State v. Boyer

No. 83-185 IN THE SUPREPIE COURT OF T I STATE OF MONTANA IE 1984 STATE OF MONTANA, Plaintiff and Respondent, -vs- RANDALL CLIFFORD BOYER, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Lake, The Honorable Jack L. Green, Judge presiding. COUNSEL OF RECORD: For Appellant: Brian J. Smith, Polson, Montana For Respondent : Eon. Mike Greely, Attorney General, Helena, Montana John Frederick, County Attorney, Polson, Montana Submitted on Briefs: December 29, 1983 Decided: February 28, 1984 Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e Opinion of t h e Court. This appeal a r i s e s o u t of t h e c o n v i c t i o n of a p p e l l a n t on two c o u n t s o f s e x u a l i n t e r c o u r s e w i t h o u t c o n s e n t and o n e count of aggravated kidnapping. A jury returned a g u i l t y v e r d i c t on a l l c o u n t s i n t h e F o u r t h J u d i c i a l D i s t r i c t C o u r t , Lake C o u n t y . On A p r i l 2 5 , 1 9 8 0 , t h e p r o s e c u t r i x a n d t h r e e f r i e n d s , L i n d a J e l l i s e n , Marge and M a r i a n n e C i o l k o s z b e g a n a n e v e n i n g o f d r i n k i n g and p a r t y i n g . After stopping a t a "kegger" they went to a party at a trailer i n East Missoula, Montana. A p p e l l a n t a l s o a t t e n d e d t h i s p a r t y and m e t t h e p r o s e c u t r i x during the evening. Appellant left the party with some friends and later joined another group of friends. He r e t u r n e d w i t h them t o t h e p a r t y i n E a s t M i s s o u l a . Appellant b r o u g h t t h e p r o s e c u t r i x b a c k t o h i s f r i e n d ' s c a r and t o o k h e r back t o M i s s o u l a . They t h e n s t o p p e d a t Pam G o l d e n ' s h o u s e w h e r e Pam and Judy S t e e l stayed f o r t h e n i g h t . There, appellant fondled t h e p r o s e c u t r i x o n t h e lawn o u t s i d e t h a t h o u s e . Testimony indicates the prosecutrix screamed or loudly objected at that point, t h e r e b y c a u s i n g Pam G o l d e n t o t e l l them t o b e quiet. Jim Brubaker then drove the appellant and the p r o s e c u t r i x from M i s s o u l a t o Arlee. B r u b a k e r d r o p p e d them off a t a residence o u t s i d e of Arlee. Appellant took the prosecutrix i n t o t h e house. As h e w a s t a l k i n g t o Thomas McDonald, a r e s i d e n t o f t h e h o u s e , t h e p r o s e c u t r i x t r i e d t o run away from there. The appellant caught up w i t h the p r o s e c u t r i x and t o o k h e r i n t o a s h e d l o c a t e d on t h e p r o p e r t y and e n g a g e d i n s e x u a l i n t e r c o u r s e twice. Prosecutrix claims it was w i t h o u t c o n s e n t . Brubaker, during t h i s t i m e , went t o pick up a n o t h e r friend, T h e o d o r e Raymond. They returned to t h e McDonald r e s i d e n c e and p i c k e d up t h e p r o s e c u t r i x and t h e a p p e l l a n t . They d r o v e back t o M i s s o u l a e a r l y on A p r i l 26. During t h i s return trip, the prosecutrix, upon request, gave the appellant her address and phone number. Brubaker then d r o p p e d t h e a p p e l l a n t o f f a t h i s r e s i d e n c e i n M i s s o u l a and l a t e r took t h e p r o s e c u t r i x t o t h e Ciolkosz r e s i d e n c e . The prosecutrix went to the police and obtained a rape examination at St. Patrick Hospital. She also received treatment for i n j u r i e s she suffered. A Lake C o u n t y S h e r i f f ' s D e p u t y a r r e s t e d t h e a p p e l l a n t l a t e r t h a t day f o r parole v i o l a t i o n s . The S t a t e , a few d a y s later, c h a r g e d him w i t h s e x u a l i n t e r c o u r s e w i t h o u t c o n s e n t and a g g r a v a t e d k i d n a p p i n g . F o l l o w i n g some d e l a y s , t r i a l was held on November 17, 1980. The appellant appealed his conviction. H i s attorney failed t o perfect t h e a p p e a l and l a t e r was d i s b a r r e d on u n r e l a t e d m a t t e r s . The c o u r t t h e n r e a s s i g n e d t h e c a s e t o new c o u n s e l . Two i s s u e s a r e r a i s e d o n a p p e a l : (1) Was t h e a p p e l l a n t denied h i s r i g h t to a speedy trial? ( 2 ) Did t h e a p p e l l a n t r e c e i v e e f f e c t i v e a s s i s t a n c e o f counsel? A p p e l l a n t a s s e r t s h e was d e n i e d h i s r i g h t t o a s p e e d y trial. He claims a 205-day delay violated his c o n s t i t u t i o n a l r i g h t t o a speedy t r i a l . The U n i t e d S t a t e s Supreme C o u r t a r t i c u l a t e d t h e t e s t f o r d e t e r m i n i n g if t h e delay denied the defendant a right to a speedy trial in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. T h i s C o u r t i n S t a t e v. F i f e (Mont. 1 9 8 1 ) , 6 3 2 P.2d 712, 38 S t . R e p . 