*1 GAFFNEY, Appellant, Keith E. STATES, Appellee.
UNITED ENGRAM, Appellant,
Willie C. STATES, Appellee.
UNITED
Nos. 11319. Appeals.
District of Court of Columbia
Argued Sept. 1978. Aug.
Decided
1980.1
appel-
post-conviction
abeyance
Alston is conditioned
Decision of this case was held in
pending
this case involves
late
id. at
whereas
the en banc decision in United States
Alston,
interlocutory appeal
its attendant
ington, appel- D. were on the lee. KERN, MACK, NEBEKER and
Before
Judges.
Associate
NEBEKER,
Judge:
Associatе
having been found
appellants,
crimes,2
reversal of
of various
seek
guilty
grounds
their convictions on the
trial,
were denied a
jury concerning
court failed to voir dire the
and
the arrest
newspaper publicity
conviction records of
witnesses
ap-
produced prior
to trial. Both
pellants also seek vacation of their sen-
ground
tences on the
sufficiently familiar with
“was not
the facts
the case to be able to render an
appropriate
Appellant Gaffney
sentence.”
requests
also
reversal because the trial
improperly
restricted his cross-exami-
nation
and vaca-
of a
witness
tion of his sentence because he was denied
effective assistance of counsel at sentenc-
Graae,
C.,
Washington,
W.
ap-
Steffen
D.
ing. We affirm for the reasons stated be-
pointed
court,
by this
with
Bruce M.
whom
low.
Clarke,
C.,
brief,
Washington, D. was on the
Only
synopsis
a brief
of the facts is nеces-
for appellant Gaffney.
sary in view of the nature of the issues on
Gilson,
Mady
Service,
B.
Public Defender
appeal.
appellants, Engram
and Gaff-
C.,
Washington, D.
appellant Engram.
ney,
entry
apartment
were allowed
into the
Wasserstrom,
Silas J.
Public Defender Ser-
friend,
of a Miss
her
Mr. McAdo-
Owens
vice,
C.,
Washington, D.
also entered an
friend,
ry, while she and another
Miss
appearance.
Wade,
getting
were out
some wine. When
Perwin,
Joel
Atty.,
S.
Asst.
apartment,
U. S.
Wash-
the women returned to the
ington,
C.,
Silbert,
D. with whom Earl
gunpoint
J.
U.
robbed at
Atty.
argued,
McAdory. Engram
S.
at the time the case was
and Mr.
Miss Owens
Terry,
attempted
rape
and John A.
Atty.,
raped
Asst. U.
Wash-
Miss Wade and
S.
armed,
consecutively
previously
2. Both
to run
were convicted and sen-
to the
(1)
years
sentences;
(7)
imposed
tenced as follows:
to life for as-
40 months to 10
armed;
rape
(2)
years
carrying
pistol
sault with intent to
while
without a license
years
concurrently
(felony)
to life for assault with intent to kill while
with the other sen-
to run
armed;
(3)
years
years
to life for one count of
sentence was 60
tences.
total
robbery,
life,
consecutively
any
armed
concurrently
these three sentences to run
to
previously imposed.
sentences
run
consecutively
additionally
with each other but
counts;
imposed
years
burglary
to the sentences
on the other
in the
sentenced to 15
to life for
(4)
years
armed,
kidnapping
years
years
degree
to life for
and 15
armed,
to life for the
first
while
armed,
years
rape
rape
to life for one
and 15
count of
while
these
third count of
while
concurrently
robbery,
two sentences to run
with each
armed
these three
to life for the third
consecutively
concurrently
previ-
other but
ously
the sentences
sentences to run
with each
(5)
imposed;
years
imposed
consecutively
to life for the
but
to the sentences
robbery,
second count of аrmed
run
consec-
the other counts.
total sentence was
utively
life,
(6)
consecutively
imposed;
years
to the other sentences
to run
years
rape
previously imposed.
