The opinion
BELSON, Associate Judge,
dissenting:
Whitfield Graves was convicted by a jury of the first-degree felony murder of James R. Matthews. The majority holds that his conviction must be reversed because it concludes that Graves’ right to a speedy trial was violated. I think that the majority result is plainly inconsistent with an earlier holding of this court in another murder case. Therefore, I dissent.
I set forth the facts briefly. Appellant Whitfield Graves and two accomplices, Brown and Poston, forced their way into the apartment of James A. Matthews. Described as the neighborhood bootlegger, Matthews was usually cautious about letting people into his apartment. But accomplice Poston was a known customer and when Matthews opened the door for Poston, all three murderers rushed in. They killed Matthews. The next morning, his mother found his body on a couch. He had been strangled to death. He was gagged, and his wrists were bound with electrical cord. Before they left his apartment, Brown, Po-ston and appellant Graves stole Matthews’ money and liquor.
All three murderers were arrested in October of 1979. Poston was tried in February of 1981. His conviction of first-degree felony murder and other offenses was affirmed by this court on July 16, 1983. 1
Brown was tried in May of 1981. His conviction of first-degree felony murder and other offenses was affirmed by this court on July 18, 1983. 2
The majority holds today that the conviction of the third of the three murderers of James R. Matthews must be reversed.
My disagreement with the majority is based upon my conclusion that under controlling precedent, Graves’ murder conviction should be affirmed. In Day v. United States, 390 A.2d 957 (D.C.1978), a case remarkably similar to this case, this court affirmed a murder conviction where the defendant had been incarcerated for 31½ months before trial. I have found no other decision of this court as close on point with this case as Day . A comparison of the two eases demonstrates that the majority opinion is inconsistent with Day , and therefore is erroneous since a division of this court cannot depart from a previous ruling by another division. Only the en banc court can do so. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971); District of Columbia Court of Appeals Internal Operating Procedure VIII H (1983 ed.).
In Day , as in the majority opinion here, a determination of the appellant’s speedy trial claim was reached by a balancing of the four controlling factors identified by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972).
The first of those factors is the total length of time from the commencement of formal criminal proceedings until trial. In Day the period was 31½ months; here it was 25 months. In this respect, a comparison with Day strongly supports affirmance here. 3
*725 The second factor identified in Barker v. Wingo, supra, is the reason for delay. Where the reason is not such that the government is fully excused from responsibility for the delay, the delay is usually categorized (1) as serious, weighing heavily against the government, (2) as significant (an intermediate category), or (3) as neutral. See Day v. United States, supra, 390 A.2d at 968 ; Barker v. Wingo, supra, 407 U.S. at 531 , 92 S.Ct. at 2192 .
In Day , as here, the period of delay was divisible into three main periods; the first commencing with arrest and extending to an interlocutory government appeal; the second, the duration of that appeal, and the third, the period between the resolution of the appeal and trial on the merits.
In Day the first period amounted to 7 months. It covered the routine procedures such as presentment, mental examination, preliminary hearing, indictment, arraignment and discovery matters. This court held that such time was not “chargeable specially against the government.” Apparently it was deemed at worst neutral delay. Id., 390 A.2d at 966 .
Here, the first period culminating in the government’s interlocutory appeal amounted to 14 months. The trial court ruled, and the parties do not dispute, that of that period 9 months constituted neutral institutional delay, and 5 months constituted government delay in the form of continuances it requested. The latter period was apparently viewed by the majority as more the responsibility of the government than mere institutional delay (at 716), but was not counted as significant delay to be charged to the government (at 718; 721).
Turning to the interlocutory appeal period, Day held for reasons set forth in a lengthy discussion that the entire appeal period of 18½ months there was significant government delay. The court reasoned essentially that since the government failed to move for expedition of the appeal, it was chargeable with the entire undivided time of appeal as significant delay (rather than chargeable for merely the difference between expedited and non-expedited appeal). 4 Accepting that reasoning at face value and applying it here, we see that 18½ months in Day but only 6½ months here are chargeable to the government as significant delay due to interlocutory government appeal.
Finally, we turn to the period following interlocutory appeal. In Day , it was held that all but one of the 6 months of post-appeal delay constituted significant government delay. Here the majority holds, and I do not disagree, that the entire post-appeal period of 4 months is chargeable to the government as significant delay.
