Green v. State
| Decision Date | 15 February 1977 |
| Docket Number | No. 75-802-CR,75-802-CR |
| Citation | 75 Wis.2d 631,250 N.W.2d 305 |
| Parties | Robert C. GREEN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Supreme Court |
The plaintiff in error (defendant) Robert C. Green, after a jury trial, was convicted as a party to the crime of armed robbery contrary to secs. 943.32(1) (b) and (2), and 939.05, Stats. He was sentenced to an indeterminate term of twenty years consecutive to any prior sentences. Postconviction motions were made and denied. The defendant obtained writs of error to review the judgment and the orders denying the post-conviction motions.
Howard B. Eisenberg, State Public Defender, and Ronald L. Brandt, Deputy State
Public Defender, on briefs, for plaintiff in error.
Bronson C. La Follette, Atty. Gen., and Michael R. Klos, Asst. Atty. Gen., on briefs, for defendant in error.
The issues presented are:
1. Whether the defendant Green was denied his constitutional right to a speedy trial.
2. Whether it was prejudicial error to admit into evidence prior consistent statements of a prosecution witness.
3. Whether it was an abuse of discretion to impose a twenty year sentence to be served consecutively to other sentences being served.
On September 14, 1973, the defendant Green and another man committed an armed robbery in Milwaukee. On September 27, 1973, a complaint was issued charging Green as a party to the crime of armed robbery. Green was apprehended and arrested on October 8, 1973 in Dane county. He was charged with two counts of armed robbery and held in the Dane county jail. A detainer was sent by Milwaukee county authorities to Dane county. Green was convicted in Dane county and sentenced to the prison at Waupun. Although the record and briefs of counsel do clearly set forth the date, the Dane county court records reveal he was in the Dane county jail from October 9, 1973 until June 14, 1974. The Milwaukee county officers testified they were not sure of his whereabouts during this period.
The defendant Green was transferred to the Milwaukee county jail in the early fall of 1974. Again it is difficult to be more specific because of a conflict in the records. The prosecuting attorney stated that the judgment roll indicated Green asked for a speedy trial October 14, 1974. Green said he was returned to Milwaukee county in September or October of 1974. The first notation on the judgment roll as we have it is dated November 27, 1974. There is no indication on the judgment roll or docket that Green demanded a speedy trial. However, there is a notation that he withdrew his demand for a speedy trial on November 29, 1974.
The original complaint was dismissed and a new one issued on November 27, 1974. On December 24, 1974, the defendant filed a motion to dismiss on the ground that he had been denied a right to speedy trial. Although there were several appearances and proceedings in the interim, this motion was not heard until the day of the trial, December 5, 1975-a period of eleven and one-half months.
Presumptively, the almost twelve-month delay between the preliminary examination and the trial is unreasonable and prejudicial. The state has a duty to the defendant and to society to bring him to a speedy trial. The docket entries reveal that there were several appearances by the defendant and additional proceedings and continuances where he was not present but his attorney was. One continuance of a month-and-a-half was granted because of the illness of a necessary witness. This delay was reasonable and necessary. Others were granted because of the absence of the defendant--presumably he was in Waupun. Whether he was in Waupun or the county jail, he was in the custody of the state; the state had the duty to produce him, and delay due to his nonappearance is not excusable.
We are well aware that our metropolitan courts are overburdened and congested and that some delay is inevitable. Because delay under these circumstances is inevitable does not mean it is excusable in light of the constitutional 1 demands of speedy trial. It is within the power of the state to provide prosecutorial staffs and judicial staffs to afford the defendant and the public speedy trials, and it is the state's duty to do so. 2 The state is to be charged with delay but it is not to be weighed heavily against it in this case because the delay was not intentional nor motivated as a device to disadvantage the defendant in the preparation of his defense. And for the additional reason that the defendant or his counsel, or both of them, acquiesced in most of the delay.
