State v. Leighton

• Decision Date: 09 May 2000
• Docket Number: No. 99-2614-CR.,99-2614-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. David S. LEIGHTON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

237 Wis.2d 709

2000 WI App 156

616 N.W.2d 126

STATE of Wisconsin, Plaintiff-Respondent, v. David S. LEIGHTON, Defendant-Appellant.¹

No. 99-2614-CR.

Court of Appeals of Wisconsin.

Submitted on briefs March 27, 2000.

Decided May 9, 2000.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Daniel Snyder of Park Falls.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Donald V. Latorraca, Barbara L. Oswald, assistants attorney general of Madison.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. CANE, C.J.

David Leighton appeals from a judgment of conviction entered upon a jury's verdict finding him guilty of one count each of first-degree intentional homicide, armed robbery, burglary and arson, all as party to a crime, and one count of conspiring to manufacture or deliver drugs, contrary to WIS. STAT. §§ 940.01(1), 943.32(2), 943.10(1)(a), 943.02(1)(a), 939.05, 161.41(1x), 161.41(1)(h)3 and 161.14(4)(t).² Leighton additionally appeals from the denial of his postconviction motions.

¶ 2. Leighton argues that: (1) he was denied his right to a speedy trial; (2) the trial court abused its discretion by denying his motion for adjournment; (3) he was denied the effective assistance of counsel; (4) the trial court erroneously exercised its discretion by excluding evidence; (5) WIS. STAT. § 973.014(1),³ which permits a trial court to fix a parole eligibility date, is unconstitutional; (6) the trial court erroneously exercised its discretion in fixing his particular parole eligibility date; and (7) the trial court erred in its determination of the amount of restitution. We reject Leighton's arguments and affirm the judgment.

BACKGROUND

¶ 3. On October 12, 1995, emergency workers, responding to a fire in a residence owned by Robert Clark, discovered Clark's body. A medical examiner determined that Clark had died as a result of a gunshot wound to the back of his head. A flashlight found at the scene bore the fingerprint of Jared Hamm, who was arrested in May of 1996. Hamm implicated Leighton in Clark's murder.

¶ 4. On May 21, 1996, special agents with the Wisconsin Department of Justice questioned Leighton about the homicide. As the result of an unrelated probation hold, the Sawyer County Sheriff's Department arrested Leighton later that day. A criminal complaint was filed against Leighton on June 3, 1996. The parties did not proceed to trial until August 1998. Following the jury trial, Leighton was convicted. His motions for postconviction relief were denied and this appeal followed.

ANALYSIS

I. THE CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL

[1, 2]

¶ 5. Leighton argues that he was denied his constitutional right to a speedy trial. The right to a speedy trial is found in the Sixth Amendment to the United States Constitution and art. I, § 7, of the Wisconsin Constitution.⁴ Whether a defendant has been denied the right to a speedy trial is a constitutional question that this court reviews de novo. See State v. Ziegenhagen, 73 Wis. 2d 656, 664, 245 N.W.2d 656 (1976)

. The trial court's underlying findings of historical fact, however, will be upheld unless they are clearly erroneous. See WIS. STAT. § 805.17(2); State v. Clappes, 136 Wis. 2d 222, 235, 401 N.W.2d 759 (1987).

¶ 6. Under both the United States and Wisconsin Constitutions, to determine whether a defendant has been denied the right to a speedy trial, a court must consider: (1) the length of the delay; (2) the reason for the delay, i.e., whether the government or the defendant is more to blame for the delay; (3) whether the defendant asserted the right to a speedy trial; and (4) whether the delay resulted in any prejudice to the defendant. See Doggett v. United States, 505 U.S. 647, 651 (1992)

; Barker v. Wingo, 407 U.S. 514, 530 (1972); Day v. State, 61 Wis. 2d 236, 244, 212 N.W.2d 489 (1973).

A. The Length of the Delay

¶ 7. The first factor, the length of the delay, is a threshold consideration—the court must determine that the length of the delay is presumptively prejudicial before inquiry can be made into the remaining three factors. See Doggett, 505 U.S. at 651-52

("[T]o trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from `presumptively prejudicial' delay."); Hatcher v. State, 83 Wis. 2d 559, 566-67, 266 N.W.2d 320 (1978). If the length of the delay is presumptively prejudicial and the court determines that, under the totality of the circumstances, the defendant has been denied the right to a speedy trial, the charges must be dismissed. See Barker, 407 U.S. at 522.

¶ 8. In Doggett, the United States Supreme Court recognized that "[d]epending on the nature of the charges, the lower courts have generally found postaccusation delay `presumptively prejudicial' at least as it approaches one year." Id. at 652 n.1. Here, there was a twenty-six-month delay from the filing of the criminal complaint in June of 1996 to Leighton's trial in August 1998. See id. at 655 (speedy trial inquiry triggered by arrest, indictment, or other official accusation).⁵ We conclude that this amount of time is presumptively prejudicial, see id. at 652 n.1, and turn to the remaining three factors.

B. The Reason for the Delay

¶ 9. In State v. Borhegyi, 222 Wis. 2d 506, 588 N.W.2d 89 (Ct. App. 1998), this court recognized that the reasons for the delay are assigned differing weights:

A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.

Id. at 512 (quoting Barker, 407 U.S. at 531).

¶ 10. Here, the State argues that the delay in bringing Leighton's case to trial was directly attributable to the defense. On June 3, 1996, the State filed a criminal complaint alleging that Leighton had committed arson and felony theft. Leighton made his initial appearance before the court on June 11. At the initial appearance, Leighton waived his right to a timely preliminary hearing and his counsel requested a scheduling conference for sometime in July. At the July 15 scheduling conference, the parties mutually requested adjournment. On September 9, Leighton's attorney requested another adjournment "to see whether we can't resolve this matter." The matter was set for a November 25 scheduling conference at which Leighton's attorney requested a continuance to wait for some information from the State. Although present on each date, Leighton never personally objected to any of these continuances.

¶ 11. On April 14, 1997, the attorneys mutually agreed to yet another continuance, and the scheduling conference was reset for June 30. The court asked defense counsel if he felt it necessary to have his client present. Defense counsel responded: "No, I don't, your Honor. I told him what was going to happen and he is in full agreement." On June 30, defense counsel requested a continuance to allow Leighton's case to follow Hamm's companion case. As Leighton was not present, the court asked defense counsel if his client had any objection, to which defense counsel replied: "He has no objection." The scheduling conference was reset for October 6.

¶ 12. At the October 6 scheduling conference, a preliminary hearing was set for October 29. Meanwhile, Leighton retained new counsel, who requested an adjournment of the October 29 preliminary hearing. At the November 7 preliminary hearing, the State presented its case. As an amended complaint had just been filed that day, defense counsel requested an adjournment in order to determine what, if any, defense witnesses would need to be called.⁶ The trial court granted the adjournment and withheld its finding on the bindover.

¶ 13. At the November 19 continuation of the preliminary hearing, defense counsel presented no witnesses or evidence and, after hearing the parties' arguments, the court bound the matter over for trial. The State then filed an information and indicated its willingness to proceed with the arraignment. Defense counsel, however, requested that a different arraignment date be set in order to give him an opportunity to review the information with Leighton. The parties agreed to set the arraignment date and Leighton was arraigned on December 12.

¶ 14. On December 19, the parties appeared for a bond hearing and the court adjourned the matter in order to give the State an opportunity to review Leighton's parents' financial statement. On January 7, 1998, the parties appeared for the bond hearing. After the court's determination on Leighton's request for bond modification, the State indicated that it was "prepared to set any type of date that [defense counsel] wants set, whether it's a ... break in schedule or motion filing schedule, a hearing for motions or even a trial date." Defense counsel, however, requested two weeks to prepare for scheduling the time for filing all motions. The parties subsequently appeared for a scheduling conference on January 30, at which time defense counsel requested that a jury trial be scheduled for late July or early August. The court scheduled the trial for the week of August 3, although the State indicated its willingness to proceed to trial as early as April.

¶ 15. On May 7, 1998, the defense informed the court that it had retained the help of an attorney who had a scheduling conflict with the August trial date. Defense counsel stated that although Leighton was "reluctant to want an adjournment," he certainly wanted two lawyers working for him on the case. Consequently, defense counsel advised the court that it might, before the end of the week, file a motion for an adjournment of the trial date based on the...