No. 8 7 - 2 4 1
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JERRY WATERS,
Defendant and Appellant.
APPEAL FROM: The District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable Chan Ettien, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thompson & Swenson; Bruce E. Swenson, Havre, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Joe R. Roberts, Asst. Atty. General, Helena
David G. Rice, County Attorney, Havre, Montana
Submitted on Briefs: Aug. 20, 1 9 8 7
Decided: October 6, 1987
Filed: QCTG"1987
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Following a trial by jury in the Twelfth Judicial
District, Hill County, the defendant, Jerry Waters, was
convicted of attempted theft, a felony. Waters alleges that
he was denied his constitutional right to a speedy trial and
that the District Court erred by admitting a video cassette
recorder (VCR) into evidence. We disagree. The judgment of
the District Court is affirmed.
Waters presents the following issues for our review:
1. Whether the District Court erred by failing to grant
defendant's motion to dismiss for denial of speedy trial?
2. Whether a VCR which was not included in a list of
tangible objects as required by $ 46-15-322 (1)(d), MCA,
should have been excluded. from evidence admitted at the
trial?
On August 8, 1985, Waters was arrested by City of Havre
police officers and incarcerated in the Hill County jail for
a period of 13 days. Waters' arrest resulted from his
attempt to trade a VCR he had rented from Marra's TV for a
VCR owned by Hi-Line Electronics. The intervention of the
City of Havre Police, at the request of Hi-Line Electronics,
prevented completion of the transaction.
The Hill County Attorney's office filed an information
charging Waters with attempted theft, a felony, on August 29,
1985. Arraignment was initially scheduled for September 20,
1985, but was delayed until October 2, 1985, at the request
of Waters. Counsel for the defendant raised the issue of
denial of speedy trial at the omnibus hearing held January
29, 1986.
Waters filed a motion to dismiss for denial of speedy
trial on April 16, 1985, and an evidentiary hearing was held
on May 8, 1985. At the hearing, Gayla Hunt of Adult
Probation and Parole, testified that Waters was under her
supervision as a result of a previous deferred sentence. Ms.
Hunt indicated that the decision as to whether to seek
revocation of Waters' probation would be made following the
outcome of his trial on the attempted theft charge. She also
testified that during the period from his release from jail
on August 21, 1985, until the date of the hearing, Waters
failed to report at 11 of 18 scheduled appointments.
Counsel for the defendant also called Waters to the
stand. Waters testified as follows:
Q. [defense counsel] Have the pending charges
affected how much work you have been able to do?
A. Yes and no.
Q. Could you explain that a little more, please?
A. Well, I don't know how to put it. It just
bothers and worries me that 1 really don't have,
get to thinking about it and wouldn't have any
ambition to go out and do anything, really. And
like more or less go to check out, go to the
secondhand store, flea markets on the weekend.
Waters also indicated that the pending charges prevented
filing a lawsuit against Marra TV; that he was blacklisted by
rental stores and not able to do normal rental business; and
that he was anxious for the pending charge to be resolved.
The District Court denied the defendant's motion to
dismiss and proceeded to trial on May 12, 1986. During the
time from the filing of the information until May 9, 1986,
the prosecution told the defendant and defendant's counsel
that two photographs of the VCR would be admitted into
evidence. The VCR had not been listed as a proposed exhibit
or as an item the prosecution would seek to present at trial.
The VCR was admitted into evidence during trial over
defendant's objection.
Any person accused of a crime is guaranteed the right to
a speedy trial by the Sixth Amendment to the United States
Constitution and Art. 11, 5 24 of the Montana Constitution.
The right to a speedy trial is fundamental. It attaches when
a defendant is accused of a crime, State v. Ackley (1982),
201 Mont. 252, 255, 653 P.2d 851, 853, but the nature of the
right precludes establishing a time period cast in tone as
determinative.
The right of a speedy trial is necessarily
relative. It is consistent with delays and depends
on circumstances. It secures rights to a
defendant. It does not preclude the rights of
public justice.
Beavers v. Haubert (1905), 198 U.S. 77, 87, 25 S.Ct. 573,
576, 49 L.Ed. 950, 954. Thus, any inquiry into a speedy
trial claim necessitates a functional analysis of the right
in the particular context of the case.
Consistent with the amorphous quality of the right, the
United States Supreme Court established a four-pronged
balancing test to determine speedy trial claims in Barker v.
Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.
This Court has adopted the Barker test as stated in State ex
rel. Briceno v. District Court (19771, 173 Mont. 516, 518,
568 P.2d 162, 163-4:
These cases involve a sensitive balancing of four
factors, in which the conduct of the prosecution
and defendant are weighed in determining whether
there has been a denial of the right to a speedy
trial. The four factors to he evaluated and
balanced are:
1) Length of delay;
2) Reason for delay;
3) Assertion of the right by defendant; and
4) Prejudice.
No single factor is determinative. Each facet of the
analysis is weighed in light of the surrounding facts and
circumstances.
The length of delay acts as the triggering mechanism in
a speedy trial analysis. The other factors need not be
examined unless a presumptively prejudicial delay has
occurred. State v. Harvey (1979), 184 Mont. 423, 603 P.2d
661. The delay in the instant case is 277 days. This amount
of time is sufficient to trigger a speedy trial examination.
State v. Palmer (Mont. 1986), 723 P.2d 956, 43 St.Rep. 1503
(256 days) ; State v. Chavez (Mont. 1984), 691 P.2d 1365, 41
St.Rep. 2219 (214 days); State v. Ackley (1982), 201 Mont.
