State v. Kwitek
| Decision Date | 01 February 1972 |
| Docket Number | No. S,S |
| Citation | 193 N.W.2d 682,53 Wis.2d 563 |
| Parties | STATE of Wisconsin, Respondent, v. John P. KWITEK and Donald Crisp, Appellants. tate 76. |
| Court | Wisconsin Supreme Court |
On July 23, 1969, the defendants John P. Kwitek and Donald Crisp, after a trial to the court without a jury, were found guilty of armed robbery and concealing identity in violation of secs. 943.32(1)(b) and (2), and 946.62, Stats.1967; and on August 8, 1969, after a presentence investigation, they were each sentenced to prison terms of 15 years to run consecutive to substantial terms (Kwitek 20 years and Crisp 15 years) in federal penitentiaries.
Prior to the trial, a motion by both defendants to dismiss the information for want of a speedy trial was made and denied. After sentence, in postconviction motions, the defendants again demanded the charges be dismissed because of the want of a speedy trial. These motions were denied and the defendants appeal.
The facts will be set forth in the opinion.
David J. Hase, Robert H. Friebert, Milwaukee, Cook & Franke and Samson, Friebert, Sutton & Finerty, Milwaukee, of counsel, for appellants.
Robert W. Warren, Atty. Gen., William A. Platz and George L. Frederick, Asst. Attys. Gen., Madison, E. Michael McCann, Dist. Atty., Milwaukee County, Milwaukee, for respondent.
The single issue is whether the defendants were denied a speedy trial.
Both the Wisconsin and the United States Constitutions provide for a speedy trial.
Art. I, sec. 7 of the Wisconsin Constitution reads:
'In all criminal prosecutions (by indictment or information) the accused shall enjoy the right . . . to a speedy public trial. . . .'
The sixth amendment to the United States Constitution reads:
'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, . . .'
The armed-masked robbery in question was committed on April 24, 1967, and defendants were convicted on July 23, 1969.
The procedural facts material to a determination of the speedy trial issue, presented chronologically and in quite some detail, are as follows:
On April 24, 1967, the crime in question was committed. On June 19, 1967, a complaint and warrant were issued for this offense.
In September of 1967, the defendants were arrested on a federal charge of bank robbery and have been in federal custody since that time, except for two days when defendants were at large after an escape.
In October, 1967, the first indictment against defendants for a federal offense was dismissed because of a misnomer of one of the defendants; however, they were held in custody and rearrested shortly thereafter.
An attorney, Richard B. Surges, was appointed to represent the defendants as indigents in federal court. On November 17, 1967, Surges, by letter to the Milwaukee county district attorney, notified the district attorney that the defendants were federal prisoners and were being held at the Waukesha county jail. He further, on behalf of the defendants, demanded a speedy trial. On December 5, 1967, the defendants were arrested and appeared in a state court in Milwaukee county. They were found indigent and the same attorney, Surges, was appointed to represent them. On December 12, 1967, they appeared in county court of Milwaukee county and upon the motion of the defendants' attorney, Surges, the preliminary hearing was adjourned to January 4, 1968.
On the same day, December 12, 1967, the defendants escaped from the Ozaukee county jail and were at large for two days. During the escape one of the guards was quite brutally beaten up. After apprehension the defendants were placed in the Kenosha county jail because it was the most secure jail available to federal authorities.
The defendants did not appear for the January 4, 1968, preliminary hearing date and the matter was continued until January 10, 1968; nor did they appear on the January 10th date, but their attorney, Surges, did. The federal marshal, who had custody of the defendants was requested to produce the defendants in the state court for both the January 4th and January 10th proceedings. He refused to honor the request upon the advice of an assistant United States attorney that because of the escape attempts the defendants were poor security risks. Mr. Surges, knowing the defendants would not appear in the state court, persisted in moving for a dismissal of the complaints because of a delay beyond the statutory period for a preliminary hearing without a waiver by the defendants. The motion to dismiss was granted without prejudice.
On January 17, 1968, a new complaint and warrant were issued but not served by Milwaukee county authorities.
