No. 85-536
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
WILFORD EARL PALMER,
Defendant and Appellant.
A.PPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Arnold Olsen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
C. F. Mackay, Anaconda, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Joe R. Roberts, Asst. Atty. General, Helena
Ted L. Mizner, County Attorney, Deer Lodge, Montana
Submitted on Briefs: June 6, 1986
Decided: August 21, 1986
Filed:
4
l ! z % w % b u
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Appellant, Wilfred Earl Palmer, appeals from a judgment
of conviction after jury trial of criminal possession of a
deadly weapon by a prisoner. The appeal arises from the
District Court, Third Judicial District, County of Powell.
We affirm.
In September, 1984, Palmer was an inmate at the Montana
State Prison at Deer Lodge. Palmer resided, by himself, in
cell number 10 of " X u block which is a maximum security unit.
On September 18, 1984, three officers at the prison conducted
a routine spot check of the cells in the "X" block. Palmer
was removed from his cell and was taken out in the "yard."
Palmer's cell was then searched. The search revealed a
homemade "shank" or knife hidden in the stuffing of Palmer's
mattress. The officers then conducted a body search of
Palmer and discovered a piece of metal in his boot.
On October 11, 1984, Palmer was charged by information
with the felony offense of possession of a deadly weapon by a
prisoner in violation of 5 45-8-318 (1), MCA.
On December 3, 1984, Palmer filed a motion for
psychiatric evaluation which was granted. On January 25,
1985, Palmer's psychiatric evaluation was returned to the
court indicating Palmer suffered from no mental disease or
defect.
Trial of the cause was eventually set for June 25, 1985.
Before the trial date, however, Palmer requested a
postponement of the trial date to more fully prepare. The
District Court granted Palmer's motion and reset trial for
July 22, 1985.
On the day of trial Palmer, through his counsel,
presented the District Court with a motion to dismiss for
lack of speedy trial and a motion for change of venue. The
District Court denied both motions.
At trial witnesses for the State were the prison
officers who discovered the contraband and corrections
investigator Robert McNally. Palmer presented no defense.
The jury returned a verdict of guilty. On October 15,
1985, a sentencing hearing was held and Palmer was sentenced
to ten years' imprisonment consecutive to his outstanding
sentence.
Palmer raises two issues for our review.
1. Did the District Court err in refusing Palmer's
motion to dismiss for lack of a speedy trial;
2. Did the District Court err in refusing Palmer's
motion for change of venue.
Palmer first contends that he was denied his right to a
speedy trial. Any person accused of a crime is guaranteed
the right to a speedy trial pursuant to the Sixth Amendment
to the United States Constitution, which is made applicable
to the states by the Fourteenth Amendment. Klopfer v. North
Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1.
The right to a speedy trial is also guaranteed by Article 11,
24 of the 1972 Montana Constitution. The test to be
applied to determine whether an accused's right to a speedy
trial has been violated was first set forth in Barker v.
Wingo (1972), 407 U.S. 514, 92 S.Ct 2182, 33 L.Ed.2d 101.
This Court applied and stated the Barker test in State ex
rel. Briceno v. District Court (1977), 173 Mont. 516, 518,
568 P.2d 162, 163-64 as follows:
These c a s e s i n v o l v e a s e n s i t i v e b a l a n c i n g o f o u r
f a c t o r s , i n which t h e conduct o f t h e p r o s e c u t i o n
and t h e d e f e n d a n t a r e weighed i n determining
w h e t h e r t h e r e ha.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 be e v a l u a t e d and
balanced a r e :
(1) Length o f d e l a y ;
(2) Reason f o r d e l a y ;
(3) A s s e r t i o n o f t h e r i g h t by d e f e n d a n t ; and
(4) Prejudice t o t h e defendant.
This Court has stated that the first of the Barker
factors, the length of delay, is the trigger t o a speedy
t r i a l inquiry. There i s no need t o examine t h e l a t t e r t h r e e
factors unless some d e l a y deemed p r e s u m p t i v e l y prejudicial
has occurred. S t a t e v. Harvey ( 1 9 7 9 ) , 184 Mont. 423, 603
P.2d 661.
The delay here, 256 days from the date Palmer was
c h a r g e d u n t i l t h e f i r s t d a t e s e t f o r t r i a l , i s l o n g enough t o
t r i g g e r a speedy t r i a l i n q u i r y . See S t a t e v. Chavez (Mont.
1 9 8 4 ) , 691 P.2d 1365, 4 1 St.Rep. 2219 (214 d a y s ) ; S t a t e v.
Ackley ( 1 9 8 2 ) , 201 Mont. 252, 653 P.2d 851 (257 d a y s ) ; S t a t e
v. Fife (Mont. 1981), 632 P.2d 712, 38 St.Rep. 1334 (195
days); S t a t e v. Freeman ( 1 9 7 9 ) , 183 Mont. 334; 599 P.2d 368
(207 d a y s ) ; S t a t e v . C a s s i d y ( 1 9 7 8 ) , 176 Mont. 395, 578 P.2d
735 (246 d a y s ) . The d e l a y i n t h e i n s t a n t c a s e g i v e s r i s e t o
a p r e s u m p t i v e d e p r i v a t i o n o f P a l m e r ' s speedy t r i a l r i g h t , and
s h i f t s t h e burden t o t h e S t a t e t o g i v e r e a s o n s why t h e t r i a l
should proceed. Ackley, 2 0 1 Mont. a t 256; 653 P.2d a t 853.
