Graves v. United States
Opinions
BELSON, Associate Judge.
Appellant was convicted by a jury of first-degree (felony) murder, robbery, and first-degree burglary1 in connection with the strangling death of James R. Matthews. The primary question on this appeal is whether appellant was denied his constitutional right to a speedy trial by the lapse of 25 months between his arrest on those charges and the commencement of trial.2 After carefully weighing all the relevant factors, we conclude that, despite the regrettably long delay, appellant was not deprived of his constitutional right. We affirm his convictions of felony murder and first-degree burglary. We reverse his conviction of robbery because it merged with his conviction of felony murder.
James R. Matthews was known in his neighborhood as a bootlegger who sold liquor from his home. On October 9, 1979, he was found in his apartment bound, gagged, and strangled to death. He had been robbed of money, liquor, a pistol and a radio.
Appellant and two other men, Alvin Po-ston and Larry Brown, were arrested later that month and charged with Matthews’ murder and related offenses. The three were tried separately, and ultimately each was found guilty of first-degree (felony) murder and other offenses. Poston was tried first in February 1981, after the charges against him were severed; his conviction was affirmed by this court in July 1983. Poston v. United States, No. 81-626, Memorandum Opinion and Judgment (D.C. July 16, 1982). Brown was tried in May 1981 during the pendency of an interlocutory government appeal in appellant’s case, and his conviction also was affirmed by this court in July 1983.
Appellant’s trial began on November 5, 1981. On that day, the trial court, by written order, denied his motion to dismiss the indictment for lack of a speedy trial. The trial judge’s ruling incorporated findings made by another judge on appellant’s earlier motion to dismiss on speedy trial grounds.3 While acknowledging that it was a close case, the trial court found there had been no deprivation of appellant’s speedy trial right. Graves appealed, asking that we overturn that decision, and his subsequent conviction. A majority of a division of this court agreed with Graves that his speedy trial right had been denied. Graves v. United States, 467 A.2d 712 (D.C.1983). We granted the government’s petition for rehearing en banc, and vacated the division’s opinion. Id.
The framework for analyzing a claim of speedy trial violation was established by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Court identified [1091]*1091four factors which are to be examined: the “[ijength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. at 530, 92 S.Ct. at 2192. These factors are related and must be considered together with other relevant circumstances in “a difficult and sensitive balancing process.” Id. at 533, 92 S.Ct. at 2193. This difficult task, of course, falls in the first instance to the trial court. In reviewing its determination, we are bound by its findings of fact unless they are plainly wrong or without evidence to support them. D.C.Code § 17-305(a) (1981); see Wilson v. United States, 444 A.2d 25, 29 (D.C.1982); Reid v. United States, 402 A.2d 835, 837 (D.C.1979). We may reverse, however, for errors of law. D.C.Code § 17-305(a) (1981). Mindful of these principles, we turn to a consideration of the four Barker factors.
Length of Delay
Delay is measured from the time the individual is formally accused. See United States v. MacDonald, 456 U.S. 1, 6-7, 102 S.Ct. 1497, 1500-1502, 71 L.Ed.2d 696 (1982) (MacDonald II); United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). For speedy trial purposes, arrest constitutes a formal accusation. See MacDonald, supra, 456 U.S. at 6-7, 102 S.Ct. at 1500-1502; Dillingham v. United States, 423 U.S. 64, 64-65, 96 S.Ct. 303, 303-304, 46 L.Ed.2d 205 (1975) (per curiam). Appellant was arrested October 16, 1979, and his trial began November 5,1981. Thus, as the trial court calculated, the total delay was approximately 25 months.
In our previous cases we have said, variously, that a delay of more than a year gives prima facie merit to a claim that an accused has been denied the right to a speedy trial,4 creates a presumption of prejudice,5 and shifts the burden to the government to justify the delay.6 Moreover, the government’s burden in arguing that no violation has occurred increases in proportion to the length of the delay. Hedgepeth v. United States, 124 U.S. App.D.C. 291, 294, 364 F.2d 684, 687 (1966); Parks, supra, 451 A.2d at 600-01; Bethea, supra, 395 A.2d at 790; Branch, supra, 372 A.2d at 1000. However, the more serious and complex the charge, the greater is the delay that will be tolerated. Head v. United States, 451 A.2d 615, 620 (D.C.1982); Parks, supra, 451 A.2d at 601; Bethea, supra, 395 A.2d at 790-91; Branch, supra, 372 A.2d at 1000.
The charges in this case were serious and the case was of moderate complexity. While the 25-month delay was substantial, we note that delays of roughly that length and longer have been countenanced by this court when all factors were considered.7 [1092]*1092On the other hand, delays of less than 25 months have on occasion been held excessive.8 In Barker itself, the Supreme Court found that the defendant’s constitutional right to a speedy trial had not been violated despite a delay of more than 5 years. Barker, supra, 407 U.S. at 516-18, 92 S.Ct. at 2185-2186. The Court found there was “no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months.” Id. at 523, 92 S.Ct. at 2188.
Reasons for the Delay
Barker instructs us on the different weights to be given to different reasons for the delay.
A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
Id. at 531, 92 S.Ct. at 2192 (footnote omitted). While adhering to that general framework, this court has refined the analysis in one noteworthy respect.
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BELSON, Associate Judge.
Appellant was convicted by a jury of first-degree (felony) murder, robbery, and first-degree burglary1 in connection with the strangling death of James R. Matthews. The primary question on this appeal is whether appellant was denied his constitutional right to a speedy trial by the lapse of 25 months between his arrest on those charges and the commencement of trial.2 After carefully weighing all the relevant factors, we conclude that, despite the regrettably long delay, appellant was not deprived of his constitutional right. We affirm his convictions of felony murder and first-degree burglary. We reverse his conviction of robbery because it merged with his conviction of felony murder.
James R. Matthews was known in his neighborhood as a bootlegger who sold liquor from his home. On October 9, 1979, he was found in his apartment bound, gagged, and strangled to death. He had been robbed of money, liquor, a pistol and a radio.
Appellant and two other men, Alvin Po-ston and Larry Brown, were arrested later that month and charged with Matthews’ murder and related offenses. The three were tried separately, and ultimately each was found guilty of first-degree (felony) murder and other offenses. Poston was tried first in February 1981, after the charges against him were severed; his conviction was affirmed by this court in July 1983. Poston v. United States, No. 81-626, Memorandum Opinion and Judgment (D.C. July 16, 1982). Brown was tried in May 1981 during the pendency of an interlocutory government appeal in appellant’s case, and his conviction also was affirmed by this court in July 1983.
Appellant’s trial began on November 5, 1981. On that day, the trial court, by written order, denied his motion to dismiss the indictment for lack of a speedy trial. The trial judge’s ruling incorporated findings made by another judge on appellant’s earlier motion to dismiss on speedy trial grounds.3 While acknowledging that it was a close case, the trial court found there had been no deprivation of appellant’s speedy trial right. Graves appealed, asking that we overturn that decision, and his subsequent conviction. A majority of a division of this court agreed with Graves that his speedy trial right had been denied. Graves v. United States, 467 A.2d 712 (D.C.1983). We granted the government’s petition for rehearing en banc, and vacated the division’s opinion. Id.
The framework for analyzing a claim of speedy trial violation was established by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Court identified [1091]*1091four factors which are to be examined: the “[ijength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. at 530, 92 S.Ct. at 2192. These factors are related and must be considered together with other relevant circumstances in “a difficult and sensitive balancing process.” Id. at 533, 92 S.Ct. at 2193. This difficult task, of course, falls in the first instance to the trial court. In reviewing its determination, we are bound by its findings of fact unless they are plainly wrong or without evidence to support them. D.C.Code § 17-305(a) (1981); see Wilson v. United States, 444 A.2d 25, 29 (D.C.1982); Reid v. United States, 402 A.2d 835, 837 (D.C.1979). We may reverse, however, for errors of law. D.C.Code § 17-305(a) (1981). Mindful of these principles, we turn to a consideration of the four Barker factors.
Length of Delay
Delay is measured from the time the individual is formally accused. See United States v. MacDonald, 456 U.S. 1, 6-7, 102 S.Ct. 1497, 1500-1502, 71 L.Ed.2d 696 (1982) (MacDonald II); United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). For speedy trial purposes, arrest constitutes a formal accusation. See MacDonald, supra, 456 U.S. at 6-7, 102 S.Ct. at 1500-1502; Dillingham v. United States, 423 U.S. 64, 64-65, 96 S.Ct. 303, 303-304, 46 L.Ed.2d 205 (1975) (per curiam). Appellant was arrested October 16, 1979, and his trial began November 5,1981. Thus, as the trial court calculated, the total delay was approximately 25 months.
In our previous cases we have said, variously, that a delay of more than a year gives prima facie merit to a claim that an accused has been denied the right to a speedy trial,4 creates a presumption of prejudice,5 and shifts the burden to the government to justify the delay.6 Moreover, the government’s burden in arguing that no violation has occurred increases in proportion to the length of the delay. Hedgepeth v. United States, 124 U.S. App.D.C. 291, 294, 364 F.2d 684, 687 (1966); Parks, supra, 451 A.2d at 600-01; Bethea, supra, 395 A.2d at 790; Branch, supra, 372 A.2d at 1000. However, the more serious and complex the charge, the greater is the delay that will be tolerated. Head v. United States, 451 A.2d 615, 620 (D.C.1982); Parks, supra, 451 A.2d at 601; Bethea, supra, 395 A.2d at 790-91; Branch, supra, 372 A.2d at 1000.
The charges in this case were serious and the case was of moderate complexity. While the 25-month delay was substantial, we note that delays of roughly that length and longer have been countenanced by this court when all factors were considered.7 [1092]*1092On the other hand, delays of less than 25 months have on occasion been held excessive.8 In Barker itself, the Supreme Court found that the defendant’s constitutional right to a speedy trial had not been violated despite a delay of more than 5 years. Barker, supra, 407 U.S. at 516-18, 92 S.Ct. at 2185-2186. The Court found there was “no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months.” Id. at 523, 92 S.Ct. at 2188.
Reasons for the Delay
Barker instructs us on the different weights to be given to different reasons for the delay.
A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
Id. at 531, 92 S.Ct. at 2192 (footnote omitted). While adhering to that general framework, this court has refined the analysis in one noteworthy respect. We have, in effect, created an intermediate category of “significant” delay for government actions deemed less culpable than deliberate foot-dragging to gain tactical advantage but more culpable than the neutral category exemplified by failure to advance trial dates due to court congestion. See Day v. United States, 390 A.2d 957, 968 (D.C.1978) (failure of government to move for expedition of interlocutory appeal constitutes significant delay); Bethea, supra, 395 A.2d at 791-92 (substantial weight assigned to delay due to government indifference after numerous continuances and assertion of the right); accord, Miller v. United States, 479 A.2d 862 (D.C.1984) (prosecution failure to take reasonable means to bring case to trial is significant delay).
It should be apparent that these attempts to distinguish between deliberate delay and significant delay and between significant delay and neutral delay are intended merely as rough benchmarks to guide analysis. They are not variables susceptible of being assigned arithmetical values. That is, we cannot and do not say that 1 month of deliberate delay equals 3 months of neutral delay, or that 6 months of significant delay equals 1 year of neutral delay. Some delay that is significant may be more so than other significant delay, and some delay that we term “neutral” or “institutional” may be more deserving of censure than other delay falling under that broad rubric. In short, these categories, like the four Barker factors themselves, have no “talismanic” qualities. Barker, supra, 407 U.S. at 533, 92 S.Ct. at 2193.
To evaluate the delay in this case we must review the procedural history of the case. As noted, appellant was arrested on October 16, 1979. He and codefendants Brown and Poston were indicated 3 months later, on January 16, 1980. Appellant was arraigned on January 30, 1980, and a first status hearing was set for March 20. The 5 months’ delay up to that date the trial court termed “neutral delay.” Neither party challenges that finding, and we see no reason to disturb it.
On March 20, 1980, the status hearing was continued to April 7 at the government’s request, apparently in the hope that certain pretrial issues would “resolve themselves” by virtue of “potential dispositions.” Appellant did not object. On April 7, 1980, the hearing was continued to April 24, again at the government’s request. The prosecutor stated that he had been tied up in another case and had not had an opportunity to resolve the matters previously mentioned. Again appellant did not [1093]*1093object. This 1-month period between March 20 and April 24, 1980, the trial court found “attributable to the government.” The trial court recognized, however, that the above-mentioned “neutral” delay of 5 months was also attributable to the government. Thus, it appears that the court believed the delay occasioned by the government-requested continuances should be weighed more heavily than the delay preceding the first status hearing date. We agree, although we think this period should be counted only slightly more heavily against the government; we do not view this delay as “significant.”
