Glass v. United States

• Decision Date: 16 November 1978
• Docket Number: No. 11167.,No. 11352.,No. 12515.,11167.,11352.,12515.
• Parties: Brenda Sue GLASS, Appellant, v. UNITED STATES, Appellee. Louis E. DAVIS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

395 A.2d 796

Brenda Sue GLASS, Appellant, v. UNITED STATES, Appellee. Louis E. DAVIS, Appellant, v. UNITED STATES, Appellee.

No. 11167.

No. 11352.

No. 12515.

District of Columbia Court of Appeals.

Argued February 9, 1978.

Decided November 16, 1978.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Wallace E. Shipp, Jr., Washington, D. C., for appellant Glass; Daniel H. Brown, Washington, D. C., on brief, for appellant.

Harry B. Allen, Oxon Hill, Md., for appellant Davis.

Cheryl M. Long, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Michael W. Farrell and Harry R. Benner, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before KELLY, GALLAGHER and NEBEKER, Judges.

GALLAGHER, Associate Judge:

Following a jury trial, appellants Brenda Glass and Louis Davis were convicted of armed robbery (D.C.Code 1973, §§ 22-3202, -2901). On appeal, both appellants raise four identical claims of error: (1) they were denied their rights to a speedy trial; and (2) the trial court erred in (a) denying their motions to suppress certain tangible evidence, seized in violation of their Fourth Amendment rights; (b) denying their motions to suppress certain identification testimony, allegedly resulting from an impermissibly suggestive pretrial confrontation, and (c) denying their motions for judgments of acquittal. Appellant Davis argues separately that: (1) the trial court committed error with respect to his motions for a new trial; and (2) his impeachment with prior convictions by his codefendant's counsel constituted reversible error.¹

This trial and appeal arose out of an incident occurring on February 13, 1975. Sometime between 4:30 and 5 a. m., Danny Monroe, the night clerk at the Parkland Tourist Home in Anacostia, responded to the doorbell. He admitted a white woman (later identified as appellant Brenda Glass) and a black man (later identified as Emanuel Durant).² Believing the couple desired to rent a room, Monroe resumed his place behind the registration desk. Durant pulled a gun on Monroe, announced that he was being held up, and told him to push the buzzer to open the front door. Monroe replied that there was no such buzzer and consequently one of the two entrants opened the door for a third cohort, a white man (later identified as Danny Glass, the brother of appellant Brenda Glass).³ Danny Glass ordered Monroe to take off all of his clothes and then bound his hands and feet with his clothes. After the three fled, and Monroe was able to free himself, he discovered eleven dollars and a set of keys had been taken from one of his pockets. Also, a travel clock was missing from the switchboard.

At about 5 a. m. the same morning, Officers Allen White and Charles Holly saw a car run through a red light on Martin Luther King Avenue, at a location that is about. five to ten blocks from the scene of the robbery. The car was eventually stopped about two or three blocks from the light and Officer Holly exited the police cruiser to speak to the driver, appellant Louis Davis. Meanwhile, Officer White heard a flash lookout for three robbery suspects. The descriptions of the three seemed to him to fit three of the four occupants in the car and Officer White called for a back-up unit of officers who took the four occupants of the car into custody and drove them back to the scene of the crime. When shown to Monroe at the tourist home, he identified three of the four as the robbers. Those three were Brenda Glass, Danny Glass and Emanuel Durant. Subsequently, Brenda Glass and Louis Davis were indicted jointly on identical counts of armed robbery (D.C.Code 1973, §§ 22-3202, -2901), robbery (D.C.Code 1973, § 22-2901), and assault with a dangerous weapon (D.C.Code 1973, § 22-502).⁴

I

Appellants Glass and Davis seek reversal of their convictions on the ground that their constitutional rights to a speedy trial were violated by a thirteen-month delay between arrest and trial.⁵ Although there is presented a substantial issue, we disagree.

