United States v. Parish, No. 23345.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: McGOWAN, TAMM and ROBINSON, Circuit
• Citation: 152 US App. DC 72,468 F.2d 1129
• Parties: UNITED STATES of America v. Lawrence PARISH, Appellant.
• Docket Number: No. 23345.
• Decision Date: 25 September 1972

152 US App. DC 72, 468 F.2d 1129 (1972)

UNITED STATES of America
v.
Lawrence PARISH, Appellant.

No. 23345.

United States Court of Appeals, District of Columbia Circuit.

Argued June 18, 1971.

Decided September 25, 1972.

468 F.2d 1130

Mrs. Jean F. Dwyer, Washington, D. C. (appointed by this court), for appellant.

Mr. Daniel J. Bernstein, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry and Theodore Wiesemen, Asst. U. S. Attys., were on the brief, for appellee. Mr. John Ellsworth Stein, Asst. U. S. Atty., also entered an appearance for appellee.

Before McGOWAN, TAMM and ROBINSON, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Appellant was convicted by a jury on counts of armed robbery,¹ assault with a dangerous weapon² and carrying a pistol without a license,³ and was sentenced to concurrent terms of imprisonment.⁴ He seeks reversal on two principal

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grounds. The first is that the constitutional guaranties of due process of law and speedy trial were infringed by the passage of seventeen months from the date of the offenses to the commencement of his trial. The second is that events implicating him in the crimes were so tainted that suppression of evidence identifying him as a participant was required. We hold, conversely to these claims, that the delay complained of did not contravene the Due Process Clause of the Fifth Amendment or the Speedy Trial Clause of the Sixth,⁵ and that the forerunners of appellant's identification were free from legal impropriety.⁶ We accordingly affirm the conviction

I

The offenses which are the basis of appellant's conviction occurred about 6:40 on the evening of December 12, 1967. W. Cardell Shelton, manager of an apartment complex, was closing its rental office; with him was Wiley Barnes, a plumber, with whom Shelton was discussing recently completed repairs. Two men — face-masked by stockings and one armed with a pistol — burst through the door, firing once. The armed intruder pointed the pistol into Barnes' face, announced that "this is a holdup," and demanded money; receiving no response, he motioned Barnes and Shelton to the back of the office, shoving Barnes in that direction. Evading the demand, Shelton turned and was moving to the rear when the gunman fired the pistol once, grazing Shelton in the stomach, and then fired again, this time into the wall. Shelton capitulated, and opened his jacket to reveal an envelope containing $800 in rental receipts. The armed man took the envelope from Shelton and struck him across the head with the butt of the pistol. As the robbers exited, the armed bandit fired another shot, creasing Shelton's arm.

After the robbery, Shelton examined police photographs several times and identified both robbers sometime — approximately a week — prior to January 14, 1968. That date is important to the historical posture of the case because it was about then that a fire gutted an apartment under Shelton's management⁷ which had been leased to appellant's wife.⁸ On the following day, Shelton, in his capacity as property manager, entered the apartment to determine the extent of the damage. There he came across a large photograph and a smaller snapshot of a man — appellant, it developed — whom he recognized as his armed assailant of December 12. Shelton removed both pictures from the apartment and turned the larger over to the police, but retained the smaller snapshot in the hope that, by displaying it to friends, he might be able to find the party photographed. Barnes also identified appellant from police photographs as one of the two robbers.⁹

A warrant for appellant's arrest was issued on January 22, 1968,¹⁰ and on August 12, he was indicted, but he was not arrested until October 13. When, on May 14, 1969, the case reached trial, the court heard and denied a motion to dismiss the prosecution for prejudicial delay and another motion to suppress the identification evidence linking appellant to the crimes. During trial before the

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jury, Shelton and Barnes unequivocally identified appellant from the witness stand,¹¹ and Sergeant George R. Wesley testified to their pretrial photographic identifications. Shelton also related his discovery of the photograph and snapshot in the apartment, and those items were introduced into evidence. Appellant denied participation in the robbery and endeavored to show that he was attending a vocational class when it occurred.¹² The jury was persuaded by the Government's case and convicted

II

In support of his contention that prosecution of the charges against him was unconstitutionally delayed, appellant invokes the Fifth and Sixth Amendments, and the Government recognizes that both have some applicability to the case, but appellant does not draw precisely, nor the Government accurately, the line of demarcation between the two provisions. We deem it helpful to ascertain, at the outset of discussion, the reach of each in appellant's situation.

