Certiorari to Court of Special Appeals (Circuit Court for Montgomery County), Richard B. Latham, JUDGE.
Murphy, C.J., Eldridge, Cole, Rodowsky, McAuliffe and Adkins, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), Specially Assigned. McAuliffe, Judge, concurring. Rodowsky, J., joins. Cole, Judge, dissenting. Judge Adkins joins.
In all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial. . . .
U.S. Const. amend. VI. Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1 (1967), established that the right to a speedy trial is "fundamental," and is "imposed by the Due Process Clause of the Fourteenth Amendment on the States." Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101 (1972). The right to a speedy trial is to be distinguished "from any of the other rights enshrined in the [United States] Constitution for the protection of the accused." Id. at 519, 92 S.Ct. at 2186. It is generically different in that there is a societal interest in providing a speedy trial "which exists separately from, and at times in opposition to, the interests of the accused." Id. It is different in that "deprivation of the right may work to the accused's advantage. Delay is not an uncommon defense tactic." Id. at 521, 92 S.Ct. at 2187. "[P]erhaps most importantly, the right to speedy trial is a more vague concept than other procedural rights." Id. The nature of the speedy trial right, "amorphous" and "slippery," id. at 522, 92 S.Ct. at 2188,
make[s] it impossible to pinpoint a precise time in the process when the right must be asserted or waived, but that fact does not argue for placing the burden of protecting the right solely on defendants. A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover, for the reasons earlier expressed, society has a particular interest in bringing
swift prosecutions, and society's representatives are the ones who should protect that interest.
Id. at 527, 92 S.Ct. at 2190 (footnotes omitted). And it is also
impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate. As a consequence, there is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trial.
Id. at 521, 92 S.Ct. at 2187 (footnote omitted). Therefore, as Barker said at 522 "any inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case."
The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.
Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950 (1905), quoted in Barker 407 U.S. at 522, 92 S.Ct. at 2187.
In Barker, the Supreme Court, for the first time, attempted to set out the criteria by which a speedy trial right is to be judged. 407 U.S. at 516, 92 S.Ct. at 2185. In doing so, the Court rejected two rigid approaches -- a "fixed time period," that is, a defendant must be offered a trial within a specified time period, and a "demand-waiver" rule under which consideration of the right is restricted to those cases in which the accused has demanded a speedy trial. Id. at 523-528, 92 S.Ct. at 2188-2191. The approach the Court accepted was "a balancing test, in which the conduct of both the prosecution and the defendant are weighed." Id. at 530, 92 S.Ct. at 2192 (footnote omitted). "A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis." Id.
The acuteness of the Supreme Court's observations concerning the character and quality of the speedy trial right are brought home by the case at hand. It calls upon us to determine whether constitutional rights were offended by a delay in bringing Alex Ray Bailey to trial in a criminal prosecution in the Circuit Court for Montgomery County. The circuit court concluded that the rights were not offended. The Court of Special Appeals held that they were. It reversed the judgment entered upon Bailey's conviction by a jury and the sentence imposed by the nisi prius court. Bailey v. State, No. 737, September Term, 1988, filed 17 April 1989, unreported. The State filed a petition for the issuance of a writ of certiorari. Bailey filed a conditional cross-petition. We granted the petitions and ordered the case certified to us.
The Maryland adventure in the saga of the criminal career of Bailey began on 14 February 1986 when he was arrested in Montgomery County, Maryland, and charged with various violations of the Controlled Dangerous Substances Act. At the time, he fancied the name of John Vron, one of his many aliases,*fn1 and he was so booked and indicted. The indictment, handed down by the Grand Jury on 20 March 1986, charged him with distribution of cocaine, possession with intent to distribute cocaine, and conspiracy to distribute cocaine.*fn2 On 6 June 1986, the State nol prossed the indictment. On 28 May 1987, the Grand Jury
returned another indictment. It presented that Alex Ray Bailey, also known under the various names listed in note 1, supra,
on or about between February 9, 1986 and February 14, 1986, did unlawfully bring into this State a controlled dangerous substance of Schedule II, to wit: cocaine, in an amount of 28 grams or greater, in violation of Article 27, Section 286A(a)(2) of the Annotated Code of Maryland . . . [1st count; and]
on or about between the same dates
in Montgomery County, Maryland, unlawfully did possess a certain controlled dangerous substance of Schedule II, to wit: cocaine, in sufficient quantity to reasonably indicate under all circumstances an intent to distribute said controlled dangerous substance, in violation of Article 27, Section 286(a)(1) of the Annotated Code of Maryland . . . [2nd count].