1334, c i t e s many o t h e r Montana cases t h a t use t h a t test. The t e s t e x a m i n e s f o u r f a c t o r s : ( 1 ) Length of delay; (2) reason for delay; (3) defendant's a s s e r t i o n o f t h e r i g h t ; and ( 4 ) p r e j u d i c e t o t h e a p p e l l a n t . The f i r s t f a c t o r t r i g g e r s t h e i n q u i r y i n t o t h e s p e e d y trial issue. The longer the delay, t h e more likely the burden s h i f t s t o t h e S t a t e i n t h e " e x p l a i n i n g of the delay and showing a b s e n c e of prejudice." S t a t e v. Kelly (Mont. 1 9 8 3 ) , 6 6 1 P.2d 26, 27, 40 S t . R e p . 364, 365. I n S t a t e v. Freeman ( 1 9 7 9 ) , 1 8 3 Mont. 334, 599 P.2d 368, this Court f o u n d 207 d a y s t r i g g e r e d i n q u i r y i n t o t h e i s s u e . "Once t h e burden h a s s h i f t e d t o t h e S t a t e t o e x p l a i n t h e reason f o r the delay, t h e q u e s t i o n becomes, t o whom i s t h e d e l a y t o b e attributed?" Freeman, 1 8 3 Mont. a t 3 3 8 , 599 P.2d a t 371. I n t h e i n s t a n t c a s e , t h e a p p e l l a n t c a u s e d a good p a r t of the delay. The State initially incarcerated the appellant for parole violations. Then, a few d a y s later, t h e S t a t e b r o u g h t c h a r g e s f o r t h e above-named o f f e n s e s and a p p o i n t e d a n a t t o r n e y on A p r i l 1 8 , 1 9 8 0 . On May 1 2 , 1 9 8 0 , a p p e l l a n t moved f o r a n d r e c e i v e d a s u b s t i t u t i o n o f counsel and r e q u e s t e d a d e l a y o f t h e p r e l i m i n a r y h e a r i n g . The c o u r t t h e n s e t May 1 9 , 1 9 8 0 f o r a p r e l i m i n a r y h e a r i n g . The c o u r t rescheduled that hearing to May 29, 1980, due to the d e c l a r e d e m e r g e n c y c a u s e d by v o l c a n i c a s h t h a t fell as a r e s u l t of t h e Mount. St. Helens' eruption. The S t a t e f i l e d an information on the sexual intercourse without consent charge on June 4 and requested a continuance for the arraignment until June 12. On July 25, appellant moved to depose some of the State's witnesses. The court requested these depositions be taken as soon as possible and allowed the State ten days following the completion to file criminal pretrial procedures. It ordered on August 13 that the deposers hold themselves available for examination. On September 17, the court postponed for one week a hearing to transfer the aggravated assault case to Lake County from Missoula County, because of appellant's counsel's absence. The court told the appellant that it would schedule trial in October if he thought there might be a speedy trial problem. Appellant declined to object at that time. The court scheduled the trial for November 17, 1980. On October 29, appellant filed a motion to dismiss for denial of speedy trial. This record clearly shows that the appellant caused part of the delay for the trial. The substitution of counsel caused a three-week delay by admission of the defendant. Another week delay occurred in September when appellant's counsel failed to appear at a hearing. The appellant's counsel further delayed the case by requesting depositions and then never deposed one witness. The State waited for the conclusion of depositions. Although this Court will not speculate on the amount of delay this caused, it certainly makes appellant accountable for much of the delay. Appellant contends the State Crime Lab completed its examinations only a day before the trial occurred. This demonstrates the State delayed prosecution until they obtained the results. The record fails to show a request by the State for more time to conduct lab results. While the State may have delayed testing the evidence, it did not delay the case for the purpose of testing the evidence. Appellant's argument fails to show the State delayed prosecution. Appellant asserts his incarceration