Adams v. United States

• Decision Date: 02 September 1983
• Docket Number: No. 81-606.,No. 82-824.,No. 81-620.,81-606.,82-824.,81-620.
• Citation: 466 A.2d 439
• Parties: John E. ADAMS (Nos. 81-606 & 82-824), Appellant, v. UNITED STATES, Appellee. Curtis L. OESBY, a/k/a Lawrence E. Staton (No. 81-620), Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

466 A.2d 439

John E. ADAMS (Nos. 81-606 & 82-824), Appellant, v. UNITED STATES, Appellee.

Curtis L. OESBY, a/k/a Lawrence E. Staton (No. 81-620), Appellant, v. UNITED STATES, Appellee.

No. 81-606.

No. 82-824.

No. 81-620.

District of Columbia Court of Appeals.

Argued May 25, 1983.

Decided September 2, 1983.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David Carey Woll, Rockville, Md., appointed by this court, for appellant Adams.

Charles W. Halleck, Washington, D.C., for appellant Oesby.

Bruce A. Peterson, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Michael W. Farrell, and Steven D. Gordon, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before KERN and BELSON, Associate Judges, and PAIR, Associate Judge, Retired.

KERN, Associate Judge:

On February 26, 1981, appellants John Adams and Curtis Oesby were found guilty by a jury of assorted charges arising from the killing, burglary, and attempted robbery of Frances Akers.¹

There was evidence that appellants and Thomasine McKay left Adams' apartment on November 1, 1979, purportedly to sell some clothing McKay had stolen and to buy heroin. (Record at 584, 856)² Akers allegedly wrote numbers and sold small quantities of phenmetrazine. As they drove past Akers' house, Adams said that he was "going to take that joint off." (Record at 587.) McKay and Adams exited the car and entered Akers' house. A short time later, after parking the car, Oesby approached the door and attempted to enter. (Record at 588.) While Akers was talking to Oesby at the door, Adams came up behind her and shot and killed her. (Record at 590-91.) (Adams maintained in his defense that Akers was interested in buying his gun and that while he was showing it to Akers it went off accidentally, killing her.) (Record at 861-62.)

Once Akers had been shot, Adams admitted Oesby and together they searched the house. (Record at 593-95.) Adams confronted Akers' 15-year-old grandson, Lawrence Michael Branch, and instructed Branch and a young cousin to sit on the living room couch with their heads held down. (Supp. Record III at 89, 90, 96.) Adams took a small bag of phenmetrazine from Akers' body and the three left. (Record at 595; Supp. Record III at 102-03.) Outside of the Akers' house appellants encountered Sherman Marshall. Sherman, who knew appellants by their respective nicknames, was instructed to turn around and appellants and McKay left. (Record at 269-82.)

At trial, the government relied on the testimony, among others, of McKay, who had originally been charged with appellants but then pleaded guilty to first-degree burglary and attempted robbery. Oesby did not testify and Adams presented the defense of accident. On appeal, Adams and Oesby challenge various rulings by the trial court, and Oesby challenges the sufficiency of the evidence to support his conviction and certain aspects of the sentencing of appellants. Only several of these issues require extended discussion.³

Adams challenges the validity of the warrant upon which he was arrested and hence claims that it was error for the trial court to deny his pretrial motion that the gun seized during his arrest should be suppressed. Adams was arrested after a paid informant called Police Officer David Hayes and informed him that appellant Adams, who was wanted for murder under an arrest warrant, was in a green Chrysler with Virginia tags in the 3900 block of Wheeler Road, S.E., and that he was armed with a .45, caliber pistol. The informant, whose information had proved accurate in at least four previous instances, claimed personal knowledge of the presence of the weapon. (Supp. Record I at 377-85.)

A detective confirmed that an arrest warrant on an unrelated offense was outstanding for Adams, and Hayes proceeded to the location mentioned, saw a car matching the informant's description and stopped it. He testified that certain furtive movements were made by the driver as he was being pulled over to the curb. After the occupants got out of the car, the woman riding in the front with appellant Adams, the driver, placed her purse on the trunk of the car and a .45 caliber handgun slid out. Appellant was then placed under arrest. (Supp. Record I at 355-58, 367.)

We do not reach Adams' challenge to the arrest warrant because we find, under the circumstances, that an investigative stop was appropriate and that probable cause to arrest Adams arose during that stop. The validity of the stop depends on the reliability of the informant's tip. We must evaluate the circumstances which show the informant to be credible and which led the informant to believe that a crime was being committed. Rushing v. United States, 381 A.2d 252, 254-55 (D.C. 1977). Because the informant in this case had an established record of supplying accurate information, we are concerned only with the basis of the informant's knowledge.

