Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 75 Cr 49 Bernard M. Decker, Judge.
Cummings, Sprecher and Wood, Circuit Judges.
Defendant-Appellant (hereafter referred to as defendant) Hardeman Jackson was convicted for assaulting a postal employee in violation of 18 U.S.C. § 111. Defendant raises the following questions on appeal: whether the defendant's right to a speedy trial was violated; whether statements made by the Government during closing argument require a new trial; whether the trial court erred in refusing to submit a special interrogatory to the jury; whether the court below improperly limited the scope of voir dire; and whether the evidence was sufficient to prove defendant's sanity beyond a reasonable doubt.
The facts in this case briefly are as follows:
On the morning of November 21, 1974, at 8:30 or 9:00 a.m., defendant visited the Main Post Office Building in response to a Postal Service notice informing him of available jobs in the Postal Service. Olivia Batteast, an employee of the Post Office, informed defendant that he needed a particular form for veterans before he could be appointed as a postal employee. Ms. Batteast suggested that defendant could procure this form from the Veterans' Administration Office. Defendant then left Ms. Batteast's office.
Later that day defendant returned to Ms. Batteast's office and told her that it would take some time for the Veterans' Administration to obtain the form. Ms. Batteast then explained that this was a temporary appointment and that Jackson would be called again when his grade was reached. Jackson stated, "That means that you are not going to give me the job." Ms. Batteast replied, "I don't make the rules and regulations, I just have to follow them so I can't appoint you without having the proper forms."
Defendant then pulled out a gun and shot Ms. Batteast above the right eye. Defendant escaped down the corridor outside Ms. Batteast's office and discarded the gun and shoulder holster as he ran.
The parties stipulated at trial that the gun which the Government introduced in evidence was the weapon with which Defendant Jackson shot Olivia Batteast. (Gov. Ex. 8).
Defendant was arrested 23 hours later in Wilson, Kansas.
At trial defendant relied solely on the defense of insanity.
After discharge of the jury, defendant moved for Judgment of Acquittal on the grounds that his trial was unnecessarily delayed in violation of his Sixth Amendment Right to a Speedy Trial. On appeal, defendant asserts that the district court should have allowed his Motion for Judgment of Acquittal.
The following is a brief summary of the time sequence and events leading up to the beginning of defendant's trial.
Defendant was arrested on November 21, 1974, for allegedly committing the crime in question. On March 20, 1975, defense counsel moved for an order pursuant to 18 U.S.C. § 4244 directing a psychiatric examination of defendant which was allowed on that date. Pursuant to the court's order, Dr. Mark Slutsky conducted an examination of defendant on April 4 and April 9, 1975.
In his report filed on April 15, 1975 (Tr. 139), Dr. Slutsky concluded that defendant was competent to stand trial, but was temporarily insane at the time of the crime.
The Government, on May 16, 1975, moved pursuant to 18 U.S.C. § 4244 for an order directing the psychiatric examination of defendant by Dr. Werner Tuteur. On May 30, 1975, the court granted the Government's motion and ordered the second psychiatric examination of defendant. Dr. Tuteur examined defendant on August 2, 1975, and concluded that defendant was not insane at the time of the crime.
Defendant's trial began on November 10, 1975. The jury returned with a verdict of guilty on November 13, 1975.
From the time of his arrest through commencement of trial defendant was in jail.
Relying on analysis in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), defendant asserts that he has been deprived of his right to a speedy trial. Defendant points out that the Government has not offered an explanation for the long delay of approximately one year between arrest and trial. Defendant also asserts that from April 15, 1975, the date on which Dr. Slutsky filed his report, defendant was ready for trial. Defendant states that a letter*fn1 from defendant to Judge Decker dated October 6, 1975, should be construed as a demand for trial and an assertion of defendant's right to a speedy trial. Finally, defendant asserts that he has suffered prejudice due to the delay between Dr. Slutsky's examination and Dr. Tuteur's examination. According to defendant, the effect of this delay was that a physical reaction indicative of mental disease which was observed by Dr. Slutsky was no longer in existence at the time of Dr. Tuteur's examination.
In response, the Government contends that the allegedly prejudicial delay between the two psychiatric examinations was not excessive. First, the Government claims that delay resulting from conducting psychiatric examinations to determine mental condition at the time of the crime is not usually considered in a speedy trial context. In addition, the Government asserts that the 31-day delay (April 15, 1975, to May 16, 1975) before filing its motion for psychiatric examination of defendant was reasonable in light of the time needed for 1) review of Dr. Slutsky's report, 2) determining whether a second examination was needed, 3) selection of a second psychiatrist, and 4) drafting and filing a motion. Similarly, the Government asserts that the 64-day delay following the district court's approval of the Government's motion for a second examination of defendant (May 30, 1975, to August 2, 1975) resulted from Dr. Tuteur's heavy schedule. The Government also argues that the claimed prejudice allegedly suffered by defendant due to the delay between the two examinations is only speculative. Finally, the Government points out that defendant's letter dated October 6, 1975, was written long after the claimed prejudice arose and did not refer to prejudice arising from delay in holding the second examination.
For the following reasons we agree with the Government that defendant has not been deprived of his right to a speedy trial.
The right to a speedy trial is a "vague concept," incapable of precise definition. Thus, an "inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case. . . ." Barker v. Wingo, 407 U.S. 514, 522, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). The Court in Barker identified the following four factors which should be assessed in determining whether a defendant has been deprived of his right to a speedy trial: length of delay, reason for delay, the defendant's assertion of his right, and prejudice to the defendant. 407 U.S. at 530. We will deal with each of the above four factors separately.
An initial question which must be addressed before deciding the weight to be given to the delay in a balancing of factors is what is the actual duration of the delay. A measurement of the duration of the delay is important since the longer the delay, the heavier the weight to be given it in the balance:
It is manifest that prejudice, always a difficult thing to ascertain, must, at some point, be presumed to result from an inordinate delay in bringing a defendant to trial. Exactly where that point lies on the spectrum of pretrial delay is uncertain, but it is clear that the longer the delay, the heavier the weight to be given it in the balance. United States v. Macino, 486 F.2d 750, 752 (7th Cir. 1973).
"[The] Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an 'accused.'" United States v. Marion, 404 U.S. 307, 313, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971). A defendant can become an "accused" when "actual restraints [are] imposed by arrest." 404 U.S. at 320; Dillingham v. United States, 423 U.S. 64, 46 L. Ed. 2d 205, 96 S. Ct. 303 (1974). The delay in the present case, therefore, runs from the time of defendant's arrest on November 21, 1974, to the beginning of trial on November 10, 1975.
A certain amount of prejudice must be presumed to flow from the approximately one year delay between arrest and trial. United States v. DeTienne, 468 F.2d 151, 156 (7th Cir. 1972), cert. denied 410 U.S. 911, 93 S. Ct. 974, 35 L. Ed. 2d 274. Thus, there is necessity for inquiry into the other factors that go into the balance. Barker v. Wingo, 407 U.S. at 530; United States v. Fairchild, 526 F.2d 185 (7th Cir. 1975), cert. denied, 425 U.S. 942, 96 S. Ct. 1682-83, 48 L. Ed. 2d 186. However, the duration of the delay alone does not establish a denial of speedy trial since there is "no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months." Barker, 407 U.S. at 514; DeTienne, 468 F.2d at 156-157.
Barker is instructive with regard to the weight to be assigned the Government's ...