Harvey v. State

• Decision Date: 05 May 1989
• Docket Number: No. 87-274,87-274
• Citation: 774 P.2d 87
• Parties: Jetty Lee HARVEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 87

774 P.2d 87

Jetty Lee HARVEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 87-274.

Supreme Court of Wyoming.

May 5, 1989.

Rehearing Denied June 13, 1989.

Steven E. Weerts, Sr. Asst. Public Defender, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, and Hugh Kenny, Asst. Attys. Gen., for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

MACY, Justice.

Appellant Jetty Lee Harvey appeals from his convictions of kidnapping and first-degree sexual assault. ¹ Although appellant presents several issues for our consideration, the fundamental and dispositive issue in this case, as in the companion case of Phillips v. State, 774 P.2d 118 (Wyo.1989), is whether, under the circumstances of the case, a delay of over one and one-half years between the filing of the criminal complaint and the subsequent trial violated appellant'sconstitutionally guaranteed right to a speedy trial.

We reverse.

In Stuebgen v. State, 548 P.2d 870 (Wyo.1976), this Court reversed two felony drug convictions and dismissed the informations where there had been a delay, largely attributable to the State and the trial court, of eighteen months between the defendants' arrests and their trial. Three years later, in Cherniwchan v. State, 594 P.2d 464, 470 (Wyo.1979), although we declined to dismiss the defendants' felony convictions on speedy trial grounds, we issued a stern warning admonishing

law enforcement officials throughout Wyoming that this must not happen again, and all persons--whether they be prisoners or whomsoever--will be given their Rule-5 and speedy-trial rights, failing Even though we have reviewed a number of cases since Cherniwchan in which a speedy trial violation has been alleged, we have not, in these cases, encountered a clear violation necessitating reversal and dismissal. It was perhaps inevitable, however, that this Court would eventually be confronted with a case wherein the result in Stuebgen and the warning in Cherniwchan would not have been heeded. This is that case.

which the supervisory authority of this court will be brought into play to address such negligent conduct.

The crimes involved in this case are serious. Appellant, Everett Phillips (whose appeal comprises the companion case of Phillips, 774 P.2d 118), and David Swazo were arrested in January 1986 in connection with the January 5, 1986, abduction and rape of a Rock Springs woman. Although at trial the prosecution and the defendants presented conflicting versions of the significant events, the jury was entitled to and did accept the evidence presented by the State, which is summarized briefly as follows.

The State's evidence indicated that appellant, Phillips, and Swazo abducted the victim from a Rock Springs street on the evening of January 5, 1986, forced her into Phillips' crew cab pickup, and drove away. Thereafter, as the vehicle proceeded to drive to the outskirts of the city, Swazo sexually assaulted the victim in the back seat, with encouragement from appellant and Phillips. Phillips drove the pickup to an isolated trailer court and parked, indicating that he intended to join in and continue the assault. Unbeknownst to the men, however, the abduction had been witnessed by an individual in a nearby vehicle. This witness followed the pickup to the trailer court entrance and then contacted law enforcement authorities. The police responded quickly and intercepted Phillips' pickup as it was leaving the vicinity, the men having seen the police. The police rescued the victim and arrested appellant and Swazo on the spot. Phillips was arrested later upon further investigation. The State's evidence indicated that the police intervention very likely saved the victim from further violence, at least in the form of further sexual assault.

On January 9, 1986, a criminal complaint was filed in Sweetwater County Court, charging appellant with kidnapping and sexual assault in the first degree or aiding and abetting in those crimes. Appellant was appointed counsel, and a preliminary hearing was held on January 29, 1986, at which appellant was bound over to the district court.

On February 5, 1986, an information was filed in district court charging appellant identically with the county court complaint. An arraignment was also held on February 5, at which time appellant entered a plea of not guilty, and his bond was continued. At this arraignment, the district court advised appellant that, if he pleaded not guilty, he was entitled to a jury trial within 120 days. On February 18, 1986, appellant filed a motion for discovery and a motion to dismiss. The record does not indicate whether the district court ever ruled on these motions.