On April 24, 1980, the first status hearing was held. The trial court severed code-fendant Brown’s trial from that of Poston and Graves, but denied Poston’s and Graves’ respective motions to sever their trials from each other. Turning to the scheduling of the joint trial, the court first suggested June 9, 1980. Poston’s counsel indicated that the entire month of June and the first 2 weeks of July were bad for him. The court then suggested July 14. Appellant Graves’ counsel said he had planned to begin a 3-week vacation that day, but that he would postpone it if the 14th could be set as a firm date. When Poston’s counsel indicated that he might still be in trial that day in another case, the court suggested August 6. Poston’s counsel planned to be at a convention in Dallas that week, however. Finally, the two defense lawyers, the prosecutor, and the court agreed that August 11, 1980, was an acceptable date for trial. The court stated that the codefend-ants’ motion to suppress statements would be heard on the day of trial.
This 8% month delay between April 24 and August 11, 1980, the trial court ruled was neutral delay. We agree, but we note that more than half of this delay was due to scheduling conflicts of codefendant Po-ston’s counsel and, perhaps, the trial court’s solicitude for Graves’ counsel’s vacation plans. We think it thus should be weighed less heavily than if the delay were entirely owing to the court’s backlog.
On August 11, 1980, the prosecution was not ready for the suppression motions because a key government witness — a police detective — could not be located. Defendants Poston and Graves were ready, and both moved to dismiss for want of prosecution. The court denied the motions and continued the case to September 3, 1980. This delay of almost a month, the trial court ruled, was “attributable to the government.” As with the other delays caused by government-requested continuances, this delay the court apparently found should be weighed somewhat more heavily than neutral delay. We agree.9
On September 3, 1980, the prosecution again had to request a continuance because the attorney assigned to the case had injured his knee and would not be available for about a week. No other prosecuting attorney could take over the case without several days to prepare, the government averred. Codefendant Poston’s counsel thereupon renewed his motion to dismiss for want of prosecution. Appellant’s counsel joined that motion and stated that he “also assert[ed] our right to a speedy trial.” The trial court denied the motions but noted that it would not give a long continuance. However, when the schedules for the three attorneys and the court were compared, the next date acceptable to all parties for motions and trial was December 1, 1980. This 3-month delay between September 3 and December 1, 1980, the trial court also found “attributable to the government.” Here we cannot agree. The roughly 1 week of delay actually due to the prosecutor’s injury should not have been counted against the government at all, since the government showed justification for it. The rest of the 3 months’ delay, as the transcript shows, was due solely to the [1094]*1094institutional difficulty of scheduling a block of time when the court, the prosecutor and the two defense attorneys could all be available. Thus, this delay was at most neutral delay and should have been weighed lightly against the government.
On September 9, 1980, the government, by written motion, requested a 1-week continuance to December 8, 1980, because two police officers scheduled to testify for the government would be on “committed leave” from November 29 to December 5. Appellant filed a written opposition to the motion on September 22, arguing that the government had a duty to ascertain the availability of its witnesses before consenting to a firm trial date. The trial court granted the motion, scheduling motions and trial for December 11, 1980.
This 10-day delay from December 1 to December 11, 1980, the trial court ruled attributable to the government because it was due to the unavailability of two government witnesses. We agree that it was attributable to the government, but under the circumstances we believe that it should be counted only slightly more heavily than ordinary institutional delay.
On November 13, 1980, appellant filed a Motion to Dismiss Indictment for Lack of Speedy Trial. The trial court denied it by written order on December 9, 1980. We discuss the effect of appellant’s assertion of his speedy trial right more fully below, but we note it here because of the Supreme Court’s admonition in Barker that the four factors are related, 407 U.S. at 533, 92 S.Ct. at 2193, and our own holding in Bethea, supra, 395 A.2d at 791-92, that delay occurring after the assertion of the right is to be accorded more weight than delay occurring before any assertion.
On December 11, 1980, a hearing was held on appellant’s motion to suppress statements made to police. The trial court granted the motion on the ground that the statements were the fruit of an illegal arrest. The next day, December 12, the prosecutor informed the court that the government intended to appeal the court’s suppression ruling. The court thereupon severed codefendant Poston’s case from appellant’s. On December 22, 1980, the government filed a notice of appeal from the December 11 suppression order, simultaneously certifying pursuant to D.C.Code § 23-104(a)(l) (1973) that the appeal was not taken for delay and that the evidence suppressed was a substantial proof of the charges against appellant. The notice of appeal did not request that the appeal be expedited, however. See id. § 23-104(e); Day, supra, 390 A.2d at 967-68.
On January 2, 1981, the court reporter certified a 138-page transcript as the official transcript of the December 11, 1980, hearing. On April 24, 1981, the record on appeal was filed in this court. On April 30, 1981, the transcript of the suppression hearing was filed in this court as a supplemental record and the case was docketed.
Meanwhile, on April 27, 1981, at a status hearing, appellant’s counsel renewed his earlier motions to dismiss for want of prosecution and for lack of a speedy trial. Counsel accused the government of neglect with respect to the filing of the record on appeal. Counsel also noted that appellant had written a pro se motion to dismiss for want of prosecution which had not been received by the court. The court denied counsel’s motions.
On June 12,1981, the government moved to dismiss its appeal, stating that upon review of the record it had “determined not to proceed further with the appeal.”
On June 17, 1981, another status hearing was held at which appellant’s counsel renewed his motions to dismiss for want of prosecution and lack of speedy trial. The court denied the motions without prejudice to their renewal by written motion. The court also noted that it had received appellant’s pro se motion to dismiss. Trial was scheduled for October 28, 1981, which apparently was the earliest court date available.
On July 2, 1981, this court issued a mandate dismissing the government’s appeal.
[1095]*1095The period from December 11, 1980, when the trial court granted appellant’s motion to suppress statements, until July 2, 1981, when this court issued its mandate dismissing the government’s appeal, was thus consumed by the interlocutory appeal. The trial court divided this almost 7-month period into three stages: from December 11, 1980, to April 30, 1981, when transcript of the hearing was filed in this court; from April 30 to June 12,1981, when the government moved' to dismiss the appeal, and from June 12 to July 2, 1981, when our mandate issued. The trial court, construing our opinion in Day, supra, 390 A.2d at 964-69, held that the first and third stages were neutral charges against the government, while the second stage was a “significant” charge against the government. We too find that a part of the 7-month period is significant, and other parts neutral, but analyze this phase of the delay somewhat differently.
In Day, supra, 390 A.2d at 966-66, this court held that the time on pretrial government appeals is to be included in calculating the length of delay in speedy trial claims. We reaffirm that holding. Day also enunciated a flat rule that unless the prosecutor moved to expedite the appeal, see infra, the entire period of the appeal was to be considered a “significant,” rather than neutral, charge against the government. Id. at 968-69. We defined this “significant” charge as “an intermediate ... charge ... between neutral and intentional delay.” Id. at 968.
