Appeals from the Superior Court of the District of Columbia (F12536-93, F3131-94 & F12661-93) (Hon. Arthur L. Burnett, Sr., Trial Judge) .
The opinion of the court was delivered by: Reid, Associate Judge
Before FARRELL, REID, and GLICKMAN, Associate Judges. Opinion for the court by Associate Judge REID.
Opinion of Associate Judge GLICKMAN, dissenting in part, at page 44.
These are consolidated appeals by appellants Thadduse Lee Hartridge,*fn1 James Thomas Cullison, and Mark A. Ford.*fn2 They were charged with first- degree murder while armed (premeditated) of Andre Wynn, in violation of D.C. Code §§ 22-2401, -3202 (1996);*fn3 possession of a firearm during a crime of violence (PFCV), in violation of § 22-3204;*fn4 and carrying a pistol without a license (CPWL), in violation of § 22-3204 (a).*fn5 They were convicted of the lesser-included charge of second-degree murder while armed, as well as the weapon charges.*fn6 All of the appellants claim that the trial court (1) improperly allowed the introduction of "other crimes" evidence against them; (2) permitted improper argument by the prosecutor; and that (3) their conviction for carrying a pistol without a license violated their Second Amendment constitutional right to bear arms. Mr. Hartridge also claims that the indictment against him should be dismissed with prejudice because he was denied his Sixth Amendment constitutional right to a speedy trial. Mr. Cullison argues, in addition, that the trial court erred (1) by not granting his motion for judgment of acquittal on the ground that the evidence was insufficient as a matter of law to establish his guilt; and (2) by not disallowing a government witness's identification of him because of an impermissibly suggestive photo array.*fn7 Mr. Ford also contends that the trial court improperly admitted into evidence the grand jury testimony of a witness, who asserted that Mr. Ford confessed killing Mr. Wynn, even though that witness recanted her grand jury testimony at trial. We affirm the convictions as to all of the appellants.
The government presented evidence showing that Andre Wynn was shot to death on November 8, 1993. Leon Shannon testified that he had known Mr. Hartridge, whom he identified in court, for "three or four years maybe," and saw him twice on the day of Mr. Wynn's murder -- once in the morning in the "cut leading out to the 200 block of K Street," (in the Southwest quadrant of the District of Columbia) and the second time, later that same day in "[t]he 200 block of K Street" when Mr. Wynn was shot. Mr. Wynn was the "uncle of [Mr. Shannon's] two kids." Mr. Hartridge, who "wasn't acting normal" asked Mr. Shannon how his friend, Shannon Battle, "g[o]t locked up." Mr. Hartridge was "angry." Later, Mr. Shannon observed Mr. Wynn and Mr. Hartridge "close" together and "talking"; his view was unobstructed. The men had "words" and Mr. Hartridge "punch[ed] [Mr. Wynn] in the face."
When Mr. Wynn hit Mr. Hartridge, Mr. Hartridge "told [the person who was with him, identified by Mr. Shannon as Mr. Ford] to bust him, kill his a**." Mr. Ford "pulled out a 9-millimeter [gun and] shot [Mr. Wynn] down." Mr. Shannon stated that Government Exhibit 35, a 9-millimeter gun, "looked just like" the one used during the shooting. Mr. Ford shot Mr. Wynn "several times."
A couple of days after the shooting, Mr. Shannon met with Metropolitan Police Department ("MPD") Detective Willie Toland who showed him "two sets of photographs." Mr. Shannon picked Mr. Hartridge out of the first set of photographs, and Mr. Ford from the second set, as the men he saw in the 200 block of K Street on the day of Mr. Wynn's murder. He was "sure" of his identification of these two men.
Mr. Shannon acknowledged on direct examination that he was convicted in 1991 on a charge of possession of cocaine. On cross-examination, defense counsel sought not only to cast doubt on his credibility, but also to raise questions as to the reasons why he was a government witness. For example, he was asked about his September 1995 arrest for possession of marijuana, and his arrest on February 28, 1996, five months before trial in this case, for assault. Both cases were dropped by the prosecution. In addition, Mr. Shannon confirmed that he lived with Mr. Wynn's sister and they have two children. He also acknowledged that he told an investigator for the Public Defender Service that he did not see who fired the shots that killed Mr. Wynn. He explained that he "was not telling [the PDS investigator] nothing in the streets . . . in front of all [those] people." Counsel for Mr. Ford attempted to demonstrate that Mr. Shannon did not actually see who shot Mr. Wynn, and that he did not really identify Mr. Ford's photo as the shooter. And counsel for Mr. Hartridge sought to establish that Mr. Shannon did not hear his client speak with Mr. Wynn on the day of his murder, that he had not described the events of that day accurately, and that he and Mr. Wynn were selling drugs on that day. Both counsel for Mr. Ford and Mr. Hartridge emphasized Mr. Shannon's three- week delay before speaking with the MPD.