Adding up the foregoing, we find that in Day this court held that 23½ months constituted significant delay attributable to the government. Another 7½ months were institutional delay (chargeable to the government, but neutral), and 1 month was chargeable to the defense.
Here, by the majority’s calculation, only 11 months were chargeable to the government as significant delay (at 721), less than half the amount so chargeable in Day . For convenience, the foregoing comparisons are *726 summarized in a chart set forth in the footnote. 5 Yet the majority would reverse the murder conviction here. I submit that justification for the different result cannot be found in the last two of the four Barker v. Wingo factors.
The third factor is the defendant’s assertion of the right to speedy trial. In Day , the division opinion recounted, without going into detail, that the trial judge confirmed in ruling on Day’s speedy trial motion that Day “at various stages of this proceeding, asserted his rights to a speedy trial.... ” Day, supra, 390 A.2d at 969 . This court went on to note, however, that Day had not made any effort to cause expedition of the interlocutory appeal, and stated:
Even if entitled by statute to an expedited government appeal, a defendant should make that interest known. If we do not hold him responsible for doing so, we will in effect be encouraging him to hold back during the appeal period, take his chances on eventual acquittal in the hope that the government’s case will become stale during the hiatus, and then have a second opportunity for dismissal— for lack of a speedy trial. We do not believe that such a tactic should be automatically rewarded.
Id., 390 A.2d at 970 . The same must be said of Graves, whose counsel made no effort to secure expedition of the government’s interlocutory appeal, even though his counsel had the benefit of this court’s admonition in Day .
However, Day also failed to file a speedy trial motion as such until well after the interlocutory appeal was concluded, approximately one and one-half months before trial. Graves, on the other hand, moved orally to dismiss for lack of a speedy trial in September of 1980. Moreover, he had filed a motion to dismiss for lack of prosecution 1 month earlier when the trial was continued for the first time. It must be conceded that in this lone particular, Graves’ position on appeal is better than Day’s. At the same time, I note that Graves’ motion was not made until almost 11 months after his arrest.
Turning to the fourth Barker v. Wingo factor, prejudice to the defendant, there is once more a strong parallel between Day and the instant case. Prejudice, as defined in Barker v. Wingo, has three aspects: (1) oppressive pretrial incarceration, (2) anxiety and concern of the accused, and (3) impairment of the defense. Id., 407 U.S. at 532 , 92 S.Ct. at 2192 .
As to the first aspect, incarceration, Graves and Day were prejudiced to a roughly comparable extent. Graves was incarcerated for 25 months, the entire period between his arrest and trial. During 14 of the 25 months’ incarceration, Graves was held also pursuant to a parole detainer triggered by his arrest in the instant case.
Day was incarcerated for 22 of the 31½ months between his arrest and trial. 6 Apparently, during most or all of the 22 months he was also being held on unrelated criminal convictions. Day, supra, 390 A.2d at 971 . As we noted in Day , “[t]he fact that this incarceration was due to unrelated criminal convictions ... does not eliminate the possibility of prejudice from pretrial delay.” Id.
As to the second aspect of prejudice, neither Graves nor Day made any particular allegations of anxiety and concern. All defendants suffer some anxiety awaiting trial, see Strickland, supra note 3, 389 A.2d at 1331, but this, in itself, does not require overturning of a conviction. See United States v. Clark, 376 A.2d 434, 436 (D.C.1977).
*727 The final aspect of prejudice, impairment of the defense, was declared the “most serious” in Barker v. Wingo, supra, 407 U.S. at 532 , 92 S.Ct. at 2192 . 7 Graves concedes that his defense was not impaired by the delay in his trial. Day, on the other hand, contended that delay hampered his counsel’s ability to cross-examine government witnesses and diminished the effectiveness of the testimony of his only witness. The court found Day’s argument unpersuasive.
As to the final factor of prejudice, then, we see that Graves was incarcerated approximately as long as Day, although the weight to be given Day’s incarceration is lessened somewhat by the fact that during most of it he was serving time on' other convictions. Neither Graves nor Day made any particularized showing of anxiety, nor did either demonstrate that his trial defense was impaired by the delay (although Day claimed unsuccessfully that his defense was impaired). Balancing all the circumstances, I think it cannot be said that the prejudice factor is measurably greater in this case than in Day .
Summing up as to all four factors identified in Barker v. Wingo, it is seen that the case for affirmance is far stronger here than in Day in the two crucial factors of length of delay and reason for delay. As to assertion of the right, Day’s case was stronger than is Graves’. In prejudice, the comparison is close.
Significantly, the majority here does not find that there was any deliberate effort by the government to use delay to secure a tactical advantage, and I agree that the appellant’s arguments in that regard are totally unpersuasive.
Given, then, the substantially longer period of both overall delay and significant delay chargeable to the government which this court considered in affirming Day’s murder conviction, it seems to me that there can be no reasonable conclusion other than that this court is bound by precedent to affirm here.
Finally, I observe that the situation is far from ideal when 25 months elapse before an incarcerated defendant is brought to trial. Speedy trials are mandated, and those who play roles in the criminal justice system must strive to afford them. The question before the court is whether the pace of the proceedings here was so lacking in speed as to warrant reversal. I think it was not.
I respectfully dissent.
PER CURIAM.
ORDER
On consideration of appellee’s petition for rehearing en banc and of appellant’s opposition thereto, and it appearing that the majority of the judges of this court has voted to grant the aforesaid petition, it is
ORDERED that appellee’s petition for rehearing en banc be granted; that this court’s opinions and judgment entered on September 23, 1983, are hereby vacated; and that the Clerk is directed to cause this case to be scheduled for argument before the court sitting en banc as soon hereafter as the business of the court permits. The parties are hereby directed to transmit ten additional copies of the briefs heretofore filed in this case within 10 days from the date of this order.
. Poston v. United States, No. 81-626, Memorandum Opinion and Judgment (D.C. July 16, 1983).
. Brown v. United States, 464 A.2d 120 (D.C.1983).
. Day is not the only case where delays approximately as long as the delay here were found, upon balancing of all relevant factors, not to have deprived an accused of his right to a speedy trial. Warren v. United States, 436 A.2d 821, 833 (D.C.1981) (22 months); Gaffney v. United States, 421 A.2d 924, 926 (D.C.1980), cert. denied, 451 U.S. 941 , 101 S.Ct. 2026 , 68 L.Ed.2d 330 (1981) (33 months); Williams v. United States, 421 A.2d 19, 26-27 (D.C.1980) *725 (21 months); Reid v. United States, 402 A.2d 835, 837 (D.C.1979) (21 months); Strickland v. United States, 389 A.2d 1325, 1329 (D.C.1978), cert. denied, 440 U.S. 926 , 99 S.Ct. 1258 , 59 L.Ed.2d 481 (1979) (20 months), and Cates v. United States, 379 A.2d 968, 970 (D.C.1977) (59 months). I do not suggest that the circumstances in all of the foregoing cases are comparable to those before us here.
. As a division of this court, we are bound by the earlier decision of the division in Day to charge the entire period of the interlocutory appeal to the government as significant delay. Were the matter open, I would take the view that, at most, the government should be charged with the difference between normal appeal and expedited appeal. Going further, I question the importance the Day court attached to a government motion for expedition. This court itself is commanded by statute to expedite such interlocutory criminal appeals whether or not the government or defense seeks expedition. D.C.Code § 23-104(e) (1981).
. This table illustrates the comparison between periods of delay in Day and those in the instant case, stated in months.
Day Graves
7 Institutional delay before government appeal (neutral) 9 Institutional delay before government appeal (neutral)
- 5 Government delay before appeal (neutral)
I8V2 Government appeal delay (significant) 6V3 Government appeal delay (significant)
Day Graves
5 Post-appeal delay (significant) 4 Post-appeal delay (significant)
1 Post-appeal delay defense -
3IV2 Total delay 242/3 Total delay
23l/2 Significant government delay IOV3 Significant government delay
. Day was incarcerated from November 8, 1973, to May 7, 1974, and from February 20, 1975 to June 24, 1976. From May 7, 1974 to February 20, 1975, Day was in third-party custody to Bonabond.
. The Supreme Court last year held that the primary purpose of the speedy trial guarantee is to minimize the possibility of lengthy incarceration prior to trial. United States v. MacDonald, 456 U.S. 1, 8 , 102 S.Ct. 1497, 1502 , 71 L.Ed.2d 696 (1982). Prejudice from incarceration has long been a significant factor in speedy trial analysis, however, see United States v. Marion, 404 U.S. 307, 320 , 92 S.Ct. 455, 463 , 30 L.Ed.2d 468 (1971), and I do not agree with my concurring colleague that MacDonald should be read as altering the analysis as substantially as he suggests. Ante at 722 - 723.