demonstrates the prejudice resulting from the delay. While incarceration can demonstrate prejudice, that in itself does not necessarily prove prejudice. In State v. Shurtliff (Mont. 1980), 609 P.2d 303, 37 St.Rep. 713, this Court said that although defendant was incarcerated for approximately eleven months, the long period before trial was actually to his benefit, due to the added time to prepare a defense. This Court in Shurtliff, supra, found no speedy trial violation primarily because much of the delay was attributed to the appellant. Appellant asserts the delay caused the loss of a possible witness, Dr. Bowers, the physician who examined the prosecutrix, who refused to return to Montana for the trial. Appellant failed to show how the lack of her testimony caused prejudice to him. The nurse who assisted Dr. Bowers, testified about the rape examination and the condition of the prosecutrix. The State attempted to bring Dr. Bowers to the trial; however, she refused. The State decided against compulsory process and the appellant failed to require her attendance either. We fail to see how her lack of presence prejudiced the appellant's case. We therefore hold the appellant was not denied a speedy trial. The appellant next contends he received ineffective assistance of counsel denying him of his constitutional right to counsel under Amendment XI, United States Constitution, and Article 11, section 24, 1972 Montana Constitution. He claims his counsel failed to conduct the necessary discovery, failed to properly prepare for trial, failed to explore plea bargaining possibilities, and failed to call witnesses in appellant's case-in-chief. Appellant admits deficiencies in the record to support his position, but he requests this Court to find either ineffective assistance of counsel or remand the case for a special evidentiary hearing. This Court reiterated in State v. Hendricks (Mont. 1983), 672 P.2d 20, 40 St.Rep. 1786, the test adopted in State v. Rose (Mont. 1980), 608 P.2d 1074, 37 St.Rep. 642: "Persons accused of crime are entitled to the effective assistance of counsel acting within the range competence demanded of attorneys in criminal cases." This Court futher stated in Hendricks, supra: "'In evaluating defense counsel's representation, it is not our function to second-guess trial tactics and the strategy.' LaValley, 661 P.2d at 872. We also noted that 'reasonably effective counsel does not mean that the defendant is constitutionally guaranteed such assistance of counsel as will necessarily result in his acquittal. ' LaValley, supra. 'Success is not the test of efficient counsel, frequently neither vigor, zeal, nor skill can overcome the truth.'" (Citations omitted.) 672 P.2d at 25, 40 St.Rep. at 1791. The record may indicate ineffective assistance of counsel. The following is just one indication of counsel's handling of the case: "I further relate to the Court, and I believe counsel would not deny that he was provided with investigatory reports by Officer Crego, a transcribed statement of the victim . . . a transcribed statement of a witness Linda Jellisen; and that in these reports the specific i t e m s o f e v i d e n c e w h i c h c o u n s e l now i n d i c a t e s he h a s n o t examined, were each and a l l l i s t e d a s t o t h e i r s e i z u r e and w h e r e t h e y were." The record further shows c o u n s e l filed a notice of appeal, y e t counsel f a i l e d t o p e r f e c t t h e appeal. In the meantime t h i s C o u r t d i s b a r r e d c o u n s e l . The record indicates counsel gave a minimum of a t t e n t i o n t o t h e c a s e , y e t f a i l s t o show c o n c l u s i v e l y t h a t the allegations are true. The r e c o r d a l s o shows d e f e n d a n t made a m o t i o n f o r a new t r i a l and t h e n f i l e d a m o t i o n t o appeal shortly thereafter. The c o u r t n e v e r ruled on t h e m o t i o n f o r new t r i a l . We find i n s u f f i c i e n t e v i d e n c e from which t o make a d e t e r m i n a t i o n on t h i s i s s u e . We therefore remand t h i s t o D i s t r i c t C o u r t f o r a n e v i d e n t i a r y h e a r i n g a n d a r u l i n g on t h e m o t i o n f o r a new t r i a l r e g a r d i n g t h e i s s u e of i n e f f e c t i v e a s s i s t a n c e of counsel. W e concur: 7 Chief J u s t i c e &#a Justic s r