State v. Mahamu D. Kanneh
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State of Maryland v. Mahamu D. Kanneh, No. 94, September Term, 2007 HEADNOTE: CRIMINAL L AW - A delay of 35 months is sufficient to trigger an analysis o f whe ther a de fenda nt s righ t to a spe edy trial ha s been v iolated, h owev er, a delay of such length may be justified where a case is of sufficient complexity. Where the reason for delay is the inability to secure an interpreter because the defendant s native language is not spoken by many, that reason will not weigh against the State. Where a defendant fails to object to all postponements but the last, it will be difficult to determine that this defendant s right to a speedy trial has been violated. There is minimal prejudice as a result of the delay of a trial where a defendant is not incarcerated pending trial, and there is no evidence that any defense witnesses were made unavailable as a result of the dela y. In the Cir cuit C ourt for M ontg ome ry County Criminal No. 101358 IN THE COURT OF APPEALS OF MARYLAND No. 94 September Term, 2007 ____________________________________ STATE OF MARYLAND v. MAHAMU D. KANN EH _______________________________________ Bell, C.J. Harrell Battaglia Greene Murphy Wilner, A lan M. (R etired, Spec ially Assigned) Cathell, D ale R. (Retire d, Specially Assigned), JJ. ____________________________________ Opinion by Greene, J. ____________________________________ Filed: March 14, 2008 This case arises from a criminal proceeding in which Mahamu Kanneh was charged with sexual abuse of a minor and related offenses. Although Kanneh was arrested on August 18, 2004, his trial was repeatedly postponed for different reasons, mainly the time it took to process the DNA evidence, and the inability to secure a qualified interpreter in Kann eh s native language of Vai. 1 Finally, on July 17, 2007, the court dismissed the case on the grounds that Kanneh s right to a speedy trial had been violated. The State appealed to the Court of Special Appeals, and before the intermediate appellate court could hear the case, we gra nted ce rtiorari. State v. Kanneh, 402 Md. 352 , 936 A.2d 850 (2007). We shall hold that the 35 mon th delay in this case, while of sufficient leng th to require us to engage in a speedy trial analysis, does not justify a conclusion that Kanne h s right to speedy trial was violated. FACTUAL AND PROCEDURAL BACKGROUND Montgom ery County Police arrested Kanneh for sexual abuse of a minor child on August 18, 2004. On December 3, 2004, Kanneh was cha rged by indictm ent, in the Circu it Court for Montgomery County, with sexual abuse of a minor and related offenses.2 Kanneh s attorney entered her appearance on January 18, 2005, and a trial date was set for April 5, 1 Vai is a rare langu age spok en primarily in Liberia and Sierra Leone. It is a Mande language invented in the 1830s. National Museum of Africa n Art, Smithsonian Institution, Inscribing Meaning: V ai and the Mande S y l l a b a r i e s, http://africa.si.edu /exhibits/inscrib ing/vai.html. 2 Kanneh was indicted on three counts, in violation of three statutes: sexual abuse of a minor, Md. C ode (2002, 2007 Supp.), §3-602 of the Criminal Law Article, continuing course of conduct w ith child, Md. Code (2002), §3-315 of the Criminal Law Article, and rape in the second degree, Md. Code (2002, 2007 Supp.), §3-304 of the Criminal Law Article. 2005. At a scheduling conference held on January 28, 2005, the State pointed out that the DNA evidence would likely not be ready in time for the April 5, 2005 trial date, and Kanneh s counsel agreed, noting that the defense also needed time to review the results. Defense counsel stated we certainly don t have a problem with [] June 6th . The trial date was rescheduled for June 6, 2005, and both parties agreed to another status conference on March 4, 2005. During that same January 28, 2005 scheduling conference, Kanneh first disclosed to the trial court that English was his second language and requested an interpreter for his native language , Vai. 3 At the status conference on March 4, 2005, the State indicated that the DNA evidence had still not been processed, and the parties set the date of May 27th , 2005 for a motions hearing. On May 27, 2005, defense counsel requested a continuance because she had not yet received the DNA results, nor had the State. At tha t same hea ring, Kann eh, through his attor ney, waived his right to be tried within 180 days, pursuant to Md. Code (2001), §6-103 of the Criminal Procedure Article.4 On May 31, 2005, the court rescheduled the trial for 3 Although Kann eh wa s able to comm unicate in Eng lish, there is no presen t dispute between the parties tha t an interpreter w as necessa ry to ensure a fa ir trial. 