Charles D. Coleman, Appellant, v. United States of America, 442 F.2d 150 (D.C. Cir. 1971)

Appellant, convicted by a jury of robbery, was given a sentence of one to three years, to run consecutively to a sentence he was then serving in Maryland. Two sources of error are claimed here. The first lies in the District Court's denial of appellant's motion for acquittal based on the insufficiency of the Government's proof. The second concerns the denial of appellant's motion to dismiss the indictment for want of a speedy trial. As to the first of these points, we think that after examining the evidence of record, the issue of guilt was properly submitted to the jury. In any event, the second claim we believe to be well taken; and, accordingly, we explore it hereinafter in some detail.

The offense occurred on July 1, 1966, and appellant was arrested within a few minutes thereafter. The victim, a retired employee of the National Bureau of Standards named Babb, testified that he went to the bank around noon and withdrew $3800. Of this amount, $1300 was placed in one wallet and $2500 in another. With both wallets in a deep shirt pocket, Mr. Babb boarded a bus at 6th and E Streets, N.E. Two blocks later, as the bus pulled up to a stop at an intersection, a passenger brushed against Babb and pulled the wallets from his pocket. Babb grabbed the blue suit jacket of the thief but could not hold on.¹  Both emerged on the sidewalk, the thief running and Babb in pursuit but losing ground rapidly. One Valentine, a District guard and cab driver, observed this chase as it went by his car which was stopped for a red light at the same intersection. Noting that Babb, who was shouting and gesticulating wildly, was falling behind, Valentine quickly applied his emergency brake and took up the chase on foot. Valentine testified that as the thief ran past his car he observed him carefully, noting his clothing, his Afro haircut, his eyes, and other facial features. Both pursuers lost contact when the thief ran into a residential alley, but two young boys playing in the vicinity pointed out the direction he had gone.²  Since Valentine knew where the alley came out on the other side, he returned to his car and drove quickly around to that point.

After several minutes, appellant emerged. He stood at the entrance to the alley for a time and then turned and walked casually past Valentine's parked car and down an adjoining street. While appellant was standing in front of the local Safeway store, Valentine interrupted his surveillance to search for a police officer to assist in the arrest. Upon finding an officer and returning to the street, they found appellant leaning against a fence at a nearby bus stop. Valentine was strongly positive in his testimony that appellant was the same man he had chased into the alley. The only difference in appearance between appellant and the thief who entered the alley, so he testified, was that, instead of blue trousers, appellant was wearing Bermuda shorts. Valentine testified that he thought to himself at the time, "That don't change me; I still know him."

One prosecution witness who lived on the alley in question testified that she heard someone run upstairs past her apartment and then down again shortly thereafter. Another witness who lived upstairs from the first testified that she found Babb's wallets on the second floor ledge. One wallet had $1300 in it but the other was empty. A defense witness, a female acquaintance of appellant, testified that she had seen him earlier on the morning in question wearing shorts. Appellant did not testify in his own defense, allegedly because he would have to implicate a friend as the robber.³ 

The serious question before this court concerns the alleged deprivation of appellant's Sixth Amendment right to a speedy trial. The Government's position throughout has been that appellant is so clearly guilty of this robbery that irrespective of the length or causes of the delay, he could have suffered no prejudicial deprivation of his constitutional right. We will in due course examine the Government's contention more closely, but it will be helpful first to place appellant's claim in context. The following timetable of events from arrest to trial emerges from the record.

Arrested on July 1, 1966, appellant was released on bond the following day after a preliminary hearing in the Court of General Sessions. An indictment was returned on August 15. In the interim, on July 28, 1966, appellant was arrested for shoplifting in Maryland. On December 21 he was convicted of that charge and sentenced to three years in the Maryland House of Corrections, to which he was committed on December 22. His criminal jacket contains a letter, dated October 25, 1966, from the Sheriff of Prince George's County, Maryland, to the D.C. authorities, reporting appellant's detention in the county jail pursuant to his arrest. On January 18, 1967, appellant's bond was forfeited and a bench warrant was issued by the District of Columbia District Court. On January 26, the warrant was sent to the Maryland House of Corrections, and four days later a detainer was formally lodged.

