No. 92-496
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
BRIAN E. BARKER,
Defendant and Appellant.
APPZAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F, Hooks, Attorney at Law, Appellate
Defender Office, Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Elizabeth L. Griffing, Assistant Attorney
General, Helena, Montana; Mike Salvagni,
Gallatin County Attorney, Gary T. Balaz,
Deputy County Attorney, Bozeman, Montana
Submitted on Briefs: June 10, 1993
Decided: November 2, 1993
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Brian E. Barker appeals from a judgment of the District Court
for the Eighteenth Judicial District, in Gallatin County, in which
he was convicted of the offense of felony theft. Prior to trial,
Barker had twice moved the court to dismiss for lack of a speedy
trial, but these motions were denied. He appeals on the basis that
he was denied his constitutional right to a speedy trial.
We reverse the conviction and dismiss.
The dispositive issue is whether Barker was denied his right
to a speedy trial as guaranteed by the Sixth Amendment to the
United States Constitution and Article 11, Section 24, of the
Montana Constitution when his case did not go to trial until over
400 days after his arrest.
Barker was arrested May 9, 1991, and charged by information on
May 28, 1991, with felony theft. He was incarcerated in the
Gallatin County jail until his arraignment on June 6, 1991, at
which time he entered a plea of not guilty. Barker was then
transferred to the Yellowstone County Detention Center for an
unrelated offense and was ultimately incarcerated at the Montana
State Prison for that offense.
Trial of the felony theft charge was set for October 3, 1991.
Barker filed several pretrial motions on September 12, after which
the District Court, on its own motion, vacated the October 3 trial
and rescheduled the trial for November 19, 1991. On October 31,
the court again vacated the trial date on its own motion and trial
was reset for January 21, 1992.
On January 2, 1992, Barker filed a motion to dismiss the case
on the ground that his right to a speedy trial under the State and
Federal Constitutions had been violated. At that time, 257 days
had elapsed between Barker's arrest and the pending trial.
Following a hearing on January 13, 1992, the court denied the
motion to dismiss, noting that the delay was caused by
"institutional diffi~ulties.~
The January 21, 1992, trial date was then continued. Neither
party requested a continuance and the District Court file is
unclear regarding the reason for postponement. However, the court
later stated that the trial had been continued due to a crowded
court calendar and a conflict with another trial on that date.
When no trial date was set, Barker filed a second motion on
April 23, 1992, to dismiss the case for violation of his right to
a speedy trial. By then, 354 days had elapsed since his arrest.
A hearing on the motion to dismiss was held on June 15, 1992. The
prison psychiatrist and two prison officials testified that Barker
was experiencing high levels of stress and anxiety, and that the
pending Gallatin County charges had impacted Barker's eligibility
for transfer to a pre-release program. Barker also testified that
he had waived a parole hearing set for April 1992, because he had
been told the parole board would not consider parole due to the
pending charges.
The District Court denied the motion to dismiss and attributed
the delay of Barker's trial date to a "heavy trial calendar." The
court found no prejudice as a result of the delay because Barker
was already incarcerated for a different offense. Furthermore, it
stated that there was no definitive proof that Barker's stress and
anxiety had been caused by the pending felony theft charge, as
opposed to the stress experienced from being incarcerated.
Barker's case finally went to trial on June 24, 1992, and the
jury returned its verdict on June 25, finding Barker guilty of
felony theft as defined in S 45-6-301(1), MCA. Barker was
sentenced to ten years in the Montana State Prison with five years
suspended, the sentence to run consecutively to the prison term
that Barker was already serving. From that judgment, Barker
appeals.
Was Barker denied his right to a speedy trial as guaranteed by
the Sixth Amendment to the United States Constitution and
Article 11, Section 24, of the Montana Constitution when his case
did not go to trial until 412 days after his arrest?
The right of any defendant to a speedy trial is guaranteed by
the Federal and Montana Constitutions. U.S. Const. amend. VI;
Mont. const. art. 11, 5 24; State v. Hall (asgo), 244 Mont. 161, 164,
797 P.2d 183, 185. The test used to determine whether the
constitutional right to a speedy trial has been violated was set
forth in Barker v. Wngo (l972), 407 U.S. 514, 92 S. Ct. 2182, 33
L. Ed. 2d 101, and was adopted by this Court in Briceno v. District Court
(1977), 173 Mont. 516, 518-19, 568 P.2d 162, 163-64. When a speedy
trial issue is presented, the court must evaluate and balance the
following four factors:
1) length of delay;
2) reason for delay;
31 assertion of the right by the defendant; and
4) prejudice to the defendant.
State v. Heffenian (1991), 248 Mont. 67, 70, 809 P.2d 566, 567. No
single factor is determinative, and each factor is weighed in light
of the surrounding facts and circumstances. State v. Van Voast (1991),
247 Mont. 194, 200, 805 P.2d 1380, 1384.
The parties agree that Barker sufficiently asserted his right
to a speedy trial, thereby satisfying the third prong of Barker.
Therefore, the factors to be evaluated and balanced in this
instance are the length and reason for delay, and whether Barker
was prejudiced by the delay. This Court has made clear that the
length of delay acts as a "triggering" mechanism, and the other
enumerated factors need not be examined unless presumptive
prejudicial delay is present. State v Scott (Mont. 1993) , 850 P.2d 286
.
50 St. Rep. 353; Van Voast, 805 P.2d at 1384. Here, the State
concedes that the 412 days from the date of arrest to trial is
sufficient delay to trigger the remainder of the speedy trial
analysis and to give rise to a rebuttable presumption of prejudice.
