No. 82-92
I N THE SUPREME COURT O THE STATE OF M N A A
F O T N
1983
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-vs-
R O B I N CHARLES SMITH,
Defendant 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 Fourth J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f i l l i s s o u l a ,
The H o n o r a b l e D o u g l a s H a r k i n , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
P a t t e r s o n , M a r s i l l o , Tornabene & S c h u y l e r ; C h a r l e s
J. T o r n a b e n e a r g u e d , M i s s o u l a , Montana
F e r g u s o n & M i t c h e l l , M i s s o u l a , Montana
For Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , K e l e n a , Montana
James W. McLean a r g u e d , A s s t . A t t y . G e n e r a l , H e l e n a
R o b e r t L. Deschamps, County A t t o r n e y , !.lissoula, Xontana
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Submitted: A p r i l 21, 1983
Decided : October 6 , 1983
Filed:
6CT 6 - 1983
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Clerk
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Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Following a jury trial, defendant Robin Smith was found
guilty of burglary, forgery, and solicitation. The District
Court of the Fourth Judicial District, Missoula County,
sentenced the defendant to 40 years in the Montana State
Prison, with 25 years suspended. Defendant appeals his
conviction to this Court. We affirm.
In Spokane, Washington, during the evening of March 6,
1981, the defendant and Cindy Clardy attended a party at the
home of Penny Braun. There, Clardy stole two purses from the
residence, including one belonging to Penny Braun. Clardy
took the purses to obtain identification cards for cashing
checks.
Clardy and the defendant gave different accounts of what
happened after they left the party. According to Clardy, she
and the defendant then drove from Spokane for Missoula,
Montana. They stopped in Idaho for the night because of
headlight trouble. After reaching Missoula the next day,
they drove around town looking for places from which they
might steal payroll checks.
After checking into a motel and eating dinner, the
defendant and Clardy resumed their patrol of Missoula
businesses. Some time that evening, the defendant parked the
car, while Clardy waited. He returned with a number of
items, including a check protector, 27 blank checks and about
$430, which he brought to the car.
The next day, Clardy and the defendant attempted to use
the typewriter they had brought from Spoka.ne to fill out the
blank checks. However, the typewriter was broken, so Clardy
used an identification card belonging to Penny Braun to rent
another typewriter. The rented typewriter was never
returned.
The forged instruments were Missoula Sheet Metal checks.
Clardy and the defendant made the checks out to "Penny Braun"
for approximately $200 each and the defendant signed the
checks as the employee of Missoula Sheet Metal authorized to
issue payroll checks. After using Penny Braun's
identification cards to cash five checks at four different
stores, Clardy and the defendant returned that evening to
Spokane.
According to the defendant, he did not go to Missoula
the night of March 6, 1981, but rather stayed in Spokane with
a good friend, visited his sister in Spokane the next
morning, and spent that day painting his apartment.
The defendant was arrested in Spokane, Washington, on
April 21, 1981, and brought to trial in Missoula, Montana, on
November 2, 1981. The defendant was charged with the
burglary of Missoula Sheet Metal, forging the stolen checks,
and solicitation for encouraging Cindy Clardy to deliver the
forged checks, pursuant to sections 45-6-204, 45-6-325, and
45-4-101, MCA, respectively.
The defendant raises three issues on appeal:
1. Whether the evidence of the theft of Penny Braun's
purse and the rental typewriter was evidence of "other
crimes," and if so, whether it was properly admitted at trial
according to Rule 404 (b), M. R.Evid. ?
2. Whether the defendant was denied his right to a
speedy trial?
3. Whether the District Court erred by refusing the
defendant's request that he interview two witnesses?
The District Court admitted the evidence of the stolen
purse and typewriter on the grounds that this evidence was
"inseparably related" to the accused crimes of burglary,
forgery, and solicitation. The defendant claims on appeal
that evidence of the stolen purse and typewriter constituted
evidence of "other crimes" and as such the procedures
mandated in State v. Just (1979), Mont . , 602 P.2d
957, 36 St.Rep. 1649, should have been followed.
In State v. Trombley (1980), Mont . , 620 P.2d
367, 37 St.Rep. 1871, we held that evidence of "defendant's
simultaneous misconduct inseparably related to the alleged
criminal act" was not evidence of other crimes and therefore,
the procedural mandates of Just need not be followed. The
principal question here is whether the thefts of the purse
and typewriter are such "inseparably related" acts of
misconduct.
In Trombley, credit cards were stolen at the same time a
truck was stolen. The defendant was charged solely with the
theft of the truck, but at trial evidence of the defendant's
use of the stolen credit cards was also admitted. On appeal,
the defense claimed it was error to use this evidence of
other crimes without first following the procedural
requirements of Just. We concluded that the evidence of the
stolen credit cards was not evidence of "other crimes" and as
such, the procedural guidelines of Just need not be followed.
