United States v. Canty

• Decision Date: 06 October 1972
• Docket Number: No. 23170,23255.,23170
• Citation: 152 US App. DC 103,469 F.2d 114
• Parties: UNITED STATES of America v. Charles L. CANTY, Appellant. UNITED STATES of America v. Charles M. RICHARDSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

152 US App. DC 103, 469 F.2d 114 (1972)

UNITED STATES of America v. Charles L. CANTY, Appellant.

UNITED STATES of America v. Charles M. RICHARDSON, Appellant.

Nos. 23170, 23255.

United States Court of Appeals, District of Columbia Circuit.

Argued September 22, 1970.

Decided October 6, 1972.

Rehearing Denied November 21, 1972.

COPYRIGHT MATERIAL OMITTED

Messrs. Frederick S. Hird, Jr. and Martin F. Klingenberg, Washington, D. C. (both appointed by this Court), with whom Mr. James R. Worsley, Jr., Washington, D. C. (also appointed by this Court), was on the brief, for appellants.

Mr. William S. Block, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before McGOWAN and ROBINSON, Circuit Judges.^*

PER CURIAM:

On the afternoon of January 31, 1967, appellants Canty and Richardson, together with a third man, were apprehended almost literally in the act of robbing a bank.¹ Within fifteen minutes of the robbery, the three men were brought to the front of the bank and lined up against a nearby fence. Observing the suspects from within the bank, witnesses to the holdup identified them as the robbers. Appellants were each indicted and ultimately tried and convicted of four counts of bank robbery, 18 U.S.C. § 2113(a) (1970), three counts of assault with a dangerous weapon, 22 D.C.Code § 502 (1967), and one count of carrying a dangerous weapon, 22 D.C.Code § 3204 (1967).² After careful consideration of the claims of error made in these consolidated appeals, we affirm each conviction on one count of bank robbery and one count of carrying a dangerous weapon but direct the vacation of the remaining counts of bank robbery and assault with a dangerous weapon.

Canty

Appellant Canty's principal and most troublesome claim of error relates to the delay of some twenty-five months between his arrest and trial. Appellant's chief defense was insanity, and, since the testimony of psychiatric witnesses for both prosecution and defense related to examinations of appellant that had taken place almost two years before the trial, it is his ability to present this defense that he claims was most seriously prejudiced by the delay. In conjunction with the alleged denial of speedy trial, appellant makes the additional claim that he was prejudiced because his attorney was not present during the psychiatric staff conference held at St. Elizabeths Hospital to determine his mental condition at the time of the offense and his competency to stand trial. Although, in his submission, such presence is comprehended within the Sixth Amendment's right to counsel, he urges that it was particularly essential here, in light of the delays, to his ability both to reconstruct the events of that conference at trial and adequately to cross-examine the psychiatrists who testified for the Government.

Recently, in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court held that speedy-trial issues are to be resolved by "a balancing test, in which the conduct of both the prosecution and the defendant are weighed." Id. at 529, 92 S.Ct. at 2192. Among the factors to be placed on the scale are 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. at 2192. None is "either a necessary or sufficient condition to" a speedy-trial deprivation; rather, "they are related factors and must be considered together with such other circumstances as may be relevant." Id. at 533, 92 S.Ct. at 2193. See also Hedgepeth v. United States, 125 U.S.App.D.C. 19, 21, 365 F.2d 952, 954 (1966). Before addressing the issue of a right to counsel at psychiatric staff conferences, we think it appropriate to consider first the reasons for the unfortunate delay in this case.

While appellant characterizes most of the time lapses here as "absolutely unnecessary governmental delay," a closer examination of the record reveals a somewhat different picture. Appellant was arrested on January 31, 1967. From February 8 to April 21, 1967 he was committed by the then District of Columbia Court of General Sessions to the D. C. General Hospital for a mental examination in connection with another case. On April 21, at his own request, appellant was committed for an additional two months to St. Elizabeths for a mental examination in the instant case; and on June 21, Dr. Cameron, Superintendent of St. Elizabeths, reported by letter to the trial court that (1) appellant was competent to stand trial, (2) "There is no indication that he was suffering from mental disease or defect on or about . . . January 31, 1967," and (3) these determinations were made on the basis of psychiatric and physical examinations throughout the period of commitment which culminated in a staff conference on June 7.

