No. 96-176
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Big Horn,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James L. Vogel, Hardin, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Micheal
Wellenstein, Assistant Attorney General, Helena,
Montana; Christine Cooke, Big Horn County Attorney,
Hardin, Montana
Submitted on Briefs: October 17, 1996
~ ~ ~ i d ~ d : 7, 1996
November
Filed: "-)
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Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Appellant Max Small (Small) appeals the decision of the
Thirteenth Judicial District Court, Big Horn County, denying his
motion to dismiss a charge of felony assault based on the lack of
a speedy trial. We reverse and remand with instructions.
On July 25, 1994, the State charged Small with one count of
felony assault. Small pled not guilty to the charge at his
arraignment and was released on his own recognizance. The District
Court scheduled a trial in the matter for November 14, 1994.
However, on November 14, 1994, the State moved to continue the
trial date on the grounds that the parties had worked out an
,agreement in the case but that the necessary paperwork had not yet
been completed.
On June 27, 1995, the District Court reset the trial for
August 15, 1995, but the trial did not take place on that date. On
August 25, 1995, the District Court rescheduled the trial for
November 7, 1995. On September 7, 1995, the District Court again
vacated the existing trial date and rebet the trial, this time for
December 5, 1995.
On November 30, 1995, Small moved to dismiss the charge for
lack of a speedy trial. The issue was briefed and argued before
the District Court, which denied the motion. At that time, Small
agreed to enter into a plea bargain by which he would plead guilty
to a reduced charge of misdemeanor assault. Until this plea
bargain, no agreement regarding the disposition of the case was
ever reached by the parties although extensive discussions
2
regarding the matter apparently took.place. When accepting the
plea bargain, Small specifically reserved his right to appeal the
ruling on his motion to dismiss for lack of a speedy trial. ~t is
that issue we decide today.
The sole issue raised on appeal is whether the District Court
erred by denying Small's motion to dismiss for lack of a speedy
trial.
The right to a speedy trial in a criminal prosecution is
guaranteed by both the Sixth Amendment to the United States
Constitution and by Article 11, Section 24 of the Montana
Constitution. State v. Hagberg (Mont. 1996), 920 P.2d 86, 91, 53
St .Rep. 528, 531 (citing State v. Thompson (1993), 263 Mont. 17,
31, 865 P.2d 1125, 1134). A speedy trial claim is a question of
constitutional law, and we review questions of law de novo to
determine whether the court's interpretation of the law is correct.
Haqberq, 920 P.2d at 91 (citing State v. Cassidy (1978), 176 Mont.
385, 388, 578 P.2d 735, 737; Carbon County v. Union Reserve Coal
C o . (1995), 271 Mont. 459, 469, 898 P.2d 680, 686; and Steer, Inc.
v. Dept. of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601,
603).
The United States Supreme Court has established a four-part
test to determine whether a defendant's right to a speedy trial has
been violated. See Barker v. Wingo (1972), 407 U.S. 514, 530, 92
S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117. This Court adopted the
Barker test in State ex rel. Briceno v. District Court (1977), 173
Mont. 516, 518, 568 P.2d 162, 163-64. As this Court has noted
,repeatedly, the Barker test requires the trial court and the
appellate court to consider: (1) the length of the delay; (2) the
reason for the delay; (3) the defendant's assertion of the right;
and (4) the prejudice to the defendant. See, generally, State v.
Gould (1995), 273 Mont. 207, 902 P.2d 532; State v. Collier (Mont.
1996), 919 P.2d 376, 53 St.Rep. 534; Hasberq, 920 P.2d 86; State
v. Atkins (Mont. 19961, 920 P.2d 481, 53 St.Rep. 561; and State v.
Tweedy (Mont. 1996), 922 P.2d 1134, 53 St.Rep. 656.
1. Lensth of delav.
If the length of the delay is not long enough to be
presumptively prejudicial, the full speedy trial analysis is not
triggered and the court need not consider the remaining three
components of the Barker test. If, however, the delay is of such
duration that is presumptively prejudicial, the burden shifts to
the State to rebut the presumption of prejudice by providing a
reasonable explanation for the delay and by showing the defendant
was not prejudiced thereby. Atkins, 920 P.2d at 483 (citations
omitted).
In this case, the length of the delay from Small's arrest to
his ultimate trial date was 511 days. The State concedes that this
is a sufficient amount of time to trigger the full speedy trial
analysis and to give rise to a rebuttable presumption that the
delay prejudiced Small.
2. The reason for the delav.
Under the second factor of the Barker test, the reviewing
court must allocate responsibility for the delay between the
defendant and the State. Since the 511 days in this case supports
a finding that the delay was presumptively prejudicial, the burden
shifts to the State to rebut that presumption by showing a
reasonable explanation for the delay and by demonstrating that the
defendant was not prejudiced thereby. Tweedy, 922 P.2d at 1138.
The first delay, of 125 days, was the span of time between
Small's arrest and the initial trial date set by the District
Court. The State concedes that it is responsible for this first
delay, but contends the delay was institutional in nature,
generated only by the District Court's calendar and its
determination of when the trial could be held. We agree.
Institutional delay is weighed less heavily against the State than
intentional delay. Tweedy, 922 P.2d at 1138 (citing State v. Weeks
(l995), 270 Mont. 63, 891 P.2d 477). Obviously, however, such
delay cannot be blamed on the defendant.
The second delay, of 274 days, occurred when the State moved
to vacate the first trial date and did not reschedule the trial for
over nine months. The State, however, contends that this delay
should not be wholly apportioned to it, but that Small should be
considered responsible for some portion of this time.
The State says it vacated the original trial date because "the
parties [had] reached an agreement but [had] yet to finalize the
paperwork." Small, too, acknowledges that a deferred prosecution
agreement was discussed. However, no such agreement was ever
finalized.
The State raises a similar argument for the third and fourth
delays (112 days collectively). It contends that Small must be
allotted some part if these delays as well because they was caused,
at least in part, by the State's understanding that he would come
in during that time and plead to a reduced charge of misdemeanor
assault in order to dispose of the case. The State contends that
this arrangement "gave the State the impression that there would be
no trial and thus no speedy trial problem." The State further
contends that Small must be held accountable for at least part of
these delays because the State's counsel "was under the impression
Small was going to plead guilty to the misdemeanor charge of
domestic abuse and he simply failed to do so month after month."
Again, no such agreement was ever concluded.
Essentially, the State argues that ongoing negotiations,
whether they be for deferred prosecution or a plea bargain, somehow
relieve it of its duty to bring defendants to trial in a timely
fashion. However, the State fails to cite a single case which
would support this proposition. In >act, to rule as the State
urges would be to compel a criminal defendant to try to choose the
lesser of two evils. He could pursue negotiations with the State
at the expense of his constitutional right to a speedy trial, or he
could preserve the right to a speedy trial by refusing to engage in
negotiations. The law does not require such a choice.
This Court has stated that " [ilt has never been incumbent upon
a defendant to assist the State in his own prosecution." State v.
Fuller (Mont. 19961, 915 P.2d 809, 816, St.Rep. 325, 329. On the
contrary, "as a general rule, it is the State's duty to ensure that
a criminal case is diligently prosecuted; the defendant has no duty
to bring himself to trial. " Tweedv, 922 P.2d at 1137. When, as in
this case, a plea agreement is not completed, the State retains the
duty to proceed as it sees fits, without the assistance of the
defendant. If, instead, the State allows the case to languish, the
defendant will not be faulted for it. Therefore, all of the
second, third and fourth delays also must be charged to the State.
The State, however, also argues that even if it is deemed
responsible for the second, third, and fourth delays, they should
nevertheless be considered institutional delay and, therefore,
weigh less heavily upon the State. -While the third and fourth
delays may be construed as institutional, the second cannot.
Institutional delay is delay which is caused by circumstances
largely beyond the control of either the defendant or the State.
