Hurst v. State

• Decision Date: 29 April 1977
• Docket Number: No. 4686,4686
• Parties: George D. HURST, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 232

563 P.2d 232

George D. HURST, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4686.

Supreme Court of Wyoming.

April 29, 1977.

Kermit C. Brown of MacPherson & Golden, Rawlins, for appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Cheyenne, and Barbara Lucas, Prosecution Asst., University of Wyoming Law School, Laramie, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

GUTHRIE, Chief Justice.

Appellant was charged and tried before the district court in Carbon County, Wyoming, convicted on the charge of aggravated assault and battery with a dangerous or deadly weapon and sentenced to from four to six years imprisonment, the sentence to commence as of September 14, 1974. The issues here are:

1. Was defendant deprived of his right to a speedy trial?

2. Was defendant denied his right to counsel at his preliminary hearing and arraignment?

3. Did the district court err in denying defendant's motion for judgment of acquittal?

4. Did defendant's conviction amount to double jeopardy?

We answer all questions negatively.

On September 14, 1974, while an inmate at the Wyoming State Penitentiary, defendant refused to carry out assigned work and was returned to his cell by Carl Cole, a guard. As Cole went to close defendant's cell door, defendant struck Cole and knocked him to the floor. Other guards responded to the commotion and discovered Cole with blood on his chest. Upon reaching the prison dispensary, Cole realized that he had been stabbed. Shortly thereafter a guard returned to defendant's cell and discovered there a large laundry pin which had blood on its tip. No other inmates were seen near defendant's cell at the time of the alleged incident. Defendant appeared before the prison disciplinary review board, which 'flattened' defendant's good time, moving back his release time some four years. Additionally, a criminal complaint and warrant were issued on September 17, and defendant was brought before the justice of the peace on September 19. After intervening events, which will be discussed in the course of this opinion, defendant had a preliminary hearing without counsel on November 21 and was bound over to district court for trial. On December 13 defendant appeared before the district court for arraignment but was given additional time to find counsel. After other intervening events, discussed hereafter, defendant was arraigned without counsel on August 14, 1975. Counsel having been appointed thereafter, defendant filed a motion on November 19, 1975, alleging the grounds urged here on appeal. The motion was heard and overruled by the court on the day of the trial, November 24, 1975.

Appellant contends the delay in bringing him to trial was unnecessary and prejudicial, thus violating his constitutional right to a speedy trial. While appellant's brief does set out certain general principles with which no one can quarrel, the case of Stuebgen v. State, Wyo., 548 P.2d 870, contains the complete answer to defendant's contentions. In that case we adopted the rule, 548 P.2d at 873, as embodied in Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183, in a per curiam opinion, and which was repeated from Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, which sets out four factors which must be considered in determining whether a speedy trial has been granted. These are length of delay; reason for delay; defendant's assertion of his right; and prejudice to defendant. These are to be considered together, along with any other relevant circumstances, in a determination of this question. As that opinion states, this involves 'a difficult and sensitive balancing process,' which clearly demonstrates that each case must be considered upon its own peculiar facts. In this case there was a delay of approximately 14 months from the date of the crime, and the case was tried approximately one year after the preliminary hearing. The reason for the delay is implicit in the record.

Appellant's adamant refusal to cooperate with or accept three different appointed attorneys delayed the preliminary hearing approximately two months, and at his appearance for the purpose of arraignment before the district court on December 13, 1974, after considerable colloquy, defendant advised the trial judge he had no lawyer and was not ready to plead. In response to a question whether he wanted a lawyer, defendant replied in the affirmative but also advised the judge he was going to attempt to secure a lawyer through some civil liberties group. The judge observed that he wished to bring this matter to trial and asked him to obtain an attorney, to which defendant agreed. At that time the judge suggested a deadline and wanted to be advised of such attorney's employment before the first of the year. Defendant demurred, not being sure he could secure an answer because of the holiday season. At that time the trial judge asked him to get a letter advising the court who would represent him. ¹ Defendant replied, 'I will certainly keep you informed.' He further agreed that the arraignment should be set when an attorney was obtained. Defendant did nothing until July 23, when we discover a motion filed pro se, requesting 'a personal appearance in connection with the charge.' In apparent response thereto, on August 11, the presiding Judge set the arraignment for August 14. At this appearance defendant again advised the trial judge he had no attorney and that the arraignment was illegal and refused to plead. The court advised him that a new attorney was coming to the community and that the trial would be set for either October or November, and in face of the record defendant insisted that a time limit of two weeks had been set for arraignment after the December 13 hearing. The then presiding judge showed him that the record reflected there had been no two weeks' deadline. Defendant charged this record was fraudulent.

Significantly, although defendant was most vocal, he did not suggest that he had ever advised the trial judge, after the first attempted arraignment, of his retention of an attorney as he had agreed to do; nor was there any request for an appointment of another attorney. Because of his refusal to plead, the judge ordered the entry of a not guilty plea. On September 13 the court appointed Kermit Brown as counsel for the defendant, and the trial was set for November 24. Although it is not an essential element that here be a demand on the part of the defendant for a speedy trial, nor is it necessary affirmatively to show prejudice as a result of such delay, it is eminently proper in determining this question to consider these factors and the reasons therefor. There is obviously no demand for a trial here, but defendant instead rested quietly from December 13 until July 23, and then attempted to assert a false premise that the arraignment was to be had by January 1, 1975. The prejudice asserted by him in his affidavit attached to the motion to dismiss is based upon his confinement and segregation, wherein he recites he was unable to interview witnesses and gather all essential evidence. That appears to be a specious claim because the record demonstrates that all those persons who were present at the time of the commission of the crime were available at the trial. See State v. Ivory, 27 Or.App. 685, 557 P.2d 698, 701. Although the delay here (14 months) is factually similar to the delay in Stuebgen (18 months), the reason for the delay in Stuebgen was in no manner occasioned by any action of the defendant. Here, the record clearly demonstrates that the delay was occasioned by defendant's dilatory and obstructive tactics.

In considering all the factors which must be reviewed in determining whether defendant has been deprived of a speedy trial, we must hold that this factual situation does not justify a holding that defendant was deprived of a speedy trial.

Appellant's next claimed basis for reversal is that since the justice of the peace held a preliminary hearing binding him over and that the district court arraigned him without counsel, the trial court had no jurisdiction.

The preliminary hearing 'is not a 'critical stage' of the State's criminal process,' and a defendant is as much entitled to counsel as he would be at trial, Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 2003, 26 L.Ed.2d 387. Also see Thomas v. Justice Court of Washakie County, Wyo., 538 P.2d 42, 47. However, as will be later discussed, the present case demonstrates that such failure to provide counsel does not in all cases entitle a defendant to a release or a new trial. We find the case of United States v. White, 8 Cir., 529 F.2d 1390, 1393, contains a most persuasive and applicable statement under this factual situation:

'Of course, the right to counsel is a shield, not a sword. A defendant has no right to manipulate his right for the purpose of delaying and disrupting the trial. (Citing United States v. Sperling, 506 F.2d 1323, 1337 n.19 (2d Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975).)'

Also see United States v. Morrissey, 2 Cir., 461 F.2d 666, 669. This court has further recognized in Ash v. State, Wyo., 555 P.2d 221, 224, that the 'right to counsel may not be used to play 'a cat and mouse game with the court," quoting from Leino v. United States, 10 Cir., 338 F.2d 154, 156. This principle is clearly applicable herein and the record clearly demonstrates a studied course of conduct on the...