As indicated above, we adhere to the concept of an intermediate category between neutral delay and intentional delay, and we continue to follow Day in labeling as “significant” delays caused by government indifference or neglect. However, we hold that Day’s rigid rule — that, in the absence of a motion to expedite, all pretrial government appeal time must be counted as a significant charge against the government — is not in conformity with the ad hoc approach to speedy trial claims mandated by Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. at 2191-2192. The government has been given explicit authority to appeal before trial orders suppressing evidence. D.C.Code § 23-104(a)(l) (1981). Since some delay in the trial necessarily attends invocation of the appellate process, we think it inappropriate to count all such time automatically as significant delay.
In order to minimize the delay from pretrial appeals, however, Congress mandated that “[a]ny appeal taken pursuant to [§ 23-104] either before or during trial shall be expedited.” Id. § 23-104(e). While subsection (e) imposes strict deadlines on this court for hearing and deciding appeals taken during trial, it is silent as to the procedures to be followed in pretrial appeals. Our own rules partially fill this gap by directing the “[s]teps to be taken” by the parties and by court officials in appeals pursuant to § 23-104. See D.C. App.R. 4-III(a). This rule, which we set forth in full in the footnote,10 generally [1096]*1096requires the parties to employ common sense measures to expedite the appeal. It also directs court officials to act promptly in handling the administrative details of the appeal such as the compiling and transmittal of the record. Implicit in the rule is that all those involved in the appellate process are to take responsibility to see that pretrial appeals receive priority — to the extent practicable — over routine post-trial appeals.11
In weighing the delay caused by a pretrial government appeal, then, the court must attempt to distinguish between delay that could not have been avoided by efforts to expedite and unreasonable delay resulting from the failure to expedite. Unavoidable delay should be considered neutral, and thus counted against the government to roughly the same degree as delay caused by court backlog. Unreasonable delay caused by failure to expedite the appeal should be considered significant.
As explained above, appellant’s motion to suppress was granted on December 11, 1980. The next day the Assistant United States Attorney announced that the government intended to note an appeal of that ruling. The prosecution did not file its notice of appeal until December 22, however, which was the last day on which its filing was permitted. See D.C.App.R. 4-11(b)(1) & (4); Super.Ct.Crim.R. 45(a). While this 10-day delay may appear unnecessary, we think it not unreasonable to allow the United States Attorney’s Office the full period of 10 days to make a considered decision whether to file notice of appeal. Thus, we count this time as neutral delay.
The transcript was completed January 2, 1981, less than 2 weeks after the filing of notice of appeal. This delay was unavoidable, so we count it as neutral delay.
The record on appeal, including the transcript, was not filed in this court until April 30, 1981. Aside from the 138-page transcript, the record on appeal consisted of only 52 pages. The government offered no satisfactory explanation for the long delay in filing the record. We see no reason why the record should not have been filed within 2 weeks of the completion of the transcript. By that time, 5 weeks would have passed since the grant of the suppression motion, during the last 2 of which the transcript would have been available. We think this would have afforded the United States Attorney’s Office a reasonable opportunity to decide whether to press the appeal.
When the record was filed with the court, notice was sent to the parties, stating that the government’s brief was due 40 days hence. This is the time allowed for ordinary appeals. See D.C. App.R. 31. We think for an expedited appeal, however, the government should normally be expected to file in about 20 days. Thus, if the record had been filed by January 16, as we think it should have been, the government’s brief should have been filed no later than February 5, 1981. The filing of the brief would have forced the govern-
[1097]*1097ment to decide, as it ultimately did on June 12, whether to abandon the appeal. Since the government did not act within what we deem as reasonable time periods for an expedited appeal, we conclude that the 4 months’ delay from early February to June 12, 1981, constitutes a significant charge against the government.
We agree with the trial court that it is commendable that the government did not pursue the appeal once it deemed it inappropriate to do so. Nevertheless, we also agree with the trial court that the government must bear the responsibility for not having made the decision sooner. We also note that the government must certify pursuant to D.C.Code § 23-104(a)(l) that its pretrial appeal is not taken for purposes of delay. Thus, it did no more than was required when it abandoned the appeal once it recognized that it was not worth pursuing.
We note also that appellant Graves appears not to have taken any steps to ensure that the appeal was expedited. We think this diminishes somewhat the weight of this delay, although not enough to remove it from the category of significant delay. See Day, supra, 390 A.2d at 970; Ball v. United States, 429 A.2d 1353, 1357 (D.C.1981).
This court granted the government’s motion to dismiss the interlocutory appeal 1 week later, on June 19, 1981. We are distressed that this court’s mandate was then not issued until July 2, 1981, almost 2 weeks later. We do not count this additional delay as a significant charge, however, because at the June 17, 1981, status hearing, the prosecutor informed the trial court that the government was moving to dismiss the appeal and that it was prepared to set a trial date. As noted above, the earliest court date that was agreeable to both sides was October 28, 1981. Since this 4V2 month delay from June 12 to October 28, 1981, was in addition to the previous 20 months’ delay and after appellant’s assertion of his speedy trial right, it must be accorded some additional weight, as we recognized in Day, supra, 390 A.2d at 969. In Day, we held that the post-remand delay must be counted as a significant charge because the government was “no less responsible here than during the appeal.” Id. We think that statement was somewhat exaggerated, for in selecting court dates there is less flexibility and certainly less control than in hastening the filing of an appellate record, especially where the transcript was prepared with dispatch. Since we do not believe this delay reflects government indifference or neglect, we consider it as remaining within the bounds of neutral delay, as the trial court found. See Ball, supra, 429 A.2d at 1356 (post-appeal delay considered neutral).
From October 28, 1981, to November 5, 1981, when appellant’s trial began, the trial judge was unavailable because of another trial. We affirm the trial court’s finding that this, too, was neutral delay.
We summarize our conclusions on the weight to be accorded the various delays in the chart set forth in the footnote.12 We [1098]*1098conclude that Vi month of delay was justified; 4V2 months were significant delay attributable to the government; and approximately 20 months were neutral delay, divided almost evenly into three categories: that which is to be accorded additional weight, that which is merely institutional, and that which is to be accorded less weight. Thus, by far the greatest part of the delay was neutral time that was attributable to ordinary pretrial proceedings and to the heavy caseload of the trial court.
Assertion of the Right
The defendant’s assertion of his speedy trial right, the Supreme Court has said, “is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Barker v. Wingo, supra, 407 U.S. at 531-32, 92 S.Ct. at 2192-93. To some extent we have already taken into account this factor in the above discussion of the reasons for the delay and the weight to be accorded the various intervals between arrest and trial. Some additional comments specifically directed to the assertion factor are in order here.
