*1 error, Defendant Rogers, State, Plaintiff error. Argued September 8, (1974). 1975. Decided No. State 230 2, 1975. October 480.) (Also reported in 233 N. W. *2 argued by the cause was plaintiff error For the general, attorney whom with Beeker, J. assistant David gener- attorney Follette, La C. Bronson the briefs was al. by Fred- a there was brief in error the defendant
For Mussallem, all of Miller, Rothstein & H. and erick Miller by Miller. argument Frederick H. Madison, and oral whether J. The issue is T. Hansen, Connor the date offense the date of between against T. James proceedings of criminal institution defendant), vio- (hereinafter in error Rogers, defendant process of law under due defendant’s lated Constitution and the United States amendment fifth Constitution. of the Wisconsin I, art. sec. complaint in Lincoln April 5, 1973, was filed
On charging county of secs. court defendant with violations (1), 346.57 (1), (2), 346.62 946.41 346.70 346.70 (1), out of or relate All arise and 346.57 six counts Stats. оn Octo- accident occurred one-car automobile 28,1971. ber observed a man and were
On woman October belonging emerging from an automobile overturned held then that defendant defendant. Because the fact special county, attorney post of Lincoln of district county by circuit appointed prosecutor the Lincoln was charges arising the accident. prosecute out of court to investigation of the prosecutor special made an The charges brought prosecuted between accident and Cynthia against one January 17,1972, 29,1972, and June filing report respect Peck, with a false traffic *3 on pleaA no was entered contest automobile accident. bringing against a close. 29,1972, action Peck to June time, candidate for re-election At defendant a this was Sep- attorney. county district to the office of Lincoln primary defeated in the 1972, defendant was tember January 1, appointment of 1973. The on and left office by filed prosecutor continued order special was January 31,1973. criminal com- special prosecutor filed a six-count
The against 27, A on December 1972. sum- plaint defendant 1973, complaint February 4, and the mons was issued hearing 30, on March after a motion withdrawn 5, April 1973. The complaint filed on was An identical Affi- a subsequently filed motion dismiss. opposition in support thereto. in filed davits were judgment an order and dismiss- judge entered trial The 27, 1973, ap- ing complaint. the state November county court. The circuit circuit Lincoln pealed to the affirming judg- the order and an order entered court dismissing complaint. This county court of the ment follows. review an violation of
This case does not involve right speedy trial. The amendment defendant’s sixth right amendment, speedy violated trial cannot be sixth by pre-arrest delay. United States Marion Sup. 30 L. 2d 468. 404 U. S. Ct. Ed. recognized present not
The trial that the case did court ques- question. It then found that the a sixth amendment rights process posed tion concerned the defendant’s due a fair for trial. recognizing court, the United
The trial after in United Supreme this issue Court addressed States importunely supra, decided that rights of the precharge violаted the due by balancing promulgated on the test defendant based considering possible supreme sixth amend- court Wingo in Barker “speedy trial” violations ment Sup. Ed. 514, 530, 33 L. Ct. (1972), 407 U. S. writing for the court in in 2d 101.1 Mr. Justice Powell, speedy trial Barker, page 519, stated, to a “The rights generically the othеr en- different protection of for the in the Constitution shrined . . .” accused. correctly indicated appeal, the circuit court
On by committed error was issue was whether sole denied process was that due trial conclusions court its findings of the by delay, that the the rule since weight against great unless court must be sustained inapplicable the evidence is preponderance of clear finding of fact dispute, or where are not facts where law. The circuit upon erroneous view based *4 and of record that, on а review the based court stated decision, had occurred since no error the the reasons process require- fundamental due fairness is “essential notify- delay in prosecutions and undue in criminal ment charges pressed, un- to be breeds ing of the the accused 1 350, (1976), Hadley 66 2d N. W. 2d Wis. 225 v. State
164 affecting by adversely preparation and fairness the presentation of his defense.” of limitations
It that the statute is well established by legislature prescribed for various offenses guarantee against bringing overly prosecu- primary stale 116, 122, (1966), 383 U. v. Ewell S. tions. United States However, 773, this court Sup. L. 2d 627. 86 Ct. 15 Ed. jurisdictions have and a number of other considerable recognized the sole that limitations is not a statute of alleged delay by date of between the which standard considering a denial when and is measured offense arrest 516, (1968), v. 2d proсess. Midell Wis. of due State 54, therein.2 2d cases cited 162 N. and W. high con- Marion, supra, the court
