Scarbrough v. State, 75--869--CR
| Decision Date | 15 February 1977 |
| Docket Number | No. 75--869--CR,75--869--CR |
| Citation | 250 N.W.2d 354,76 Wis.2d 87 |
| Parties | Clyde James SCARBROUGH, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Supreme Court |
Plaintiff in error Clyde J. Scarbrough, hereinafter referred to as defendant, was convicted after a jury trial of robbery, contrary to sec. 943.32(1), Stats., and sentenced by the court to an indeterminate term not to exceed eight years in the state prison. Defendant alleges error, claiming a denial of right to speedy trial under the sixth and fourteenth amendments of the United States Constitution, and art. I, sec. 7 of the Wisconsin Constitution.
On July 26, 1974, defendant was arrested and charged with two counts of armed robbery pursuant to sec. 943.32(1)(a) and (2), Stats. Count One alleged defendant took $100 from the person of one Robert Bruce Wills, threatening the latter with a piece of jagged glass held to his throat. Count Two alleged defendant took $35 in cash and a watch from one Thomas Richard Higbon, threatening the latter with a knife.
On August 1, 1974, a preliminary hearing was held and the defendant was bound over for trial. Bail was set at $30,000. Defendant remained incarcerated in the county jail until November 8, 1974, when he was transferred to the state prison at Waupun following revocation of his parole.
On August 2, 1974, defendant was arraigned before Circuit Judge High O'Connell and made a demand for speedy trial. On August 9, 1974, pretrial discovery motions were filed by defendant, and a hearing on such motions was set for September 17, 1974. The record shows that on that date, 'On defense motion, Court defers ruling on defense Motions before the Court, and date for jury trial set for December 4, 1974 and 9 A.M.' (Circuit Judge John F. Foley)
On December 4, 1974, on its own motion due to a congested court calendar, the trial court successively rescheduled the jury trial for December 9, 1974; January 28, 1975; April 16, 1975; and May 9, 1975. On May 9, 1975, because of the trial court's congested calendar, the case was transferred to Circuit Judge Victor Manion. Judge Manion scheduled the case for jury trial on July 17, 1975, subsequently rescheduling it for July 23, 1975.
On July 23, 1975, the defendant appeared in court with counsel and informed the trial court that he had no intention of proceeding to trial. Defendant requested an extended adjournment so that he could obtain new counsel, stating he had no confidence in his court-appointed counsel. The trial court denied such motion. Disruptive tactics of the defendant in the courtroom led the trial court to reconsider and grant defendant's motion for an extended adjournment. Whereupon defendant stated: The trial court granted an adjournment for trial to November 3, 1975.
On November 3--5, 1975, the case was tried to a jury and defendant was found guilty of Count One--robbery. Count Two of the information was dismissed on motion of the state on December 4, 1975. The trial court credited the defendant with sixteen months of incarceration prior to trial on the sentence of not more than eight years on the conviction for robbery.
At the trial the victim of the robbery testified that he and defendant met at a theater. The defendant asked the victim if he wanted to go to a party. The victim and defendant took a cab to the corner of 19th and Vine streets in Milwaukee. Upon leaving the cab defendant told the victim first to wait and then to accompany him across a field. When the victim complied defendant threw him on the ground in the field, held a piece of jagged glass to his throat cutting him slightly, and robbed him of $100. Defendant then fled. The cab driver who allegedly drove the defendant and his victim to the scene of the crime testified he drove two men to the corner of 19th and Vine, and identified defendant at time of trial as one of the two passengers.
The defense was alibi and the sole defense witness was the defendant. He testified that he had met the complaining witness earlier in the evening of the robbery and had 'conned' him out of $22. Defendant testified that on the night of the robbery, July 25, 1974 at 10:30 p.m., he was in front of an A & P food store at the corner of Fifth Street and North Avenue in Milwaukee. At that time a window had been shattered in the food store by someone in the immediate vicinity. Defendant recalled a conversation he had at that time and place with Detective Lemoyne Richardson of the Milwaukee police department. This testimony by defendant constituted the entire alibi defense.