The State further concedes that, because of the presumption of
prejudice, it has the burden of providing a reasonable explanation
for the delay and showing that Barker was not prejudiced by the
delay. SeeStatev. Curtis (1990), 241 Mont. 288, 787 p.2d 306; VanVoast,
805 P.2d at 1384; Hall, 797 P.2d at 186.
5
This Court's analysis, therefore, focuses on whether the
state met its affirmative duty to come forward with evidence to
show that there was a reasonable excuse for the delay and that
Barker was not prejudiced by the delay.
When analyzing the reason for delay, a court must balance the
State's actions against those of the defendant. In this case,
citing Slate v Hernbd
. (3.9921, 254 Mont. 407, 838 P.2d 412, the State
contends that the cause for the delay was purely institutional, and
although chargeable to the State, it should be given only minimal
weight when balancing the Barker factors. The State asserts that
there is nothing in the record to indicate that the State
intentionally delayed the trial to gain some tactical advantage
over Barker, or to harass him, which are the types of oppressive
tactics that the right to a speedy trial is designed to protect
against.
There is no question in this instance that Barker was not
responsible for any of the delay. He did not once ask for, nor
acquiesce in the continuances. He consistently opposed them by
twice asserting his right to a speedy trial. Although we agree
that an institutional delay weighs less heavily than other kinds of
delays in the balancing process, the record here establishes only
minimal justification for this lengthy delay, other than the fact
that the court had a crowded calendar.
A review of the record yields no evidence that the State
attempted to reschedule the trial after the first two dates were
continued by the court. Although this delay may have been
unavoidable due to institutional reasons, this does not mean that
the State is relieved of its responsibility and the duty to bring
an accused to trial in a timely manner. Stazev. Wornbolt (1988), 231
Mont. 400, 753 P.2d 330. Nor does the fact that Barker was already
incarcerated for other reasons serve as a justification for failing
to bring this case to trial for well over a year.
With regard to the continuance of the January 21 trial date,
although unclear, the record suggests that Barker's trial was
preempted by another trial. However, the State has neither
presented evidence with respect to the circumstances surrounding
the other trial, nor has it offered any other reasons for the
indefinite postponement. What is clear from the record is that no
affirmative efforts were made by the State to move for another
trial setting.
Because the State was unable to demonstrate either compelling
circumstances to warrant such a lengthy delay, or that it
diligently pursued bringing Barker's case to trial, we conclude
that, in this instance, the delay weighs heavily against the State.
We now turn to the question of prejudice. Where the trial in
a criminal proceeding has been delayed, the court must consider the
following interests which are protected by the right to speedy
trial: (1) prevention of oppressive pretrial incarceration,
(2) minimization of the defendant's anxiety and concern, and
(3) avoidance of impairment of the defense. Barker, 407 U.S. at
532; Van Voast, 805 P.2d at 1384.
Barker reiterates that the length of delay in this instance
gives rise to a rebuttable presumption of prejudice. He also
contends that the record adequately demonstrates that he was
prejudiced by the pretrial incarceration and that he suffered
anxiety and concern due to the delay.
Barker does not assert that his pretrial incarceration was
attributable solely to the pending charges, but he argues that the
delay resulted in significant and oppressive impacts with respect
to his incarceration. Although we stated in Hernbd, 838 P.2d at
416, that the defendant's incarceration on another charge negated
any prejudice arising from being incarcerated awaiting trial, we
conclude, after reviewing the record in this instance: that there
is evidence that the pending charges did affect Barker's
eligibility for pre-release and parole. The State's only rebuttal,
however, is its contention that Barker was not able to definitively
show that he would have been eligible for a pre-release program in
the absence of the felony theft charges. We agree there is no
proof that Barker would have been eligible for a pre-release
program. However, Barker did not have the opportunity to test his
eligibility due to the pending charges. Therefore, this assertion
by the State does not satisfy its burden of demonstrating that
Barker was not prejudiced by being incarcerated while awaiting
trial.
Finally, Barker contends that the record contains ample
evidence that he suffered anxiety and concern over the pending
charges. The State relies on the District Court's finding that
"the causes of the defendant's anxiety cannot be determined with
any degree of certainty, and the anxiety cannot be attributed to
the pendency of this case." The argument that there is no proof of
prejudice in the record is not persuasive. It is the State's
burden to prove that Barker was prejudiced and it has offered
no evidence to establish that fact.
After considering the circumstances of this case and carefully
balancing the Barker factors, we conclude that the State has failed
to satisfy its burden of rebutting the presumption of prejudice and
demonstrating a reasonable excuse for the delay. Therefore, we
hold that Barker's constitutional right to a speedy trial was
violated. The U.S. Supreme Court has made clear that the remedy
for a violation of one's right to a speedy trial is reversal of the
conviction and dismissal. Stmnk v. United States ( 1 9 7 3 ) , 412 U.S. 434,
9 3 S. Ct. 2260, 37 L Ed. 2d 56.
. On this basis, we reverse the
judgment of the District Court and dismiss the charges that are the
subject of this appeal.
We concur:
November 2. 1993
CERTIFICATE OF SERVICE
I hereby certifl that the following order was sent by United States mail, prepaid, to the following
named:
William F. Hooks
Appellate Defender
P. 0 . Box 200145, Capitol Station
Helena, MT 59620-0145
Hon. Joseph P. Mazurek, Attorney General
, Assistant
215 N. Sanders, Justice Bldg.
Helena, MT 59620
A. Michael Salvagni
County Attorney
615 S. 16th St.
Bozeman, MT 59715
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA