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COURT OF APPEALS DECISION DATED AND RELEASED November 9, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1620-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
LEON TAYLOR,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Dane County:
ROBERT R. PEKOWSKY, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Dykman, J.
PER
CURIAM. Leon Taylor appeals from a judgment of conviction
entered after a jury trial in which Taylor was found guilty of theft, contrary
to § 943.20(1)(a)(3)(b), Stats.,
and possession of cocaine, contrary to §§ 161.41(3m) and 161.14(7)(a), Stats., with an increased penalty for
habitual criminality, contrary to §§ 939.62 and 939.62(1)(a), Stats.
Taylor was found not guilty of burglary. Taylor argues that his statutory and constitutional right to a
speedy trial was denied, and that the charges against him were misjoined. We reject his arguments for the reasons set
forth below.
BACKGROUND
The record reveals that
on April 5, 1992, a woman staying in the University of Wisconsin-Madison Union
South guest rooms discovered that sixty-one or sixty-two one-hundred-dollar
bills had been taken from her room in her absence. Nothing else was missing from the room, and the investigating
officer determined that there was no sign of forced entry. Taylor, a custodian at Union South, was
among those personnel with access to the room key.
On April 5, 1992, Taylor
checked into a Howard Johnson's, paying cash for his stay. On April 6, 1992, Taylor opened a $520
savings account at a local bank.
Included in the deposit were five one-hundred-dollar bills.
On April 8, 1992, a
Madison police officer saw Taylor at the Howard Johnson's in the company of
another person. A consensual search[1]
of Taylor's room produced a small amount of cocaine residue, as well as
seventeen one-hundred-dollar bills.
Taylor stated at the time of the search that all the items in the room
were his.
An information was filed
which charged Taylor with burglary, theft and possession of cocaine.
Because this case
involves the claim that speedy trial was denied, we set forth the following
chronology:
DATE EVENT
4/9/92complaint filed; defendant makes
initial appearance.
4/16/92preliminary hearing scheduled,
defendant requests and gets new counsel.
4/22/92preliminary hearing and bindover.
5/14/92information filed, arraignment and
motion hearing
5/20/92defendant files motion in limine,
motion to suppress, motion for severance, demand for discovery, motion to
dismiss.
6/3/92defendant files motion to disqualify
the prosecutor.
7/27/92hearing on motion to disqualify the
prosecutor; trial court denies the motion, finding no legal basis for it.
10/8/92motion hearing on suppression and
severance motions.
12/9/92jury draw set for January 25, 1993,
before the Honorable Robert R. Pekowsky, with trial set for January 27 and 28,
1993, before the Honorable John C. Ahlgrimm.
12/18/92defendant files request for
substitution of Judge Ahlgrimm.
12/29/92case is reassigned to Judge Pekowsky
for jury draw on March 29, 1993, and jury trial on March 31 and April 1, 1993.
2/25/93defendant motion to disqualify Judge
Pekowsky.
3/25/93order entered denying the
disqualification motion; prosecution requests delay in trial date because chief
witness has recently had a baby.
3/26/93defendant files a petition for leave
to appeal the order denying his disqualification motion.
4/19/93court of appeals denies the petition
for leave to appeal.
5/3/93defendant files motion to reconsider
motion to suppress evidence.
5/5/93defendant files motion to compel
fingerprints from the victim.
5/17/93defendant files various motions in
limine.
5/18/93defendant files motion to conduct
fingerprint analysis and motion to reconsider severance motion.
5/25/93defendant's first jury trial begins
and ends in a mistrial.
5/26/93prosecution notifies the court and
defense counsel that the alleged victim will be out of the country from
June 18 until about August 15, 1993, and asks that new trial date take
this into consideration; defense counsel files a speedy trial demand.
6/2/93trial set for August 16, 1993.
6/7/93prosecutor asks court to adjourn trial
until after August 20, 1993, due to absence of chief witness.
6/11/93trial set for October 4, 1993;
thereafter defendant does not object
8/25/93hearing held at which defendant
objects to court's jurisdiction because ninety days have elapsed since filing
of speedy trial demand.
8/27/93hearing held on motion to disqualify
prosecutor; court denies the motion.
9/24/93defendant files motion to dismiss
based on inter alia, denial of speedy trial right.
10/4/93court denies
motion to dismiss based on denial of speedy trial right, finds defense counsel
partly to blame for permitting trial to be scheduled outside the ninety day
statutory period, and case proceeds to jury trial.
SPEEDY TRIAL
Taylor argues that his
right to speedy trial was denied. We
disagree. The chronology establishes
that much of the year-long delay between the filing of the information and the
May 1993 mistrial was caused by various defendant-initiated motions, two
requests for substitution, a petition for leave to appeal, motions for
reconsideration and the like. The
defendant-initiated motions routinely contain the allegation that the motion is
not brought for the purpose of delay, but to assure the defendant's
rights. This standard allegation
strongly suggests that defendant was aware of the potential for delay each
motion engendered, but judged that it was more important to bring the motion
than to expedite the trial. The record also establishes that no speedy trial
request was filed until after the mistrial.
