Speedy Trial – A Primer and Refresher
Part One – State Speedy Trial Considerations
Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.
This is the first of a four-part series on speedy trial issues. This article and the next article will address Maryland Rule 4-271, Criminal Procedure Article 6-103, and Hicks and its progeny. In a subsequent article will address the 6th Amendment of the U.S. Constitution, Barker v. Wingo and its progeny. We hope this series will serve as primer, reminder and resource for those raising or defending against speedy trial claims.
Trial within 180 days or dismissal of charges unless good cause is shown
Maryland law requires that a criminal case be brought to trial within 180 days of the appearance of counsel or the appearance of the defendant before the circuit court, whichever occurs first. See § 6-103 of the Criminal Procedure Article (“C.P.”); Md. Rule 4-271(a). A county administrative judge or that judge’s designee may, however, grant a postponement beyond the 180-day deadline “for good cause shown.” Id.
Dismissal is the appropriate remedy where the State fails to bring the case to trial within the 180-day period and good cause has not been established. State v. Hicks, 285 Md. 310, 318, 403 A.2d 356, 360 (1979), on motion for reconsideration, 285 Md. at 334, 403 A.2d at 368 (1979). This has become known as the Hicks rule.
The Hicks Rule serves as a means of protecting society’s interest in the efficient administration of justice and the actual or apparent benefits from C.P. 6-103 and Rule 4-271 are purely incidental. State v. Price, 385 Md. 261, 278 (2005). Thus, the Hicks rule is a statement of public policy and not a source of individual rights like the Sixth Amendment. Choate v. State, 214 Md. App. 118, 140, cert. denied, 436 Md. 328 (2013). The chief purpose of Rule 4-271 and C.P. § 6-103 is to operate as a “prophylactic measure” to further society’s interest in the prompt disposition of criminal trials. Id. Citing State v. Hicks, 285 Md. 310, 318, 403 A.2d 356 (1979).
What must occur by the 180th day and what is the critical postponement?
For purposes of Rule 4-271 and C.P. § 6-103(a), the trial begins upon the start of voir dire. Markham v. State, 189 Md. App. 140, 167 (2009). It does not matter that the jury has not been sworn on the 180th day, or that there may be a delay in the trial after the start of voir dire. State v. Farinholt, 54 Md.App. 124, 129 (1983), aff’d, 299 Md. 32 (1984).
“[T]he critical postponement for purposes of Rule 4-271 is the one that carries the case beyond the 180 day deadline.” See State v. Brown, 355 Md. 89, 108-09, 733 A.2d 1044, 1054 (1999).
If defense asks for postponement beyond 180 Days, defense cannot then ask for a dismissal based on a violation of Hicks
“[E]ven when a circuit court criminal case has been postponed beyond the 180-day time limit in violation of [CP § 6-103] and [Maryland Rule 4-271], the sanction of dismissal is inapplicable ‘where the defendant, either individually or by his attorney, seeks or expressly consents to a trial date in violation of [Maryland Rule 4-271].'” State v. Brown, 307 Md. 651, 658 (1986) (citations omitted). This is not because the defendant, by his action or consent, has “waived” the requirements of [CP § 6-103] and [Maryland Rule 4-271], so that the requirements are inapplicable. Rather, it is because “it would be entirely inappropriate for the defendant to gain advantage from a violation of the rule when he was a party to that violation.” Id.
In Jules v. State, 171 Md. App. 458, 480-81 (2006), the defendant asked for a trial date beyond the 180-day period and executed an effective waiver. A nol pros was entered three months after the Hicks period had expired. The nol pros could not have had the necessary and actual effect of extending the trial date beyond the 180-day period. Maryland 4-271 was no longer applicable after the administrative judge made a good cause finding to extend the trial beyond the 180 days. Stated otherwise, the 180th day is the “bright line” beyond which dismissal is not available as a sanction once the trial date, in compliance with the rule and the statutory provision, has crossed that line.
In Ashton v. State, 185 Md.App. 607, 620 (2009), the defendant filed a motion for a continuance beyond Hicks to assess DNA evidence and prepare for trial. On appeal, Ashton contended that he was coerced into seeking the continuance beyond 180 days. The CSA held that because the trial court found good cause to continue the case and did so for the time requested, that Ashton’s rights under 4-271 were not violated.
If you are a defense attorney, just because you may not have a Hicks remedy does not mean that you do not have a constitutional speedy trial right remedy. That argument is still alive and will be discussed in next month’s article.
Cases where Good Cause has been found to postpone beyond 180 Days:
In Choate v. State, 214 Md. App. 118, 140, cert. denied, 436 Md. 328 (2013), the CSA found that the good cause finding by the trial court was not an abuse of discretion where the State represented that a DNA analyst would be unavailable to testify on the scheduled trial date and that the prosecutor was scheduled for trial in another case on the same day.
