Ball v. U.S.

• Decision Date: 06 April 1981
• Docket Number: No. 79-11.,79-11.
• Citation: 429 A.2d 1353
• Parties: George BALL, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

429 A.2d 1353

George BALL, Appellant, v. UNITED STATES, Appellee.

No. 79-11.

District of Columbia Court of Appeals.

Submitted October 18, 1979.

Decided April 6, 1981.

Dennis M. Hart, Washington, D. C., appointed by the court, was on the briefs for appellant.

Carl S. Rauh, Acting U. S. Atty., Washington, D. C. at the time the brief was filed and the case was submitted, and John A. Terry, Peter E. George, Richard H. Saltsman and Harold L. Cushenberry, Jr., Asst. U. S. Attys., Washington D.C. were on the brief for appellee.

Before KELLY, MACK and FERREN, Associate Judges.

KELLY, Associate Judge:

Appellant George Ball was convicted by a jury of three counts of threats, D.C.Code 1973, § 22-2307,¹ and four counts of obstructing justice, D.C.Code 1973, § 22-703(a)² He was thereafter sentenced to concurrent three to twelve-year sentences for each count. The contentions on appeal are that a seventeen-month delay between his arrest and trial deprived appellant of his Sixth Amendment right to a speedy trial and that the double jeopardy clause of the Fifth Amendment prohibited his threats convictions because those offenses merged with the obstructing justice charges.

The evidence was that on December 9, 1976, appellant's scheduled trial for assault with a dangerous weapon, D.C.Code 1973, § 22-502, was continued until the following day.³ Four government witnesses, John and Kenneth Agnew, Jeffrey McGhee, and Curtis Lassiter, then left the courthouse together, after being issued new subpoenas to return the next day. They drove to the Agnews' apartment building and parked in the adjoining lot while Kenneth Agnew went inside.

On the way to his own apartment, Kenneth stopped by appellant's apartment where he saw appellant, his brother, Melvin Ball, and two others, Thomas Coleman and Thomas Hamilton. Appellant asked Kenneth what he and the other witnesses had said in court and whether he intended to return the next day. Kenneth answered that he had said nothing, and that he had been subpoenaed to return to court.

When Agnew left, Melvin Ball, Coleman, and Hamilton went out to the parking lot, where Melvin Ball ordered the other three witnesses out of the car, saying they had "some explaining to do." Melvin Ball and John Agnew got into a scuffle. Appellant then arrived at the parking lot and told the witnesses that his brother, or his "crew" would "get" them if they returned to court the next day. Lassiter, afraid that he would be shot, ran into the woods, pursued by two men whom he was unable to identify.

The Agnews' mother, Mary Alice Agnew, testified that when she and Kenneth saw the fight through their window, Kenneth left to join the others at the parking lot. She said that appellant later came to her apartment and warned her sons not to go to court or he would "get" them, suggesting that they ignore the subpoenas.

The next day, when the four witnesses did not appear, the complainant in that case told the prosecutor that he believed they had been threatened the evening before. Similar information was received from one or more police officers, some of whom apparently had inquired about the matter earlier by telephone. The prosecutor and several police officers also saw appellant, Melvin Ball, Thomas Coleman, and Thomas Hamilton "huddling or conferring as people do in a football game . . . and dispersing with each person going to a separate exit to that courthouse." The trial court consequently ordered appellant held without bond until a preventive detention hearing, scheduled three days later, could be held. The prosecutor ordered the arrests of the other three men the same day.

Appellant was indicted on December 23, 1976, for threats and obstructing justice. On February 15, 1977, the trial court granted appellant's motion to dismiss the four counts of threats, for failure to allege any intent to extort. That ruling was appealed by the government on February 23, and reversed by this court in an unpublished order issued on November 9, 1977; the case was also remanded for trial. On December 16, trial was set for April 5, 1978, when it was again continued, until May 12.⁴ The jury returned its verdict on May 19, 1978.⁵

Appellant was sentenced on August 16 to concurrent three to twelve-year sentences for each count, to run consecutively to any other sentence then being served. On August 25, 1978, he filed a notice of appeal to this court.

