State v. Steward

No. 13059

I ' T E SUPREME C U T O THE STATE O MONTANA
N H OR F F

197 5

THE STATE O M N A A
F OTN,

P l a i n t i f f and A p p e l l a n t ,

-VS -
CLARENCE STEWARD,

Defendant and Respondent,

Appeal from: D i s t r i c t Court o f t h e Eleventh J u d i c i a l D i s t r i c t ,
Honorable Robert C. Sykes, Judge p r e s i d i n g ,

Counsel of Record:

For Appellant :

Hon. Robert L. Woodahl, Attorney General, Helena,
Montana
William A. Douglas, Counu Attorney, argued,
Libby, Montana
Ann C. German, Law Student, argued, Missoula, Montana

For Respondent:

Moses, Kampfe, T o l l i v e r and Wright, B i l l i n g s ,
Montana
D. Frank Kampfe argued, B i l l i n g s , Montana

Submitted : November 10, 1975

Decided: fil; -
n : \31iB
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Filed : . I
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Mr. Chief Justice James T. Harrison delivered the Opinion
of the Court.
This is an appeal from an order of the district court,
Lincoln County, dismissing with prejudice an Information due
to denial of the right to a speedy trial.
Defendant was charged and arrested on January 10, 1974
for lewd and lascivious acts against children, a felony under
former section 94-4106, R.C.M. 1947. He was released on $25,000
bond within the week and has been free on bond since that time.
On January 16, 1974, the Lincoln County attorney received a call
from defendant's attorney notifying the county attorney that he
would be involved in the Pennsylvania murder trial of Tony Boyle
and requesting a postponement of defendant's arraignment and trial
until the conclusion of the Boyle trial. The Information charg-
ing defendant with the felony was filed on January 31, 1974. On
February 14, 1974, defendant's attorney sent the county attorney
a letter stating in part:
"In that I am involved in the Tony Boyle case,
I anticipate being out of the office on a
continuous basis from next week until the 1st
part of June, 1974. I would therefore, appre-
ciate your efforts to have trial in the Steward
matter postponed until after my return. * * * "
The nationally publicized Tony Boyle trial was completed in
March 1974, but no further correspondence between the county
attorney and defendant's attorney appears on the record until
a letter dated January 28, 1975, from the county attorney to
defendant's attorney which said in part:
" * * * It is my firm intention to try your client
[Steward] in the jury term commencing with the
23rd day of February, 1975. * * *
" * * * In any event I will not permit this case
to be put over the spring jury term."
On February 25, 1975, defendant's attorney responded, indicating
he would appear with defendant at the arraignment and would file
unspecified pretrial motions.
 The a r r a i g n m e n t was s e t f o r March 1 3 , 1975, b u t on March

1 2 , 1 9 7 5 , d e f e n d a n t ' s a t t o r n e y f i l e d a m o t i o n t o d i s m i s s on t h e

ground o f d e n i a l o f t h e c o n s t i t u t i o n a l r i g h t o f s p e e d y t r i a l . On

May 1 5 , 1 9 7 5 , t h e d i s t r i c t c o u r t d i s m i s s e d t h e I n f o r m a t i o n w i t h

prejudice.

Two i s s u e s a r e p r e s e n t e d f o r r e v i e w :

1. Was d e f e n d a n t d e n i e d h i s c o n s t i t u t i o n a l r i g h t t o a

speedy t r i a l ?

2. Was t h e d i s t r i c t c o u r t i n e r r o r i n d i s m i s s i n g t h e

Information with p r e j u d i c e thereby b a r r i n g subsequent prosecu-

t i o n f o r t h e same o f f e n s e ?

