# Smith v. State > Court of Appeals of Maryland · January 7, 1976 · 276 Md. 521 URL: https://www.frixlaw.com/law-library/cases/9757002 ## Case - **Full name:** Smith v. State of Maryland - **Court:** Court of Appeals of Maryland - **Decided:** January 7, 1976 - **Citations:** 276 Md. 521; 350 A.2d 628; 1976 Md. LEXIS 1102 - **Precedential status:** Published - **Opinion:** Concurrence by O'Donnell - **Judges:** Murphy, Singley, Smith, Digges, Levine, Eldridge, O'Donnell - **Cited by:** 34 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9757002 ## How later opinions describe it (automated extraction) - noting that when the defendant raised the issue of competency, it became incumbent on the court to determine his competency, and it would be unduly burdensome to require the State to prepare for a trial that might never go forward if the defendant is found not competent to sta… ## Opinion text *535 O’Donnell, J., concurring: Although I agree with the conclusion reached by the majority that the appellant was denied the right to a speedy trial guaranteed him under both the Sixth Amendment and Article 21 of the Maryland Declaration of Rights, I cannot subscribe to the validity of some of the premises posited by the majority in reaching that result. In Epps v. State, 276 Md. 96 , 345 A. 2d 62 (1975), we recently examined the right to a speedy trial and those factors delineated by the Supreme Court in Barker v. Wingo, 407 U. S. 514 (1972) as applicable in determining whether that right has been denied. We there pointed out that “in Klopfer v. North Carolina, 386 U. S. 213, 223 (1967) [the Supreme Court] made clear . . . that the right [to a speedy trial] is ‘as fundamental as any of the rights secured by the Sixth Amendment’ and is imposed by the Due Process Clause of the Fourteenth Amendment on the States. See Smith v. Hooey, 393 U. S. 374 (1969).” 276 Md. at 102 , 345 A. 2d at 68 . Since the Supreme Court, by selective incorporation, has brought the right to a speedy trial guaranteed under the Sixth Amendment within the ambit of the Fourteenth Amendment and, as such, binding upon the States, decisions by that Court establish the minimal standards to be applied when there has been an assertion of the denial of a speedy trial. Notwithstanding my recognition of the protections afforded through our own Declaration of Rights, as I see it, the provisions of the Sixth Amendment and of our Article 21, each providing as they do for the right to a speedy trial in all criminal cases, are in pari materia, and in interpretation and application should be harmonized. It seems to me outmoded to suggest “that the opinions of the Supreme Court interpreting the sixth amendment right to a speedy trial are ‘very persuasive, although not necessarily controlling’ as to the proper construction of Maryland’s parallel Article 21 right.” In Epps we recognized that the decisions of the Supreme Court in interpreting the Sixth Amendment right to a speedy trial were clearly controlling, even to the extent of the remedy mandated by that Court’s *536 decisions — the dismissal of the indictment where the right has been denied. 276 Md. at 121 , 345 A. 2d at 78 . As I read the provisions in Maryland Code (1957, 1971 Repl. Vol. [1975 Cum. Supp.]) Art. 27, § 645A (a), (d) (Post Conviction Procedure Act), as well as those in 28 U.S.C. § 2254 (Habeas corpus remedies in Federal courts in cases of state custody), the decisions of the Supreme Court would be held “controlling” and not merely “very persuasive” in a collateral attack upon a state criminal conviction. I believe it equally anachronistic to suggest a continuation of the categorizations designated in 1915 by the late Judge Alfred S. Niles in his recognized treatise on Maryland Constitutional Law, in view of the application by the Supreme Court, since that date, of specific rights guaranteed under the First, Fourth, Fifth, Sixth, Eighth and Ninth Amendments to thé United States Constitution, as binding upon the States pursuant to the “due process” clause of the Fourteenth Amendment. Because of the view adopted by the majority concerning the noncontrolling effect of the decisions of the Supreme Court in the area of a speedy trial, they seem to suggest the view (in footnote 2) that in Maryland the demand-waiver doctrine, which requires a holding that a defendant waived his right to a speedy trial if he failed to demand it, may still be of continuing force and effect. The majority thus suggests that our prior holdings in State v. Murdock, 235 Md. 116, 123, 200 A. 2d 666, 669-70 , cert. denied, 379 U. S. 914 (1964) and in Harris v. State, 194 Md. 288, 297 , 71 A. 2d 36, 40 (1950), both antedating Barker v. Wingo, may still have viability. We pointed out in Epps that in Barker v. Wingo, the Supreme Court had specifically rejected the demand-waiver doctrine, as a criterion for invocation of the right to a speedy trial, but recognized that the defendant’s assertion of his right, or his failure to do so, was but one of the factors to be considered in applying the right guaranteed by the sixth amendment. As a result of the decision in Barker v. Wingo, it appears to be no longer open to question that the demand-waiver doctrine heretofore applied by this Court in State v. Murdock, supra, and in Harris v. State, *537 supra, has been repudiated and that such a demand is no longer a condition precedent to the application of the right. Such a view was recognized not only in Epps , but in State v. Hunter, 16 Md. App. 306, 314-15 , 295 A. 2d 779, 783 (1972) and in State v. Jones, 18 Md. App. 11, 16-18 , 305 A. 2d 177, 180-81 (1973). I think further that the majority should have made it clear that the interval between October 6, 1972, when the defendant filed a plea of not guilty by reason of insanity and was thereupon committed to Perkins State Hospital for examination, pursuant to Maryland Code (1957, 1972 Repl. Vol.) Art. 59, § 23, until the receipt of the Hospital’s report by the trial judge on December 12, 1972, should not be considered in computing any delay in bringing the defendant to trial. See Baldwin v. Warden, 243 Md. 326, 328-39 , 243 A. 2d 73, 75 (1966) where this Court recognized that a substantial portion of the time between the appellant’s indictment, and the date of his trial, was spent “in examining [him] in relation to his plea of not guilty by reason of insanity” and was not at all unreasonable under the circumstances of the case. Although the majority finds that the “crucial delay occurred between the original trial date of June 11, 1973, and November 15, 1973, the date on which the trial was first rescheduled to begin,” and do not address themselves to the interval while Smith was a patient in Perkins Hospital, they implicitly suggest that such an interval might be includable within the computation of the period, when they point out “that employees of a court’s assignment office, or of a state hospital, as well as prosecutors, policemen and judges must be considered representatives of the state” (emphasis added) in appraising reasons for any delay. Art. 59, § 23, as did its predecessor, Code (1957, 1964 Repl. Vol.) Art. 59, § 7, prescribes a rule of procedure by which to ascertain, before trial, whether or not a defendant, charged with a criminal offense, possessed the requisite mental capacity to commit the offense with which he is charged, as well as to determine his competency to assist in his defense. See Hamilton v. State, 225 Md. 302 , 170 A. 2d 192 (1961). It is *538 the purpose of the provisions of Art. 59 to protect an offender who is mentally incapable of forming a criminal intent, from being punished as if he were sane, and to insure for him, in the event of a finding of insanity, custody and treatment. Robinson v. State, 249 Md. 200 , 238 A. 2d 875 (1968). When Smith raised the issue of his mental competency, it became incumbent upon the trial court to determine whether or not there should be a trial on the issue of his criminal culpability. See Hamilton v. State, supra. His commitment to Perkins Hospital, upon the plea filed by him pursuant to the statute, provided the means to have a diagnosis made on the question of his insanity. Tull v. State, 230 Md. 596 , 188 A. 2d 150 (1963). The Supreme Court recognized in United States v. Ewell, 383 U. S. 116, 120 (1966), that “because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace.” In Epps , we recognized that “[f]or ‘speedy trial’ purposes the delay involved is reckoned only in connection with ‘the passage of time beyond that which is obviously within the requirements of orderly procedure’ ” citing State v. Lawless, 13 Md. App. 220, 230 , 283 A. 2d 160, 169 (1972). Smith’s confinement at Perkins Hospital, in an attempt to establish his pleaded defense, could certainly be said to come within the scope of “orderly procedure” prior to the scheduling of his trial. Since his commitment was at his own behest, the computation of time affecting his right to a speedy trial should be held in abeyance pending receipt of the hospital’s report to the trial court, pursuant to Art. 59, § 24 (a) as to whether or not he was competent to stand trial. This view seems to be in accord with that expressed in United States v. Canty, 469 F. 2d 114, 118 (D.C. Cir. 1972) and State v. Smith, 215 Kan. 34, 40 , 523 P. 2d 691, 696 (1974). It would be unnecessarily burdensome during that interval to require the prosecution to prepare for a trial which might never occur were he found to lack the mental capacity to have committed the crimes charged. Though I agree with the view of the majority that “if the petitioner’s trial had taken place within a few days of June *539 11, it might well have been acceptable,” I think it should be clearly explicated that any computation of a delay in bringing the petitioner to trial commenced only upon the receipt by the trial court of the hospital’s report. Lastly, I am unable to agree with the majority’s conclusion that the delay between June 11 and November 15, 1973, while unforgivable for speedy trial purposes in Montgomery County, might be acceptable in Baltimore City. They express the view: “although the delay in this case might have been understandable, and possibly even acceptable, in an extremely congested court such as Baltimore City’s criminal court, the State has not suggested that similar congestion existed or exists in the Circuit Court for Montgomery County.” Although the record is devoid of whatever reason there may have been for the delay between June 11th (when the trial judge indicated a continuance restricted to 30 days) and the rescheduling, on July 20, 1973, by the assignment office, of the trial for November 15th, the majority seems to be taking judicial notice of a difference in the status of the criminal trial dockets between Montgomery County and Baltimore City. Upon such an unsupported premise they seem to suggest a differing application of constitutional principles between subdivisions within the State. In Epps , it was held that the delay in affording a criminal defendant a “speedy trial” because of overcrowded court dockets and scheduling problems in Baltimore City, was not excusable. Concluding that the responsibility for affording a defendant a speedy trial rests upon both the courts and the prosecutors, we there found that if a defendant’s rights to a speedy trial are being infringed, the courts, as well as the assignment offices acting as their agencies, together with the prosecutors, have the duty to promptly assign a defendant’s case for trial. As pointed out in Barker v. Wingo, supra, and in Strunk v. United States, 412 U. S. 434 (1973), although “[unintentional delays caused by overcrowded court dockets or understaffed prosecutors are among the factors to be weighed less heavily than intentional delay,” they must “be considered since the ultimate responsibility for such circumstances must rest *540 with the government rather than with the defendant.” 412 U. S. at 436 . As I see it, when a defendant makes demand for a speedy trial, he must be afforded such a trial within a reasonably prompt period of time, notwithstanding that the assignment of his case for trial may involve some rescheduling and reshuffling of other cases upon the criminal trial dockets. Assuming that Smith’s case was not more promptly rescheduled for trial after June 11th because of a lack of communication between the trial court and the court’s assignment office, or the prosecutor and that office,! or from clerical inefficiencies, if the delay was of constitutional dimension in Montgomery County, it should be treated as having equal constitutional significance throughout the State without regard to the status of the docket. Fully appreciating that there may be realistic reasons, factually supportable, for delay in the trial of a defendant, which might vary within subdivisions of the State, the application of the constitutional principles concerning the denial of the right to a speedy trial should be consistent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9757002. Public record. Not legal advice.