Hadley v. State

• Court: Wisconsin Supreme Court
• Writing for the Court: HEFFERNAN; Shortly after the date of arraignment; Fiorenza; Fiorenza's; While the language of Barker is controlling in this case, the fact situation must be sharply distinguished. In Barker, the defendant's counsel admitted in court that his client d
• Citation: Hadley v. State, 66 Wis.2d 350, 225 N.W.2d 461 (Wis. 1975)
• Decision Date: 04 February 1975
• Docket Number: No. S,S
• Parties: , 78 A.L.R.3d 273 James Herbert HADLEY, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. tate 120.

Page 461

225 N.W.2d 461

66 Wis.2d 350, 78 A.L.R.3d 273

James Herbert HADLEY, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. State 120.

Supreme Court of Wisconsin.

Feb. 4, 1975.

Howard B. Eisenberg, State Public Defender, Ronald L. Brandt, Asst. State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

HEFFERNAN, Justice.

The issue presented in this case is whether the defendant Hadley, originally charged on March 16, 1972, and finally tried and found guilty on September 26, 1973, was denied his right to a speedy trial as required by the sixth amendment to the Constitution of the United States and Art. 1, sec. 7, of the Wisconsin Constitution. We hold that Hadley was denied the constitutional right to a speedy trial. The charges against him, therefore, must be dismissed.

This appeal grows out of two incidents of armed robbery, one occurring on December 9, 1971, and the other on January 30, 1972. A complaint was filed on March 16, 1972, charging Hadley with participation in each robbery. Initially, the judicial process moved swiftly. Hadley made his first appearance before a magistrate on March 16, 1972. A preliminary hearing, which found that there was probable cause to bind Hadley over for trial on each of the counts, was held on March 23, 1972. The district attorney filed the information with the court on March 24, 1972. The arraignment was conducted before Circuit Judge Eugene Baker on Arpil 7, 1972, and on that date the defendant pleaded not guilty to these two armed robberies and to two other armed robberies charged in a separate information. Bail was set on all four counts and also upon a separate count of armed robbery, on which Hadley had been arraigned on March 14, 1972. Hadley remained in custody during the entire course of these proceedings and is presently imprisoned at the State Reformatory at Green Bay.

At the arraignment on April 7, 1972, Hadley's counsel invited the court's attention to the fact that a trial had been scheduled for April 12, 1972, in respect to the charge of armed robbery on which the defendant had previously been arraigned on March 14, 1972. Counsel asked for a post-ponement of that trial because, he stated, that the informations newly filed raised additional problems that required his attention and he would not be able to prepare for the trial of the case already scheduled on April 12, 1972. Counsel stated:

'So what I am suggesting to the Court is this: If we can from the clerk either now or at some later point in the day obtain trial dates on each of these three files at a point six to eight weeks from now, I feel that it would give the defense adequate time to prepare and still be well within the three-month period required by statute for a speedy jury trial.' ¹

Although Hadley's counsel requested a trial date on all cases within eight weeks, the trial judge responded to the request only by adjourning the trial date already scheduled and stated that the trial in that case would be set up 'within the next 60 days.' The district attorney moved for the consolidation of all the charges so that they could be handled in a single trial. The trial judge took that motion under consideration and stated that he would eventually call a pretrial conference, at which time he would determine whether the remaining cases could be consolidated. The record does not reveal any decision on the district attorney's motion for consolidation, nor does there appear to have been a pretrial conference called by Judge Baker.

The principal witness, an alleged accomplice in the robberies, had already been given immunity in exchange for his agreement to testify against Hadley. That witness, Campbell, remained available to the prosecution and was incarcerated during the entire course of these proceedings.

Shortly after the date of arraignment, Judge Baker became ill, and it was not until July 6, 1972, that this court assigned Judge John A. Fiorenza of Milwaukee to try the case involved in this appeal.

The record thereafter is barren of any further procedures in this case or any related cases until September 11, 1972. On that date Judge Fiorenza heard defendant's motion to dismiss for want of a speedy trial. The record of the hearing held that day, however, refers to a conference in the presence of Judge Fiorenza on August 26, 1972. Judge Fiorenza recited that, in the August pretrial conference, the question of speedy trial had come up. He concluded that a demand for speedy trial had been made on the record on April 7, 1972. He also concluded, in response to the defendant's motion for dismissal for failure to grant a speedy trial, that the defendant had not received a speedy trial as required by sec. 971.10, Stats. In accordance with the provisions of that statute, he accorded the defendant the only remedy statutorily available, to release the defendant from custody and to discharge him from any obligations on his bond.