First, as discussed below, commencing 10 months after his arrest appellant repeatedly sought dismissal on speedy trial grounds. However, he nowhere declared that he wanted to be tried immediately, or as soon as reasonably possible. While invocation of this important right is not dependent on the uttering of court-ordained incantations, we have made it clear that the credibility of an accused’s assertion of the right is enhanced by such a direct statement. Bethea, supra, 395 A.2d at 792; Bolden, supra, 381 A.2d at 628. And although the Supreme Court has held that the remedy for a violation of the speedy trial right is dismissal of the charges, Strunk v. United States, 412 U.S. 434, 439-40, 93 S.Ct. 2260, 2263-64, 37 L.Ed.2d 56 (1973), the right itself is the right to be tried speedily. Our decision in these cases depends to a substantial degree on whether a defendant has made merely pro forma objections or motions, see Barker, supra, 407 U.S. at 529, 536, 92 S.Ct. at 2191, 2194, or really seeks a prompt trial, see id. at 536, 92 S.Ct. at 2195 (“barring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates, as does this one, that the defendant did not want a speedy trial”). We bear this consideration in mind as we weigh appellant’s assertions.
We proceed to address two arguments appellant has advanced with respect to his assertion of the right. Appellant contends that solely because of his pretrial incarceration he must be deemed to have asserted his right. In support of this proposition he cites Parks, supra, 451 A.2d at 601; Strickland, supra, 389 A.2d at 1331; Branch, supra, 372 A.2d at 1002; and United States v. Calloway, 164 U.S.App.D.C. 204, 210, 505 F.2d 311, 317 (1974). We think that those cases support the proposition that an incarcerated defendant will not be held to have waived his right to a speedy trial even if he fails to assert it explicitly. This is in accord with the Supreme Court’s rejection in Barker of the so-called “demand-waiver” doctrine, which the Court defined as follows:
The demand-waiver doctrine provides that a defendant waives any consideration of his right to speedy trial for any period prior to which he has not demanded a trial. Under this rigid approach, a prior demand is a necessary condition to the consideration of the speedy trial right.
Barker, supra, 407 U.S. at 525, 92 S.Ct. at 2189.
However, we reject any suggestion that the non-waiver presumed from a defendant’s incarceration should be weighed as heavily as an actual demand for a [1099]*1099speedy trial. We think the Supreme Court made this clear in Barker when it held that the defendnt’s assertion of the right is one of the factors courts are to consider in assessing a speedy trial claim. This flexible approach, the Court said,
would permit, for example, a court to attach a different weight to a situation in which the defendant knowingly fails to object from a situation in which his attorney acquiesces in long delay without adequately informing his client, or from a situation in which no counsel is appointed. It would also allow a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection.
Id. at 529, 92 S.Ct. at 2191. See also Strickland, supra, 389 A.2d at 1331 (although it preserved defendant’s right, the constructive demand arising from the fact of his incarceration came too late to weigh heavily in his favor).
In a similar vein, noting that his counsel twice filed bond-review motions, appellant cites our statement in Branch, supra, 372 A.2d at 1002 (citing Calloway, supra, 164 U.S.App.D.C. at 210, 505 F.2d at 317), that “a motion for release is to be construed as the functional equivalent of a motion for speedy trial.” To the extent that this language merely restates the Supreme Court’s rejection of the demand-waiver rule, see supra, we reaffirm it. However, to the extent that it suggests that a motion for release should be accorded the same weight as an actual demand for a speedy trial, we find it to be in conflict with Barker’s balancing approach, see id. 407 U.S. at 529, 92 S.Ct. at 2191; see also Jones v. United States, 456 A.2d 805 (D.C.1983), denying petition for rehearing en banc (separate statement of Nebeker, J.), and accordingly disapprove it. Indeed, we believe that a motion for release, if accompanied by no other indication that the defendant desired a speedy trial, should normally be given only minimal weight as an assertion of the right. For it may very often be the case that a defendant desires immediate release from confinement, yet is not at all in a hurry to be tried.
We now review the record with regard to appellant’s assertion of his right to a speedy trial. After he was arrested in October of 1979, appellant was held on a $2,500 cash or surety bond. On December 3, 1979, appellant moved for review of bond, alleging that he could not meet bond because he was too poor and that there were reasonable assurances that he would not flee. The court denied this motion on December 18, 1979. No mention was made in this motion that appellant desired a speedy trial. For the reasons explained above, we give it little weight as an assertion of the right.
On March 20, 1980, and April 7, 1980, a scheduled status hearing was delayed at the government’s request. Appellant did not object to these continuances.
The status hearing was held on April 24, 1980. The trial court stated that appellant’s motion to suppress statements would be heard on the day of trial.13 The court suggested a trial date of June 9, 1980, but the earliest date on which all the attorneys could be present was August 11,1980. Appellant did not object to that date or to the fact that his motion would not be heard until then.
On August 11, 1980, the government requested a continuance because a key prosecution witness could not be located. Appel[1100]*1100lant’s counsel joined in a motion by the codefendant to dismiss the case for want of prosecution. This was the first action by appellant objecting to delay. We think that, in light of appellant’s apparent readiness for the motion and trial, this motion to dismiss can be taken as some indication of desire for a speedy trial. As noted above, however, the significance of this motion is diminished by appellant’s failure to move in the alternative for an immediate trial.
On September 3, 1980, the date to which trial had been continued, the government again sought a continuance, this time because of an injury to the prosecutor assigned to the case. Appellant’s counsel, who had announced he was ready for the suppression motion, joined a motion by the codefendant to dismiss for want of prosecution, adding, “[I] also assert our right to a speedy trial.” This was the first direct reference to appellant’s constitutional right to a speedy trial. As noted above, the trial court denied the motion and granted a continuance to December 1, 1980.
When the government moved for a short continuance because two police officers scheduled to testify were to be on leave, on December 1, appellant filed a short opposition, stating simply that the government had a duty to ascertain the availability of its witnesses before consenting to a firm trial date. The court granted a continuance to December 11, 1980.
On November 13, 1980, more than a year after arrest, but still a year before trial actually took place, appellant filed a Motion to Dismiss Indictment for Lack of Speedy Trial. The trial court denied the motion by written order on December 9, 1980. On December 11, 1980, after a hearing, appellant’s motion to suppress his statements to police was granted.
On December 16, 1980, appellant again filed a motion to modify bond, which was denied by the trial court on January 13, 1981. At a status hearing on January 26, 1981, appellant asked the court to reconsider his bond-reduction motion in light of the time expected to be consumed by the government’s pretrial appeal.
In a letter dated April 8, 1981, and received by the court on May 21, 1981, appellant complained that the government had “seized every opportunity” to delay, thereby denying him his right to a speedy trial. The trial court treated the letter as a pro se motion to dismiss for lack of speedy trial, and denied it.
