U.S. v. Latimer

• Decision Date: 14 April 1975
• Docket Number: No. 74--1270,74--1270
• Citation: 511 F.2d 498
• Parties: UNITED STATES of America, Palintiff-Appellee, v. Bruce Loren LATIMER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 498

511 F.2d 498

UNITED STATES of America, Palintiff-Appellee, v. Bruce Loren LATIMER, Defendant-Appellant.

No. 74--1270.

United States Court of Appeals Tenth Circuit.

Argued Nov. 11, 1974.

Decided Feb. 21, 1975.

Rehearing Denied April 14, 1975.

Michael M. Hunter, Asst. U.S. Atty., Salt Lake City, Utah (C. Nelson Day, U.S. Atty., Salt Lake City, Utah, on the brief), for plaintiff-appellee.

Dean R. Mitchell, Salt Lake City, Utah, for defendant-appellant.

Before MURRAH, HILL and HOLLOWAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Appellant Latimer appeals his conviction for robbery of a federally insured bank in violation of 18 U.S.C.A. § 2113(a). He was also charged with a § 2113(d) offense of putting in jeopardy the life of a teller but was acquitted of that charge. He presents a number of claims of error. On this record we must uphold the contention that Government counsel made improper and prejudicial comments outside the record during argument, and accordingly reverse and remand for a new trial.

It is convenient to detail the facts briefly in discussing the first issue raised by appellant--the claim of denial of a speedy trial--to which we turn.

1. The speedy trial issue

Appellant's initial contention is that he was denied his Sixth Amendment right to a speedy trial. He says that delay from arrest to arraignment and from arraignment to trial was unreasonable; that he had requested a speedy trial; that he was prejudiced by impairment of the witnesses' ability to recollect and that, in sum, under the test set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, we must hold that his constitutional right to a speedy trial was denied. We treat this claim first because, if we find merit in it, the case must be dismissed. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56.

The facts briefly are as follows. The South State Street Branch of the First Security Bank of Utah in Salt Lake City was robbed of about $1200 on April 2, 1973. The robber were a stocking cap pulled down over his hair and ears. Appellant was arrested later that day and charged with the offense. No money or weapons were found on appellant when he was arrested.

A preliminary hearing was held on April 12, 1973, and appellant was arraigned on July 26. At the arraignment, indictment was waived and appellant pleaded not guilty to the two count information charging the § 2113(a) and (d) offenses. Apparently at that time appellant's counsel stated, in response to the court's inquiry, that he would be ready to try the case within two weeks. ¹ Trial was scheduled on the October 1973 calendar. However, for reasons not shown in the record the case was reset and trial was ultimately held on March 12, 1974. ²

The record contains no motion or other indication of an objection to the delay in trial. Nor, on the other hand, does it reveal any evidence of acquiescence in the delay.

At trial two eyewitnesses identified appellant as the robber. One, however, had not identified him when shown mugshots or at a line-up the day after the robbery, although she did identify him a week later at the preliminary hearing. However, this witness was unable to recall, on cross-examination at trial, that at the preliminary hearing she admitted that some Government employee or police officer had told her that they had had complaints about the defendant before. Another eyewitness, the assistant manager of the bank, at trial could not remember some circumstances about the robbery or his statement to the police about it. These and similar circumstances are pointed to as showing prejudice to the appellant.

The Sixth Amendment guarantee has been the subject of several major opinions by the Supreme Court in recent years. See Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1; United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468; Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101; Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56. The Court has also promulgated an amendment to the Federal Rules of Criminal Procedure, Rule 50(b), requiring plans of the district courts to further the prompt disposition of criminal cases. ³ And most recently Congress has shown its concern for the guarantee by enacting the Speedy Trial Act of 1974, establishing statutory time limits for processing criminal proceedings. Pub.L.No. 93--619 (January 3, 1975). The statute is, of course, not applicable in deciding this appeal. Reliance here is placed on the constitutional guarantee alone and we must resolve the issue under the decisions of the Supreme Court applying it.

