Appeals from the Superior Court of the District of Columbia (F6896-92) (F6898-92) (Hon. Cheryl M. Long, Motions Judge) (Hon. Colleen Kollar-Kotelly, Motions Judge) (Hon. Harold L. Cushenberry, Jr., Trial Judge).
The opinion of the court was delivered by: Wagner, Associate Judge
Before: FARRELL and WAGNER, Associate Judges, and STEADMAN, Senior Judge.*fn1
Appellants, Navarro A. Hammond and Chester C. Wright, were indicted on charges of conspiracy to commit first-degree murder while armed (D.C. Code §§ 22-105a,*fn2 -2401*fn3 (1989)), first-degree murder while armed (premeditated) (D.C. Code §§ 22-2401, -3202*fn4 (1989)), obstruction of justice (D.C. Code § 22-722 (a)(1) (1989)),*fn5 first-degree murder while armed (felony murder predicated upon obstruction of justice) (D.C. Code §§ 22-502,*fn6 -722 (a)(1), -3202 (1989)), and assault with intent to commit obstruction of justice while armed (D.C. Code §§ 22-502, -722 (a)(1)), all arising out of the murder of Ronald Richardson, a District of Columbia Corrections Officer. Wright was also charged with possession of a firearm during the commission of a crime of violence (PFCV) and carrying a pistol without a license (CPWL) (D.C. Code §§ 22-3204 (a), (b) (1992)).*fn7 Following a jury trial, both appellants were convicted as charged except that Wright was found not guilty of CPWL. Hammond's principal argument on appeal is that reversal and dismissal of the indictment is required because he was denied his constitutional right to a speedy trial. He also argues that the trial court erred in failing to sever his case from Wright's case and in admitting certain statements made by a co-defendant, Bradley Sweet, who was tried separately. Wright adopts Hammond's speedy trial argument. Further, he argues: (1) that the trial court erred in admitting certain hearsay statements and in excluding others; (2) that he was prejudiced by other crimes evidence and fear expressed by the witnesses; (3) that the evidence was insufficient to convict him; (4) that he was denied due process because the prosecutor pursued conflicting theories against him and a co-defendant in a separate trial; and (5) that all of the offenses of his conviction merge. After carefully considering all of the factors relevant to a speedy trial analysis, we conclude that, in spite of the lengthy delay in this case, appellants were not deprived of their constitutional right to a speedy trial. Finding no other reversible error, we affirm appellants' convictions. We remand to the trial court with instructions to vacate the merged offenses consistent with this opinion and for consideration of Wright's unresolved motion filed pursuant to D.C. Code § 23-110 (1989).
I. Factual and Procedural Background
Ronald Richardson, a corrections officer, was scheduled to testify against Michael Page in a kidnaping trial on October 7, 1991. That morning, as Richardson left his home at 5739 Blaine Street, N.E. to go to court, he was shot and killed as he stood next to the family car. Hammond, Wright, Terrence (Terry) Pleasant, and Bradley Sweet, who were associates of Page, were indicted on June 29, 1992 on charges related to Richardson's murder. Both Hammond and Wright filed motions to sever their cases from that of their co-defendants, which the trial court (Judge Cheryl M. Long) denied. The government voluntarily severed Sweet's case for trial, and the court decided to proceed first with Sweet's trial, scheduling it for February 19, 1993. Neither Hammond nor Wright objected. The court scheduled trial for Hammond, Wright and Pleasant for March 5, 1993.
Sweet's trial was continued, and on March 5, 1993 counsel for co-defendant Pleasant requested a June trial date "on behalf of defense counsel." The government represented that Sweet's trial would not be completed by that time and that defense counsel would not have had an opportunity to obtain and review transcripts and documents from Sweet's trial with only a week between trials. Neither Hammond nor Wright objected to this representation. The court set a new trial date of June 18, 1993. At a status conference held on June 2, 1993, a new attorney was appointed for Wright, and the court considered a new trial date. The government noted that in addition to Wright's change of counsel, there was a possibility that the Sweet trial might be continued and that defense counsel had said that they wanted the "benefit of hearing . . . the evidence [from the Sweet trial] first before going to trial." Again, neither Wright nor Hammond objected to this representation, and a new trial date was set for November 1, 1993. However, this trial date was continued again, first to November 17, 1993, apparently because Sweet's trial had not yet ended. On November 17, 1993, the court was in trial. At a status hearing on November 23, 1993, the court (Judge Long) announced that the Sweet trial had just ended on Friday, November 19, 1993.*fn8
The government then informed the court that the Michael Page case would be tried separately and suggested setting Page's trial in early January and trials for the remaining co-defendants in February or March. However, Hammond's counsel indicated that he had a very complicated, multi-defendant death penalty trial in the District Court that was expected to last four months. After considering the scheduling conflicts, the trial court set the Page trial for January 19, 1994 and appellants' trial for May 9, 1994. During this hearing, Wright's counsel asserted his speedy trial rights. The government noted that Mr. Wright was serving a sentence in another case.
