Hartridge v. United States

See case details

Thadduse Lee HARTRIDGE, James Thomas Cullison & Mark A. Ford, Appellants, v. UNITED STATES, Appellee.

No. 97-CF-1867, 97-CF-2028, 98-CF-153.

District of Columbia Court of Appeals.

Argued Feb. 3, 2004. Decided March 23, 2006.

Furthermore, the fine imposed on property owners for failing to containerize solid waste is not a set, static amount. Property owners are free to present, and the ALJ free to consider at the close of evidence, mitigating factors that may reduce the imposed fine.⁵ In certain circumstances, mitigating factors may substantially reduce the fine to levels that even Petitioner would find modest. Under this system, however, the amount of the fine would not be known until the conclusion of the hearing. Thus, Petitioner‘s suggestion of predicating an element of liability—scienter—on a factor not known until the conclusion of the hearing is an unworkable proposition that is inconsistent with our jurisdiction‘s general jurisprudence in civil cases.

For the foregoing reasons, the judgment of the Office of Administrative Hearings is

Affirmed.

Richard K. Gilbert, appointed by the court, for appellant Hartridge.

Annie R. Alexander, appointed by the court, for appellant Cullison.

Joshua D. Greenberg, Washington, with whom Robert A. Long, Jr. and Bruce A. Baird were on the brief, for appellant Ford.

Margaret Chriss, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney at the time the brief was filed, and John R. Fisher, Assistant United States Attorney at the time the brief was filed, were on the brief, for appellee.

Before FARRELL, REID, and GLICKMAN, Associate Judges.

Opinion for the court by Associate Judge REID.

REID, Associate Judge:

These are consolidated appeals by appellants Thadduse Lee Hartridge,¹ James Thomas Cullison, and Mark A. Ford.² They were charged with first-degree murder while armed (premeditated) of Andre Wynn, in violation of D.C.Code §§ 22-2401, -3202 (1996);³ possession of a firearm during a crime of violence (PFCV), in violation of § 22-3204;⁴ and carrying a pistol without a license (CPWL), in violation of § 22-3204(a).⁵ They were convicted of the lesser-included charge of second-degree murder while armed, as well as the weapon charges.⁶ All of the appellants claim that the trial court (1) improperly allowed the introduction of “other crimes” evidence against them; (2) permitted improper argument by the prosecutor; and that (3) their conviction for carrying a pistol without a license violated their Second Amendment constitutional right to bear arms. Mr. Hartridge also claims that the indictment against him should be dismissed with prejudice because he was denied his Sixth Amendment constitutional right to a speedy trial. Mr. Cullison argues, in addition, that the trial court erred (1) by not granting his motion for judgment of acquittal on the ground that the evidence was insufficient as a matter of law to establish his guilt; and (2) by not disallowing a government witness‘s identification of him because of an impermissibly suggestive photo array.⁷ Mr. Ford also contends that the trial court improperly admitted into evidence the grand jury testimony of a witness, who asserted that Mr. Ford confessed killing Mr. Wynn, even though that witness recanted her grand jury testimony at trial. We affirm the convictions as to all of the appellants.

FACTUAL SUMMARY

The government presented evidence showing that Andre Wynn was shot to

vealed that (1) Ms. Givens saw Mr. Hartridge with a gun “in [her] mother‘s house two days before” the murder of Mr. Wynn, heard gunshots at the time of his murder, saw Mr. Hartridge and Mr. Cullison standing “[o]ver top of Mr. Wynn,” and watched them “unloading the gun” while Mr. Ford stood nearby; (2) Mr. Shannon heard Mr. Hartridge say to another man “to bust [Mr. Wynn], kill his a**,” saw Mr. Ford shoot Mr. Wynn, and testified that the 9-millimeter gun shown to him at trial “looked just like” the one used to shoot Mr. Wynn; (3) Mr. Proctor witnessed the confrontation of Mr. Paris by Mr. Hartridge, observed Mr. Cullison with “a small handgun, black,” noticed all of the appellants with Mr. Wynn, heard gunshots and saw Mr. Ford “shooting the gun, shooting Mr. Wynn;” (4) Mr. Paris “saw a gun” in Mr. Ford‘s hands, and “[a] gun ... [a] .38” in Mr. Cullison‘s hands on November 8, 1993; (5) On November 22, 1993, Ms. Mayo saw a gun in the hand of a person who was with Mr. Ford and Mr. Hartridge and thought that Mr. Cullison “probably” entered the 2100 block of I Street with them; and (6) Sergeant Wagner testified that Ms. Lee stated that Mr. Cullison “might” have been with Mr. Ford and others on November 22, 1993.

Because this evidence established at least a reasonable probability the appellants either were seen with, or had reasonable access to, guns probably used in the murders of Mr. Wynn and Mr. Wilkins on November 8 and 22, 1993,²⁰ and helped to explain the murder of Mr. Wynn, but did not show any armed robbery of Mr. Paris, or establish the murder of Mr. Wilkins, we cannot say that the trial court abused its discretion in concluding that the danger of unfair prejudice did not substantially outweigh its probative value.²¹ As we said in

McConnaughey, supra: “It is true that the evidence established only a reasonable probability, and not a certainty, that appellant[s] possessed the murder weapon, but this lack of certainty went only to the weight of the evidence, not its admissibility.”

804 A.2d at 339 (citing

Busey, supra,

747 A.2d at 1153). The trial court in this case carefully scrutinized and whittled down the evidence the government wished to present, in large measure because if its concern that “prejudicial matter does not get injected into the trial.” The “balancing of probative value and prejudice is committed to the discretion of the trial judge, and this court will review it only for abuse of that discretion.”