In State v. Toney, 315 Md. 122, 135 (1989), the COA upheld the good cause finding based upon the unavailability of a prosecutor due to her involvement in other cases. The COA said that the State is not necessarily required to resolve schedule conflicts by reassigning prosecutors, because “the State’s interest in maintaining prosecutorial continuity is a significant interest which in some instances may qualify as good cause for a postponement.”
In Moody v. State, 209 Md.App. 366 (2013), the CSA found good cause for a postponement beyond 180 days when the State was seeking DNA evidence and the trial court found that it pertained to conviction or acquittal. In that case, however, defense counsel never objected to the continuance.
In Fields v. State, 172 Md.App. 496, 522 (2007), the CSA found that there was good cause to postpone beyond Hicks where the attorney for a co-defendant was ill, and the prosecutor stated that there was a disappearance of a witness and that the prosecutor had another case beginning the week that the co-defendant’s attorney was expected to recuperate.
What happens if the State nol prosses the case before the 180th day
but then recharges the same offenses later?
The General Rule
“[W]hen criminal charges are nol prossed and later refiled, the time period for commencing trial ordinarily begins to run anew after the refiling.” Curley v. State, 299 Md. 449, 458 (1984). There are however two exceptions.
“If, however, it is shown that the nol pros had the purpose or the effect of circumventing the requirements [of the rule], the 180-day period will commence to run with the arraignment or first appearance of counsel under the first prosecution.” Curley, 299 Md. at 462. The “effect” of circumventing the requirements of the rule has been clarified to mean a “necessary effect” rather than just any effect.
Application of the General Rule and Exceptions
The Nol Pros Circumvented the Rule
1. The nol pros had the necessary effect of circumventing the rule in Curley v. State
In Curley v. State, 299 Md. 449 (1984), Curley was charged with automobile manslaughter and related charges. Defense counsel requested a continuance of the initial trial date two months after entering his appearance because of a scheduling conflict. The request was granted but a new trial date was never assigned. On the last day for trial under the Rule, the prosecutor entered a nol pros for all the charges and wrote a letter to defense that “[t]his disposition was made based on the combined factors of the apparent inadmissibility of the blood alcohol content test as performed in this case and upon the request made of the State by the family of the victim.” Id. at 453.
Three months later the State filed a second criminal information charging Curley with the same offenses. Defense counsel filed a motion to dismiss on constitutional speedy trial grounds and for a violation of the 180-day rule. The motion was denied. Trial commenced six months after the second charges were filed and Curley was convicted of automobile manslaughter and related counts. Curley appealed.
The COA said that the general rule is that where there is a nol pros and refiling of charges, “the only existing prosecution or case is that begun by the new charging document,” and that it is this new prosecution for which trial must be timely commenced. Curley, 299 Md. at 460.
However, the COA identified two exceptions to this general rule: Where (1) the purpose of the State’s nol pros, or (2) the necessary effect of its entry, is to circumvent the statute and rule governing time limits for trial, the 180-day period for trial begins with the triggering event under the initial prosecution, rather than beginning anew with the second prosecution. Id. at 459. Without the Curley exceptions and the Hicks dismissal remedy, the State could evade the 180-day period, whenever it desired a trial postponement beyond 180 days, by merely nol prossing the case and refiling the same charges, a tactic that would make the requirements of the statute and rule “meaningless.” Curley, 299 Md. at 461, 474 A.2d at 508. However, the COA noted that these exceptions will not apply where the prosecution acts “in good faith or so as to not ‘evade’ or ‘circumvent’ the requirements of the statute or rule setting a deadline for trial.” Id. at 459.
In Curley, the nol pros clearly circumvented the Rule when it was entered the final day for trial in the 180-day period. At that time a trial date had not even been assigned. The case could not have been tried because the defendant, his counsel, and witnesses were not present. Thus the case would have had to have been dismissed on that day. The COA said that regardless of the prosecuting attorney’s motives, the necessary effect of the nol pros was an attempt to evade the dismissal resulting from the failure to try the case within 180 days.
2. The purpose of the nol pros was to circumvent the rule in Ross v. State
In Ross v. State, 117 Md.App. 357 (1997), on the trial date, the State sought a continuance because the drugs had not yet been analyzed. The judge denied the requested continuance and the judge said that the case could not be put back in because the docket was too crowded and therefore it could not be put back in before Hicks runs. The State responded that with that ruling it would enter the matter nolle prosequi. A new indictment was subsequently filed. The CSA viewed the administrative judge’s comments about the crowded docket as a ruling and therefore the State’s purpose in nol prossing the charges was to circumvent the 180 day rule.