The third factor to be considered is the assertion of the right to speedy trial. Green withdraw his demand for a speedy trial on November 29, 1974; however, he filed a motion to dismiss based on a denial of his constitutional rights by reason of the pre-arrest delay on December 23, 1974. In essence, Green claimed a denial of the right to speedy trial. While Green did not demand a speedy trial, the state was put on notice that he was asserting his right to speedy trial when he moved for dismissal. He asserted the right to speedy trial by seeking a dismissal based on his denial of the right to speedy trial. The state was duty bound to respond.
The final of the four factors to be considered is prejudice to the defendant. '(P)rejudice should be identified in the light of at least three interests that the speedy-trial provisions of the constitution were designed to protect: Prevention of oppressive pretrial incarceration, prevention of anxiety and concern by the accused, and prevention of impairment of a defense.' Ziegenhagen, supra at 671, 245 N.W.2d at 663. Green was in custody in the county jail or the prison at all times, therefore this prosecution did not result in pretrial incarceration. It appears that Green was unaware of the Milwaukee charges during the first year of their pendency. During this period Green's anxiety about the charges was minimal. During the thirteen months after he learned of the charges, and before trial, he was undoubtedly concerned and anxious about the pending charges. There is no allegation that Green's defense was impaired by the delay.
This court has recognized another type of prejudice. '(E)ven though a defendant is otherwise detained, the failure to have a pending charge brought to trial completely eliminates the possibility that concurrent sentences could be imposed.' 3 However, we do not see any real prejudice in this respect. Green was in prison at all times during and after the prosecution. The sentence imposed here was consecutive to the sentence he was serving. If the sentence in this case had been pronounced a few months earlier it would have made no difference in his total incarceration time.
The delay in the case borders on a denial of the constitutional right to speedy trial. In balancing the factors of delay we conclude the defendant Green was not denied a speedy trial. The elements of delay that are to be weighed most heavily against the state are (1) intentional delay designed to disadvantage the defendant's defense, (2) a cavalier disregard of the defendant's right, (3) missing or forgetful witnesses, 4, and (4) prolonged pretrial incarceration. None of these elements appear in this case. If one or more did we would probably reach the opposite result.
At trial, Harold Finch, owner of the Golden Chicken Restaurant, testified that on September 14, 1973, he was robbed by two black men at gun point. He immediately called the police and provided them with a description of the robbers. He further stated that one of the men was carrying a .22 caliber pistol. Approximately one week later he testified that he saw the defendant near his restaurant, walking down the street. Later, the police brought several photographs to him and he identified Green as one of the robbers.
On cross examination Finch was questioned with regard to the testimony given at the preliminary examination in December, 1974. At trial, Finch testified that Green had a 'medium mustache.' But at the preliminary he testified the perpetrator of the crime had a 'sparse,'--'thin mustache.' He also testified at trial that Green was not wearing a hat when the robbery was committed, but at the preliminary he stated Green was wearing a hat.
On redirect examination the assistant district attorney attempted to rehabilitate Finch's credibility by questions concerning prior consistent statements. Prior consistent statements made by Finch at the preliminary were read to him and he affirmed these statements. Defense counsel repeatedly objected to introduction of prior consistent statements.
Admission of prior statements of a witness into evidence is governed by sec. 908.01(4)(a), Stats.
'(4) Statements Which Are Not Hearsay. A statement is not hearsay if:
'(a) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
'1) inconsistent with his testimony, or
'2) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or
'3) one of identification of a person made soon after perceiving him.'
The defense appropriately introduced prior statements of Finch which were inconsistent with his testimony. The state responded by introducing other prior statements which were consistent with Finch's testimony. Prior consistent statements can be introduced for two reasons. First, if there is an express or implied charge that the testimony was recently fabricated or was the product of improper influence or motive, prior statements which are consistent with the testimony may be introduced to rebut this charge. Secondly, if the testimony concerns an identification of a person, a prior statement of identification of that person made soon after perceiving...
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