The r i g h t t o a s p e e d y t r i a l i s c o n t a i n e d i n t h e U n i t e d

S t a t e s and t h e Montana C o n s t i t u t i o n s . Amendment 6 t o t h e U n i t e d

S t a t e s C o n s t i t u t i o n states:

" I n a l l c r i m i n a l prosecutions t h e accused s h a l l
e n j o y t h e r i g h t t o a s p e e d y and p u b l i c t r i a l * * *."
A r t i c l e 111, Sec. 1 6 , Montana C o n s t i t u t i o n , 1889, s t a t e s :

" I n a l l c r i m i n a l prosecutions t h e accused s h a l l
have t h e r i g h t t o * * * a s p e e d y p u b l i c t r i a l * * *."
A r t i c l e 11, Sec. 24, 1972 Montana C o n s t i t u t i o n c o n t a i n s t h e

i d e n t i c a l l a n g u a g e a s A r t i c l e 111, S e c . 1 6 , Montana C o n s t i t u t i o n

1889.

The U n i t e d S t a t e s Supreme C o u r t s t a t e s i n K l o p f e r v.

N o r t h C a r o l i n a , 386 U.S. 213, 1 8 L ed 2d 1, 8 , 87 S.Ct. 988,

" * * * t h e r i g h t t o a speedy t r i a l i s a s fundamental a s any
o f t h e r i g h t s s e c u r e d by t h e S i x t h Amendment."

The f o u r f a c t o r s t o b e c o n s i d e r e d i n d e t e r m i n i n g w h e t h e r

a d e f e n d a n t h a s been d e n i e d h i s r i g h t t o a s p e e d y t r i a l a r e

s e t f o r t h i n B a r k e r v . Wingo, 407 U . S . 514, 33 L ed 2d 1 0 1 , 1 1 4 ,

1 1 6 , 1 1 8 , 1 2 1 , 92 S.Ct. 2182. This Court adopted t h e Barker

f a c t o r s i n S t a t e e x r e l . Thomas v . D i s t r i c t C o u r t , 1 5 1 Mont. 1,

438 P.2d 554, b a s e d on a n e a r l i e r l i s t i n g o f t h e f e d e r a l c r i t e r i a
contained in United States v. Simmons, 338 F.2d 804, 807. In
Barker Mr. Justice Powell said:
" * * * The approach we accept is a balancing test,
in which the conduct of both the prosecution and
the defendant are weighed.
"A balancing test necessarily compels courts to
approach speedy trial cases on an ad hoc basis.
We can do little more than identify some of the
factors which courts should assess in determining
whether a particular defendant has been deprived
of his right. Though some might express them in
different ways, we identify four such factors:
Length of delay, the reason for the delay, the
defendant's assertion of his right, and prejudice
to the defendant."
Unless there is a presumptively prejudicial delay, there
is no necessity to inquire as to the other factors that go into
the balance. In the instant case defendant was charged and arrested
on January 10, 1974, the arraignment was not scheduled until
March 13, 1975, a period of 406 days, and the date of the trial
had still not been set. It was stated in United States v. Rucker,

"A delay of over one year between arrest and trial
raises a Sixth Amendment claim of 'prima facie
merit.' Hedgepeth v. United States, 124 U.S. App.
D.C. 291, 364 F.2d 684 (1966). It places on the
Government the necessity of justification, the bur-
den of which increases with the length of delay. * * *
When the delay approaches a year and a half, as
in this case, the Government must provide a justi-
fication which convincingly outweighs the prejudice
which can normally be assumed to have been caused
the defendant."
The delay of 406 days in this case is sufficient to trigger the
inquiry mechanism to determine whether defendant was denied a
speedy trial.
The State alleges the reason for the delay was two-fold:
Defendant's failure to assert his right to a speedy trial and
the crowded trial docket which would not have allowed a trial
during 1974. Defendant's failure to assert his right will be
considered in detail when the next factor is considered. The
district court correctly ruled the overcrowded court docket would
not mitigate the failure to provide a speedy trial. Mr. Chief
Justice Burger stated in Strunk v. United States, 412 U.S. 434,

