NO. 94-240
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
RONDA K. WILLIAMS-RUSCH,
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert S. Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Amy N. Guth, Public Defender's Office, Libby,
Montana
For Respondent:
Joseph P. Mazurek, Attorney General, John Paulson,
Assistant Attorney General, Helena, Montana;
Charles Sprinkle, Lincoln County Attorney, Libby,
Montana
Submitted on Briefs: March 7, 1996
Decided: November 25, 1996
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
Following a jury trial in the Nineteenth Judicial District
Court, Lincoln County, appellant Ronda K. Williams-Rusch (Ronda)
was acquitted of the offense of conspiracy, a felony, and convicted
of tampering with a witness or informant, a felony. We affirrc.
Ronda raises the following issues on appeal:
1. Did the District Court err in failing to dismiss the
prosecution on the grounds of outrageous government conduct?
2. Did the District Court err in allowing the State to
prosecute Ronda for witness tampering?
3. Did the District Court err in failing to dismiss the
prosecution on the grounds of denial of a speedy trial?
4. Did the District Court have subject matter jurisdiction
over the offense of witness tampering?
Factual and Procedural Background
On August 16, 1992, two law enforcement officers with the U.S.
Forest Service came across a campsite near the Fisher River in the
Kootenai National Forest about 15 miles from Libby. No one was at
the campsite at the time. Next to a trailer in the camp the
officers observed some bags of potting soil and several cardboard
boxes containing 15 to 20 small plants growing in styrofoam cups.
The officers obtained a leaf from one of the plants which later
tested positive as marijuana.
Over the next three days, officers from the Lincoln County
Sheriff's Office and the U.S. Forest Service conducted a
surveillance of the campsite, which was occupied by Ronda, her
2
husband, Mike Rusch, her boyfriend, Randell Nealy, and her nine-
year-old daughter, Tracy Rusch. On August 20, 1992, the Justlce of
the Peace issued a warrant to search the campsite and seize all
marijuana plants and seeds, drug paraphernalia, records of drug
transactions, and cash. That same day, as officers from the
Sheriff's Office conducted a search, they discovered approximately
50 marijuana plants growing a short distance from the campsite.
The officers arrested Ronda and her two male companions and
transported them to the Lincoln County detention facility. Ronda's
daughter, Tracy, was placed in the care of child protective
cervices. The officers confiscated all of the items located at the
campsite including several videotapes. Some of these items were
marked as evidence and others were held for safekeeping.
The day after Ronda's arrest and the seizure of items from the
campsite, Officer Klint Gassett (Gassett) played the videotapes on
the VCR in his office. The Chief of Detectives had instructed
Gassett to view the tapes to determine if they had any evidentiary
value. However, instead of depicting drug transactions, the tapes
showed Ronda engaging in sexual acts with Nealy. The television on
which Gassett viewed the tapes is mounted on a wall facing the door
of the office he shares with several other officers. Several
officers and others entered the room at various times during the
viewing of the videotapes and saw all or part of the tapes.
That same afternoon, Gassett removed Ronda from her cell to
interview her. Gassett accompanied Ronda to the squad room which
is the only area in the Sheriff's Office where smoking is
permitted. He advised Ronda that if she needed to smoke she could
request to speak to him and he would escort her to the squad room.
Ronda later alleged that during this and other later interviews,
Gassett made suggestive comments to her about her performance on
the videotapes. At the time of the first interview, Ronda had not
yet made an initial appearance. She appeared before the Justice of
the Peace later that afternoon, at which time counsel was appointed
to represent her. Bail was set at $50,000.
On August 24, 1992, Ronda waived her right to a preliminary
hearing and requested that the District Court release her upon her
own recognizance. Ronda was released from jail the following day.
On August 26, 1992, the Stat-eformally charged Ronda by information
with one count of criminal possession wlth intent to sell, a
felony, in violation of § 45-9-103,MCA. She was arraigned on this
charge on August 31, 1992, and pleaded not guilty.
On August 27, 1992, Ronda appeared before the District Court
and requested the Sheriff's Office return her personal property.
The court so ordered and the following day, Ronda supplied the
Sheriff's Office with a list of the personal property that she
sought returned. The list included a notation for "tapes-musical
& video. "
Ronda's tapes were not returned as ordered, so on September 1,
1992, she requested that the District Court direct an order to the
State to show cause why her personal property had not been returned
to her. Ronda appeared in 3istr~ctCourt the next day and again
requested that her personal property be returned. The court
ordered that Ronda's personal property be delivered to her
residence by 11:OO a.m. the following day. Not only were the
videotapes not returned to Ronda on the date and time specified by
the court, but the videotapes were instead shown that same day to
several detectives from Seattle, Washington, who had arrived in
Libby to interview Michael Rusch. The same day the tapes were to
be returned, the Lincoln County Sheriff's Office arrested Ronda on
a warrant from Oregon and incarcerated her in the Lincoln County
jail.
On September 10, 1992, the Lincoln County Attorney directed
Officer Gassctt to make copies of the videotapes. The following
day, after receiving an order from the District Court requiring
that the Sheriff's Office release all of Ronda's personal property
to Ronda's sister and to release the videotapes to Ronda's
attorney, two officers attempted to locate the tapes in the
evidence locker, but they were unsuccessful. The videotapes were
later located at Gassett's home and delivered to Ronda's attorney.