Legal Standard
The United States
Supreme Court has set forth a four-factor analysis by which to determine
whether delay in bringing a criminal case to trial violates the right to a
speedy trial set forth in the Sixth Amendment to the United States
Constitution. We must consider the
length of the delay, the reason for the delay, whether and how defendant
asserted his speedy trial right, and the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514,
530-31 (1972). Under the Barker test,
we conclude that we must affirm the conviction.
Delay Until Mistrial
Applying these factors
to the one-year delay between the filing of the information and the mistrial,
as stated above, we conclude the reason for, and length of the delay can be
attributed to the defendant's tactic of filing successive motions and
substitution requests, as well as a petition for leave to appeal. We also note that he did not assert his
right to a speedy trial before the first trial. As to the prejudice factor,
defendant merely alleges general prejudice without specific example. We have independently examined the record
and have found no evidence that passage of time worked to the defendant's
disadvantage. Therefore, we do not
further consider the year delay between the arraignment and the first trial.
Mistrial
Taylor argues that the
mistrial is attributable to the State.
We disagree. As the trial court
found, the mistrial resulted from a question posed by defense counsel to a
prosecution witness over the State's objection. The court admitted that it should have sustained the objection
and found that the mistrial was not the fault of the prosecution. Therefore, we decline to find that the
mistrial was in any manner attributable to the State.
Delay After Mistrial
1.
Statutory Period
Defendant argued before
the trial court and again before this court that because more than the
statutorily permitted ninety days passed from the speedy trial requested until
the trial, the charges should be dismissed.
Section 971.10(2), Stats. He also implies that he is being denied his
United States constitutional right to a speedy trial. We disagree.
The record reveals that
on May 26, 1993, defendant for the first time requested a speedy trial. Trial was originally set for August 16,
1993, well within the statutorily required ninety-day period. Section 971.10(2), Stats. From the
record, it appears that date was selected because the prosecution had
previously informed the court that the alleged victim (and chief witness) would
be out of the country from June 18 until about August 15, 1993. However, the prosecution discovered that the
chief witness would not be available for the August 16 date and therefore asked
for a date after August 20. On June 11,
1993, the court rescheduled the trial for October 4, 1993.
When defendant was first
informed on June 11, 1993, that the trial was being set for a time outside the
statutory period, he did not object. In
addition, the trial court found that defense counsel misled the court and
opposing counsel into believing that the October date would work no hardship on
his client because his client would remain incarcerated until December on other
charges. In fact, the defendant was
scheduled for release on August 3, 1993.
The trial court found counsel had purposely failed to remedy the
misimpression in order to set up for appeal the speedy trial issue. As the trial court stated, it was on the strength
of this misimpression that the court allowed the trial to be scheduled outside
the statutory speedy trial deadline.
Having invited the error, if error it was, defendant may not now
complain. Soo Line R.R. Co. v.
Office of the Comm'r of Transp., 170 Wis.2d 543, 557, 489 N.W.2d 672,
678 (Ct. App. 1992).
2. Constitutional Rights
Going beyond
§ 971.10, Stats., the United
States Constitution also guarantees a speedy trial. U.S. Const. amend.
VI. Unlike the statute, the United
States Constitution contains no bright-line test specifying a certain number of
days. Rather, the Barker
four-factors test applies. Barker
v. Wingo, 407 U.S. at 533.
One of the Barker
factors is "whether and how" defendant asserted the speedy trial
right. As stated above, defense counsel
permitted the court to remain under a misimpression concerning defendant's
release date. Therefore the manner of
asserting the right does not trigger Barker, nor are
constitutional concerns implicated.
MISJOINDER AND SEVERANCE
Taylor argues that the
charges were misjoined, and that the trial court erred when it denied his
motion to sever the charges. As Taylor
acknowledges, misjoinder and severance are conceptually different. Within weeks of being charged, Taylor filed
a motion to sever the charges. However,
he never argued misjoinder until a motion filed very shortly before the first
trial which ended in mistrial. Further,
although the motion was filed, it was never argued (although other pending
motions were) and was not renewed after mistrial. Motions turning on a known point of law, but which are never
argued, may be deemed abandoned. Cf. Polan v. Dep't of Revenue,
147 Wis.2d 648, 660, 433 N.W.2d 640, 645 (Ct. App. 1988). We do not consider arguments not raised
before the circuit court. Zeller
v. Northrup King Co., 125 Wis.2d 31, 35, 370 N.W.2d 809, 812 (Ct. App.
1985). Therefore, we do not consider
the misjoinder argument further.
Taylor argued before the
circuit court that the charges should be severed because he would otherwise be
impaired in his ability to testify to the drug charge without waiving his right
not to testify in the theft and burglary charges. Whether charges should be severed is a matter within the
discretion of the circuit court. State
v. Hoffman, 106 Wis.2d 185, 209, 316 N.W.2d 143, 157 (Ct. App. 1982).
Taylor argues that he
wanted to take the stand to testify that he did not use drugs, and that no
drugs were detected in a urine test administered shortly before the
incident. However, as argued by the
prosecution, a negative test for use does not preclude a conviction of
possession. One may possess a drug, as
Taylor was charged with doing, without using the drug. Because the testimony Taylor wished to
present was not "important testimony" of the kind that compels
severance, Holmes v. State, 63 Wis.2d 389, 398 n.12, 217
N.W.2d 657, 662 (1974), the circuit
court did not err in denying the motion for severance.
By the Court.--Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.