Prior to the day of Mr. Wynn's murder, Theresa Givens, another government witness, had seen Mr. Hartridge with two different guns, one which was silver and another which was black and had a brown handle. However, the trial court precluded any testimony, in the presence of the jury, about two guns, or a gun with a silver handle. When she testified before the jury, Ms. Givens identified a picture of Mr. Wynn and related what she saw on the day of his murder.
Ms. Givens was standing near the corner of Delaware Avenue and K Street, when she heard a gunshot. She saw Mr. Wynn "standing up in the street in the middle . . . and [he was] turning around in the middle of a circle saying ouch . . . . He fell to the ground." Mr. Hartridge and Mr. Cullison were standing "[o]ver top of [Mr. Wynn]." While Mr. Hartridge and Mr. Cullison were standing over Mr. Wynn, with their backs toward Ms. Givens, she heard gunfire and witnessed the men "unloading the gun." Mr. Hartridge and Mr. Cullison "went hand-to-hand to each other like they were switching something around." Mr. Hartridge also "was kicking" Mr. Wynn. Mr. Ford was standing nearby in the "cut."
When asked whether she had seen Mr. Hartridge with a gun prior to the day on which Mr. Wynn was shot, Ms. Givens declared that she had seen him with a gun "in [her] mother's house two days before the [shooting]." Sometime after Mr. Wynn's murder, Ms. Givens picked out photographs of Mr. Cullison and Mr. Ford. When shown another group of photographs, Ms. Givens did not tell the police that she recognized the picture of Mr. Hartridge, even though she did, because she "was terrified."
Kivory P. Proctor testified that he was in a back alley on K Street, Southwest on the morning of the day Mr. Wynn was killed. He watched as the police arrested Shannon Battle "in the cut away of Delaware Avenue." About twenty minutes later, he saw Mr. Hartridge, whom he had known for about eight years, in the same back alley with Datwon Paris, Mr. Ford and Mr. Cullison. The men were standing near the home of Mr. Paris' girlfriend. Mr. Hartridge had Mr. Paris "by the collar of the shirt." Mr. Cullison was "within a foot" of Mr. Paris and "had a gun in his hand." It was a "small handgun, black." Mr. Proctor left the alley and eventually walked towards the "cut away" at Delaware and K. There he saw Mr. Wynn "lying on the fence." Mr. Hartridge was "[s]tanding in front of [him]." He also saw Mr. Ford and Mr. Cullison nearby. He spoke with Mr. Wynn and Mr. Hartridge, and then went "[a]cross the street." He "heard gunshots" and "turned around to see where they were coming from." He saw Mr. Ford "shooting the gun, shooting [Mr. Wynn]." Mr. Wynn fell to the ground, and Mr. Proctor "continued to go around the corner to get away from the gunshots." He heard more gunshots, the last three of which were "slower and louder."
Mr. Proctor gave a statement to the police approximately two days after the shooting, but did not identify anyone because he "was afraid to" and "didn't want to get involved." Soon after he gave the statement, he was shown a photo array but did not identify anyone, even though he recognized Mr. Hartridge's picture. However, on December 21, 1993, he attended a lineup and identified Mr. Ford. Some time in February 1994, Mr. Proctor viewed a photo array and picked out Mr. Hartridge. And, on a date that he did not recall, Mr. Proctor was shown other photos and picked out Mr. Cullison.
On the day of the November 1993, murder of Mr. Wynn, Datwon Paris, who had two prior drug convictions (attempted distribution in 1994 and possession with intent to distribute in 1994, as well as a conviction in 1994 for transporting a hand gun during a drug offense), lived in the 900 block of Delaware Avenue, S.W. He saw Mr. Hartridge, whom he identified in court, in a cut beside his house on the day of the murder. Mr. Hartridge was standing with a man named Shannon Battle. When the police arrived on the scene, Mr. Battle "ran through the cut" but was apprehended and "got locked up for having a handgun on him." Mr. Hartridge "started . . . going off . . ., acting wild, talking to the police . . .," but Mr. Paris did not hear what Mr. Hartridge was saying. Mr. Paris identified Mr. Cullison and Mr. Ford as persons who also were on the scene.
