State v. Longhorn

No. 01-056

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 135

STATE OF MONTANA,

Plaintiff and Respondent,

v.

KEITH WARREN LONGHORN,

Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District,
In and For the County of Hill,
Honorable John Warner, Judge Presiding

COUNSEL OF RECORD:

For Appellant:

Jeremy S. Yellin, Attorney at Law, Fort Benton, Montana

For Respondents:

Honorable Mike McGrath; Attorney General; Tammy K. Plubell,
Assistant Attorney General, Helena, Montana

David Rice, County Attorney, Havre, Montana

Submitted on Briefs: December 13, 2001

Decided: June 18, 2002

Filed:

__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Keith W. Longhorn (Longhorn) was charged by information in

February 1994 with felony sexual assault. A warrant for his arrest

was issued, but was not served on Longhorn until six years later.

Longhorn filed a motion to dismiss on speedy trial grounds, which

the District Court denied. After a jury trial, Longhorn was found

guilty of sexual assault. Longhorn then filed a motion for a new

trial, wherein he sought to set aside the jury verdict. The

District Court denied that motion and sentenced Longhorn to seven

years at Montana State Prison, with five years suspended. This

appeal followed. We affirm.
¶2 Longhorn raises the following issues on appeal:

¶3 1. Did the District Court err when it denied Longhorn’s

motion to dismiss for violation of his right to a speedy

trial?

¶4 2. Did the District Court err when it denied Longhorn’s

motion for a new trial?

FACTS AND PROCEDURAL BACKGROUND

¶5 In August 1992, Longhorn and his girlfriend Delaney stayed at

the home of T.G. in Havre, Montana. At that time, T.G. was seven

years old. Longhorn came to Montana to attend pow-wows, and T.G.’s

mother Kathy recalled having a houseful of company at that time

because of pow-wows in Fort Belknap and Rocky Boy. The company

included Kathy’s sister-in-law Toni and Toni’s husband Chabon, her

brother John and his wife Teresa, and her mother-in-law, Dee.

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Toni, Chabon, Longhorn and Delaney all planned to compete in pow-

wow dancing.

¶6 The atmosphere at the home at this time was festive. There

was constant activity and the adults frequently stayed up late.

According to T.G., she had trouble sleeping on one of these nights,

and she laid in the hallway in her pajamas with a sleeping bag and

a pillow. Longhorn went upstairs to use the bathroom and asked

T.G. what was wrong. He told her to go to her bedroom and said he

would be there in a minute.
¶7 T.G. returned to her bed. A few minutes later, Longhorn came

into her room and laid next to her on the bed. There were no

lights on in the bedroom. Longhorn started rubbing T.G.’s stomach,

then began rubbing her chest and her vaginal area on top of her

pajamas. Longhorn reached inside T.G.’s pajamas and touched her

vagina with his fingers. Longhorn ultimately inserted one of his

fingers into her vagina. T.G. recalled that one of her siblings,

who was asleep in the room, woke up. Longhorn went to that

sibling, patted his or her back, and instructed the child to go

back to sleep. Longhorn then returned to T.G.’s bed and placed his

fingers back on her vaginal area. Longhorn told T.G. this was

their “little secret” and nobody else needed to know.

¶8 The next day when T.G. saw Longhorn, he gave her an eerie

smile. She ran away and cried. Longhorn later left T.G.’s home

with her grandmother. T.G. did not see Longhorn again.

¶9 On January 4, 1994, T.G. confided in her music teacher,

Shirlie Hanson (Hanson), that Longhorn had sexually abused her two

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years earlier. When T.G. told Hanson about the abuse, she was

shaking and crying. Hanson testified that T.G. seemed very

relieved after her disclosure. After her talk with T.G., Hanson

informed the school principal about T.G.’s disclosure. The

principal contacted the Havre police. The school counselor, Mark

West (West), also offered T.G. support.