On September 14, 1992, Ronda moved the District Court to order
the release of any copies of the videotapes. The court so ordered,
however, the Sheriff's Office responded that it had been
u~~uccessful its attempts to make copies of the videotapes, thus
in
no copies were in existence.
Ronda was extradited to Oregon to face charges there on
September 16, 1992. On October 5, 1992, Ronda moved to dismiss the
Montana action on the grounds of outrageous government conduct in
the seizure, use and possession by the State of the sexually
explicit videotapes and the sexual harassment of her by State
employees. She later moved to continue the hearing on this motion
because she was still incarcerated in Oregon.
On November 18, 1992, the State moved to amend the information
to include the alternative offense of conspiracy, a felony, in
violation of §§ 45-9-101 and 45-4-102,MCA, and to add a charge of
tampering with witnesses or informants, a felony, in violation of
§ 45-7-206,MCA. The State filed a new complaint in Justice Court
charging Ronda with witness tampering and bond was set at $10,000.
A November 23, 1992 hearing on the motion to amend the information
was continued until Ronda could be personally present.
Ronda returned to Montana on April 26, 1993, her Oregon
charges having been settled, and the District Court released her on
her own recognizance. On May 12, 1993, the court held a hearing on
Ronda's motion to dismiss for outrageous government conduct and
granted the State's motion to amend the information.
Ronda was arraigned on the charges in the amended information
on June 10, 1993, and pleaded not guilty. On July 12, 1993, the
District Court conducted an omnibus hearing and set trial in this
matter for January 11, 1994. On July 19, 1993, Ronda moved to
suppress her August 21, 1992 statement on the grounds that
Gassett's actions in eliciting the statement deprived her of a
speedy initiai appearance and her right to counsel. A few weeks
later, Ronda also moved to suppress evidence seized in the search
of the campsite on the grounds the search was oppressive and overly
broad.
On January 3 , 1994, Ronda moved to dismiss the information on
the grounds that the State had violated her right to a speedy
trial. Two days later, the State moved to continue the trial due
co its failure to secure the presence of out-of-state witnesses.
The District Court reset the trial for February 14, 1994.
On the day set for trial, the District Court granted Ronda's
motions to suppress her statement and certain items of evidence and
denied her motion to dismiss on the grounds of outrageous
government conduct. Following a 3-day trial and the dismissal of
the charge of criminal possession with intent to sell, the jury
found Ronda not guilty of the alternative charge of conspiracy and
found her guilty of tampering with a witness. Ronda filed a motion
for a judgment notwithstanding the verdict on the grounds that her
right to a speedy trial had been denied. The motion was deemed to
be a motion for a new trial and denied by the District Court. On
March 29, 1994, the court sentenced Ronda to ten years in prison,
all of which was suspended, and placed her on probation.
Ronda now appeals the denial of her motion to dismiss on the
grounds of outrageous government conduct, the denial of her motion
to dismiss for lack of sufficient evidence to prove the charge of
witness tampering, and the denial of her motion to dismiss for lack
of a speedy trial.
Issue 1.
Did the District Court err in failing to dismiss the
prosecution on the grounds of outrageous government conduct?
Ronda claims that as a consequence of this prosecution, she
was subjected by government agents to a violation of her right to
counsel, her right to remain silent, her right to be free from
unreasonable search, her right to a timely initial appearance and
release from incarceration, and her right to be free from the civil
wrongs of sexual harassment, invasion of privacy, and the
conversion of her personal property. She contends that the
totality of her treatment by the government was outrageous and the
only appropriate remedy is dismissal of this action with prejudice.
However, Ronda's constitutional rights concerning the searches and
the pre-appearance interrogation were fully vindicated when the
District Court ordered that Ronda's August 21, 1992 statement and
certain items of evidence be suppressed. The focus of Ronda's
claim of outrageous government conduct in this appeal rests upon
the handling of the videotapes by the Sheriff's Office.
The United States Supreme Court first enunciated the defense
of outrageous government conduct in United States v. Russell
(1973), 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366. In Russell,
an undercover narcotics agent investigating the defendant and his
confederates supplied the defendant with one of the ingredients
necessary to manufacture methamphetamine. Although this ingredient
was a legal substance, it was difficult to obtain. Based on
evidence obtained by the narcotics agent, the defendant was
eventually convicted of three counts of unlawfully manufacturing
and selling methamphetamine. On appeal, the United States Court of
Appeals for the Ninth Circuit reversed the conviction concluding
that as a matter of law "a defense to a criminal charge may be
founded upon an intolerable degree of governmental participation in
the criminal enterprise." United States v. Russell (9th Cir.
19721, 459 F.2d 671, 673. However, the United States Supreme Court
reversed the Court of Appeals stating:
While we may some day be presented with a situation
in which the conduct of law enforcement agents is so
outrageous that due process principles would absolutely
bar the government from invoking judiclal processes to
obtain a conviction . . . the instant case is distinctly
not of that breed.