The first six months, therefore, were consumed by mental examinations, at least one of which the record indicates was at appellant's request. Delays occasioned by mental examinations of the defendant are not normally taken into account for purposes of determining the question of a denial of speedy trial. As Judge Bazelon has written in a leading opinion in this area:

Where a principal cause of postponement is the deliberate pace of the system of safeguards designed to protect the accused, the courts have been exceedingly reluctant to find constitutional infirmity even in very long delays.

Blunt v. United States, 131 U.S.App.D. C. 306, 310, 404 F.2d 1283, 1287 (1968), cert. denied, 394 U.S. 909, 89 S.Ct. 1021, 21 L.Ed.2d 221 (1969) (affirming despite 21-month delay). See also ABA Project on Minimum Standards for Criminal Justice, Standards Relating To Speedy Trial § 2.3 (Approved Draft, 1968).

The record is less than clear as to the reasons for the delay subsequent to these examinations. While the Government must undoubtedly share some of the responsibility, it also appears that appellant either contributed to, acquiesced in, or suffered little prejudice from these lapses. Thus, on September 19, 1967, he was released on bond, and shortly thereafter committed an offense in Maryland for which he was detained in that state. On November 29, and again on December 18, 1967, the Government requested continuances in the trial. However, if appellant felt prejudiced by these delays or any of the delays preceding these dates, it is noteworthy that his counsel not only did not object to the Government's motions but also requested a further continuance himself on December 27.

On January 29, 1968, on learning of appellant's detention in Maryland, the Government requested and was granted decertification of his case from the trial calendar: and it was not until October 24, 1968 that the Government applied for a writ of habeas corpus ad prosequendum to bring appellant to trial. Following the Supreme Court decisions in Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969) and Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970), this court has recognized that mere incarceration in another jurisdiction does not excuse or toll the Government's obligation to proceed expeditiously in every case. Coleman v. United States, 142 U.S.App. D.C. 402, 442 F.2d 150 (1971). This is not to say, however, that delays caused by incarceration in another jurisdiction are automatically dispositive of speedy trial questions; courts must continue to weigh the totality of circumstances in each case to determine whether the public's interest in prosecuting offenders must yield to a right which the Supreme Court has recognized as "necessarily relative." Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 49 L.Ed. 950 (1905).

In that balance, incarceration in another jurisdiction for another crime committed while out on bail cannot be viewed in precisely the same light as incarceration pending trial in the instant case. Where criminal calendars are congested, as was true at the time of the events here involved, the decision of the prosecutor to defer proceedings against someone held elsewhere in favor of proceeding against others in jail awaiting trial in his own jurisdiction is not entirely irrational, particularly in a case where, as here, the defendant not only indicated no desire for expedition but also requested a postponement himself.³

Here, in the nine months between the decertification of his case and the issuance of the writ of habeas corpus ad prosequendum, appellant neither sought nor expressed any desire to be brought to trial in the District of Columbia. Although failure to demand trial does not in itself constitute a waiver of a speedy trial claim, see Barker and Coleman, supra, it must nevertheless be considered for purposes of assessing appellant's claim of prejudice. In contrast, petitioners in Smith v. Hooey and Dickey v. Florida, supra, were incarcerated six and eight years respectively in other jurisdictions and filed numerous petitions to be brought to trial. And while the time of incarceration elsewhere in Coleman was not so great (approximately fifteen months), there also the appellant was brought to trial only after petitioning the United States Attorney to proceed with his case.

Nor do appellant's actions subsequent to his delivery in this jurisdiction suggest any desire or felt need for more expeditious proceeding. Although in December 1968, he filed a motion to dismiss his indictment for lack of speedy trial, this must be assessed in light of the fact that, as stated in the Government's brief without challenge, on November 6, 1968 he moved for a continuance of the trial date, on December 17 he moved for yet a third mental examination, and on January 9, 1969 he moved again for an additional continuance.

While the foregoing refutes appellant's contention that the preponderance of the delay here was wholly the result of inexcusable governmental neglect, we do not mean...