United States v. Lynch

• Decision Date: 07 May 1974
• Docket Number: No. 71-1803.,71-1803.
• Parties: UNITED STATES of America v. Perry LYNCH, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

499 F.2d 1011 (1974)

UNITED STATES of America v. Perry LYNCH, Appellant.

No. 71-1803.

United States Court of Appeals, District of Columbia Circuit.

Argued September 21, 1972.

Decided May 7, 1974.

COPYRIGHT MATERIAL OMITTED

Daniel G. Grove, with whom John J. Collins, Washington, D. C. (both appointed by this Court) was on the brief, for appellant.

Julius A. Johnson, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry and John F. Evans, Asst. U. S. Attys., were on the brief, for appellee.

Before TAMM and MacKINNON, Circuit Judges and WADE H. McCREE, Jr.^* Circuit Judge, for the Sixth Circuit.

McCREE, Circuit Judge.

On August 29, 1968, at approximately two a.m., Robert Mitchell was shot and killed on the corner of 7th and N Streets, N.W. The appellant, Perry Lynch, was arrested on October 4, 1968, and was tried by jury, beginning on April 28, 1971, in the United States District Court for the District of Columbia upon a two-count indictment charging first degree murder¹ and carrying a dangerous weapon.² After all the evidence had been presented, the court granted appellant's motion for a judgment of acquittal on the first degree murder charge but denied the motion for acquittal on the lesser included offenses. The case was submitted to the jury, which returned a verdict of guilty of both second degree murder and the dangerous weapons offense. The court imposed concurrent sentences of from five to twenty years for murder and of one year for carrying a dangerous weapon.

On appeal the appellant raises nine issues,³ the most significant of which are, in our view, (1) whether appellant's right to a speedy trial guaranteed by the Sixth Amendment to the United States Constitution was abridged by the delay of approximately thirty-one months from arrest to trial; and (2) whether the district court erred in admitting in evidence at trial the preliminary hearing testimony of the only eyewitness who identified appellant, when this witness, although apparently still within the jurisdiction of the court, failed to appear at the trial. We conclude that under the peculiar circumstances of this case appellant was not denied his constitutional right to a speedy trial. We agree, however, that the government should not have been permitted to introduce the preliminary hearing testimony of the absent witness because it did not adequately demonstrate that this critical witness was "unavailable" at the time of trial. Accordingly, we hold that the admission of the preliminary hearing testimony at trial was erroneous as a matter of federal evidentiary law. Appellant's conviction is vacated and because of our decision on this issue, we find it unnecessary to consider the other issues raised on appeal.

I

We consider, first, appellant's contention that the lengthy interval between his arrest and trial was an undue delay that deprived him of his constitutional right to a speedy trial. In assessing this contention we are guided by the decision of the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 701 (1972), which declared that speedy trial claims require courts to employ a sensitive balancing process in which "the conduct of both the prosecution and the defendant are weighed." 407 U.S. at 530. The Court identified some of the factors that should be considered in this necessarily ad hoc determination: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at 530 (footnote omitted).

With these criteria in mind, we first identify the period of delay that is properly challenged in this case. Appellant contests the government's failure to bring him to trial for a period of thirty-one and one-half months after the date of the offense. Because United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), established that the speedy trial right does not inhere until there is "either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge," 404 U.S. at 320, we do not consider any delay occurring before appellant's arrest on October 4, 1968. Accordingly, we focus attention on the period of approximately thirty-one months from the date of arrest to the time of trial, April 28, 1971.

A delay of this magnitude must be examined critically by anyone concerned with the rights of criminal defendants and the broader interest of society in the fair but prompt administration of justice. However, this observation does not lead ineluctably to the conclusion that appellant was deprived of his right to a speedy trial.⁴ Instead, this delay draws our attention to the attendant costs to society and to possible prejudice to appellant and thereby mandates our inquiry into all factors relevant to a determination whether the constitutional right to a speedy trial has been abridged.

The first factor that we consider is the reason for the delay. We observe that different periods of delay occurred for different reasons. Although the shooting took place on August 29, 1968, appellant was not arrested until about one month later, on October 4. On October 17, 1968, a preliminary hearing was held. Appellant's arraignment on the indictment was held on November 15. Approximately one month later, appellant filed a motion for a mental examination to determine his competency to stand trial. This motion was granted and appellant was admitted to Saint Elizabeths Hospital for a period not to exceed sixty days. This initial period was twice extended by the court for successive thirty-day periods. Then, without any further order of the court, as far as the record on appeal discloses, appellant was detained at the hospital until mid-January 1970, some time after the hospital's report was finally filed with the court. The government conceded that "the only cause for this lengthy examination period was the heavy backlog at Saint Elizabeths at the time." Brief for Plaintiff-Appellee at 7.

The hospital's report indicated that appellant was competent to stand trial. On February 25, 1970, appellant objected to the findings of the report. A hearing was scheduled for March 9, 1970, but was continued until March 23 to permit the defense to gain access to the records of the hospital evaluation. On March 23, appellant moved for the appointment of an independent psychiatrist to examine him. The motion was granted, and on April 14, Dr. John Cavanaugh, an independent psychiatrist, was appointed. Dr. Cavanaugh filed his report on April 29, 1970. A hearing followed on June 10 and subsequently the court determined that appellant was competent.

On August 17, 1970, appellant filed a motion for release on personal recognizance, and after a hearing on August 25, he was admitted to the work-release program.

Subsequently, on November 5, 1970, appellant for the first time filed a motion to dismiss the indictment because he had been denied a speedy trial. It is significant that this first expression of appellant's desire to expedite the proceedings did not occur until the expiration of more than two years and two months after his arrest. The motion was heard near the end of January 1971, at which time the court heard testimony of a detective about the availability of witnesses and entertained argument presented by appellant to demonstrate prejudice. Apparently the motion was denied, and when the case was called for trial on March 24, 1971, appellant renewed his motion to dismiss for lack of a speedy trial. The court entertained the motion and appellant presented additional testimony and argument. In addition, the court agreed to appoint another independent psychiatrist to examine appellant under the influence of sodium amytal to determine whether he had amnesia. On April 22, 1971, a hearing was held and the renewed motion to dismiss was apparently denied. Finally, on April 28 the trial was commenced.

This detailed factual outline makes it clear that we are not here concerned with a "deliberate attempt to delay the trial in order to hamper the defense," 407 U.S. at 531, which would, of course, "be weighted heavily against the government." Id. Appellant does not suggest, nor could he demonstrate on the record before us, that the government intentionally delayed prosecution "to gain some tactical advantage over appellant or to harass him." United States v. Marion, 404 U.S. 307, 325, 92 S. Ct. 455, 466, 30 L.Ed.2d 468 (1971). See Pollard v. United States, 325 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). Indeed, the record is barren of any indication, beyond the mere fact of delay itself, that the prosecution has not attempted to bring this indictment promptly to trial. Although we do not find it necessary to ascribe with mathematical precision various portions of the delay to the government, or, alternatively, to the defendant,⁵ we conclude that, excluding momentarily the lengthy period of hospital examination, a major portion of the remaining delay is attributable to procedures initiated by appellant to protect his rights and to develop his defenses. Viewed in this light, cumulative delay occasioned by appellant's objections and motions, and by hearings thereon and psychiatric examinations does not present a strong case for relief. As this court has previously recognized:

In any case, where a principal cause of postponement is the deliberate pace of the system of safeguards designd 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, 22 L.Ed.2d 221 (1969) (footnote omitted).

See also United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Wilkins v. United States, 129 U.S.App.D.C. 397, 395 F.2d 620 (1968); Hedgepeth v. United...