*1 (1978); Stоres, Inc., Jones Safeway v. Appel- STATES, Appellant, UNITED argues lant that officers per- should not be by police regulations mitted to leave the ELLIS, Appellee. Herman William dogs’ cages unlatched investigating when possible they crimes unless have some rea- No. 79-245. apprehension sonable of danger from the Appeals. District Court of of Columbia situation. There was no evidence intro- unprovoked duced that attacks on innоcent Argued July 1979. people past had occurred in the by police Decided Nov. 1979. dogs escaping Moreover, police from cars. Officer Hall testified that an officer can
never know in advance when an innocent-
enough looking going situation is to become
“sticky.”4 Adopting appellant’s proposed
standard in this case would therefore have imposing
amounted to significantly in-
creased risks on police public necessity.
As to whether juror a reasonable
could have negligent found Officer Hall particular case,
this is similar.
Officer Hall was not breaching any police
regulation by leaving cage Shane’s un
latched, regulations for the left the decision
up to each individual officer’s discretion. exercising discretion, Officer Hall
was dangerous aware that situations often
developed beginnings appearing from inno
cent. He and together Shane had worked years, gone
for four through 16 weeks
of training together, Shane had won numer
ous awards as a competitions result of police trained military dogs ability commands, and,
his to obey most
importantly, not years once in those four
working together did Shane make an un
provoked escape police car to at
tack person. an innocent We conclude no juror
reasonable could have found Officer negligent presented.5
Hall on the facts here
Affirmed. cause of the attack since 4. Tr. at 72. the harm which would police have deterred a reasonable officer Having leaving namely possibility concluded that there was no evidence unlatched — negligence unnecessary dog person it is attack on an innocent —is contention, appel- address the District’s other not the harm that resulted here that, assuming negli- assaulting dog Officer Hall was lant officer and unlatched, gent leаving cage Shane’s did what he was trained to do. negligence proximate could not have been the *2 972 argues (Brief 6), at thoroughly properly and
“the court did not
balancing
re-
perform
sensitive
test
jurisdic-
quired by
prevailing
law
determining
tion
was de-
prived of his
constitutional
However,
reflects
the record
trial.”
recognize
apply
did
and
the trial court
v.
in test enunciated
familiar
92 S.Ct.
Wingo, 407 U.S.
(Record
It first
(1973).
noted
L.Ed.2d 101
9),
length
at
“we
.
have
total
months”;
it then identified
stated
of 22
court,
contradiction frоm
open
7),
(Record
for
at
the reasons
either counsel
congestion is 13
delay:
“the court
continuances,
months
.
. Mutual
two months
.
. Defense continuanc-
.
es,
con-
four months
.
.
. Government
tinuances, three months.”
sin-
that the case was a
court noted
v.
gle
charge,
misdemeanor
States,
D.C.App., 395 A.2d
prosecutor
pointed
out to
at
(Rec-
trial motion
hearing
24),
here confronted
“you
ord at
McKinsey,
Atty.,
E. Anne
Asst. U. S.
case which
with a
on a misdemeanor
C.,
Washington, D.
with whom Earl J. Sil-
it’s
a com-
your
adds to
burden because
bert,
Atty.,
the time the
U. S.
at
brief
long delay
for a
plex case. There’s no need
filed,
Terry, Peter C. DePaolis and
John A.
prepare
for
.” The court
Tabackman,
Attys.,
Steven C.
Asst. U. S.
(Rec-
prosecutor
to the
further commented
C.,
brief,
on the
for
Washington, D.
set
27-28), “[y]ou could have
it down
ord at
appellant.
up
have set
preference
...
Alexander, Washington,
Harry Toussaint
the case has some
special trial dates because
C.,
appellee.
D.
age
request
on it and at the
Govern-
I take the
...
we set those and
ment
NEWMAN,
Judge, and
Before
Chief
I don’t send it
case and I hold that case.
FERREN,
Judges.
Associate
KERN and
pot and that could have
back to the
very
.
.
. .”
