No. 87-017
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1988
STATE O MONTANA,
F
P l a i n t i f f and R e s p o n d e n t ,
-vs-
TIMOTHY L . MORRIS,
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e Fourth J u d i c i a l d i s t r i c t ,
I n and f o r t h e County o f M i s s o u l a ,
The H o n o r a b l e Douglas H a r k i n , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
M i c h a e l S o l ; S o l & Wolfe, M i s s o u l a , Montana
W i l l i a m D e e M o r r i s , B u t t e , Montana
F o r Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Kimberly A. K r a d o l f e r , A s s t . A t t y . G e n e r a l , H e l e n a
R o b e r t Deschamps, 111, County A t t o r n e y , M i s s o u l a ,
Montana
S u b m i t t e d on B r i e f s : 0c.t. 16, 1987
Decided: F e b r u a r y 11, 1988
Filed: FEB 1 1 1988
. ,F " ' -
- , d ~- ,
Clerk
Mr. Justice Fred J. Weber delivered the opinion of the Court.
Mr. Morris appeals his conviction in the Fourth Judicial
District, Missoula County, for possession of a dangerous drug
in violation of § 45-9-102, MCA.
He presents four issues for review.
1. Did the District Court err in denying defendant's
motion to dismiss based upon lack of speedy trial?
2. Did the District Court err in denying defendant's
suppression of evidence motions?
3. Did the District Court err when it admitted evidence
over defendant's chain of possession objection?
4. Did the District Court err in denying defendant's
motion for a new trial?
On March 13, 1985, around 11:30 p.m. in Missoula, Mr.
Morris was driving a recently purchased used car. His heater
was not working properly so he decided to pull into a shop-
ping center parking lot to fix the heater. He parked under-
neath a street light, positioned himself under the dashboard,
and using a knife and some pliers, began working on his car.
City police officer Jim Neumeyer was patrolling the area
that night when he saw the Morris vehicle parked with lights
on and engine running. Officer Neumeyer testified at trial
that he could see no one in the car so he decided to investi-
gate. The officer expressed his concern that perhaps someone
had pulled off the street and had fallen asleep or that a
crime might be taking place. As he approached the car, he
saw an empty gun holster in the back seat and some knives on
the dashboard. He then saw Mr. Morris underneath the dash-
board. As a safety measure, Officer Neumeyer pointed his
flashlight directly into the eyes of Mr. Morris to momentar-
ily blind him. Mr. Morris was in an awkward position, and as
he rolled out of the car, the officer confronted him with the
flashlight and a drawn revolver.
Mr. Morris testified that the officer never identified
himself but only shouted, "You'll be dead before you hit the
ground. Don't try it. 1'11 blow your brains out." Officer
Neumeyer testified that Mr. Morris had a knife in his hand as
he was coming out of the car. For his own safety he drew his
revolver and ordered Mr. Morris out of the car. The officer
agrees that Mr. Morris immediately assumed a spread-eagle
position and volunteered that he had a gun under his jacket.
The officer says that he then took possession of the gun,
handcuffed Mr. Morris, and performed a brief pat-down search
for any other weapons. The officer then arrested Mr. Morris
for carrying a concealed weapon.
During the booking procedure at the jail, the jail
officer found a vial of white powder inside Mr. Morris' pants
pocket. The defendant was charged later that day in justice
court with one count of criminal possession of a dangerous
drug (felony) and one count of carrying a concealed weapon
(misdemeanor).
On March 25, 1985, an amended complaint was filed in
justice court adding a second count of criminal possession of
a dangerous drug, relating to a separate arrest and search of
defendant. This count was dismissed during the trial and is
not directly at issue in this appeal. The justice court
docket indicates that Mr. Morris requested a preliminary
examination on all counts although the court never conducted
one.
On August 16, 1985, the State requested leave to file an
information in district court. The information was filed
that same day. Arraignment was held on September 9, and the
omnibus hearing was on November 7. At this time Mr. Morris
moved to dismiss for delay in arraignment which motion was
denied. The matter eventually went to a jury on June 10,
1986. Mr. Morris was found guilty of one count of possession
of a dangerous drug.
I
Did the District Court err in denying defendant's motion
to dismiss based upon lack of speedy trial?
