NO. 87-509
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
THE STATE OF MONTANA,
Plaintiff and Appellant,
-vs-
SCOTT A. WOMBOLT,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Honorable Mike Greely, Attorney General, Helena, Montana
Harold F. Hanser, County Attorney, Billings, Montana
Charles A. Bradley, Deputy County Attorney
For Respondent:
Arthur J. Thompson; Thompson and Sessions,
Billings, Montana
Submitted on Briefs: March 24, 1988
Decided: April 21, 1988
Mr. Justice L. C. Gulbrandson delivered the Opi-nion of the
Court.
The State appeals from an order of the District Court
of the Thirteenth Judicial District, County of Yellowstone,
dismissing an information charging defendant/respondent Scott
A. Wombolt (Wombolt) with arson. The dismissal was based on
failure to provide a speedy trial. We affirm.
The State raises but one issue:
Did the District Court abuse its discretion in granting
Wombolt's motion to dj-smiss for failure to provide a speedy
trial?
Wornbolt was arrested and jailed on March 27, 1987. He
was charged with the crime of felony arson. A preliminary
hearing was scheduled for April 16, 1987 when Wombolt
appeared in justice court on March 31, 1987. At the March 31
hearing, and before any examination began, Wombolt invoked
his statutory right to close the proceedings to the press and
public pursuant to 5 46-10-201, MCA. Accordingly, the court
closed the preliminary examination to the public and press.
The Billings Gazette (Gazette) commenced a series of
legal proceedings, ultimately culminating in an August 5,
1987, Federal District Court ruling that the closure statute
was unconstitutional. Therefore, the preliminary examination
did not occur until August 25, 1987. The State filed an
information in District Court on September 1, 1987 and trial
was set for October 27, 1987. Defendant asserted his right to
a speedy trial at an October 2, 1987 omnibus hearing.
Wombolt formally moved the court for dismissal of the action
on October 5, 1987 and argued that he had previously made
five unsuccessful attempts to have his bail reduced. The
court entered it order of dismissal on October 23, 1987. As
the District Court noted, Wombolt would have commenced his
214th day of incarceration on October 27, 1987, the scheduled
date of trial.
The law in this area is clear. Our most recent
statement was in State v. Waters (Mont. 1987), 743 P.2d 617,
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, S 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 stone 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.2d 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 (1977), 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 be
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.
In speedy trial analysis, the length of delay acts as a
"triggering" mechanism and the other above enunciated factors
need not be examined unless presumptive prejudicial delay is
present. State v. Harvey (1979), 184 Mont. 423, 433, 603
P.2d 661, 667. The State argued only 56 days expired between
the filing of the information and the trial date. The
District Court properly dispelled this claim stating the
right to speedy trial attaches at arrest or the filing of the
complaint in justice court. State v. Larson (Mont. 1981),
623 P.2d 954, 957, 38 St.Rep. 213, 215. The delay in this
case would have been 214 days. It is indisputable that this
length 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).
This delay gives rise to a rebuttable presumption of
prejudice. The State therefore, in order to rebut this
presumption, has an affirmative duty to come forward with
evidence showing Wombolt was not prejudiced by the delay and
show there was a reasonable excuse. Waters, 743 P.2d at 619.
The State's burden was not met in this case to rebut
the presumption of prejudice. This length, 214 days, leads
us to the second Barker factor, reason for delay. The State
claimed the delay was "institutional" and therefore not
chargeable to the State. "Although institutional delay
weighs less heavily against the State, it is the policy of
this Court to gradually reduce our tolerance for this excuse
... " Chavez, supra, 691 P.2d at 1370. Nevertheless,
institutional delay still must be considered by this Court:
"[dlelay inherent in the system . . . chargeable to the
State." Ackley, supra, 201 Mont. at 256, 653 P.2d at
853-854; citing, State v. Harvey (1979), 184 Mont. 423, 434,
603 P.2d 661, 667. As the District Court appropriately
pointed out, the institutional delay in this case was caused
by the "Gazette suit, and the State's inaction in the face of
that suit."
