State v. Forsyth

NO. 86-492
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JERRY PAUL FORSYTH,

Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Douglas Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Keller & German; Robert S. Keller argued, Kalispell,
Montana
For Respondent:

Hon. Mike Greely, Attorney General, Helena, Montana
Robert F.W. Smith argued, Asst. Atty. General, Helena
Ted 0. Lympus argued, County Attorney, Kalispell,
Montana

Submitted: May 5, 1988
Decided: Auqust 25, 1988
Filed: TUG \988
25

Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.

Forsyth appeals his conviction for deliberate homicide.
This case first went to trial in Kalispell in 1980, and
resulted in a conviction this Court reversed because the jury
was not instructed on the elements of deliberate homicide.
State v. Forsyth (1982), 197 Mont. 248, 642 P.2d 1035. A
second trial at Polson in 1982 resulted in a hung jury. The
third trial at Kalispell in 1985 resulted in the conviction
Forsyth appeals. We affirm.
Forsyth presents the following issues for review:

(1) Whether the Court erred in failing to grant
Forsyth's motion to dismiss for lack of speedy trial?
(2) Whether the Court erred in failing to grant
Forsyth's motion to dismiss for denial of due process
because :
A. The State failed to properly disclose new
evidence, favorable, or unfavorable, on the issue
of appellant's guilt, contrary to the District
Court's standing order.
B. The State deliberately withheld exculpatory
evidence.
C. The State initiated prosecution of a critical
witness without probable cause one week before
trial for the sole purpose of discrediting
the witness.
(3) Whether the Court erred in permitting the State to
add a witness in the middle of trial, and then erred in
failing to grant Forsyth's request for a mistrial as a
consequence?
 (4) Whether the Court erred in failing to order the
place of trial outside of Flathead County, and in denying
Forsyth's motion for new trial accordingly?
(5) Whether the Court erred in failing to grant
Forsyth's motions for a new trial based upon newly discovered
evidence?
(6) Whether the Court erred in failing to award
attorney's fees?
(7) Whether the Court erred in increasing the
defendant's sentence, and in failing to credit the defendant
with time for incarceration?

The facts surrounding the murder of the victim, Karen
Forsyth, are recorded in State v. Forsyth (1982), 19? Mont.
248, 642 P.2d 1035.

I
In connection with the first issue, Forsyth contends
that the delay between his second trial and his third trial
violated his speedy trial rights. Forsyth presented the
following documents as relevant to the speedy trial issue:
January 2, 1983 - Defendant's oral request to the Court
for a transcript of the second trial.
January 11, 1983 - Defendant's motion that his counsel
continue to be appointed, and be paid at State expense.
January 17, 1983 - Defendant's written motion for a
transcript of the second trial.
January 25, 1983 - Defendant's motion to dismiss for
double jeopardy grounds based upon jury tampering and
prosecutorial misconduct, as well as a motion to strike the
testimony of Douglas Richards on the grounds that he was
incompetent; and evidentiary hearings were requested as to
jury tampering and prosecutorial misconduct.
 February 9, 1983 - Hearing on Defendant's motions.
February 14, 1983 - Defendant's Affidavit of Indigency
filed, at request of Court.
February 22, 1983 - Letter of Gary Crowe, Esq., to the
Court explaining his conflict of interest in being appointed
to represent the Defendant.
February 28, 1983 - Order denying all motions and
requesting the Defendant to either make suitable and
acceptable arrangements with his present counsel, or the
Court would appoint counsel from the public defenders;
Defendant's indigency status affirmed.
March 10, 1983 - Defendant's response to the Court's
Order of February 28, 1983, coupled with a written request
for the transcript of the second trial.
March 15, 1983 - Defendant's Petition to the Montana
Supreme Court for a Writ of Supervisory Control.
May 11, 1983 - Supreme Court Order denying the Writ for
the reason that all but one of the grounds asserted were
premature, and, in addition, with respect to the appointment
of counsel, that no showing had been made that the public
defender firms were incompetent or unable to represent the
Defendant.
May 17, 1983 - Order requiring Defendant to elect
counsel in five days, and if counsel is selected, an
additional five days within which time to notify the Court of
the required portion or portions of the transcript and the
reasons or intended use thereof.
May 19, 1983 - Defendant's letter to the Court
requesting a hearing with respect to the conflicts of the
public defenders, and requesting the transcript of the second
trial.
May 27, 1983 - Order setting a hearing on appointment of
counsel for June 22, 1983.
 June 22, 1983 - Hearing on appointment of counsel, and
Defendant renewed his motions in writing, to appoint the firm
of Keller and German as counsel at public expense, for a
transcript of the second trial, and to conduct evidentiary
hearing on the jury tampering and the prosecutorial
misconduct; and informed the court of a desire for a speedy
trial.
July 28, 1983 - Attorneys conference by telephone in
which the Court requested the Defendant to designate the
portions of the transcript that did not need to be
transcribed, and requested written comment by both parties
with respect to the place of trial.
August 12, 1983 - Order denying Defendant's motion for
appointment of counsel, and withholding ruling on the request
for a transcript, until response by counsel.
August 19, 1983 - Response by Keller and German.
August 23, 1983 - Order appointing Messrs. Doran and
Allison as counsel for Defendant.
August 29, 1983 - Defendant's Petition to Montana
Supreme Court for Writ of Supervisory Control.
October 6, 1983 - Writ granted, and Keller and German
appointed as counsel for Defendant at public expense.
October 18, 1983 - State's motion to Supreme Court for
Reconsideration.
October 31, 1983 - Supreme Court Order, reaffirming
Order of October 6, 1983.
November 14, 1983 - Part of transcript ordered to be
transcribed, tentative trial date set and attorneys
conference set for December 12, 1983.
December 12, 1983 - Attorneys conference: Defendant's
motions renewed, in writing, for evidentiary hearings on jury
tampering and prosecutorial misconduct, and for remainder of
transcript.
 December 23, 1983 - State's motion for Change of Venue.
January 5, 1984 - Hearing on State's Motion for Change
of Venue.
January 13, 1984 - Order, remainder of transcript
ordered and tentative trial date of January 30 vacated.
March 15, 1984 - Minute entry order setting evidentiary
hearings.
April 5, 1984 - Evidentiary hearing on jury tampering.
April 6, 1984 - Evidentiary hearing on prosecutorial
misconduct.
April 23, 1984 - Last volume of transcript of second
trial delivered.
April 24, 1984 - Order denying Defendant's motions to
dismiss for Double Jeopardy and lack of Due Process.
May 4, 1984 - Defendant's motion to dismiss for lack of
speedy trial.
May 10, 1984 - Hearing on motion to dismiss for lack of
speedy trial.
May 23, 1984 - Order denying Defendant's motion to
dismiss for lack of speedy trial.
June 6 , 1984 - Order granting State's Motion for Change
of Place of trial, and setting trial date of October 1, 1984.
July 11, 1984 - Defendant's second motion to dismiss for
lack of speedy trial.
July 13, 1984 - Hearing on motion to dismiss for lack of
speedy trial, and Order denying Defendant's motion to dismiss
for speedy trial.
July 23, 1984 - Request for transcript of hearing of
January 5, 1984 (change of venue), April 5-6, 1984
(evidentiary hearing on jury tampering and prosecutorial
misconduct), and July 13, 1984 (second speedy trial hearing).
 We have reviewed these documents.
On page 48 of his opening brief, Forsyth concedes that
the time between October 1, 1984, to July 2, 1985, is
chargeable to the defense as time occupied in an unsuccessful
attempt to obtain a writ of supervisory control. (An October
1, 1984, trial date was vacated prior to this Court's
resolution of the writ petition.) However, we date the
beginning of this period as July of 1984, instead of October
of 1984, because a letter shows that preparation for this
writ began in the lower court at least as early as July 18,
1984. The letter documents Forsyth's request to the Clerk of
Flathead County to prepare a transcript of the lower court's
hearing on jury tampering and prosecutorial misconduct for
use on the writ petition. The relevant period is therefore
from January of 1983, to July of 1984.
Forsyth contends that delay caused by the State mandates
dismissal because his speedy trial rights were violated. The
District Court considered and rejected Forsyth's motion for
dismissal for lack of a speedy trial holding that a rigorous
defense rather than the conduct on the part of the State
caused the delay. We affirm on this issue.
First, we hold that the length of delay which may be
attributed to the State is sufficient to trigger further
analysis, and therefore balancing of the four factors set out
in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33
L.Ed.2d 101. See State v. Bailey (1982), 201 Mont. 473, 478,
655 P.2d 494, 497. The four factors are; (1) length of
delay, (2) reason for delay, (3) defendant's assertion of the
right, and (4) prejudice to the defendant. Bailey, 655 P.2d
at 497. In analyzing a particular speedy trial claim using
the four factors, it must be remembered that:
 "none of the four factors is recognized as either a
necessary or sufficient condition to a finding that
the right to a speedy trial has been deprived.
Rather, they are related factors and must be
considered together with such other circumstances
as may be relevant. The Court must still engage in
a difficult and sensitive balancing process. See
Barker, 407 U.S. at 533. 92 S.Ct. at 2193."
Bailey, 655 P.2d at 497 (quoting State v. Larson (Mont.
1981), 623 P.2d 954, 957, 38 St.Rep. 213, 215). A lesser
delay will be tolerated for simple street crimes than for
complex offenses. Bailey, 655 P.2d at 498.
The focus of the dispute in this complex homkcide
prosecution is the "flag all litigants seek to capture ...
the reason for delay". State v. Loud Hawk (1986), 474 U.S.
302, 315, S.Ct. 648, 656, 88 L.Ed.2d 640, 654. Forsyth
attacks the District Court's conclusion that a vigorous
defense caused the delay in this case. In this regard, he
contends that the pursuit of his constitutional right to
counsel and transcript occasioned much of the delay in this
case, and that the delay caused by pursuit of these rights
may not be attributed to a defendant under this Court's
decision in Bailey.
Forsyth contends specifically that the time from January
of 1983, to April of 1984, must be attributed to the State
because it was not until April of 1984 that the defense
received a complete transcript. Forsyth also points out that
it was not until October of 1983 that appropriate counsel was
appointed.
Forsyth's further contention on attribution of delay
concerns the State's change of venue motion. In this regard,
he contends that the time from January 5, 1984, to June of
1984, must be attributed to the State because during that
period the parties argued the venue issue.
 The State responds that delay associated with bona fide
pretrial motions where the State has not been independently
dilatory should not be attributed to the State. The State
also contends in the alternative that any delay in this case
attributable to the State constitutes institutional delay
which must be weighed less heavily than delay caused by
intentional prosecutorial delay.
An analysis of the pretrial motions made in the lower
court prior to the third trial supports the State's position.
First, in connection with the appointment of counsel, the
controversy in the lower court in 1983 hinged on whether the
law firm handling Forsyth's defense through the first two
trials, Keller and Gilmer, (later Keller and German) , would
continue to represent Forsyth. Forsyth, with help from his
family, had paid the law firm himself for this
representation. By the end of the third trial these funds
were exhausted, and Forsyth requested that his old firm be
appointed at public expense. The State objected contending
that firms Flathead County already had on retainer for public
defense should represent Forsyth. As explained below in this
opinion, Forsyth later prevailed on the appointment of
counsel issue.
In connection with the motion for a transcript after the
second trial, the State objected contending that Forsyth
could make do with the transcript from the first trial. The
lower court declined to rule on Forsyth's transcript request
reasoning that counsel should be appointed first. Once
appointed, according to the lower court, defense counsel
could make a request specifying which portions of the record
should be made available and which should not.
The venue motion involved the parties' contentions on an
appropriate forum for a fair trial. The State proposed
returning venue to Flathead County, the venue of the first
trial, and trying the case with a jury selected from Toole
County residents. Forsyth agreed that venue should be
changed from Lake County, but opposed the State's proposal
arguing that a trial in Flathead County would not be fair
even if the jury were selected from Toole County.
A motion to dismiss alleging prosecutorial misconduct
and double jeopardy because of jury tampering accompanied
Forsyth's motions for appointment of counsel and for
procurement of a transcript in January of 1983. Forsyth also
moved for evidentiary hearings on jury tampering and
prosecutorial misconduct. In February of 1983, the District
Court denied the motions, and Forsyth petitioned to this
Court for a writ of supervisory control. This Court's order
resolving the petition read as follows:

