IN THE SITPREME COURT OF THE STATE OF MONTANA
1989
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JERRY R. WIMAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorah1.e Roy C. Rodeghiero, ,Judqe presidi-ng.
COUNSEL OF RECORD:
For Appellant:
Larry Jent, Rozeman, Montana
For Respondent :
Hon. Marc Racicot, Attorney General, Helena, Montana
Robert F.W. Smith, Asst. Atty. General, Helena
A. Michael Salvagni, County Attorney, Bozeman, Montana
+Marty Lambert, Deputy County Attorney, Roleman
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. . Submitted on Briefs: Dec. 2, 1988
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Decided: February 17, 1989
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Filed: ,
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Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Jerry Wiman, defendant, appeals from a judgment
convicting him of felony sexual assault. Wiman was found
guilty in a jury trial before the Eiahteenth Judicial
District Court, Gallatin County. We affirm.
Wiman raises the following two issues on appeal:
(1) whether Wiman was deprived of the right to a
speedy trial; and,
(2) whether the prosecutor improperly commented on
Wiman's failure to testify.
On December 10, 1986, an information was filed charginq
the appellant with one count of sexual assault, a felony, in
violation of § 45-5-502 (1), MCA. A jury trial began on Apri 1
28, 1987, and concluded on April 30, 1987. The jury was
unable to reach a verdict and the presiding judge declared a
mistrial. The Gallatin County Attorney then asked that the
case be reset for trial. Trial was reset for July 20, 1987,
and continued until September 1, 1987. The reason for this
continuance was the absence from the state of two key
witnesses for the prosecution.
On August 13, 1987, District Judge Thomas Olson recused
himself from presiding in this case and District Judge
Douglas Harkin assumed jurisdiction of the case.
On August 25, 1987, appellant filed a motion for
peremptory substitution of Judge Harkin.
On September 17, 1987, District Judge Roy Rodeghiero
assumed jurisdiction of the case.
On November 17, 1987, a hearing was held on defendant's
motion to dismiss for denial of speedy trial. Evidence was
presented to the court and attorneys argued the motion. The
court, ruling from the bench, denied Wiman's motion to
dismiss.
On November 17, 1987, the second jury trial began. On
November 19, 1987, the jury found Wiman guilty of felony
sexual assault. On January 12, 1988, the court sentenced
Wiman to ten years in the Montana State Prison. The court.
then entered an order setting Wiman free on bail pendinq this
appeal.
I
The first issue raised on appeal is whether the
appellant was deprived of the right to a speedy trial.
Any person accused of a crime is guaranteed the
fundamental right to a speedy trial by the Sixth Amendment to
the United States Constitution, which is made applicable to
the states by the Fourteenth Amendment. State v. Chavez
(1984), 213 Mont. 434, 691 P.2d 1365. "The Amendment would
appear to guarantee to a criminal defendant that the
Government will move with the dispatch that is appropriate to
assure him an early and proper disposition of the charges
against him. [ T l h e essential ingredient is orderly
expedition and not mere speed.'" United States v. Marion
(1971), 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468,
474 (citing Smith v. IJnited States (1959), 360 U.S. 1, 10).
In speedy trial determinations, a factor to be
considered is the length of the delay in getting to trial..
State v. Armstrong (1980), 189 Mont. 407, 616 P.2d 341; State
v. Harvey (1979), 184 Mont. 423, 603 P.2d 661. However,
there is no need to examine other factors unless there has
been some delay which is deemed presumptively prejudicial.
The other factors we refer to are the factors enunciated in
Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182,
2192, 33 L.Ed.2d I O I . , 117. In analyzing the validity of a
claim of lack of speedy trial, the Court investigates and
balances the four factors set out in Barker:
Length of delay, the reason for the delay, the
defendant's assertion of his right [to a speedy
trial], and prejudice to the defendant.
