– Dismissed but Reissued Charge – Barker v.
v. Ted W. Urdahl, 2005 WI App 191
For Urdahl: Mark Eisenberg
Defendant was not denied a speedy trial
under the 4-part test of >Barker
v. Wingo, 407
514, 530 (1972), (1) the length of delay;
(2) the reason for the delay; (3) the defendant’s assertion of his
right; and (4) prejudice to the defendant (¶11).
¶12 … Generally, a
post-accusation delay approaching one year is considered to be presumptively
prejudicial. State v. Borhegyi,
2d 506, 510, 588 N.W.2d 89 (Ct.
¶20 We conclude
that, under MacDonald,
the time period between the dismissal on
August 8, 2001
, of the initial charges against Urdahl
and the filing of the complaint on
October 3, 2001
, is not included in determining whether
his constitutional right to a speedy trial was violated.
[The court then canvasses
caselaw disagreeing as to whether the predismissal time period factors into the
delay with respect to the reissued charge; the court declines to resolve the
dispute, concluding that the delay is over a year and presumptively prejudicial
¶37 Balancing all
four factors, we conclude that Urdahl’s right to a speedy trial was not
violated. The twenty and one-half months attributable to the State is
certainly a long period of time, but not extraordinarily long, and no part is
weighted heavily against the State because it was due to the court’s congested
calendar. Balanced against that length of time is Urdahl’s failure to assert
his right to a speedy trial until after the trial was scheduled, which we weigh
heavily against his claim that his right to a speedy trial was violated.
at 531-32. In addition, Urdahl’s
requests for continuances “significantly diminish the weight of [his] demand
for a speedy trial.” State v. Williams,
2004 WI App 56, ¶41, 270
761, 677 N.W.2d 691 (citation omitted). Finally, he has shown only minimal prejudice.
Accordingly, the circuit court correctly denied Urdahl’s motion to dismiss this
| Speedy Trial
State v. Clyde Baily Williams,
2004 WI App 56, federal habeas denied,
Williams v. Bartow,
7th Cir No. 05-4736, 3/20/07
Williams: Margaret A. Maroney, SPD, Madison Appellate
Although a nearly 3-year delay in trying the case is enough to
trigger Barker v. Wingo balancing, no more than four
months of that total are attributable to the State, and delay
wasn’t prejudicial. ¶¶32-41.
|Sufficiency of Evidence, In General
| State v.
John Norman, 2003 WI 72, affirming unpublished
decision of court of appeals
| For Norman: Angela Kachelski
¶66. A defendant challenging the sufficiency of the evidence
used to convict him bears a heavy burden. A criminal conviction will
not be reversed unless the evidence, viewed most favorably to the State
and the conviction, is so insufficient in probative value and force
that it can be said as a matter of law that no trier of fact, acting
reasonably, could have found guilt beyond a reasonable doubt….
¶68. The jury is
the ultimate arbiter of a witness's credibility. Nothing about either
Shoeder's or the defendant's testimony or other evidence is so insufficient
in probative value and force that it can be said as a matter of law
that no trier of fact, acting reasonably, could have found the defendant
guilty beyond a reasonable doubt.
|6+-Year Delay in Charging
State v. Walter Blanck, Sr., 2001 WI App 288
For Blanck: Michael J. Backes
Issue: Whether defendant was denied speedy trial by delay of more than six
years in issuance of charge.
¶28;. While Blanck claims that the State violated his
constitutional right to a speedy trial by waiting over six years after the
criminal acts to arrest and charge him in this matter, case law is
unequivocal in holding that the Sixth Amendment right to a speedy trial does
not arise before there is a charge or arrest. While Blanck's due process
rights may have been implicated in the precharging delay, he neither alleges
nor proves actual prejudice from or improper motive for the delay.
Furthermore, there is no evidence that a retrial would produce a different
result in this matter, and the evidentiary rule of 'plain error' is
inapplicable here. We therefore affirm Blanck's judgments of conviction.
David S. Leighton, 2000 WI App 156, 237 Wis.2d 709, 616 N.W.2d 126
|For Leighton: Daniel Snyder
|Issue: Whether a 26 month delay between charge and trial violated defendant's right
to speedy trial.
|Holding: Though the delay was sufficiently lengthy to be
presumptively prejudicial, the remaining factors -- delay not only attributable to the
defense but integral to defense strategy; Leighton himself not only failed to assert right
to speedy trial but acquiesced in delay; no showing of prejudice in fact -- support the
conclusion that the right to speedy trial wasn't denied. ¶¶5-26.
State v. Bobby R. Dabney,
2003 WI App 108, PFR filed 5/23/03
For Dabney: Lynn E. Hackbarth
¶30. In order to demonstrate a due process violation on this basis, Dabney
has to establish that he suffered: (1) actual prejudice as a result of the
delay; and (2) that the delay arose as a result of an improper purpose, so
as to afford the State a tactical advantage over him. State v. Wilson,
149 Wis. 2d 878, 903-05, 440 N.W.2d 534 (1989). Whether the pre-charging
delay violated the due process clause is a constitutional question, which we
review independent of the trial court. See generally State v. McMorris,
213 Wis. 2d 156, 165-66, 570 N.W.2d 384 (1997).
National split, state and federal, as to correct formulation of test for pre-charge delay
noted, discussed in People v. Boysen,
Cal App NO. D046763, 7/3/07.
¶31. Dabney has failed to satisfy his burden. Although he alleges that
"memories fade" and "witnesses become unavailable" as time passes, he does
not set forth any specific facts to establish actual prejudice.
Without any more specific factual allegations, he has failed to sufficiently
present a claim of actual prejudice. See
State v. Monarch, 230
Wis. 2d 542, 551, 602 N.W.2d 179 (Ct. App. 1999). Rather, he relies
primarily on his claim that the statute of limitations expired and,
therefore, prejudice is "irrebuttably presumed." We disagree based on our
earlier conclusion that the statute of limitations was not violated in this
|17-Month Delay Between Arrest and Trial
|Sttae v. Michael B. Borhegyi, 222 Wis. 2d 506, 588 N.W.2d 89 (Ct. App. 1998)
|For Borhegyi: James B. Connell
|Issue/Holding: Delay of 17 months between arrest and trial worked denial of right to speedy trial:
The first of the four factors considered is the length of delay. ...
Before we can decide whether the presumption of prejudice applies in this case, we must first determine when the Sixth Amendment right to a speedy trial attaches. ...
The State suggests that Borhegyi's speedy trial rights commenced with the filing of the criminal complaint. We disagree. Borhegyi's speedy trial concerns attached at the time of his arrest, the date Borhegyi's first official accusation on the underlying charges occurred....
The second element to be considered in evaluating a claimed violation of a defendant's speedy trial rights is the reason advanced for the delay. ...
... While even negligence weighs against the State, we conclude the State's failure to even offer an explanation for such a substantial delay exceeds negligence and evinces a cavalier disregard of Borhegyi's speedy trial right. ...
The third factor to be considered in resolving speedy trial concerns is whether Borhegyi asserted his right to a speedy trial. Barker, 407 U.S. at 531. This factor is undisputed. Borhegyi filed a written motion demanding a speedy trial ....
The final factor to be considered is whether the delay resulted in prejudice to Borhegyi. ...
...[T]he prejudice we have already found relating to oppressive pretrial incarceration and prevention of anxiety are enough for us to conclude that the seventeen month delay resulted in at least minimal prejudice to Borhegyi. Under the circumstances of this case, minimal prejudice is all that is necessary to support our conclusion that Borhegyi was denied his right to a speedy trial and therefore we need not further analyze or develop this issue.