Blunt v. United States, 20956.

• Decision Date: 02 October 1968
• Docket Number: No. 20956.,20956.
• Citation: 131 US App. DC 306,404 F.2d 1283
• Parties: Thomas E. BLUNT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

131 US App. DC 306, 404 F.2d 1283 (1968)

Thomas E. BLUNT, Appellant, v. UNITED STATES of America, Appellee.

No. 20956.

United States Court of Appeals District of Columbia Circuit.

Argued June 27, 1968.

Decided October 2, 1968.

Petition for Rehearing Denied November 5, 1968.

Certiorari Denied March 10, 1969.

Mr. James L. Highsaw, Jr., Washington, D. C., (appointed by this court) for appellant.

Carl S. Rauh, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Harold H. Titus, Jr., Asst. U. S. Attys., were on the brief, for appellee.

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

Certiorari Denied March 10, 1969. See 89 S.Ct. 1021.

BAZELON, Chief Judge:

Appellant seeks reversal of his conviction on an eight-count indictment charging robbery, fraud by wire, and forgery and uttering. At about 1:00 a. m. on December 23, 1964, one Robert Fleming was robbed of his wallet at gunpoint by three Negro males in a downtown Washington alley. The wallet contained money, a driver's license, personal papers, traveler's checks, and a book of blank checks from the United States National Bank of Oregon bearing his printed name and Oregon address. In the course of the same day, a man claiming to be Fleming and showing Fleming's identification came on three separate occasions to Kay's jewelry store. On each occasion, he wrote and cashed a check matching the description of the stolen checks. He purchased respectively a lady's watch (check for $169.45), a man's diamond ring (check for $450.87), and a man's watch (check for $338.95). An imposter Fleming also appeared three times during the day at a Western Union office in an attempt to obtain $500.00 by wire in Fleming's name from the National Bank of Oregon. Appellant was arrested at the Western Union office at 8:45 p. m. that evening, when a clerk identified him to the police as the man who had been trying to cash the wired draft.

At his long-delayed trial on March 1, 1967, appellant was identified by three Western Union clerks and by two sales personnel from Kay's Jewelers. The victim Fleming was unable to identify him. However, the Government's evidence also established that the diamond ring purchased at Kay's with one of the forged checks was in appellant's possession after his arrest, and that Fleming's wallet was subsequently found in the back seat of the car in which appellant had hitchhiked to the Western Union office immediately prior to his arrest. In addition, the driver of the car testified that appellant, a stranger to him, had shown him a new lady's watch he said he was planning to give his wife for Christmas. Testifying in his own defense, appellant presented a detailed alibi reconstructing his alleged innocent activities on the day the crimes took place. Although he claimed to have been in the company of numerous persons on the day in question, none of them appeared to corroborate his testimony.

On this evidence, the jury found him guilty on all counts. The court sentenced him to imprisonment for from five to fifteen years on the robbery count, with lesser concurrent sentences on the other counts. On appeal, he raises issues relating to (1) his competency to stand trial, (2) his right to a speedy trial, (3) the joinder of separate offenses in a single indictment and trial, (4) the instructions to the jury, and (5) delay in preparation of the trial transcript for purposes of appeal.

(1) Appellant has been in this court before on other charges.¹ On his most recent appeal, we reversed his conviction for housebreaking because of defects in the hearing on his competency to stand trial. Blunt v. United States, 128 U.S.App.D.C. 375, 389 F.2d 545 (1967). We held that the errors were not subsequently cured by a second and still a third determination of competency, since newly appointed defense counsel had apparently consented to the second without knowledge of the defects in the first hearing, and since the third determination was based on the other two. 128 U.S.App. D.C. at 376-377, 389 F.2d at 546-547 and n. 2. Appellant contends that this holding compels reversal of his present conviction as well because in denying a motion for mental examination in this case on May 10, 1965, the court relied on the determination of competency made at the original defective hearing in the housebreaking case a month before. However we think the controlling question is whether there had been an adequate determination of his competency by the time appellant finally went to trial in this case.

