No. 86-222
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DONALD P. VJALKER, a/k/a BUZZ,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Allen Beck, Billings, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
James M. Scheier, Asst. Atty. General, Helena
Harold Hanser, County Attorney, Billings, Montana
Submitted on Briefs: Oct. 23, 1 9 8 6
Decided: February 26, 1987
Filed:
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Defendant Walker appeals a jury conviction for the
criminal sale of dangerous drugs. On March 13, 1986, the
Thirteenth Judicial District Court, Yellowstone County,
sentenced Walker to seven years in the Montana State Prison.
We affirm.
Walker raises three issues for our review:
1. Did the District Court err when it denied Walker's
third motion for a continuance?
2. Did the District Court violate Walker's right to a
speedy trial?
3. Did the District Court err when it gave the State's
jury instruction on entrapment?
Walker was arrested on July 29, 1985, for selling a
quarter-pound of marijuana to a police agent. On July 31,
1985, the State filed an information charging Walker with a
violation of § 45-9-101, MCA, for the criminal sale of dan-
gerous drugs. Walker was indigent, so the District Court
appointed Allen Beck as his public defender. Walker's trial
was originally set for November 12, 1985. However, on the
morning of trial, Mr. Beck moved for a continuance because of
scheduling conflicts. The District Court granted his motion
and reset trial for January 6, 1986. On January 3, 1986, Mr.
Beck moved for another continuance because of scheduling
conflicts. The court again granted his motion and reset
trial for February 4, 1986.
On the afternoon of February 3, 1986, Mr. Beck moved
for another continuance because of witness unavailability.
The next morning, immediately before trial, Mr. Beck also
moved for a dismissal for lack of a speedy trial. The Dis-
trict Court denied both motions. Trial began as scheduled on
February 4, 1986. The jury convicted Walker on February 7,
1986.
Issue 1
Did the District Court err when it denied Walker's
third motion for a continuance?
Walker filed his third motion for continuance one day
before trial. He requested additional time to locate uniden-
tified witnesses at unidentified addresses who could possibly
support his entrapment defense. Mr. Beck stated in his
motion:
With regard to said witnesses, Mr.
Walker is reluctant to disclose their
names to Allen Beck, unless he (Donald
Walker) first discusses the matter with
them ... The witnesses in question are
with no telephone numbers and can only
be reached through mutual acquaintances.
These persons are in the following
cities: Denver, Great Falls, and
Orlando, Florida, to the best of Mr.
Walker's knowledge, information and
belief.
Judge Baugh asked Mr. Beck:
With regard to the motion for continu-
ance, I hear talk about witnesses. I
don't know what these witnesses can say.
I don't know where these witnesses are.
Maybe even Mr. Walker doesn't know
precisely where they are ... Do these
people have names? Do they have loca-
tions? Has Mr. Walker related to you
what these witnesses are supposed to be
able to say?
Mr. Beck replied that the absent witnesses might have
testified that Walker was intoxicated, that the undercover
agent repeatedly asked Walker for drugs, and that Walker's
intoxication made him particularly susceptible to suggestion.
We note that Walker must show reasonable cause for the
continuance. As we held in State v. Van Natta (1982), 200
Mont. 312, 321, 651 P.2d 57, 61: "Before a motion for a
continuance is granted, the movant must show that he has
employed due diligence to procure that which he now requests
additional time to procure."
Walker discussed witness procurement with Mr. Beck on
February 1, 1986, three days before trial. The District
Court asked Mr. Beck why Walker did not try to contact his
witnesses through the mutual acquaintances. Mr. Beck
replied:
I think the best explanation of that
came from Mr. Walker when I discussed it
with him yesterday, and he said over the
weekend, Mr. Beck, [there] is no time to
try to reach these people because they
are all out drinking. Is that correct
Mr. F?alker?
[Walker]: Yes.
[Beck]: These witnesses are intervening
intermediaries, he was trying to contact
our people on the Southside who unfortu-
nately are intoxicated much of the time,
is that correct sir?
[Walker]: Quite a bit.
[Beck]: He states that they are alco-
holics and transient.
[Walker]: Yes sir.
When Walker requested a continuance to locate absent
witnesses, he assumed dual burden. First, he needed to
show that he had reasonably searched for his witnesses.
