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No. 97-471
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 212
STATE OF MONTANA,
Plaintiff and Respondent,
v.
GREG THOMAS PRICE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
Honorable Kenneth R. Neill, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Robert G. McCarthy, Attorney at Law, Butte, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Micheal Wellenstein,
Assistant Attorney General, Helena, Montana
Lisa Swan Semansky, Luinstra and Semansky, Great Falls, Montana
Submitted on Briefs: July 19, 2001
Decided: October 25, 2001
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Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 On April 3, 1997, Greg Price was convicted of driving under the influence of alcohol
and/or drugs and resisting arrest in the District Court for the Eighth Judicial District in
Cascade County. Prior to trial, Price filed a motion to dismiss for lack of speedy trial. The
District Court denied the motion to dismiss, from which Price appeals. We affirm the
judgment of the District Court.
¶2 The sole issue on appeal is: Did the District Court err by denying Price's motion to
dismiss for failure to provide him with a speedy trial?
FACTUAL BACKGROUND
¶3 On July 29, 1994, Greg Price was convicted in Great Falls City Court of driving under
the influence of alcohol and/or drugs in violation of § 61-8-401(1)(a), MCA (1993), and
resisting arrest in violation of § 45-7-301(1), MCA (1993). He filed a notice of appeal in
the Eighth Judicial District Court of Cascade County on August 12, 1994. The District
Court ruled the notice of appeal was untimely and dismissed his appeal.
¶4 Price then appealed to this Court. We reversed, holding that Price's appeal to the
District Court was timely filed and remanded the cause to the District Court for trial. State
v. Price (1995), 271 Mont. 409, 897 P.2d 1084. Remittitur was filed in the District Court
on July 13, 1995, and on September 18, 1995, the State filed a motion for the District
Court to set a non-jury trial in the case. The District Court set a non-jury trial for
December 20, 1995.
¶5 On December 5, 1995, Price filed a pro se motion requesting a jury trial; the motion
was accompanied by a letter stating his attorney had withdrawn. The following day,
Price's attorney filed a motion withdrawing as counsel of record with the consent of Price.
On December 8, 1995, the District Court vacated the bench trial set for December 20,
1995, but scheduled a hearing on Price's motion requesting a jury trial for that date. Price
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filed his brief in support of his motion, and the State filed a consent to Price's request for a
jury trial. On December 22, 1995, the District Court issued an order granting Price's
motion for a jury trial and set a jury trial for March 5, 1996.
¶6 The State and Price then stipulated to a request that the District Court vacate the March
trial date, because the State had a calendaring conflict with the March 5, 1996, trial date.
The District Court vacated the trial date and rescheduled the trial for April 30, 1996. On
April 9, 1996, the District Court vacated that trial date and reset the trial for September 24,
1996, due to a conflict in the District Court's calendar.
¶7 On September 9, 1996, Price filed a motion for an order compelling the deposition of
one of the State's witnesses and requesting postponement of the September trial date. The
District Court granted Price's motion to vacate the trial date and reset the trial for February
19, 1997. On February 18, 1997, the District Court filed an order vacating the trial date,
due to another conflict in the District Court's calendar. The District Court reset the trial for
April 1, 1997.
¶8 On March 26, 1997, Price filed a motion to dismiss for lack of a speedy trial and
supporting brief, and the State thereafter filed a responsive brief. On April 1, 1997, prior
to trial, the District Court conducted a hearing on the motion and received oral argument,
wherein the parties referenced facts and law in support of their positions. The District
Court denied Price's motion and proceeded to trial. After a three-day trial, a jury found
Price guilty of driving under the influence of alcohol and/or drugs but could not reach a
verdict on the charge of resisting arrest. The State later moved to dismiss the charge of
resisting arrest. Price now appeals the denial of his motion to dismiss for lack of a speedy
trial.
¶9 Did the District Court err by denying Price's motion to dismiss for failure to provide
him with a speedy trial?
DISCUSSION
¶10 Whether a defendant has been denied a speedy trial constitutes a question of
constitutional law. City of Billings v. Bruce, 1998 MT 186, ¶ 18, 290 Mont. 148, ¶ 18, 965
P.2d 866, ¶ 18; see also State v. Small (1996), 279 Mont. 113, 116, 926 P.2d 1376, 1378.
