Estrada v. State, 5221

• Decision Date: 28 May 1980
• Docket Number: No. 5221,5221
• Citation: 611 P.2d 850
• Parties: Manuel ESTRADA, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 850

611 P.2d 850

Manuel ESTRADA, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 5221.

Supreme Court of Wyoming.

May 28, 1980.

Michael Schilling, Appellate Counsel, Wyoming Public Defender, Cheyenne; Gerald M. Gallivan, Faculty Advisor, Wyoming Defender Aide, Laramie, and C. Robert Klus, Jr., Student Director, Wyoming Defender Aide, Laramie, for appellant.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., James Gusea, Asst. Atty. Gen., and Berry F. Laws, III, Senior Law Student and Legal Intern, Cheyenne, for appellee.

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

ROSE, Justice.

Appellant claims that his conviction for aggravated robbery should be reversed for failure of the State to guarantee his speedy-trial rights. The appeal also presents claims of Fourth Amendment violations, which we will dispose of by discussing the harmless-error and plain-error doctrines. We will affirm.

THE SPEEDY-TRIAL-ISSUE FACTS

Appellant robbed Ray's Liquor Store in Buffalo, Wyoming, on October 5, 1978, and was arrested shortly thereafter in Colorado for a post office robbery. Wyoming authorities were contacted on October 17, 1978, and two days later the Wyoming robbery victim identified the defendant from a photo-lineup. A criminal complaint was filed against the defendant on October 21, 1978; the preliminary hearing was held on July 18, 1979, almost nine months after the complaint was filed; and the trial was commenced on September 26, 1979.

The State concedes that the eleven-month interval between filing the complaint and commencing the trial is sufficiently long to merit serious inquiry into the question of whether the defendant was deprived of his state and federal constitutional rights to a speedy trial. Phillips v. State, Wyo., 597 P.2d 456, 460 (1979); and Cherniwchan v. State, Wyo., 594 P.2d 464, 468-470 (1979).

The following matters are relevant to our inquiry:

1. By January 25, 1979, the defendant had been transferred from Colorado to the Federal Penitentiary in Leavenworth, Kansas. On that date, according to the prosecutor's argument in the district court on the defense motion to dismiss for lack of speedy prosecution, the district court signed papers requesting extradition.

2. On February 6, 1979, according to the prosecutor, Governor Herschler signed the extradition papers which were sent to Kansas.

3. According to the prosecutor, these papers were rejected by the officials in Kansas. The district court, on February 27, 1979, issued a Writ of Habeas Corpus Ad Prosequendum to the warden of the Federal Penitentiary in Leavenworth requesting the production of the defendant. This writ was also unproductive.

4. On April 24, 1979, "interstate detainers" "were sent to Kansas."

5. On May 6, 1979, the prosecutor received word from the federal warden that the defendant would be available for pick-up on June 25, 1979.

6. The defendant was picked up on June 25, 1979.

7. On June 26, 1979, the Justice of the Peace set a preliminary hearing for June 29, 1979.

8. Also on June 26, 1979, legal counsel was appointed for the defendant.

9. On June 29, 1979, the Justice of the Peace granted the defendant's motion for continuance to have the preliminary hearing take place on July 18, 1979.

10. On July 18, 1979, the preliminary hearing was held.

11. On July 20, 1979, the defendant was arraigned.

12. On July 27, 1979, the defendant moved that the case be dismissed for violation of his speedy-trial rights. At a hearing on this motion, appellant's counsel argued that appellant had been prejudiced by not being in the state to locate a possible alibi witness who had apparently disappeared by the time appellant was brought to Wyoming for trial.

13. The motion was argued and denied on August 9, 1979. Trial was set for September 6, 1979.

14. On August 28, 1979, the court ordered the trial delayed until September 26, 1979. This continuance was requested by the defendant.

THE SPEEDY-TRIAL-ISSUE LAW

It is conceded on all sides that appellant possesses state and federal constitutional rights to a speedy trial. Cherniwchan, supra, 594 P.2d at 467. The two controlling federal cases in this area are Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973). Cherniwchan, supra, is the controlling Wyoming case.

