment, by the Grand handed down indicted. cocaine, him with distribution charged 20 March cocaine, conspiracy distribute with intent to possession nol 1986, the State 6 June cocaine.2 On to distribute Jury May Grand the indictment. On prossed (if his true subsequently that is discovered that 1. The State Byrum, name) Bailey, Bailey, Alex Ruben known as Beetle was also Vron, Vron, Hudson, Dixon, James Arthur James William Lou John Bucky Bailey. Bailey, Byrum, Byrum, Alex Charles Joe Joe Ruben included in the copy indictment 2. A of the 20 March 1986 to us. record submitted returned another indictment. It that Alex presented Ray in note Bailey, also known under the various names listed *6 supra, 9, 14, or February February about between 1986 and
1986, unlawfully bring did into this State a controlled II, cocaine, dangerous of Schedule to wit: in an substance 27, in grams greater, amount of 28 violation of Article 286A(a)(2)of the Annotated of Maryland Section Code ... count; [1st and]
on or about the same dates between
in did Montgomery County, Maryland, unlawfully possess II, dangerous a certain controlled substance of Schedule cocaine, in to wit: sufficient indi- quantity reasonably cate under all circumstances an intent to said distribute substance, 27, dangerous controlled in violation of Article 286(a)(1) Section of the Annotated of Maryland Code ... [2nd count].
On 28 February years days two and nine after he was arrested, trial, Bailey brought was on the second indict- ment, protest, over his in the Circuit for Montgomery Court County. On he had made February known objection being filing tried a motion to dismiss the by indictment for “lack of a trial.” The motion heard and denied two later. Trial days proceeded before a jury. Bailey was found not under the first count guilty and guilty under the second appeal count. The direct and the grant by of review this Court followed.
The events which occurred during the interval between Bailey’s arrest and his trial are in a “Chronology” detailed prepared by appended the State and to its answer to Bail- motion to dismiss.3 ey’s It shows: motion, hearing 3. At the on the defense counsel said: chronology prosecutor] prepared The has has [the been exception reviewed me. With the of some of the inferential there, happened conclusions that he makes from what agreement I am in substantially the dates are fact correct. in Montgomery arrested 1986—Defendant February Held on District Vron. as James County, Maryland charging Distribu- 012547D3 charging document Court Intent to Distribute Cocaine, with tion of Possession Cocaine, to Dis- Conspiracy Cocaine, Possession tribute Cocaine. Vron, Defendant, indicted as James
March 1986— 41284). (# County Montgomery Court Circuit Cocaine, Possession Distribution Charged with to Distrib- Cocaine, Conspiracy Intent to Distribute ute Cocaine. conviction of trial absentia 1986—State learns
May, South Carolina. Ray as Alex defendant Carolina the details of South sets out chronology *7 conviction. (as Alex arrested 5, Bailey) 1984—Defendant
September in Trafficking in Cocaine Charleston charged with $75,000 Held on bond. South Carolina. County, Court, County, 12,1984 Magistrates Charleston October — ($1,000.00). one thousand dollars reduces bond to indicted. Count One— 1984—Defendant December and Count Possession with Intent to Distribute Valium in in filed Court Trafficking Charges Cocaine. Two— Sessions, South Car- County, Charleston General olina. at court. present 1985—Defendant not
January Sessions, Bench Warrant issued from Court General South Carolina. County, Charleston (TIA). Guilty 1985—Defendant tried absentia April imposed. counts. of ten years on both Sentence Bailey’s after the aware of South Shortly State became As- consequences, and their criminal activities Carolina for wrote Attorney Montgomery County State’s sistant continues: chronology defense counsel. The Phil Arm- 3,1986 Office advised Attorney’s June —State’s intent Counsel], via letter of strong, Esquire [Defense in order to defendant charges to nolle have Maryland charges first earlier South Carolina. face from the Assistant State’s Attor- The letter of 3 June 1986 to defense counsel read: ney informed the Solicitor’s Office
I have been recently Carolina, client, Charleston, Ray Alex your South there in trafficking cocaine Bailey, charged September, 1985 in 1984, and in fact was convicted file at upon this have been on Warrants based absentia. In Detention order to County Center. Montgomery authorities in their efforts to Carolina facilitate South sentence, I decided to enter their have enroll and execute 41284. Your client nolle to criminal number prosequi Carolina detainer then be held under South will intend to does not Maryland extradited. State feel of Mr. but we do prosecution Bailey, its abandon personally client to appropriate your it would be and, if charges in South Carolina answer these earlier I there. feel that sentenced, serving to start his sentence settled to the Mont- finally prior matter should be for the recent incident of gomery County prosecution bring client back your 1986. We would then February, Agreement Interstate on under the Montgomery County Detainers. June prosequi Friday,
I will enter the nolle entered to indictment number 41284 was prosequi The nolle *8 in the entry said it The 9 June 1986 as the State would be. reads: chronology from Attorney’s 1986—Letter to State’s Office
June Armstrong procedure. Philip objecting objection counsel made known his State’s Defense Assistant State’s His letter of 9 June informed the actions. Attorney: 3, 1986 interest. your
I read letter of June have aware, I’m Mr. demanded a you Bailey As sure are in the District and the Circuit speedy trial both Court Court.[4] The State of Maryland, having jurisdic obtained him, is running tion over to the subject the time his right Constitutional to a if speedy it voluntarily elects to prosecution against terminate the him in order to facilitate a law enforcement purpose jurisdic another tion.
