NO. 32-102
I N THE SUPREFE COURT OF THE STATE OF M N A A
OTN
1982
STATE O F MONTANA,
P l a i n t i f f and Respondent,
-vs-
TERRY LEE ACKLEY,
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 Fourth 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 M i s s o u l a , The Honorable
Douglas G. Warkin, J u d g e p r e s i d i n g .
Counsel o f Record:
For Appellant:
Goldman and Goldman, M i s s o u l a , >lantana
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 , G e l e n a ,
Montana
R o b e r t L. Deschamps, County A t t o r n e y , 1 4 i s s o u l a ,
Montana
S u b m i t t e d on B r i e f s : S e p t e n b e r 16, 1982
~ e c i d e d : November 1 6 , 1982
Filed:
Xr. Fred J. Weber delivered the Opinion of the Court.
Terry Ackley was convicted of burglary in the District
Court of the Fourth Judicial District, Missoula County. He
appeals the conviction, and we affirm.
A single issue has been raised for our review: Was
the appellant denied his constitutional right to a speedy
trial?
On March 11, 1981, a complaint was filed in Missoula
County Justice Court charging appellant with the crime of
burglary, a felony under section 45-6-204, MCA. An arrest
warrant was issued, and appellant was arrested in Eugene,
Oregon, on March 17, 1981. On April 14, 1981, appellant
waived extradition, and he was transported to Missoula
County on April 18, 1981. Appellant's initial appearance
in Justice Court took place on April 20, 1981. Appellant
again appeared in Justice Court on April 27, 1981, at which
time he waived a preliminary examination and was released
on his own recognizance.
On May 13, 1981, the county attorney filed an information
in District Court. Arraignment was set for May 27, 1981.
On P l y 21, 1981, appellant's counsel moved that the arraignment
'a
be reset for June 3, 1981. The motion was granted and
appellant appeared with counsel on June 3, 1981, and entered
a plea of not guilty.
An omnibus hearing was held on September 1, 1931, at
which time trial was set for October 19, 1981. On September
17, 1981, the trial judge, acting sua sponte, reset the
trial date to November 2, 1981. Some time later the judge
again reset the trial date, this time to November 23, 1981.
Appellant filed a motion to dismiss on November 12, 1981.
The motion alleged the deprivation of appellant's right to
a speedy trial. The motion was denied, and appellant's
trial began on November 23, 1981. The jury returned a
verdict of guilty on November 25, 1981. This appeal foll-owed.
The sole issue on appeal is whether Terry Ackley was
denied his right to a speedy trial.
A person accused of a crime is guaranteed the fundamental
right to a speedy trial by the Sixth Amendment to the United
States Constitution, which is made applicable to the states
by virtue of the Fourteenth Amendment. Klopfer v. North
Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1.
In Montana, the same right is provided by Article 11, Section
24, of the Montana Constitution. In Barker v. Wingo (19721,
407 U.S. 514, 92 S.@t. 2182, 33 L.Ed.2d 101, the United
States Supreme Court established a test by which courts
could determine whether an accused has been deprived of his
or her right to a speedy trial. The Barker test has been
applied by this Court, and it was stated in State ex rel.
Briceno v. Dist. Ct. of 13th Jud. Dist., etc. (1977), 173
Mofit. 516, 518, 568 P.2d 162, 163-4, that:
"These cases involve a sensitive balancing
of four factors, in which the conduct of
the prosecution and the defendant are weighed
in determining whether there has been a denial
of the right to a speedy trial. The four factors
to be evaluated and balanced are:
" (1) Length of delay;
"(2) Reason for delay;
"(3) Assertion of the right by defendant; and
" (4) Prejudice .Lo the defendant. "
We will now apply these factors to the case before us.
"The length of the delay is to some extent
a triggering mechanism. Until there is
some delay which is presumptively prejucial,
there is no necessity for inquiry into the
other factors that go into the balance."
Barker, supra, 407 U.S. at 530, 92 S.Ct. at
2192, 33 L.Ed.2d at 117.
The speedy trial right attaches when the putative
defendant in some way becomes an "accused." United States
v. Marion (1971), 404 U.S. 307, 313, 92 S.Ct. 455, 459,
30 L.Ed.2d 468, 474. The complaint which accused appellant
of theft was filed on Plarch 11, 1981, and he came to trial
on November 23, 1981. Thus, 257 days elapsed between the
appellant's acquisition of the constitutional protection and
his coming to trial. Cases have arisen in Montana in which
this Court has found that a shorter period of time was
sufficient to give rise to the presumption. State v. Harvey
(19791, - Mon t . -, 603 P.2d 661, 36 St.Rep. 2035, (229
days between filing of information and date of trial); State
v. Cassidy (1978), 176 Mont. 385, 578 P.2d 735, (246 days
between arrest and date of trial). Therefore, we find that
the passage of 257 days in the noncomplex case before us
is a presumptive deprivation of appellant's right to a speedy
trial. Once the presumption is raised, the State must assume
the burden of explaining the reason for the delay and showing
an absence of prejudice to the appellant. Fitzpatrick v.