On 23 February 1988, two years and nine days after he was arrested, Bailey was brought to trial, on the second indictment, over his protest, in the Circuit Court for Montgomery County. On 17 February 1988, he had made known his objection to being tried by filing a motion to dismiss the indictment for "lack of a speedy trial." The motion was heard and denied two days later. Trial proceeded before a jury. Bailey was found not guilty under the first count and guilty under the second count. The direct appeal and the grant of review by this Court followed.
The events which occurred during the interval between Bailey's arrest and his trial are detailed in a "Chronology" prepared by the State and appended to its answer to Bailey's motion to dismiss.*fn3 It shows:
February 14, 1986 -- Defendant arrested in Montgomery County, Maryland as James Vron. Held on District Court charging document 012547D3 charging Distribution of Cocaine, Possession with Intent to Distribute Cocaine, Possession of Cocaine, and Conspiracy to Distribute Cocaine.
March 20, 1986 -- Defendant, as James Vron, indicted in Circuit Court for Montgomery County (# 41284). Charged with Distribution of Cocaine, Possession with Intent to Distribute Cocaine, and Conspiracy to Distribute Cocaine.
May, 1986 -- State learns of trial in absentia conviction of defendant as Alex Ray Bailey in South Carolina.
The chronology sets out the details of the South Carolina conviction.
September 5, 1984 -- Defendant (as Alex Bailey) arrested and charged with Trafficking in Cocaine in Charleston County, South Carolina. Held on $75,000 bond.
October 12, 1984 -- Magistrates Court, Charleston County, reduces bond to one thousand dollars ($1,000.00).
December 10, 1984 -- Defendant indicted. Count One -- Possession with Intent to Distribute Valium and Count Two -- Trafficking in Cocaine. Charges filed in Court of General Sessions, Charleston County, South Carolina.
January 14, 1985 -- Defendant not present at court. Bench Warrant issued from Court of General Sessions, Charleston County, South Carolina.
April 8, 1985 -- Defendant tried in absentia (TIA). Guilty on both counts. Sentence of ten years imposed.
Shortly after the State became aware of Bailey's South Carolina criminal activities and their consequences, the Assistant State's Attorney for Montgomery County wrote defense counsel. The chronology continues:
June 3, 1986 -- State's Attorney's Office advised Phil Armstrong, Esquire [Defense Counsel], via letter of intent
to nolle charges in Maryland in order to have defendant first face earlier charges in South Carolina.
The letter of 3 June 1986 from the Assistant State's Attorney to defense counsel read:
I have recently been informed by the Solicitor's Office in Charleston, South Carolina, that your client, Alex Ray Bailey, was charged with trafficking cocaine there in 1984, and in fact was convicted in September, 1985 in absentia. Warrants based upon this have been on file at the Montgomery County Detention Center. In order to facilitate the South Carolina authorities in their efforts to enroll and execute their sentence, I have decided to enter a nolle prosequi to criminal number 41284. Your client will then be held under the South Carolina detainer and extradited. The State of Maryland does not intend to abandon its prosecution of Mr. Bailey, but we do feel that it would be appropriate for your client to personally answer these earlier charges in South Carolina and, if sentenced, to start serving his sentence there. I feel that that matter should be finally settled prior to the Montgomery County prosecution for the recent incident of February, 1986. We would then bring your client back to Montgomery County under the Interstate Agreement on Detainers.
I will enter the nolle prosequi on Friday, June 6, 1986.