The Sixth Amendment incorporates the guaranty that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." The phase of the criminal process to which that right extends has only recently been defined by the Supreme Court. In United States v. Marion,¹³ the Court held that the Speedy Trial Clause has "no application until the putative defendant in some way becomes an `accused,'"<sup>14</sup> and that its protection "is activated only when a criminal prosecution has begun and extends only to those persons who have been `accused' in the course of that prosecution."¹⁵ More specifically, the Court continued, "it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment."¹⁶ Those protections exist, the Court said, "to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself."¹⁷

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The Fifth Amendment, on the other hand, insures among other things that "no person shall be . . . deprived of life, liberty, or property, without due process of law." Essential fairness is a fundamental due process requirement in criminal prosecutions,¹⁸ and untoward delay in notifying the accused of the charges to be pressed breeds unfairness by adversely affecting the preparation and presentation of his defense.¹⁹ Statutes barring prosecutions after lapse of designated time periods interpose "the primary guarantee against bringing overly stale criminal charges,"²⁰ but "the statute of limitations does not fully define the accused's rights with respect to the events occurring prior to indictment."²¹ On the contrary, "the Due Process Clause of the Fifth Amendment . . . requires dismissal of the indictment if it is shown at trial that the preindictment delay in the case caused substantial prejudice to the accused's rights to a fair trial and that the delay was a purposeful device to gain tactical advantage over the accused."²² While the Speedy Trial Clause addresses damage to the defense and other apprehensions as well,²³ the concern of the Due Process Clause is erosion of the accused's capability to muster his response to the charges.²⁴

We may now, against this backdrop, sort out the periods to which the speedy trial and due process protections respectively obtained in this case. It will be recalled that the offenses took place on December 12, 1967; that a warrant for appellant's arrest was issued on January 22, 1968; that appellant was indicted on the following August 12 and arrested two months later on October 13; and that the case reached trial on May 15, 1969. It thus becomes apparent

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that the speedy trial safeguard of the Sixth Amendment attached on August 12, 1968, the date of the indictment,²⁵ and extended through the ensuing nine-month period to the commencement of trial. It is also clear that the due process bulwark of the Fifth Amendment surrounded the ten-month period from the offense date to the date of appellant's arrest, at which point he first learned that he was being charged.²⁶ The task at hand, then, is separate examination of these two periods in light of their separate criteria in order to determine whether appellant's claim of unconstitutional delay is well founded

III

Asserting that the prearrest delay in his case was avoidable, appellant argues that his belated apprehension and notification of the charges were results of police inefficiency, and that evidence which would have strengthened his defense was destroyed in the meantime. The trial judge conducted an evidentiary hearing on these protests and ruled against appellant on both. Although at one point during the course of the hearing the judge remarked that "proper diligence had not been used to execute the arrest warrant," the judge later found, on fuller evidence, that "considering their availability and the amount of crime in this country, the police probably did about as well as they could be expected, although certainly given time and personnel they could have done more." The judge also found that appellant had suffered no prejudice in the advancement of his defense in consequence of the delay. Since these findings must stand unless clearly erroneous,²⁷ we look now to see whether they were adequately sustained by the evidence.

In support of the allegations of police inefficiency,²⁸ appellant testified that he was continuously available for arrest throughout the ten-month prearrest period;

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more particularly, that for a while he was on probation for another offense and was reporting monthly to his probation officer, and after the expiration of probation was employed by a local business known to the probation...