State v. Ramirez, No. 2005AP2768-CR (Wis. App. 4/25/2007)

• Decision Date: 25 April 2007
• Docket Number: No. 2005AP2768-CR.,2005AP2768-CR.
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Antonio G. Ramirez, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

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State of Wisconsin, Plaintiff-Respondent, v. Antonio G. Ramirez, Defendant-Appellant.

No. 2005AP2768-CR.

Court of Appeals of Wisconsin, District II.

Opinion Filed: April 25, 2007.

APPEAL from a judgment and an order of the circuit court for Kenosha County: WILBUR W. WARREN III, Judge. Affirmed.

Before Snyder, P.J., Nettesheim and Anderson, JJ.

¶ 1 PER CURIAM.

Antonio G. Ramirez appeals from a judgment of conviction arising from two sexual assaults of a child and from an order denying his motion for postconviction relief. He claims that he was denied his constitutional right to a speedy trial, that charges should not have been joined for trial, that there were prosecutorial misconduct and evidentiary errors, that the evidence was insufficient to convict him, and that trial counsel was constitutionally deficient. He also challenges his sentence as an erroneous exercise of discretion. We reject his claims and affirm the judgment and order.

¶ 2 Ramirez was arrested on September 5, 1999, when his wife, Cynthia, reported that she found him standing at the door of her daughter's room pulling up his pants. Ramirez's eight-year-old stepdaughter reported to her mother that Ramirez had touched her "like he's not suppose to." The victim reported to a police officer that when her mother left the house that evening, Ramirez told her to go into her bedroom, that he removed her shorts and underwear, and that he touched her butt with his penis. The victim also revealed that a vaginal injury that sent her to emergency room on November 8, 1998, was not a bathtub accident as originally reported but that Ramirez "did that to me." Ramirez was charged with first-degree sexual assault of a child under age thirteen by a person responsible for the child's welfare and first-degree sexual assault causing great bodily harm for the 1998 assault. As a result of the 1999 assault and domestic fight that followed, Ramirez was charged with child enticement, first-degree sexual assault of a child under age thirteen by a person responsible for the child's welfare, intentionally causing bodily harm to a child (the victim's brother), battery and false imprisonment of Cynthia, and resisting an officer. The jury found him guilty on the three sexual assault charges and the child enticement charge.

¶ 3 We first address the claim that Ramirez was denied his constitutional right to a speedy trial.¹ Our review of an issue of constitutional dimensions is de novo. State v. Borhegyi, 222 Wis. 2d 506, 508, 588 N.W.2d 89 (Ct. App. 1998). The trial court's findings of historical facts are upheld unless clearly erroneous, but we decide the ultimate constitutional issue without deference to the trial court's conclusion. Id. at 508-09.

¶ 4 On a case-by-case basis the conduct of both the prosecution and the defense are weighed and balanced to determine if a defendant's right to a speedy trial has been denied. Scarbrough v. State, 76 Wis. 2d 87, 94, 250 N.W.2d 354 (1977). We consider a four-part balancing test: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted the right to a speedy trial; and (4) whether the defense was prejudiced by the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972); Borhegyi, 222 Wis. 2d at 509.

¶ 5 The first inquiry is whether the length of delay has crossed the threshold dividing ordinary from "presumptively prejudicial" delay thereby triggering inquiry into the other Barker factors. See Borhegyi, 222 Wis. 2d at 510. Delay is presumptively prejudicial as delay between the time of arrest and trial approaches one year. See id. Ramirez's trial commenced March 5, 2001. The State concedes that the eighteen-month gap is presumptively prejudicial.

¶ 6 The next Barker factor to consider is the reason for the delay. Differing weights are assigned to reasons for the delay. Borhegyi, 222 Wis. 2d at 512. We heavily weigh against the State "[a] deliberate attempt to delay the trial in order to hamper the defense." Barker, 407 U.S. at 531. Less weight is applied when "[a] more neutral reason such as negligence or overcrowded courts" is the reason for delay. Id. Where there is "a valid reason, such as a missing witness," appropriate delay is justified and not weighed against the State. See id.

