State v. Britton

No. 84-19
IN THE SUPREME COURT OF THE STATE OF MONTANA

1984

STATE OF MONTANA,
Plaintiff and Respondent,
VS .
BILL E. BRITTON,
Defendant and Appellant.

Appeal from: District Court of the Fourth Judicial District
In and for the County of Lake
Honorable Jack L. Green, Judge presiding.

Counsel of Record:
For Appellant:
Milodragovich, Dale & Dye; Karl H. Eloehn, Missoula,
Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
John Frederick, County Attorney, Polson, Montana

Submitted on Briefs: May 17, 1984
Decided: October 31, 1934

Filed: -3) 1984
!
C

Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.

Defendant Bill E. Britton appeals a conviction by jury
trial i n the Lake County District Court, for felony theft.
.
The sole issue is whether the trial court erred in denying
Rritton's motion to dismiss for lack of a speedy trial.
Defendant was charged on July 1, 1982, and was tried on
August 1, 1983, 396 days after the complaint was filed and
the arrest warrant was issued. By application of the
speedy-trial criteria, we hol-d defendant was denied his
constitutional right to a speedy trial because the State
failed to expl.ain the delay and to show an absence of
preju.dice to the defendant.
Almost a six-month lapse occurred between the filing of
the complaint in Justice Court (July 1, 1982) and the filing
of an information in District Court (December 29, 1.982) .
Britton was scheduled to appear in Justice Court on July 8,
but his appearance was continued so he could obtain counsel
and seek medical attention in Spokane. Nothing else
happened. On December 29, 1982, the trial court granted the
State leave to file an information in District Court and an
arraignment was set for January 12, 1983. The State explains
this six-month delay by contending Britton asked for the July
8 continuance, and that the State was later involved in two
other criminal trials in November and December, 1982.
At the January 12, 1983 arraignment in District Court,
Britton suffered heart failure, and so he was not officially
arraigned until March 9, 1983. At the March 9 arraignment,
the trial court set the omnibus hearing for June 15, 1983,
and at this hearing defendant first moved to dismiss for lack
of a speedy trial. The trial court denied this motion and
again denied the motion just before the trial started on
August 1, 1983. We are asked to determine whether defendant
was denied a speedy trial because of the time lapse between
his original appearance in Justice Court and the time of
trial--a period of 396 days.
Defenda.nt has both a federal and state constitutional
right to a speedy trial, but we decide the prejudice question
based on our own Constitution, Mont. Const., Art. 11, § 24.
We use the same four factors as adopted by the United States
Supreme Court in Barker v. Wingo (1972) 407 U.S. 514, 92
S.Ct. 2182, 33 L.Ed.2d 101, in interpreting our own
constitution, but we choose to give our own meaning to them
rather than to rely on interpretations given these four
factors by the United States Supreme Court. This Court of
course must give only that meaning to United States
Consitutional provisions that the United States Supreme Court
has chosen to give. But at the same time this Court is free
to interpret our own Constitution as protecting even more
strongly the fundamental rights of our citizens.
The factors we consider in applying the speedy trial.
provision of Mont. Const. Art. 11, 5 24, are: (1) length of
delay, (2) the reason for delay, (3) whether defendant
asserted the right, and (4) whether defendant was prejudiced.
No individual factor is indispensable or dispositive.
Length and Reason - - Delay:
for the
The 396-day delay consists of three time periods: July
I., 1982 to January 12, 1983, the time between filing of the
complaint in Justice Court and the first arraignment in
District Court; January 12, 1983 to March 9, 1.983, the time
elapsing before defendant was actually arraigned. after he had
a heart attack on Janua.ry 12th; and March 9, 1983 to August
1, 1983, t h e t i m e between a r r a i g n m e n t and t h e a c t u a l s t a r t of

trial.

The S t a t e c o n t e n d s t h e f i r s t t i m e p e r i o d - - J u l y 1, 1982

t o J a n u a r y 1 2 , 1983, i s a t t r i b u t a b l e t o d e f e n d a n t . The S t a t e

contends defendant failed to contact the court after he

returned from Spokane, and the State also contends its
r e s o u r c e s w e r e i n v o l v e d i n two o t h e r c r i m i n a l m a . t t e r s .

The r e a s o n d e f e n d a n t appeared w i t h o u t c o u n s e l on J u l y 8 ,

i s b e c a u s e h e happened t o be i n t h e c o u r t h o u s e on t h a t d a t e

on an u n r e l a t e d c i v i l m a t t e r and h e was a r r e s t e d . t h e r e and

immediately t a k e n b e f o r e t h e J u s t i c e C o u r t . Defendant a l s o

t e s t i f i e d t h a t a f t e r t h e J u l y 8 continuance, he understood he

was t o r e p o r t t o t h e s h e r i f f ' s o f f i c e when h e r e t u r n e d from

Spokane, and t h a t h e d i d s o . The S t a t e c o n t e n d s he d i d n o t .

When asked whether Britton had c o n t a c t e d h i s office after

returning, the sheriff t e s t i f i e d :

". . . I c a n ' t be s u r e . H e c o u l d have. I f he d i d ,
m r e s p o n s e would have been t o c o n t a c t t h e c o u r t .
y
1 d o n ' t r e c a l l a n y t h i n g i n c o u r t b e i n g s a i d t h a t he
was t o n o t i f y m e when he g o t back . . ."
Defendant's testimony that he contacted the sheriff's

o f f i c e was u n c o n t r a d i c t e d , and t h e s h e r i f f ' s t e s t i m o n y d o e s

n o t r e f u t e t h i s testimony. A t most, it i s e q u i v o c a l .

The S t a t e c o n t e n d s t h e c a s e had been c o n t i n u e d f o r o n l y

four days, u n t i l July 16, 1982, b u t n o t h i n g i n t h e record

establishes t h i s assertion. I n any e v e n t , n o t h i n g t o o k p l a c e
on J u l y 1 6 , 1982, and t h e r e c o r d e s t a b l i s h e s t h a t t h e S t a t e
did n o t h i n g more t o prosecute t h e defendant o t h e r than t o

f i l e t h e i n f o r m a t i o n i n D i s t r i c t C o u r t on December 2 3 , 1.982,

a l m o s t s i x months a f t e r t h e c o m p l a i n t was f i l e d .

F i n a l l y , t h e S t a t e s e e k s t o e x c u s e t h e del-ay b e c a u s e t h e