Some ten months later, by a letter to the United States Attorney, dated December 2, 1967, appellant requested that he be brought to trial for the D.C. robbery charge pending against him. Several weeks thereafter, on January 19, 1968, the United States Attorney filed a writ of habeas corpus ad prosequendum which was granted by the Maryland correctional authorities. Appellant was then returned to the D.C. jail. He was arraigned on February 23; counsel was appointed on the 26th; and a motion to dismiss for lack of speedy trial was made on March 18. At the April 5th hearing before the District Court, the motion was denied.

The total time elapsing between arrest⁴  and the dismissal hearing was 626 days, or approximately 21 months. A delay of this length by itself raises a serious speedy trial question. At the least, it places on the Government the heavy burden of demonstrating that appellant's Sixth Amendment right has not been abridged. Hedgepeth v. United States, 124 U.S.App.D.C. 291, 294, 364 F.2d 684, 687 (1966). In exploring this speedy trial issue, we must consider in addition to the durational factor, "the reasons for the delay, the diligence vel non of prosecutor, court, and defense counsel, and the likelihood, or at least reasonable possibility, that defendant has been prejudiced by the delay." Hedgepeth v. United States, supra. See also Dickey v. Florida, 398 U.S. 30, 48, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970) (Brennan, J., concurring).

Unlike so many of the speedy trial cases reviewed by this court in recent years, this is not a case in which we are called on, after hearing appellant's and the prosecutor's competing claims, to attempt to parcel out the blame for each of the discrete dilatory occurrences which, taken together, have raised the specter of constitutional violation.⁵  Here we are not asked to ascertain what portion of the 21-month delay is properly attributable to the Government and what percentage to the accused.⁶  Nor is this a case in which we can allocate any substantial portion of the delay⁷  to "the deliberate pace of the system of safeguards designed to protect the accused." Blunt v. United States, 131 U.S.App.D.C. at 310, 404 F.2d at 1287; United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966). Indeed, the Government, upon whom the burden of explanation lies, has failed to offer, either at the dismissal hearing or in its brief on appeal, any justification for the unusually lengthy interval between arrest and trial.

Appellant alleges, and our examination confirms, that the major cause of the delay here arose from appellant's incarceration in Maryland which began only 26 days after his preliminary hearing. Although the Government knew of his presence there at least as early as October, 1966 (when the Prince George's County Sheriff informed the District authorities of appellant's whereabouts), no effort was made to secure his return for trial until January, 1968. Apparently, appellant's letter to the United States Attorney requesting trial was the impetus for the Government's eventual seeking of the appropriate writ of habeas corpus ad prosequendum. But for appellant's request, there is no indication that the Government intended to move toward prosecution until the culmination of appellant's three-year Maryland sentence.

The Supreme Court, faced with speedy trial claims in which the accused was incarcerated outside the prosecuting jurisdiction for another crime, has recently taken a dim view of governmental unwillingness to press for expeditious prosecution of such defendants. Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970); Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969). The Court has emphasized that the basic protections afforded by a speedy trial — prevention of undue and oppressive incarceration prior to trial, minimization of anxiety and concern associated with public accusation, and limitation of the possibility that delay will impair the accused's ability to defend himself⁸  — are equally, if not more, significant where the accused is imprisoned in another jurisdiction prior to trial. Smith v. Hooey, supra, at 378, 89 S. Ct. 575.

Among the aggravating effects discussed by the Court are the following. The duration of imprisonment in the incarcerating jurisdiction may be increased since the pendency of an outstanding charge against the accused may render him ineligible for clemency, parole, or conditional pardon. Additionally, the prospect of eventual reincarceration may interfere with the prisoner's desire to participate in the rehabilitory programs offered by the correctional institution. At the least, there can be little doubt that, as the Court has stated, "an outstanding untried charge * * * can have fully as depressive an effect upon a prisoner as upon a person who is at large." Smith v. Hooey, supra, at 379, 89 S. Ct. at 577. Of course it must also be apparent that the imprisoned person is more severely disadvantaged in the preparation and preservation of his defense than is the defendant who is free on bond.⁹ 