Length of delay is of primary importance. Unless it is
sufficiently long to he deemed presumptively prejudicial to
the defendant, there is no need to consider the other
factors. What length will be deemed presumptively
prejudicial depends on the facts in each individual case.
State v. Robbins (1985), 708 P.2d 227, 42 St.Rep. 1440; State
v. Worden (1980), 188 Mont. 94, 611 P.2d 185. There is no
need to determine other factors unless there has been some
delay which is deemed presumptively prejudicial. Armstrong,
616 p.2d at 351.
When appellant's second trial began on November 17,
1987, 201 days had passed since the conclusion of the fi.rst
trial. The chronology is as follows:
Event Date
Information filed 12/10/86
First Jury Trial 4/28/81-4/30/87
Court resets trial for 7/20/87 5/28/87
State moves for Continuance, and
Court resets trial for 9/1/87 7/13/87
Judge Olson excuses himself from
presiding in this case, Judge
Harkin assumes jurisdiction 8/13/87
Defendant moves for substitution
of Judge Harkin 8/25/87
Judge Rodeghiero assumes
jurisdiction & sets trial for 11/17/87 9/17/87
Defendant's jury trial begins 11/17/87
Defendant's jury trial concludes 11/19/87
The State of Montana asserts that it is responsible for
1.23 days of the delay, the time period between May 1, 1987
and September 1, 1987 and that the appellant is responsible
for 78 days of the delay for the time period of September 1,
1987, when the trial was necessarily vacated by Wiman's
substitution of Judge Harkin, until November 17, 1987, the
date the new district judge set for trial.
Wiman asserts that the delay is 342 days by computing
the delay from the date of the arraignment December 16, 1986,
to the second trial date set for November 17, 1987. We do
not agree. In State v. Sanders (1973), 163 Mont. 209, 214,
516 P.2d 372, 375, this Court adopted the rule from the
American Bar Association Project on Minimum Standards for
Criminal Justice:
"The time for trial should commence running .
. .
(c) if the defendant is to be tried again
following a mistrial, . .. from the date of the
mistrial, order granting a new trial, or remand."
Therefore, in calculating the delay in this appeal we begin
by counting the day after the first trial.
We agree with the State that the length of the delay
caused by the State is not sufficiently long to trigger
further inquiry. Therefore, this Court will not consider the
other factors set out in Barker.
The appellant's second trial began 201 days after the
conclusion of his first two-day trial on April 30, 1987, but
the date was reset for September 1, 1987, when the Gallatin
County Attorney moved for a continuance because two key state
witnesses would be out of the state at the time set for
trial-. These witnesses were to give vital testimony
attesting to the credibility of the nine-year-old assault
victim in this case. Since defendant's counsel had put the
victim's credibility in question, the date became
impracticable for the State's case without these witnesses.
On August 13, 1987, two weeks before the second trial
was to begin, Judge Olson excused himself from presiding in
this case and Judge Harkin immediately assumed jurisdiction
for the trial that was to begin on September 1, 1987.
However, a further delay resulted when on August 25, 1987,
six days before the trial date, the defendant moved for a
substitution of Judge Harkin. On August 31, 1987, Judqe
Olson siqned the order calling in Honorable Roy C. Rodeghiero
and sent out an invitation to him to assume jurisdiction. On
September 17, 1987, Judge Rodeghiero signed and mailed the
assumption of jurisdiction which arrived at the Gallatin
County Clerk and Recorder's Office on September 18, 1987.
District Judge Rodeghiero put the stalled legal machinery
back into motion by setting a trial for November 17, 1987.
This gave the district judge two months to acquaint himself
with the record and issues of the Wiman case, and give the
parties time to reschedule briefs and witnesses. Therefore,
the two months between the assumption of jurisdiction by
Judge Rodeghiero and the date set for the new trial is
reasonable under the circumstances.
