Gaffney v. United States, 11311.

• Decision Date: 19 August 1980
• Docket Number: No. 11311.,No. 11319.,11311.,11319.
• Citation: 421 A.2d 924
• Parties: Keith E. GAFFNEY, Appellant, v. UNITED STATES, Appellee. Willie C. ENGRAM, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 924

421 A.2d 924

Keith E. GAFFNEY, Appellant, v. UNITED STATES, Appellee.

Willie C. ENGRAM, Appellant, v. UNITED STATES, Appellee.

No. 11311.

No. 11319.

District of Columbia Court of Appeals.

Argued September 22, 1978.

Decided August 19, 1980.¹

Steffen W. Graae, Washington, D. C., appointed by this court, with whom Bruce M. Clarke, Washington, D. C., was on the brief, for appellant Gaffney.

Mady B. Gilson, Public Defender Service, Washington, D. C., for appellant Engram. Silas J. Wasserstrom, Public Defender Service, Washington, D. C., also entered an appearance.

Joel S. Perwin, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty. at the time the case was argued, and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee.

Before KERN, NEBEKER and MACK, Associate Judges.

NEBEKER, Associate Judge:

Both appellants, having been found guilty of various crimes,² seek reversal of their convictions on the grounds that they were denied a speedy trial, that the trial court failed to voir dire the jury concerning newspaper publicity and that the arrest and conviction records of government witnesses were not produced prior to trial. Both appellants also seek vacation of their sentences on the ground that the sentencing judge "was not sufficiently familiar with the facts of the case to be able to render an appropriate sentence." Appellant Gaffney also requests reversal because the trial court improperly restricted his cross-examination of a government witness and vacation of his sentence because he was denied effective assistance of counsel at sentencing. We affirm for the reasons stated below.

Only a brief synopsis of the facts is necessary in view of the nature of the issues on appeal. The appellants, Engram and Gaffney, were allowed entry into the apartment of a Miss Owens by her friend, Mr. McAdory, while she and another friend, Miss Wade, were out getting some wine. When the women returned to the apartment, both Engram and Gaffney robbed at gunpoint Miss Owens and Mr. McAdory. Engram raped Miss Wade and attempted to rape Miss Owens. When Owens resisted, he shot her in the chest. As she crawled towards the telephone, he kicked her in the side resulting in the spraying of blood over the area. Engram ordered Mr. McAdory to get into a closet, and then both he and Gaffney left, taking Miss Wade with them. After an extended drive, the three arrived at another apartment where they were admitted by a woman who seemed to know Gaffney. Engram again raped Miss Wade in this apartment. The three then left and drove to the apartment of Miss Crawford. Miss Crawford knew Engram and let them in. She loaned Miss Wade (who was introduced as Engram's lady) some clothing and they all went for a drive. After returning Miss Crawford to her apartment, Engram and Gaffney drove off with Miss Wade. Gaffney said that he wanted to return to Miss Crawford's apartment, so Engram and Miss Wade got out of the car. Eventually, Engram let Miss Wade go home after threats that she had to meet him the next day. Gaffney returned to Miss Crawford's apartment where he raped and robbed her.

I. SPEEDY TRIAL

The government did not abridge appellants' right to a speedy trial. This holding results from an application of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), wherein the Court rejected two rigid speedy trial tests for "a balancing test, in which the conduct of both the prosecution and the defendant are weighed." Id. at 530, 92 S.Ct. at 2191-92 (footnote omitted). We are "[compelled] to approach speedy trial cases on an ad hoc basis." Id. The Barker Court "[identified] some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right," id., and specified "four such factors: Length of [and] reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. (footnote omitted).

A. The Length of the Delay

Thirty-three months expired between Engram's arrest in July of 1973 and his trial, which began in April of 1976. Gaffney was arrested about one and one-half months after Engram. He was tried jointly with Engram. However, our inquiry does not stop here as we must assess the other three factors of the Barker test.

B. Reasons for the Delay and the Consequential Weighing

The following chronological outline identifies the reasons for the delay:

July 30, 1973 — Engram arrested and, following arraignment, trial was set for November 8, 1973.

September 9, 1973 — Gaffney arrested.

November 5, 1973 — All counsel agreed to a continuance because an anticipated disposition of this case had not occurred. Trial was set for February 21, 1974.

