No. 84-268
I N THE SUPREME COURT O F THC S T A T E O F MONTANA
1984
S T A T E O F MOP?TAI\TA,
P l a i n t i f f and R e s p o n d e n t ,
-VS-
ALAN C R A I G CUTNER,
D e f e n d a n t and A p p e l l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l a i s t r i c t ,
I n and f o r t h e C o u n t y of C a s c a d e ,
T h e H o n o r a b l e John M. M c C a r v e l , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
J e f f r e y T. M c A l l i s t e r , G r e a t F a l l s , Montana
For R e s p o n d e n t :
H o n . Milce G r e e l y , Attorney General, Helena, Montana
J. F r e d B o u r d e a u , County A t t o r n e y , G r e a t Falls,
Montana
S u b m i t t e d on B r i e f s : Oct. 25, 1984
Decided: D e c e m b e r 20, 1984
Filed: IIEC 2 0 1984
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Clerk
Mr. Chief J u s t i c e Frank I . Haswell d e l i v e r e d t h e Opinion of
t h e Court.
Alan C u t n e r a p p e a l s a iudgment of t h e Cascade County
District Court finding him guilty of sexual assault and
burglary. The d e f e n d a n t c o n t e n d s t h a t t h e t r i a l c o u r t . e r r e d
by d e n y i n g h i s motion t o d i s m i s s f o r l a c k of speedy t r i a l .
C u t n e r was c h a r g e d May 4 , 1983, w i t h s e x u a l l y a s s a u l t -
i n g a seventy-year-old man i n h i s Black E a g l e home on A p r i l
t q 2-23
2 1 , 4AW4. Arraignment was s e t f o r May I l . A t t h e r e q u e s t of
h i s c o u n s e l t h e a r r a i g n m e n t was c o n t i n u e d u n t i l May 1 7 , 1983,
so that the court could formally appoint the counsel to
represent t h e defendant.
The f i r s t of t h e s e v e n t r i a l d a t e s which were s e t i n
t h i s c a s e was J u l y 6 , 1983. O May
n 1 8 , Cutner moved f o r
s u b s t i t u t i o n of Judge R.oth. The motion was g r a n t e d , Judge
Coder a c c e p t e d j u r i s d i c t i o n and t h e t r i a l d a t e was r e s e t f o r
August 2 9 , 1983.
C u t n e r f i l e d a n o t i c e of i n t e n t t o r a i s e t h e d e f e n s e of
a . l i b i on J u n e 17, 1983. On J u l y 2 8 , 1983, t h e defendant
f i l e d a n o t i c e of i n t e n t t o r e l y on m e n t a l d i s e a s e o r d e f e c t
t o prove t h a t he d i d n o t have a p a r t i c u l a r s t a t e of mind
which i s an e s s e n t i a l e l e m e n t o f t h e o f f e n s e c h a r g e d . Cutner
requested a. t r a . n s f e r t o t h e Montana Sta.te Hospital for a
p s y c h i a t r i c e x a m i n a t i o n and. t h a t t h e t r i a l d a t e of August 29,
1983, be v a c a t e d . The D i s t r i c t C o u r t g r a n t e d t h e motion, and
t h e d e f e n d a n t was examined a t t h e S t a t e H o s p i t a l .
On August 2 5 , 1983, t h e c o u r t r e c e i v e d t h e r e p o r t of
t h e p s y c h i a t r i c e x a m i n a t i o n and C u t n e r was r e t u r n e d t o t h e
Cascade County j a i l . On November 2 2 Judge B r a d f o r d , who had
assumed j u r i s d i c t i o n o v e r t h e c a s e a f t e r Judge C o d e r ' s r e s i g -
n a t i o n , s e t December 5 , 1983, a s t h e t r i a l d a t e . On November
23 Cutner again moved for substitution of iudge. Judge
McCarvel assumed jurisdiction from Judge Bradford and on
November 28 reset trial for December 6.
