Campbell v. United States

• Decision Date: 29 August 1978
• Docket Number: No. 11160.,11160.
• Citation: 391 A.2d 283
• Parties: Louis E. CAMPBELL, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 283

391 A.2d 283

Louis E. CAMPBELL, Appellant, v. UNITED STATES, Appellee.

No. 11160.

District of Columbia Court of Appeals.

Argued September 21, 1977.

Decided August 29, 1978.

Kenneth R. West, Chevy Chase, Md., for appellant.

Thomas G. Corcoran, Jr., Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and William D. Pease, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KELLY, YEAGLEY and HARRIS, Associate Judges.

HARRIS, Associate Judge:

Appellant was convicted by a jury of second-degree murder while armed. D.C. Code 1973, §§ 22-2403, -3202. He contends (1) that the 17-month delay between his arrest and trial denied him his Sixth Amendment right to a speedy trial, and (2) that it was error to admit certain testimony into evidence under the state of mind exception to the rule against hearsay. While we reject the speedy trial contention, we agree with appellant on certain aspects of the evidentiary issue and reverse.

I

On the afternoon of January 24, 1975, appellant was discovered in the apartment of the decedent, Diane Eads. He was leaning over the body of Eads, who had been fatally shot. The decedent lay on her back on the bed with her feet on the floor. A telephone with a bloody fingerprint was on the table by her bed. The telephone cord extended from the table, over her left foot and under her right foot. A .38 caliber Smith & Wesson revolver with one empty and five live rounds and a holster, were on the bed.

The government established that the cause of death was a bullet wound of the wrist and chest. The entry wound and the path of the bullet indicated that the decedent had been shot at close range while she was either standing or sitting erect.

A written statement was obtained from appellant that day. In it, he said that on January 21 he had returned home unexpectedly to the apartment he and the decedent were sharing to find her with a former boyfriend, Percell West. Appellant and the decedent previously had quarrelled over her relationship with West, as well as over her relationships with other men. On the day of the shooting appellant's statement continued, appellant informed the decedent that he was leaving her. An argument ensued and the decedent attempted to stop the appellant from getting dressed to go to his job as a Special Police Officer (he was qualified as an expert in the use of his revolver). Appellant stated that he had just finished loading his pistol when the decedent started hitting him, and that her blows accidentally caused the gun to discharge. When the gun fired, the decedent fell on the bed. Appellant called an ambulance; he was found crying over her body when the police arrived.

The government's firearms expert indicated that the initial entry wound on the back of the decedent's hand was not a contact wound and had been made from a distance of approximately three inches. He testified that firing the weapon required a three and one-half pound pull on the trigger if the revolver was cocked, and over eight pounds of pull if it was not. The weapon could not be loaded while cocked. Appellant testified that he had not cocked the weapon on the day in question. Asked whether the weapon would fire if one person struck it while another held it with the hammer down, the government's expert answered that it could not be done with appellant's revolver.

II

Appellant was arrested on the day of the shooting, and was released on bond twelve days later. He remained at liberty throughout the proceedings which culminated in his conviction. Trial was set for July 16 but was continued to August 13 on an unopposed government motion. The original indictment charged appellant with both voluntary and involuntary manslaughter. On August 13, appellant's motion to dismiss the indictment for duplicity was granted, and the government noted an appeal. On August 26 we issued our decision in United States v. Bradford, D.C.App., 344 A.2d 208 (1975), adversely deciding the same issue presented by the government's appeal in appellant's case. The government, however, did not move to dismiss its appeal until October 8.

Five months later, on March 19, 1976, appellant was reindicted and charged with second-degree murder while armed. New defense counsel was appointed. The case was set for May 4 for a status hearing. On May 14, appellant moved to dismiss for lack of a speedy trial; his motion was denied. On June 23, 1976, 17 months after his arrest, appellant was convicted.

While the right to a speedy trial is a fundamental right guaranteed by the Sixth and Fourteenth Amendments, Klopfer v. North Carolina, 386 U.S. 213, 222-23, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), a showing of more than mere delay is necessary to support a finding of constitutional violation. Barker v. Wingo, 407 U.S. 514, 530-31, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Barker, the Supreme Court adopted a flexible balancing approach and identified the four principal factors which are to be assessed in analyzing a speedy trial claim: (1) the length of the delay; (2) the reasons for the delay; (3) appellant's assertion of his right; and (4) prejudice to the appellant. Barker v. Wingo, supra, at 530, 92 S.Ct. 2182; accord, United States v. Calhoun, D.C.App., 363 A.2d 277, 278-79 (1976).

