Reed v. United States, 10914.

• Decision Date: 06 February 1978
• Docket Number: No. 10914.,10914.
• Citation: 383 A.2d 316
• Parties: Carl M. REED, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 316

383 A.2d 316

Carl M. REED, Appellant, v. UNITED STATES, Appellee.

No. 10914.

District of Columbia Court of Appeals.

Argued March 8, 1977.

Decided February 6, 1978.

Richard Seldin, Washington, D. C., appointed by this court, for appellant.

Iraline G. Barnes, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, William D. Pease, and Mark H. Tuohey, III, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KELLY, NEBEKER and HARRIS, Associate Judges.

NEBEKER, Associate Judge:

On appeal from convictions of robbery, D.C.Code 1973, § 22-2901, and assault with intent to rob, D.C.Code 1973, § 22-501, appellant asserts as error: (1) the denial of a motion to dismiss the indictment for lack of a speedy trial; (2) the refusal to give an instruction on permissible adverse inference to be drawn from inability to produce police notes made at the scene; (3) the denial of a motion to compel discovery of certain information pertaining to members of the grand jury; (4) the giving of an anti-deadlock "Winters "¹ charge; and (5) the admission of certain items into evidence. We affirm.

The circumstances leading to appellant's arrest and conviction were as follows. Hiawatha Barber was escorting Quinzella Jackson to his car on the evening of December 14, 1974, when they noticed three men across the street from them. One of the men particularly stood out because he was wearing an off-white "superfly suit" with a white large brim "gangster hat." As the couple approached Barber's car, the three men surrounded them. Appellant, wearing the superfly outfit, put a gun to Barber's head while his accomplices took Jackson's purse. Nothing further was taken because the approach of a neighbor frightened the perpetrators away.

Police responded soon thereafter and, as Barber gave a description of the perpetrators to two officers, one of them broadcast the description over the police radio while the other made notes on a piece of paper. Shortly after the broadcast, another officer observed three males, matching the descriptions radioed, near the parking lot of a restaurant. The three men entered the restaurant and the officer called for back-up units to respond to the scene. The three men emerged from the restaurant almost immediately and were apprehended. A search of the immediate area produced a revolver. One of the officers spoke with the doorman of the restaurant and, as a result of the conversation, went into the men's room and found a wallet in a flush tank. The wallet was later identified by Jackson as her stolen wallet. The three men were returned to the scene of the crime and two of them were identified by Barber as the perpetrators. Jackson noted that the coat which appellant was wearing resembled that of one of the robbers. After transportation of appellant to the police station, a routine check under the car seat on which appellant had sat produced a set of keys which Jackson later identified as hers.

I. SPEEDY TRIAL

The speedy trial issue in this case arose as follows. After Reed's arrest on December 14, 1974, a preliminary hearing was held on January 23, 1975. An indictment was returned on February 20, 1975, and Reed was arraigned before Judge Alexander on March 4, 1975. Trial was set for May 13, 1975, and appellant was continued on his original bond. Following the arraignment, counsel for Reed filed a Motion to Suppress Identification, a Motion to Compel Discovery and Dismiss the Indictment, and a Motion to Suppress Evidence. On May 13, 1975, Judge Alexander heard argument on the motion to compel discovery and dismiss the indictment, took the motion under advisement, and continued the case until July 17, 1975.

On July 17, 1975, Judge Alexander was in trial on another matter and the case therefore was continued until December 11, 1975. During this interval, the felony judge assignments changed, and the case was transferred to Judge Doyle. On December 11, 1975, with the parties present, Judge Doyle set the trial date for February 10, 1976. Appellant had earlier filed a Motion for Severance on December 11, 1975. On February 10, 1976, the case was called but could not be heard since the motion to dismiss was still under advisement by Judge Alexander. At this time, appellant's counsel made an oral motion to dismiss for lack of a speedy trial and on February 20, 1976, a written motion to that effect was filed. The original motion to dismiss the indictment was subsequently denied on March 11, 1976, ten months after submission. On March 12, 1976, the speedy trial motion was argued and denied.

Trial commenced three days later and fifteen months after arrest, and, after verdict, appellant was sentenced to a term of five to fifteen years on the robbery count and two to six years on the assault with intent to commit robbery count, the sentences to run consecutively.

