Crowder v. United States

• Decision Date: 17 February 1978
• Docket Number: No. 10039.,10039.
• Citation: 383 A.2d 336
• Parties: Gregory R. CROWDER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

383 A.2d 336

Gregory R. CROWDER, Appellant, v. UNITED STATES, Appellee.

No. 10039.

District of Columbia Court of Appeals.

Argued December 14, 1977.

Decided February 17, 1978.

Marsha E. Swiss, Washington, D. C., appointed by this court, for appellant.

Ann P. Gailis, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Peter E. George, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KERN and MACK, Associate Judges, and PAIR, Associate Judge, Retired.

KERN, Associate Judge:

After a jury trial, appellant was found guilty of second-degree burglary, D.C.Code 1973, § 22-1801(b), and grand larceny, D.C. Code 1973, § 22-2201. On appeal, appellant contends that two rulings of the trial court were erroneous: (1) the trial court's denial of his motion to dismiss the indictment on speedy trial grounds, and (2) the trial court's refusal to declare a mistrial, on appellant's motion, when the twelfth juror polled dissented from the verdict of "guilty" to the charge of grand larceny. Our review of the record persuades us that appellant's Sixth Amendment rights were not infringed; however, we conclude that, on the particular facts of this case, the trial court's refusal to declare a mistrial constituted an abuse of its discretion which warrants reversal of appellant's conviction for grand larceny.

Evidence introduced by the government indicates that on the morning of April 10, 1974, Calvin LeCompte left his apartment at 305 T Street, N.W., between nine and ten o'clock. LeCompte, a teacher, gave music lessons in his basement studio which was outfitted with an expensive array of audio equipment. When LeCompte left, he securely locked the apartment doors. Shortly before noon, James Edmundson, age 14, was walking along T Street near Le-Compte's apartment when he saw appellant standing on LeCompte's porch. Appellant called out to Edmundson, and, as Edmundson approached, asked him if he "[wanted] to get a hustle." Edmundson knew appellant did not reside at 305 T Street and that he was proposing they enter the apartment and steal from the occupant.¹ Edmundson saw that the apartment door was already open and that some of LeCompte's property had been moved about inside.² Edmundson then followed appellant to the basement studio and was preparing to remove a typewriter when they were apprehended by the police.³ As a policeman attempted to handcuff appellant, he broke free and managed to escape by jumping over a fence, the handcuffs dangling from one wrist. While in custody at the police station following his arrest, Edmundson named appellant as the person who had been with him in LeCompte's apartment. At trial, Edmundson admitted his participation in the burglary and recounted his post arrest comments which implicated appellant. One of the arresting officers also identified appellant at trial as the youth who escaped after his apprehension in LeCompte's basement.⁴

Following the denial of his motion for a judgment of acquittal, appellant testified that on the day of the crime he was working in a pool hall less than four blocks from LeCompte's apartment. Appellant denied participating in the burglary, taking any of LeCompte's property, or being apprehended by the police. During cross-examination, appellant testified to the effect that he (1) visited LeCompte's apartment on other occasions, (2) knew LeCompte owned valuable audio equipment, and (3) was acquainted with James Edmundson.

When the jury returned to the courtroom to deliver its verdict, the foreman announced that unanimous verdicts of guilty had been reached on the second-degree burglary and grand larceny counts. During a poll of the jury on the grand larceny count, the twelfth juror's response indicated a non-unanimous verdict. The trial court immediately instructed the jury to resume its deliberations on the grand larceny count.⁵ The jury then retired and, forty minutes later, returned with a unanimous verdict of guilty. The jury was then polled without incident.

RIGHT TO A SPEEDY TRIAL

As appellant states, a speedy trial claim based upon a delay of more than one year has prima facie merit. United States v. Perkins, D.C.App., 374 A.2d 882, 884 (1977); Branch v. United States, D.C.App., 372 A.2d 998, 1000 (1977). A heavy burden then shifts to the government to justify the delay. Here, 51 weeks elapsed from the time appellant was taken into custody until the initiation of his trial;⁶ consequently, no prima facie merit attaches to his claim of a denial of his right to a speedy trial and he bears the burden of demonstrating that prejudice accrued due to the delay.⁷ As Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) indicates, the length of the delay is to some extent a triggering mechanism. Until there is delay sufficient to be at least presumptively prejudicial or unless actual prejudice is shown, it is unnecessary to consider the other factors outlined in Barker v. Wingo, supra at 530, 92 S.Ct. 2182, as the linchpins of a speedy trial analysis. United States v. Bolden, D.C.App., 381 A.2d 624 (1977).

