No. 05-674
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 65
STATE OF MONTANA,
Plaintiff and Respondent,
v.
SPENCER O. LaGREE,
Defendant and Appellant.
APPEAL FROM: The District Court of the Seventeenth Judicial District,
In and For the County of Valley, Cause DC 04-16 and DC 04-17,
Honorable John C. McKeon, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Janet P. Christoffersen, Christoffersen Law Office, Sidney, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Carol E. Schmidt,
Assistant Attorney General, Helena, Montana
Kenneth Oster, County Attorney, Glasgow, Montana
Submitted on Briefs: August 8, 2006
Decided: March 13, 2007
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Spencer O. LaGree (LaGree) appeals from the order of the Seventeenth Judicial
District, Valley County, denying LaGree’s motion to dismiss for violation of his right to a
speedy trial. We affirm.
¶2 We address the following issue on appeal:
¶3 Did the District Court err by denying LaGree’s motion to dismiss for lack of
speedy trial?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 On July 12, 2004, as Cause No. DC-04-16 (Case A), the State filed an information
charging LaGree with the offenses of count I: criminal mischief, a felony, as specified in
§ 45-6-101, MCA (2003); count II: stalking, a misdemeanor, as specified in § 45-5-220,
MCA (2003); and count III: partner or family member assault, a misdemeanor, as
specified in § 45-5-206, MCA (2003). All offenses stem from incidents occurring in
Glasgow, Montana, on or about June 9-11, 2004.
¶5 Subsequently, on or about July 21, 2004, while released on bond, LaGree violated
a temporary order of protection which had been granted to his wife, LeAnna LaGree, on
June 14, 2004, by allegedly leaving harassing and/or threatening telephone messages on
LeAnna’s residential voice mail. LaGree was arrested at that time and was incarcerated
continuously thereafter. Based on these actions, LaGree was also charged with stalking,
a felony, in violation of § 45-5-220, MCA (2003), as Cause No. DC-04-17 (Case B). The
State also filed a notice of its intention to treat LaGree as a persistent felony offender for
sentencing purposes.
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¶6 LaGree entered pleas of not guilty on all charges in both cases. The District Court
scheduled a trial for Case A on January 4, 2005, and for Case B on January 12, 2005. An
omnibus hearing was conducted on October 4, 2004, wherein LaGree, by counsel,
indicated that there were no issues involving mental disease or defect. However, on
December 23, 2004, LaGree’s trial counsel filed an amended motion in both cases
requesting a mental examination of LaGree. As a result, the District Court vacated the
trial dates and ordered the examination. A competency hearing was set for March 21,
2005, but following receipt of the examiner’s report, LaGree’s counsel withdrew the
mental disease and defect claim. Thereafter, the District Court reset the trial dates for
May 17 (Case A) and May 24, 2005 (Case B). As calculated by the District Court, the
delay caused by the raising and reviewing of the mental disease and defect issue was
approximately 88 days. 1
¶7 On April 28, 2005, the State filed a motion to reschedule the trial date for Case A,
because the forensic scientist would be unable to testify on May 17. The District Court
granted the motion and rescheduled the trial for July 5, 2005. On May 10, 2005, LaGree
filed a motion to dismiss the pending charges against him in both matters on the grounds
that the delay in bringing these matters to trial violated his right to a speedy trial. Then,
on May 12, 2005, the State again moved to reschedule the trials because its chief witness
needed to undergo major medical treatment and would be unable to testify until after July
1
From December 23, 2004, to March 21, 2005, is 88 days. There is a question
from the record regarding the correct date of the filing of the motion, but that is not an
issue on appeal and does not affect the analysis herein.
3
15, 2005. The District Court, finding good cause with the State’s request, ordered the
trials be reset for August 10 and August 30, 2005.
¶8 In June 2005, LaGree filed an affidavit in each case stating that he had not
requested or consented to a mental examination and also contending that he “suffered
anxiety and concern because of [his] long incarceration awaiting [his] trials.” After
conducting a hearing on August 4, 2005, the District Court denied LaGree’s motion to
dismiss for lack of a speedy trial. The court found that while there had been sufficient
delay to place the burden of demonstrating lack of prejudice upon the State, the State had
met its burden, having demonstrated a lack of prejudice.
