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
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