We review a district court's conclusions of law to determine whether its interpretation of
the law is correct. Bruce, ¶ 18; see also State v. Kipp, 1999 MT 197, ¶ 7, 295 Mont. 399, ¶
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7, 984 P.2d 733, ¶ 7; Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459,
469, 898 P.2d 680, 686.
¶11 The Sixth Amendment to the United States Constitution and Article II, Section 24, of
the Montana Constitution guarantee a criminal defendant's right to a speedy trial. The
United States Supreme Court established four factors to be considered when analyzing a
claim that speedy trial was denied in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182,
33 L.Ed.2d 101. The four factors established in Barker and adopted by this Court in Bruce
are: (1) the length of delay; (2) the reason for the delay; (3) the defendant's timely
assertion of his right to a speedy trial; and (4) the prejudice to the defense caused by the
delay. Barker, 407 U.S. at 532, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; see also Bruce, ¶ 19.
Prejudice to the defendant can be established based on any of the following factors: (1)
pretrial incarceration; (2) anxiety and concern to the defendant; (3) impairment of the
defense. Bruce, ¶ 19.
¶12 The District Court rendered its decision on Price's speedy trial motion approximately
one year prior to this Court's decision in Bruce. However, both parties argue that the four
factors in the Barker/Bruce test provide the proper basis for determination of Price's
speedy trial claim.
Length of Delay
¶13 The first consideration is the length of delay from the time charges are filed until the
defendant's trial. Further speedy trial analysis is triggered if the length of delay is 200 days
or longer. Bruce, ¶ 55. When the case involves a trial after an appeal from this Court, the
length of delay is measured from the time remittitur is filed in the District Court until the
trial date. State v. Stewart (1995), 266 Mont. 525, 530, 881 P.2d 629, 632. Here, remittitur
was filed in the District Court on July 13, 1995, and Price's trial date was April 1, 1997.
Although the District Court incorrectly concluded that the length of delay was 650 days,
the correct length of 628 days renders further speedy trial analysis necessary.
Reason for Delay
¶14 The second consideration is the reason for the delay. In considering the reasons for
delay, the court must determine which party is responsible for specific periods of delay,
allocating the total time of delay between the parties. State v. Hardaway, 1998 MT 224,
¶ 15, 290 Mont. 518, ¶ 15, 966 P.2d 125, ¶ 15. If 275 days or more of delay are
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attributable to the State, the State has the initial burden to demonstrate that the defendant
has not been prejudiced by the delay. Bruce, ¶ 56. If the State satisfies its burden by
showing the defendant has not been prejudiced by the delay, the burden shifts to the
defendant to show prejudice has occurred. Bruce, ¶ 56; Hardaway, ¶ 23. "[T]he [State]
bears the burden of prosecution, and a defendant is under no obligation to ensure diligent
prosecution of the case against him or to help the [State] avoid dismissal for failure to
timely prosecute him." Kipp, ¶ 10 (quoting Bruce, ¶ 63). Delay caused directly by the
prosecution and delay that is institutional in nature are attributable to the State. Bruce, ¶
61. Although institutional delay is charged to the State, it weighs less heavily against the
State than do other kinds of delay. State v. Highpine, 2000 MT 368, ¶ 16, 303 Mont. 422,
¶16, 15 P.3d 938, ¶16.
¶15 The first 67 days of delay are attributable to the State. Remittitur was filed in the
District Court on July 13, 1995, and the State failed to request that the matter be set for
trial until September 18, 1995.
¶16 On September 19, 1995, the District Court scheduled Price's non-jury trial for
December 20, 1995. The 93 days of delay between the District Court's Order and the trial
date are institutional delay and, accordingly, are attributed to the State.
¶17 Fifteen days before the trial, on December 5, 1995, Price filed a motion requesting a
jury trial. The District Court granted Price's motion for a jury trial and set the case for trial
on March 5, 1996. The 76 days of delay resulting from Price's motion requesting a jury
trial were attributed to Price by the District Court, which Price argues was error. Price
claims his motion did not request a continuance, nor request the District Court to vacate
the December 20, 1995, trial date. Thus, Price argues that the delay is institutional in
nature and should be charged to the State as such.
