Phillips v. State, 87-283

Citation774 P.2d 118
Decision Date05 May 1989
Docket NumberNo. 87-283,87-283
PartiesEverett William PHILLIPS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

James R. McCarty, Casper, for appellant.

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

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

MACY, Justice.

This is the companion case to Harvey v. State, 774 P.2d 87 (Wyo.1989). Appellant Everett William Phillips appeals his convictions of kidnapping and first-degree sexual assault. 1 Appellant raises several issues upon appeal, but, as in Harvey, we find that the dispositive issue is whether, under the circumstances of this case, appellant was denied the right to a speedy trial.

We reverse.

Appellant was charged and convicted identically with his codefendant, Jetty Lee Harvey, in connection with the January 5, 1986, abduction and rape of a Rock Springs woman. A third defendant, David Swazo, who was the actual perpetrator of the sexual assault, was convicted upon a guilty plea, and he testified against appellant and Harvey at trial. The facts of the offenses, as presented at trial by the State and accepted Although appellant was tried jointly with his co-defendant, Harvey, on identical charges stemming from the same incident and although the total period of delay in each case is the same, the procedural sequence of events differs in each case in certain respects. Thus, in order to properly evaluate appellant's lack of speedy trial claim, it is necessary that we trace the progression of this case from the complaint and arrest through trial, although often these steps overlap with those outlined in Harvey. The offenses occurred on January 5, 1986. Appellant was arrested on January 9, 1986, pursuant to a complaint issued on that date and amended on January 10. 2 On January 16, 1986, through counsel, appellant filed a waiver of both his initial appearance and a speedy preliminary hearing, and a preliminary hearing was scheduled by the county court for February 27, 1986. On February 7, 1986, upon a motion for continuance filed by the State, the preliminary hearing was rescheduled for April 15, 1986. Appellant, on February 20, 1986, moved for a continuance, and the preliminary hearing was reset for May 1, 1986. On April 29, 1986, the State again obtained a continuance, and the preliminary hearing was rescheduled for July 1, 1986. On July 1, the preliminary hearing was held, and appellant was bound over to district court.

by the jury, are summarized in Harvey and need not be repeated here. Of additional note, however, are the facts that appellant was the owner and driver of the vehicle in which the sexual assault occurred and that appellant was not arrested by the police upon their intervention in the offenses, as were Harvey and Swazo, because the victim did not initially implicate appellant in the crime.

The information was filed in the district court on July 14, 1986, and an arraignment was also held on that date, in which appellant entered a plea of not guilty. On the date of the arraignment, appellant filed a motion to dismiss, a motion for a bill of particulars, and a motion for discovery. The district court did not rule on these motions at that time.

The ensuing five months are notable simply by the fact that no activity of record occurred for those five months. The next event of record is a letter from the district court, filed December 5, 1986, informing counsel that the court had consolidated the cases of appellant and his co-defendants, Harvey and Swazo, and that trial was set for January 6, 1987. On December 9, 1986, the State obtained a continuance. This fact, as in the Harvey case, is not shown in the record, but the State has acknowledged in its appellate brief that it obtained the continuance. 3 As in Harvey, we will accept as a conceded point the State's acknowledgement that it obtained this continuance, thus accounting for the otherwise inexplicable fact that trial was not held on January 6, 1987, as scheduled.

On December 10, 1986, appellant filed a motion for severance of his trial from that of his co-defendants. On December 15, 1986, the district court issued an order establishing a briefing schedule on this motion and on appellant's pending motions submitted at the previous July arraignment. Pursuant to this order, appellant had twenty days in which to file his brief, and the State was given fifteen days thereafter to file its reply brief. Appellant filed his motions' brief on December 29, 1986, and the State's brief was due on January 19, 1987. On February 3, 1987, pursuant to a motion by the State, the district court granted the State an extension until March The district court also apparently sent notice to counsel on June 2, 1987, of the July 21, 1987, trial setting, though again this notice is not in the record but is referred to by both parties in their briefs. On July 6, 1987, appellant filed a motion to dismiss on speedy trial grounds, and briefs on that issue were filed by both parties. The trial began on July 21, 1987, and, in a pretrial chambers conference, the district court denied appellant's speedy trial motion. After a three-day trial, the jury returned a verdict of guilty on both charges. Appellant was sentenced on October 22, 1987, to two concurrent terms of not less than twenty years nor more than thirty years.

