NO. 95-046
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
ROBERT BRUCE LANE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted 0 . Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Patrick D. Sherlock, Sherlock and Nardi, Kalispell,
Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Barbara C.
Harris, Assistant Attorney General, Helena, Montana;
Thomas J. Esch, Flathead County Attorney, Valerie D.
Wilson, Deputy Flathead County Attorney, Kalispell,
Montana
Submitted on Briefs: June 13, 1996
Decided: November 14, 1996
Filed:
Justice James C. Nelson delivered the Opinion of the Court
Robert Bruce Lane (Robert) appeals his conviction in the
District Court of the Eleventh Judicial District, Flathead County,
of one count of forgery, a felony.
We address the following issues on appeal:
1. Did the District Court err in denying Robert's motion to
dismiss for lack of a speedy trial?
2. Was Robert's right to confront witnesses violated by the
procedure used by the State in interviewing witnesses prior to
trial?
3. Was there sufficient evidence to support the jury's
verdict finding Robert guilty of one count of forgery?
Factual and Procedural Background
On April 14, 1994, Robert was charged by complaint with two
counts of forgery pursuant to 5 45-6-325,MCA. The charges stemmed
from two incidents where Robert allegedly forged his wife's
signature.
Robert and Sydney Island (Sydney) were married on June 18,
1992. Shortly after their marriage, Robert and Sydney obtained a
residential loan from the Whitefish Credit Union. On May 21, 1993,
Robert and Sydney obtained a second loan from the credit union, to
help Robert start a home inspection business.
The first count of forgery related to a third loan with the
credit: union. On November 4, 1993, Robert went to Whitefish Credit
Union to obtain a loan ostensibly to pay off property taxes on the
family home and to pay off the balance of the second loan. Robert
2
took the loan application home to get Sydney's signature. When the
l o a n application was returned to the credit union, it contained the
signature "Sydney I. Lane.
The amount of this third loan was $3,557.60. After paying off
the second loan and the costs of obtaining this third loan, Robert
received $1,529.99, Sydney later stated that she was unaware of
this loan and that she did not sign the loan application. She
contended that Robert forged her signature on the loan application.
The second count of forgery related to a draft issued by AVCO
Financial Services (AVCO) to IfSydney L. Island." Sydney had
previously purchased appliances for the household through AVCO. It
is AVCO's policy to periodically send "express checks" to customers
in good standing. These checks are accompanied by a letter
explaining the terms of the loan undertaken when the person to whom
the check was made out cashes the check.
AVCO sent one such check for $1,500 to Sydney in May 1993.
This check was cashed at the Whitefish Credit Union on May 28,
1993. A deposit of $400 was made to Robert and Sydney's joint
account at the credit union and $1,100 was given to Robert in cash.
Sydney later claimed that she had never seen the AVCO check and
that she had no knowledge of the loan vntil the end of March 1994,
when she found, i n a drawer i n t h e garage, notices of late payments
from AVCO. Sydney claimed that even though her name appeared on
the back of the AVCO check as the endorser, she did not sign the
check, nor did she authorize anyone else to sign it on her behalf.
She claimed that Robert forged her signature on the check.
Robert was arrested on the forgery charges on April 15, 1994.
A preliminary hearing was set for May 11, 1994, and the case was
bound over for trial. Robert was arraigned on June 30, 1994, at
which time he pleaded not guilty. At his arraignment, the District
Court set the omnibus hearing for August 11, 1994, and the trial
for October 11, 1994. Robert did not object when the court set
October 11, as the trial date.
On October 6 , 1994, the District Court continued the trial for
one week. Robert subsequently filed a motion to dismiss for lack
of a speedy trial. This motion was heard and denied on October 12,
1994. A trial by jury was held on October 18 and 19, 1994, and
Robert was found guilty of one count of forgery, a felony, relating
to the AVCO check. At the November 29, 1994 sentencing hearing,
Robert was sentenced to twenty years in Montana State Prison with
five years suspended.
Issue 1
Did the District Court err in denying Robert's motion to
dismiss for lack of a speedy trial?
Robert was arrested on April 15, 1994, and incarcerated until
his trial on October 18, 1994, a period of 186 days. On October
11, 1994, he filed a motion to dismiss for lack of a speedy trial
which was subsequently denied by the District Court.
The sixth Amendment to the United 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 (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33
L.~d.2d101, 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. 1996), 919 P.2d 376, 381-82, 53
St.Rep. 534, 536 (citing State v. Matthews (1995), 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 (l994), 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 P.2d at 382.
Robert was arrested on April 15, 1994, and trial was held on
October 18, 1994, a delay of 186 days' We have previously stated
that a delay of over 200 days will trigger further analysis.
Collier, 919 P.2d at 382. However, a lesser period also may be
presumptively prejudicial depending on the facts of each case.