At a further status hearing on April 27, 1981, appellant renewed his motions to dismiss for want of prosecution and for lack of speedy trial, claiming that the government had been neglectful in taking more than 4 months to have the record on appeal filed in this court. He also asked the court to reconsider his earlier motion to reduce bond in light of the additional delay. The court denied the oral motions, and suggested that appellant file a written motion if he had facts indicating delay by the government with respect to the interlocutory appeal.
We noted above that the government’s failure to take steps to expedite the interlocutory appeal requires us to weigh as a significant charge against the government more than 4 months of the delay in early 1981. We note here that appellant Graves also failed to take action to expedite the appeal. Although at the January 26, 1981, status hearing he did inquire whether the notice of appeal had been filed, he never suggested any affirmative steps to speed the process. Indeed, when the court suggested the next status hearing be set for 3 months later, appellant affirmed that such a date appeared reasonable.
In Day v. United States, supra, 390 A.2d at 970, which was decided more than 2 years before.the pretrial appeal in this case, we disapproved such inaction:
[A] defendant who truly wants a speedy trial can[not] be wholly excused for failure to press the government to seek expedition of its pretrial appeal. Even if entitled by statute to an expedited government appeal, a defendant should make that interest known. If we [1101]*1101do not hold him responsible for doing so, we will in effect be encouraging him to hold back during the appeal period, take his chances on eventual acquittal in the hope that the government’s case will become stale during the hiatus, and then have a second opportunity for dismissal—for lack of a speedy trial. We do not believe that such a tactic should be automatically rewarded.
In contrast to the defendant in Day, appellant here had filed a speedy trial motion before the pretrial appeal. Nevertheless, as we explained above, D.C.App.R. 4-III(a) imposes obligations on the defendant as well as on the government regarding expedition of appeals. The defendant, where appropriate, is to counter-designate additional pleadings and documents he deems necessary for inclusion in the record on appeal, is to submit motions or memoranda of law which he believes to be essential for the court’s consideration, and is “encouraged” to appear in the clerk’s office with the government attorney to facilitate a prompt scheduling for appellate argument. Id., subsections (3), (7) and (8).
In light of these specific obligations, we expect a defendant who is genuinely interested in a prompt trial to be more active during this critical stage of the proceedings. While the rule imposes the primary obligation on the government to expedite the appeal, it certainly does not prevent a defendant from making inquiries about, for example, the preparation of the record on appeal. A simple letter might have prevented several months of delay. Accordingly, appellant’s apparent failure to take any such steps diminishes the force of his claim that he sought an early trial.
After the government dropped its pretrial appeal, appellant continued to press for dismissal of his case on speedy trial grounds. He renewed his motion to dismiss orally on June 17, 1981, and in writing on August 14, 1981. The trial court, after hearing argument on September 21, 1981, took the motion under advisement. The court announced its decision to deny all pending speedy trial motions just before trial began on November 5, 1981.
In sum then, we acknowledge that appellant, through his counsel, raised the issue of speedy trial regularly after August of 1980. There is no doubt that appellant vigorously sought to have the charges against him dismissed. Moreover, there are some indications that appellant was not merely “building a record” but genuinely desired a prompt trial. For example, at the April 24, 1980, status hearing, appellant’s attorney agreed to postpone a planned vacation if a firm trial date could be set in July 1980. Later, on September 3, 1980, when the parties were trying to reschedule the motions hearing, it was learned that the Assistant United States Attorney assigned to the case would be occupied with other trials for the month of October. Appellant’s counsel suggested that perhaps another government attorney could be assigned to try this case.
At the same time, however, appellant’s passivity during the government’s pretrial appeal and his repeated failure to move for prompt trial as an alternative to dismissal of the indictment introduce some ambiguity about whether appellant in fact desired to proceed swiftly to trial and thus diminish somewhat the weight we attach to his other acts of assertion of his right.
Prejudice to the Defendant
The final factor, prejudice to the defendant, is to be assessed in the light of the interests which the speedy trial right was designed to protect, namely: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused, and (3) limiting the possibility that the defense will be impaired. Barker, supra, 407 U.S. at 532, 92 S.Ct. at 2193. “Of these,” the Supreme Court said in Barker, “the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id. Accord United States v. MacDonald, 435 U.S. 850, 858, 98 S.Ct. 1547, 1551, 56 L.Ed.2d 18 (1978) (Mac[1102]*1102Donald I); Parks, supra, 451 A.2d at 603; Tribble, supra, 447 A.2d at 771.
Citing language from United States v. MacDonald, supra, 456 U.S. at 7-8, 102 S.Ct. at 1501-1502 (MacDonald II), which cited United States v. Marion, supra, 404 U.S. at 320, 92 S.Ct. at 463, appellant suggests that impairment of the defense is no longer to be considered the “most serious” of the three interests protected by the speedy trial right.14
In Marion, which was decided 6 months before Barker, the Court stated:
Inordinate delay between arrest, indictment and trial may impair a defendant’s ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite-apart from actual or possible prejudice to an accused’s defense.
404 U.S. at 320, 92 S.Ct. at 463. In MacDonald II, decided 10 years after Barker, the Supreme Court repeated the above language and added the following:
The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.
456 U.S. at 8, 102 S.Ct. at 1502.
When understood in the context in which they were made, that is, consideration of a challenge based solely on the Sixth Amendment speedy trial provision as distinguished from the Fifth Amendment Due Process clause, these pronouncements do not conflict with the holding in Barker that impairment of the defense is the most important aspect of prejudice to a defendant. In Marion, the Court had to decide whether the speedy trial provision was applicable to delay between the end of the alleged criminal scheme and the bringing of formal charges. MacDonald II involved a similar question: whether the Sixth Amendment speedy trial right could be violated by delay between the dismissal of military charges and a subsequent indictment on civilian charges for the same offense. In both cases, the Supreme Court answered “no.” “The Court held that the protection of the Sixth Amendment 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.” MacDonald II, supra, 456 U.S. at 6, 102 S.Ct. at 1501 (quoting Marion, supra, 404 U.S. at 313, 92 S.Ct. at 459).15
In no way did the Supreme Court suggest in either Marion or MacDonald II that it is unimportant whether the passage of time has impaired a defendant’s ability to defend himself at trial. The Court held merely that, until an individual is formally accused, that interest is protected by means other than the Sixth Amendment— primarily by statutes of limitations and the Due Process Clause.
