Stuebgen v. State, 4325

• Decision Date: 12 April 1976
• Docket Number: No. 4325,4325
• Citation: 548 P.2d 870
• Parties: Jeffrey A. STUEBGEN and Robert H. Roelfson, Appellants (Defendants below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 870

548 P.2d 870

Jeffrey A. STUEBGEN and Robert H. Roelfson, Appellants (Defendants below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4325.

Supreme Court of Wyoming.

April 12, 1976.

John A. Sundahl, Godfrey & Sundahl, Cheyenne, and John H. Bisbee, Bisbee, Geil & Kezer, Boulder, Colo., for appellant Stuebgen.

Terry W. Mackey, and Edward P. Moriarity of Urbigkit, Moriarity, Halle & Mackey, P. C., Cheyenne, for appellant Roelfson.

David B. Kennedy, Atty. Gen., H. J. Arnieri, Asst. Atty. Gen., Cheyenne, and Stuart S. Healy, Jr., Special Asst. Atty. Gen., Sheridan, for appellee.

Before GUTHRIE, C. J., McCLINTOCK, THOMAS and ROSE, JJ and ARMSTRONG, District Judge, Retired.

UPON REARGUMENT

ARMSTRONG, District Judge, Retired.

Appellants were each charged separately, but tried together before a jury in Platte County, Wyoming, convicted and jointly appeal on charges of unlawfully and feloniously having in their possession with intent to deliver a controlled substance, marihuana. The issues here are:

1. Were defendants deprived of their rights to speedy trial?

2. Was the specific intent instruction erroneous?

We answer both questions affirmatively.

On March 19, 1972 the defendants were stopped by a highway patrolman for driving a car with only one Colorado license plate. During his investigation of the traffic offense the officer's suspicions were aroused that marihuana was concealed in the vehicle, whereupon he found a baggie of marihuana, a pipe and cigarette papers in the glove compartment. The men were forthwith arrested and one of them ordered to drive the car into town and to the police station. Two days later a justice of the peace issued a warrant to search the car where 31 baggies (1.86 lbs.) of the controlled substance were discovered in the trunk. A criminal complaint and warrant were then issued on March 22, and the defendants were brought before the justice of the peace on March 23 and were bound over to district court for trial. Both men deposited bail. Both defendants filed motions on May 30 to suppress their statements and the marihuana, and to dismiss the complaints. The motions were heard by the district court on June 13 and denied on June 16.

Whether the arrest, the initial discovery of the material in the glove compartment, the issuance of the search warrant, the delay of four days before bringing defendants before the justice of the peace initially, or the denial of the motion to suppress and the first motion to dismiss were lawful, need not be considered in this opinion because the court reverses the conviction, judgment and sentence on other grounds.

Both defendants were arraigned together on their separate informations on May 9, 1972. They entered their pleas of not guilty and the court then announced that their cases would

'* * * be set down at the earliest time for trial. And I can't tell you definitely just when we will have a jury present in this county. It could be sometime this summer, but in greater likelihood it is going to be this fall sometime after the crops in this county have been harvested and the jurors will be more available for trial purposes.'

Defense counsel, prior to the pleas and having reserved the right to present motions, then asked the court for twenty days to file their motions, and suggested that the trial date could be set at the time the motions were heard. The court then set the time for arguing these motions for June 13, 1972. The motions to dismiss and to suppress evidence were denied June 16, 1972. Thirteen months later the trial was set for September 12, 1973, fifteen months after the motions were denied and eighteen months after arrest.

On August 14, 1973 defendants filed new motions to dismiss the actions (supported by affidavit), on the ground that they had been deprived of their constitutional right to a speedy trial, asserting that eighteen months would elapse between the day of their arrests and trial date, and fifteen months between the order denying their motions and trial time; that the delay was not caused by the defendants; that the delay had impeded and impaired their occupations and academic pursuits and commitments; and that no proceedings or justification appeared why the trial was not held in the fall of 1972 as the court had indicated at the arraignment.

