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Akins v. United States

June 20, 1996


The opinion of the court was delivered by: Ruiz, Associate Judge

Argued March 6, 1995

Before SCHWELB, FARRELL and RUIZ, Associate Judges.

This case, in which we affirm the judgment in part and remand in part, arises from offenses that were made somewhat extraordinary by the fact that its participants memorialized the developing events on film. On October 28, 1989, appellants Michael Akins, Robert Taper, Joel Carrero, and William Barnes, as well as former co-defendant Bryan Davis*fn1 and other juvenile and unindicted coconspirators, assaulted two individuals in two separate incidents with the ultimate goal of robbing them. Lonnie Bryant, the government's key witness, testified that on the evening of October 28, he joined a group of friends that included all the appellants except Barnes in the 5400 block of Ninth Street, Northwest. One member of the group suggested beating up "pipeheads," or users of crack cocaine, and taking their money. According to Bryant, everyone present registered agreement with the plan. Shortly thereafter, appellant Barnes-who used the nickname "Kirkey"-joined the group, stopping first a few feet away for the purpose of speaking to appellant Taper and "playing with" a gun he brought by pointing it at Taper's face. A few minutes later, after joining the group, appellant Barnes put the gun some place where it was not again seen. Further conversation ensued, but Bryant could not hear its contents.

Shortly thereafter, without the active participation of appellants Barnes or Akins, the group attacked its first victim, a young man in a striped shirt who remained unidentified at the time of trial. A juvenile coconspirator, Quentin Bennett, filmed the attack from a location so close that the fear in the victim's eyes was clearly visible. A long metal pipe, of which Bennett claimed ownership at trial,*fn2 was used to assault and subdue the victim, who repeatedly asked why this was being done to him and indicated that he had a "ten" that the perpetrators were free to take. Towards the end of this videotaped incident, at least one individual is heard to say that he had obtained the ten. The event ended when an unknown person shouted "D.C. Police!" According to Bryant, everyone who was present scattered and sought shelter in various houses along Ninth Street. The entire incident took about two minutes, according to the time stamps appearing on the camera screen.

About fifteen minutes later, the group located its second victim, Charles Lawson. According to Bryant, this incident began when Bennett noted to his friends that he had identified "two live ones," Lawson and a companion, who had the misfortune to be walking up Ninth Street after the appellants and their coconspirators had emerged from the respective shelters in which they had hidden after the first attack. Bryant testified at trial that right before the group descended on Lawson, Carrero shouted that the others, including appellants Taper and Barnes, "all know what to do!" All the persons present indicated that they did. As appellant Carrero performed the function of cameraman and running commentator, four individuals, including appellants Akins, Taper, and Barnes, began to circle Lawson. As noted in Carrero's commentary, appellant Taper "stole" Lawson, or punched him in the face, and knocked him out. As Lawson lay on the ground unconscious, and unknown bystanders clapped and laughed, Davis spit on Lawson and Bennett urinated on the side of his face. Appellant Akins searched Lawson's pockets and recovered an undiscernible object. Appellant Barnes then urinated on Lawson's face. Carrero gave the putative viewer the benefit of a close-up of Lawson as he suffers this treatment.

Eventually some members of the group decided that Lawson should be roused and made to move on. After being kicked and shoved, Lawson was brought to his feet and various items were returned to him, including a leather jacket that someone noted was too damaged by urine to keep. Lawson staggered first into and then down the street, and tried to enter a car that apparently was not his. Theron Brown, another juvenile coconspirator, and appellant Akins, repeatedly attempted to inform a pathetically confused Lawson that his car was up the street and that he needed to go home. The taping ended after appellant Carrero had interviewed and congratulated several of the appellants about their various roles in this escapade. Appellant Barnes was seen heading away from the scene towards his own vehicle saying that he has "got to do it to him, man."

Bryant testified that as appellant Barnes entered his car, appellant Carrero noted loudly that Barnes was "going to burn" Lawson. Appellant Barnes entered his car and drove slowly towards Lawson, who seemingly was still lost.*fn3 Appellant Barnes stopped and exited the car, grabbed Lawson, reached back into the car, got his gun, shot Lawson in the buttocks, and drove away. The police arrived on the scene about this time and helped Lawson to be transported to Washington Hospital Center. A special police officer who inventoried Lawson's wallet at the hospital testified that there was neither money nor a Citibank credit card in the wallet, both of which Lawson claimed were there earlier in the day.

