Theodore C. Williams, Appellant, v. United States of America, Appellee, 394 F.2d 957 (D.C. Cir. 1968)

Theodore Williams was tried in the District Court, convicted of robbery, and sentenced to from four to twelve years' imprisonment. He appeals on the grounds, inter alia,¹  that he suffered prejudice from an unexplained delay of 102 days between arrest and indictment, and that the trial judge abused his discretion in permitting evidence of his prior criminal record to be introduced for purposes of impeachment.

Appellant was arrested December 24, 1965, and the next day brought before a judge of the District of Columbia Court of General Sessions for preliminary hearing. Counsel was appointed to represent appellant shortly before the hearing. The General Sessions Judge found probable cause and ordered appellant held for the grand jury, setting bond at $5,000. Unable to purchase a bond in that amount, appellant remained in custody for the entire period from arrest through trial.

An indictment was returned April 5, 1966. New counsel was appointed by the District Court on April 8, and appellant was arraigned and pled not guilty on April 15. A motion for release on personal bond was denied by the District Court on April 22.²  Trial was originally set for June 8; appellant and his attorney announced themselves ready to proceed to trial on that date, but the assignment office reset the trial date to July 28. A motion to dismiss the indictment for failure to afford a speedy trial was heard and denied by the District Court on July 15. After two more continuances, the trial commenced on September 1, and a verdict of guilty was returned on September 7.

* The Government has offered no explanation of the 102-day delay between arrest and indictment, beyond attributing it to the "normal processes of our judicial system." Appellant does not contend that the delay was purposeful or malicious, but points to our language in Hood v. United States, 125 U.S.App.D.C. 16, 365 F.2d 949 (1966), where we expressed "concern" over a delay of 106 days between arrest and indictment, but held:

While we do not condone unexplained delays of this order, we have concluded to take no action about this one. Appellants were represented by counsel throughout the period in question, and no complaint was made, either then or at trial. Id. at 17 n. 1, 365 F.2d at 950 n. 1.

Appellant contends that reversal is required in this case, since he was not "represented by counsel throughout the period in question," and complained of the delay prior to trial by a motion to dismiss the indictment.

Following oral argument on this appeal, on April 10, 1967, we remanded the record for a hearing to determine:

(1) what services counsel rendered appellant at the preliminary hearing and (2) whether appellant was, in fact, represented by counsel in the interval between preliminary hearing and indictment and, if so, what contacts, if any, counsel had with appellant during his confinement and what services, if any, were rendered appellant during this period.

The record has now been returned to this Court, supplemented by the transcript of a hearing held in the District Court on May 5, 1967, the transcript of the preliminary hearing, and additional memoranda submitted by the parties. The record as thus supplemented strongly supports appellant's contention that he was without the services of counsel during the interval between preliminary hearing and indictment.

At the May 5 hearing, appellant's preliminary hearing counsel testified that he understood his appointment was only for the preliminary hearing; that "of course I would be out of the case" if appellant were held for the grand jury; and that he considered his appointment "lapsed" at the close of the hearing. And though he added he would have been willing to provide further services on a fee basis, if requested, he stated that he rendered no further services and had no contact with appellant, or any friend or member of his family, after the preliminary hearing.

Appellant also was called to testify at the May 5 hearing. He stated that he had no contact with any attorney from the time of the preliminary hearing until counsel was appointed by the District Court, on April 8; that it was his impression that counsel appointed by the Court of General Sessions was appointed to represent him solely for the preliminary hearing; and that he made several unsuccessful attempts to procure counsel by writing to friends and relatives.

The importance of appointed counsel's continuing to function actively on behalf of his client throughout the preindictment period cannot be overemphasized.³  Counsel's ability to present an effective defense at trial may depend in large measure on the thoroughness of investigative and other services provided at the early stages of the case, while the evidence is still fresh.⁴  Important rights may be lost if counsel is not alert to preserve them during the preliminary phase of a criminal proceeding.⁵  And an accused may suffer unwarranted pretrial detention if counsel is not available to pursue applicable procedures relating to release on bail or other conditions.⁶  The potential for prejudice accruing from the absence of active representation by counsel is no doubt enhanced significantly where, as here, the return of an indictment is inordinately delayed. However, without in any way condoning the serious defects in the proceedings below which the record reveals, we are of the view that the conviction appealed from may not be disturbed without a further inquiry, into actual, as opposed to potential, prejudice.⁷  Since we find no significant probability of such prejudice on the record before us, we conclude that the conviction must be affirmed.