The right to speedy trial attaches at the moment a
defendant is accused, and that may occur at the time of
arrest, at the time of the filing of a complaint or informa-
tion, or at the time of indictment. State v. Larson (Mont.
1981), 623 P.2d 954, 957-58, 38 St.Rep. 213, 215. Mr. Morris
stood accused and his right to speedy trial attached the day
he was arrested. We must balance four factors together with
any other relevant circumstances to determine whether Mr.
Morris' constitutional right to a speedy trial has been
violated: length of delay, reason for delay, the defendant's
assertion of the right, and prejudice to the defendant.
Larson, 623 P.2d at 957.
Mr. Morris was arrested the first time on March 14,
1985, and was tried 453 days later on June 10, 1986. This
certainly is enough delay to raise a presumption of prejudice
to defendant. State v. Steward (19751, 168 Mont. 385, 543
P.2d 178.
In considering reason for delay, we will deduct the
delay attributable to defendant's own actions from the total
delay. State v. Grant (Mont. 1987), 738 P.2d 106, 109, 44
St.Rep. 994, 997. The State did not request leave to file an
information in district court until August 16, 1985. The
arraignment was 24 days after the information was filed, and
the omnibus hearing was held 59 days after arraignment. Thus
far, 237 days had elapsed since initial arrest. Mr. Morris
made several waivers of speedy trial for qualified periods of
time. He also made a motion to dismiss due to delay in
arraignment and additional consolidated motions. Trial was
set for January 1986.
On January 13, the defendant requested a continuance, a
transcript, and independent testing of the substance in the
vials. The court granted these motions. From the record we
understand that Mr. Morris waived speedy trial for a period
of time perhaps extending beyond March 1986. He did not
initiate or promote transfer of the vials for testing, and
they were not tested until late May, several weeks before
trial. At a May 5 hearing on the State's motion to set a
trial date, the court offered to try the case in May. De-
fense counsel could not calendar for trial in May, so trial
was set for June.
In total, the defendant was responsible for 253 days of
delay. This leaves 200 days remaining. The burden of ex-
plaining the reason for this delay rests with the State, and
the question is whether prosecution was pursued with reason-
able diligence. Grant, 738 P.2d at 109. We note a marked
lack of diligent prosecution in the present case. The State
failed to request leave to file an information until 154 days
after the initial arrest. Prior to this time the defendant
was afforded no hearing to determine probable cause for the
charges against him, and the State offers no sufficient
excuse. Another 46 days is attributable to institutional
delays. So, we conclude that 154 days of delay directly
reflect the prosecution's lack of reasonable diligence.
We now look to the defendant's assertion of his right to
speedy trial. On two occasions prior to trial, Mr. Morris
moved to dismiss all counts because of lack of speedy trial,
once at the omnibus hearing and once on the day before trial.
Mr. Morris, somewhat inconsistently with his speedy trial
argument, waived speedy trial three times during the process.
One month before trial, his attorney indicated a complete
waiver. We note however that these waivers were given par-
tially for convenience of the court and its trial calendar,
and partially to accommodate the defense. We conclude that
Mr. Morris properly asserted his right to speedy trial.
Lastly we consider whether the delay prejudiced Mr.
Morris. The burden of showing absence of prejudice rests
with the State. Grant, 738 P.2d at 109. The right to speedy
trial serves three interests of the defendant: 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. State v. Waters (Mont. 19871,
743 P.2d 617, 620, 44 St.Rep. 1705, 1708. Mr. Morris was out
on bond for the entire period after the second arrest so the
first interest was protected. Considering the second inter-
est, a certain amount of anxiety and concern is expected when
one stands accused, yet Mr. Morris has not alleged excessive
anxiety as a result of the delay. As for impairment of the
defense, the State argues that the delay did not impair the
defendant's case. Mr. Morris alleges that his defense suf-
fered due to the lack of memory of State's witnesses. He
presented no witnesses at trial nor does he complain that the
delay caused him to lose witnesses. Lack of memory in this
instance may weaken the State's case, and indeed the record
reflects that one count of possession of dangerous drugs was
dismissed, partially as a result of this very problem.
However, the lack of memory of State's witnesses does not of
itself constitute impairment of the defense. We conclude
that the State has sufficiently rebutted the presumption of
prejudice to Mr. Morris by the delay.
Of the four factors we have considered, "[nlo single
factor is determinative. Each facet of the analysis is
weighed in light of the surrounding facts and circumstances."
