United States v. Bolden

• Decision Date: 23 December 1977
• Docket Number: No. 12037.,12037.
• Citation: 381 A.2d 624
• Parties: UNITED STATES, Appellant, v. Joseph A. BOLDEN, Jr., Appellee.
• Court: D.C. Court of Appeals

Page 624

381 A.2d 624

UNITED STATES, Appellant, v. Joseph A. BOLDEN, Jr., Appellee.

No. 12037.

District of Columbia Court of Appeals.

Argued October 12, 1977.

Decided December 23, 1977.

Mary Ellen Abrecht, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, John C. Martin and Dianne H. Kelly, Asst. U. S. Attys., Washington, D. C., were on brief, for appellant.

Stephen J. O'Brien, Washington, D. C., appointed by this court, for appellee.

Before KERN, YEAGLEY and MACK, Associate Judges.

KERN, Associate Judge:

This is an appeal by the United States pursuant to D.C.Code 1973, § 23-104(c), from an order of the Superior Court dismissing an information filed against appellee for want of a speedy trial. On appeal, the government argues that the facts of this case did not warrant imposition of the drastic remedy of dismissal. We agree and reverse.

On January 27, 1976, appellee was charged in an information with assault, D.C.Code 1973, § 22-504, and possession of a prohibited weapon with the intent to use it unlawfully against another, D.C.Code 1973, § 22-3214(b). At his arraignment, because a felony case was pending against appellee, the instant misdemeanor case was certified to the felony judge pursuant to Super.Ct.Cr.R. 105(b)(2)(ii).¹ A trial date of September 14, 1976 was later established. At the government's request, the trial date was accelerated to July 1976. On July 12, 1976, both parties were present and ready for trial but the court was unable to reach this case. On July 13, 1976, the day the trial would have commenced, appellee and the government agreed upon a disposition of the case and appellee entered a plea of guilty to one count of assault under the doctrine of North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Six days after the trial judge accepted this guilty plea, he recused himself on the ground that thirteen years earlier he had served as defense counsel in civil litigation in which appellee had been the plaintiff. The trial judge offered appellee the option of either certifying the case to another judge for sentencing or vacating his guilty plea. Appellee elected to have the guilty plea vacated. The felony charge against appellee was later dismissed and this misdemeanor case was certified to the misdemeanor branch for trial on November 15, 1976. On that date, the government requested a short continuance because a police witness was on annual leave. A seventeen day continuance until December 2, 1976 was granted over defense objection. On December 2, 1976, although both parties were again ready for trial, no judges were available to hear the case and it was continued until February 22, 1977. On February 22, 1977, the government obtained a second continuance until February 28 because of a death in the complainant's family. At this time, appellee filed a motion to dismiss for lack of a speedy trial. The motion was granted, after oral argument, on February 28, 1977.

Although the right to a speedy trial is a fundamental constitutional right, Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), it is impossible to precisely determine when it has been denied. Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Moreover, the right to a speedy trial is a concept more elusive of definition than an accused's other procedural rights.² In effect, we are asked to determine how long is constitutionally too long in the context of a particular case.

The burden of insuring that criminal cases are promptly tried falls on the government and on the courts. Barker v. Wingo, supra at 529, 92 S.Ct. 2182; Branch v. United States, D.C.App., 372 A.2d 998, 999-1000 (1977). In determining whether an accused's right to a speedy trial has been infringed, a court applies a four-pronged balancing test which weighs: (1) the length of the delay, (2) the reasons for the delay, (3) the assertion of the right by the defense, and (4) the prejudice to the accused. The application of these factors to a particular complex of facts compels the courts to approach speedy trial cases on an ad hoc basis.

Because the remedy for the denial of the accused's right to a speedy trial is dismissal of the indictment, Strunk v. United States, 412 U.S. 434, 439-40, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973), courts should carefully consider the imposition of this "draconian" remedy:

[Dismissal] is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy. [Barker v. Wingo, supra, 407 U.S. at 522, 92 S.Ct. at 2188; footnote omitted.]

The Supreme Court has also cautioned that:

We regard none of the four facts . as either a necessary or sufficient condition to the finding of a deprivation of the right to speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. [Barker v. Wingo, supra at 533, 92 S.Ct. at 2193; emphasis added.]

