Bethea v. United States

• Decision Date: 16 November 1978
• Docket Number: No. 11934.,11934.
• Citation: 395 A.2d 787
• Parties: Agatha BETHEA, a/k/a Cathy Bethea, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

395 A.2d 787

Agatha BETHEA, a/k/a Cathy Bethea, Appellant, v. UNITED STATES, Appellee.

No. 11934.

District of Columbia Court of Appeals.

Argued February 7, 1978.

Decided November 16, 1978.

COPYRIGHT MATERIAL OMITTED

John Brooks Harrington, Washington, D. C., appointed by this court, for appellant.

Larry G. Whitney, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty. and John A. Terry, Gordon C. Rhea, Genevieve Holm and Norman M. Monhait, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before NEBEKER, YEAGLEY and FERREN, Associate Judges.

YEAGLEY, Associate Judge:

Appellant was convicted of misdemeanor embezzlement (D.C.Code 1973, § 22-1202) and sentenced to one year's imprisonment. Execution of the sentence was suspended and appellant was placed on supervised probation for two years. On appeal, she claims that the 19-month delay between arrest and trial deprived her of her right to a speedy trial. We conclude on the basis of the record examined herein that she was denied a speedy trial, and reverse.

THE FACTS

On June 21, 1975, appellant was arrested for embezzlement in Woodward & Lothrop's Department Store in downtown Washington, after two store detectives saw her putting sheets and pillow cases in her purse. A warrantless search of her downstairs employee locker resulted in seizure of a pistol.

On June 27, 1975, she was arraigned and charged with misdemeanor embezzlement under D.C.Code 1973, § 22-1202 and misdemeanor carrying a pistol without a license under D.C.Code 1973, § 22-3206.¹ Trial was set for September 2, 1975.

On September 2, 1975, appellant appeared in court with an attorney from the Law Offices of Washington and announced that she was ready for trial. The prosecution, however, announced not ready and was granted a continuance until November 4, 1975.

On November 4, 1975, both the prosecution and appellant were ready but the court was unable to reach the case for trial. Consequently, the proceedings were continued until a later date. This sequence of events recurred on January 27, 1976, and January 28, 1976. On the latter occasion, the case was continued until April 12, 1976.

On April 8, 1976, counsel for appellant appeared in Calendar Control Court, and requested that new counsel be appointed to represent appellant and that the case be continued until June 7, 1976, to allow new counsel time to prepare. The presiding judge continued the case to the requested date, but failed to appoint new counsel.

On June 7, 1976, the government announced ready for trial but no attorney had been appointed to represent appellant. Consequently, the trial was continued until August 19, 1976, and new counsel was appointed.

On June 28, 1976, new counsel adopted a previously filed motion to suppress evidence and filed an application for a continuance to accommodate his vacation schedule. A hearing on the motion was scheduled for July 8, 1976, and the trial continued until August 27, 1976.

On July 8, 1976, the prosecutor appeared at the hearing on the motion to suppress, having filed no opposition thereto, and requested, over defense objection, a continuance of the hearing until August 11, 1976. At this point, appellant orally requested that the charges against her be dismissed for lack of a speedy trial. This motion was denied without prejudice.

On July 15, 1976, the government requested, and was granted over defense objection, an extension of time in which to file its opposition to the motion to suppress. On July 23, appellant filed a written motion to dismiss the charges on speedy trial grounds. The motion was set for hearing along with the previously filed motion to suppress.

On August 11, 1976, the prosecution still had not filed its opposition to the suppression motion. As a result, the motions judge treated the motion to suppress as conceded under Super.Ct.Cr.R. 47-I(c). The judge denied the speedy trial motion on the grounds that all of the previous delays "occurred because the Court was unable to reach the case for trial."

On August 27, 1976, both parties announced that they were ready for trial. The court, however, was again unable to reach the case and it was continued to September 10, 1976. On the 10th of September, the parties were again prepared for trial but no master jury list was available. Hence, the trial was continued until December 1, 1976.

On October 12, 1976, the prosecution submitted a motion to advance the trial date. At a hearing on November 5, 1976, the motion was granted and the trial date advanced to November 19, 1976. On that date, the court again failed to reach the case for trial and it was continued to January 27, 1977. No additional motions to advance were filed.