¶10 Officer Haberlock, from the Havre Police Department,

interviewed T.G. and her parents. T.G. informed Officer Haberlock

that the man who assaulted her was staying at the family’s home to

attend pow-wow and she described the man. T.G.’s parents were able

to identify Longhorn as the suspect and told Officer Haberlock that

Longhorn had only been at the house on one occasion in August 1992.
¶11 After learning Longhorn’s name, Officer Haberlock assembled a

photographic lineup for T.G. to review. As soon as he placed the

photographs on the table, T.G. selected the photograph of Longhorn

and identified him as the perpetrator.

¶12 A warrant for Longhorn’s arrest was issued on February 22,

1994. When the Hill County sheriff’s office received Longhorn’s

arrest warrant, an officer entered the warrant into the National

Criminal Information Center (NCIC) and sent a teletype message to

the sheriff’s office in Cleveland County, Oklahoma, requesting a

local officer’s assistance in finding and arresting Longhorn.

Cleveland County, Oklahoma, was Longhorn’s last known address.

¶13 Four years later, in March 1998, the Hill County sheriff’s

office published a request for information of Longhorn’s

whereabouts in the Havre Daily News “crime stoppers most wanted”

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section. The sheriff’s office received no information as a result

of this effort. In October 1998 and January 1999, the sheriff’s

office sent messages to the Cleveland County sheriff’s office.

Also, in January 1999, a deputy ran a criminal history check on

Longhorn to determine if he had any recent arrests that would lead

the sheriff’s office to his whereabouts.

¶14 On February 22, 2000, Deputy Dwyer received a call from the

Cleveland County sheriff’s office reporting that Longhorn had been

arrested on a domestic assault charge and that Longhorn had been

served Montana’s warrant. Deputy Dwyer immediately informed the

Cleveland County sheriff’s office that Montana would extradite

Longhorn.
¶15 A jury trial was held on September 25, 2000, and a guilty

verdict was returned on the offense of sexual assault, a felony.

The District Court sentenced Longhorn to Montana State Prison for a

period of seven years, with the last five years suspended.

Longhorn appeals.

DISCUSSION

¶16 Did the District Court err when it denied Longhorn’s motion to

dismiss for violation of his right to a speedy trial?

¶17 Whether a defendant has been denied a speedy trial constitutes

a question of constitutional law. We review a district court’s

interpretation of the law to determine if it is correct. City of

Billings v. Bruce, 1998 MT 186, ¶ 18, 290 Mont. 148, ¶ 18, 965 P.2d

866, ¶ 18.

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¶18 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. In reviewing a claim that a

defendant has been denied a speedy trial, we consider and balance each of the following four

factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion

of his right; and (4) the prejudice to the defendant. Barker v. Wingo (1972), 407 U.S. 514,

530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117, as applied in Bruce, ¶ 19. Since no single

factor is decisive, courts must engage in a difficult and sensitive balancing process. Barker,

407 U.S. at 533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. As discussed in Bruce, our analysis of

speedy trial claims features both a “straight balancing test” and a “motive test.” Bruce, ¶ 54.

As such, the importance of the prejudice factor and the degree of prejudice necessary to

establish denial of speedy trial will vary based upon other considerations, such as the length

of the delay and the reason for the delay. State v. Keyes, 2000 MT 337, ¶ 17, 303 Mont. 147,

¶ 17, 15 P.3d 443, ¶ 17. The greater the degree of fault by the State in causing the delay, the

less delay or prejudice that need be shown. However, if the State is not responsible for delay,

greater prejudice, and presumably greater delay, would have to be shown. Bruce, ¶ 53.

Length of Delay

¶19 We will first consider the length of delay from the time

charges are filed until the defendant’s trial date for the purpose

of determining whether there is a basis for conducting a speedy

trial analysis. This period of time is calculated without

assignment of fault to either party for the various periods of

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delay. Bruce, ¶ 55. The necessary length of time to trigger

further speedy trial analysis is 200 days. Bruce, ¶ 55.

