State v. Rogers

• Decision Date: 02 October 1975
• Docket Number: No. S,S
• Citation: 233 N.W.2d 480,70 Wis.2d 160
• Parties: STATE of Wisconsin, Plaintiff in Error, v. James T. ROGERS, Defendant in Error. tate 230.
• Court: Wisconsin Supreme Court

Page 480

233 N.W.2d 480

70 Wis.2d 160

STATE of Wisconsin, Plaintiff in Error, v. James T. ROGERS, Defendant in Error.

No. State 230.

Supreme Court of Wisconsin.

Oct. 2, 1975.

Error to review an order of the circuit court for Lincoln county, entered October 31, 1974, affirming an order and judgment of the county court of Lincoln county, Hon. Frederick A. Fink, Acting County Judge, of Wood county, presiding (hereinafter referred to as trial court). The order and judgment of the trial court dismissed the complaint. The State of Wisconsin, plaintiff in error (hereinafter State), seeks review.

Bronson C. LaFollette, Atty. Gen., David J. Becker, Asst. Atty. Gen., Madison, for plaintiff in error.

Miller, Rothstein & Mussallem, Madison, for defendant in error.

CONNOR T. HANSEN, Justice.

The issue is whether the delay between the date of the alleged offense and the date of the institution of criminal proceedings against James T. Robers, defendant in error (hereinafter defendant), violated defendant's right to due process of law under the fifth amendment to the United States Constitution and art. I, sec. 8 of the Wisconsin Constitution.

On April 5, 1973, a complaint was filed in Lincoln county court charging defendant with violations of ss. 946.41(1), 346.70(1), 346.70(2), 346.62(1), 346.57(2) and 346.57(3), Stats. All six counts arise out of or relate to a one-car automobile accident that occurred on October 28, 1971.

On October 28, 1971, a man and woman were observed emerging from an overturned automobile belonging to defendant. Because of the fact that defendant then held the post of district attorney of Lincoln county, a special prosecutor was appointed by the Lincoln county circuit court to prosecute any charges arising out of the accident.

The special prosecutor made an investigation of the accident and brought and prosecuted charges between January 17, 1972, and June 29, 1972, against one Cynthia Peck, for filing a false traffic report with respect to the automobile accident. A plea of no contest was entered on June 29, 1972, bringing the action against Peck to a close.

At this time, defendant was a candidate for re-election to the office of Lincoln county district attorney. In September of 1972, defendant was defeated in the primary and left office on January 1, 1973. The appointment of the special prosecutor was continued by order filed January 31, 1973.

The special prosecutor filed a six-count criminal complaint against defendant on December 27, 1972. A summons was issued on February 4, 1973, and the complaint withdrawn after a motion hearing on March 30, 1973. An identical complaint was filed on April 5, 1973. The defendant subsequently filed a motion to dismiss. Affidavits were filed in support of and in opposition thereto. The trial judge entered an order and judgment dismissing the complaint. November 27, 1973, the State appealed to the Lincoln county circuit court. The circuit court entered an order affirming the order and judgment of the county court dismissing the complaint. This review follows.

This case does not involve an alleged violation of the defendant's sixth amendment right to a speedy trial. The sixth amendment speedy-trial right cannot be violated by a prearrest delay. United States v. Marion (1971), 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468.

The trial court recognized that the case did not present a sixth amendment question. It then found that the question posed concerned the defendant's due process rights for a fair trial.

The trial court, after recognizing that the United States Supreme Court addressed this issue in United States v. Marion, supra, importunely decided that the precharge delay violated the due process rights of the defendant based on the balancing test promulgated by the Supreme Court for considering possible sixth amendment 'speedy trial' violations in Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101. ¹ Mr. Justice Powell, in writing for the court in Barker, p. 519, 92 S.Ct. p. 2186, stated, 'The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused . . .'

