Miller v. United States, 80-430.

• Decision Date: 29 June 1984
• Docket Number: No. 82-1046.,No. 80-430.,80-430.,82-1046.
• Parties: Willie MILLER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

479 A.2d 862

Willie MILLER, Appellant, v. UNITED STATES, Appellee.

No. 80-430.

No. 82-1046.

District of Columbia Court of Appeals.

Argued November 8, 1983.

Decided June 29, 1984.

Andrew L. Lipps, Public Defender Service, Washington, D.C., at the time the briefs were filed, with whom Silas J. Wasserstrom, Public Defender Service, Washington, D.C., at the time the briefs were filed, was on the briefs, for appellant in No. 80-430.

Scott Howe, Public Defender Service, Washington, D.C., with whom A. Franklin Burgess, Jr., Public Defender Service, Washington, D.C., at the time the briefs were filed, was on the briefs, for appellant in No. 82-1046.

J. Alvin Stout, III, Asst. U.S. Atty., Washington, D.C., with whom Charles F.C. Ruff, U.S. Atty., Washington, D.C., at the time the brief was filed, John A. Terry, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee in No. 80-430.

G. William Currier, 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, Michael W. Farrell and Wendy Bebie, Washington, D.C., were on the brief, for appellee in No. 82-1046.

Before BELSON, Associate Judge, and PAIR and KERN,^* Associate Judges, Retired.

BELSON, Associate Judge:

Appellant Willie Miller was convicted of first-degree murder but acquitted of carrying a pistol without a license in connection with the fatal shooting of Michael Bottoms. He appeals both from the judgment of conviction and from the trial court's denial without a hearing of his subsequent motion to vacate sentence. Although we reject the arguments advanced on the direct appeal, we conclude that the trial court erred in denying a hearing on the motion to vacate. Accordingly, we remand to the trial court for a hearing on appellant's claim that he was denied his Sixth Amendment right to the effective assistance of counsel.

I

Michael Bottoms died of multiple gunshot wounds of the head, neck, and chest. Examination of bullet fragments recovered from his body showed that the shots had been fired from at least two different weapons. The government presented alternate theories to the jury: either appellant himself fired one of the guns used in killing Bottoms, or he aided and abetted his brother in the murder. Appellant contends that the evidence was insufficient to support his conviction either as a principal or as an aider and abettor. We conclude that the evidence was sufficient to convict appellant on either theory.

In assessing appellant's claim, we must view the evidence in the light most favorable to the government and must give the government the benefit of all reasonable inferences. Hooks v. United States, 373 A.2d 909, 912 (D.C.1977); Calhoun v. United States, 369 A.2d 605, 607 (D.C. 1977). Judged by these standards, the evidence showed the following. Appellant Willie Miller was robbed by a man armed with a pistol supplied by the decedent, Michael Bottoms. Appellant then returned to his nearby home. A short time later, his older brother, Michael Miller, left the house in haste. Michael confronted Donnie Rose, who earlier had been with appellant's assailant, and angrily demanded to know who had robbed his brother. Michael Miller then spoke to a Joseph Morris, telling him that whoever had robbed his brother "wasn't going to get away with it" and that he was going to "straighten out what happened." Morris handed Michael a paper bag containing a hand gun. Meanwhile, appellant had re-emerged from his home and was overheard telling his brother who had robbed him.

Michael Miller approached Bottoms and questioned him about the robbery. Michael then left, but returned soon after, accompanied by appellant and a third person. Michael again grilled Bottoms about the incident. He then took a gun out of the paper bag and fired at Bottoms. When the first shot missed, Bottoms ran. Michael chased him. One witness, Jasper Hoskins, testified that while Michael was questioning Bottoms, appellant was only 8 to 10 feet away. Powell confirmed that shots came from the area where appellant was standing. Powell also testified that he saw appellant's right arm extended in front of him holding what appeared to be a revolver.

After Bottoms was struck down, Michael Miller came up and fired several more shots into him at close range. The Miller brothers and the unidentified third person then ran off together. As we noted above, the government introduced evidence that Bottoms was struck by bullets from at least two guns.

