No. 87-468
IN THE STJPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
NORMAN GERALD BARTNES ,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District
In and for the County of Custer,
The Honorable Alfred R. Coate, Judge presiding.
COITMSEL OF RECORD:
For Appellant:
James G. Hunt, Helena, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Paul D. Johnson, Asst. Atty. General, Helena
Keith D. Haker, County Attorney, Miles City, Montana
Submitted on Briefs: Oct. 13, 1988
Decided: November 29, 1988
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Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The defendant, Mr. Rartnes, was convicted by a jurv of
criminal sale of dangerous drugs in the District Court for
the Sixteenth Judicial District, Custer County. He appeals
his conviction and sentence. We affirm.
The issues presented to this Court are:
1. Was the defendant denied his constitutional rights
by either pre-indictment or post-indictment delay?
2. Did the District Court err in refusing the defen-
dant's jury instructions on criminal possession of dangerous
drugs or criminal possession with intent to sell?
Robert Fairchild, an undercover agent for the Montana
Criminal Investigation Bureau, testified at trial that in May
of 1986, the defendant had sold him methamphetamine, which is
a dangerous drug under Montana law otherwise known as
"crank." Agent Fairchild testified that the drug connection
was established through Sandra JO Stone, from whom he had
purchased drugs during the course of his undercover investi-
gation in Miles City, beginning in January 1986.
On May 7, 1986, Agent Fairchild contacted Ms. Stone and
told her he wanted to buy an ounce of methamphetamine. Ms.
Stone told him that she would make contact with a person
named "Bruno," whom Agent Fairchild identified at trial as
the defendant. Ms. Stone and Agent Fairchild went to a bar
where the defendant was playing cards. Ms. Stone testified
that she made contact with the defendant at the bar, but that
no sale took place at that time and that she told Agent
Fairchild to stop by her residence later than evening. Agent
Fairchild testified that when he arrived, Ms. Stone made a
phone call to arrange the drug sale, presumably with the man
named "Bruno." Following the conversation, Ms. Stone told
Agent Fairchild he could purchase an ounce of methamphetamine
after the bars closed at 2 a.m.
Agent Fairchild later telephoned Ms. Stone and arranged
to meet her at another bar to consummate the deal. He went
to the bar accompanied by a Billings detective, and was told
by Ms. Stone that she would take him to the defendant's
house. Agent Fairchild testified that at the residence, the
defendant produced a small cellophane bag containing a white
powdery substance, and that he gave the defendant $1,700 cash
in exchange for the contents. A forensic scientist for the
state crime laboratory testified that the powder sold to
Agent Fairchild contained methamphetamine. In addition to
providing "crank," Agent Fairchild testified that the defen-
dant also offered to sell him quantities of other drugs
including LSD, ounces of cocaine, and pounds of marijuana.
Was the defendant denied his constitutional rights by
either pre-indictment or post-indictment delay?
The information was filed in this matter on September
30, 1986. This occurred 146 days after the May 7 transaction
which led to the charges. On February 5, 1987, an omnibus
hearing was held and trial was set for March 21, 1987, which
was 175 days after the information was filed and 321 days
after the May 7 incident. Eight days prior to trial, the
defendant filed a motion to dismiss for delay in charging, or
in the alternative, for failure to provide a speedy trial.
The District Court denied the motion because there was no
showing that the defendant had suffered from any delay or
that the delay was caused by the State. The defendant con-
tends that after reviewing the transcript, it is apparent
that the delay did in fact contribute to memory loss and
resulted in preiudice to him. He also contends that the
State's reasons for the delay are not sufficient to preclude
dismissal of the charges because his right to a speedy trial
was violated.
In analyzing Mr. Bartnes' claims, we first note that
this Court has distinguished between pre-indictment delay and
post-indictment delay. See State v. Goltz (1982), 197 Mont.
361, 642 P.2d 1079, and cases cited therein. The reasoning
behind this distinction rests upon the interpretation of the
speedy trial clause of the Sixth Amendment. The United
States Supreme Court has held that as far as the speedy trial
clause is concerned, any pre-indictment delay is irrelevant
since it is only a formal indictment or information or actual
restraint imposed by arrest which triggers the protection of
that provision. United States v. Lovasco (1977), 431 U.S.