" * * * Unintentional delays caused by overcrowded
court dockets or understaffed prosecutors are
among the factors to be weighed less heavily than
intentional delay, calculated to hamper the defense,
in determining whether the Sixth Amendment has been
violated but, as we noted in [Barker], they must
'nevertheless * * * be considered since the ultimate
responsibility for such circumstances must rest with
the government rather than with the defendant.'"
The State alleges defendant here waived his right to a
speedy trial by his failure to assert his right until the day be-
fore the arraignment in March 1975, and by the request of his
attorney for a postponement of the trial. The State appears to
argue the "demand-waiver rule", i.e. unless the accused demands
a speedy trial, he waives his right. The "demand-waiver rule" was
specifically rejected in Barker in favor of the four factors test.
The general rule remains that an accused must take some
affirmative action to obtain a trial to be entitled to a discharge
for delay. 22A C.J.S. Criminal Law, 5469, p. 37. In United
States v. Research Foundation, 155 F.Supp. 650, 654, the court
said :
" * * * The burden is on the defendant to assert
his constitutional right by some affirmative act
in court, such as, objecting to adjournments of
the trial, demanding a trial, or making an approp-
riate motion."
The "appropriate motion" is a motion to dismiss for denial of
a speedy trial. The proper.time to assert the right to a speedy
trial is prior to the actual commencement of the trial, usually
at the time the trial date is set, or the time the case is called
to trial. Morse v. Municipal Court, et., 13 C.3d 149, 529 P.2d
46, 118 Cal.Rptr. 14. Defendant, in the instant case, made his
motion to dismiss at the proper time.
The U. S. Supreme Court in Barker, said the failure to
assert the right will make it difficult for a defendant to
prove that he was denied a speedy trial. Also, inaction by the
accused will make it more difficult to prove the denial of the
right, but:
"Such an approach, by presuming waiver of a fund-
amental right from inaction, is inconsistent with
this Court's pronouncements on waiver of consti-
tutional rights. * * *
"The nature of the speedy trial right does make it
impossible to pinpoint a precise time in the process
when the right must be asserted or waived, but that
fact does not argue for placing the burden of pro-
tecting the right solely on defendants. A defend-
ant has no duty to bring himself to trial; the State
has that duty * * *". (33 L ed 2d 114, 115)
[See Morse for the last possible time when the right should
be asserted.]
Mr. Chief Justice Burger earlier in Dickey v. Florida,
398 U.S. 30, 26 L ed 2d 26, 32, 90 S.Ct. 1564 stated:
" * * * Although a great many accused persons seek
to put off the confrontation as long as possible,
the right to a prompt inquiry into criminal charges
is fundamental and the duty of the charging author-
ity is to provide a prompt trial."
This position was reaffirmed in Strunk.
The district court here was correct in holding:
" * * * the Defendant's attorney would not be
representing the Defendant if he would raise the
question of the fair speedy trial. This was in-
cumbent upon the County Attorney to do so under
the circumstances."
The district court found no waiver of defendant's rights:
" * * * nor any consent to extending the constitu-
tional basis for a speedy trial by jury on the part
of the Defendant * * *".
The district court found the letters from defendant's
attorney to the county attorney were:
" * * * no indication of an intention to waive or
extend or consent to an extension of the time for
a speedy and impartial trial by jury * * *."
There is a presumption against waiver of the right to
speedy trial. Barker.
A
The general rule as stated in ~~/c.J.S.
c r i m i n a l Law S 4 7 7 , p . 70 i s :

" * * * A waiver o f t h e r i g h t t o speedy t r i a l i s
n o t t o be l i g h t l y i n f e r r e d from e q u i v o c a l circum-
stances. "

I n Hodges v. U n i t e d S t a t e s , 408 F.2d 543, 552, it was

stated:

"A d e f e n d a n t ' s w a i v e r of h i s r i g h t t o a speedy
t r i a l i s n o t , i n t h i s d a y , r e a d i l y t o be assumed.
Of c o u r s e , w a i v e r o f t h a t r i g h t i s p o s s i b l e b u t
mere i n a c t i o n i s n o t a l w a y s a u t o m a t i c a l l y t o be
regarded a s equating with waiver."

