UNITED STATES of America, Plaintiff-Appellee, v. Bruce Loren LATIMER, Defendant-Appellant.
No. 74-1270.
United States Court of Appeals, Tenth Circuit.
Decided Feb. 21, 1975.
Rehearing Denied April 14, 1975.
Argued Nov. 11, 1974.
Dean R. Mitchell, Salt Lake City, Utah, for defendant-appellant.
Before MURRAH, HILL and HOLLOWAY, Circuit Judges.
HOLLOWAY, Circuit Judge.
Appellant Latimer appeals his conviction for robbery of a federally insured bank in violatiоn of
It is convenient to detail the facts briefly in discussing the first issue raised by appellant—the claim of denial of a speedy trial—to which we turn.
1. The speedy trial issue
Appellant‘s initial contention is that he was denied his Sixth Amendment right to a speedy trial. He says that delay from arrest to arraignment and from arraignment to trial was unreasonable; that he had requested a speedy trial; that he was prejudiced by impairment of the witnesses’ ability to recollect and that, in sum, under the test set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, we must hold that his constitutional right to a speedy trial was denied. We treat this claim first because, if we find merit in it, the case must be dismissed. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56.
The facts briefly are as follows. The South State Street Branch of the First
A preliminary hearing was held on April 12, 1973, and appellant was arraigned on July 26. At the arrаignment, indictment was waived and appellant pleaded not guilty to the two count information charging the
The record contains no motion or other indication of an objection to the delay in trial. Nor, on the other hand, does it reveal any evidence of acquiescence in the delay.
At trial two eyewitnesses identified appellant as the robber. One, however, had not identified him when shown mugshots or at a line-up the day after the robbery, although she did identify him a week later at the preliminary hearing. However, this witness was unable to recall, on cross-examination at trial, that at the preliminary hearing she admitted that some Government employee or police officer had told her that they had had complaints about the defendant before. Another eyewitness, the assistant manager of the bank, at trial could not remember some circumstances about the robbery or his statement to the police about it. These and similar circumstances are pointed to as showing prejudice to the appellant.
The Sixth Amendment guarantee has been the subject of several major opinions by the Supreme Court in recent years. See Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1; United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468; Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101; Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56. The Court has also promulgated an amendment to the Federal Rules of Criminal Procedure,
The Supreme Court has adopted a balancing test to resolve speedy trial questions, in which the conduct of both the prosecution and the defendant are weighed. Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. 2182. The Court identified four factors which must be considered: the length of delay, the reason for the delay, the defendant‘s assertion of his right, and prejudice to the dеfendant. Id. at 530, 92 S.Ct. 2182; see United States v. Spoonhunter, 476 F.2d 1050, 1057 (10th Cir.). The factor of prejudice, in turn, is to be assessed in the light of three interests that the speedy trial right is designed to protect—to prevent oppressive pretrial incarceration; to minimize anxiety and concern of the accused; and to limit the possibility that the defense will be impaired, this last interest being the most important. Barker, supra at 532, 92 S.Ct. 2182. In аpplying this balancing test we must bear in mind that the primary burden is placed on the courts and prosecutors to assure that cases are brought to trial; the defendant has no duty to bring himself to trial. Id. at 529, 527, 92 S.Ct. 2182.
The first factor—the amount of delay—is a “triggering mechanism” under the Barker test. Id. at 530, 92 S.Ct. 2182. Until there is some delay which is potentially prejudicial, there is no need for inquiry into the othеr factors. In our case the delay provokes an inquiry into all the factors and the peculiar circumstances involved. The delay was about 3½ months from arrest to arraignment, where indictment was waived. It was then about 7½ months more until trial on March 12, 1974. The delay is regrettable and exceeded the standards established in the
The reason for the delay is not shown by our record. The Government brief аsserts the October trial was rescheduled due to the heavy calendar, with neither party requesting or objecting to the postponement. However, as noted above, at the February 4, 1974, calendar call defense counsel did state he was ready for trial. Unintentional delays caused by overcrowded dockets are to be weighed less heavily than intentional delay, but must nevertheless be considered since the ultimate responsibility for such circumstances must rest with the Government rather than with the defendant. Strunk v. United States, 412 U.S. 434, 436, 93 S.Ct. 2260, 37 L.Ed.2d 56. Still, there was action by the court in setting and calling calendars, and thus we are not inclined to weigh this factor too heavily against the Government, although the showing as to the reason for the delay is not comforting.
We have stated what the record shows as to appellant‘s assertion of his right—counsel‘s statement at arraignment in July, 1973, that he would be ready for trial within two weeks, and the statement on February 4, 1974, at the calendar call that he was ready for trial. There is, however, in our record no other motion оr objection to the delay and rescheduling of trial. We may weigh the frequency and force of the objections. Barker, supra, 407 U.S. at 529, 92 S.Ct. 2182. Here there clearly was no waiver of the speedy trial right, but the frequency and force of the objections revealed in our record are not strong.
Potential prejudice is the remaining factor to weigh under Barker. Here there was no oppressive pretrial incarcеration. Release on bail was allowed a few days after arrest, we are advised. The factor of anxiety and concern is
In sum, while appellant‘s claim of denial of speedy trial is substantial and the case is close, we conclude that no denial of appellant‘s constitutional right is demonstrated.
2. The Government‘s closing argument
Second, we turn to appellant‘s claim of misconduct by Government counsel during final summation in “testifying as to evidence which had not been admitted or proven at trial,” thus denying him a fair trial in violation of due process.
At trial two tellers who observed the robbery testified that they had activated the bank‘s alarm and camera system during the robbery. However, no pictures taken by the camera were introduced by the Government, and no explanation was given as to why the film was not produced. In final argument appellant‘s counsel pointed to this omission and argued the inference that the film was not produced because it did not identify appellant.5
In rebuttal argument Government counsel replied by stating that the film was not offered because the camera malfunctioned; that the films did not show anything; that they didn‘t show anybody robbing the bank; and that in fact they showed an FBI agent who arrived quite awhile after the incident. Objection by appellant‘s counsel was made at the outset of such argument, renewed and overruled by the court.6
The Government says the argument was responsive to remarks by appellant‘s counsel; that prohibiting response to the adverse inference would have been improper; and that admissibility of the films was questionable because of the malfunctioning of the camera.
We must disagree with the Government‘s argument. We start with the fact that appellant‘s counsel argued a proper inference. The proof had
The argument by Government counsel violated two fundamental rules. First the argument went outside the record and made statements as to facts not proven as to the malfunctioning of the camera and that the film showed the FBI agent after the incident. This was clearly imprоper. United States v. Peak, 498 F.2d 1337, 1339 (6th Cir.); Reichert v. United States, 359 F.2d 278, 281-82 (D.C.Cir.); Marks v. United States, 260 F.2d 377, 383 (10th Cir.), cert. denied, 358 U.S. 929, 79 S.Ct. 315, 3 L.Ed.2d 302; and see United States v. Perez, 493 F.2d 1339, 1343 (10th Cir.); VI Wigmore, Evidence §§ 1806, 1807 (3d ed. 1940). Second, the statement put the personal knowledge and belief of the prosecuting attorney on the scales, which is also clearly improper. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314; United States v. Bettenhausen, 499 F.2d 1223, 1233 (10th Cir.); United States v. Martinez, 487 F.2d 973, 977 (10th Cir.). The defense objections were good and should have been sustained. We must hold that the improper and prejudicial argument calls for a new triаl. United States v. Ludwig, 508 F.2d 140 (10th Cir.) (No. 74-1046, Dec. 27, 1974); United States v. Peak, supra; Reichert v. United States, supra.
We have noted the several additional arguments made by appellant. We mention only that concerning the giving of an alibi instruction, which was unrequested and not called for by the evidence. We assume, however, that this and other problems discussed by appellant may be avoided on retrial.
Accordingly the judgment is reversed and the cаse remanded for a new trial.
HILL, Circuit Judge (dissenting).
I am compelled to respectfully dissent. My distinguished brothers have chosen to upset the conviction for what seems to me to be a trivial error in the trial of the case. Defense counsel in his jury argument invited the occurrence relied upon by the majority. He participated in both the preliminary heаring before the magistrate and the trial under review. On both occasions he heard evidence to the effect one of the witnesses had activated the camera inside the bank. No photographs from this camera were offered by the prosecution. Certainly the defense counsel knew the reason such evidence was not offered. It is undisputed that the camera malfunctioned. Under these circumstances defense counsel was clearly “out of bounds” when he referred to the camera and asked the jury to draw an inference favorable to his client. There is ample undisputed eye witness identification testimony in the record together with an