State v. Chavez

No. 84-170

TN THE SUPREME COURT OF THE STATE OF MONTANA

1.984

STATE OF MONTANA,

Plaintiff and Respondent,
-vs-
LEO CHAVEZ,
Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District
In and for the County of Hill
The Honorable R. D. McPhillips, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Mark Suagee, Havre, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Ronald W. Smith, County Attorney, Havre, Montana

-
-
Submitted on Briefs: Oct. 11, 1984
Decided: November 29, 1984

Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

This is an appeal from an order of the District Court
of the Twelfth Judicial District, Hill County, denying
defendant's motion to dismiss for a lack of a speedy trial,
and the trial court's ruling allowing the admission of a
pre-trial photographic identification of the defendant. At
trial, the jury found the defendant not guilty of burglary,
and guilty of felony theft, and he was sentenced to four
vears in the Montana State Prison.
We affirm.
On the morning of June 15, 1983, Anton Schwan, the
lessee of a steel building near the Burlington Northern
railroad tracks west of Havre, Montana, discovered that the
building had been broken into. The break-in had apparently
occurred the night before because Schwan testified that he
had been there the previous evening at 8:00 p.m. and had not
noticed anything missing. Items stolen from the building
were a black and white television set, a stereo system and
two roping saddles. Schwan immediately notified the Hill
County Sheriff's office of the burglary.
Later that same day, Allen Marden was working at his
job for the Burlington Northern Railroad. At about 12:15
p.m. he was in a locomotive stopped near a crossing west of
Havre. At that time, he observed a red and white Pontiac
LeMans with three occupants proceeding westerly on the gravel
road paralleling the tracks. As Marden watched, the car
stopped 100 to 150 feet away from him and two men got out.
One went down into the ditch and retrieved a saddle out of a

bush. They put the saddle into the trunk of the car, a.nd
drove off to a nearby mobile home court. Marden testified
that he wrote down the personalized phrase "HIDES" on the
license plate of the car as it proceeded easterly past him.
Because he felt the activity was suspicious, Marden
telephoned his brother Steve, a Hill County deputy sheriff,
and told him what he had seen. Steve Marden contacted
another deputy, Monte Riechelt, who confirmed that a saddle
had been reported stolen. From Alan Marden's identification,
the automobile was traced to its owner, John Chance Houle, a
jailer at the Blaine County Sheriff's office.
Mr. Houle made a statement to the Hill County Sheriff
that he had stopped at Fred Castaneda's trailer to inquire
about buying two saddles that he had heard Castaneda wanted
to sell. The defendant, Leo C h a ~ ~ e was at the trailer.
z
Boule stated that he, Castaneda, and Chavez got into Houle's
car to get the saddle. Chavez was the one who gave
directions to, and actually retrieved the saddle. Houle
purchased the saddle from Chavez for $10 and a beaded belt,
and then took it to his grandfatherus ranch on the Rocky Roy
Indian reservation. A few days later, Leo Chavez went to a
local pawn shop and pawned the belt for $20.
As a result of Houle's statement and Marden's report,
the Sheriff's office located the remaining stolen items
hidden in the bushes in the same a.rea, about .3 of a mile
from the building where they had been stored. On June 20,
1983, both Fred Castaneda and Leo Chavez were arrested and
charged with the burglary and theft of these items. Leo
Chavez's bond was set at $3,000 and he remained incarcerated
in the Hill County jail until August 2, 1983--a period of
forty-three days. After his release, defendant Chavez
remained in the Havre area until trial on January 19, 1984.
At trial, all charges against Fred Castaneda were dismissed
by the court upon motion of his defense counsel at the
conclusion of the State's case. The jury found Chavez not
guilty of burglary and guilty of theft. He was later
sentenced to four years in the Montana State Prison.
Prior to trial, on September 29, 1983, the Hill County
Attorney filed a notice of readiness for trial and request
that trial be set. On December 22, 1983, the county attorney
filed a motion requesting the District Court to set a trial
date. At the omnibus hearing on January 6, 1984, defendant
gave notice that he would raise the speedy trial issue. On
January 13, 1984, he filed a motion to dismiss for lack of a
speedy trial.
At the hearing on the motion, held on the same day the
trial commenced, defendant testified that while he was in
jail he entertained thoughts of suicide, and though those
urges subsided upon his release, that the long delay had
caused him great anxiety. He testified that after his
release he found it difficult to find steady employment, and
that he felt estranged from the community. Defendant also
contended that due to the delay of 214 days in being brought
to trial, his ability to present a defense was impaired
because he and his witnesses found it difficult to remember
the events of June past.
On cross-examination defendant testified that, pending
trial, he worked for awhile with a carnival when it came to
town, and then found a job at a local cafe. He quit his job
at the cafe because the owner gave him a "weird look" after
some deputies had come to visit him. As to the estrangement,
he admitted that he "kind of got used to it." And finally,
he conceded that part of his "anxiety" was due to the fact
t h a t t h e r e were o t h e r c r i m i n a l c h a r g e s p r o c e e d i n g a g a i n s t him

