State v. PARANTEAU

June 9 2009

DA 08-0422

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 196N

STATE OF MONTANA,

Plaintiff and Appellee,

v.

KELLY GENE PARANTEAU,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. CDC-2007-237
Honorable Kenneth R. Neill, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender, Roberta R. Zenker, Assistant
Appellate Defender, Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General, Mardell Ployhar,
Assistant Attorney General, Helena, Montana

John Parker, Cascade County Attorney, Joel Thompson, Deputy County
Attorney, Great Falls, Montana

Submitted on Briefs: May 13, 2009

Decided: June 9, 2009

Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2 On June 24, 2008, Kelly Gene Paranteau (Paranteau) was convicted of felony

criminal distribution of dangerous drugs in the Eighth Judicial District Court. Prior to

trial, Paranteau filed a motion to dismiss the charge for lack of a speedy trial and a

motion to suppress certain evidence which the State intended to use against him. The

District Court denied both of these motions, and Paranteau now appeals their denial. We

affirm.

¶3 On April 19, 2007, Detective Bob Edwards (Detective Edwards) of the Cascade

County Sheriff’s Office and Central Montana Drug Task Force (CMDTF) received a

phone call from a confidential informant (CI) stating that Paranteau wanted to know if

he/she wished to purchase some methamphetamine, or meth. Detective Edwards acted in

an undercover capacity on the phone call to state that he wished to purchase an “eight

ball” of meth. After the CI conveyed this to Paranteau, Detective Edwards could hear

Paranteau in the background saying the purchase was “do-able” and would cost $350

dollars. Detective Edwards told the CI that he would meet the CI later and arrange the

deal.

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¶4 Approximately one hour later, Detective Edwards and another detective met with

the CI, searched the CI, placed an electronic monitoring device in the CI’s vehicle, and

gave the CI $350 dollars in pre-recorded money to make the controlled buy. The CI

informed the detectives that Paranteau told him/her he would meet him/her at a Town

Pump gas station there in Great Falls.

¶5 The detectives and members of CMDTF staked out the Town Pump and monitored

the electronic recording device in anticipation of Paranteau’s arrival. The CI made

contact with Paranteau, and Detective Edwards immediately recognized Paranteau based

on previous interactions involving illegal drugs. As the officers listened in on the

recording device, Paranteau indicated that the drug transaction would occur nearby in the

parking lot of the Legends Sports Bar. The officers continued to monitor the recording

device, and followed Paranteau and the CI to the Legends Sports Bar parking lot. Once

there, Paranteau exited the CI’s car and got into a green Monte Carlo car which was

parked there. Detective Edwards was familiar with the driver of the car as a known drug

dealer.

¶6 A short time later, Paranteau exited the Monte Carlo, and returned to the CI’s

vehicle. They drove back to the Town Pump and Paranteau left. The CI then met with

the detectives. The CI showed them the meth he/she had purchased in the ashtray of

his/her car, and stated that he/she had not touched it. The meth field-tested positive and

weighed 1.8 grams.

¶7 The next day, Detective Edwards and another detective made contact with

Paranteau at the Town Pump. They identified themselves, detained him, told him that

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they had him on a meth distribution charge, and took him to the Great Falls Police

Department for an interview. The detectives claimed that Paranteau was advised of his

rights, signed a waiver of rights, and willingly talked to them without an attorney present.

Detective Edwards told Paranteau that he might not be charged if he provided them with

information they were seeking. During the interview, Paranteau allegedly gave the

detectives information concerning the source of his meth and his buyers, and admitted to

obtaining meth for two separate individuals the previous day. At the conclusion of the

interview, Paranteau was allowed to leave the police department. However, according to

Detective Edwards, Paranteau was cautioned that he had to check in with the detectives

regularly if he did not want to be arrested on the distribution charge.

¶8 When Paranteau failed to check in as instructed, Detective Edwards arrested him.

On May 21, 2007, Paranteau was charged with felony distribution of dangerous drugs.

He was placed into custody and was not able to post bail. While he was in custody,

Paranteau sent Detective Edwards a note, or kite, asking to have the charge dismissed

based on his previous cooperation. Detective Edwards responded that since Paranteau

had failed to check in as required, the charge had been filed against him and he was now

unable to help him. Paranteau’s jury trial was later scheduled to begin on June 23, 2008.

¶9 Prior to trial, Paranteau filed a motion to dismiss for lack of a speedy trial and a

motion to suppress. On June 16, 2008, the District Court denied both motions, explaining

its rationale in a written order. The District Court analyzed the motion to dismiss for lack

of a speedy trial under the four-factor test from State v. Ariegwe, 2007 MT 204, 338

Mont. 442, 167 P.3d 815. Under factor (1), length of the delay, the District Court noted

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that this factor weighed in Paranteau’s favor because the interval between the date of

incarceration and trial date was 401 days. Under factor (2), reasons for the delay, the

District Court found that 289 days were attributable to the State, and 113 days were

attributable to Paranteau. The State’s delay was due to the normal procedural process,

unavailability of a witness, and overcrowded court docket, and thus did not weigh heavily

against it. Paranteau’s delay was attributable to the unavailability of his counsel for trial

and the fact that he was awaiting action by federal authorities; thus, this delay did not

weigh heavily against him either.

¶10 Under factor (3), the accused’s response to the delay, the District Court noted that

Paranteau failed to object to a continuance of the first trial setting, moved the court to

reset the second trial date, and objected to resetting the trial on a third occasion.