After Mr. Battle was taken into custody, Mr. Paris went to the alley in back of his house. There he saw Mr. Hartridge, Mr. Cullison and Mr. Ford. Mr. Hartridge was "[r]ight in front of [his] face." Mr. Ford stood beside him and Mr. Cullison was "to [his] back," "right behind [him]." Mr. Paris "saw a gun" in Mr. Ford's hands, and "[a] gun . . . [a] .38" in Mr. Cullison's hands. Mr. Paris then returned to his home, but exited his home a few minutes later and stood in the front. From there he heard gunshots, "spaced apart." The first shots sounded as though they came from "a semiautomatic gun" and the next shots from a revolver. Mr. Paris returned to the inside of his home and looked out the back window where he could see the alley. He saw Mr. Cullison "running" with a gun in his hand. Mr. Cullison reversed direction and Mr. Paris saw him "[r]unning back towards the same way he came." Mr. Paris also witnessed Mr. Hartridge "run in a car" which was "parked out back."
Appellant Hartridge's Speedy Trial Claim
Mr. Hartridge's "chief claim . . . is that the trial judge erred in denying him a speedy trial in conformance with the Sixth Amendment" to the Constitution of the United States. We begin with the factual context for Mr. Hartridge's claim.
Less than one month after the murder of Mr. Wynn, on December 3, 1993, Mr. Hartridge was presented to the court and ordered to be held without bond. On April 12, 1994, Mr. Hartridge was arraigned and demanded a speedy trial. Counsel for Mr. Hartridge requested a severance in order to expedite his trial date, but the trial court scheduled trial for Mr. Ford and Mr. Hartridge for August 22, 1994.*fn8 At a status hearing on July 19, 1994, Mr. Ford and Mr. Cullison requested a continuance; Mr. Hartridge objected, but the government did not. The trial court granted the request for a continuance, and a new trial date was set for November 14, 1994.*fn9
During an apparent status conference on October 6, 1994, counsel for Mr. Hartridge expressed concern that the new trial date not be altered. And, the trial court mentioned counsel's assertion that "his client . . . [was being] depriv[ed] of his right to a speedy trial. . . ." On November 14, 1994, the trial judge had to postpone the trial until November 15. But on November 15, Mr. Ford's counsel asked for a thirty-day continuance, which the government and Mr. Hartridge opposed. Without ruling on the motion, the trial court reconvened the following day for a motions hearing. On that day, the trial court indicated that it would hear the motions, but would anticipate a new trial date in December. Eventually, due to scheduling conflicts, the new trial date was set for April 10, 1995.
By January 1995, a new trial judge and a new prosecutor had been assigned to the case. A new trial date of May 31, 1995 was set at a January 27, 1995 status conference.
Counsel for Mr. Ford had scheduled leave from January 15, 1995, to March 15, and would be unavailable for trial beginning on March 4. The parties and the trial judge met on April 14, 1995. The necessity of moving the May 31 trial date was discussed. Mr. Hartridge again sought a severance so that he could proceed to trial on May 31; his request was denied. A new trial could not be scheduled before October 16, 1995, due again to scheduling conflicts.
Approximately one month after the April 14th conference, Mr. Hartridge filed a "motion to dismiss on speedy trial grounds," requesting a dismissal of the indictment against him, or in the alternative, a severance and trial on the scheduled May 31 date. He provided a partial chronology of events and pointed out, in part, that he had been "continuously incarcerated since his arrest," had "never requested a continuance in his trial," and was "scheduled for trial nearly 22.5 months after his arrest."*fn10 The government opposed the motion on June 19, 1995, emphasizing that "[j]oinder of cases is favored," and that "[a] period of institutional delay caused by the necessity of a large number of attorneys to coordinate their schedules with a busy trial judge should not be weighed heavily in a case as complex as this one." On June 23, 1995, counsel for Mr. Hartridge reminded the trial court about his speedy trial motion, and the alternative motion for a severance. The court observed that trial was scheduled to go forward on October 16, and inquired whether counsel was "sure [his] severance motion ha[d] significant merit." Counsel responded that he "was requesting a severance not because of independent basis for a severance . . ., but . . . so that [his] client, who has objected to the continuances, could go forward ahead." The trial judge acknowledged that he had not "formally definitively ruled, but [that he was] not too apprehensive about the speedy trial issue," because he had "cases with higher priority."