A. Length and Reasons for the Delay

The time period in the instant case was 17 months. While we have stated that a delay of a year or more between arrest and trial is sufficient to give prima facie merit to a claimed denial of the speedy trial right, see Branch v. United States, D.C. App., 372 A.2d 998, 1000 (1977), the delay still must be evaluated in light of the other factors enunciated in Barker. Barker v. Wingo, supra, 407 U.S. at 533, 92 S.Ct. 2182; see, e. g., Rink v. United States, D.C.App., 388 A.2d 52, 58 n. 11 (1978); Bowman v. United States, D.C.App., 385 A.2d 28, 30 (1978); Strickland v. United States, D.C. App., 389 A.2d 1325, 1333-1334 (1978) (HARRIS, J., separate opinion).

We note first that the delay from July 16 to August 13, 1975, resulted from a continuance sought by the government which was unopposed by appellant. Appellant's acquiescence in this delay results in minimal weight being accorded to that period. Reed v. United States, D.C.App., 383 A.2d 316, 319 (1978). The remaining 16 months resulted from the following factors: administrative delay, the taking of an interlocutory appeal by the government, and the development of expert ballistics testimony. While this entire 16-month period is chargeable to the government, it primarily constitutes "neutral" rather than deliberate delay and is to be weighed less heavily against the government. See Rink v. United States, supra, at 58; United States v. Perkins, D.C.App., 374 A.2d 882, 884 (1977).

We do note that the five months which elapsed between the dismissal of the government's appeal and appellant's reindictment appears to have been somewhat excessive, but we are not persuaded that it constituted an unreasonable delay. The government contends that much of this time was spent in obtaining and developing ballistics testimony. Since the ballistics evidence, together with the hearsay testimony which is discussed below, constituted the crux of the government's case, we cannot say that the government devoted an unreasonable amount of time to the accumulation of this evidence. Thus, we next examine two other factors: appellant's assertion of his right and any prejudice which he may have suffered as a result of the delay.

B. Assertion of the Right

Appellant did not assert his right to a speedy trial until May 14, 1976, almost 16 months after his arrest. Since such assertions usually are accorded "strong evidentiary weight in determining whether the defendant is being deprived of the right", Barker v. Wingo, supra, 407 U.S. at 531-32, 92 S.Ct. at 2192, appellant's long silence greatly dilutes the significance which we attribute to his eventual assertion of the right to a speedy trial.

C. Prejudice to the Appellant

The final factor which we must consider is whether appellant was prejudiced by the delay in this case. Prejudice must be measured in light of the interests which the Sixth Amendment is intended to protect. See Barker v. Wingo, supra, at 532, 92 S.Ct. 2182. These interests are: (1) to prevent oppressive pretrial incarceration; (2) to minimize the anxiety and concern experienced by the accused; and (3) to limit the possibility that the accused's defense will be impaired.

In the instant case, appellant was incarcerated for less than two weeks following his arrest and was free on bond for the pendency of the entire proceedings. While it may well be that appellant suffered some anxiety and impairment of memory as a result of the 17-month period between his arrest and trial, we could not say that this prejudice was sufficiently serious, when considered in the overall context of this case, to warrant dismissal of the serious charges against appellant. See United States v. Jones, 173 U.S.App.D.C. 280, 297-98, 524 F.2d 834, 851-52 (1975). In particular, we note that the delay was not due to any bad faith on the government's part. We affirm the trial court's denial of appellant's motion to dismiss for lack of speedy trial.

III

Appellant further assigns as error the introduction, over objection, of certain testimony which was accepted under the state of mind exception to the hearsay rule. The testimony consisted primarily of statements made by the decedent to friends and members of her family indicating that she was afraid of the appellant, that appellant had hit her and threatened her — once with a gun — and that appellant was suspicious and jealous of her relationships with other men. Several witnesses testified that they had seen the decedent with bruises on her body and that she had said that those bruises had been caused by appellant.

The state of mind exception to the hearsay rule allows the admission of...