No. 90-488
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
NICHOLAS LEE DANIELS,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Rosebud,
The Honorable Joe L. Hegel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. B. Wheatcroft, Miles City, Montana
For Respondent:
Hon. Marc Racicot, Attorney General; Joseph E.
Thaggard, Assistant, Helena, Montana
John Forsythe, County Attorney, Forsyth, Montana
Submitted on Briefs: March 28, 1991
MAY 2 3 1991
Decided: May 23, 1991
Filed:
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CLERK OF SUPREME COURT
STATE OF MONTANA
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Clerk
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Justice John Conway Harrison delivered the Opinion of the Court.
Nicholas Lee Daniels appeals from a conviction of burglary
after a jury trial in the District Court of the Sixteenth Judicial
District, in and for the County of Rosebud, State of Montana. We
affirm.
Two issues are presented on appeal:
1. Whether the defendant and appellant was denied his right
to a speedy trial.
2. Whether the District Court erred in admitting certain
evidence of other crimes.
At about 12:30 a.m. on the morning of June 18, 1989, Jerry's
Big Sky Service, a service station located in Forsyth, Montana, was
burglarized. Items taken from the service station included cash,
candy, sunglasses, a car battery, and cigarettes. During the same
night, a pickup truck was stolen from the nearby residence of one
Gerald Schaefer.
On June 19, 1989, appellant, then seventeen years old, and his
brother, Charles then sixteen, were apprehended in Hutchinson,
Minnesota with the Schaefer pickup. The two had escaped from the
Pine Hills School for Boys in Miles City, Montana, two days
earlier. Items identified as those taken in the Forsyth, Montana,
burglary were found in the truck.
The County Attorney of Rosebud County filed a petition in
Youth Court on June 27, 1989, charging the appellant with the theft
of Schaeferls truck and the burglary of Jerry's Big Sky Service.
On July 26, 1989, the State moved the Youth Court for leave to
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transfer the burglary charge to District Court. While the
appellant resisted the transfer of the burglary charge to the
District Court, he failed to file his proposed findings of fact and
conclusions of law with respect to that transfer hearing until
August 30, 1989. The District Court, on September 20, 1989,
granted the State's motion to transfer the burglary charge from
Youth Court to the District Court and filed findings of fact,
conclusions of law and an order accomplishing this transfer.
The procedural history which then transpired was as follows:
October 12, 1989: The appellant was arraigned in
district court.
October 20, 1989: The appellant gave notice of his
intent to rely on mental disease or
defect as a defense to the charged
crime.
October 23, 1989: The court held the required omnibus
hearing and set the trial for
December 13, 1989.
October 27, 1989: The State gave the appellant the
first Just notice of its intent to
introduce evidence of other crimes.
November 2, 1989: The appellant moved the court to
order a mental examination of him.
November 17, 1989: The State moved to consolidate the
appellant's trial with the trial of
his brother Charles, a motion the
court granted.
November 20, 1989: The court set the consolidated trial
for January 23, 1990.
November 30, 1989: The court ordered a mental
examination of the appellant.
January 6, 1990: The appellant wrote a letter to
Charles Daniels which suggested that
the defense attorney had a conflict
of interest in representing both
brothers in a consolidated trial.
The State intercepted the letter and
informed the court and the defense
attorney that a potential conflict
of interest existed.
January 16, 1990: The court held a hearing on the
potential conflict of interest and
noted that the impending trial date
would likely be continued.
January 19, 1990: The court appointed separate counsel
for Charles Daniels.
February 5, 1990: The court set the trial date for
March 6, 1990.
February 20, 1990: Charles Danielsn new attorney moved
to sever his trial from that of the
appellant.
March 2 , 1990: The State moved to continue the trial
date because of the unavailability
of a witness. The court continued
the trial until March 27, 1990.
March 22, 1990: Five days before the trial date, the
appellant filed a motion to dismiss
the instant case for lack of speedy
trial.
March 23, 1990: The court continued the trial date
in order to provide the State with
an opportunity to respond to the
appellant's motion to dismiss.
March 30, 1990: The appellant was released from jail
on bail.
April 26, 1990: The court denied the appellant s
motion to dismiss.
May 11, 1990: The State filed a second Just notice
of its intention to introduce at
trial evidence of other crimes,
including the theft of Schaeferns
pickup truck.
May 15, 1990: Trial commenced in the instant case.
Prior to trial, counsel for the appellant filed a motion in
limine to prevent the State from admitting evidence of the
appellant's record as a juvenile, including his theft of the pickup
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truck on the night the burglary occurred. This motion was denied
with respect to the theft of the pickup truck, which the court
perceived as part of the res sestae of the burglary. At trial,
three witnesses called by the State offered evidence and testified
concerning possible participation by the appellant in other crimes.