At a status conference on April 14, 1994, co-counsel for Hammond requested a continuance of the May 9th trial date because of the anticipated delivery date for her child and the projected six weeks for the trial of this case. The prosecutor stated that the government was anxious to try the case, and counsel for appellant Wright also stated that he was prepared and anxious to proceed; however, he acknowledged that Wright was serving a sentence in another case. Since appellant Hammond had co-counsel who was expected to try the case, the trial court (Judge Colleen Kollar-Kotelly) denied the request to continue the May 9th trial date. The court vacated the June 6th back-up trial date, and set a back-up trial date for September 23, 1994.
On May 9, 1994, the assigned prosecutor was in trial, and therefore requested a continuance. Although a back-up date of September 23, 1994 had been set, the lead counsel for Hammond was expected to be in trial in the federal court for four to five weeks at that time. Hammond's counsel said that he had no objection to an October or November trial date. Counsel for appellant Wright had a five co-defendant trial starting on September 28, 1994 that was expected to last for two weeks. Co-counsel for Hammond indicated that it would be lead counsel's "preference" to proceed in October, and counsel for Wright stated that any date in October was agreeable to him. The court then scheduled the trial for October 17, 1994.
On October 17, 1994, Pleasant's counsel moved for a continuance because he was in a trial that was expected to take four weeks to complete. Finding it difficult to secure a date convenient for all parties, the trial court suggested proceeding with the trials of the remaining defendants and continuing only Pleasant's case. Not having anticipated this possibility, the prosecutor stated that he was not ready to proceed in the other two cases. There was a suggestion that the case be continued for two weeks. Hammond's counsel stated that he agreed to a continuance of three to seven days, but that a longer continuance would present difficulties for him. Wright's counsel stated that he was prepared to go forward that day, and he moved to dismiss if the government was not prepared to proceed. The trial court denied Wright's motion to dismiss and continued the case for one week until October 24, 1994. On October 24, 1994, the prosecutor was ill, and the case was continued until the next day.
On October 25, 1994, the trial court (Judge Kollar-Kotelly) ruled inadmissible portions of certain statements implicating Hammond, Wright and Pleasant in the crimes charged.*fn9 The government filed a notice of appeal and certification that "the evidence at issue is substantial proof of the charged offenses and that the appeal is not taken for purposes of delay." On November 7, 1994, the government filed a motion to expedite its interlocutory appeal, which was granted on January 25, 1995. The record was completed on March 16, 1995. On September 5, 1995, this court issued an order requiring the government to file its brief in forty days and Hammond and Wright to file their briefs within thirty days. The government filed its brief on October 16, 1995. Hammond's brief was filed nunc pro tunc on November 24, 1995. Wright was directed to file his brief at that time, but Wright did not file his brief until February 20, 1996. The government filed its reply brief on April 5, 1996. The case was argued in the Court of Appeals on April 22, 1996.
On August 15, 1996, this court issued an opinion reversing the decision of the trial court. See Hammond I, supra note 8, 681 A.2d at 1146. This court determined that the appeal was properly before the court and that the trial court had "misconstrued Williamson [v. United States, 512 U.S. 594 (1994)] as creating a per se rule barring admission, under the hearsay exception for declarations against penal interest, of any statement which refers to the criminal conduct of a third party." Id. at 1141. The court therefore remanded the case to the trial court to determine, in conformity with Williamson, "whether each of the statements, and each of the incriminating references to one or more third parties was truly self-inculpatory as to the declarant." Id. at 1146. This court's mandate was issued on September 9, 1996 and is noted as received in Superior Court on September 26, 1996. A status hearing was held in the trial court before Judge Truman Morrison on October 11, 1996. The government asked for two weeks to finalize plea offers, and neither Wright nor Hammond objected. Therefore, the case was continued until October 24, 1996. On October 24, 1996, the case was continued until November 1, 1996 at the request of the parties. At the status hearing on November 1, 1996, both Hammond and Wright asserted their right to a speedy trial. A trial date was set for January 6, 1997 when the case finally proceeded to trial.