PER CURIAM:
Relator Forsyth has filed a petition for a
writ of supervisory control to review various
post-trial motions of the District Court. The
State has filed a written response thereto. All
have been considered by the Court.
IT IS NOW ORDERED AND ADJUDGED AS FOLLOWS:
1. The Court accepts jurisdiction of the
petition for writ of supervisory control for the
purpose of the rulings hereafter set forth.
2. Petitioner claims error by the District
Court in refusing to appoint the law firm of Keller
and Gilmer to represent the defendant in further
proceedings at public expense. No showing has been
made that the public defender firms of the county
are incompetent or unable to represent defendant.
Accordingly, there is no error in the District
Court's refusal to appoint Keller and Gilmer for
this purpose.
3. Petitioner claims error in the District
Court's failure to order preparation of a
transcript of the second trial at public expense.
The record discloses that the District Court held
this motion under advisement pending resolution of
the selection of defense counsel. This claim of
error is dismissed as premature.
 4. Petitioner claims error in refusing an
evidentiary hearing on the alleged misconduct of
the prosecutor and the bailiff at his second trial.
This claim of error is denied without prejudice and
without a decision on the merits. It should be
presented by defense counsel, when one is selected,
in pretrial proceedings before the next trial,
during the trial or upon appeal in the event of
conviction.
5. Petitioner claims error by the District
Court in failing to strike the testimony of Douglas
Richards because the same is alleged to be
incredible. The credibility of the witness and the
weight to be given his testimony are patently
questions for the jury.
6. Petitioner's claim that the case should be
remanded to Judge Douglas Harkin for an evidentiary
hearing is denied on the basis that by our
foregoing rulings, no evidentiary hearing is
necessary.
7. The Clerk is directed to mail a true copy
hereof to counsel of record for the respective
parties and to the Honorable Michael H. Keedy and
the Honorable Douglas Harkin.
Following the disposition of Forsyth's first supervisory
control petition, the case returned to the lower court where
Forsyth attempted to show why the public defender firms in
Flathead County could not represent him. On June 22, 1983,
the lower court heard the counsel issue, and at that time
Forsyth also renewed his motions for evidentiary hearings on
his charges of prosecutorial misconduct and jury tampering.
On August 12, 1983, the District Court denied Forsyth's
motion for appointment of his old law firm and appointed a
public defender, and Forsyth immediately petitioned for a
writ of supervisory control. During this period of time
Forsyth's claims for prosecutorial misconduct and jury
tampering were pending.
This Court granted Forsyth's second petition for
supervisory control ordering as follows:
 ORDER
Relator Forsyth has filed a petition for a
writ of supervisory control to review the orders of
the District Court denying appointment of attorneys
Keller and German at public expense to represent
him in further proceedings and appointing attorneys
Gary Doran and Robert Allison to represent him.
The State has filed a written response to relator's
petition. Both the petition and response have been
fully reviewed by this Court. The extraordinary
nature of this case requires that this Court
explain the basis for its Order in detail.
On May 11, 1983, this Court denied Forsyth's
previous petition for writ of supervisory control,
stating that no showing had been made that the
public defender firms of Flathead County are
incompetent or unable to represent him. A hearing
was then held by the District Court on June 22,
1983 to hear reasons why public defenders in
Flathead County were unable to represent Forsyth.
Present were Forsyth, his counsel, counsel for the
State and representatives of all public defender
firms in the county.
It was established at the hearing that the
firm of Sherlock and Nardi was unable to represent
Forsyth because of a conflict of interest. That
conflict is uncontested by the State.
It was further established that public
defender Gary Crowe, of the firm of Moore, Doran
and Crowe, had a conflict of interest which
prevented him from representing Forsyth. The
details of this conflict were recorded at the
hearing and Crowe also wrote a letter to the
District Court stating that he had conflicts which
prevented him from representing Forsyth. Because
this conflict prevents Crowe from representing
Forsyth, it also prevents any member of Crowe's
firm from representing Forsyth. Code of
Professional Responsibility DR 5-105 (D) (1979).
The District Court nonetheless appointed Gary
Doran, a member of Crowe's firm, to represent
Forsyth.
The only remaining public defender in Flathead
County, Robert Allison, was also appointed by the
District Court to represent Forsyth.
Significantly, Allison is a sole practitioner with
no felony trial experience. An in camera hearing
was conducted during the June 22, 1983 hearing to
present information regarding conflicts of interest
which prevent Allison from representing Forsyth.
The transcript of that hearing was ordered sealed
by the District Court because it contains
discussion of confidential defense strategy. The
District Court ordered that the transcript was to
be opened only by order of this Court. We have
examined the contents of that transcript and
conclude that Allison has conflicts of interest
which prevent him from representing Forsyth.
We hold that Doran and Allison are precluded
by conflicts of interest from representing Forsyth
and that Allison has no felony trial experience.
The District Court's finding that there are no such
conflicts is not supported by the record. For
these reasons, we find the District Court abused
its discretion in appointing Doran and Allison to
represent Forsyth.
The District Court also states in its order of
August 12, 1983 that to appoint Keller and German
to represent Forsyth would undermine the quality
and availability of public defense services in
Flathead County and would drain the resources of
the public defender program. There is nothing in
the record to support these statements.
The record shows that Keller and German have
offered to provide Forsyth the services of two
attorneys for the hourly rate of one public
defender. It has not been clearly established what
fee arrangement exists between Flathead County and
its public defenders for compensation in cases
requiring expenditure of extraordinary amounts of
time . The record shows that Keller and German
spent approximately 1,650 hours in preparation for
the first two trials. It is clear that preparation
for trial by any other appointed attorneys would
require much more time than for Keller and German.
The record contains nothing to contradict the claim
of Forsyth that the representation offered by
Keller and German would be less costly to the
county than appointment of new attorneys.
This unique case presents a question of lack
of basic fairness in effectively depriving an
accused of his counsel at such a late stage.
Forsyth privately retained Keller and German to
represent him in the two previous trials of this
case at his own and his family's expense. Their
funds are now depleted. The State, however, will
 continue to be represented by the same prosecutors
who have represented the State in the first two
trials. To force upon Forsyth new attorneys at
this stage would be unfair.
THEREFORE, IT IS ORDERED:
1. That this Court accepts jurisdiction of
the petition for writ of supervisory control.
2. That the order of the District Court
appointing public defenders Gary Doran and Robert
Allison to represent relator Forsyth is vacated.
3. That the District Court appoint Keller and
German to represent relator Forsyth at public
expense, a reasonable rate of compensation to be
established by the District Court.
4. The Clerk is directed to mail a true copy
of this Order to counsel of record for the
respective parties and to the District Court.
Following this Court's order appointing Keller and
German, the District Court resumed. jurisdiction of the case
and the parties began the process of settling the remaining
substantial pretrial controversies; how much of the testimony
from the second trial would be transcribed, whether Forsyth
would prevail on his motions to dismiss for jury tampering,
and for prosecutorial misconduct, and where venue should lie
for trying the case.
The pretrial issues set out above were resolved as
follows: the District Court ordered that the State provide a
full transcript of the second trial on January 13, 1984; the
District Court conducted hearings on Forsyth's motion to
dismiss for jury tampering and prosecutorial misconduct on
April 5-6, 1984, and denied the motion April 24, 1984; the
District Court granted the State's venue motion on June 6,
1984.
Between May of 1984 and July of 1984, the District Court
considered two motions to dismiss for lack of speedy trial.
Hearings preceded both motions, and the lower court settled
the matter by denying the second motion on July 13, 1984.
Following the denial of the speedy trial motion, as noted
above, Forsyth requested transcripts for the hearings on
prosecutorial misconduct, jury tampering, change of venue,
and speedy trial to submit with another petition for writ of
supervisory control.
The lengthy recitation of these filings helps in
analyzing the cause of the delay factor from Barker. First,
the filings demonstrate that the time between the second
trial and Forsyth's assertion of the speedy trial right in
May of 1984, was taken up principally with issues first
settled by the lower court, and then reviewed by this Court
on petition for writ of supervisory control. For example,
Forsyth moved for counsel, transcript, and evidentiary
hearings on jury tampering and prosecutorial misconduct in
January of 1983, and the lower court denied the motions in
February of 1983. The petition for writ of supervisory
control was filed in this Court in March of 1983, and the
resolution from this Court on the petition came in May of
1983. Similarly, the second petition for supervisory
control, on the issue of appointment of counsel, was filed
with this Court in August of 1983, and granted in late
October of 1983. Thus, the weight and attribution of the
delay between January of 1983, and November of 1983, depends
on the attribution and weight attached to the delay caused by
the pretrial motions which resulted in these interlocutory
appeals.
First, the State bears the burden of bringing an accused
to trial, and good faith pretrial motions are not chargeable
to the defendant. State v. Harvey (1979), 184 Mont. 423,
434, 603 P.2d 661, 667. Thus, we attribute the delay time
from January of 1983, to November of 1983, to the State.
However, different weight attaches to delay depending on the
cause for delay. Harvey, 603 P.2d at 667. In this case, the
block of time necessary to adjudicate pretrial motions
resulting in interlocutory appeals fails to weigh heavily in
favor of Forsyth's claim.
The United States Supreme Court has stated that
interlocutory appeals pit the "competing concerns of orderly
appellate review on the one hand, and a speedy trial on the
other". Loud Hawk, 474 U.S. at 314. In regard to the cause
for delay factor, a majority of the Court agreed that delays
due to a defendant's pretrial appeals:

