State v. Cordero D. Coleman, 2023AP2414-CR, 12/27/24, District IV (recommended for publication), case activity
COA holds that a 32-month delay in trying Coleman did not violate his constitutional right to a speedy trial where the COVID-19 pandemic was the primary cause of the delay. In doing so, COA identifies a new category of reasons for state-attributed delay, “which encompasses those delays that are caused by a reasonable government response to a legitimate public emergency” and holds such delays should not be weighed against the state. (¶56).
In 2019, Coleman was charged with repeated sexual assault of a child who lived in the same apartment building as his mother, who regularly babysat the child. He went to trial nearly 32 months later, in 2022. The parties and the court split the 32 months up into three periods: (1) the “pre-COVID period,” which was the time between Coleman’s arrest and the suspension of jury trials in Dane County on March 12, 2020; (2) the “COVID period,” from March 12, 2020 through June 1, 2021, when jury trials were suspended in Dane County; and (3) the “post-COVID backlog period,” during which jury trials had resumed until Coleman’s trial. (¶3).
Coleman’s preliminary hearing was delayed several times during the pre-COVID period. (¶¶5-7). Ultimately his trial was scheduled for spring 2020, but postponed due to the onset of COVID-19. (¶8). The court goes on to describe the beginning of the pandemic and the suspension of jury trials in Wisconsin. (¶¶8-11). During the post-COVID backlog period, Coleman’s trial was delayed once again “because the judicial system was dealing with the backlog related to COVID-19 restrictions coupled with other disruptions due to the lingering pandemic.” (¶12).
Coleman did not object to any of the delays. Just before trial, Coleman’s trial counsel told the court that he had also intended to present testimony from Coleman’s mother, but that she was unavailable to testify because she had passed away in September 2021, and asked the court to instruct the jury that a necessary and material witness had died. (¶15). Counsel asserted that the delay in holding the trial was a violation of Coleman’s speedy trial rights. The court denied the request for a jury instruction but allowed introduction of a police report summarizing Coleman’s mother’s statements, but trial counsel did not introduce the report. (¶16). The jury found him guilty.
Coleman moved for postconviction relief, arguing that his constitutional right to a speedy trial had been violated, and that his trial counsel was ineffective for not objecting to the delay and moving for dismissal of the criminal charges on speedy trial grounds. The circuit court held a Machner hearing, at which trial counsel and Coleman testified, and the court denied the motion. (¶¶18-21).
As in the last recently-published speedy trial case out of District 4, State v. Ramirez, the COA applies the four-factor test from Barker v. Wingo. However, the court here recoins the phrase used for the first factor from “length of the delay” to “total time elapsed,” because, in its view, “it can be misleading to use the term ‘delay’ in an analysis of the first Barker factor.”
Total Time Elapsed
COA agrees with the parties that the nearly 32 months that elapsed between Coleman’s arrest and his jury trial was presumptively prejudicial. (¶27). Despite the court’s statement that it “do[es] not evaluate evaluate the reasons for the delay” in its assessment of the first factor, it notes that the circumstances in this case are readily distinguishable from any Wisconsin appeal in which a court has determined that a defendant’s speedy trial rights were violated, and states that “the only reason that the time to trial stretched beyond a year was a public health crisis that resulted in the suspension of all jury trials in Dane County.” (¶30). Regardless, the total time between arrest and trial here weighs in favor of Coleman’s claim.
Reasons for the Delay
In analyzing the second factor, the court determines whether the state is responsible for any periods of delay and, if so, it assign weight to the reasons the state gives for those delays. Ziegenhagen, 73 Wis. 2d 323, 666-67. The court begins by explaining that the time “‘required for the orderly administration of criminal justice,’—that is the time needed to prepare for trial in the ordinary course, which includes events such as the initial appearance, the preliminary hearing, the exchange of discovery materials, and pretrial motion hearings—is not considered ‘delay’ for purposes of the second Barker factor, provided that the events occur ‘expeditiously [and] without delay.'” (¶32).
The COA determines that significant portions of the pre-COVID period do not count as delay and are not attributed to the State because they encompass time that was “required for the orderly administration of justice.” (¶35). The court considers 4 continuances that occurred during the pre-COVID period, and either does not attribute them to the state or does not weigh them heavily against the state. (¶¶37-44).
Next, the COA addresses delay in the COVID period, attributing it to the state because government actors suspended jury trials in Dane County during these 466 days. (¶¶45-46). The degree to which courts should weigh COVID-19-related delays against the state is a matter of first impression in Wisconsin. The court considers the three pre-existing categories of delay attributable to the state–(1) a deliberate attempt to delay the trial; (2) more neutral reasons, such a negligence and overcrowded courts; and (3) valid reasons caused by something intrinsic to the case–and determines that none apply to the COVID period. (¶¶47-48). As there is no binding precedent related to COVID-19 delays in the context of speedy trial violation claims, COA consults case law from other jurisdictions and determines that there may be good reasons for not weighing the delay against the state when a defendant’s trial is delayed by an unprecedented and catastrophic event. (¶¶49-56). Finally, the court holds that “when a defendant’s trial is delayed by an unprecedented and catastrophic event,” such as COVID-19, it should not be weighed against the state. (¶57).
Last, the COA considers the post-COVID backlog delays. The circuit court found that it could not have scheduled Coleman’s trial “any sooner because the judicial system was dealing with the backlog related to COVID-19 restrictions coupled with other disruptions due to the lingering pandemic,” and “trial priority was generally being given to defendants who were held in pretrial custody.” COA attributes this delay to the state, but concludes it is a “neutral” reason that is weighed less heavily. (¶¶58-61).
Of the total 971 days between arrest and trial, COA weighs 263 against the state, although not heavily.
Assertion of the Speedy Trial Right
Coleman did not assert his speedy trial right during the time the case was pending, and the first mention was at trial when counsel asked the circuit court to give a “missing witness” instruction. COA weighs this factor against Coleman, although not heavily, as there was no suggestion that Coleman was deliberately delaying trial and he asserts that he failed to assert his speedy trial rights because his trial counsel was ineffective. (¶¶66-68).
Prejudice
When assessing this factor, courts generally consider “the three interests that the right to a speedy trial protects: prevention of oppressive pretrial incarceration, prevention of anxiety and concern by the accused, and prevention of impairment of defense.” Coleman’s pre-trial incarceration was short-lived and he does not argue he suffered significant anxiety or concern. His claim to prejudice therefore rests on the third interest, and he argues that the delay prejudiced his ability to present a defense because his mother passed away while his case was pending. COA disagrees that Coleman has established that he was prejudiced based on the inability to present his mother’s testimony at trial because his claim that she would have provided exculpatory evidence is speculative, and could not have convinced the jury there was no way Coleman could have committed the offense. (¶¶74-76). Finally, Coleman suffered some prejudice as a matter of law, due to the overall time the case was pending, but it is insufficient in light of the lack of egregious conduct on the state’s part. (¶77).
COA distinguishes the lengthy timeframe from any other case in which it has found a speedy trial violation on the basis that it attributes the majority of the delay to the COVID-19 pandemic. Balancing the four factors, it concludes that Coleman’s constitutional right to a speedy trial was not violated. (¶78). His ineffective assistance of counsel claim fails on both prongs–counsel’s performance is not deficient by failing to file a motion that would have been denied, and there was no prejudice as a pretrial motion to dismiss would have been denied. (¶¶79-84).