¶9 Subsequently, pursuant to a plea agreement which incorporated Case A and Case
B, LaGree entered a plea of guilty to the charges in Case A of criminal mischief, stalking,
and partner or family member assault. On November 10, 2005, the District Court entered
its judgment sentencing LaGree for those charges. At that time, the court also granted the
State’s motion to dismiss the felony charge of stalking in Case B, and the State also
withdrew its motion to treat LaGree as a persistent felony offender for sentencing
purposes. Further, LaGree reserved the right to appeal the District Court’s denial of his
pretrial motions to dismiss for lack of speedy trial, which he now appeals. 2
STANDARD OF REVIEW
¶10 Whether a defendant has been denied the right to a speedy trial is a question of
law. State v. Keyes, 2000 MT 337, ¶ 7, 303 Mont. 147, ¶ 7, 15 P.3d 443, ¶ 7. We review
2
With the dismissal of the charges in Cause No. DC-04-17 (Case B), only the
District Court’s denial of LaGree’s motion for lack of a speedy trial in Cause No. DC-04-
16 (Case A) is addressed herein.
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a district court’s determination of law for correctness. Keyes, ¶ 7. “We review a district
court’s findings of fact to determine whether they are clearly erroneous.” State v. Burt,
2000 MT 115, ¶ 6, 299 Mont. 412, ¶ 6, 3 P.3d 597, ¶ 6 (citation omitted).
DISCUSSION
¶11 Did the District Court err by denying LaGree’s motion to dismiss for lack of
speedy trial?
¶12 LaGree argues the District Court erred in denying his motion to dismiss. Although
contesting the District Court’s factual finding that only 338 days, and not the entire delay
of 426 days, was attributable to the State, he nonetheless argues that even the 338-day
delay was a violation of his speedy trial rights. LaGree contends that this delay caused
him extreme anxiety and prejudice, as he was incarcerated during the entirety of his case
and was denied his medications for his mental conditions for most of his incarceration.
¶13 The State argues LaGree was not denied his constitutional right to a speedy trial.
The State contends it met its burden of demonstrating that LaGree did not suffer any
prejudice by showing that: (1) much of LaGree’s incarceration was the result of a
probation violation on a separate, unrelated case; (2) LaGree’s anxiety, for which there
was little evidence, resulted from the charges themselves and the revocation of his
probation on an unrelated charge, and not from the delay herein; and (3) LaGree’s
defense was not compromised by the delay.
¶14 Both the Sixth Amendment to the United States Constitution and Article II,
Section 24, of the Montana Constitution guarantee a criminal defendant the right to a
speedy trial. State v. Price, 2001 MT 212, ¶ 11, 306 Mont. 381, ¶ 11, 34 P.3d 112, ¶ 11.
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To determine whether a violation of this right occurred, we consider: “(1) the length of
the delay; (2) the reason for the delay; (3) the assertion of the right to a speedy trial by the
defendant; and (4) the prejudice to the defense.” City of Billings v. Bruce, 1998 MT 186,
¶ 19, 290 Mont. 148, ¶ 19, 965 P.2d 866, ¶ 19 (citing Barker v. Wingo, 407 U.S. 514,
530, 92 S. Ct. 2182, 2192 (1972)). We have held that the “‘greater the degree of fault by
the State in causing the delay, the less the delay or prejudice that need be shown. Where
there is no fault on the part of the State for [the] delay, greater prejudice, and presumably
greater delay, would have to be shown.’” State v. Highpine, 2000 MT 368, ¶ 14, 303
Mont. 422, ¶ 14, 15 P.3d 938, ¶ 14 (quoting Bruce, ¶ 53).
a. Length of Delay
¶15 LaGree experienced a 426-day delay between initial charge and the scheduled trial
date for Case A. A delay of 200 or more days triggers further speedy trial analysis.
Bruce, ¶ 55. Thus, the 426-day delay requires further speedy trial analysis.
b. Reason for Delay
¶16 “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.” Price, ¶ 14 (citing State v. Hardaway, 1998 MT 224, ¶ 15, 290 Mont. 516, ¶ 15,
966 P.2d 125, ¶ 15). If 275 or more days of delay are 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.
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¶17 The District Court found that of the 426 days of delay, 338 days were attributable
to the State, and determined this to be “institutional delay.” 3 LaGree argues that the court
erred, and the State should be charged with the full 426 days of delay. He asserts that the
88-day delay caused by his attorney requesting a mental examination should be charged
to the State because he did not want or request the mental examination and, in fact,
vehemently opposed it. Beyond noting the provisions of § 46-14-202, MCA, LaGree
offers no authority in support of this argument, and, in response, the State argues that the
court properly determined that only 338 days of delay were attributable to the State,
because a defendant who is represented by an attorney in court is bound by the attorney’s
motions.
¶18 We initially note that, regardless of the resolution of the dispute over attribution of
the 88 days, the District Court correctly concluded that even a delay of 338 days was
sufficient, being over 275 days, to shift the burden to the State to demonstrate that
LaGree did not suffer prejudice as a result of the pretrial delay. Bruce, ¶ 56. However,
because the balancing test considers “[t]he greater the degree of fault by the State in
causing the delay,” Bruce, ¶ 53, we deem it necessary to determine the party responsible
for the 88 days in dispute and to correctly allocate the total time of delay between the
parties.
¶19 Section 46-14-202(1), MCA (2003), provides that upon a written motion by “the
defendant or the defendant’s counsel” requesting an examination of a defendant
3
Institutional delay, though charged to the State, is weighed less heavily against
the State then intentional delays. State v. Blair, 2004 MT 356, ¶ 19, 324 Mont. 444, ¶ 19,
103 P.3d 538, ¶ 19. The appellant does not challenge this finding of the District Court.
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regarding mental fitness to proceed, the district court must initiate that process by
appointing a qualified professional or requesting Montana State Hospital to examine the
defendant. In State v. Bartlett, 271 Mont. 429, 432, 898 P.2d 98, 100 (1995), this Court
explained:
Section 46-14-202, MCA, does not require that the defendant must agree to
a mental examination. If one of the listed persons files a written motion, or
if the issue of the defendant’s fitness to proceed is raised by one of the
listed persons, the court “shall” arrange for such an examination. The word
“shall” is compulsory.
¶20 Given the provisions of this statute, we must reject LaGree’s argument that the
delays occasioned by his counsel’s request for a psychological evaluation, because he
opposed it, must be attributed to the State. Pursuant to statute and our cases, he was
bound by his counsel’s action in this regard. We thus conclude that the District Court
correctly attributed 338 days of the delay to the State, because the 88-day delay caused by
the request for an evaluation was appropriately charged to LaGree. Nonetheless, because
275 days of the delay are attributable to the State, the burden of demonstrating lack of
prejudice to LaGree lies with the State.
c. Assertion of Right
¶21 When considering the third factor, this Court has held “that if the right to speedy
trial is invoked at any time prior to the commencement of trial, either by demanding a
speedy trial, or by moving to dismiss for failure to provide a speedy trial, the third prong
is satisfied.” Bruce, ¶ 57. LaGree filed a motion to dismiss for lack of a speedy trial on
May 10, 2005, almost three months prior to his trial date of July 5, 2005, thereby properly
asserting his right to a speedy trial.
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d. Prejudice
¶22 “The speedy trial guarantee is designed to minimize delay and the prejudice
resulting from pretrial incarceration, anxiety and concern, and impairment of defense.”
State v. Harlson, 2006 MT 312, ¶ 56, 335 Mont. 25, ¶ 56, 150 P.3d 349, ¶ 56 (citing
Bruce, ¶ 68). If the State is able to satisfy 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.” Hardaway, ¶ 23.