252, 653 P.2d 851 (257 days) ; State v. Cassidy (1978), 176
Mont. 385, 578 P.2d 735 (246 days).
The delay in the instant case gives rise to a rebuttable
presumption of prejudice. In order to rebut the presumption,
the State must come forward with evidence showing that the
defendant was not prejudiced by the delay and that there is a
reasonable excuse. Ackley, 201 Mont. at 256, 653 P.2d at
853.
The second Barker factor is the reason for the delay.
Waters is responsible for 12 of the 277 days. Thus the
remaining 265 days are attributable to the State.
The right to a speedy trial is designed to prevent
oppressive tactics by the State. Waters does not contend,
nor does the evidence support, a finding that the State
engaged in bad faith or oppressive tactics. We are not
unaware of the crowded court dockets and the method of
scheduling trials. Although delays inherent in the system
are chargeable to the State, institutional delay will be
weighed less heavily in the balancing process. Ackley, 201
Mont. at 256, 653 P.2d at 853. In the instant case, we find
the delay to be institutional.
The third Barker factor is assertion of the right by the
defendant. Waters properly asserted his right before
commencement of trial. State v. Bailey (1982), 201 Mont.
473, 655 P.2d 494. The State does not contest this factor.
The final factor under Barker is prejudice to the
defendant. Prejudice is determined by examining the
defendant's interest in a speedy trial. These interests are:
(1) to prevent oppressive pretrial 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.
Waters concedes that 13 days incarceration is not per se
sufficient to establish prejudice violative of the right to a
speedy trial. Nor does the record indicate thzt his defense
was in any way impaired.
The point of contention is whether Waters suffered
anxiety and concern sufficient to violate the right to speedy
trial. A certain amount of anxiety and concern is inherent
in being accused of a crime. Chavez, 691 P.2d at 1371, 41
St.Rep. at 2224. A defendant's anxiety and concern is not
dispositive. It is but a factor to be considered in
determining prejudice. The crucial factor in a prejudice
determination is whether the defense has been impaired. See
Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118.
As noted above, there was no evidence that Waters' defense
was in any way impaired.
In any event, Waters' allegations of anxiety and concern
cannot be deemed excessive. Nor do the allegations conform
to the evidence. When questioned as to whether his anxiety
had affected his ability to work, Waters himself was unsure.
He responded "yes and no." Waters' claim to a generalized
lack of ambition is not sufficient to demonstrate prejudice.
Waters also claims that his anxiety and concern were
magnified by the possible revocation of probation. His
failure to report at 11 of 18 scheduled meetings with his
probation officer does not support his contention. We do not
find his argument convincing.
The third allegation of anxiety resulted from Waters'
inability to pursue a civil suit against Marra TV. It was
not the passage of time but the result of the charges which
ultimately affected defendant's civil remedy, if he had any.
Finally, Waters claims to have suffered anxiety and
concern due to his alleged "blacklisting" from other rental
businesses. Again, we find Waters' argument less than
compelling. In response to the question of whether this
blacklisting resulted in depression, Waters stated he just
wanted to sue Marra's TV. Neither the delay in pursuing a
civil suit nor the inability to rent a VCR is sufficient to
demonstrate prejudice sufficient to violate the right to a
speedy trial. Whether analyzed individually or cumulatively,
the defendant's allegations of excessive anxiety and concern
are inadequate.
The trial judge saw and heard Waters during
cross-examination by Deputy County Attorney Rice. Due regard
must be given to the opportunity of the trial court to judge
the credibility of the witness. We must defer to District.
Court findings if they are supported by credible evidence.
Chavez, 691 P.2d at 1371, 41 St.Rep. at 2224. Here, the
State effectively demonstrated an absence of prejudice. We
hold that Waters was not denied the right to a speedy trial.
Waters' contention that the District Court erred when it
admitted the VCR into evidence is equally without merit. The
purpose of Montana's discovery scheme is to enhance the
search for truth. See generally Florida v. ~illiams (1970),
399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446. This goal is
accomplished by granting "full notification of each side's
case-in-chief so as to avoid unnecessary delay and surprise
at trial." State v. Dodds (Ariz. 1975), 537 P.2d 970, 972.
Consistent with the goal, § 46-15-329, MCA, provides a
means of enforcing discovery orders. It endows the district
courts with the flexibility to impose sanctions commensurate
with the failure to comply with discovery orders. The
statute does not mandate automatic exclusion for
noncompliance. By its terms, 5 46-15-329 provides that "the
court may impose any sanction that it finds just under the
circumstances . . .."
Imposition of sanctions is a matter best left to the
sound discretion of the district court. Such discretion
allows the court to consider the reason why disclosure was
not made, whether the noncompliance was willful, the amount
of prejudice to the opposing party, and any other relevant
circumstances. Absent a clear abuse of discretion, the
decision of the District Court must be upheld.
In the instant case, the District Court found that
Waters had not suffered prejudice by the State's failure to
list the VCR. We agree. It is clear that Waters knew about
the VCR since it was the item in controversy. The State had
notified him that photographs of the VCR would be introduced
into evidence and later informed the defense that the VCR
itself would be introduced. Waters was not prejudiced or
unduly surprised by the introduction of the VCR.
We hold that the District Court did not abuse its
discretion. The judgment. is affirmed.
1
. T
/
/-
Justice 1
We Concur: