No. 81-336
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1981
STATE OF MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
VS.
MARK CREEKMORE,
D e f e n d a n t and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f C a s c a d e
H o n o r a b l e J o e l G. R o t h , J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
Howard F. S t r a u s e a r g u e d , G r e a t F a l l s , Montana
F o r Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Mark Murphy a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l , H e l e n a ,
Montana
J . F r e d Bourdeau, County A t t o r n e y , G r e a t F a l l s , Montana
Thomas M. M c K i t t r i c k a r g u e d , Deputy County A t t o r n e y ,
Great F a l l s , Montana
Submitted: September 2 4 , 1981
Decided: JAB 5 1982
- -_
Filed: ,.m.fgI
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Defendant Mark Creekmore was convicted in a jury trial
of felony deceptive practices under section 45-6-317(1)(a),
MCA, in the District Court, Eighth Judicial District, Cascade
County. He was charged with making false claims to an
insurance company and receiving $1,840.00 as a result of the
deceptive claims.
The District Court sentenced Creekmore to a three-year
sentence, deferred upon certain conditions, including restitution.
He was designated a nondangerous offender.
Creekmore appeals from this judgment and sentence upon
two principal grounds: (1) that he was denied a speedy
trial, and (2) that evidence of whether he had taken a
polygraph test was improperly admitted against him.
We affirm the judgment of conviction.
The alleged crime occurred on or about September 23,
1979. The information was filed on July 31, 1980, and
defendant and his wife Diana Creekmore were arrested on July
31, 1980. They were released on their own recognizance on
August 1, 1980.
On January 19, 1981, the State filed a motion to set an
arraignment date. The court ordered an arraignment for
January 23, 1981. Due to an overcrowded caseload and a
conflict on the court calendar, the court, sua sponte,
ordered the January 23 date to be vacated and reset the
arraignment for January 30, 1981. On January 30, 1981, the
court vacated the arraignment because the presiding judge
was engaged in a trial in Choteau County. The arraignment
was reset for February 4, 1981.
On F e b r u a r y 4 , 1981, t h e a r r a i g n m e n t w a s h e l d w i t h b o t h
defendants pleading not g u i l t y . The c o u r t set an omnibus
h e a r i n g f o r F e b r u a r y 20, 1981, and a j u r y t r i a l f o r March
20, 1981.
On F e b r u a r y 20, 1981, t h e omnibus h e a r i n g w a s h e l d .
On March 3, 1981, t h e d e f e n d a n t s f i l e d t h e i r f i r s t
motion t o d i s m i s s f o r l a c k o f speedy t r i a l and a l s o a motion
t o c o n t i n u e t h e t r i a l d a t e o f March 20, 1981. The c o u r t
o r d e r e d a h e a r i n g on d e f e n d a n t s ' m o t i o n t o d i s m i s s on March
23, 1981, and a l s o o r d e r e d t h a t t h e March 20 j u r y t r i a l be
v a c a t e d , t o b e reset depending upon t h e r u l i n g on t h e motion
t o dismiss.
On March 13, 1981, t h e S t a t e f i l e d a b r i e f i n o p p o s i t i o n
t o t h e d e f e n d a n t s ' motion t o d i s m i s s .
On March 23, t h e d e p u t y c o u n t y a t t o r n e y h a n d l i n g t h e
c a s e w a s i n Helena b e f o r e t h i s C o u r t on a c a s e where t h e
Cascade County A t t o r n e y had been o r d e r e d t o a p p e a r , and
hence t h e h e a r i n g w a s v a c a t e d . The d e f e n d a n t s and t h e i r
a t t o r n e y w e r e p r e s e n t i n t h e D i s t r i c t Court a t t h e t i m e set
f o r t h e hearing.
On May 21, 1981, t h e d e f e n d a n t s f i l e d a second motion
t o d i s m i s s f o r l a c k of speedy t r i a l . An o r d e r was e n t e r e d
s e t t i n g t h a t h e a r i n g f o r J u n e 11, 1981.
On May 2 6 , 1981, t h e S t a t e moved t o set a t r i a l d a t e
and a n o r d e r s e t t i n g t h e j u r y t r i a l d a t e was e n t e r e d f o r
J u n e 1 7 , 1981.
On J u n e 3, 1981, t h e S t a t e moved t o v a c a t e t h e J u n e 11
h e a r i n g d a t e and reset t h e same f o r June 9. That motion was
granted.
On J u n e 9, 1981, a h e a r i n g was h e l d on t h e motion f o r
d i s m i s s a l f o r l a c k of speedy t r i a l . The d e p u t y c o u n t y
Under Barker, prejudice to defendant is to be con-
sidered as follows:
"Prejudice, of course, should be assessed
in light of the interests of defendants
which the speedy trial right was designed
to protect. This Court has identified three
such interests: (i) to prevent oppressive
incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the
possibility that the defense will be impaired.
Of these, the most serious is the last,
because the inability of a defendant adequately
to prepare his case skews the fairness of the
entire system. If witnesses die or disappear
during the delay, the prejudice is obvious.
There is also prejudice if defense witnesses are
unable to recall accurately events of the
distant past. Loss of memory, however, is not
always reflected in the record because what
has been forgotten can rarely be shown." Barker,
407 U.S. at 532.
Here, Creekmore was not subjected to oppressive pretrial
incarceration because he was released on his own recognizance.