If the State is desirous of prosecuting Mr. it is Bailey, position his must do so pe- State within the rimeters of his rights process law, to due and we wish have record reflect that clearly objects he to the entry of any prosequi nolle in this matter and reiterates previously his requested demand for a speedy trial. Thereafter, according the chronology, Carolina.[5]
June, 1986—Defendant returned to South 16,1986 October appears Charleston Coun- —Defendant Court on ty bench Warrant issued on January October 1986—Sentence of ten years confinement imposed in South Carolina case. Motion to Reduce sentence filed immediately.
Back Maryland, the saga Bailey’s career, criminal as told the chronology, continued.
May 1987—Defendant indicted in Coun- Montgomery ty, Maryland, Importation on of Cocaine and Possession with Intent to Distribute. Bench Warrant issued. Criminal number 46579. dispute Bailey’spreservation
4. There is no about of an assertion to a trial. As judge defense counsel told the at the hearing on the motion to dismiss: one, agreement day We are all in literally, that from from the date my appearance iterated, that I entered in the District Court he has reiterated, and reiterated his demand for a trial. appears Bailey 5. It was not returned to South Carolina on the Montgomery mere whim of County Attorney. Assistant State’s Bailey The State asserts in its brief that was sent back pursuant request to a government filed the South Carolina Detainers____ Agreement accordance with the Interstate dispute does this assertion. *9 Depart- Carolina sent to South 10, 1987—Detainer
June Montgomery County Sher- from ment of Corrections charges. iffs on new Agree- Interstate under request files 1, 1987—State
July for trial in Ray Alex on Detainers to obtain ment 18, 1987 set. August Pick-up date Maryland. 24, set. September date 1987—Trial July, Maryland. transfer to fights 12, 1987—Defendant August 18, 1987 cancelled. Governor’s August date Pick-up hearing set. on criminal number 24, date 1987—Trial
September ex- fighting in South Carolina Defendant still 46579. tradition. for transfer approval 3, 1987—Governor’s
November 24, 1987 set. of November Pick-up date Maryland. Montgomery 25, appears 1987—Defendant November of December Trial date Held without bond. County. con- date December 1987—Trial December resets calendar. Court attorney’s flicts defense 18, 1988. February case Speedy for Lack of to Dismiss 17,1988 February —Motion defense. Trial filed The later. days held two on the motion was hearing
A rendered jury proceeded. and trial motion denied (first charge importation on the guilty of not a verdict charge possession count) guilty and a verdict count). (second
C are not chronology in the Here, the facts as narrated hearing on the at the judge before the dispute and were motion to dismiss. motion Bailey’s response memorandum
The State’s set out reasons for of a to dismiss for lack delay. They were *10 develop
to the State to an enhanced Impor- allow case of Dangerous tation against of Controlled Substance the defendant, to the and allow South Carolina to System enroll the in absentia on his conviction 1984 arrest and to the serving allow defendant to start tenure as South prisoner. Carolina
(Emphasis original). “This crystallizes,” the State assert- ed, “the record the prior defendant which is crucial to possible sentencing explained: the defendant.” The State
It was not until get that the State could May, evidence, enough the via of a testimony co-defendant Larry an Moore], request Importation of [William Controlled Dangerous indictment. Substance reasons,” averred, “These the proper State “are entirely Attorney’s consistent with the “Fur- State’s function.” thermore,” reminded, the State “the the de- State warned fense of its intentions.” hearing motion,
At the on the the Assistant State’s Attor- ney played the same theme it song. He declared that was prosecutorial function, “a case, size of a up strength and then do what it thinks is best to obtain a conviction.” “[QJuite admitted, frankly,” up he “I my wanted to shore I, case against fact, this During man. did that.” time pros between nol and the reindictment “what Maryland doing attempting was was develop to enhance and against a case prosecutor The [Bailey].” conceded: “There question is no that was intent my During and motive.” eleven months during outstanding which there was no Ma- ryland charge against Bailey, prosecutor believed that legitimately subject “was to further investigation.” During period the prosecutor was attempting per- suade a testify co-defendant to against Bailey. the State But, that deal cut with the co-defendant he “[w]hen testified Jury] Grand ofMay there’s an [before indictment, and immediate efforts were taken to secure [Bailey’s] presence back here.” The Assistant At- State’s torney disavowed that was seeking he a tactical advantage. It was not a case where the State a nol pros used to delay died, judge” or to “duck a until an witness
prosecution alibi together “We gain putting a continuance. [were] that the accepted prosecu- counsel stronger case.” Defense he dropped he “speaks says tor the truth when [the co-defendant, and be- he to turn a because wanted case] the South Carolina up he to firm the status of cause wanted argued: Defense counsel conviction.” then whether action question becomes faith, mean, may Mr. I he Bailey. is bad vis-a-vis State He done may conscience. have have done it with clear right thing it to do. But whether it that was the thinking *11 law, not, I not matter of am that is faith as a good willing concede. to the prossed nol “for that the indictment was thought
He advantage, a tactical giving sole of purpose State] [the legal is faith as a matter.” which ... bad no court seems to be hearing said “[t]here pros.” to for the nol dispute factual as the State’s reasons indicated, as the judge for the the were delay, The reasons to motion response set in its memorandum the State out dismiss, to namely, case develop importa- to an enhanced the State allow defen- against substance the dangerous
tion controlled dant, to enroll conviction and allow South Carolina arrest, his 1984 and to allow the defendant absentia on prisoner____ start as a South Carolina serving tenure 28th, 1987, the May If trial date from compute we indictment, appear there does not ... be most recent dimension that has been any any constitutional occasioned.
