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Tunnell v. State

Court of Appeals of Maryland

January 16, 2020

Anthony Marlin Tunnell
State of Maryland

          Argument: November 4, 2019

          Circuit Court for Worcester County Case No. C-23-CR-17-000018

          Barbera, C.J., McDonald Watts Hotten Getty Booth Greene, Clayton, Jr. (Senior Judge, Specially Assigned), JJ.


          MCDONALD, J.

         The aphorism "justice delayed is justice denied" states a principle common to most legal systems.[1] A tool to avoid delay is to set a deadline - the bane and prod of those who must do what needs to be done. Like most rules of general application, deadlines have exceptions. This case concerns the application of an exception to the deadline for the trial of a criminal case in a State circuit court.

         Under a State statute and related court rule, collectively known as the "Hicks rule," a criminal trial in a circuit court must commence within 180 days of the first appearance of the defendant or defense counsel in that court, a deadline known as the "Hicks date." Unless the defendant consents to a trial date beyond the Hicks date, a continuance of the trial beyond the Hicks date may be granted only for "good cause."

         In this case, the trial of Petitioner Anthony Marlin Tunnell on murder and firearms charges was postponed from the original trial date when the administrative judge found good cause for a continuance based on the State's need to provide additional discovery to the defense. However, both the court and the prosecution apparently believed that the deadline under the Hicks rule was "tolled" or extended for the period of time during which evidence was at a laboratory for DNA analysis. Mr. Tunnell's trial ultimately began approximately 40 days after the Hicks date.

         We hold that the Hicks rule does not incorporate a mechanism for "tolling" or extending the Hicks date. Nevertheless, the administrative judge did not abuse his discretion when he found good cause for the continuance of the trial date and Mr. Tunnell has not carried his burden of demonstrating that there was an "inordinate delay" in the new trial date. Accordingly, we affirm his conviction.



         A. The "Hicks Rule"

         A criminal trial in a Maryland circuit court must begin within 180 days of certain triggering events. This deadline is set forth in statute and rule. In its current iteration, the statute provides:

(a) (1) The date for trial of a criminal matter in the circuit court shall be set within 30 days after the earlier of:
(i) the appearance of counsel; or
(ii) the first appearance of the defendant before the circuit court, as provided in the Maryland Rules.
(2) The trial date may not be later than 180 days after the earlier of those events.
(b) (1) For good cause shown, the county administrative judge or
a designee of the judge may grant a change of the trial date in a circuit court:
(i) on motion of a party; or
(ii) on the initiative of the circuit court.
(2) If a circuit court trial date is changed under paragraph (1) of this subsection, any subsequent changes of the trial date may only be made by the county administrative judge or that judge's designee for good cause shown.
(c) The Court of Appeals may adopt additional rules to carry out this section.

         Maryland Code, Criminal Procedure Article ("CP"), §6-103. This Court has adopted a rule consistent with the statute. Maryland Rule 4-271.

         As is evident, the statute does not specify the consequences of a failure to begin a trial by the statutory deadline. In a 1979 decision involving prior versions of the statute and rule, [2] this Court held that compliance with the deadline in the rule was mandatory and that any postponement beyond that deadline must be authorized by the administrative judge for the requisite cause.[3] State v. Hicks, 285 Md. 310, 318, on motion for reconsideration, 285 Md. 334 (1979). The Court held that a failure to commence a trial in accordance with this timeline necessitates dismissal of the charges with prejudice. Id. The requirements established by the statute and rule are often referred to colloquially as the "Hicks rule" and the deadline for commencing trial under those provisions as the "Hicks date."

         As discussed at greater length later in this opinion, the Hicks rule was intended primarily to carry out the public policy favoring the prompt disposition of criminal cases, independent of a defendant's constitutional right to a speedy trial under the Sixth Amendment of the federal Constitution and Article 21 of the Maryland Declaration of Rights. Compliance with the Hicks rule would also presumably satisfy the constitutional constraint. See 5 W. LaFave, et al., Criminal Procedure §18.3(c) & n. 71 (4th ed. Dec. 2019 update) (noting that state speedy trial statutes usually impose stricter time limits than the constitutional standard).