Crist (19741, 165 Mont. 382, 388, 528 P.2d 1322, 1326;
State v. Cassidy (1978), 176 Mont. 385, 390, 578 P.2d 735,
732.
The State acknowledges that the only delay attributable
to the appellant is the one week postponement of the arraign-
ment which was requested by appellant's counsel. The State
characterizes the delay between the June 3, 1981, arraignment
and the November 23, 1981, trial as institutional in nature
ana due to jury term and calendaring problems and the fact
that the judge was newly elected. It is true that the delay
was not caused by the tactics of the prosecution, and it
should be weighed less heavily against the State. ~arker,
supra, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117.
Nevertheless, institutional delay still must be considered
by this Court; "[dlelay inherent in the system is chargeable
to the State." State v. Harvey, supra, - Mont. at I
603 P.2d at 667, 36 St.Rep. at 2042. The reasons for the
delay advanced by the State do not excuse the delay.
The State does n ~ dispute the fact that appellant
t
satisfied the third factor of the Barker test by properly
asserting his speedy trial right. Appellant met his burden
by making a timely motion to dismiss based upon the denial
of his right to a speedy trial. Appellant's motion was
made on November 12, 1981, eleven days before trial.
"The proper time to assert the right to a
speedy trial is prior to the actual commence-
ment of the trial, usually at the time the
trial date is set, or the time the case is
called to trial." State v. Steward (1975),
168 Mont. 385, 390-91, 543 P.2d 178, 182.
In its denial of the motion to dismiss, the District
Court found that the appellant had waived his right to a
speedy trial by not making his motion at the omnibus hearing
on September 1, 1981. The omnibus hearing checklist states
"[tlhat defense counsel knows of no problems involving . . .
speedy trial . . ." Counsel for appellant signed this form.
Because the State has chosen not to raise this point, it is
not being considered as a factor in the present case. However,
in a closer speedy trial case, this could be a factor for
consideration, keeping in mind the United States Supreme
Court cases which speak of the presumption against waivers
of constitutional rights.
Finally, we must consider whether the appellant was
prejudiced by the passage of time before trial. In Barker,
the United States Supreme Court identified three interests
of a defendant which may be prejudiced by delay in coming
to trial. The speedy trial right is designed:
". . . (i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit
the possibility that the defense will be
impaired." Barker, supra, 407 U.S. at 532,
92 S.Ct. at 2193, 33 L.Ed.2d at 118.
(1) Appellant spent 41 days in custody from the time
of arrest in Eugene, Oregon, to release on his own recognizance
in Missoula, Montana. The District Court found that this
incarceration was minimal under the circumstances. Following
arrest, it was necessary for the State to make application
for extradition, after which the defendant agreed to
voluntary extradition. We do not find any indication of
oppressive incarceration here.
(2) The "anxiety of the accused" which appellant
claims to have suffered is an inability to secure employment,
marital problems, and a diminution of his freedom of speech.
Appellant did not offer any evidence to support such
assertions. The State's burden to show a lack of prejudice
becomes considerably lighter in the absence of evidence of
prejudice to the appellant. On the employment issue, the
facts show that appellant returned to Eugene, Oregon, upGn
his release on his own recognizance. In 1977, appellant
was sentenced to a prison term for burglary in Eugene, Oregon.
That conviction would appear to have been at least as
significant as the charge in the present case in reducing
the likelihood of securing employment. As to marital
problems and timidity in speaking out, we recognize that
a certain amount of concern and anxiety are inherent in
being accused of a crime. State v. Collins (1978), 178
Mont. 36, 50, 582 P.2d 1179, 1186. Nonetheless, in the
absence of evidence on the part of appellant, we do not find
unusual, significant anxiety or concern under the present
facts.
(3) Appellent contends that his defense was impaired
because two witnesses had memory lapses. The difficulties
in recollection by these witnesses did not relate to any
key elements of the case. These two witnesses were called
by the State. The difficulties in recollection arose when
appellant's counsel was seeking to attack the credibility
of those witnesses. As a result, their problems in memory
appear to have been more of a benefit to appellant than a
problem. On this issue it is important to note that the
defendant did not call any witnesses in his own defense.
Appellant also complains that the State did not provide
him with current addresses and telephone numbers of the
State's witnesses until one week before trial. We note
that the original addresses of the witnesses were provided
on May 13, 1981, and that the witnesses were friends of
the appellant. If in fact the appellant had a problem in
preparation for trial, he should have dealt with the same
by a motion for continuance or a motion in limine. We find
that appellant has completely failed to show that his
defense was impaired in any way.
Having reviewed the entire record, and having balanced
the factors required under Barker v. Wingo, we conclude
that Terry Ackley was not denied his right to a speedy trial.
The judgment is affirmed.
We Concur:
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p 4 4J u s t i c e
Chief