¶23 LaGree was incarcerated prior to his trial in this case. However, for speedy trial
purposes, prejudice is not established by the simple fact of pretrial incarceration. In State
v. Jefferson, 2003 MT 90, ¶¶ 25-30, 315 Mont. 146, ¶¶ 25-30, 69 P.3d 641, ¶¶ 25-30, we
held that 413 days of pretrial incarceration did not prejudice the defendant. Because the
defendant’s probation on a prior offense was revoked, the pretrial incarceration was
inevitable. Jefferson, ¶ 25. We stated:
the right to a speedy trial is not intended to prevent all pretrial
incarceration. It is designed to prevent oppressive pretrial incarceration.
State v. Longhorn, 2002 MT 135, ¶ 36, 310 Mont. 172, ¶ 36, 49 P.3d 48,
¶ 36. Our inquiry focuses on whether Jefferson was “unduly prejudiced by
his pretrial incarceration.” Longhorn, ¶ 36 (quoting State v. Johnson, 2000
MT 180, ¶ 26, 300 Mont. 367, ¶ 26, 4 P.3d 654, ¶ 26).
Jefferson, ¶ 27.
¶24 Here, the District Court found that a significant portion of LaGree’s pretrial
incarceration, beginning on October 4, 2004, coincided with an incarceration order for a
probation violation in Cause No. DC-02-08, a separate case, and additionally that LaGree
9
was credited “in DC-02-08 for every day of incarceration since June 11, 2004.” 4 As
such, the State contends that LaGree’s “[i]ncarceration on different charges negates any
prejudice from incarceration while awaiting trial.” State v. Bowser, 2005 MT 279, ¶ 15,
329 Mont. 218, ¶ 15, 123 P.3d 230, ¶ 15 (citing State v. Gould, 273 Mont. 207, 217, 902
P.2d 532, 539 (1995); State v. Hembd, 254 Mont. 407, 414, 838 P.2d 412, 416 (1992)).
¶25 While acknowledging that incarceration due to a different charge may serve to
negate prejudice resulting from incarceration while awaiting trial on the current charge,
LaGree offers a factual argument that he would not have been incarcerated but for the
charges filed against him in this matter. He insists that even though he faced a probation
violation proceeding following his arrest on this charge in the summer of 2004, he did not
begin to serve any time on his probation violation until mid-April 2005. LaGree
additionally contends that, regardless of the probation violation, he still would have been
incarcerated for this matter, and, therefore, his pretrial incarceration was both oppressive
and prejudicial.
¶26 First, as the State notes, LaGree offers no support in his briefing for his assertion
that he did not begin to serve time following revocation for his probation violation in
4
LaGree appeared on a probation violation in Cause No. DC-02-08 on October 4,
2004, at which time he was being held on the charges in this case, and remained
incarcerated for purposes of the probation violation pending his revocation hearing on
December 20, 2004. On December 20, 2004, LaGree was sentenced to a five-year
commitment to the Department of Corrections, for which he was credited for every day
of incarceration from June 11, 2004—his initial arrest date in this matter—until
December 20, 2004, and was thereafter in the custody of the Department of Corrections.
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DC 02-08 until mid-April 2005. 5 Nor does LaGree direct this Court to evidence in the
record which would establish that the District Court’s factual finding that he began
serving time in DC 02-08 on October 4, 2004, was clearly erroneous. Moreover,
LaGree’s contention that, regardless of the probation violation, he still would have been
incarcerated for the offenses charged herein, and thus suffered oppressive incarceration,
is without merit under Bowser, Gould, and Hembd. As in those cases, LaGree’s
incarceration for purposes of his revocation proceeding undermines his pretrial
incarceration argument. Further, he has not otherwise demonstrated that his incarceration
caused him extraordinary prejudice.
¶27 Regarding the factor of anxiety and concern, we have noted that “[a]nxiety and
concern are an inherent part of being charged with a crime.” Blair, ¶ 29 (citations
omitted). Therefore, this Court concentrates on the extent to which the pretrial delay has
aggravated a defendant’s anxiety and concern. Bowser, ¶ 17 (citing Jefferson, ¶ 32). We
have held that “the State’s burden to show lack of anxiety lessens considerably when
marginal evidence of anxiety is presented.” State v. Weeks, 270 Mont. 63, 74, 891 P.2d
477, 483 (1995) (citation omitted).
