Hipp v. State

• Decision Date: 15 February 1977
• Docket Number: No. 75--677--CR,75--677--CR
• Citation: 250 N.W.2d 299,75 Wis.2d 621
• Parties: Mark William HIPP, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 299

250 N.W.2d 299

75 Wis.2d 621

Mark William HIPP, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 75--677--CR.

Supreme Court of Wisconsin.

Argued Jan. 6, 1977.

Decided Feb. 15, 1977.

The plaintiff in error (defendant) Mark William Hipp, after a jury trial, was convicted of kidnapping and rape and was sentenced to ten years in the state prison for each offense. The sentences were to run concurrently and concurrently with any other sentences he might have been serving. Postconviction motions were made and denied. Hipp obtained writs of error to review both the judgment and the order.

Ronald L. Brandt, Deputy State Public Defender, with whom on the brief was Howard B. Eisenberg, State Public Defender, for plaintiff in error.

David J. Becker, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.

BEILFUSS, Chief Justice.

The single issue is whether Hipp was denied a right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution and Art. I, sec. 7 of the Wisconsin Constitution.

On October 6, 1971, defendant Hipp and another man accosted a young girl, K.K., age sixteen, in Milwaukee. They forced her into their car and eventually drove to Dodge county and into a field in a rural area. While there Hipp forced her to commit an act of sexual perversion and raped her. The girl was later released in Madison.

Hipp was arrested in Iowa on October 7, 1971. On October 8, 1971, a criminal complaint was issued charging Hipp with rape, contrary to sec. 944.01, Stats., and sexual perversion, contrary to sec. 944.17. He also faced criminal charges in other jurisdictions, namely, Illinois, Ohio and Wisconsin. All requested extradition. Hipp was served with the Wisconsin complaint and warrant but waived extradition to Illinois where, on or about December 1, 1971, he was convicted of unlawful use of a weapon and was sentenced to four to five years in the Statesville prison in Illinois.

On December 13, 1971, Illinois authorities informed the Dodge county sheriff that Hipp was sentenced to the Illinois state prison but that he faced additional charges in Illinois. On December 27, 1971, the Dodge county sheriff sent a detainer warrant to the Kankakee County Illinois Sheriff, but for unknown reasons the detainer was not forwarded to the Statesville prison. On June 21, 1973, after a period of sixteen months, a detainer was filed at the prison. Hipp was returned to Wisconsin on July 30, 1973.

After Hipp's return to Wisconsin an additional period of almost eight months transpired before trial. The significant procedural events during this period are as follows: July 31, 1973, Hipp was brought before the county court. An attorney was appointed and the parties stipulated to extend the time for a preliminary examination not to exceed sixty days. On September 27, 1973, the preliminary examination was held and Hipp was bound over to circuit court for trial. October 15, 1973--the information (dropping the sexual perversion charge but alleging kidnapping and rape) was filed; the arraignment held; defendant pled not guilty. October 19th--there was a substitution of attorneys at defendant's request. November 5, 1973--defendant filed a pro se petition for habeas corpus on grounds of denial of a right to speedy trial. The trial court examined petition and ordered it heard upon appropriate motions by defense counsel. November 6, 1973--trial date set for November 9th. November 9, 1973--defendant was given ten days to file a proper petition on the speedy trial issue. November 19, 1973--the defendant was committed to Central State Hospital for observation because of a bizarre disturbance he caused at the county jail. December 10, 1973--defendant returned to county jail. January 17, 1974--defendant ordered to file any motions within ten days. January 29, 1974--defendant requested trial be delayed for additional motions and filed a new petition for habeas corpus. February 14, 1974--trial court denied defendant's motion. March 26, 1974--trial before jury commenced.

The test for determining whether there has been a deprivation of the right to speedy trial was set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The rationale of Barker was followed in Day v. State, 61 Wis.2d 236, 212 N.W.2d 489 (1973). ¹ The four factors considered in these cases in deciding whether the right to a speedy trial has been denied are: (1) Length of the delay; (2) the reason for the delay; (3) assertion of the right to a speedy trial; and (4) the prejudice to the defendant.

