State v. Hardaway

No

No. 97-163 & 97-289

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 224

STATE OF MONTANA,

Plaintiff and Respondent,

v.

JASON HARDAWAY,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Maurice R. Colberg, Jr., Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jack E. Sands, Attorney at Law, Billings, Montana

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For Respondent:

Hon. Joseph P. Mazurek, Attorney General

Cregg W. Coughlin, Ass't Attorney General, Helena, Montana

Dennis Paxinos, Yellowstone County Attorney,

Dale Mrkich, Ass't Yellowstone County Attorney, Billings, Montana

Submitted on Briefs: January 15, 1998

Decided: September 9, 1998

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Jason Hardaway (Hardaway) appeals from the decision of the Thirteenth Judicial
District Court, Yellowstone County, denying his motion to dismiss for lack of speedy
trial, denying his motion for mistrial as a result of prejudicial comments made
during jury voir dire and, in a separate matter, denying his motion for defense costs.
We reverse and remand this matter to the District Court.

Factual and Procedural Background

¶2 Hardaway was arrested on February 22, 1995 following a high speed car chase
that led to a subsequent foot chase through a field. When the officer caught up with
Hardaway he was wearing a ladies slip, a black shirt and some jewelry. He was
carrying a pair of jeans. The officer arrested Hardaway and transported him to the
Yellowstone County Detention Facility. During an inventory search of Hardaway

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and the items in his possession, the detention officer found two small bindles
containing a white powdery substance in the right front pocket of the jeans that
Hardaway was carrying. The officer also found a bindle and a plastic baggie
containing a white powdery substance in the right watch pocket of the jeans. The
white powdery substances tested positive for methamphetamine. Although
Hardaway later denied ownership of the jeans, Hardaway had the jeans in his
possession when he was arrested and claimed the jeans from inventory to wear home
when he was released from custody.

¶3 On February 27, 1995, the State of Montana (State) charged Hardaway with
criminal possession of dangerous drugs. Hardaway appeared at the arraignment
with appointed counsel and pled not guilty to the charge. On March 23, 1995, the
District Court released Hardaway on his own recognizance. Trial on Hardaway's
drug charge was set to begin on June 27, 1995. For reasons unknown, but believed to
have been caused by the court's backlog, the case did not proceed to trial in June, but
was reset for November 6, 1995.

¶4 On November 6, 1995, the court, the prosecutor, defense counsel and the jury
assembled to proceed with the trial. Defense counsel, however, informed the court
that he could not find Hardaway. The court issued a bench warrant. Hardaway was
arrested on November 15, 1995 in Lake County on charges of burglary and theft. He
was incarcerated and served with the outstanding Yellowstone County bench
warrant. Yellowstone County charged Hardaway with bail jumping as a result of his
failure to appear for the November 6, 1995 trial.

¶5 Hardaway retained new counsel on December 19, 1995. On May 22, 1996,
Hardaway entered an Alford plea and was sentenced on the Lake County charges of
burglary and theft. Thereafter, he was transported back to Yellowstone County to
face the bail jumping and drug possession charges. The District Court set the trial on
Hardaway's drug possession charge for November 26, 1996 (643 days after his
arrest).

¶6 On October 9, 1996, Hardaway filed a motion to dismiss the drug possession
charge based on lack of speedy trial. The court held a hearing and denied
Hardaway's motion.

¶7 Hardaway's trial for bail jumping began on October 21, 1996. Hardaway called

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two out-of-town witnesses, one appeared at trial, the other appeared via telephonic
deposition. Following the presentation of the State's case, the court granted
Hardaway's motion for directed verdict of acquittal. Defense counsel requested
reimbursement for costs incurred in obtaining the out-of-town witnesses' testimony
pursuant to § 46-15-116, MCA. The District Court denied the request for costs
finding that defense counsel was retained, not court appointed and thus not eligible
to receive reimbursement for the costs. Hardaway appeals from the District Court's
decision denying his request for reimbursement (Cause Number 97-289).