¶18 However, in addition to requesting a jury trial, Price also requested that the District
Court set the "trial on a date which would give the Defendant sufficient time to properly
prepare for the trial." This indicates that at the time he filed the motion, Price was not
ready for trial and needed a continuance. Furthermore, given the nature of Price's motion,
the District Court found it necessary to hold a hearing on the request for a jury trial and
ordered the parties to submit briefs on the issue. Although the State eventually consented
to Price's jury demand, there was insufficient time to resolve the issue and summon a jury
panel before the December 20, 1995, trial date. When a defendant raises an issue before
trial which makes the original trial date impracticable, the reasonable period of delay
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caused thereby is attributable to the defendant. Kipp, ¶ 12. Given these facts and Price's
need for a continuance, the 76 days of delay were properly attributed to Price.
¶19 On February 26, 1996, the parties stipulated to vacating the March 5, 1996, trial date
due to a conflict in the prosecutor's schedule. The District Court vacated the March 5,
1996, trial and reset the trial for April 30, 1996. Due to a conflict in the District Court's
calendar, on April 9, 1996, the District Court rescheduled the trial date to September 24,
1996. The 35 days of delay between the March 5, 1996, trial date to the District Court's
Order on April 9, 1996, are correctly attributed to the State. The 168 days of delay from
the District Court's April 9, 1996, Order to the September 24, 1996, trial date are
institutional delay attributable to the State, which neither party disputes. Although the
District Court incorrectly calculated this delay as 162 days, it correctly attributed the delay
to the State as institutional delay.
¶20 On September 9, 1996, Price filed a Motion compelling the deposition of one of the
State's witnesses and requesting the District Court vacate the September 24, 1996, trial
date, an indication Price was not prepared for trial at this time. Price also requested that
the District Court reset the trial date at the convenience of the court. The District Court
reset the trial for February 19, 1997, which resulted in a delay of 148 days. The District
Court properly attributed this delay of 148 days to Price, a finding which Price does not
dispute.
¶21 On February 18, 1997, the District Court vacated the February 19, 1997, trial date due
to a conflict in the District Court's calendar. The trial was reset for April 1, 1997, resulting
in 41 days of delay. The District Court correctly determined this delay was attributable to
the State as institutional delay.
¶22 Based on these determinations, 224 days of delay are attributable to Price and the
State is responsible for 404 days of delay. Of the 404 days of delay attributable to the
State, 302 days of the delay were institutional in nature. Institutional delays weigh less
heavily against the State in the Barker balancing process than intentional delays resulting
from oppressive tactics. State v. Haser, 2001 MT 6, ¶ 26, 304 Mont. 63, ¶ 26, 20 P.3d 100,
¶ 26. The burden thus shifted to the State to prove that Price was not prejudiced by the
delay, because more than 275 days of delay are attributable to the State. Bruce, ¶ 56.
Assertion of Right
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¶23 The third consideration is whether the defendant asserted his right to a speedy trial in
a timely manner. So long as a defendant invokes his right to a speedy trial either by
demanding a speedy trial, or by filing a motion to dismiss for lack of speedy trial prior to
the commencement of the trial, we conclude the assertion of the right is timely. Bruce, ¶
57. In this case, Price filed his motion to dismiss based upon a violation of his right to a
speedy trial on March 26, 1997. Thus, Price asserted his right to a speedy trial in a timely
fashion.
Prejudice
¶24 The final consideration is whether the defense has been prejudiced by the delay. We
evaluate prejudice based on the three interests that speedy trials are supposed to protect:
(1) prevention of oppressive pretrial incarceration; (2) minimization of the defendant's
anxiety and concern; (3) avoidance of impairment of the defense. Bruce, ¶ 68. The State
has the burden of showing Price's defense was not prejudiced by the delay. Bruce, ¶ 66.
¶25 The first interest to consider is oppressive pretrial incarceration. The State
demonstrated that Price was not incarcerated prior to his District Court trial, so oppressive
pretrial incarceration is not a consideration in this case.
¶26 The second interest to consider is the amount of anxiety and concern caused by the
pretrial delay. A certain amount of anxiety and concern are an inherent part of being
charged with a crime. Bruce, ¶ 70. This Court has also recognized that the State may not
be able to present direct proof of the defendant's state of mind. Bruce, ¶ 56. We have held
that the "burden to show a lack of anxiety becomes considerably lighter in the absence of
more than marginal evidence of anxiety." Bruce, ¶ 70 (citing State v. Williams-Rusch
(1996), 279 Mont. 437, 452, 928 P.2d 169, 178).