Russell, 411 U.S. at 431-32, 93 S.Ct. at 1643, 36 L.Ed.2d at 373.
Since the Supreme Court's determination in Russell, both state
and federal decisions have limited the outrageous government
conduct defense to extreme cases in which the government has
essentially manufactured the crime or has generated new crimes
merely for the sake of pressing criminal charges against the
defendant. State v. DeAngelo (0r.App. 1992), 830 P.2d 630, 632-33
(citing State v. McArdle/Harrelson (0r.App. 1988), 754 P.2d 918);
United States v. Stenberg (9th Cir. 19861, 803 F.2d 422; United
States v. Bogart (9th Cir. 19861, 783 F.2d 1428 vacated on other
grounds sub nom. United States v. Wingender (19861, 790 F.2d 802.
The doctrine is a "most narrow" defense. State v. Briner
(1992), 253 Mont. 158, 164, 831 P.2d 1365, 1369. In State v.
Haskins (1992), 255 Mont. 202, 841 P.2d 542, this Court upheld the
District Court's denial of a defendant's motion to dismiss for
outrageous government conduct because the defendant failed to show
how the alleged police misconduct violated the defendant's
constitutional rights relating to the crimes charged. See also
State v. Romero (Mont. No. 95-067, decided November 6, 1996)
9
(holding that the defendant lacked standing to raise a claim of
outrageous government conduct).
So too must Ronda's claim fail in the case before us as the
record does not show any connection between the challenged
government conduct regarding the videotapes and the commission of
the acts which constituted Ronda's conviction for tampering with a
witness. Ronda has failed to show that the Sheriff's officers
instigated any of the criminal activity which led to her charges or
conviction, nor did she demonstrate that the government
manufactured any of the crimes with which she was charged and
convicted or that it generated new crimes merely for the sake of
pressing criminal charges against her.
In denying Ronda's motion to dismiss for outrageous government
conduct, the District Court determined that it is not inappropriate
for government agents to view home videos seized in the course of
a drug raid to find evidence consistent with the crimes charged as
well as the identities of persons connected with the crimes. While
we agree with this determination of the District Court, we do not
in any way condone the way the officers conducted the viewing or
handllng of the videos.
However, the appropriate remedy for Ronda's allegations of
government misconduct in this case is not dismissal of the action.
Rather, as we pointed out in Haskins, the appropriate remedy is to
bring a federal civil rights action pursuant to 42 U.S.C. 5 1983.
If the police engage in illegai activity in concert with
a defendant beyond the scope of their duties the remedy
Iles, not in freeing the equally culpable defendant, but
in prosecuting the police under the applicable provision
of state or federal law.
Haskins, 841 P.2d at 546 (quoting Hampton v. United States (1976),
425 U.S. 484, 490, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113, 119).
Since Ronda is presently pursuing those civil remedies, we decline
further comment on the matter of the government's conduct in this
case.
We hold, simply, that the District Court did not err in
denying Ronda's motion to dismiss on the grounds of outrageous
government conduct as Ronda failed to demonstrate that the conduct
of the heri iff's officers in handling and viewing the videotapes
led to her charges or conviction, nor did she establish that the
government manufactured any of the crimes with which she was
charged and convicted or that it generated new crimes merely for
the sake of pressing criminal charges against her.
Issue 2.
Did the District Court err in allowing the State to prosecute
Ronda for witness tampering?
On November 18, 1992, the State filed a Motion to Amend the
Information by adding the alternative charge of conspiracy, a
felony, in violation of 5 45-9-101 and 45-4-102, MCA, and by
joining as Count I1 the charge of tampering with witnesses or
informants, a felony, in violation of § 45-7-206, MCA. The State
attached a supporting affidavit filed in Justice Court for the new
charge of tampering with witnesses or informants.
Ronda maintains that the crime of tampering with a witness is
an attempt crime and that under § 45-4-103, MCA, she cannot be
liable for an attempt crime if she avoided the commission of the
offense attempted by abandoning her criminal effort. She contends
that she did abandon her criminal effort when she advised Tracy in
a letter dated October 10, 1992, to "tell the truth."
Section 45-7-206, MCA, provides, in part:
Taxapering with witnesses and informants. (1) A
person commits the offense of tampering with witnesses
and informants if, believing that an official proceeding
or investigation is pending or about to be instituted, he
purposely or knowingly attempts to induce or otherwise
cause a witness or informant to:
(a) testify or inform falsely;
(b) withhold any testimony, information, document, or thing;
ic) elude legal process summoning him to testify or
supply evidence; or
(dl absent himself from any proceeding or investigation
to which he has been summoned.
Ronda was not charged with attempted tampering with a witness,
and the statutory defense to attempt would, by its own terms, be
inapplicable to the charge of a completed offense. All that is
required to complete the offense is the purposeful or knowing
attempt to influence the witness. Section 45-7-206, MCA. Ronda
committed and completed the offense when she made her initial
efforts to get Tracy to withhold information and testify falsely
long before she wrote the letter to Tracy. The defense of
abandonment of attempt is not available to a defendant where
substantial harm has been inflicted or acts of danger completed.
State v. Mahoney (1994), 264 Mont. 89, 99-100, 870 F.2d 65, 72.