¶20 Here, the Information was filed on February 22, 1994. The

trial was held on September 25, 2000. This time period is more

than sufficient to trigger further analysis of whether Longhorn was

denied his right to a speedy trial.

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 Reason for the Delay

¶21 The second factor requires the court to consider the reasons

for the delay. The court determines which party is responsible for

specific periods of time, then respectively allocates the total

time delay between the parties. State v. Hardaway, 1998 MT 224, ¶

15, 290 Mont. 516, ¶ 15, 966 P.2d 125, ¶ 15.

¶22 The right of a defendant to a speedy trial commences when he

becomes an accused. If the accused is out of state, the State must

act diligently and in good faith to acquire jurisdiction. State v.

Robbins (1985), 218 Mont. 107, 116, 708 P.2d 227, 233-34.
¶23 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. Hardaway, ¶ 20.

¶24 The District Court separated the delay in this case into two

time periods: the period between the issuance of the warrant and

Longhorn’s arrest, and the period between Longhorn’s arrest and the

trial. The court concluded that the arrest warrant was issued on

February 22, 1994, and Longhorn was arrested on February 21, 2000.

The court found that the State acted diligently and in good faith

in attempting to locate the defendant and did not attribute that

time period to the State. For the second time period, the District

Court allocated 99 days of delay to Longhorn for resisting

extradition. The balance of time, from May 31, 2000, until

September 26, 2000, was institutional delay. The court held that

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since that time did not exceed 275 days, Longhorn had the burden of

proving that he had been prejudiced by the delay.

¶25 Only the time period between issuance of the warrant and

Longhorn’s arrest is at issue here. Longhorn argues the State

breached its duty to make a diligent good faith effort to locate

and apprehend him. Specifically, he argues that the court erred

when it considered the State’s limited resources; when it concluded

that it was unreasonable to expect the Hill County sheriff’s office

to locate him; and when it concluded that the State “wasn’t taking

a leisurely pace in prosecuting the defendant for their own

convenience.” Longhorn argues that “[t]he facts, fairness, and the

guiding principles revolving around speedy trial analysis preclude

blaming a citizen accused for delay when he knew nothing about the

charges.” He asserts that the court wrongly attributed the six-

year delay to him and therefore, the court incorrectly placed the

burden on him to prove that he had been prejudiced by the delay.
¶26 The State argues that the Hill County sheriff’s office did all

that it was able to do to locate Longhorn. At the time the warrant

was issued, the only information available to the sheriff’s office

was Longhorn’s last known address, date of birth and social

security number. The sheriff’s office entered the information on

the NCIC system and sent several teletype messages requesting

assistance from the sheriff’s office in the county of Longhorn’s

last known address. The State argues that the District Court

correctly attributed the pre-arrest time to Longhorn, but that even

if this Court disagrees with the District Court’s allocation,

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Longhorn cannot prevail because he was not prejudiced by the pre-

arrest delay.

¶27 Longhorn relies on the United States Supreme Court decision in

Doggett v. United States (1992), 505 U.S. 647, 112 S.Ct. 2686, 120

L.Ed.2d 520, in arguing that the State was negligent in its efforts

to locate him. In Doggett, there was a delay of eight and a half

years between indictment and arrest. Doggett was indicted in 1980

for conspiring to import and distribute cocaine. The Drug

Enforcement Administration (DEA) was the principal agent

investigating the conspiracy. In 1981, a DEA agent learned that

Doggett had been arrested in Panama and he requested that Panama

“expel” Doggett to the United States. Although Panamanian

authorities promised to comply when their own proceedings were

complete, they freed Doggett the following July and let him go to

Columbia, where he stayed with an aunt for several months. In

September 1982, he passed through customs in New York City and

settled in Virginia. He married, earned a college degree, found a

steady job as a computer operations manager and lived openly under

his own name. In 1988 the Marshal’s Service ran a simple credit

check on several thousand people subject to outstanding warrants,

and Doggett was found and arrested. Doggett, 505 U.S. at 648-50,

112 S.Ct. at 2689-90, 120 L.Ed.2d at 526-27. The district court

concluded that the government was negligent in its attempts to

locate the defendant, but that “Doggett had made no affirmative

showing that the delay had impaired his ability to mount a

successful defense or had otherwise prejudiced him.” Therefore,

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the court denied Doggett’s motion to dismiss based on denial of a