Glass and Davis were arrested on February 13, 1975, and indicted on March 19, 1975. At that time they were arraigned and the trial date was set for June 20. On April 30, however, at a status hearing the trial date was continued until August 13 because Ms. Glass anticipated being hospitalized for her pregnancy at the earlier June 20 date. On August 6 another status hearing was held and the date for trial continued until October 14 — the reason for this continuance not being apparent from the record. At a status hearing on September 18, the trial date was again changed — to November 6 — because the trial judge was scheduled to be away on October 14. On November 6 the prosecutor was unavailable to go to trial, since he was busy with another case and the court continued the trial date to December 8. On December 8 the court was occupied with another trial and continued this case for trial until January 15, 1976. On January 12 the date for trial was changed to January 16, without explanation. On January 16, 1976, the government was not prepared for trial and consequently the trial court dismissed, without prejudice, the indictments for want of prosecution. On January 21 identical indictments were filed against appellants. On February 17 only appellant Glass filed a motion to dismiss the indictment on speedy trial grounds. The trial court denied the motion and this case went to trial on March 12, 1976.

The burden of ensuring that criminal cases are promptly brought to trial is on the courts and the prosecution. Barker v. Wingo, 407 U.S. 514, 529, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Branch v. United States, D.C.App., 372 A.2d 998, 999-1000 (1977) (hereinafter cited as Branch). In Barker v. Wingo, supra, the Supreme Court set forth a four-pronged balancing test to determine whether the courts and prosecution have satisfactorily discharged that burden or, instead, denied an accused his Sixth Amendment right to a speedy trial. The four factors to be balanced are: (1) the length of the delay; (2) the reasons for the delay; (3) the assertion of the right by the defense; and (4) the prejudice to the accused. We consider these factors, seriatim, as they apply to each appellant.

Length of the Delay

Since there was a delay of over one year in this case — about thirteen months — between arrest and trial, both of appellants' claims have prima facie merit. Crowder v. United States, D.C.App., 383 A.2d 336, 338-39 (1978); United States v. Perkins, D.C.App., 374 A.2d 882, 884 (1977). Consequently, "[a] heavy burden then shifts to the government to justify the delay." Crowder, supra at 339; Branch, supra at 1000. Furthermore, as the Supreme Court noted in Barker v. Wingo, supra 407 U.S. at 531, 92 S.Ct. at 2192, "the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Thus, "the longer the delay and the less serious the offense, the heavier the government's burden will be." Branch, supra at 1000; United States v. Holt, 145 U.S.App.D.C. 185, 186, 448 F.2d 1108, cert. denied, 404 U.S. 942, 92 S.Ct. 292, 30 L.Ed.2d 257 (1971).⁶

Here, the prosecution is responsible for the delay between November 6, 1975 and December 8, 1975, because the trial was continued due to the prosecutor's unavailability. Moreover, the prosecution concedes that it is responsible for the delay between January 15, 1976 and March 12, 1976 as a result of its not being ready to proceed to trial. Thus, this amounts to a delay of about thirteen weeks, or a little over three months. The prosecution is also chargeable with the "neutral" delay resulting from court congestion and other institutional impediments, United States v. Perkins, supra at 883, but this is not "given as much weight as deliberate prosecutorial delay." Reed v. United States, D.C.App., 383 A.2d 316, 319 (1978), citing Barker v. Wingo, supra 407 U.S. at 530, 92 S.Ct. 2182. The neutral delay amounts to a little over eight months. The delay chargeable to the defense is apparently about two months — from June 20, 1975 until August 13, 1975 — as a result of appellant Glass' hospitalization for pregnancy. This delay is directly attributable to her, but not to appellant Davis. His counsel could have objected to the delay, and filed both a motion to sever and a request for a speedy trial.

Reason for the Delay

As we have just noted in our discussion of the length of delay, the reasons for the delay are four. First, the prosecution's delay in one instance — for five weeks — was because the prosecutor was unavailable due to his presence at another trial. This delay should not be categorized as deliberate, at least not in the sense of attempting to achieve a tactical advantage. Compare Branch, supra at 1001. Second, the prosecution caused a delay for about eight weeks, due to its lack of preparation for trial. Negligence is considered another neutral reason for delay — properly attributable to the prosecution. Barker v. Wingo, supra 407 U.S. at 531, 92 S.Ct. 2182.

The third reason for the delay is the hospitalization of Ms. Glass for her pregnancy and thus, as noted previously, is properly chargeable to her, and no motion was filed by appellant Davis to sever. The fourth reason is institutional — primarily due to court congestion — and thus is weighed against the prosecution.

Assertion of the Right

"The defendant's assertion of his speedy trial right . . . is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Barker v. Wingo, supra 407 U.S. at 531-32, 92 S.Ct. at 2193. Here, on February 17, 1976 — a little over twelve months after arrest — appellant Glass first⁷ asserted her right to a speedy trial in a motion to dismiss her indictment. Consequently, the earlier delay did...