At a status hearing on September 12, 1995, counsel for Mr. Ford and Mr. Cullison announced that they no longer would represent their respective clients.*fn11 Counsel for Mr. Hartridge asserted that his client "want[ed] to go to trial on the 16th of October" and had lodged a motion to dismiss. The trial court acknowledged his position saying, "you don't want to be dragged along and be denied speedy trial rights." Mr. Hartridge personally addressed the court, stating: "I would like to go to trial. I've been waiting on a trial date. I've had numerous . . . trial dates set. I haven't yet been to trial. . . ."
By September 29, 1995, it was obvious that further delay would occur because neither counsel for Mr. Ford nor Mr. Cullison could be ready by the October trial date; nor by the date of November 13, 1995, which the trial court suggested. At the court's request, counsel for Mr. Hartridge voiced the prejudice he believed Mr. Hartridge would suffer in the event of further delay. The trial court was unpersuaded that delay would prejudice Mr. Hartridge, and announced a new trial date of January 29, 1996, but backed off of that date somewhat when counsel for Mr. Ford expressed uncertainty about his ability to be ready by that date. On January 25, 1996, the trial court confirmed that the trial could not commence on January 29, 1996, both because of the unreadiness of Mr. Ford's counsel, and the probability that the trial judge would not be through with another trial by that time. Counsel for Mr. Hartridge renewed his request for a severance, to permit his trial to go forward on January 29, 1996. The government expressed strong opposition to a continuance, as well as a severance.*fn12 The trial judge picked a new trial date of March 1, 1996. Proceedings in preparation for trial took place on March 7, 1996, and extended hearings on motions began on March 12 and did not end until June 7; jury selection began three days later.
It is axiomatic that "'the right to a speedy trial is a fundamental constitutional right.'" Hammond v. United States, 880 A.2d 1066, 1079 (D.C. 2005) (quoting Cates v. United States, 379 A.2d 968, 970 (D.C. 1977)) (footnote omitted). This court's approach to a speedy trial claim was delineated in its en banc decision in Graves v. United States, 490 A.2d 1086 (D.C. 1984). We generally follow the "framework . . . established by the Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972)." Id. at 1090. Barker "identified four factors which are to be examined: the '[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.'" Graves, 490 A.2d at 1090-91 (quoting Barker, 407 U.S. at 530). The Barker "factors are related and must be considered together with other relevant circumstances in 'a difficult and sensitive balancing process.'" Graves at 1091 (quoting Barker, 407 U.S. at 533). Moreover, "any inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case." Barker, 407 U.S. at 522. In that regard, "'[t]he right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.'" Id. (quoting Beavers v. Haubert, 198 U.S. 77, 87 (1905)). In reviewing the trial court's findings and conclusions, "we are bound by its findings of fact unless they are plainly wrong or without evidence to support them," but "[w]e may reverse . . . for errors of law." Graves, supra, 490 A.2d at 1091 (citing D.C. Code § 17-305 (a) (1981)) (other citations omitted).
"Delay is measured from the time the individual is formally accused," or arrested. Graves, 490 A.2d at 1091 (citations omitted). Mr. Hartridge was arrested on December 3, 1993, for the murder of Mr. Wynn. Hearings on defense motions began on March 12, 1996, and continued largely uninterrupted until June 7, after which jury selection began and continued, with occasional breaks, until July 3. Trial began on July 9. Thus, correctly treating the start of the motions hearings as the commencement of trial, Mr. Hartridge asserts that there was a delay of approximately a week more than 27 months between his arrest and the start of trial. We regard a delay of "a year or more" to be prima facie evidence of a speedy trial violation, which creates a presumption of prejudice to the defendant. See Hammond, supra, 880 A.2d at 1079 (citing Tribble v. United States, 447 A.2d 766, 768 (D.C. 1982)) (other citation omitted); Moore v. United States, 675 A.2d 71, 74 (D.C. 1994). "[T]he government's burden in arguing that no violation has occurred increases in proportion to the length of the delay." Graves, supra, 490 A.2d at 1091 (citations omitted). "However, the more serious and complex the charge, the greater is the delay that will be tolerated." Id. (citations omitted). We noted in Graves that "[w]hile the 25-month delay [there] was substantial, . . . delays of roughly that length and longer have been countenanced by this court when all factors were considered." Id. at 1091 & n.7. Indeed, in Cates, supra, the delay was 59 months, in Hammond, supra, 54 months, and in Jones v. United States, 483 A.2d 1149 (D.C. 1984), 34 months; we affirmed the convictions in those cases for different reasons.