If, however, computed the trial to the date date back that, original indictment, the court believed nol though prossed] even indictment was [the some for gaining advantage prose- avowed purpose cution, improperly it does seem to have been motivat- ed in any way.
It seemed to the court that “it would not constitute bad faith.” The court concluded: “We are therefore not dealing with a denial of trial.” The court ruled:
Given all factors considered and acknowledging that it would be an appropriate case for Appellate Court to review, the court will deny motion to dismiss on the grounds of speedy trial.
The Court of Special Appeals, reversing court, the circuit deemed three time periods to significant: be
1. From February 1986, when the appellant was arrested for the possession cocaine, 6, 1986, until June when the indictment that followed after shortly his arrest prossed. nolle This time period consumed slightly less than four months. 6, 1986,
2. From June when original indictment was prossed, nolle May 28,1987, until when the appellant was possession reindicted for of cocaine and indicted for the first time for importing cocaine Into Maryland. This time period was just a few days short of one year. 28,1987, From May when the reindietment posses-
sion down, was handed 19, 1988, until February when the appellant’s motion to dismiss the charges was heard and denied. This time period was slightly less than nine months. v. supra, slip opinion at 1-2. The interme- *12 appellate
diate court opined that the speedy trial issue “hinges on the nolle prosequi....” Id. at 3. The court observed that if the nolle prosequi were “a legitimate termination” of the then pending prosecution, Bailey would lose. It explained:
The period time of less than nine months was not particu- larly inordinate in terms of length of delay. The appel- lant, rather than demanding a speedy during trial that period, was indeed fighting extradition from South Car- olina. The reasons for delay, without unduly anguishing details, over the seem to be more attributable to the appellant than to the was, State. There moreover, no showing of special prejudice only but the presumptive condition delay the itself. The upon attendant
prejudice however, is not established. analysis, for this precedent If, however, prosequi at the nolle were Id., slip opinion 2. beginning from delay ran the so that the improper, interruption through the end period without first time the State would lose. period, the third time event, will excess length delay slightly be In In beyond ordinary. period a time well years, of two trial, period this time for a speedy terms demand a trial of appellant’s demands for embraces the 2; 1986. In terms of 18; and June April March upon attendant presumptive prejudice prejudice, the pre- is far more than delay proportionately two-year upon delay. a nine-month attendant sumptive prejudice for the de- in terms of significantly, responsibility Most responsibility ap- for the bear sole the State would lay, one-year period prosequi between nolle proximately and the reindictment. Special Appeals at The Court of
Id., opinion 2-3. slip pros nol Id. improper. that the entry concluded trial, “the seeking delay It believed advantages 1) attempting gain two tactical State was — 2) additional sentencing of enhanced benefit at 4. The court observed: charges.” Id. delay not a trial suggest may that the State
This It if it advantage. may, a tactical but order to obtain does, price. pay it must a calculated count the State delay against that such will price is delay gain If a short analysis. will it well worth the State’s significant advantage, may be advantage, A for tactical how- gamble. lengthy ever, to the case. When frequently will be fatal State’s return, it is nothing quite little or getting the State is gamble. obviously a bad
Id. The court declared: here justified any
Thé cannot be prosequi nolle charges the initial had be terminated ground *13 proof which move insufficiency because forward. conviction under review is for the posses- sion of cocaine with intent to distribute. The evidence supporting the conviction supporting and the evidence reindictment is the same evidence that supported the initial indictment. The nolle here prosequi only was purposes of tactical delay, not for purposes building a prima case. facie
Id. at 5-6. The court recognized that
Even after determining that the entire two-year period represents the length delay, still we must consider the legitimacy State’s causing reasons for one year of delay. this The argument they pose terms of enhanced punishment collapses nothing. into suggesting Without for a moment that one-year delay could ever justified be in order to subject defendant to punishment, enhanced it is unnecessary even to address that issue.