At this point the record becomes totally silent as to any further proceedings for a period of nearly ten months. The next entry in the record occurs on December 5, 1986, when a letter from the court to counsel was filed notifying the parties that the court had consolidated appellant's case with that of his co-defendants, Phillips and Swazo, and that trial was set for January 6, 1987. On December 9, 1986, the State obtained a continuance of the trial. This fact is not reflected in the record on appeal, as there is no record of any motion for a continuance, of any order granting the continuance, or of any indication that appellant had any prior notice and opportunity to object to this continuance. The fact that the State obtained this continuance, however, is acknowledged by the State in its brief, and we therefore accept it as a conceded point. Absent the State's concession on this matter, we would be without any explanation of why trial was not held on January 6, 1987, as scheduled.

The record next reflects that on December 15, 1986, appellant's retained private In January 1987, another lapse in the record occurs. On January 16, 1987, appellant's retained counsel submitted to the district court a motion to dismiss for lack of a speedy trial. This motion was not filed, for reasons that remain unknown, but again the State has conceded in brief and in oral argument that the motion was submitted on that date. On April 27, 1987, counsel for appellant filed what was designated as a duplicate motion to dismiss, again on the basis of a speedy trial violation, with an accompanying certificate stating that the January 16 motion had been submitted. Standing alone, we would not accept this representation of counsel as to the earlier speedy trial motion absent record support, but in consideration of the State's concession that it in fact was made, we will credit appellant with having made the earlier assertion of his right. ²

counsel made an entry of appearance. Correspondingly, on January 22, 1987, appellant's appointed counsel submitted a motion to withdraw as counsel, which was granted by the court on that same date.

On February 4, 1987, the district court ordered a presentence investigation, indicating in the order that the investigation had been requested by both parties. The next event of record was appellant's July 2, 1987, motion to disqualify the district judge. This motion was promptly denied. On July 13, 1987, the district court ordered, pursuant to the application of appellant, that a subpoena be issued for Swazo to appear and testify at trial. Swazo, upon a guilty plea, had previously been sentenced to the Wyoming State Penitentiary. On July 20, 1987, appellant adopted and joined in the "BRIEF OF DEFENDANT IN SUPPORT OF MOTION TO DISMISS FOR LACK OF SPEEDY TRIAL" filed by his co-defendant, Phillips.

Appellant's trial began on July 21, 1987. In a pretrial chambers conference, the district court denied appellant's speedy trial motion. The jury, after a three-day trial, found appellant guilty on both charges. Appellant was sentenced to not less than twenty years nor more than thirty years in the Wyoming State Penitentiary on each count, the sentences to run concurrently. This appeal followed.

The right to a speedy trial is found in both the United States ³ and the Wyoming ⁴ Constitutions. In Wyoming, additional speedy trial protections are provided by W.R.Cr.P. 45(b) ⁵ and Rule 204 of the Uniform Rules for the District Courts of the State of Wyoming. The specific time constraints of Rule 204, and the exceptions thereto, will be discussed infra in connection with the length of delay analysis.

The United States Supreme Court, in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), held that the Sixth Amendment right to a speedy trial applies to the states through the Fourteenth Amendment. In Cherniwchan, 594 P.2d at 467, we quoted the following passage from Klopfer, 386 U.S. at 223, 87 S.Ct. at 993:

"We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215), wherein it was written, 'We will sell to no man, we will not deny or defer to any man either justice or right'; ..."

The Supreme Court, in Klopfer, traced the evolution of the right to a speedy trial from its origin in the Magna Carta through Sir In Dickey v. Florida, 398 U.S. 30, 37-38, 90 S.Ct. 1564, 1568-1569, 26 L.Ed.2d 26 (1970), Chief Justice Burger, speaking for the Court, said:

                Edward Coke's The Second Part of the Institutes of the Laws of England to George Mason's bill of rights for the colony of Virginia and thereafter to its prominent position in the Sixth Amendment to the United States Constitution.  386 U.S. at 223-26, 87 S.Ct. at 993-95.   See also United States v. Provoo, 17 F.R.D. 183 (D.Md.), aff'd 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (1955) (influence of speedy trial aspects of British Habeas Corpus Act upon the Bill of Rights);  and Poulos and Coleman, Speedy Trial, Slow Implementation:

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