On December 2, 1983, the defendant filed a motion
requesting that hair samples be taken from the defendant and
other individua1.s who resided at his home, and these be
analyzed by the State's Forensic Sciences Division for com-
parison with samples taken from a pair of thermal underwear
the defendant allegedly stole from the victim. The defendant
further requested that the December 6 trial date be resched-
uled after December 26 to allow time for completion of the
hair analysis. Cutner filed with this motion a signed waiver
of speedy trial rights that was limited to the time required
For the analysis. The motion was granted, but Judge McCarvel
set trial for December 19, 1983.
This trial was vacated on December 15, 1983, pursuant
to a motion filed on a stipulation of the parties. The
parties stipulated that additional time be allocated for a
semen analysis, incorporated the prior waiver of defendant's
speedy trial rights, and requested a January 1984 trial
setting. The District Court rescheduled the trial for Febru-
ary 21, 1984. The setting was later changed due to a docket
conflict to February 14, 1984. The trial wzs held in fact on
February 14 and 15, 286 days after the defendant was arrested
and charged.
On the morning of the trial, defendant filed his motion
to dismiss for want of a speedy trial. Following jury voir
dire, the motion was argued by counsel in chambers. The
District Court denied Cutner's motion, and the trial proceed-
ed. The defendant was found guilty of both charges and
appeals the denial of his speedy trial motion.
The analysis that this Court employs in reviewing a
speedy t.rial denial is well established. We have recently
issued an opinion that summarizes this analysis. See State
v. Chavez (Mont. 1984), P.2d a , 41 St.Rep. 2219.
In prior decisions this Court has adopted the test
described by the United States Supreme Court in Barker v.
Wingo !1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.
Basica-lly, four factors are considered under this test:
(1) length of delay;
(2) reason for delay;
(3) assertion of the right by t.he defen-
dant; and
(4) prejudice to the defend-ant.
Without examining in detail the various reasons for the
delay at issue, we note that the claimed 286-day delay is
long enough to trigger the speedy trial inquiry. The State
has the burden of showing that there was a reasonable excuse
for this delay a n d that the defendant was not prejudiced.
State v. Ackley (Mont. 1982), 653 P.2d 851, 39 St.Rep. 2091.
During the in-chambers hearing on February 14, 1984,
the State argued that the defendant was responsible for much
of his delay in being brought to trial. Twice Cutner moved
for substitutj-on of judge. The lower court took notice of
the fact that Cutner did not raise mental disease or defect
until two months after arraignment. Other delays were occa-
sioned by the defendant's request for laboratory analysis in
December and institutional delay associated with Judge Cod-
er's resignation from the bench.
Reviewing the record and the arguments presented, we
find there was a reasonable excuse for the delay in Cutner's
.
trial. Furthermore, we find that the State has overcome the
rebuttable presumption that the delay was prejudicia-l to the
defendant.
Cutner has alleged as prejudice that he was the victim
of oppressive pretrial incarceration, suffered anxiety and
concern, and his defense was impaired by the delay. Cutner
argued that due to the passage of time, his memory and that
of one of his key witnesses had become confused about the
facts.
We have found that the State's proof exceeds in weight
the evidence presented by the defendant. During the time the
defendant sat in the Cascade County jail, his counsel active-
ly pursued his defense. The numerous defense motions that
were filed support this observation. The continued incarcer-
ation is attributable to actions by defendant's counsel in
preparing a defense; we do not find such incarceration op-
pressive for purposes of the speedy trial right.
The statements made by defendant's counsel in the
February 14 hearing concerning Cutner's anxiety and lapse of
memory were conclusory. At trial the defendant's recollec-
tion and hj s alibi witnesses' memories showed no diminution
of detail with the passage of time. The defendant's alibi
defense was adequately"a1 though unsuccessfully, presented to
the jury.
Finally, we note that the defendant did not assert his
speedy trial riqht until the actual commencement of trial.
While we do not rest our decision on this factor, Cutner did
not timely assert his right. See State v. Ackley, 653 P.2d
at 854.
It is obvious from the procedural record that Alan
Cutner did not want to go to trial before February 1984. In
the nine months that preceded his trial-, his attorney
repeatedly sought different judues and pursued alternative
defense theories.
The resulting delay allowed the defendant to explore
all avenues of defense. Such delay will not serve a dual
role as qrounds for denial of the right to a speedy trial.
The judgment of the District Court is affirmed.
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Chief Justice
We concur: