No. 14603
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
EDWARD R. HARVEY,
Defendant and Appellant.
Appeal from: District Court of the Third Judicial District,
Honorable Robert J. Boyd, Judge presiding.
Counsel of Record:
For Appellant:
Knight, Dahood, Mackay and McLean, Anaconda, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Ted Mizner, County Attorney, Deer Lodge, Montana
Submitted on briefs: September 13, 1979
Decided: MOV 2 1 1979
. . *
Filed: - 2 , . ' '*7
Mr. Justice John C. Sheehy delivered the Opinion of the Court.
Defendant Edward R. Harvey appeals from a conviction entered
in the District Court, Third Judicial District, Powell County, on
the charge of felony theft in violation of section 45-6-301, MCA.
On February 16, 1978, an information was filed in the
District Court, Powell County, charging Harvey with the November
23, 1977, felony theft of a .243 caliber Sako rifle from Theodore
Nelson. On February 23, 1978, Harvey entered a plea of not guilty
and the District Court appointed counsel to represent Harvey.
Harvey was released on a recognizance bond at this time. On
April 27, 1978, however, Harvey was incarcerated in the Montana
State Penitentiary for a parole violation charge.
On September 19, 1978, Harvey filed a motion to dismiss on
the ground of failure to grant a speedy trial. That motion was
denied two days later. Harvey then filed a writ of supervisory
control with this Court on September 22, 1978. We denied the
writ without prejudice on September 29, 1978.
During the time Harvey was incarcerated for the parole
violation charge, he became dissatisfied with the work of his
court-appointed counsel. So, on October 2, 1978, one day before
the trial of this cause, Harvey excused his court-appointed
counsel. Harvey represented himself throughout his trial on the
charge of felony theft.
At the trial, there was a conflict in testimony concerning
the circumstances surrounding the theft of the Sako rifle.
Robert Paulus, Harvey's former son-in-law, was the State's
chief witness. Paulus testified at the trial that he and Loretta
Paulus (Dillion), his former wife, were house guests of the
Harveys during the Thanksgiving holidays. At about ten or
eleven o'clock p.m. on November 23, 1977, both couples decided
to go to Elliston, Montana, to sell a used pickup truck for
Wallin's Ford, where Edward Harvey was employed as a salesman.
They arrived in Elliston about a half hour later and stopped
at a bar there.
Paulus further testified that Edward Harvey noticed a
. 2 4 3 caliber Sako rifle in the back window of a pickup truck
parked at the bar. Ignoring the warnings of his three passengers,
Edward Harvey put on a pair of gloves, unlocked the door through
the vent window and took the rifle. Edward Harvey then left with
the rifle and headed towards Helmville, Montana. Harvey stopped
just outside of Avon, Montana, shot five shells through the
rifle and discarded the leather sling from the rifle. About
fifteen minutes later, Harvey and his passengers returned to
Deer Lodge. Upon arriving at the Harveys'. apartment, Harvey put
the rifle in the closet in the bedroom.
Harvey was the only witness for his defense. He testified
that Paulus brought the rifle to the Harvey's apartment on
November 23, 1977. Paulus told the Harveys that he needed money.
Over Harvey's objections, Paulus talked Mrs. Harvey into
buying the rifle for $135. Mrs. Harvey executed a receipt for
payment in full for the rifle. She handed the receipt to Paulus
for his signature and walked out of the room to get the $135.
While Mrs. Harvey was out of the room, Paulus signed the name
Paul Johnson on the receipt, folded it in half and gave it back
to Mrs. Harvey upon her return. Mrs. Harvey stored the receipt
without ever looking at the signature.
On November 29, 1977, Paulus and his wife returned to their
home in Roundup, Montana. On their way, they stopped at the
McDonald Pass Bar in Elliston to report Harvey's theft.
In January 1978, a special deputy sheriff came to the
Harvey residence to inquire about the rifle. Harvey was the only
one home at the time. Harvey voluntarily gave the rifle to the
-3-
deputy sheriff. An examination of the serial number confirmed
that the rifle belonged to Theodore Nelson. Harvey was informed
that the rifle was stolen and would have to be confiscated.
Mrs. Harvey arrived just as the deputy sheriff was leaving.
The deputy sheriff was informed that Mrs. Harvey had purchased
the rifle from her son-in-law, Paulus. Mrs. Harvey then
produced the receipt bearing the name Paul Johnson for the
deputy sheriff.
Harvey's trial on the charge of felony theft was held on
October 3, 1978. A jury verdict of guilty was entered on October
4, 1978, and on October 19, 1978, Harvey was sentenced to a term
of five years in the state penitentiary.
Following his conviction, Harvey, acting pro se, filed a
notice of appeal and appellant's initial brief. On May 10,
1979, the District Court appointed counsel to represent Harvey
upon this appeal.