The Supreme Court has adopted a balancing test to resolve speedy trial questions, in which the conduct of both the prosecution and the defendant are weighed. Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. 2182. The Court identified four factors which must be considered: the length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Id. at 530, 92 S.Ct. 2182; see United States v. Spoonhunter, 476 F.2d 1050, 1057 (10th Cir.). The factor of prejudice, in turn, is to be assessed in the light of three interests that the speedy trial right is designed to protect--to prevent oppressive pretrial incarceration; to minimize anxiety and concern of the accused; and to limit the possibility that the defense will be impaired, this last interest being the most important. Barker, supra at 532, 92 S.Ct. 2182. In applying this balancing test we must bear in mind that the primary burden is placed on the courts and prosecutors to assure that cases are brought to trial; the defendant has no duty to bring himself to trial. Id. at 529, 527, 92 S.Ct. 2182.

The first factor--the amount of delay--is a 'triggering mechanism' under the Barker test. Id. at 530, 92 S.Ct. 2182. Until there is some delay which is potentially prejudicial, there is no need for inquiry into the other factors. In our case the delay provokes an inquiry into all the factors and the peculiar circumstances involved. The delay was about 3 1/2 months from arrest to arraignment, where indictment was waived. It was then about 7 1/2 months more until trial on March 12, 1974. The delay in regrettable and exceeded the standards established in the Rule 50(b) plan, unless an extension was justified. Further, the offense does not involve a serious, complex charge that might justify more toleration for delay. Barker, supra at 531, 92 S.Ct. 2182. Thus the delay factor here raises a substantial and serious question, provoking inquiry into the circumstances and the other factors that must be weighed.

The reason for the delay is not shown by our record. The Government brief asserts the October trial was rescheduled due to the heavy calendar, with neither party requesting or objecting to the postponement. However, as noted above, at the February 4, 1974, calendar call defense counsel did state he was ready for trial. Unintentional delays caused by overcrowded dockets are to be weighed less heavily than intentional delay, but must nevertheless be considered since the ultimate responsiblity for such circumstances must rest with the Government rather than with the defendant. Strunk v. United States, 412 U.S. 434, 436, 93 S.Ct. 2260, 37 L.Ed.2d 56. Still, there was action by the court in setting and calling calendars, and thus we are not inclined to weigh this factor too heavily against the Government, although the showing as to the reason for the delay is not comforting.

We have stated what the record shows as to appellant's assertion of his right--counsel's statement at arraignment in July, 1973, that he would be ready for trial within two weeks, and the statement on February 4, 1974, at the calendar call that he was ready for trial. There is, however, in our record no other motion or objection to the delay and rescheduling of trial. We may weigh the frequency and force of the objections. Barker, supra, 407 U.S. at 529, 92 S.Ct. 2182. Here there clearly was no waiver of the speedy trial right, but the frequency and force of the objections revealed in our record are not strong.

Potential prejudice is the remaining factor to weigh under Barker. Here there was no oppressive pretrial incarceration. Release on bail was allowed a few days after arrest, we are advised. The factor of anxiety and concern is present and undesirable. As to the possibility of impairment of the defense, no absence or loss of witnesses and no substantial showing of loss of witnesses' memories are demonstrated, and we are not persuaded that any significant prejudice occurred. See United States ex rel. Walker v. Henderson, 492 F.2d 1311, 1315--16 (2d Cir.), cert. denied, 417 U.S. 972, 94 S.Ct. 3179, 41 L.Ed.2d 1144; but see United States v. Butler, 426 F.2d 1275, 1277 (1st Cir.), cert. denied, 401 U.S. 978, 91 S.Ct. 1207, 28 L.Ed.2d 328. And in these circumstances we decline to apply any rule calling for dismissal based on a reasonable possibility of prejudice, as appellant urges, in addition to his claim of actual prejudice. ⁴

In sum, while appellant's claim of denial of speedy trial is substantial and the case is close, we conclude that no denial of appellant's constitutional right is demonstrated.

2. The Government's closing argument

Second, we turn to appellant's claim of misconduct by Government counsel during final summation in 'testifying as to evidence which had not been admitted or proven at trial,' thus denying him a fair trial in violation of due process.

At trial two tellers who observed the robbery testified that they had activated the bank's alarm and camera system during the robbery. However, no pictures taken by the camera were introduced by the Government, and no explanation was given as to why the film was not produced. In final argument appellant's counsel pointed to this omission and argued the inference that the film was not produced because it did...