U.S. v. Jones

• Decision Date: 09 June 1994
• Docket Number: No. 93-3155,93-3155
• Citation: 23 F.3d 1307
• Parties: UNITED STATES of America, Appellee, v. Timothy Alphonso JONES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1307

23 F.3d 1307

UNITED STATES of America, Appellee, v. Timothy Alphonso JONES, Appellant.

No. 93-3155.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 11, 1994.

Decided May 4, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied June 9, 1994.

Philip C. Graham, St. Louis, MO, argued, for appellant.

Thomas Mehan, Asst. U.S. Atty., St. Louis, MO, argued, for appellee.

Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and WELLFORD, ^* Senior Circuit Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

In January, 1992, Timothy Jones was indicted in federal court on one count of bank robbery. Mr. Jones finally went to trial in May, 1993. He was convicted and sentenced to 220 months in prison.

On appeal, Mr. Jones contends that he was deprived of his right to a speedy trial under federal statutes and under the Constitution. He also contends that the trial court should have granted his motion to suppress certain statements made to law enforcement officers and should have denied the admission of certain photographs introduced during the trial. We affirm the trial court ¹ in all respects.

I.

In a case where the defendant pleads "not guilty," trial must begin within 70 days of the indictment or the defendant's first appearance before a judicial officer in the court where the charge is pending, whichever is later. See 18 U.S.C. Sec. 3161(c)(1). Certain periods are excluded from the calculation. See 18 U.S.C. Sec. 3161(h).

Mr. Jones's trial was set for June 2, 1992. By that time, because of various excludable periods authorized under the statute, only 13 days had elapsed on the speedy trial clock. On June 2, a jury was chosen. Before the jury was sworn, however, the trial court held a hearing on two motions to suppress that were still pending. During that hearing, which took place outside the presence of the jury, Mr. Jones apparently created some type of disturbance (we have no transcript of the proceedings). The trial court took the motions to suppress under advisement and adjourned the trial until the next day. On June 3, without ruling on the motions to suppress, the trial court declared a mistrial sua sponte because of Mr. Jones's behavior during the hearing on the previous day. A week later, the trial court ordered a psychiatric examination of Mr. Jones. See 18 U.S.C. Sec. 4241(a), Sec. 4241(b), Sec. 4247(b).

"Trial" for purposes of speedy trial calculations begins at voir dire. See, e.g., Government of the Virgin Islands v. Duberry, 923 F.2d 317, 320-21 (3d Cir.1991); United States v. Fox, 788 F.2d 905, 908 (2d Cir.1986); United States v. A-A-A Electrical Co., 788 F.2d 242, 246 (4th Cir.1986); United States v. Crane, 776 F.2d 600, 603 (6th Cir.1985); United States v. Martinez, 749 F.2d 601, 604 (10th Cir.1984); United States v. Manfredi, 722 F.2d 519, 524 (9th Cir.1983); United States v. Howell, 719 F.2d 1258, 1262 (5th Cir.1983) (per curiam ), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984); and United States v. Gonzalez, 671 F.2d 441, 443, 443 n. 3 (11th Cir.1982), cert. denied, 456 U.S. 994, 102 S.Ct. 2279, 73 L.Ed.2d 1291 (1982). See also Gomez v. United States, 490 U.S. 858, 873, 873 n. 26, 109 S.Ct. 2237, 2246, 2246 n. 26, 104 L.Ed.2d 923 (1989), and United States v. Johnson, 962 F.2d 1308, 1312 n. 8 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 358, 121 L.Ed.2d 271 (1992), --- U.S. ----, 113 S.Ct. 1418, 122 L.Ed.2d 788 (1993). For speedy trial purposes, then, Mr. Jones's first "trial" was timely.

Mr. Jones's retrial did not take place until May 26, 1993. In this appeal, he contends that his retrial was untimely under both the speedy trial statute and the sixth amendment. The speedy retrial clock in this case is governed by 18 U.S.C. Sec. 3161(e), which states that where a defendant "is to be tried again following a declaration ... of a mistrial," retrial must begin within 70 days of "the date the action occasioning the retrial becomes final," not counting the periods of delay authorized by other parts of the statute. The parties seem to agree that Mr. Jones's conduct in the June 2, 1992, hearing, and the consequent psychiatric examination, was "the action occasioning the retrial," see id. The court need not decide, then, if that conclusion is correct. Mr. Jones argues that since the psychiatric report was completed on July 8, 1992, retrial should have taken place within 70 days of that time (before September 16, 1992). Since it did not, Mr. Jones asserts, he was deprived of the statutory right to a speedy retrial guaranteed by 18 U.S.C. Sec. 3161(e).

