NO. 90-460
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JERRY L. HEFFERNAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Ted L. Mizner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
C. F. Mackay, Public Defender Project Office,
Anaconda, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
James Yellowtail, Assistant Attorney General,
Helena, Montana
Christopher Miller, County Attorney, Deer Lodge,
Montana
Submitted on Briefs: February 28, 1991
APR - 4 1991 Decided: A p r i l 4, 1991
Filed:
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CLERK CF SblPREI'AE COURT
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'Clerk
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Justice John Conway Harrison delivered the opinion of the Court.
The District Court of Powell County found the defendant guilty
of the crime of escape, a felony, in violation 5 45-7-306, MCA.
Defendant filed a motion to dismiss for lack of a speedy trial.
The court denied the motion and this appeal followed. We affirm.
The sole issue for review is whether defendant was deprived
of the right to a speedy trial.
On August 10, 1989, following an August 5 departure from the
Montana State Prison, Heffernan was charged by Information with the
offense of escape, in violation of 5 45-7-306, MCA. Heffernan was
arraigned on August 17, 1989, and pled not guilty. Thereafter, on
October 16, 1989, the State filed a motion to set a trial date and
trial was scheduled for November 30, 1989. The bench trial was
continued until April 19, 1990, due to various delays which we
discuss below. The bench trial was held on a set of stipulated
facts which simply stated that Jerry Heffernan, defendant, escaped
from the Montana State Prison on August 5, 1989 and turned himself
in, on the following day, to the Gallatin County Sheriff.
~dditionalfacts pertinent to the speedy trial issue before us are
discussed below.
~ollowingthe bench trial, the court convicted Heffernan of
escape and sentenced him to three years in prison, with one year
suspended, and ordered the sentence to run consecutively with the
term of the sentence Heffernan served at the time of his escape.
The sole issue before this Court is whether Heffernan was
deprived of the right to a speedy trial.
A
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S an introduction, 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. Both parties
recognize that the primary authority in any speedy trial analysis
issue is Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33
L.Ed.2d 101. We have set out, in detail, the parameters of a
proper speedy trial analysis under the Sixth Amendment, and the
theoretical foundations of the four factor balancing approach of
Barker, in State v. Curtis (1990), 241 Mont. 288, 299, 787 P.2d
306, 313 and State v. Hall (Mont. 1990), 797 P.2d 183, 185-86, 47
St.Rep. 1501, 1504. In Montana, the four Barker factors which we
must evaluate and balance, with consideration given to the conduct
of the prosecution and the accused, respectively, when analyzing
speedy trial issues, are:
1) length of delay;
2) reason for delay;
3) assertion of the right by the defendant; and
4) prejudice to the defendant.
Hall
I 797 P.2d at 185-86. We shall now proceed directly to the
outcome arrived at by simply applying, within defined parameters,
the factors of the analytical framework set forth in Barker.
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LENGTH OF DELAY
The first element, the length of the delay, is of primary
importance. Our analysis comes to an abrupt halt if the length of
the delay is not sufficiently long to trigger a presumption of
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prejudice. State v. Wiman (1989), 236 Mont. 180, 182, 769 P.2d
1200, 1201. On the other hand, if the length of the delay is
presumptively prejudicial, then further inquiry is warranted. What
length will be considered presumptively prejudicial depends on the
facts of each individual case. The length of a delay which we will
consider in any given case is directly proportional to the
complexities of the case. State v. Harvey (1979), 184 Mont. 423,
434, 603 P.2d 661, 667. Barker, 407 U.S. at 530-31, 92 S.Ct. at
2192, 33 L.Ed.2d at 117. Proper calculation of the length of the
delay, for purposes of determining whether the delay has created
a presumption of prejudice, requires us to consider the total
pretrial delay without separately considering the delay
attributable to either party. Curtis at 299, 787 P.2d at 313.
Here, defendant was arrested and charged with the crime of
escape. This was not a complex case. Defendant's trial on his
escape charge was delayed for a total of 256 days from the date of
his arrest on August 6, 1989, to the trial date on April 19, 1990.
We find, and the parties agree, that this total delay of 256 days
between arrest and trial triggers a rebuttable presumption of
prejudice. See State v. Palmer (1986), 223 Mont. 25, 27-8, 723
P.2d 956, 958 (256 days held sufficient to require further
inquiry), and Hall, 797 P.2d at 187 (207 days held sufficient), and
State v. Bartnes (1988), 234 Mont. 522, 528, 764 P.2d 1271, 1275
(175 days held sufficient); compare State v. Wiman (1989), 236
Mont. 180, 184, 769 P.2d 1200, 1203 (119 days of allocated delay
held insufficient). Therefore, further inquiry into the remaining
Barker factors is required. Furthermore, the State has the burden
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of rebutting the presumption by providing a reasonable explanation
for the delay and showing that the defendant was not prejudiced.
