Bond v. United States

• Decision Date: 03 October 1967
• Docket Number: No. 4136.,No. 4141.,No. 4138.,No. 4139.,No. 4137.,No. 4140.,4136.,4137.,4138.,4139.,4140.,4141.
• Citation: 233 A.2d 506
• Parties: Vernon J. BOND, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 506

233 A.2d 506

Vernon J. BOND, Jr., Appellant, v. UNITED STATES, Appellee.

No. 4136.

No. 4137.

No. 4138.

No. 4139.

No. 4140.

No. 4141.

District of Columbia Court of Appeals.

Argued April 17, 1967.

Decided October 3, 1967.

COPYRIGHT MATERIAL OMITTED

Edward P. Taptich, Washington, D. C. (appointed by this court) for appellant.

James W. Knapp, Atty. Dept. of Justice, with whom David G. Bress, U. S. Atty., Frank Q. Nebeker, Earl J. Silbert and Charles L. Owen, Asst. U. S. Attys., were on the brief, for appellee.

Before HOOD, Chief Judge, MYERS, Associate Judge, and CAYTON (Chief Judge, Retired).

MYERS, Associate Judge:

On January 14, 1965, following a trial without a jury, appellant was found guilty of unlawful entry¹ and petit larceny² from the Piedmont Airlines' office. A month later in another non-jury trial, he was convicted of the same offenses involving the Trans World Airlines. We are asked to review his convictions in these cases, consolidated here for appeal.

The evidence as developed at the Piedmont trial reflects that the company's offices consist of a first-floor suite of three rooms: a front room for customer information and sales; the sales manager's office in the rear; and a middle room or utility office in which a safe is kept. The public has the right of access only to the front room.³ A Piedmont employee testified that on March 23, 1964, about 11 a. m., he heard a noise in the manager's office and went to investigate. As he passed through the middle room, he noticed that the safe was open. In' the manager's office, he found a stranger attempting to leave by the rear door. When the employee tried to question him, he ran away. A check of the safe revealed that $79 was missing from the cash box. From photographs furnished by the investigating officers, the employee identified appellant as the intruder. On June 29, 1964, pursuant to a warrant, Bond was arrested and taken by squad car to the precinct. The arresting officer testified that en route there appellant admitted the thefts from the Piedmont office, as well as two similar thefts from the nearby TWA office.

At the second trial, on February 18-19, 1965, a TWA employee testified that about 5:30 p. m. on April 6, 1964, she locked a petty cash box in a cabinet in the office in which she worked and left the keys on her desk while she went into an adjoining room. When she returned about fifteen minutes later, she found the cabinet door ajar and her keys as well as the cash box missing. The cash box found discarded in a basement lavatory with an uncertain amount of money⁴ missing, bore latent fingerprints subsequently identified as those of appellant.

The same employee further testified that by May 4, 1964, all locks had been changed. On that date, before leaving for the day, she locked the cabinet where the cash box was kept and took her new keys home. Another employee testified that he had worked late that evening and about 8 p. m. found a stranger in the closed office who, upon being questioned, said that he was a TWA employee and worked "for the man in the back room." He could not, however, give the name of his supposed employer and was vague as to the nature of his duties. While being further questioned, he peremptorily left the scene. The following morning the cabinet was found to have been forced open and the cash box removed. Approximately $230 was missing. Bond was later identified as the man found in the office. As in the Piedmont trial, the arresting officer testified as to appellant's confession made at the time of his arrest on June 29, 1964.

At both trials, appellant denied his guilt. He admitted, however, that one evening he did visit the TWA building, explaining that he was there to see a friend, whom he did not further identify.

Against this factual background, we consider appellant's various allegations of error.

I. Absence of Special Findings

As to the January trial, appellant contends it was reversible error for the trial judge to deny his request for special findings.

Rule 14 II(b) of the criminal rules of the trial court, which is virtually identical with Rule 23(c) of the Federal Rules of Criminal Procedure, provides that "[i]n a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially." [Emphasis supplied.] Cases construing the Federal rule have held that a request made pursuant to this rule is "the proper procedure by which a defendant may preserve a question of law for purposes of appeal." Cesario v. United States, 200 F.2d 232, 233 (1st Cir. 1952), and is "[o]rdinarily, the remedy to rectify a misconception regarding the significance of a particular fact." Wilson v. United States, 250 F.2d 312, 325 (9th Cir. 1958). Without a timely request for special findings, however, a general finding is sufficient. United States v. Devenere, 332 F.2d 160, 162 (2d Cir. 1964).⁵ We think that these cases present a correct interpretation of Rule 14 II(b) of the trial court as well.