         B. The Murder of James Allen and the Prosecution of Mr. Tunnell

         On the evening of December 1, 2016, 26-year old James "Bumpy" Allen was murdered in a shooting in Pocomoke City. There apparently were no eyewitnesses to the shooting, although at least one person observed Mr. Allen shortly after he was shot, staggering and bloodied from his wounds. The police retrieved various items from the scene of the murder, which were sent off for forensic analysis, [4] and commenced an investigation.

         Shortly after the murder, Mr. Tunnell was taken into custody. On January 24, 2017, a grand jury in the Circuit Court for Worcester County returned a six-count indictment against him related to the murder. Mr. Tunnell was tried before a jury on three of those counts during September 11-12, 2017.[5] The State's case consisted of:

• testimony of Mr. Tunnell's niece concerning text messages that she received from Mr. Tunnell indicating that he believed that her boyfriend and Mr. Allen had stolen a marijuana stash that had been hidden near the Tunnell residence in Virginia and that Mr. Tunnell was planning a violent revenge;
• testimony of others who observed Mr. Tunnell in Pocomoke City near the time and location of the shooting with two men in a car wearing ski masks;
• eyewitness testimony that Mr. Allen was seen staggering and dying on the street shortly after the shooting;
• testimony concerning the recovery of physical evidence, including a ski mask, at the scene of the shooting; and
• telephone company records documenting Mr. Tunnell's text messages.

         Mr. Tunnell elected not to testify and called one alibi witness. After deliberating for an hour, the jury found Mr. Tunnell guilty of first-degree murder.[6]

         Mr. Tunnell appealed his conviction, raising a number of issues that, he argued, required reversal of his conviction.[7] In an unreported opinion, the Court of Special Appeals rejected those contentions and affirmed his conviction. Tunnell v. State, 2019 WL 1313412 (March 22, 2019). Mr. Tunnell filed a petition for a writ of certiorari, which we granted in part.

         The issue before us concerns neither the sufficiency of evidence at trial nor any trial ruling made by the Circuit Court. Rather, it concerns whether the timing of Mr. Tunnell's trial complied with the Hicks rule. Accordingly, we will recount in some detail the pretrial proceedings concerning the scheduling of Mr. Tunnell's trial.

         C. Pretrial Proceedings

         An Assistant Public Defender entered his appearance on behalf of Mr. Tunnell on February 2, 2017. It is undisputed that, as a result, the deadline for commencing Mr. Tunnell's trial - the Hicks date - was August 1, 2017. The Circuit Court issued a notice that set April 7, 2017 as the date for a hearing on pretrial motions and May 9, 2017 as the date for the trial - a date well before the Hicks date. During the course of four pretrial proceedings before four different judges of the Circuit Court, the trial date was ultimately postponed to September 11, 2017 - a date after the Hicks date.

         1. April 7 Hearing

         On April 7, 2017 - the date originally designated for a pretrial motions hearing - the parties appeared before the administrative judge of the Circuit Court. Mr. Tunnell was represented by the Assistant Public Defender. The State's Attorney informed the judge that a "large package" of discovery materials had been sent to defense counsel, but that there were additional investigative reports, audio recordings, and a requested DNA examination that the State still expected to receive and turn over to the defense in discovery. The State's Attorney requested a postponement of the trial date and asked that the currently scheduled trial date (May 9, 2017) be converted to a status conference. Referring to what apparently was a widely-shared misconception, the State's Attorney told the judge that a postponement granted as a result of the pending DNA examination would "toll" the Hicks date and cited Maryland Code, Courts & Judicial Proceedings Article ("CJ"), §10-915.[8]Defense counsel neither opposed nor consented to a postponement, but expressed a willingness to go to trial as soon as discovery was made and the court set a trial date.