Id. at 6. The Court of Special Appeals acknowledged that fact that the conviction inwas absentia certainly “[t]he doubts____” raises some serious Id. at 6. But the court “ pooh-poohed the suggestion that it was necessary to ‘en- roll the conviction’ or ‘perfect’ it ‘crystallize’ or prior record____” Id.6 The court noted:
To convict a narcotics offender in Maryland being a repeat offender under the provisions of Md. Ann. Code 27, 286(c)(1) Art. it is not required to § show a § prior term of confinement or even the imposition of a sentence. The prior conviction standing alone is suffi- cient. Any rationale for the nolle prosequi terms of furthering the chances for enhanced punishment, there- fore, evaporates into thin air.
Id. at 6-7. With respect to the 11 months it took the State persuade Moore to testify against Bailey, the court said: event, any In when (see was returned to South Carolina note 5, supra) appeared in the court in that state in October ten-year imposed sentence began serving. which he appears This to have all legality satisfied concerned as to the judgments. of those *14 justi- could
Again, suggesting that the State ever without witness, it is an additional an 11-month to obtain fy delay did not to issue. State address unnecessary prove appellant to the Larry need William Moore police the February cocaine. On possessed the and found executed a search warrant officers who drugs to were proximity in close the recovered appellant for that purpose. sufficient case. importation for the necessary only Moore was no reason the trial of the given why The State has the proceeded during not possession charge could have charge importation there was no period 11-month when one. The might physical and when there never have been on police bearing posses- the the testimony evidence and more been of little than doubtful charge sion would have Evi- importation charge. on the trial of the relevance February appellant’s flying the to Florida on dence about 10, moreover, of doubtful relevance would have been had charge 14. Even if there possession February the of for the trial of the two justification consolidating been charges ready go, had cases been filed and both consolida- economy justify ordinary reasons are so as to excuse a compelling one-year tion pending of a criminal case.
Id. 7-8. are questions respect speedy right to the trial Two for certiorari: presented petition the State’s concluding Special 1. the Court of err in Appeals Did that, of denial determining Bailey’s for claim purposes trial, a relevant right speedy of his constitutional first, be measured from the and subse- period should instead quently charges brought by dismissed indictment, actually upon Bailey second which was tried? did previous
2. if the dismissal indictment Even not toll the relevant was period speedy purposes, trial? denied apply when we criteria are we first concern what Our appraisal. our constitutional independent make Ill seen, to a determination approach As have supra, we adopted Court Supreme trial denial which the of a 92 S.Ct. at balancing test. U.S. at however, conceded, The Court more than some the factors identify
We can do little determining courts should assess whether which *15 right. of his deprived defendant has been particular ways, them in different we Though might express some of the reason Length delay, four such factors: identify right, assertion of delay, for the the defendant’s to the defendant. prejudice (footnote omitted). four factors applied We have these
Id.
trial cases
us. See
v.
resolving speedy
before
Wilson
1053,
denied, 439
640, 644, 382 A.2d
cert.
State, 281 Md.
State,
839,
126,
(1978);
136
Jones v.
99 S.Ct.
58 L.Ed.2d
U.S.
denied,
915,
1, 6,
(1976),
1
431 U.S.
97
279 Md.
367 A.2d
cert
2177,
(1977);
276 Md.
The Assertion His Right Defendant’s right speedy The assertion of his to a trial is by Bailey 4, footnote dispute. supra. not See his right closely Whether and how a defendant asserts is factors mentioned. The related to the other we have affected strength by length his efforts will be for the by delay, to some extent the reason delay, is particularly personal prejudice, most which readily identifiable, experiences. that he always more deprivation, likely The more serious the defen- dant is to The defendant’s assertion of his complain. then, is right, strong evidentiary entitled weight determining being whether the defendant is 410
deprived right. emphasize of the that failure to We make assert will it difficult for a defendant to that he was denied a trial. prove 531-532, 407 at 92 (empha- Barker U.S. S.Ct. at 2192-2193 added). sis
Length Delay length delay triggering of the is to some extent a mechanism. is delay presump- Until there some which is there no tively prejudicial, necessity is into the inquiry other factors go into balance.
Barker,
530,
course,
analysis language, of the history, purposes and of the [speedy persuaded Clause “a only formal trial] [it] indictment or information or else the actual restraints imposed by holding arrest and to answer a criminal charge the engage particular ... of protections” provision.
Lovasco,
788-789,
2047-2048,
431
atU.S.
97 S.Ct. at
quoting
Marion,
320,
404
92
U.S. at
S.Ct. at 463.
itSo is clear that
the
“[u]pon
intervention of an arrest or
charge
a formal
the
right
Sixth Amendment
Gee,
is invoked.”
298
Md. at
In its length discussion of the of the the delay, Supreme pointed Court out:
411 imprecision trial, of the [B]ecause length delay provoke the of an inquiry will ... [into go the other factors that the is necessarily into balance] dependent upon peculiar the circumstances of the case. Barker, 530-531, (footnote 407 92 U.S. S.Ct. at 2192 omitted). The pointed Court out: “To but exam take one ple, the can delay that be tolerated for an street ordinary considerably serious, crime is less complex conspir than acy charge.” Here, Id. at 92 at 2192. nature S.Ct. the of charges, themselves, the do justify of lapse years two from arrest trial. The delay constitution and, therefore, al dimension provokes into other inquiry factors that are balanced the determination whether State prejudice has overcome presumption that arises from a delay length. of that
The Reason the Delay cause year ostensible almost a entry 4-247(a) was the prosequi. the nolle Md. Rule provides pertinent part:
The State’s Attorney prosecution terminate a on a may charge and entering dismiss the charge by prose- nolle qui on open record court. A statement of reasons for entering a nolle prosequi part shall be amade of the record.
