No. 8 6 - 5 4 2
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
EMIL TILLY,
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:
Theodore P. Cowan, Missoula, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
John Paulson, Asst. Atty. General, Helena
Robert Deschamps, 111, County Attorney, Courthouse,
Missoula; Karen Townsend & Betty Wing, Deputy County
Attorneys, Missoula, Montana
Submitted on Briefs: March 12, 1 9 8 7
Decided: MaY 26, 1987
Filed: MAY 2 6 1987
W * Clerk 4 4
#
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Emil Tilly appeals his conviction for sexual inter-
course without consent from the Fourth Judicial District,
Missoula County.
We affirm.
Two issues are presented for our review:
1. Did the District Court err when it denied defendant
Tilly's motion to dismiss for lack of speedy trial?
2. Did the District Court abuse its discretion when it
denied defendant Tilly ' s motion to depose the prosecution' s
main witness?
Defendant and appellant Tilly was charged by informa-
tion on November 23, 1985, with sexual intercourse without
consent in violation of S 45-5-503 (3)(a), MCA. The informa-
tion and supporting affidavit accused defendant of engaging
in sexual relations with his daughter, C. T., a minor.
Following a week-long jury trial in September 1986,
Tilly was found guilty of sexual intercourse without consent.
Tilly was sentenced to thirty years in the Montana State
Prison with ten years suspended.
At trial the defendant's children, Charles, C. T., and
P. T. testified that defendant had intermittently engaged in
sexual relations with C. T. for approximately eight years.
C. T. testified that defendant's sexual advances continued
until C. T. was removed from defendant's custody on February
22, 1985. The victim's brothers, P. T. and Charles Tilly,
testified that on a number of occasions, they witnessed the
defendant and C. T. engaged in sexual acts. P. T. and
Charles also testified that defendant and C. T. regularly
slept together from February 1980 to February 22, 1985.
While awaiting trial, defendant was incarcerated with
bond set at $10,000. During his pretrial incarceration,
defendant wrote twelve "love letters1' to his daughter. In
defendant's love letters, defendant requested C. T. to marry
him and not to "hurt him" with testimony.
Defendant's love letters were in violation of court
orders dated December 12, 1985, and February 28, 1986, order-
ing defendant to cease all contact with his daughter. After
repeatedly violating these orders, defendant was charged with
tampering with a witness, in violation of $ 45-7-206 (1)(a),
MCA. This charge was eventually dismissed by motion of the
State following defendant's sexual intercourse without con-
sent conviction.
Issue 1
Did the District Court abuse its discretion when it
denied defendant's motion to dismiss for lack of a speedy
trial?
The right to a speedy trial is guaranteed by both the
United States Constitution and the Montana Constitution.
U.S. Const., Amend. VI; 1972 Mont. Const., Art. 11, Sec. 24.
In Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33
L.Ed.2d 101, the United States Supreme Court adopted a
four-factor balancing test in which conduct of both the
prosecution and the defendant are weighed in order to deter-
mine whether there has been a denial of defendant's right to
speedy trial. The four factors to be considered are:
(1) length of the delay; (2) reason for the delay;
(3) defendant's assertion of the right; and (4) prejudice to
the defendant. Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33
L.Ed.2d at 117. See, State v. Palmer (Mont. 1986), 723 P.2d
956, 958, 43 St.Rep. 1503, 1505, citing State ex rel. Briceno
v. District Court (1977), 173 Mont. 516, 518, 568 P.2d 162,
163-164.
In the case at hand, 312 days elapsed between
defendant's arrest on October 28, 1985, and the commencement
of defendant's trial on September 5, 1986. A 312-day delay
triggers a speedy trial inquiry. State v. Palmer, 723 P. 2d
at 958, 43 St.Rep. at 1505; State v. Chavez (Mont. 1984), 691
P.2d 1365, 1370, 41 St.Rep. 2219, 2222. The delay gives rise
to a presumption that defendant has been deprived of his
right to speedy trial. Palmer, 723 P.2d at 958, 43 St.Rep.
at 1505. Further, the delay shifts the burden to the State:
(1) to give a reasonable excuse for the delay, or (2) to show
that defendant was not prejudiced by the delay. State v.
Ackley (1982), 201 Mont. 252, 256, 653 P.2d 851, 853. If
both excuse and prejudice exist, these factors must be bal-
anced. Ackley, 201 Mont. at 256, 653 P.2d at 853.
In the case at bar, C. T., a material witness, was
temporarily unavailable to testify due to emotional instabil-
ity. During defendant's pretrial incarceration, C. T. was
undergoing psychiatric therapy at the Montana Youth Treatment
Center in Billings. Her illness was due in large part to
defendant's unlawful acts. We hold the State produced a
reasonable excuse for delay due to the absence of a material
witness. Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33
L.Ed.2d at 117.
The second Barker factor is reason for delay. " ...
[Ilt must be determined what percentage of the delay is
chargeable to the defendant and this much time must accord-
ingly be deducted from the total delay." State v. Freeman
(1979), 183 Mont. 334, 339, 599 P.2d 368, 371. Defendant
Tilly is responsible for much of the delay. Prior to ar-
raignment, defendant requested a substitution of judge.
Defendant has this right of substitution. In the balancing
test, the exercise of this right will not necessarily be
heavily weighed against the defendant. Defendant's
arraignment was then moved from November 18, 1985, to Decem-
ber 12, 1985 (24-day delay). On December 13, 1985, defendant
waived his right to speedy trial and requested a continuance
over the current jury term. The defendant was informed the
next available jury term was April 1, 1986 (108-day delay).