Appellant bases his claim of prejudice primarily on the alleged disappearance, in April, 1966, at about the time of the indictment, of a potential defense witness. In order to understand this contention, some background is necessary. The complaining witness, Mr. Adams, was the chief witness for the prosecution at appellant's trial. He testified that he was assaulted and robbed in the course of his duties as a deliveryman. The robbery took place as he was leaving an apartment building, after making a delivery to a first floor apartment. He returned to the apartment following the robbery, and called his store from there. The assistant manager of the store arrived on the scene shortly thereafter, accompanied by a police officer. Mr. Adams and the other two men drove around the neighborhood for a short time, and though they saw appellant he disappeared before they were able to talk to him. When they returned to the store, they learned that the female occupant of the apartment had telephoned there, leaving word that she might be able to identify the suspect. They therefore went back to the apartment, whereupon the woman informed them that she had seen a man enter the building behind Mr. Adams, and go up to the second floor. Then Mr. Adams and the police officer went out again, and this time they found appellant and brought him back to the apartment.

At trial, Mr. Adams testified that when confronted with appellant, the woman stated that he was not the man she had seen enter the building behind Mr. Adams. Appellant's testimony was to the same effect; he testified that she had said, "No, this is not the man." The only contradictory testimony was that of the police officer. His version was that the woman had said appellant "looked like" the man she had seen, but that she was unable to make a positive identification. On cross examination, he explained that she had first stated that appellant was the man, and then shrugged her shoulders.

The woman who thus confronted appellant shortly after the robbery is the potential defense witness on whose disappearance appellant bases his claim of prejudice. His theory is apparently that the woman would have testified that he was not the man she saw enter the building behind Mr. Adams, thus, perhaps, raising a reasonable doubt as to whether this unnamed intruder, and not appellant, was the man who assaulted and robbed the complainant. Whether or not the witness' testimony would have been as appellant asserts, we are unable to accept the contention that her disappearance constitutes sufficient prejudice to warrant reversal of the conviction. Two witnesses, including the complainant (whose testimony on this point was very likely to be credited by the jury) testified at trial that the woman stated, on being confronted with appellant, that he was not the man she had seen follow Mr. Adams into the building. In view of this, it is hard to see how appellant could have been materially helped by her presence at trial — even assuming she would have testified as appellant now claims.⁸ 

We have searched the record, and are unable to find any other indication that appellant was in fact prejudiced by the preindictment delay and lack of assistance of counsel. We do not decide whether, under some circumstances, the mere fact of lengthy pretrial incarceration attributable to the absence of legal assistance might in itself be sufficient prejudice to warrant reversal of a conviction. Here, it seems most unlikely that the services of counsel could have made a difference. The $5,000 bond condition imposed by the General Sessions Judge reflected, no doubt, appellant's prior criminal record, which included parole violation. That counsel would have been able, under the circumstances, to obtain a reduction of the bond seems highly improbable. Our conclusion in this regard is strongly supported, we think, by the fact that a motion for release on personal bond, prepared by counsel, was denied by the District Court shortly after indictment.⁹ 

That we find no prejudice on the record of this case should not, we stress, be taken as evidence of any lack of concern on our part for the unfortunate circumstances here presented. To the contrary, we wish to make crystal clear that we do not consider that counsel's duty, when appointed in a felony case by the Court of General Sessions or the U. S. Commissioner, is fulfilled upon completion of the preliminary hearing. Rather, appointed counsel should remain actively in the case, rendering all necessary services during the preindictment period, until the charges are disposed of or the court grants permission to withdraw.¹⁰ 

II

At trial, appellant was called as a witness in his own behalf. No question as to the admissibility of his prior criminal record was raised prior to his taking the stand. Thereafter, during the course of the prosecution's cross examination of appellant, counsel sought a ruling from the trial judge that evidence of appellant's prior criminal record would be inadmissible. Counsel argued that the prejudicial effect of such evidence would far outweigh its probative value. He argued that appellant's age (20) at the time of one of the convictions should be taken into account, and contended also that the government's case was "weak" and that appellant's testimony was "crucial," thus increasing the danger of prejudice. The court denied the motion,¹¹  and the government introduced evidence of two prior convictions of appellant, for robbery (in 1960) and attempted housebreaking (in 1964).