T h i s C o u r t h a s h e l d many t i m e s t h a t a l l p r e s u m p t i o n s a r e

i n favor of t h e t r i a l c o u r t ' s decision. S t a t e ex r e l . Elakovich

v. Z b i t n o f f , 1 4 2 Mont. 576, 386 P.2d 343; I n r e M y e r l s E s t a t e ,

9 2 Mont. 474, 1 5 P.2d 846. See a l s o : 5 C.J.S. Appeal & Error,

S1533, p. 1025. The d i s t r i c t c o u r t had ample o p p o r t u n i t y t o view

t h e r e c o r d and d e t e r m i n e t h e i n f e r e n c e s t o be drawn from t h e

a c t i o n s of t h e p a r t i e s . W e f i n d no s u b s t a n t i a l e v i d e n c e on t h e

r e c o r d r e b u t t i n g t h e presumption t h e d i s t r i c t c o u r t a c t e d p r o p e r l y

i n h o l d i n g t h e a c t i o n s o f d e f e n d a n t and h i s a t t o r n e y d i d n o t waive

t h e r i g h t t o a speedy t r i a l .

The c o u n t y a t t o r n e y a r g u e s d e f e n d a n t was n o t p r e j u d i c e d

due t o t h e l a p s e o f t i m e between a r r e s t and a r r a i g n m e n t .

I n B a r k e r , t h e U n i t e d S t a t e s Supreme C o u r t i d e n t i f i e d

t h r e e i n t e r e s t s o f t h e d e f e n d a n t which a r e t o be p r o t e c t e d by a

speedy t r i a l :

" * * * ( i )t o p r e v e n t o p p r e s s i v e p r e t r i a l i n c a r c e r -
a t i o n ; ( i i ) t o minimize a n x i e t y and c o n c e r n o f t h e
a c c u s e d ; and (iii) t o l i m i t t h e p o s s i b i l i t y t h a t t h e
d e f e n s e w i l l be i m p a i r e d . " ( 3 3 L ed 2d 1 0 1 , 1 1 8 )

The f i r s t i n t e r e s t o f d e f e n d a n t was n o t a f f e c t e d by a

l a c k of a speedy t r i a l a s h e w a s r e l e a s e d o n bond w i t h i n d a y s

o f h i s a r r e s t and remained f r e e on bond.

The second i n t e r e s t t o be p r o t e c t e d by a speedy t r i a l

may be d i f f i c u l t t o p r o v e , a s a n x i e t y and c o n c e r n a r e n o t r e a d i l y

s u b j e c t t o o b j e c t i v e evidence. The U n i t e d S t a t e s Supreme C o u r t ,
on at least two occasions stated that, although the defendant
is free on bond:
(1) " * * * The pendency of the indictment may subject
him to public scorn and deprive him of employment,
and almost certainly will force curtailment of
his speech, associations and participation in
unpopular causes." (Klopfer v. North Carolina,
386 U.S. 213, 18 L ed 2d 1, 7, 87 S.Ct. 988)
(2) "Arrest is a public act that may seriously inter-
fere with the defendant's liberty, whether he is
free on bail or not, and that may disrupt his
employment, drain his financial resources, cur-
tail his associations, subject him to public
obloquy, and create anxiety in him, his family
and his friends." (United States v. Marion, 404
U.S. 307, 30 L ed 2d 468, 478, 92 S.Ct. 455;
cited by Mr. Justice White in his concurring
opinion in Barker.)
See also: Moore v. Arizona, 414 U.S. 25, 38 L ed 2d 183, 94

The record is bare of facts on anxiety and concern caused
defendant, but during oral argument and in the briefs submitted,
statements were made indicating a number of the interferences
with defendant's liberty set forth in Klopfer and Marion had occurred
to defendant. Given the nature of the charges, public and private
feelings against defendant would be expected.
It is difficult to determine whether defendant would be
prejudiced due to impairment of his defense as there has been no
trial or witness testimony which might indicate a loss of memory
regarding events of the distant past. The prosecution might also
have its case impaired due to the loss of memory of its witnesses,
but the greater danger of prejudice exists for an innocent de-
fendant who might, through lapse of time, be unable to accurately
recall events on a certain day when there was no remarkable or
memorable occucrences to etch the memory of the day in his mind.
The county attorney argues the district court erred in
dismissing the Information with prejudice.
Section 95-1703(3), R.C.M. 1947, states:
 "An o r d e r f o r t h e d i s m i s s a l of an a c t i o n , a s pro-
vided i n t h i s chapter, i s a bar t o o t h e r prosecution
f o r t h e same o f f e n s e i f it i s a misdemeanor, b u t
it i s n o t a b a r i f t h e o f f e n s e i s a f e l o n y . "