By that time, appellant had been examined twice more. At his first trial on the present charges, on September 14, 1966, his bizarre behavior² resulted in a mistrial and a subsequent mental examination at St. Elizabeths Hospital. The Hospital reported him competent. Defense counsel objected to this report and obtained the appointment of the Georgetown University Pre-Trial Clinic to examine appellant. When this examination also resulted in a conclusion of competency, defense counsel did not object to the court's subsequent determination that appellant was competent to stand trial.

Thus, in connection with the two prosecutions, appellant was examined and reported competent five times by four different psychiatric institutions within the twenty months immediately preceding this final determination of competency.³ In considering the adequacy of that determination, we note 1) counsel's initiative in pursuing an independent examination, 2) the failure of that examination to support his client's claim of incompetency, and 3) the already long delay in appellant's trial. In these circumstances, while a sua sponte hearing would have removed any lingering doubt, we think the court's failure to conduct one was not error affecting substantial rights.⁴

(2) Appellant says that in any event he was denied his right to a speedy trial. His first trial in this case took place 21 months after his arrest and 17 months after his indictment. Because of the mistrial and an extraordinary 11-month delay in the preparation of the transcript for the appeal, appellant has now been incarcerated some 44 months without final resolution of his case. No one connected with the administration of justice can take pride in such a record.

Nonetheless, neither the court nor the Government is primarily responsible. At the time of his arrest on December 23, 1964, appellant was free on bond in connection with the housebreaking offense for which he was convicted on February 14, 1966. The court not unreasonably directed that the earlier offense be tried first. Thus, 15 months were consumed in the series of mental examinations and hearings, all at appellant's request, which preceded his trial on the housebreaking charge. Then follows an unexplained two-month delay, a one-month continuance to enable the Government to obtain a witness from Oregon, an ironic six-week interruption while appellant pressed his motion to dismiss for lack of a speedy trial, and a final two-month continuance while both counsel were on vacation. On September 14, 1966, appellant was finally brought to trial. There is no suggestion that the additional delay after the resulting mistrial was unnecessary. Thus, it would appear that the Government may be charged with only three months of the total delay.

Appellant argues, however, that if his original competency hearing on April 15, 1965 had been a fair one, none of the succeeding chain of mental examinations would have been necessary, and both trials would have been held promptly or not at all. But the record convinces us that a proper competency hearing at the outset would hardly have been the "stitch in time." In any case, where a principal cause of postponement is the deliberate pace of the system of safeguards designed to protect the accused, the courts have been exceedingly reluctant to find constitutional infirmity even in very long delays.⁵

But appellant urges that he was fatally prejudiced by the delay in this case.⁶ He alleges that he was deprived of the testimony of witnesses who could corroborate his alibi. He says one is dead, one has left the jurisdiction, and the others cannot remember where he was on a specific day long ago. Moreover, this prejudice was aggravated, he asserts, when the prosecutor adverted to the absence of supporting witnesses in his argument to the jury.

But whatever may have happened to other possible witnesses, appellant's alibi placed him in the company of his mother, sister, and girl friend for much of the relevant time. All three were available at the time of the trial.⁷ It is not surprising that persons with no reason to recall would forget the events of a particular day two years before. But appellant was arrested on the day the crimes were committed. If his intimates knew then that he was innocent because he was with them at the crucial time, it strains credulity to suppose that they would ever forget that simple and vital fact.⁸ Moreover, the Government's evidence, including five eye-witness identifications and convincing proof connecting appellant with fruits of the crime, completely discredits the alibi. In these circumstances, we think appellant was not materially prejudiced by the delay.⁹

(3) Appellant argues (a) that the eight-count indictment improperly joined unrelated offenses in violation of Rule 8(a) of the Federal Rules of Criminal Procedure, or (b) that in any case the trial judge erred in denying his motion under Rule 14 for severance on account of prejudice.

(a) Under Rule 8(a), two or more offenses may be joined in one indictment if they are

of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

In the case before us, the forgery and uttering counts all state offenses "of the same character." The fraud count, charging that appellant drew on Fleming's checking account...