¶8 On November 26, 1996, the jury was assembled for trial on Hardaway's drug
possession charge. When asked if any of the prospective jurors knew the defendant,
three members of the prospective panel revealed that they had been in court "a
month ago for the defendant earlier for something else." One of those three
prospective jurors commented that "[Hardaway] shouldn't have been doing what he
was doing to be here." This prospective juror was removed for cause. The second
prospective juror was peremptorily removed, and the third juror sat on the jury that
decided Hardaway's drug possession case. In addition, another prospective juror
stated during voir dire that she had seen an account of Hardaway's arrest on
television, that she believed he was guilty, and that she would find him guilty
regardless of the evidence presented at trial. This fourth juror was also removed for
cause. As a result of these damaging comments made in the presence of the entire
jury panel, defense counsel requested that the court inform the jury during voir dire
that Hardaway had been acquitted of the bail jumping charge. The District Court
denied Hardaway's specific request, but agreed to instruct the jurors that they were
not to consider the prior criminal charge in any way. Defense counsel moved for a
mistrial and the court denied the motion. The trial proceeded and the jury found
Hardaway guilty of the drug possession charge. Following the jury verdict,
Hardaway moved for a new trial due to the comments made during voir dire, and the
court denied the motion. Hardaway appeals from the District Court's denial of his
motion to dismiss for lack of speedy trial and denial of his motion for mistrial (Cause
Number 97-163). This Court consolidated Hardaway's two appeals. Hardaway
presents three issues on appeal:

¶9 1. Did the District Court abuse its discretion in determining that Hardaway's
speedy trial rights were not violated?

¶10 2. Did the District Court abuse its discretion in denying Hardaway's motion for a

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mistrial?

¶11 3. Did the District Court err in denying Hardaway's request for reimbursement
of costs incurred in his defense of the bail jumping charge?

I

¶12 1. Did the District Court abuse its discretion in determining that Hardaway's
speedy trial rights were not violated?

¶13 A criminal defendant is guaranteed a speedy trial by the Sixth Amendment to
the United States Constitution and Article II, Section 24 of the Montana
Constitution. In determining whether a defendant has been denied his right to a
speedy trial, this Court recently established a four-part balancing test in City of
Billings v. Bruce, 1998 MT 186, ___ P.2d ___, 55 St.Rep. 750, which loosely follows
the United States Supreme Court test set forth in Barker v. Wingo (1972), 407 U.S.
514, 92 S.Ct. 2182, 33 L.Ed.2d 101. The District Court applied the four-part Barker
test to the facts of this case and determined that Hardaway's right to a speedy trial
was not violated. We determine, however, that the District Court and the parties did
not, at the time Hardaway moved for a dismissal based on lack of speedy trial, have
the benefit of the Bruce decision. Therefore, we remand this issue to the District
Court to hold a hearing regarding Hardaway's motion to dismiss for lack of speedy
trial applying the test set forth in Bruce.

¶14 Under this Court's recently adopted speedy trial test, the District Court should
analyze four factors: 1) length of delay, 2) reason for delay, 3) assertion of the right
by defendant, and 4) prejudice to the defense. Bruce, ¶¶55-58. In remanding this
issue to the District Court, we correct the court's allocation of time under the second
factor and elaborate on the manner in which the Bruce decision is to be applied.

¶15 The second factor articulated in Bruce requires the court to consider the reasons
for the delay. In so considering, the court determines which party is responsible for
specific periods of time, then respectively allocates the total time delay between the
parties.

¶16 The District Court determined that the case would have been tried on November
6, 1995, but for Hardaway's failure to appear at trial and thus, attributed the time

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between February 22 (Hardaway's arrest) and November 6 (the second trial date) to
Hardaway. Hardaway contends that in attributing this time to him, the District
Court has effectively concluded that Hardaway waived his right to a speedy trial by
failing to appear on November 6th. Hardaway further argues that he did not appear
for trial on November 6th because his attorney did not inform him of the trial date.
Moreover, Hardaway argues that the fact that he was acquitted of the bail jumping
charge is further evidence that he should not be held accountable for the missed trial
date and subsequently held responsible for the delay between his arrest and the
November 6th trial date.

¶17 We determine that the District Court erred in attributing the time between
February 22 and November 6 (257 days) to Hardaway. Had the trial been held on
June 27th, as originally scheduled, Hardaway's right to speedy trial would have been
satisfied. It is not apparent from the record why the June 27th trial date was vacated
in favor of the November 6th setting. The District Court ventured that the resetting
of trial from June 27th to November 6th was likely the result of backlog. Therefore,
since the time delay between February 22nd to November 6th was not attributable to
Hardaway, we allocate that time to the State as institutional delay.