Our first inquiry is the length of the delay. It is only when the delay is such that it presumptively prejudiced the defendant that the balancing of the factors becomes necessary. ²

The complaint and warrant against Hipp were issued October 8, 1971. The state contends that because he was not arrested until July 30, 1973, the time did not commence to run until that day. In support of its contention the state cites United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), where a three-year delay between the offense and the filing of an indictment was excluded by the court in its speedy trial analysis. Several years ago this court in State ex rel. Fredenberg v. Byrne, 20 Wis.2d 504, 508, 123 N.W.2d 305, 307 (1963), stated 'the right to a speedy trial arises with the initial step of the criminal prosecution, i.e., the complaint and warrant.' This position was recently affirmed in State v. Ziegenhagen, 73 Wis.2d 656, 664, 245 N.W.2d 656, 660 (1976). Therefore, the state's contention must be rejected; the right to speedy trial arises when the defendant is officially accused. ³ In Marion the defendant was not the accused until the time of the indictment. Hipp was accused when the complaint and warrant were issued.

'(T)he threshold inquiry in speedy trial cases must always concern the length of delay.' Norwood v. State, 74 Wis.2d 343, 353, 246 N.W.2d 801, 807 (1976). While all four factors set out in Barker must be balanced, this court 'will not inquire into the contention that there has been a lack of speedy trial where there is no evidence of excessive delay.' Ziegenhagen, supra 73 Wis.2d at 665, 245 N.W.2d at 660. Unless the delay "'. . . is presumptively prejudicial, there is no necessity for inquiry into the other factors . . .."' Beckett v. State, 73 Wis.2d 345, 348, 243 N.W.2d 472, 474 (1976), quoting Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. 2182.

Hipp was charged by complaint on October 8, 1971, and went to trial on March 26, 1974. The delay from time of charging to trial was almost thirty months. Thirty months is presumptively prejudicial and necessitates an examination of the other factors for a determination of whether right to speedy trial has been denied.

In examining the reasons for delay we can divide the time into significantly different periods. Hipp was arrested in Iowa on October 8, 1971, on a charge unrelated to his Wisconsin offense. He chose to waive extradition to Illinois where he was tried and convicted of unlawful use of a weapon, rather than return to Wisconsin. He was sentenced on December 1, 1971. This delay of almost two months cannot be attributed to the state. It could not bring Hipp to trial while he was awaiting trial in Illinois. ⁴ When a defendant is held for trial in another jurisdiction, delay prior to availability is not to be counted in determining whether the defendant has been deprived of the right to speedy trial. ⁵ Thus the two-month period between issuance of the complaint and warrant in Wisconsin and the conviction in Illinois cannot be counted.

Shortly after Hipp's Illinois conviction Wisconsin authorities sent a detainer to Illinois authorities, but the detainer was not forwarded to the Illinois prison at Statesville. Nearly eighteen months later, in June of 1973, the Wisconsin authorities filed a detainer at the Statesville prison. The state concedes that this delay was due to its negligence. The state knew the defendant was incarcerated at Statesville, therefore had a duty to determine when a defendant incarcerated elsewhere is available for trial and once available the state must act to bring about a speedy trial. ⁶ The state argues that because this was not an attempt to delay the trial in order to hamper the defense it should be weighed less heavily against the state than intentional delay in determining whether Hipp was denied his right to speedy trial. While the state has the duty of assuring any defendant a speedy trial, ⁷ it is correct in asserting that negligent delay should be weighed less heavily, when balancing the reasons for delay, than intentional delay. ⁸

Hipp was returned to Wisconsin on July 30, 1973. The two-month period from the filing of the detainer at Statesville until his return to Wisconsin was necessary and reasonable to accomplish his extradition. This period likewise cannot be weighed heavily in determining the reason for delay.

The final period of time is between his return to Wisconsin on July 30, 1973 and his trial on March 26, 1974, a period of eight months. The chronology of procedural events that transpired and the reason therefor are set forth above and will not be repeated here. A considerable portion of this delay is attributable to the defendant. The remainder of this period was reasonable and necessary for the orderly disposition of the case in a busy court.

We conclude the only unreasonable delay in the thirty-month period between the complaint and the trial was the eighteen months after the Illinois conviction and the filing of the detainer at the prison in Statesville. We realize he was outside the jurisdiction of this state and that a detainer had been sent to Illinois but those facts do not excuse the failure to take further steps to secure the defendant's return.

The next Barker factor to be considered is whether the defendant made a...