Where, as here, rhe essential elements of the criminal enterprise
have been already accomplished, the defense of abandonment is not
applicable; the criminal act is fait accompli, and cannot be
undone.
12
Moreover, Ronda's letter to Tracy says, in actuality, "You
will have to tell the truth - of how I was never over in those
plants cause they think you and I were over there - or at least
you." Contrary to Ronda's assertion that she abandoned her efforts
to influence Tracy when she urged Tracy to tell the truth, Ronda
tells Tracy in the letter exactly what "truth" Ronda wants Tracy to
tell.
Ronda also contends that the affidavit in support of the
amended information fails to set forth sufficient facts to merit a
finding of probable cause. However, the af fidavit states, in part,
as follows:
3. . . . During the time that Defendant was out of
jail, Defendant repeatedly told Ti-acie [sic] not to talk
to anyone about what had occurred while they were
camping. Defendant told Tracie that it "is not a lze if
you don't say anything."
. . .
5. Beverly Miller ("MillerM),a Lincoln County
Social Worker, recalls being at the Sheriff's office
while Tracie was visiting her mother on or about
September 11, 1992. Miller was not immediately near
Tracie during most of the visit. Miller came into the
view room at one point during the visit. She saw police
reports being shown to Tracie, with portions of the
report underlined. Miller terminated the interview.
After leaving the interview, Miller talked to Tracie.
Tracie was upset and was saying she did not want to
testify. Up to that point, no one had mentioned [to]
Tracie that she would have to testify.
6. . . . Across the top of the [police report that
Defendant showed Traciel the words "Do not talk to
anybody, see what you did" were wrztten. . . .
7. Tracie received a letter from Defendant in late
October, 1992. The letter discussed the possibilitythat
Tracie might be called as a witness in the trlal of
Defendant. The letters [sic] says in part "You will have
to tell the truth - of how I was never over in those
plants cause they think you and I were over there - or at
least you - Daddy already told them that I didn't know
anything about it. But they are saylng you took them to
the plants. Did you take them? Or did they take you?
You have to be careful because they might try to get you
on the stand and confuse you. . . I can't believe they
would try and get you to testify against your Mom! It's
really sick! . . . But since the police say you are a
witness against me and for them - we had better cover all
the stuff that went on. . . .
8. . . . Defendant told Tracie during the time that
the marijuana plants were growing that Tracie was to be
"hush-hushNabout the plants.
This Court has stated that an affidavit filed in support of a
motion for leave to file an information need only recite facts
sufficient to indicate a probability that the defendant committed
an offense; it need not demonstrate a prima facie case. State v.
Little (1993), 260 Mont. 460, 469, 861 P.2d 154, 160 (citing State
v. Ramstead (19901, 243 Mont. 162, 165-66, 793 F.2d 802, 804).
Clearly, the affidavit in this case filed in support of the motion
for leave to file an information does recite facts sufficient to
indicate a probability that Ronda committed the offense of
tampering with a witness.
Accordingly, we hold that the District Court did not err in
allowing the State to prosecute Ronda for witness tampering as the
affidavit established probable cause to believe that the crime had
been committed.
Issue 3.
Did the District Court err in failing to dismiss the
prosecution on the grounds of denial of a speedy trial?
Ronda was arrested on August 20, 1992, and arraigned on August
31, 1992. She filed a motion to dismiss for lack of a speedy trial
on January 3, 1994, but the Discrict Court denied her motion and
trial commenced on February 14, 1994.
The Sixth Amendment to the Unit'ed States Constitution and
Article 11, Section 24, of the Montana Constitution guarantee a
criminal defendant the right to a speedy trial. Whether that right
has been violated is determined by a four-part test set out in
Barker v. Wingo 11972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33
L.Ed.2d 101, 116-17, and adopted by this Court in State ex rel.
Briceno v. Dist. Ct. of 13th Jud. Dist. (1977), 173 Mont. 516, 518,
568 P.2d 162, 163-64.
This test requires a balancing of the following four factors:
(1) the length of the delay; (2) the reason for the delay; (3) the
assertion of the right by the defendant; and (4) prejudice to the
defendant. State v. Collier (Mont. 199.6), 919 P.2d 376, 381-82, 53
St.Rep. 534, 536 (citing State v . Matthews 11995), 271 Mont. 24,
27-28, 894 P.2d 285, 287). All four factors are weighed by
considering the facts and circumstances of each case; no one factor
is determinative. Collier, 919 P.2d at 382.
The first factor, length of the delay, triggers further
inquiry into the remaining three factors. It is not necessary to
consider the remaining factors unless the length of the delay is
presumptively prejudicial. Collier, 919 P.2d at 382 (citing State
v. Eklund (19941, 264 Mont. 420, 424, 872 P.2d 323, 326). When
considering the length of the delay, no regard is given to which
party caused the delay. Collier, 919 F.2d at 382.
Ronda was arrested on August 20: 1992, and trial was held on
February 14, 1994, a delay of 543 days. We have previously stated
that: a delay of over 200 days will trigger further analysis.