With full recognition of the pressures of court business at the trial level, we do not find in this record an exercise by the lower court of that "delicate judgment" and that "sensitive balancing" process which would justify a dismissal with prejudice on speedy trial grounds.³ See United States v. Mack, D.C.App., 298 A.2d 509, 511 (1972). The record indicates the trial court overemphasized the factor of delay without fully weighing the other three speedy trial factors enunciated by Barker v. Wingo, supra. As a matter of law, the lower court's failure to fully consider all the relevant factors announced in Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. 2182, as the linchpins of a speedy trial analysis constitutes reversible error. See United States v. Mack, supra at 511. Moreover, as the following analysis demonstrates, our balancing of the four relevant speedy trial factors indicates that even if the trial court had fully considered every factor, no denial of the accused's right to a speedy trial could have been found on the undisputed facts of this case.

LENGTH OF THE DELAY

The length of the delay is, in effect, a triggering mechanism. Smith v. United States, D.C.App., 379 A.2d 1166 (No. 10893, 1977). Until the delay becomes, at least, presumptively prejudicial, there is no necessity for further inquiry. Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. 2182. The chronology of the instant case reveals a delay of thirteen months. In this jurisdiction, a delay of one year or more between arrest and trial gives prima facie merit to a claim that a deprivation of an accused's speedy trial rights has occurred. Branch v. United States, supra at 1000; United States v. Holt, 145 U.S.App.D.C. 185, 186, 448 F.2d 1108, 1109, cert. denied, 404 U.S. 942, 92 S.Ct. 292, 30 L.Ed.2d 257 (1971); Hedgepeth v. United States, 124 U.S.App.D.C. 291, 293, 364 F.2d 684, 686 (1966). After such a delay, prejudice need not be affirmatively shown by the accused, United States v. Bishton, 150 U.S.App.D.C. 51, 55, 463 F.2d 887, 891 (1972),⁴ and a heavy burden then shifts to the government to justify the delay. Branch v. United States, supra at 1000; Smith v. United States, 135 U.S.App. D.C. 284, 286-87, 418 F.2d 1120, 1122-23, cert. denied, 396 U.S. 936, 90 S.Ct. 280, 24 L.Ed.2d 235 (1969).⁵

The government argues that the first five months following appellee's arrest cannot be characterized as "delay" at all since this period elapsed due to the operation of Superior Court Rule 105. We disagree. Although this period is an institutional delay which the government neither sought nor obtained benefit from, a delay due to the operation of the court system must be ultimately chargeable to the prosecution. Barker v. Wingo, supra, 407 U.S. at 529, 92 S.Ct. 2182; United States v. Jones, 173 U.S.App.D.C. 280, 295, 524 F.2d 834, 849 (1975). The government also argues that the appellee's decision to vacate his guilty plea ". . . necessarily allowed the clock to be turned back to zero for purposes of timing delay." (Appellant's Brief at 7.) Whatever merit this argument might have in other circumstances, we reject it in the unusual context of this case; consequently, the government must satisfactorily explain the thirteen-month delay between appellee's arrest and dismissal of the indictment.

REASON FOR THE DELAY

In an evaluation of the reasons for delay, different weights should be assigned to different reasons. Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. 2182. The undisputed explanation for at least eleven months of the delay in this case is overcrowded dockets and the operation of Rule 105. Of the remainder of the delay, seventeen days were directly attributable to the government, and a short delay was caused by a death in the complainant's family. While the entire period of delay in this case is chargeable to the government, the bulk of the delay was due to a "neutral reason"; viz., court congestion or institutional delays. Barker v. Wingo, supra at 531, 92 S.Ct. 2182; see Strunk v. United States, supra, 412 U.S. at 436, 93 S.Ct. 2260; United States v. Jones, 154 U.S.App.D.C. 211, 213, 475 F.2d 322, 324 (1972). There is no indication the government has attempted to delay the trial to obtain a tactical advantage or to harass or oppress the defense. Branch v. United States, supra; United States v. Lara, 172 U.S.App.D.C. 60, 65, 520 F.2d 460, 465 (1975). The institutional delays which comprise the bulk of the delays in this case are to be weighed less heavily against the government in a speedy trial determination than a deliberate attempt to delay the trial or seek other tactical advantage. Smith v. United States, D.C.App., 379 A.2d...