The p r e d e c e s s o r s t a t u t e was h e l d c o n s t i t u t i o n a l by t h i s Court

i n S t a t e v . McGowan, 113 Mont. 591, 1 3 1 P.2d 262,and t h i s h o l d i n g

was r e a f f i r m e d i n S t a t e e x r e l . K e a s t v . D i s t r i c t C o u r t , 135

Mont. 62, 336 P.2d 699. Both McGowan and K e a s t d e a l t w i t h d i s -

missals due t o d e n i a l o f a speedy t r i a l .

There i s no mandate i n s e c t i o n 9 5 - 1 7 0 3 ( 3 ) , R.C.M. 1947,

t o r e p r o s e c u t e should t h e o r i g i n a l p r o s e c u t i o n be d i s m i s s e d due

t o d e n i a l of a speedy t r i a l . The S t a t e may e x e r c i s e d i s c r e t i o n

as t o whether t h e a c c u s e d w i l l be r e p r o s e c u t e d . The t r i a l c o u r t

should possess s i m i l a r d i s c r e t i o n t o d i s a l l o w reprosecution i f

t h e p r e j u d i c e c a u s e d t h e a c c u s e d and h i s d e f e n s e by t h e d e n i a l

of a speedy t r i a l would be compounded by a s u b s e q u e n t p r o s e c u t i o n

f o r t h e same o f f e n s e . Reprosecution i s c o n s t i t u t i o n a l , s o long

a s t h e i n t e r e s t s p r o t e c t e d by t h e r i g h t t o a speedy t r i a l would

n o t c o n t i n u e t o be v i o l a t e d by t h e r e p r o s e c u t i o n .

There must be g u i d e l i n e s f o r t h e t r i a l c o u r t t o f o l l o w

i n d i s m i s s i n g an I n f o r m a t i o n o r i n d i c t m e n t w i t h p r e j u d i c e due

t o d e n i a l of a speedy t r i a l . These g u i d e l i n e s a r e n e c e s s a r y be-

c a u s e a d i s m i s s a l w i t h p r e j u d i c e s h o u l d o n l y be g r a n t e d i f s e r i o u s

harm would be i n f l i c t e d on t h e a c c u s e d ' s r i g h t s by a r e p r o s e c u t i o n .

The g u i d e l i n e s g i v e n t h e f e d e r a l c o u r t system i n 18 U.S.C. $3162(a)(2)

o f t h e Speedy T r i a l Act of 1974 ( P u b l i c Law 93-619) a r e approp-

r i a t e f o r t h e Montana t r i a l c o u r t s i n d e t e r m i n i n g whether t o d i s -

m i s s with o r without prejudice:
" * * * I n d e t e r m i n i n g whether t o d i s m i s s t h e
case with o r without prejudice, t h e c o u r t s h a l l
c o n s i d e r , among o t h e r s , e a c h o f t h e f o l l o w i n g
f a c t o r s : t h e seriousness of t h e offense; t h e
f a c t s and c i r c u m s t a n c e s of t h e c a s e which l e d
t o t h e d i s m i s s a l ; and t h e impact o f a r e p r o s e c u t i o n
on t h e [ r i g h t of a speedy t r i a l ] and on t h e admin-
i s t r a t i o n of j u s t i c e . "
 When applying these factors to the instant case, as
the factors must be examined anew on a case by case basis,
we find the district court used proper discretion in dismiss-
ing the Information with prejudice. The offense is not of such

a serious nature as to require reprosecution for the protection
of society. The 406 day delay and the attendant prejudice to
defendant cannot be remedied by a reprosecution. A reprosecution

in this case would tend to negate the rights protected by the
dismissal due to denial of a speedy trial.
The district court's dismissal of the Information with
prejudice is affirmed.

J ,I Chief Justice

We concur: 1

w Ju tices