Smith v. United States

470 A.2d 315, 1983 D.C. App. LEXIS 550

Opinions

KERN, Associate Judge:

Appellant and his codefendant were convicted by a jury of a variety of crimes arising out of the strangling of one victim and the wounding by pistol of two other victims.¹ Appellant raises a number of contentions, only one of which requires extended discussion.² Specifically, appellant claims that the trial court erred in refusing to grant his pretrial motion to dismiss some of the counts of the indictment filed against him, including the murder charge and the assault and related charges arising out of one of the shootings, because the government failed to abide by the terms of the Interstate Agreement on Detainers (IAD). D.C.Code §§ 24-701 (1981) et seq.

The sequence of events pertinent to the claim that the IAD was violated is as follows. Appellant allegedly committed within the District the crimes of murder and assault with a pistol in late September and early October 1979. In response to police requests and based upon eyewitness accounts, the trial court issued warrants for his arrest on these crimes. In November 1979, appellant and his codefendant were arrested in South Carolina for offenses they had committed there. Shortly thereafter, the South Carolina police advised the District police that appellant was in their custody and two District detectives went to South Carolina to interview him (and his codefendant). Appellant and his codefend-ant were shown the Superior Court warrants for their arrest and also excerpts from the affidavits underlying the applications for the warrants. Appellant freely admitted to the District detectives shooting the victims Vaughan and Long but denied the strangling of the victim Cheek. (Record at 18.) At the request of the South Carolina police and as “a matter of professional courtesy” the District officers left copies of the warrants for the arrest of appellant and his codefendant who remained incarcerated in South Carolina to face prosecution there.

Some months later, in April 1980, appellant was sentenced by the South Carolina court to serve eight to twenty-seven years’ imprisonment for kidnapping and armed robbery, among others, committed by him in that jurisdiction. In November 1980 the Grand Jury in the District of Columbia returned indictments charging appellant with the murder of Mr. Cheek and the assault with intent to kill of Messrs. Vaughan and Long. In June 1981 appellant’s trial took place on these charges after the trial court had denied his motion to dismiss counts in the indictment against him for violation of the IAD.

The portions of the IAD relevant to appellant’s claim, D.C.Code § 24^701, Article III, read as follows:

(a) Whenever a person has entered upon a term of imprisonment in a ... party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried ... complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the complaint.

(c) The ... official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information, or complaint on which the detain-er is based. [Emphasis added.]

Appellant argues that in April 1980 when he commenced the service of the sentence imposed by South Carolina, a party State to the IAD, there was pending in the District of Columbia an “untried ... complaint,” viz., the warrant issued by the Superior Court for his arrest and left with the South Carolina police by the District officers. This warrant, in appellant’s view, constituted a “detainer” within the meaning of the IAD. Therefore, appellant argues that the District was obliged by the IAD to bring him to trial no later than November 1980, 180 days after he commenced serving his sentence in South Carolina, rather than June 1981.

Assuming only for the purpose of determining this appeal that the copy of the Superior Court warrant for appellant’s arrest constitutes a detainer within the meaning of the IAD,³ we note that appellant must meet another requirement of the IAD before he can “trigger” the running of 180 days within which to be brought to trial: He must have delivered to the Superior Court, as required by the IAD, his request for “a final disposition to be made of the complaint.” See Dobson v. United States, 449 A.2d 1082, 1083 (D.C.1982).

Appellant acknowledges that between April 1980 when he commenced service of sentence in South Carolina and June 1981 when he went to trial in the Superior Court, he had not requested a final disposition to be m,ade of the indictment against him in the District. Thus, appellant appears to have waived his right to trial in the District, while serving his sentence in South Carolina, by his failure to request the Superior Court and the United States Attorney to proceed with trial. Appellant seeks to overcome his conceded failure to have complied with the express terms of the IAD, viz., requesting “final disposition to be made of the ... complaint” in the District; he argues that his failure was occasioned by the failure of the “official having custody” of him in South Carolina to “promptly inform him of the source and contents of any detainer lodged against him” and “also inform him of his right to make a request for final disposition of the ... complaint on which the detainer is based,” as required by the IAD.

However, the record makes absolutely clear that appellant was in November 1979 —before he even commenced his prison service in South Carolina — informed by the District detectives of the source and contents of the warrant for his arrest, which appellant now asserts was a “detainer.” Indeed, appellant was shown portions of the affidavit in support of such warrant. (Record at 10-20.) In addition, the record reflects that appellant, after being informed of the details of the charges against him in the District by the District’s detectives who had come to South Carolina to interview him, admitted committing two of the three crimes charged against him. (Record at 18.) Moreover, the codefendant readily confessed (Record at 15) that he and appellant had shot both Mr. Vaughan and Mr. Long.

Under these circumstances, there can be no doubt that appellant, upon the basis of (a) the warrant and affidavit shown him and (b) his interview with the District detectives, knew as early as November 1979 precisely what charges had been brought against him in the Superior Court of the District of Columbia by the prosecutor there and the basis for such charges. Additionally, appellant acknowledged the truth of most of the charges pending in the District against him.

Accordingly, the narrow question remaining is whether it is reasonable to conclude upon this record that appellant, knowing in November 1979 of the precise source and nature of the charges against him in the District and admitting to some of them, failed to request the Superior Court to proceed to dispose of these charges solely because the South Carolina officials did not inform him that he had a right to so request. Given the particular circumstances here that appellant was fully informed of the charges and admitted most of them, we deem it reasonable to conclude that his failure to request of the District to proceed to try the charges was because he had no interest in proceeding with them. We note also that after receiving ample notice of the charges in the District against him he then proceeded to undergo a significant experience with the workings of the criminal justice system, viz., arrest and then conviction and sentence by the court in South Carolina. Thus, we are not persuaded he can explain away his failure to request the District to proceed with its charges simply because the South Carolina officials did not tell him he could ask the District to proceed with the charges of which the District had already fully informed him.

