State v. Lemay

• Citation: 455 N.W.2d 233,155 Wis.2d 202
• Decision Date: 17 May 1990
• Docket Number: No. 88-2168-CR,88-2168-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Norman D. LEMAY, Defendant-Appellant.
• Court: United States State Supreme Court of Wisconsin

Page 233

455 N.W.2d 233

155 Wis.2d 202

STATE of Wisconsin, Plaintiff-Respondent, v. Norman D. LEMAY, Defendant-Appellant.

No. 88-2168-CR.

Supreme Court of Wisconsin.

Argued March 28, 1990.

Decided May 17, 1990.

Richard L. Kaiser, argued and William A. Pangman & Associates, S.C., on briefs, Waukesha, for defendant-appellant.

Maureen McGlynn, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., Madison, on the brief, for plaintiff-respondent.

STEINMETZ, Justice.

This case is before the court on certification from the court of appeals which had granted the defendant-appellant, Norman D. Lemay, permission to appeal pursuant to sec. 808.03(2), Stats., from a nonfinal order denying his pretrial motion to dismiss dated November 15, 1988, entered in the Circuit Court for Racine County, the Honorable Dennis J. Barry. Certification from the court of appeals followed that court's withdrawal of a decision which held that Lemay's due process rights, not his sixth amendment speedy trial rights, were implicated by a 37-month delay between the signing of a complaint and issuance of a warrant against him and service of the warrant upon him.

The certified issue requires a review of whether a delay following the issuance of a complaint and warrant but preceding arrest is governed by speedy trial or due process considerations. Assuming it is determined that speedy trial rights apply, it is also necessary to review whether the delay in this case violated Lemay's right to a speedy trial such that charges against him must be dismissed.

We hold that the sixth amendment right to a speedy trial governs our analysis of this case. We also hold that a pretrial determination that speedy trial rights have been violated can only be made when the evidence shows extraordinary circumstances justifying dismissal with prejudice. Since the evidence in this case does not illustrate extraordinary circumstances, we affirm the order of the trial court and remand the case for trial on the merits, after which Lemay may renew his motion to dismiss on speedy trial grounds on the full trial record.

On June 16, 1985, Detective James Scherff of the Racine county sheriff's department answered a call in the town of Norway registered by Lemay's wife concerning Lemay's apparent attempt to commit suicide. Upon arrival, Detective Scherff interviewed Lemay's wife, who made statements to him concerning a possible case of sexual assault committed by Lemay upon his five-year-old granddaughter, G.Z. On or about June 17, 1985, Detective Scherff followed up on Mrs. Lemay's allegations by contacting and interviewing the alleged victim, G.Z., and her mother D.Z., at their home in Milwaukee. During the interview, D.Z. and the victim told the detective about events, limited in nature to sexual touchings, that occurred on or about May 19, 1985.

On July 2, 1985, Detective Scherff interviewed Lemay and obtained his version of the facts surrounding the same incident. Detective Scherff then contacted the Racine county district attorney's office and recommended that a charge of sexual assault be issued against Lemay.

On July 3, 1985, a criminal complaint was issued charging two counts of sexual assault. The complaint was filed with Judge Jon B. Skow, Racine county circuit court. Judge Skow signed a criminal warrant based on the complaint on July 10, 1985. Procedures in effect in Racine county in July of 1985 called for staff of the Racine county district attorney's office to forward the original warrant to the appropriate law enforcement agency for service upon the appellant. Pursuant to established procedure, copies of warrants were to be sent to the clerk of court.

At Lemay's pretrial hearing on his motion to dismiss the information for lack of a speedy trial, Assistant District Attorney Elizabeth Blackwood testified that the original warrant was erroneously sent to the clerk of court's office rather than to the sheriff's department. Blackwood conceded and the parties stipulated to the fact that the misfiling and subsequent time delay were due solely to negligence or oversight on the part of her office.

Because of this oversight, no attempts were made to serve the warrant on Lemay until August 26, 1988, some three years and one month (37 months) after its original issuance. At that time, two officers from the Racine county sheriff's department appeared at Lemay's home and informed Mrs. Lemay that a warrant dating from 1985 charging Lemay with sexual assault was being served upon him. That same day, Lemay made his initial appearance with counsel before Judge Dennis J. Barry, Racine county circuit court.