Paranteau’s motion to dismiss for lack of a speedy trial was filed 42 days before the final

trial date. In support of his motion, Paranteau testified that he did not learn about the

changes to the trial schedule until after they had been approved, and that he would have

objected to the continuances if he had been consulted by his attorney. Considering these

facts together, the District Court concluded that this factor weighed very slightly in

Paranteau’s favor.

¶11 Respecting factor (4), prejudice to the accused, Paranteau had testified to the

District Court that the jail was overcrowded, he was locked down for 16 hours a day, he

was not offered rehabilitation or treatment, he put on 35 pounds and had two teeth

broken, and that he had not received proper treatment for a medical condition. He also

testified that he could not remember the names and addresses of witnesses, thus impairing

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his defense. Additionally, he testified that he suffered from depression, anxiety, worry,

and confusion on account of his pretrial incarceration. Taking into account these

conditions, the District Court found that he failed to show that his incarceration was

oppressive. The District Court noted that a motion to dismiss for lack of a speedy trial

was not a proper vehicle to address grievances with the jail system or circumvent

administrative procedures for handling such issues. With regard to the emotional and

mental impact, the District Court found no prejudice and failed to see how Paranteau’s

memory could have been improved by being released from pretrial incarceration.

¶12 Balancing the factors as a whole, the District Court found that the State’s showing

of no prejudice in factor (4) outweighed the slight prejudice of factors (1) and (2). While

factor (3) did weigh in Paranteau’s favor, the District Court found the weight of this

factor was relatively little and insufficient to tip the balance of the factors to find a

violation of Paranteau’s right to a speedy trial.

¶13 Regarding the motion to suppress, the District Court noted that Paranteau, who

was in his 40’s, was a “frequent consumer of criminal justice services” and that upon his

arrest he was jailed for 37 days on account of 7 outstanding warrants. Despite

Paranteau’s assertions to the contrary, the District Court found the testimony of Detective

Edwards credible, wherein he stated that Paranteau did not ask to speak with an attorney,

and was not subjected to coercive or improper interrogation techniques in order to obtain

a confession. The District Court found that Paranteau was allowed to use the bathroom

as needed, the detectives did not yell at or threaten him, and that Paranteau was able to

comprehend what was going on in spite of the fact that it was suspected he was under the

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influence of meth at the time. The District Court concluded that Detective Edwards did

not deceive Paranteau when he told him that he knew about the previous day’s meth deal

at the Town Pump, and suggested that Paranteau could help himself if he cooperated with

the detectives. Additionally, the District Court found that the kite Paranteau sent

Detective Edwards after his arrest was less credible than Detective Edwards’ sworn

testimony in court.

¶14 Paranteau was convicted by a jury on June 24, 2008. He was later sentenced to 20

years in the Montana State Prison, with 8 suspended and credit given for time served.

¶15 We review a district court’s denial of a defendant’s motion to suppress to

determine whether the district court’s findings of fact are clearly erroneous and its

interpretation and application of the law is correct. State v. Goetz and State v. Hamper,

2008 MT 296, ¶ 9, 345 Mont. 421, 191 P.3d 489. Whether the defendant has been denied

a speedy trial is a question of constitutional law which we review de novo to determine

whether the court’s interpretation and application of the law are correct. Ariegwe, ¶ 119.

We review the factual findings in support of the district court’s decision to determine if

they are clearly erroneous. Ariegwe, ¶ 119.

¶16 We conclude that the District Court did not err in denying Paranteau’s motion to

suppress and motion to dismiss for lack of a speedy trial. Turning first to the motion to

dismiss, we conclude that Paranteau has failed to demonstrate that the District Court’s

findings of fact in support thereof were clearly erroneous. With respect to the District

Court’s evaluation of factor (4), we conclude that Paranteau has failed to show that his

pretrial incarceration was oppressive, unduly prolonged or aggravated the anxiety and

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concern inherent in being charged with a crime, or impaired his ability to present his

defense. Under factor (3), we also agree with the District Court’s analysis that while this

weighed slightly for Paranteau, it was insufficient to tip the overall balance of the factors

in Paranteau’s favor. Thus, we affirm the denial of Paranteau’s motion to dismiss.

¶17 Concerning Paranteau’s motion to suppress, we similarly conclude that the District

Court did not err in determining that Paranteau’s statements were not coerced, and that he

made a voluntary, knowing, and intelligent waiver of his rights. We agree with the State

that the facts at bar are analogous to State v. Honey, 2005 MT 107, 327 Mont. 49, 112

P.3d 983, and compel the conclusion that the police conduct in this case was not

improper, and that Detective Edwards did not use unlawful threats or promises to procure

Paranteau’s cooperation in this matter.

¶18 Finally, we decline Paranteau’s request to retroactively apply the Goetz rule to his

case, and decline to review this claim under plain error, because Paranteau never objected

or otherwise moved to suppress the evidence obtained from the electronic monitoring

device. See State v. Foston, 2009 MT 191, ___ Mont. ___, ___ P.3d ___.

¶19 We have determined to decide this case pursuant to Section 1, Paragraph 3(d)(v)

of our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions. It is manifest on the record before us that the District Court did

not err in denying Paranteau’s motion to dismiss and motion to suppress. Affirmed.

/S/ PATRICIA COTTER

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We concur:

/S/ BRIAN MORRIS
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ JIM RICE

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