B. Government's Trial Evidence
Roxanne Richardson, the victim's wife, testified that on the morning of October 7, 1991, she was at home with her husband, Ronald Richardson, their two daughters, their son, and granddaughter at 5739 Blaine Street, N.E. before Mr. Richardson left for court. She said that he usually drove a Pinto. Mr. Richardson was going to court to testify in a kidnaping case against Michael Page.
Ms. Richardson's daughter, Loncene Wright, testified that she saw her father dressed in a suit before he left for court that morning. After he left, she went back upstairs, and then heard gunshots. She looked out of her second floor bedroom window and saw "three guys" in the street. The men left in a burgundy Dodge Caravan, after two of them entered on the passenger side and another, who had a gun, entered on the driver's side.
Kimberly Hayes, who lived in the neighborhood, testified that at approximately 7:30 a.m. on October 7, 1991, Mr. Richardson was on his porch. She saw two men "jump" out of a burgundy colored Caravan and shoot Richardson once or twice. She said that after one of the two men walked to the passenger side of the van, the driver "walked up" and shot Richardson in the head "several times." The medical evidence confirmed that three shots entered and exited Richardson's head. Hayes identified the driver of the van as Terry Pleasant. Although she had seen only two people, she testified that she did not have a view of the other side of the van.
Michelle Watson testified that she had known Navarro (Tony) Hammond since 1988 and that he had introduced her to Terry Pleasant, Sweet and Chester ("Man") Wright. She stated that in 1991, Terry Pleasant drove a burgundy Dodge Caravan that had a problem with its transmission. On October 5, 1991, the Saturday before Richardson's murder, Ms. Watson and her brother Kevin Watson went to Pleasant's home; that Wright and Pleasant, who was talking on the telephone, were there. She went down the hill and got into Hammond's car. After a while, Pleasant, who appeared to be jolly, joined them in the car, said "go it," and handed Hammond a piece of paper. After everyone left the car, Hammond asked Ms. Watson to "check out" something, and he handed her the piece of paper that Pleasant had given him. The paper had on it an address at 57th and Blaine Street and a license plate number. Ms. Watson recalled that at some point she had heard Pleasant say to Hammond, "Mike said handle that."
Using the burgundy Caravan, Ms. Watson "checked out" the information and found that the license plate at that address belonged to a green Ford Pinto. Later, when Ms. Watson heard about Richardson's murder, she realized that he was connected to the address that she had checked. Soon after the murder, she encountered Sweet, Terry Pleasant, Hammond, and her brother, Kevin, and Sweet said that he had shot the man to the body, and "Man" (Wright) shot him to the head. Hammond also told her that he was around by the school when the murder occurred, saw Terry Pleasant, Wright, and Sweet, and that "when he saw Bradley [Sweet] he knew the job would get done." Ms. Watson testified that while having breakfast at Barnside Restaurant, Wright told her "that he shot the man to the head and Bradley [Sweet] shot him to the body."
Kevin Watson, Ms. Watson's brother, testified that on October 5, 1991, he and his sister went to the home of Terry Pleasant. He stated that his sister got in the car with Hammond. Mr. Watson began working on the transmission of the Caravan while Wright and another person stood nearby. Wright was "talking about giving somebody, you know, all head shots . . . ."*fn10 Watson also recalled that Hammond had approached his sister, handed her a piece of paper and asked her to check out something "before Monday," an address near 58th and Blaine Streets. According to Mr. Watson, he was in the company of Sweet, Terry Pleasant and Hammond later when Sweet said "he shot the bamma to the body . . . Man shot him, stood over him, shot him in the head." He also indicated that Hammond referred to the murder as "my work," and that "when he [Hammond] saw [Sweet] come over the hill with Man he knew everything was taken care of because he could count on [Sweet] taking care of it."