Gerald Schaefer testified that his truck had a value in excess of
$300. Rosebud County Sheriff's Deputy Charles Skillen corroborated
Mr. Schaeferls testimony that someone had stolen Schaeferts truck
at approximately the same time as the burglary at Jerry's Big Sky
Service. Deputy Skillen further testified that the authorities
found the pickup truck in Hutchinson, Minnesota. However, the
court did not allow Skillen to testify specifically that the
appellant and his brother Charles were in possession of the vehicle
at the time the police recovered it in Minnesota. All of this
testimony went to the chain of custody of the evidence taken from
the stolen pickup truck.
In addition to the above testimony, appellant's brother,
Charles, testified for the State and offered testimony regarding
the theft of the pickup truck and other crimes committed by the
appellant. Charles claimed that the appellant did not enter
Jerry's Big Sky Service, but acted as a lookout during the
burglary. Charles1 testimony also revealed that he and the
appellant had escaped from Pine Hills School for Boys. However,
this testimony was stricken and the jury was directed to disregard
the reference to the Pine Hills School for Boys.
Upon completion of the State's case-in-chief the appellant
moved for a mistrial because of the testimony of Deputy Skillen and
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Charles Daniels about possible other crimes committed by the
appellant. ÿ his motion was denied. The court ruled that the theft
of the truck constituted the same transaction as the burglary and
that the references to Pine Hills and other burglaries were
inadvertent on the part of the witnesses. The jury found the
appellant guilty of the offense charged. He now appeals.
Issue one, the speedy trial issue, is complicated principally
because there was a transfer from a juvenile to an adult court.
The District Court properly applied the law in determining whether
the appellant was denied a speedy trial, relying on this Court's
opinion in State v. Palmer (1986), 223 Mont. 25, 27, 723 P.2d 956,
958. In Palmer we noted:
Palmer first contends that he was denied his right
to a speedy trial. Any person accused of a crime is
guaranteed the right to a speedy trial pursuant to the
Sixth Amendment to the United States Constitution, which
is made applicable to the states by the Fourteenth
Amendment. Klopfer v. North Carolina (1967), 386 U.S.
213, 87 S.Ct. 988, 18 L.Ed.2d 1. The right to a speedy
trial is also guaranteed by Article 11, 5 24 of the 1972
Montana Constitution. The test to be applied to
determine whether an accused's right to a speedy trial
has been violated was first set forth in Barker v. Winqo
(1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.
This Court applied and stated the Barker test in State
ex rel. Briceno v. District Court (1977), 173 Mont. 516,
518, 568 P.2d 162, 163-64 as follows:
These cases involve a sensitive balancing of
four factors, in which the conduct of the
prosecution and the 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 to the defendant.
This Court has stated that the first of the Barker
factors, the length of delay, is the trigger to a speedy
trial inquiry. There is no need to examine the latter
three factors unless some delay deemed presumptively
prejudicial has occurred. State v. Harvey (1979), 184
Mont. 423, 603 P.2d 661.
The United States Supreme Court has determined that the speedy
trial clock does not start running until the defendant becomes an
llaccusednin a criminal proceeding. United States v. Marion
(1971), 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468, 474.
The appellant claims that the time used to figure the length
of the delay begins to run on the date he was initially arrested
and brought back to Montana from Minnesota, June 19, 1989, or at
least from the date the original petition for a hearing was filed
in the Youth Court, June 27, 1989. Relying on Marion, the State
claims that the appellant only became an llaccused"
for purposes of
the criminal speedy trial computation when the information was
filed in District Court.
We note here that while the State alleged that the appellant
did not become a I1criminal defendant" subject to the jurisdiction
of the District Court until September 26, 1989, he went through
the civil Youth Court proceedings for a period of time previous to
that date. The trial court started the clock when the appellant
became an "accused" in the civil Youth Court proceeding on June 27,
1989. The court noted, however, that if the youth resists the
motion to transfer to the adult court, that resistance ought to be
considered when determining the reasons for the delay and the
amount of the delay, if any, which can be charged to him. We agree
with the District Court.
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The court determined that the total amount of delay in this
case was 322 days. That is sufficient to trigger consideration of
the remaining Barker factors.
The period from June 27, 1989, to August 7, 1989, is
attributable to the State as institutional delay. The court found
that the period from August 7, 1989, to August 30, 1989, was
attributed to the appellant in that he resisted transfer to the
District Court but did not file his proposed findings with respect
to such hearing until August 30, 1989.
The period from August 30, 1989, to December 13, 1989, was
charged to the State. There is no indication of intentional delay
on the State's part. The delay is weighed accordingly.
The court found that the period from December 13, 1989, to
January 23, 1990, was chargeable to the appellant in that the
appellant filed a motion for mental examination on November 2,
1989, but failed to provide the court with either a brief or a
proposed order as required by the court until November 30, 1989.
By that date, it was apparent to the court and to the State that
no written report of the mental examination could be had prior to
the December 13, 1989, trial date. The court continued the matter
to the next available court date, January 23, 1990, on the Staters
motion. The court stated this motion should have been made by
defense counsel but the State had acted in the absence of
affirmative action by defense counsel. The defense did not object
and acquiesced in the continuance and the 41 days were therefore
attributed to the appellant.