4 That section provides as follows: (a) Requirements for setting date. - (1) The da te for trial of a c riminal ma tter in the circuit court shall be set within 30 days after the earlier of: (i) the appearance of counsel; or (ii) the first appe arance of the defen dant befo re the circuit co urt, as provided in the Maryland Rules. -2- Nove mber 2 8, 2005 , as a resu lt of the u navaila bility of the DNA eviden ce. At a motions hearing on November 1, 2005, the parties disc ussed their e fforts to secure an interpreter for Kanneh. Neither the State, nor Kanne h s attorney had been able to locate an interpreter, and for that reason, the trial judge postponed the case until January 23, 2006. At a motions hearing on January 13, 2006, although it appeared that the parties had found an interpreter, they realized that this interpreter was not qua lified to perform simultaneous interpretation for a trial that had the potential to last four or five days. As a result, the trial judge postponed the trial date until May 8, 2006. Again, at a motions hearing on May 3, 2006, the parties brought to the court s attention the likelihood that they would be unable to secure an interpreter by the trial date, and th e trial date was postponed until October 16, 2006. In anticipation of that trial date, at a hearing on September 22, 2006, the parties met for a motions hearing, where the State asked the court to proceed to trial without an (2) The trial date may not be later than 180 days after the earlier of those events. (b) Chang e of date. - (1) For good cause sho wn, the county admin istrative judge or a designee o f the judge may grant a c hange of the trial date in a circuit court: (i) on motion of a party; or (ii) on the initiative of the circu it 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) Court rules. - The Court of Appeals may adopt additional rules to carry out this section. -3- interpreter. The State presented the court with a transcript of Kanneh s interview with the police, which w as condu cted in En glish. In respo nse, Kan neh s cou nsel noted th at, even in the transcript, there were instances where the detective had to explain words and instances where Kanneh s answer was inappropriate to the question being asked. Kanneh s attorney also noted that without an interpreter to help her communicate with Kanneh, she was u nable to determine whether the problem s comm unicating w ere the result of a language barrier or a mental health issue. The court did not rule on the State s motion to proceed without an interpreter, and instead ordered a competency evaluation. On that same d ate, the court postpo ned the trial date t o Febr uary 26, 2 007. Someone was finally secured5 to interpret the proceedings, and she was present during a motion s hearin g on F ebruar y 16, 200 7. On that date, however, the interpreter indicated that she had just had some pretty serious surgery and the court rescheduled the trial date for July 30, 2007, because it would be cruel and unusual to expect a person having just had some major surgery to be compelled to be here in discomfort. On February 23, 2007, Kanneh filed a written opposition to the February 16, 2007 postponement and at a status conference on March 1, 2007, indicated his intent to file a motion to dismiss on the basis that his right to a speedy trial had been violated. On June 20, 2007, Kanneh filed a Memorandum of Law on Violation of Mr. Kanneh s S peed y Trial 5 The court had previously located an other interpreter, however, because of that interpreter s personal feelings regarding child abuse cases, she lef t the courtroo m and did not return. -4- Rights. On July 17, 2007, the court granted Kanne h s motion to dismiss. In doing so, the trial court addressed the four factor test established in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The court determined that Kanneh had been prejudiced because he had been on pretrial supervision for almost three years. Weighing the lengthy delay in this case an d the reasons f or the del ay, namely the DNA evidence and the need for an interpreter, the court came to the conclusion that Kanneh s right to a speedy trial had been violated. The State filed a timely notice of appeal to the C ourt of Special Ap peals. Before any proceedin gs in the interm ediate appellate co urt, we gran ted certiorari. State v. Kanneh, 402 Md. 35 2, 936 A.2d 85 0 (2007). DISCUSSION We are asked in the present case to determine whether Kanneh s right to a speedy trial has been violated. This C ourt has consistently applied the four fa ctor balancing test announced by the U.S. Supreme Court in Barker to address allegations that a defe ndant s right to a speedy trial, as