Busey, supra, 747 A.2d at 1165 (citing

Johnson, supra,

683 A.2d at 1095 (other citation omitted)). On this record, we are satisfied that the trial court used its discretion in conducting the proper balancing, and did not admit testimony showing a propensity to commit

a crime. Furthermore, the testimony admitted was not typical Drew evidence but was “directly relevant,” id., because it showed a reasonable probability, rather than mere conjecture, that appellants had possession of or access to a weapon used in the killing of Mr. Wynn. Id.

Other Arguments

Improper Prosecutorial Comments

We turn now to appellants’ other arguments. They contend that the prosecutor made inappropriate remarks in its rebuttal argument, for example, in asking the jurors to “be fair to ... your fellow members of the District of Columbia,” and by showing disrespect of defense counsel. The transcript reveals that as the prosecutor was nearing the end of his rebuttal argument, he articulated a theme around the word “fairness,” telling the jurors that they must be fair to themselves, each other and their fellow citizens. The trial judge sustained counsel for Mr. Ford‘s “[o]jection to the form of the argument.”²² After reminding the jury that it could not change its mind after the verdict, the prosecutor said, in part: “You can‘t say you‘re sorry to yourself; you can‘t say you‘re sorry to each other; and you can‘t say you‘re sorry to your fellow citizens.” Counsel for Mr. Ford again objected. The trial judge sustained the objection and admonished the prosecutor: “The case is supposed to be evaluated on the facts and not on fellow citizens.” Earlier in his rebuttal, the prosecutor focused on defense counsel‘s questioning of the government‘s witnesses and concluded by stating: “[T]hese witnesses aren‘t on trial. These witnesses don‘t need to be treated with such disrespect like they were.” The trial judge sustained the objection of counsel for Mr. Ford. When it appeared that the prosecutor might persist in this line of argument, the judge interrupted him, saying: “Counsel, argue the facts of the case. The jury witnessed how Counsel conducted the proceedings.” No defense counsel moved for a mistrial because of the prosecutor‘s comments relating to “fellow citizens” or to the actions of defense counsel.

On Monday, September 9, 1996, counsel for appellants raised issues regarding the government‘s rebuttal. Counsel for Mr. Cullison complained that in response to his closing argument that Ms. Mayo “did not make an in-court identification of Mr. Cullison,” the prosecutor “hypothesized or speculated that one of the reasons which [the prosecutor] communicated to the jury is that Mr. Cullison might have or may have been the gunman.” Counsel did not request a mistrial or make a motion to strike the prosecutor‘s statements, but said: “I think that [commenting that Mr. Cullison was the gunman was] contrary to the Court‘s ruling, so I‘m going to object to that, but I‘m not going to ask for an instruction to strike that because I don‘t want to highlight that testimony.” In his brief submitted to this court Mr. Cullison argues in essence that the prosecutor stated a fact not in evidence, that the trial court committed plain error in permitting the comment, and that the comment substantially prejudiced Mr. Cullison. The record reveals that the trial court consistently ruled that the gun used on I Street should not be placed in the hands of anyone, but during rebuttal the prosecutor disregarded this precise ruling.

The transcripts show that in closing argument the prosecutor focused, in part, on I Street by referencing the discharge of

the guns, and then said “And Paula Battles (sic), she didn‘t want to tell you who the gunman was. All right? She ... was clear as a bell ... that that gunman walked in with Mark Ford and Thaddeuse (sic) Hartridge. And I‘ll tell you, it was James Cullison.” There was no objection by Mr. Cullison‘s counsel or any of the appellants’ counsel. During rebuttal the prosecutor turned to I Street again and Ms. Mayo‘s identification, stating in part:

And then when she picked Mr. Cullison out of that photo spread, again, here in court, like she did in June of 1994, she didn‘t want to identify him. She didn‘t identify him in court.

I submit to you, ladies and gentleman, she didn‘t want to identify the gunman.

Again, no objection was made. By indicating to the jury that Ms. Mayo had identified Mr. Cullison as the gunman, despite the fact that the trial judge had ruled on more than one occasion that the gun was not to be placed in anyone‘s hands, including those of Mr. Cullison, the prosecutor clearly stated a fact not in evidence. The record shows that the trial judge specifically stated that during his questions about I Street, the prosecutor could not ask Ms. Mayo “whether [the gun] was in Mr. Cullison‘s hand.” During her direct testimony and in response to the prosecutor‘s question as to the persons she saw “walk into the [I Street] block, Ms. Mayo replied,” “Marcus [Brooks], Thaddeus [Hartridge] and Mark [Ford]. And I don‘t know the other person.” On redirect examination the following questions and answers were heard by the jury:

1. Q Ms. Mayo, can you please tell the ladies and gentlemen of the jury whether or not you saw a gun in anyone‘s hand when you heard the gunshots?
2. A Yes, I[saw] a gun in somebody‘s hand, but I don‘t know who that person was.
3. Q Could you tell the ladies and gentlemen of the jury whether or not the person that you saw with the gun, whether that person walked into the block with Thaddeus Hartridge and Mark Ford?
4. [Counsel for Mr. Ford]: Objection.
5. The Witness: Yes, they walked up into the block with them, yes.
6. The Court: Objection overruled. You may continue to answer.
7. Q I‘m sorry. Could you repeat your answer please?
8. A Yes, the gunman, whoever it was, was with Mark and Thaddeus....

