Griffin v. State

262 Md. App. 103

317 A.3d 415

Roderick GRIFFIN

v.STATE of Maryland

No. 1645, Sept. Term, 2022

Appellate Court of Maryland.

June 12, 2024

Circuit Court for Baltimore City, Case No. 121313001, Eric S. Atas, Judge

Argued by Michael T. Torres, Asst. Public Defender (Natasha M. Dartigue, Public Defender of Maryland, Baltimore, MD), on brief, for Appellant.

Argued by W. Elliott Hunter, Asst. Atty. Gen. (Anthony G. Brown, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Appellee.

Argued before: Berger, Beachley, Charles E. Moylan, Jr. (Senior Judge, Specially Assigned), JJ.

Moylan, J.

The initial theme of this opinion will be the effect that the filing of a Nol Pros by the State to criminal charges followed by a reindictment on those same charges may have on the right of a Maryland defendant to a statutory speedy trial, a right known familiarly as the Hicks Rule. One further task will then be to isolate within that body of law a sub-genre of the Hicks Rule now familiarly known as the Curley exception.

There is also a second theme. It concerns the widespread misuse of the elusive "length of delay" factor in much constitutional speedy trial analysis. It especially disdains the deceptive misuse of the potentially toxic phrase "presumptively prejudicial" to describe a "length of delay." Quintessentially, this second contention is a second and separate appeal.

The appellant, Roderick Griffin, was convicted in the Circuit Court for Baltimore City by a jury, presided over by Judge Yvette M. Bryant, of second-degree murder and false imprisonment. On this appeal he raises two contentions. They are:

1. That Judge Erik S. Atas erroneously denied his pretrial Motion to Dismiss the case because the State impermissibly circumvented Maryland Rule of Criminal Procedure 4-271 and Maryland Code, Criminal Procedure Article, Sect. 6-103; and For reasons that will be explained more fully infra, we pose the appellant’s second contention in the precise words (including capitalization) used by the appellant in his appellate brief:

2. The Circuit Court Erred in Denying the Motion to Dismiss Because Appellant’s Constitutional Speedy Trial Rights Were Violated.

The Hicks Rule

[1] Since the milestone opinion of Chief Judge Robert C. Murphy for the Supreme Court of Maryland in State v. Hicks, 285 Md. 310, 403 A.2d 356 in 1979, the very name Hicks has assumed an eponymous status as the widely recognized mantle for Maryland’s statutory law and accompanying Rule of Procedure described by that opinion, as well as for a critically dispositive date identified in that opinion. As Judge McDonald later summed up the linguistic phenomenon in Tunnell v. State, 466 Md. 565, 569, 223 A.3d 122 (2020):

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."

(Emphasis supplied.) See also Jackson v. State, 485 Md. 1, 9, 300 A.3d 169 (2023).

It was Chief Judge Murphy’s opinion that established the linguistic as well as legal dominance of Hicks over this entire body of law. Prior to Hicks, it had been the position of the Maryland appellate courts that the rules regulating the prompt disposition of criminal cases were only "directory and not mandatory." Judge Murphy described, 285 Md. at 316, 403 A.2d 356, that earlier laxity:

In Young v. State, 15 Md. App. 707, 292 A.2d 137 (1972), the Court of Special Appeals held that the provisions of s 591 were intended by the legislature to be directory and not mandatory because it had not explicitly provided the extreme sanction of dismissal of an indictment for administrative noncompliance. We adopted that view by summarilyapproving the opinion of the Court of Special Appeals. See Young v. State, 266 Md. 438, 294 A.2d 467 (1972).

(Emphasis supplied.)

The Supreme Court in the Hicks opinion, 285 Md. at 318, 403 A.2d 356, however, then made the conscious and deliberate decision to make that Rule of Procedure requiring the prompt disposition of criminal cases mandatory rather than merely directory:

By our adoption of Rule 746 in 1977, we intended to supersede the provisions of s 591(a) and put teeth into a new regulation governing the assignment of criminal cases for trial…We deemed it essential, as is evident from the language of Rule 746, to place mandatory controls over the scheduling of criminal cases for trial, and over their postponement, to assure that criminal charges would be promptly heard and resolved.

(Emphasis supplied.)

