No. 80-11
I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
1980
STATE OF MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
VS .
R I C K Y ELDON WORDEN,
D e f e n d a n t and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f L e w i s and C l a r k .
H o n o r a b l e P e t e r G . Meloy, J u d g e p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
H u l l , D r i s c o l l and S h e r l o c k , H e l e n a , Montana
Dave H u l l a r g u e d , H e l e n a , Montana
F o r Respondent- :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
C h a r l e s G r a v e l e y , County A t t o r n e y , a r g u e d , H e l e n a ,
Montana
Submitted: A p r i l 17,1980
Decided: MAY 8 -
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Mr. Justice John C. Sheehy delivered the opinion of the
Court.
Ricky Eldon Worden appeals from his conviction of the
crime of robbery in violation of section 45-5-401, MCA.
Specifically, Worden alleges the District Court, First
Judicial District, Lewis and Clark County, erred in denying
Worden's motion to dismiss for lack of speedy trial.
On November 30, 1978, Worden was charged by information
in Lewis and Clark County with the crime of robbery. At
this same time, Worden was incarcerated and charged in
Phillips County, Montana, on three counts of deliberate
homicide, three counts of aggravated kidnapping, and one
count each of robbery, theft, burglary and conspiracy.
On December 13, 1978, Worden was arraigned before the
District Court, Lewis and Clark County, and pleaded not
guilty to the charge of robbery. At the hearing, Worden
served notice of his intent to rely on the defense of nental
disease or defect and moved the District Court for an order
authorizing Worden's transfer to Warm Springs State Hospital
for a psychiatric evaluation. The motion was granted. The
State moved to quash the order. The District Court did not
rule on the State's motion, yet the Lewis and Clark County
sheriff transported Worden to Malta after the hearing rather
than to Warm Springs. The State's motion to quash was
subsequently denied on December 28, 1978.
On February 15, 1979, the State moved for a continuance
due to conflicts with the proceeding against Worden in
Phillips County. The State moved to withdraw this motion on
March 8, 1979. The District Court denied the withdrawal
motion, and Worden formally filed a motion to dismiss for
lack of a speedy trial. Worden's motion was also denied.
On March 19, 1979, Worden was taken to Warm Springs for
the psychiatric evaluation. An omnibus hearing was held on
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May 3, 1979. Worden was not present at the hearing despite
his prior request. Defense counsel insisted on Worden's
presence, and the District Court ordered Worden be transferred
from Malta where Worden was incarcerated on the Phillips
County charges. The omnibus hearing was reset for May 24,
1979, and defense counsel reasserted his client's right to a
speedy trial. Worden again moved to dismiss for lack of a
speedy trial on October 2, 1979. The motion was denied.
Worden's trial began on October 15, 1979. Just prior
to the trial, Worden again moved to dismiss for lack of a
speedy trial. This motion was also denied. At trial,
Worden called no witnesses on his behalf and offered no
exhibits. Upon his conviction, Worden was sentenced to
forty years in the Montana State Prison. The sentence is to
run consecutively with Worden's sentence on the Phillips
County charges, and since Worden was found to be a dangerous
offender, he is ineligible for parole.
The sole issue upon appeal is whether the District
Court erred in denying Worden's motion to dismiss for lack
of a speedy trial. We find no error.
Each speedy trial case must be considered on an - -
ad hoc
basis. We must balance the conduct of both the State and
Worden keeping in mind the length of the delay, the reason
for the delay, Worden's assertion of the right and any
prejudice to Worden. We will examine each of these factors
in turn.
A. Length of Delay
The length of the delay is a triggering device. There
is no need to examine the other three factors unless some
delay has occurred which is deemed presumptively prejudicial.
What length will be deemed presumptively prejudicial depends
on the facts of each individual case. A longer delay will
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be t o l e r a t e d i n a complex c a s e t h a n would b e t o l e r a t e d i n
one i n v o l v i n g a s i m p l e f a c t s i t u a t i o n . S t a t e v. Harvey
(1979) , Mont . , 603 P.2d 661, 667, 36 St.Rep. 2035,
2041.
The p a s s a g e h e r e of 319 days from t h e d a t e t h e i n f o r m a t i o n
w a s f i l e d t o t h e d a t e of t h e t r i a l i s s u f f i c i e n t t o s h i f t t o
t h e S t a t e t h e burden o f e x p l a i n i n g t h e r e a s o n f o r t h e d e l a y
and showing t h e a b s e n c e o f p r e j u d i c e t o Worden. This w a s
n o t a complex c a u s e . Any c o m p l e x i t y was due t o t h e f a c t
t h a t t h e S t a t e c h o s e t o proceed w i t h t h i s c a u s e a t t h e same
t i m e Worden w a s b e i n g t r i e d on t h e P h i l l i p s County c h a r g e s .
Moreover, t h e d e l a y h e r e i s l o n g e r o r comparable t o t h e
" t r i g g e r i n g " d e l a y s i n S t a t e v. Harvey, s u p r a (229 d a y s ) ;
S t a t e v. D e s s ( 1 9 7 9 ) , Mont. , 602 P.2d 1 4 2 , 36
St.Rep. 1929 (249 d a y s ) ; S t a t e v. Freeman ( 1 9 7 9 ) , - Mont.
,
- 599 P.2d 368, 36 St.Rep. 1622 (207 d a y s ) ; S t a t e v.
T i e d e m a n n ( l 9 7 8 ) , - Mont . - 584 P.2d 1284, 35 St.Rep.
,
1705 (16-1/2 m o n t h s ) ; S t a t e v. C a s s i d y ( 1 9 7 8 ) , Mont .
,
- 578 P.2d 735, 35 St.Rep. 612 (246 d a y s ) ; S t a t e e x r e l .
B r i c e n o v. D i s t . C t . of 1 3 t h Jud. D i s t , e t c . ( 1 9 7 7 ) , 173
Mont. 516, 568 P.2d 162, ( 7 m o n t h s ) ; S t a t e ex r e l . S a n f o r d
v. D i s t r i c t C o u r t ( 1 9 7 6 ) , 170 Mont. 196, 551 P.2d 1005 (10
m o n t h s ) ; and, F i t z p a t r i c k v. C r i s t ( 1 9 7 4 ) , 165 Mont. 382,
528 P.2d 1322 (11 m o n t h s ) .
B. Reason f o r Delay.
D i f f e r e n t w e i g h t s w i l l be a s s i g n e d t o d i f f e r e n t r e a s o n s
f o r t h e delay. Thus, i n t e n t i o n a l d e l a y w i l l weigh more
h e a v i l y t h a n d e l a y s which a r e i n h e r e n t i n t h e system. State
v. Harvey, s u p r a , 603 P.2d a t 667.
Most o f t h e d e l a y h e r e w a s due t o t h e S t a t e ' s c o n d u c t .
T h i s s h o u l d weigh h e a v i l y a g a i n s t t h e S t a t e . After the
a r r a i g n m e n t , Worden w a s t r a n s f e r r e d t o Malta r a t h e r t h a n t o
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Warm Springs as ordered by the District Court. Similarly,
at least two pretrial hearings had to be rescheduled due to
the State's failure to appear. Finally, much of the delay
was caused by the State's failure to have Worden present at
pretrial hearings despite Worden's express desire to do so.
The State refused voluntarily to bring Worden to Lewis and
Clark County and mistakenly insisted the District Court was
without any power to order Worden's presence.
The other major cause of the delay was institutional
delay inherent in the system. While this cause weighs less
heavily against the State, it still must be considered. The
State bears the burden of bringing a defendant to trial.
667
State v. Harvey, supra, 603 P.2d at &.
C. Assertion of Right.
The defendant's assertion of his speedy trial right is
entitled to great weight in determining a deprivation of
that right. State v. Bretz (1979), - Mont . , 605 P.2d
974, 983, 36 St.Rep. 1037, 1043. Here, Worden asserted his
speedy trial right on six separate occasions throughout the
period of the delay.
The State asserts Worden was not really interested in a
speedy trial as evidenced by Worden's lack of preparation
for trial and the number and order of motions filed by
Worden. The contention is without merit. Defense counsel
was prepared for each stage of the proceedings. Moreover,
defense counsel tried to expedite the proceedings on several
occasions. Next, the State relies heavily on State v.
Carden (1977), 173 Mont. 77, 566 P.2d 780, in this regard,
but that case is clearly distinguishable.
D. Prejudice.
This factor must be weighed with regard to the three
interests which the speedy trial right is intended to protect.
These interests are avoiding oppressive pretrial incarceration,
minimizing the anxiety and concern of the accused, and
limiting the possibility of irr~pai'rLngthe accused's
Gb%
defense. State v. Harvey, supra, 603 P.2d at HH-.- In
this cause, no prejudice is attributable to the State.
There is no evidence of oppressive pretrial incarceration
here. Worden was incarcerated for over ten months prior to
his trial, but that incarceration was due in large part to
unrelated offenses. This Court cannot attribute any prejudice
from that incarceration to the cause at hand. We cannot
assess fault by any precise means. State v. Harvey, supra,
66%
603 P.2d at W.
Worden has not demonstrated any undue anxiety and
concern resulting from the delay here. For the most part,
any anxiety and concern was due to Worden's incarceration on
the unrelated charges. Any anxiety and concern suffered
from those charges cannot be charged against the State here.
663
State v. Harvey, supra, 603 P. 2d at W.
Worden has not demonstrated any factors which show an
impairment of his ability to prepare a defense. At trial,
Worden had no defense; he did not call any witnesses nor
offer any exhibits. State v. Dess, supra, 602 P.2d at 146.
Moreover, there has been no showing of what defense would
have been presented but for the delay and how that defense
was impaired by the delay.
E. Balance.
No one factor in the speedy trial analysis is necessary
in all circumstances or sufficient alone to determine a
deprivation of the speedy trial right. All factors must be
considered together with such other factors as might be
relevant. This Court must engage in a difficult and sensitive
balancing process. State v. Dess, supra, 602 P.2d at 146.
The ordinary procedures for criminal prosecution are
designed to move at a deliberate pace. Here, the cause did
not progress in as orderly and deliberate a step by step
progression to trial as it might have. This was not a
difficult cause. Yet, Worden has not demonstrated any
prejudice whatsoever from the delay. Worden presented no
defense at trial. Therefore, it is hard to imagine how
Worden was prejudiced from any denial of his speedy trial
right.
Having found no error in the District Court's denial of
Worden's motion to dismiss for lack of a speedy trial,
Worden's conviction on the charge of robbery is affirmed.
We Concur:
Chief Justice
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Justices
Mr. Justice Daniel J. Shea concurring:
I concur in the result of the majority but not in
all that is stated.
Ju