Barker is not. inconsistent with that understanding. We think that Barker in effect provided that once a person is formally accused his due process right to a fair trial — insofar as it is implicated by pretrial delay — may be treated as subsumed within the protection afforded by the Sixth Amendment’s speedy trial guarantee.16 We see no good reason for bifur-[1103]*1103eating the Barker analysis by considering impairment of the defense under the Fifth Amendment and pretrial incarceration and anxiety under the Sixth Amendment. The fact that the speedy trial provision also protects other interests not protected by the Due Process Clause does not diminish the overriding importance to an accused of being able to present a defense unimpaired by the loss of evidence through unreasonable delay. We thus disagree with appellant’s contention that MacDonald II signaled a retreat from the Barker holding that impairment of the defense is the most serious form of prejudice that might result from delay.17
In this case, appellant Graves concedes that his defense was not hampered by the delay. The absence of this most serious form of prejudice weighs heavily in our determination of whether appellant was deprived of his right. See Parks, supra, 451 A.2d at 604; Tribble, supra, 447 A.2d at 770-72; Hilton v. United States, 435 A.2d 383, 391 (D.C.1981); Towles v. United States, 428 A.2d 836, 842 (D.C.1981). It is not necessarily fatal to his claim, however. See Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973) (per curiam) (reversing state court ruling that prejudice to the defense at trial was essential to establish a federal speedy trial claim); Barker, supra, 407 U.S. at 533, 92 S.Ct. at 2193 (holding that none of the four factors is “either a necessary or sufficient condition” to a finding of deprivation of speedy trial right).
Appellant does assert generally that he suffered anxiety and concern from the delay in bringing him to trial. Some prejudice of this sort is inevitable simply by virtue of the existence of impending criminal charges; see Barker, supra, 407 U.S. at 534, 92 S.Ct. at 2194; Strickland, supra, 389 A.2d at 1331; Rink v. United States, 388 A.2d 52, 59 (D.C.1978), and is attendant upon pretrial incarceration, see Smith v. Hooey, 393 U.S. 374, 378-79, 89 S.Ct. 575, 577-78, 21 L.Ed.2d 607 (1969); Tribble, supra, 447 A.2d at 771; Bowman v. United States, 385 A.2d 28, 32 (D.C.1978). Appellant’s assertion of his speedy trial right also adds some weight to his claim of anxiety. See Parks, supra, 451 [1104]*1104A.2d at 602; Bethea, supra, 395 A.2d at 793; Ellis, supra, 408 A.2d at 974-76 (Ferren, J., dissenting).
On the other hand, there is no contention here that the alleged anxiety and concern had a specific impact on appellant’s health or personal or business affairs. See Parks, supra, 451 A.2d at 602; Ellis, supra, 408 A.2d at 973; Bethea, supra, 395 A.2d at 793. Moreover, appellant had prior experience with the criminal justice system, having been convicted three times previously, a factor which may have tended to minimize his anxiety. See Parks, supra, 451 A.2d at 602-03; Ellis, supra, 408 A.2d at 975 (Ferren, J., dissenting). Compare Be-thea, supra, 395 A.2d at 793 (credibility of allegation of anxiety enhanced by fact that defendant had no prior criminal record).
In summary, appellant has made some showing of prejudice due to anxiety, but not a strong one. His primary allegation of prejudice, to which we now turn, is that associated with his pretrial incarceration.
Appellant was incarcerated the entire 25 months between his arrest and trial. In order to determine the weight to give to the prejudice arising from that confinement, we must refer to the procedural background.
At the time of his arrest on October 16, 1979, appellant was on parole for a prior burglary conviction. As a result, the Parole Board on October 18, 1979, filed a “parole detainer,” which directs corrections authorities to hold the parolee pending a determination whether to revoke parole.
On October 22, 1979, the trial court imposed a $2,500 cash or surety bond. It was appellant’s inability to make that bond that resulted in his remaining incarcerated on the instant charges until trial. As recounted earlier, appellant several times moved to modify his conditions of release. On December 3, 1979, he filed a Motion for Review of Bond, which was denied. Thereafter, on November 21, 1980, the Parole Board lifted the detainer previously lodged. Appellant then filed a Motion to Modify Bond on December 16,1980, relying in part on the lifting of the detainer. That motion, and subsequent oral motions, were denied; consequently, appellant remained in jail.
The government, relying heavily on Jefferson v. United States, 382 A.2d 1030, 1032 (D.C.1978), argues that the filing of a parole detainer “breaks the chain of causation between the pretrial delay and any presumed prejudice.” Since 13 of the 25 months’ incarceration were “due to” the detainer, the government contends, the prejudice suffered by appellant is substantially diminished.
In Jefferson, as in this case, the defendant was accused of committing offenses while on parole. As a result of his arrest on the new charges, Jefferson’s parole was revoked and he was transferred to Lorton penitentiary where, presumably, he continued serving time on his previous sentence. Jefferson then asserted a speedy trial violation by virtue of the delay in bringing him to trial on the new charges. With respect to the prejudice resulting from his pretrial incarceration, this court said that “the parole revocation breaks the nexus between the delay and the prejudice.” 382 A.2d at 1032.
We think the instant case is distinguishable from Jefferson in that here appellant’s parole was never revoked, and thus he was not serving time on his earlier conviction. However, we believe there is some force to the argument that the prejudice from incarceration is lessened because of the existence of the detainer. While it is true that the detainer would never have been filed but for the charges in this case, it is also true that there would have been no detainer but for the previous conviction. The detainer, as well as the bail requirement, stood between appellant and his freedom. We conclude that the circumstance of the detainer diminished somewhat, although only slightly, the prejudice to appellant from incarceration on the instant charges.
[1105]*1105Turning to the nature of the prejudice from pretrial confinement, we note that the Supreme Court has said:
The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life, and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time.[18]
Barker, supra, 407 U.S. at 582-33, 92 S.Ct. at 2193 (footnote omitted).
Judged by these criteria, it would seem that appellant Graves suffered less prejudice from incarceration than others in his position might have. He is single and had been unemployed for several years before his arrest in this case. We are aware, of course, that appellant’s confinement may have prevented him from forming family bonds and from obtaining employment. The point simply is that appellant was not in a position to assert certain aggravating factors that frequently accompany pretrial incarceration.
Nevertheless, it must be acknowledged that appellant’s incarceration for 25 months pretrial is a substantial factor weighing in favor of his claim of violation of constitutional rights.