Collier, 919 P.2d at 382. Thus the 543-day delay in the instant
case is presumptively prejudicial warranting an analysis of the
remaining three factors. Once the delay has been determined to be
presumptively prejudicial, the State has the burden to provlde a
reasonable explanation for the delay and to show that the defendant
was not prejudiced by the delay. Collier, 919 P.2d at 382.
The second factor, reason for 'the delay, requlres us to
allocate portions of the overall delay to the party responsible for
causing that particular delay. Ronda argues that most of the delay
in this case is attributable to the State, including a majority of
the delay while she was incarcerated in Oregon on other charges.
Ronda was arraigned on August 31, 1992, and an omnibus hearing
was scheduled for September 14, 1992. Thus the 25-day delay from
Ronda's arrest on August 20, 1992, until her omnibus hearing on
September 14, 1992, is attributable to the State. However, this
delay may be characterized as institutional delay rather than
intentional delay. Institutional delay, though charged against the
State, weighs less heavily than intentional delay. State v. GouLd
(19951, 273 Mont. 207, 216, 902 P.2d 532, 538.
At the September 14, 1992 omnibus hearing, Ronda requested a
continuance to October 5, 1992, which the District Court granted.
Ronda was extradited to Oregon on September 16, 1992, to face
charges in that state. On October 5, 1992, Ronda's attorney filed
on Ronda's behalf, a motion to dismiss for outrageous government
conduct. A hearing on this motion was set for October 26, 1992.
However, three days before the scheduled hearing, Ronda, through
her attorney, moved to continue the hearing until Ronda could be
personally present to testify. Having made the motion for a
continuance, defense counsel at no time objected to the fact that
Ronda was not within the jurisdiction of the court. Even though it
1s the State's obligation to move a case forward, where the
defendant requests and obtains a continuance, the delay resulting
from that continuance should not be charged to the State.
" [Dlelay is] in bringing a defendant to trial caused or consented to
by defendant are considered to constitute a waiver of the right to
be tried within the time fixed by statute or required by the
constitution." State v. Robbins :1985), 218 Mont. 107, 116, 708
P.2d 227, 233 (emphasrs added) .
Ronda returned to Montana on April 26, 1993. At a bond
hearing on that date, the District Court released Ronda on her own
recognizance and set May 12, 1993, as the time for hearing Ronda's
motion to dismiss for outrageous government conduct. Commencing
May 12, 1993, the District Court held a three-day hearing on
Ronda's motion to dismiss. This motion was denied by the court.
On June 7, 1993, upon a motion by Ronda, the court reset the
hearing on her plea to the amended charges to June 10, 1993. The
District Court then granted Ronda's motion to continue the omnibus
hearing scheduled for June 10, 1993, to July 12, 1993. Thus 278
days of the 301-day delay from September 14, 1992, until July 12,
1993, were caused by Ronda's various motlons and are attributable
to Ronda. 3nly 23 days of that tlme are attributable to the State.
At the Juiy 12, 1993 omnibus hearing, the District Court set
January 1 , 1 9 9 4 , as the date for trial in this matter.
1 Thus the
183-day delay from the omnibus hearing to the January trial date is
attributed to the State as institutional delay. However, it bears
noting that Ronda made no objection at this hearing to trial being
set for almost six months later. Moreover, Ronda filed several
motions after the omnibus hearing, a11 of which required response
by the State and a hearing. If trial had not already been set for
six months hence, Ronda's motions would have delayed the start of
her trial in any event.
On January 5, 1994, the State moved to continue the trial
scheduled for January 1 , 1 9 9 4 , because it was unable to locate
1
certain out of state witnesses. While nothing in the record
supports a conclusion that the State's motion was made in bad faith
or simply to delay the trial of this case, the continuance was at
the State's request and for its benefit and to that extent, must be
characterized as "intentional." Accordingly, the time lost being
not properly charged merely as institutional delay, the 34-day
delay from January 1 , 1 9 9 4 ,
1 to February 1 4 , 1994, when trial
commenced, is attributable at full weight to the State.
Of the 543 days between Ronda's arrest on August 2 0 , 1 9 9 2 , and
the commencement of trial on February 1 4 , 1994, 278 days are
attributable to Ronda and 2 6 5 days are attributable to the State,
of which only 34 days were "intentional" delay. As we stated
previously in this opinion, institutional delay weighs less heavily
against the State chan intentional delay. w,9 0 2 P.2d at 538.
The third factor, assertion of the right by defendant, was
satisfied when Ronda moved to dismiss on speedy trial grounds prior
to trial. However, by filing her motion to dismiss only one week
before trial was to commence, Ronda exhibited a lack of actual
interest which should be considered in balancing the Barker
factors. State v. Thompson (1993), 263 Mont. 17, 32-33, 865 P.2d
1125, 1135 (citing State v. Mooney (1991), 248 Mont. 115, 119-20,
809 P.2d 591, 594). As we pointed out in Thompson, a defendant's
failure to object to a trial date at the omnibus hearing must be
considered in the defendant's later assertion of a claim of denial
of a speedy trial. Thompson, 865 P.2d at 1135. In the present
case, Ronda did not object at the July 12, 1993 omnibus hearing
when trial was set for January 11, 1994, almost six months later.
Prejudice to the defendant, the fourth factor of the Barker
test, is analyzed by assessing three interests which the right to
a speedy trial was designed to protect: (1) prevention of
oppressive pretrial incarceration; (2) minimization of the
defendant's anxiety and concern; and (3) avoidance of impairment of
the defense. The last of these being the most critical factor.
Collier, 919 P.2d at 383.
First, except for a few days after her arrest on the Montana
charges and the period of time she was incarcerated in Oregon,
Ronda was released on her own recognizance while she awaited trial
on thls matter. Thus, she was not sublected to excessive or
oppressive pretrial incarceratxon as a result of the Montana
charges.
Second, this Court has previously stated that since it is
nearly impossible for the State to prove that anxiety and concern
do not exist, the State's burden to show a lack of anxiety becomes
considerably lighter in the absence of more than marginal evidence
of anxiety. State v. Atkins (Mont. 1996), 920 P.2d 481, 484, 53
St.Rep. 561, 562; State v. Weeks (19951,270 Mont. 63, 74, 891 P.2d
477, 483. Here, Ronda makes no claim that she experienced any
anxiety or concern which was aggravated as a result of the delay.
This Court should not presume prejudice in the absence of anxiety
and concern which exceeds that inherent in being charged with a
crime. State v. Moore (1994), 268 Mont. 20, 69, 885 P.2d 457, 487-
88.
Third, Ronda claims prejudice because of Tracy's "memory
loss." She contends that Tracy's inability to recall statements
that she gave to Sheriff's officers and others a year earlier,
placed the State in the "comfortable position of proving irs case
solely upon hearsay," and, consequently, the lack of a speedy trial
effectively deprived Ronda of her right to confront and cross-
examine Tracy. On the contrary, a review of Tracy's testimony at
trial reveals that Tracy was able to testify affirmatively that she
did not make the critical statements and, accordingly, the officers
could properly testify about Tracy's prior inconsistent statements
under Rule 801 (d)!1), M.R.Evid. Moreover, this Court has noted
that a defendant suffers no prejudice, for purposes of a speedy
trial analysis, if a child witness' loss of memory is beneficial to
the defense. State v. Scott (1993), 257 Mont. 454, 459-60, 850
P . 2 d 286, 289; State v. Eklund (1994),264 Mont. 420, 426, 872 P.2d
323, 327.
The dissent insists that the only evidence linking Ronda to
the charge of witness tampering is Tracy's prior statement to law
enforcement officials. On the contrary, as we stated in our
discussion under Issue 2, in addition to Tracy's prior statement to
law enforcement officers, the evidence against Ronda includes
Ronda's own letter to Tracy and the testimony of a social worker
who observed an attempt by Ronda to influence Tracy.
Therefore, weighing the facts and circumstances in this case
with the factors set forth in Barker establishes that Ronda did not
suffer any prejudice in her defense from the delays, whether those
delays were attributable to the State or to Ronda. Accordingly, we
hold that Ronda's right to a speedy trial was not violated and the
District Court did not err in denying her motion to dismiss on
speedy trial grounds.
Issue 4.
Did the District Court have subject matter jurisdiction over
the offense of witness tampering?
Ronda contends that the crime of tampering with a witness does
not apply to the constitutionally protected relationship of a
parent and child and thus the District Court did not have subject
matter jurisdiction over this issue. Ronda raised this issue for
the first time in her reply brief to this Court. Under § 46-13-
i O i , MCA, most defenses or objections to a criminal charge that are
capable of determination without trial must be raised at or before
the omnibus hearing. Failure to raise such defenses or objections
prior to trial constitutes a waiver of the defense or objection.
However, lack of jurisdiction is a non-waivable defect and must be
notrced by the court at any time during the pendency of he
proceeding. Section 46-13-101(3j,MCA.
The State contends that although Ronda invokes the term
"subject matter jurisdiction," her challenge does not go to the
fundamental authority of a district court to adjudicate a witness
tampering case but rather to the constitutionality of applying the
witness tampering statute to her case. Citing City of Columbia
Falls v. Bennett (lggl), 247 Mont. 298, 806 P.2d 25, the State
argues that where the constitutionality of a statute is challenged
for the first time in an appellant's reply brief, it is improper
for this Court to address the issue in its opinion.
We find no merit in Ronda's argument. District Courts are
courts of general jurisdiction and have jurisdiction over felonies.
Section 3-5-302(1)(a), MCA; State v. Barnes (1988), 232 Mont. 405,
409, 758 P.2d 264, 267. We concur with the State's contention that
Ronda is attempting to argue the constitutionality of applying the
witness tampering statute to her case. Since Ronda did not raise
this issue until she filed her reply brief, she waived her right to
rarse this issue on appeal and we decline to address this issue.
Af f irmed .
We Concur:
8 &/i-J;;/
Justices
Justice Terry N. Trieweiler specially concurring in part and
dissenting in part.
I concur with the majority's disposition of Issues 1, 2,
and 4.
I dissent from the majority's conclusion that the defendant
was not denied her constitutional right to a speedy trial.