KERN,
easily
in the case
done
Judge:
Associate
counsel,
by
response
appeal
Appellee’s
This is an
from an order
charge
dismissing
inquiry
of as
his client hаd
the trial court
as to
22-504,
generally
sault,
against ap-
(Record
28), pointed
suffered
at
D.C.Code
§
(Record
30),
delay causing
ground
his constitutional
faded
had at least three
trial had been violated. memories and asserted he
(Rec-
eyewitnesses
years,
that almost two
assault.
record reflects
viz., 31.)
ord
He
asserted
elapsed
between arrest
further
every
of anxiety
entered its
deal
great
the court
“has suffered
trial date when
(Record
31),
order,
he
hence this
alone
time
comes
court”
dismissal
charge
orig-
had been
appellee’s
claim.
that the assault
gives prima facie merit
noted
officer stationed
Branch United
inally
by
advanced
place of
so that
near
business
“anxiety
latter’s
prosecution
than usual
better deter-
he’s got
feeling they
have a
post-trial,
vendetta
gen-
mined
but that
against him.”
delay was
by
erated
determi-
an undue
assessing
nable before trial
the court
Appellee’s
(Rec-
counsel advised the court
out in
pointed
We then
35),
ord at
ultimately appellee
“got out
year elapsed
one
when more than
(the
of 4D
police district) and went to an-
*3
between
the defend-
arrest and trial
operate
district
to
the same kind of
prejudice
ant
by
asserts he has suffered
[gasoline] station.” The
accepted
court
produced by
reason of
anxiety
the
this de-
(Record
41),
statement
at
as evidence of
lay,
then in
the
order to dis-
prejudice suffered. The court concluded
prove
the burden
prejudice has
to show
(Record
40-41),
pertinent
part:
court
“convincingly”
trial
the
The speedy trial clause of the Sixth
Here,
applying
was minimal.
the
places
Amendment
the primary burden
Bethea,
test set forth in
the trial court had
prosecution
the
to assure that cases
assertion,
аn
delay
22-month
which it
trial,
brought
are
especially
to
after the
accepted,
delay generated
accused has asserted a speedy
trial
appellee’s part
as to cause him to
here,
which they have asserted
move his business
out
area. Given
motivate
the Government
to seek a
length
of
and this
delay
assertion of
prompt trial
really,
the history of the
prejudice
court,
upon by
relied
the trial
we
case
put you
should have
on notice that
simply
conclude
no evidence from
you
“[t]here
going
trouble,
were
to be in
in my
anyone reasonably
which
can conclude that
opinion.
got
You have
a bad record in
assertion of no
this case.
.
.
.
This is the case of a
outweighs
anxiety convincingly
single
which
misdemeanor
should have
contrary.”
claim to the
Bethea v. United
dispatch.
tried with
States, supra at 793.
government (Brief
14), points
agreе
we
to
the failure
Since
are unable
with the
of
to demand in
prosecution’s
writing a
that the trial
speedy trial until
contention
court
several months
before trial
erred in
distinguishing
and sensitive balanc-
“delicate
instant
case
ing process
from
applying
Wingo,”
of
Barker v.
The record
we
uphold
reflects that
order of
its
dismissal.
half-way
through
period
the 22-month
between the
Affirmed.
arrest
and the
filed a motion
prosecution.
dismiss for
of
want
At that
FERREN,
Judge, dissеnting:
Associate
time he
urged,
expressly
among other
dissent because I believe the
grounds for granting
motion,
that he
has made
unwarranted extension of Be
had been
denied a
trial. The fact
States, D.C.App.,
thea v. United
that the
granted
then
the motion
(1978), and,
consequence,
as a
has mis
prejudice
dismiss without
and that
applied
trial criteria announced
prosecution
reinstituted
514,
Wingo,
in Barker v.
