Evans v. United States

• Decision Date: 08 May 1968
• Docket Number: No. 20480,20481.,20480
• Parties: Maurice EVANS, Appellant, v. UNITED STATES of America, Appellee. John B. PHILSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

130 US App. DC 114, 397 F.2d 675 (1968)

Maurice EVANS, Appellant, v. UNITED STATES of America, Appellee.

John B. PHILSON, Appellant, v. UNITED STATES of America, Appellee.

Nos. 20480, 20481.

United States Court of Appeals District of Columbia Circuit.

Argued June 14, 1967.

Decided May 8, 1968.

Petition for Rehearing Denied July 3, 1968.

Petition for Rehearing Denied July 17, 1968.

Frederick M. Rowe, Washington, D. C. (appointed by this court) for appellant in No. 20,480.

Gerhard P. Van Arkel, Washington, D. C. (appointed by this court) for appellant in No. 20,481. George Kaufmann, Washington, D. C., also entered an appearance for appellant in No. 20,481.

Geoffrey M. Alprin, Asst. U. S. Atty., with whom David G. Bress, U. S. Atty., Frank Q. Nebeker and Victor W. Caputy, Asst. U. S. Attys., were on the brief for appellee.

Before BAZELON, Chief Judge, and BASTIAN, Senior Circuit Judge, and BURGER, Chief Judge.

Petition for Rehearing En Banc in No. 20,480 Denied July 3, 1968.

Petition for Rehearing En Banc in No. 20,481 Denied July 17, 1968.

BURGER, Circuit Judge:

Appellants were tried together in the District Court on a three-count indictment charging first degree murder, felony murder, and attempted robbery. The jury returned not guilty verdicts on first degree murder but guilty on the other two counts. The jury being unable to agree on punishment, the court sentenced each to life imprisonment.

The evidence on trial indicated that on the evening of May 19, 1965, Appellants, the deceased (Green) and two women left a restaurant together in Green's car, to purchase some liquor; that Appellants and Green left the car; and that a struggle ensued in which Green was shot. One of the women testified that Appellant Evans struck Green and Appellant Philson pinned him from behind; that the gun was in Green's hands when it went off; and that both Appellants went through Green's pockets after he was shot. The other witness testified that she did not see the shooting; she only heard a shot and heard Green say "please don't kill me."

Both Appellants assert a denial of the right to a speedy trial and claim error in allowing the jury to consider the premeditated murder charge. Appellant Evans asserts error in not ruling to exclude impeachment by prior convictions, Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965).

(1)

The constitutional right to a speedy trial "is necessarily relative. It is consistent with delays and depends upon circumstances." Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L. Ed. 950 (1905); see United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). This Court has recently noted that there is "no touchstone of time" to determine a violation of this right. Hedgepeth v. United States, 124 U.S.App.D.C. 291, 294, 364 F.2d 684, 687 (1966). We must, therefore, look to the circumstances surrounding this delay.

Evans was arrested on May 20 and Philson on May 22; on July 26, the Grand Jury indicted Appellants; their trial was set for October 25, 1965; on October 8, Appellant Evans requested a mental examination and was sent to St. Elizabeths Hospital; on December 17, he was reported competent to stand trial and trial was set for March 14; on March 11, a continuance until April 18 was granted because the Assistant U. S. Attorney was engaged in other cases; the case was later continued until May 19 because too many cases were scheduled for April 18; another continuance was granted, until June 22, "per assignment office"; a final continuance until July 18, 1966, resulted when the Government was not ready on June 22 and asked to carry the case to the next day but it was instead set down for July 18 at the request of Evans' counsel. In all, some fourteen months elapsed from arrest until trial during which time both Appellants were held without bail.

In evaluating the facts of the present delay, we employ the test of Smith v. United States, 118 U.S.App. D.C. 38, 41, 331 F.2d 784, 787 (1964) (en banc): "the balance between the rights of public justice and those of the accused has been upset against the Government only where the delay has been arbitrary, purposeful, oppressive or vexatious." Perhaps some delays are so long that a mere showing of that delay will demonstrate a violation of the Constitution.¹ But this is not such a case. The first two months' delay here was between the offense and the indictment. The next three months' delay was until the overloaded criminal calendar could accommodate the case. Then a five-month delay resulted from Evans' request for a mental examination and the necessity to again place the case on the calendar. Of the four subsequent delays, two were due to the assignment office's having no judges available to try the case, one was because the prosecutor was engaged in other cases and the last was attributable to both the prosecutor and Evans' attorney.