The defendant was arrested on August 20, 1992, and was not
tried until February 14, 1994--543 days later. The majority
concedes, based on our prior decisions, that a delay of nearly one
and one-half years from the date of arrest to the date of trial is
presumptively prejudicial. The majority also concedes that the
defendant timely asserted her right to a speedy trial. However,
the majority then avoids enforcement of this defendant ' s
constitutional right to a speedy trial by concluding that 278 days
of the delay is the fault of the defendant for moving to continue
a hearing while she was incarcerated out of state, and by further
concluding that the defendant has failed to show prejudice from a
nearly one and one-half year delay (apparently forgetting the
earlier presumption of prejudice).
I disagree with the majority's conclusion for two reasons:
(1) The 278 days attributed by the majority to Ronda were not, in
fact, a result of her motions. They were due to her incarceration
out of state. When the majority, in effect, held that the
defendant's time in Oregon is attributed to her for purposes of
speedy trial analysis, it completely ignored our holding in Stutev
Rohb~ns (1985), 218 Mont. 107, 116-17, 708 P.2d 227, 233-34; and
(2) when the majority concluded that the defendant had failed to
establish prejudice from the one and one-half year delay of her
trial, it completely ignored the fact that prejudice was presumed
and the State failed to in any way rebut the presumption.
The issue in Robhins was stated as follows: "The real issue,
however, is whether Robbins or the State should be charged with the
time Robbins was in Idaho resistins extradition to Montana."
Rohhins, 218 Mont. at 115, 708 P.2d at 233 (emphasis added) .
This Court held that that time during which a defendant,
incarcerated out of state resists extradition to Montana is not
attributable to the State for purposes of calculating the length of
delay. However, this Court went on to state that:
Diligent prosecution includes a timely demand for
extradition of a defendant, and extradition proceedings
are a sufficient reason for delay if the State has been
diligent. State v. Smith, supra. The right of a defendant
to resist formal extradition, however, cannot be charged
to the State when computing the length of delay for
speedy trial, if the State is acting in good faith.
Balla, supra. The right of a defendant to a speedy trial
commences when he becomes an accused. Marion, Smith, Larson,
and Ackiey, supra. The court then must acquire in
personam jurisdiction over the accused to engage in
proceedings leading to a trial. If the accused is out of
state, the State must act diligently and in good faith to
acquire jurisdiction. At the same time, the accused has
a right to resist extradition. When he does so, however,
he loses those days he resists from computation of length
of delay. When an accused does not resist, those davs
should not be weished asainst him when the State is
actins dilisentlv and in sood faith. For this reason,
inclusion of those days in computing the length of delay,
as was done in Ackiey, will no longer be the rule.
those davs an accused activelv resists extradition will
be included. Days in which the court does not or cannot,
through the State's efforts, acquire jurisdiction over an
accused will be counted against the accused and will not
be included in computing the length of delay.
Rohhins, 218 Mozt. at 116-17, 708 P.2d at 233-34 (emphasis added)
In this case, there is no evidence that the defendant ever
resisted extradition. Neither is there evidence that the State
acted diligently to seek extradition. Therefore, based on Robhim,
there is no justification for attributing to her the 222 days she
was in Oregon for purposes of deciding whether she was denied her
constitutional right to a speedy trial.
The majority circumvents the holding in Robbins by concluding
that, because the defendant moved to continue a hearing until she
could return from out of state and be personally present, the time
out of state is now attributable to her. That holding ignores the
reason for her motion, and effectively reverses our prior holding
in Robbins, without ever saying so. If her time of incarceration out
of state is assigned to the State, and if her motion was necessary
because she was incarcerated out of state, how can the delay be
attributed to her? The majority's solution is little more than a
shell game. When the 222 days erroneously attributed to the
defendant is added to the 265 days which the majority concedes is
attributable to the State, the actual period during which defendant
was denied her right to a speedy trial is 487 days.
Since the majority concedes that we have, in the past, found
a delay of 200 days to be presumptively prejudicial, a delay of
over twice that length certainly creates a presumption of
prejudice. We have recently held that where the presumption of
prejudice attaches and is not rebutted by the State, and where the
other factors from the test set forth in B a r k e ~ v .Wngo (19721, 407
U.S. 514, 530, are satisfied--as the majority concedes they are in
this case--a conclusion that the right to a speedy trlai was denied
is necessary. Slate v. Twee& i1996), 922 P.2d 1134, 1140, 53 St. Rep.
656, 661. In that case we held that:
When the delay is presumptively prejudicial, the
burden shifts to the State to rebut the presumption by
showing a reasonable explanation for the delay and
demonstrating that the defendant was not prejudiced by
the delay.
liveedy, 922 P.2d at 1138, 53 St. Rep. at 659 (citing Stale r. hfatthewc.
(1995), 271 Mont. 24, 28, 894 P.2d 285, 287).
Here, there was no reasonable explanation for a delay of 487
days. Merely asserting that the delay was institutional, rather
than by design of the prosecution, is not an adequate explanation.
As the majority acknowledges, institutional delay is attributed to
the State. It is the State's duty to bring the defendant to trial.
The State cannot sit back for nearly one and one-half years and be
satisfied that the district court has not set a trial date.