Appellant now asserts that the trial judge abused his discretion under Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965), in that he failed to weigh the "specific circumstances in the case before him" in deciding whether to admit the convictions. He points to our observation in Brown v. United States, 125 U.S.App.D.C. 220, 222, 370 F.2d 242, 244 (1966), that there the trial court had failed to base its ruling on the "individualized considerations" set forth in the Luck decision¹²  as bearing on the determination whether to admit evidence of prior convictions.¹³ 

Though we certainly agree with appellant that it would be desirable for District Judges to set forth for the record more fully than was done here the considerations which have induced a decision to admit prior convictions,¹⁴  we are not prepared to say that the trial judge in this case abused his Luck discretion. The considerations deemed relevant by counsel were brought to the attention of the court, and presumably were weighed.¹⁵  Moreover, we note that the question of the admissibility of appellant's prior convictions was not raised until after he had taken the stand and testified.¹⁶  Certainly a trial judge in exercising his discretion under Luck is entitled to take into account whether counsel has made the judgment, and so advised his client, that the risk of prejudice is so great as to preclude the defendant's taking the stand in the absence of a ruling excluding evidence of prior convictions. The matter may appear in quite a different light to a judge when the defendant is no longer beset by the dilemma whether to give testimony in his own behalf (which may be crucial to his defense) or to refrain from giving such testimony in order to avoid the prejudicial effect of introduction of his prior criminal record.¹⁷ 

Since we find no abuse of discretion in the trial judge's admission of evidence of appellant's prior convictions, and no prejudice with respect to the matters discussed in Part I of this opinion, the conviction must be

Affirmed.

BAZELON, Chief Judge (concurring):

I concur in affirmance, and agree with much of the majority opinion. I have an additional observation to make regarding the preindictment delay issue, and my reasoning on the Luck¹  issue differs somewhat from that of the majority.

* The majority finds no significant probability that appellant was harmed by the absence of the missing witness. Since I agree with this conclusion, I concur. However, the majority also notes²  that defense counsel may have been less than diligent in seeking the missing witness.³  Though I do not understand my colleagues to suggest that the responsibility for locating the witness was entirely appellant's, I wish to dispel any possible notion that the government may leave indigent defendants to their own inadequate devices to find missing witnesses.

The question of the missing witness was raised by appellant at the hearing on the motion to dismiss the indictment, and again at trial. The government was thus well aware that appellant desired to locate her but had been unable to do so. In fact, the district court denied the motion to dismiss the indictment on the express assumption that the government would "exercise a muscle or so, and get this witness."⁴  Despite this, the government apparently made little or no effort to find her.⁵ 

The "sporting" theory of justice is no longer appropriate in criminal cases; the stakes are far too high, and the sides too unequal.⁶  Particularly in the case of an indigent defendant represented by court-appointed counsel, the government's resources are overwhelmingly superior.⁷  Elemental principles of fairness and decency thus demand that the government lend needed assistance to obtain any witness sought in good faith by the defendant.

II

I agree with the majority that one of the central concerns of the Luck decision was with the defendant who wishes to testify but fears that he will be prejudiced by evidence of prior convictions. In that situation past convictions should be excluded if the trial judge believes that "the cause of truth would be helped more by letting the jury hear the defendant's story than by the defendant's foregoing that opportunity because of the fear of prejudice founded upon a prior conviction."⁸  Obviously there is no occasion for such a determination when the accused's story has already been told. But Luck also contemplates a decision whether "the prejudicial effect of impeachment far outweighs the probative relevance of the prior conviction to the issue of credibility."⁹  The latter determination is plainly relevant and necessary whether or not the accused has already testified. Indeed, Luck itself involved an objection made when the prosecutor sought to admit a prior conviction during the course of the accused's testimony.¹⁰  I vote to affirm only because I believe there is a basis in the record for the finding that the prejudicial effect of appellant's criminal record did not far outweigh its probative value for impeachment.¹¹ 

The majority suggests that, in gauging the prejudice from prior convictions, the trial judge may properly presume that the decision to take the stand before seeking a ruling under Luck reflects defense counsel's judgment as to the likelihood of prejudice. But there is no indication here that the court considered that factor, and in reviewing its exercise of discretion we should not consider it either. Moreover, even when the Luck issue is raised before the defendant takes the stand there is no guarantee that he will not thereafter testify, whatever the court's ruling. Thus it is not at all clear that counsel's timing in raising the issue reflects a judgment regarding prejudice.

There may well be sound reasons for requiring the Luck issue to be raised before the defendant testifies. For one thing, such a rule would insulate the trial judge's discretion from the influence of his own impressions as to the accused's credibility. Also, the accused would be better protected since in all cases the decision whether to testify would be made in light of the court's ruling. But here it plainly appears that counsel believed the Luck objection could properly be made at any time before the convictions were actually admitted. We should not infer a "waiver" without any basis for believing it to have been intelligent. Indeed, if there is a duty to raise the Luck issue before the defendant takes the stand, I think we should consider whether that duty does not belong equally to the court and the prosecution.¹²