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REASONS FOR THE DELAY
Different weights must be assigned to different reasons for
the delay. Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d
at 117; Curtis at 302, 787 P.2d at 315. In considering the reasons
for the 256-day delay, we shall allocate the delay by incorporating
into this element arguments of how much delay is separately
attributable to each party. Naturally, although it is not the case
here, if the delay was entirely the cause of the defendant, then
defendant's speedy trial argument is without merit. State v.
Wirtala (1988), 231 Mont. 264, 268, 752 P.2d 177, 180. T h e
State contends that Heffernan is directly responsible for 140 days
of the 256-day delay and asserts that it is only responsible for
the remaining 116 days. Heffernan denies this and contends that
the State must bear complete responsibility for the total delay.
The State argues that 140 days of the delay for the time period
from November 30, 1989, the initial trial date, until ~ p r i l 19,
1990, the actual trial date, is attributable to Heffernan because
he actively avoided trial during this period, citing Curtis at 301,
787 P.2d at 314.
The record indicates that Heffernan was arrested on August 6,
1989. The Powell County Attorney, Mr. Christopher G. Miller, filed
an information on August 10,1989, charging Heffernan with the crime
of escape. On October 16, 1989, Mr. Miller moved the District
Court to set the trial date. Heffernanls case was initially set
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for trial on November 30, 1989. A November 30, 1989 entry in the
District Court Journal, on page #180, states as follows:
STATE OF MONTANA, Plaintiff -vs- GUS GARDNER, Defendant
STATE OF MONTANA, Plaintiff -vs- JERRY L. HEFFERNAN, Defendant
Public Defender Conde F. Mackay appears on the two above
entitled companion cases and advises that defendant just
yesterday rejected the plea bargaining in each case. In
fact it is still not decided for certain if this case
will go to trial as set for today. Court wonders if
these cases could be tried together. Mr. Mackay will
check on this. County Attorney Christopher G. Miller who
is present representing the State moves to consolidate.
The record shows that Heffernan rejected a prior negotiated plea
agreement the day before trial. This tactic left the State with
insufficient time to marshal its evidence for trial. Due to
Heffernanls actions in waiting the day before trial to reject the
plea, which had already been negotiated and agreed upon, the State
was forced to request a continuance. The trial was continued until
March 26, 1990. We shall call this u - d a y delay, from November
30, 1989 until March 26, 1990, #!delay #I." On March 26, 1990, due
to a backlog of cases pending in the District Court, this case was
continued until April 5, 1990. This 9-day institutional delay,
from March 26, 1990 until April 5, 1990, shall be referred to as
"delay #2.11 The record reflects that, on the day before the April
5 trial, Heffernan filed a motion to dismiss for lack of a speedy
trial, along with a motion for appointment of new counsel and a
motion to sever his case from a companion case. On April 5, 1990,
the District Court heard arguments pertaining to Heffernan1s
motions and thereafter denied them on April 17, 1990. On ~ p r i l19,
1990, a bench trial was held on stipulated facts and the District
Court found Heffernan guilty as charged. We shall call this final
t
14-da; delay, from April 5 until April 19, "delay #3.
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We find that Heffernan is responsible only for delay #I, or
days of the 256 day delay, and the State is charged with the
remaining 1 9 days.' Heffernan is responsible for delay #1 because
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he caused it by rejecting the prior negotiated plea agreement.
This rejection forced a continuance of the trial. The record shows
that, but for Heffernan's rejection, the trial would have
proceeded, as scheduled, on November 30, 1989. Instead, the trial
was continued until March 26, 1990. Although the State requested
the continuance, it was caused solely by Heffernanls own actions
and so the delay is chargeable to Heffernan, the State.
Conversely, delays #2 and #3 are chargeable to the State. These
delays were institutional in nature, caused by circumstances over
which Heffernan had no control, including trial preparation and a
backlog of pending cases. !#Delay inherent in the system is
chargeable to the State" because the State bears the burden of
bringing a defendant to trial. Harvev at 34, 603 P.2d at 667.
For this reason, these delays, totalling 139 days, are chargeable
to the State. The State asserts that delay #3 was caused by the
motions which Heffernan made prior to the April 5, hearing and,
thus, this delay should be charged against Heffernan. We disagree.
Considering that portion of the pretrial delay which is
chargeable to the State, we note that the speedy trial is primarily
designed to protect the accused from oppressive tactics of the
his is not to suggest that all delays not charged to
defendant are automatically charged to the State--because this is
simply not the case. See State v. Carden (1977), 173 Mont. 77,
87, 566 P.2d 780, 785.