ordinarily will not weigh in favor of a defendant's
speedy trial claims. ... A defendant who resorts
to an interlocutory appeal normally should not be
able upon return to the district court to reap the
reward of dismissal for failure to receive a speedy
trial. As one Court of Appeals has noted in the
context of a District Court's consideration of
pretrial motions: "Having sought the aid of the
judicial process and realizing the deliberateness
that a court employs in reaching a decision, the
defendants are not now able to criticize the very
process which they so frequently called upon."
United States v. Auerbach, 423 F.2d 921, 924 (CA5
1969), rehearing denied, 423 F.2d 676, cert.
denied, 399 U.S. 905 (1970).

Loud Hawk, 474 U.S. at 316-17. Here, the circumstances
surrounding the delay caused by pretrial motions and appeals
justifies the delay attributable to the State from January of
1983, to November of 1983. In particular, Forsyth's claims
for jury tampering and prosecutorial misconduct necessitated
proceedings and deliberations in the lower court and this
Court. These claims, as explained later in this opinion,
lacked merit. Forsyth's claim for exclusion of Richards's
testimony, as documented in our first writ order, also lacked
merit. Forsyth chose to avail himself of this writ
procedure, and cannot now complain of the delay associated
with deliberateness inherent in the process.
 Forsyth also contends that the time attributable to
adjudication of the appointment of counsel and transcript
issues should weigh heavily in his favor because the State's
position denied him constitutional rights. First, there is
no showing that the State engaged in intentional delay
designed to hamper the defense on these issues. And as
stated by the United States Supreme Court, even "a defendant
with a meritorious appeal would bear the heavy burden of
showing an unreasonable delay caused by the prosecution in
that appeal, or a wholly unjustifiable delay by the appellate
court." Loud Hawk, 474 U.S. at 316.
Second, in this case the delay occasioned by
adjudication of these issues was reasonable and justified.
For example, the District Court reasoned that the appointment
of counsel issue should be resolved before ordering a
transcript because the portions of the record to be
transcribed could vary depending on who was appointed. This
Court refused to reverse the lower court's order holding that
inasmuch as the motion was still pending, the claimed lack of
transcript was premature. We hold here that any delay caused
by the lower court's failure to order an immediate
transcription was justified and reasonable given the pending
counsel motion, and Forsyth's own motion to dismiss.
On the appointment of counsel issue and the delay it
caused, in our first order we refused to grant the writ
reasoning that no showing had been made that a conflict
existed as to the available public defender firms in Flathead
County. Thus, our ruling required further proceedings. The
dissent in that order reasoned that fundamental fairness
required appointment of the counsel serving Forsyth through
the first two trials. Later this Court reversed holding that
a conflict existed, and that it would be unfair to force
Forsyth to proceed with different counsel. However, even
though the State's position on this issue was erroneous, it
was not so unsupportable that it infers intentional delay.
Finally, we note that the delay during this period
cannot be completely attributed to litigation of this single
pretrial issue. Thus, the record supports the contention
that delay attributable to the State is justified by: the
need for evidence on the counsel issue, the complexity of the
counsel issue, and the lack of a showing the prosecution
acted intentionally to delay.
However, Forsyth contends this Court's decision in
Bailey mandates dismissal. In Bailey, the State argued that
the defendant's exercise of the right to a properly filed
information constituted failure to assert the right to a
speedy trial. Bailey, 655 P.2d at 498. Specifically, the
State contended that the defendant failed to assert the right
because he moved to dismiss the flawed information instead of
allowing the case to go forward. This Court rejected the
argument because:
[wle cannot penalize the defendant for exercising
his statutory rights or for the prosecutor's
mistake. To do so would be to deprive him of due
process of law which is guaranteed under Article
11, Section 7 of the Montana Constitution. Neither
can we force him to choose one right over another,
this was made clear by the United States Supreme
Court in Simmons v. United States (1968), 390 U.S.
377, 88 S.Ct. 967, 19 L.Ed.2d 1247, where it
addressed a similar issue and stated: "... we find
it intolerable that one constitutional right should
have to be surrendered to assert another."