The only anxiety claim is the fact that his wife, who was
also a defendant at the time, lost her job, she claiming
that the pending prosecutions caused her to lose the job.
The District Court disagreed on this point, however, since
there was conflicting evidence relating to the reasons for
her discharge. . The District Court relied on evidence that
she was terminated because of tardiness in reporting for
work rather than because of the pending charges. Moreover,
the District Court saw no relationship between her firing
and the pending charges or the right to a speedy trial.
Nothing in the record before the District Court at the
time it refused to dismiss for want of speedy trial, nor in
the record since,discloses in any way that Creekmore's
ability to prepare his defense was impaired. As the United
States Supreme Court said, that is the most important factor
with respect to the consideration of prejudice. Barker,
supra. If, in considering all the circumstances, the court
attorney who requested the June 9 hearing was not in court
because he was engaged in another felony trial before another
judge in Cascade County.
On June 9, 1981, the court took testimony with respect
to the motion to dismiss for lack of speedy trial and heard
oral arguments. He entered his memorandum decision and
order on June 10, 1981, denying dismissal for lack of speedy
trial.
On June 16, 1981, the charge against Diana Creekmore
was severed from that of her husband, Mark Creekmore, and
his trial setting was reaffirmed for June 17, 1981.
Mark Creekmore's trial before a jury came on in the
regular course and he was found guilty by the jury on June
18, 1981. His sentence was thereafter imposed.
Creekmore contends that the delay of approximately 11
months between his arrest and the date of the trial triggers
the tests of Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct.
2182, 33 L.Ed.2d 101. We agree. The delay in this case is
sufficient to trigger the balancing test required in Barker.
See State ex rel. Briceno v. Dist. Ct. of 13th Jud. Dist., Etc.
(1977), 173 Mont. 516, 568 P.2d 162; Fitzpatrick v . Crist (1974),
165 Mont. 382, 528 P.2d 1322.
The four factors to be considered under Barker are: (1)
length of delay, (2) reason for the delay, (3) the defendant's
assertion of his right to a speedy trial, and (4) the determination
of any prejudice to the defendant. Barker, 407 U.S. at 530;
State v. Larson (1981), Mont . - 623 P.2d 954, 957, 38
,
St-Rep. 213, 215. In this case we pass over the first three
factors named, because even if defendant's assertion as to
those factors are all in his favor, our view of the fourth
factor is dispositive in this case. In balancing the Barker
factors, the lack of prejudice tips the scales against defendant.
finds with respect to the factor of prejudice, that defendanfs
right to a fair trial was not impaired, that part of the
prejudice test, set forth in Barker, has not been met. On
that phase, Creekmore fails here.
We distinguish our holding in this case regarding
prejudice from our decision in State v. Fife (1981), -
,
Mont. - 632 P.2d 712, 38 St.Rep. 1334, where, though the
delay was shorter (194 days), the defendant was incarcerated
40 days in the county jail and 154 days in the state prison.
That consideration, plus his evidence of anxiety, tipped the
balance of the Barker test in Fife's favor. Those factors
do not exist here. Fife's incarceration impaired his right
to prepare his defense. Creekmore's defense was not impaired
as far as the record here shows. The delay in Creekmore's
case did not subvert, as far as we can determine, his right
to a fair trial. In applying the Barker balancing tests, we
take each case on its merits. Barker v. Wingo, supra, 407
U.S. 514, 530.
The second issue, the polygraph question, requires
explanation.
Creekmore, in an attempt to obtain more money from the
insurance company, told one of the insurance company's
employees, Kathy Williams, that he had taken a polygraph
examination through the Great Falls police and had been
cleared of any wrongdoing. Williams attempted to verify the
defendant's statements with the Great Falls police and was
told that the defendant had failed to keep an appointment to
take the polygraph examination. On direct examination at the
trial, witness Williams testified, in effect, that "there
was a statement made that he had taken a polygraph test,"
and that she had called Detective Warrington, and he related
to her that Creekmore had not taken such an examination. On
cross-examination, witness Williams indicated that the
statement actually had been made to her supervisor and that
she was not present when the statement had been made or that
she did not talk to Warrington. The State then called
Detective Warrington who testified that in fact he had
talked to Kathy Williams over the telephone about what Mark
Creekmore had said, and Warrington reported that Kathy
Williams had told him that Creekmore's statement was he had
taken the polygraph test. Warrington further stated he had
not taken such test.
Defendant cohtends that the adn~issionof this evidence
over his objection constituted hearsay, allowed polygraph
testimony which is not ordinarily allowable in Montana, and
that in effect it was a comment on his right not to testify.
The court, by jury instruction, cautioned the jury that
the defendant need not testify and that the jury is not
permitted to draw any inference from his failure to do so.
Warrington's testimony was admissible to show that witness
Williams had stated to him that she was directly involved in
the conversation and to show that she had made a prior
inconsistent statement. Rule 801 (d)(1)(A), Mont .R.Evid.
In jury argument, the State contended on this point only
that Creekmore had lied to Kathy Williams in an attempt to
get more money. By this the State intended to show Creekmore's
state of mind with respect to the crime charged against him.
We find no error on this point in the state of the record.
The judgment of conviction is affirmed.
Justice
We Concur:
Chief Justice