The defendant is responsible for the time between
August 25, 1987, when he moved for a substitution of Judqe
Harkin, and November 17, 1987, when the new trial, set by
Judge Rodeghiero began. The trial date of September 1, 1987,
would have been adhered to but for the substitution of Judge
Harkin at defendant's request. Defendant's motions caused 8 3
days of a 201 day delay. The State caused 119 days of delay
because of unavailability of key witnesses.
We have focused our decision on this 1 1 9 days. This
amount of time is not long enough to be deemed presumptively
prejudicial.
Wiman was free on bail during this time and the length
of his delay was much shorter than in Armstrong, where the
delay was three and one-half years from the time of
Armstrong's original conviction to his second conviction. In
addition, Armstrong was incarcerated during this delay.
Wiman was not.
The length of delay is the "trigger" factor to the
speedy trial inquiry. There is no need to examine other
factors unless some delay presumptively prejudicial has
occurred. Chavez, 6 9 1 P.2d at 1 3 6 9 ; Harvey, 6 0 3 P.2d at
667. The delay here, 1 1 9 days, is not enough to trigger the
speedy trial inquiry. Compare, Armstrong, (three and
one-half year delay, 1 0 8 days attributable to the state),
with Fitzpatrick v. Crist ( 1 9 7 4 ) , 1 6 5 Mont. 382, 5 2 8 P . 2 d
1 3 2 2 (seven-month delay).
The speedy trial right is primarily designed to protect
the accused from oppressive tactics of the prosecution.
Barker, 4 0 7 U.S. at 5 2 9 . The 119-day delay in this cause is
not sufficiently long to be deemed presumptively prejudicial,
nor was the delay caused hy oppressive tactics by the State.
There is no showing by defendant that the State intentionally
delayed to gain some tactical advantage over appellants or to
harass them. Vacation of this order would be required if it
were shown that, "the pre-indictment delay in this case
caused substantial prejudice to appell[antls! rights to a
fair trial and that the delay was an intentional device to
gain tactical advantage over the accused." Marion, 4 0 4 U.S.
at 3 2 4 . We, therefore, hold that the appel1.ant1sright to a
speedy trial was not violated.
The second issue before this Court is whether the
prosecutor improperly commented in jury argument on the
defendant's failure to testify.
Appellant contends that the Gallatin County Attorney's
summation contained several comments on the appellant's
failure to testify and requires a new trial. It is a settled.
rule that the prosecutor may not direct attention to the
failure of a defendant charged with a criminal offense to
testify. State v. Gladue (19841, 208 Mont. 174, 677 P.2d
1028; United States v. Republic. Steel Corp. (6th Cir. 19741,
491 F.2d 315; Knowles v. United States (10th Cir. 19551, 224
F.2d 168. However, in Republic Steel, the Court explains
that Knowles held:
"It is concedely improper and reversible error to
comment on the failure of a defendant to testify in
his own behalf, and the test is whether the
language used was manifestly intended or was of
such character that the jury would naturally and
necessarily take it to be a comment on the failure
of the accused to testify. 224 F.2d 168, l7O."
Republic Steel also directs:
"That Government counsel may direct the jury's
attention to the fact that the evidence against the
defendant is uncontradicted, especially when the
facts in issue could be controverted by persons
other than the defendant."
491 F.2d at 315. (citing Doty v. United States (10th Cir.
1968), 416 F.2d 887, vacated on other grounds sub nom., Epps
v. United States (1971), 401 U.S. 1006, 91 S.Ct. 124?, 28
In the course of argument to the jury, the deputy
county attorney made the following argument:
. . . Detective Lessley asks, "How does she learn
all these things?" And here is what the defendant
told Detective Lessley on October 3: "She learned
them from the neighbor's kids, one of whom is five
and one of whom is eight and the mother, their
mother, who lives next door, she learned them from
seven-year-olds at school; she learned them from
Playboy magazine; she learned from watching R-rated
movies; she learned them from watching X-rated
movies, and she learned them from her own brother.
