United States v. Ellis

408 A.2d 971, 1979 D.C. App. LEXIS 494

• Court: District of Columbia Court of Appeals
• Decided: November 20, 1979
• Docket: 79-245
• Status: Published

Opinions

KERN, Associate Judge:

This is an appeal from an order by the trial court dismissing the charge of assault, D.C.Code 1973, § 22-504, against ap-pellee on the ground that his constitutional right to a speedy trial had been violated. The record reflects that almost two years, viz., 22 months, elapsed between arrest and the trial date when the court entered its dismissal order, and hence this delay alone gives prima facie merit to appellee’s claim. Branch v. United States, D.C.App., 372 A.2d 998 (1977).

The government argues (Brief at 6), that “the court did not thoroughly and properly perform the sensitive balancing test required by the prevailing law in this jurisdiction in determining that appellee was deprived of his constitutional right to a speedy trial.” However, the record reflects that the trial court did recognize and apply the familiar test enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1973). It first noted (Record at 9), “we have a total length of delay . of 22 months”; it then identified and stated in open court, without contradiction from either counsel (Record at 7), the reasons for the delay: “the court congestion is 13 months . . Mutual continuances, two months . . . Defense continuances, four months . . . Government continuances, three months.”

The court noted that the case was a single misdemeanor charge, see Bethea v. United States, D.C.App., 395 A.2d 787 (1978), and pointed out to the prosecutor at the hearing of the speedy trial motion (Record at 24), that “you are here confronted with a delay on a misdemeanor case which adds to your burden because it’s not a complex case. There’s no need for a long delay to prepare for it .” The court further commented to the prosecutor (Record at 27-28), “[y]ou could have set it down for a preference ... we have set up special trial dates because the case has some age on it and at the request of the Government ... we set those and I take the case and I hold that case. I don’t send it back to the pot and that could have been done in the case very easily . . . .”

Appellee’s counsel, in response to the court’s inquiry as to prejudice his client had suffered (Record at 28), pointed generally (Record at 30), to the delay causing faded memories and asserted he had at least three eyewitnesses to the alleged assault. (Record at 31.) He further asserted appellee “has suffered a great deal of anxiety every time he comes to court” (Record at 31), and noted that the assault charge had been originally advanced by a police officer stationed near appellee’s place of business so that the latter’s “anxiety is more than usual because he’s got a feeling they have a vendetta against him.”

Appellee’s counsel advised the court (Record at 35), that ultimately appellee “got out of 4D (the police district) and went to another district to operate the same kind of [gasoline] station.” The court accepted this statement (Record at 41), as evidence of prejudice suffered. The court concluded (Record at 40-41), in pertinent part:

The speedy trial clause of the Sixth Amendment places the primary burden on the prosecution to assure that cases are brought to trial, especially after the accused has asserted a speedy trial right, which they have asserted here, should motivate the Government to seek a prompt trial and really, the history of the case should have put you on notice that you were going to be in trouble, in my opinion. You have got a bad record in this case. . . . This is the case of a single misdemeanor which should have been tried with dispatch.

The government (Brief at 14), points to the failure of appellee to demand in writing a speedy trial until several months before trial as distinguishing the instant case from Bethea v. United States, supra. The record reflects that about half-way through the 22-month period between the arrest and the trial, appellee filed a motion to dismiss for want of prosecution. At that time he expressly urged, among other grounds for granting the motion, that he had been denied a speedy trial. The fact that the trial court then granted the motion to dismiss without prejudice and that the government reinstituted the prosecution should not obscure appellee’s demand, early on, for a speedy trial.

The government also contends (Brief at 16), that “appellee failed to demonstrate the kind of anxiety which concerned the court in Bethea ” and there was “no credible assertion that appellee’s defense was impaired by the delay — other than vague allusions to ‘fading memories’.” In Bethea this court noted that the impairment of the defense case caused by the lengthy delay of a criminal prosecution was better determined post-trial, but that the anxiety generated by such an undue delay was determinable before trial by the court assessing prejudice. We then pointed out in Bethea that (1) when more than one year elapsed between arrest and trial and (2) the defendant asserts he has suffered prejudice by reason of the anxiety produced by this delay, the government then in order to disprove prejudice has the burden to show “convincingly” to the trial court that the anxiety was minimal. Here, applying the test set forth in Bethea, the trial court had a 22-month delay and an assertion, which it accepted, that this delay generated such anxiety on appellee’s part as to cause him to move his business out of the area. Given the length of the delay and this assertion of prejudice relied upon by the trial court, we conclude “[t]here is simply no evidence from which anyone reasonably can conclude that the government’s assertion of no prejudicial anxiety convincingly outweighs appellant’s claim to the contrary.” Bethea v. United States, supra at 793.

Since we are unable to agree with the prosecution’s contention that the trial court erred in the “delicate and sensitive balancing process of applying Barker v. Wingo,” we must uphold its order of dismissal.

Affirmed.