Graves v. United States

• Decision Date: 23 September 1983
• Docket Number: No. 82-94.,82-94.
• Citation: 467 A.2d 712
• Parties: Whitfield GRAVES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 712

467 A.2d 712

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

No. 82-94.

District of Columbia Court of Appeals.

Argued May 5, 1983.

Decided September 23, 1983.

Rehearing En Banc Granted and Opinion Vacated January 9, 1984.

Holly R. Skolnick, Public Defender Service, Washington, D.C., with whom A. Franklin Burgess, Jr., Public Defender Service, Washington, D.C., was on brief, for appellant.

Amy S. Berman, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Michael W. Farrell, John R. Fisher, and Steven D. Gordon, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before FERREN and BELSON, Associate Judges, and KELLY, Associate Judge, Retired.

KELLY, Associate Judge, Retired:

Appellant appeals his conviction for firstdegree murder/felony murder, D.C.Code § 22-2401 (1973) [recodified as D.C.Code § 22-2401 (1981)], first-degree burglary, D.C.Code § 22-1801(a) (1973) [recodified as D.C.Code § 22-1801(a) (1981)], and robbery, D.C.Code § 22-2901 (1973) [recodified as D.C.Code § 22-2901 (1981)], claiming that his Sixth Amendment right to a speedy trial was violated by the twenty-five month hiatus between his arrest and trial.¹ Balancing the four factors enunciated by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we conclude that, notwithstanding the gravity of the offenses with which he was charged, appellant's speedy trial right was denied and, accordingly, reverse and remand for dismissal of the indictment.

I

Appellant was arrested on October 16, 1979.² Two days later, the District of Columbia Parole Board filed a detainer against him. A preliminary hearing was waived on October 22, 1979, and a twentyfive hundred dollar ($2,500) bond was imposed. Appellant's motion for review of bond, filed on December 3, was denied. On January 16, 1980, three months after arrest, an indictment was returned against appellant and two codefendants, Alvin Poston and Larry Brown; arraignment occurred on January 30. A status hearing, set initially for March 30, was continued upon successive government requests to April 7 and then to April 24, at which time trial was set for August 11.

On August 11, trial was continued to September 3, at the government's request,³ and appellant's oral motion to dismiss for lack of prosecution was denied. On September 3, again upon the government's request, trial was continued further to December 1.⁴ An oral motion by appellant to dismiss for lack of speedy trial was denied. Then, on September 9, the government filed a motion to change the December 1 trial date, based upon the anticipated unavailability of two government witnesses. Over appellant's opposition, the court rescheduled trial for December 11.

On November 13, 1980, appellant filed a motion to dismiss for lack of speedy trial which, by written order dated December 9, was denied. Despite noting that appellant had been incarcerated since his arrest on October 16, 1979, the court held that appellant's general allegation of prejudice, which it found to arise principally from the impairment of his defense and which was asserted for the first time in that motion, failed to demonstrate a violation of his Sixth Amendment right to a speedy trial.

Thereafter, on the scheduled trial date of December 11, the court granted appellant's motion to suppress his confession and continued trial to the following day. The next day, the government announced its intention to appeal the court's ruling and, on December 22, filed its notice of appeal. While certifying pursuant to D.C.Code § 23-104(a)(1) (1973) [recodified as D.C. Code § 23-104(a)(1) (1981)], that the appeal was "not taken for delay" and that the suppressed confession constituted "substantial proof of the charges pending" against appellant, the government did not move this court for expedited consideration. See D.C.Code § 23-104(e) (1973) [recodified as D.C.Code § 23-104(e) (1981)]; D.C.App.R. 4 III.

Meanwhile, on November 21, the parole board detainer against appellant was lifted. Appellant moved to modify bond on December 16 which the government opposed. On January 13, 1981, the motion was denied; appellant remained in jail. At an April 27 status hearing (to which the case had been continued following a status hearing on January 26), appellant orally moved to dismiss for lack of speedy trial and to reduce bond. Both motions were denied and the case again was continued to a status hearing on June 17, 1981.

Almost six months after filing its notice of appeal, on June 17, 1981, the government announced that it intended to dismiss the appeal, a motion to that effect having been filed with this court five days earlier. Our mandate from a June 19 order dismissing that appeal issued on July 2, 1981.

