Day v. State

• Decision Date: 27 November 1973
• Docket Number: No. S,S
• Citation: 61 Wis.2d 236,212 N.W.2d 489
• Parties: La Verne DAY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 29.
• Court: Wisconsin Supreme Court

Page 489

212 N.W.2d 489

61 Wis.2d 236

La Verne DAY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 29.

Supreme Court of Wisconsin.

Nov. 27, 1973.

Howard B. Eisenberg, State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Thomas J. Balistreri, Asst. Atty. Gen., Madison, for defendant in error.

HANLEY, Justice.

Four issues are raised on this appeal:

1. Was the defendant denied his right to a speedy trial as guaranteed by the Sixth Amendment of the United States Constitution and Sec. 7, art. 1 of the Wisconsin Constitution?

2. Was the seizure of evidence by Marquette county authorities valid?

3. Did the trial court err in refusing to grant the defendant's motion for a mistrial because of state's reference to the traffic offense for which the defendant was originally arrested?

4. Was the evidence sufficient to support a conviction?

Speedy trial

Prior to the recent decision of Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the essence of the right to a speedy trial had not been defined by the United States Supreme Court. In fact, the scope of the court's definition of that right was basically limited to a determination that such a right was necessarily relative and depended upon the circumstances of the individual case. ¹ Subsequent to this definition, the court's main interest was in determining when the right was applicable as opposed to further defining the essence of the right. ²

Similar to the federal experience, the right to a speedy trial was defined in Wisconsin as being relative and dependent upon the circumstances of the case. However, because of the contemporary problems of the overburdened prosecutor and the overcrowded court, this right has been somewhat clarified. Beginning with the case of State v. Sawyer, ³ this court has held that the right to a speedy trial and the resulting discharge for violation of that right was dependent upon the accused's demand thereto. In State v. Carli (1957), 2 Wis.2d 429, 86 N.W.2d 434, 87 N.W.2d 830, this court held that a determination of whether the right to a speedy trial has been abridged depends upon the circumstances of the case. There the court ascertained that the 15 month delay resulted from a defect in the initial preliminary examination and the defendant's affidavit of prejudice. Since these delays were not the result of arbitrary judicial action and were reasonable, the defendant's right to a speedy trial was not abridged.

In State ex rel. Fredenberg v. Byrne (1963), 20 Wis.2d 504, 123 N.W.2d 305, this court held that the Sixth Amendment right to a speedy trial extends to the states. Determining that a period of approximately two years had elapsed since the issuance of a criminal complaint, the court issued a writ of mandamus compelling the counties in which such complaints were outstanding to either commence trial or to dismiss the complaints against him. This court's position as to a right to a speedy trial was analyzed in Hansen v. State (1965), 26 Wis.2d 238, 131 N.W.2d 837. Therein, it was determined that a period of 20 months between the issuance of a complaint and trial did not deprive the defendant of his right to a speedy trial. The court determined this was the case because no prejudice had resulted, because the defendant was not incarcerated, because of the necessity of providing an ordered court system inviolative of the defendant's rights and because of the necessity of affirmative action on the defendant's part. In Hansen the court cited Kopacka v. State (1964), 22 Wis.2d 457, 461, 126 N.W.2d 78, 81 to the effect that:

'Mere lapse of time does not, by itself, constitute denial of the right to speedy trial . . .'

These criteria in determining whether the defendant was, under the individual circumstances of his case, denied his right to a speedy trial have remained consistent since the Hansen decision in 1965. Affirmative action on the part of the defendant remains a condition precedent to the right becoming operative. State v. Reynolds (1965), 28 Wis.2d 350, 137 N.W.2d 14; Commodore v. State (1967), 33 Wis.2d 373, 147 N.W.2d 283; Johnson v. State (1968), 39 Wis.2d 415, 159 N.W.2d 48; State v. Kwitek (1972), 53 Wis.2d 563, 193 N.W.2d 682; Taylor v. State (1972), 55 Wis.2d 168, 197 N.W.2d 805. A mere lapse of time, absent more, does not constitute a denial of the right to a speedy trial. State v. Stoeckle (1969), 41 Wis.2d 378, 164 N.W.2d 303. Actual prejudice must result. Williams v. State (1968), 40 Wis.2d 154, 161 N.W.2d 218; State v. Kwitek, supra. Finally, in Hansen v. State, supra, State v. Stoeckle, supra and State v. Kwitek, supra this court refused to apply either Sec. 971.10, Stats. or any other specific period of time as a standard upon which to determine whether the defendant's right to a speedy trial had been violated. While these criteria previously developed by this court generally remain valid, in light of the holding in Barker v. Wingo, supra these criteria must be redefined.