¶ 7 The trial court made the following findings. The original trial date was February 7, 2000. Although Ramirez told his attorney at the arraignment that he wanted a speedy trial demand, the attorney failed to request it. At the January 25, 2000, pretrial conference the State indicated that DNA testing at the State Crime Laboratory had not been completed.² Ramirez's attorney then moved for a competency evaluation. The request for a competency evaluation prevented the case from proceeding to trial until February 4, 2000, when the court found Ramirez competent to proceed. Trial was then set for April 1, 2000, but that date was adjourned when the crime lab's written report wasn't finished. Ramirez made a pro se written demand for a speedy trial in May 2000. Delay occurred between April 6 to August 7, 2000, at the request of the defense so that it could obtain its own DNA expert. Ramirez's attorney moved to withdraw and that motion was granted June 23, 2000. Newly appointed counsel asked that the August trial date be changed to a pretrial conference. Counsel died unexpectedly and therefore did not appear at the August 14, 2000 pretrial. New counsel was appointed and as of October 3, 2000, counsel was not prepared for trial. The trial was set for January 17, 2001. Thereafter the defense filed motions to dismiss and for the appointment of a special prosecutor. The pending motions were resolved on December 15, 2000. When the parties appeared for the trial in January 2001, four witnesses subpoenaed by the prosecution did not appear. A material witness warrant was sought to compel Cynthia's appearance. The matter was reset and trial commenced on March 5, 2001.

¶ 8 With these findings in place, we agree with the State's summation that only a few months of delay should be heavily weighed against the State. Time weighed lightly against the State includes the minimal delay after arrest and until the preliminary hearing because of the difficulty finding an attorney to represent Ramirez and a little more than a one-month delay in hearing motions between November and December 2000 caused by the prosecutor's schedule. Although waiting for the crime lab's DNA results and written report caused delay, it is not weighed against the State because both parties were waiting for evidence integral to the case. There was delay in getting the evidence to the crime lab because it was necessary for the prosecution to obtain a warrant to take a sample of Ramirez's blood and that was not accomplished until mid-January 2000. During the time awaiting crime lab results, Ramirez filed a motion for a competency evaluation which prevented the prosecution from proceeding to trial until resolved. After the crime lab report was done, Ramirez sought an adjournment to obtain his own DNA expert. Delays caused by counsel's motion to withdraw, the appointment of new counsel, the death of new counsel, and the appointment of a third attorney are not attributable to the State. After appointment of new counsel, trial counsel needed time to review the case and then filed two motions that had to be addressed before trial. Finally, the delay caused by the nonappearance of witnesses at the January 17, 2001 trial date is not weighed against the State because it was related to the availability of a key witness. There was no deliberate attempt to delay the trial or hamper the defense.

¶ 9 The next Barker factor is whether the defendant asserted the right to a speedy trial. The State contends Ramriez's pro se demand for a speedy trial was improper because it was filed while he was represented by counsel. See Robinson v. State, 100 Wis. 2d 152, 164-65, 301 N.W.2d 429 (1981) (a defendant has the right to be represented by counsel or to proceed pro se but not both). It is true that the motion was dated May 30, 2000, while counsel was still of record. However, the next day counsel prepared his motion to withdraw on the grounds that because of Ramirez's dissatisfaction, counsel's services had been terminated as of May 16, 2000. Indeed one of Ramirez's complaints about counsel was that a demand for a speedy trial had not been asserted. We deem significant that although Ramirez asserted his desire for a speedy trial pro se, at all times he sought the representation of counsel. His one pro se motion is an anomaly. Also, at the time he was demanding a speedy trial he was also forcing the appointment of new defense counsel which necessarily caused delay. There is no other formal demand for a speedy trial in the record, although at the adjournment of the trial in January 2001, defense counsel stated without objection that a speedy trial demand was made on October 3, 2000.³ Even so, defense counsel subsequently made motions to dismiss, for the appointment of a special prosecutor, and to sever charges which, if successful, were inconsistent with a demand to bring the case to trial in a timely manner. Ramirez did not consistently assert a speedy trial demand.

¶ 10 Ramirez claims prejudice from the denial of a speedy trial because he was in custody the entire time awaiting trial. Although lengthy pretrial incarceration and anxiety awaiting trial are forms of prejudice, the most important concern is the impairment of the defense. Scarbrough, 76 Wis. 2d at 97-98. Impairment of the defense exists if witnesses die or disappear, witnesses are unable to recall the events accurately, or the defendant is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare a defense. Id. at 98. There was no evidence that Ramirez's defense was impaired by the loss of witnesses or other evidence. While Cynthia and her mother claimed to not remember incriminating...