speedy trial. Doggett, 505 U.S. at 650, 112 S.Ct. at 2690, 120

L.Ed.2d at 527.

¶28 The United States Supreme Court reversed the lower court’s

decision, holding that “[w]hen the Government’s negligence thus

causes delay six times as long as that generally sufficient to

trigger judicial review . . . and when the presumption of

prejudice, albeit unspecified, is neither extenuated, as by the

defendant’s acquiescence, nor persuasively rebutted, the defendant

is entitled to relief.” Doggett, 505 U.S. at 658, 112 S.Ct. at

2694, 120 L.Ed.2d at 532 (citations omitted). The Court noted that

it reviews trial court determinations of negligence with

considerable deference and “[t]he government gives us nothing to

gainsay the findings that have come up to us, and we see nothing

fatal to them in the record.” Doggett, 505 U.S. at 652, 112 S.Ct.

at 2691, 120 L.Ed.2d at 529. Additionally, the Court stated that,

“if the Government had pursued Doggett with reasonable diligence

from his indictment to his arrest, his speedy trial claim would

fail. Indeed, that conclusion would generally follow as a matter

of course however great the delay, so long as Doggett could not

show specific prejudice to his defense.” Doggett, 505 U.S. at

656, 112 S.Ct. at 2693, 120 L.Ed.2d at 531.
¶29 The State points out that there are several factual

differences between Doggett and this case. We agree. Most

significantly, when Doggett returned to the United States and began

living in Virginia, he was openly living within the jurisdiction of

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the DEA. There is nothing in the record to indicate that Longhorn,

on the other hand, returned to Montana during the six years between

issuance of the warrant and his arrest or was, at any time, within

the State’s jurisdiction.

¶30 Additionally, the trial court in Doggett found that the

prosecution had been negligent and the Supreme Court concluded that

the finding was not clearly erroneous. In this case, the District

Court found that the State made a diligent good faith effort to

locate Longhorn. The court found that the State “entered the

warrant on the NCIC and sent a message to Oklahoma requesting

assistance. The State ran a newspaper advertisement pertaining to

locating the defendant on March 12, 1998. On October 4, 1998, a

second message was sent to Oklahoma requesting assistance in

apprehending the defendant. A third message was sent to Oklahoma

on January 28, 1999, again requesting assistance in arresting the

defendant.”
¶31 We agree with the District Court that the State made a

diligent good faith effort to locate Longhorn. Therefore, that

time period is allocated to Longhorn, and he has the burden of

showing that he was prejudiced by the delay.

Longhorn’s Assertion of His Right

¶32 The State concedes that Longhorn made a timely assertion of

his right to a speedy trial.

Prejudice to Defense

¶33 The fourth factor considers whether Longhorn was prejudiced by

the delay. We evaluate prejudice based on the three interests that

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speedy trials are supposed 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. State

v. Boese, 2001 MT 175, ¶ 12, 306 Mont. 169, ¶ 12, 30 P.3d 1092, ¶

12. The importance of this factor and the degree of prejudice

necessary to establish denial of speedy trial will vary based upon

other considerations, such as the length of delay and the reason

for delay. Bruce, ¶ 58. To determine whether Longhorn has

sustained his burden of proving prejudice, we address each of the

traditional bases for prejudice in turn.

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 Pre-Trial Incarceration

¶34 Longhorn asserts that he was incarcerated for 220 days pre-

trial and because he was “incarcerated for a period greater than

the time a speedy trial analysis is triggered, [his] incarceration

is plainly substantial.”