Despite recognition of the harmful impact that delays in prosecution may have on individuals who are imprisoned for another crime while awaiting trial, there remains some disagreement whether the burden lies with the prosecutor or the accused to mitigate the hardship by pressing for a speedy trial.¹⁰  Those favoring the argument that the initial responsibility to demand a speedy trial lies with the accused, reason that he may well conclude that a stale Government case is to his benefit. He might even have reason to hope the Government will eventually dismiss the indictment on its own motion. For these reasons, so the argument goes, in the absence of a demand it will be assumed that the accused consented to the delay.¹¹  Those who disagree with this approach contend that the responsibility to prosecute lies with the prosecutor, not the accused. The demand rule is also criticized as inconsistent with the doctrine that courts will indulge every reasonable presumption against the waiver of constitutional rights. See Dickey v. Florida, supra, 398 U.S. at 48-50, 90 S. Ct. 1564.¹² 

Here, the judge presiding at the hearing on dismissal for lack of a speedy trial seemed to be of the opinion that appellant's failure to demand to be tried at an earlier date constituted a waiver of his Sixth Amendment right.¹³  Whatever the contours of the demand rule, we cannot agree on the basis of this record that appellant's inaction now robs his claim of merit. The trial judge based his decision on the premise that appellant was represented by counsel while he was in Maryland and, therefore, any decision appellant made was one arrived at intelligently with professional advice. Over appellant's strenuous assertion that he was not represented by counsel at that time, the court reasoned that, since counsel was provided at the preliminary hearing in the Court of General Sessions, that same attorney must have continued to represent him at all pertinent times thereafter. Although such continuous representation is mandated by the Criminal Justice Act,¹⁴  we are familiar with those shortcomings in the practical operation of the statute alleged by defense counsel in his colloquy with the judge in this case:

"Counsel: Now, I think that the Court would have to take judicial notice of the fact that once counsel does two things [in General Sessions Court] — and that is, holds a preliminary hearing and sees that the defendant is out on bond — as a practical matter, counsel over there think of themselves as being out of the case.

"The Court: They are not out.

"Counsel: Well, as a practical matter, they do not follow the case up any further, and, if necessary, I would be glad to have [the appointed counsel] come in and say that he in fact did not make any effort to represent the man after doing what is normally thought to be the full extent of his duties. * * *"

At no point in the proceeding did the Government challenge this assertion. This court has spoken before of the inadequacy of post-preliminary hearing representation by court-appointed counsel, and we have no reason to doubt defense counsel's characterization of the situation in the Court of General Sessions at that time. See Smith v. United States, 135 U.S.App.D.C. 284, 289, 418 F.2d 1120, 1125 (1969) (Wright, J., dissenting); Williams v. United States, 129 U.S.App.D.C. 332, 336, 394 F.2d 957, 961 (1968).

Insofar as the court's finding of waiver was based on the assumption that appellant acted upon, or with meaningful access to, the advice of counsel, it was in error. And, without counsel, we have no basis for assuming that appellant had either the ability or the information¹⁵  on which to make an intelligent and voluntary waiver of his right to a speedy trial.¹⁶  Furthermore, we think that by its failure to offer any explanation or justification for the delay, the Government has tacitly assumed full responsibility for it here.¹⁷ 

The Government rests its case on appeal solely on the issue of possible prejudice to the accused. Its single position is that the evidence of guilt is so overwhelming as to negate any inference of prejudice to appellant in the preparation of his defense. See Harling v. United States, 130 U.S.App.D.C. 327, 330-331, 401 F.2d 392, 395-396 (1968), cert. denied, 393 U.S. 1068, 89 S. Ct. 725, 21 L. Ed. 2d 711 (1969) (While a "slight showing of possible prejudice * * * might have entitled defendant to relief * * *," here there was not "even a wisp of prejudice."); Taylor v. United States, 99 U.S.App.D.C. 183, 186, 238 F.2d 259, 262 (1956) (The case against appellant was "weak." Had it been "overwhelming," a different result might have been reached.).