On appeal, the circuit court correctly indicated that the sole issue was whether error was committed by the trial court in its conclusions that due process was denied by the delay, since the rule that the findings of the trial court must be sustained unless against the great weight and clear preponderance of the evidence is inapplicable where facts are not in dispute, or where a finding of fact is based upon an erroneous view of the law. The circuit court stated that, based on a review of the record and the reasons for the decision, no error had occurred since 'essential fairness is a fundamental due process requirement in criminal prosecutions and undue delay in notifying the accused of the charges to be pressed, breeds unfairness by adversely affecting the preparation and presentation of his defense.'

It is well established that the statute of limitations prescribed by the legislature for various offenses is the primary guarantee against bringing overly stale prosecutions. United States v. Ewell (1966), 383 U.S. 116, 122, 86 S.Ct. 773, 15 L.Ed.2d 627. However, this court and a considerable number of other jurisdictions have recognized that a statute of limitations is not the sole standard by which delay between the date of the alleged offense and arrest is measured when considering a denial of due process. State v. Midell (1968), 40 Wis.2d 516, 162 N.W.2d 54, and cases cited therein. ²

In United States v. Marion, supra, the high court considered the issue of alleged denial of due process resulting from delay between the date of the alleged offense and indictment, and stated at 404 U.S. pp. 325, 326, 92 S.Ct. at p. 466:

'The 38-month delay between the end of the scheme charged in the indictment and the date the defendants were indicted did not extend beyond the period of the applicable statute of limitations here . . . Nor have appellees adequately demonstrated that the pre-indictment delay by the Government violated the Due Process Clause. No actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them. Appellees rely solely on the real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence be lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment. Events of the trial may demonstrate actual prejudice, but at the present time appellees' due process claims are speculative and premature.'

Marion also holds that to accommodate the sound administration of justice to the rights of the defendant to a fair trial, it will necessarily involve a judgment based on the circumstances of each case. Nevertheless, Marion clearly states that actual prejudice to the defendant's case must be shown, and that possibilities of prejudice inherent in any extended delay are not enough in view of the statute of limitations to justify dismissal.

The factors of United States v. Marion, supra, have been relied upon in determining an absence of a showing of actual or substantial prejudice in United States v. Joyce (7th Cir. 1974), 499 F.2d 9, involving a 34-month delay; United States v. Ricketson (7th Cir. 1974), 498 F.2d 367, involving a 56-month delay; and United States v. White (7th Cir. 1972), 470 F.2d 170, involving a 15-month delay.

We are of the opinion that United States v. Marion, supra, establishes that it is not appropriate to apply the Barker v. Wingo, supra, factors of the sixth amendment speedy-trial rights in determining actual prejudice as it relates to possible denial of due process and fair trial in a prearrest delay. We conclude the trial court was in error in using the Barker factors in deciding the instant case.

We have before us the same record on which the trial court and the circuit court made their determinations on the issue of prejudice. We, therefore, deem it appropriate and in the interests of justice to make an independent review of the record and a determination as to whether the defendant has demonstrated any actual or substantial prejudice to his right to a fair trial as a result of the delay.

The defendant alleges in his affidavit that he had been prejudiced in the following ways:

(1) He was not provided with the names of witnesses for 15 months, and, therefore, was unable to interview them until long after the accident.

(2) He had no opportunity to obtain evidence from the scene.

(3) He had no opportunity to obtain evidence from the automobile involved.

In response to this, the State indicates that:

(1) The testimony of the witnesses has changed over that period more in favor of defendant's version of the occurrences, and

(2) and (3) defendant was informed very early of the possibility that charges would be brought, and that the automobile was under inspection.

There is no showing that any of the witnesses were not available, and had there been such showing, how their testimony would have been material. Defendant was obviously informed of the possibility of charges soon enough to allow him to inspect the scene. The automobile involved belonged to him. United States v. Marion, supra, did not determine 'when and in what circumstances actual prejudice resulting from preaccusaction delays requires the dismissal of the...