Bailey, 655 P.2d at 498.
The particular issue addressed in Bailey, as well as the
facts in Bailey, distinguish it from this case. First, in
regard to the issue, in Bailey we addressed the intolerable
choice offered to a defendant between trading the assertion
- - right factor for a properly filed information.
of the In the
present case, the issue concerns the cause for delay factor,
not the assertion of the right factor.
The distinction is important. The presence of the
assertion of the right is entitled to strong evidentiary
weight in determining whether the defendant is being deprived
of the right, and failure to assert the right will make it
difficult for a defendant to prove that he was denied a
speedy trial. On the other hand, the reason for the delay
factor, the principle point of contention here, involves a
weighting process where "different weights should be assigned
to different reasons". Barker, 407 U.S. at 531-32. Thus, as
shown by Loud Hawk, the delay due to the State's positions on
the transcript and appointment of counsel issues only affects
the weighting process in the reason for the delay factor, not
the more threshold issue of whether the defendant asserted
the right to speedy trial. And, ordinarily, this delay will
not weigh in favor of a defendant's speedy trial claim.
Loud Hawk, 474 U.S. at 316.
Factually, the cases are distinguishable in regard to
the cause of delay factor. In Bailey, the prosecutor clearly
caused the delay by improperly filing the information. In
this case, the defendant's motion to dismiss, coupled with
his demands for evidentiary hearings, contributed
substantially to the delay. Even if Forsyth's counsel and
transcript motions had been granted immediately, there was
still the time consuming issues of prosecutorial misconduct
and jury tampering to resolve. Thus, we refuse to apply
Bailey.
Forsyth also argues that the delay from January 5, 1984
to June 6, 1984, was occupied with the State's venue motion.
Thus, according to Forsyth, this time period must be
attributed to the State and weighed in favor of his speedy
trial claim. Forsyth's argument here sidesteps the fact that
the venue motion was only one of the issues before the lower
court during this period. At this stage in the case, Forsyth
continued to actively litigate his motion to dismiss by
renewing his request for evidentiary hearings on the jury
tampering and prosecutorial misconduct issues. Thus, no
deliberate delay is evident in regard to this time period.
Rather, the case was stalled by Forsyth's motion to dismiss
as well as by the lack of a decision on venue, and we refuse
to weigh this time period heavily in favor of the claim
because of the venue motion.
In sum, the State has carried the burden of justifying
the delay occasioned by resolution of the numerous pretrial
issues in this case. Thus, we hold that the cause for delay
factor supports the State's position on this issue.
Similarly, the prejudice factor weighs against Forsyth's
claim. Forsyth contends that the passage of time impaired
his defense because: witnesses could not remember previous
testimony, the use of the transcript to refresh witness
memory was both cumbersome and ineffective, the State's new
witnesses could have been discredited by the testimony of
witnesses who are now unavailable, and the State presented
demonstrative evidence more effectively.
In regard to the contentions on use of the transcript,
we have reviewed the testimony of the following witnesses:
Dr. John Pfaff Lynn Norbe
Charles L. White Greg Phillips
Debbie Stahlberg (Neff) Dawnita French
Dale Gifford Rand Cullen
Doris Richards Rolene Anderson
Lupe Griffaldo Dawn Morris
Sheryl Hester Ron Young
Roger Krauss Kevin Appel
Paul Hahn Dick Stotts
Douglas M. Richards Steven Klingler
 Jan Beck Jon William Ball
Paula Stalnaker Bonnie Olson
Ron DuPuy Dan Hess
Addison Clark Jim Oleson
Jerry Forsyth Ed Helmetag
Ray Dyer Gary Red Elk
Tim Schuldheiss Douglas Richards
William Harris Rick Perry
Dana Joseph Kraut Paul Forsyth
Dr. M.E.K. Johnson
On the basis of this review, we hold that the transcript
mitigated the prejudice caused by failure of witness memory,
and thus the prejudice factor in this regard fails to weigh
heavily for Forsyth. In regard to the assertion that use of
the transcript proved cumbersome and ineffective, we have
discovered in our review of the testimony that the transcript
also provided the defense with repeated opportunities to
impeach State witnesses.
The State's demonstrative evidence which, according to
Forsyth, improved with age to his prejudice, involved a test
at trial demonstrating an allegation made by witness Douglas
Richards. Richards told the jury that Forsyth had inserted a
pencil in the barrel of a pistol left purposely at the scene
of the murder in order to lift and place the pistol in the
hand of the victim. Richards demonstrated how this was
allegedly done at the first trial, and counsel for Forsyth
pointed out that paint residues remained in the barrel after
Richards's demonstration, but no residues were found in the
barrel of the gun left at the scene. At the second and third
trials, according to Forsyth, Richards had figured out how to
lift the pistol without leaving residues. Thus, Forsyth
claims prejudice.
This particular contention does little to further
Forsyth's claim. At the third trial Forsyth called a witness
who had served as an alternate juror. This witness testified
to the presence of paint chips in the barrel at the first
trial. Thus, evidence discrediting Richards's demonstration
was not lost to the defense.
Forsyth also argues that the passage of time impaired
his ability to counter the testimony of Charlie Perkins.
Perkins testified at the third trial to an alleged jailhouse
confession made by Forsyth following the first trial.
Forsyth claims that unavailable witnesses could have
discredited Perkins.
This claim is necessarily speculative and carries less
weight than it would if the record supported it. At any
rate, we have considered it, and we have also considered the
fact that Forsyth called numerous witnesses to discredit
Perkins's testimony. Thus, prejudice fails to weigh heavily
in favor of Forsyth's claim here.
The prejudice factor should be evaluated in light of the
defendant's interests the right to speedy trial protects;
prevention of oppressive pretrial incarceration, minimization
of anxiety and concern of the accused, and most importantly,
limiting the possibility that the defense will be impaired.
Barker, 407 U.S. at 532. None of these interests compel a
finding that the State violated the speedy trial right in
this case. The State freed Forsyth between trials, and the
transcript minimized impairment of the defense.
In regard to the assertion of the right factor, we
accord it some weight in favor of Forsyth in analyzing his
speedy trial claim. However, another relevant factor here is
that Forsyth's assertion of his speedy trial right was
preceded by his time consuming motion to dismiss. Bailey
states that the defendant does not trade the assertion factor
for a properly filed information. However, we hold in this
case that Forsyth's jury tampering and prosecutorial
misconduct claims constitute circumstances affecting the
assertion of the right factor. These circumstances reduce
the weight in favor of Forsyth in regard to the assertion of
the right factor, and inasmuch as we have held that the
weight of the other factors falls for the State, we refuse to
dismiss because the right was asserted.
In summary, we affirm on this issue because the case
presented complex issues, and the delay attributable to the
State must be weighed less heavily as institutional delay.
We are also persuaded to affirm because the prejudice Forsyth
suffered as a result of the delay was mitigated by the
presence of transcripts from the previous trials, and by
Forsyth's release on bail between the second and third
trials. Thus, Forsyth's speedy trial claim has failed to
convince this Court, and we affirm on this issue.