On January 23, 1968, after pleas of guilty, both defendants were sentenced in federal court for bank robbery and escape. The defendants were immediately sent to federal prison at Leavenworth, Kansas, and their official custody transferred from the United States Marshal for the Eastern District of Wisconsin to the Attorney General of the United States and the Bureau of Prisons.
On January 24, 1968, a detainer was filed against defendants with the warden of Leavenworth. Both defendants were advised of the detainer about March 6, 1968. Both defendants testified that as soon as they were advised of the detainer they wrote to the chief of police of Milwaukee demanding a speedy trial. Other than the defendants' statements, there is no proof of such a letter or demand.
In May of 1968, Kwitek was transferred to the federal penitentiary at Marion, Illinois. Crisp remained in Leavenworth, Kansas.
On July 22, 1968, Crisp prepared and sent a motion for a speedy trial to the clerk of court of Milwaukee county demanding a speedy trial.
On August 2, 1968, Ben J. Wiener, a deputy district attorney for Milwaukee, responded as follows:
'I am checking into the matter of the cases pending here against you and will advise you within the next several days as to what procedure we will take.
'In the meantime will you kindly advise what your pleas will be so that we may more conveniently arrange with the court for setting your matters on the calendar.'
Crisp responded to Wiener's letter, again demanding a speedy trial. The letter did not mention Kwitek. Wiener replied to this letter on October 28, 1968. He stated:
'This will acknowledge your last letter with reference to returning you to Milwaukee to stand trial on the several charges that are pending against you.
On December 6, 1968, Wiener prepared an affidavit and a writ for habeas corpus ad prosequendum to produce Kwitek from Marion, Illinois, and Crisp from Leavenworth, Kansas. These documents were not served nor filed. Three days later, December 9, 1968, Wiener prepared a memorandum for David J. Cannon, the district attorney for Milwaukee county, which contained the following:
'That memo says. 'I heretofore advised you I prepared the necessary petition and writ for the return of each of the above named individuals and then learned that their convictions were vacated in the Federal Court because of some error in the indictment and that they, therefore, were released from the institutions from which we were seeking to have them returned to Milwaukee for trial.
"It appears to me that there isn't anything we can do until the federal authorities get through with proceedings in the Federal Court."
In December of 1968, the federal bank robbery conviction was set aside because of a defect in the charge, i.e., it was not alleged the bank was a federally insured bank. On January 29, 1969, both defendants were returned to the custody of the federal marshal for the Eastern District of Wisconsin and held at various times in the county jails of three counties,--Kenosha, Waukesha and Ozaukee (Port Washington). The marshal at this time concluded they were no longer unusual security risks.
On January 31, 1969, a letter was written by both defendants requesting that the Wisconsin charges be dismissed because of lack of a speedy trial.
On March 3, 1969, Kwitek prepared and sent a motion to Judge Coffey, Circuit Judge of Milwaukee county, and to Ben Wiener requesting a speedy trial.
On April 2, 1969, both defendants were arrested and made initial appearances in the county court. Preliminary examinations were held on April 8th and both defendants were bound over to the circuit court for trial. On April 17, 1969, defendants were arraigned in circuit court and a jury trial was set for July 9, 1969.
In the interval between April and June, both Crisp and Kwitek were retried separately in jury trials in federal court. Kwitek had two jury trials during this period because the first one resulted in a mistrial. They were both found guilty and resentenced by the federal court.
It is also significant that during the interval between the original federal sentence and their retrials the defendants were pursuing postconviction remedies in federal court challenging their federal convictions. These proceedings included petitions treated as motions to reconsider and reduce their sentences which were considered and denied, and their successful challenge which resulted in the new trials.
On July 9 and 16, 1969, in response to motions, the circuit court for Milwaukee county, by Judge Coffey, heard and denied motions to dismiss the charges because of lack of a speedy trial.
The defendants then waived a jury trial. The cases were heard by the court on July 23, 1969, and the defendants were found guilty. Sentence was imposed on August 8, 1969, after a presentence investigation....
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