In examining and weighing the reasons for delay, we have focused on "'a deliberate attempt to delay the trial,'" "'a more neutral reason such as negligence or overcrowded courts,'" "'a valid reason, such as a missing witness,'" Graves, supra, 490 A.2d at 1092 (quoting Barker, supra, 407 U.S. at 531), and "'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," id.(citations omitted). We have on occasion divided the neutral delay category into "'neutral plus' or 'neutral minus' to indicate that the delay is being weighed more or less heavily against the government." Hammond, supra, 880 A.2d at 1080 (citing Graves, supra, 490 A.2d at 1097-98 n.12). For example, "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.'" Id. (citing Graves, 490 A.2d at 1093).
In applying these standards to the case before us, we note at the outset that an August 22, 1994 trial date was set initially for Mr. Hartridge. Had the trial actually occurred on this date, any allegation of a speedy trial violation undoubtedly would have been rejected. Mr. Hartridge and the government agree that the first period of delay occurred between August 22, 1994 and November 14/15, 1994, a period of 84-85 days. Although Mr. Hartridge objected to Mr. Ford's and Mr. Cullison's July 19, 1994 request for a continuance, and Mr. Ford's motion on November 15 for an additional continuance of 30 days, in his brief he "concedes" that the continuance between August 22, 1994, and November 14, 1994, "in and of itself, would not constitute a violation of his right to a speedy trial." Although Mr. Hartridge does not regard this initial period of delay as a violation of his right to a speedy trial, he nevertheless maintains that "the cumulative effect" of the total delay must be considered.
As Mr. Hartridge notes in his brief, the trial court conducted certain motions hearings between November 15, 1994 and December 13, 1994, and this period "was not technically a continuance of the trial."*fn13 The second period of delay on which he focuses is the 118-day period between December 13, 1994 and April 10, 1995, and the period between April 10, 1995 and May 31, 1995.*fn14 During this period, the case was transferred to a new trial judge in January 1995, and the assigned prosecutor also announced his resignation in January. In addition, counsel for Mr. Ford was on scheduled leave from January 15 to March 15, 1995, and contended that he would not be ready for trial until May 1995. Mr. Hartridge acquiesced in the delay, until May 31, 1995. Despite Mr. Hartridge's acquiescence only until May 31, the period between December 13 and April 10 reflects "neutral minus" delay, because of "institutional difficulties of scheduling a block of time when the prosecutor and all counsel could be available." Hammond, supra, 880 A.2d at 1080.
Mr. Hartridge and the government differ in their characterization of the delay between May 31, 1995, and March 12, 1996. Mr. Hartridge insists that "the combined delays from 5-31-95 until 3-4-96, a period of 288 days, over nine months, should count heavily against the government" (emphasis in original). He asserts that he objected to these delays, and that the delay continued only because of "the government's insistence on keeping the three co-defendants joined directly" (emphasis in original). He emphasizes that the government told the trial court on two occasions that it "was willing to take its chances on appeal and that it believed there would be no problem with Appellant's speedy trial rights if Appellant were kept joined to the co-defendants who were requesting continuances." Relying on cases outside this jurisdiction, with one exception,*fn15 Mr. Hartridge declares that "the weight of authority appears to support Appellant's position that a defendant's constitutional right to a speedy trial 'trumps' any interests in judicial efficiency occasioned by necessary delays in bringing a co-defendant to trial, at least where the defendant actively seeks a speedy trial through a motion to sever." Yet, he cites only six cases in support of his "weight of authority" assertion.
