George Smith, Jr. v. United States of America, Johnny B. Rozier, Jr. v. United States

418 F.2d 1120

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 24, 1969
• Docket: 22157, 22158
• Status: Published

Opinions

LEVENTHAL, Circuit Judge:

The appeal raises questions as to the validity of cumulative sentences and denial of speedy trial.

I

The first count of the indictment charged defendants assaulted Julia Perkins on February 12, 1967, with intent to kill. The second count charged defendants with assault with a dangerous weapon. Each defendant was found guilty and sentenced to a term of 5 to 15 years on count 1, and 40 months to 10 years on count 2, sentences to run consecutively.

The evidence established a brutal crime, and it is not hard to understand why the trial judge imposed maximum sentences. However, we think appointed counsel is correct in his claim that the maximum permitted by law consisted of sentences that were to be concurrent rather than consecutive.

In Ingram v. United States, 122 U.S. App.D.C. 334, 353 F.2d 872 (1965), it was held improper to provide consecutive sentences for assault with intent to kill and assault with a dangerous weapon where there was but one assault. The court, after reviewing the legislative history, concluded that Congress did not intend one transaction of this character to bear two consecutive sentences.

In Irby v. United States, 129 U.S.App. D.C. 17, 390 F.2d 432 (1967 en banc), cumulative sentences were upheld for robbery and housebreaking. But that was a case that involved crimes of historically different conception, protecting distinctly different societal interests, and affording protection against markedly different dangers.

The Government argues that Ingram is inapplicable here because there were two different assaults, the first involving a curling iron and hammer, the second involving throwing the victim down a flight of stairs. The fact that a criminal episode of assault involves several blows or wounds, and different methods of administration, does not convert it into a ease of multiple crimes for purposes of sentencing. As to the defendants’ intention, the only testimony of intent to kill related to a defendant’s exclamation during the first phase of the assault.¹

While cumulative punishments for these crimes may be imposed in an appropriate case, more is required for such a result than the kind of record before us here. It must be clear from the record, taking into account the evidence and the findings of the trial judge,² that the actions and intent of defendant constitute distinct successive criminal episodes, rather than two phases of a single assault.

II

A speedy trial issue was raised at trial by appellant Smith. He was arrested and detained on February 12, 1967. The docket shows that in May, 1967, he was indicted; and in June, 1967, his motion for release on recognizance was denied. In January, 1968, appellant filed a motion for release on personal bond or for a speedy trial. The District Court denied leave to file the motion for bond, but granted the motion for a speedy trial. The trial date was set and trial was begun in March, 1968.

This incarceration without trial for 13 months is all too long, especially when no reason for it appears. Delays prior to trial are intolerable, for society as well as the defendants. Such delays help breed crime. While the delay here is not so long as to establish, in and of itself, a denial of right to speedy trial,³ it is long enough to require us to give close scrutiny to the issue.⁴ A burden rests on the Government in such cases, and here the Government adduced no explanation for the delay.

It does not follow, however, that the relief required here is dismissal of the indictment. The District Court did grant appellant’s motion for a speedy trial — which had the effect' of terminating prejudice to the person of the defendant in detention. We need not consider what would have been the result if such expedition had been sought and denied. Although defense counsel orally stated to the trial judge that he had made a motion to dismiss the indictment prior to trial, we did not locate this in our combing of the record. Assuming, however, that such a motion was made, we do not find error in its denial.

The issue before us is whether the trial judge was required to dismiss the indictment. We do not think such dismissal is required, at least for delay of the extent before us, unless defendant makes out a prima facie case of prejudice to his defense — not necessarily showing conclusively that the defense was prejudiced, but at least making a showing of a reasonable likelihood of such prejudice, a showing not negatived by rebuttal of the prosecution.⁵

On appeal, counsel raises a claim of prejudice due to the absence now of one Elsie Brown, who was in the apartment at the time. Apparently, however, no such claim was put forward by tria! counsel. Elsie Brown talked to the police officer, but we are not advised that defense counsel requested and was unable to obtain her statement. The police officer called by the Government testified he had not seen her since the date of the offense and that she had moved away— testimony presumably adduced to avoid a missing-witness implication. If she moved soon after the offense she would not have been available even if trial had been held within a few months. While it is not impossible, it seems unlikely that she would have given testimony supporting Smith’s claim that he was asleep throughout this brutal assault. When co-defendant Rozier gave testimony — that he pushed the victim who fell on some glass — he said that Elsie Brown had left the room before the encounter to go to the bathroom on a lower floor. While the long delay involved, not justified by the prosecution, would impel a court to dismiss on a showing of reasonable likelihood of prejudice to the defense, the facts as outlined herein do not provide the requisite predicate.

We have considered whether the time has come to adopt a rule that for persons in detention, a delay prior to trial of more than one year, not attributable to the defense, automatically calls for dismissal of the indictment, due to prejudice to the person. Certainly there must be some limit on such delay, and an indictment may be dismissed with no showing of prejudice to the defense, as appears from the extreme case that came before the court in Petition of Provoo, D.Md., 17 F.R.D. 183, affirmed 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed 761 (1955).

There is at present, however, an unusual strain upon prosecutorial and judicial resources. The legislature has been apprised of the problem, and we may appropriately accommodate our doctrines to permit time for provision of resources necessary to dispose of criminal cases without denial of fundamental rights. For this reason, we have decided not to rule that prejudice to the person by detention for a year automatically leads to dismissal. A delay of that duration does, however, as we have noted, shift to the prosecution a heavy burden of showing that there was no prejudice to the defense. The prosecution takes a double risk in delay: first, the risk that witnesses will become unavailable for any one of a number of reasons; and second, the risk that if the delay creates a reasonable likelihood of prejudice to the defense, the delay will be held to preclude a fair trial and to require dismissal of the indictment.

The cases will be remanded for resentencing.

So ordered.

1 . We think there is sufficient evidence of such intent to support the verdict.

2 . See Irby v. United States, supra, 129 U.S.App.D.C. at 20, 390 F.2d at 435.

3 . United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966).

4 . Hedgepeth v. United States, 125 U.S.App.D.C. 19, 21, 365 F.2d 952, 954 (1966).

5 . Hedgepeth v. United States, supra note 4, 125 U.S.App.D.C. at 22, 365 F.2d at 955.