While the right to a speedy trial is constitutionally mandated, it has been historically an ad hoc decision after the balancing of relevant factors including societal interests in the deterrence and punishment of crime. The Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), recognized these opposing values and adopted the now familiar balancing test which requires consideration of four factors: (1) length of delay; (2) reason for delay; (3) time of assertion of the right; and (4) prejudice through delay to the defendant. Id. at 530-32, 92 S.Ct. 2182. Our examination of the record convinces us that appellant's motion was properly denied.

Although a period of fifteen months elapsed between appellant's arrest and the commencement of his trial, there is "no constitutional basis for holding that the speedy trial right can be quantified into a specific number of days or months." Barker v. Wingo, supra at 523, 92 S.Ct. at 2188. Several cases in this jurisdiction have rejected speedy trial claims despite pretrial delays that were equal to or greater than that in the instant case. See, e.g., United States v. Calhoun, D.C.App., 363 A.2d 277, 278 (1976); Riley v. United States, D.C. App., 291 A.2d 190 (1972); United States v. Sarvis, 173 U.S.App.D.C. 228, 523 F.2d 1177 (1975); United States v. Rosenbloom, 167 U.S.App.D.C. 211, 511 F.2d 777 (1974); United States v. Jones, 154 U.S.App.D.C. 211, 475 F.2d 322 (1972). Thus, time lapse alone is only a touchstone calling for a balancing of all other factors. Hedgepeth v. United States, 124 U.S.App.D.C. 291, 294, 364 F.2d 684, 687 (1966). While this court has followed the United States Court of Appeals for the District of Columbia Circuit in Hedgepeth v. United States, supra at 293, 364 F.2d at 686, by observing that a delay of more than one year is prima facie reflection of merit to a claimed denial of the right to a speedy trial, it is important to note that delay alone has never been conclusive except in cases like In re Provoo, 17 F.R.D. 183 (D.Md.), aff'd per curiam, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (1955) — a case of many years' delay. Indeed, it is quite apparent that the one-year delay period is a simple rule of thumb reasonably to avoid the time consuming necessity of record analysis in most cases of delay under one year. Affording, prima facie effect to delay of one year or more simply triggers review of the record for a balancing of all relevant factors. That is precisely what the court said and did in Hedgepeth. In view of the one-year delay, it said, "[W]e undertake a review of the intervening events." Id., 124 U.S.App.D.C. at 293, 364 F.2d at 686. It attached no "evidentiary" presumption to the delay, but simply observed that time being "the most important" and review-triggering factor, the longer the delay "the heavier the burden of the Government in arguing" that the speedy trial right has not been denied. Id. at 294, 364 F.2d at 687 (emphasis supplied).

In assessing the weight to be given to the length of the delay, an inquiry into the reasons for the delay is also mandated, Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. 2182. Although negligence and docket congestion are to be viewed as right-denying factors, neither is given as much weight as deliberate prosecutorial delay. Id.; accord, Moore v. United States, D.C. App., 359 A.2d 299 (1976); United States v. Lara, 172 U.S.App.D.C. 60, 520 F.2d 460 (1975); United States v. Bishton, 150 U.S. App.D.C. 51, 463 F.2d 887 (1972).

In the case at hand, no contention has been made that the prosecution was deliberately trying to delay the commencement of appellant's trial for tactical advantage. Compare Branch v. United States, D.C.App., 372 A.2d 998 (1977). Although appellant states that on several occasions the government was not ready to proceed, our reading of the record shows that in each instance the case was continued due to a failure on the part of the trial court to decide the initial motion to dismiss the indictment, or due to the overcrowded docket. Therefore, the most that is available to appellant is an argument respecting the failure of Judge Alexander to expedite disposition of the motion. See United States v. Jones, D.C.App., 254 A.2d 412, 414 (1969); United States v. Kennedy, D.C.App., 220 A.2d 322, 324 (1966); United States v. Sarvis, supra. It is also significant that the prosecution filed a motion to render a decision.²

In Barker, the Supreme Court held that a defendant's assertion of his speedy trial right is entitled to "strong evidentiary weight" and "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. See also Bond v. United States, D.C.App., 233 A.2d 506, 512-13 (1967). While appellant's counsel objected to the continuances of July 17, 1975, and December 11, 1975, a motion to dismiss for lack of speedy trial was not made until February 20, 1976, 14 months after arrest.³ Thus, the earlier delay cannot...