provided by the Sixth Amendment of the United States Constitution and Article 21 of the Maylan d Dec laration of Rig hts, has b een vio lated. Glover v . State, 368 Md. 211, 221, 792 A.2d 1160, 1166 (2002). In Barker, the Suprem e Court reje cted a brigh tline rule to determine whether a defendant s right to a speedy trial had been violated, and instead adopted a balancing test, in which the conduct of both the prosecution and the defendant are weighed. Barker, 407 U.S. at 530, 92 S.Ct. at 2191-92, 33 L.Ed.2d at 116. -5- The Court identified four factors to be used in determ ining whether a de fendant s right to a speedy trial has been violated: Length of de lay, the reason for the delay, the defendan t s assertion of his right, and prejudice to the defendant. Id. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. None of these factors are either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. State v. Bailey, 319 Md. 392, 413-14, 572 A.2d 544, 554 (1990) (quoting Barker, 407 U.S . at 533, 92 S .Ct. at 2193 , 33 L.E d.2d at 1 18.). I. Length of Delay This Court has noted that the first fact or, th e len gth o f the dela y, is a do uble en quiry, because a delay of suf ficient length is first required to trigger a speedy trial analysis, and the length of the dela y is then considered as one of the f actors w ithin tha t analysis. Glover, 368 Md. at 222-23, 792 A.2d at 1166-67. We have also remarked that for purposes of a speedy trial analysis, the length of the delay is m easure d from the date of arres t. Divver v. S tate, 356 Md. 379, 388, 739 A.2d 71, 76 (1999). In the present case, there was a delay of approxim ately 35 months between the time Kanneh was arrested, and the date Kanneh s trial was set to begin. We have previously determined that a delay of one year and 14 days was sufficiently inordinate to c onstitute a trigg ering mec hanism such that this C ourt should engage in a speedy trial balancing analysis. Epps v. Sta te, 276 Md. 96, 111, 345 A.2d 62, 72 (1975); see also Glover, 368 Md. at 223, 792 A.2d at 1167 (explaining that this Court has -6- employed the proposition that a pre-trial delay greater than one year and fourteen days was presump tively prejudicial ); Brady v. S tate, 291 Md. 261, 265, 434 A.2d 574, 576 (1981) (where the State admitted that a fourteen month delay established a prima fac ie speedy trial claim). Therefore, we hold that the 35 month delay in this case was sufficiently long such that we should engage in an analysis to determine whether Kanneh s right to a speedy trial was violated. With rega rd to the le ngth of th e del ay as a fact or in the speed y trial a nalys is, the Supreme Court said in Barker: We find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months. Barker, 407 U.S. at 523, 92 S.Ct. at 2188, 33 L.Ed.2d at 113 (holding that even though a delay of five years was extraord inary, the fact that the defendant was minimally prejudiced and did not request a speedy trial counterbalanced the extraordinary delay). Instead, the Court considered the length of the delay as one factor to be used in determinin g wheth er the defe ndant s righ t to a speedy trial had been viola ted. The C ourt also no ted that the len gth of the d elay is necessarily dependent upon the peculiar circumstances of the case. Barker, 407 U.S. at 53031, 92 S.Ct. at 219 2, 33 L.Ed .2d at 117. In particular, the delay that can b e tolerated is depende nt, at least to some degree, on the crime for which the defendant has been in dicted. Glover, 368 M d. at 224 , 792 A .2d at 11 67. At a hearing on September 22, 2006, both parties in this case agreed that this was a very complicated child abuse case because it involved the presentation of DNA evidence. -7- With resp ect to DN A ev iden ce an d len gth o f del ay, this Court has said: DNA evidence may provide that exactness, and to the extent that the delay is no t inordinate, so ciety may weigh the precision which DNA evidence potentially provides more heavily than proceeding with a murder trial without such evidence in the name of expediency. Glover, 368 Md. at 224, 792 A .2d at 11 68. Furthermore, we note that, of the four factors we weigh in determining whether Kanneh s right to a speedy trial has been violated, [t]he length of delay, in and of itself, is not a weighty factor. Glover, 368 M d. at 225 , 792 A .2d at 11 68. See also E rbe v. State, 276 Md. 541, 547, 350 A.2d 640, 644 (1976) (noting that delay is the least conclusive of the four factors identified in Barker ) (quoting U.S. v. Brown, 354 F.Supp. 100 0, 1002 (E.D.Pa. 1973)). Althoug h the delay of 35 mon ths in this case is certainly sufficie nt to merit constitutional scrutiny, the length of the delay is the least