3. The purpose of the nol pros was to circumvent the rule in State v. Price
In State v. Price, 385 Md. 261 (2005), Price was indicted for robbery and assault and counsel entered his appearance on May 22, 2002. Trial was set for July 23, 2002. At a status conference on June 21, 2002, the prosecutor said it was unavailable on the trial date due to a conflict with trial of another case and the State requested a continuance. The defense objected because Price was incarcerated, but the continuance was granted. The trial was continued to August 12, 2002 after confirming that both counsel were available on that date.
On August 5, 2002, the State filed a motion to continue the trial date again. This time the State was subject to a court order to respond to Price’s motion to compel discovery. The court order stated that “in the event that the State fails to abide by this Order, the State shall be prohibited from producing any witness, or evidence at trial or hearing which relates in any way to the State’s non-disclosure.” Id. at 265. The State had 10 days to respond in writing to the defense. On August 12, 2002, the Court had a hearing on the State’s motion. The State said it had not received DNA analysis of evidence submitted to the crime lab on May 10, 2002. The State said the lab requires a subpoena with a trial date before conducting the analysis and that the State didn’t know they were to advise the lab of the trial date, but that even if they had known, the analysis would not be ready for the August 12th trial date as it takes them four to six weeks to do testing. The State argued that the Hicks date doesn’t run until the end of November and the case was just indicted at the end of May and is very serious. The trial court characterized the State’s request for a continuance as a “pitiful excuse” and refused to keep Price “sitting in jail” and denied the motion for continuance. The State believed the DNA evidence was needed as part of its case and declined to go to trial without it so it entered the charges nolle prosqui. The State said it would be getting a new charging document that day; however, the State obtained an indictment on the identical charges five weeks later on September 19, 2002.
Price thereafter filed a motion to dismiss for violation of Hicks and the hearing on the motion was held on November 27, 2002. Price argued that he consistently demanded compliance with Hicks and the court’s order compelling discovery. The November 27th hearing was after the 180 day mark. The discovery order had not been complied with before the State even nol prossed the first indictment. Price argued that the State nol prossed to get around the order compelling discovery and to get around Hicks. The State countered that it nol prossed on the 83rd day and there were 97 days remaining to reset the case and that the sole purpose of requesting a continuance was to get DNA testing done.
The COA found that the administrative judge expressly found that there was no good cause for a continuance, thus the State had to go forward and risk getting an acquittal or dismissing the case. To avoid those results the State nol prossed the case. The COA concluded that this was for the purpose of circumventing the authority and decision of the administrative judge. The State was in the position of being in violation of a discovery order and risked sanctions for non-compliance. The nol pros had the necessary effect of circumventing that order. The COA affirmed the trial court’s denial of the continuance and the CSA decision.
4. The nol pros had the necessary effect of circumventing the rule in Alther v. State
In Alther v. State, 157 Md.App. 316 (2004), Alther was charged in the district court with first degree rape and nine other related offenses on September 17, 2002. On October 28, 2002, the State filed a new charging document in circuit court reducing the charges to six counts and eliminating first degree rape. On November 6, 2002, defense counsel entered his appearance and demanded a speedy trial. Trial had to occur on or before May 5, 2003. Trial was initially scheduled for January 13, 2003. On December 31, 2002, the State requested a postponement which was granted over Alther’s objection. Trial was rescheduled for March 27, 2003. On February 24, 2003, the State requested another postponement which was granted over Alther’s objection. Trial was rescheduled for May 1, 2003 (four days before Hicks). On March 24, 2003, the State decided to re-charge first degree rape and the State filed a new charging document in district court on March 28, 2003. A preliminary hearing was set for April 23, 2003. On that day the first degree rape charge was charged in the circuit court and the State moved to consolidate this charge with the charges already contained in the October 2002 charging document, so as to bring the first degree rape charge into the May 1, 2003 trial. Alther opposed this motion. On April 30, 2003, the circuit court denied the State’s motion to consolidate and indicated that there would be no postponement of trial.
On May 1, 2003, the State nol prossed the charges in the October 2002 charging document, now leaving the sole first degree rape charge. On May 2, 2003, the State filed in district court a new charging document with ten charges, not including first degree rape, but including related charges. A preliminary hearing was scheduled for June 11, 2003. The State then filed a charging document containing the same ten charges in circuit court, planning to proceed on both these charges and the first degree rape charge together at trial on August 6, 2003. In June 2003, Alther filed a motion to dismiss all charges based on a violation of Hicks, arguing that the nol pros of the replacement charge and the re-filing of the ten charges was a deliberate attempt to circumvent the 180 day requirement. The circuit court denied the motion to dismiss finding that the State was not acting to circumvent the 180 day rule.
