Heinrich v. State

• Decision Date: 21 December 1981
• Docket Number: No. 5483,5483
• Parties: Daniel HEINRICH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 641

638 P.2d 641

Daniel HEINRICH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5483.

Supreme Court of Wyoming.

Dec. 21, 1981.

John O. Housel, Housel & Housel, Cody, for appellant.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Allen C. Johnson, Senior Asst. Atty. Gen., and Dennis C. Cook, Legal Intern, Cheyenne, for appellee.

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

ROSE, Chief Justice.

Appellant, Daniel Heinrich, was convicted of first-degree sexual assault pursuant to § 6-4-302, W.S.1977. Trial on the charges commenced on December 3, 1980, the jury returned a verdict of guilty on December 5, 1980, and appellant was sentenced to a term in the Wyoming state penitentiary. In his appeal he raises the following issues for our review:

1. Were appellant's rights to a speedy trial as guaranteed by Art. 1, § 10 of the Wyoming Constitution and the Sixth Amendment to the United States Constitution violated? ¹

2. Was reversible error committed in the failure of the trial court to follow the procedure set forth in § 6-4-312, W.S.1977, Cum.Supp.1981?

3. Did the trial court properly deny appellant's motion to limit the use of statements made during custodial interrogation?

4. Did the trial court commit reversible error in failing to give appellant's requested instruction concerning evidence of physical force?

We will affirm.

FACTS

The incident giving rise to conviction occurred during the early morning hours of September 8, 1979. Appellant Heinrich, a resident of Cody, had spent much of September 7, 1979 frequenting bars in Powell. Throughout the day he had been in the company of Mrs. Harriett James, a resident of Powell. In the evening hours, Mr. Heinrich and Mrs. James proceeded to engage in "bar hopping" and, while going from one bar to another, they happened upon the victim, Pam Lopez, and her husband, Victor Lopez, who were engaged in an argument on the sidewalk. Mrs. Lopez was celebrating her 17th birthday. Appellant interjected a comment to Mrs. Lopez at this time At approximately one a. m. Mr. Heinrich again encountered Mrs. Lopez, who was seeking a ride back to Cody since her husband had left her during the course of their argument. Heinrich agreed that she could ride to Cody with him. Mrs. Lopez then proceeded to visit several bars with appellant, Mrs. James and their friends.

but then continued to go on with Mrs. James.

About two in the morning, when the bars had closed, the appellant, Mrs. James and Mrs. Lopez proceeded to Mrs. James' house, where Mrs. Lopez waited in the living room as Heinrich and Mrs. James engaged in sexual relations in another room.

At approximately three a. m. the appellant and Mrs. Lopez began their journey back to Cody. About one mile west of Ralston, Heinrich turned off the Cody-Powell highway, stopped the vehicle and, under threat of bodily harm, forced Mrs. Lopez to have sexual intercourse with him. They then proceeded on to Cody where Heinrich dropped Mrs. Lopez off.

Mrs. Lopez, upon arriving in Cody, went directly to a friend's house where the police were contacted regarding the incident. Some seven hours later a search warrant was issued for appellant's house in Cody and in the course of executing the warrant, the police requested appellant to accompany them to the police station. Mr. Heinrich complied and, when they arrived at the station, he was read his Miranda rights and questioned about the incident, after which criminal charges were lodged.

SPEEDY TRIAL

The chronology of facts which give rise to appellant's claim that he was denied his constitutional rights to a speedy trial are as set out below:

September 8, 1979 Appellant arrested and

charged

October 29, 1979 Arraignment held

November 28, 1979 Trial set; continuance

ordered at request of

appellant

January 28, 1980 Court hears appellant's

motions for production of

evidence

April 17, 1980 Judge issues order in favor of

appellant's motion for

discovery

April 30, 1980 Trial docketed but continued

again

July 21, 1980 Trial judge orders prosecution

to provide requested

documents to defense; case

reset for October 21, 1980

October 17, 1980 Pretrial hearing set for this

date cancelled due to

absence of prosecutor

October 21, 1980 Trail not yet held

October 23, 1980 Hearing on various motions

held; trial reset for

December 1, 1980

November 7, 1980 Appellant files motion for

dismissal for lack of a

speedy trial

November 12, 1980 Trial reset for December 3,

1980

November 19, 1980 Motion for dismissal heard

December 1, 1980 All pretrial matters disposed

of through conference call

Decmber 3, 1980 Trial commences

It is apparent that appellant was not brought to trial until some 453 days had elapsed from the time he was charged with the first-degree sexual assault of Pam Lopez. Although we may be appalled by the substantial lapse of time in bringing Mr. Heinrich to trial, it is well settled that time alone is not conclusive on the question of whether or not a speedy-trial right has been violated. ² Estrada v. State, Wyo., 611 P.2d 850 (1980); Cherniwchan v. State, Wyo., 594 P.2d 464 (1979); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

