Long v. U.S.

• Citation: 910 A.2d 298
• Decision Date: 09 November 2006
• Docket Number: No. 98-CF-1425.,No. 04-CO-1503.,No. 98-CF-1088.,98-CF-1088.,98-CF-1425.,04-CO-1503.
• Parties: Colie L. LONG, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

910 A.2d 298

Colie L. LONG, Appellant, v. UNITED STATES, Appellee.

No. 98-CF-1088.

No. 98-CF-1425.

No. 04-CO-1503.

District of Columbia Court of Appeals.

Argued June 8, 2006.

Decided November 9, 2006.

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Richard S. Stolker, for appellant.

John P. Gidez, Assistant United States Attorney, with whom Kenneth L. Wainstein, United States Attorney at the time the brief was filed, and Roy W. McLeese III, and Kathleen M. O'Connor, Assistant United States Attorneys, were on the brief, for appellee.

Before GLICKMAN, Associate Judge, and BELSON and Schwelb, Senior Judges.^*

GLICKMAN, Associate Judge:

Appellant Colie L. Long was indicted initially on charges of first-degree premeditated murder while armed, assault with a dangerous weapon, possession of a firearm during a crime of violence, and carrying a pistol without a license (CPWL). The jury in his first trial found him guilty of CPWL but could not reach a unanimous verdict on the other charges, as to which a mistrial was declared. The grand jury thereafter returned a superseding indictment, adding a count of conspiracy to commit murder to the three remaining charges from the original indictment. After a second trial, Long was convicted on all four counts. His subsequent motion to vacate his convictions pursuant to D.C.Code § 23-110 (2001) on grounds of ineffective assistance of trial counsel was denied. We have consolidated Long's appeal from that denial with his direct appeals of his convictions.

We are not persuaded by Long's claims on direct appeal that he was denied his Sixth Amendment right to a speedy trial and deprived of a fair trial on the superseding indictment by the prosecutor's improper appeal to the jury in her rebuttal closing argument. We conclude, however, that the trial court abused its discretion by denying Long's § 23-110 motion without a hearing.

I. The Evidence at Trial

According to the government's evidence at the second trial, Long shot and killed fourteen-year-old Ronald Williamson in the early morning hours of March 19, 1996. About two weeks before the murder, Williamson and his friends had threatened Long at gunpoint, struck him on the head with a gun, and stomped on his Super Nintendo video game system. Bent on revenge, Long reportedly vowed to "get [Williamson] if it's the last thing I do."

Shortly before dawn on the day of reckoning, Long awakened his friend, William Tilghman, telling him "get the gun" and "let's go do that." Together they walked to a nearby alley, where they found Williamson, who apparently was alone. According to Tilghman, Long told Williamson to turn around because "somebody was coming through the cut." Williamson turned his back to them, and Long directed Tilghman to "[g]o ahead, bust him." Tilghman hesitated, and Long took the gun from his hands and fired off half a dozen shots at Williamson himself. Williamson collapsed to the ground. Having run out of ammunition, Long bent down, hit Williamson on the head with the gun and then walked up the alley to get more bullets from a box hidden under a porch. At this point, Williamson was lying on his stomach, struggling to crawl. Long "walked back down the alley and stood over top of [Williamson] and shot one time." Long then handed the murder weapon back to Tilghman, who threw it into nearby bushes; the next day, Tilghman retrieved the gun and sold it.

Although Long did not testify, the theory of his defense was that Tilghman killed Williamson by himself, and that he was lying about Long's participation in the murder in order to receive a lighter sentence. The government had secured Tilghman's testimony against Long by agreeing to let him plead guilty to the reduced charge of voluntary manslaughter while armed. On the witness stand, Tilghman admitted that he initially had lied about the shooting to the police. He also admitted having told an FBI agent that he personally discharged the murder weapon when Williamson "flinched." Tilghman claimed that admission too was a lie.

Three other government witnesses testified to hearing the gunshots and seeing Long in the alley. Two of the witnesses— Angela Wheeler and Williamson's mother Linn Thomas—claimed that they actually saw Long firing or pointing a gun at Williamson. All this identification testimony was impeached, however. Wheeler's mother testified that her daughter did not see anything that happened in the alley before the police arrived, and Wheeler herself acknowledged during cross-examination that she did not know whether it was Long or Tilghman whom she saw. Thomas admitted not telling the police that Long had shot her son because she "was thinking maybe I made a mistake, maybe that wasn't him." The defense presented evidence that Thomas was high on crack cocaine at the time of the murder, though she denied it. The third witness, Florence Green, told detectives who interviewed her immediately after the shooting that she was not able to make a positive identification "because it was dark and I saw the features of his face, not the complete face."

