State v. Knox

NO. 83-01 I N TIIE SUPREME COURT O THE STATE O F M N A A F OTN 1953 STATE O MONTANA, F and CITY OF BOZEMAN, P l a i n t i f f and R e s p o n d e n t , -vs- KENNETH CHARLES KNOX , D e f e n d a n t 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 Eighteenth J u d i c i a l D i s t r i c t , I n and f o r t h e County o f G a l l a t i n , The I I o n o r a b l e W. W. L e s s l e y , J u d g e p r e s i d i n g . COUNSEL O RECORD: F For Appellant: J . C o r t H a r r i n g t o n , J r . a r g u e 2 , H e l e n a , Montana F o r Respondent : Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana James M. S c h e i e r 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 Mary Crumbaker-Smith, Bozeman, Montana - S u b m i t t e d : O c t o b e r 28, 1 9 8 3 D e c i d e d : J a n u a r y 2 3 , 1984 Filed: $( /) '' g r' -- Clerk Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from the District Court of the Eighteenth Judicial District of the State of Montana in and for the County of Gallatin, following the conviction of appellant, for driving under the influence of alcohol. Appellant was first convicted in the city of Bozeman, by a city court jury. He appealed to the District Court for a trial de novo, made motions to exclude evidence which were denied, later moved for dismissal for lack of a speedy trial which was denied, and was convicted. He appeals that conviction. Appellant was arrested March 6, 1981, and charged with driving under the influence of alcohol. He testified he had one beer and four scotch drinks over a period of a couple of hours, prior to his arrest. He was stopped a few blocks from his home by the city police and was taken to the police department, where he was given a breath-alcohol test approximately one half-hour after his arrest. The appellant was given several breath-alcohol tests after being taken to the police department, many of which were thrown away because the officer testified that he wanted to give the appellant a "fair chance." The second test he was given had a reading of .I108 and in addition he was tested to a .135%. After being tested, the appellant was driven home by the police department. He then called a friend who took him to the police station for a retest. He was refused a retest, but was told he could go to the hospital for a blood test. At 11:35 p.m., some three hours after he was first arrested, the blood test showed an alcohol blood content of Five issues were presented in this appeal. However, in view of the fact that the one controlling issue that necessitates a reversal and dismissal is the fact that the defendant's right to a speedy trial was violated, the other issues raised on this appeal will not be discussed. The appellant's constitutional right to a speedy trial is guaranteed by the Fourteenth Amendment of the United States Constitution, and by Article 11, Section 24 of the Constitution of Montana; furthermore that right is implemented by Section 46-13-201(2), MCA. While Article 11, Section 24 of the Montana Constitution does not specify the exact period of time that must elapse before the right to a speedy trial has been violated, the legislature did provide and did implement Article 11, Section 24, by specifying that unless good cause is shown, a misdemeanor must be dismissed if not brought to trial within six months, see Section 46-13-201(2), MCA, which provides: "The court, unless good cause to the contrary is shown, must order the prosecution be dismissed if a defendant whose trial has not been postponed upon his application is not brought to trial within 6 months after entry of plea upon a complaint, information, or indictment charging a misdemeanor." These statutes were all enacted for the purpose of enforcing a constitutional right and they constitute a legislative construction or definition of the constitutional provisions, and must be construed fairly to accomplish that GOUS* result. See State v. P l c w (1942), 113 Mont. 591, 131 P.2d 262. In the case of Barker v. Wingo (1972), 407 U.S. 514, 523, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101, 112-113, the court declined to specify a period of time after which the right to a speedy trial, guaranteed by the Fourteenth Amendment, would be violated. It did recognize the right of the legislature to set such a specified period of time, as has been done in Montana. In this case the appellant appealed his city court conviction on July 10, 1981. A trial date was not set in the District Court until August 19, 1982, and trial was not held until November 15, 1982. Plaintiff argues that conceding for purposes of argument that part of this time may be attributable to the appellant and not to the State, the six-month period prescribed by Section 46-13-201(2), MCA, elapsed some time between January 6, 1982, the date the District Court denied the motion to suppress, and July 20, 1982, the date the appellant made a motion to dismiss the charge for failure to bring the case to trial within six months. The State admits that a period of 195 days are so-called "dead time" or arose as a result of unintentional "institutional delays" and are therefore inexplainable. The appellant argues that the opinion of this Court in State v. Schnell (1939), 107 Mont. 579, 88 P.2d 19, is internally inconsistent, and was overruled by legislative action in its enactment of Section 46-13-201(2), MCA. Not so! The Schnell decision reveals that it is still valid, and the reasoning is directly applicable to the facts in the instant case. In Schnell, the defendant was convicted in justice court, of driving while under the influence of alcohol. He appealed his conviction to the district court, and was again found guilty in a trial de novo. He appealed t o t h e Montana Supreme C o u r t , and on t h e s p e e d y t r i a l i