determinative o f the four factors that we consider in analyzing whether Kanneh s right to speedy trial has been violated. II. Reasons for Delay We balance the length of the delay against three other factors, one of which is the reason for the delay. In Barker, the Supreme Court noted that different reasons should be assigned d ifferent w eights: A deliberate attempt to delay the trial in order to hamper the defense should be weigh ted heavily aga inst the gove rnment. A more neutral reason such as negligence or overcrow ded cour ts should be weighted less heavily b ut nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with -8- the defendant. Finally, a valid reason, such as a missing witn ess, s hould serve to jus tify ap prop riate dela y. Barker, 407 U .S. at 531 , 92 S.C t. at 2192 , 33 L.E d.2d at 1 17 (fo otnote o mitted). In considering this factor, we will address each postponement of the trial date in turn. The original trial date of April 5, 2005, was changed to June 6, 2005, because it was apparent that the DN A eviden ce wou ld not be rea dy in time to give the d efense an opportun ity to review it before trial. Where, as here, a postponement is the result of the unavailability of DNA evidence, and there is no evidence that the State failed to act in a diligent manner, the grounds for postponement are esse ntially neu tral and j ustified . Glover, 368 Md. at 226, 792 A.2d at 1169 (co ncluding th at a postpon ement as a result of the u navailability of DNA evidence was both neutral and justified where there was no evidence that the State failed to act in a diligen t manner ). The seco nd continu ance, wh ich resched uled the trial da te from June 6, 2005, to November 28, 2005, was also the result of the unavailability of the DNA evidence, and as a result, we determine that this postponement was also largely neutral. The third continuance changed the trial date from November 28, 2005, to December 12, 200 5. This postp onemen t was the res ult of the State s motion to co nsolidate Kanneh s case with that of his father, Edward Massaquoi. Although we construe this reason for delay against the State, in the balan ce, it has relatively little w eight given that this only resulte d in a delay of approx imately tw o wee ks. The fourth postponement, which rescheduled the trial until January 23, 2006, was partly the result of Kanneh s request for severance, and partly the result of the una vailability -9- of an interpreter. Although we cannot find a case where this Court has addressed the unavailab ility of an interpreter as a reason for delay, we agree with the Court of Appeals of Minne sota that a delay cau sed by the un availability of an interprete r does not w eigh heav ily agains t the Stat e. See State v. Cham, 680 N.W.2d 121, 125 (Minn. Ct. App. 2004) (noting that where the inability to locate an interpreter for a rare language was not the result of bad faith on behalf of the S tate, or lack of effort by court adm inistrators, the reason for delay weighs in favor of the S tate). The unavailability of an interpreter is analogous to the problem of overcrowded courts, which we have noted is a more neutral reason that should be weighted less hea vily but c onside red non etheless . See Glover, 368 Md. at 225, 792 A.2d at 1168 (quoting Bailey, 319 Md. at 412 , 572 A.2d at 553 ). The next nine month delay, between January 23, 2006 and October 16, 2006, was also caused by the inability to secure an interprete r who co uld simultan eously interpret the court proceedings. The unavailability of an interpreter was not the result of any fa ilure on beh alf of the State, or the court administration. It was not until January 28, 2005, that a request was made for an interpreter. Indeed, the trial judge noted, in her ruling, that there had been Herculean efforts on beh alf of th e State s Attorn ey. 6 Because the unavaila bility of an interpreter was not the result of bad faith, this delay is not weighed against the State. The trial date w as next reset fo r Febru ary 26, 20 07, both because of the ongoing 6 Both parties in this ca se attempted to locate an interpreter. The clerk of the court attempted to locate an interpreter using the cou rt s language bank, and by calling the Liberian Embass y, the translation ass ociation, and the internation al languag e school. -10- attempt to find a qualified interpreter, and in order for Kanneh to undergo a competency evaluation. While we cannot find a case where we have direc tly addressed to who m de lays as a result of co mpetenc y evaluations a re charged , the Court o f Special A ppeals has said that del ays in the proceedings caused by examinations to determ ine defendant's com petence are charged against the defendant