783, 788-89, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752, 758. As
this Court pointed out in Goltz, the protections which guard
against lengthy pre-indictment delays are the statute of
limitations and the due process clause of the Fifth and
Fourteenth Amendments. Goltz, 642 P.2d at 1081-82. Thus,
two different Constitutional provisions offer protection to
the criminal defendant at various stages of the proceedings.
The pre-indictment stage is protected by the due process
clause, while the post-indictment stage is protected by the
speedy trial clause.
Under a due process analysis, this Court has held that
the inquiry is whether the pre-indictment delay caused sub-
stantial prejudice to the defendant's right to a fair trial
and whether the delay was used as an intentional device to
gain a tactical advantage over the accused. Goltz, 642 P.2d
at 1082, citing United States v. Marion (1971), 404 U.S. 307,
324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468, 481. At the
pre-indictment stage, the burden of proof is on the defendant
to establish actual prejudice. Goltz, 642 P.2d at 1082,
citing United States v. West (9th Cir. 1979), 607 F.2d 300,
304.
In this case there were 146 days, or just under five
months, between the time Mr. Bartnes sold the drugs to Agent
Fairchild and the filing of the information. Agent
Fairchild's testimony indicated that it was not practical to
make each arrest at the time he became aware of the illegal
activity due to the nature and size of the investigation. He
testified that it was necessary to maintain his undercover
status in order to assure the presence of enough agents to
simultaneously make all the arrests involved in the Miles
City investigation. The record fails to show that the State
used the pre-indictment period to gain a tactical advantage
over the accused.
The defendant contends that pre-indictment delay caused
actual prejudice by dimming the memories of the witnesses and
that this interfered with his ability to present an entrap-
ment defense. Entrapment is an affirmative defense requiring
the defendant to prove 1) criminal intent or design originat-
ing in the mind of the police officer or informer; 2) absence
of criminal intent or design originating in the mind of the
accused; and 3) that the accused was lured or induced into
committing a crime he had no intention of committing. State
v. Canon (Mont. 1984), 687 P.2d 705, 710, 41 St.Rep. 1659,
1665. The record in this case is replete with evidence that
the defendant was engaged in the business of selling danger-
ous drugs. This evidence refutes Mr. Bartnes' contention
that he had no criminal intent or that he would not have made
the sale without inducement from the agent.
The defendant argues that Ms. Stone could not suffi-
ciently recall a conversation with him in which he expressed
reservation about dealing with Agent Fairchild. After exam-
ining her testimony, we conclude that the testimony does not
indicate an inability to recall any facts which support the
defendant's claim that he had no criminal intent or that
Agent Fairchild lured him into selling the drugs. If anyone
induced Mr. Bartnes to make the sale, it was Ms. Stone who
responded to the agent's request by leading him to the defen-
dant. There is no evidence that Agent Fairchild prodded or
coerced Ms. Stone into arranging the deal. The testimony of
both Agent Fairchild and Ms. Stone establishes that Ms. Stone
acted upon her own initiative in soliciting the help of Mr.
Bartnes to obtain the drugs. We hold that there has been no
violation of the defendant's due process rights by any
pre-indictment delay.
The defendant also contends that his right to a speedy
trial was violated due to delays chargeable to the State.
The information was filed September 30, 1986. Trial was
scheduled for March 24, 1987, but did not take place until
June 2 4 , 1987. The defendant concedes that he is responsible
for that three month period of delay. Thus, we are concerned
with the 175 days from the filing of the information to the
scheduled trial date.
To evaluate the effect of any post-indictment delay
under the speedy trial clause of the Sixth Amendment, the
United States Supreme Court has identified four factors to
consider 1) length of the delay; 2) reason for the delay; 3)
the defendakt's assertion of the right; and 4) prejudice to
the defendant. Barker v. Wingo (1972), 407 U.S. 514, 530, 92
S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117. In applying the
factors, the lenqth of delay acts as a triggering mechanism
so that:
[ulntil there is some delay which is presumptively
prejudicial, there is no necessity for inquiry into
the other factors that go into the balance. Never-
theless, because of the imprecision of the right to
speedy trial, the length of delay that will provoke
such an inquiry is necessarily dependent upon the
peculiar circumstances of the case. 40? U.S. at
530-31, 92 S.Ct. at 2192-93, 33 L.Ed.2d at 117-18.
