Aрpellant was convicted by a jury of second degree murder while armed, D.C. Code §§ 22-2403, -3202 (1989). He challenges his conviction on several grounds. First, he contends that there was insufficient evidence presented at trial to support a finding that he was guilty beyond a reasonable doubt of murder, either as a principal or as an aider and abettor. He relies particularly on the ruling of this court in an interlocutory appeal in this case, affirming the trial court’s suppression of appellant’s confession made during a detention without probable cause.
United States v. Gayden,
I
Our standard of review for sufficiency of evidence has been often stated. “In evaluating a claim of insufficient evidence, an appellate court must review the evidence in the light most favorable to the government, recognizing the jury’s right to determine the credibility of the witnesses and draw justifiable inferences from their testimony.”
Frendak v. United States,
We do not make our determination of legal sufficiency in this case on a clean slate, however. This court in
Gayden I
concluded that the government produced insufficient evidence at the suppression hearing to support a finding of probable cause to arrest appellant.
Gayden
/’s determination of the legal weight of the facts before it is binding on us.
M.A.P. v. Ryan,
A
Gayden I sets forth in some detail the evidence then before the court. In brief, the victim, one Bart Black, as he lay dying in the street from six bullet wounds, named “Poochie” and “Rabino” or “Rabi-nol” as his assailants. The police located an acquaintance of the victim, Joel Bryant, nicknamed “Rabino” and “Rabbit.” Learning that аppellant Gayden, who had the nickname “Poochie,” was also an acquaintance of Black, the police asked him to come in voluntarily for questioning, which he did. After a change in story, he stated that he was present at the scene of the murder but “Turk” was the killer. Also present was Howard Owens, 1 who owned the car in which the three of them, together with Black, were riding and which caused damage to other cars as they left the murder scene. An immediate check by the police of Owens’s car revealed no damage to it. Further questioning of appellant in an accusatory manner led to his confession to having killed Black. In Gayden I, we affirmed the trial court ruling suppressing the confession, holding that appellant was under arrest at that point but without probable cause. 2 As to the prior statements, however, we agreed with the trial court that appellant was not “illegally detained” when he made them, and that they were voluntary and hence admissiblе.
In Gayden I, we indicated our concerns relating to the number of potential “Poo-chies” and the uncertainty about the details of the crime. We noted that the Washington Area Law Enforcement computer showed 17 listings for Poochie, and the modus operandi section of the Metropolitan Police Department contained 21 listings for that nickname. 3 After referring to the interrogating officer’s testimony that prior to the confession, he “only had a hunch” about appellant’s guilt аnd considered him “only a witness,” we said:
*581 Moreover, although Mr. Black had named a “Poochie” and Gayden admitted he was at the scene of the crime and his story about the car could not be verified, the police knew about a number of other “Pooehies.” They also knew from one of the victim’s friends that Mr. Black knew several “Pooehies.” Detective Helwig admitted that the police had identified only one Poochie at the time they questioned Gayden and that ‘Poochie is a very, very common street name.’ A number of people were at the scene of the crime.... [T]he police had yet to determine whether other Pooehies were on the scene or whether the others at the scene had seen Gayden do anything which would make it more probable than not that he was guilty of murder.
At the trial itself, considerable additional specific information concerning the crime came to light through the testimony of some eighteen witnesses. The government presented the testimony of Lorraine Allen, who lived on the street where the victim was found. She testified that she heard a crash and that when she looked out of the window, she saw a light-colored car that had hit a parked van. On the passenger side of the car, she saw a man bent over. As the car drove away, she saw a person on the ground near the van. She saw no other moving vehicles and nobody else walking around or on the street other than the victim. Her husband, Lester Allen, also had heard a crash and rushed to the window. He too said the street was empty of any other moving cars or persons. One Archie Ferguson testified that he lent his 1972 yellow Chrysler 4 on the night of the killing to Ronald Reed, also known as “Puddin”; 5 that Joel Bryant, also known as “Rabbit,” returned the car to him the next morning; 6 and that Ferguson found the car seriously damaged. An enforcement officer specializing in paint analysis testified that in his opinion it was virtually certain that Ferguson’s car was rеsponsible for the paint damage caused to several vehicles parked at the scene of the crime. A crime scene search officer testified that no shell casings were found on the street. A ballistics expert testified that two of the recovered bullets came from the same gun and that the remaining bullets, although not definitely traceable, had the same class characteristics. Howard Owens, who was appellant’s next-door neighbor, also testified, indicating no involvement in the crime, but confirming that appellant’s long-time nickname was “Poochie” and that both Owens and appellant knew Black, who sold drugs, and had spoken with him about drug purchases. Gregg Terrell testified to the same general effect. Both Owens and Terrell denied that they were nicknamed Poo-chie or Rabbit. Likewise, the investigating detective testified that in the course of the investigation, no information had indicated that either Owens, Terrell or Turk had the nickname of Poochie, Rabino, or Puddin nor had Gayden referred to them as such.