In United States resulting alleged process of denial due the issue of sidered alleged offense and delay the date of between pages 325, at 326: indictment, and stated of “The 38-month between the end the scheme charged in the indictment and the date the defendants beyond period not extend the . of the were indicted did ap- applicable limitations . . Nor have statute of here. adequately pre-indictment pellees demonstrated thаt the delay by the Due the Government violated Process Clause. prejudice to conduct No actual defense proved, and there is or no intentionally delayed gain some tactical Government advantage Appellees appellees thеm. over or to harass rely any become applicable possibility solely extended real inherent delay: dim, that memories will witnesses light inaccessible, be lost. evidence limitations, however, possibili- these statute of enough to are not in themselves demonstrаte ties appellees fair receive a trial and therefore cannot justify indictment. Events dismissal prejudice, present at may but demonstrate speculative appellees’ claims are time due premature.” See also: State Gonzales 47 Wis. 177 N. 2d W. 843; McCarty (1970), 2d State Wis. 177 N. W. 2d 819. *5 ad- Marion also holds to accommodate sound rights justice to the of the defendant to ministration trial, necessarily judgment a fair it involve a based will Nevertheless, on Marion of each circumstances case. clearly prejudice that actuаl to the defendant’s states shown, possibilities case must be and that enough in inherent in view extended are not justify of the statute of dismissal. limitations supra, have Marion, The v. factors of United States determining upon been in of a relied absence prejudice in of actual or United substantial involving thirty- Joyce (7th 1974), 499 Fed. 2d Cir. (7th delay; Cir. v. Ricketson four-month United States involving fifty-six-month de- 1974), 498 Fed. 2d 1972), lay; (7th Cir. and United States White delay. involving Fed. a fifteen-month opinion that United States are of the We apply appropriate supra, it is not establishes Wingo, supra, amendment Barker v. factors of sixth determining rights prejudice as speedy in trial trial possible fair denial of due it relates delay. the trial court was in pre-arrest in a conclude We deciding using the instant the Barker error factors case. the trial record on which have us the samе
We before court made their determinations court and the circuit appropriate We, therefore, deem it prejudice. issue independent re- justice make an and in the interest and a determination as whether the record view of any actual or substantial has the defendant demonstrated to a fair as result prejudice to his delay. alleges in affidavit that he has been his
The defendant following ways: in the prejudiced provided with the names of witnesses (1) He was not therefore, and, to inter- was unable fifteen months long thе accident. after until them view He to obtain evidence *6 had no scene. from
(3) He to obtain evidence had no involved. automobile response this, that: to state indicates changed testimony over (1) The of the witnesses has period that in favor version more of defendant’s oсcurrences, and early
(2) very and informed was charges possibility brought, and that that would be inspection. under automobile was were There of the witnesses is no that showing, how available, had such not and there been testimony Defendant their would have been material. сharges obviously possibility of soon informed of the was enough inspect automobile to him to the scene. The allow States belonged him. United to involved supra, and circum- did not determine “when what resulting pre-accusation from stances actual prosecutiоn.” delays How- requires the dismissal of “every delay-caused ever, not it did determine should abort a criminal detriment to a defendant’s case prosecution.” prejudice of the defense has the conduct
No Any prejudice is proved. claim of actual or bеen unsubstantiated. has the defendant
Nor shown the state intention- gain ally delayed prosecutorial advantage some tactical delay the defendant or him. The over harass resulted action, pendency from Peck ad- and the state mittedly proceеd during elected not the defendant’s campaign or while he was the re-election district attor- alleges inconvenience, ney. The defendant indignity, anx- iety resulting delay financial loss publicity surrounding Assuming it. these facts undue they not true, do rise to the level of intentional be government gain advantage action to tactical or to harass.