Harvey raises the following issues upon appeal:
1. Was the evidence sufficient to support a finding that
the value of the Sako rifle exceeded $150?
2. Did the District Court err in failing to instruct
the jury that Harvey could have been convicted of a lesser
included offense?
3. Was Harvey denied the right to adequate counsel?
4. Did the District Court abuse its discretion in
requiring Harvey to testify in question-answer form?
5. Was Paulus an accomplice to the crime charged, and
if so, did the State fail to corroborate his testimony?
6. Was it error to deny Harvey's motion for a continuance
for the purpose of subpoenaing witnesses to impeach Paulus'
testimony?
7. Was Harvey denied his constitutional right to a speedy
trial?
Having examined the record and the briefs of both parties,
we find for the State on all issues.
The first assignment of error questions the sufficiency
of the evidence to support a finding that the value of the Sako
rifle exceeded $150. In effect, Harvey is challenging the
sufficiency of the evidence to support the verdict. The value
of the property taken must exceed $150 before a conviction for
felony theft will lie. Section 45-6-301(4), MCA.
Harvey's contention is without merit. The determination
of disputed questions of fact and the credibility of witnesses
is within the province of the jury. State v. Bouldin (1969),
153 Mont. 276, 284, 456 P.2d 830, 834. Upon appeal, we will
not disturb a verdict if substantial evidence is found to support
that verdict. State v. McKenzie (19781, Mont. , 581
P.2d 1205, 1226, 35 St.Rep. 759, 785.
We find sufficient evidence of the value of the rifle to
support the verdict rendered. At the trial, Marvin Hiatt,
owner of a Deer Lodge sporting goods store, testified that the
rifle had a current wholesale value of between $175 and $200
and a current retail value of between $200 and $280. Similarly,
Theodore P?-lson, the owner of the rifle, testified at the trial
that he had the rifle appraised at $280. Harvey made no objection
to the testimony of either of these witnesses.
The second assignment of error is that the District Court
erred in failing to instruct the jury on misdemeanor theft.
Harvey never offered such an instruction at the trial level.
In State v. Radi (1975), 168 Mont. 320, 325, 542 P.2d 1206,
1209-1210, we said:
". . . Generally, this Court will refuse to rule
on issues which were not presented to the district
court and this rule is especially applicable to the
instant case. The Montana Code of Criminal Procedure,
section 95-1910(d), R.C.M. 1947, [now section 46-16-401,
MCA] provides in pertinent part:
-5-
"'When the evidence is concluded, if either party
desires special instructions to be given to the
jury, such instructions shall be reduced to writing,
numbered, and signed by the party, or his attorney,
and delivered to the court.'
"The statute is written in mandatory language and
therefore should be construed as such. State v.
Cook, 42 Mont. 329, 112 P. 537; State v. ~ o u g h z t y ,
71 Mont. 265, 229 P. 735; State v. ~ a w ~ 71,Mont.
r
269. 229 P. 734: State - -~ne.2
v. ous16 Mont. 341, 251
~.2d 254; s t a t e- .
* ~ Maciel, 130 Mont. 569, 305 ~ 1 2 d
335."
The third assignment of error is that Harvey was denied
the right to adequate counsel.
The record does not support the contention that Harvey's
court-appointed counsel was inadequate prior to his excusal.
The court-appointed counsel assisted Harvey by interviewing
witnesses in preparation for trial, subpoenaing witnesses and
filing in good faith two motions to dismiss.
Harvey also may not complain that he himself was inadequate
at trial. The Sixth and Fourteenth Amendments to the United
States Constitution guarantee to an accused the right of self-
representation provided the choice has been made knowingly and
intelligently. Faretta v. California (1975), 422 U.S. 806, 95
The record establishes that Harvey made his choice of self-
representation with his eyes wide open. Adams v. United States
ex rel. McCann (1942), 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87
L.Ed. 268, 275. The District Court repeatedly warned Harvey
of the disadvantages of self-representation. In fact, the
District Court appointed "standby" counsel to assist Harvey should
he so request. Having made his choice of self-representation
knowingly and intelligently, Harvey cannot now be heard to
complain.
The fourth assignment of error is that the District Court
abused its discretion in requiring Harvey to testify in question-
answer form.
The mode and order of the presentation of evidence is
within the sound discretion of the District Court. Rule 611(a),
Mont.R.Evid., provides in pertinent part:
"(a) Control by court. The court shall exercise
reasonable control over the mode and order of
interrogating witnesses and presenting evidence
so as to (1) make the interrogation and presentation
effective for the ascertainment of the truth . . ."