We conclude that “the burden of substantial compliance” with the IAD fell upon appellant and that under the particular circumstances here he did not carry such burden. McBride v. United States, 393 A.2d 123, 128-29 (D.C.1978). Accordingly, we conclude that appellant waived his right to request the Superior Court to dispose of his charges prior to the time he went to trial in the District in June 1981. Surely it would make a mockery of the beneficial objectives of the IAD if we were to hold otherwise upon the unusual facts in the instant case where appellant was fully informed by the District of its charges against him and freely admitted most of them. His failure to press for disposition of these charges was a consequence of his admission of them rather than his ignorance of them. See Christian v. United States, 394 A.2d 1, 38-39 (D.C.1978) (“The Agreement is a long-overdue piece of legislation designed to correct untenable abuses by government officials in the use of detainers. This is not to say, however, that it should be interpreted so as to create a sanctuary on appeal for convicted defendants. It must be construed soundly.”)

Affirmed.

*

1 . Thus, appellant was convicted of second-degree murder, D.C.Code § 22-2403 (1981), and attempted robbery, D.C.Code § 22-2902 (1981); assault with intent to kill while armed, D.C.Code §§ 22-501, -3202 (1981), and carrying a pistol without a license, D.C.Code § 22-3204 (1981); and, assault with intent to kill while armed, obstruction of justice, D.C.Code § 22-703 (1981).

2 . The evidence was that appellant choked Frank Cheek to death while the codefendant pinned the victim’s arms; and, when a few days later Donald Long and Ellsworth Vaughan publicly voiced their suspicions that Cheek had been murdered, appellant in the company of his codefendant confronted and shot first Vaughan and then Long. Appellant unsuccessfully sought before trial to sever the death by strangling charge from the shooting charges; now he complains that the trial court, in allowing the jury during the trial to hear evidence of all three crimes, failed to make an express finding that the probative value of all the evidence outweighed the prejudice accruing to him as a result of the jury hearing about all three crimes. Since the grant of severance during trial is left to the court’s discretion and since it is undisputed under the particular circumstances that the evidence of each crime was admissible in the proof of the others, we are not persuaded there was an abuse of discretion here. See Robinson v. United States, 452 A.2d 354, 358 (D.C.1982).

We also find without merit appellant’s claim that the trial court in its charge to the jury should have sua sponte given a limiting instruction as to the use the jury might make of the evidence of one crime in their determination of the other crimes. Given the fact that the jury was instructed on the need to keep the overlapping evidence of each crime charged separate in its deliberations, we reject this claim. See Miles v. United States, 374 A.2d 278, 283 (D.C.App.1977).

Appellant also claims that the trial court denied him a fair trial by admitting into evidence certain testimony at trial concerning threats he had uttered to witnesses (which evidence con-cededly was admissible), but failing to instruct the jurors that their consideration of such threats was to be limited only to its showing of appellant’s consciousness of guilt. In the absence of any request for such limiting instruction and given the strength of the evidence against appellant, we are not persuaded reversal is called for here. See Proctor v. United States, 381 A.2d 249, 251 (D.C.1977).

Appellant complains that the court erred in refusing to order the prosecutor to turn over to the defense police investigation notes referring to one Christopher Miller as a possible suspect. The record reflects that appellant and his code-fendant committed their crimes in the presence of eyewitnesses and the police investigative notes on this possible suspect may properly be considered as an investigation of rumors, not exculpatory evidence. Accordingly, the trial court’s ruling was correct. United States v. Sedgwick, 345 A.2d 465 (D.C. 1975), cert. denied, 425 U.S. 966, 96 S.Ct. 1751, 48 L.Ed.2d 210 (1976).

Finally, appellant’s claim that the fact that he fired a pistol at close range at the victim Ells-worth Vaughan yet only wounded him twice required a finding of not guilty of an assault with intent to kill is wholly without merit.

3 . In Bean v. United States, 409 A.2d 1064 (D.C.1979), this court commented (at 1066) that while the IAD does not define “a detainer” the Supreme Court “indicates” that “the service of an arrest warrant is a detainer,” and cited as support United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). However, in Mauro, (at 346, 98 S.Ct. at 1840) the Court was dealing with a factual situation where the federal law enforcement officials “lodged the federal bank robbery warrant as a detainer against him with the state prison authorities.” Thus, there is a question whether Mauro stands for the proposition that anytime an arrest warrant comes into the hands of officials in another state who may be holding a defendant this occurrence alone constitutes the lodging of a detainer within the meaning of the IAD. Here, the warrant for appellant’s arrest issued by the Superior Court in October 1979 was left with the South Carolina police in November 1979 by the District of Columbia police at the former’s request and “as a matter of professional courtesy.” The trial court specifically found leaving the warrants under these circumstances was not “an attempt” to lodge a detainer. (Supp. Record II at 171-72.)

Our concurring colleague seeks to circumvent the flat assertion of our decision in Bean, supra, n. 2, by engaging in a “functional analysis” to determine whether the arrest warrant here was “intended as, or accorded the status of, a detainer.” However, this court in Bean (at 1066), flatly concluded that “service of an arrest warrant is a detainer.” Here, the District police at the request of South Carolina officials left the warrant for appellant’s arrest with them. At a later point, South Carolina officials unequivocally stated that the warrant was deemed by them to be a detainer. (Record at 2068.)

Our concurring colleague also undertakes as a part of his “functional analysis,” a determination of the prejudice vel non to appellant’s rehabilitation in the South Carolina prison system pending his trial in the District. However, the record before us is silent on this aspect of the case and we decline to join our colleague in his speculation.