A few weeks later, on December 15, 1989, a bounty hunter was hired by a licensed bail bondsman to locate appellant Carrero, who had jumped bail on an unrelated charge. The bail bondsman and the bounty hunter had information that appellant Carrero was in New York, and after inquiring at several locations, focused their efforts on a particular apartment in the Bronx. Appellant Carrero was not at that apartment, nor did he ever return. Nevertheless, after breaking down the apartment door, the bounty hunter and the bondsman stayed at the apartment for three days and two nights, eating, sleeping, and watching videos. On the second day of their stay, appellant Carrero's brother entered the apartment and, after clearing his identity with the bounty hunter who first mistook him for Carrero, asked the bounty hunter and the bondsman whether they had seen the videotape of October 28. The bounty hunter watched the tape, took it, later left New York without Carrero, and turned the tape in to the Metropolitan Police Department. The appellants were shortly thereafter indicted for the armed robberies and the related offenses.

During the police investigation of the incident, Lawson, who suffered from serious and recurring memory loss for reasons independent of this incident, identified only appellant Barnes as a person who had played a role in the events of October 28, although Lawson could not name the role. Bryant, who would later testify at trial for the government, picked out appellant Barnes from a photo array shown to him by the police when asked to identify the person known to him as "Kirkey." According to a police detective, the juvenile cameraman Bennett also identified appellant Barnes when asked who "Kirkey" was in a photo array, by saying "That's Kirkey. He shot him." Various appellants gave statements to the police. A records search revealed that appellant Barnes did not have a license to carry a pistol in the District of Columbia.

After a trial by jury, all the charged participants were convicted of conspiracy to commit robbery. The jury also found (1) that appellant Akins was guilty of robbery in the second incident while armed with a pipe; (2) that appellant Taper was guilty of both robberies, committed while armed with a pipe and a pipe and pistol, respectively, as well as possession of a firearm during a crime of violence (PFCV); (3) that Carrero was also guilty of both robberies while armed with a pipe; and (4) that Barnes was guilty of the second robbery while armed with a pipe and pistol, assault with a deadly weapon, carrying a pistol without a license, and PFCV.

Various claims of error are made on appeal. Appellant Barnes claims a violation of his Sixth Amendment right to a speedy trial. Appellants Taper and Carrero claim that the bounty hunter's seizure of the videotape violated their Fourth Amendment rights. Appellants Barnes and Carrero claim that certain out-of-court statements made by Akins, Taper, and Brown were erroneously admitted into evidence in violation of Barnes' and Carrero's rights under the Confrontation Clause of the Sixth Amendment and in contravention of evidentiary rules. Appellant Barnes also challenges the admission of Bennett's out-of-court statement identifying Barnes as the shooter on the same grounds. Appellant Taper challenges the admission of the videotape and its transcript on evidentiary grounds. Almost all appellants challenge the sufficiency of the evidence to convict on various charges. We affirm all the convictions except for the convictions of appellants Barnes and Carrero for the armed robbery of Lawson, which we remand because further proceedings are necessary to determine whether certain out-of-court statements were admitted in violation of Barnes' and Carrero's right of confrontation.

I. The Claim of a Speedy Trial Violation

Appellant Barnes claims that he was denied a speedy trial in contravention of the Sixth Amendment to the United States Constitution. Arrested in late January, 1990, and indicted that April, Barnes was scheduled to be tried on November 26, 1990. On November 14, 1990, the government obtained a superseding indictment charging Barnes and Taper with the robbery of Lawson while armed with a pistol and charging all the defendants with conspiracy, not charged on the original indictment. Appellant Barnes moved to sever the conspiracy count and to proceed to trial as originally scheduled; that request was denied and the trial on all charges was continued to May 13, 1991. In addition to moving to dismiss for speedy trial violations when the case was continued in November, 1990, Barnes twice again raised his speedy trial claim in writing to the court before February of 1991.