Ms. Mayo‘s identification of Mr. Cullison as a person on the scene was not definite. When she picked out Mr. Cullison‘s photograph, Detective Mayberry testified that she declared: “[T]his is probably the guy [who was with Messers Ford, Hartridge and Brooks]. He had a bush.” On the day following the prosecutor‘s rebuttal, Mr. Cullison informed the trial judge that he was “not going to ask for an instruction to strike” the prosecutor‘s comment, the judge inquired: “And you‘re not moving for a mistrial on the basis of it....” Counsel for Mr. Cullison answered: “Not at this time.”

Counsel for Mr. Ford sought a mistrial because of the prosecutor‘s reference to the year 1996, and the argument “that a witness in Washington, D.C. in 1996 takes his or her life into his or her hands by coming forward.” Counsel also objected to what he recalled as the prosecutor‘s “rhetorical question: How do you think a witness would feel having to come in and testify in front of men whom they saw kill someone or commit a murder?” Counsel for Mr. Hartridge could not remember “the exact language” used by the prosecu-

tor but that it was “[s]omething like these defendants with two guns or with these guns ...[,] which he believed” “contravened the spirit of what the court was permitting in evidence concerning [the I Street] incident.” The trial judge denied the requests for a mistrial on the ground that “in many instances counsel‘s arguments for the prosecution may go to the edge of the envelope but still be considered harmless or not of that degree of magnitude to justify a mistrial ....”

Our cases have discussed repeatedly the nature of improper prosecutorial comments in closing arguments and especially in rebuttal, and have said that “comments appealing to the emotions, prejudices and passions of the jury” or “arguing facts not in evidence or misstating facts in evidence,” are improper.

Diaz v. United States, 716 A.2d 173, 180 (D.C. 1998) (citations and internal quotation marks omitted). And, attacks on opposing counsel are improper. See

United States v. Moore, 322 U.S. App. D.C. 334, 347, 104 F.3d 377, 390 (1997). If the comments are improper, as were the prosecutor‘s comments in this case with respect to “fellow citizens,” the questioning of government witnesses by defense counsel, and the identification of Mr. Cullison as “the gunman” on I Street, we determine whether the comments “rise to the level of substantial prejudice.” Id. (citations and internal quotation marks omitted). This determination involves an examination of the gravity of the improper comments, the corrective action taken by the trial judge, and the strength of the government‘s case.

We conclude that Mr. Hartridge and Mr. Ford were not substantially prejudiced by the prosecutor‘s comments of which they complain. In the case of the argument regarding “fellow citizens” and that pertaining to defense counsel, the trial judge immediately admonished government counsel, and defense counsel did not request a mistrial. With respect to the other comments, relating to 1996 and the rhetorical question, our review of the transcript satisfies us that the prosecutor‘s comments were not improper when considered in the context of defense counsel‘s closing arguments and given the complexity and length of the trial. See

Jackson v. United States, 623 A.2d 571, 586 (D.C. 1993), cert denied,

510 U.S. 1030 (1993);

Coleman v. United States, 515 A.2d 439, 450 (D.C. 1986), cert. denied,

481 U.S. 1006 (1987). Whether the prosecutor‘s comments placing the gun in Mr. Cullison‘s hands on I Street substantially prejudiced him, despite counsel‘s decision not to ask that the comments be struck, or for a mistrial, depends in part upon the sufficiency of the evidence argument also raised by counsel for Mr. Cullison, which we discuss below. See

Freeman v. United States, 689 A.2d 575, 584 (D.C. 1997) (factors to be considered in determining the existence of substantial prejudice are “the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error“).

Sufficiency of the Evidence and the Identification Procedure as to Mr. Cullison

Mr. Cullison argues that the trial court erred by not granting his motion for judgment of acquittal, because there was “no direct evidence that [he] shot Mr. Wynn, but even the circumstantial evidence was extremely weak.” The government responds that “[t]he evidence was more than sufficient to show [Mr.] Cullison‘s guilt of the crimes charged, either as a principal or as an aider and abettor.” We review the sufficiency of the evidence in the light most favorable to the

government, giving it the benefit of all reasonable inferences. See

Patterson v. United States, 479 A.2d 335, 337-38 (D.C. 1984). We defer to the jury with respect to credibility determinations and the weighing of the evidence. See

McCoy v. United States, 781 A.2d 765, 768 (D.C. 2001). “It is only where the government has produced no evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt that this court can reverse a conviction.”

In re M.I.W., 667 A.2d 573, 575 (D.C. 1995) (quoting

Gayden v. United States, 584 A.2d 578, 580 (D.C. 1990) (other citation and internal quotation marks omitted)); see also

Lewis v. United States, 767 A.2d 219, 222 (D.C. 2001).

Three government eyewitnesses implicated Mr. Cullison in the murder of Mr. Wynn. Mr. Proctor saw the arrest of Shannon Battle on the day of Mr. Wynn‘s murder. About twenty minutes later, he observed Mr. Ford, Hartridge and Cullison in a back alley on K Street, S.W., with Mr. Paris. Mr. Hartridge was holding Mr. Paris by his shirt collar, and Mr. Cullison stood “within a foot” of Mr. Paris and “had a gun in his hand.” Mr. Proctor eventually left the alley and proceeded to Delaware and K, S.W. where he saw Mr. Wynn “lying on the fence,” with Mr. Hartridge “[s]tanding in front of [him].” Mr. Ford and Mr. Cullison were nearby. Mr. Proctor spoke to Mr. Wynn and Mr. Hartridge and then walked “[a]cross the street.” He heard gunshots, turned around and saw Mr. Ford shooting Mr. Wynn. More gunshots followed.

