Madden v. Israel

• Decision Date: 07 November 1979
• Docket Number: Civ. A. No. 77-C-163.
• Citation: 478 F. Supp. 1234
• Parties: Marvin Louis MADDEN, Petitioner, v. Thomas ISRAEL, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

478 F. Supp. 1234

Marvin Louis MADDEN, Petitioner, v. Thomas ISRAEL, Respondent.

Civ. A. No. 77-C-163.

United States District Court, E. D. Wisconsin.

November 7, 1979.

COPYRIGHT MATERIAL OMITTED

Charles Bennett Vetzner, Asst. State Public Defender, Madison, Wis., for petitioner; Charlene R. Bohl, Madison, Wis., of counsel.

Bronson C. LaFollette, Atty. Gen., and Chris C. Heikenen, Asst. Atty. Gen., Madison, Wis., for respondent.

DECISION AND ORDER

REYNOLDS, Chief Judge.

The petitioner Marvin Louis Madden has filed an application for a writ of habeas corpus challenging his conviction in Dane County Circuit Court on February 9, 1973, of two counts of first degree murder, in violation of §§ 940.01(1) and 939.05(2), Wis. Stats., and one count of armed robbery of an individual, in violation of §§ 943.32(1)(a) and (2) and 939.05(2), Wis.Stats. The petitioner was sentenced to two concurrent terms of life imprisonment for the murders and an indeterminate consecutive term of not more than thirty years for the armed robbery. On May 6, 1975, the convictions were affirmed by the Wisconsin Supreme Court. State v. Shears, 68 Wis.2d 217, 229 N.W.2d 103 (1975). The petitioner subsequently filed his application with this court. For the following reasons the application will be denied.

The petitioner challenges his conviction on four grounds: (1) that he was denied his constitutional right to a speedy trial; (2) that he was prejudiced by the trial court's refusal to instruct the jury on the lesser included offense of third degree murder, and that there was insufficient evidence to convict on first degree murder; (3) that § 939.05, Wis.Stats., is unconstitutional because it shifts the burden of proof on intent, and also that petitioner was denied due process because he was not notified of which subsection of the statute he would be prosecuted under; and (4) that the trial court's denial of his request for severance from his codefendants deprived him of his right to a fair trial. The Court will consider each ground separately below.

The facts of this case are set forth in State v. Shears, supra, at 222-227, 229 N.W.2d 103. Essentially, the State alleged that the petitioner, his codefendants Danny Shears and Jesse James Ford III, and two other persons named Elgie Johnson and Eugene Sills planned and participated in the robbery of Harold's Club, a tavern in the Town of Burke, Dane County, Wisconsin, on January 13, 1972; that in the course of the robbery the bartender, James Rehbein, was shot and killed, and a patron, Lester Hanson, was shot and died two months later of his injuries; and that during the robbery of the tavern another patron, E. Robert Currie, was also robbed.¹ Eugene Sills entered into a plea agreement with the State, pursuant to which he pled to one count of armed robbery in exchange for his testimony at the trial of Madden, Shears, and Ford. In his testimony Sills implicated all three defendants in the planning of and participation in the offenses charged by the State.

Jesse James Ford III also testified at the joint trial, admitted to participation with Madden and Shears in planning the robbery, but claimed to have withdrawn from the agreement to rob the tavern just prior to the commencement of the actual robbery. See § 939.05(2)(c), Wis.Stats. All three defendants were convicted of two counts of first degree murder and one count of armed robbery. The defendant Ford was also convicted of one count of concealing identity, in violation of § 946.62, Wis.Stats.

The Speedy Trial Claim

Madden was arrested on January 13, 1972. The trial commenced on January 22, 1973. In the interim, Madden made an initial appearance on January 13, 1972; on January 18 a criminal complaint was issued, and on January 22 the preliminary hearing began. Bar patron Lester Hanson died on March 25 and a second amended criminal complaint was issued against Madden on April 28 charging him with Hanson's murder. The preliminary hearing was scheduled for May 2 and then rescheduled for May 18. On June 1, Madden was arraigned. In July, codefendant Eugene Sills made a formal record of his plea agreement with the State, and in August codefendant Danny Shears was extradited from Illinois. A hearing on the State's motion to consolidate the trials was held on September 5, and on September 11 the defendants were jointly arraigned.

At a conference held before Judge Bardwell on November 16, 1972, the judge, out of an expressed concern for the defendants' speedy trial rights, offered them a trial date of December 4, 1972, but none of them requested the date:

"THE COURT: We are just asking whether you are requesting a firm date of December 4th. I am just going through it because I said in fairness to those who have been incarcerated a long time, I would attempt to get that on December 4th definitely if anybody is really demanding it. There haven't been any requests for immediate trial by either side.

"MR. BURKE: Madden's counsel: No, I am not demanding it." (Transcript of November 16, 1972, conference at page 5.)

Madden claims, however, that he wrote to the judge on May 16, 1972, requesting a speedy trial and that his request was ignored. There is no evidence in the State record to support this claim. Furthermore, since it was not presented to the Wisconsin Supreme Court, to the extent his speedy trial claim is based on an express demand for trial, Madden has not exhausted state remedies. See 28 U.S.C. § 2254(b); State v. Shears, 68 Wis.2d 217, 233, 229 N.W.2d 103 (1975).

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court stated:

"A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at 530, 92 S.Ct. at 2192.

With regard to the factor of prejudice, the Court stated that it—

"* * * should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. * * *" 407 U.S. at 532, 92 S.Ct. at 2193.

Following its review of the State court record in this case in light of the factors set forth in Barker, the Court on balance finds that Madden was not deprived of his constitutional right to a speedy trial despite his twelve-month incarceration between arrest and trial.

No particular reason for the length of the delay appears from the record beyond the general complexity of preparing for trial of a first degree murder case based, at least initially, primarily on circumstantial evidence and involving multiple defendants. The Court notes, however, that there were numerous pretrial proceedings, including motion hearings, and thus that the delay was not attributable solely to crowded dockets or to inattention by the courts or the prosecutor. There is no evidence of intentional delay by any person, and no evidence properly before this court of a speedy trial demand by any defendant.

As for the last factor set forth by the Supreme Court, prejudice to the defendant, Madden did spend twelve months in jail prior to trial which no doubt caused him substantial anxiety and concern. There is no evidence, however, that "the most serious" of his interests which the speedy trial right was designed to protect, 407 U.S. at 532, 92 S.Ct. 2182, that of preserving his defense, was affected by the delay. Madden suggests that he was denied the right to an effective cross-examination of one witness who died prior to trial. Since, however, the witness was Lester Hanson, the bar patron who was one of the victims of the robbery incident, since a transcript of Hanson's testimony under oath taken in the hospital with Madden's counsel participating was admitted at trial, and since Hanson died less than two and one-half months after Madden's arrest, the Court is not particularly impressed with this claim of prejudice. See United States v. Joyce, 499 F.2d 9 (7th Cir. 1974).

The Seventh Circuit has held that a twelve-month delay is not by itself so severe as to constitute a denial of the right to a speedy trial. United States v. Joyce, supra, at 20-21. In Barker v. Wingo, supra, 407 U.S. at 534, 92 S.Ct. 2182, the Supreme Court held that a ten-month period of incarceration prior to trial did not require release of the defendant. Madden has not presented any additional factors which would distinguish his case from the two just noted, and therefore the Court finds that he was not denied his right to a speedy trial.

Sufficiency of the Evidence—First Degree Murder

Madden contends that there was insufficient evidence of intent in the record to support his convictions for first degree murder, and therefore that the trial court's refusal to instruct the jury on third degree murder denied him his right to a fair trial by jury because of the substantial probability that a jury, rather than letting go free a defendant whom it believed to have committed some crime, would convict him of the crime charged even though not supported by the evidence.

In United States ex rel. Parker v. Gray, 390 F.Supp. 70, 73 (E.D.Wis.1975), aff'd 530 F.2d 980 (7th Cir. 1976), wherein the petitioner challenged his conviction for first degree murder on the ground that a second degree murder instruction should have been submitted to the jury, this Court stated:

"While

...