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02/01/72 STATE v. KWITEK AND ANOTHER

February 1, 1972

STATE, RESPONDENT,
v.
KWITEK AND ANOTHER, APPELLANTS



Appeal from a judgment and an order of the Circuit Court for Milwaukee County: John L. Coffey, Circuit Judge.

Motion for Rehearing Denied, without Costs, on April 10, 1972.

Beilfuss, J. Wilkie, J. (minority OPINION(S)ing). Mr. Chief Justice Hallows and Mr. Justice Heffernan join in this opinion.

The opinion of the court was delivered by: Beilfuss

On July 23, 1969, the defendants John P. Kwitek and Donald Crisp, after a trial to the court without a jury, were found guilty of armed robbery and concealing identity in violation of secs. 943.32 (1) (b) and (2), and 946.62, Stats. 1967; and on August 8, 1969, after a presentence investigation, they were each sentenced to prison terms of fifteen years to run consecutive to substantial terms (Kwitek twenty years and Crisp fifteen years) in federal penitentiaries.

Prior to the trial, a motion by both defendants to dismiss the information for want of a speedy trial was made and denied. After sentence, in post-conviction motions, the defendants again demanded the charges be dismissed because of the want of a speedy trial. These motions were denied and the defendants appeal.

The facts will be set forth in the opinion.

The single issue is whether the defendants were denied a speedy trial.

Both the Wisconsin and the United States Constitutions provide for a speedy trial.

Art. I, sec. 7 of the Wisconsin Constitution reads:

"In all criminal prosecutions [by indictment or information] the accused shall enjoy the right . . . to a speedy public trial . . . ."

The sixth amendment to the United States Constitution reads:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, . . ."

The armed-masked robbery in question was committed on April 24, 1967, and defendants were convicted on July 23, 1969.

The procedural facts material to a determination of the speedy trial issue, presented chronologically and in quite some detail, are as follows:

On April 24, 1967, the crime in question was committed. On June 19, 1967, a complaint and warrant were issued for this offense.

In September of 1967, the defendants were arrested on a federal charge of bank robbery and have been in federal custody since that time, except for two days when defendants were at large after an escape.

In October, 1967, the first indictment against defendants for a federal offense was dismissed because of a misnomer of one of the defendants; however, they were held in custody and rearrested shortly thereafter.

An attorney, Richard B. Surges, was appointed to represent the defendants as indigents in federal court. On November 17, 1967, Surges, by letter to the Milwaukee county district attorney, notified the district attorney that the defendants were federal prisoners and were being held at the Waukesha county jail. He further, on behalf of the defendants, demanded a speedy trial. On December 5, 1967, the defendants were arrested and appeared in a state court in Milwaukee county. They were found indigent and the same attorney, Surges, was appointed to represent them. On December 12, 1967, they appeared in county court of Milwaukee county and upon the motion of the defendants' attorney, Surges, the preliminary hearing was adjourned to January 4, 1968.

On the same day, December 12, 1967, the defendants escaped from the Ozaukee county jail and were at large for two days. During the escape one of the guards was quite brutally beaten up. After apprehension the defendants were placed in the Kenosha county jail because it was the most secure jail available to federal authorities.

The defendants did not appear for the January 4, 1968, preliminary hearing date and the matter was continued until January 10, 1968; nor did they appear on the January 10th date, but their attorney, Surges, did. The federal marshal, who had custody of the defendants was requested to produce the defendants in the state court for both the January 4th and January 10th proceedings. He refused to honor the request upon the advice of an assistant United States attorney that because of the escape attempts the defendants were poor security risks. Mr. Surges, knowing the defendants would not appear in the state court, persisted in moving for a dismissal of the complaints because of a delay beyond the statutory period for a preliminary hearing without a waiver by the defendants. The motion to dismiss was granted without prejudice.

On January 17, 1968, a new complaint and warrant were issued but not served by Milwaukee county authorities.

On January 23, 1968, after pleas of guilty, both defendants were sentenced in federal court for bank robbery and escape. The defendants were immediately sent to federal prison at Leavenworth, Kansas, and their official custody transferred from the United States Marshal for the Eastern District of Wisconsin to the Attorney General of the United States and the Bureau of Prisons.

On January 24, 1968, a detainer was filed against defendants with the warden of Leavenworth. Both defendants were advised of the detainer about March 6, 1968. Both defendants testified that as soon as they were advised of the detainer they wrote to the chief of police of Milwaukee demanding a speedy trial. Other than the defendants' statements, there is no proof of such a letter or demand.

In May of 1968, Kwitek was transferred to the federal penitentiary at Marion, Illinois. Crisp remained in Leavenworth, Kansas.

On July 22, 1968, Crisp prepared and sent a motion for a speedy trial to the clerk of court of Milwaukee county demanding a speedy trial.

On August 2, 1968, Ben J. Wiener, a deputy district attorney for Milwaukee, responded as follows:

"I am checking into the matter of the cases pending here against you and will advise you within the next several days as to what procedure we will take.

"In the meantime will you kindly advise what your pleas will be so that we may more conveniently arrange with the court for setting your matters on the calendar."

Crisp responded to Wiener's letter, again demanding a speedy trial. The letter did not mention Kwitek. Wiener replied to this letter on October 28, 1968. He stated:

"This will acknowledge your last letter with reference to returning you to Milwaukee to stand trial on the several charges that are pending against you.

"I am preparing the necessary papers to effectuate your return but in the meantime I wish you would advise me more definitely, if you so wish, as to what your plea will be to the matters pending here. In one letter you stated to me that your plea would be satisfactory to the court. I am not demanding that you advise what your plea will be but if you desire to so inform me then such information will aid in setting your matters for hearing."

On December 6, 1968, Wiener prepared an affidavit and a writ for ad prosequendum to produce Kwitek from Marion, Illinois, and Crisp from Leavenworth, Kansas. These documents were not served nor filed. Three days later, December 9, 1968, Wiener prepared a memorandum for David J. Cannon, ...


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