file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-252%20Opinion.htm
No. 99-252
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 175
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DOUG BOESE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kristina L. Guest, Appellate Defender, Helena, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Stephen C. Bullock,
Assistant Attorney General, Helena, Montana
Brant S. Light, Cascade County Attorney, Great Falls, Montana
Submitted on Briefs: April 26, 2001
Decided: August 23, 2001
Filed:
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-252%20Opinion.htm (1 of 6)1/19/2007 10:48:58 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-252%20Opinion.htm
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 The Defendant, Doug Boese, was charged by Information in the District Court for the
Eighth Judicial District in Cascade County with issuing bad checks in violation of § 45-6-
316, MCA, on October 30, 1996. Boese filed a motion to dismiss for violating his right to
a speedy trial. The District Court did not rule on the motion. A one-day trial commenced
on November 30, 1998. On the morning of trial, Boese filed another motion to dismiss
based on double jeopardy grounds and denial of his right to a speedy trial. After a jury
found Boese guilty of issuing bad checks, the District Court denied this motion to dismiss.
Boese appeals the denial of his motion. We affirm the order of the District Court.
¶2 The sole issue on appeal is whether the District Court erred by denying Boese's motion
to dismiss for failure to provide him with a speedy trial.
FACTUAL BACKGROUND
¶3 On October 30, 1996, the State filed an Information against Doug Boese, charging him
with issuing bad checks, a felony, in violation of § 45-6-316, MCA. Boese was arrested on
December 17, 1996. Additional charges, unrelated to the initial charge against Boese, were
filed a week later. The arresting officer neglected to return the served warrant which led to
a delay in the arraignment of Boese and, therefore, his arraignment for the charge in this
case did not take place until April 24, 1997.
¶4 On June 18, 1997, Boese filed his first motion to dismiss for failure to provide a speedy
trial. On July 22, 1997, however, he entered a plea agreement related to the several
charges pending against him. A change of plea hearing was scheduled for later that month,
but Boese missed the hearing. The hearing was rescheduled for July 31, 1997, at which
Boese pled guilty to forgery, a felony, and in return the District Court dismissed this
matter. The District Court set sentencing for August 28, 1997, and continued the bond as
previously set. When Boese did not show up for the sentencing hearing, he was arrested
the next day for bail-jumping. Although the District Court attempted to reset the
sentencing hearing on October 9, 1997, Boese withdrew the guilty plea he entered on July
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-252%20Opinion.htm (2 of 6)1/19/2007 10:48:58 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-252%20Opinion.htm
31, 1997.
¶5 Subsequently, on November 5, 1997, Boese entered into another plea agreement which
encompassed all charges pending against him, and again the District Court granted a
motion to dismiss this matter; however, he changed his mind and refused to honor the plea
agreement. A trial date was reset for April 6, 1998.
¶6 A few days prior to trial, the District Court granted Boese's request to vacate the trial
date and change his plea. After a continuance requested by Boese, the State moved to reset
the trial date for November 30, 1998. On the day of the trial, Boese filed a motion to
dismiss on grounds of double jeopardy and a violation of the right to a speedy trial.
Although the District Court took it under advisement, it did not consider the latter motion
until after the trial ended. After a one-day jury trial, Boese was found guilty in this matter
and sentenced on December 31, 1998, to serve three years in the Montana State Prison,
which is to be served concurrently with the thirty year term imposed for the other offenses.
On January 7, 1999, the District Court entered a written order denying his motion to
dismiss.
DISCUSSION
¶7 Did the District Court err when it denied the motion to dismiss for denial of Boese's
right to a speedy trial?
¶8 Whether a defendant has been denied a speedy trial constitutes a question of
constitutional law. City of Billings v. Bruce, 1998 MT 186, ¶ 17, 290 Mont. 148, ¶ 17, 965
P.2d 866, ¶ 17; see also State v. Small (1996), 279 Mont. 113, 116, 926 P.2d 1376, 1378.
We review a district court's interpretation of the law to determine if its determination is
correct.
¶9 The Sixth Amendment and Article II, Section 24 of the Montana Constitution guarantee
a criminal defendant's right to a speedy trial. The right to a speedy trial is unique in that it
protects both the State and the defendant, as well as the general societal interest of
efficiency of how we analyze speedy trial claims in Montana in order to provide a
practical guide for future actions.