because such evaluations are solely for his benefit. Lewis v. State, 79 Md.App. 1, 17, 555 A.2d 509, 517 (1989); see also Smith v. State, 276 Md. 521, 537-39, 350 A.2d 628, 638-39 (1976) (O Donnell, J., concurring) (noting that when the defendant raised the issue of competency, it became incumbent on the court to dete rmine his com pete ncy, 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 stand trial). We agree that delays for the purpose of determining the defendant s competence are weighed against the defenda nt. The case was postponed o ne final time when th e trial judge no ted that the on ly interpreter who had been located had recently undergone surgery when the parties met for a motions hearing on February 16 , 2007, and as a result w as experien cing severe discomfo rt. This delay is attributable to the unavailability of an interpreter, and because it was not the result of any bad f aith, if w eighed agains t the Stat e, it is only slig htly. III. Assertion of the Right to Speedy Trial In Barker, the Suprem e Court ex plained tha t: [t]he defenda nt s assertion of his speedy trial righ t, then, is entitled to strong evidentiary weight in determining whether the -11- defendant is being depriv ed of th e right. We emphasize that failure to assert the right will m ake it difficu lt for a defen dant to prove that h e was de nied a spee dy trial. Barker, 407 U.S. at 531-32, 92 S.Ct. at 2192-93, 33 L.Ed.2d at 117-18. The Court also noted that, in applying the four facto r balancing test, courts should weigh the frequency and force of the objections. Barker, 407 U.S. at 529, 92 S.Ct. at 2191, 33 L.Ed.2d a t 116. In this case, Kanneh, with the assistance of counsel, acquiesced to each postponement until he objected to the final postponem ent on February 16, 2007. Because Kanneh, who was assisted by counsel, fa iled to object to any postpon ements un til the very last postp onemen t, we weigh this factor ag ainst Kan neh and in favor of the State, and n ote that, under Barker, Kanneh s failure to assert his right is entitled to strong evidentiary weight. See Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. IV. Prejudice The Supreme Court, in Barker, noted that prejudice sh ould be w eighed w ith respect to the three inte rests that the righ t to a speedy trial w as designe d to preserv e: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequate ly to prepare his case skew s the fairness of the entire system. Barker, 407 U.S. at 532, 92 S .Ct. at 2193, 33 L.Ed.2d at 118 (footnote omitted). In this case, Kanne h spent on e night in jail before posting bond, and subsequently was not incarcerated -12- pending trial. Although he was on pretrial supervision under the condition that he not be around children, it is no t a restriction that h e ever com plained was onerous. Likewise, although the defense argues that Kanneh was prejudiced because he did not seek new employment or enroll in school because of the pending case, this evidence only shows, at best, minimal prejudice. We turn to the final of the three factors under the prejudice analysis, and the most serious, the possibility that the defense m ight be impair ed. In the case at bar, there is no assertion of any actual prejudice to the defense s case, for example, that any defense witnesses have bec ome una vailable due to the delay. In Barker, the Supreme C ourt determined that prejudice was m inimal where the defendant spent ten months in jail pending trial. Barker, 407 U.S. at 534, 92 S.Ct. at 2194, 33 L.Ed.2d at 119. In that case, the defenda nt, Barker, lived under a cloud of suspicion for over four years, but there was no claim that any of his witnesses died or became unavailable as a result of the delay. Id. In this case, there is even less prejudice, and, w eighing this final factor, we conclude that Kanneh s right to a speedy trial was not violated. CONCLUSION Althoug h the delay in this case was significant, in light of the complex nature of the case, the length of the delay does not weigh heavily against the State. Because there was no bad faith on the part of the State in securing or failing to secure an interpreter, which was the primary reason for the delay, this factor does not weigh against the State. It is significant that -13- Kanneh failed to object to all of the postponements but the last, and this factor is accorded great evidentiary weight. Finally, we note that any prejudice against Kanneh, as a result of the dela y, was min imal. Balan cing all of these fa ctors, we ca nnot say that K anneh s rig ht to a speedy trial was violated. JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY REVERSED. APPELLEE TO PAY THE COSTS. -14-
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