I1
In connection with subissue A of the second issue, the
relevant facts and procedure are as follows: Douglas
Richards revealed to the prosecution prior to the third trial
that he had related to Rand Cullen details of the murder in
1979. Cullen testified at the third trial concerning
Richards's statements.
Dr. M.E.K. Johnson testified at the first and second
trials that the blow to the head Forsyth received on the
night of the murder was of sufficient force to knock Forsyth
unconscious. At the third trial Johnson varied his testimony
by stating that he had become more skeptical that the blow
rendered Forsyth unconscious.
The prosecution listed the victim's mother, Shirley
Kienas, as a witness for all three trials, but only called
her for the third trial. She testified at the third trial
concerning her daughter's marital relationship with Forsyth.
 The State knew that Cullen possessed important knowledge
of the murder after taking his statement in January of 1984,
but did not reveal Cullen's identity to the defense until
August of 1985. The State became aware that Dr. Johnson had
changed his testimony sometime after the second trial. In
August of 1985 the State notified the defense that the State
planned to call Johnson as a witness. The State probably
knew the substance of Shirley Kienas's testimony prior to the
first trial.
Kevin Appel and Paul Hahn were new witnesses at the
third trial. They testified in regard to events they
witnessed as Kalispell police officers at the time of the
murder. The parties agree that the substance of their
testimony was not new. The District Court's standing order
required the prosecution to notify the defendant of any new
material regarding the guilt or innocence of the defendant.
Subissue A:
Forsyth claims that the State violated his due process rights
by failing to comply with the lower court's standing
discovery order mandating disclosure of new evidence.
Forsyth also argues that the lower court improperly allowed
amendment of the information to include new witnesses under
the authority provided by S 46-15-301(1), MCA (1983). We
hold that the lower court properly applied S 46-15-301(1),
MCA (1983), that any violation of the discovery order
constitutes harmless error, and that Forsyth has no due
process claim under this subissue.
First, Forsyth argues that the lower court erred by
allowing Rand Cullen to testify over his objections. Forsyth
concedes that the State revealed Cullen's potential as a
witness on August 1, 1985, but contends the State should have
revealed him sooner, and that prejudice resulted from the
State's late revelation.
 Forsyth claims prejudice from the State's failure to
reveal Cullen as a witness arguing that Debbie Bremner, a
witness close to Richards at the time that Richards allegedly
revealed the murder to Cullen, could have discredited
Cullen's testimony. Bremner was a witness at the first two
trials, but was unavailable for the third trial.
Section 46-15-301 (I), MCA (1983) (repealed in 1985) (in
effect at time of trial), reads:

(1) For the purpose of notice only and to
prevent surprise, the prosecution shall furnish to
the defendant and file with the clerk of the court
at the time of arraignment a list of the witnesses
the prosecution intends to call. The prosecution
may, any time after arraignment, add to the list
the names of any additional witnesses upon a
showing of good cause. The list shall include the
names and addresses of the witnesses. This
subsection does not apply to rebuttal witnesses.

Section 46-15-301(1), MCA (1983).
Forsyth concedes Cullen was revealed before trial, but
contends that the lower court violated the statute's spirit
and intent by allowing the testimony. See State v. Klein
(1976), 169 Mont. 350, 354, 547 P.2d 75, 77. Forsyth also
contends that good cause is a threshold requirement for
additions to the witness list under this Court's
interpretation of $ 46-15-301 (I), MCA (1983), in State v.
Haag (1978), 176 Mont. 395, 578 P.2d 740, and thus, absent a
showing of good cause, no addition is allowed.
The State contends that good cause existed because the
State lacked knowledge that the case would go to trial until
July of 1985, and that at any rate, Forsyth has failed to
show prejudice which could not be cured by a continuance.
See Klein, 547 P.2d at 77.
 Section 46-15-301(1), MCA (1983), makes it clear that
the proper remedy where surprise is claimed by additions to
the witness list is to grant a continuance to meet the new
evidence. Klein, 547 P.2d at 77; State v. Mckenzie (1980),
186 Mont. 481, 502, 608 P.2d 428, 441. Forsyth's contention
that Haag requires a showing of good cause as a threshold to
any amendment fails here because in Haag the issue was the
prosecution's negligent failure to endorse any witnesses at
the defendant's arraignment, and its continued failure to
list witnesses until the date of the trial. Haag, 578 P.2d
at 743-44. Thus, the good cause threshold inquiry in Haag
concerned failure to present a witness list of known
witnesses at the time of the arraignment. In this case,
there is no contention that Cullen's name should have been
endorsed on the information because there is no evidence that
the State knew of Cullen at the time of the arraignment.
Lack of knowledge constitutes good cause under the statute.
State v. Smith (1986), 715 P.2d 1301, 1307, 43 St.Rep. 449,
455. Moreover, Haag is limited by its particular facts.
Haag, 578 P.2d at 745.
Following discovery of Cullen, there is no evidence that
the State intentionally withheld his identity to prejudice
the defense. Rather, the record supports the State's
contention that it negligently failed to inform Forsyth of
Cullen's existence sooner because retrial depended on
pretrial motions pending before the lower court and this
Court. Lack of knowledge of the witness at the time of
arraignment, together with uncertainty of whether the case
would be tried and disclosure of the witness when the lower
court set a trial date, are circumstances which sufficiently
excuse the State's failure to disclose Cullen under the
statute. Thus, we hold that allowing amendment is
discretionary, and absent prejudice the lower court properly
allowed the testimony. See State v. Liddell (Mont. 1984),
685 P.2d 918, 924, 41 St.Rep. 1293, 1299. Similarly, in
regard to violation of the discovery order, prejudice must be
shown. See State v. Wallace (Mont. 1986), 727 P.2d 520, 524,
43 St.Rep. 1908, 1912 (suppression of evidence in violation
of discovery order harmless error in the absence of a showing
of prejudice) .
Over nine weeks elapsed between disclosure of Cullen and
the October 15, 1985, trial date. Thus, surprise cannot be
claimed. However, Forsyth contends that the prejudice to his
case could not be cured by a continuance because of the time
passing between discovery of Cullen as a witness and the date
of trial. Specifically, Forsyth's brief reads:

Bremner testified at the first two trials, but she
cannot be found for the third trial. Thus, there
is no chance to interrogate her with respect to
Rand Cullen or Doug Richards. She specifically was
with Richards when he had his third, and last,
meeting with Cullen [Tr. page 3261: 11-17]
(emphasis added).

Page 3261 of the transcript records some of Richards's
testimony, and reads in relevant part as follows:

Q. Do you recall going down to Missoula to
get this pistol out of a pawn shop down
there?
A. I do.

Q. One that you used for your stunt things
and that sort of thing?
A. I do.
Q. And you would have had Debbie Rremner with
you when you went to get it, would you
not?
A. I believe so.
 Q. And you saw Rand Cullen?
A. Correct.

A reading of this excerpt supports the possibility that
Bremner could discredit Cullen's testimony because the
implication is that since she was along on the trip, she was
present when Cullen and Richards's discussed the murder.
However, page 3262 of the transcript reads in relevant part:

Q. But when you got to Seeley Lake to visit
with Rand, you dropped Debbie Rremner
off at a cafe while you were talking
to Rand by yourself?
A. Correct.

Q. She knew what your storv was at that
time, didn't she?
A. No.
Q. You had already given it?
A. Wait, that was after the-- yeah, okay.

This last excerpt explains that Rremner was not present
during the conversation between Cullen and Richards.
Richards also discussed Bremner's involvement as follows:

