State v. Clark

1

State of Wisconsin, Plaintiff-Respondent, v. Brian Lashawn Clark, Defendant-Appellant.

No. 2022AP1657-CR

Court of Appeals of Wisconsin, District I

September 4, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.

APPEAL from a judgment and an order of the circuit court for Milwaukee County No. 2017CF1135: T. CHRISTOPHER DEE, Judge.

Before Donald, P.J., Geenen and Colon, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

PER CURIAM.

¶1 Brian Lashawn Clark appeals the judgment convicting him of first-degree recklessly endangering safety with use of a dangerous weapon, delivery of heroin with use of a dangerous weapon, delivery of cocaine with use of a dangerous weapon operating a vehicle without the owner's consent, and fleeing or eluding an officer. Clark also appeals the order denying his postconviction motion. We affirm.

BACKGROUND

¶2 A jury found Clark guilty of numerous counts related to his drug dealing and fleeing from police in a stolen vehicle.^[1] The events culminated in an encounter with police during which Clark fired a handgun at an approaching officer, who then opened fire in response. The circuit court imposed sentences totaling thirty-four years and ten months.

¶3 Clark sought postconviction relief, and the circuit court denied his motion without holding a hearing. This appeal follows. Additional background information relevant to the issues raised on appeal will be included below.

DISCUSSION

¶4 Clark makes the following claims on appeal: he was denied his right to a speedy trial; the circuit court erred when it allowed the State to present other-acts evidence; the circuit court erroneously exercised its sentencing discretion; and the circuit court erred when it denied his postconviction motion without holding a hearing. We address each argument in turn.

I. Speedy Trial

¶5 Clark contends that his right to a speedy trial was violated and the circuit court misapplied the law in analyzing the issue. Courts employ a four-part balancing test to determine whether a person's constitutional right to a speedy trial was violated, considering: (1) the length of delay; (2) the reason for the delay; (3)whether the defendant asserted his or her right to a speedy trial; and (4)whether the delay resulted in prejudice to the defendant. State v Borhegyi, 222 Wis.2d 506, 509, 588 N.W.2d 89 (Ct. App. 1998). "The right to a speedy trial ... is not subject to bright-line determinations and must be considered based upon the totality of circumstances that exist in any specific case." Id. We will uphold the circuit court's factual findings unless they are clearly erroneous, but we will determine independently whether those facts establish a constitutional violation. Id. at 508-09.

A. Length of Delay

¶6 The parties are in agreement that the length of delay in this case- 728 days from the filing of the complaint to the start of trial-was presumptively prejudicial. See State v Urdahl, 2005 WI.App. 191, ¶12, 286 Wis.2d 476, 704 N.W.2d 324 ("Generally, a post-accusation delay approaching one year is considered to be presumptively prejudicial."). This functions as a triggering mechanism for the remaining factors. See Borhegyi, 222 Wis.2d at 510. We address the weight accorded to the length of this delay in the discussion that follows.

B. Reason for the Delay

¶7 The parties disagree as to how much of the delay in this matter is attributable to the State. Clark claims at least 455 days of delay were attributable to the State. Meanwhile, the State contends that 199 of the days should be counted against it and no part should be weighted heavily.

¶8 "When considering the reasons for the delay, courts first identify the reason for each particular portion of the delay and accord different treatment to each category of reasons." Urdahl, 286 Wis.2d 476, ¶26. Only "deliberate attempts] by the government to delay the trial in order to hamper the defense is weighted heavily against the State[.]" Id. "[D]elays caused by the government's negligence or overcrowded courts ... are weighted less heavily." Id.

¶9 Conversely, "if the delay is caused by something intrinsic to the case, such as witness unavailability, that time period is not counted." Id. Other valid reasons for delays include those "attributed to the ordinary demands of the judicial system." Norwood v. State, 74 Wis.2d 343, 354, 246 N.W.2d 801 (1976). "[I]f the delay is caused by the defendant, it is not counted." Urdahl, 286 Wis.2d 476, ¶26; see also State v. Provost, 2020 WI.App. 21, ¶39, 392 Wis.2d 262, 944 N.W.2d 23 ("[Generally, 'delays caused by defense counsel are properly attributed to the defendant.'" (Citation omitted)).

