United States v. Donaldson

451 A.2d 51, 1982 D.C. App. LEXIS 439

• Court: District of Columbia Court of Appeals
• Decided: September 15, 1982
• Docket: 81-64
• Status: Published

Opinions

NEBEKER, Associate Judge:

A jury convicted Joseph P. Donaldson of second-degree murder while armed. D.C. Code 1973, §§ 22-2403, -3202. However, following hearings on Donaldson’s motion to vacate sentence, D.C.Code 1973, § 23-110, Judge Nunzio held that the trial court’s pretrial inquiry into Donaldson’s assertions of ineffective assistance of counsel lacked the requisite scope of findings. He ordered a new trial. The case then came on for trial before Judge George H. Revercomb who found that Donaldson’s alibi defense had been prejudiced by the delay. He dismissed the indictment eschewing a speedy trial basis but grounding the ruling on fair trial — due process. The government appeals and we reverse.

I

Because of the particular posture of this case, it is necessary to discuss the events and procedures leading to dismissal. At approximately 7:00 p. m. on October 27, 1974, Steven McDonald was stabbed during a robbery attempt and within hours died of his injuries. Harry Neal, his brother David Neal, and Robert “Chickie” Green were in-dieted for first-degree murder. The case against Green was severed from the other defendants, and the Neal brothers were brought to trial. On January 23,1976, Harry Neal was found guilty of aiding and abetting another in the commission of a felony murder and was sentenced to the mandatory term of twenty years to life.¹ David Neal was acquitted of all charges. Pursuant to a plea bargain with the government, Green pleaded guilty as an accessory after the fact to manslaughter. It was Green’s August 17, 1976, grand jury testimony which implicated Joseph P. Donaldson in the stabbing death of McDonald.² Donaldson was arrested within 24 hours of Green’s testimony.

A five-count indictment was filed against Donaldson on September 22, 1976, and the following day his court-appointed counsel moved for a reduction in bond which was denied. On November 5, the trial court received a letter from Donaldson in which he asserted that his attorney was not working to further his defense and had failed to interview a list of alibi witnesses provided by his friend. Donaldson asked the court to appoint new counsel. At a status hearing on November 10 defense counsel was shown a copy of Donaldson’s request. The trial was set for March 23,1977, but rescheduled for September 13 at defense counsel’s request. On May 3, 1977, Donaldson wrote a second letter to the court complaining of his counsel. The court treated that letter as a pro se motion for replacement of counsel, and, following a hearing- on May 10, the motion was denied.

Following a two-day trial, the jury found Donaldson guilty of second-degree murder while armed. D.C.Code 1973, §§ 22-2403, -3202. Donaldson’s single defense was an alibi that he was helping his mother remove water from a flooded trash chute in an apartment building she managed. However, the only testimony offered in Donaldson’s defense was his brief statement as to his whereabouts at the time of the slaying. Although his mother was present at the trial and had told the defense attorney of her desire to testify, she was not called as a witness. Several other available corroborating alibi witnesses were similarly not called to testify. On November 10, Judge Nunzio sentenced Donaldson to a term of imprisonment from fifteen years to life. Following his conviction, Donaldson filed a timely notice of appeal and this court appointed new counsel.

On June 21, 1978, Donaldson’s new counsel filed a motion to vacate sentence, D.C. Code 1973, § 23-110, charging ineffective assistance of prior counsel. Three hearings were held with both sides offering testimony and submitting extensive pleadings. On April 2,1979, Judge Nunzio issued a memorandum opinion in which he held that because the trial court’s pretrial hearing of May 10, 1977, was defective in scope and lacked a record inquiry on the complaints about counsel with appropriate findings of fact, he had failed to comply with the requirements of Monroe v. United States, D.C.App., 389 A.2d 811 (1978) and Farrell v. United States, D.C.App., 391 A.2d 755 (1978).³ Judge Nunzio did not address the issue of effectiveness of counsel although much of the testimony dealt with that issue as it related to available corroboration of the alibi. The trial judge advised the Court of Appeals, (Smith v. Pollin, 90 U.S.App.D.C. 178, 194 F.2d 349 (1952)), that if the case were remanded to the trial court, he would order a new trial.⁴ Donaldson’s motion for a new trial was granted on April 30.

Following a reduction in his bond on June 8,1979, Donaldson was released from custody. Trial was ultimately set for November 25, 1980, after defense counsel requested several continuances. On October 2, 1980, counsel submitted a motion to dismiss for lack of a speedy trial. Judge Revercomb heard the motion and on November 25 dismissed the indictment holding that Donaldson had not been denied a speedy trial⁵ but that a retrial would violate his right to due process under the Fifth Amendment. The court, appearing to recognize that ineffectiveness of counsel was inextricably intertwined in the case, focused the due process inquiry on whether the trial court’s dismissal of Donaldson’s pretrial request for new counsel prevented the full development of an alibi defense.⁶ The court viewed Donaldson’s incarceration as prohibiting him from interviewing the alibi witnesses. It found that the witnesses could then no longer clearly remember the events that occurred on the day of the slaying, which reduced Donaldson’s defense to an uncorroborated alibi involving his family. Accordingly, it was held the delay was prejudicial and the indictment was dismissed. The court stated that “it appears that the nature of the prejudice, blotting out a substantial defense, and its inherent severity is attributable to the government as a result of the summary disposal of the defendant’s request for new counsel.”

II

The touchstone for our review in this case is well stated in United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977):

We are to determine only whether the action complained of — here, [retrying the accused after granting his new trial request based on an inadequate and untimely inquiry into complaints about his lawyer] — violates those “fundamental conceptions of justice which lie at the base of our civil and political institutions,” ... and which define “the community’s sense of fair play and decency.” [Citations omitted.]

So fundamental is our inquiry that we “are not free, in defining ‘due process,’ to impose on law enforcement officials our ‘personal and private notions’ of fairness and to ‘disregard the limits that bind judges in their judicial function.’ ” Id.

In reaching its conclusion, the trial court examined not only Donaldson’s claim that his alibi defense had been blotted out but also five factors it identified as elements in the delay-prejudice “calculus.” We examine those five factors separately because we are unable to agree that the analysis is capable of forming a basis upon which to predicate the necessary prejudice for a due process-undue delay conclusion. This is not a matter of deference to the trial court’s vantage. It, like this court, reviewed a record of earlier proceedings. Our task is to determine whether the order dismissing the indictment was plainly wrong under D.C.Code 1981, § 17-305. We find it so for the following reasons.

The first three factors found to have relevance to prejudice are best characterized unitarily as a “weak” prosecution case. That case was first viewed as one consisting basically of “a one, perhaps two, witness identification.” However, the record of the trial shows that the government produced several witnesses. Robert Smith testified that he was accompanying Donaldson at the time of the incident and testified that he saw Donaldson stab McDonald in the stomach. Robert “Chickie” Green stated that Donaldson was closest to McDonald at the time of the stabbing, and Green’s wife, Yvonne Green, testified that shortly after the incident she heard Donaldson say that he had not meant to stab McDonald so hard. Yvonne Green also testified that Donaldson made the statement while he and Robert Green were in the basement of the Green’s home, and that when she went down to speak with them she saw a large butcher knife. About forty-five minutes later, Yvonne Green saw Robert Green give the knife wrapped in a paper bag to Martina Stewart. Stewart testified that she received the bag from Green on the evening of the slaying and hid it in the basement of her home. She stated that Donaldson came to her home the next day to retrieve it. Quantitatively, the case was far stronger than the trial court viewed it.

The case was then viewed as weak because some government witnesses were drug addicts or convicted felons and the prime witness was an admitted heroin addict who had consumed a half-pint of whiskey on the day of the killing and admitted to lying before the grand jury. We fail to see how a weak case, or one in which the prosecution witnesses are far from virtuous can tolerate less delay in evaluating prejudice than one where the case is strong or the witnesses quite respectable. Whatever “prejudice” may be found in a “weak” case, it cannot be said to have legal relevance to a due process delay question. “Strong” cases simply cannot indulge more delay, while weak ones must be tried promptly. To be sure, complex cases may occasion more delay than simple ones, Barker v. Wingo, supra, but that notion does not permit an evaluation of the case in terms of witnesses from one side coming from a seedy culture and from different stratum on the other side. Indeed, no such concept finds room in a speedy trial analysis and it should not in this kind of inquiry. Were the law otherwise, a due process-delay or speedy trial claim could be rejected if the prosecution were strong and based on testimony of witnesses of great character and the defense based on testimony of addicts, felons and liars.

Additionally, the trial court held that the two-year delay between the slaying and Donaldson’s arrest resulted from the “government’s choice in prosecuting the wrong individuals.” This is a misassessment, for it should be remembered that two of the three individuals prosecuted subsequently pleaded guilty to related offenses. Furthermore, Donaldson was arrested the day after Robert Green’s grand jury testimony implicating him in the murder. Good faith pre-arrest delays do not deprive an accused of due process. See United States v. Lovasco, supra; United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Accordingly, we find this factor to be of no value in the analysis.

Finally, the trial court deemed the jury deliberation process to evidence that it found the case to be a “close case.” Since the reasons why juries have difficulty in deciding some cases can vary from the rational to the inexplicable and often cannot be ascertained, we think it too dangerous one way or another to consider this factor on the question of prejudicial delay. Thus, we conclude that the trial court’s underlying rationale for identifying these five factors for its prejudice analysis was erroneous.