407 U.S.
92 S.Ct.
appellee’s demand,
should not obscure
early
There has to some II. defendant, person, of a such as then, happen question, is what should probably who involved has with the next? after a presumption, Given the There has to half dozen times. defendant-appellee’s of delay, said, anxiety and, counsel has and, speedy trial has been violated— statement, his aсcept that he has point, presumption sold his business has moved out supra see note 3 prejudicial, has been very and it well have area could made that plausible —a can be argument something to do with also. despite the trial prevail, This cannot be characterized as a solid find- findings, (1) the court’s insufficient ing of if prejudicial anxiety. Even of no showing sold his business moved out the area outweigh” the defendant’s “convincingly becausе of about case—an as- 970; Bethea, claim, supra at contrary Day, sertion of counsel which the government, supra at explore had no opportunity realistic —the pretrial hearing, challenge counsel’s did not down; pin merely court did not the fact ap- proffer caused accepted found, unprobed assertion and sell his business. most, very the move “could well arguments, how- accept I cannot those something have anxiety.” do ever, under the circumstances event, given appellee’s virtual indiffer- government had proceedings, the trial court ence to asserting way challenging effective brought once the the second Appellee beyond arguing insufficiency. its time, I conclude that over- proffered govern- no witnesses whom the accepts rates—and incorrectly —the As a ment could have cross-examined. finding. evidentiаry support therefore, practical matter, ask the 17— sufficient. See D.C.Code § make further 305(a).4 carry mean could that a defendant summary, just first-time defend- as a *6 presumption of day simply by using ant’s a right continual assertion of to anxiety, proffering prejudice, asserting speedy prejudicial anxiety trial manifests support, in which the facts when substantially extends be- contradicting. I way would have no of Bethea, yond in I year, one believe that in where readily accept analysis Bethea right failure defendant’s to assert —or held, effect, in first clear abandonment of an earlier assertion— offense, petty who offender with delay working manifests a belief that is speedy consistently asserted her favor, unless she he or success, trial, prejudi- manifested without showing makes of prejudicial a sufficient of That is a anxiety cial as matter law. other, offsetting I way. in some As when a dе- sense. But matter of common it, here, coupled see with counsel’s right, or aban- fendant fails assert speculative finding, trial court’s is not it, why no as to presents dons finding sufficient for a of Ac- anxiety, I there nonetheless was record, cordingly, on this absent sufficient perceive anxiety. I hold that no such and a sustainable circumstances the finding under these prejudice, of I vote affirm cannot preju- of carry its burden can ruling that dismissal of the Barkеr, logical matter “inference” su- dice as a indictment is warranted under Day, pra. “objective of record. See facts” Compare given weight Reid v. United assertion to be (1979) (“We support appellant A.2d find prejudice and the lack of omitted). [posttrial] findings respect (footnote delay”) record for the resulting from the delay, evidentiary to the reasons for the 971; supra trial, supra.5 appropriately note 3 govern- considered after prevail ment will then unless the defendant preparation when defense has been ob- presents support any proffer evidence in Anxiety delay, from trial served. which the hand, obviously pretrial has a focus. refute, through make an effort to cross-ex- asserts Accordingly, if the defendant amination or otherwise.6 (in addi- prejudice preparation delay, the trial anxiety) tion to Here, however, holding such a should not ordinarily reserve necessarily remanding result in the case for ruling.7 If, post-trial trial motion for a trial, though defendant-appellee failed however, is limited to prejudice the asserted put proof supporting his claim that he (though permit not re- I would gas sold his station because of over ruling remand, quire) de- pretrial prejudicial anxiety this case. Because be- judicial spite possible economy lack complex comes a inquiry when combined allowing pretrial government a second proof the burden of issue based on appeal charges again in the event delay of year, supra, more than a see note 3 is no reason to force a dismissed. There parties and because the did not have the clearly is indicated.8 trial if dismissal benefit of point, this court’s say defendant-appellee any cannot — more than the receive —should III. ruling definitive adverse from this court although delay of more summary, fairness, time. I would pri- than a 22 months—indicates —here remand the case to the trial court for an claim, ma facie merit evidentiary hearing on prejudice, after Branch, supra I believe that which the options: court would have two defendant-ap- continuances attributable to charge dismiss grounds (six months), his ambivalent assertion after balancing all four Barker criteria parties and the failure of the (subject, again, once join require issue on combine to appeal); deny the speedy trial proceedings. remand for further motion proceed preju- reviewing dice to the motion after trial in MacDonald,
event of conviction. See
As indicated a remand for prejudice,
reconsideration of apropos of
MacDonald, usually related to claims of
prejudice to preparation, defense rather
than based on anxiety, and thus is *7 necessarily subject. (Nor pretrial mean that not raised the mony 5. This does could his testi- prevail anxiety may forcing a claim of be used as a basis for him to take meaningful assеrtion there is also a the testify.) unless the which evidence stand at trial if he otherwise declined to may example, cases in right. Alternatively, appellee present For there could per- eventual testimony of a defendant’s acquaintances support of his be said to out- trauma sonal assertion. early persistent weigh to make an failure laid or be assertion of be, exception might example, 7. An a case оf counsel, client-defendant. not the failure of pretrial delay during substantial the course of obviously which an crucial defense witness example, .1 In the died. defendant-appellee’s taking impediment to the stand, wishes, explain trauma if he the which allegedly him to move his busi- future, caused anticipate 8. In a sufficient testimony would relate Because such ness. solely pretrial hearing in the first instance when anxi- arrest, period appellee would ety alone is the basis for a claim of subject not at the same time be to cross-exami- nation about the offense unless he