Thus, at trial, significant evidence was presented to show that the car at the scene of the crime was that belonging to Ferguson, that the “Rabbit” identified by Black was Bryant, who returned the ear to Ferguson, and that Reed, also known as Pud-din, who borrowed the car originally, was a likely third participant. Equally important, the relevant field of Pooehies had been markedly shrunken. Rather than a possible “number of people” at the murder site, the testimony showed that the street was empty of pedestrians or other cars. Owens, Terrell and Turk were effectively eliminated, as Pooehies, and Bryant’s nicknames were established as Rabbit and Ra-bino. With respect to Reed, identified as Puddin, appellant makes much of the fact *582 that stapled notepapers found with Black, containing a listing of telephone numbers, carried a notation apparently reading “PUCH” or perhaps “PUCIT” with a telephone number belonging to Reed. 7 The evidentiary weight of this notation was fully argued to the jury by appellant. Moreover, Puddin was the only nickname for Reed indicated by the other evidence, 8 the entry itself shown in the notepapers was ambiguous, and other explanations could exist for the entry with Reed’s phone number in any event.
In sum, we think the government presented significantly augmented evidence at the trial sufficient to warrant a reasonable jury to find appellant guilty beyond a reasonable dоubt.
B
We must also determine whether there was sufficient evidence to support the trial court’s instruction on aiding and abetting.
9
Appellant argued at trial and, relying on
Head v. United States,
In a situation where for the duration of the trial the government has proceeded against the defendant as a principal and only at the close of the evidence sought an aiding and abetting instruction, such an instruction is permissible where “there is clear and convincing evidence that the defendant was present and participating in the crime.”
Head, supra,
The evidence in appellant’s statement established that appellant traveled to the scene of the crime with two men and the
*583
victim; that he was present at the killing; and that he fled the scene with the two men. Moreover, the statement showed that prior to the killing, he, Turk, Owens,
11
and Black were together in Turk’s house where appellant overheard Turk and Owens planning Black’s murder, and subsequently the fоur of them got into the murder car. The totality of this evidence, when coupled with the remaining evidence presented at trial and viewed in the light most favorable to the government, could well be viewed as convincingly establishing that appellant “was present and participating in the crime.”
Head, supra,
II
Appellant submits that his sixth amendment right to a speedy trial was denied. In deciding speedy trial claims, we assess four factors: “[ljength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.”
Barker v. Wingo,
We have held that a delay of more than a year gives “prima facie merit” to a speedy trial claim, shifting the burden to the government to “justify the delay.”
Graves v. United States,
A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighed 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.
Barker, supra,
In this case, we find the delays, the reasons for the delays and their weights to be as follows: there was a three-month delay from arrеst on March 10, 1983 to indictment on June 15, 1983. This delay was neutral; even four months is “not an unreasonable time” for securing an indictment.
Lemon v. United States,
There followed a delay of twelve- and-three-quarters months between the government’s notice of appeal, which the government moved for on an expedited basis, and this court’s May 20, 1985 affirmance in
Gayden I.
We note that the elapsing of twelve-and-three-quarters months from notice of appeal to judgment is “[ujnavoidable” given court congestion, not unreasonable and therefore not to be regarded as “significant”.
Graves, supra,
There followed a five-and-a-quarter-month delay between this court’s decision in Gayden I and the November 4, 1985 denial of the government’s pеtition for rehearing en bane. Applying the three Loud Hawk considerations mentioned above, we conclude that this delay should also count as neutral. Also on November 4, 1985, the trial court set a trial date of March 27, 1986. A delay of this length — four-and-three-quarters months — before a trial can take place is not unreasonable given court congestion and is neutral delay. The trial did not occur on March 27, 1986, however, but was delayed an additional eight-and-three-quarters months, until Decembеr 2, 1986. This delay owed to several motions for continuance by the government, two of which the defense consented to; to appellant’s motion to dismiss the indictment on the basis of the ruling in Gayden I and the speedy trial clause; and to trial court time spent ruling on a previous motion to sever trials. While some delay occasioned by the granting of government continuances may have been less than neutral, we conclude that the government has succeeded in justifying the vast majority of thе forty-five-month delay from arrest to trial.