Second, he needed to show that his witnesses' testimony could
have helped his defense. State v. Harris (Mont. 19841, 682
P.2d 159, 161, 41 St.Rep. 866, 868-869. Walker offered no
proof that the witnesses could have been located within a
reasonable time. On the contrary, he was not even sure if
they were in Denver, Great Falls, or Orlando. Walker also
refused to identify the witnesses. Furthermore, the
unidentified witnesses could only be located through interme-
diaries, who Walker also failed to identify. Even if the
witnesses were somehow located through Walker's network of
acquaintances, Walker offered no assurances that they could
support his entrapment defense. Walker's "witness search"
was neither timely nor credible. Walker failed to meet his
burden of proof, by offering nothing but unsupported
speculation.
Section 46-13-202(3), MCA, states:
All motions for a continuance are ad-
dressed to the discretion of the trial
court and shall be considered in the
light of the diligence shown on the part
of the movant. This section shall be
construed to the end that criminal cases
are tried with due diligence consonant
with the rights of the defendant and the
state to a speedy trial.
In light of the minimal diligence shown by Walker, the
District Court properly denied his motion for a continuance.
The District Court is under no obligation to repeatedly
adjust its schedule to accommodate Walker's motions. The
granting of a continuance by a District Court is discretion-
ary, and not a matter of right with a defendant. Walker has
failed to cite and support any specific instance of discre-
tionary abuse. Absent a clear abuse of discretion, the court
does not err when it denies such a motion. State v. Harvey
(1979), 184 Mont. 423, 431, 603 P.2d 661, 666. We affirm the
District Court's denial of Walker's motion for a continuance.
Issue 2
Did the District Court deny Walker a speedy trial?
We analyze speedy trial issues under a four-part test,
which was first articulated in Barker v. Wingo (1972), 407
U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117.
Citing Barker in State v. Robbins (1985), 708 P.2d 227, 233,
42 St.Rep. 1440, 1445, we noted that the factors of the test
are :
(1) length of the delay;
(2) reasons for the delay;
(3) defendant's assertion of his right to a speedy
trial; and
(4) prejudice to the defendant.
These factors are related and "must be considered together
with such other circumstances as may be relevant. The Court
must still engage in a difficult and sensitive balancing
process." State v. Larson (1981), 623 P.2d 954, 957, 38
The length of delay, from the date of Walker's arrest
to the date of his trial, was 189 days. When analyzing an
acceptable length of delay, this Court will consider both the
State's and the defendant's actions in the delay.
For the State, the question is whether
the prosecution was pursued with reason-
able diligence ... On the other side
of the coin, it must be determined what
percentage of the delay is chargeable to
the defendant and this amount of time
must accordingly be deducted from the
total delay.
State v. Freeman (1979), 183 Mont. 334, 338-339, 599 ~ . 2 d
368, 371.
Walker's motions for continuances accounted for 83 days
of the delay. But for Walker's motions, the delay would only
have been 106 days. These 106 days are well within our
acceptable delay limit. Robbins, 708 P.2d at 234, 42 St.Rep.
at 1447; State v. Kelly (1983), 661 P.2d 26, 27, 40 St.Rep.
364, 365.
Walker did not assert his right to a speedy trial until
the morning of trial. We recently upheld the denial of a
motion to dismiss for lack of a speedy trial, which was filed
on the day of trial. State v. Cutner (1984), 692 P.2d 466,
468, 41 St.Rep. 2404, 2407. Walker's assertion was not
timely, and the District Court properly denied his motion.
Walker also failed to show any unfair prejudice as a
result of the District Court's denial of his motion. Al-
though Walker was incarcerated for approximately six months
prior to trial, incarceration alone is insufficient to prove
prejudice. State v. Boyer (1984), 676 P.2d 787, 790, 41
St.Rep. 321, 324.
In summary, we will not allow Walker's motions for
continuance to serve a secondary purpose as grounds for
denial of the right to a speedy trial. We find no merit in
his claim.
Issue 3
Did the District Court err when it gave the State's
jury instruction on entrapment?