Then he says--quoted by Detective Lessley--'Most of
what I say is true' not all of it, 'Most of what I
say is true, but that's one thing I wouldn't. lie
about. '
Did defendant say he thought she was coached,
thought that maybe somebody's telling her to say
these things? (Whereon Mr. Lambert indicates in
the negative.)
(Defense counsel) Objection, Your Honor, comment
on non-testimony by Defendant.
THE COURT: Alright, Mr. Lambert, stay away from
that area.
MR. LAMBERT: Yes, Your Honor.
In the defendant's brief on appeal, defendant's counsel
points to several other instances in the jury argument by the
prosecuting attorney, where the statement was made that the
evidence was uncontradicted. It is difficult to tell from
the record whether the possibility of contradiction would
come from other witnesses, or from the defendant himself. At
any rate, when those arguments were being made, no objection
was made by defense counsel and the District Court was not
given an opportunity, if the necessity existed to admonish
the jury to ignore the argument, or to give a curative
instruction nor was any motion made for mistrial.
There is no showing by appellant here that there is a
reasonable possibility that the comments complained of might
have contributed to the conviction. There was no objection
made at trial, no request for an in-chambers objection to the
langua-qe used in prosecutor's summation and no motion for a
mistrial. Section 46-20-104, MCA, provides that failure to
make a timely objection during trial constitutes a waiver of
the objection.
It is significant that defendant made only one
objection during the prosecutor's summation. That objectio~
was about prosecutor ' s reference to the defendant's
accusation during the second trial that the victim had been
coached. The prosecutor reminded the jury that the defendant
did not say the victim had been coached when defendant was
initially interrogated by Detective Lessley of the Bozeman
Police Department. We believe that this was not a comment on
defendant's refusal to take the stand.
Although use against a criminal defendant of silence
maintained after receipt of governmental assurances is barred
by Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 4 9
L.Ed.2d 91 this directive does not apply to language that
merely inquires into prior inconsistent statements. Such
comment makes no unfair use of silence, because a defendant
who voluntarily speaks after receiving Miranda warnings has
not been induced to remain silent. Anderson v. Charles
(1980), 447 U.S. 404, 408, 100 S.Ct. 2180, 2188, 65 L.Ed.2d
222, 226. As to the subject matter of his statements the
defendant has not remained silent at all. FJiman was given
the Miranda warnings and he did waive his rights and chose
not to remain silent when interrogated by Detective Lessley.
What he said may be and was used against him in the
prosecutor's summation. Prosecutor's objected to remark does
not refer to Wiman's exercise of his right to remain silent.
Rather, it asks appellant's counsel, who impeached the younq
victim with her testimony in the first trial, and alleged
that she was being coached by comparing her testimony with
her inconsistent statements in the second trial, why the
appellant d i d n Y tell Detective Lessley that in the initial
interrogation the girl was coached as his counsel was now
asserting. Prosecutor's summation remarks were not designed
to draw attention to appellant's silence, but to remind the
jury that appellant voluntarily spoke to Detective Lessley
after receiving Miranda warnings and that his counsel's
present assertion about coaching was inconsistent with
defendant's prior statements.
After reading the entire closing statement, we find
only this one objection. We find no objection to any other
comments made by the prosecution. Therefore, we find no
error in regard to the prosecutor's comments in light of the
fact that the trial judge did all that he was asked to do
when he sustained objection and warned the prosecutor to
"stay away from that area." Read in context, it is clear
that those comments were not intended to comment on
defendant's failure to testify in his own behalf.
If defendant's counsel believed that these comments
were directed at the defendant's failure to testify it was
incumbent upon him to make an objection to the comments. As
a general rule, this Court will not entertain issues not.
raised at trial. State v. Wilkins (Mont. 19871, 746 P.2d
588, 44 St.Rep. 1794; State v. Goddard (Mont. 1 9 8 7 ) ) 734 P.2d
680, 44 St.Rep. 551.
Finding no error, we conclude that the conviction of
Jerry Wiman should he and is affirmed.
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Justice
ye Concur: / ,I