The recitation of these facts demonstrates that, rather than being purposeful, the delay was an unfortunate consequence of the crowded criminal courts,² in a period when there is a great increase in criminal indictments and a marked drop in the dispositions by pleas of guilty. But the remedy does not lie in voiding convictions absent a showing of prejudice apart from the fact of detention.

(2)

Appellants urge that the submission to the jury of the premeditated murder count was reversible error, even though the jury acquitted on this count. Their claim is that there was insufficient evidence to submit this charge to the jury, and that the jury may have been induced to believe there was enough evidence for this charge and thereby encouraged to "compromise" on felony murder.

Even were we to accept Appellants' invitation to follow the decision of the Second Circuit in United States ex rel. Hentenyi v. Wilkins, 348 F.2d 844 (2d Cir. 1965), cert. denied, 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667 (1966), we would not find prejudice here. Hentenyi held that submission of an unwarranted first degree murder charge³ was prejudicial when the jury returned a verdict of guilty on a second degree murder charge. But Hentenyi involved a lesser-included offense, and the court there relied on the likelihood that the jury compromised to reach its verdict.⁴ The present case involves a felony murder charge, which is a separate charge, not a lesser-included offense. The court instructed the jury — more favorably than the law required — that it was to consider the felony murder charge first and if they found Appellants guilty, not to reach the first degree murder charge but to acquit. The Government failed to object; and the jury found Appellants guilty of felony murder but acquitted as to the first degree murder which suggests the jury approached its "task responsibly * * * to sort out discrete issues given to them * * *." Spencer v. State of Texas, 385 U.S. 554, 565, 87 S.Ct. 648, 654, 17 L.Ed.2d 606 (1967).

(3)

The third issue relates only to Appellant Evans. The Luck issue having been raised, the District Judge ruled that Evans would be subject to impeachment by the introduction of his prior convictions for petty larceny and narcotics offenses. It is urged that the trial judge should have exercised the discretion vested in him under Luck v. United States, supra to exclude these convictions. Subsequent to the trial in the instant case, we had occasion to review some of the relevant factors for the judge to weigh in exercising this discretion, in light of experience under Luck. See Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (April 22, 1968). One of these factors is whether the conduct underlying the conviction has a "bearing on veracity." In Gordon we noted that

acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man\'s honesty and integrity. Acts of violence on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty and veracity.

Id. at 347, 383 F.2d at 940 (footnote omitted). The larceny conviction would plainly fit the Gordon guidelines as relating to veracity. The relationship of the narcotics offense to veracity is somewhat less clear; however, we need not resolve that issue. It is dispositive of the present claim that, in order to demonstrate on appeal an abuse of discretion under Luck, it must be shown that the Appellant met his burden of demonstrating some affirmative reasons why the circumstances of his case were such as to make his testimony particularly necessary.

In Hood v. United States, 125 U.S.App. D.C. 16, 18, 365 F.2d 949, 951 (1966), Judge McGowan undertook to emphasize the defendant's burden under Luck, pointing out that there was no abuse of discretion where

no representation was made to the trial court as to what Hood\'s testimony would be, or why it was important that, at least in this case, the court\'s discretion should be exercised to prohibit introduction of the prior conviction.

Defense counsel here tendered only one argument to meet this burden⁵ — that there were contradictions and inconsistencies in the Government's case⁶ but pointed to nothing in what the accused might say that would bear on this. We are not persuaded that inconsistencies relating, as these do, to essentially collateral matters demonstrate any special need for the defendant's testimony free from impeachment. Were the issue as presented by the dissent we would be inclined to agree with that view; however, the factors which the dissent relies on are those which Judge Bazelon spells out, not those presented by counsel. The real issue is whether Appellant met the burden of showing a special need for the jury to hear his version of the events. We are unwilling to find an abuse of discretion on the basis of factors not called to...