¶35 The State points out that 99 days of Longhorn’s incarceration

was spent in Oklahoma while he resisted extradition to Montana and

that the court released Longhorn on his own recognizance in July

2000, provided that he abide by certain conditions. Longhorn could

then not meet the terms of his release and he remained incarcerated

until trial.
¶36 Notably, a defendant’s right to a speedy trial is not designed

to prevent any pre-trial incarceration whatsoever. Rather, the

speedy trial right is designed only to prevent oppressive pre-trial

incarceration. State v. Johnson, 2000 MT 180, ¶ 26, 300 Mont. 367,

¶ 26, 4 P.3d 654, ¶ 26. The proper inquiry, therefore, is whether

Longhorn was “unduly prejudiced by pre-trial incarceration.”

Johnson, ¶ 26 (emphasis in original).

¶37 Longhorn does not raise any argument that he was prejudiced by

his period of pre-trial incarceration. Considering the District

Court’s willingness to release Longhorn on certain conditions, we

conclude that his pre-trial incarceration was not unduly

prejudicial.

Anxiety and Concern

¶38 Anxiety and concern are an inherent part of being charged with

a crime; therefore, the focus of this inquiry is on that anxiety

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and concern which is aggravated as a result of the delay. State v.

Highpine, 2000 MT 368, ¶ 28, 303 Mont. 422, ¶ 28, 15 P.3d 938, ¶

28. During the majority of the delay in this case, Longhorn was

unaware that he had a criminal charge pending against him and there

is nothing in the record to suggest that he suffered an inordinate

amount of anxiety and concern.

Impairment of Defense

¶39 Impairment of 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. Highpine,

¶ 31 (quoting Doggett, 505 U.S. at 655, 112 S.Ct. at 2692-93, 120

L.Ed.2d at 530). This interest of the defendant carries more

weight than the other bases for finding prejudice. Johnson, ¶ 34.
¶40 Longhorn argues that his defense was impaired by “the loss of

possible exculpatory evidence by destruction of documents and

deterioration of memory.” Specifically, Longhorn argues that

school counselor Mark West remembered little if anything about the

substance of his meetings with the complaining witness and he

destroyed all of his records, including those pertaining to the

complaining witness and her discussions about the sexual assault.

He cites to our decision in Bruce where we stated, “we generally

have to recognize that excessive delay presumptively compromises

the reliability of a trial in ways that neither party can prove, or

for that matter, identify.” Bruce, ¶ 37. Longhorn argues that the

prejudice demonstrated explicitly by West’s lack of memory and

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implicitly by the length of the delay “clearly shows that the

District Court erred by not dismissing this case.”

¶41 The State notes that upon learning of Longhorn’s arrest, it

immediately contacted the victim and her mother, who had moved out

of state, to make certain they were willing to return to Montana

and testify at trial. The State then located the other witnesses

who had been named in the Information. The only witness the State

was unable to locate was a woman named Delaney, who was Longhorn’s

girlfriend at the time of the incident. The State asserts that it

cooperated in setting up pre-trial interviews of its witnesses for

Longhorn’s counsel, Longhorn had every opportunity for pre-trial

discovery, T.G. clearly recalled the details surrounding the sexual

assault, and the teacher who T.G. confided in also clearly recalled

T.G.’s report and her emotional state. The State argues that

Longhorn’s defense was not impaired by the delay “because, other

than holding the State to its burden of proof, he had no defense.”
¶42 In denying Longhorn’s motion to dismiss, the District Court

noted that “Defendant has come forward with no real evidence that

his defense has been impaired by this delay. There appears to be

little, if any, evidence lost by the lapse of time. No exculpatory

testimony appears to be missing. The State has contacted all of

witnesses listed on the original Information. The alleged victim

recalls the incident.” Before trial and after deposing West,

Longhorn renewed his motion to dismiss and the court again denied

the motion, stating “there is no evidence here or no indications

that the defendant was prejudiced by that or that there is any

16
indication that Mr. West would have said that the complaining

witness was being untruthful.”