¶18 The District Court allocated the 198 days between November 6, 1995 and May
22, 1996 (while Hardaway was held on Lake County charges) to Hardaway due to his
failure to appear at the November 6th trial and due to the inability of Yellowstone
County to obtain jurisdiction over him while he was held in Lake County. Hardaway
argues that the State acted in bad faith during this period of time. He argues first,
that as a result of the bail jumping charge in Yellowstone County, he could not post
bond in Lake County to appear in Yellowstone County. Furthermore, when he did
appear in Yellowstone County, he was tried on the bail jumping charge before the
drug possession charge even though the drug possession charge was eighteen months
older than the bail jumping charge. We agree with the District Court that this period
of delay was the result of Hardaway's failure to appear at trial (even if he was not
informed of the date) and his subsequent arrest in Lake County. We reject
Hardaway's claim of bad faith and therefore allocate this period of delay to
Hardaway.

¶19 Finally, the District Court allocated the remaining 188 days from May 22
through Hardaway's trial on November 26 to the State. The District Court, allocating
only this 188 days to the State, determined that since the 188-day delay was not itself

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violative of Hardaway's speedy trial right and was not intentional or deliberate, the
State satisfactorily explained the reasons for the delay. As set forth above, we
disagree with the court's allocation and, instead, allocate a total of 445 days to the
State.

¶20 Pursuant to this Court's recent amendments to its speedy trial analysis, as set
forth in Bruce, ¶56, if the court determines that the State is responsible for 275 or
more days of the total delay, the State has the initial burden of demonstrating that
the defendant has not been prejudiced by the delay. The 445-day delay attributed to
the State exceeds the 275-day threshold and raises a presumption that Hardaway was
prejudiced by the delay. Thus, in accordance with Bruce, the State has the initial
burden of demonstrating a lack of prejudice.

¶21 We explained in Bruce that "[t]he State's proof should take into consideration,
but need not include, all three traditional bases for prejudice: (a) pretrial
incarceration, (b) anxiety and all of its attendant considerations, and (c) impairment
of the defense. . . . Once the State has demonstrated lack of prejudice based on one or
more of these considerations, the burden will then shift to the defendant to
demonstrate prejudice and the district court will have to weigh the evidence of each
party." Bruce, ¶56.

¶22 In stating that the State may demonstrate lack of prejudice on one or more of the
traditional bases of prejudice, we intended that the State offer proof on as many
bases as possible and that the District Court weigh that evidence to determine
whether the burden should shift to the defendant to show prejudice. We clarify that
if the State can only show lack of prejudice on one of the three traditional bases of
prejudice, it must, at a minimum, address the question of whether there has been
impairment of the defense. That is, the State must offer proof that the defense has
not been impaired by the delay in bringing the defendant to trial.

¶23 If the State satisfies its burden of demonstrating that the defendant has not been
prejudiced by the delay, the burden will shift to the defendant to show he/she has
been prejudiced. With the above correction and this clarification of the Bruce
decision, we remand this issue to the District Court to hold a hearing on Hardaway's
motion to dismiss for lack of speedy trial applying the test set forth in Bruce.

II

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¶24 2. Did the District Court abuse its discretion in denying Hardaway's motion for a
mistrial?

¶25 Hardaway moved for a mistrial during jury voir dire, and moved for a new trial
after the trial. The District Court denied both of Hardaway's motions concluding
that Hardaway received a fair and impartial trial. We recently clarified in State v.
Partin (Mont. 1997), 951 P.2d 1002, 54 St.Rep. 1474, that the district court, when
deciding whether to grant a mistrial, should determine whether the conduct in
question denies the defendant a fair and impartial trial. We further clarified that this
Court will review a district court's ruling on a motion for a mistrial to determine
whether the court abused its discretion. Partin, 951 P.2d at 1005.