II. The Speedy Trial Claim

We first address Long's claim that he was denied his Sixth Amendment right to a speedy trial. Long was arrested on March 19, 1996, detained without bond pursuant to D.C.Code § 23-1325(a) (1996), and indicted on November 13, 1996. His trial was scheduled for March 10, 1997, but in January of that year, Long filed a pro se motion requesting the appointment of new counsel to replace his existing attorney, with whom he had developed an unspecified "irreconcilable difference." The trial court granted Long's request, and his trial date was reset for May 28, 1997. On May 15, 1997, however, Long moved for a continuance to enable him to conduct additional pretrial investigation, and the trial date was pushed back to August 4, 1997. Shortly before that date, Long again moved pro se for the appointment of new counsel on "irreconcilable difference" grounds. (In a contemporaneous letter to the trial judge, Long articulated some generic complaints, the most specific being that his counsel had been pressuring him to plead guilty.) The granting of Long's request resulted in another postponement of his trial, this time to December 1, 1997. Because the prosecutor was in trial in another case, hearings on Long's pretrial motions did not commence until December 9, 1997.

The hearings lasted six days, until December 15, 1997. The trial court granted Long's motion to suppress the statements he made at the time of his arrest. The government appealed that ruling on January 14, 1998, but a few weeks later, it chose to dismiss the appeal. Long's trial began on March 9, 1998. Seventeen days later, Long was found guilty of carrying a pistol without a license and a mistrial was declared on the other charges. On April 16, 1998, Long was arraigned on the superseding indictment, which Long moved to dismiss on speedy trial and due process grounds. The trial court denied the motion and Long's second trial began on June 22, 1998.

In determining whether a defendant has been deprived of his Sixth Amendment right to a speedy trial, it is necessary to consider (1) the length of the delay, (2) the reasons for the delay, (3) whether and how the defendant asserted his right, and (4) the prejudice to the defendant resulting from the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). "These factors are related and must be considered together with other relevant circumstances in a difficult and sensitive balancing process." Hammond v. United States, 880 A.2d 1066, 1079 (D.C.2005) (internal quotation marks and citations omitted). In the present case, we think the balance tilts decisively against Long's claim.

The two-year delay between Long's arrest and the start of his trial "clearly suffices to trigger the speedy trial enquiry." Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); see, e.g., Hammond, supra; Graves v. United States, 490 A.2d 1086, 1091 (D.C.1984) (en banc). Upon inspection, however, we see that a sizable portion of the delay—the seven to nine months attributable to Long's motions for new counsel and for a continuance—was "appellant's own responsibility." Sanders v. United States, 550 A.2d 343, 346 (D.C. 1988). In contrast, the government bore responsibility for only a few months of delay, mainly on account of its aborted interlocutory appeal. "Given the importance of appellate review to our system of justice," however, "reasonable appellate delay resulting from interlocutory appeals is considered justifiable in the speedy trial analysis." Hammond, 880 A.2d at 1083 (internal quotation marks and citation omitted). We also may assume that some portion of the three-month interlude between Long's two trials should be charged to the government on account of its belated decision to seek a superseding indictment, together with the eight days in December 1997 when the prosecutor was tied up in another trial. Even so, the bulk of the delay in this case was attributable to what we have called neutral, institutional reasons that do not weigh heavily against the government. See Graves, 490 A.2d at 1093. There is no evidence that the government noted its appeal in bad faith, engaged in "deliberate foot dragging," or attempted to hamper the defense in order to "gain a tactical advantage."¹ Id. at 1092.

Long never demanded that he be given a speedy trial; at most, he merely moved to dismiss the superseding indictment on speedy trial grounds because "the long delay before charging him with the Conspiracy count" allegedly prejudiced his ability to defend against that charge. Long's prolonged silence is most significant to the present calculus, because the Supreme Court has "emphasize[d] that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Barker, 407 U.S. at 532, 92 S.Ct. 2182. Although Long claims it...