A 175 day post-indictment period is somewhat less than
the delay periods in other cases where this Court has found a
presumption of prejudice. State v. Palmer (Mont. 1986), 723
P.2d 956, 43 St.Rep. 1503, (256 days); State v. Chavez
(1984), 213 Mont. 434, 691 P.2d 1365, (214 days); State v.
Ackley (19821, 201 Mont. 252, 653 P.2d 851, (257 days). The
State argues that the 175 day delay less the period of time
attributable to the defendant through several motions, leav-
ing a total of 152 days, is insufficient to establish a
presumption of prejudice. In a strict comparison with previ-
ous cases cited above, we tend to agree. However, when
looking to the "peculiar circumstances of the case" as sug-
gested by the Court in Barker, we choose not to halt our
analysis at this point. The record shows that the majority
of the delay is attributable to the State, and that this is a
relatively uncomplicated case both in its preparation and
presentation. The State is therefore required to give a
reasonable excuse for that delay or to show that the defen-
dant was not prejudiced. Palmer, 723 P.2d at 958.
The second factor in the Barker analysis is the reason
for the delay. The State contends that the 152 days of delay
attributable to itself was institutional rather than inten-
tional and was not used as a tactical device. While delay
inherent in the system weighs less heavily than intentional
delay, it is still chargeable to the State and does not offer
an excuse. Ackley, 653 P.2d at 853-54.
The third Barker factor is the assertion of the right to
a speedy trial by the defendant. The State concedes that Mr.
Bartnes asserted his right in a timely and proper fashion.
Finally, the State must show that the defendant was not
prejudiced by the delay. Three interests which are adversely
affected by prejudice as identified in Barker have been
adopted by this Court: 1) to prevent oppressive pretrial
incarceration; 2) to minimize anxiety and concern of the
accused; and 3) to limit the possibility that the defense
will be impaired. Chavez 691 P.2d 1369. In this case, the
defendant was in jail only one day prior to trial. The
defendant's assertion of prejudice relates to the third
interest cited above, in that the delay caused an impairment
of memory which affected his ability to present his entrap-
ment defense.
We have already discussed this matter in relation to
pre-indictment delay and we reach the same conclusion regard-
ing any post-indictment delay. The testimony of Ms. Stone
does not reveal that she suffered any memory loss relating to
the elements of an entrapment defense. The record fails to
demonstrate that Mr. Bartnes suffered oppressive pretrial
incarceration or anxiety, or that the defense was impaired in
any way. We conclude that his right to a speedy trial has
not been violated.
Did the District Court err in refusing the defendant's
jury instructions on criminal possession of dangerous drugs
or criminal possession with intent to sell?
The defendant was charged with the offense of criminal
sale of dangerous drugs in violation of § 45-9-101, MCA. He
argues that the District Court erred in failing to instruct
the jury regarding the 1-esser included offenses of criminal
possession of dangerous drugs in violation of 45-9-102,
MCA, and criminal possession with intent to sell in violation
of S 45-9-103, MCA. Under the theory upon which the defen-
dant's case was tried, such instructions on a lesser included
offense theory were not appropriate.
The defendant argued in his case in chief that the State
was guilty of entrapment by its use of the undercover agent
and Ms. Stone soliciting the sale of drugs. If the defendant
had convinced the iury of entrapment, he would have been
entitled to an acquittal of the charge of criminal sale of
dangerous drugs. In State v. Ostwald (1979), 180 Mont. 530,
538-39, 591 P.2d 646, 651, this Court stated:
. .. where an accused is either guilty of the
offense charged or is entitled to an acquittal . .
. an instruction on the lower offense is not neces-
sary and is properly refused. The Court may not be
put in error for refusing to instruct on a lesser
offense in such cases.
We further point out that criminal sale of dangerous
drugs does not include possession as an element of the crime.
Criminal sale of dangerous drugs is defined as follows:
A person commits the offense of criminal sale of
dangerous drugs if he sells, barters, exchanges,
gives away, or offers to sell, barter, exchange, or
give away or manufactures , prepares, cultivates,
compounds, or processes any dangerous drug, as
defined in § 50-32-101.
Section 45-9-101(1), MCA. As the statute makes clear, pos-
session is not an element of the crime with which the defen-
dant was charged.
We therefore conclude that the District Court did not
err in refusing to give the offered instructions on criminal
possession o f dangerous drugs and criminal possession with
intent t o sell.
Affirmed.