The Hicks Court, id., left no doubt as to the mandatory nature of what would thereafter come to be known as the Hicks Rule:

The provisions of Rule 746 are of mandatory application, binding upon the prosecution and defense alike; they are not mere guides or bench marks to be observed, if convenient. Accordingly, Judge Pollitt was correct in holding that Rule 746 is mandatory and that dismissal of the criminal charges is the appropriate sanction where the State fails to bring the case to trial within the 120-day period prescribed by the rule and where "extraordinary cause" justifying a trial postponement has not been established.

(Emphasis supplied.) The Rule would have teeth.

The Hicks Rule is now mandated by both a legislative provision and an implementing Rule of Procedure. Maryland Code, Criminal Procedure Article Sect. 6-103 statutorily provides, in pertinent part:

(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.

(Emphasis supplied.)

That legislative mandate is in turn implemented by Maryland Rule of Criminal Procedure 4-271, which administratively provides, in pertinent part:

(a) Trial Date in Circuit Court

(1) The date for trial in the circuit court shall be set within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the circuit court pursuant to Rule 4-213, and shall not be later than 180 days after the earlier of those events.

(Emphasis supplied.)

How To Count To 180?

Possibly Disruptive Effect Of A Nol Pros And Reindictment

In terms of its dominant command, this Hicks Rule would seem simple enough to calculate and to apply. Did the criminal trial ultimately begin, as is required, within 180 days of the relatively easily ascertainable starting date for its 180-day count? Or did it not? Counting to 180 would seem to be elementary. What happens, however, if that count is interrupted in mid-count but subsequently starts up again? What happens if within that 180-day period, the State Nol Prosses the original criminal case against the defendant but subsequently re-files identical charges? Will the interrupted count resume from where it had been stopped or will a totally new count begin?

The initial count, of course, will stop. The case that was Nol Prossed will be thereby presumptively terminated. If the defendant is never recharged, there can be, by definition, no problem. The defendant will never have been tried and the Hicks Rule forbidding an untimely trial, therefore, could never have been violated. A Hicks violation contemplates a trial, albeit a late one. What if, however, following the Nol Pros of the original criminal charges, the defendant were recharged, by reindictment or otherwise, with identical or similar charges? Should we pick up and continue the original count from the point where it had been interrupted? Or should we begin a totally new count following the filing of the new charges, confining our concern to the new charges alone? The problem is that, depending upon the circumstances, we might do either. What then are those controlling circumstances? And why?

The Nol Pros Generally

For a definitive analysis of a Nol Pros in Maryland, the Alpha and Omega is the masterful three-opinion survey of the Nol Pros by Judge John Eldridge for the Maryland Supreme Court in the early 1980’s. Those three opinions are Ward v. State, 290 Md. 76, 427 A.2d 1008 (1981); State v. Moulden, 292 Md. 666, 441 A.2d 699 (1982); and Curley v. State, 299 Md. 449, 474 A.2d 502 (1984). To begin at the beginning, the Ward opinion reached back, 290 Md. at 82-83, 427 A.2d 1008:

Apparently the first reported case discussing the entry of a nolle prosequi in a criminal prosecution was Stretton and Taylors Case, 1 Leon. 119, 74 Eng. Rep. 111 (K.B. 1588), where the Attorney General entered a "non vult prosequi" for purpose of preventing a private prosecution. Since that time, the nolle prosequi has been a means whereby the government exercises control over pending criminal cases.

(Emphasis supplied.)

The Ward opinion, 290 Md. at 83, 427 A.2d 1008, quoted with approval 2 Noel Bishop, New Criminal Procedure (2d ed. 1913), Sect. 1387, p. 1194:

[A] Nolle Prosequi in criminal practice (for it pertains also to civil), is a declaration of record from the legal representative of the government, that he will no further prosecute the particular indictment or some designated part thereof.

(Emphasis supplied.) The Ward opinion, 290 Md. at 83, 427 A.2d 1008, went on:

The entry of a nolle prosequi is generally within the sole discretion of the prosecuting attorney, free from judicial control and not dependent upon the defendant’s consent.

(Emphasis supplied.) See also Barrett v. State, 155 Md. 636, 638, 142 A. 96 (1928) ("[T]he case [is] terminated…and there can be no further prosecution under that indictment.").

As Moulden, 292 Md. at 673, 441 A.2d 699, then further pointed out, a charge or part of a charge, once Nol Prossed, leaves nothing to be finally disposed of. The terminated charge no longer has any operative potency:

The nol pros of a charging document or of a count is "a

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