On the day of Mr. Wynn‘s murder, Mr. Paris watched the police arrest Mr. Battle, and saw Mr. Hartridge “acting wild” while talking to the police. Mr. Cullison and Mr. Ford also were present. Mr. Paris went to the alley in back of his Southwest home on Delaware Avenue where he saw the appellants close up. Mr. Ford had a gun and Mr. Cullison had a “.38” in his hand. Mr. Paris went home momentarily but left his house a few minutes later. He heard gunshots, “spaced apart“; the first shots sounded as though they were from “a semiautomatic gun” and the next from a revolver. Mr. Paris returned inside his home, looked out the widow and saw Mr. Cullison “running” with a gun in his hand.

Ms. Givens was standing near the corner of Delaware Avenue and K Street, S.W. on the day of Mr. Wynn‘s murder when she heard a gunshot. Upon looking, she saw Mr. Wynn in the middle of the street, turning around in a circle and saying, “ouch.” After he fell to the ground, Mr. Hartridge and Mr. Cullison were standing “[o]ver top of [Mr. Wynn].” Although they had their backs to Ms. Givens, she saw them “unloading the gun.” Mr. Hartridge and Mr. Cullison “went hand-to-hand to each other like they were switching some-thing around.” Mr. Hartridge “was kicking” Mr. Wynn.

If reasonable jurors believed the testimony of these witnesses, as they apparently did, and drew reasonable inferences from the testimony, they could reasonably conclude that the government presented sufficient evidence beyond a reasonable doubt to convict Mr. Cullison of the lesser-included offense of second-degree murder while armed and the weapons charges lodged against him, either as a principal or as an aider and abettor. See

Murchison v. United States, 486 A.2d 77, 81 (D.C. 1984). Thus, although the prosecutor misstated evidence by placing a gun in Mr. Cullison‘s hand on I Street two weeks after Mr. Wynn‘s murder, it is unlikely that that misstatement alone substantially prejudiced him by prompting the jury to convict him of Mr. Wynn‘s murder solely because he possessed a gun two weeks later on I Street, particularly since the government

presented a very strong case against Mr. Cullison based on the testimony of eyewitnesses to the murder of Mr. Wynn two weeks earlier. See

Freeman, supra, 689 A.2d at 584. Consequently, we reject Mr. Cullison‘s sufficiency argument.

Mr. Cullison‘s argument that the identification procedure used with Ms. Lee was unduly suggestive is unpersuasive. His argument in his brief revolves around the testimony of Ms. Lee at trial that she had “never seen that boy before in [her] life,” that the only person Ms. Lee did not know in the array was Mr. Cullison, and that Sergeant Wagner used unduly suggestive words in showing the photo array to Ms. Lee. However, Mr. Cullison does not mention any procedure used by the police in presenting the photo array to Ms. Lee that “was unnecessarily suggestive and conducive to irreparable misidentification.”

Smith v. United States, 777 A.2d 801, 805 (D.C. 2001). In fact, he does not contend that Mr. Cullison‘s photo “st[ood] out dramatically” from the other photos in the array. See

Henderson v. United States, 527 A.2d 1262, 1268 (D.C. 1987). Sergeant Wagner‘s testimony revealed that the array had been put together with persons whom Ms. Lee was expected to recognize, and she did. Moreover, Sergeant Wagner uttered no words that would sway Ms. Lee‘s identification one way or the other. He said that she “might recognize people in the photographs in the stack or might not and that persons referred to during the interview might be in the stack or might not.” He also asked her to tell him what she knew about each of the persons whose photograph was depicted. Our review of Sergeant Wagner‘s description of the photo array process and his interview of Ms. Lee satisfies us that the identification procedure was not “unnecessarily suggestive and conducive to irreparable misidentification.”

Smith, supra, 777 A.2d at 805; see

Gregg v. United States, 754 A.2d 265, 267-68 (D.C. 2000), cert. denied,

531 U.S. 980 (2000).

Mr. Ford‘s Confession

Mr. Ford contends that “[t]he government improperly introduced [his] purported confession at trial.” The introduction was improper, he claims, because the “purported confession” was admitted into evidence during the impeachment of Anna Boxley-Davis with her grand jury testimony, but since she repudiated that testimony, she was “unavailable for cross-examination,” and “[h]er prior testimony was therefore hearsay.” He argues, furthermore, it violated the Confrontation Clause of the Sixth Amendment to the Constitution of the United States.

Ms. Boxley-Davis told the grand jury that on the day of Mr. Wynn‘s murder, Mr. Ford came to her home and said, “I had to do it, I had to do it, Anna Boxley.” When Ms. Boxley-Davis asked what he had to do, Mr. Ford replied, “I had to kill him because he jumped out there.” The government maintains that the admission of the confession was not improper because Ms. “Boxley-Davis was available for full cross-examination at trial.” We review Mr. Ford‘s constitutional claim de novo. See

Newby v. United States, 797 A.2d 1233, 1239 (D.C. 2002). We review his evidentiary claim, that the trial court improperly admitted the confession under D.C. Code § 14-102 (2001), for abuse of discretion.

The record shows that the government granted immunity to Ms. Boxley-Davis. Therefore, she was available for cross-examination by counsel for Mr. Ford. Counsel decided not to cross-examine her, apparently for tactical reasons, since cross-examination might open up other parts of Ms. Boxley-Davis’ grand jury testimony

that were unfavorable to Mr. Ford. In short, Mr. Ford was presented with the opportunity to cross-examine Ms. Boxley-Davis, and that is all that was constitutionally required, or mandated under D.C. Code § 14-102(b). See

Carey v. United States, 647 A.2d 56, 59 (D.C. 1994); see also

McConnaughey, supra, 804 A.2d at 339-40;

Bell v. United States, 790 A.2d 523, 528-29 (D.C. 2002);

Sparks v. United States, 755 A.2d 394, 399-400 (D.C. 2000). Moreover, we see no abuse of discretion in the admission of the testimony under § 14-102.

The Second Amendment Argument

Finally, all of the appellants challenge their convictions for carrying a pistol without a license. This issue was not raised in the trial court. Where the challenge has not been raised in the trial court, we consistently have declined to consider it for the first time on appeal. See

Mitchell v. United States, 746 A.2d 877, 885 n. 11 (D.C. 2000). Furthermore, under

Sandidge v. United States, 520 A.2d 1057 (D.C. 1987), cert. denied,

484 U.S. 868 (1987), a panel of this court rejected a Second Amendment challenge to the CPWL statute, and we are bound by that decision, unless it is overturned by the en banc court. See

Barron v. United States, 818 A.2d 987, 993 n. 7 (D.C. 2003);

M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).

For the foregoing reasons, we affirm the judgment of the trial court with respect to the convictions of all of the appellants.

So ordered.

GLICKMAN, Associate Judge, dissenting in part:

“It is axiomatic that the right to a speedy trial is a fundamental constitutional right.” Ante at 207 (internal quotation marks and citations omitted). So we have said, but flexible judicial application of the mandated four-factor balancing test repeatedly proves how “necessarily relative” rather than essentially fundamental the prized speedy trial right turns out to be in reality.

Barker v. Wingo, 407 U.S. 514, 522 (1972) (internal quotation marks and citation omitted). The Sixth Amendment terms it a “right,” but perhaps, regrettably, it would be more accurate to call it a speedy trial “preference“—a preference readily and unpredictably outweighed by numerous other factors, such as convenience. If we shrink from that characterization, and faithfully seek to preserve the guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy trial,” U.S. CONST., Amend. VI (emphasis added), we are obligated to apply the Barker balancing test with rigor and objectivity, and to resist trimming the right to avoid overturning convictions for serious offenses.

Elastic as I recognize the Barker balancing test is, I submit that the opinion of the majority stretches it to the breaking point in rejecting appellant Hartridge‘s speedy trial claim. Rather than strain to ignore or deny the obvious, I would acknowledge that in this case—unlike in every past case in which this court has found no deprivation of a speedy trial—all four relevant factors weigh heavily in favor of finding that Hartridge‘s Sixth Amendment right was violated.

(1) Length of the Delay. Two-and-one-half years elapsed between Hartridge‘s arrest and the start of his trial.¹

Under settled case law, this delay was clearly “uncommonly long,” “presumptively prejudicial,” and well beyond the threshold that is “unreasonable enough to trigger the Barker enquiry.”

Doggett v. United States, 505 U.S. 647, 651-52 & 652 n. 1 (1992) (internal quotation marks and citations omitted). See also

Hammond v. United States, 880 A.2d 1066, 1079 (D.C. 2005) (“A delay of a year or more between arrest and trial gives prima facie merit to a claim that a deprivation of an accused‘s speedy trial rights has occurred.“) (quoting

Tribble v. United States, 447 A.2d 766, 768 (D.C. 1982)). In evaluating the weight to be given this factor, I think it no sufficient answer to say that we have—on rare occasions in unique circumstances—“tolerated” or “countenanced” even more egregious delays. Ante at 208. It is the government‘s burden to “justify” delay in excess of a year, and the longer the period of delay, the heavier that burden is.

Graves v. United States, 490 A.2d 1086, 1091 (D.C. 1984) (en banc).

(2) Reasons for the Delay. In categorizing the various reasons for the delay of Hartridge‘s trial as either significant, neutral, neutral plus, or neutral minus, it is easy to lose sight of the fact that all of them—including the government‘s desire to try Hartridge jointly with his repeatedly unready co-defendants²—are “weighed more or less heavily against the government.” Ante at 209 (quoting

Hammond, 880 A.2d at 1080) (emphasis added). That is, none of the proffered explanations enables the government to shoulder its burden of “justifying” the excessive delay. More significantly, I think the majority opinion tilts the balance too much in favor of preserving joinder of co-defendants at all costs, even when it means greatly delaying the trial of an incarcerated defendant who is invoking his right to be tried speedily. I grant that “[j]oinder of cases is favored, where appropriate, because it fosters efficient use of judicial and prosecutorial resources and decreases the burden on citizens who are called as witnesses.” Ante at 210 (quoting

Adams v. United States, 466 A.2d 439, 445 (D.C. 1983)).³ I appreciate, too, that in some cases (including this one) the government may be concerned that its witnesses are at risk or fearful and would be reluctant to return for a second trial. For those reasons, a modicum of additional delay incurred to accommodate the conflicting schedules and legitimate needs of all the parties and their attorneys is a reasonable

price to require each individual defendant to pay so that all properly joined co-defendants may be tried together.⁴ But there are limits to the amount of delay that should be deemed tolerable for joinder purposes (i.e., deemed not to “weigh heavily against the government“) over a defendant‘s speedy trial objections, especially where the defendant is held without bond pending trial. I think those limits plainly were exceeded in Hartridge‘s case, where the government concedes that nearly sixteen months of delay were “precipitated by co-defendants’ counsels or by the difficulty of coordinating the schedules of the trial court and counsel.”

Simply put, the non-constitutional reasons of policy that favor joinder—efficient use of resources and decreasing the burden on witnesses—are not so compelling that they outweigh the “fundamental” policy enshrined in the Constitution. Enforcement of a defendant‘s right to a speedy trial may necessitate a “sensitive balancing” of relevant factors,

Barker, 407 U.S. at 533, but that necessity is not an excuse to whittle away the Sixth Amendment guarantee in favor of every other interest that may be advanced. A proper balancing must be “sensitive” to the high value we place on the right to a speedy trial. A defendant‘s right to a speedy trial therefore must not be held hostage to co-defendants’ prolonged inability to proceed with trial, just as it must not be held hostage to the prosecution‘s inability to do so.