It most often will be caused by crowded court dockets and the
corresponding difficulties in setting trial dates. Tweedy, 922
P.2d at 1138. The second delay in this case was not caused by such
unavoidable scheduling problems. Instead, the State relied on a
proposed agreement which never came to fruition, and simply allowed
the case to rest for in excess of 270 days. We will not construe
such inaction as institutional delay. The third and fourth delays,
however, were caused when the District .Court, apparently of its own
initiative, twice rescheduled the trial. These delays will
therefore be deemed institutional.
In sum, of the overall delay of 511 days, 274 days are charged
to the State outright and 237 are charged to the State but
qualified as institutional in nature. None of the delay is
attributable to Small.
3. The assertion of the risht.
The third Barker factor requires that a defendant assert the
right to a speedy trial. " [I]f the defendant has moved to dismiss
before trial, he has fulfilled the requirement of asserting his
constitutional right to a speedy trial." Tweedv, 922 P.2d at 1139
(quoting State v. Britton (lP84), 213 Mont. 155, 161, 689 P.2d
1256, 1260). Here, Small moved to dismiss before the matter was
brought to trial and thereby asserted his right to a speedy trial
in a timely fashion.
While acknowledging that case law supports Small's assertion
that he fulfilled the third ~ a r k e rfactor by moving to dismiss
before trial, the State nevertheless argues that his assertion of
the right was timely because "Small's pursuit of the plea
agreement and his delays in entering a plea show that he was not
interested in a speedy trial." Aside from being directly
contradicted by the relevant case law, this assertion is merely a
reargument of the State's contention that Small was somehow
required to choose between pursuing a possible plea agreement and
preserving his right to a speedy trial, a contention this Court
expressly rejects.
4. Prejudice to the defendant.
The fourth factor of the Barker test is whether the defendant
was prejudiced by the delay. In determining this, the evaluating
court must assess the impact of the delay on the following
interests: (1) the prevention of oppressive pretrial incarceration;
(2) the minimization of the defendant's anxiety and concern; and
(3) the limitation of impairment of the defense. Atkins, 920 P.2d
at 483 (citing Gould, 902 P.2d at 538).
In this case, it is conceded that Small suffered no anxiety
attributable to incarceration simply because he was never
incarcerated for any length of time. Nor did he credibly allege
that the delay had impaired his ability to present an effective
defense .
Small does allege, however, that the eighteen-month delay has
caused him to suffer substantial anxiety and concern. In
particular, Small points out that the victim in this case is his
wife and that the witness against him is his son. Small and his
wife have reconciled in the time since the assault, and Small
claims the prospect that his wife and son ultimately may have to
testify against him has impaired their collective ability to
function as a family again. Further, Small claims that the pending
felony charges have made him a subject of ridicule in his community
and have adversely affected his business.
The State argues that these allegations hardly demonstrate the
prejudice necessary to justify dismissing the charge. The State
also points out that this Court has noted that "a certain amount of
anxiety and concern is inherent in being charged with a crime and
that the existence of anxiety and emotional distress is notoriously
difficult to prove." State v. Thompson (1993), 263 Mont. 17, 33,
865 P.2d 1125, 1135.
The prejudice asserted was recognized by the District Court,
but it nevertheless agreed that the prejudice did not rise to a
level sufficient to grant Small ' s .motion to dismiss. This
determination, however, reflects only consideration of the fourth
Barker factor. Nowhere in the transcript or in the District
Court's order is there any indication that the other three mandated
Barker factors were also considered. In particular, the District
Court did not allocate the delay between Small and the State. Nor,
' apparently, did it factor in the State's responsibility for causing
the delay before making its decision.
The delay in this case was inordinately long (511 days). This
entire delay must be attributed to the State, and less than half of
it may be considered institutional in nature. Small asserted
prejudice which the State could not contravene. After considering
all the Barker factors, we hold that the District Court erred by
refusing to dismiss the charge for lack of a speedy trial.
The judgment of the District Court is reversed, and the case
is remanded with orders that the charge against the defendant be
dismissed. f
Justice