December 21, 1973 — Gaffney indicted and Engram reindicted charging the defendants jointly. Both were arraigned on January 2, 1974. The February 21, 1974, trial date for Engram was retained.

February 19, 1974 — Case was continued because the prosecution and Gaffney were unprepared for the February 21 trial. The court set a February 27 status hearing. (Engram's counsel was absent, being in trial.)

February 27, 1974 — Trial set for May 2, 1974.

April 23, 1974 — Court ordered government to reveal to defense counsel seven days before trial the arrest and conviction records of its witnesses.

May 2, 1974 — Over objection, the prosecution moved for a continuance because it was not prepared for Gaffney's case. Gaffney's counsel requested leave to withdraw because both he and Engram's counsel were from the Public Defender Service and therefore a conflict of interest might arise. The government had not yet complied with the April 23 disclosure order. A status hearing was set for May 8, 1974.

May 8, 1974 — Court appointed new counsel for Gaffney and imposed the sanction of suppression of testimony of witnesses concerning whom the government had not complied with the April 23 order. Trial was set for August 15, 1974.

June 3, 1974 — Prosecution filed a notice of appeal of the suppression order (entered May 22 by a memorandum opinion).

May 14, 1975 — Court of Appeals reversed the trial court's order.

June 3, 1975 — Case reassigned to trial judge.

June 24, 1975 — Court of Appeals denied appellant's petition for rehearing.

July 24, 1975 — Mandate issued in Gaffney case.

January 12, 1976 — Supreme Court denies appellants' petition for certiorari.

January 27, 1976 — Mandate issued in Engram case.

February 18, 1976 — At status hearing, all agreed another status hearing should be set. The court proposed February 26 but set March 14 at the prosecution's request.

February 23, 1976 — Engram files a motion to dismiss for lack of speedy trial.

March 18, 1976 — (March 12 hearing was continued to this date.) Gaffney joins Engram's motion to dismiss for want of speedy trial. Court took speedy trial motion under advisement.

April 26, 1976 — After requests for continuances by Gaffney and the prosecution, trial begins.

The resolution of a speedy trial issue would be easier if a court needed only to total the days attributed to each party and hold for the party with the greater number. Under Barker, however, the task is more complex: the days must be weighed according to the reasons for the delay. Barker noted three points on the spectrum of weights: intentional delay (weighed "heavily"), negligent delay ("[a] more neutral reason"), and unavoidable delay (not weighed). Barker v. Wingo, supra at 531, 92 S.Ct. at 2192.

Appellant Engram argues that the government should be charged with much of the delay. However, certain charges are unwarranted. For example, he asserts that the "issuance of [his] second indictment resulted in a delay of over two months in early 1974." We read the record to indicate otherwise. Although Engram's first trial date was November 8, 1973, all counsel agreed, on November 5, to a continuance. The new date for trial was February 2, 1974, which was retained at the joint indictment and arraignment. The trial date set for Engram alone, therefore, was not altered because Gaffney was joined.

Engram also asserts that the nineteen months of appeal are attributable to the government. See Day v. United States, D.C.App., 390 A.2d 957 (1978).³ While conceivably the government is responsible for eleven months prior to the Court of Appeals decision, we fail to understand why the government's side of the scales should be weighed with the time attributable to appellants' petition for rehearing and petition for certiorari. Contrary to appellants' contentions in their briefs, we do not read Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973), Barker v. Wingo, supra, or United States v. Perry, 353 F.Supp. 1235 (D.D.C.), aff'd without opinion, 159 U.S.App.D.C. 343, 487 F.2d 1214 (1973), to mandate that appellate delay of nineteen months in this case be attributable to the government.

Certain of Engram's charges of time to the government are warranted. For example, the responsibility for the delay resulting from crowded court dockets is ultimately borne by the government. E. g., Strunk v. United States, supra. While much of the delay was attributable to Gaffney's unpreparedness, the consequential delay of Engram's trial is somewhat weighed against the government because the government chose to try the appellants jointly. The responsibility for some decisions to delay is borne by both appellants and the government. For example, in 1974, delay was caused by Gaffney's counsel withdrawing on account of a conflict of interest because both he and Engram's counsel were employed by the Public Defender Service. It was incumbent on one or the other to withdraw at that late date.

In summary, the delay involved in this case falls entirely within the last two points on the Barker analysis spectrum-either a negligent delay or an unavoidable delay. There is no suggestion of intentional government delay. From the government's position, much of the...