         The administrative judge granted the State's request, stating that the need to complete discovery "alone" was good cause for a continuance. Like the State's Attorney, the administrative judge also specifically referred to the prospective DNA examination as a basis for a continuance as "it does, in fact, toll the Hicks date." The court did not set a new trial date and left May 9, 2017 on the calendar as a motions hearing date.

         Three weeks later, the Assistant Public Defender withdrew his appearance on behalf of Mr. Tunnell. Private defense counsel entered her appearance on April 29, 2017. As a result, the May 9 hearing was converted to another status conference.

         2. May 9 Status Conference

         On May 9, 2017, the Deputy State's Attorney and Mr. Tunnell's new defense counsel appeared before a different judge of the Circuit Court for the status conference. The prosecutor moved "to continue what is an ongoing postponement." He noted that he had just provided Mr. Tunnell's new counsel with "a voluminous amount of discovery," that he expected to make additional discovery, and that, while a preliminary DNA report had been received, he expected to receive the full report soon. He asked for a postponement to a "date not yet determined." He repeated the understanding that the delay for the full DNA report tolled the Hicks date and advised that he would call the assignment office after the report arrived to determine a date convenient for all parties and the court. Defense counsel joined the motion while expressing Mr. Tunnell's desire to get a trial date as soon as possible. The Circuit Court granted the motion.

         3. August 8 Status Conference

         Three months later, on August 8, 2017, the parties appeared for a status conference before yet another judge of the Circuit Court. Since the previous hearing, no motions had been filed by either side as to the trial date.[9] However, the status conference focused entirely on the effort to schedule a trial date in compliance with the Hicks rule.

         The State's Attorney presented the court with transcripts of the April and May status conferences and summarized the prior events - the scheduling of the original trial date of May 9 in light of a Hicks date of August 1, 2017, the delay in obtaining the full DNA report, the finding of "good cause" for a postponement of the trial by the administrative judge, the receipt of the DNA report on May 18 and its delivery to defense counsel.[10] The prosecutor stated that one of the reasons he had asked for the status conference was to set a trial date consistent with what he referred to as the "new Hicks date," which he identified as September 12, 2017. That calculation was apparently based on the understanding that the delay in obtaining the DNA report "tolled" the Hicks date for a period equivalent to that delay, which the prosecutor calculated to expire on September 12.[11] He asked the court to schedule a motions hearing and the trial before that date. He also detailed some potential scheduling issues, but promised that the State would be ready to try the case on September 11. The court clerk agreed with the prosecutor's calculation of the "tolling" period and the Circuit Court accepted the premise that September 12 was the new deadline for commencing the trial.

         Defense counsel then raised a question as to whether the Hicks date could be tolled. While acknowledging that delays in the receipt of DNA reports had been a commonly-accepted basis for postponing a trial date, she questioned whether there was a basis in statute or case law for "tolling" the Hicks date. Defense counsel stated:

…What I'm trying to understand and again, maybe it's not - my understanding it needs to be, you know, solidified here, but the Court's understanding. I don't understand why - I'm trying to find out where the precedent is for tolling Hicks. I know it's always been a procedure that we've done, we've always tolled Hicks with regard to DNA. I would like to know if there's a statute or case that specifically says that, just for satisfaction on that particular issue. … Our argument would be that even though - even if you did toll Hicks and even if the second postponement was to get the DNA, our problem is that there was still enough time to set the case back in well within the Hicks date in compliance with the DNA coming back.

         Defense counsel took the position that the original August 1 Hicks date still applied and that, in the absence of a postponement that explicitly took the trial date beyond that date, it had remained the obligation of the State and the Circuit Court to bring Mr. Tunnell to trial by that date. The upshot of that argument was that Mr. Tunnell's trial had not begun by the deadline set by statute and rule. In response to questions from the Circuit Court, defense counsel conceded that she ...

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