State v. Williams

• Decision Date: 11 February 2004
• Docket Number: No. 03-0604., No. 03-0603
• Citation: 270 Wis.2d 761,2004 WI App 56,677 N.W.2d 691
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Clyde Baily WILLIAMS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

270 Wis.2d 761

2004 WI App 56

677 N.W.2d 691

STATE of Wisconsin, Plaintiff-Respondent, v. Clyde Baily WILLIAMS, Defendant-Appellant.¹

Nos. 03-0603, 03-0604.

Court of Appeals of Wisconsin.

Submitted on briefs January 8, 2004.

Decided February 11, 2004.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Margaret A. Maroney, assistant state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and David J. Becker, assistant attorney general.

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

¶ 1. BROWN, J.

Clyde Baily Williams appeals from judgments of conviction for one count of first-degree sexual assault of a child contrary to WIS. STAT. § 948.02(1) (2001-02)² arising from a 1996 incident and two counts of first-degree sexual assault of a child contrary to § 948.02(1) arising from separate 1990 incidents and an order denying his postconviction motions for relief. Williams raises three arguments on appeal. First, he argues that his double jeopardy rights were violated when the trial court improperly granted the State's request for a mistrial and ordered a new trial over Williams' objection when Williams' counsel posed an improper question to a State witness. Second, he contends that the two-year and eleven-month delay between the grant of the new trial after he had successfully appealed his original conviction and the commencement of the second trial violated his right to a speedy trial. Finally, he submits that because the prosecutor filed two counts of first-degree sexual assault based on the 1990 sexual assaults only after Williams successfully appealed his original conviction for the 1996 sexual assault, those two charges were presumptively the product of prosecutorial vindictiveness. We reject each of Williams' arguments and affirm.

¶ 2. The relevant facts are as follows. In 1990, two sisters, Annitra J. (d.o.b. 8/12/84), and Okima J. (d.o.b. 10/1/83), told police that Williams sexually assaulted them in a men's bathroom in a Racine city park. After an investigation, the State concluded that "there wasn't adequate basis to prosecute." ¶ 3. In 1996, the State charged Williams with the sexual assault of Tyfonia S. (d.o.b. 8/17/90). Tyfonia had alleged that Williams touched her vaginal area while the two were in an elevator. Prior to the first trial concerning the 1996 charge, the prosecutor moved to admit "other crimes" evidence involving the 1990 allegations of Annitra and Okima. The court directed the State to raise the issue during trial and said it would decide the issue outside the jury's presence. At that time, Williams' counsel informed the court that he had a witness who may testify about "the prior sexual experience of [Tyfonia] that relates to her ... fabricating this incident." The court instructed Williams' counsel that before he asked a question pertaining to other sexual conduct of any witness, the court would need to hold a hearing.

¶ 4. At the February 1997 trial, the State called Tyfonia's mother, Angie R., to testify. She testified that Tyfonia said that Williams put his finger in her vagina while they were in an elevator. On cross-examination, Angie stated that it was her boyfriend, Thomas White, who first told her that something was wrong with Tyfonia. She further testified that she left Tyfonia in the care of White. Williams' counsel then asked Angie whether she knew that White had sexually molested two older children in the past. The State immediately objected to this question.

¶ 5. Outside of the jury's presence, the court questioned Williams' counsel about the factual basis for his question and the reason he did not bring the issue to the court's attention before trial. Williams' counsel indicated that the reason he did not raise the issue prior to trial was that it did not concern the sexual knowledge or experience of the victim. In other words, it was not a "rape shield" issue. He stated that it was the defense's contention that "if the child was assaulted, it was by Thomas White."

¶ 6. The State moved for, and the court granted, a mistrial. The court reasoned that the allegations involving White were dissimilar to the charges at issue in the matter at hand because White's two alleged victims were teenagers and Tyfonia was a child at the time of the alleged crime. The court further explained that defense counsel did not have a firm factual basis to support the defense's assertion not only that White, and not Williams, was the assailant in the Tyfonia case, but also that White had sexually molested the two other girls. For these reasons, the court stated that it did not think it could "somehow inform[ ] the jury" so as to correct the harm done and thus it had no other alternative but to grant a mistrial. Subsequently, Williams moved to dismiss the information based on the mistrial, arguing that the court erred in granting a mistrial. In denying the motion, the court stated that Williams' counsel's question of Angie had been provocative, prejudicial, immaterial and incendiary. The court stated that it had not seen any reasonable alternative to declaring a mistrial and denied the motion to dismiss.

¶ 7. Another trial commenced in July 1997, the jury found Williams guilty, and the court sentenced him to a forty-year prison sentence. Following his conviction, Williams moved for a new trial on the grounds of ineffective assistance of counsel. The trial court found that his counsel performed deficiently and ordered a new trial. The State appealed, but after remanding for a factfinding hearing, we dismissed the appeal on August 11, 1999, because the State failed to establish that its filing of the appeal was timely. ¶ 8. On October 27, 1999, Williams demanded a speedy trial in the third Tyfonia case. On October 28, he filed a written demand. The court set January 4, 2000, as the jury trial date. At a hearing on December 15, 1999, the prosecutor informed the court that he was trying to get the victim, Tyfonia, up from Chicago. He was not sure that the January 4, 2000 trial date would be possible.

¶ 9. On January 4, the State moved for a continuance, stating that it had to comply with the victim notification law and was unable to proceed. Williams moved for dismissal due to a speedy trial violation. The court denied the motion, citing the State's difficulty securing the victim's presence as sufficient grounds for adjournment. Pursuant to WIS. STAT. § 971.10, the court authorized Williams' release on bail. The parties agreed on March 15, 2000, as the jury trial date.

¶ 10. On March 15, 2000, the State again asked for an adjournment on the grounds that the victim had moved to Chicago and the State had been unable to reach her. Williams moved to dismiss, stating he was ready to proceed and the "speedy trial demand long expired." The court granted the State's request for an adjournment. The trial was set for June 14.

¶ 11. On May 9, Williams requested an adjournment of the June 14 trial date. He had retained new counsel and his new attorney had not yet received Williams' file from Williams' previous counsel. The jury trial was then set for July 10, 2000.

¶ 12. On July 10, the State asked for an adjournment because of problems with arranging travel for its other acts witnesses, Annitra and Okima, who had to fly in from Texas. The court summarized for the record an unrecorded discussion: The prosecutor had told Williams that if he insisted on going to trial, the State would charge him with the 1990 incidents. Williams personally opposed the adjournment, but his attorneys believed it to be in his best interest. The court granted the State's request for an adjournment, stating "there has been no absence of diligence by either party that fair cause for adjournment has been shown and that I am going to grant the request for adjournment."

¶ 13. On July 20, the State filed additional charges for the 1990 incidents. At a hearing on August 28, the parties discussed consolidating the two cases for trial. Williams requested that the trial not take place before October because of additional investigation necessitated by the new charges. The trial was scheduled for November 13.

¶ 14. Subsequently, the State charged Williams with two counts of bail jumping for being outside the authorized area for a short time on two days in September 2000. As a result of the bail jumping charges, Williams was returned to custody.

¶ 15. On November 13, the trial was adjourned with Williams' consent. The case was rescheduled for February 5, 2001. However, the case once again had to be adjourned because Williams' counsel was concerned that he would still be involved in another jury trial on that date. At this time, Williams once again raised the speedy trial concern.

¶ 16. As it turned out, Williams' attorney was available the week of February 5 and a hearing was held on February 6, but because the Court had another commitment that day, the sexual assault case could not proceed. The court then set March 26 as the trial date, and April 19 as the backup date.

¶ 17. While the parties could not try the sexual assault trial on February 6, there was time for the bail jumping case. The jury acquitted Williams of bail jumping. After thoroughly reviewing the record, the court did not release Williams.

¶ 18. When the March 26 trial date arrived, Williams' counsel asked for a day to talk to him. The following day, Williams' counsel informed the court that he was still trying to obtain the juvenile court records of Annitra and Okima. Williams' counsel had filed a motion to obtain the juvenile court records of the two girls. The court responded that Williams' counsel's motion was set for hearing "well in advance of the trial" but was taken off the schedule. The court stated that it was responsible for the delay. When the court mentioned starting the trial on April 23, Williams' counsel said...