At all times relevant to this case, the defendant and his wife lived at the same address in the town of Norway, Wisconsin. Likewise, the victim and her mother continued to live at the same address in Milwaukee.

On September 13, 1988, a preliminary hearing was held before Judge Skow. Lemay stipulated not to object on the basis of hearsay to testimony offered at his preliminary hearing. Detective Scherff was the only witness who then testified based on his refreshed recollection of statements he had taken from D.Z. and G.Z. in 1985. At the conclusion of the preliminary hearing, Judge Skow found probable cause on both counts of sexual assault and bound the case over for trial.

After Judge Barry was assigned to the case, Lemay filed discovery demands, a pretrial motion in limine and a pretrial motion to dismiss based on the alleged violation of Lemay's sixth amendment right to a speedy trial. On October 21, 1988, a hearing was held on Lemay's motion to dismiss for lack of a speedy trial. At the hearing, testimony of the victim's mother, D.Z., was offered by the defense to show prejudice to Lemay from the 37-month delay. Testimony elicited from D.Z. established that neither she nor her daughter were able to recall specific circumstances surrounding the events in question.

The trial court issued a written decision on the motion to dismiss dated November 15, 1988. In its decision, the trial court agreed with the parties that the speedy trial analysis set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), applied to the facts of this case. The trial court then made findings relevant to each of the four factors of the Barker test.

First, the trial court found the length of delay on the facts of this case to be presumptively prejudicial. Second, the trial court found that the delay was caused solely by the state's negligence. Third, the trial court determined that the appellant had preserved his right to a speedy trial by asserting the right as soon as he became aware of the charges against him. Finally, the trial court concluded that although testimony of the key state witnesses showed serious lack of recall, the prejudice this problem might cause at trial could impair the state's ability to present its case, as well as Lemay's.

The trial court concluded that the facts of this case did not demonstrate substantial prejudice to the defendant's right to a fair trial. It also concluded that the severe remedy of dismissal with prejudice was unwarranted, stating: "If the defendant is to have these serious felony charges against him dismissed, it will have to be done on the merits of the facts."

Lemay petitioned the court of appeals for permission to appeal from the pretrial order of the trial court and for an order staying further proceedings pending disposition of the appeal. Lemay's petition for permissive appeal was granted. The court of appeals issued a decision holding that Lemay's due process rights rather than his speedy trial rights applied. Based on its due process analysis, the court of appeals concluded that Lemay's rights had not been violated, and it affirmed the trial court's order to proceed to trial.

The court of appeals subsequently withdrew its opinion citing a possible conflict between due process and speedy trial case law which clouded its analysis. The court of appeals certified the conflict to this court and we accepted certification. We then dismissed Lemay's petition for review as moot by order dated October 12, 1989.

The first issue is, in essence, when the sixth amendment right to a speedy trial attaches. Both parties to this action agree and assert that this case is governed by a speedy trial analysis. However, the court of appeals has noted an inconsistency in case law language which clouds the determination of when speedy trial as opposed to due process rights attach when the period in question is that after a complaint and warrant are issued but before service of the warrant and arrest.

This issue requires determination of the correct legal standard to be applied to the facts. This court exercises de novo review of such questions. State v. Rogers, 70 Wis.2d 160, 164, 233 N.W.2d 480 (1975).

In its request for certification, the court of appeals perceived an inconsistency in case law language between due process cases dealing with "pre-arrest" delay and a line of Wisconsin speedy trial cases. In United States v. Marion, 404 U.S. 307, 321, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971), the United States Supreme Court stated that it declined "to extend the reach of the amendment [speedy trial provision] to the period prior to arrest." This court restated the Marion language in State v. Rogers, 70 Wis.2d at 163, 233 N.W.2d 480.

According to the court of appeals, the language of Marion/ Rogers is in conflict with a line of cases in this state in which this court has consistently held that " 'the right to a speedy trial arises with the initial step of the criminal prosecution, i.e., the complaint and warrant.' " Hipp v. State, 75 Wis.2d 621, 625, 250 N.W.2d 299, cert. denied, 434 U.S. 849, 98 S.Ct. 159, 54 L.Ed.2d 117 (1977); State ex rel. Fredenberg v. Byrne, 20 Wis.2d 504, 508, 123 N.W.2d 305 (1963); State v. Ziegenhagen, 73 Wis.2d 656, 664, 245 N.W.2d 656 (1976)...