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prosecution. Barker, 407 U. S. at 529, 92 S.Ct. at 2191, 33 L.Ed. 2d
at 116. The question is whether the frprosecution
was pursued with
reasonable diligencef1
during that time of delay for which the State
was charged. State v. Grant (1987), 227 Mont. 181, 185, 738 P.2d
106, 109. "The essential ingredient is orderly expedition and not
mere speed." United States v. Marion (1991), 404 U.S. 307, 313,
92 S.Ct. 455, 459, 30 L.Ed.2d 468, 474 (citing Smith v. United
States (1959), 360 U.S. 1, 795 S.Ct. 991, 3 L.Ed.2d 1041).
Vacation of the District Court's order would be required if it were
shown that, Itthe pre-indictment delay in this case caused
substantial prejudice to appell[antfs] rights to a fair trial and
that the delay was an intentional device to gain tactical advantage
over the ac~used.'~Marion, 404 U.S. at 324, 92 S.Ct. at 465, 30
L.Ed.2d at 481. The 139-day delay attributable to the State was
not caused by oppressive tactics by the State. There is no showing
by Heffernan that the State intentionally delayed to gain some
tactical advantage over Heffernan or to harass him. We find that
the reason for the State's 139-day delay was that such delays are
inherent in the system and, thus, institutional in nature. We
point out that institutional delays, such as these, weigh less
heavily against the State in the Barker balancing process than
intentional delays resulting from oppressive tactics. State v.
Palmer (1986), 223 Mont. 25, 28, 723 P.2d 956, 959. With this in
mind, our next task is to balance the other Barker factors against
the harm caused by the inherent and institutional nature of the
139-day delay.
ASSERTION OF THE RIGHT
We find, and the State concedes, that Heffernan satisfied the
third element by moving to dismiss on speedy trial grounds on April
4, 1990, before this case was brought to trial.
PREJUDICE TO DEFENDANT
The primary interests which lie at the heart of this factor
are set forth in Barker:
A fourth factor is prejudice to the defendant.
Prejudice, of course, should be assessed in the light of
the interests of defendants which the speedy trial right
was designed to protect. This Court has identified three
such interests : (i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of
the accused; and (iii) to limit the possibility that the
defense will be impaired. Of these, the most serious is
the last, because the inability of a defendant adequately
to prepare his case skews the fairness of the entire
system. If witnesses die or disappear during a delay,
the prejudice is obvious. There is also prejudice if
defense witnesses are unable to recall accurately events
of the distant past. Loss of memory, however, is not
always reflected in the record because what has been
forgotten can rarely be shown.
Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 101 and
Hall
I 797 P.2d at 187. Applying these interests to the facts of
this case, we hold that Heffernan was not prejudiced by the State's
delay in bringing his case to trial.
We find no evidence of oppressive pretrial incarceration since
Heffernan was an inmate in the Montana State Prison during the
entire subject pretrial period due to an unrelated conviction. He
therefore did not suffer any prejudice from pretrial incarceration.
Regarding the second interest we must consider, Heffernan
alleges that he has suffered anxiety and concern as a result of the
pretrial delay. We have recognized that I1[t]he existence of
anxiety or emotional distress is notoriously difficult to prove.I1
Curtis at 303, 787 P.2d at 316. Here, the record contains no facts
or proof conclusively showing that anxiety and concern have been
caused to Heffernan. However, various statements in Heffernanls
brief support the conclusion that Heffernan has likely been subject
to at least some anxiety and concern because of the pretrial delay.
In his brief, Heffernan alleges that he has been held in closer
custody, denied parole, and denied the opportunity to dispose of
a Wyoming detainer by virtue of the delay. We find, under these
circumstances, that at least some prejudice in the nature of
anxiety and concern can be presumed to have occurred.
As for the third and most important of the interests outlined
above, we find that the delay did not hamper, impair or otherwise
prejudice the defense. This was not a complex case involving a
complicated fact pattern. The bench trial for the escape crime
proceeded on a very brief and concise paragraph of stipulated
facts. Furthermore, Heffernan did not allege that his defense was
prejudiced nor were there facts or circumstances in the record to
support such a finding. Lastly, and most importantly, Heffernan
did not even present any defense to his escape charge and
subsequent conviction. Under these circumstances, we must find
that Heffernan was not prejudiced in this manner. "The crucial
factor in a prejudice determination is whether the defense has been
impaired.I1 State v. Waters (1987), 228 Mont. 490, 494, 743 P.2d
617, 620. Considering the above interests, in light of the facts
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presented, we conclude that Heffernan was not prejudiced by the
delay in bringing his cause to trial.
In summary, the State is charged with a 139-day delay. This
delay was not intentional, but was rather inherent and
institutional in nature. Lastly, except for some anxiety which we
have presumed, Heffernan was not prejudiced by the pretrial delay.
Based on our analysis, we hold that under the four factor balance
test of Barker, Heffernan was not denied his right to a speedy
trial and the District Court did not err in denying Heffernanls
motion to dismiss.
The District Court is hereby affirmed.
We concur:
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