Appellant argues that since the jury acquitted him of carrying a pistol without a license, it necessarily found that he was not guilty as a principal. This is incorrect, for inconsistent jury verdicts are permissible. Hamling v. United States, 418 U.S. 87, 101, 94 S.Ct. 2887, 2899, 41 L.Ed.2d 590 (1974); United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 135, 88 L.Ed. 48 (1943); Steadman v. United States, 358 A.2d 329, 332 (D.C.1976). In Steadman, as in this case, the defendant was accused of a fatal shooting. This court upheld the defendant's manslaughter conviction even though the defendant was acquitted of carrying a pistol without a license. The only question, the court said, was "whether the evidence was sufficient to support the conviction under the guilty verdict." Id. (citing Branch v. United States, 263 A.2d 258, 259 (D.C.1970)).

We hold that the evidence in this case was sufficient to support appellant's conviction as a principal. There was evidence suggesting that decedent Bottoms had aided the man who had robbed appellant. Appellant's brother, after discussions with appellant, clearly believed that Bottoms was involved. Two witnesses placed appellant close by when his brother shot Bottoms and testified as well that shots came from the area where appellant was standing. One of these witnesses saw appellant's arm outstretched, apparently in a firing position. Ballistics evidence showed that more than one gun was involved in the shooting. Finally, appellant fled the scene with his brother.

Even if appellant were able to argue persuasively that the evidence did not support his conviction as a principal, he would still have to meet the contention that the jury could have found him guilty as an aider and abettor. As we said in Creek v. United States, 324 A.2d 688, 689 (D.C. 1974) (per curiam) (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938) (L. Hand, J.)), "[a]iding and abetting is established if the accused `. . . in some sort associated himself with the venture . . . participated in it as in something that he wished to bring about, [and] . . . [sought] by his action to make it succeed.'" While presence at the scene of the crime cannot alone prove criminal complicity, it may nevertheless constitute aiding and abetting if by design it encourages the perpetrator or facilitates the crime. Id.

In this case, the evidence was not simply that appellant happened to be at the scene of the crime. As recounted above, he had been robbed by a person armed with a gun supplied by the decedent. He went into his home and soon thereafter his brother emerged in anger to seek out appellant's assailant. The brother first confronted Bottoms alone, left, and came back soon after with appellant and a third person. This time the brother drew the gun and fired at Bottoms. The two brothers and the third person then fled together. The jury could infer from this evidence that appellant had encouraged this retaliatory attack on Bottoms and had sought by his presence to make it succeed. See Creek, supra, 324 A.2d at 689-90; In re T.J.W., 294 A.2d 174, 176-77 (D.C.1972). We thus conclude that the evidence was sufficient to support appellant's conviction for first-degree murder either as a principal or as an aider and abettor.

II

Appellant's second contention on his direct appeal is that the delay of 13 months between his arrest and trial violated his Sixth Amendment right to a speedy trial. We reject this contention as well.

In reviewing a speedy trial claim, this court must evaluate four factors: the length of the delay, the reason for the delay, the defendant's assertion of his right, and the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). As to the first factor, because here the period between arrest and trial was longer than a year, the government has the burden of establishing that appellant's right to a speedy trial was not violated. Parks v. United States, 451 A.2d 591, 600 (D.C. 1982), cert. denied, ___ U.S. ___, 103 S.Ct. 2123, 77 L.Ed.2d 1303 (1983); Asbell v. United States, 436 A.2d 804, 812 (D.C. 1981); United States v. Bolden, 381 A.2d 624, 627 (D.C.1977).

The record shows that almost all of the delay in this case was caused simply by court congestion and ordinary institutional factors. Appellant was arrested on November 12, 1978. The 3½ month delay between that date and the filing of the indictment was due to preliminary hearings and investigation. Trial was initially set for July 30, 1979, but had to be postponed because the judge to whom the case was assigned was then in trial on another case. The next available trial date was December 3, 1979, but trial was continued to December 12, 1979, on motion of appellant's codefendant. Thus, while virtually the entire delay in this case is chargeable to the government, it was the kind of "neutral" delay that we weigh less heavily against the government than either deliberate delay to secure a tactical advantage, Barker, supra, 407 U.S. at 531, 92 S.Ct. at 2192; Williams v. United States, 421 A.2d 19, 27 (D.C.1980), or "significant" delay caused by prosecution failure to take reasonable means to bring the case to trial, Day v. United States, 390 A.2d 957, 967-69 (D.C. 1978).

Appellant did not formally assert his right to a speedy trial until November 6, 1979,...