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.
aphorism "justice delayed is justice denied" states
a principle common to most legal systems. 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.
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
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.
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.
The "Hicks Rule"
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
(a) (1) The date for trial of a criminal matter in the
circuit court shall be set within 30 days after the earlier
(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
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.
Code, Criminal Procedure Article ("CP"),
§6-103. This Court has adopted a rule consistent with
the statute. Maryland Rule 4-271.
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,
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. 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
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).
The Murder of James Allen and the Prosecution of Mr.
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,
commenced an investigation.
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. 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
• 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
• testimony concerning the recovery of physical
evidence, including a ski mask, at the scene of the shooting;
• telephone company records documenting Mr.
Tunnell's text messages.
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.
Tunnell appealed his conviction, raising a number of issues
that, he argued, required reversal of his
conviction. 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.
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.
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.
April 7 Hearing
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.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.
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.
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.
May 9 Status Conference
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.
August 8 Status Conference
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. However, the status
conference focused entirely on the effort to schedule a trial
date in compliance with the Hicks rule.
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. 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. 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.
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
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 ...