On rebuttal the state called Detective Richardson who testified he could not identify defendant as the man with whom he talked in front of the A & P food store. Richardson placed the time of that conversation at 9:20 (not 10:30) on the evening of July 25, 1974. On cross-examination, Detective Richardson testified he had prior knowledge of defendant's alibi claim and he could not recall all events of the evening in question.
On November 5, 1975, the jury entered a verdict guilty of robbery. On this date the trial court entered judgment, sentencing defendant to an indeterminate term of not more than eight years in the state prison. Defendant appeals by writ of error from the judgment of conviction, claiming a denial of speedy trial.
Howard B. Eisenberg, State Public Defender, for plaintiff in error.
Michael R. Klos, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.
The controlling case concerning the constitutionally assured right to speedy trial 1 is Barker v. Wingo. 2 In that case more than five years elapsed until the petitioner was brought to trial for murder after his arrest. During that time the prosecution obtained numerous continuances, initially for the purpose of trying petitioner's alleged accomplice first, so that his testimony, if convicted, would be available at petitioner's trial. Finding lack of serious prejudice and desire for speedy trial by petitioner, the United States Supreme Court concluded that the petitioner was not deprived of his right to a speedy trial.
In Barker the nation's highest tribunal rejected the suggestion that the constitution requires a criminal defendant to be offered a trial within a specified time period. Such a rule, the high court held, would require it 'to engage in legislative or rulemaking activity, rather than in the adjudicative process to which we should confine our efforts.' 3 In fact, the high court found 'no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months.' 4 Instead, the Court adopted a balancing-of-factors approach, stating: 'The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.' 5
The Court made clear that such balancing test 'necessarily compels courts to approach speedy trial cases on an ad hoc basis.' 6 The Court proceeded to identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Conceding that some might express them in different ways, the high court went on to identify four such factors: 'Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.' 7 The first two factors--length of delay and the reason for the delay--were found to be 'closely related.' 8 Each of the four factors in Barker was then expounded upon as follows:
(1) LENGTH OF DELAY. The Court explained the length of delay factor is to some extent a triggering mechanism. 9 Because of the imprecision of the right to speedy trial, the length of delay that will trigger or provoke further inquiry is necessarily dependent upon the peculiar circumstances of the case. 10 The nature of the charge and case makes a difference, in a particular prosecution, as to whether further inquiry is required. A court, trial or appellate, is not required to assume that a serious felony charge is ready for trial the day after arraignment. Time for preparation is clearly required by prosecution and defense alike. Additionally, time necessarily required for the hearing and disposition of pretrial motions, whether made by prosecution or defense, is time required for the orderly processing of the particular case. In the case before us, the first four months of the fifteen-month period between arraignment and trial were consumed by normal judicial proceedings leading up to the felony trial.
(2) REASONS FOR DELAY. As to reasons for delay, the factor 'closely related' to length of delay, Barker prescribes that different weights should be assigned to different reasons. A deliberate attempt by the prosecution 'to delay the trial in order to hamper the defense' is to be weighted heavily. To be considered but weighted less heavily is a 'more neutral reason such as negligence or overcrowded courts.' To be given no weight is 'a valid reason, such as a missing witness' which serves 'to justify appropriate delay.' 11
While not spelled out in Barker, an equally valid reason justifying the delay would be an extended adjournment sought and secured by the defendant. In the case before us the final three months of the time interval between arraignment and trial occurred at the specific request of the defendant. When the case was called for trial on July 23, 1975, the defendant refused to proceed and became recalcitrant in the courtroom. He secured a three-month adjournment, initially denied by the trial court, for the purpose of securing private counsel in place of court-appointed counsel who was ready to proceed.
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