Robinson v. United States, 80-1204.

Decision Date27 October 1982
Docket NumberNo. 80-1204.,80-1204.
Citation452 A.2d 354
PartiesGary M. ROBINSON, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Eugene Bond, Washington, D.C., was on the brief for appellant.

Stanley S. Harris, U.S. Atty., and John A. Terry, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, Michael W. Farrell, Mark J. Biros, and Margaret Poles Spencer, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.

Before NEWMAN, Chief Judge, and KELLY and PRYOR, Associate Judges.

PRYOR, Associate Judge:

This is an appeal from a conviction of two counts of incest pursuant to D.C.Code 1981, § 22-1901. Appellant argues (1) that the preindictment delay violated his constitutional rights; (2) that the two counts of incest were improperly joined; and (3) that the trial judge erred in failing to instruct the jury, sua sponte, that corroboration of the testimony of the complainant was required.1 After careful consideration of these claims in light of the record before us, we find them unpersuasive and accordingly affirm the convictions.

I

At trial the complainant testified that in the early part of 1974, she was living with her mother, Caroline Banks, and her two stepsisters in Southeast Washington. According to her testimony, during that time, when she was approximately 16 years old, her father, Gary Robinson, appellant herein, had sexual relations with her on three occasions. Then in June 1975, she left her mother's apartment and moved in with her father, who, she testified, engaged in sexual intercourse with her "[w]henever he felt like it." On August 23, 1975, as the complainant was walking home one evening with her boyfriend, her father approached them and started beating both her and her boyfriend. Robinson then took her to his house and forced her to have relations with him that night and again the next morning. On August 24, 1975, she told her aunt and her mother what had occurred and her mother called the police. Appellant was arrested on August 25, 1975, but released the following day when the United States Attorney's Office "no papered" the charge.

The complaining witness then returned to her father's residence where she lived for approximately four years and continued a sexual relationship with him. On August 14, 1979, when she was living with her aunt, she went to Howard University Hospital because she suspected she was pregnant. She testified that she had recently submitted to her father approximately one week earlier. A member of the hospital staff prescribed medicine and told her to return the following day for a test, which she did. She also asked to see a psychiatrist or social worker because she wanted to kill herself. After she talked with two nurses about her relationship with her father they called the police.

The complainant's mother, Caroline Banks, testified that on August 24, 1975, her daughter came over to her house "real nervous and crying and shaking" and had a black eye and bruises on her shoulder. Ms. Robinson told her mother that her father had had sexual intercourse with her two days earlier. Ms. Banks also testified that several years later in August 1979, her daughter came to her house after visiting Howard University Hospital, where she had received some pills. She had lost a lot of weight and said that she did not want to continue living with her father. She explained to her mother that she had told the people at the hospital, "[I]f somebody don't help me, . . . I will probably wind up killing myself." Ms. Banks encouraged her daughter to return to the hospital the next day.

Two employees of the hospital testified that Ms. Robinson, appearing nervous and frightened, had visited the hospital on August 14, 1979, and told them her father was forcing her to have sexual relations with him. An employee then contacted the police.

Robinson testified in his own behalf that he believed the complainant was his daughter. He denied that he had engaged in any sexual relationship with her. He explained that walking home with his cousin on the evening of August 24, 1975, he encountered his daughter with a young man. He shoved the young man and told him to stay away from his daughter, then grabbed his daughter and hit her when he thought she was lying to him. She ran to the house where Robinson caught up with her and argued with her. Then she went to her bedroom. He and his cousin sat on the porch drinking beer and then went to bed. The next morning Robinson took his cousin home to Vienna, Virginia. He also explained that on August 8, 1979, he had left the house early in the morning with his friend, Sarah Briggs. He thought that the reason he was arrested for the first incident was that Ms. Banks had wanted to have him return a Cadillac that she had once given him and "have [him] locked up for a while." Robinson's cousin corroborated Robinson's testimony concerning the events of August 23-24, 1975. Ms. Briggs testified that she was Robinson's "woman" and had spent the night of August 7-8, 1979, with him and had left early the next morning with him.