Waters, 743 P.2d at 619. Considering these four factors and
the record as a whole, we conclude that the delay did not.
result in even minimal prejudice. We hold, therefore, that
Mr. Morris' right to a speedy trial was not denied. While
the facts do not require dismissal, we are seriously dis-
turbed by the unexcused 154 day delay before the State
brought Mr. Morris before a court for determination of proba-
ble cause and the additional 24 days before arraignment. We
emphasize that this type of delay without cause is totally
inappropriate. Mr. Morris argues that this delay of itself
demands dismissal for lack of speedy trial. This argument
fails, however, since we have concluded that Mr. Morris
suffered no prejudice by the delay.
I1
Did the District Court err in denying defendant's sup-
pression of evidence motions?
Mr. Morris contends that the gun and the alleged drugs
are evidence which the court should have suppressed as the
result of an illegal arrest. He argues that the arrest was
illegal in that the officer lacked probable cause to arrest
and failed to comply with stop and frisk requirements.
This Court in State v. Gopher (Mont. 1981), 631 P.2d
293, 296, 38 St.Rep. 1078, 1082, explained the standard for a
valid stop and search:
[Wle now hold that when a trained police officer
has a particularized suspicion that the occupant of
a vehicle is or has been engaged in criminal activ-
ity, or witness thereto, a limited and reasonable
investigatory stop and search is justified.
Probable cause is not the standard for a valid stop. Rather,
the officer must have a particularized suspicion to justify a
stop. We further explained "particularized suspicion" in
Gopher, 631 P.2d at 296:
The State's burden has two elements: (1) objective
data from which an experienced officer can make
certain inferences; and (2) a resulting suspicion
that the occupant of a certain vehicle is or has
been engaged in wrongdoing or was a witness to
criminal activity.
In this case, an officer of nine years' experience
noticed a car parked in an otherwise empty parking lot,
sometime around midnight. The engine was running and the
headlights were on yet the officer could not see an occupant
in the car. The officer then decided he should investigate
to determine whether someone was in need of assistance,
whether the driver was intoxicated, unconscious, or asleep or
whether an individual was in the process of an auto theft or
other crime. As he approached, the officer saw an empty gun
holster and several knives inside the car. He then saw a man
lying under the dashboard of the car. We conclude from these
facts that the officer reasonably suspected wrongdoing and
reasonably took precautionary measures for his own safety.
At that point, a reasonable investigatory search was
justified. Mr. Morris testified that he voluntarily assumed
a spread-eagle position and warned the officer that he had a
gun under his jacket. The officer had not searched or
frisked the defendant's person to this point, and the gun was
not the result of a search. The District Court, therefore
properly denied suppression of the gun as evidence.
Mr. Morris further complains that Officer Neumeyer did
not follow the stop and frisk procedures of S 46-5-402, MCA.
The procedures of that statute apply once the officer has
lawfully stopped a person and so apply specifically to the
"frisk" portion of the process. Once Mr. Morris volunteered
the fact that he possessed a gun under his jacket, the offi-
cer had probable cause for arrest for possession of a
concealed weapon. "A founded suspicion to stop for investi-
gative detention may ripen into probable cause to arrest
through the occurrence of facts or incidents after the stop."
State v. Sharp (Mont. 1 9 8 5 ) , 702 P.2d 959, 963, 42 St.Rep.
1009, 1013. The subsequent pat-down at the scene and the
search upon booking at the jail were proper and valid search-
es incident to arrest. Section 46-5-101 (I), MCA. We hold
that the District Court properly denied defendant's motion to
suppress the vial which was found during booking procedures.
Mr. Morris also argues that the officer's actions vio-
lated his constitutional right of privacy. The Montana
Constitution, Art. 11, 5 10, provides,
The right of individual privacy is essential to the
well-being of a free society and shall not be
infringed without the showing of a compelling state
interest.
Mr. Morris contends that the officer had no basis for believ-
ing that he was involved in criminal activity; therefore,
there was no compelling state reason for infringing his
privacy. However, we have already concluded that this offi-
cer had a particularized suspicion to investigate as required
by Gopher. When a trained and experienced officer is con-
fronted with circumstances which that officer believes demand
investigation, within the parameters of Gopher, that officer
has a duty to investigate.