¶26 In support of his motion for mistrial, Hardaway asserted that the jury panel was
poisoned by comments made by four veniremen during voir dire. Three of the
prospective jurors, S.E., D.V., and S.H., stated that they had been on Hardaway's
jury panel one month earlier for his trial on bail jumping charges and that they
recognized Hardaway and his attorney from that experience. S.E. expressed that
"[Hardaway] shouldn't have been doing what he was doing to be here . . ." and that
she believed she would be a potentially unfair juror in the drug possession case. S.E.
was removed for cause. D.V. was peremptorily challenged, and S.H. sat on the jury
that decided Hardaway's drug possession case. In addition, a fourth juror, J.D.,
stated that she had seen an account of Hardaway's arrest on television, that she
believed he was guilty and that she would find him guilty regardless of the evidence
presented at trial. J.D. also expressed that "[she] believe[d] that we've got too many
people being killed for drugs. If we put them away from drugs, we wouldn't have to
spend taxpayer's money on this [trial]. . . . [We] should just put them in jail." Shortly
before being removed for cause, J.D. further expressed her opinion that
"[Hardaway's] guilty or he wouldn't be here."

¶27 As a result of these damaging statements made in open court in the presence of
the jury panel, defense counsel requested that the District Court inform the potential
jurors that Hardaway had been acquitted of the bail jumping charges. The court
refused to so instruct the jury, but agreed to instruct the veniremen that they were
not to consider other criminal charges in any way. The District Court informed
defense counsel that it was "this instruction or nothing." Defense counsel indicated
that he preferred the instruction to nothing, but immediately moved for a mistrial.
The District Court denied the motion. The case proceeded and the jury found

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Hardaway guilty of the charges. Hardaway moved for a new trial at the conclusion of
the trial and the court denied the motion.

¶28 In State v. McMahon (1995), 271 Mont. 75, 894 P.2d 313, this Court analyzed
several cases wherein district courts had denied motions for mistrial based on juror
prejudice. We recognized "a trend that improper comments by prosecutors or
prospective jurors about the defendant or about the evidence, are not grounds for
mistrial if the judge instructs the jury to disregard the questionable comment and if
the court is satisfied that the juror can lay aside a fixed opinion and render a verdict
solely on the evidence presented." McMahon, 271 Mont. at 79, 894 P.2d at 316. In
McMahon, we held that when comments of members of the prospective jury are so
prejudicial that they have a "natural tendency" to infect the entire proceedings with
an unfairness, such prejudice can only be corrected by declaring a mistrial and
"starting anew the legal contest." McMahon, 271 Mont. at 81, 894 P.2d at 317.
However, we cautioned that our holding in McMahon should be interpreted
narrowly and reserved only for the most egregious and prejudicial prospective juror
comments. McMahon, 271 Mont. at 81, 894 P.2d at 317. We determine that this is
such a case.

¶29 Hardaway argues that, "the jury was left with the firm impression that their
Thanksgiving plans had to be interrupted because they had to hear the case of a
defendant who had just been convicted a month previously and who was identified as
obviously guilty by one prospective juror." In addition, Hardaway argues that the
cautionary instruction given by the District Court, that the jurors should not
consider other criminal charges in any way, did not defuse the incriminatory
statements made by the prospective jurors. The State asserts that Hardaway has not
shown that the jury was prejudiced by the remarks, nor has he established that the
District Court's cautionary instruction did not cure any supposed harm.

¶30 We apply the general principle, as we did in McMahon, that " 'any improper
influence which has the natural tendency to prejudice the verdict is grounds for a
mistrial.' " McMahon, 271 Mont. at 80, 894 P.2d at 317 (quoting Putro v. Baker
(1966), 147 Mont. 139, 148, 410 P.2d 717, 722). We conclude that the comments made
by the prospective jurors in the presence of the entire panel were so prejudicial that
they had a "natural tendency" to infect the proceedings with an unfairness that
could only have been corrected by an instruction from the District Court that
Hardaway had been acquitted of the bail jumping charge, thus preserving

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Hardaway's presumption of innocence, or by declaring a mistrial and starting anew
the legal contest. In the absence of such corrective action by the District Court,
Hardaway was denied a fair and impartial trial. We hold that the District Court
abused its discretion in denying Hardaway's motion for a mistrial or, in the
alternative, by failing to instruct the jury that Hardaway had been acquitted on the
bail jumping charge. Accordingly, in the event the District Court determines that
Hardaway was not denied a speedy trial, we reverse and remand this matter to the
District Court for a new trial.

III

¶31 3. Did the District Court err in denying Hardaway's request for reimbursement
of costs incurred in his defense of the bail jumping charge?