to life for the second count of
while
sentence
of 1976. Gaff-
resisted,
began
he shot
Miss Owens. When Owens
one-half
her in the chest. As she crawled towards
ney
about one
was arrested
her in
side
telephone,
he kicked
tried jointly
He was
Engram.
months after
resulting
spraying
in the
of bloоd over the
inquiry does
our
Engram.
get
McAdory
area.
ordered Mr.
assess the other
as we must
stop here
closet,
into a
and then both he and
Barker test.
factors
*3
left, taking Miss Wade with them. After
drive,
an extended
the three arrived at an-
the Conse-
and
Delay
B. Reasons for the
apartment
where
were admitted
quential Weighing
Gaffney.
a woman who
know
seemed to
iden-
chronological outline
following
The
Engram again
Miss Wade in this
raped
delay:
tifies the reаsons for the
apartment. The
then left and drove
and, fol-
arrested
July
1973-Engram
to the apartment of Miss Crawford. Miss
for
set
lowing arraignment,
trial
Crawford knew
and let them in.
November
1973.
(who
Miss
She loaned
Wade
was introduced
Engram’s lady)
clothing
some
and
9, 1973-Gaffney arrested.
September
returning
all went for a drive. After
Miss
ato
5,1973-All
agreed
November
apartment, Engram
to her
and
Crawford
anticipated
continuance because
Gaffney drove off with Miss Wade. Gaff-
occurred.
case had
position of this
ney said that he wanted to return to Miss
21, 1974.
February
Trial was set for
apartment,
Crawford’s
so
and Miss
and
21, 1973-Gaffney indicted
December
got
Wade
out of the
En-
Eventually,
car.
charging
Engram reindicted
gram
go
let Miss Wade
home after threats
arraigned
were
jointly.
fendants
that she had to meet him the
day.
next
February
The
1974.
January
apart-
returned to Miss Crawford’s
was re-
trial date
where
raped
and robbed her.
tained.
continued
February
1974-Case
I. SPEEDY TRIAL
and
рrosecution
because the
government
abridge
February 21
unprepared
for the
appellants’ right
speedy
to a
trial. This
February 27
set a
trial. The court
holding
application
results from an
of Bark
(Engram’s
hearing.
status
er v.
absent,
trial.)
being in
wherein the Court re
2,May
set for
February
1974-Trial
jected
rigid
two
trial
tests for “a
1974.
test,
balancing
in which the conduct of both
23,1974-Court
ordered
April
and the defendant
are
days
seven
to defense counsel
reveal
weighed.” Id. at
at 2191-92
and conviction
the arrest
before trial
(footnote omitted).
“[compelled] to
We are
records of its witnesses.
approach speedy trial cases on an ad hoc
prosecu-
objection,
May
1974-Over
basis.” Id. The Barker Court “[identified]
because it
tion moved for a continuance
some of the
should
factors which courts
Gaffney’s case.
prepared
was not
particular
determining
assess
whether
requested leave
Gаffney’s counsel
deprived
right,”
defendant has been
of his
and En-
both he
withdraw because
id.,
specified
and
“four
such factors:
the Public
were from
gram’s counsel
Length
reason for the
[and]
a con-
therefore
Defender
right,
of his
Service
prej
defendant’s assertion
arise.
might
(footnote
flict of
interest
udice to the defendant.”
Id.
complied
yet
omitted).
government had
A status
order.
23 disclosure
Length
Delay
A. The
of the
8, 1974.
May
hearing was set for
new counsel
8,1974-Court appointed
May
Thirty-three
expired
months
between
the sanction
imposed
his
July
arrest
of 1973 and
issue
The resolution of a
trial
of witness-
suppression
testimony
needed
easier if a court
would be
concerning
es
whom
party
to each
days
attributed
total
April 23
complied
had not
with the
greater number.
party
hold for the
with the
was set for
order. Trial
however,
Barker,
task is more
Under
1974.
weighed accord-
days must be
complex: the
3,1974-Prosecution
filed a notice
June
Barker
for the
ing to the reasons
(en-
order
appeal
suppression
spectrum
on the
points
noted three
opin-
May
tered
a memorandum
(weighed “heavi-
weights:
intentional
ion).
(“[a]
neutral rea-
negligent delay
more
ly”),
Appeals reversed
1975-Court of
(not weighed).
son”),
and unavoidable
court’s order.
trial
531, Wingo, supra
Barker
reassigned to trial
June
1975-Case
judge.
*4
argues
Appellant Engram
24,
Appeals
June
of
denied
1975-Court
charged with much
shоuld be
government
rehearing.
appellant’s petition for
charges are
certain
of the
asserts that
example,
For
24,
unwarranted.
July
1975-Mandate issued in
re-
of
second indictment
the “issuance
case.
[his]
months in
delay
sulted in a
of over two
12,
January
1976-Supreme Court denies
We read the record to indicate
early 1974.”
appellants’ petition for certiorari.
trial
Although Engram’s first
otherwise.
27,
in En-
January
1976-Mandate issued
1973,
8,
all
date was November
gram case.
5,
аgreed, on November
to a continuance.
18,
hearing,
1976-At status
all
February
2,
February
The new date for trial was
agreed
hearing
another status
should
1974,
joint
at the
indict-
which was retained
proposed February
be set. The court
set
arraignment.
The trial date
prosecution’s
26 but set March 14 at the
therefore,
alone,
was not al-
request.
joined.
tered because
23, 1976-Engram files a motion
February
the nine
also asserts that
speedy
to dismiss for lack of
to
are attributable
appeal
teen months of
18,
hearing
March
12
1976-{March
States,
Day v. United
government.
See
date.) Gaffney joins
continued to this
(1978).3
con
957
While
D.C.App., 390 A.2d
Engram’s
to
for want
motion
dismiss
ceivably
government
responsible
is
trial. Court took
trial
Appeals
prior to the Court
eleven months
motion under advisement.
why the
decision,
understand
we fail
to
26,1976
requests for continu-
should be
government’s side of the scales
—After
ap
to
ances
time attributable
prosecution, weighed
and the
with the
rehearing
petition
petition for
begins.
pellants’
trial
80,
61,
Alaska,
Day
supra,
Certain genuine. were more formal than assertions For exam- government are warranted. First, to illustrate. examples We offer two for the ple, resрonsibility result- initially who on November 5 it ing from dockets is ultimate- crowded court continuance, although the trial requested a g., E. ly government. borne Strunk “any judge warned States, supra. While much of the trial date at this time is rescheduling of the Gaffney’s unpre- was attributable to in a new trial date going likely result paredness, consequential delay of En- Faced with the alter- February.” gram’s weighed against trial is somewhat natives, postponement. on a agreed all because the 2, 1974, court asked Second, try appellants jointly. chose to grant- the court they objected counsel if *5 responsibility delay for some decisions to is for a continu- government’s motion ing the by appellants govern- borne and the that Gaff- Gaffney’s counsel stated ance. example, delay ment. For in was ney oppose request. the by Gaffney’s withdrawing caused had court that he counsel stated to the on of a conflict of interest because account that Mr. prosecutor earlier told the both he and counsel were em- stated, then “Per- oppose would it. Counsel ployed by the Public Defender It think, Service. counsel, would, in a sonally, as his was one or other to with- indictment, incumbent on the that counts in an case has 32 draw at that late date. prepare it. feel I could use more time to also for Mr. I must state summary, In involved in this the In to the continuance.” opposed wе are entirely points case falls within the last two essence, objecting for appears to be analysis spectrum-either on the Barker a the court to encouraging the record while an negligent delay or unavoidable give cannot grant the continuance. suggestion There is no of intentional in this con- speedy trial claim validity to a government delay. government’s From the to force for to do so would tend text position, delay, including muсh of the the trial and counsel to unprepared defense ensuing by time the reversal the between charges of subject him on a conviction Supreme Appeals Court of and the Court’s govern- counsel. ineffectiveness of certiorari, was unavoidable. Of denial of between “whipsawed” be ment cannot appellants, Engram’s position the two is ineffective assistance speedy trial comparatively better. was arrest- claims. Gaffney ed and Gaff- at a later date than more than ney responsible for Prejudice D. Engram. appellants have suffered they assert Right Assertion of the
C.