Furthermore, the State did nothing to demonstrate that the
defendant was not prejudiced by the delay. In fact, the primary
evidence which linked the defendant to witness tampering was a very
old statement made by a child to law enforcement officials. That
child repudiated the statement at the time of trial. Whether her
repudiation was due to the passage of time and failure of her
memory, or a conscious decision on her part not to deny her earlier
statement is speculative. The fact is, she was no longer available
for cross-examination, and the defendant was unable to cross-
examine the prior statements which were used as substantive
evidence against her. Whether these facts would be sufficient by
themselves to establish prejudice is irrelevant. The critical
27
point is that the State did nothing to satisfy its burden that it
demonstrate an absence of prejudice. In Tweedy we found that
failure conclusive. We held:
Moreover, given the presumptivelyprejudicialdelay,
the burden shifted to the State in this case to rebut the
presumed prejudice. ~Watthews, 894 P.2d at 287. The State
did not respond to Tweedy's motion via either a brief or
argument at the hearing. It did not present any
evidence, as required by Mutthews, to prove that Tweedy
was not prejudiced. See ~\./attheur~,
894 P.2d at 289.
. . . More importantly, the appropriate place to
respond to Tweedy's claim of prejudice was in the
District Court, not in this Court. The State could, and
should, have done so by responding to Tweedy's motion and
requesting an evidentiary hearing to rebut his claims.
It did not.
Once the burden has shifted to the State to rebut
presumed prejudice, however, it is the State's duty to
respond to a speedy trial motion and to properly raise,
for resolution by the district court, the issues related
thereto. Under the well-established principle that we
will not consider an issue raised for the first time on
appeal, the State acts at its own peril if it fails to do
so. See Weeks, 891 P.2d at 491.
In this case, the State faiied to raise either its
fact-based responses or its legal authority regarding the
sufficiency of Tweedy's assertions in the District Court.
Thus, on this record, we conclude that the State failed
to meet its burden of rebutting the presumed prejudice to
the defense as a matter of law. Consequently, we weigh
the prejudice factor in Tweedy's favor.
Tu~eedy, 922 P.2d at 1139-40, 53 St. Rep. at 660-61
For the same reasons that the charges against the defendant in
Twee& were dismissed, the charges against this defendant should
have been dismissed. She was unquestionably denied her right to a
speedy trial. Prejudice from that denial was presumed. The State
did nothing to rebut the presumption of prejudice
The greater problem with the majority opinion is that it adds
to the mish-mash of result-oriented case law from this Court with
regard to the speedy trial issue. Speedy trial case law in Montana
will soon rival our decisions that apply Rule 404(bi, M.R.Evid.,
for inconsistency.
On the one hand, we have consistently held that a delay of
more than 200 days gives rise to a presumption of prejudice. Seee.g.
State v. Woiomholt (1988), 231 Mont. 400, 402-03, 753 P.2d 330, 331
(214 days) ; Sfalev. Palmer (1986), 223 Mont. 25, 27-28, 723 P.2d 956,
958 (256 days); S1alev.Chavez (1984), 213 Mont. 434, 441-42, 691 P.2d
1365, 1370 (214 days); S f a f e v .Ackley (1982), 201 Mont. 252, 256, 653
P.2d 851, 853 (257 days). On the other hand, without regard to
that presumption, we hold defendants to the burden of proving
prejudice, as we have done in this case.
We attribute institutional delay to the State, Woinhol~, 231
Mont. at 403, 753 P.2d at 331-32, and Ackley, 201 Mont. at 216, 653
P.2d at 853-54, but then conclude that institutional delay does not
weigh as heavily against the State as intentional delay. kl/rtmhO/t,
231 Mont. at 403, 753 P.2d at 331-32; Chavez, 213 Mont. at 442, 691
P.2d at 1370. This Court has lost sight of the reasons for which
speedy trials are necessary, and has concluded that the passage of
time for one reason is less detrimental to a trial on the merits
than the passage of time for another reason.
On the one hand, we hold that it is sufficient to assert the
right to a speedy trial prior to the date of trial, Womhol~, 231
Mont. at 403, 753 P.2d at 332, Statev.Wflters (1987), 228 Mont. 490,
493, 743 P.2d 617, 620, and S i r v S e v r 1(1975), 168 Mont. 385, 390,
lie.l~uc
543 P.2d 178, 182, but then, in this case, we conclude that the
assertion of the right one week before trial does not satisfy the
obligation quite as well as if it had been asserted earlier.
Finally, we previously held that time while incarcerated out
of state would not be attributed to the defendant for purposes of
speedy trial analysis. Robhim, 218 Mont. at 116, 708 P.2d at
233-34. Now, in this case, without distinguishing our prior
holding in Rohbins, we simply conclude that if some procedural matter
is continued due to that out-of-state incarceration, the time is
attributable to the defendant.
I doubt at this point that anyone, whether it be a defense
lawyer, prosecutor, or district judge, can make sufficient sense
out of this Court's speedy trial analyses to apply them in any
practical or predictable way. This decision further confuses the
situation. For these reasons, I dissent from Issue 3 of the
majority opinfon.
Justices William E. Hunt, Sr., and W. William Leaphart join in the
foregoing concurring and dissenting opinion.