(3) Assertion of the Right to a Speedy Trial. “The defendant‘s assertion of his speedy trial right, the Supreme Court has said, ‘is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.‘”

Graves, 490 A.2d at 1098 (quoting

Barker, 407 U.S. at 531-32). In my view, the most serious misjudgment in the majority opinion‘s analysis of Hartridge‘s claim is its failure to give due weight to his repeated and insistent demand for a speedy trial. I am not sure this court has ever seen a stronger showing on the third Barker factor. As the majority opinion itself recounts, ante at 205-07, Hartridge asked for a speedy trial at his arraignment on April 12, 1994, and requested a severance in order to expedite his trial date; objected to a continuance of the trial date at a status conference on July 19, 1994; reiterated his objection to any further postponement of the trial date at a status conference on October 6, 1994; opposed a continuance of the trial date on November 15, 1994; sought a severance at a pretrial conference on April 14, 1995, so that his scheduled May 31 trial date would not be cancelled; followed up that request with a written speedy trial motion (which asked again for severance and trial on May 31 as an alternative to dismissal); reminded the trial court of this still-pending motion on June 23, 1995; personally as well as through his counsel opposed yet another delay of his trial at a status hearing on September 12, 1995; reiterated that opposition on September 29, 1995; and renewed his request for a severance on January 23, 1996, so that his trial could proceed without further delay. Hartridge never requested that his trial be continued. His invocation of his Sixth Amendment right to a prompt trial was not “merely pro forma,”

Hammond, 880 A.2d at 1085, nor was it untimely, erratic, insincere or frivolous. The trial court was well aware from the outset that Hartridge was consistently demanding not to be de-

pried of his right to a speedy trial and was not acquiescing in the continuances requested by other parties. If “the assertion of the right must be considered in light of its ‘frequency and force,‘” ante at 210 (quoting

Hammond, 880 A.2d at 1086, and

Dickerson v. United States, 650 A.2d 680, 685 (D.C. 1994)), Hartridge‘s assertions strongly support his claim. The majority‘s contrary conclusion rests on an unduly selective, blinkered view of the record.

(4) Prejudice. “[T]he Speedy Trial Clause‘s core concern is impairment of liberty.”

United States v. Loud Hawk, 474 U.S. 302, 312 (1986). First and foremost, the Clause was intended “to prevent oppressive pretrial incarceration.”

Barker, 407 U.S. at 532. Thus, “[t]he speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial....”

United States v. MacDonald, 456 U.S. 1, 8 (1982). Given these principles, it cannot be denied that two-and-one-half years of pretrial incarceration—two-and-one-half years sitting in the restrictive and uncomfortable confines of the D.C. Jail, one‘s life on indefinite hold, waiting for one‘s trial to commence—is very substantial prejudice, of the precise kind that the Speedy Trial Clause was meant to avoid.⁵

Rather than admit that Hartridge unquestionably did suffer palpable prejudice from his prolonged incarceration, the majority opinion focuses its sights elsewhere and faults Hartridge for his inability to prove that his defense at trial was impaired.⁶ His argument on that score, the majority opinion states, “lacks specificity.” Ante at 211. Then, from Hartridge‘s inability to demonstrate with specificity that he was hindered in his defense, the majority opinion leaps incautiously to the conclusion that there was no such prejudice—a conclusion that “weighs heavily” in the majority‘s determination of Hartridge‘s speedy trial claim. Id. (citations omitted). There are two things fundamentally wrong with the majority‘s reasoning.

First, and most important, whether or not impairment of one‘s defense is “the most serious” type of prejudice from the denial of a speedy trial,

Barker, 407 U.S. at 532, it is not the only type, and the absence of such impairment is by no means fatal to Hartridge‘s speedy trial claim.

Graves, 490 A.2d at 1103. Even if it is true that Hartridge‘s defense at trial was not impaired, he suffered other cognizable and substantial prejudice on ac-

count of what one court has called “the second most important factor“—his lengthy pretrial incarceration.

Jackson v. Ray, 390 F.3d 1254, 1264 (10th Cir. 2004); see also

Berry v. State, 93 P.3d 222, 237 (Wy. 2004) (holding that 720 days of pretrial detention “weighs heavily in favor” of defendant‘s speedy trial claim). As the Supreme Court explained in Barker, “[t]he time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness.... The time spent in jail is simply dead time.”

407 U.S. at 532-33. “Imposing those consequences on anyone who has not yet been convicted is serious.” Id. at 533.

Second, the majority‘s argument that Hartridge did not present affirmative evidence of prejudice to his defense takes it only so far: consideration of prejudice is not limited to the specifically demonstrable, and affirmative proof of particularized prejudice is not essential to every speedy trial claim.... [Citations omitted.] Barker explicitly recognized that impairment of one‘s defense is the most difficult form of speedy trial prejudice to prove because time‘s erosion of exculpatory evidence and testimony “can rarely be shown.”

407 U.S. at 532.... Thus, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, see

Loud Hawk, [474 U.S.] at 315 it is part of the mix of relevant facts, and its importance increases with the length of delay.

Doggett, 505 U.S. at 655-56. If we take seriously what the Supreme Court has said about “presumptive prejudice,” then the burden must be on the government to rebut the presumption, i.e., in the present case, to demonstrate affirmatively that Hartridge‘s defense suffered no material impairment as a result of the excessive pretrial delay. The majority opinion does not suggest that the government has carried that burden. Cf.