the
prejudice. As to
presumed and actual
the wis-
right
on
we
presumed prejudice,
first asserted his
March
18, 1976,
appellants are
joining Engram’s
presuming
motion to
of
the
dom
defend. As
ability
in their
tacitly
prejudiced
dismiss. He
admits his tardiness
in Barker:
stating
Supreme
unable
earlier assert
the
Court stated
that he was
Appеals’
of
but
right
the
ter the Court
reversal
A ... difference between
years
Supreme
con-
Court decision-two
trial and the
accused’s
wit-
Despite both
Engram’s arrest.
of
rights
deprivation
is that
stitutional
appellants
friends
nesses
ad-
right may
work to the accused’s
ar-
subsequent
available
to their
apparently
vantage. Delay is not an uncommon
rest,
why
reason
appellants offer no
tactic. As the time between
fense
so
earlier
they were not contacted
length-
of the crime and trial
commission
minimum,
or,
testimony
their
at
preserve
ens,
may
unavailable or
witnesses
become
testimony
early
what
ascertain
may fade.
If the witness-
their memories
could re-
offer or what details
could
prosecution,
its case will be
support
es
balancing
in
weigh
These factors
member.
weakened,
seriously
sometimes
so. And
prejudice
defending.
actual
which carries the
is
Thus,
proof.
right
unlike the
prejudice
burden
alone claims actual
“during
or the
from
reason
the thir
right
to counsel
to be free
the additional
incrimination,
appel
period
month
between
compelled
deprivation
ty-one [sic]
self—
twenty-
became
per
se
lant’s arrest
trial does
[he]
ineligible
years
age
two
was thus
ability
the accused’s
to defend
prejudice
Youth Correc
sentencing under
Federal
supra
himself.
[Barker
V
Act,
(Supp.
[(d)
tions
U.S.C. §
added).]
2187 (emphasis
re
According
presentence
1975)].”
to his
Prejudice
pretrial
is
incarceration
Gaffney was born on
port,
both appellants
minimal because
were serv-
1976;
4,May
The verdict
returned on
ing sentences for other convictions.
18, 1976.
Gaffney was sentenced on
prejudice
claim actual
is
report
Assuming
presentence
ability
their
to defend.
asserts
correct, Gaffney
twenty
achieved
—two
that his witnesses were unable to recall
ineligibility
and thus
under
years,
details,”
“important
to two
but cites
Act,
Corrections
the verdict
Youth
between
1,000
of the more than
tran-
pages
pages of
unnecessary here
and the
It is
script.
pages
portion
The two
cover
wheth
to resolve the issue of
testimony
of one
After exam-
witness.
“conviction,” as
in 18 U.S.C.
er
used
*6
record,
preju-
we
ining
any
the
believe that
the
the ver
5006(g), means
rendition of
§
by
memory
dice caused
the failure of
the
entry
it
or whether means the
dict
played
pages
negligiblе.
on those
See, e.
v. United
judgment.
g., Bailey
explain why
forgotten
does not
denied,
32,
States,
cert.
D.C.App., 385 A.2d
important
they
details were
related
or how
L.Ed.2d 183
99
58
S.Ct.
witness,
to his defense. The
who testified
States,
v.
555 F.2d
(1978); Jenkins
United
day
on the sixth
was first contacted
1977).
(4th
States
1188
Cir.