The United States Supreme Court has identified four factors to evaluate a speedy trial claim: the length of the delay, the reasons for the delay, whether the appellant asserted his right unambiguously, and whether any prejudice arose as a result of an unreasonably lengthy delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191-92, 33 L.Ed.2d 101 (1972); Gayden v. United States, 584 A.2d 578, 583 (D.C.1990). Although a delay of more than a year creates a presumption of unreasonableness, the complexity of a case may tend to justify an otherwise excessive delay. Gayden, supra, 584 A.2d at 583. Delays are attributed to the parties causing them, and delays attributable to the government are classified as being of neutral or significant importance, depending on how justifiable they were. Graves v. United States, 490 A.2d 1086, 1092 (D.C.1984) (en banc), cert. denied, 474 U.S. 1064, 106 S.Ct. 814, 88 L.Ed.2d 788 (1986).

The initial delay in bringing the matter to its first trial date of November 26, 1990, while attributable to the government, must be deemed neutral as it was caused by court congestion, defense discovery, research, and investigation, as well as the difficulties in coordinating the trial schedules of at least five attorneys and that of the court. The second delay, between the return of the new indictment, on November 14, 1990, and the eventual trial date of May 13, 1991, however, can be counted more heavily against the government. The government could have sought either to include the conspiracy and other added counts to the original indictment, or to obtain a superseding indictment substantially sooner than twelve days before trial.*fn4 The government offers no refutation of Barnes's claim that all the government's witnesses, as well as the underlying conspiracy theory, were available to the grand jury at the time of the first indictment.

We are compelled to deny Barnes's speedy trial claim for at least three reasons. First, the case was complex and involved substantial, complicated, and novel evidentiary problems, as demonstrated by almost twenty pretrial motions that were filed by the various parties. The entire pretrial period was fifteen-and-a-half months, a delay that especially in a five-co-defendant conspiracy case does not generally cross into unconstitutional territory. See Gayden, supra, 584 A.2d at 583; Cates v. United States, 379 A.2d 968, 970 (D.C.1977). Second, notwithstanding that the delay was to varying degrees attributable to the government, the fact remains that Barnes went to trial on the very second date set for that purpose. See Tribble v. United States, 447 A.2d 766, 768 (D.C.1982) (requiring more than "mere delay"). Although the second trial date followed the first by several months, there is no indication that Barnes ever requested an earlier date once his motion to sever the conspiracy count on the original trial date was denied.

Third, Barnes has not met the prejudice component of the Barker v. Wingo four-part analysis. Although this court has recognized that pretrial anxiety may constitute a form of prejudice, as are the effects of pretrial incarceration, appellant Barnes suffered from both anxiety and the effects of incarceration already as a result of other offenses for which he either awaited sentencing or had already been sentenced. Gaffney v. United States, 421 A.2d 924, 929 (D.C.1980) (noting that simultaneously serving other sentences tends to minimize prejudice arising from pretrial incarceration); Turner v. United States, 622 A.2d 667, 679 (D.C.1993) (observing that prior contact with criminal justice system minimizes impact of pretrial anxiety and concern). Barnes's final claim, that due to the delay, he was denied the availability as a witness of Brown, a putative coconspirator who was on the lam at the time of the May 1991, trial, is made without any concomitant claim or proof that Brown's testimony would have tended to exculpate Barnes of the charged offense, or that Brown would have been available on any earlier trial date. Thus, we find no violation of Barnes's Sixth Amendment right to a speedy trial.

II. The Fourth Amendment Claim

Appellants Taper and Carrero both assert on appeal that the Fourth Amendment prohibition against unreasonable searches and seizures was violated by the acts of the bounty hunter and bondsman who forcibly entered the New York apartment and obtained the incriminating videotape. Although appellants recognize that bail bondsmen and bounty hunters are not themselves law enforcement personnel, appellants argue that the unique powers conferred on bondsmen by 18 U.S.C. § 3149 (1994), as well as the various regulatory provisions of D.C.Code §§ 23-1101-12 (1989), and Superior Court Rule of Criminal Procedure 116, sufficiently implicate the government to require that the actions of bondsmen and bounty hunters conform to the proscriptions of the Fourth Amendment. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156-57, 98 S.Ct. 1729, 1733-34, 56 L.Ed.2d 185 (1978); Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 488-89, 15 L.Ed.2d 373 (1966); United States v. Lima, 424 A.2d 113, 117 (D.C.1980) (en banc). Where, as here, the facts of the seizure are not in question, the question whether bondsmen and bounty hunters must comply with the Fourth Amendment is a legal one. See Lima, 424 A.2d at 117.

Appellant Taper does not allege that his own Fourth Amendment rights were violated. Rather, he seeks to vicariously assert the rights of whichever of his co-defendants could validly claim an unreasonable search or seizure. The claim that an alleged coconspirator has standing is without any support in the law; only the opposite conclusion-that "coconspirators and co-defendants have been accorded no special standing"-is true. United States v. Padilla, 508 U.S. 77, 82, 113 S.Ct. 1936, 1939, 123 L.Ed.2d 635 (1993) (quoting Alderman v. United States, 394 U.S. 165, 171-72, 89 S.Ct. 961, 965-66, 22 L.Ed.2d 176 (1969); United States v. Salvucci, 448 U.S. 83, 87, 100 S.Ct. 2547, 2550-51, 65 L.Ed.2d 619 (1980); Simmons v. United States, 390 U.S. 377, 389-90, 88 S.Ct. 967, 973-74, 19 L.Ed.2d 1247 (1968); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Therefore, we reject appellant Taper's Fourth Amendment claim as a matter of law.

As to appellant Carrero, we affirm the trial court's ruling based on the absence of state action. We agree with the trial judge that the bounty hunter and bail bondsman who searched the New York apartment were private actors with a contractual relationship with Carrero and were thus not controlled by the evidence-gathering guidelines applicable to state action that have evolved from the Fourth Amendment.*fn5

The United States Supreme Court has frequently held that actions taken by private parties are not limited by the constraints placed on government agents by the Fourth Amendment. United States v. Jacobsen, 466 U.S. 109, 115, 104 S.Ct. 1652, 1657-58, 80 L.Ed.2d 85 (1984); Walter v. United States, 447 U.S. 649, 656, 100 S.Ct. 2395, 2401, 65 L.Ed.2d 410 (1980); Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921); see Lima, supra, 424 A.2d at 117 (citing cases). Indeed, the Court held long ago that a bail bondsman may seize the person without a warrant or other legal process. Taylor v. Taintor, 83 U.S. [16 Wall.] 366, 371, 21 L.Ed. 287 (1872); see also Golla v. State, 135 A.2d 137, 139 (Del.1957), cert. denied, 355 U.S. 965, 78 S.Ct. 555, 2 L.Ed.2d 539 (1958) (holding that a warrant and extradition proceedings are not required for a bondsman's arrest and transportation of a prisoner across state lines). It is worth noting that although 18 U.S.C. § 3149 entitles bondsmen to arrest individuals where they have failed to appear in court, D.C.Code § 23-582(b) also confers on private citizens the power to arrest for certain offenses. See Lima, supra, 424 A.2d at 119 (rejecting state action argument as applied to security officers who are not special police officers and who have "only the power of arrest of an ordinary citizen"). We perceive no authority for departing from the well-established rule that bondsmen are not subject to the Fourth Amendment as it regards the seizure of personal effects. Cf. Burdeau, supra, 256 U.S. at 475-76, 41 S.Ct. at 576.

Appellant Carrero aptly describes the useful service provided to the government and to law enforcement by bail bondsmen who permit the release of various criminal defendants awaiting trial or sentencing. See Taylor v. Taintor, supra, 83 U.S. [16 Wall.] at 371, 21 L.Ed. 287 (noting that the bondsman extends the imprisonment ordinarily delegated to the sheriff). Nevertheless, the fact that the government benefits from the existence of a particular private institution does not render that private institution subject to constitutional constraints. See Jacobsen, supra, 466 U.S. at 114-15, 104 S.Ct. at 1656-58 (holding that private freight carrier not subject to Fourth Amendment constraints); Flagg Bros., supra, 436 U.S. at 163, 98 S.Ct. at 1737 (holding that settlement between debtors and creditors not sufficiently an exclusive state function to render creditor's actions, even where statutorily delegated, the actions of the state). Carrero describes the search or evidence-recovering powers of a bondsman as "unfettered"-and so they are, by the Constitution. Those powers are exactly as fettered or unfettered by civil law as those enjoyed by private citizens. Bondsmen enjoy no particular immunity accorded government agents. Unlike a police officer who may act relying on a belief that he has probable ...

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