¶32 Following Hardaway's acquittal of the bail jumping charge, defense counsel
moved for reimbursement of costs incurred in procuring testimony of two out-of-
town witnesses. The first witness, Roberta Tamcke, flew from Oregon to Montana
the day before trial and appeared as a witness at the trial. The second witness,
Christopher J. Riccardi, was unavailable for trial and appeared via telephonic
deposition. Defense counsel asserted that, pursuant to § 46-15-116, MCA, he was
entitled to reimbursement of costs incurred in procuring this testimony. In support
of his claim on appeal, defense counsel represents that he was acting pro bono on
behalf of Hardaway.

¶33 The District Court determined that since defense counsel was retained, not court
appointed, he was not entitled to reimbursement. Hardaway appeals from the
District Court's denial of costs. The State moved this Court to dismiss Hardaway's
claim for costs asserting that this issue does not effect substantial rights of the
defendant and thus is not proper on appeal. Hardaway counters this argument by
asserting that this issue is linked to his constitutional right to counsel. In support,
Hardaway asserts that his court appointed counsel was providing ineffective
assistance. Hardaway contends that, although his current counsel was willing to
serve pro bono, his counsel should not be burdened with the witness costs incurred in
his defense. We deny the State's motion to dismiss and consider Hardaway's appeal
on the issue of reimbursement of costs.

¶34 The District Court, in denying reimbursement of witness costs, reasoned that §

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46-15-116, MCA, "must necessarily be read in conjunction with § 3-5-901, M.C.A."
and that, the "statute anticipates that the witness fees and expenses will be paid for
witnesses called on behalf of the prosecution but not on the behalf of privately funded
retained counsel where a defendant has not as an indigent requested court-appointed
counsel." The District Court also noted that there was no request for attendance or
subpoena of Ms. Tamcke pursuant to § 46-15-113, MCA (compelling attendance of
out-of-state witness), and that the request for reimbursement should be denied for
that reason.

¶35 The clear language of § 46-15-116, MCA, states that "[w]hen a person attends
before a judge, grand jury, or court as a witness in a criminal case upon a subpoena,
the witness shall receive the witness fee prescribed in Title 26, chapter 2, part 5. . . .
The court may determine the reasonable and necessary expenses of subpoenaed
witnesses and order the clerk of the court to pay the expenses from the appropriate
city or county treasury." Section 3-5-901, MCA, states that "[t]o the extent the
revenue is available . . . the state shall fund . . . the following district court expenses in
criminal cases only . . . witness fees and necessary expenses . . . ." We disagree with
the District Court's interpretation that the statutes apply only to court appointed
counsel or indigent defendants since the statutes impose no such requirement. The
only prerequisites that appear in the statutes are that the court has the revenue
available and that the witness be subpoenaed.

¶36 The record indicates that Ms. Tamcke voluntarily appeared for trial on October
22, 1996 and acknowledged service of the subpoena shortly before testifying on the
same day. Having been served with a subpoena prior to testifying, Ms. Tamcke
qualifies for fees and costs under § 46-15-116, MCA. Moreover, we determine that
the procedural requirements of § 46-15-113, MCA, for compelling the attendance of
an out-of-state witness do not apply to an out-of-state witness who voluntarily
appears and acknowledges service of a subpoena.

¶37 As to deposition costs, Hardaway argues that the statutes allowing costs do not
distinguish between court appointed and retained attorneys, but rather rely on the
indigency status of the defendant. Section 46-15-202(7), MCA, provides that
"whenever a deposition is taken at the instance of a defendant who is unable to bear
the expense of taking a deposition, the court shall direct that the expense . . . be paid
by the city for a municipal court proceeding or by the state for a district court
proceeding." Christopher Riccardi, also an out- of-town witness, was not available to

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appear at Hardaway's trial. As a result, defense counsel conducted a telephonic
deposition the night before trial and moved the court the next day for its admission
into evidence. The court granted the motion allowing the testimony, but subsequently
denied counsel's request for reimbursement of costs associated with procuring the
testimony. While § 46-15-202(7), MCA, does not specifically address the cost of a
telephonic deposition, we note that, in most instances, a telephonic deposition is more
cost effective than incurring travel expenses associated with conducting a deposition
in person. We hold that the costs of a telephonic deposition are within the scope of "a
deposition" under § 46-15-202(7), MCA.

¶38 The record reveals that in Cause Number 97-163, Hardaway was declared
indigent and an attorney was appointed on his behalf when he was arrested in 1995.
However, Hardaway obtained new counsel in December 1995, claiming his court
appointed attorney was rendering ineffective assistance. In addition, the District
Court, based on Hardaway's showing of indigency, allowed the preparation of
transcripts for purposes of appeal without cost to Hardaway, thereby supporting
Hardaway's claim that his indigency status had continued throughout the time that
counsel requested reimbursement. We agree with Hardaway that a defendant's
entitlement to reimbursement for deposition costs under § 46-15-202(7), MCA, does
not hinge on whether the defendant's counsel is court appointed or retained; rather,
the determining factor is whether the defendant is indigent and thus unable to bear
the expense. We remand this issue to the District Court for an award of costs
consistent with this opinion.

¶39 In conclusion, we remand this matter to the District Court for the following
purposes: First, the District Court shall conduct a hearing on Hardaway's motion to
dismiss for lack of speedy trial. In conducting such hearing, the District Court shall
adhere to the corrections and clarifications set forth in this opinion. In addition, the
District Court shall apply the speedy trial test as recently set forth by this Court in
City of Billings v. Bruce, 1998 MT 186, ___ P.2d ___, 55 St.Rep. 750. Second, if the
court determines Hardaway was denied a speedy trial, the court shall dismiss the
drug possession charge against Hardaway. In the alternative, if the court determines
that Hardaway's constitutional right to a speedy trial was not denied, the court shall
promptly set this matter for a retrial based on this Court's holding on Issue II.
Finally, the District Court shall hold a hearing to determine the amount of
Hardaway's costs in accordance with this Court's resolution of Issue III. Reversed
and remanded.

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/S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ JIM REGNIER

Justice Terry N. Trieweiler concurring in part and dissenting in part.

¶40 I concur with parts II and III of the majority opinion related to Jason
Hardaway's motion for mistrial and reimbursement for costs incurred in his defense
against the bail jumping charge. I also concur with the majority's decision to remand
the speedy trial issue to the District Court for further consideration based on our
decision in City of Billings v. Bruce, 1998 MT 186, 55 St. Rep. 750. However, I do not
agree with all that is said in the majority's speedy trial analysis.

¶41 Specifically, I disagree with the majority's calculation of the number of days
attributable to the State. The majority concludes, and I agree, that the 257 days of
delay from the date on which Hardaway was charged until his November 6, 1995,
trial date is attributed to the State. The majority also concludes, and I agree, that the
188 days after Hardaway's return to Yellowstone County until his final trial date is
attributed to the State. However, the majority has arbitrarily concluded, without
explanation, that the time from November 6, 1995 (the date of the trial at which
Hardaway did not appear), until May 22, 1996 (the date on which Hardaway was
returned to Billings following a guilty plea to other charges in Lake County), is
attributed to Hardaway. The majority makes this conclusion in spite of the fact that
Hardaway denied knowledge of the November 6 trial date; a jury apparently agreed
that he had no knowledge of the November 6 trial date; and, whether or not he had
knowledge of that trial date, he was arrested in Lake County on November 15, 1995,
served with the outstanding Yellowstone County bench warrant, and could have been
returned to Yellowstone County for trial at any time thereafter. There is no
explanation of why the time from November 15, 1995, to May 22, 1996, is any less

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attributable to the State as institutional delay than the time from May 22, 1996, to
November 26, 1996. I conclude that it is attributable to the State and, therefore, that
the total delay which should be attributed to the State in this case is 633 days, rather
than the 445 days attributed by the majority. Therefore, even though the delay was
institutional, rather than intentional, I believe that a delay of that length should
weigh heavily against the State. However, whether the delay is sufficient to require
dismissal of the charges against Hardaway will depend on further analysis consistent
with the Bruce decision.

¶42 For these reasons, I concur with the result of the majority opinion, but not with
all that is said therein.

/S/ TERRY N. TRIEWEILER

Justice William E. Hunt, Sr., joins in the foregoing concurring and dissenting opinion.

/S/ WILLIAM E. HUNT, SR.

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