On January 27, 1977, 19 months and six days after her arrest, appellant was afforded her day in court. After a short trial, she was convicted of embezzlement.

THE RELEVANT FACTORS

In determining whether an accused has been denied a speedy trial, a court applies a four-pronged balancing test which weighs: (1) the length of delay, (2) the reasons for delay, (3) the assertion of the right by the defense, and (4) the prejudice to the accused. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The remedy for the denial of the right to a speedy trial is dismissal of the indictment or information. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973). Whether that remedy is appropriate in a particular case depends on careful consideration of the above factors.

LENGTH OF THE DELAY

In this jurisdiction, a delay of a year or more between arrest and trial gives prima facie merit to a claim that an accused has been denied the right to a speedy trial. Branch v. United States, D.C.App., 372 A.2d 998, 1000 (1977). After such a delay, the burden of justifying the delay or showing the lack of any significant prejudice to the accused is on the government. United States v. Bolden, D.C.App., 381 A.2d 624, 627 (1977). This burden increases in proportion to the length of the delay. Branch v. United States, supra at 1000; United States v. Holt, 145 U.S.App.D.C. 185, 186, 448 F.2d 1108, 1109, cert. denied, 404 U.S. 942, 92 S.Ct. 292, 30 L.Ed.2d 257 (1971). And, the delay that can be tolerated for a simple misdemeanor is considerably less than in the case of a complex felony. United States v. Perkins, D.C.App., 374 A.2d 882, 884 (1977).

In this case, 19 months and six days passed between appellant's arrest and her trial for embezzlement of a package of sheets and two pillow cases. In light of the uncomplicated nature of the offense, the length of delay in this case weighs heavily in favor of dismissal.

REASONS FOR DELAY

In evaluating the reasons for delay, a court should assign different weights to different reasons. Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. 2182. Accordingly, when the prosecution creates or prolongs a delay in bad faith, a speedy trial deprivation is easily shown. United States v. Bolden, supra at 628; United States v. Lara, 172 U.S.App.D.C. 60, 65, 520 F.2d 460, 465 (1975). Such a deprivation inheres as well in delays caused by government indifference. See Hedgepeth v. United States, 124 U.S.App.D.C. 291, 295, 364 F.2d 684, 688 (1966). Institutional delays such as court congestion, however, are weighed less heavily against the government and may be easily outweighed by an inadequate assertion of the speedy trial right or a low threshold of prejudice. United States v. Perkins, supra at 883-84.

In this case, the delay must be attributed to a number of factors. For purposes of analysis, we have divided the total delay into five periods and will consider each separately.

The first period runs from June 21, 1975, to September 2, 1975. This period was spent arraigning appellant, appointing her first counsel and setting an initial trial date. Although chargeable to the government, this delay is an inherent part of the judicial process and therefore carries little weight.

The second period of delay, from September 2 to November 4, 1975, is directly chargeable to the prosecution and should be weighed heavily against it since the government requested and received a continuance.

From November 4, 1975 to April 8, 1976, the delay was caused by the congested misdemeanor calendar of the Superior Court. Unlike the delay which results from the process of arraignment, this delay is not an inherent part of the judicial process. United States v. Perkins, supra at 884. Although "weighed less heavily against the government in a speedy trial determination than a deliberate attempt to delay the trial or seek other tactical advantage," United States v. Bolden, supra at 628, such delay is a factor to be considered in the overall balancing process.

The period from April 8 to August 27, 1976, was consumed by the process of appointing new counsel and affording him an opportunity to prepare the case. The period from April 8 to June 7, should be attributed to appellant. If the court had promptly appointed new counsel on April 8, as requested, the period to June 7 would have been needed for him to familiarize himself with the case. The court's failure to act on April 8 necessitated the additional continuance from June 7 to August 19. That period must be attributed to the government.

The final period of delay, August 27, 1976 to January 27, 1977, was the product of court congestion. Unlike the earlier period attributable to court congestion, however, the last five months must be attributed to government indifference. By the time of the August 27 trial date, the case had been continued seven times, appellant had twice moved the court to dismiss the case on speedy trial grounds, and more than a year had passed since appellant's arrest. Because the speedy trial clause of the Sixth Amendment places the primary burden on the prosecution "to assure that cases are brought to trial," Barker v. Wingo, supra, 407 U.S. at 529, 92 S.Ct. at 219,...