i n Montana, and t h a t he was on p r o b a t i o n from a C a l i f o r n i a

d i s t r i c t court. The r e c o r d d i s c l o s e s t h a t on J u l y 1 6 , 1983,

l e s s t h a n two d a y s a f t e r t h e t h e f t and p r i o r t o h i s a r r e s t

f o r t h e p r e s e n t c h a r g e , d e f e n d a n t had been s e n t e n c e d by t h e

H i l l County D i s t r i c t C o u r t f o r two o t h e r p r e v i o u s f e l o n i e s .

The c o u r t s e n t e n c e d him t o two c o n c u r r e n t t h r e e y e a r t e r m s i n

the Montana State Prison, but suspended them and put

d e f e n d a n t on p r o b a t i o n . The c o u r t a l s o f i n e d him $2,000 and

ordered him to report to the appropriate authorities in

California.

During the hearing on the motion to dismiss, the

District Court observed t h a t the notice of and motion for

t r i a l were timely f i l e d by the State, and that "the only

r e a s o n t h i s w a s n ' t t r i e d i n t h e f a l l was b e c a u s e o f t h e heavy

t r i a l s c h e d u l e t h a t [ t h e judge] had." In arguing against t h e

motion to dismiss, the county attorney contended that

although he did not affirmatively present evidence, the

cross-examination o f t h e d e f e n d a n t had a d e q u a t e l y shown t h a t

t h e r e was n o t s u f f i c i e n t a n x i e t y o r p r e j u d i c e t o mandate a

dismissal. Rased on this, the District Court denied

d e f e n d a n t ' s motion.

During t h e t r i a l , t h e S t a t e o f f e r e d i n t o e v i d e n c e an

identification of the defendant based on a photographic

l i n e - u p Marden had been shown s h o r t l y b e f o r e t h e t r i a l . The

d e f e n d a n t lodged a g e n e r a l o b j e c t i o n , and t h e c o u r t a l l o w e d

both t h e i d e n t i f i c a t i o n , and t h e p h o t o q r a p h i c l i n e - u p t o be

introduced.

Defendant r a i s e s two i s s u e s on a p p e a l :

(1) T h a t t h e D i s t r i c t Court e r r e d i n denying t h e motion

t o d i s m i s s f o r a l a c k o f speedy t r i a l ; and
 ( 2 ) t h a t t h e D i s t r i c t Court e r r e d i n a l l o w i n g t h e S t a t e

to admit the pre-trial photographic identification of the

defendant.

Any person accused of a crime is guaranteed the

f u n d a m e n t a l r i g h t t o a speedy t r i a l by t h e S i x t h Amendment t o

t h e U n i t e d S t a t e s C o n s t i t u t i o n , which i s made a p p l i c a b l e t o

the s t a t e s by t h e F o u r t e e n t h Amendment. Klopfer v. North

Carolina ( 1 9 6 7 ) , 386 U.S. 213, 87 S.Ct. 988, 18 ~ ~ ~ d 1. 2 ~ 3
.

The t e s t t o b e a p p l i e d t o determin.e w h e t h e r t h e s p e e d y t r i a l

right has been v i o l a t e d was set forth in Ba.rker v . Wingo

( 1 9 7 2 ) , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. This

t e s t h a s been a p p l i e d by t h i s C o u r t , and was s t a t e d i n S t a t e

ex re1 B r i c e n o v. Dist. Ct. (19771, 173 Mont. 516, 518, 568

"These cases involve a sensitive
b a l a n c i n g o f f o u r f a c t o r s , i n which t h e
c o n d u c t o f t h e p r o s e c u t i o n and d e f e n d a n t
a r e weighed i n d e t e r m i n i n g w h e t h e r t h e r e
h a s been a d e n i a l o f t h e r i g h t t o a
speedy t r i a l . The f o u r f a c t o r s t o b e
e v a l u a t e d and b a l a n c e d a r e :

" 1 ) Length o f d e l a y ;

"2) reason f o r delay;

" 3 ) a s s e r t i o n o f t h e r i g h t .by defendant;
and

"4) prejudice t o t h e defendant."

The f i r s t f a c t o r , t h e l e n g t h o f d e l a y i s t h e " t r i g g e r "

t o t h e speedy t r i a l i n q u i r y . There i s no need t o examine t h e

other three factors unless some d e l a y deemed p r e s u m p t i v e l y

p r e j u d i c i a l has occurred. S t a t e v. Harvey ( 1 9 7 9 ) , 184 Mont.

423, 603 P.2d 661, and t h e d e l a y t o l e r a t e d v a r i e s w i t h t h e

complexity of the case. Harvey, 184 Mont. a t 433-434, 603

P.2d a t 667; Barker, 507 U.S. a t 531, 92 S.Ct. a t 2192, 33

L.Ed.2d at 117 ("the delay that can be tolerated for an
ordinary street crime is considerably less than for a serious
complex conspiracy charge.")
The delay here, 214 days, is long enough to trigger the
speedy trial inquiry. See State v. Ackley (Mont. 1982), 653
P.2d 851, 39 St.Rep. 2091, (257 days); State v. Fife (Mont.
1981), 632 P.2d 712, 38 St.Rep. 1334 (195 days); State v.
Freeman (1979), 183 Mont. 334, 599 P.2d 368 (207 days) ; State
v. Cassidy (1978), 176 Mont. 385, 578 P.2d 735 (246 days).
This delay gives rise to a presumptive deprivation of
defendant's speedy trial right, and shifts the burden to the
State to give reasons why the trial should proceed. State v.
Ackley, supra; State v. Harvey, supra. In this respect, the
State must either give a reasonable excuse for the delay, or
show that the defendant was not prejudiced thereby. If there
is both excuse and prejudice, those two factors must be
balanced.
In State v. Ackley, supra, we were confronted with a
remarkably similar situation. There, the trial was delayed
for a period of 257 days because of the trial court's heavy
schedule. The defendant in Ackley had spent forty-one days
in jail, and alleged the delay had prejudiced him in his
ability to present his defense, and in the marital
difficulties and anxiety it caused. The District Court
denied Terry Ackley's motion to dismiss and this Court
affirmed.
The speedy trial right is primarily designed to protect
the accused from oppressive tactics of the prosecution,
Barker . Other reasons such as institutional delay weigh
less heavily against the State in the balancing process,
Ackley. Nonetheless, the State has the duty to bring the
accused to trial and is ultimately responsible for any delay.
Although institutional delay weighs less heavily against the
State, it is the policy of this Court to gradually reduce our
tolerance for this excuse, and to begin according it full
weight. State v. Fife, 632 P.2d at 716, 38 St.Rep. at 1336.
Here, the defendant asserted his right in a timely and
proper fashion. The motion was made before trial and the
hearing was had before the trial commenced. The portion of