“A nolle prosequi
prosecution’s
is simply the
abandonment
document,
of a charging
part
count or
of a count.” Hooper
State,
162, 168,
(1982) (footnote
v.
293 Md.
Ward
Md.
(cita-
v.
(1981)
A.2d 1008
*17
omitted).
tions
We believe
entry
that
the
nolle
the
prosequi here
general
was within the
pros
rule. The nol
trial,
here did not denigrate a fair
as
State,
it did in Hook v.
25, 34-37,
(1989), by encroaching
315 Md.
Closely delay Here, too, to the government assigns justify dif- delay. weights assigned ferent should be to different reasons. A to attempt delay hamper deliberate trial order to weighted the defense should heavily against be A government. negligence more neutral reason such as weighted or overcrowded courts should less heavily be but nevertheless should be considered since the ultimate responsibility for such circumstances must rest government rather than with the defendant. a Finally, reason, witness, missing valid such as a should serve to justify appropriate delay.
Barker,
(footnote omitted).
407 U.S. at
at 2192
S.Ct.
State,
Jones v.
6-7,
said in
We
Md. at
Prejudice
Defendant
The Supreme Court discussed the fourth
preju-
factor —
Barker
dice to the defendant —in
(footnote
pointed
The Court
his release.
cannot obtain
tages for the accused who
a detrimental
awaiting
in
trial has
spent
jail
The time
job;
loss of a
it
It often means
impact on the individual.
jails
Most
life;
it enforces idleness.
disrupts family
programs.
or rehabilitative
offer little or no recreational
Moreover, if a
is
dead time.
spent
jail
simply
The time
in his
ability
he is hindered
up,
is locked
defendant
evidence,
witnesses,
prepare
or otherwise
contact
gather
anyone
those
Imposing
consequences
defense.
especially
It is
convicted is serious.
yet
who has
been
are
persons
them on those
who
impose
unfortunate to
if an
Finally,
innocent.
even
ultimately found to be
trial,
he is still disad-
prior
accused is not incarcerated
by living
on his
under
vantaged by
liberty
restraints
hostility.
and often
anxiety, suspicion,
a cloud
omitted).
532-533,
(footnotes
The
at
Id. of the difficulty task recognized Court “[t]he factors____” 533, 92 S.Ct. at balancing Id. [the four] And it warned: as regard none of the four factors identified above We finding condition to the necessary either a or sufficient Rather, deprivation right they trial. together related and must be considered with are factors sum, such other circumstances as may be relevant. In these factors no qualities; have talismanic courts must engage still balancing a difficult and sensitive process. But, dealing because we are fundamental accused, this must process be carried out with full recognition that the accused’s interest trial is specifically affirmed the Constitution. (footnote omitted). Arizona,
Id.
See Moore v.
U.S.
*19
(1973);
State,
S.Ct.
While we must scrutinize the entire interval between
trial,
attempt
arrest and
to
partic-
ascribe reasons for
delays,
possible
ular
it is not
or even desirable to do so
with mathematical precision;
up
we will not count
the
chargeable
time
to the
chargeable
that
to the
defendant, and those delays attributable to neutral rea-
sons,
the
of
multiply
days
param-
number
or months
aby
eter
for each
assigned
particular reason and then dismiss
the indictment if
up
the defendant ends
the
lower
Instead,
tally.
delays must be examined in the context in
which
arise and
they
lengthy
therefore a
uninterrupted
period chargeable to one side will
of
generally
greater
be
consequence than an identical
accumulat-
days
number
ing in
piecemeal
long
fashion over a
span
time.
IV
A
Common to all speedy trial cases
decided
the
Supreme Court and this Court is the recognition that the
trial
speedy
right
unique,
is
that it is
“amorphous”
indeed
and “slippery,”
impossible
it is
to determine with
precision
the right
denied,
when
has been
and that
the
balancing
adopted by
test
the Supreme Court is difficult to
no one
apply,
being dispositive.
factor
All the cases empha-
question,
trial
speedy
of the
the determination
size
must
facts.
determination
case rests on its own
each
peculiar
of the circumstances
an overall view
upon
made
be
rights
the
ease,
only
in mind not
keeping
particular
to each
society.
interests of
defendant but also the
of the
envisioned that
Supreme
that the
Court
It is clear
independent
reviewing
appraisal,
court’s constitutional
realistic,
illusionary,
trial
not
judge,
practical,
that of the
be
reaching
not
theoretical,
prescribed,
beyond
and tightly
case.
particular
facts
peculiar
B
appraisal
light
constitutional
independent
Our
conclude
in the case at hand constrains us to
of the facts
guaranteed by
trial
was not denied the
Bailey
Bailey,
In
prejudice
our assessment
Constitution.
his interests
was
light
which
assume,
most
the view
designed
protect,
arguendo,
we
day delay
nine
year
the entire two
favorable
—that
length
A
of this
chargeable
State.