State v. Stewart (l994), 266 Mont. 525, 529, 881 P.2d 629, 632
(citing State v. Bartnes (1988), 234 Mont. 522, 527, 764 P.2d 1271,
1275) . Indeed, in Bartnes, we determined that a 175-day delay,
when combined with the circumstances of the case, necessitated
review of the remaining factors. Here, while the 186-day delay is
not presumptively prejudicial on a stand-alone basis we conclude
that it is presumptively prejudicial when combined with the fact
that Lane was incarcerated for the entire period. Thus, we must
consider the remaining three factors. Because of the presumption
of prejudice, the State has the burden of providing a reasonable
explanation for the delay, and for showing that Lane was not
prejudiced by the delay. Matthews, 894 P.2d at 287.
The second factor, reason for the delay, requires us to
allocate portions of the overall delay to the party responsible for
causing that particular delay. In this case, neither Robert nor
the State moved to continue the trial; the only continuance was at
the behest of the District Court. Robe.rt concedes that the 186-day
delay in this case was institutional delay caused by the court's
case load. Institutional delay, though charged against the State,
weighs less heavily than intentional delay. State v. Eould (1995),
273 Mont. 207, 216, 902 P.2d 532, 538.
The third factor, assertion of the right by the defendant, was
satisfied when Robert moved to dismiss on speedy trial grounds
prior to trial. However, by filing his motion to dismiss only one
week before trial was to commence, Robert 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, 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, Robert did n o t object t o t h e Octobex 1 1 t h trial d a t e p r i o r to
filing his motion to dismiss.
The fourth factor, prejudice to the defendant, 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 interests is the most critical. Collier, 919 P.2d at 383.
First, Robert was incarcerated for the full 186 days, However,
his incarceration was in part a result of charges in Jefferson
County. In fact, Robert was held in the Jefferson County Jail
awaiting trial on charges there until a few days before his trial
on the Flathead County charges, This Court has previously held
that where a defendant is incarcerated on separate charges, there
is no prejudice resulting from pretrial incarceration in the case
at hand. Gould, 902 P.2d at 539 (citing State v. Hembd (1992), 254
Mont. 407, 414, 838 P.2d 412, 416) . ' Under these circumstances,
Robert's incarceration was neither oppressive nor prejudicial.
Second, Robert contends that knowing he had lost his job and
thus could not continue monthly payments on his bills was cause for
him to suffer from anxiety and concern. However, t h i s Court should
not presume prejudice in the absence of anxiety and concern which
exceeds rhat inherent in being charged with a crime. State v.
Moore (19941, 2 6 8 Mont. 20, 69, 885 P.2d 457, 487-88 (overruled on
other grounds.) Here, Robert would have been in custody in any
event because of the 3efferson ~ o u n t charges.
~' His inability to
pay his bills is not sufficient evidence of anxiety and concern to
be prejudicial to his defense.
Third, Robert contends his defense was impaired by the delay
in this case because the witnesses who testified "could" have been
affected by the delay. However, Robert presents no evidence to
support his assertions that the witnesses' memories have dimmed or
that evidence was lost.
Therefore, weighing the facts and circumstances in this case
with the factors set forth in Barker establishes that Robert did
not suffer any prejudice in his defense from the delay.
Accordingly, we hold that Robert's right to a speedy trial was not
violated and the District Court did not err in denying his motion
to dismiss on speedy trial grounds.
Issue 2
Was Robert's right to confront witnesses violated by the
procedure used by the State in interviewing witnesses prior to
trial?
On October 12, 1994, following the District Court's denial of
Robert's motion to dismiss, the prosecutor and defense counsel
discussed witness interviews. The prosecutor agreed to have the
witnesses available for interviews at the prosecutor's office.
Arrangements for the times of these interviews was set out in a
letter, dated October 13, 1994, from the prosecutor to defense
counsel. The letter stated that three of the witnesses were
available the following day for interviews and the fourth witness
was available the following Monday.
When defense counsel arrived for the interviews, he had with
him a court reporter. He asserted that the interviews were
actually depositions and requested that Robert be allowed to be
present. The prosecutor refused to have Robert brought from the
jail for the interviews.
Robert contends that it was error for the State not to ensure
his presence at the witness interviews. He argues that under § 46-
15-202(5), MCA, a defendant held in custody must be allowed to be
present at all depositions unless he has waived his right in
writing.
The pretrial interviews in this case were not depositions as
contemplated by Title 46, Chapter 15, part 2, of the Montana Code.
Section 46-15-201, MCA, provides in pertinent part:
When depositions may be taken. (1) In district or
municipal court cases, a deposition may be taken if it
appears that a prospective witness:
(a) is likely to be either unable to attend or
otherwise prevented from attending a trial or hearing;
(b) is likely to be absent from the state at the time of
the trial or hearing; or
(c) is unwilling to provide relevant information to a
requesting party and the witness's testimony is material and
necessary in order to prevent a failure of justice. The court
shall, upon motion of any party and proper notice, order that
the testimony of the witness be taken by deposition and that
any designated books, papers, documents, or tangible objects,
not privileged, be introduced at the time the deposition is
taken.