Speedy-trial right is not a new area of discussion for this court. In our decision in Cosco v. State, Wyo., 503 P.2d 1403, 1405 (1972), we adopted a standard consisting of four factors which were set out by the United States Supreme Court in Barker v. Wingo, supra. We have consistently reaffirmed this position in a long line of cases. See: Robinson v. State, Wyo., 627 P.2d 168, 171 (1981); Estrada v. State, supra, 611 P.2d at 852; Cherniwchan v. State, supra, 594 P.2d at 468; Stuebgen v. State, Wyo. 548 P.2d 870, 873 (1976). In Estrada we set out the four factors that will be considered in determining a speedy-trial issue as: (1) length of delay; (2) reason for delay; (3) defendant's assertion of his right; and (4) prejudice to the defendant. Estrada, supra, 611 P.2d at 852. We will address each of the four factors as they relate to appellant's claim, keeping in mind that in ascertaining whether or not speedy-trial rights have been violated, all of the factors must be considered and balanced in relation to all relevant facts. Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973); Stuebgen, supra at 873.

Length of Delay

We have already noted that 453 days passed until the appellant was brought to trial, and, although such delays are not looked upon favorably, we note that a lengthy delay in and of itself does not give rise to a "per se" conclusion that appellant's speedy-trial rights were violated. Estrada, supra, 611 P.2d at 853. Delay time is a consideration which we will take into account in applying the balancing test, and we reiterate that this court looks with disfavor upon undue delay in bringing a criminal case to trial.

Reason for Delay

Our review of the facts leads us to the conclusion that the State, in this case, was not guilty of causing unreasonable delay in bringing the appellant to trial. It is apparent that the first delay which changed the trial setting from November 28, 1979 to April 30, 1980 resulted from appellant's efforts to obtain a continuance. The next delays are troublesome because the record fails to reflect the reason why the April 30, 1980 setting was postponed, then redocketed on July 21, 1980 for an October 21, 1980 setting. Although we recognize that the State has the burden of proving that delays are reasonable, we cannot, in this case, find that the mere absence of specific reasons in the record for the delay requires us to find that such delay was purposely caused by the State. " 'Neutral' unnecessary delay 'should be weighted less heavily but nevertheless should be considered * * *.' " Estrada, supra, 611 P.2d at 854, quoting from Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192. The record discloses that appellant's counsel was responsible for the first resetting, and the record also reflects that docketing conflicts and other reasons caused the second set of delays. In addition, there is no dispute that the delay from October 21, 1980 until December 3, 1980 resulted from bad weather conditions which caused the prosecution to miss a motion hearing, and that further delay came about as a result of the judge's unfortunate and untimely illness. A defendant cannot be heard to claim that his rights to a speedy trial were violated because weather conditions or a judge's illness forced trial continuances.

Defendant's Assertion of His Rights

The record also reflects that appellant failed to assert his speedy-trial rights until November 7, 1980. This involved a time lapse of some 427 days from the date he was arrested and charged with the sexual assault against Mrs. Lopez. We have never, however, held that the assertion of the right is a prerequisite for a determination that speedy-trial rights have been violated. Estrada, supra, 611 P.2d at 854. In this connection, we observe that appellant's delay in asserting his rights was a counseled decision and not an uncounseled one. The importance of such a distinction was noted by us in the Estrada case. See: Estrada, supra, 611 P.2d at 855, citing Barker v. Wingo, supra, 407 U.S. at 529, 92 S.Ct. at 2191. Thus, the fact that appellant delayed in asserting his rights while under the guidance of counsel becomes a part of our overall consideration.

Prejudice to Defendant

Since the right to a speedy trial is constitutionally protected, the rule has been settled that prejudice need not be shown to prove a violation of that right. Estrada, supra, 611 P.2d at 855; Cherniwchan, supra, 594 P.2d at 468; Moore v. Arizona, supra. However, the United States Supreme Court in Barker v. Wingo did recognize that prejudice to a defendant could consist of (1) lengthy pretrial incarceration, (2) pretrial anxiety, or (3) impairment of defense. The appellant in this case has asserted...