On November 17, 1989, the court granted the State's motion to
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consolidate this case with the charges against appellant's brother
Charles Daniels. Defense counsel, who also represented the
brother, did not object to the consolidation or raise the issue of
a conflict of interest. Thereafter, law enforcement officers
intercepted a letter from the appellant to his brother Charles
Daniels, in which appellant indicated his position that Charles had
committed the burglary while appellant was incapacitated by
llalcoholicbeverages." The letter indicated that the appellant
knew the police would intercept it. The District Court stated
that:
The court can only conclude that either the defendant or
his brother told defense counsel this story early on, or
that they hid this fact from him. Defense counsel either
knew or should have known, that the defendant's defense
was to include implicating his brother in the companion
case. This is a clear conflict of interest situation,
which, when it became known to the court, was promptly
rectified by appointment of other counsel for the
defendant's brother. Counsel for the defendant's brother
promptly moved to sever the trials and, after a hearing,
the court granted the motion to sever the trials. If the
defendant's proposition (that he was asleep while his
brother did the crime) were true, this defendant's
counsel should have been the one to file the motion to
sever. Indeed, he should have fought the consolidation
of the two cases, because the defense counsel was relying
on the testimony of a co-defendant which would be
exculpatory to the defendant, but necessarily implicate
the co-defendant brother in the commission of the
offense. When the court questioned defense counsel about
this, defense counsel stated that he expected to request
the court to grant the co-defendant use immunity in order
to obtain his testimony at trial. In a consolidated
trial, however, the court cannot force a co-defendant to
testify by granting immunity, because the co-defendant
would be testifying in front of the very jury charged
with determining his guilt or innocence. Therefore,
although it was the co-defendant's counsel who brought
the motion to sever, it was actually this defendant's
counsel who should have fought against consolidation in
the first place, or, if he were somehow unaware of the
conflict at that point, he should have moved to sever and
for the appointment of other counsel as soon as he became
aware. Of course, if defendant's proposition that his
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brother did the crime while he slept is not true, then
the court would have to conclude that the defendant
knowingly leaked the information to the police in order
to create a conflict situation and delay the trial. In
either event, the State cannot be chargeable for motions
which would have been unnecessary except for the failure
of the defendant and his counsel to appropriately
communicate or appropriately act on those communications.
Therefore, defendant is chargeable with the delay caused
by those motions from January 23, 1990 to March 6, 1990,
another 42 days.
We conclude that this delay was properly charged to appellant.
The State moved to continue the March 6, 1990, trial date due
to unavailability of an out-of-state witness. The period from
March 6, 1990, to the next scheduled trial date of March 27, 1990,
is therefore charged to the State.
The final delay charged to appellant occurred after the
defense's March 22, 1990, motion to dismiss for failure to
prosecute. This motion was made two business days prior to the
scheduled trial date. The court continued the trial date in order
to allow the county attorney to respond and itself time to decide
the motion, resulting in a 30-day delay which was attributable to
the defense. The trial date was then reset to May 15, 1990.
The net result is that 186 days of the delay in bringing
appellant to trial were chargeable to the State. Other than the
21-day delay in March due to unavailability of a witness, the
reasons for the delay attributable to the State were institutional.
Although appellant's March 22, 1990, assertion of his right to a
speedy trial qualifies as one made in a timely manner, we conclude
that the delay was not prejudicial. At the time of his arrest,
appellant was already under a commitment to the Pine Hills School
for Boys. As the ~istrictCourt noted, appellant was moved to the
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Rosebud County Jail at the request of the Pine Hills administra-
tion, who indicated that appellant had escaped from their
institution on numerous occasions and that they could no longer
hold him there. Appellant would have been confined for the entire
period prior to his trial because of previous unrelated Youth Court
actions. Further, there is nothing to indicate that the defense
was in any way impaired by the delay in trying appellant. On
balancing the factors set forth in Barker, we conclude that the
District Court was correct in ruling that appellant was not denied
his right to a speedy trial.
The second issue on appeal relates to the evidence presented
at trial of past crimes and past criminal conduct charged in Youth
Court. These references were made by Detective Skillen and by
appellant's brother.
Skillen's reference to Pine Hills came as part of his
testimony establishing a chain of custody for an exhibit seized in
Minnesota and given to Pine Hills employees who retrieved appellant
from that state. Rule 404, M.R.Evid., does not prohibit evidence
of other crimes unless it is offered to prove the character of a
person to show that he acted in conformity therewith.
Additionally, we hold that the passing reference that an employee
of Pine Hills had brought the exhibit back from Hutchinson,
Minnesota, did not violate the confidentiality provisions of §§ 41-
5-601 and -602, MCA.
Charles Daniels, who had entered into a plea bargain with the
State, was clearly a difficult witness for the State to control.
His references to his brother's juvenile record were not solicited
By the State's questions. Further, the court instructed the jury
to consider such evidence only to establish proof of motive,
opportunity, plan, knowledge, identity, or absence of mistake or
accident. We conclude that under these circumstances the testimony
of Charles ~aniels is not grounds for reversal of appellant's
conviction.
Affirmed.
We concur:
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Chief Justice
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