The order of the circuit court is reversed and the cause remanded, judg- with directions to order the order and ment of the trial court vacated.
By the Court. —Order reversed and remanded. cause (dissenting). agree majority C. J. I with Wilkie, pre-accusation bringing that whether fatal to charge, against here, governed by defendant, as Supreme decision of the United case of Court United disagree States Marion.1 I majority’s with the interpretation decision, of that I and would rеverse and proceedings remand for further in the trial court because *7 the of Marion apply trial court did not the standards given and it apply an should be those following evidentiary hearing standards on the de delay. fendant’s motion to for dismiss disagree implication majority 1 with the clear of the. of Marion opinion two-part (actual that standard and intentional prejudice prosecutorial delay) ex- Marion type my opinion, in of case. In clusive test this interpreted prejudice that be to mean alone should Thus, cаn be sufficient to warrant dismissal. the United Supreme Court said: not, now, and could not “. . . we need determine when resulting prejudice and in circumstances actual what delays pre-accusation requires of dismissal prosecution.”2 opinion The final are: words may prej- dеmonstrate actual “. . . of the trial Events appellees’ process udice, claims are present due at time but premature.”3 speculative and 1 Sup. Ct. 30 404 92 L. 468. U. S. Ed. page Id. at 324. page Id. at passages prosecu- Neither of intentional mentions these delay mаndatory of separate torial a element as regard that of noted one test. this it should be specifically reserved federal cases decided since Marion4 argument had judgment prosecution Marion on a delay required prosecutorial a established intentional as element of test. light interpretation preferable
This of Marion is right proc- protected to due a constitutional defendant’s right ess, rec- a a fair trial. Marion which includes infringe ognizes pre-accusation delay upon can this requirеs right.5 a that Marion also defendant To hold delay carry heavy proving intentional burden every protection fair of this is inconsistent with case right. interpreted, not with Marion is inconsistent Thus balancing approach of Midell6 the more flexible According approаch, subsequent to this cases.7 Wisconsin only prosecutorial one factor which intentional consider, and it is not a condition the trial court should a that the case should be dis- precedent to determination approach flexible better This more secures missed. reasonably prompt due of a crime. accusation prejudice the defendant of actual
As hearing evidentiary afforded an on his motion was never delay. the defendant to dismiss Unlike where only passage potential, relied “on time,”8 producеd in the case the defendant instant *8 alleging amounting specific ac- affidavit sworn facts (1) prejudice. prosecutorial These included tual with- holding names of witnesses to crime 4 (7th 1972), v. United States White 170, 2d Cir. 470 175. Fed. 5 Marion, supra, v. 1, page United States footnote at 324. 6 516, (1968), v. Midell State 40 2d 162 N. 2d Wis. 54. W. 7 v. (1970), 843; Stаte 2d Gonzales 47 177 N. 2d Wis. W. McCarty 2d State Wis. 177 N. W. 819. 2d Marion, supra, page footnote United States at for more occurrence, than fifteen (2) after its months notifying of over fourteen months in defendant charged, he would be with the result he his lost meaningful chance survey to make a of thе scene of the crime and a useful test of the automobile involved in crime, apparent loss key at allegedly cross-examine two witnesses who given conflicting had accounts of the event.
I would remand with to the directions trial court to hearing evidentiary afford on his motion delay. to dismiss for error, Russo, Plaintiff in Defendant error.
State, Argued September (1974). 9, 1975. No. State 190 October Decided 2, 1975. (Also reported 485.) in 233 N. W.