¶10 In Bruce, we concluded that we should first consider the length of delay from the time
charges are filed until the defendant's trial. We held that 200 days was sufficient to trigger
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-252%20Opinion.htm (3 of 6)1/19/2007 10:48:58 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-252%20Opinion.htm
further speedy trial analysis. Bruce, ¶ 55. Next, consideration of the reason for the delay
and allocation of blame is performed. We concluded in Bruce that "when it has been
demonstrated 275 days of delay is attributable to the State, the burden should shift to the
State to demonstrate that the defendant has not been prejudiced by the delay." Bruce, ¶ 56.
¶11 In this case, the State admits that the length of delay before trial is sufficient to bring
about a speedy trial analysis. Of the 761 total delay, 176 days were attributable to the State
because the arresting officer failed to return the served arrest warrant, and 289 days were
institutional delay which is also assigned to the State. The third consideration is whether
Boese asserted his right in a timely manner. The State concedes that he did so. Finally and
most importantly, we consider whether there was prejudice to Boese from the delay.
¶12 According to Bruce, the burden shifted to the State to prove that prejudice did not
result from the delay. Bruce, ¶ 56. 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, ¶ 19.
¶13 Boese contends that the District Court erred by not properly shifting the burden to the
State to prove that no prejudice occurred. We must conclude otherwise from the record. In
the District Court's order regarding Boese's motion to dismiss for violation of his right to a
speedy trial, the District Court stated that "in the present case, because the delay
attributable to the State exceeds the 275 day threshold, the State bears the burden of
showing the Defendant was not prejudiced by the delay in trial." Nor has the State denied
its burden.
¶14 To review whether that burden was satisfied, we must first consider pretrial
incarceration. The State argues, and the District Court agreed, that because Boese was
incarcerated on other charges for most of the time he was incarcerated prior to trial, he
was not subject to oppressive pretrial incarceration based on the charges in this case.
Boese was released on bail following the charge which is the subject of this appeal and
returned to jail only after being charged with other offenses. Therefore, we agree with the
District Court that his pretrial incarceration from the charges in this case was not
prejudicial or oppressive.
¶15 The second factor to be considered is the amount of anxiety and concern caused by the
pretrial delay. Anxiety and concern are an inherent part of being charged with a crime.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-252%20Opinion.htm (4 of 6)1/19/2007 10:48:58 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-252%20Opinion.htm
Bruce, ¶ 27. However, the likelihood of anxiety from delay in this case is contraindicated
by the frequency with which Boese changed his plea and, therefore, added to the delay. It
is more likely, as the District Court points out, that any increased anxiety or concern felt
by Boese was based on the more serious unrelated charges facing him.
¶16 Finally, we examine whether there was damage to Boese's defense. "Barker explicitly
recognized that impairment to one's defense is the most difficult form of speedy trial
prejudice to prove because time's erosion of exculpatory evidence and testimony can
rarely be shown." Doggett v. United States (1992), 505 U.S. 647, 112 S.Ct. 2686, 120 L.
Ed 520. Conversely, prejudice is difficult to disprove. Impairment to one's defense is most
likely to occur when defense evidence is dependent upon witness testimony. However,
unlike Bruce where "the nature of the charge [was] very fact-sensitive, and Bruce's
defense depended on all the parties' and witnesses' recollection of the period," this case
depended primarily on documentary evidence and the interpretation of that evidence.
Bruce, ¶ 72. Boese did not call any witnesses, nor testify himself. Throughout the entire
period prior to trial, Boese did not produce a witness list or suggest to anyone that he
planned on calling any witnesses in his defense. Furthermore, the evidence of his guilt
consisted of the many bad checks that he had written and testimony from the recipients of
the bad checks. The evidence that Boese violated § 45-6-316, MCA, is not evanescent and,
therefore, not likely to change because of the trial delay. These facts were sufficient to
discharge the State's burden of disproving prejudice. And, while normally prejudice must
be analyzed based on the pre-trial posture of a case and decided prior to trial (see Bruce),
we conclude that the failure to rule on the motion before the trial was not a reversible error
because Boese waived any objection when he consented to the District Court ruling on the
matter after the trial concluded.
¶17 For the foregoing reasons, we affirm the order of the District Court which denied
Boese's motion to dismiss.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-252%20Opinion.htm (5 of 6)1/19/2007 10:48:58 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-252%20Opinion.htm
/S/ PATRICIA COTTER
/S/ JIM RICE
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-252%20Opinion.htm (6 of 6)1/19/2007 10:48:58 AM