Under the circumstances of this case, we conclude that Mr. Hartridge's insistence on severance of his case to safeguard his right to a speedy trial, may not "trump" the government's efforts to try the legally joined defendants together, especially in light of the prosecutor's representations, which the trial court did not discount, that his witnesses had already requested protection and would be extremely reluctant to testify twice. See note 12, supra. The trial court broached the issue of severance with counsel for Mr. Hartridge on June 23, 1995, when Mr. Hartridge reminded him of his pending motion for dismissal of the indictment on speedy trial grounds, or in the alternative, for severance. The trial judge asked whether he was "sure [his] severance motion ha[d] significant merit." Counsel candidly admitted that he "was requesting a severance not because of independent basis for a severance . . ., but . . . so that [his] client, who had objected to the continuances, could go forward ahead." Counsel did not argue that there were grounds for a severance motion under either Super. Ct. Crim. R. 8 (a) (joinder of offenses) and (b) (joinder of defendants), or Rule 14 (prejudicial joinder), only that the severance motion was a way of proceeding with an earlier trial date for his client.
Balanced against Mr. Hartridge's efforts to advance his client's constitutional interest in a speedy trial is the government's desire for joinder of all defendants in the same proceeding. "[J]oinder of cases is favored, where appropriate, because it fosters efficient use of judicial and prosecutorial resources and decreases the burden on citizens who are called as witnesses." Adams v. United States, 466 A.2d 439, 445 (D.C. 1983) (citing Ready v. United States, 445 A.2d 982, 985 (D.C. 1982), cert. denied, 460 U.S. 1025 (1983)). Where the government espouses a policy of trying defendants jointly, our cases assign "some responsibility," Ruffin v. United States, 524 A.2d 685, 688 (D.C. 1987), to the government for the delay in a defendant's trial, but "in light of the policy considerations favoring joinder, this responsibility does not weigh heavily against the government." Id.at 689 (citing Adams, supra, 466 A.2d at 444-45). Even in Townsend, supra, where the government delay was traceable to its endeavor "to build a case [against a potential defendant] so that all three defendants could be tried jointly," and we said that "the proffered reason does not excuse the delay or render it neutral," we declared that the delay "does not weigh heavily against the government, as it was not intended to gain a strategic advantage as such over [the appellant], but rather was apparently intended to realize the generally recognized benefits that attend joint trials." 512 A.2dat 999. While the government expressed opposition to some of the continuances in this case, it steadfastly advocated a policy of joint trials. Delay alone does not point to a speedy trial violation because the right to a speedy trial "is consistent with delays and depends on circumstances." Barker, supra, 407 U.S. at 522. Whether a point was reached in this case where that policy of a joint trial should have yielded to Mr. Hartridge's constitutional right to a speedy trial depends, we believe, upon the strength of Mr. Hartridge's assertion of his right to a speedy trial and the prejudice to him traceable to the delay in his trial.
Mr. Hartridge's Assertion Of His Right To A Speedy Trial
Mr. Hartridge made an oral demand for a speedy trial during his arraignment on April 12, 1994, but he did not make a written demand until more than one year later, on May 15, 1995, and some seventeen months after his detention. Although the question of Mr. Hartridge's speedy trial right was raised at other times and there is little doubt that Mr. Hartridge opposed delay in his trial, the record shows that on two occasions, October 6, 1994 and September 12, 1995, the respective trial judges rather than counsel for Mr. Hartridge uttered the words, "speedy trial." And, on at least one occasion, January 27, 1995, Mr. Hartridge did not oppose a continuance requested by counsel for Mr. Ford. Thus, it is not altogether accurate to say, as does Mr. Hartridge, that he "continuously" demanded a speedy trial. We have said previously that "the assertion of the right must be considered in light of its 'frequency and force.'" Hammond, supra, 880 A.2d at 1086 (citing Dickerson v. United States, 650 A.2d 680, 685 (D.C. 1994)). Here, the weight to be given Mr. Hartridge's assertion of his right to a speedy trial is diminished by his delay in a written assertion, the lack of "a direct assertion of the right," Dickerson, supra, 650 A.2d at 685 (citations omitted) during at least two status conferences, and his decision not to object to a continuance in January 1995, see Hammond, supra, 880 A.2d at 1086.
Prejudice To Mr. Hartridge
Relying on prejudice factors identified in Barker, supra, 407 U.S. at 532, Mr. Hartridge argues that he was prejudiced by his pre-trial incarceration of "2 years, 3 months and 9 days." During this period he experienced "anxiety and concern," as evidenced by his brutal beating by correctional officials and "permanent scarring to his back and hands. In addition, he "was falsely accused of attacking several corrections officers and was held in solitary confinement . . . or at the isolation cellblock at the [D.C.] jail" for a substantial period of time before trial.*fn16 He claims that his defense was hindered or impaired because "studies . . . have shown that defendants held without bond have a lesser chance of prevailing at trial," and that "the government use[d] . . . the time gained from all of the continuances . . . to develop and improve its case." The government emphasizes that the trial court denied Mr. Hartridge's post-trial motion relating to his speedy trial contention, in part because Mr. Hartridge did not "suffer 'specific prejudice by way of loss of witnesses.'"