None of the situations envisioned by this statute applied in the
case before us. There was no showing on the record that a
deposition was authorized because the prospective witness was
unable to attend or otherwise prevented from attending the trial,
was likely to be absent from the state at the time of the trial, or
was unwilling to provide relevant information to defense counsel.
Thus, notwithstanding that defense counsel brought a court reporter
to record the proceedings, the pretrial interviews were merely
interviews and not depositions. Furthermore, this Court has
previously s t a t e d t h a t :
[ T l h e right of a defendant to confront his accusers is
not equivalent to a constitutionally compelled rule of
pretrial discovery. Rather, the right of confrontation
is a trial right, guaranteeing an opportunity for
effective cross-examination. See Pennsylvania v.
~itchie, 8 0 U.S. 39, 107 S.Ct. 989, 94 L.E.2d 40 (1987).
9
State v. Reynolds (lggO), 243 Mont. 1, 7 - 8 , 792 P.2d 1111, 1115
(quoting People v. Exline (Co1o.App. 1 9 8 8 ) , 775 P.2d 48, 49).
In addition, even if one of the situations contemplated by
§ 46-15-201(1), MCA, were applicable in this case, there was no
motion made to the court requesting that depositions be taken, nor
was there any order of the court that the testimony be taken by
deposition. Section 46-15-201 ( c ) , MCA.
(1) Moreover, defense
counsel did not provide written notice of the time and place for
taking the deposition^^^ as set forth in § 46-15-202(1),MCA, nor
did defense counsel notify the officer having custody of Robert of
the time and place set for the l'dep~sitions~~ required under
as §
46-15-202 5 ) , MCA.
(
Accordingly, we hold that Robert had no legal right to be
present at the pretrial interviews and that his constitutional
10
right to confront witnesses was not violated.
Issue 3
Was there sufficient evidence to support the jury's verdict
finding Robert guilty of one count of forgery?
Robert contends that the verdicts on the two counts of forgery
are inconsistent and that, as a matter of law, since he was found
. not guilty on Count I, he must also be found not guilty on Count
11, as the proof for both counts is the same. Robert also contends
that there was no evidence presented at trial that the AVCO draft
was signed by him or that he intended to defraud AVCO. He argues
that the only testimony against him is that of Sydney who filed a
petition to dissolve their marriage shortly after accusing him of
the forgeries.
This Court reviews a claim of sufficiency of the evidence to
determine whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. State v. Leyba (1996), 915 P.2d 794, 798, 53 St.Rep. 7, 10
(citing State v. Arlington (1994), 265 Mont. 127, 146, 875 P.2d
307, 318).
Robert's argument that the verdicts are inconsistent because
the proof as to Count I is the same as the proof as to Count 11, is
without merit. Count I involved the loan application presented to
Whitefish Credit Union in November 1993. Testimony regarding this
transaction was given by the Whitefish Credit Union loan officer
who handled the loan. Count I1 involved a check from AVCO
presented to Whitefish Credit Union in May 1993. Testimony
regarding this transaction was given by the manager of AVCO and by
the Whitefish Credit Union teller that processed the check. Thus,
contrary to Robert's contentions, the proof on each count was not
the same.
Likewise, Robert's contention that the evidence presented at
trial regarding the AVCO check was insufficient for a conviction of
forgery, is also without merit. The manager of AVCO testified that
. a check for $1,500 was mailed to Sydney and was subsequently
cashed. Sydney testified that the signature endorsing the AVCO
check was not hers. The Whitefish Credit Union teller who cashed
the AVCO check testified that she was sure it was Robert who
presented the check to her to cash because his was the last
signature on the back of the check below Sydney's purported
signature. The teller stated that she knew Robert because she had
seen him regularly during the previous two years when he came to
the credit union to transact business
Montana's forgery statute provides, in pertinent part:
(1) A person commits the offense of forgery when with
purpose to defraud the person knowingly:
. . .
(b) issues or delivers the document or other object
knowing it to have been thus made or altered;
. . .
(2) A purpose to defraud means the purpose of
causing another to assume, create, transfer, alter, or
terminate any right, obligation, or power with reference
to any person or property.
Section 45-6-325, MCA (emphasis added). Thus the State was not
required to prove that Robert actually signed the check, only that
he delivered it to the Whitefish Credit Union knowing that it had
not been signed by Sydney. Consequently, after viewing the
evidence in the light most favorable to the prosecution, we
conclude that any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
Accordingly, we hold that there was sufficient evidence to
support the jury's verdict finding Robert guilty of forging the
AVCO check.
Af f irrned.
We Concur: A