Conclusion
The balancing process mandated by Barker v. Wingo is particularly “difficult and sensitive” in this case. See id. 407 U.S. at 533, 92 S.Ct. at 2193. We believe that this case approaches the boundary between delay which offends the Constitution and that which does not. Nevertheless, after a detailed review of the facts of this case in light of the relevant principles, we are persuaded that appellant was not denied his constitutional right to a speedy trial. Favoring dismissal of the indictment are: the substantial length of the delay; the fact that part of the delay was caused by the government’s failure to expedite the appeal of the suppression ruling; appellant’s repeated attempts to gain dismissal on speedy trial grounds; and the prejudice to appellant from his incarceration during the entire 25-month period from his arrest until trial. We find that these factors are outweighed, however, by the following: the fact that the bulk of the delay was due to neutral, institutional factors; appellant’s own failure to seek expedition of the pretrial appeal; appellant’s failure to demand a prompt trial, and the total absence of any impairment of appellant’s ability to defend himself by virtue of the delay.19
II
Appellant also claims error with respect to the conduct of his trial in three respects. He argues first that admission of a certain statement by government witness, Wayne Hall, violated the hearsay rule, and, even if technically admissible under a hearsay exception, violated appellant’s constitutional right to confrontation. Next, he claims that the trial court’s failure to give a cautionary instruction concerning appellant’s alleged oral admissions constituted plain error. Finally, appellant contends that the prosecutor’s rebuttal argument denied him a fair trial. The first two of these claims we have rejected previously in the appeal [1106]*1106of Larry Brown, originally appellant’s code-fendant, who was tried separately, and so may be disposed of summarily. Brown v. United States, 464 A.2d 120 (D.C.1983). As to the third claim, we find no plain error in the rebuttal argument.
Over defense objection, Wayne Hall was permitted to testify that he, appellant, Brown, Poston and a certain Carl Marks were together in Marks’ apartment when it was reported on the television news that a man had been bound, gagged and strangled to death on E Street, N.E. At that, according to Hall, Poston jumped up and said, “I didn’t know you all had killed the man.” Appellant and Brown each responded by telling Poston to “shut up,” Hall testified. Poston repeated his statement and then left the apartment. Appellant and Brown withdrew to another room and conversed in tones that Hall was unable to overhear.
In the appeal of Brown’s conviction, we held that Poston’s statement was admissible as an “adoptive admission.” We said there, “[U]nder the circumstances of the case, it is to be presumed, that, according to ordinary human experience, [Brown] would naturally have repudiated the charge, if it were not true.” Brown, supra, 464 A.2d at 125 (quoting McUin v. United States, 17 App.D.C. 323, 332 (1900)). The evidence at appellant’s trial concerning Poston’s statement was virtually identical to that in Brown’s trial, and appellant was alleged to have responded in exactly the same manner as Brown. We follow our earlier decision in Brown, supra, 464 A.2d at 123-25, and affirm that this statement was admissible as an adoptive admission by appellant.
Appellant makes an additional argument, not discussed in Brown, that admission of Hall’s testimony about Poston’s statement violated appellant’s Sixth Amendment right to confront the witnesses against him. In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Supreme Court examined the interplay between the hearsay rule and the Confrontation Clause. The Court held that in order to satisfy the Confrontation Clause, there must be a showing, first, that the declarant is unavailable and, second, that the statement bears adequate indicia of reliability. Id. at 65-66, 100 S.Ct. at 2538-2539. Accord (Mark) Harrison v. United States, 435 A.2d 734, 736 (D.C.1981) (en banc) (plurality opinion), and id. at 737 (Ferren, J., concurring). Appellant does not contend here that the first element was not met. Rather, his attack is directed at the reliability part of the Roberts test.
The Court in Roberts noted that it had applied the “indicia of reliability” requirement “principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the ‘substance of the constitutional protection.’ ” 448 U.S. at 66, 100 S.Ct. at 2539 (quoting Mattox v. United States, 156 U.S. 237, 244, 155 S.Ct. 337, 340, 39 L.Ed. 409 (1895)). In' fact, the Court declared, “[Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” Roberts, supra, 448 U.S. at 66, 100 S.Ct. at 2539. This court applied that teaching in (Mark) Harrison, supra, 435 A.2d at 736 (plurality opinion), and id. at 737 (Ferren, J., concurring), finding that the “spontaneous utterance” exception was so firmly rooted as to permit the inference of reliability.
We believe that the adoptive admission exception is likewise sufficiently firmly rooted to allow the inference of reliability. See, e.g., (Herman) Harrison v. United States, 281 A.2d 222, 224 (D.C.1971); United States v. Bolden, 169 U.S.App.D.C. 60, 70, 514 F.2d 1301, 1311 (1975); Naples v. United States, 120 U.S.App.D.C. 123, 126, 344 F.2d 508, 511 (1964). See also IV Wigmore, Evidence § 1071 (Chadbourn rev. 1972); McCormick, Evidence §§ 269-70 (2d ed. 1972); Fed.R.Evid. 801(d)(2)(B). Accordingly, we find no violation of the Con[1107]*1107frontation Clause in the admission of Hall’s testimony concerning Poston’s statement.20
Appellant also contends that it was plain error for the trial court not to caution the jury, sua sponte, “ ‘against trusting overmuch to the accuracy of’ ” Hall’s testimony about the above conversations “since there are ‘great possibilities of error in trusting to recollection-testimony of oral utterances, supposed to have been heard’ ” (quoting Naples, supra, 120 U.S.App.D.C. at 127, 344 F.2d at 512 (dictum) (citation omitted)). We rejected this same argument in Brown, supra, 464 A.2d at 125 n. 6, noting the trial court’s other instructions concerning credibility and Brown’s failure to request such an instruction. In this case, too, no such instruction was requested, and the trial judge’s careful instructions on credibility and on the special care with which an informant’s testimony should be examined ensured that there was no plain error affecting appellant’s substantial rights. See id.; Super.Ct.Crim.R. 52(b).
Finally, appellant contends that the prosecutor’s rebuttal argument, to which appellant did not object, was so prejudicial as to deny him a fair trial. He complains in particular that the prosecutor’s argument implied that defense counsel was trying to obscure the truth. We have examined the record in this regard, and are satisfied that appellant has failed to demonstrate plain error. Watts v. United States, 362 A.2d 706, 709 (D.C.1976) (en banc); see Villacres v. United States, 357 A.2d 423, 428 (D.C.1976).
One final point requires mention. Appellant was convicted of robbery, felony murder committed in the course of the robbery, and first-degree burglary. He received a separate sentence for each of these three convictions, with the burglary sentence to run consecutively to the murder sentence and the robbery sentence to run concurrently with the other two. The government concedes that in light of Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), and Ball v. United States, supra, 429 A.2d 1353, appellant’s sentence on the robbery count must be vacated. For the reasons stated in Brown, supra, 464 A.2d at 125 n. 7, we remand to the trial court with instructions to vacate the conviction, not just the sentence, on the robbery count and to resen-tence appellant.
In all other respects, the judgment of the trial court is affirmed.
So ordered.
490 A.2d 1086 (Graves v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.