*20
thereby triggering
bal
“presumptively prejudicial,”
529,
As
Barker, 407
at
In Brady v.
in speedy
played
the role to be
II),
emphasized
we
(Brady
as
stressed
courts have
the other factors
trial cases
263,
A problem
prejudice.
and actual
prejudice
terms presumption of
of constitution-
one
lengthy delay,
has
there
been
When
that the defen-
arises
dimension,
presumption
then a
al
trial.
right
deprived
dant has been
ex-
original).
We
(emphasis
266,
Once weighing of four involves a which employed must be prejudice. actual factors, one of which And, we declared: Id. inter- of three a consideration involves prejudice
Actual Whatever protect. is meant ests function final outcome is a it assumes importance case. particular facts of the Id.
(1) Pretrial Incarceration Oppressive return to arrest to his Bailey’s from period months, inordi four not an about only Carolina was South to the the case present for the State length nate of time Prejudice an indictment. the return of Jury Grand minimal, if prejudice incarceration was period this during in the hands of the while incarceration Bailey’s at all. as far as oppressive Carolina was authorities South He was incarcerated South concerned. Maryland *21 commission convicted of the he had been Carolina because Furthermore, incar Bailey’s in that jurisdiction. of a crime six months prolonged about Carolina was ceration South clear Maryland, extradition to resisting he was because trial. he not desire a at that time did indication that arising Maryland Thus, see prejudice we no attributable incar- Bailey was the incarceration South Carolina. from his months after from about three cerated Maryland him a date try The set until his trial. State had return return, postponed his but was two weeks after about promptly Trial was had defense counsel. request at the of the indict- Bailey’s motion to dismiss disposition after ment. on hearing the motion suggested
Defense counsel at the during incarcera- was his prejudiced to dismiss that placed him at because the detainer on tion South Carolina a enjoying him from work Maryland’s request prevented him This kept in a “lockdown status.” program release and and, event, in any suggestion speculative, proved, was (between the less than months period six covered return Maryland), detainer request Bailey’s by resist- Bailey’s two of which was caused all but months little The short it is that there was to extradition. ance responsible. Maryland was incarceration for which factor minimal. to be it in the weight given prejudice (2) Anxiety and Concern in his flat assertion brief Bailey makes the years anxiety he lived with “[throughout two This prosecution.” caused naturally pending concern circumstances, statement, significance. has little bald
(3) Impairment Defense to the regard impairment The contention with suggestion potential defense focuses Bailey’s this delay. Again, because of the witness unavailable allegation, unsupported by to a evidence amounts bald dismiss, on the motion proffer. hearing sufficient At said: defense counsel
I also tell Honor that has indicated to [Bailey] would Your there of Elliott subject by me that was a the name who as in this matter. available a witness connection with was fact, he here [Bailey], brought That when was back down, alleges could try asked us to to run who he have regard him that was favorable to with provided testimony of his participation to the nature and extent this matter, longer no apparently who exists.
Therefore, defense declared counsel effect that is terms of the
prejudice demonstrable ability here has had his to upon the State’s election ... in terms of this case. present particular defense pursued by The matter was not then further defense. glean record, can from the this is all that As far as we was missing the court time regarding before witness motion, ruling motion to dismiss denied. In on the was com-, as we of his judge, interpret transcription ments, prejudice “possibly” indicated that some arose only witness, claim as by from the to the but this was “contested any The defense did not “Elliott” with identify the State.” His His particularity. given name was not mentioned. address not stated. The nature of his associa- former was Bailey particulars tion was not indicated. The his with There was no potential proffered. were testimony as to he no or as to suggestion why longer was available had to find steps been taken him. what learn It not until the trial on the merits that we more was Elliott. L. Moore co-defendant the about William was the On his persuaded testify prosecution. State had given disclosed cross-examination it was that Elliott’s name He Moore’s for 20 “buddy” was Charles. had been “life-long friend.” Moore introduced Elliott years, Elliott friends. Elliott Bailey. Bailey and became lived Moore did not Elliott’s Baltimore but remember address his or his telephone number or wife’s name childrens’ names. About before arrested days Mary- was land, Moore, who involved with took Elliott drugs, was Moore’s Bailey along type” one of user “[narcotic] elicited, It the de- Miami, Florida. weekends Moore, fense, that, according to difficulty, not without Maryland a half kilo of cocaine on his Bailey brought into But Moore’s did not demon- testimony return from Florida. provided “could have testimo- testimony how Elliott’s strate regard to the nature [Bailey] that was ny favorable in this matter----”7 [Bailey’s] participation extent of *23 event, respect defense with Bailey’s In it is any obvious impaired charge by was not one whit transportation to the Despite Elliott to the lack testify. the unavailability of the Bailey guilty the found testimony, jury Elliott’s transportation charge.8