the delay that can be attributed to the defendant is seven
days. Conversely, the State also indicated its readiness for
trial in a timely fashion. There were no oppressive tactics
employed. Consequently, the cause for delay is narrowed to
pure institutional delay, and only that may be balanced
against the defendant's prejudice.
In Barker v. Wingo, supra, the United States Supreme
Court identified three interests of a defendant which may be
prejudiced by a delay in coming to trial. The right is
designed " . . . (i) to prevent oppressive pre-trial
incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense
will be impaired." 407 U.S. at 532, 92 S.Ct. at 2193, 33
L.Ed.2d at 118.
If the delay is sufficient to trigger the speedy trial
inquiry, then it is presumptively prejudicial to the
defendant. Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at
2192, 33 L.Ed.2d at 117. In Moore v. Arizona (1973), 414
U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183, the United States
Supreme Court held that the defendant is not required to
affirmatively prove prejudice. Thus, the State has the
burden to rebut the presumption of prejudice or forward a
reason for the delay that outweighs it.
 In Acklev, we held that the burden on the State "to
show lack of prejudice becomes considerably lighter in the
absence of prejudice to the appellant" 653 P.2d at 854, 39
St.Rep. at 2094. If the State has no justification for the
delay, or cannot show that the defendant has not been
prejudiced by it, the defendant is entitled to dismissal.
But, if the defendant's prejudice rests merely on this
presumption, he must meet any evidence presented by the State
that outweighs the presumed prejudice. At that point, the
defendant is entitled to dismissal only if he presents
evidence of prejudice that exceeds in weight the State's
proof.
Chavez pointed out his forty-three day incarceration
and alleged that the delay caused him great anxiety and
impaired his ability to mount a defense. In Ackley, the
defendant was incarcerated for forty-one days prior to trial.
We did not find that to be, under the circumstances,
oppressive incarceration. Here, defendant Chavez alleged
that his incarceration caused him great anxiety and that he
entertained thoughts of suicide. On cross-examination, the
county attorney brought out the fact that a great deal of the
anxiety Mr. Chavez was feeling at that time was not
necessarily attributable to his incarceration. His stay in
jail simply "brought up a lot of worries," but they were not
all directly caused by his present situation. And naturally
we are to expect a certain amount of anxiety and concern that
is inherent in being accused of a crime. State v. Collins
(1978), 178 Mont. 36, 50, 582 P.2d 1179, 1186. In addition,
the defendant had received two suspended prison terms, just
two days after the theft occurred and four days prior to his
arrest. A portion of any anxiety he may have felt certainly
was attributable to the possibility that the order suspending
the prison terms would be revoked if he were to be convicted
again. We find that, as far as the term in jail, the State
adequately showed that there was not oppressive
incarceration.
Defendant's allegations that he was made anxious by the
delay and that he felt estranged from the community, closely
parallels the prejudice alleged by the defendant in Ackley.
There, the defendant alleged that the delay caused him
marital problems and restricted his right to free speech. In
Ackley, the defendant did no more than state in a conclusory
fashion his anxiety and prejudice, and we held that the
State ' s excuse outt~eighed the presumed prejudice. Again,
this case is remarkably similar. Chavez admitted that a
great deal of the anxiety he was feeling was due to the other
criminal actions against him, and that he "kind of got used
to" the comments and stares of others in the community. The
trial judge saw and heard Chavez on cross-examination when
the county attorney attempted to rebut and discredit his
allegations of prejudice. We must defer to his findings if
they are supported by substantial evidence. Here, the State
effectively showed an absence of prejudice to the defendant
and therefore met its burden of proof.
Finally, Chavez alleged that the delay impaired his
ability to defend himself. The State, through
cross-examination showed an absence of prejudice. There was
no memory loss on the part of any witness and no difficulty
to the defendant in contacting them. The defendant called.
only one witness, Alan Marden, on his behalf, and then only
for a cursory examination in regards to the photographic
line-up. Again, the facts are strikingly similar to Ackley,
as is our conclusion: the defendant did not meet the State's
proof, and was not prejudiced by the delay.
We find that Ackley is controlling in this case and we
conclude that defendant was not denied his right to a speedy
trial.
Chavez next argues that it was error for the District
Court to allow the county attorney, Mr. Smith, to produce an
in-court identification of him based upon an earlier
photographic identification. The allegedly defective
exchange went as follows:
"Q [By Mr. Smith] Mr. Marden, I am going
to show you what is marked. as proposed
exhibit E and ask you if you have seen
that before?
"A Yes.
"Q And the purpose of this exhibit was
for what reason?
"A To see if I could identify any of the
occupants of the car.
"Q And did you have an opportunity then
to examine this to see if you could, and
take your time?
"A Yes. I was.

"Q And were you advised in advance the
names of any individuals who were placed
within this?
"A NO. I wasn't.
"& And at this time, or at the time that
you examined that, were you able to
indicate to [sic] individuals out of that
lineup, or that photographic?
"A Yes. I was.

Q And in referring to that, wha.t
picture numbers did you select?
"A Number 1 and number 6.

"MR. LITTETVEDT: Your Honor, I am going
to object to this testimony at this point
 in time and have the objection noted for
the record.
"MR. SUAGEE: I would like to join in
that objection.
"THE COURT: Very well.
"MR. SMITH: The objection if [sic]
overruled?
"THE COURT: Overruled."
Chavez alleges that this testimony was improper because
his due process rights were violated in that the existence of
the photographs were not disclosed to Chavez prior to trial,
and this non-disclosure prejudiced his defense.

The record discloses that Hill County has an "open
file" policy in all criminal matters. We note here that
defendant does not allege that the photograph line-up was not
in the file or was otherwise hidden from him.
The difficulty we have is with the specificity of
defendant's objection. Counsel for defendant Castaneda said
no more than "I am going to object," and counsel for
defendant Chavez stated "I would like to join in that
objection." We have previously held that broad, generalized
objections of this type are insufficient to preserve an error
for appeal, State v. Close (Mont. 1981), 623 P.2d 940, 38
St.Rep. 177; State v. Bretz (1979), 185 Mont. 253, 605 P.2d
974; State v. Sullivan and DePue (1979), 182 Mont. 66, 595
P.2d 372; State v. Kates (1934), 97 Mont. 173, 33 P.2d 578.
There was sufficient other testimony identifying the
defendant, or linking him to the stolen property, for the
jury to find as it did. John Houle earlier identified the
defendant from the same photographic line-up that Marden saw
just prior to trial and defendant's counsel did not object to

that testimony. The testimony of Officer Riechelt, and John
Erhardt, owner of the pawn shop where defendant pawned the
beaded belt, and other testimony of Alan Marden, all
implicate the defendant. His counsel was able to, and did
cross-examine the various investigating officers about the
photographic line-up and other aspects of the investigation,
and counsel did not object to the photographic line-up when
it was offered and received as an exhibit.
Finally, the use of a photographic line-up is not, by
itself, unconstitutional. The use of such devices for the
investigation of crimes is an accepted and normal method of
law enforcement. The defendant is not even required to be
present or represented by counsel during such a proceeding,
Ash v. United States (1973), 413 U.S. 300, 93 S.Ct. 2568, 37
L.Ed.2d 619; Mata v. Summer (9th Cir. 1979), 61.1 F.2d 754.
We will only bar the use of photographic line-ups if the
defendant can show that the procedure was "so impermissibly
suggestive as to give rise to a very substantial likelihood
of irreparable misidentification." Mata v. Summer, supra,
citing Simmons v. United States (1968), 390 U.S. 377, 88
S.Ct. 967, 19 L.Ed.2d 1247. Defendant's counsel
cross-examined Officer Riechelt and Alan Marden at length
about the identification procedure, and could come up with no
evidence of unusual suggestiveness. Neither can we, on a
review of the record, find any such evidence.
The orders of the District Court are affi

I
We concur:

s,4JI@c,&
Chief Justike

Justices
Justice John C. Sheehy, special]-y concurring:

I would hold that Chavez is not entitled to a dismissal
on the speedy trial issue, but not for the reasons cited by
the majority.
Because of his other problems with the courts, I am not
persuaded that Chavez really wished for a speedy trial. This
was a compelling factor to the United States Surpreme Court
i n Barker v. Wingo (1972), 407 U.S. 514. In ~ a r k e rwe were
warned against mechanically ticking off the factors there
enumerated and boiling the issue down to the simple question
of prejudice. Prejudice should always be presumed, and for
good reasons, outlined in U.S. v. Marion (1971), 404 U.S.

Mr. Justice Daniel J. Shea and Mr. Justice Frank B. Morrison,
Jr., dissent and will file a written dissent later.