Turner v. United States

• Decision Date: 12 March 1982
• Docket Number: No. 79-1135.,No. 79-1094.,79-1094.,79-1135.
• Citation: 443 A.2d 542
• Parties: Jewel TURNER, Appellant, v. UNITED STATES, Appellee. Walter A. BROOKS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

443 A.2d 542

Jewel TURNER, Appellant, v. UNITED STATES, Appellee. Walter A. BROOKS, Appellant, v. UNITED STATES, Appellee.

No. 79-1094.

No. 79-1135.

District of Columbia Court of Appeals.

Argued November 5, 1980.

Decided March 12, 1982.

COPYRIGHT MATERIAL OMITTED

Frederic R. Kellogg, Washington, D. C., appointed by the court, for appellant Turner.

Robert Bunn, Washington, D. C., appointed by the court, for appellant Brooks.

Keith A. O'Donnell, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty. at the time the briefs were submitted, John A. Terry and Michael W. Farrell, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KERN and FERREN, Associate Judges, and GALLAGHER,^* Associate Judge, Retired.

GALLAGHER, Associate Judge, Retired:

On the evening of April 9, 1978, Andre Reddick, Milton Heard, Roderick Anderson, and Joseph Doughton visited the apartment of one Wendall Smith, located at 1414 Swann Street, N.W. As Smith, Anderson, and Doughton were preparing to leave the apartment on an errand, appellant Jewel Turner arrived. He asked Smith for a bowl of cereal, which he ate while Smith, Anderson, and Doughton left. Appellant Turner departed soon thereafter, leaving Heard and Reddick alone. Some time later, Heard, who had fallen asleep, was roused by Reddick to find appellant Turner standing before him with a pistol. Another man standing behind Heard, later identified by him as appellant Walter A. Brooks, directed Reddick and Heard to empty their pockets. When Heard hesitated, Brooks reached into his pocket from behind and removed the sizeable bankroll Heard had in his possession. Heard and Reddick were then ordered to remove their shoes and socks and proceed toward the basement. As Heard walked toward the door, Brooks struck him in the head, knocking him to the floor. A shot then rang out from the vicinity of the door where Turner was standing, and the appellants fled. When Heard looked up, he discovered Reddick bleeding profusely from a wound in the neck which quickly proved fatal.

Appellants were charged with first-degree felony murder (D.C.Code 1973, § 22-2401) and armed robbery (id. -2901, -3202). Following a suppression hearing, appellants were tried before a jury, which rendered verdicts of guilty on all counts.

Both Turner and Brooks appeal from these judgments. We affirm.

I Turner

Turner raises two points on appeal.¹ First, he argues that the trial court committed error in denying his two motions for severance, and a later motion for dismissal, on speedy trial grounds. Second, he contends that it was error for the trial court to have quashed his subpoena for police records of prior search warrants for the apartment at 1414 Swann Street, N.W. These contentions are without merit.

A. Speedy Trial Claim

In reviewing alleged violations of the Sixth Amendment right to a speedy trial, we apply the four-pronged balancing test enunciated by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Under that test, we weigh the length of the delay, the reasons for the delay, the defendant's assertion of the right, and the prejudice to the accused. E.g., Gaffney v. United States, D.C.App., 421 A.2d 924 (1980); Bethea v. United States, D.C.App., 395 A.2d 787 (1978); Branch v. United States, D.C.App., 372 A.2d 998 (1977). Applying the Barker test to the facts of this case, we concluded that the trial of appellant Turner some 16 months after his arrest did not violate his Sixth Amendment right to a speedy trial.

Turner was arrested on April 15, indicted on August 3, and arraigned on August 16, 1978. Trial of Brooks and Turner was originally set for November 20, 1978. On that date, a one day continuance was granted due to the illness of Brooks' counsel; Turner made no objection to this postponement. When the case was called the next day, Brooks' counsel was still ill, and the case was again continued — presumably with Turner's consent — until February 21, 1979. When inclement weather prevented the appearance of both defendants and Turner's attorney on February 21, a new trial date of April 12, 1979 was arranged by the court and counsel. On February 22, however, "at defense request" (according to the docket entry in Turner's case jacket), the case was continued for trial as a "back up case" until June 4, 18, 19, or 20, 1979. It was on June 4, 1979, when counsel for Brooks again requested a continuance until June 18 because of illness, that Turner first moved unsuccessfully for severance on speedy trial grounds. On June 18, Brooks' counsel was still ill and a continuance was granted until August 13, 1979. While the record indicates no opposition by Turner, he had renewed his motion for severance in writing on June 15, and it presumably registered his continuing desire for an immediate separate trial. On August 9, Turner filed his motion to dismiss on speedy trial grounds. A hearing thereon on August 13 delayed the trial one more day. Trial commenced on August 14 and concluded with verdicts of guilty three days later.

At the outset, we note that a delay of a year or more between arrest and trial gives prima facie merit to a claim that an accused has been denied his right to a speedy trial. Day v. United States, D.C. App., 390 A.2d 957, 964 (1978); Branch v. United States, supra at 1000; United States v. Mack, D.C.App., 298 A.2d 509, 511 (1972).

Upon examination of the specific reasons for the various delays prior to Turner's first motion for severance, the government does not appear responsible for the nearly four month delay in the return of the indictment against Turner. In fact, a preliminary hearing was held on April 21, 1978 — six days after Turner's arrest on a criminal complaint — and the case was promptly referred to the grand jury. The ten week delay in returning an indictment, as well as the first scheduling of trial for November 20, 1980 — some 15 weeks thereafter — are totally attributable to the normal delay inherent in the operation of the court system, a delay which we assess as "basically neutral."² Bowman v. United States, D.C.App., 385 A.2d 28, 31 (1978); see Gaffney, supra at 928; Bethea, supra at 791. The postponement of trial from February 21 to April 12, 1979, cannot be counted heavily against the government. Trial could not be held on the appointed day because of inclement weather; and while the government must be charged with the delay caused by the court's inability to reschedule trial for an earlier date, we do not weigh such unavoidable institutional delays heavily. See United States v. Perkins, D.C. App., 374 A.2d 882, 883-84 (1977). Turner, rather than the government, is properly chargeable with the four months of delay (November 20, 1978-February 21, 1979) directly caused by his codefendant's first two requests for continuances, since we must infer, in the absence of objection or a request for severance, that Turner assented to the postponement. Moreover, the record shows that counsel for Turner was himself directly responsible for another two-month delay when he requested in advance that the trial be continued from April 12 to June 4, 18, 19, or 20, 1979. See Bowman, supra at 31. This totals six months.

We are not unmindful of Turner's later attempts after June 4, 1979 to secure a severance so that he could avoid further trial delays occasioned by the illness of counsel for his codefendant Brooks.

We are not prepared to say that on the facts of this case, the trial judge abused his discretion in denying Turner's motion for severance. See Bittle v. United States, D.C.App., 410 A.2d 1383, 1386 (1980); Cunningham v. United States, D.C.App., 408 A.2d 1240, 1243 (1979); Sousa v. United States, D.C.App., 400 A.2d 1036, 1041, cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408 (1979); Johnson v. United States, D.C.App., 398 A.2d 354, 367 (1979). Cf. Hamilton v. United States, D.C.App., 395 A.2d 24, 27 (1978), quoting Clark v. United States, D.C.App., 367 A.2d 158, 160 (1976) (trial court has "extremely wide latitude" in determining whether to sever, and findings will not be disturbed unless clearly erroneous). At the time Turner first moved for severance (June 4, 1979), he had already been held for almost 14 months. While the larger portion of this delay must be attributed to the government, we do not weigh it heavily against the prosecution because of the nature of the delay. We must charge Turner himself with at least six months of this delay. This leaves a defendant in a poor position to prevail on lack of a speedy trial claim. Additionally, the only allegation of prejudice in Turner's written motion was that the memory of witnesses and that of Turner himself might fade if trial were not held expeditiously.³ We can see no clear error in the trial judge's determination that an added delay of one or two months would be unlikely to lead to a significant further weakening of the defendant's case.⁴ Nor do we find any abuse of discretion in the trial court's judgment that this slight possibility of prejudice was outweighed by an interest in judicial economy, see Bittle, supra at 1386, as well as by Turner's failure to have earlier asserted his desire for immediate trial.

We conclude further that it was not error for the trial judge to have denied Turner's pretrial motion to dismiss for want of a speedy trial. While there were ten weeks between Turner's first request for severance and his motion to dismiss, we do not believe that this relatively short period of time significantly prejudiced Turner further, either personally or in his defense. That his defense was not impaired in fact by even the full 16 month delay, a substantial part of which was attributable to the defense, seems evident from Turner's failure to point to any concrete impairments to his case, either in a renewed motion to dismiss made after trial or in his argument before this court.⁵ See Reid v. United States, D.C.A...