Thus, bringing we are satisfied that him trial. our to trial did not On Bailey deny applicable of the four factors which are assessment right, determining deprived had been of this Bailey whether that, light in the of the circum together we find considered stances, a conclusion that justify the assessment does not Looking at it from Bailey’s speedy trial was violated. circumstances of angle, peculiar another we believe that the case, factors light this considered to be assessed, balance, outweigh, any were to in the sufficient arising length from the prejudice, presumed, actual and delay. probation Depart- It seems that Elliott was once “a officer for the Services, According supervising ment of Juvenile kids in Baltimore.” Moore, Florida, employed they not so when went to but Elliott was was a "full-time student at Cable Television Institute.” This was disputed by prosecutor alleged who stated that at the time Moore Florida, officer, probation casting went Elliott was Elliott indeed actually accompanied doubt on Moore's assertion that Elliott had Florida and with them. Moore and returned witness, alleged missing Bailey made no other 8. Other than the factual not, respect impairment claim with to the of his defense. He did with ability any specificity, suggest Ms incarceration hindered his evidence, Elliott), (other gather contact witnesses than or otherwise prepare suggest his defense. Nor did he that his incarceration result- job, disrupted family previously life ed the loss of a lawful he enjoyed, well-being suspicion hostility. or clouded his The answer to the question first presented whether the Court of Special Appeals in concluding erred period relevant should be measured from the original indictment, that, on our it analysis, does not matter whether the intermediate appellate court erred. The answer to the question second even if the dismissal of —that original indictment did not toll the period relevant speedy trial purposes, was Bailey denied his right to a speedy trial —is “no.”
V No State shall deprive ... any person of ... liberty ... law____ without due process of XIV, U.S. Const. amend. sec. 1. The circuit court judge, denying dismiss, the motion to said: court does not believe that there is any unreason-
[T]he able, oppressive, capricious denial; or if the situation whole, taken as a such as deny would or indicate [Bailey] has been denied due process.
Bailey raised due process his cross-petition. present- He ed the question:
Did the hearing judge err in ruling that [Bailey] was not denied due of process by law reason of the State’s nolle prosequi and delays trial?
The Court Special Appeals, inasmuch as it held in favor of Bailey claim, on his speedy trial found “it unnecessary address the alternative claim under the general due process clause.” Bailey v. supra, slip opinion at 1. Supreme The Court bespoke of the process due clause in United Marion, States v. 404 U.S. 92 S.Ct. 455. Although it appears that preindictment undue may invoke due process, there is clear indication that due process is tied into actual prejudice for the clause to take hold. The Court observed that the defendants in that case
rely on the solely real possibility prejudice inherent any extended delay: dim, memories will witnesses inaccessible, become and evidence be lost. In light of the however, possibili- limitations, these statute of applicable to demonstrate enough not themselves ties are trial to therefore a fair and cannot receive [defendants] dismissal of indictment. justify 325-326, 92 at 466. S.Ct. Id. at despite the balancing process, that, in the have seen We length arising from of prejudice presumption in favor of the and against Bailey delay, dipped the scale not Process was the Due Clause hold that State. We violated. APPEALS COURT OF SPECIAL OF THE
JUDGMENT THE AND IN REVERSED; IN COURT COSTS THIS BE PAID BY ALEX TO APPEALS COURT OF SPECIAL BAILEY. RAY
McAULIFFE,
concurring.
Judge,
I
opinion.
separately
write
I
Court’s
concur
through
same result
reached
view that the
express the
different,
appropriate, analysis.
of a
application
prosecution
original Maryland
discontinuance
legit-
grounded
of a
was
entry
prosequi
nolle
a reasonable exercise
interests,
represented
imate State
not taken
discretion. That action was
prosecutorial
defendant,
problem,
trial
or to avoid a
harass the
the time
Accordingly,
faith.
otherwise taken
bad
in this State
facing
charges
criminal
the defendant
to a Sixth Amendment
subjected
should not be
in connection with
rather
be evaluated
analysis,
should
but
pro-
to due
Amendment
the defendant’s Fourteenth
Hawk,
302, 106
v.
474 U.S.
cess.
United States
Loud
See
(1986);
v. Mac-
88 L.Ed.2d
United States
S.Ct.
(1982);
Donald,
*25
ing, initiated, 16 just reasons; weeks after it was for two and, that both reasons from the knowledge flowed State acquired after it had the original secured indictment. The knowledge, acquired May, was that the defendant Carolina, had guilty been found of South traf- cocaine, ficking and that the South Carolina authorities requesting were the return of the defendant in order to finalize the by required imposition conviction the of sen- tence.
The first reason this information important was the it, prosecutor together is that with other then information being acquired, alerted the Maryland authorities the fact that the may defendant well have imported cocaine into this State. The prosecutor represented he that needed more matter, time to the investigate and to determine whether charge the more serious of importation should brought be against the defendant. Apparently, prosecutor the also harbored a reasonable belief time that he could negotiate plea co-defendant, with a obtain thereby that co-defendant’s testimony against “bolster” his case the defendant —a belief which was later confirmed. The potential charge importation additional of of cocaine con- grew cededly out the same transaction that had generat- ed charges. Legitimate the earlier interests justice, economy, convenience, legitimate as well as concerns about the effect of double jeopardy protections to which entitled, defendant was strongly militated favor single charges. trial of all
The second reason the after-acquired information was important prosecutor it suggested advisability returning the defendant to South Carolina so previous in that verdict which had followed a absentia, trial in could be amade final judgment of convic- tion imposition sentence upon defendant.
At the time of the defendant’s trial in South Carolina in 1985, Rule 3 of the Criminal Practice Rules of that State permitted a trial Jackson, in absentia. See State v. (1986). S.C. Although S.E.2d judge
423 will decide in South Carolina absentia at a presiding conviction, sentence is if a is a sentence there upon is until the defendant sealed, imposed not opened and court. State v. the See brought and before apprehended (1948). The law of 241, 6 South Johnson, 213 49 S.E.2d S.C. in a judgment is no final that there is well settled Carolina has the defendant been until criminal tried in absentia case imposed. and sentence State brought the court the before (1985); v. 457, 289 State 285 330 S.E.2d S.C. Washington, v. (S.C.1981); Lytle v. Smith, 494, 280 201 S.E.2d 276 S.C. (1980); Hightower, 225 v. Miller, 332, 154 S.E. State 157 S.C. (1890). 580 11 S.E. S.C. 3 the having interest legitimate had a South Carolina a of judgment that State so that returned to defendant legitimate a Maryland had conviction could be entered. Carolina in South seeing judgment interest in to it that the the were convicted of finalized, so if the defendant properly he could be sen- charge in this drug later This cannot characterized recidivist. action be tenced as a advantage to the an tactical stratagem give unfair as of Rather, prose- it sound exercise represented the State. discretion, true to memorialize the state cutorial taken affairs, escaping from prevent a defendant and his for conduct.1 possibility just punishment might been able Assuming prosecutor that the have secure Carolina thereafter send the defendant South Carolina,2 he return, was not agreement with South by prosecutor cooperated Carolina authori- 1. Had not South verdict, having judgment entered on their earlier ties final probably escaped as a recidivist defendant could have treatment Maryland based an enhanced sentence either state. less could have conviction, unlikely judgment it is that South than already More- have increased a sentence determined. Carolina could over, also, reasons, might much the have the defendant same escaped jurisdiction imposing a possibility sentence of either imprisonment consecutive to that of the other state. prisoner, right to secure his Ordinarily, the of a and the transfer return, prompt ers, Agreement on Detain exists virtue the Interstate (1957, Cum.Supp.) Maryland Repl.Vol., 1989 Art. Code obligated to do so. entirely legitimate Two existed reasons prosecution. for the termination of the By entering a nolle State prosequi, improved position. defendant’s The defendant did not return to following him, South Carolina with a detainer might which *27 have affected the of conditions his incarceration there. did Maryland lodge against a detainer the in defendant later, South Carolina until a year days after the Mary- land authorities had completed investigation their and se- cured their charges new the against defendant.
Excluding period year during the of one which the defen- dant was not under the of disability any charges Mary- land, it is clear his of that claim a of the denial constitution- right speedy al to a trial without Assuming is merit. that the period 16-week attributable to first prosecution the is counted, there no suggestion of to delay attributable the during period. State Following that the initiation new charges on 28 May the bulk of the delay was directly extradition, attributable to He fought the defendant. delay- return ing his until 25 Maryland November 1987. He was tried within three months of return his to this State. one-year period
The of time that elapsed charges between Maryland has not been shown to have the deprived considered, defendant due process. Properly the various periods of delay this case do not up mount to a denial of any right. constitutional
RODOWSKY, J., in this joins opinion.
COLE, Judge, dissenting: Special The Court of Appeals. that held the relevant period case, in this delay speedy trial purposes, should be measured from the original charging document. Therefore, the the delay from indictment until trial was however, agreement applies, only §§ 616A-616R. That when there is indictment,
outstanding demanding in the state an "untried informa- tion, complaint” prisoner sending and the in the state has “entered upon imprisonment.” 616D(a). a term of Article § further court appellate The intermediate years. about two case, two-year the of this that, circumstances under the held trial. speedy right constitutional Bailey’s delay violated upon proceeds Court this opinion The majority charg- original from the period entire that the assumption in determin- considered be trial should document ing trial. was denied Bailey ing whether of two however, concludes majority, rights. Bailey’s constitutional upon encroach did not years I did. think it Special Appeals the Court of agree
I
with both
be
should
this case
period
relevant
majority
Essentially
document.
charging
from
initial
measured
Special Appeals’
in the
set forth
Court
for reasons
I
opinion,
majority
405-409
opinion,
quoted
pp.
Special Appeals
agree with
Court
The majori-
trial.
right to
denied his constitutional
*28
is,
view,
my
inconsistent
conclusion
ty’s contrary
State,
See,
v.
Brady
e.g.,
decisions.
several
this Court’s
State,
Md.
(1981);
288
v.
Brady
Md.
I would affirm Appeals. joins me that he has to state
Judge authorized ADKINS in this opinion.