I

In determining whether appellant's Sixth Amendment right to a speedy trial was violated, we once again weigh the four factors enumerated in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972) — (1) the length of the delay, (2) the reasons for the delay, (3) the defendant's assertion of the right, and (4) prejudice resulting from the delay — mindful that a delay of more than a year gives appellant's speedy trial claim prima facie merit. Branch v. United States, D.C.App., 372 A.2d 998 (1977).

Of the seventeen months between arrest and trial, eight and one half months were consumed by the government's appeal of the pretrial dismissal of the threats counts, two and a half months of delay occurred before the government's appeal and six months of delay transpired after we reversed the trial court's ruling.⁶ Since the pre and post-appeal delay periods were due to "routine, normal delay[s] inherent in judicial procedures," Bond v. United States, D.C.App., 233 A.2d 506, 511 (1967), quoted in Day v. United States, D.C.App., 390 A.2d 957, 966 (1978) (approved en banc in Alston v. United States, D.C.App., 412 A.2d 351 (1980)), we weigh them less heavily against the government and look primarily to the circumstances surrounding the eight and a half month delay in deciding the government's interlocutory appeal.

In Day v. United States, supra, an eighteen and a half month delay caused by an interlocutory appeal was held to be "countable and chargeable to the government," id. at 966, but not to be grounds for dismissal, even though, as here, the expedited appeal procedure required by D.C.Code 1973, § 23-104(e) was not invoked by the prosecutor.⁷ This court reasoned that dismissal was not compelled because there was no "prejudice to defense preparation (or any other type of prejudice) . . . [and] appellant had [not] pressed hard for expedited resolution of the government's pretrial appeal. . . ." Id. at 973.

This case is indistinguishable from Day: appellant failed to assert his speedy trial right until May 12, 1978, three days before trial; there is no evidence that appellant made any other request for expedited resolution of his trial or appeal; and he never objected to the trial court's granting continuances during the pendency of the appeal. Furthermore, as appellant concedes in his brief on appeal, he can "point to no specific examples of . . . prejudice" attributable to the pre-trial delay. Consequently, absent any indications of prejudice to the appellant or of deliberately dilatory government tactics, we agree that the government has carried its burden of persuasion on the issue and that the severe remedy of reversal on speedy trial grounds is inappropriate in this case.

II

Appellant argues, for the first time on appeal, that his conviction for three counts of threats, D.C.Code 1973, § 22-2307, and four counts of obstructing justice, D.C.Code 1973, § 22-703, imposed multiple punishments for the same offense and, therefore violated the double jeopardy clause of the Fifth Amendment.

The double jeopardy clause "protects against a second prosecution for the same offense after acquittal . . . against a second prosecution . . . after conviction . . . [a]nd . . . against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977).

In Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980), the Supreme Court said that "the question whether punishments imposed by a court after a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized." The Court ruled that Congress had not authorized the imposition of consecutive sentences for rape and for an unintentional killing committed in the course of a rape, basing its decision on D.C.Code 1973, § 23-112 which establishes a presumption of consecutive sentences for conviction of separate offenses, unless otherwise provided by the sentencing court, "whether or not the offense . . . arises out of the same transaction [as another offense] and requires proof of a fact which the other does not." Justice Stewart explained that this language codified a rule of statutory construction, in effect as a short-cut to determine whether consecutive punishment could be imposed or, as stated in the legislative history of § 23-112, "to obviate the need for the courts to search for legislative intent." Id. at 693, 100 S.Ct. at 1438.

More recently, the Supreme Court stated that this double jeopardy "question of what punishments are constitutionally permissible is not different from the question of what punishment the Legislative Branch intended to be imposed." Albernaz v. United States, ___ U.S. ___, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275 (1981). In the preceding statutory analysis, the Albernaz Court determined that Congress intended to permit the imposition of consecutive sentences for a single agreement constituting conspiracy to import marijuana in violation of 21 U.S.C. § 963 and conspiracy to distribute marijuana in violation of 21 U.S.C. § 846. The Court's double jeopardy analysis in Albernaz thus merged with this treatment of the congressional intent issue. Similarly here, examination of statutory purpose will determine whether (1) Congress authorized cumulative punishment, and (2) whether § 2307 and § 703 are the same...