Smith v. United States

• Decision Date: 30 April 1980
• Docket Number: No. 13697.,13697.
• Citation: 414 A.2d 1189
• Parties: Albert B. SMITH, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1189

414 A.2d 1189

Albert B. SMITH, Appellant, v. UNITED STATES, Appellee.

No. 13697.

District of Columbia Court of Appeals.

Argued July 25, 1979.

Decided April 30, 1980.

COPYRIGHT MATERIAL OMITTED

Allen S. Rugg, Alexandria, Va., for appellant.

John H. Sturc, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., at the time the brief was filed, John A. Terry, Michael W. Farrell, and James M. Hanny, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, and KERN and FERREN, Associate Judges.

FERREN, Associate Judge:

A jury convicted Albert B. Smith of second degree murder while armed, D.C. Code 1973, §§ 22-2403, -3202, and unlawful possession of a pistol, D.C.Code 1973, § 22-3203. On appeal, he asserts that the trial court erred in ruling that (1) the 14-month delay in executing the warrant for his arrest did not violate his rights to due process and a speedy trial, and that (2) the victim's eight-year old daughter was competent to testify.¹ We affirm the convictions, although we remand the case for correction of an illegal sentence.

I.

The government's evidence showed that in 1973 the decedent, Regina Simms, and her daughter, Latita (then approximately three and one-half years old), were living in an apartment with Regina's brother, Maurice Simms. When Albert B. Smith (appellant) moved in with Regina sometime in the early summer of 1973, Maurice moved to another apartment in the same building.² On the afternoon of September 15, 1973, Regina's long-time friend, Sylvia Morrison, found Regina shot to death in her apartment.³ Morrison summoned the police, who arrived minutes later.⁴ The police saw no sign of forcible entry into the apartment but found a .38 caliber revolver, containing one expended round of ammunition and four live shells, next to the body, along with a bottle of pills. A box of bullets was found in the dresser in the master bedroom. On top of the dresser was a picture of Regina Simms and appellant, as well as several pieces of mail addressed to appellant. Men's clothing was in the closet and in the dresser. A warrant was issued for appellant's arrest shortly after the murder. Over the ensuing weeks, the police made futile attempts to find appellant at former addresses.

In the summer of 1974, Theresa D. Martin and her sister, Mary Woodard, met appellant — who identified himself as Bruce Green — in Los Angeles, California. After "Green" had lived with Martin for several months, he confided to her and Woodard that he was from Washington, D.C., and that he had left the city for Los Angeles because he had killed a woman. In March 1976, appellant was arrested on an unrelated charge by Terry L. Crabtree, then an officer with the Los Angeles Police Department (LAPD). At the scene of the arrest, appellant told Crabtree that he was Bruce Green, had lived in Los Angeles for five years, and had come to Los Angeles "from nowhere." Appellant's fingerprints were taken and submitted for comparison to the National Crime Information Center computer.⁵ Appellant, meanwhile, was placed in a holding cell. Soon thereafter, as Officer Crabtree was walking toward the booking area of the stationhouse, appellant knocked on the window of his cell and requested a cigarette. Crabtree had learned that there might be outstanding warrants for appellant's arrest related to unspecified offenses in the east; he mentioned the possible warrants to appellant. Crabtree testified at trial that appellant then "swallowed several times, sighed real deep, water came to his eyes." He testified further that appellant told him:

"Ya, man, I am wanted for murder in Washington, D.C. . . . I went back to the pad, and there was a dude in the pad. My old lady was laying on the bed. A man has got to have protection, and I had a piece of protection. She died."

I believe also that he [appellant] stated that "I was trying to keep what was mine." At that time, I said, "You mean you dumped her," meaning, in the particular area where I was working, did you kill her? He said, "Yes, I dumped her."

Q. [By the prosecutor]: Was there any other conversation after he said he had dumped her, or he had killed her?

A. Yes, I said, "Are you sure she died?" At that time he stated to me, "Yes, she died. I called, and they told me that she had died. I went under, and then I found out the police was hunting me, and I went to L.A."⁶

After appellant admitted his true identity and confessed to the murder, the LAPD notified the Metropolitan Police Department, which issued another warrant for appellant's arrest on that charge on March 25, 1976.⁷ Appellant was tried and convicted on the California charges on July 7, 1976. During his jail term for that offense, an extradition hearing was held pursuant to another arrest warrant based on revocation of probation for a previous District of Columbia conviction. California authorities, however, refused to release him until he had served the sentence imposed for the California offense which had led to his March 1976 arrest.

On December 21, 1976, appellant was returned to the District of Columbia. A Superior Court judge revoked his probation and sentenced him to a term of imprisonment for the probation violation. The Department of Corrections, however, inadvertently failed to notify the police department of appellant's return, resulting in a five and one-half month delay — until June 6, 1977 — of the execution of the murder arrest warrant and presentment on the complaint.

On February 27, 1978 — nine days before trial — appellant filed a Motion to Dismiss for Want of a Speedy Trial. He claimed that his Fifth Amendment due process right to a fair trial had been violated by the 14-month delay in the execution of a warrant for his arrest, since the District police had known his whereabouts during the entire period. He also claimed that his Sixth Amendment right to a speedy trial had been denied by a delay of nine months between the time of his arrest for murder and his trial. The trial court heard and denied the motion before trial. Following trial, the court entered a written memorandum opinion explaining its rulings on these claims.

Also before trial, appellant requested that the trial court conduct a voir dire of two government witnesses, Latita Simms (then age eight) and Mark Wrice (then age 13). He contended that both children were incompetent to testify because of their ages. The court conducted the voir dire with questioning first by the prosecutor, then by the court.⁸ At its conclusion, the court found both witnesses competent to testify, subject to reconsideration.⁹

At trial, Latita Simms, who had been approximately three and one-half years old at the time of her mother's murder, testified that in 1973 appellant (who Latita knew as "Skeeter") had moved into their apartment. She identified appellant in court.¹⁰ Latita testified that she had awakened early on the morning of September 15, 1973 and heard the voices of her mother and Skeeter, arguing. She then heard a loud bang, got up, stood behind the door to her mother's bedroom, and saw appellant going through the dresser drawer. Latita went up the hall to the bathroom, where she saw her mother lying on the floor. She saw appellant bend down and put something next to her mother's arms and legs. Appellant returned to the bedroom, took some clothes, and told Latita not to tell anybody. After appellant left the apartment, Latita went outdoors.

After testimony by government witnesses, the defense called several alibi witnesses. Appellant himself also testified, denying that he had made any admission to Officer Crabtree about the murder or the murder weapon, or about arguing with Regina Simms. He specifically denied killing the decedent.

The jury convicted appellant, and the trial court sentenced him to 15 years to life in prison for second degree murder while armed, and to three and one-half years to 10 years for unlawful possession of a pistol, the sentences to run concurrently. This appeal followed.

II.

Appellant contends, first, that the trial court erred in ruling that the pre-arrest delay of 14 months between the second warrant for his arrest (March 25, 1976) and his initial presentment (June 6, 1977) violated his Fifth Amendment right to due process.¹¹

A. To prevail on his Fifth Amendment claim, appellant must prove, at a minimum, that he suffered demonstrable prejudice as a result of the pre-arrest delay. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Tolliver v. United States, D.C.App., 378 A.2d 679 (1977).¹² Prejudice alone, however, is not enough. The Supreme Court has underscored that "proof of prejudice is generally a necessary but not sufficient element of a due process claim[;] . . . the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." Lovasco, supra, 431 U.S. at 790, 97 S.Ct. at 2048-2049; accord, Tolliver, supra. See generally United States v. Alston, D.C.App., 412 A.2d 351, at 359-362 (1980) (en banc) (post-trial appellate delay analyzed in Fifth Amendment due process framework).

In considering reasons for delay, the Supreme Court implicitly has held that, when coupled with prejudice to the accused, "intentional" government delay designed "to gain a tactical advantage over the accused" will support a Fifth Amendment claim. Marion, supra, 404 U.S. at 324, 92 S.Ct. at 465 (footnote omitted).¹³ The Court also has intimated that a showing of government delay "incurred in reckless disregard of circumstances" may support such a claim. See Lovasco, supra, 431 U.S. at 795 n. 17, 97 S.Ct. at 2051.¹⁴ Neither the Supreme Court nor this court, however, has indicated that government delay attributable solely to negligence can violate due process. We conclude that, with the possible exception of a showing of severe prejudice...