Judge Fiorenza refused to dismiss the charges because he concluded there had not been a denial of the constitutional right of speedy trial. Although Judge Fiorenza found that a demand for speedy trial was made in April and the case had not been brought to trial by September 11, a period of five months, he noted that the defendant's counsel at the arraignment requested adjournment of eight weeks in order that he might be prepared to try all of the cases. Judge Fiorenza, therefore, reasoned that at least two months of the elapsed time was chargeable to the defendant's request and that the remaining period of three months was not such an inordinate delay that there ought to be a dismissal as a matter of constitutional right. During the course of the pretrial conference on September 11, 1972, the district attorney admitted that some cases junior in time to Hadley's cases had been tried first. At this same pretrial conference, counsel for Hadley made another demand on the record for a speedy trial, stating:

'So, of course, again it's our demand that all counts be heard as swiftly as possibly and . . . we simply want to make the record and ask that the cases be heard back to back.'

In order to facilitate the trial of the cases, counsel for the defendant agreed that all pending cases against Hadley could be tried by a jury drawn from the same panel. Judge Fiorenza thereupon set the cases for trial, with the first case to be tried on September 27, 1972. Despite the fact this trial date was set, for reasons not explained in the record no trial was held on that date.

Although the defendant was ordered released from custody and discharged from bail because of the state's violation of the statutory provisions for speedy trial, he in fact was not released because of the pendency of a detainer which had been filed by the state of Illinois.

Judge Fiorenza's assignment in Kenosha was terminated on November 27, 1972, without that judge having tried all the cases. The trial record reveals, however, that in October, 1972, Hadley was convicted of a separate crime of armed robbery and was sentenced to the State Reformatory for a term not to exceed six years.

On June 26, 1973, the two particular charges that are the subject of this appeal, denominated in the record as 1356--C, and two armed robbery charges, denominated in the record as 1355--C, were set for trial before Judge Morton, who had become the circuit judge of Kenosha county. Hadley's attorney moved to dismiss both of these cases, because his client had not been accorded a speedy trial.

There is nothing in the record to show any activity on any of the charges against Hadley from October, 1972, until June, 1973. On June 26, 1973, Judge Morton refused to rule on the question of speedy trial because the alleged excessive delay had just been called to his attention, but proceeded to trial on the case captioned 1355--C. ² On September 18, 1973, he denied a renewed motion for dismissal of all the remaining cases for want of a speedy trial.

The remaining case--the two counts that are the subject of this appeal and for which the defenant was originally arrainged on April 7, 1972--was called for trial by Judge Morton on September 25, 1973. Prior to the impanelling of the jury on that date, defense counsel again moved the court for a dismissal because the defendant had not been afforded a speedy trial. At that time he specifically made a demand for a speedy trial, stating, 'I am not requesting any adjournment . . . because Mr. Hadley wants a speedy trial.' ³

The motion for dismissal was denied after the assistant district attorney stated that the delay had been occasioned by the illness of Judge Baker and further stated, '. . . in cases such as armed robbery . . . it is not unusual that cases of this nature do take the amount of time that these have to come to trial.' The motion for the dismissal for want of speedy trial was denied because, '. . . all parties concerned, including the Court, have done all that is possible since I have been on this bench to bring all of Mr. Hadley's cases to trial.' The judge stated that there were numerous other criminal cases that also had the right to be heard and that, in many instances, civil cases had been taken off the calendar in order that the criminal cases could be tried.

The case proceeded to trial, and the defendant was found guilty on both counts. The case took approximately six hours to try. The testimony was substantially completed on the first day despite the fact that a major portion of the morning was devoted to preliminary motions, and the second day of the trial consisted mainly of closing arguments and the return of the jury's verdict. It was a simple case to try.

The principal witness for the prosecution was Jimmie Lee Campbell, an accomplice, who testified that Hadley was involved in both of the armed robberies. Campbell had been given immunity in March of...