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State v. Nelson6/9/2005
ice, we conclude that this period of time should not be weighted against the State. Finally, there was a six-month period from the first trial date to Nelson's trial in May 2002. This delay occurred because the circuit court bumped Nelson's case for a three-week medical malpractice case and failed to promptly reschedule Nelson's trial. The circuit court conceded that this delay was entirely its fault, and we conclude that this six-month period should be weighted against the State, but not heavily.
Turning to the third part of the test, Nelson asserted her right to a speedy trial twice. She first demanded a speedy trial on September 5, 2001, and again brought up her demand on October 10, 2001. This factor weighs in favor of Nelson's claim that her right to a speedy trial was violated.
Finally, we look at prejudice to Nelson. When analyzing prejudice in a trial context, we focus on whether the defendant was incarcerated prior to trial, whether the defendant experienced anxiety and concern by virtue of having the charges unresolved, and the impairment of the defense. State v. Ziegenhagen, 73 Wis. 2d 656, 671, 245 N.W.2d 656 (1976). Nelson contends that she was prejudiced in two ways. First, she was distressed by the fact that the charges were pending against her. We attribute to this contention some weight. Second, she contends that her anxiety was exacerbated by the fact that she was separated from her daughter, the victim of her abuse, while the charges were pending. Addressing the latter contention, we agree with the State that the trial's delay had little bearing on Nelson's separation from her daughter. While the charges were pending, Nelson was permitted to see her daughter with supervision. However, it appears that Nelson did not see her daughter because her daughter is estranged from her, and Nelson stated to the circuit court during sentencing that she doubted she would see her daughter again until she was an adult. Therefore, we reject Nelson's claim of prejudice with regard to seeing her daughter.
Considering the four factors together, we conclude that Nelson's right to a speedy trial was not violated. While six months of delay is attributable solely to the circuit court's error in failing to schedule the trial, Nelson did not bring the scheduling omission to the circuit court's attention for several months and, once she did so, the circuit court promptly scheduled the trial. The delay was not an attempt by the prosecution to hamper the defense and, in fact, Nelson's defense was not prejudiced by the delay. She was also not personally prejudiced by the delay except for the fact that the charges remained unresolved for an additional period of time, causing her unease. Under these facts, we cannot conclude that the delay in Nelson's trial rises to the level of a constitutional violation.
Nelson next argues that the circuit court should have granted her an evidentiary hearing on her motion for a new trial based on juror bias. To be entitled to a new trial based on that fact that a juror lacked candor during voir dire, a defendant must show that "a juror incorrectly or incompletely responded to a material question on voir dire and ... it is more probable than not that under the facts and circumstances surrounding the particular case, the juror was biased against the moving party." See State v. Faucher, 227 Wis. 2d 700, 726, 596 N.W.2d 770 (1999). A juror is subjectively biased if he or she cannot act as "a reasonable person who is sincerely willing to set aside any opinion or prior knowledge that the juror might have." State v. Kiernan, 227 Wis. 2d 736, 745, 596 N.W.2d 760 (1999).
Nelson contends that one of the jurors failed to candidly answe
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