The nolle prosequi to indictment number 41284 was entered as the State said it would be. The 9 June 1986 entry in the chronology reads:
June 9, 1986 -- Letter to State's Attorney's Office from Philip Armstrong objecting to procedure.
Defense counsel made known his objection to the State's actions. His letter of 9 June informed the Assistant State's Attorney:
I have read your letter of June 3, 1986 with interest. As I'm sure you are aware, Mr. Bailey demanded a speedy trial both in the District Court and the Circuit
Court.*fn4 The State of Maryland, having obtained jurisdiction over him, is subject to the running of the time for his Constitutional right to a speedy trial if it voluntarily elects to terminate the prosecution against him in order to facilitate a law enforcement purpose in another jurisdiction.
If the State is desirous of prosecuting Mr. Bailey, it is his position that the State must do so within the perimeters of his rights to due process of law, and we wish to have the record clearly reflect that he objects to the entry of any nolle prosequi in this matter and reiterates his previously requested demand for a speedy trial.
Thereafter, according to the chronology,
June, 1986 -- Defendant returned to South Carolina.*fn5
October 16, 1986 -- Defendant appears in Charleston County Court on bench Warrant issued on January 14, 1985.
October 22, 1986 -- Sentence of ten years confinement imposed in South Carolina case. Motion to Reduce sentence filed immediately.
Back in Maryland, the saga of Bailey's criminal career, as told in the chronology, continued.
May 28, 1987 -- Defendant indicted in Montgomery County, Maryland, on Importation of Cocaine and Possession with Intent to Distribute. Bench Warrant issued. Criminal number 46579.
June 10, 1987 -- Detainer sent to South Carolina Department of Corrections from Montgomery County Sheriff's on new charges.
July 1, 1987 -- State files request under Interstate Agreement on Detainers to obtain Alex Ray Bailey for trial in Maryland. Pick-up date of August 18, 1987 set.
July, 1987 -- Trial date of September 24, 1987 set.
August 12, 1987 -- Defendant fights transfer to Maryland. Pick-up date of August 18, 1987 cancelled. Governor's hearing set.
September 24, 1987 -- Trial date on criminal number 46579. Defendant still in South Carolina fighting extradition.
November 3, 1987 -- Governor's approval for transfer to Maryland. Pick-up date of November 24, 1987 set.
November 25, 1987 -- Defendant appears in Montgomery County. Held without bond. Trial date of December 8, 1987.
December 1, 1987 -- Trial date of December 8, 1987, conflicts with defense attorney's calendar. Court resets case for February 18, 1988.
February 17, 1988 -- Motion to Dismiss for Lack of Speedy Trial filed by defense.
A hearing on the motion was held two days later. The motion was denied and trial proceeded. The jury rendered a verdict of not guilty on the importation charge (first count) and a verdict of guilty on the possession charge (second count).
Here, the facts as narrated in the chronology are not in dispute and were before the judge at the hearing on the motion to dismiss.
The State's memorandum in response to Bailey's motion to dismiss for lack of a speedy trial set out reasons for the delay. They were
to allow the State to develop an enhanced case of Importation of Controlled Dangerous Substance against the defendant, and to allow the South Carolina System to enroll the conviction in absentia on his 1984 arrest and to allow the defendant to start serving his tenure as a South Carolina prisoner.
(Emphasis in original). "This crystallizes," the State asserted, "the prior record of the defendant which is crucial to possible sentencing of the defendant." The State explained:
It was not until May, 1987, that the State could get enough evidence, via the testimony of a co-defendant [William Larry Moore], to request an Importation of Controlled Dangerous Substance indictment.
"These reasons," the State averred, "are entirely proper and consistent with the State's Attorney's function." "Furthermore," the State reminded, "the State warned the defense of its intentions."
