Graves v. United States

• Citation: 490 A.2d 1086
• Decision Date: 02 October 1984
• Docket Number: No. 82-94.,82-94.
• Parties: Whitfield GRAVES, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

Page 1086

490 A.2d 1086

Whitfield GRAVES, Appellant, v. UNITED STATES, Appellee.

No. 82-94.

District of Columbia Court of Appeals.

Argued En Banc March 13, 1984.

Decided October 2, 1984.

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Holly R. Skolnick, Public Defender Service, Washington, D.C., at the time the briefs were filed, with whom A. Franklin Burgess, Jr., Public Defender Service, Washington, D.C., at the time the briefs were filed, was on briefs, for appellant.

Thomas J. Tourish, Jr., Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, and Michael W. Farrell, John R. Fisher, and Amy S. Berman, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before PRYOR, Chief Judge, and NEBEKER, MACK, NEWMAN, FERREN, BELSON and ROGERS, Associate Judges, and KERN,^* Associate Judge, Retired.

BELSON, Associate Judge.

Appellant was convicted by a jury of first-degree (felony) murder, robbery, and first-degree burglary¹ in connection with the strangling death of James R. Matthews. The primary question on this appeal is whether appellant was denied his constitutional right to a speedy trial by the lapse of 25 months between his arrest on those charges and the commencement of trial.² After carefully weighing all the relevant factors, we conclude that, despite the regrettably long delay, appellant was not deprived of his constitutional right. We affirm his convictions of felony murder and first-degree burglary. We reverse his conviction of robbery because it merged with his conviction of felony murder.

James R. Matthews was known in his neighborhood as a bootlegger who sold liquor from his home. On October 9, 1979, he was found in his apartment bound, gagged, and strangled to death. He had been robbed of money, liquor, a pistol and a radio.

Appellant and two other men, Alvin Poston and Larry Brown, were arrested later that month and charged with Matthews' murder and related offenses. The three were tried separately, and ultimately each was found guilty of first-degree (felony) murder and other offenses. Poston was tried first in February 1981, after the charges against him were severed; his conviction was affirmed by this court in July 1983. Poston v. United States, No. 81-626, Memorandum Opinion and Judgment (D.C. July 16, 1982). Brown was tried in May 1981 during the pendency of an interlocutory government appeal in appellant's case, and his conviction also was affirmed by this court in July 1983.

Appellant's trial began on November 5, 1981. On that day, the trial court, by written order, denied his motion to dismiss the indictment for lack of a speedy trial. The trial judge's ruling incorporated findings made by another judge on appellant's earlier motion to dismiss on speedy trial grounds.³ While acknowledging that it was a close case, the trial court found there had been no deprivation of appellant's speedy trial right. Graves appealed, asking that we overturn that decision, and his subsequent conviction. A majority of a division of this court agreed with Graves that his speedy trial right had been denied. Graves v. United States, 467 A.2d 712 (D.C.1983). We granted the government's petition for rehearing en banc, and vacated the division's opinion. Id.

The framework for analyzing a claim of speedy trial violation was established by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Court identified four factors which are to be examined: the "Mength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. at 530, 92 S.Ct. at 2192. These factors are related and must be considered together with other relevant circumstances in "a difficult and sensitive balancing process." Id. at 533, 92 S.Ct. at 2193. This difficult task, of course, falls in the first instance to the trial court. In reviewing its determination, we are bound by its findings of fact unless they are plainly wrong or without evidence to support them. D.C.Code § 17-305(a) (1981); see Wilson v. United States, 444 A.2d 25, 29 (D.C.1982); Reid v. United States, 402 A.2d 835, 837 (D.C.1979). We may reverse, however, for errors of law. D.C.Code § 17-305(a) (1981). Mindful of these principles, we turn to a consideration of the four Barker factors.

Length of Delay

Delay is measured from the time the individual is formally accused. See United States v. MacDonald, 456 U.S. 1, 6-7, 102 S.Ct. 1497, 1500-1502, 71 L.Ed.2d 696 (1982) (MacDonald II); United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). For speedy trial purposes, arrest constitutes a formal accusation. See MacDonald, supra, 456 U.S. at 6-7, 102 S.Ct. at 1500-1502; Dillingham v. United States, 423 U.S. 64, 64-65, 96 S.Ct. 303, 303-304, 46 L.Ed.2d 205 (1975) (per curiam). Appellant was arrested October 16, 1979, and his trial began November 5, 1981. Thus, as the trial court calculated, the total delay was approximately 25 months.

In our previous cases we have said, variously, that a delay of more than a year gives prima facie merit to a claim that an accused has been denied the right to a speedy trial,⁴ creates a presumption of prejudice,⁵ and shifts the burden to the government to justify the delay.⁶ Moreover, the government's burden in arguing that no violation has occurred increases in proportion to the length of the delay. Hedgepeth v. United States, 124 U.S. App.D.C. 291, 294, 364 F.2d 684, 687 (1966); Parks, supra, 451 A.2d at 600-01; Bethea, supra, 395 A.2d at 790; Branch, supra, 372 A.2d at 1000. However, the more serious and complex the charge, the greater is the delay that will be tolerated. Head v. United States, 451 A.2d 615, 620 (D.C.1982); Parks, supra, 451 A.2d at 601; Bethea, supra, 395 A.2d at 790-91; Branch, supra, 372 A.2d at 1000.

The charges in this case were serious and the case was of moderate complexity. While the 25-month delay was substantial, we note that delays of roughly that length and longer have been countenanced by this court when all factors were considered.⁷

On the other hand, delays of less than 25 months have on occasion been held excessive.⁸ In Barker itself, the Supreme Court found that the defendant's constitutional right to a speedy trial had not been violated despite a delay of more than 5 years. Barker, supra, 407 U.S. at 516-18, 92 S.Ct. at 2185-2186. The Court found there was "no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months." Id. at 523, 92 S.Ct. at 2188.

Reasons for the Delay

Barker instructs us on the different weights to be given to different reasons for the delay.

A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

Id. at 531, 92 S.Ct. at 2192 (footnote omitted). While adhering to that general framework, this court has refined the analysis in one noteworthy respect. We have, in effect, created an intermediate category of "significant" delay for government actions deemed less culpable than deliberate foot-dragging to gain tactical advantage but more culpable than the neutral category exemplified by failure to advance trial dates due to court congestion. See Day v. United States, 390 A.2d 957, 968 (D.C. 1978) (failure of government to move for expedition of interlocutory appeal constitutes significant delay); Bethea, supra, 395 A.2d at 791-92 (substantial weight assigned to delay due to government indifference after numerous continuances and assertion of the right); accord, Miller v. United States, 479 A.2d 862 (D.C.1984) (prosecution failure to take reasonable means to bring case to trial is significant delay).

It should be apparent that these attempts to distinguish between deliberate delay and significant delay and between significant delay and neutral delay are intended merely as rough benchmarks to guide analysis. They are not variables susceptible of being assigned arithmetical values. That is, we cannot and do not say that 1 month of deliberate delay equals 3 months of neutral delay, or that 6 months of significant delay equals 1 year of neutral delay. Some delay that is significant may be more so than other significant delay, and some delay that we term "neutral" or "institutional" may be more deserving of censure than other delay falling under that broad rubric. In short, these categories, like the four Barker factors themselves, have no "talismanic" qualities. Barker, supra, 407 U.S. at 533, 92 S.Ct. at 2193.

To evaluate the delay in this case we must review the procedural history of the case. As noted, appellant was arrested on October 16, 1979. He and codefendants Brown and Poston were indicated 3 months later, on January 16, 1980. Appellant was arraigned on January 30, 1980, and a first status hearing was set for March 20. The 5 months' delay up to that date the trial court termed "neutral delay." Neither party challenges that finding, and we see no reason to disturb it.

On March 20, 1980, the status hearing was continued to April 7 at the government's request, apparently in the hope that certain pretrial issues would "resolve themselves" by virtue of "potential dispositions." Appellant did not object. On April 7, 1980, the hearing was continued to April 24, again at the government's request. The prosecutor stated that he had been tied up in another case and had not had an opportunity to resolve the matters previously mentioned. Again appellant did not object. This 1-month period between March 20 and April 24,...