Our reasoning in Trombley was based in part on our
discussion of "other crimes" evidence in State v. Jackson
(1979), 180 Mont. 195, 589 P.2d 1009. In Ja.ckson, we
affirmed the admission into evidence of items that were
stolen at the same time and from the same person as the items
which were the basis for the theft charge. Such evidence was
not considered "other crimes" evidence because it was not
evidence of a "wholly independent" crime. (180 Mont. at 202,
589 P.2d at 1014.)
Here, the defendant contends that the acts of stealing
Penny Braun's purse and not returning the rental typewriter
are not simultaneous acts of "misconduct inseparably related
to the alleged criminal act." The defendant contends that
these acts are "wholly independent" of the act constituting
burglary, forgery, and solicitation. Therefore, defendant
contends, the evidence of the stolen purse and typewriter
must be considered evidence of "other crimes."
Under Rule 404 (b), M. R.Evid. , evidence of other crimes,
wrongs, or acts is admissible as proof of "preparation" or
"plan." Here, the purse and typewriter were needed in order
to carry out the forgery and bad checks scheme, and as such
were part of the "preparation" for the crime charged. The
inherent prejudice of this evidence is outweighed by its
great probative value in showing how the defendant was able
to commit the crimes charged. See Smith v. State (1972), 152
1nd.App. 654, 284 N.E.2d 522.
We hold that the provisions of Just need not be met in
this case. The stealing of the purse, and the keeping of the
rented typewriter were inseparably related to the common
general scheme of the defendant to engage in burglary,
forgery, and solicitation of crime. The other crimes
evidence is explanatory of his method and purpose in
committing the crimes charged against him.
Defendant Smith also claims prejudice because other
incidents of criminal activity were imputed to him through
testimony at trial. Penny Braun testified that rocks were
thrown at her windshield and that Robin Smith communicated to
her threats upon her life. A motion for mistrial based on
this evidence of "other crimes" was denied. Detective Dave
Wiyrich, testified to the alleged offering of "hush money" by
Smith to Penny Braun. He also described the search he
conducted of Robin Smith's apartment as an "administrative
search," implying that the defendant was a parolee and that
the search was conducted by the parole department. A motion
for mistrial based on this evidence was denied. Finally,
Detective Wiyrich, in response to a question regarding the
possible involvement of Robin Smith's brother, Tom, in this
crime, indicated that Spokane authorities were also "familiar
with Robin Smith." In response to additional questioning by
defense counsel regarding Tom Smith's record, the prosecutor
made an off-the-cuff remark that he would like to inquire of
the detective about Robin Smith's record. Within a few
seconds, the detective informed the jury that he did indeed
have the records of both Robin and Tom Smith with him,
holding up several computer sheets to the jury.
Robin Smith contends that these events, the interjection
by the prosecutor and the unsolicited testimony regarding the
defendant's criminal record by the detective were
particularly prejudicial to the defendant. His motion for
mistrial on this conduct was also denied by the District
Court.
Robin Smith also charges that the prosecutor unfairly
asked him whether he filed income tax returns or had federal
taxes deducted from his check; that Tammy Craig testified
that she saw Robin Smith throw a check protector into a river
and that she had seen him break into places before the
Missoula break-in.
The State answers the additional contentions as follows:
Although Penny Braun testified that rocks were thrown at her
windshield, there was no hint or testimony that they were
thrown by Robin Smith; the threats that Penny Braun received
are not specified, nor is there indication that the defendant
made the threats; however, evidence of threats would be
admissible to show consciousness of guilt under State v. Shaw
(19821, Mont . -, 648 P.2d 287, 39 St.Rep. 1324; the
offer of money to keep quiet is again admissible as evidence
of defendant's consciousness of guilt; and "administrative
search" does not imply parole; the police being "familiar
with" the defendant and his brother does not necessarily mean
a prior criminal record; the testimony of the officer that he
had a copy of the defendant's criminal record was elicited by
the defense over the objection of the prosecution, and is not
a basis for an appeal.
We agree with the State's contentions with respect to
the additional items of evidence that came up in the trial.
We find no error therein which would serve to reverse
defendant's conviction on those grounds. We do not condone
the prosecutor's statement that he would like to inspect the
criminal record of the defendant while the detective was on
the stand, as the remark was overzealous. The error,
however, was harmless.
On the second issue, the defendant contends that his
case should be dismissed because his right to a speedy trial
was violated.
Every defendant is guaranteed the right to a speedy
trial U.S. Constitution Amendment V, S 2; Mont. Const., Art.
11, S 24. Four factors must be considered in order to
determine whether a defendant's right to a speedy trial has
. CORRECTION. In prepdrlny thls ~piiiloiltor p u b -
Hon. J o h n C. S h e e h y lication, we noted in our verification o titles and
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J u s t i c e , Supreme C o u r t citations the matters listed below. Corrections have
Room 4 1 4 J u s t i c e B u i l d i n g been made on our copy of the opinion.
215 N o r t h S a n d e r s
H e l e n a , Montana 59620
IOale.
