No. 86-244
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
TERRY GRANT,
Defendant and Appellant.
APPEAL FROM: The District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Anthony F. Keast, Missoula, Montana
Christopher Daly, Missoula, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Dorothy McCarter, Asst. Atty. General, Helena
Robert L. Deschamps, 111, County Attorey, Missoula,
Montana
Submitted on Briefs: March 12, 1987
Decided: June 11, 1987
Filed:
Clerk
Mr. J u s t i c e William E. Hunt, Sr., delivered t h e opinion of
t h e Court.
Defendant, Terry Grant, appeals a conviction of one
count of burglary and two c o u n t s o f theft from t h e F o u r t h
Judicial District, Missoula County, Montana. Defendant
alleges that his right t o a speedy t r i a l was v i o l a t e d and
t h e r e f o r e t h e c h a r g e s a g a i n s t him s h o u l d be d i s m i s s e d .
The d e c i s i o n o f t h e D i s t r i c t C o u r t i s a f f i r m e d .
The s o l e i s s u e r a i s e d on a p p e a l i s whether d e f e n d a n t was
d e n i e d a speedy t r i a l .
Defendant, Terry Grant, was a r r e s t e d on September 23,
1984, a f t e r b e i n g apprehended w h i l e f l e e i n g t h e scene of a
burglary of a Missoula jewelry store. The same n i g h t , two
o t h e r M i s s o u l a j e w e l r y s t o r e s were b u r g l a r i z e d i n a s i m i l a r
manner. Items allegedly taken from a l l t h r e e s t o r e s were
found in defendant's possession. O October 2 3 ,
n 1984, an
information was filed with the District Court charging
defendant with three counts of burglary. O November
n 7,
1984, d e f e n d a n t was a r r a i g n e d i n D i s t r i c t C o u r t and e n t e r e d a
p l e a o f n o t g u i l t y t o t h e c h a r g e s a g a i n s t him. On November
8, 1984, the State filed an amended information charging
d e f e n d a n t w i t h one c o u n t o f b u r g l a r y and two c o u n t s o f t h e f t .
Defendant was r e l e a s e d on h i s own r e c o g n i z a n c e . T r i a l was
s e t f o r t h e c o u r t ' s n e x t j u r y term i n F e b r u a r y , 1985.
An omnibus h e a r i n g was s c h e d u l e d f o r J a n u a r y 11, 1985,
a t which d e f e n d a n t ' s p r e s e n c e was r e q u i r e d . When d e f e n d a n t
d i d n o t a p p e a r a t t h e h e a r i n g a bench w a r r a n t was i s s u e d f o r
his arrest.
Defendant d i d n o t a p p e a r a t t h e Montana omnibus h e a r i n g
b e c a u s e h e was i n t h e Lemhi County, Idaho j a i l . He had been
in jail in Idaho s i n c e November 18, 1984 on b u r g l a r y and
grand theft charges. Defendant pled guilty in Idaho and
received a five year sentence to be served in that state's
prison.
On January 22, 1985, the Missoula County sheriff issued
a detainer, based on the bench warrant, to the Lemhi County,
Idaho sheriff's office. On February 19, 1985, the Idaho
State Prison notified the State of Montana that defendant was
incarcerated there.
A second detainer was issued against the defendant in
Idaho on March 8, 1985. Confirmation that defendant received
notice of this detainer was received in Missoula on March 11,
1985.
On March 29, 1985, the State of Montana moved for a
continuance. The motion was granted. Defendant alleges that
neither he nor his counsel received notice of this motion and
therefore were unable to make an appearance.
A second omnibus hearing was scheduled for May 1, 1985.
Various motions were made and a hearing on the motions was
scheduled for May 23, 1985. On that day neither defendant
nor his counsel appeared. The matter was continued without
date.
On May 30, 1985, the State issued a third detainer to
the Idaho State Prison requesting temporary custody of
defendant in order to pursue the charges against him in
Montana.
On June 17, 1985, the State moved for a second
continuance for the trial which was at this time scheduled
for the July 1985 calendar. This continuance was granted
over defendant's objection alleging a speedy trial violation,
on the grounds that defendant was incarcerated in Idaho and
had not yet exercised his right to a speedy trial in Montana
pursuant to the Interstate Agreement on Detainers, 5
46-31-101, MCA.
On June 19, 1985, the State of Montana received from
defendant, a request for disposition of the Montana charges
against him and for the determination of a speedy trial.
Defendant was delivered to the custody of the State of
Montana on August 15, 1985. On September 3, the d.ate
scheduled for final disposition of the charges against
defendant in Montana, defendant and his counsel requested a
continuance and waived the right to a jury trial.
On October 21, 1985, defendant requested another
continuance, which was denied. A nonjury trial was heard on
October 22. Defendant made a motion to dismiss for lack of a
speedy trial. This motion was argued and subsequently
denied. On November 8, the court issued its findings of
fact, conclusions of law and order. Defendant was found
guilty of one count of burglary and two counts of theft. He
was sentenced to the Montana State Prison for ten years for
the charge of burglary, ten years for one charge of theft, to
run concurrently, and ten years for the second charge of
theft, to run consecutively. He was designated a persistent
felony offender, nondangerous, and was given credit for time
served in Idaho. Defendant was returned to the Idaho State
Prison on or about December 5, 1985.
The right to a speedy trial in criminal prosecutions is
secured by the Sixth Amendment of the United States
Constitution. The same right is expressed in Art. 11, S 24
of the Montana Constitution. This right has been regarded as
fundamental. Branden v. 30th Judicial Circuit Court (19731,
410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443.