IV

In order for an accused to maintain a due process claim based on delay of trial, he must demonstrate that the pretrial delay caused a substantial prejudice to his right to a fair trial, and that the delay was an intentional device to gain a tactical advantage over him. United States v. Lovasco, supra, 431 U.S. at 790, 97 S.Ct. at 2048; United States v. Marion, supra; Smith v. United States, D.C.App., 414 A.2d 1189, 1195 (1980); Shreeves v. United States, D.C.App., 395 A.2d 774, 782 (1978), cert. denied, 441 U.S. 943, 99 S.Ct. 2161, 60 L.Ed.2d 1045 (1979); Tolliver v. United States, D.C.App., 378 A.2d 679, 681 (1977). As to the latter, there can be little question that Donaldson failed to demonstrate that any government-caused delay was the result of an intent to gain a tactical advantage over him. This indictment was dismissed after Judge Nun-zio’s conclusion that the trial court’s investigation into Donaldson’s pretrial request required a new trial. See supra, note 4. We must first differentiate between the government — qua prosecutor — and the broader meaning, including the judiciary. Clearly, in the broader sense the government’s intent was not ulterior. On the contrary, the solicitude for Donaldson’s rights has been carried to the extreme. Moreover, it is obvious that the prosecution sought and received no tactical advantage from the delay. The most that can be said for the delay is that it was caused by retroactive application of new decisions of this court; Monroe and Farrell, supra. This cannot even be classified as negligence in the way Smith v. United States, supra treated that term. Id. Even if it be assumed that the trial court erred in its pretrial inquiry into protests about counsel,⁷ the court failed only in clairvoyance. There was no negligence.

It is well established that investigative delays do not deprive an accused of due process even if his defense might be somewhat prejudiced by the lapse of time.⁸ Lovasco, supra 431 U.S. at 796, 97 S.Ct. at 2051; Smith, supra at 1195-96; Shreeves, supra at 782; United States v. Cerrito, 612 F.2d 588, 593 (1st Cir. 1979); United States v. Rubin, 609 F.2d 51, 66 (2d Cir. 1979). Donaldson did not assert that the government’s pre-arrest delay violated due process. Rather, he argued that the long-term effects of all delays plus the dismissal of his pretrial protests about counsel denied him a fair trial. It follows that absent a showing of substantial or severe prejudice, a pre-ar-rest delay which satisfies due process cannot be amalgamated to later delays in order to base a Fifth Amendment violation.

In his attempt to show prejudice, Donaldson directed the court to the earlier hearings on his motion to vacate sentence,⁹ and claimed that he was prejudiced because his alibi witnesses could then no longer recall the events of October 27, 1974. However, the transcripts of those hearings do not reflect such a dimming of the witnesses’ memories nor a loss of his alibi defense. Donaldson testified that on the day of McDonald’s slaying, he was home watching the Washington Redskins on television until approximately 6:30 p. m. when he received a telephone call from his mother, Pauline Boykins, who asked him to assist her with a flood in the apartment building she managed. He stated that he dropped his wife and daughter off at their cousin’s home and arrived at his mother’s building between 7:00 and 8:00 p. m. When he arrived, he put on his brother’s boots and cleaned up the flood near the trash chute. He borrowed a mop and pail from Shelby Stephens, a resident who assisted him in the cleanup, and he discussed the flood with another resident, Cecilia Galloway. After he finished, Donaldson joined his mother and aunt, Emma Bryant, for a drink and then left the building at 11:30 p. m.

Pauline Boykins testified that on a Sunday before the end of October she called Donaldson to assist with a flood in her building, and that he arrived at approximately 8:00 p. m., put on some boots, cleaned up the water, had a drink with her and her sister, and left. Although Emma Bryant was not certain of the exact date, she did recall that she was present at her sister’s apartment when a flood began in the first-floor trash compressor, that Donaldson arrived late in the afternoon or early evening, put on some boots, cleaned up the flood, and then had a drink with her and her sister. Allen Boykins, Donaldson’s brother, testified that on a Sunday evening around October 27, Donaldson arrived at approximately 7:30 p. m. to assist with a flood in the building and that he borrowed a pair of boots to wear. Shelby Stephens remembered that on a Sunday in the latter part of September or October, she was awakened in the morning¹⁰ by Donaldson and lent him a mop and pail to clean up a flood on the first floor of her apartment building. She recalled that the cleanup operation lasted into the evening. Cecilia Galloway was not sure of the date, but she did recall seeing Donaldson help his mother clean up a flood on the first floor of her apartment building.

Any loss in the memory of these corroborating witnesses has not prejudiced Donaldson’s alibi defense sufficient to warrant the drastic remedy of dismissal.¹¹ It can be seen from the testimony at the hearings that the alibi defense can be presented in a meaningful way. That is all the Fifth and Sixth Amendments require. To hold otherwise here places the Fifth and Sixth Amendments in friction with the well-settled law that courts must favor the trial process as our best tool in the quest for truth. Therefore, because delay is not shown impermissibly to have prejudiced Donaldson’s right to a fair trial, the order dismissing the indictment is reversed and the case is remanded with instructions to reinstate the indictment.

Reversed and remanded.

1 . Harry Neal was later granted a new trial based on information provided by a newly discovered witness, United States v. Neal, 105 Wash.D.L.Rptr. 1393 (Aug. 4, 1977), and he subsequently pleaded guilty to attempted robbery.

2 . Donaldson’s name was first mentioned at the Neal trial in January 1976.

3 . Monroe v. United States, supra at 821, defined the court’s duty as follows:

When a defendant makes a pretrial challenge to the effectiveness of counsel — whether court-appointed or retained — and requests the appointment of new counsel on the ground that counsel, due to lack of investigation, preparation, or other substantial reason, is not rendering reasonably effective assistance, the trial court has a constitutional duty to conduct an inquiry sufficient to determine the truth and scope of the defendant’s allegations.

The inquiry must be “on the record ” and the court must make appropriate findings of fact “of record” sufficient to permit meaningful appellate review. Id. (emphasis in original).

4 . Monroe, supra and Farrell, supra were decided after the Donaldson conviction; however, the issue of whether Judge Nunzio was correct to apply them retroactively is not necessary for decision and, therefore, will not be addressed. Cf. Stovell v. Denno, 388 U.S. 293, 297-99, 87 S.Ct. 1967, 1970-1971, 18 L.Ed.2d 1199 (1967); Linkletter v. Walker, 381 U.S. 618, 622-29, 85 S.Ct. 1731, 1733-1737, 14 L.Ed.2d 601 (1965); Gaffney v. United States, D.C.App., 421 A.2d 924, 927 n.3 (1980).

5 . Judge Revercomb treated Donaldson’s five bond review motions, the first of which was filed on September 23, 1976, as the equivalent of motions for speedy trial, Branch v. United States, D.C.App., 372 A.2d 998 (1977), and ordered a hearing. He then found that the total delay under a Sixth Amendment analysis was two years and four months, from Donaldson’s arrest (August 17, 1976) until his sentencing (November 10, 1977) and from Judge Nunzio’s opinion requesting a remand (April 2, 1979) until Donaldson waived his right to a speedy trial (May 9, 1980). Judge Revercomb held that only one two-month delay was directly attributable to the prosecution, and that the delay was in good faith. Applying Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), Judge Revercomb held that Donaldson was not denied a speedy trial; however, he deferred his discussion of delay-caused prejudice for a due process analysis.

6 .Judge Revercomb correctly stated that United States v. Alston, D.C.App., 412 A.2d 351 (1980), does not apply in this case because the delay was not caused by lengthy appellate review. Following his conviction, Donaldson filed timely notice of appeal on November 11, 1977, and this court appointed new counsel who then requested additional time to submit his brief and obtain the trial transcripts. On June 21, 1978, defense counsel filed his motion to vacate sentence and subsequently requested and received several additional extensions of time for filing his appellate brief pending the outcome of his motion in the trial court. On April 24, 1979, pursuant to Judge Nunzio’s decision to grant a new trial, the case was remanded to the trial court. Judge Revercomb found that there was little government-caused delay throughout the entire proceeding. Of the total 72 months it took to bring Donaldson to trial, from the date of the stabbing (October 27, 1974) until the day of the hearing before Judge Revercomb, he classified only nine months as government-caused.

7 . See supra note 3.

8 . The delay prior to Donaldson’s arrest was clearly the result of an on-going police investigation into the stabbing death of McDonald. A plea bargain with Robert Green finally provided police with grand jury testimony implicating Donaldson, and he was arrested within 24 hours. During his pre-arrest period, Donaldson knew that individuals close to him were being investigated about the McDonald murder. Robert Green is a brother-in-law to Donaldson and to Harry and David Neal, the persons tried for the murder in January 1976. Green, his wife Yvonne Green, and Harry Neal all testified for the government at Donaldson’s trial, and stated that they discussed the police investigations into the case with Donaldson prior to his arrest. They testified that they asked Donaldson what he planned to do about the investigations. Furthermore, Donaldson’s name was connected with the offense during the Neal trial.

10 . Stephens also submitted an affidavit in which she stated that Donaldson helped his mother clean up the flood during the evening hours.

11 . The testimony given at the hearings was available and subject to use to refresh the witnesses’ memories, or other appropriate purpose. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

9 . Those hearings were held on October 27, 1978, and November 21, 1978.