Kopacka v. State

• Decision Date: 04 February 1964
• Citation: 22 Wis.2d 457,126 N.W.2d 78
• Parties: Emil KOPACKA, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 78

126 N.W.2d 78

22 Wis.2d 457

Emil KOPACKA, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Feb. 4, 1964.

Beaudry & Kershek, Richard D. Kaestner, Milwaukee, for plaintiff in error.

George Thompson, Atty. Gen., Madison, William A. Platz and Robert D. Martinson, Asst. Attys. Gen., Joseph B. Molinaro, Dist. Atty., Kenosha County, for defendant in error.

DIETERICH, Justice.

The writ of error raises several issues. The first issue is whether the trial court erred in not granting plaintiff in error's motion to dismiss on the ground that he was denied a speedy trial.

Sec. 7, art. I of the Wisconsin Constitution provides in part as follows:

'In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; * * *.'

On September 13, 1961, a criminal complaint was made charging Emil Kopacka with burglary of the Nazzareno Virgili home in Kenosha on September 8, 1961. Kopacka was arrested on September 13, 1961, pursuant to a criminal warrant issuing from the Kenosha county municipal court, and was taken into custody by the Kenosha police department. He appeared in court and, through his attorney, waived preliminary examination. The court determined that it was probable that an offense had been committed and that there was probable cause to believe Kopacka guilty of such offense, and set bail in the sum of $4,000 for Kopacka's appearance before the court 'at the now-pending term, to wit: the March, A.D.1961 term, or the next regular term thereof * * *'

On November 10, 1961, Kopacka was still in custody, being unable to raise bail, and appeared in court with his attorney pleading not guilty to the charge, requesting a jury trial, and asking that the matter be heard as soon as possible. The court stated that the clerk would be so informed. The case of State v. Emil Kopacka was called on April 2, 1962. Kopacka, having received no notice, did not appear in person or by his attorney, and the district attorney informed the court that on November 10, 1961, Kopacka had pleaded not guilty and requested a jury trial. On April 17, 1962, the case was again called and Kopacka and his attorney were present. After the jury was selected Kopacka moved to dismiss on grounds that he was denied a speedy trial. This motion was denied, and the trial court took judicial notice of the fact that after the case had been placed on the November calendar the judge became ill and went to the hospital on or about November 15, and remained ill for the rest of the year, except that he came back to court 'functioning under disability.' The trial court stated in denying the motion to dismiss for lack of a speedy trial that:

'* * * The record does not disclose any exertion of affirmative action on the part of the defendant's attorney who knew he was incarcerated, and if he desired he could have insisted on an immediate trial and action taken to have the matter heard. The record is devoid of the and the motion is denied.'

This court has held that a defendant must take some affirmative action demanding that his case be brought on for trial as a condition precedent to requesting dismissal of the charge on the ground that he has been denied his constitutional right to a speedy trial. State v. Sawyer (1953), 263 Wis. 218, 224, 56 N.W.2d 811; State v. Sawyer (1954), 266 Wis. 494, 497, 63 N.W.2d 749. See also 57 A.L.R.2d 302, 326.

Kopacka contends that he fulfilled this condition precedent by action taken on November 10, 1961, when he informed the court that he desired the matter to be heard as early as possible. Each case involving the issue of denial of a speedy trial turns on its own facts, although the general rule is stated to be that the right to a speedy trial is a right to be tried as soon as is reasonably possible. A motion to dismiss for lack of speedy trial will be denied where the accused is tried as soon as the orderly conduct of the business of the court permits. 22A C.J.S. Criminal Law § 468, p. 30.

Although Kopacka was not tried until some seven months after he was first jailed, and although he did make an effort approximately two months after his arrest to secure a trial as soon as possible, it cannot be said that his constitutional rights to a speedy trial were denied. He was originally scheduled for trial during the November 1961, term of court. On or about November 15, 1961, the judge became ill and remained so for the remainder of the year, although it appears that he returned to the court 'functioning under a disability' for a part of that time. Kopacka was tried on April 17, 1962. Mere lapse of time does not, by itself, constitute denial of the right to speedy trial, for there can be no such denial where, as here, a defendant is tried as soon as the orderly operation of the court permits.

