Williams v. State

• Decision Date: 01 October 1968
• Citation: 40 Wis.2d 154,161 N.W.2d 218
• Parties: James L. WILLIAMS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error (two cases).
• Court: Wisconsin Supreme Court

Page 218

161 N.W.2d 218

40 Wis.2d 154

James L. WILLIAMS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error (two cases).

Supreme Court of Wisconsin.

Oct. 1, 1968.

Stanley F. Hack, Milwaukee, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., Madison, David J. Cannon, Milwaukee County Dist. Atty., Harold B. Jackson, Jr., Asst. Dist. Atty., Milwaukee, for defendant in error.

HANLEY, Justice.

As a basis for review defendant alleges the following grounds:

1. He was denied a speedy trial;

2. He was denied his right to be present at all proceedings in a criminal matter;

3. There is insufficient credible evidence to sustain his conviction; and

4. A new trial should be granted in the interest of justice.

Speedy Trial.

Art. I, sec. 7 of the Wisconsin constitution and the Sixth Amendment of the United States constitution guarantee an accused the right to a speedy trial.

'* * * A speedy trial, generally speaking, is one conducted according to prevailing rules, regulations and proceedings of law, free from arbitrary, vexatious and oppressive delays. * * *' Shepherd v. United States (8th Cir. 1947), 163 F.2d 974, 976.

The Supreme Court of United States has also attempted to explain the right:

'* * * This guarantee (speedy trial) is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself. However, in large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. Therefore, this Court has consistently been of the view that 'The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.' Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 49 L.Ed. 950. 'Whether delay in completing a prosecution * * * amounts to an unconstitutional deprivation of rights depends upon the circumstances. * * * The delay must not be purposeful or oppressive.' Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393.' United States v. Ewell (1966), 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627.

Recently this court has commented on the right:

'* * * the mere lapse of time does not constitute a denial of the right to speedy trial. * * * the accused must be tried as soon as the orderly operation of the court permits. * * *' Commodore v. State (1967), 33 Wis.2d 373, 377, 147 N.W.2d 283, 285.

'* * * Each case involving an alleged denial of this right turns on its own facts; * * *' State v. Reynolds (1965), 28 Wis.2d 350, 353, 137 N.W.2d 14, 15.

In this case, Williams was arrested by a Milwaukee police officer at approximately 3:30 a.m., on June 11, 1966, in an alley behind the Greater Milwaukee Discount Store, 2345 North 3rd street, Milwaukee, Wisconsin, on suspicion of burglary. Subsequently a co-defendant, Larry Midell, was arrested by police after a chase of a few blocks. Both were charged with a violation of sec. 943.10(1)(a), Stats.

The defendant was taken before a magistrate on June 11, 1966. At his request a preliminary examination was set for July 8, 1966. Following the July 8 examination, Williams was bound over for trial. He was arraigned on July 21. At that time he requested severance and waived a jury. Trial was scheduled for August 25, 1966.

Subsequently, the co-defendant Midell was arraigned on July 25. He also requested severance and waived a jury. The trial court declined to sever the trials, rescheduled the instant case, and set both matters down for trial on August 9, 1966.

On August 9, on the motion of the assistant district attorney, the case was continued until August 30, 1966. The reason for the continuance was that the complaining witness was not in town. Bail was vacated but defendant remained incarcerated because of a parole revocation arising by reason of the charge in the instant case.

On August 30, a separate trial of the co-defendant (arising out of a matter entirely unrelated) was still in progress. The case involving Williams was therefore adjourned to September 7, 1966.

On September 7, 1966, the trial court clerk failed to have defendant produced from the Green Bay reformatory. Defendant's attorney stated that he would ask for dismissal since this was the third time trial had been set and frustrated through no fault of the defendant. The trial court then offered to hear the case the following Saturday or on a subsequent Friday afternoon. Neither date was acceptable to all the parties. In responding to the Saturday offer, defendant's counsel stated, 'There isn't that much of a rush.' The case was then set down for trial on October 21, 1966.

On October 21, Williams was in court without counsel. His attorney had been elected district attorney for Oneida county, and he was not available for trial. Williams complained about the numerous delays and about not having been brought down from the Green Bay reformatory for the September 7 trial date. Since Williams was not represented by counsel, the case was adjourned until October 24, 1966.

On October 24, the trial court appointed a new attorney for the defendant (the previous attorney had been privately retained). After a discussion between both defendants and their respective counsel, the day of March 9, 1967, was agreed upon for trial. Williams indicated on the record that he was satisfied with the March date.

These facts do not indicate that the defendant was denied a speedy trial. It is certainly unfortunate that such a combination of factors developed. But it is obvious that all of the fault cannot be put on the prosecution. It is equally obvious that the delays were not purposeful or arbitrary.

Nor does it appear that the delay was oppressive. Although it is true that defendant was incarcerated during this time, bail on this charge was vacated on August 9, 1966. Even if charges had been dismissed at that time, defendant would have been confined on his parole violation. Nor is there any claim that any defense available to defendant was prejudiced by the delay. The fact that he was represented by different counsel is not oppressive, especially when, as the record shows, he was adequately defended.

Right to be Present.

There is a further contention that it was error for the trial court to grant a six weeks' adjournment (from September 7, 1966, to October 21, 1966) without the presence...