Williams v. United States

• Citation: 394 F.2d 957,129 US App. DC 332
• Decision Date: 05 April 1968
• Docket Number: No. 20583.,20583.
• Parties: Theodore C. WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

129 US App. DC 332, 394 F.2d 957 (1968)

Theodore C. WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.

No. 20583.

United States Court of Appeals District of Columbia Circuit.

Argued April 7, 1967.

Decided April 5, 1968.

Mr. Robert P. Jaye, Washington, D. C. (appointed by this court), for appellant.

Mr. Scott R. Schoenfeld, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Nicholas S. Nunzio, Asst. U. S. Attys., were on the brief for appellee. Mr. Lee A. Freeman, Asst. U. S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, McGOWAN and ROBINSON, Circuit Judges.

PER CURIAM:

Theodore Williams was tried in the District Court, convicted of robbery, and sentenced to from four to twelve years' imprisonment. He appeals on the grounds, inter alia,¹ that he suffered prejudice from an unexplained delay of 102 days between arrest and indictment, and that the trial judge abused his discretion in permitting evidence of his prior criminal record to be introduced for purposes of impeachment.

Appellant was arrested December 24, 1965, and the next day brought before a judge of the District of Columbia Court of General Sessions for preliminary hearing. Counsel was appointed to represent appellant shortly before the hearing. The General Sessions Judge found probable cause and ordered appellant held for the grand jury, setting bond at $5,000. Unable to purchase a bond in that amount, appellant remained in custody for the entire period from arrest through trial.

An indictment was returned April 5, 1966. New counsel was appointed by the District Court on April 8, and appellant was arraigned and pled not guilty on April 15. A motion for release on personal bond was denied by the District Court on April 22.² Trial was originally set for June 8; appellant and his attorney announced themselves ready to proceed to trial on that date, but the assignment office reset the trial date to July 28. A motion to dismiss the indictment for failure to afford a speedy trial was heard and denied by the District Court on July 15. After two more continuances, the trial commenced on September 1, and a verdict of guilty was returned on September 7.

I

The Government has offered no explanation of the 102-day delay between arrest and indictment, beyond attributing it to the "normal processes of our judicial system." Appellant does not contend that the delay was purposeful or malicious, but points to our language in Hood v. United States, 125 U.S.App.D.C. 16, 365 F.2d 949 (1966), where we expressed "concern" over a delay of 106 days between arrest and indictment, but held:

While we do not condone unexplained delays of this order, we have concluded to take no action about this one. Appellants were represented by counsel throughout the period in question, and no complaint was made, either then or at trial. Id. at 17 n. 1, 365 F.2d at 950 n. 1.

Appellant contends that reversal is required in this case, since he was not "represented by counsel throughout the period in question," and complained of the delay prior to trial by a motion to dismiss the indictment.

Following oral argument on this appeal, on April 10, 1967, we remanded the record for a hearing to determine:

(1) what services counsel rendered appellant at the preliminary hearing and (2) whether appellant was, in fact, represented by counsel in the interval between preliminary hearing and indictment and, if so, what contacts, if any, counsel had with appellant during his confinement and what services, if any, were rendered appellant during this period.

The record has now been returned to this Court, supplemented by the transcript of a hearing held in the District Court on May 5, 1967, the transcript of the preliminary hearing, and additional memoranda submitted by the parties. The record as thus supplemented strongly supports appellant's contention that he was without the services of counsel during the interval between preliminary hearing and indictment.

At the May 5 hearing, appellant's preliminary hearing counsel testified that he understood his appointment was only for the preliminary hearing; that "of course I would be out of the case" if appellant were held for the grand jury; and that he considered his appointment "lapsed" at the close of the hearing. And though he added he would have been willing to provide further services on a fee basis, if requested, he stated that he rendered no further services and had no contact with appellant, or any friend or member of his family, after the preliminary hearing.