¶10 The criminal complaint was filed on March 7, 2017. Clark's trial began on March 4, 2019. Clark argues that the following periods should be attributed to the State: 49 days from April 16, 2018, to June 4, 2018; 59 days from June 4, 2018, to August 2, 2018; 130 days from August 2, 2018, to December 10, 2018; 67 days from December 13, 2018, to February 18, 2019; and 150 days of delay resulting from calendar congestion.

¶11 The State agrees that April 16, 2018, to June 4, 2018, is attributable to it, and submits that the delay was caused by the prosecutor's request for an adjournment due to a death in her family. The State, however, asserts that the delay does not weigh heavily against it. We agree with the State. There is no indication that this was a deliberate attempt to delay the case. As such, we turn our attention to the period from June 4, 2018, to August 2, 2018.

¶12 Clark argues that the delay during this period was caused by the State's failure to disclose an Internal Affairs investigation being conducted by the Milwaukee Police Department related to officers involved in the case who were listed as fact witnesses for the State, in violation of Brady v. Maryland, 373 U.S. 83 (1963), and Kyles v. Whitley, 514 U.S. 419 (1995). Clark moved the circuit court to proceed with the trial on June 4, 2018, excluding the officers under investigation as a sanction. The court declined to do so and delayed the matter until August 2, 2018. Clark submits that the delay was due to the State's failure to fulfill its discovery obligations and should be weighed heavily against the State.

¶13 In contrast, the State contends the delay was caused by a discovery issue intrinsic to the case and therefore cannot be counted against either party. The State submits that this time was spent litigating a complex discovery issue which did not involve exculpatory evidence and that even if the time could be counted against it, Clark is incorrect that it can be weighted heavily against the State. Having reviewed the record, we agree. The "period of time necessarily required for the hearing and disposition of pretrial motions, whether made by prosecution or defense, [is] not to be considered as delays caused by either party."^[2] Scarbrough v. State, 76 Wis.2d 87, 101, 250 N.W.2d 354 (1977). This was not a deliberate attempt to delay the trial-it was, at worst, a delay caused by the government's negligence. Urdahl, 286 Wis.2d 476, ¶26. It therefore cannot be weighted heavily against the State. Id.

¶14 We next consider the period of August 2, 2018, to December 10, 2018. The parties set the trial date for December 10th, which was the earliest date that could accommodate the prosecution, defense, and court calendars. Clark contends that the circuit court disregarded the fact that the State was responsible for causing the unjustified delay, which again hinges on his belief that this was the result of the State's failure to fulfill its discovery obligations. As already discussed, that time was necessary for the hearing and disposition of pretrial motions, which is not to be considered a delay caused by either party.

¶15 We turn to the period of December 13, 2018, to February 18, 2019. After the December 10th trial date was adjourned, Clark was ordered released pursuant to his statutory speedy trial demand. He was released on December 11, 2018, and arrested the same day in an unrelated case. The State argued that the arrest should not affect the December 13th trial date, but Clark's trial counsel requested a continuance because counsel was unable to communicate with Clark for the period while Clark was being arrested, transported from the police department to the jail, and booked. This time should not be attributed to the State because it occurred at Clark's request. This delay does not count against the State. See id.

¶16 We agree with the State's calculation that 199 days of delay are attributable to it (150 days due to calendar congestion and 49 days from April 16, 2018, to June 4, 2018), none of which is weighted heavily against it.

C. Assertion of Right to Speedy Trial

¶17 Clark asserted his right to a speedy trial on March 9, 2018, 368 days after the filing of the complaint. Clark acknowledges that he was tried 361 days- less than one year-after he asserted his right to a speedy trial. This factor weighs in Clark's favor, but not as strongly as if he asserted his right early on. See id., ¶33 (weighing the third factor against a defendant because he did not assert his right to a speedy trial until twenty-seven months after the complaint was filed).

D. Prejudice to Clark

¶18 Clark contends he was severely prejudiced by 681 days of oppressive pretrial incarceration while the State pursued drawn-out bad-faith litigation and by the anxiety and concern surrounding his case. Clark additionally contends he was subjected to the State interfering with his right to an attorney in order to prepare for trial when he was held...