The government concedes that appellant met the third
Barker
requirement of asserting his right to a speedy trial. As to the fourth factor, prejudice, appellant has failed to show that he has suffered “oppressive pretrial incarceration,” unusual “anxiety and concern” or, most important, an impairment of his defense as a result of the delay.
See Barker, supra,
Ill
Appellant’s final argument is that the trial court abused its discretion by allowing into evidence as a spontaneous utterance Black’s dying statement.
15
We will not reverse a trial court’s exercise of discretion to admit or exclude hearsay evidence under the spontaneous utterance exception unless it is “clearly erroneous.”
Nicholson v. United, States,
Affirmed.
Notes
. The court in
Gayden I
summarized appellant’s second stаtement to say that among those present at the scene of the killing was "the alleged killer, 'Turk' (Howard Owens), who owned the LTD car.”
. The trial court's theory of suppression was that Gayden was in custody at the time of the interrogation immediately leading to the oral confession, that that confession must thus be suppressed since no
Miranda
warning had been given, and that the subsequent written confession, although preceded by a
Miranda
warning, must also be suppressed since it was the product of the improperly obtained oral confession. The two issues briefed on the interlocutory appeal were whether Gayden was in fact in custody at the time of the oral confession, and, if so, whether the written confession was in fact inadmissible as the product of the oral confession. In
Gayden I,
we ruled that the case correctly turned not on fifth amendment principles and the
Miranda
issue but instead on the policies underlying the fourth amendment exclusionary rule.
.There were no listings for Rabbit or Rabino. At trial, the investigating detective said that when he brought Gayden in for questioning, he had not investigated anyone else with the name of Poochie at that stage.
. Lorraine Allen identified a photograph of Ferguson’s car as looking like the one she had seen.
. The trial testimony established that Ronald Reed was "Puddin" 'and that no other person potentially involved had that nickname. Two address books found in Bryant’s possession contained the telephone number of Reed under the name Puddin and also contained Black’s name and phone number.
.Bryant brought the keys to Ferguson, who arranged for Rabbit and a friend of Ferguson’s, Lawrence Lindsay, to go together to pick up the car some distance away. Lindsay also testified to the same effect at the trial.
. The notepapers also contained another scrawled notation, apparently reading Puddin, which had another phone number of Reed’s, who seemed to have at least two listings. The address books recovered from Bryant contained the telephone number of a Poochie, but the detective did not know whose number that was; it was not Gayden’s or Reed’s.
. Ferguson, who identified Reed as Puddin, had known Reed, as well аs his parents, for some ten years, lived on the same street, and used to see him practically every day. Another witness, ' Lawrence Lindsay, also testified that he had known "a person by the name of Puddin’ or Ronald Reed” for about nineteen years. See also note 5 supra.
. The trial court initially refused to give an aiding and abetting instruction. After hearing argument from counsel, the court decided that such an instruction was permissible because the decedent had "named not one individual but two individuals.”
. The first count of the indictment read:
Mark K. Gayden, Joel M. Bryаnt, and Ronald Reed, within the District of Columbia, while armed with a dangerous weapon, that is, a pistol, and with malice aforethought, killed Bart Black by shooting him with a pistol on or about March 2, 1983, thereby causing injuries from which Bart Black died on or about March 2, 1983....
. Appellant identified these men as Turk and Owens, whereas the government proceeded on the theory that the other two men at the killing were Reed and Bryant. This divergence presents no insuperable problem. A jury is free to accеpt some parts of a party’s testimony and reject others.
Kinard v. United States,
. Appellant stated in his second statement: "I asked Howard if he would kill me and Howard said ‘if I have to.’ Then he сussed me out, just told me to be quiet.” Appellant implies that this testimony establishes that appellant fled with the other two because he was threatened. Apart from the fact that the statement only indirectly indicates that appellant felt threatened, the jury was free to disbelieve it.
. The parties state that the length of delay from arrest to trial was thirty-three months. It is mystifying how the parties derive this figure.
. We note that delays of more than forty-five months have been upheld.
Cates v. United States,
. The trial court ruled against the statement’s admissibility as a dying declaration because of its concern that Black, "however severe his condition, believed that he would survive.”
See McFadden v. United States,