Here, the State had the alternative to proceed with the
filing of the information in the District Court. State ex
rel. Brackman v. District Court (1977), 172 Mont. 24, 28, 560
P.2d 523, 526. Although the State properly asserts that it
has the power to choose the method of commencement of
prosecution, the District Court appropriately pointed out
"concomitant with this discretion, however, is the duty to
bring the accused to trial." Citing, Larson, supra, 623 P.2d
954. Here, the State held Wombolt in custody without
proceeding with the motion for leave to file an information.
Therefore, although institutional, the delay was still
chargeable to the State. The State has the responsibility to
bring the accused to trial, it is not the duty of the accused
to bring himself to trial. This responsibility was clearly
not met. Larson, supra, 623 P.2d at 958.
The third factor involved in this analysis is Wombolt's
assertion of the right. Wombolt properly asserted this right
prior to trial at the omnibus hearing, October 2, 1987. This
factor is met when the denial of speedy trial is put before
the court prior to the commencement of trial. Waters, supra,
743 P.2d at 620; State v. Steward (1975), 168 Mont. 385, 390,
The final factor involved requires an analysis of
whether the defendant was prejudiced.
"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, supra, 743 P.2d at 620. Here, a review of the
District Court's order of October 23, 1987, disposes of any
argument the State can present in regard to the prejudice
Wombolt suffered:
The State does not address the first
interest, the prevention of oppressive
incarceration. The Supreme Court
discussed the prejudicial effect of
incarceration in Barker:
"We have discussed previously the
societal disadvantages of lengthy
pretrial incarceration, hut obviously the
disadvantages for the accused who cannot
obtain his release are even more serious.
The time spent in jail awaiting trial has
a detrimental impact on the individual.
It often means the loss of a job; it
disrupts family life; and it enforces
idleness. Most jails offer little or no
recreational or rehabilitative programs.
The time spent in jail is simply dead
time. Moreover, if a defendant is locked
up, he is hindered in his ability to
gather evidence, contact witnesses, or
otherwise prepare his defense. Imposing
those consequences on anyone who has not
yet been convicted is serious * * * "
92 S.Ct. at 2193. The State has failed
to demonstrate that Defendant's
incarceration was not oppressive.
The State does not address the second
interest, the minimization of anxiety.
In State v. Britton, -- Mont. -- I 689
P.2d 1256, 41 St.Rep. 2018 (1984), the
Montana Supreme Court held that a
criminal Defendant's anxiety over a
"potential loss of liberty because of a
criminal conviction" was significant. 41
St.Rep. at 2022. There, Defendant was
released on his own recognizance after
his first appearance in Justice Court.
The criminal charges against him were
pending for over a year before he was
brought to trial. - It cannot be
Id.
conscientiously argued that the degree of
anxiety and concern experienced by
Britton regarding his potential loss of
liberty in any way outweighs Defendant
Wombolt's anxiety and concern caused by
his actual loss of liberty.
The Court must next consider whether the
accused defense has been impaired by the
delay. As noted above, oppressive
incarceration hinders the preparation of
a defense. Barker, supra. Further,
witnesses may die, suffer memory lapses,
and physical evidence may vanish. State
v. Larson, 623 P.2d at 959. The
Defendant is not required to
affirmatively prove prejudice; the State
must come forward with some evidence that
outweighs the presumption of prejudice.
Chavez, 41 St.Rep. at 2223. Here, the
State asserts only that the witnesses
"are still alive, present and able to
testify". Such a statement, without
more, is insufficient to carry the
State's burden. Thus, the State fails to
show that Defendant was not prejudiced by
the delay.
The State argues on this appeal that Wombolt admitted
he could not prove prejudice and therefore the State should
be entitled to the advantage of this admission as part of its
burden to overcome prejudice. However, from the above
recitation of the District Court's ruling, it is clear that
the State alleges only that witnesses "are still alive,
present and able to testify." This argument pales in light
of Wombolt's incarceration of over 200 days.
Upon consideration of the Barker factors and the
circumstances of this case, we have no alternative than to
determine that there was excessive delay on the part of the
prosecution with no justification. Wombolt timely asserted
his right to a speedy trial.
The judgment of the District Court ispfirmed.
We concur:
2
P*$f Justice