Appellant claims the delay in this case resulted in the loss of his alibi witness, Milton Smith, the operator of the pool hall in which appellant contends he was working at the time the offense occurred. Appellant further asserts that due to the delay, the charges against James Edmundson were disposed of, and, as a result, Edmundson lost his privilege against self incrimination and thus became available as a witness to strengthen the government's case.

Appellant's contention that his defense was impaired because the delay permitted the government to obtain Edmundson's testimony is not meritorious. There is no indication that the prosecution made any attempt to delay appellant's trial or to expedite the juvenile court proceedings against Edmundson. Moreover, we note that the bulk of the delay complained of in Barker v. Wingo, supra 407 U.S. at 516, 92 S.Ct. 2182, was generated by government attempts to first obtain a conviction of Barker's companion in crime. This procedure was motivated by the prosecution's belief that "Barker could not be convicted unless . . [his companion] testified against him." Barker v. Wingo, supra at 516, 92 S.Ct. at 2185. This prosecutorial strategy was not outlawed by the Supreme Court:

Perhaps some delay would have been permissible under ordinary circumstances, so that . . [Barker's companion] could be utilized as a witness [at Barker's trial]. Barker v. Wingo, supra at 534, 92 S.Ct. at 2194, emphasis added.]

Moreover, any claim of "prejudice" must be assessed in light of the interests of defendants which the speedy trial right was designed to protect; viz., impairment of the accused's defense due to the death, disappearance, or loss of memory of defense witnesses. Barker v. Wingo supra at 532, 92 S.Ct. 2182. In this case, the delay, at least as far as Edmundson was concerned, did not impair appellant's defense. Edmundson was not a defense witness who died, disappeared or became unable to recall accurately events of the distant past. Here, the delay resulted in no impairment of appellant's defense; instead, the prosecution's case was strengthened. See Barker v. Wingo, supra at 532, 92 S.Ct. 2182.

Appellant's other claim of prejudice concerns the purported loss of his alibi witness, Milton Smith, the operator of the pool hall where appellant testified he was employed at the time of the offense. Although impairment of an accused's defense is to be considered the most serious form of prejudice in a speedy trial analysis, Barker v. Wingo, supra at 532, 92 S.Ct. 2182, the record indicates that appellant's inability to secure the attendance of his alibi witness was caused not by the length of the delay, but by his counsel's refusal to invoke court processes to insure Smith's presence at trial.⁸

Appellant's case was scheduled for trial on six separate occasions between December 1974 and May 1975. The record clearly indicates that the alibi witness was never present during the trial of this offense in May 1975. The record also shows that the alibi witness was absent on at least three of the other five scheduled trial dates.⁹ Although appellant's counsel was aware that securing the alibi witness' presence at trial could prove difficult, he never sought a continuance nor attempted to invoke court processes to insure Smith's presence. Moreover, when the trial judge issued sua sponte a bench warrant for the alibi witness, it was quashed at the request of appellant's counsel. On these facts, appellant has failed to demonstrate that the delays in this case necessarily resulted in the impairment of his defense. The record suggests that defense counsel elected, as a tactical matter, not to take advantage of available court processes to secure the attendance of the alibi witness. Having lost his gamble that his only alibi witness could be induced to appear at trial without compulsion, appellant cannot now characterize the results of this decision as "prejudice" which warrants the reversal of his convictions on speedy trial grounds.¹⁰

THE JURY POLL

Super.Ct.Cr.R. 31(d) provides: When a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

The jury poll is the primary device for uncovering the doubt or confusion of individual jurors. Johnson v. United States, D.C.App., 360 A.2d 502, 505 (1976); Williams v. United States, 136 U.S.App.D.C. 158, 164, 419 F.2d 740, 746 (1969) (en banc). Its purpose is to determine with certainty that every juror approves of the verdict as returned, and that no juror has been coerced or induced to agree to a verdict with which he dissents. Solar v. United States, D.C.Mun.App., 86 A.2d 538, 540 (1952), quoting ...