¶27 The District Court determined that Price did not suffer any anxiety or concern beyond
the normal amount suffered by being charged with a crime. The State offered that Price's
original city court sentence was stayed pending his de novo appeal to the District Court.
This prevented the DUI conviction from appearing on his driving record and adversely
affecting his driving privileges or ability to obtain insurance during the course of the
proceeding. Price's pre-charge driving record and status were thus maintained, and
therefore, his life's affairs were protected from the impact of the pending charge and city
court conviction. Conversely, Price offered no information to show he suffered more than
the normal amount of anxiety and concern inherent in being charged with a crime.
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Therefore, the District Court correctly determined that the State has met its burden, and
the Defendant did not suffer more than the normal anxiety associated with the charge.
¶28 The third interest to be considered is prejudice to the defense. This is arguably the
most important of the three factors, because "the inability of the defendant adequately to
prepare his case skews the fairness of the entire system." Bruce, ¶ 19 (quoting Barker, 407
U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118). In reviewing the impairment of defense
factor, this Court stated that it
look[s] at whether the delay directly affected the defendant's ability to call witnesses
on his own behalf-those who can be located and accurately recall events-and
whether the delay directly diminished and impeded the defendant's own ability to
present any other evidence, or develop a particular theory or line of defense.
Haser, ¶ 35.
¶29 The State argues the Defendant was not prejudiced by the delay. In opposition to the
motion in the District Court, the State offered that it had re-interviewed its witnesses
several times over the course of the proceeding, having done so in preparation for new
trial settings as they were established by the Court, and consequently, witness memories
were not diminished.
¶30 Further, the State asserts that the record reflects that the witnesses called by Price
exhibited no signs of a diminished memory regarding their testimony. Price called only
two witnesses. The first witness was a medical records custodian who testified only to
introduce medical records into evidence. Because her testimony establishing a foundation
for the introduction of documents was not affected by the delay of the trial, diminished
memory was not an issue.
¶31 The second witness called by Price was a police officer, who, as previously
mentioned, had been re-interviewed several times during the course of the proceeding.
Further, as the State illustrates, the record reflects that the police officer had no difficulty
recalling the details of Price's arrest. Further, if the officer would have had such difficulty,
he could have referred to his written report to refresh his memory.
¶32 The State also demonstrated that Price's own memory was not diminished due to the
delay. Although Price claims his own memory may have been diminished due to the delay,
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he never took the stand to testify. Furthermore, as a pro se defendant, Price conducted all
witness examinations, his opening statement and his closing statement. As the State points
out, the trial transcripts reflect that Price had a solid command of the facts and details of
the case. In fact, while represented by defense counsel in city court, Price was convicted of
both DUI and resisting arrest. Representing himself in the District Court, Price's defense
efforts resulted in the jury being unable to reach a verdict on the resisting arrest charge.
The State subsequently dismissed it.
¶33 In considering these factors, the District Court concluded that "there really are no facts
that the defense has been impaired. The State presented sufficient evidence to rebut the
presumption that the delay in trial impaired Price's ability to prepare his defense."
¶34 Furthermore, Price did not offer evidence to rebut the State's showing that he was not
prejudiced. In the District Court, Price argued only that witness memories could fade, but
offered no support for the assertion. The record does not indicate that Price himself had a
diminished memory. Based on the foregoing, the District Court did not err in finding that
Price's defense was not impaired by the delay.
¶35 We conclude the State has satisfied its burden of showing Price was not prejudiced by
the delay. Price failed to rebut the State's showing by demonstrating he suffered an
aggravated amount of anxiety or concern as a result of the delay or that his defense was
impaired as a result of the delay.
¶36 "[T]he four factors established by Barker [sic] are necessarily general guidelines to be
applied on a case-by-case basis to the unique circumstances of each case. 'In sum, these
factors have no talismanic qualities; courts must still engage in a difficult and sensitive
balancing process.'" Bruce, ¶ 20 (quoting Barker, supra). Having considered and balanced
the Barker factors, we cannot conclude that the District Court erred in denying Price's
motion to dismiss for failure to provide him with a speedy trial. Its judgment is affirmed.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
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/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
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