Doggett, 505 U.S. at 658 n. 4 (“While the Government ably counters Doggett‘s efforts to demonstrate particularized trial prejudice, it has not, and probably could not have, affirmatively proved that the delay left his ability to defend himself unimpaired.“).

To my colleagues,

Doggett “implies” that Hartridge‘s speedy trial claim cannot succeed “absent either serious fault by the government in causing the lapse of time or specific prejudice to preparation of the defense.” Ante at 212. The case implies no such thing; I submit my colleagues misread the Supreme Court‘s opinion. The threshold legal issue in

Doggett and the Court‘s resolution of it were the opposite of what my colleagues seem to think they were. The Court‘s prior cases had said that “unreasonable delay between formal accusation and trial threatens to produce more than one sort of harm, including ‘oppressive pretrial incarceration,’ ‘anxiety and concern of the accused,’ and ‘the possibility that the [accused‘s] defense will be impaired’ by dimming memories and loss of exculpatory evidence.”

505 U.S. at 654 (citations omitted). In

Doggett, however, the government contended (in rather striking contrast to its present position) that the Speedy Trial Clause is not intended to prevent prejudice to the defense, but is intended only to prevent oppressive pretrial incarceration and anxiety of the accused; i.e., that only pretrial deprivation of liberty and anxiety could be relied upon to establish a speedy trial violation. See

505 U.S. at 654;

see also id. at 660 et seq. (Thomas, J., dissenting).⁷ While the Supreme Court held that the Speedy Trial Clause is indeed concerned as well with prejudice to the accused‘s defense, by no stretch of the imagination did the Court cast doubt on the Clause‘s unquestioned purpose of preventing oppressive pretrial incarceration and anxiety on the part of the accused. My colleagues’ mistaken inference that impairment of the accused‘s ability to defend himself is, after

Doggett, a virtual sine qua non of a successful speedy trial claim, founders on the Supreme Court‘s explicit holding that “the speedy trial enquiry must weigh the effect of delay on the accused‘s defense just as it has to weigh any other form of prejudice that Barker recognized.” Id. at 655 (emphasis added).

In support of their reading of

Doggett, my colleagues quote a single brief passage out of context—the Court‘s statement that “if the Government had pursued Doggett with reasonable diligence from his indictment to his arrest, his speedy trial claim would fail ... as a matter of course however great the delay, so long as Doggett could not show specific prejudice to his defense.” Ante at 212 (quoting

Doggett, 505 U.S. at 656) (emphasis added). In context, this statement merely reflects the fact that prejudice to his defense was the only prejudice Doggett claimed or could claim. See

505 U.S. at 654. Because Doggett was not detained before trial, he could not claim prejudice from pretrial incarceration (and, as he was unaware of the pending criminal charges, he suffered no pretrial anxiety). At most, therefore, the Supreme Court‘s statement means only that in the absence of government fault, an unincarcerated defendant will need to show specific prejudice to his defense in order to prevail on a speedy trial claim. The statement cannot logically or fairly be taken to imply that a defendant who has been deprived of his liberty for a prolonged period also will need to show such prejudice.⁸

Thus, I think that the fourth Barker factor, like the other three if not more so, weighs heavily in favor of finding a deprivation of Hartridge‘s Sixth Amendment right. I cannot fathom how the majority can dismiss two-and-one-half years of imprisonment without trial and say that Hartridge‘s claim of prejudice “is simply unpersuasive on this record.” Ante at 213.

In sum, to return now to where I began in this dissent, it seems to me that if we apply the Barker balancing test with rigor and objectivity, the only conclusion we properly can reach is that Hartridge was deprived of his Sixth Amendment right to a speedy trial. While this court has issued many past decisions finding no speedy trial violation, I am unaware of any such decision (and the majority opinion does not cite a single one) with a comparably strong showing by the defendant on each of the

four Barker factors.⁹ Accordingly, I am obliged to dissent from the affirmance of Hartridge‘s convictions.

Notes

1

Mr. Hartridge‘s first name also appears in the record as “Thaddeus.” Before the trial proper got under way, nearly three months were taken up with hearings on the defendants’ various motions. Treating the starting date of the motions hearings as the relevant trial commencement date, the majority therefore measures the length of the pretrial delay in this case as two years and three months rather than two-and-a-half years. While I do not consider the three-month difference to be material to my speedy trial analysis, I think two-and-a-half years may be a better measure of the pretrial delay that Hartridge was obliged to endure on account of the trial court‘s refusal to expedite his trial by severing his case from the cases of his co-defendants. Had the court granted severance, I am confident it would have conducted the hearings on Hartridge‘s motions alone in appreciably less than three months (though precisely how much less I cannot say).

2

The appellants’ jury trial lasted for several weeks, beginning on March 12, 1996, with hearings on motions, continuing with the commencement of the evidentiary trial on July 9, 1996, and ending with the jury‘s verdict on September 16, 1996. See

Hammond, 880 A.2d at 1081 (“[T]he government bears responsibility for delays occasioned by requests of co-defendants, since the government chooses to try defendants jointly.“);

Ruffin v. United States, 524 A.2d 685, 688-89 (D.C. 1987) (same);

Townsend v. United States, 512 A.2d 994, 999 (D.C. 1986) (stating that government‘s desire for joint trial “does not excuse” the resulting delay “or render it neutral“);

Gaffney v. United States, 421 A.2d 924, 928 (D.C. 1980) (“While much of the delay was attributable to Gaffney‘s unpreparedness, the consequential delay of Engram‘s trial is somewhat weighed against the government because the government chose to try the appellants jointly.“).