Barker held that a determination of whether the defendant's right to a speedy trial were violated depended upon a balancing approach in which the conduct of both the prosecution and the defense were weighed. Some of the factors which the court should assess in applying the balancing approach consist of the following: the length of delay, the reason for the delay, the defendant's assertion of the right and the prejudice to the defendant.

The initial determination to be made, the court held, is the length of the delay. Seemingly, in so structuring the criteria upon which the determination of whether the right to a speedy trial had been denied, the court hoped to set the stage whereby courts or legislatures would automatically determine that a delay of a specific time would be unreasonable.

'Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.' Id. 407 U.S. at p. 530, 92 S.Ct. at p. 2192.

Thus, until such a condition precedent was met, there would be no necessity in determining whether the defendant's Sixth Amendment right was violated.

Previously this court has been adverse to the implementation of a specific period of time as a standard upon which to determine whether or not the right to a speedy trial had been violated. In State v. Kwitek, supra, this court stated at p. 571 of 53 Wis.2d, at p. 687 of 193 N.W.2d:

'While the legislature may, with propriety, adopt a numerical standard in calculating as a matter of public policy that charges should be dismissed after demand for trial and delay, we do not believe a court can fix such an arbitrary standard and base it upon judicial reasons.'

We think that if a specific period of time is to be adopted as a condition precedent to the application of the balancing test, it should come from the legislature.

The second factor concerns itself with the reason for the delay. Some delays are more excusable than others. The illness of a witness for example is good cause for a continuance. In State v. Taylor, supra, this court held that the intervening illness of a state witness justified the delay.

Thirdly, Barker determined that though the demand-waiver rule presently applied in Wisconsin ⁴ should be avoided, the fact that the defendant failed to or did demand a speedy trial should be taken into account. The application of this factor presents no problem. However, language in previous decisions to the effect that failure to demand a speedy trial constitutes a waiver is withdrawn.

The final factor to be applied in determining whether the defendant was denied his right to a speedy trial concerns the prejudice to the defendant. The court commented that such prejudice should be assessed in light of the interests of the defendant which said right was designed to protect.

'This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.' Barker v. Wingo supra, at p. 532, 92 S.Ct., at p. 2193.

These same interests have been recognized by this court in its previous decisions.

In applying the balancing test approach of Barker in the present action, it is clear that the defendant was not denied his right to a speedy trial. Though the delay between the defendant's arrest and his subsequent trial was in excess of seven months, such a delay was not so long as to individually establish a denial of the right to a speedy trial. ⁵ Likewise, the record indicates that the reason for the delay was not a deliberate attempt on the part of the state to hamper the defendant. Rather the delay resulted from the complexity of the case as shown in the amount of investigation and testing done by the State Crime Laboratory, ⁶ the necessity to appoint another judge because the initial judge recused himself and the fact that because of the remodeling of the Marquette County Court House, jury facilities were not then available.

As to the third factor, the record indicates that the defendant did demand a speedy trial. However, this demand was not made until a period of approximately five months had elapsed and then said demand was met in a period of approximately two months. Finally, it cannot be contended that the defendant was in any way impaired in preparing his defense. The defendant's contention to the contrary--that the delay resulted in his inability to procure a witness--is without merit. The record indicates that the defendant's alleged witness had vanished as of the time he was arrested and the delay in no way hindered the defendant in procuring this witness. In fact, the period of delay may have been beneficial in allowing the defendant more time to locate his vanished witness. There is no indication that the defendant attempted to locate the alleged missing witness.

The only...