Kopacka cites sec. 955.10, Stats., in support of his contention that he was denied a speedy trial. That section provides as follows:

'Prisoner, when tried. Every defendant in prison shall, if he requests it, be tried not later than the next term of court after his imprisonment began or he shall be bailed without sureties, unless it appears to the court that witnesses on behalf of the state have been enticed or kept away or are prevented from attending the court by sickness or accident.'

Kopacka did not request the trial court that he be bailed without sureties--nor is this his objective on appeal. His contention is that he is entitled to a dismissal of the charge for lack of a speedy trial. If his trial did not take place until after the next term of court following his imprisonment, he could have requested, and undoubtedly obtained, bail without sureties pursuant to sec. 955.10. However, this was not done, although he was represented by counsel at all times during his incarceration. Sec. 955.10 cannot form the basis for dismissal on grounds of denial of the constitutional right to a speedy trial, since this section merely entitled a prisoner to be bailed without sureties if he so requests, and if he is not tried within a specified time.

We determine that the trial court properly denied Kopacka's motion to dismiss for lack of a speedy trial.

The second issue is whether the trial court erred in not granting plaintiff in error's motion to dismiss the jury panel on grounds that the panel did not reflect a true cross section of the citizens of the community.

The facts bearing on this issue are as follows: Kopacka challenged the entire jury panel and asked that a mistrial be declared on the ground that the panel did not reflect a cross section of the people and citizenry of the community. In support of the motion, Kopacka's counsel stated to the court that the population of the city of Kenosha is somewhere close to 70,000; that he was of the understanding that the Negro population of the community is in excess of 1,000 inhabitants; and that there were no Negroes on the jury panel. The trial court noted the objection and denied the motion. The transcript reveals nothing further on this point.

Kopacka cites several United States supreme court cases holding that where a jury selection plan operates in such a way as always to result in the complete and long continued exclusion of any representative at all from a large group of Negroes, or any other racial group, the verdicts returned by juries thus selected cannot stand. See Patton v. Mississippi (1947), 332 U.S. 463, 469, 68 S.Ct. 184, 92 L.Ed. 76; Hernandez v. Texas (1954), 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 and Eubanks v. Louisiana (1958), 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991. However, the arguments advanced by Kopacka do not even meet the test set forth by the cases cited in his own brief, for the record in the instant action is completely barren of any evidence tending to show that Negroes were excluded from the jury panel. Kopacka argues that the fact that neither the trial court nor the district attorney said anything when the population ratio of Negroes to whites in the community was pointed out to them, raises a presumption of systematic exclusion.

It requires no discussion whatsoever to illustrate that the arguments advanced by Kopacka on this point are wholly without merit. The trial court properly denied the motion to dismiss the jury panel.

The third issue is whether the trial court erred in admitting into evidence testimony concerning plaintiff in error's alleged visit to the burglarized premises ten days prior to the time the crime was committed.

The complaining witness, Mr. Virgili, testified that on the evening of August 29, 1961, ten days prior to the alleged burglary, Kopacka appeared at the front door of the Virgili home, and asked to use the telephone. Mr. Virgili stated that Kopacka used their bathroom, made a telephone call, and left. Mr. Virgili saw Kopacka return to his car, which was parked in front of the house, and lift the hood. About three minutes after the phone call another car appeared and pushed Kopacka's car away. Mr. Virgili's testimony dealing with Kopacka's visit to his home on August 29, 1961, was admitted by the trial court over objections by counsel for the defense.

The plaintiff in error claims that there was no connection between Kopacka's presence in the Virgili home on August 29, 1961, and the offense charged, and that such evidence does not tend to establish any ingredient of the offense--such as knowledge, intent or identity. The state contends that the evidence of the August 29th visit tended to show Kopacka's familiarity with the burglarized premises at the time of the burglary.

The general rule as to...