In this respect, the S t a t e must either give a reasonable
excuse for the delay, or show t h a t the d e f e n d a n t was not
prejudiced thereby. If there exists both excuse and
p r e j u d i c e , t h e s e two f a c t o r s must be b a l a n c e d .
The second Barker factor is reason for delay. In the
instant case Palmer was responsible for two delays. One was
for a seven-day period, November 1, 1984 to November 7, 1984,
during which a new judge was called in pursuant to Palmer's
motion. The second delay attributable to Palmer occurred
from December 3, 1984 to January 25, 1985, 54 days, during
which time Palmer underwent mental evaluations pursuant to
his own motion. Thus of the 256 days of delay, 61 days are
attributable to Palmer reducing the delay not attributable to
him to 195 days. Of these 195 days, there is no evidence to
suggest nor does Palmer contend bad faith or oppressive
tactics by the State. Institutional delay weighs less
heavily against the State in the Barker balancing process.
The third factor under Barker is "assertion of the right
by defendant." Palmer made a timely assertion of his right
to a speedy trial by raising the issue before the
commencement of his trial. State v. Steward (19751, 168
Mont. 385, 390, 543 P.2d 178, 182.
The final Barker factor is "prejudice to the defendant."
In Barker, the United States Supreme Court identified three
interests of a defendant which may be prejudiced by a delay
in coming to trial. The interest are: (1) to prevent
oppressive pre-trial incarceration; (2) to minimize anxiety
and concern of the accused; and (3) to limit the
possibility that the defense will be impaired. Barker, 407
U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118.
Applying these interests to the facts of the instant
case we held that Palmer was not prejudiced by the State's
delay in bringing his cause to trial. First, Palmer suffered
no pretrial incarceration because he was already incarcerated
for the duration of the proceedings on an another charge.
Second, there is nothing in the record to indicate that the
time involved in coming to trial caused any additional or
unusual anxiety and concern to Palmer. The final interest
involved in the prejudice factor is the impairment of
Palmer's defense. Because Palmer did not present a defense,
it is clear that he was not prejudiced in this manner. Thus,
our review of the above interests lead us to the conclusion
that Palmer was not prejudiced by the delay in bringing his
cause to trial.
We hold that under the four factor balancing test of
Barker, Palmer was not denied his right to a speedy trial and
the District Court did not err in denying Palmer's motion to
dismiss.
Palmer next argues that the District Court erred in
denying Palmer's motion for a change of venue. Section
46-13-203, MCA, provides:
(1) The defendant or the prosecution may move for
a change of place of trial on the ground that there
exists in the county in which the charge is pending
such prejudice that a fair trial cannot be had in
such county. The motion must be made at least 15
days prior to trial except that, if good cause is
shown, it may be made thereafter.
(2) The motion must be in writing and supported by
an affidavit which must state facts showing the
nature of the prejudice alleged. The defendant or
the state may file counteraffidavits. The court
shall conduct a hearing and determine the merits of
the motion.
(3) If the court determines that there exists in
the county in which the prosecution is pending such
prejudice that a fair trial cannot be had, it
shall:
(a) transfer the cause to any other court of
competent jurisdiction in any county in which a
fair trial may be had;
(b) direct that a jury be selected in any county
where a fair trial may be had and then returned to
the county where the prosecution is pending to try
the case; or
(c) take any other action designed to insure that
a fair trial may be had.
In State v. Ritchson (1982), 199 Mont. 51, 54, 647 P.2d
830, 832, this Court studied the requirements of proof for a
party seeking to change venue as follows:
A defendant seeking a change of venue must show
that there is reasonable grounds to believe that a
prejudicial atmosphere exists within the present
venue which creates a reasonable apprehension that
he cannot receive a fair trial.
It is Palmer's contention that a change of venue should have
been granted in the instant case because prejudice exists in
Powell County against inmates at the prison. Palmer further
contends that, because a Citizen Protection Association had
been formed in Powell County and because a large number of
the prison employees lived within the community, there
existed such prejudice in the county that a fair trial could
not be had.
Palmer, however, made no showing of a "prejudicial
atmosphere" in Powell County other than stating in his
memorandum in support of his motion for change of venue the
above listed contentions. Further, we have reviewed the
record of the voir dire and conclude that an impartial jury
was empaneled. Here, as in State v. Bashor (1980), 188 Mont.
397, 614 P.2d 470, all the jurors stated under oath that they
could return a verdict based solely on the evidence. This
belies the statement that all Powell County juries are
unalterably prejudiced by the conditions at the prison.
We, therefore, hold the District Court did not err in
denying Palmer's motion for a change of venue because Palmer
made no showing that there existed such prejudice that a fair
trial could not be had in Powell County.
We affirm the District Court.
Justice B
We Concur:
l7
Chi'ef
, -f
Justice
,