The cited cases and the express wording of the rule establish that a defendant is entitled to special findings as a matter of right and not by judicial discretion, but it is a right which must be claimed. If not timely exercised, it must be construed as having been waived and its denial does not in itself entitle a defendant to a new trial. To hold otherwise would enable a defendant to secure a second trial without regard to the merit of any claim of error.

In the instant case, appellant was represented from the beginning by competent counsel. At trial no request was made for special findings. Not until eighteen months after trial was such a request made.⁶ Under the circumstances, we hold it was not error for the trial judge to deny appellant's request for special findings.

II. Denial of Speedy Trial

Appellant also contends he was denied a speedy trial and thereby deprived of due process of law. He does not especially complain that the period between the filing of the informations and the trials was unreasonable, but rather that the total elapsed time between offenses and the trials violated the dictates of the Sixth Amendment.

The facts and circumstances of each case determine the applicability of the Sixth Amendment. Taylor v. United States, 99 U.S.App.D.C. 183, 238 F.2d 259 (1956). These facts and circumstances must be viewed in the light of five factors: (1) time involved; (2) who caused the delay; (3) the purposeful aspect of the delay; (4) prejudice to the defendant; and (5) waiver by the defendant.⁷

1. Time Involved

For the purpose of determining whether the Sixth Amendment guaranty of a speedy trial has been violated, most circuits look only to the time elapsed after the formal indictment or information.⁸ In this jurisdiction, however, the entire period between offense and trial may be considered. Mann v. United States, 113 U.S.App.D.C. 27, 29-30 n. 4, 304 F.2d 394, 396-397 n. 4, cert. denied, 371 U.S. 896, 83 S.Ct. 194, 9 L.Ed.2d 127 (1962). Cf. Hanrahan v. United States, 121 U.S.App.D.C. 134, 348 F. 2d 363 (1965).⁹ Thus, in the instant case, speedy trial contentions could possibly be assessed from the perspective of the dates on which the offenses were committed. This was done in Hedgepeth v. United States (Hedgepeth II), 125 U.S.App.D.C. 19, 365 F.2d 952 (1966); Hedgepeth v. United States (Hedgepeth I), 124 U.S.App.D.C. 291, 364 F.2d 684 (1966).¹⁰ But where the government knows that a crime has been committed but not the identity of the offender, time cannot be reasonably computed from a date earlier than that on which the government first had probable cause for arrest.¹¹ Here appellant was not identified and connected with the Piedmont and first TWA thefts until April 18, 1964. The maximum periods we may therefore consider are, as to the Piedmont offenses, nine months between identification and trial, and, as to the TWA offense of April 6, 1964, ten months.¹²

2. Who Caused the Delay

Except in extreme circumstances, delay caused by the defendant is not to be computed in determining whether a defendant has been denied a speedy trial. King v. United States, 105 U.S.App.D.C. 193, 265 F. 2d 567 (en banc,) cert. denied, 359 U.S. 998, 79 S.Ct. 1124, 3 L.Ed.2d 986 (1959). Therefore, in our consideration, we compute only the delay which may reasonably be charged against the government.

Appellant first became a suspect on April 18, 1964; he was arrested June 29, 1964. The two and one-half month delay between identification and arrest, caused by errors and confusion in warrants, must be charged against the government. Another three weeks passed before appellant appeared in court and was bound over to the grand jury. This also can be charged to the government. On October 12, 1964, the grand jury returned an ignoramus. The present informations were filed October 22, 1964.

Time consumed in grand jury proceedings is not chargeable against the government, since this is regarded as the routine, normal delay inherent in judicial procedures. United States v. Kennedy, D. C.App., 220 A.2d 322, 325 (1966). Cf. King v. United States, supra. The ten days between the return of the ignoramus and the filing of the informations, although not an unreasonable time, must, however, be assessed against the government. Thus, of the nine or ten months between identification and trial, only three and one-half months (the period between identification and the filing of the informations) may be directly attributable to the government.

3. The Purposeful Aspect of Delay

To be chargeable against the government, delay need not be due to bad faith or chicanery. United States v. Parrott, 248 F.Supp. 196, 203 (D.D.C.1965). See also Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). But it must be shown that the government has made "a deliberate choice for a proposed advantage, which caused as much oppressive delay and damage to the defendant as it would have...