The record reveals that the informant claimed to have "personal knowledge" of the gun in Adams' possession. (Supp. Record I at 366.) There was further testimony that the informant was in the 3900 block of Wheeler Road, S.E., where the tip placed Adams. These factors, along with the detailed description of Adams' car, strongly suggest that the informant was acting on the basis of his observations.

That police action was called for in this case is clear given the fact that this was a rapidly moving street occurrence involving a dangerous weapon, not a report of future criminal activity or of activity posing no threat to the public. Galloway v. United States, 326 A.2d 803 (D.C.1974), cert. denied, 421 U.S. 979, 95 S.Ct. 1981, 44 L.Ed.2d 471 (1975). The police were able to verify certain aspects of the tip independently: the description of the car prior to the stop; and, after the stop but prior to approaching appellant, the furtive movements reasonably suggested some sort of criminal action consistent with the tip. See United States v. Mason, 450 A.2d 464 (D.C. 1982); Lawson v. United States, 360 A.2d 38 (D.C.1976) (cases in which actual searches for guns were upheld based on tips from informants and independent police confirmation of non-criminal details of the tips). For these reasons Adams' motion to suppress the seized pistol was properly denied by the trial court.

Appellant Oesby claims that the indictment charging him with the crimes of which he has been convicted should be dismissed on either of two grounds: that the 15-month delay between his arrest on November 16, 1979 and the beginning of trial on February 13, 1981 denied him his Sixth Amendment right to a speedy trial, and that the grand jury proceedings themselves were tainted by prosecutorial misconduct.

The trial court gave careful consideration to appellant's speedy trial motion and detailed the reasons for its denial in a memorandum order. We agree with the trial court that no Sixth Amendment violation occurred. We note that the trial court followed the standard used to evaluate speedy trial claims established by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972). There, courts were directed to consider (1) the length of the delay, (2) the reasons for it, (3) the defendant's assertion of right, and (4) any prejudice to the accused.

Where, as here, the delay was more than one year, appellant has established a prima facie constitutional violation, Branch v. United States, 372 A.2d 998, 100 (D.C.1977), and the government must "convincingly outweigh" appellant's assertions of a Sixth Amendment rights' infringement in order to have the conviction upheld. Day v. United States, 390 A.2d 957, 970 (D.C. 1978). The more serious and complex the charges, however, the more able the government is to meet that burden. Head v. United States, 451 A.2d 615, 620 (D.C. 1982).

The first eight months of the delay in this case, until the first trial date, was normal delay inherent in the "proper and deliberate functioning of the judicial system." Bowman v. United States, 385 A.2d 28, 31 (D.C. 1978). This delay is basically neutral. See Day v. United States, supra, 390 A.2d at 966 (first 7½ months of longer delay termed "routine, normal".)

Of the next four months, about three weeks must be attributable to government unreadiness to proceed and the rest to the inability of attorneys for both the defense and the prosecution, and the trial judge, to find a mutually acceptable trial date. A short period of government unreadiness must not be weighed heavily in a case as complex as this one, Head v. United States, supra, 451 A.2d at 621, nor should a period of institutional delay caused by the necessity of a large number of attorneys having to coordinate their schedules with a busy trial judge. United States v. Perkins, 374 A.2d 882 (D.C.1977).

The final three-month delay resulted because Adams became unavailable and the government desired that the cases remain joined. Again, this must not weigh heavily against the government. Joinder of cases is favored, where appropriate, because it fosters efficient use of judicial and prosecutorial resources and decreases the burden on citizens who are called as witnesses. Ready v. United States, 445 A.2d 982, 985 (D.C.1982), cert. denied, ___ U.S. ___, 103 S.Ct. 1279, 75 L.Ed.2d 498 (1983). Of the 15 months then, only the one three-week period was due to government unreadiness and none of the delay was attributable to an attempt by the prosecution to secure an unfair tactical advantage.

Barker v. Wingo also instructs that the court should consider whether the defendant asserted the right to a speedy trial. Oesby asserted it from the first continuance and this weighs in his favor. The final and decisive factor, however, is the prejudice resulting to Oesby from this delay. Three sorts of prejudice have been recognized by this court as supporting the right to a speedy trial: (1) undue and oppressive incarceration prior to trial, (2) anxiety over the charges,...