These cases do not set any specific deadline for trial, but do identify four factors which must be considered and against which must be balanced the conduct of both the defendant and the prosecution in evaluating a defendant's claim of unconstitutional delay. The four factors are: (1) length of delay; (2) reason for the delay; (3) defendant's assertion of his right; and (4) prejudice to the defendant. Cherniwchan, supra, at 468.

Length of Delay

In order to compute the length of delay, it is necessary to determine when the appellant's speedy-trial right began to run with respect to the Wyoming charge. A reading of our earlier decision in State v. Clark, Wyo., 392 P.2d 539, 540 (1964), would suggest that the speedy-trial right does not run while an accused is imprisoned by a different sovereign. Under Clark, it would appear that the appellant's speedy-trial right began when he was brought into Wyoming. However, this holding must be evaluated in the spotlight of the later cases of Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), and United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). To the extent that our holding in Clark is inconsistent therewith, Clark must be considered to be overruled. In Smith, a federal prisoner was charged with a Texas crime. Texas took the position that it had no obligation to try the prisoner until he had served his federal sentence and was released. The Supreme Court held that the speedy-trial right could not be dispensed with so lightly. Smith, supra, 393 U.S. at 383, 89 S.Ct. at 579. The Court held that "(u)pon the petitioner's demand, Texas had a constitutional duty to make a diligent, good-faith effort to bring him before the . . . County court for trial." Id. In view of the extensive discussion in Barker, supra, on the significance of the accused's assertion of his speedy-trial right or failure to assert his speedy-trial right, we interpret Smith to be modified by Barker. In other words, as will be discussed in more detail, infra, appellant's failure to assert his speedy-trial right before being brought to Wyoming does not per se foreclose consideration of his claim of a speedy-trial violation, although it does dilute it.

United States v. Marion, supra, dictates that appellant's speedy-trial right with respect to the Wyoming charge began when a Wyoming complaint was filed against him. United States v. Marion contains very strong language stating that

". . . it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment." 404 U.S. at 320, 92 S.Ct. at 463.

We hold, therefore, that the speedy-trial right in this case was triggered when Wyoming filed a complaint against the appellant.

Some eleven months elapsed between filing the complaint and commencing the trial. As previously mentioned, in Barker, supra, 407 U.S. at 523, 92 S.Ct. at 2188, the court expressly refused to impose a deadline for bringing a defendant to trial. In that case, almost three-and-one-half years passed between the indictment and the defendant's first protest with respect to his speedy-trial rights. After Barker first asserted these rights, another one-and-one-half years elapsed before he was actually brought to trial. The Supreme Court affirmed the conviction and refused to find a violation of his constitutional rights. The Barker facts are substantially different from those in the case at Bar, but we cite the Barker background merely to illustrate that even very lengthy delays do not give rise to a per se conclusion of violated constitutional rights.

Reason for the Delay

In reviewing the facts, we conclude that the State was guilty of no unnecessary delay during the three-month interval between the time when the appellant was brought into Wyoming and when he was tried. Although the State argues that there was a three-month delay between filing the complaint and the State's first attempt at extradition, we cannot, upon reviewing the record, credit the State with attempting to extradite appellant until February, 1979, or some four months after the complaint was filed. ¹ Following this four-month delay there was an additional four-month delay between the State's first record attempt to extradite and the actual transfer of custody of the appellant from the federal prison to the Wyoming authorities. The record reveals that the appellant acquired a 25-year federal prison sentence during this eight-month period. ² He was not, of course, available for extradition while the federal charge was pending. In addition, we recognize that some time was required for Wyoming to request custody of the prisoner from the federal authorities. Perhaps the county prosecutor acted with admirable dispatch in obtaining custody of the appellant if so, we regret that he failed to get into the record evidence of such diligence. ³ Perhaps the prosecutor attacked the problem of obtaining custody in a dilatory or incompetent fashion we just do not know and the record does not help us very much. At any rate, much of the burden for bringing the defendant to trial in a timely manner rests with the State. Barker, supra, 407 U.S. at 527-529, 92 S.Ct. at 2190-2191. Given this burden, it is incumbent upon the State to prove that delays in bringing a defendant to trial are reasonable and necessary. United States v. McConahy, 7 Cir., 505 F.2d 770, 773-774 (1974), reh. denied. A...