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State v. Nelson6/9/2005
Before Deininger, P.J., Vergeront and Higginbotham, JJ.
Renate Nelson appeals a judgment convicting her of two counts of child abuse. The issues are: (1) whether Nelson's right to a speedy trial was violated, and (2) whether the circuit court should have granted Nelson's motion for a new trial based on juror bias. We affirm.
Nelson first argues that her right to a speedy trial was violated. We use a four part balancing test to determine whether a defendant's right to a speedy trial has been violated. State v. Borhegyi, 222 Wis. 2d 506, 509, 588 N.W.2d 89 (Ct. App. 1998). We consider: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the right to a speedy trial, and (4) prejudice to the defendant. Id. We accept the circuit court's findings of historical fact unless they are clearly erroneous, but decide the ultimate constitutional question of whether the right to a speedy trial was violated de novo. State v. Williams, 2004 WI App 56, , 270 Wis. 2d 761, 677 N.W.2d 691.
Turning to the first part of the test, we must determine when the right to a speedy trial attached in order to determine the length of the delay. We have recently held that the right to a speedy trial attaches at the time of the arrest, which is when the first official accusation on the underlying charges occurred. Borhegyi, 222 Wis. 2d at 511. Nelson was arrested on the child abuse charges on January 17, 2001. The trial did not commence until May 20, 2002. " courts have generally found postaccusation delay 'presumptively prejudicial' ... as it approaches one year." Id. at 510 (quoting Doggett v. United States, 505 U.S. 647, 652 n.1 (1992)). As conceded by the State, the sixteen-month delay between Nelson's arrest on the charges and the trial was presumptively prejudicial.
Next, we turn to the reason for the delay. "When considering this factor, differing weights are assigned to reasons that may be given for the delay." Id. at 512. "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government." Id. (quoting Barker v. Wingo, 407 U.S. 514, 531 (1972)). "A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Id.
There was a two-month period between Nelson's arrest to the date of the initial appearance, March 14, 2001. The court set the date for the initial appearance on a date when Nelson would already have to be in court for another case. This period of time is not attributable to the State because the delay was for Nelson's convenience. There was a five-month period between the initial appearance and the preliminary hearing, which was held August 9, 2001. Nelson waived the time limit for the preliminary hearing and did not object to the date the hearing was scheduled. Although the delay was attributable to the circuit court's schedule, we do not weight it heavily against the State because Nelson affirmatively waived the time limit and acquiesced in the delay.
We also do not weigh the delay between August 9 and the September's arraignment against the State because the September 5 hearing was scheduled at a time that was convenient for Nelson's attorney, and, again, Nelson did not object to the delay. Between September 5 and November 19, the date originally set for trial, the parties held a pretrial hearing to resolve the charges, held a status hearing, and were addressing discovery matters. Because this time was reasonably necessary for the orderly administration of just
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