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Statute of Limitations – § 939.74(3) – Constitutionality; Pre-Charge Delay; Effective Assistance of Counsel – Investigation

Donald J. McGuire, 2010 WI 91, affirming unpublished decision; for McGuire: Robert R. Henak; BiC; Resp.; Reply

Statute of Limitations – § 939.74(3) – Constitutionality

Under § 939.74(3), the statute of limitations is tolled during “the time during which the actor was not publicly a resident within this state.” McGuire wasn’t a Wisconsin resident, but allegedly committed criminal acts in Wisconsin approximately 36 years before charges were issued. Application to his case of the tolling provision withstands constitutional challenge.

¶3 We conclude that Wis. Stat. § 939.74(3) is constitutional as applied to the facts of this case. It does not violate the Privileges and Immunities, Due Process, or Equal Protection provisions of the United States Constitution. Section 939.74(3) does not burden a fundamental right, and it is rationally related to the legitimate governmental interests of detecting crimes and apprehending criminals.

The court isn’t exactly writing on a blank slate: it rejected similar arguments in State v. Sher, 149 Wis. 2d 1, 437 N.W.2d 878 (1989), and it now does little more than reaffirm that earlier analysis. Why, then, did the court undertake review of already-broken ground? McGuire argued that Sher wasn’t controlling because it dealt with a facial challenge, while his is as-applied. McGuire, never a Wisconsin resident, didn’t flee the state, was easy to locate, and didn’t impede investigative efforts. The court doesn’t buy the distinction: “The distinction between public residents and public non-residents set out in Wis. Stat. § 939.74(3) is rationally related to the legitimate government interests of identifying criminals, detecting crimes, and apprehending criminals.  Therefore, § 939.74(3) is constitutional under both the Equal Protection and Due Process Clauses,” ¶43.

Pre-Charge Delay

Due process challenge to pre-charge delay (36 years in this instance) requires that the defendant show 1) actual prejudice from delay and 2) that the State was motivated to gain tactical advantage,  ¶45. McGuire concedes inability to show improper motive, and argues that such a showing should not be required — the court rejects the argument after canvassing caselaw form other jurisdictions, ¶¶46-53. Nor can McGuire make a showing of prejudice. Although he identifies a number of deceased witnesses, a witness’s death alone can’t supply prejudice. The defendant must make a “concrete” showing of “the substance and relevance of the witness’s testimony,” something he can’t do. ¶¶53-55.

Effective Assistance of Counsel

Counsel’s decision not to investigate certain witnesses was reasonable, ¶¶66-71.

A highly fact-specific issue, as these claims are by their very nature. The larger, operative principle is ithat counsel must reasonably determine that a particular witness isn’t worth talking to, taking into account what that witness is likely to say and what the theory of defense is going to be, ¶70. The rest is mere detail.

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