Eric Pleasant (Eric), Terry Pleasant's cousin, testified that he was a former Pentagon employee with a top secret clearance. He said that a few weeks before the Richardson murder, Sweet, Wright, Terry Pleasant, and two others were "planning" to "kill someone." A few days before the murder, he heard "basically the same conversation." Shortly after the murder, Eric went to Terry Pleasant's home, and Terry said, "we got one around your way." Terry Pleasant confirmed that this statement related to the Richardson murder and indicated that it had been done "[f]or Mike," which he repeated a few days later. Eric testified that in a conversation with Wright a few months after the murder, Wright said "Bradley hit him to the body and I hit him to the head." Eric Pleasant also stated that Terry Pleasant told him that the burgundy Caravan had to be destroyed. The van was eventually found, painted blue and burned. The vehicle had a problem with the transmission.
Detective Rita McCoy-Brown testified that Sweet admitted that he was a "hit man" and that "he had done numerous murders." Wright's neighbor, Dawn Brown, testified that she overheard a telephone conversation in which Wright stated, "We did that to the c.o." Brown, who was twelve at the time, asked someone what a "c.o." was, and learned that it meant corrections officer.
Hammond argues that the trial court erred in denying his motion to dismiss the indictment based on the claim that he was denied his right to a speedy trial. He contends that the delay of fifty-four months between indictment and trial presumptively violated his speedy trial rights and that he was prejudiced thereby. While the government concedes that the length of the delay gives prima facie merit to the speedy trial claim, it contends that considering the reasons for the delay, including a successful interlocutory appeal by the government, the complexity of the case, and the lack of prejudice to Hammond, who was incarcerated on other charges during much of this period, the balance of the factors relevant to consideration of Hammond's claim supports denial of his motion to dismiss on speedy trial grounds.
Wright adopted Hammond's speedy trial argument without elaboration. The government contends that Wright's general adoption of Hammond's argument is insufficient to comply with the requirement of D.C. App. R. 28 (a) and raise the issue on appeal. It contends that the speedy trial inquiry is fact-specific and that the facts supporting Hammond's claim do not necessarily support Wright's claim. Further, the government contends that, in any event, since Hammond's claim fails, Wright's claim must fail also.
A. General Legal Principles
"Manifestly, the right to a speedy trial is a fundamental constitutional right." Cates v. United States, 379 A.2d 968, 970 (D.C. 1977) (footnote omitted). To analyze a claim that the right to a speedy trial has been denied, we use the familiar four-pronged balancing test established by the Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). Under the Barker analysis, we consider the following factors: (1) the length of the delay; (2) the reasons for the delay; (3) the assertion of the right by the defense; and (4) any resulting prejudice to the accused. Id. at 521, 530. "These factors are related and must be considered together with other relevant circumstances in 'a difficult and sensitive balancing process.'" Graves v. United States, 490 A.2d 1086, 1091 (D.C. 1984) (quoting Barker, 407 U.S. at 533), cert. denied, 474 U.S. 1064 (1986). The conduct of the balancing process "falls in the first instance to the trial court." Id. In reviewing the trial court's ruling, we are bound by its factual findings, "unless they are plainly wrong or without evidence to support them." Id. (citing D.C. Code § 17-305 (a) (other citations omitted)). We consider de novo the trial court's legal conclusions and will reverse its decision for errors of law. See id.Applying these principles, we consider Hammond's speedy trial claim.
"Delay is measured from the time the individual is formally accused." Graves, supra, 490 A.2d at 1091 (citing United States v. MacDonald, 456 U.S. 1, 6-7 (1982) (other citation omitted)). "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." Tribble v. United States, 447 A.2d 766, 768 (D.C. 1982) (citing Branch v. United States, 372 A.2d 998, 1000 (D.C. 1977) (citations omitted)). After a delay of one year, the burden shifts to the government to justify it. Cates, supra, 379 A.2d at 970 (citation omitted). In this case, both appellants were indicted on June 29, 1992, and their jury trial did not commence until January 7, 1997, about fifty-four months later. The government concedes, as it must, that the length of the delay means that there is prima facie merit to appellants' speedy trial claims and that the burden then shifts to the government to justify the delay.
Different weights are assigned to the various categories of reasons for delay. Barker, supra, 407 U.S. at 531. Generally, these categories distinguish between delays that are neutral, justified and significant. See Graves, supra, 490 A.2d at 1092. In Barker, supra, the Supreme Court instructed concerning the weighing of the types of delay:
A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
407 U.S. at 531. While adhering to the foregoing general framework, "[w]e have, in effect, created an intermediate category of 'significant' delay for government actions deemed less culpable than deliberate foot-dragging to gain tactical advantage but more culpable than the neutral category exemplified by failure to advance trial dates due to court congestion." Graves, 490 A.2d at 1092 (citing Day v. United States, 390 A.2d 957, 968 (D.C. 1978)). Our cases have sometimes identified neutral delays as "neutral plus" or "neutral minus" to indicate that the delay is being weighed more or less heavily against the government. See id. at 1092, 1098 n.12; Turner v. United States, 622 A.2d 667, 675, 677 n.14 (D.C. 1993). For example, a delay resulting from the government's request for a continuance because it could not locate a key witness, without a satisfactory explanation, has been characterized as "neutral plus" delay, while delay occasioned by institutional difficulties of scheduling a block of time when the prosecutor and all counsel could be available has been designated "neutral minus." Graves, 490 A.2d at 1093. Delay that is attributable to a valid reason is justifiable delay and is not weighed against the government at all.*fn11 See id. at 1092, 1098 n.12. Delay resulting from the government's deliberate attempts to create delay and hamper the defense is weighed heavily against the government. See id. at 1092. Governmental delay that is "less culpable than deliberate foot-dragging" but more culpable than neutral delays related to court congestion is considered significant and is weighed "somewhat more heavily than neutral delay." See id. at 1092, 1093. Generally, delays occurring after the assertion of speedy trial rights is accorded greater weight than those that occur before. Id. at 1094.
We evaluate Hammond's speedy trial claims applying these general principles. The procedural history is set forth in some detail in Section I and will be repeated in this section only as necessary for an understanding of our analysis. In the appendix to this opinion, we have summarized our conclusions.
a. June 29, 1992 to October 29, 1992
The indictment was filed on June 29, 1992, and Hammond's arraignment was held on July 13, 1992. The first trial date was set for October 29, 1992 with intervening status dates. Wright, who was in jail in North Carolina at the time, had to be brought in by writ and was not arraigned until January 5, 1993. Appellants concede that the four months between indictment and the first trial date are considered institutional delay, which is not weighed heavily against the government. See, e.g., Tribble, supra,447 A.2d at 769 ("[T]he prosecution cannot be strongly faulted for the inevitable delays which are inherent in the proper and deliberate functioning of the judicial system.") (citation and internal quotations omitted).
b. October 30, 1992 to November 23, 1993
Appellants argue that the delay between the October 29th trial date and the second scheduled trial date of March 5, 1993, occasioned by problems with co-defendants' counsel, and a third trial date of June 18, 1993 as a result of a continuance request by co-defendants Page and Pleasant, should be charged to the government because it chose to join these cases. Further, they contend that the delay should be weighed significantly against the government. However, the record reflects that both Hammond and Wright acquiesced in the delay. Appellants wanted their cases severed from that of the co-defendants, and the government voluntarily severed Sweet's case. The trial court set Sweet's trial for February 19, 1993, and appellants' trial for March 5, 1993. On March 5, 1993, counsel for Page filed a motion to continue the trial in order to file motions related to other-crimes evidence and the admissibility of a letter concerning Hammond. Counsel for Hammond stated that he did not object to the continuance and that he wanted to resolve the motions pre-trial. Wright specifically waived any speedy trial rights at that point. There were representations that appellants wanted the Sweet trial completed in order to have the benefit of the transcripts and evidence from his trial in preparation for their own trial. The trial court set motions deadlines for March 26th, a date for the government's response on April 12th, a motions hearing for May 12th, and a trial date of June 18, 1993. At a status hearing on June 2, 1993, the trial date was continued until November 17, 1993 because Wright had changed counsel and there was a possibility that Sweet's trial would be continued. Again, neither Wright nor Hammond objected to the government's representation that it still wanted the Sweet case to go first to have the benefit of records from that case. Sweet's trial was not completed until November 19th, and a status hearing was held in this case the following Monday, November 23rd.
None of the foregoing delay falls into the category of significant delay attributable to the government. Much of the delay resulted from requests of the co-defendants for a continuance, the difficulties associated with scheduling, and the preference for having the Sweet trial go first. Appellants are correct that we have said that the government bears responsibility for delays occasioned by requests of co-defendants, since the government chooses to try defendants jointly. See Ruffin v. United States, 524 A.2d 685, 689-90 (D.C. 1987) (citations omitted). However, we have also said that "in light of the policy considerations favoring joinder, this responsibility does not weigh heavily against the government." Id.at 689(citing Adams v. United States, 466 A.2d 439, 444-45 (D.C. 1983)). Moreover, where, as here, a defendant has acquiesced in the delay, the period will not be weighed heavily against the government. See Tribble, supra, 447 A.2d at 769; see also Freeman v. United States, 391 A.2d 239, 241 (D.C. 1978) ("Acquiescence in delay by not objecting to it will result in minimal weight being accorded to that period.") (citation omitted). For these reasons, we consider the period discussed in this section to be "neutral" and not weighed heavily against the government.
c. November 23, 1993 to May 9, 1994
On November 23, 1993, Hammond was awaiting a verdict in a trial in federal court.*fn12 At a status hearing in this case on that date, the government sought to try co-defendant Page before the remaining defendants. The court was unavailable because it was already in trial in a preventive detention case, which would resume after Thanksgiving and require all of the following week to complete. Appellants' trial could not be held in December or January because of its length,*fn13 two court training days and holidays in December, the unavailability of the judge after the 21st of December, and the unavailability of counsel for Pleasant on December 20th & 21st and all of January. The government suggested having the Page trial proceed in early January and the trials for the remaining defendants in late February or March. The court set the Page trial for January 19th to accommodate his counsel's schedule. The government proposed February 28th or March 7th for appellants' trial date. However, lead counsel for Hammond had a death penalty case set for February 7th which was expected to last for four months. The court offered April 11th, but Hammond's counsel was again unavailable. Ultimately, the parties agreed on a trial date of May 9th and a back-up trial date of June 6th.
Hammond argues that all of the delay during this period should be chargeable to the government, although not weighed heavily, because the conflicts could have been avoided, and he had moved for severance in an effort to go to trial. Insofar as the trial could not be held in November and dates in December due to the court's involvement in another trial and court training days, the delay must be considered neutral. See Turner, supra, 622 A.2d at 676 (delay for "judge's attendance at a judicial conference is neutral delay"); Graves, supra, 490 A.2d at 1097 (Delay is considered neutral where the trial court is unavailable because of involvement in another trial.). The government bears responsibility for delay caused by its decision to sever and try the Page case first, which would ordinarily be charged as significant. See Lemon v. United States, 564 A.2d 1368, 1377 (D.C. 1989) (prosecutor's unavailability for trial significant and charged to government). However, Hammond and Wright did not object to this procedure, and therefore, may be said to have acquiesced in it by silence. Where a defendant acquiesces in the delay, the period will not be weighed heavily against the government. See Tribble, supra, 447 A.2d at 769; see also Freeman, supra, 391 A.2d at 241. Earlier trial dates could not be scheduled in large measure because of Hammond's counsel's schedule, as well as the schedules of the other defense lawyers. These factors would prevent weighing the delay heavily against the government. See Turner, supra, 622 A.2d at 677 (Delay resulting from government's unpreparedness, customarily chargeable as significant delay, where prolonged by defense counsel's scheduling difficulties is weighed less heavily than significant delay.). Scheduling conflicts of counsel and the court's docket prolonged the delay. This period should be treated, therefore, as "neutral plus" delay at best. See id. at 677 n.19.
d. May 9, 1994 to October 17, 1994
On May 9, 1994, the government requested a continuance because the prosecutor was in trial on another matter. Prosecutorial delay due to conflicting trial dates is considered significant delay. See Lemon, supra, 564 A.2d at 1377. Ordinarily, the delay during this period must be weighed against the government, but not as heavily as purposeful delay. See Graves, supra, 490 A.2d at 1092, 1093. In this case, the original back-up trial date, scheduled in June, was reset until September 23rd to accommodate Hammond's co-counsel's pregnancy and the unavailability of his other attorney. Because both of Hammond's attorneys and Pleasant's ...