See also United
being
about
a witness
be-
days
Morgan, 185
567 F.2d
U.S.App.D.C.
v.
fore she testified.
re
(1977).
following the
Immediately
verdict,
re
Gaffney’s
turn of
Engram asserts that he and two other
thirty
be deferred
quested
witnesses were unable to reсall “details
twenty-second
days, until
defense,” citing
which were critical to [his]
Thus, any
for Youth
birthday.
ineligibility
pages
transcript.
about 20
to
is attributable
Corrections Act treatment
particular
does not elaborate
why the
request
to
appellant’s
tails were “critical”
and after
transcript,
appears
memory
any lapse
above,
that the
to the
we note
In addition
minimally prejudicial,
perhaps
indictment
complex.
case was
helpful,
Engrаm’s
to the
defense. One
thirty-two
contained
counts
forgetful witnesses is
to whose
person
was about a
twenty-six;
contained
the trial
attention.
we
testimony Gaffney
weighed,
directed our
in duration. All factors
week
their
The second was first contacted about
not denied
appellants
hold that
a witness in the case in
of 1975-af-
to a
ing
discovery
of the article was suffi-
II. APPELLANTS’ OTHER CLAIMS
integrity
FOR REVERSAL
“fairness and
protect
cient to
States,
Watts v. United
su-
of the trial.”
Appellants’ other
сlaims
error
Randolph,
pra.
Parker v.
provide
grounds
vacating
no
for reversal or
First,
appellants
their
sentences.
both
(1979).
judge
claim that
the trial
refused to voir
jury concerning
newspaper publici
dire
ask,
Second,
appellants
the third
4ty and that this refusal constitutes reversi
time,6
require
that we
Concerning
judge’s
ble error.
al
disclose the arrest and conviction records of
refusal,
leged
question
we
in
whether he
particular,
In
its witnesses
to trial.
rеfused,
deed
Assuming
refused.5
United
appellants
state that dictum7
showing
record reflects no “clear
of miscar
Agurs,
States
justice,” which
riage of
is our standard for
(1976), “casts doubt on the
Adams v. United
reviewing
point.
this
validity
reported
of” our
deci
continuing
States,
(1973);
D.C.App., 302 A.2d
pressed
on the issue. We are hard
sion
States,
see
Watts
United
Agurs to rec
glean
grounds
sufficient
from
(1976) (en banc).
A.2d
The article
of whether
ommend en banc consideration
or
appellants
refer
mention
thus,
prior decision and
be
to overrule our
distinguishable
their trial and is thus
affirm on
ing
precedent, we
by
bound
our
Coppedge v.
United
106 U.S.App.
Jenkins
D.C.
this issue.
cert.
(1959),
D.C.
F.2d 504
App.,
judge
sentencing,
read
contained
dissent.
United States
respectfully
adequately
sufficient information
famil-
Alston,
(1980) (en
D.C.App.,
ally deficient.
Finally, Gaffney insists that his convic-
tion should be overturned because the trial improperly restricted Gaffney’s cross- noted, however, judge, presided resentencing. 9. Thе who The court died “may possibility sentencing judge return of the verdict but before that the have robbery actually confused Bowser’s role in the Super.Ct.Cr.R. 25(b). 10. See n.2a, culprit,” with that of another id. at 1019 stating, perplexing “It is the same Compare Super.Ct.Cr.R. 25(b) Super. robber and a trict another more violent bank 25(a). reject appellant’s Ct.Cr.R. conten- leniently second offender are treated more than tion that “where the successor sentences analogous Bowser.” Id. at 1019. There are no record, without the sentence is present upon inadequate facts in the case. based information and must be vacated.” right to effective assistance of counsel 13.“The Bowser, 12. In United States v. F.2d sentencing stage proceed- at the of a criminal (4th Cir.), cert. 95 S.Ct. ing Hockaday is secured the Constitution.” and 423 U.S. States, D.C.App., A.2d (1975), although sentencing judge presen- had the benefit of a report, appellate tence court remanded for