¶43 We agree with the District Court’s analysis. Longhorn has

presented no evidence that his defense was impaired by West’s lack

of memory. As noted by the State, Longhorn’s only defense at trial

was to hold the State to its burden of proof. West’s sketchy

memory and the lapse of time actually worked against the State and

did not impair Longhorn’s defense.

Balancing Speedy Trial Factors
¶44 As discussed above, the Bruce test requires that we balance

all four factors in our analysis of speedy trial issues, and that

when there is less fault on the part of the State, greater

prejudice need be shown. Bruce, ¶ 53.

¶45 We conclude that (1) the length of delay was sufficient to

raise the issue; (2) Longhorn asserted his right to a speedy trial;

(3) Longhorn bore the burden of proving prejudice; (4) the delay

does not weigh heavily against the State; and (5) Longhorn did not

prove prejudice. After balancing all four factors, we conclude

that the District Court did not err in holding that Longhorn was

not denied a speedy trial and we accordingly affirm the District

Court order denying Longhorn’s motion to dismiss for violation of

his right to a speedy trial.

¶46 Did the District Court err when it denied Longhorn’s motion

for a new trial?

¶47 Section 46-16-702, MCA, permits a defendant to move for a new

trial and authorizes a trial court addressing such a motion to

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modify or change a verdict by finding a defendant not guilty of the

offense charged. State v. Harris, 1999 MT 115, ¶ 15, 294 Mont.

397, ¶ 15, 983 P.2d 881, ¶ 15. The trial court’s decision to grant

a new trial or modify or change a verdict must be justified by the

law and the weight of the evidence. We review a district court’s

decision on a motion for a new trial to determine whether the

district court abused its discretion. Absent such abuse, we will

affirm the district court’s decision. State v. Billedeaux, 2001 MT

9, ¶ 23, 304 Mont. 89, ¶ 23, 18 P.3d 990, ¶ 23.
¶48 On appeal, Longhorn argues that the District Court erred when

it concluded that the State proved beyond a reasonable doubt that

the complaining witness was sexually assaulted in August 1992.

Specifically, Longhorn argues that the evidence introduced at trial

demonstrates that the assault occurred during May or June 1991. He

notes that T.G. testified that she has been “‘trying to get rid of

this out of my mind for the last nine years’. . . . the clear

implication of this comment is that the alleged sexual assault

occurred in 1991.” He also points out that several witnesses

testified that T.G. said the assault happened after her first grade

year, which again was in 1991.

¶49 In its Order denying Longhorn’s motion for a new trial, the

District Court concluded that “[t]he jury was properly instructed

that the incident either happened in August of 1992, or did not

happened [sic] at all. . . . [A] reasonable juror could easily

find beyond a reasonable doubt that this incident occurred in

August of 1992 as alleged. The court looked at the witnesses,

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heard the evidence and assessed the witnesses’ credibility as the

jury did. Under the circumstances of this case, the court cannot

second guess a jury and say it could not have happened as a matter

of law.”

¶50 After reviewing the trial transcript, we agree with the

District Court that a reasonable juror could have found that the

assault occurred in August 1992. Kathy, T.G.’s mother, testified

that they had a lot of house guests in August of 1992, that the

atmosphere in the house was consistent with what T.G. described,

and that she remembered the time period specifically because the

family car had broken down that summer on the way to the Fort

Belknap pow-wow. Additionally, T.G. testified that the assault

happened in the summer of 1992.
¶51 The question of when the assault occurred was a factual

question for the jury. There was substantial evidence for the jury

to find that the assault occurred in August 1992. We conclude that

the District Court did not abuse its discretion in denying

Longhorn’s motion for a new trial.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
/S/ JIM RICE

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