Appellant renewed his motion to dismiss for lack of speedy trial on August 14. After argument, the court took the matter under advisement and set trial for October 28. Following several continuances due to its unavailability, on November 5, 1981 — approximately twenty-five months after his arrest, the court denied appellant's motion by written order and trial began. In ruling, the court incorporated the reasoning for the denial of appellant's earlier motion and commenced its analysis from that date. Characterizing the appellate delay which followed the grant of appellant's motion to suppress as reasonable and apparently not caused deliberately to obtain a tactical advantage, the court concluded that, although the claim was "a close one," appellant had failed to proffer evidence of actual prejudice, sufficient to warrant "the drastic sanction of dismissal."

In this appeal from the trial court's written order,⁵ we review both as to the facts and the law and will reverse only for errors of law or if the court's finding is plainly wrong or without evidence to support it. See D.C.Code § 17-305(a) (1973) [recodified as D.C.Code § 17-305(a) (1981)]; Reid v. United States, 402 A.2d 835, 837 (D.C.1979). Applying anew the "sensitive balancing test" enunciated in Barker v. Wingo, supra, we conclude that the trial court did err in its interpretation of the law and, accordingly, we reverse.

II

The trial court's evaluation of appellant's speedy trial claim entailed the "difficult and sensitive balancing" of four factors: (1) the length of delay, (2) the reasons for delay, (3) the assertion of the right by the defense, and (4) the prejudice resulting to the defendant. Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. at 2191; Bethea v. United States, 395 A.2d 787, 790 (D.C.1978). We review each factor and the court's findings thereon in order.

Length of Delay

The speedy trial clock starts running when formal criminal proceedings begin — either by arrest, indictment, or other official accusations, see United States v. MacDonald, 456 U.S. 1, 6, 102 S.Ct. 1497, 1500, 71 L.Ed.2d 696 (1982); Dillingham v. United States, supra; United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and continues ticking throughout the period of interlocutory appeals. Day v. United States, 390 A.2d 957 (D.C. 1978). In this jurisdiction, delay of a year or more between the start of formal criminal proceedings and trial establishes a prima facie violation of the accused's speedy trial right and raises a presumption of prejudice which shifts a heavy burden to the government to rebut. Parks v. United States, 451 A.2d 591, 602 (D.C.1982); Branch v. United States, 372 A.2d 998, 1000 (D.C.1977). "This burden increases in proportion to the length of the delay," although a longer delay may be tolerated for the prosecution of a serious and complex charge than for a simple misdemeanor. Warren v. United States, 436 A.2d 821, 834 (D.C.1981).

The trial court found that the total delay in bringing appellant from arrest to trial was approximately twenty-five months. Appellant's claim, therefore, acquired prima facie merit and produced a presumption of prejudice to which the government bore the heavy burden of convincingly outweighing. Day v. United States, supra, 390 A.2d at 970.

Reasons for the Delay

In evaluating the reasons for the delay, we assign different weights to different reasons. Bethea v. United States, supra, 395 A.2d at 791; Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192. Where delay is caused in bad faith by the government to acquire an advantage over the defense or to harass and vex the accused, a deprivation of the speedy trial right is more easily shown. Bethea v. United States, supra, 395 A.2d at 791; Branch v. United States, supra, 372 A.2d at 1000-01. "Such a deprivation inheres as well in delays caused by government indifference." Bethea v. United States, supra, 395 A.2d at 791 (citing Hedgepeth v. United States, 124 U.S.App.D.C. 291, 295, 364 F.2d 684, 688 (1966)). Institutional delay, a function of court congestion, weighs less heavily against the government, Parks v. United States, supra, 451 A.2d at 601, and such "neutral delay," although chargeable to the government, "may be easily outweighed by an inadequate assertion of the speedy trial right or a low threshold of prejudice." Bethea v. United States, supra, 395 A.2d at 791 (citing United States v. Perkins, 374 A.2d 882, 883-84 (D.C.1977)).

To evaluate the delay present in the instant case, we divide it into three periods: (1) October 16, 1979 to December 11, 1980 — fourteen months — from the date of arrest to the grant of appellant's motion to suppress; (2) December 12, 1980 to July 2, 1981 — approximately six and three-quarter months — from the date the government announced its intention to appeal to the date our mandate issued from our order granting the government's motion to dismiss its appeal; and (3) July 3, 1981 to November 5, 1981 — a period of four months following the issuance of our mandate to trial.

In ruling on appellant's first written motion to dismiss for lack of speedy trial, the court found that, of the fourteen...