¶28 LaGree argues very briefly that he suffered “overwhelming anxiety,” particularly
because he claims he was denied the benefit of medication for his depression, which had
“very real ill effects.” The District Court found there was:
only marginal evidence of anxiety resulting from the delay. That marginal
evidence consisted of Defendant’s statement in his affidavit that he suffered
5
LaGree testified at the hearing that, following his re-sentencing in DC 02-08, he
was not physically transferred to the state prison until April 13, 2005.
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anxiety and concern because of his long incarceration waiting for trial.
However, such anxiety is inherent in incarceration and as stated above,
much of that incarceration in this case followed probation revocation.
The court also found LaGree’s claims of anxiety due to the failure of the State to
adequately provide him with his medication to be “self-serving” and concluded that “[a]s
such, it should not be used to support any argument for prejudice herein.”
¶29 This Court defers to a district court’s findings unless they are clearly erroneous.
Bowser, ¶ 19 (citation omitted). Here, the District Court found that the anxiety LaGree
experienced was an inherent result of his incarceration—much of which was the product
of his aforementioned probation revocation—and that his testimony regarding his lack of
medication was not persuasive in reaching the conclusion that LaGree was not unduly
prejudiced by anxiety and concern from the delay. In City of Fairview v. Deming, 238
Mont. 496, 778 P.2d 876 (1989), we stated:
“The credibility of witnesses and the weight to be given their testimony are
matters for the District Court’s determination in a nonjury case. (Citation
omitted.) Thus, in examining the sufficiency of evidence, we must view the
same in a light most favorable to the prevailing party, and we will presume
the findings and judgment by the District Court are correct. (Citation
omitted.)”
City of Fairview, 238 Mont. at 498, 778 P.2d at 878 (quoting Lumby v. Doetch, 183
Mont. 427, 431, 600 P.2d 200, 202 (1979)). Here, the District Court found LaGree’s
testimony on this issue was not credible. On appeal, LaGree offers only a generalized
and essentially unsupported assertion concerning anxiety and that his lack of medications
affected his ability to concentrate and focus. We conclude that he has not demonstrated
error in the District Court’s findings and conclusions in this regard.
12
¶30 Lastly, we examine whether the delay caused any impairment to LaGree’s
defense. This is the most important factor to be considered in determining prejudice. See
Bruce, ¶ 19. Impairment of one’s defense may also be the most difficult form of
prejudice to prove because time’s erosion of exculpatory evidence and testimony can
rarely be shown. See Blair, ¶ 32.
¶31 The District Court found the State had presented proof that all witnesses were
available and had sufficient recall of events and that no evidence had been lost during the
delay. LaGree does not dispute this finding. Instead, his arguments again focus on the
lack of proper medication, which he asserts hindered his ability to read and concentrate,
thereby hindering his defense. Moreover, LaGree argues that his trial counsel was
concerned enough to seek a psychological examination concerning his fitness to proceed.
¶32 The District Court found that LaGree’s claim of impairment of concentration was
“offset by the manner in which Defendant testified at the hearing.” The court found that
LaGree remained focused on the issues of the pending motion and effectively responded
to the inquiries of counsel. Although LaGree responds that the only reason he was able
to testify well at the hearing was because the testimony related directly to his
medications—a subject he had been focused upon—he offers nothing to illustrate how his
alleged lack of concentration on other subjects impacted his defense in such a way as to
cause prejudice. Moreover, LaGree’s contention that his counsel’s request for a
psychological examination illustrates his impairment is not convincing. Previously, in
arguing for attribution of delay, LaGree contended that the psychological exam was
13
unneeded and unwanted. Now, LaGree maintains the psychological exam was evidence
of his impairment.
¶33 After considering the factors of the balancing test to be applied, we conclude that
the District Court correctly determined that the State rebutted the presumption of
prejudice against LaGree, which arose from the institutional delay it occasioned herein,
and that LaGree has offered nothing from which to conclude otherwise. For these
reasons, we conclude that the District Court correctly denied LaGree’s motion to dismiss
for lack of a speedy trial.
¶34 Affirmed.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS
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