p r o s e c u t o r ' s o f f i c e and t h e s h e r i f f ' s o f f i c e were t i e d up i n
two criminal trials that consumed all the resources and time
of those offices. However, the record does not establish
this fact, and the two trials did not take place until
November and December.
Of the 195 days between July 1, 1982 and January 12,
1.983, approximately 14 are attributable to Britton, and 181
are attributable to the State.
The State then argues that the time between January 12,
1983 and March 9, 1983, is solely attributable to the
defendant because he suffered a heart attack at the January
12 arraignment and required. hospitalization. However,
defendant's attorney, after consultation with doctors, told
the court that defendant ~ ~ o u lbe available for arra.ignment
d
in one to two weeks. Nonetheless, the State did. nothing
about the arraignment until February 23, when it obtained an
order setting the arraignment for March 9, 1983, almost two
months after the defendant's heart attack.
Although the January 12 arraignment had to be postponed
because of defendant's heart attack, the State could have
been more diligent in getting the arraignment rescheduled..
Defendant could have been arraigned as early as January 20,
but instead the arraignment was continued without date and
did not take place until March 9. The State gives no reason
for the delay other than defendant's heart attack, yet the
evidence shows that defendant was available for arraignment
at least by January 20th. Of the 56-day delay between
January 12, 1983 and March 9, 1983, no more than 14 days are
attributable to the defendant and at least 42 days are
attributable to the State.
The Sta.te also blames defendant for the delay bet.ween
March 9, 1983 and the actual start of trial on August 1,
1983, although it does so in a circuitous manner. Because
the State blames defendant for causing the delay until March,
the State argues defendant is therefore responsible for any
further delay flowing from the March 9 arraignment. At the
March 9 arraignment, the trial was set for the next jury
term, which was the July jury term, and the State argues
defendant caused this delay. But the State is the party
which failed to take action after the postponement of the
January 9 arraignment due to defendant's heart attack.
With no support in the record the State further argues
defendant had civil matters pending also and argues he did
not want the criminal case to go to trial until the civil
matters were tried during the spring of 1983. But the record
does not support a conclusion that defendant deliberately
delayed the criminal proceedings. When defendant was
questioned at the hearing on his motion to dismiss, he denied
that he intended any such delay, and no evidence exists to
support such contention. Furthermore, defendant would not
have been faced with the dilemma of a criminal case and civil
case being tried to the same jury panel. The State should
have been diligent in getting the case filed in District
Court and tried in District Court during the fall 1982 jury
term. Instead, the State let the case linger in Justice
Court.
Of the 145-day delay between March 9 and August 1, most,
if not all is attributable to the State as "institutional
delay." This, when combined with the other two periods,
makes the State responsible for approximately 360-368 days of
the delay. Much of this delay was institutional delay, but
delay nonetheless, and substantia.1 delay at that. It was
therefore the State's burden to show defendant was not
prejudiced by the delay, a i the State Failed in that burden.
rd
Assertion - - Right - Speedy Trial:
of the to
Our rule is that if a defendant has moved to dismiss
before trial, he has fulfilled the requirement of asserting
his constitutional right to a speedy trial. State v. Bailey
(Mont. 1982), 655 P.2d 494, 498. The trial court, on the
other hand, held defendant was tardy in asserting his right
to a speedy trial by first raising it at the omnibus hearing
on June 15, 1983, more than eleven months after the complaint
had first been filed in Justice Court. The trial court did
not indicate when that magic time was, but simply ruled that
defendant's motion was too late. However, delay of assertion
of the right to speedy trial is not measured simply by
measuring the lapse of time from the time of the charge until
the time the motion is made. Rather, the sole inquiry is
whether defendant has moved before trial to dismiss on the
ground that he has been denied a speedy trial. The United
States Supreme Court stated in Barker v. Wingo, supra, that
" [tlhere is no fixed point in the criminal process when the
State can put the defendant to the choice of either
exercising or waiving the right to a speedy trial." 407 U.S.
at 521. We adopt this same position when interpreting our
own Constitution. In hol-ding that the defendant in effect
waived his right to assert his right to a speedy trial
because his motion a t the omnibus hearing came too late, the
trial court was clearly wrong.
Whether the Delay has Caused Actual Prejudice:
The trial court also determined defendant had not been
prejudiced by the delay "in any significant way." The court
concluded defendant had been released on his own recognizance
after his first appearance in Justice Court and any anxiety
and concern he had over the pending criminal charges was no
greater than the anxiety and concern he was experiencing
because of several pending civil cases. We cannot so view
the defendant's anxiety. Anxiety over potential loss of
liberty because of a criminal conviction is certainly of
greater concern in the normal case than that of losing
property or being forced to pay money as a result of a civil
proceeding. The criminal charge was pending for over a year,
and at least 50% of the defendant's anxiety and concern could
be attributed to the unresolved charge. However the trial
court may have viewed this anxiety and concern, we view it as
"significant."
In State v. Larson (Mont. 1-981), 623 P.2d 954, 38
St.Rep. 213, we held that another factor to consider is
whether the defense has been impaired. Delay is not always
beneficial to the defendant and detrimental to the State.
Delay of a trial may result in defense witnesses becoming
unavailable or their memories fading. And one charged with a
felony, even though he may not be in jail awaiting trial, may
find it difficult or even impossible to maintain or find
meaningful employment while the charges are pending.
Here it was the State's burden to rebut the presumption
of prejudice caused by the 396-day delay. The State has not
sufficiently done so, and we therefore conclude the delay has
resulted in prejudice to the defendant. The State should
have been aware it was treading dangerously close to an
unconstitutional delay. The most glaring neglect is from
July 8, 1982 to January 12, 1983, the period between arrest
and arraignment. Even assuming defendant did not contact the
sheriff on his return from Spokane in July of 1982, it is
nonetheless clear defendant had no duty to prosecute himself
and the State had the burden to proceed in a manner that
would protect his constitutional right to a speedy trial.
The State did not do so, and the delay contj-nued with the
State giving no constitutional~ly acceptable explanation for
the substantial delay.
We reverse and remand with instructions to dismiss all
charges against the defendant.

We Concur:

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Chief Justide