The CSA found that by entering the nol pros, the State effectively circumvented the decision of the circuit court denying its motion to consolidate. This Court addressed an analogous situation in Price, 152 Md.App. at 653, where the State entered a nol pros after an administrative judge determined that the State had failed to show good cause as to why it deserved a continuance. When the court denied the State’s consolidation request, the court expressly indicated there was no good cause for a postponement. Alther, 157 Md.App. at 336. Although the State contends that it was prepared to go ahead with its case on May 1, 2003, there is no possible way the case could have been re-filed and tried in just four days once the nol pros was entered. The State did not have alternatives on May 1st and the court had made a judicial determination with respect to the scheduling of the case where it specifically denied the State’s request to consolidate the charges prior to the nol pros and indicated that it would deny a postponement, if requested. Id. at 338. Thus the entering of the nol pros four days before Hicks had the necessary effect of circumventing the rule. Id.
5. The nol pros was not entered for the purpose of circumventing the rule but it did have the necessary effect of circumventing the rule in Wheeler v. State
In Wheeler v. State, 165 Md. App. 210 (2005), the defendant was indicted for murder in September, 2002. The State’s theory was the Wheeler was that getaway driver for the two shooters. On February 14, 2003 the crime lab conducted a DNA analysis on some of the items that were recovered from the getaway vehicle and there was no match to Wheeler’s known DNA sample. The State contacted defense counsel seeking a continuance to test the remaining items. Trial was previously set for March 3, 2003. On the day of trial, the prosecutor requested the continuance for additional DNA testing. 19 days remained in Hicks. The trial court denied the continuance noting it did not amount to good cause. The prosecutor then entered a nol pros to the case “in light of the court’s decision denying the State’s request for continuance and in light of the fact there’s been an ongoing investigation.”
One month later DNA testing was completed and Wheelers’ DNA matched a t-shirt on the driver’s side floorboard of the getaway van. The State then filed a new application for statement of charges and Wheeler was arrested and indicted. The prosecutor tried to schedule the 2nd trial within 19 days of Wheeler’s second indictment because that was how much time was left in the original 180 day period. The Court granted the emergency motion to advance the trial date and set trial for July 28, 2003. Wheeler appeared in court, but no one from the public defender’s office had entered their appearance so the case was postponed. Wheeler then filed a motion to dismiss the indictment, alleging that by entering a nol pros of the first indictment, the prosecutor intentionally tried to circumvent the requirements of the 180-day rule. A hearing was conducted on the motion.
At that hearing, the prosecutor who entered the nol pros testified that one month prior to the first trial, she asked the DNA lab to expedite the analysis because the lab hadn’t started testing yet. The lab told the prosecutor it would not be completed in time for the first trial. The prosecutor and the analyst then picked the most valuable pieces of evidence to analyze. All of the items for analysis, except for the oral swab from Wheeler, had been in the State’s possession since August 2, 2002 but she had not tested them because she believed she was going to resolve this case by way of a plea. The prosecutor initially had cooperation plea discussions with an attorney who intended to be retained by Wheeler, but ultimately was not retained. Then the public defender’s office entered on September 23, 2002. The prosecutor gave that lawyer a plea letter on October 30, 2002 but heard nothing in November, and by December 30, the prosecutor worried the case would not be resolved by way of a plea which the prosecutor said she anticipated.
The prosecutor also testified that the DNA lab could not test the other items within the 19 days remaining in Hicks. The prosecutor testified that she could not have gone forward with the trial against Wheeler on March 3rd. The prosecutor testified it was not her intent to circumvent the 180 day requirement, but rather to stop the trial proceedings so she could finish up the DNA analysis. The motions judge, without comment, denied Wheeler’s motion to dismiss the indictment based on Hicks and Wheeler was tried on the second indictment and convicted.
On appeal, the CSA concluded that the motions judge did not err in finding that the nol pros was not entered for the purpose of evading the 180-day requirement because the prosecutor was operating under the erroneous belief that she could stop the prosecution and carry the remaining 19 days forward in the second prosecution. Id. at 232. However, the mistaken belief did not save the entry of the nol pros from having the “necessary effect” of circumventing the 180 day rule. This is because, as in Curley and in contrast to Brown, the State could not have proceeded to trial against Wheeler on the date of the nol pros or in the ensuing 19 days. The CSA said that Wheeler closely resembles Ross. As in Ross, the prosecutor requested a continuance on the date of trial and that request was denied. In both cases, the presiding judge found the absence of good cause to continue the case or to go beyond Hicks. As in Ross, the State immediately entered a nol pros. Because the nol pros had the necessary effect of avoiding the Hicks rule the CSA vacated the judgments and remanded with direction to dismiss the charges against Wheeler.
In the second article in this series we will continue our discussion of Hicks issues and discuss those cases where the dismissal of cases was held not to be violative of Hicks, CP 6-103 or Maryland Rule 4-271.