To determine whether defendant's right to a speedy trial
has been violated, this Court must balance four
factors: length of delay; the reason for delay; the
defendant's assertion of his right; and prejudice to the
defendant. Barker v. Wingo (1972), 407 U.S. 514, 530, 92
S.Ct. 2182, 33 L.Ed.2d 101, 117; State v. Robbins (Mont.
1985), 708 P.2d 227, 42 St.Rep. 1440.
1. Length of delay
The length of delay is the first and most critical
factor to be considered in the balancing test. Until there
has been sufficient delay which is presumptively prejudicial,
there is no need to consider the other factors.
In the present case, Grant's arrest on September 23,
1984, started the clock running. State v. Smith (Mont.
1983), 670 P.2d 96, 100, 40 St.Rep. 1533, 1537. On October
22, 1985, 393 days later, Grant was brought to trial. This
is a presumptively prejudicial delay. Fitzpatrick v. Crist
(1974), 165 Mont. 382, 528 P.2d 1322 (7 month delay). A
lengthy delay, by itself, does not necessitate a dismissal of
charges, but it does trigger our consideration of the other
factors outlined in Barker, 407 U.S. at 533.
Once a sufficiently lengthy delay has occurred the
burden of explaining the reason for such delay and an absence
of prejudice to defendant shifts to the State. Fitzpatrick,
528 P.2d at 1326. When the reason for delay is considered,
the question becomes whether prosecution was pursued with
rea-sonable diligence. State v. Carden (1977), 173 Mont. 77,
566 P.2d 780. Any delay attributable to defendant's own
actions must be deducted from the total delay. State v.
Freeman (1979), 183 Mont. 334, 339, 599 P.2d 368, 371.
Incarceration on other charges does not affect defendant's
right to a speedy trial. U.S. v. Maura (1978), 436 U.S. 340,
98 S.Ct. 1834, 56 L.Ed.2d 329. However, in the present case,
defendant's own actions were responsible for much of the
delay. To determine whether the 393 day delay violated
defendant's right to a speedy trial, we must look to the
reasons for delay.
2. Reasons for delay
The primary reason for the delay was the conduct of the
defendant in Idaho leading to his arrest, conviction and
imprisonment preventing him from attending the January 11,
1985 omnibus hearing in Montana and causing the trial,
scheduled in February, to be continued without date.
Defendant was arrested on September 23, 1984 and
arraigned 14 days later on November 7 in Missoula, Montana.
He was released on his own recognizance. Eleven days later
on November 18, he was arrested in Idaho and charged with
burglary and felony theft. The result of these charges was a
conviction and incarceration for five years in the Idaho
State Prison. On January 11, 1985, after defendant failed to
show up for an omnibus hearing, the State of Montana was
alerted to his incarceration in Idaho. Thereafter, on
January 22, 1985, a detainer was filed in Idaho pursuant to
the Interstate Agreement on Detainers, 46-31-101; Art.
I11 (1), MCA.
Montana filed two more detainers on defendant Grant with
the State of Idaho. On March 8, 1985, Idaho received a
detainer from Montana and notified defendant that charges
were still pending against him in Montana. On May 30, the
State of Montana filed a detainer in Idaho requesting
temporary custody of defendant pursuant to Art. IV of the
Interstate Agreement on Detainers.
The time chargeable to defendant began on January 22,
1985, when the State of Montana issued the first detainer to
defendant and the State of Idaho notifying them of charges
pending against defendant in Montana. That time, as
chargeable to defendant, ceased to run on June 19, 1985 when
defendant asserted his right to a speedy trial by requesting
final disposition of the charges against him in Montana.
During this period the Interstate Agreement on Detainers was
applicable. State v. Seadin (1979), 181 Mont. 294, 593 P.2d
451. Defendant was out of reach for prosecution in Montana
due to his voluntary commission of crimes in Idaho. The
State of Montana repeatedly attempted to bring defendant to
trial for the charges pending against him by filing detainers
with the State of Idaho. Knowing that charges were pending
against him in Montana, it was up to defendant to request
speedy and final disposition of the charges against him.
Also chargeable to defendant is the delay between
September 3, when defendant requested a continuance of his
trial date, and October 22, the date of his trial. This is a
total of 196 days chargeable to defendant which, when
deducted from the total 393 days, leaves a period of 197
days: 121 days between his arrest and the day a detainer was
first issued; and 76 days between receiving the request for
speedy trial from defendant and the date of his request for a
continuance.
In consideration of the remaining 197 days not
chargeable to defendant, we hold that the State was diligent
in its efforts to bring the defendant to trial. Accordingly,
this time cannot be charged against the State. Freeman, 599
P.2d at 371. The presumption that defendant did not receive
a speedy trial which was raised by the 393 day delay between
defendant's arrest and his trial was satisfactorily overcome.
3. Defendant's assertion of his rights
The State of Montana did not receive a request for
speedy trial from defendant until June 19, 1985. Upon
receipt of defendant's request, the State of Montana was
allowed 180 days to bring defendant to trial for the charges
filed against him in Montana under the Interstate Agreement
on Detainers, § 46-31-101; Art. III(1). The 180 days began
to run when defendant's request for speedy trial was received
by the proper authorities in Montana. Maura, 436 U.S. at
351. Defendant's trial on October 22, 1985, 125 days after
his June 19 request, was within the 180 allowable days of his
demand for a speedy trial.
It is clear that defendant was given a speedy trial
after the assertion of his rights under the Interstate
Agreement on Detainers.
4. Prejudice to the defendant
Defendant's own conduct prevented the State from
bringing him to trial within 180 days. He cannot now
complain that he was not given a speedy trial.
The judgment of the District t is affirmed.
We Concur: 7
Chief Justice
Justices