The District Court required Harvey to testify in question-
answer form to give the State an opportunity to object and avoid
the introduction of inadmissable evidence. Harvey can claim no
prejudice from being barred from introducing inadmissable evidence.
Once again, the District Court warned Harvey at the outset of
the difficulties in representing himself. Moreover, the District
Court advised Harvey that he could use "standby" counsel to ask
the questions while he testified, but Harvey refused to do so.
The fifth assignment of error is that the State failed
to corroborate the testimony of Robert Paulus.
An accused may not be convicted solely on an accomplice's
testimony. Section 46-16-213, MCA. State v. Harmon (19591,
135 Mont. 227, 236, 340 P.2d 128, 132, defines accomplice as
follows:
"An accomplice is defined by Chief Justice Brantly
as 'one who knowingly, voluntarily, and with common
intent with the principal offender unites in the
commission of a crime.. . . One may become an
accomplice by being present and joining in the
criminal act, by aiding and abetting another in
its commission, or, not being present, by advising
and encouraging its commission; but knowledge and
voluntary actions are essential in order to impute
guilt.' State ex rel. Webb v. District Court, 1908,
37 Mont. 191, 200, 201, 95 P. 593, 597, 15 Ann.
Cas. 745, jury tampering; included with citations
in 3 Jones on Evidence, 5th ed., 5813 at p. 1525."
There is no evidence in the record indicating Paulus
knowingly, voluntarily and with common intent united with Harvey
in the commission of a crime. Therefore, the State did not have
to corroborate Paulus' testimony.
The sixth assignment of error is that the District Court
erred in failing to grant Harvey's motion for a continuance for
the purpose of challenging the credibility of Paulus, the
State's witness.
After both sides rested, Harvey orally moved the District
Court for a continuance so he could subpoena personnel from the
Black Hills Pack or the Billings Vocational-Technical School
to prove Paulus did not work at either of these businesses as
he had testified.
The denial of a motion for a continuance is within the sound
discretion of the District Court, and it is not error to deny
such a motion unless a clear abuse of discretion is shown. State
v. Olsen (1968), 152 Mont. 1, 11, 445 P.2d 926, 932.
Section 25-4-501, MCA, provides:
"Motion to postpone -- absence of testimony.
trial for
A motionto postpone a trial on groundsof the
absence of evidence shall only be made upon affidavit
showing the materiality of the evidence expected to
be obtained and that due diligence has been used to
procure it."
The language of the statute is mandatory and must be construed
as such. State v. Radi, supra.
Harvey never filed an affidavit demonstrating materiality
or due diligence. In view of Harvey's failure to comply with
section 25-4-501, MCA, it cannot be said the District Court
abused its discretion in denying the motion for a continuance.
State v. Pascgo (19771, ~ o n.
t , 566 P.2d 802, 804,
34 St.Rep. 657, 659.
Also, the matters sought to be obtained by the motion for
a continuance go to the credibility of a witness and not to
facts which tend to prove or disprove the allegations of the
information. One cannot impeach a witness on a collateral
matter. Tigh v. College Park Realty Co. (1967), 149 Mont. 358,
The final assignment of error is that the District
Court erred in denying Harvey's motion to dismiss for failure
to grant a speedy trial.
The following is the table of relevant dates and events
set forth in the State's brief.
DATE TOTAL DAYS
ELAPSED
Information filed 0
Arraignment
Continuance to consult with attorney
requested by and granted to defendant
Defendant released on own
recognizance
Entry of plea 7
Defendant incarcerated on parole
violation charge 70
Motion by defendant to dismiss on
grounds of double jeopardy filed 126
Motion to dismiss denied 147
Trial set for 9/19/78 202
Trial continued 209
Motion by defendant to dismiss
for failure to grant a speedy
trial filed 215
State's opposition to motion to
dismiss filed 217
Motion to dismiss denied
Trial reset for 10/2/78
Trial continued 228
Trial 229
Verdict 230
The right of an accused to a speedy trial is guaranteed
by both the United States and Montana Constitutions. United
States Constitution, Amend. VI; 1972 Mont. Const., Art. 11,
524. The Fourteenth Amendment due process clause imposes the
federal standard, as a minimum, upon Montana. See Dickey v.
Florida (1970), 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26; and
State v. Bretz (19791, - Mont. I
- - P.2d I 36
Each speedy trial case must be considered on an - -
ad hoc
basis. We must balance the conduct of both Harvey and the
State. In balancing such conduct, we must look to four factors:
the length of the delay, the reason for the delay, the defendant's
assertion of the right and any prejudice to the defendant.
Barker v. Wingo (19721, 407 U.S. 514, 530, 92 S.Ct. 2182,
2192, 33 L.Ed.2d 101, 116-117; State v Bretz, supra,
.
36 St.Rep. at 1041.
. W e will examine each of these four factors individually
under the facts of the instant case.
Length - delay.
of The length of the delay is a triggering
device. There is no need to examine the other three factors
until some delay which is deemed presumptively prejudicial has
occurred. What length will be deemed presumptively prejudicial
depends on the facts of each individual case. A longer delay will
be tolerated in a complex case than would be tolerated in one
involving a simple fact situation. Barker v. Wingo, supra, 407
U.S. at 530-531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; State v.
Bretz, supra, 36 St.Rep. at 1041-1042.
In the instant case, the passage of 229 days from the
date the information was filed to the date of the trial is
sufficient to shift to the State the burden of explaining the
reason for the delay and showing absence of prejudice to Harvey.
This was not a complex case.
The State asserts that thirty days should be subtracted
because of motions made by Harvey. We do not agree. The good
faith motions of a defendant are not chargeable to that defendant.
State v. Carden (19771, Mont . , 566 P.2d 780, 785,
34 St.Rep. 420, 427.
Reason - - delay.
for the Different weights must be assigned
to different reasons for the delay. Barker v. Wingo, supra,
407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; State v.
Bretz, supra, 36 St.Rep. at 1042. The State asserts the delay
in this case was institutional delay. While institutional delay
weighs less heavy than intentional delay by the State, it still
-10-
must be considered. Delay inherent in the system is
chargeable to the State. The State bears the burden of
bringing a defendant to trial. State v. Puzio and Allen
(1979), Mont . I P.2d , 36 St.Rep. 1004,
Defendant's assertion - - right.
of the The defendant's
assertion of his right is entitled to strong evidentiary weight
in determining a deprivation of that right. State v. Bretz,
supra, 36 St.Rep. at 1043. Therefore, an accused should take
some affirmative action to be entitled to a discharge for
delay. The appropriate action is a motion to dismiss for
denial of a speedy trial made prior to the commencement of
the trial. State v. Puzio and Allen, supra, 36 St.Rep. at
1008. This was done by Harvey.
Prejudice - - defendant.
to the This factor must be weighed
with regard to the three interests which the right to a
speedy trial is intended to protect. These three factors are
(1) avoiding oppressive pretrial incarceration, (2) minimizing
the anxiety and concern of the accused and (3) limiting the
possibility of impairing the accused's defense. State v.
Bretz, supra, 36 St.Rep. at 1044.
We find no evidence of oppressive pretrial incarceration.
Initially, Harvey was released on a recognizance bond. On
April 27, 1978, Harvey was incarcerated on a parole violation
charge. The grounds for the parole revocation were possession
of a weapon, the Sako rifle, and Harvey's drinking habits.
Since Harvey's pretrial incarceration was due in part to an
unrelated offense, we cannot attribute any prejudice from that
imprisonment to the case at hand. We cannot assess the fault
by any precise means. - State v. Bretz, supra, 36 St.Rep.
See,
at 1044; and State v. Mielke (1966), 148 Mont. 320, 420 P.2d
155.
-11-
Harvey next contends he suffered undue anxiety and concern
while waiting to be brought to trial. Prior to his being
charged with felony theft, Harvey had made a new life for
himself. He was a successful salesman for Wallin's Ford in
Deer Lodge, and the people of that city trusted him. However,
as a result of the felony charge and his pretrial incarceration,
he lost his job, his income, the public trust and his wife
suffered an emotional breakdown.
Harvey's contention is without merit. To a large extent,
any emotional stress, economic hardship or public obloguy
suffered by Harvey were due to his incarceration for an unrelated
offense. Any prejudice suffered from that incarceration cannot
be charged against the State. See State v. Bretz, supra; and
State v. Mielke, supra.
Harvey contends his pretrial incarceration impaired his
ability to prepare a defense. As a result of that incarceration
his wife suffered such emotional distress that Harvey could
not call her as a witness. Similarly, Harvey could not call
his daughter as a witness since she blamed Harvey for her
divorce.
Harvey has not shown any factors which would impair his
ability to prepare a defense. There is no evidence that any
witness died prior to the trial or that any witness suffered
an impaired memory due to the delay. The distress within
Harvey's family is unfortunate. However, Harvey could have
subpoenaed his wife and daughter but voluntarily chose not
to do so.
Application. On the balance, we find no excessive delay
in bringing this cause to trial. While no one factor is
determinative, the presence of prejudice should be weighed
heavily in the balancing of all factors. Barker v. Wingo,
supra. Harvey has not demonstrated any actual prejudice which
is attributable to the State.
-12-
Having found no substance to Harvey's assignments of error,
we affirm the conviction entered by the District Court.
i
/
'
Justice u
We Concur:
Chief Justice
..................................
Justices