s s u e t h e Court held a s follows: "The c r i m e was a l l e g e d t o h a v e b e e n c o m m i t t e d o n December 23, 1 9 3 5 . On December 3 0 , 1 9 3 5 , d e f e n d a n t was t r i e d i n j u s t i c e c o u r t and found g u i l t y . The a p p e a l was t a k e n on December 31. On January 13, 1937, d e f e n d a n t f i l e d h i s motion t o d i s m i s s under s e c t i o n 12223, R e v i s e d Codes. The r e q u i r e m e n t s of t h a t s e c t i o n and o f s e c t i o n 16 o f A r t i c l e I11 of our C o n s t i t u t i o n , giving t o t h e accused t h e r i g h t of a speedy t r i a l , were m e t by t h e t r i a l i n t h e j u s t i c e c o u r t . On a p p e a l t o t h e d i s t r i c t c o u r t t h e defendant does n o t have t h e b e n e f i t of s e c t i o n 1 2 2 2 3 . On a p p e a l t h e t r i a l i s d e novo . . . . I t is t o a l l i n t e n t s and p u r p o s e s a s e c o n d o r new t r i a l . 'Where t h e a c c u s e d h a s been t r i e d p r o m p t l y and c o n v i c t e d , and on h i s own m o t i o n t h e c o n v i c t i o n i s s e t a s i d e and a new t r i a l o r d e r e d , he w i l l n o t be e n t i t l e d t o a d i s c h a r g e under t h e s t a t u t e because of the delay of t h e prosecution i n trying him t h e s e c o n d t i m e * * * i t b e i n g h e l d that the constitutional or statutory r e q u i r e m e n t s a r e s a t i s f i e d by a s p e e d y t r i a l . "' S c h n e l l , 1 0 7 Mont. a t 5 8 2 , 88 P.2d a t 20. It appears that Section 46-13-201(2), MCA, is i n a p p l i c a b l e t o a t r i a l d e novo i n d i s t r i c t c o u r t . A trial de novo is a "new trial," one which does not strictly s p e a k i n g , a r i s e o u t o f e n t r y o f p l e a upon a c o m p l a i n t , but arises out of an appeal. The statutory speedy trial requirements of Section 46-13-201(2), MCA, were complied with i n t h i s case. The d e f e n d a n t was b r o u g h t t o t r i a l in city court within the six-month period permitted by the statute. The question then arises as to whether a trial de novo, or "new trial," is subject to the constitutional requirements of a speedy trial. In State v. Sanders, (1973), 1 6 3 Mont. 209, 516 P.2d 372, this Court adopted Standard 12-2.2(c) of t h e A m e r i c a n Bar A s s o c i a t i o n S t a n d a r d s for Criminal Justice. That standard basically provides that, i n c a s e s o f a p p e a l , o r a n o r d e r f o r a new t r i a l , . the time for trial should begin running from t h e d a t e of the order granting the new trial. In Sanders, this Court a p p l i e d t h a t s t a n d a r d i n t h e c o n t e x t o f a remand f o r a new trial following an appeal to the Montana Supreme Court. Sanders, ( 1 9 7 3 ) , 1 6 3 Mont. a t 214, 516 P.2d a t 375. The r a t i o n a l e h a s - y e t b e e n e x t e n d e d t o c o v e r a t r i a l d e novo not in d i s t r i c t court f o l l o w i n g a n a p p e a l from a lower court c o n v i c t i o n , and t h i s C o u r t ' s h o l d i n g i n S c h n e l l h a s n o t b e e n overruled. W hold t h a t t h e a p p e l l a n t ' s r i g h t t o a speedy t r i a l e guaranteed by Article 11, Section 24 of the Montana C o n s t i t u t i o n was v i o l a t e d and i t n e c e s s i t a t e s a r e v e r s a l o f t h e c o n v i c t i o n and t h e d i s m i s s a l o f the charge, being t h e o n l y meaningful remedy for a violation of the important r i g h t t o a speedy t r i a l . B a r k e r v . Wingo, s u p r a . The j u d g m e n t o f t h e D i s t r i c t C o u r t i s r e v e r s e d and t h e c a u s e is d i s m i s s e d . 1 W e concur: %4&"&q Chief J u s t i c e Mr. J u s t i c e L.C. Gulbrandson d i s s e n t i n g . I respectfully dissent. I concur with t h e m a j o r i t y t h a t t h i s C o u r t ' s holding i n S t a t e v. S c h n e l l ( 1 9 3 9 ) , 1 0 7 Mont. 5 7 9 , 88 P.2d 19, has n o t been o v e r r u l e d , b u t I do n o t a g r e e t h a t , under Barker v. Wingo, t h e c h a r g e s h o u l d b e d i s m i s s e d . The d e l a y h e r e a p p e a r s t o b e s u f f i c i e n t t o s h i f t t o the State the burden of e x p l a i n i n g t h e d e l a y and s h o w i n g absence of prejudice t o t h e defendant. Approximately 221 d a y s of the delay are directly attributable t o the f i l i n g and c o n s i d e r a t i o n of m u l t i p l e defense motions t o s u p p r e s s and application to this Court for a writ of supervisory control. The remaining period of time chargable to the S t a t e appears t o be the result of "institutional delay," which has been considered to weigh less heavily than i n t e n t i o n a l d e l a y s by t h e S t a t e . Although p r e j u d i c e t o t h e d e f e n d a n t h a s been i d e n t i f i e d a s one o f t h e most i m p o r t a n t considerations under B a r k e r v . Wingo, I find little prejudice to the defendant here. The d e f e n d a n t was not incarcerated for the offense, he obtained a stay of e x e c u t i o n of s e n t e n c e and r e t u r n o f his driver's license, and n o n e o f h i s r i g h t s w e r e c u r t a i l e d . The d e f e n d a n t d o e s claim t h a t a defense witness died during t h e interim, but it i s o b v i o u s t h a t t h e w i t n e s s was known t o t h e d e f e n d a n t a t t h e t i m e o f t h e f i r s t t r i a l , b u t was n o t c a l l e d a s a w i t n e s s for good reasons. That witness died 64 days after the d e f e n d a n t appealed h i s c i t y c o u r t c o n v i c t i o n , b u t t e n months before t h e defendant a s s e r t e d h i s r i g h t t o a speedy t r i a l . I would affirm the District Court's ruling that the d e f e n d a n t was n o t d e p r i v e d o f h i s r i g h t t o a s p e e d y t r i a l . / '