The government responds that the psychiatric report consequent to the declaration of a mistrial was not the "final" event, see id., that would begin the speedy retrial clock. The government contends that a hearing on the question of competency is required under 18 U.S.C. Sec. 4241(a), see also 18 U.S.C. Sec. 4241(c), and therefore that the speedy retrial clock did not begin to run until April 2, 1993, when a hearing on Mr. Jones's competency was finally held. See, e.g., Henderson v. United States, 476 U.S. 321, 329-30, 106 S.Ct. 1871, 1876-77, 90 L.Ed.2d 299 (1986). The government also argues that the motions to suppress could not be decided until the question of competency was resolved. The government thus argues that the time between April 2, when the competency hearing resolved the question of Mr. Jones's fitness to stand trial, and the actual retrial date of May 26 was well within the 70 days allowed.

The cover letter accompanying the psychiatric report is dated July 23, 1992, but neither the docket sheets nor the trial court files reflect when the trial court received the report. Nor do the parties offer any illumination on that score. We therefore consider the report to have been received by the trial court on July 23 and calculate the speedy retrial deadline from that day.

The psychiatric report submitted to the court indicated that Mr. Jones was competent to stand trial. Under those circumstances, the trial court had the discretion to hold or to forgo an additional hearing on Mr. Jones's competency. See, e.g., United States v. Goodman, 590 F.2d 705, 708 n. 5, 709 (8th Cir.1979), cert. denied, 440 U.S. 985, 99 S.Ct. 1801, 60 L.Ed.2d 248 (1979); Durham v. Wyrick, 545 F.2d 41, 44 (8th Cir.1976) (per curiam ); Belvin v. United States, 538 F.2d 1335, 1336 (8th Cir.1976) (per curiam ), cert. denied, 429 U.S. 1100, 97 S.Ct. 1123, 51 L.Ed.2d 549 (1977); United States v. Dworshak, 514 F.2d 716, 717 n. 2, 719 (8th Cir.1975); Rose v. United States, 513 F.2d 1251, 1256 (8th Cir.1975) (per curiam); United States v. Maret, 433 F.2d 1064, 1067 (8th Cir.1970), cert. denied, 402 U.S. 989, 91 S.Ct. 1678, 29 L.Ed.2d 155 (1971); and Krupnick v. United States, 264 F.2d 213, 217 (8th Cir.1959) (all, however, relating to a previous version of the statute that is slightly different in wording). See also 1 C. Wright, Federal Practice and Procedure: Criminal 2d Sec. 196 at 727-28 (1982).

The case law is confused with respect to whether a subsequent judicial declaration of competency is necessary. For purposes of certainty, we believe that such a declaration is necessary. With that assumption, we exclude 30 days from the speedy retrial calculation while the question of competency could be considered to have been under advisement. See 18 U.S.C. Sec. 3161(h)(1)(J). Since we consider the trial court to have received the psychiatric report on July 23, 1992 (the date of the cover letter), we exclude the period from July 23 through August 22.

Between August 23 and December 1, when Mr. Jones moved for trial subpoenas, nothing happened. (We do not count the government's motion for a competency hearing, made in mid-September, as an event precipitating excludable time, because we have already allowed 30 days for the question of competency to have been under advisement.) That period was 99 days. Mr. Jones's motion was granted on the same day it was made, so December 1, 1992, is excluded. See 18 U.S.C. Sec. 3161(h)(1)(F). Retrial was originally set for December 7. The period between December 2 and December 7 is counted. That span was six days.

At that point alone, using July 23, 1992, as the starting date for the retrial clock, 105 days had elapsed (August 23 through November 30, December 2 through December 7). Even so, at that juncture, Mr. Jones had not raised any objection to the length of time until retrial. If retrial had begun on that day, Mr. Jones would be considered to have waived any objection based on his statutory speedy retrial rights. See 18 U.S.C. Sec. 3162(a)(2), which specifies that "[f]ailure of the defendant to move for dismissal [based on speedy trial grounds] prior to trial ... shall constitute a waiver of the right to dismissal [on those grounds]." The provision is made applicable to retrials by 18 U.S.C. Sec. 3161(e). See also United States v. Ferguson, 776 F.2d 217, 222 (8th Cir.1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986) (with respect to trial), and United States v. Tercero, 640 F.2d 190, 195 (9th Cir.1980), cert. denied, 449 U.S. 1084, 101 S.Ct. 871, 66 L.Ed.2d 809 (1981) (with respect to retrial).

Retrial did not take place on December 7, however, because on that day, Mr. Jones's lawyer moved to withdraw, stating that Mr. Jones had threatened him. Accordingly, Mr. Jones's lawyer also asked at that time for a continuance for Mr. Jones. The trial court granted both motions, suggested to Mr. Jones that he try to find a lawyer, and reset the retrial for January 11, 1993.

Mr. Jones had not found a lawyer by January 11, so on that day the trial court appointed one for him and reset the case for January 25. On January 20, the new counsel for Mr. Jones moved for a continuance; the motion was accompanied by a consent to the continuance signed by Mr. Jones. The trial court granted the motion, but the docket sheets do not reflect a new setting at that time. When the...