3

Recodified at D.C.Code §§ 22-2101, -4502 (2001). I find it a bit ironic, though, that excessive delay should be deemed acceptable in the interests of efficiency.

4

Recodified at D.C.Code § 22-4504(b) (2001). In

Ruffin,

Townsend,

Adams, and

Gaffney, only a few months of the pretrial delay was attributable to joinder of co-defendants.

5

In fact, in the instant case, the ALJ reduced the fine in question, albeit to an amount Petitioner would not find modest, after considering mitigating evidence. Recodified at D.C.Code § 22-4504(a) (2001). We cannot dismiss this most basic form of prejudice on the ground that Hartridge ultimately was found guilty at trial and sentenced to a lengthy prison term, nor does anyone suggest that we should. The majority opinion discounts Hartridge‘s lengthy pretrial incarceration, however, because greater delay “will be tolerated” in cases involving “more serious and complex... charge[s],” ante at 211 (internal quotation marks and citations omitted). On the question of prejudice from pretrial incarceration (as opposed to the mere length of the delay), this statement is a non sequitur; that aside, the short rejoinder is that the seriousness and complexity of the charges in this case were not the reason Hartridge‘s trial was delayed. Both the prosecution and Hartridge were ready for trial not long after Hartridge was arraigned.

6

The appellants were sentenced to prison terms of fifteen years to life on the murder conviction, five to fifteen years on the PFCV charge, and four to twelve months for CPWL; all of the charges are to run consecutively. The majority opinion also discounts—rather cavalierly, some might think—the anxiety and concern that Hartridge “may have suffered” while he awaited trial on a first-degree murder charge, ante at 211, noting that he points to no specific impact on his health or other aspects of his life. Although I find the majority‘s reasoning unpersuasive, I think it unnecessary to belabor the point. The anxiety and concern that an accused “may” suffer are a form of prejudice separate and distinct from that of oppressive pretrial incarceration. See

Barker, 407 U.S. at 532;

Graves, 490 A.2d at 1101.

7

Mr. Cullison‘s other claims, such as the improper nature of the government‘s opening argument, its prejudicial decision to call Mr. Wynn‘s mother to the witness stand, and the trial court‘s denial of his motion for severance, are unpersuasive, and merit no discussion. The government argued that “the effect of delay on adjudicative accuracy is exclusively a matter for consideration under the Due Process Clause.” Id. at 655 n. 2.

8

Doggett also demonstrates the fallacy in any suggestion, see ante at 212 n. 17, that more than one form of cognizable prejudice must be shown for a speedy trial claim to succeed in the absence of serious governmental fault. Under

Doggett, proof that the defendant sustained even one form of prejudice may suffice. None of the cases cited by the majority indicate otherwise, for the defendants in

United States v. Stephenson, 891 A.2d 1076, 1076 (D.C. 2006),

District of Columbia v. Cruz, 828 A.2d 181, 183 (D.C. 2003), and

Akins v. United States, 679 A.2d 1017, 1024 (D.C. 1996), suffered no (or virtually no) prejudice whatsoever of any type the Speedy Trial Clause was intended to prevent.

9

In

Hammond, for example, this court found no speedy trial violation even though fifty-four months elapsed before Hammond‘s trial was held. But that case is distinguishable from this one in three crucial respects. First, unlike Hartridge, Hammond acquiesced in much of the delay (some of which was attributable to his own counsel‘s scheduling difficulties), and his assertion of a right to a speedy trial was belated, pro forma, and undercut by his “expressed” preference not to be tried until after his co-defendant.

880 A.2d at 1086. Second, unlike Hartridge, Hammond did not suffer prejudice from pretrial incarceration, because he was lawfully incarcerated anyway on other, unrelated federal charges “during most of the period of delay.” Id. at 1086. (Nor did Hammond establish other significant prejudice.) Third, unlike in Hartridge‘s case, sixteen months of the pretrial delay in Hammond‘s case was deemed “justified” (almost all the balance was given “neutral” weight) because it related to the government‘s successful interlocutory appeal of an evidence suppression ruling and the government sought to expedite the appeal (while Hammond did not). Id. at 1083-85, 1108-09. Thus, unlike in this case, in Hammond only the first Barker factor, the length of the delay, strongly supported the speedy trial claim.

20

Under the sanitized and whittled down version of evidence relating to the Wilkins’ murder that the government initially wanted to introduce, the question of constructive possession of the guns was not pertinent. Despite the argument of Mr. Hartridge suggesting that constructive possession was, an important part of the trial court‘s ruling, the record shows that the trial court admitted testimony concerning a gun as part of its sanitized and whittled down version of the Wilkins’ shooting because it was “relevant on the issue of access and opportunity,” but ruled alternatively that the evidence was sufficient to establish constructive possession. Under the circumstances of this case, we cannot say that the alternative ruling constituted error. See

Rivas v. United States, 783 A.2d 125, 131 (D.C. 2001) (en banc).

21

Contrary to appellants’ arguments, the admission of testimony that the appellants were seen together on November 22, 1993, did not fall under the forbidden “guilt by association” doctrine. Rather, that testimony and the ballistics evidence minimally established their connection to the probable murder weapon, and that they were part of a small group that had access to the weapon.

22

The prosecutor took issue with the court‘s ruling, arguing that his statement was “directly responsive.” The judge disagreed, declaring: “The Court of Appeals has said otherwise.”

Case Details

Case Name: Hartridge v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Mar 23, 2006

Citation: 896 A.2d 198

Docket Number: 97-CF-1867, 97-CF-2028, 98-CF-153

Court Abbreviation: D.C.