Before Farrell, Reid, and Glickman, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
Appeals from the Superior Court of the District of Columbia (Hon. Judith Bartnoff, Motions Judge) (Hon. Susan R. Winfield, Trial Judge)
This appeal from convictions for distributing cocaine in a drug-free zone and enlisting a minor to distribute drugs presents chiefly a speedy trial issue resulting from the prosecutor's apparent failure to confirm a laboratory drug analysis until the day of the second scheduled trial a year after appellant's arrest, with the consequence that appellant nearly - but not, we conclude, in fact - lost the availability of two witnesses whom the trial court recognized to be important to his defense. After balancing the factors relevant to the claimed denial of the constitutional right, we conclude that appellant was not denied his right to a speedy trial. As we also reject his remaining contentions, we affirm the convictions.
A jury found that on July 10, 1996, appellant twice sold cocaine to an undercover police officer in a drug-free zone (i.e., within one thousand feet of a school), D.C. Code §§ 33-541 (a)(1), -547.1 (1998), in each case having enlisted a minor to aid him in the distribution, id. § 33-547 (a). We reserve the facts relating to the sales until part III, infra, and describe first the circumstances relevant to appellant's speedy trial claim.
Appellant was arrested on July 10, 1996, charged that day with distributing cocaine, and held pending possible revocation of his probation on a prior conviction.*fn1 He was indicted on August 13 and arraigned two weeks later, at which time an October 8, 1996, status date was set. Following a change of counsel for appellant, another status hearing was held on December 5 at which time the first trial date was set for April 25, 1997. Meanwhile, the court had revoked appellant's probation, see note 1, supra, based on his repeated failure to meet with the probation officer in that case.
On April 25, 1997, the prosecutor was unavailable because of a family emergency, and trial was re-scheduled for August 12. On that day the trial court called for a jury panel, but before voir dire was completed the prosecutor moved to dismiss the case without explanation (and without prejudice to reindictment). The government later explained that the DEA laboratory had failed to analyze the drugs bought by the officer in this case. The court granted the government's motion.
A new indictment was returned on September 10, 1997, appellant was arraigned on September 24, and a status date was set for October 10, 1997. On that date appellant's counsel told the court that he could no longer locate two defense witnesses who had been available for trial on August 12; he asked for, and received, a continuance in order to file a motion to dismiss on speedy trial grounds. At a hearing on November 13, counsel described his unsuccessful efforts to find the two witnesses, prompting the trial court to express "concern about whether the Government [had] behaved . . . fair[ly] to the defendant" by dismissing at the last minute, with the result that "witnesses who were available then are not available now." The court set a renewed trial date for December 3, which was converted to a status date after appellant moved in writing to dismiss on speedy trial grounds. The court (Judge Bartnoff) heard argument on the motion on December 18, at which appellant proffered to the court ex parte what testimony the two witnesses (an alleged juvenile accomplice and an adult eyewitness) had been expected to give. The court found that these were indeed "important witnesses for the defense and have important information to provide"; it likewise did not question appellant's diligence in trying to find them again. It nevertheless denied the motion to dismiss after concluding that the government's dismissal of the case (followed by prompt re-indictment) had not been done "to gain any kind of tactical advantage" and that "at this point" - some seventeen months after arrest - appellant's speedy trial rights had not yet been violated. Authorizing "additional investigative vouchers to enable [the defense] to continue their attempt to find these witnesses," the court set a new trial date of March 12, 1998.
Those efforts appeared successful, at least initially, because on the eve of the defense case at trial appellant's counsel told the court (now Judge Winfield) that he would be calling two witnesses to the stand, as well as (possibly) appellant. Discussion the next morning revealed that these were the same witnesses the defense had previously been unable to re-locate. Counsel now found himself embarrassed, however, because although his investigator had been expected to pick up the witnesses and bring them to court that morning, neither the investigator nor the witnesses had arrived. Counsel assured the court that both witnesses "[had] been prompt" in coming to court "since the trial has started." A moment later the investigator himself arrived, but the witnesses were not with him. As to the adult witness, counsel stated that "he [the witness] knew he was going to testify," and counsel had given the investigator the address where he usually stayed, but apparently the witness had not been at the address that morning. The juvenile witness was also expected but had not appeared yet. Pointing out that both witnesses were under subpoena, defense counsel stated that "[i]f the court [is] willing to enforce the subpoena we would have reasonable expectation of finding" the witnesses. After hearing proffers of what each witness would say and concluding that "they clearly are important witnesses to the defense," the court agreed to enforce the subpoenas if appellant was willing to accept the additional delay, stating: "I would be willing to delay the trial [for several hours and] send the Marshals out to find [the witnesses]." After talking with appellant privately, however, defense counsel responded simply: "The client wishes to go forward at this time." The trial therefore proceeded to conclusion.
Appellant contends that the twenty-one month delay between his arrest and trial denied him a speedy trial because it deprived him of the availability of witnesses the trial court had twice recognized to be important to his case. In making this argument, he emphasizes the government's neglect in declaring ready for trial on August 12, 1997, when his witnesses were available, only to move for dismissal after realizing that it did not have the necessary drug analysis. While the prosecutor's lack of preparation is disturbing, we conclude that appellant has not demonstrated delay or resulting prejudice sufficient to justify the "drastic remedy of dismissal" which a constitutional speedy trial violation demands. Bolden v. United States, 381 A.2d 624, 625 (D.C. 1977).
In evaluating a speedy trial claim, this court conducts the four-factor inquiry required by Barker v. Wingo, 407 U.S. 514, 530 (1972); see Graves v. United States, 490 A.2d 1086, 1090-91 (D.C. 1984) (en banc). The four factors are length of delay, reasons for delay, assertion of the right to a speedy trial, and prejudice caused to the defendant. Barker, 407 U.S. at 530; Graves, 490 A.2d at 1091. "No one factor is either sufficient or essential[;] instead a `difficult and sensitive balancing process' is required." Turner v. United States, 622 A.2d 667, 673 n.8 (D.C. 1993) (quoting Barker, 407 U.S. at 533).
The lapse of twenty-one months between appellant's arrest and trial is a "substantial delay," approaching twice the length of time that "creates a presumption of prejudice and shifts the burden to the government to justify the delay." Graves, 490 A.2d at 1091 (citations and footnote omitted). Moreover, the delay occurred in a case where - as the trial confirmed - proof of the offenses was likely to be "uncomplicated" rather than "complex." Turner, 622 A.2d at 675. We agree with appellant that the seven months between the aborted trial in August 1997 and the trial in March 1998 must all count "significantly" against the government. See Graves, 490 A.2d at 1092. The same can also be said of the four months between April and August 1997, because if the drug analysis had not been performed by August, it assuredly had not been done by the first trial date scheduled in April. Thus, although we reject appellant's argument that any of this delay was "deliberate foot-dragging [by the government] to gain tactical advantage," id.,*fn2 it nonetheless counts more heavily against the prosecution than what the court has termed "neutral" or ...