In its brief, the Government's review of the facts demonstrates that its confidence in the guilt of the accused depends almost entirely on the testimony of Mr. Valentine. It is his assertion — that appellant was the same man whom he had chased into the alley — that provides the foundation for the prosecution's case. While we are satisfied that his testimony was sufficient to send this case to the jury, we are not so sanguine as is the Government that it demonstrates guilt so unequivocally that no occasion for prejudice due to the lengthy delay could have arisen.

Of course, the Government is correct in pointing out that all the critical evidence in this case goes to the question whether the man who emerged from the alley was the same man who went in several minutes before. In alleging prejudice, it is the evidence on precisely this question that appellant attacks. At the dismissal hearing, appellant's counsel pointed out that,

" [t]here is an allusion in the United States Attorney's file to two young boys who pointed out the direction in which the robber fled in this case and, apparently, got a good look at him. Later on when the defendant was arrested and brought to the scene where the wallets were found, there were two boys who were around there who the defendant says said, `This is not the guy that we saw run through the alley.' We don't know who those boys were. We have made every effort to find them but to no avail. I think there might have been a possibility of finding them. * * *"

The judge rejected this contention of prejudice for the very reason we have already found unimpressive, namely, that appellant was represented by counsel while out on bond for 26 days following the preliminary hearing and, therefore, any prejudice resulting from the disappearance of the two boys was attributable to appellant's failure to locate them during that time. Again, appellant's trial counsel repeatedly contended that his client was without counsel during that period and the Government nowhere contradicts that claim. Our experience with the practical functioning of the Criminal Justice Act in respect of initial presentments in General Sessions Court makes such lack of counsel not unlikely.¹⁸ 

Certainly the record gives us reason to believe that the testimony of these two boys would have been crucial. There is also ample corroboration in the record showing that appellant's reference to the two boys was not fanciful. Both Babb and Valentine testified at the preliminary hearing, and again at trial, that two boys did see the thief and pointed in the direction he had fled. Officer Lamb's testimony about what occurred when he took appellant back to the same alley on the day of the crime is also consistent with appellant's account. Although he did not testify that he overheard the conversation appellant alleges occurred at that time, he did indicate its possibility since he testified that a large number of children were gathered around the police car in which appellant sat.¹⁹ 

Even without the testimony of the two boys,²⁰  we might be compelled to agree with the Government that its case is overwhelming if it were not for several other troublesome items that appear in the record. First, Officer Bell, one of the investigating officers, testified that no thorough effort was ever made to find the trousers appellant allegedly shed in the alley. Such an investigation, the Government alleges, was said to be precluded because of "dogs in the neighborhood." In a similar vein, Officer Bell testified at the preliminary hearing that the wallets were not dusted for fingerprints because he concluded that too many hands had already touched them. It is at least disappointing that no effort was made to discern in a laboratory whether one or more of the thief's prints might have shown through. Proof of either the trousers or the prints would have gone far in solidifying the prosecution's case. While we would not rest reversal on such weaknesses in the Government's investigation, we do find in them fair rebuttal to the claim of overwhelming proof of guilt.

We are also disturbed by Babb's inability, in contrast to Valentine, to make a positive identification of appellant as the thief. He failed to pick him out of a lineup staged on the day of the robbery.²¹  On the day of trial, during the voir dire hearing on identification, the complainant, when asked to make an in-court identification, left the stand, walked over to where appellant was seated, looked at him closely, and said, "I can't say for sure." At this point the Government indicated that it did not intend to have Babb make an identification before the jury and the hearing was concluded.²² 

These circumstances taken together compel us to reject the argument that this 21-month delay could have in no way prejudiced appellant in the preparation of his defense. Indeed, even if we were to have found merit in the Government's overwhelming-proof-of-guilt contention, our inquiry in this case would not have been concluded. The question of deprivation of the accused's right to a speedy trial requires consideration of several factors, not one.²³  Such factors as the length of the delay, and the total lack of justification offered by the Government (especially in light of the considerations raised by the Supreme Court in Smith and Dickey regarding the possibly harmful effects in the treatment of the incarcerated accused), might well have suggested the necessity of reversal despite the lack of a specific finding that appellant was hampered in preparing his defense.²⁴  This case does not present, however, so difficult a question. We find that appellant's conviction should be reversed and his indictment dismissed.

It is so ordered.