                2, 1987, in which to file its brief.  From the fact that this motion and order are on the same document, obviously prepared by the prosecuting attorney, and because this document does not indicate that appellant was served with a copy of the motion, it would appear that appellant aptly characterizes this motion and order as having been obtained ex parte.   The State's reply brief was eventually filed on April 15, 1987.  On April 21, 1987, appellant filed an objection to the State's brief, requesting that it be stricken as untimely and requesting that appellant's motions be granted.  Apparently, the district court issued a letter ruling on appellant's motions on April 30, 1987, as this fact is referred to by both parties in their briefs, though the letter ruling is not in the record.  The district court's disposition of these motions is not shown, although the State subsequently provided a bill of particulars and the motion to sever was denied in pretrial conference
                

The right to a speedy trial is guaranteed by both the Sixth Amendment to the United States Constitution and article 1, section 10 of the Wyoming Constitution. 4 In assessing appellant's denial of a speedy trial claim, we are guided in this case, as we were in Harvey, by Rule 204 of the Uniform Rules for the District Courts of the State of Wyoming in conjunction with the four-part balancing test enunciated by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and followed by this Court in a long series of cases beginning with Cosco v. State, 503 P.2d 1403 (Wyo.1972), cert. denied 411 U.S. 971, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973).

Rule 204(b) directs that "[a] criminal charge shall be brought to trial within 120 days following the filing of information or indictment." The rule provides that certain periods are to be excluded from the computation of the 120-day period, including delays caused by proceedings related to the defendant's mental illness or deficiency, proceedings on another charge, the defendant's change of counsel or application therefor, continuances granted to the defendant, and continuances granted to the prosecution--if the defendant expressly consents, if the State's evidence is unavailable despite the exercise of due diligence, or if they are required in the due administration of justice and the defendant will not be substantially prejudiced. Rule 204(c) and (d). See also Harvey, 774 P.2d at 94. This Court has held that Rule 204 is not an exclusive or mandatory test but rather that it is advisory and that it constitutes another factor to be considered in conjunction with the balancing test from Barker, 407 U.S. 514, 92 S.Ct. 2182. Harvey, 774 P.2d at 93-94; Caton v. State, 709 P.2d 1260 (Wyo.1985). Thus, we will consider the provisions of Rule 204, as they relate to this case, within the context of the balancing test analysis. Under the Barker balancing test, we examine speedy trial challenges in light of the following four factors: (1) length of the delay; (2) reason for the delay; (3) the defendant's assertion of his speedy trial right; and (4) prejudice to the defendant. Barker, 407 U.S. at 530, 92 S.Ct. at 2191; Estrada v. State, 611 P.2d 850, 852 (Wyo.1980). In considering whether a speedy trial violation has occurred, all the factors are to be considered and balanced in relation to all relevant circumstances. Moore v. Arizona, 414 U.S.

25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973); Heinrich v. State, 638 P.2d 641 (Wyo.1981).

LENGTH OF DELAY

We begin our examination of the length of the delay in light of the 120-day time limitation established by Rule 204(b). Pursuant to Rule 204(b), the relevant time period for a speedy trial analysis runs from the date of the information to the date of trial. Here, the information was filed on July 14, 1986, and trial commenced on July 21, 1987, 372 days later. Although Rule 204(c) provides that various periods are to be excluded from the computation of the time period, none of the allowable exclusions are found in the record in this case. Appellant did not seek any continuances during this time period, and the December 9, 1986, continuance sought and obtained by the State appears to have been accomplished without appellant's prior knowledge or consent. This continuance, consequently, does not qualify for exclusion, and, under the Rule 204(c) analysis, the length of delay remains at 372 days. 5 From the standpoint of Rule...

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  • Jones v. State, 90-151
    • United States
    • Wyoming Supreme Court
    • June 13, 1991
    ...issue here which is of equal application to the constitutional right of speedy trials in state and federal constitutions, Phillips v. State, 774 P.2d 118 (Wyo.1989); Harvey v. State, 774 P.2d 87 (Wyo.1989)--whether fundamental rules apply to the citizens in limitation, but when presented to......
  • Despain v. State
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    • Wyoming Supreme Court
    • May 5, 1989
    ...cases decided by this court in which the balancing test was applied. I refer to Harvey v. State, 774 P.2d 87 (Wyo.1989) and Phillips v. State, 774 P.2d 118 (Wyo.1989). Although these two most recent applications of the balancing test drew two dissents, at least the court applied the balanci......
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    • Wyoming Supreme Court
    • September 21, 1993
    ...prejudicial. Harvey v. State, 774 P.2d 87, 94 (Wyo.1989), cert. denied, 506 U.S. 1022, 113 S.Ct. 661, 121 L.Ed.2d 586; Phillips v. State, 774 P.2d 118, 125 (Wyo.1989). We have recognized delays similar in length to appellant's 355 and 319 days sufficient to warrant a speedy trial analysis. ......
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    ...trial issue under the Wyoming Constitution, the United States Constitution and our current literature on the subject. Phillips v. State, 774 P.2d 118 (Wyo.1989); Harvey v. State, 774 P.2d 87 (Wyo.1989); DeSpain v. State, 774 P.2d 77 (Wyo.1989). The Pennsylvania Supreme Court recently and co......
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