The motions were heard on September 11, 1973, the day before trial. The court overruled the motions to dismiss for want of a speedy trial, saying that he regretted the delay; that his colleague had been ill and there was a delay in appointing a new judge; that he had been under heavy presure in his three-county district to get everything done expeditiously; that he did not think defendants had been prejudiced 'to the extent represented by counsel'; that defendants had not been incarcerated during the delay; and that if there were fault in not having the trial sooner it was the court's and not the State's attorney's. The State's counsel also added that a jury had not been called in his county in the fall of 1972 and that this was the second jury trial set and tried in the fall of 1973.

Rule 45(b), W.R.Cr.P. reads in part:

'* * * if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.'

The appellants contend there was an unnecessary delay in bringing them to trial, that the delay violated their constitutional rights to a speedy trial, and that it was reversible error for the trial court not to have dismissed the informations.

The Sixth Amendment to the Constitution of the United States reads in part:

'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial * * *.'

Art. 1, § 10 of the Wyoming Constitution reads:

'In all criminal prosecutions the accused shall have the right * * * to a speedy trial by an impartial jury of the county or district in which the offense is alleged to have been committed.'

The Fourteenth Amendment, Section 1 of the Constitution of the United States reads in part:

'* * * nor shall any State deprive any person of life, liberty, or property, without due process of law * * *.'

Art. 1, § 37 of the Wyoming Constitution reads:

'The State of Wyoming is an inseparable part of the federal union, and the constitution of the United States is the supreme law of the land.'

The judicial power of the United States is vested in the Supreme Court and shall extend to all cases arising under the Constitution of the United States. Article III, United States Constitution.

In 1967 the United States Supreme Court held that the Fourteenth Amendment of the United States Constitution made its Sixth Amendment guarantee of a speedy trial applicable to all states. Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Hence, in recognition of the supreme law of the land, the United States Supreme Court decisions on speedy trials are accorded full credit in deciding the question presented in this portion of the appeal. In addition, it becomes the duty of this court to re-examine the previous decisions of this court in the light of our own constitutional guarantee and the recent and later United States Supreme Court interpretations of the constitutional guarantee of speedy trials.

Two of our most recent cases on this constitutional question are Boggs v. State, Wyo., 484 P.2d 711 (decided in May, 1971), and Shafsky v. City of Casper, Wyo., 487 P.2d 468 (decided in September, 1971), reh. den., where lack of prejudice and lack of demand for trial, constituting waiver of the right, were substantial factors considered by the court in holding the right had not been violated. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (decided May 25, 1970), and the preview of things to come in Justice Brennan's concurring opinion, answered some of the questions raised in the Wyoming cases. One quote from Dickey is:

'* * * (T)he right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial.' 398 U.S. at 38, 90 S.Ct. at 1569.

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) was decided after Boggs and Shafsky. It definitely rejected the demand-waiver theory, and Justice Powell, writing for a unanimous Court, for the first time set out flexible standards to consider in determining whether an accused has been deprived of his constitutional right to speedy trial. Cosco v. State, 503 P.2d 1403, 1405 (Wyo.1972) points out the important four factors which Barker taught. In considering, first, the length of the delay (19 months in Cosco); second, the reason for the delay; third, the defendant's assertion of his right; and, fourth, prejudice to the defendant, the court found that Cosco's insanity pleas required time-consuming psychiatric examinations; that he had brought an action against the warden of the penitentiary which had to be disposed of before trial on the aggravated assault case; that he had filed numerous motions necessitating hearings before trial; that he had changed attorneys five times; that nothing appeared in the record indicating any unreasonable delay attributable to the prosecutor; and that he was not prejudiced since he was then serving four consecutive life sentences and most of the delays were for his denefit. The court held against Cosco.

Cosco cited several cases besides Barker. One was United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The main thrust in Marion was that the Sixth Amendment did not protect against delays occurring prior to arrest. However, the opinion said in part:

'* * * Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.' 404 U.S. at 320...