Appellant also was called to testify at the May 5 hearing. He stated that he had no contact with any attorney from the time of the preliminary hearing until counsel was appointed by the District Court, on April 8; that it was his impression that counsel appointed by the Court of General Sessions was appointed to represent him solely for the preliminary hearing; and that he made several unsuccessful attempts to procure counsel by writing to friends and relatives.

The importance of appointed counsel's continuing to function actively on behalf of his client throughout the preindictment period cannot be overemphasized.³ Counsel's ability to present an effective defense at trial may depend in large measure on the thoroughness of investigative and other services provided at the early stages of the case, while the evidence is still fresh.⁴ Important rights may be lost if counsel is not alert to preserve them during the preliminary phase of a criminal proceeding.⁵ And an accused may suffer unwarranted pretrial detention if counsel is not available to pursue applicable procedures relating to release on bail or other conditions.⁶ The potential for prejudice accruing from the absence of active representation by counsel is no doubt enhanced significantly where, as here, the return of an indictment is inordinately delayed. However, without in any way condoning the serious defects in the proceedings below which the record reveals, we are of the view that the conviction appealed from may not be disturbed without a further inquiry, into actual, as opposed to potential, prejudice.⁷ Since we find no significant probability of such prejudice on the record before us, we conclude that the conviction must be affirmed.

Appellant bases his claim of prejudice primarily on the alleged disappearance, in April, 1966, at about the time of the indictment, of a potential defense witness. In order to understand this contention, some background is necessary. The complaining witness, Mr. Adams, was the chief witness for the prosecution at appellant's trial. He testified that he was assaulted and robbed in the course of his duties as a deliveryman. The robbery took place as he was leaving an apartment building, after making a delivery to a first floor apartment. He returned to the apartment following the robbery, and called his store from there. The assistant manager of the store arrived on the scene shortly thereafter, accompanied by a police officer. Mr. Adams and the other two men drove around the neighborhood for a short time, and though they saw appellant he disappeared before they were able to talk to him. When they returned to the store, they learned that the female occupant of the apartment had telephoned there, leaving word that she might be able to identify the suspect. They therefore went back to the apartment, whereupon the woman informed them that she had seen a man enter the building behind Mr. Adams, and go up to the second floor. Then Mr. Adams and the police officer went out again, and this time they found appellant and brought him back to the apartment.

At trial, Mr. Adams testified that when confronted with appellant, the woman stated that he was not the man she had seen enter the building behind Mr. Adams. Appellant's testimony was to the same effect; he testified that she had said, "No, this is not the man." The only contradictory testimony was that of the police officer. His version was that the woman had said appellant "looked like" the man she had seen, but that she was unable to make a positive identification. On cross examination, he explained that she had first stated that appellant was the man, and then shrugged her shoulders.

The woman who thus confronted appellant shortly after the robbery is the potential defense witness on whose disappearance appellant bases his claim of prejudice. His theory is apparently that the woman would have testified that he was not the man she saw enter the building behind Mr. Adams, thus, perhaps, raising a reasonable doubt as to whether this unnamed intruder, and not appellant, was the man who assaulted and robbed the complainant. Whether or not the witness' testimony would have been as appellant asserts, we are unable to accept the contention that her disappearance constitutes sufficient prejudice to warrant reversal of the conviction. Two witnesses, including the complainant (whose testimony on this point was very likely to be credited by the jury) testified at trial that the woman stated, on being confronted with appellant, that he was not the man she had seen follow Mr. Adams into the building. In view of this, it is hard to see how appellant could have been materially helped by her presence at trial — even assuming she would have testified as appellant now claims.⁸

We have searched the record, and are unable to find any other indication that appellant was in fact prejudiced by the preindictment delay and lack of assistance of counsel. We do not decide whether, under some circumstances, the mere fact of lengthy pretrial incarceration attributable to the absence of legal assistance might in itself be sufficient prejudice to warrant reversal of a conviction. Here, it seems most unlikely that the services of counsel could have made a difference. The $5,000 bond condition imposed by the General Sessions Judge reflected, no doubt, appellant's prior criminal record, which...