At the hearing on the motion, the Assistant State's Attorney played the same theme song. He declared that it was "a prosecutorial function, to size up the strength of a case, and then do what it thinks is best to obtain a conviction." "[Q]uite frankly," he admitted, "I wanted to shore up my case against this man. I, in fact, did that." During the time between the nol pros and the reindictment "what Maryland was doing was attempting to enhance and develop a case against [Bailey]." The prosecutor conceded: "There is no question that was my intent and motive." During the eleven months during which there was no outstanding Maryland charge against Bailey, the prosecutor believed that Bailey "was legitimately subject to further investigation." During that period the prosecutor was attempting to persuade a co-defendant to testify for the State against Bailey. But, "[w]hen that deal was cut with the co-defendant and he testified [before the Grand Jury] in May of 1987, there's an indictment, and immediate efforts were taken to secure [Bailey's] presence back here." The Assistant State's Attorney disavowed that he was seeking a tactical advantage. It was not a case where the State used a nol pros to delay
prosecution until an alibi witness died, or to "duck a judge" or to gain a continuance. "We [were] putting together a stronger case." Defense counsel accepted that the prosecutor "speaks the truth when he says that he dropped [the case] because he wanted to turn a co-defendant, and because he wanted to firm up the status of the South Carolina conviction." Defense counsel argued:
The question then becomes whether that action by the State is bad faith, vis-a-vis Mr. Bailey. I mean, he may have done it with a clear conscience. He may have done it thinking that it was the right thing to do. But whether that is good faith as a matter of law, or not, I am not willing to concede.
He thought that the indictment was nol prossed "for the sole purpose of giving [the State] a tactical advantage, which . . . is bad faith as a legal matter."
The hearing court said that "[t]here seems to be no factual dispute as to the State's reasons for the nol pros." The reasons for the delay, the judge indicated, were as the State set out in its memorandum in response to the motion to dismiss, namely,
to allow the State to develop an enhanced case of importation of controlled dangerous substance against the defendant, and allow South Carolina to enroll a conviction in absentia on his 1984 arrest, and to allow the defendant to start serving his tenure as a South Carolina prisoner. . . .
If we compute the trial date from May 28th, 1987, the most recent indictment, there does not appear . . . to be any constitutional dimension to any delay that has been occasioned.
If, however, the trial date is computed back to the date of the original indictment, the court believed that
even though [the indictment was nol prossed] with the avowed purpose of gaining some advantage for the prosecution, it does not seem to have been improperly motivated 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 speedy trial." The court ruled:
Given all factors considered and acknowledging that it would be an appropriate case for the Appellate Court to review, the court will deny the motion to dismiss on the grounds of speedy trial.
The Court of Special Appeals, reversing the circuit court, deemed three time periods to be significant:
1. From February 14, 1986, when the appellant was arrested for the possession of cocaine, until June 6, 1986, when the indictment that followed shortly after his arrest was nolle prossed. This time period consumed slightly less than four months.
2. From June 6, 1986, when the original indictment was nolle prossed, until May 28, 1987, when the appellant was reindicted for possession 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.
3. From May 28, 1987, when the reindictment for possession was handed down, until February 19, 1988, when the appellant's motion to dismiss the charges was heard and denied. This time period was slightly less than nine months.
Bailey v. State, supra, slip opinion at 1-2. The intermediate appellate 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 time period of less than nine months was not particularly inordinate in terms of length of delay. The appellant, rather than demanding a speedy trial during that period, was indeed fighting extradition from South Carolina. The reasons for delay, without unduly anguishing over the details, seem to be more attributable to the appellant than to the State. There was, moreover, no showing of special prejudice but only the presumptive
prejudice attendant upon the delay itself. The condition precedent for this analysis, however, is not established.
Id., slip opinion at 2. If, however, the nolle prosequi were improper, so that the delay ran from the beginning of the first time period without interruption through the end of the third time period, the State would lose.
In that event, the length of delay will be slightly in excess of two years, a time period well beyond the ordinary. In terms of demand for a speedy trial, this time period embraces the appellant's demands for a speedy trial of March 18; April 2; and June 9, 1986. In terms of prejudice, the presumptive prejudice attendant upon a two-year delay is proportionately far more than the presumptive prejudice attendant upon a nine-month delay. Most significantly, in terms of responsibility for the delay, ...