October 1 9 , 1983
Re.
S t a t e v. S m i t h , No. 82-92, Oct. 6, 1983
P a g e 7, l i n e 3 from bottom -- Amendment V , § 2 s h o u l d read Amendment
VI.
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WEST PUBLISHING COMPANY
Box 3 5 2 6
St. Paul, MN 55165
been violated: (1) the length of delay; (2) the reason for
the delay; (3) defendant's assertion of the right; and (4)
prejudice of the defendant from the delay. Barker v. Wingo
(1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. The
length of the delay has been considered the "triggering
mechanism" in determining whether the right of a speedy trial
has been violated. If the length of the delay is not
presumptively prejudicial, there is no reason to consider the
other factors. Barker, 407 U.S. at 530. See also State v.
Fife (1981), Mont. , 632 P.2d 712, 38 St.Rep. 1334.
For purposes of determining length of delay, the clock
begins to run when the defendant is arrested or when the
complaint is filed. State v. Larson (1981), Mont . I
623 P.2d 954, 38 St.Rep. 213; State v. Freeman (1979), 183
Mont. 334, 599 P.2d 368.
In this case, the defendant was arrested on April 21,
1981. The Missoula authorities filed a complaint against him
on May 7, 1981, and asked the defendant to waive extradition
proceedings. On May 18 , the defendant decided not to waive
extradition and formal extradition procedures began. A
governor's warrant was issued on June 15, 1981. On June 30,
the defendant decided to waive formal extradition.
The defendant traveled to Missoula on July 2, had his
initial appearance on July 6, an information was filed on
July 22, and his arraignment was held on July 29. The
information was amended August 12, an omnibus hearing was
held September 1, trial was initially set for October 19, but
was continued to November 2. Defendant was finally brought
to trial 195 days after the defendant's arrest. In Fife,
supra, we presumed prejudice to the defendant from a delay of
194 days; the delay was measured from the date the
remittitur was ordered, remanding the cause for a new trial
and there was no plausible reason for the State's inaction.
Here, the defendant did not arrive in Montana and become
available for trial until July 2, 1981. Extradition
proceedings went on for nearly 60 days, from May 7 until July
2. While diligent prosecution includes a timely demand for
extradition of a defendant, State v. Sterling (1979), 23
Wash.App. 171, 596 P.2d 1082, extradition proceedings are a
sufficient reason for delay if the State has been diligent.
See for example, Balla v. State (1976), 97 Idaho 378, 544
P.2d 1148, where the Court decided that extradition tolls the
calculation of the length of the delay.
The State is, therefore, not responsible for the 60 days
that expired while defendant pursued his right to require
formal extradition. We cannot say the defendant's right to a
speedy trial was prejudiced by the remaining delay of 135
days.
Defendant's last contention is that he was denied the
right to assist in his own defense when he was not allowed
personal interviews with two witnesses called by the State on
rebuttal. While the District Court had denied the defendant
personal interviews, defendant's counsel were allowed to
interview the witnesses.
As a general rule, the State cannot deny defendant's
counsel access to a material witness, State v. Gangner
(1925), 73 Mont. 187, 235 P. 703. The United States Supreme
Court has held that the Sixth Amendment right to counsel,
includes the right of an accused to personally make his own
defense. Faretta v. California (1975), 422 U.S. 806, 95
S.Ct. 2525, 45 L.Ed.2d 562. Nevertheless, most courts agree
that this Sixth Amendment guarantee does not mean that the
accused can make his own defense personally - have the
and
assistance of counsel. See State v. Tait (1980), Fla.
, 387 S. 2d 338 and cases cited therein. If a defendant
is adequately represented by counsel, he does not have the
constitutional right to also represent himself. In State v.
Armstrong (1977), 172 Mont. 296, 562 P.2d 1129, we applied
this general rule to hold that a defendant represented by
counsel does not have the constitutional right to address a
jury either personally or through a handwritten note.
Likewise, a defendant adequately represented by counsel does
not have the constitutional right to interview witnesses
personally. See also State v. House (1978), 295 N.C. 189,
244 S.E.2d 654; and State v. Ames (1977), 222 Kan. 88, 563
P.2d 1034. Here, the defendant was adequately represented
by counsel who were allowed to interview the witnesses. His
contention, therefore, must fail.
The judgment of conviction,&€ the defendant is affirmed.
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We Concur:
Mr. J u s t i c e Daniel J . Shea, d i s s e n t i n g :
I would r e v e r s e t h e c o n v i c t i o n and o r d e r a new t r i a l .
The p r o s e c u t o r ' s ploy i n g e t t i n g t h e p o l i c e o f f i c e r t o
waive t h e d e f e n d a n t ' s c r i m i n a l r e c o r d i n f r o n t of t h e j u r y
was m a n i f e s t l y p r e j u d i c i a l and demands a new t r i a l . I do
n o t s e e how t a c t i c s such a s t h i s can be deemed harmless
error.