II

First, appellant contends that the period of delay between the first incident, known to the government on August 24, 1975, and his subsequent indictment for that offense over four years later on December 12, 1979, violated his Sixth Amendment right to a speedy trial. While this period merits scrutiny, appellant mistakenly pursues a Sixth Amendment analysis. As the Supreme Court recently held, the period between dismissal of the first charge against a defendant and indictment falls outside the speedy trial clause. United States v. MacDonald, ___ U.S. ___, 102 S.Ct. 1497, 1503, 71 L.Ed.2d 696 (1982); see United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971); Johnson v. United States, D.C.App., 434 A.2d 415, 419 (1981); but cf. Branch v. United States, D.C.App., 372 A.2d 998 (1977) (four and one-half month delay between dismissal of charge and reindictment on same charge counted for speedy trial clause purposes where dismissal unrelated to investigative need on the original charge). Rather, the Due Process Clause of the Fifth Amendment provides the appropriate analysis. Appellant must demonstrate that he suffered prejudice and that the government's reasons were unjustified. See United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977); United States v. Marion, supra 404 U.S. at 325-26, 92 S.Ct. at 465-466; Asbell v. United States, D.C.App., 436 A.2d 804, 812 (1981). As the Supreme Court stated in United States v. Lovasco, supra 431 U.S. at 790, 97 S.Ct. at 2048:

Thus, Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.

Appellant asserts that he suffered prejudice from the obvious difficulty to him and to possible defense witnesses of trying to recall events that occurred 54 months previously. However, he fails to name any specific witnesses whose memories have faded or who are no longer available, and, in fact, fails to indicate any specific examples of prejudice. The bare assertion that faded memories of witnesses must necessarily have resulted from a lengthy delay is insufficient to establish prejudice. United States v. Marion, supra 404 U.S. at 325-26, 92 S.Ct. at 465-466; Hurt v. United States, D.C.App., 314 A.2d 489, 493-94 (1974).

The government argues that its reason for the delay in the indictment of Robinson for the August 23-24, 1975, offense was to develop additional evidence. It was asserted at the pretrial hearing on the motion to dismiss this count that the complainant recanted her grand jury testimony concerning this incident after the police arrested Robinson for it. It was not until his daughter testified before the grand jury investigating the August 1979, incident that the grand jury chose to indict him for both offenses. To avoid charging an innocent person, the government, of course, may proceed cautiously and carefully with arrest or indictment. See Lovasco v. United States, supra 431 U.S. at 791-96, 97 S.Ct. at 2049-2051. In this case the delay appears to have resulted from the lack of sufficient evidence at an earlier stage to indict Robinson. That being so, the delay in bringing the indictment does not appear to be unjustified. Nor has Robinson shown any specific instances of prejudice resulting from the delay. Accordingly, we conclude that the delay between the alleged date of the first offense and Robinson's indictment for it did not violate his Fifth Amendment due process rights.

III

Next, appellant argues that joinder of the two charges was improper.2 We have consistently recognized a presumption in favor of joinder of offenses of a similar character to conserve state funds, limit inconvenience, and avoid delay. (Thomas) Arnold v. United States, D.C.App., 443 A.2d 1318, 1322 (1982). However, a trial judge is under an obligation, pursuant to Super.Ct. Cr.R. 14, to sever separate counts in an indictment unless "(1) the evidence as to each offense is separate and distinct, and thus unlikely to be amalgamated in the jury's mind into a single inculpatory mass, or (2) the evidence of each of the joined crimes would be admissible at the separate trial of the others." Id. at 1323 (emphasis in original). We will reverse a trial court order denying severance only for an abuse of discretion. Id. at 1322; Winestock v. United States, D.C.App., 429 A.2d 519, 526-27 (1981); (James E.) Arnold v. United States, D.C.App., 358 A.2d 335, 339 (1976) (en banc). To meet that showing, the defendant must present "the most compelling prejudice . . . from which `the court would be unable to afford protection' if both offenses were tried together." Winestock v. United States, supra at 527 (citation omitted). Ruling on appella...

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