Effective law enforcement requires some latitude to
be given to investigating officers to react to and
follow up on their observations. Drawing artifi-
cial distinctions or 'time lines' in situations
such as these does not comport with reality or
common sense.
Sharp, 702 P.2d at 963. We hold that the District Court
properly denied defendant's suppression motion which was
based on invasion of privacy.
I11
Did the District Court err when it admitted evidence
over defendant's chain of possession objection?
Mr. Morris argues that the chain of possession of Exhib-
it 2 is flawed in numerous respects. Exhibit 2 is the vial
found during the booking procedure. This exhibit was admit-
ted into evidence without defense objection. When the State
rested its case, the defense, as part of a motion to dismiss,
challenged the chain of possession of the exhibit. The
pertinent portions of the motion appear as follows:
I could not follow the chain of possession of
Exhibit 2. . .. I have had a very difficult time
following the chain of possession. . . . 1 don't
think we can trace the possession of that bottle of
amphetamine to Timothy Morris and that jailer, not
a deputy, but a jailer not covered by the presump-
tion of regularity of carrying official functions.
The jailer found and passed it on and I really
couldn't follow the chain of possession.
Other than his concern about the jailer, the defense only
generally objected to the exhibit. Such a general statement
as, "I could not follow the chain of possession . . .",does
not preserve a valid objection for appeal. Further, Mr.
Morris did not at trial or on appeal cite any authority for
his concern that the chain of possession is somehow tainted
by the fact that the jailer was a civilian rather than a
peace officer. We hold that the District Court properly
overruled Mr. Morris' objection to the chain of possession of
Exhibit 2.
Did the District Court err in denying defendant's motion
for a new trial?
Mr. Morris bases his motion for new trial on the ground
of newly discovered evidence. He indicates that some facts
became clear only during trial and after review of the trial
transcript. Section 46-16-702 (1), MCA, allows the court
discretion to grant defendant a new trial "if required in the
interest of justice." The Commission Comments to this stat-
ute provide in part:
[Section 46-16-7021 does not specify the grounds
which may be the basis for a motion for a new trial
. . . [It] encompasses the various grounds set
forth in the existing Montana law plus it permits
the granting of a motion for a new trial for any
other reason the court may find to be in the inter-
est of justice. ...
In State v. Greeno (1959), 135 Mont. 580, 586-87, 342 P.2d
1052, 1055, this Court enumerated certain rules which govern
a motion for new trial based on newly discovered evidence.
We need consider only the first one: the evidence must have
come to the knowledge of the applicant since trial. The
granting or denial of a motion for new trial rests within the
sound discretion of the trial court. State v. Gallagher
(1973), 162 Mont. 155, 164, 509 P.2d 852, 857.
Mr. Morris contends that the State was conducting an
undercover operation to locate a "drug factory". As part of
this operation, the State put pressure on him because he was
suspected to be involved or to have knowledge of the factory.
As part of this pressure, he contends, the vial which was
"found" on him during booking was actually "planted" on him
during arrest. All of the facts upon which Mr. Morris bases
his motion were available to him before and during trial. In
fact, he argued this conspiracy and undercover operation
theory at trial. The only - evidence that Mr. Morris
new
mentions is some exculpatory evidence which the State alleg-
edly has in its hands but refused or failed to turn over to
the defense. He cites § 26-1-602 ( 5 ) , MCA, which states it is
presumed that "[elvidence willfully suppressed would be
adverse if produced." He argues that the State failed to
present evidence to controvert this disputable presumption.
However, Mr. Morris produced no evidence indicating that the
State was willfully suppressing exculpatory evidence. His
allegations of newly discovered evidence simply are unfound-
ed. The District Court, in denying new trial, stated that it
believed the defense was aware of the "drug factory implica-
tions" prior to trial. We agree with the court. The defense
makes only allegations -- the same allegations made at trial.
We hold that the District Court exercised sound discretion
when it denied Mr. Morris' motion for new trial.
The judgment of the District Court is affirmed.
We Concu
Mr. Justice John C. Sheehy, specially concurring:
I agree with the results. On the speedy trial issue,
the time taken to bring this case to trial was inordinately
long. There was no speedy trial here, but I agree with the
result because the record demonstrates that Morris really did
not want a speedy trial. See Barker v. Wingo (1972), 407
U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.
Justice