On February 19, 1986, defendant requested that a public
defender be appointed. On March 3, 1986, defendant's
newly-appointed counsel requested a psychiatric evaluation to
determine whether defendant was suffering from mental disease
or defect. On that date, defendant again waived his right to
speedy trial. On March 13, 1986, defendant requested and was
granted an extension of thirty days to file motions and
memoranda in preparation for the March 1986 omnibus hearing
(12-day delay).
On March 20, 1986, the State moved for a continuance
beyond the April jury term due to the mental and physical
illness of C. T., a material witness. C. T. 's guardian ad
litem concurred with the State's motion for continuance.
Also, on March 20, 1986, defendant moved to dismiss this
action for denial of right to speedy trial. The District
Court denied defendant's motion to dismiss. The court ruled
that defendant's trial date would be set when C. T., the
victim and material witness, was able to testify.
On May 21, 1986, defendant filed with this Court a
petition for writ of habeas corpus and supervisory control.
This Court denied defendant's petition on July 9, 1986
(48-day delay).
The State filed an amended information on August 8,
1986, charging defendant with tampering with a witness in
violation of $ 45-7-206, MCA. The District Court severed
this charge (Count 11) from the sexual intercourse without
consent change (Count I), on August 28, 1986.
Trial on Count I commenced on September 5, 1986, and
concluded on September 10, 1986. The jury returned a verdict
of guilty to the charge of sexual intercourse without
consent.
A thorough review of the record reveals that defendant
was not denied his right to a speedy trial. Defendant's
numerous delays overlap one another, making an accurate
accounting difficult. However, it is clear that defendant
caused the following delays:
(1) substitution of judge, arraign-
ment postponed until 12/18/85 24 days
(2) waiver of speedy trial until
April jury calendar 108 days
(3) 30-day extension to file brief 12 days
(4) petition for supervisory con-
trol and habeas corpus (petition
denied) 48 days
TOTAL -- 192-day delay
The State is not charged with speedy trial delay when a
material witness with "valid reason" is not available.
Barker v. Wingo, 407 U. S. at 531, 92 S.Ct. at 2192, 33
L.Ed.2d at 117. We hold a valid reason exists when a materi-
al witness is unavailable due to defendant's unlawful acts.
C. T. was unavailable in excess of thirty days. However,
only thirty days may be may be deducted from the State's
delay in order to prevent a "time overlap." Accordingly, 222
days are deducted from the 312 days defendant spent while
awaiting trial. State v. Freeman (1979), 183 Mont. 334, 599
P.2d 368, 371.
The next application of Barker is defendant's assertion
of the right. Defendant waived his right to speedy trial on
December 12, 1985, and March 6, 1986. Defendant's waiver
served to extinguish his right to trial until the next
(April) jury term. However, defendant made a timely asser-
tion of his right to a speedy trial by raising the issue on
April 6, 1986. State v. Harvey (Mont. 1986), 713 ~ . 2 d 517,
43 St.Rep. 46, 50; State v. Stewart (1975), 168 Mont. 385,
543 P.2d 178.
The final Barker factor is "prejudice to the defen-
dant." Barker identified three interests of a defendant
which may be prejudiced by a delay in coming to trial. The
interests are: (1 to prevent oppressive pretrial incarcera-
tion; (2) to minimize anxiety of the accused; and (3) to
limit the possibility 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 hold defendant Tilly was not prejudiced by the
State's delay in bringing his cause to trial. First, defen-
dant repeatedly violated the December 12, 1985, and February
28, 1986, orders of the trial court not to contact the vic-
tim. Defendant, in essence, showed the court he could not be
entrusted to leave the emotionally disturbed sixteen-year-old
alone. Therefore, defendant's pretrial incarceration was an
appropriate alternative. Secondly, nothing in the record
indicates that defendant was unduly "anxious and concerned."
One may expect a certain amount of anxiety and concern when
accused of a crime. State v. Chavez (Mont. 1984), 691 P.2d
1365, 41 St.Rep. 2219, 2224. Finally, we find no prejudice in
defendant's presentation of his defense.
Accordingly, we hold defendant was not denied his right
to speedy trial.
- 2
Issue
-
Did the District Court abuse its discretion when it
denied defendant Tilly's motion to depose the prosecution's
main witness?
Defendant contends § S 45-15-201 and 45-15-204(1) (c),
MCA, stand for the proposition that a deposition of an indis-
posed material witness is mandatory in order to prevent
violation of defendant's right to a speedy trial.
Section 45-15-201 (I), MCA, provides in pertinent part:
When depositions taken. (1) If it
appears that a prospective witness may
be unable to attend or prevented from
attending a trial ... and that his
testimony is material and that it is
necessary to take his deposition in
order to prevent a failure of justice,
the court . .. may upon motion and
notice to the parties order that his
testimony be taken by deposition ...
Section 45-15-201, MCA, is obviously a discretionary
statute. State v. Austad (1982), 197 Mont. 70, 641 P.2d
1373, 1386. The trial court found, following the March 20,
1986, hearing, that a material witness, C. T., was not imme-
diately available for deposition or trial. The court granted
the State's motion to continue the trial into the July trial
calendar. Defendant, on July 24, 1986, was granted an inter-
view with the victim. Further, defendant at all times, was
given complete access to the State's files. During trial,
C. T. was subject to defendant's cross-examination. Defen-
dant was given every opportunity to prepare an adequate
defense. State v. Austad, 197 Mont. at 94, 641 P.2d at 1386.
We hold the trial court did not abuse its discretion
when it denied defendant's motion to depose a material
witness.
Affirmed.
We concur
I
Justices