Mr. Hartridge was subjected to a long period of pre-trial incarceration, but "[t]he passage of time alone . . . is not dispositive," Lemon v. United States, 564 A.2d 1368, 1377 (D.C. 1989) (citation omitted), and "greater . . . delay . . . will be tolerated" in cases involving "more serious and complex . . . charge[s]," here a charge of first-degree murder while armed (premeditated). Id. (citing Graves, supra, 490 A.2d at 1091). With respect to the anxiety and concern Mr. Hartridge allegedly suffered from an assault at the D.C. jail, as the government points out, "[a] grand jury found probable cause to believe that he had assaulted guards at the jail." He was tried on felony charges for the assault, acquitted on some and the jury deadlocked on others. Although Mr. Hartridge may have suffered some anxiety and concern as a result of his alleged beating and permanent scarring, we have said previously that an "appellant's other contact with the criminal justice system . . . lessens any anxiety . . . pending charges caused him." Turner v. United States, 622 A.2d 667, 679 (D.C. 1993). Mr. Hartridge had several juvenile delinquency adjudications, and had two pending misdemeanor cases when he was arrested. Moreover, as in Turner, Mr. Hartridge "makes no attempt to allege any particularized harm -- psychological, economic, or other -- to his family relationships, mental well-being, job prospects, or any other aspect of his life." Id. (footnote omitted). See also Hammond, supra, 880 A.2d at 1087 (an appellant "must show that 'the alleged anxiety and concern had a specific impact on [his] health or personal or business affairs'") (citation omitted)).
Most telling, however concerning the prejudice prong, Mr. Hartridge's argument relating to the impairment of his defense lacks specificity. He had witnesses present at trial but chose not to present them; nor did he identify any potential witness whom he may have lost because of the delay in his trial. "The absence of this most serious form of prejudice weighs heavily in our determination of whether appellant was deprived of his right [to a speedy trial]." Turner, supra, 622 A.2d at 679 (citing Graves, supra, 490 A.2d at 1103 (other citations omitted)). Any improvement in the government's case during the period of delay would not establish an impairment of Mr. Hartridge's defense. See Barker, 407 U.S. at 516-18.
Our dissenting colleague concedes, as he must, that possible impairment of the accused's defense is "the most serious [form of prejudice]" the speedy trial right protects against, "because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Barker, supra, 407 U.S. at 532. But he largely discounts the absence here of any showing of prejudice of this kind by relying on Doggett v. United States, 505 U.S. 647 (1992), a case in which "egregious persistence [by the government] in failing to prosecute the defendant" led to a delay of nearly 8 1/2 years between his indictment and trial -- a delay "six times as long as that generally sufficient to trigger judicial review" of a speedy trial claim. Id. at 657-58. Key to the court's analysis in Doggett was the government's "inexcusable oversights" in attempting to track down and arrest the accused, id.at 657, for as the Court pointed out, "if the Government had pursued Doggett with reasonable diligence from his indictment to his arrest, his speedy trial claim would fail . . . as a matter of course however great the delay, so long as Doggett could not show specific prejudice to his defense." Id.at 656 (emphasis added).
In this case, no comparable degree of fault can be assigned to the government in failing to bring Mr. Hartridge to trial earlier. Mr. Hartridge was charged with committing a murder not by himself but with the aid of confederates, and in such circumstances, as this case aptly demonstrates, the difficulty a trial court has in attempting to schedule a reasonably timely date of trial when all of multiple defense counsel are available can be severe. Nor is that difficulty met by easy recourse to severance of defendants, for that disregards society's important interest in having persons charged with jointly committing grave offenses tried together. See Ruffin, supra, 524 A.2d at 688. On the other side of the balance, of course, is that Mr. Hartridge -- unlike the accused in Doggett -- was incarcerated before trial. But while we do not minimize the anxiety and disruption to his life that Mr. Hartridge endured while detained, Doggett nevertheless implies -- consistent with Barker and our own decisions -- ...