Court's Instruction No. 13 instructed the jury on the
defense of entrapment, and is based upon a model instruction
in Devitt and Blackmar, Federal Jury Practice and Instruc-
tions, § 13.09 (1977). Instruction 13 states:
The issue of entrapment has been raised
by the defendant. Where a person has no
previous intent or purpose to commit the
crime or sale of dangerous drugs, but is
induced or persuaded by law enforcement
officers or their agents to commit this
crime, he is a victim of entrapment, and
the law as a matter of policy forbids
his conviction in such a case.
On the other hand, where a person al-
ready has the readiness and willingness
to engage in the sale of dangerous
drugs, the mere fact that law enforce-
ment officers or their agents provided
what appears to be a favorable
opportunity is not entrapment. When a
law enforcement officer suspects that a
person is engaged in the illegal sale of
dangerous drugs, it is not entrapment
for a law enforcement officer to pretend
to be someone else and to offer, either
directly or through an agent, to pur-
chase dangerous drugs from the suspected
person. The law, however, does not
permit a law enforcement officer to
originate or implant the criminal design
of sale of dangerous drugs in a defen-
dant's mind.
If, then the jury should find beyond a
reasonable doubt from the evidence in
the case that, before anything at all
occurred respecting the alleged offense
involved in this case, the defendant was
ready and willing to commit the crime of
sale of dangerous drugs, then the jury
should find that the defendant is not a
victim of entrapment.
On the other hand, if the evidence in
the case should leave you with a reason-
able doubt that the defendant had the
previous intent or purpose to commit the
offense of the sale of dangerous drugs
except for inducement or persuasion of
some law enforcement officer or his
agent, then it is your duty to find him
not guilty. The burden is on the State
or [sic] prove beyond reasonable doubt
that the defendant was not entrapped.
Walker claims that Instruction 13 conflicts with
§ 45-2-213, MCA, which states:
A person is not guilty of an offense if
his conduct is incited or induced by a
public servant or his agent for the
purpose of obtaining evidence for the
prosecution of such person. However,
this section is inapplicable if a public
servant or his agent merely affords to
such person the opportunity or facility
for committing an offense in furtherance
of criminal purpose which such person
has originated.
Walker argues that § 45-2-213, MCA, focuses on a defen-
dant's conduct which was "incited or induced by a public
servant," in contrast to Instruction 13, which focused on a
'
defend.ant s "readiness and willingness" to sell dangerous
drugs. Walker, therefore, contends that Instruction 13 is an
incorrect statement of the law and that it should have fo-
cused more forcefully on the police agent's "inducement."
We find that Instruction 13 fairly reflects the lan-
guage of S 45-5-213, MCA. In interpreting S 45-2-213, MCA,
we have set forth the following elements of entrapment:
(1) criminal intent or design originating in the mind
of the police or their agent;
(2) absence of criminal intent or design originating in
the mind of the accused; and
(3) luring or inducing the accused into committing a
crime he had no intention of committing.
State v. Kamrud (1980), 188 Mont. 100, 105, 611 P.2d
188, 191.
Section 45-2-213, MCA, provides a defendant with a
framework upon which to build an entrapment defense. Howev-
er, Walker failed to show any specific instance of entrapment
under any of the Kamrud elements. His defense consisted of
general speculation on possible entrapment. Walker objects
to the language of Instruction 13, which embodies the bal-
anced defense principles of § 45-2-213, MCA. After mediating
several compromises in the original language, the District
Court did not allow Walker to further distort the language of
Instruction 13 to conform to his entrapment defense.
Walker also failed to offer a written alternative to
Instruction 13, as required by S 46-16-401(4) (a), MCA: "When
the evidence is concluded., if either party desires special
instructions to be given to the jury, such instructions shall
be reduced to writing, numbered, signed by the party or his
attorney, and delivered to the court." We have held this
statutory language to be mandatory. State v. Radi (1975),
168 Mont. 320, 325, 542 P.2d 1206, 1209-1210.
We hold that Instruction 13 is a correct statement of
law. The police merely afforded Walker an opportunity to
commit an offense. The criminal intent originated in Walker.
We find that the instruction was proper, and Walker's objec-
tion has no merit.
We affirm the District Court on all issues.
We concur:
Justices
Mr. Justice John C. Sheehy and Mr. Justice William E. Hunt, Sr.:
We concur in the result. We have doubt about the entrapment
instruction.