Q. Why wasn't Debbie included in the discussion
that you had with Rand about what happened in the
bowling alley?
A. Because Rand was upset with me when I told him
on Christmas and like I said it scared him. I did
not want her to be with me if Rand belittled me. I
didn't want to be humbled in front of her. It
could have been a very embarrassing situation and I
was trying to say I was sorry to him and I guess I
didn't want to apologize and have him not accept it
and do it in front of her.
Thus, Bremner's unavailability does not show prejudice which
could not be cured by a continuance in regard to Cullen's
testimony because there is no evidence Bremner witnessed any
of the conversations constituting the source of Cullen's
testimony.
Forsyth's other argument in regard to Bremner's supposed
ability to discredit Cullen's testimony concerns Cullen's
assertion that Richards appeared more upset during the period
of time when he related details of the murder to Cullen.
Forsyth contends Bremner could have testified on Richard's
mental state. This assertion is wholly speculative, and it
goes to a collateral matter in Cullen's testimony. Thus,
Forsyth has failed to show prejudice by this contention.
Forsyth also claims that Cullen's memory lapses
constitute prejudice which could not be cured by a
continuance. However, the record reveals that Cullen's
memory lapses existed in 1984, when the prosecution first
took his statement. Thus, the memory loss occurred prior to
the time the prosecution spoke with Cullen, and no prejudice
may be ascribed due to Cullen's poor memory as a result of
the State's failure to reveal Cullen until 1985.
Furthermore, our reading of the record reveals that the
State correctly contends that Forsyth's failure to discredit
Cullen's testimony did not result from any late revelation of
Cullen's identity. Cullen was steadfast in his belief that
Richards helped Forsyth plan and commit the murder.
Inconsistencies between the details that Richards revealed to
police and details he revealed to Cullen were brought out on
cross-examination, and thus were available for consideration
by the jury.
In summary, we have reviewed Cullen's testimony, and we
conclude that the District Court acted within its discretion
in allowing Cullen to testify. Good cause existed for not
listing Cullen on the information at the time of arraignment,
so Haag does not apply. After discovering Cullen, the
prosecution failed to immediately inform Forsyth of Cullen's
potential as a witness, and arguably violated the discovery
order. However, no surprise can be claimed, and we find no
prejudice incapable of cure by continuance.
Proceeding under the contentions in subissue A, Forsyth
argues that the admission of Shirley Kienas's testimony in
regard to an incident where Forsyth allegedly urinated on the
murder victim constitutes violation of the discovery order
and denial of due process. Forsyth acknowledges that the
prosecution listed Kienas as a possible witness at all three
trials, but contends that the prosecution deliberately
withheld the specific information concerning the incident
when the defense requested specifics on Kienas's testimony.
The first reference to the incident occurred during the
first trial when the State queried Forsyth concerning the
term "yellow shower", and Forsyth denied knowledge of the
term. On appeal of the first conviction the term surfaced
when, during oral argument, one of the Justices on this Court
asked for an explanation. Counsel for the parties did not
know at that time what the term referred to.
Prior to the third trial, counsel for Forsyth inquired
of the State what Kienas would testify to. The State
informed Forsyth that Kienas would testify to Forsyth's
stormy marital relationship with his wife. Forsyth failed to
depose Kienas prior to trial. The fact that the State had
attempted to uncover the alleged incident long prior to the
third trial, and the fact that counsel for Forsyth knew
Kienas would testify to Forsyth's marital relationship but
failed to depose her, mitigates any failure to reveal
occasioned here by the State's conduct. Furthermore, the
testimony itself was cumulative to other evidence showing
Forsyth mistreated the victim. Thus, we refuse to predicate
error on this contention in subissue A. Wallace, 7 2 7 P.2d at
524.
A further contention under subissue A is that the
admission of the altered testimony of Dr. M.E.K. Johnson,
violated the discovery order and denied Forsyth due process
rights. Johnson's previous testimony had supported Forsyth's
claim that robbers had rendered him unconscious with a blow
to the head prior to his wife's murder by testifying that the
blow could have knocked Forsyth out. Johnson testified at
the third trial that he had become more skeptical that the
blow Forsyth received the night of the murder would have
sufficient force to render an individual unconscious.
Forsyth concedes in his brief that the District Court
delayed Johnson's testimony so that he could be deposed by
the defense. The defense also concedes that the lower court
ruled that the prosecution could not call Johnson in its case
in chief, and gave the defense an opportunity to obtain its
own medical witness. Thus, Forsyth can claim neither
surprise nor an inability to cure prejudice by continuance,
and we affirm in regard to allowing Johnson's testimony.
Forsyth also complains that the testimony of Paul Hahn
and Kevin Appel should not have been allowed, and that it
prejudiced the defense. The specific prejudice assertion is
as follows:

Nothing they claimed to know in 1985 was "new,"
but it just added to the defendant's burden of
discrediting ....
As shown by the quote from Forsyth's brief, Forsyth concedes
no surprise existed in regard to this testimony. " [GI iven
that the appellant cannot convincingly claim surprise, we
find no error on this issue." Wallace, 7 2 7 P.2d at 525.
 As to a violation of due process under subissue A,
Forsyth cites no specific authority. However, this issue is
easily resolved because prejudice is also required for a due
process claim. State v. Craig (1976), 169 Mont. 150, 153,
545 P.2d 649, 651. Thus, no due process claim exists as to
admission of testimony covered above.
Subissue B:
The relevant facts in regard to subissue B concern Rand
Cullen's testimony. The assertion on appeal is that aspects
of his testimony were exculpatory because the statements he
remembered Richards making around the time of the murder
varied with the story Richards gave to police. Forsyth
contends that the prosecution's failure to reveal Cullen as a
witness sooner than August of 1985 constitutes a violation of
the State's duty to reveal exculpatory evidence. Brady v.
Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.
We affirm on this subissue.
Forsyth contends his inability to better capitalize on
inconsistencies between Richards's testimony, and the
testimony offered by Cullen as to what Richards related to
Cullen shortly after the murder, was due to the State's
failure to disclose Cullen. Forsyth's brief cites to
portions of the trial transcript where the defense revealed
the inconsistencies.
First, in regard to this claim, the issue here is not
whether the suppression of exculpatory material until after
trial requires reversal for retrial, but rather whether the
disclosure came so late as to prevent the defendant from
receiving a fair trial. United States v. Xheka (7th Cir.
1983), 704 F.2d 974, 981. As stated in subissue B, we have
found no prejudice in regard to failure to reveal Cullen.
Thus, there has been no denial of fair trial, and we will not
proceed to consider the numerous other requirements for such
claims as is made here.
Subissue C:
In regard to subissue C, the relevant facts are as
follows: Gary Red Elk was a Kalispell police officer and
friend of Jerry Forsyth at the time of the murder. Red Elk
was called as a witness at the first trial by both the State
and Forsyth. Red Elk worked to prepare Forsyth's defense
prior to the first trial, and was helping with the defense
prior to the second trial.
Prior to the second trial, the State charged Red Elk
with accountability for the murder of Karen Forsyth. The
State supported the charge with statements made by Douglas
Richards, and circumstantial evidence indicating that Red Elk
had in his possession a gun similar to the murder weapon
prior to the murder.
Forsyth contends that the State's misconduct in charging
Gary Red Elk with accountability for the murder of Karen
Forsyth denied him due process. Red Elk was arrested and
charged one week before the second trial. Forsyth claims
that the State deliberately brought the charges without
probable cause to harass the defense.
There is little doubt that the misconduct Forsyth
alleges here would, in the appropriate case, constitute a
violation of the guarantee of a fair trial. However, we have
reviewed the transcript from the preliminary hearing on
probable cause to arrest Red Elk. The evidence from the
hearing shows that probable cause existed. Thus, we affirm
on this subissue.

In summary, we hold for the State on all three
subissues. The decision of the lower court to allow the
testimony is affirmed.
 I11
In connection with issue 3, the relevant facts are as
follows: Charlie Perkins testified at the third trial in
regard to statements allegedly made by Forsyth while in
prison after the first trial. According to Perkins, Forsyth
confessed to torturing and murdering Karen Forsyth.
Forsyth contends that the lower court erred by allowing
the prosecution to amend the information to add Charlie
Perkins to the State's listed witnesses. The amendment came
shortly after the State discovered in the middle of the third
trial that Perkins would testify that Forsyth confessed to
the murder. The lower court allowed Perkins to testify over
the defense's objection that a mistrial should be granted.
The motion for mistrial claimed that allowing Perkins to
testify would result in; (1) prejudice insurmountable by a
continuance, (2) improper disclosure of the verdict from
Forsyth's first trial, (3) inability to voir dire the jurors
concerning their attitudes towards prison inmates in general.
These claims are made here on appeal. The State responds
that: (1) the week continuance given to Forsyth to prepare to
meet Perkins's testimony prevents Forsyth from claiming
prejudice from surprise; (2) the prior verdict was not
improperly disclosed; (3) the lower court's caution to
counsel that the prior conviction might come up vilified
Forsyth's right to voir dire jurors on inmate attitudes.
First, the statute to be applied once again is 5
46-15-301(1), MCA (1983), which grants the District Court
discretion to allow additions to the witness list. The
prosecution's lack of knowledge of Perkins at the time of the
arraignment constitutes good cause for not adding his name to
the listed witnesses. The continuance granted Forsyth to
meet the testimony mitigated surprise. Thus, the lower court
acted within its discretion.
 We are also swayed by the lack of support for Forsyth's
contention that he had no opportunity to properly voir dire,
and that disclosure of the prior conviction resulted in
prejudice. The record reveals that prior to voir dire, the
lower court cautioned Forsyth's counsel that the prior
conviction might come out at trial. Forsyth's incarceration
was relevant to Perkins's knowledge of the confession. Thus,
Forsyth can claim no error in this regard.
Forsyth's inability to question prospective jurors on
their attitudes toward inmates in general also fails.
Amendments adding to the witness list after trial has started
necessarily deprive the opposing party of the opportunity to
voir dire prospective jurors with a particular "class" of
witnesses in mind. Under the circumstances of this case,
however, the denial of this opportunity is not so material
that it gives rise to a claim for a new trial. Nor does it
demonstrate abuse of discretion on the part of the trial
court for allowing the witnesses from the particular "class"
to testify. Thus, we affirm on this issue.

IV
In regard to issue 4, the relevant facts are as follows:
Forsyth's first trial occurred in Flathead County. After
reversal of the conviction in the first trial, the second
trial occurred in Lake County. Following the mistrial of the
second trial, the State moved to return venue to Flathead
County, and proposed that the jury be composed of citizens
from Toole County. The lower court granted this request over
Forsyth's objections.
After the third trial the defense moved for a new trial
on the grounds that trial publicity prejudiced the jury. The
defense produced evidence purporting to show prejudice in the
form of transcribed radio broadcasts aired during the trial.
The defense produced no evidence that the jurors heard the
radio broadcasts.
Forsyth contends that the District Court erred by
granting the State's motion for a change of venue from Lake
County to Flathead County, with a jury selected from Toole
County. The State responds that the trial court had
discretion under S 46-13-203, MCA, to return the case to
Flathead County. We agree.
The applicable part of the statute reads:

If the court determines that there exists in the
county in which the prosecution is pending such
prejudice that a fair trial cannot be had, it
shall:

(a) transfer the cause to any other court of
competent jurisdiction in any county in which a
fair trial may be had;
(b) direct that a jury be selected in any county
where a fair trial may be had and then returned to
the county where the prosecution is pending to try
the case; or
(c) take any other action designed to insure that
a fair trial may be had.
After the second trial the parties agreed that a new
venue was necessary to insure a fair trial. The State's
motion suggested that Flathead County could provide a fair
forum if the jurors were selected from outside Flathead
County and Lake County.
The result at first glance resembles an application of
subsection (b), i.e., the option to select a jury from
another county and return the case to the county where the
prosecution is pending. However, in this case, after
selection of the jury from Toole County, the cause did not
return to Lake County, where it was most recently pending.
Instead, it returned to Flathead County, where the first
trial occurred. Thus, technically, subsection (b) did not
apply. Apparentlv recognizing that subsection (b) did not
apply, the lower court specifically relied on subsection ( c ) .
We hold that the lower court acted within its discretion in
applying subsection (c).
This Court will not:

overturn a District Court order granting or denying
a motion for change of venue unless such action is
found to be arbitrary or capricious, or, in other
words, an abuse of discretion.
State v. Beach (Mont. 1985), 705 P.2d 94, 102, 42 St.Rep.
1080, 1087.
The inquiry here is whether the District Court took
action to insure a fair trial. This issue is primarily a
question of fact. Beach, 705 P.2d at 102. In Beach we
upheld the lower court's application of subsection (a) of the
statute because the lower court properly balanced the
competing considerations of cost and inconvenience to the
prosecuting county, with the defendant's right to a fair
trial. Beach, 705 P.2d at 102. The lower court in Beach
also reserved the right to reconsider the defendant's
objections to venue if voir dire showed prejudice. Beach,
705 P.2d at 102. Here, the State points out that the crime
scene and most of the witnesses were located in Flathead
County. The State also contends that there has been no
showing of prejudice among the Toole County jury panel. We
agree that Forsyth's contentions on prejudice among the jury
panel fails. In regard to the jury itself, the lower court
took actions to insure that they were insulated from
prejudice within the community. Thus, we hold that the lower
court properly balanced the considerations at issue in this
case, and properly applied subsection (c) .
 Forsyth also contends that the Flathead venue provided
an unfair forum because jurors were exposed to prejudicial
radio broadcasts. After the jury verdict, Forsyth moved for
a new trial based on the exposure. However, the lower court
denied the motion holding that Forsyth failed to carry the
burden of showing such exposure occurred. Forsyth offers
nothing on appeal to controvert this ruling except an
unsupported assertion that the burden to show a fair trial
should be placed on the prosecution, and that the trial court
failed to give the "defendant opportunity to complete the
record". First, the record reveals that the lower court
provided Forsyth an adequate opportunity to muster evidence
for this claim, and second, the burden belongs properly on
the defendant in this type of situation. State v. Kirkland
(1979), 184 Mont. 229, 242, 602 P.2d 586, 594.

v
The relevant facts on issue 5 are as follows: Forsyth
moved for a new trial on the grounds that evidence coming to
light after the trial inferred that witnesses Charlie Perkins
and Timothy Hiser testified in exchange for favors from the
State. New evidence also revealed that presiding District
Court Judge Michael D. Keedy corresponded with State's
witness Hiser concerning Hiser's problems at prison prior to
Hiser's testimony at Forsyth's third trial.
First, in regard to Perkins, the lower court properly
denied a new trial to present evidence that Perkins wanted a
transfer. New evidence which is merely cumulative or tending
only to impeach does not provide grounds for a new trial.
State v. Short (1985), 702 P.2d 979, 984, 42 St.Rep. 1026,
1032. Forsyth brought out Perkins's desire for a transfer at
trial. There has been no showing that the transfer Perkins
received after the trial was promised before trial. Thus,
the new evidence in regard to Perkins is both cumulative and
tending only to impeach.
The same is true as to the new evidence concerning
Hiser. There is no proof that officials promised Hiser an
early release in exchange for his testimony, and the effect
of the new evidence at trial would be only impeachment.
There is a further contention that the District Court
Judge improperly failed to inform defense counsel that Hiser
feared for his life while in prison prior to testifying for
the State in the third trial. Hiser testified at the third
trial that Forsyth and Forsyth's counsel spread rumors to
endanger his life. The contention on appeal is that the
District Court Judge should have disclosed Hiser's prior
fears so that Forsyth could use the information to discredit
Hiser. This, again is merely cumulative, tends only to
impeach, and does not amount to grounds for a new trial.

VI
Issue 6 concerns attorney fees for Forsyth's counsel.
Forsyth's counsel moved for attorney fees and necessary
expenses on June 25, 1986. However, this motion had not been
heard at the time that this appeal was made. Forsyth
contends this Court should order the District Court to hear
and determine the motion for fees and expenses. We agree.
The District Court is hereby ordered to hear and determine
the motion as soon as the needed information on the fees can
be gathered, and as soon as the motion can be scheduled. We
further order the District Court to include fees for this
appeal in the determination on the motion.

VI I
Issue 7 relates to Forsyth's sentence. The District
Court Judge presiding over the first trial sentenced Forsyth
to 7 0 years for the murder. The sentencing judge after the
verdict of the third trial sentenced Forsyth to 1 0 0 years,
with an enhancement of 1 0 years for the use of a weapon.
Forsyth contends that the increase violates his due
process rights. Forsyth also contends that the lower court
violated his due process rights by enhancing his sentence by
ten years for use of a dangerous weapon.
The State responds that objective identifiable evidence
justified the increased sentence, and that this Court. has
rejected the contention made by Forsyth in regard to
enhancement of sentences.
Due process guarantees resentencing free from
vindictiveness stemming from reversal. As explained by the
United States Supreme Court:

Due process of law, then, requires that
vindictiveness against a defendant for having
successfully attacked his first conviction must
play no part in the sentence he receives after a
new trial. And since the fear of such
vindictiveness may unconstitutionally deter a
defendant's exercise of the right to appeal or
collaterally attack his first conviction, due
process also requires that a defendant be freed of
apprehension of such a retaliatory motivation on
the part of the sentencing judge.
In order to assure the absence of such a
motivation, we have concluded that whenever a judge
imposes a more severe sentence upon a defendant
after a new trial, the reasons for his doing so
must affirmatively appear. Those reasons must be
based upon objective information concerning
identifiable conduct on the part of defendant.
occurring after the time of the original sentencing
proceeding. And the factual data upon which the
increased sentence is based must be made part of
the record, so that the constitutional legitimacy
of the increased sentence may be fully reviewed on
appeal.
North Carolina v. Pearce, (1969), 395 U.S. 711, 725-26, 89
S.Ct. 2072, 2080-81, 23 L.Ed.2d 656, 670-71.
Since Pearce, other United States Supreme Court cases
have further explained this particular right:

In Wasman v. United States, 468 U.S. 559, 104
S.Ct. 3217, 82 L.Ed.2d 424 (1984), the Supreme
Court indicated that relevant conduct or events
that occurred subsequent to the original sentencing
proceedings are those that throw "new light upon
the defendant's 'life, health, habits, conduct, and
mental and moral propensities. ' " Id. 104 S.Ct. at
3225-26 (Powell, J. concurring), quoting
North Carolina v. Pearce, 395 U.S. at 723, 89 S.Ct.
at 2079. Due process bars an increased sentence
where no intervening conduct or events justifies
the increase, United States v. Whitley, 734 F.2d
994, 996 (4th Cir.1984), or where no objective
information concerning petitioner's conduct or
culpability justifying the increase has been
received. Texas v. McCullough, U.S. , 106
S.Ct. 976, 980-981, 89 L.Ed.2d 1041986).-
Thompson v. Armontrout (W.D.Mo. 1986), 647 F.Supp. 1093,
1095. Thus, due process rights on resentencing create a
presumption of vindictiveness when a sentence is increased on
remand. However, where a different judge sentences upon
retrial:

it does not follow that the second sentencer would
have any reason to have acted vindictively against
the defendant. Texas v. McCullough (1986), 475
U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104; Colten v.
Kentucky (1972), 407 U.S. 104; 92 S.Ct. 1953, 32
L.Ed.2d 584.

Village of Lodi v. McMasters (0h.App. 1986), 511 N.E.2d 123,
125.
In this case, the first sentencer, District Court Judge
Robert Sykes, was replaced by District Court Judge Douglas
Harkin for resentencing after the third trial. Thus, there
is no presumption of vindictiveness and the defense must show
actual vindictiveness. McMasters, 511 N.E.2d at 125.
Forsyth has made no such showing. Thus, we affirm as to the
additions to Forsyth's sentence.
Forsyth also contends that due process requires notice
and an opportunity to defend against enhancement of sentence
for use of a weapon under 5 46-18-221, MCA. Forsyth cites
Pearce and Specht v. Patterson (1967), 386 U.S. 605, 87 S.Ct.
1209, 18 L.Ed.2d 326, for this proposition. Pearce holds
that a defendant may not be twice punished for the same
crime. Pearce, 395 U.S. at 718. Specht held that invocation
of Colorado's Sex Offender's Act constituted a "new charge
leading to criminal punishment". Specht, 386 U.S. at 610.
However, 5 46-18-221, MCA, "does not provide for a separate,
substantive offense". State v. Davison (1980), 188 Mont.
432, 445, 614 P.2d 489, 497. Thus, the information is
sufficient if it states that a firearm was used in the
commission of the offense. Davison, 614 P.2d at 497. That.
is the case here, and we affirm on this contention.
Finally, in regard to the sentence, Forsyth complains
that the lower court failed to give him credit for time
served. The lower court's Sentence reads:
4. The Defendant is granted credit for time
spent in presentence incarceration while awaiting
the disposition of this matter.

We hold that the Sentence's "presentence incarceration", and
the application of 55 46-18-402 to -403, MCA, mandate credit
for the time Forsyth has spent in jail and prison since
charges were brought in this case.

Justice
W e Concur:

ZML
4.-
Chief ~ u s t m

Justices
Mr. Justice John C. Sheehy, dissenting:

SPEEDY TRIAL
I protest the way the majority has papered over the
facts relating to the issue of speedy trial. The long and
intolerable delay in bringing this defendant to a third trial
is the direct result of the improper tactics of the
prosecution, the intransigence of the District Court and the
unwillingness of this Court, when requested, to face the
issues and make a decision. Those factors which served to
delay the third trial cannot all be laid at the feet of the
defendant.
Forsyth was originally charged in the District Court of
Flathead County, with deliberate homicide on January 28,
1980. His first trial was held in that county during March
and April, 1980 and resulted in his conviction. We reversed
in State v. Forsyth (1982), 197 Mont. 248, 642 P.2d 1035.
The District Court then determined that a fair trial
could not be had in Flathead County and so the place of trial
was changed to Lake County. Forsyth underwent a second trial
commencing December 1, 1982, where a mistrial was ordered on
January 2, 1983, because of a hung jury.
Up through the second trial, Forsyth had been
represented by private counsel retained by him. The two
trials apparently depleted his assets, and as an indigent
person, he applied to the District Court for the appointment
of his formerly retained counsel to represent him at county
expense. The District Court refused, and proposed instead to
require that Forsyth be represented by the Flathead County
public defender. At some point in these proceedings, the two
counsel, who had formerly been retained by Forsyth to defend
him, offered to continue representing him in his defense and
to charge the county for their services at the rate paid by
the county to its public defenders and to charge but for one
attorney. Nonetheless, the District Court persisted in
looking first to the public defenders and when conflict there
showed, to another firm of attorneys who were completely
without knowledge of the facts and defenses supplied to
Forsyth's case. Even these counsel protested they had
conflicts of interest and could not represent Forsyth.
The question of Forsyth's defense counsel required two
petitions to this Court. His first petition here was denied
on May 11, 1983, where we held that there was no showing
sufficient to warrant supervisory control. When the District
Court persisted in appointing defense counsel other than his
retained counsel, Forsyth again petitioned this Court for a
writ of supervisory control and on October 6, 1983, on the
order of this Court, the writ was granted and Forsyth's
present counsel were appointed at public expense.
Thus, the two petitions in this Court relating to the
appointment of his counsel for a third trial were
necessitated by the inexplicable refusal of the District
Court judge to appoint, at the same expense to the county as
a public defender, those attorneys most directly conversant
with the case and who had obtained for Forsyth a reversal of
his first conviction, and a hung jury on the second trial..
The appointment of counsel was not the only problem
faced by Forsyth before the District Court. Forsyth made a
demand, as was his right, for a transcript at public expense
of the testimony and proceedings in the second trial.
Section 3-5-604, MCA, provides that in a criminal case where
the defendant is unable to pay for a transcript, it shall be
furnished to him and paid for by the state. The District
Court first limited the transcript which he would permit to
that of defendant's testimony and the State's witnesses.
Although Forsyth made several motions for a full transcript,
and included this problem as part of the writs which he was
pursuing before this Court it was not until January 13, 1984,
that the District Court ordered that he be supplied with the
remainder of the transcript. Perhaps the majority can
explain how defense counsel could properly prepare for the
third trial without having available to them the full
transcript of the second trial.
Again, the majority attribute this delay completely to
the defendant.
I urge and insist that these two items of delay, brought
about by the District Court itself, cannot be characterized
as institutional delay to be weighed less heavily, or
otherwise attributable to the defendant; for if the defendant
must bear the brunt in a speedy trial computation in choosing
between pursuing his legal rights to a fair defense or
proceeding with ineffective counsel, improperly prepared, he
is given no choice at all.
A third item which caused delay was the immoderate order
of the District Court to change the place of trial from Lake
County to Flathead County. The poisoned atmosphere that
pervaded Flathead County was the reason that the trial had
been changed to Lake County originally. True, a jury was
imported from Toole County to Flathead County for the third
trial. The task of the jury in Flathead County was like
having a band of Gauls to choose who should win between the
Christians and the lions before the packed Roman citizenry in
the coliseum in the days of the Caesars.
The change of place of trial, the refusal of the
District Court to dismiss on his jury tampering charge, and
the denial of the District Court of his motion for dismissal
for lack of speedy trial caused Forsyth to come to this Court
again seeking a writ of supervisory control. His application
was filed here on September 24, 1984, 631 days after the
mistrial caused by a hung jury in Lake County. A final
decision on his application for writ did not come out of this
Court until July 2, 1985. The further delay of 281 days can
mostly be attributed to a mistake of law made by this Court.
In its first opinion, issued January 3, 1985 (701 P.2d 1356!,
the majority held that the refusal of a district court to
dismiss criminal charges on a double jeopardy claim did not
warrant supervisory control, and that the remedy on a double
jeopardy claim for a criminal defendant lay only in an appeal
following his conviction or in a post-conviction proceeding.
In other words, the majority held that even though he would
be subjected to double jeopardy he must nevertheless go to
trial a second time. When the majority was made aware of the
holding of the United States Supreme Court in Abney v. United
States (1977), 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651,
it was forced to grant a rehearing. Thus, a final decision
did not come on Forsyth's application until July 2, 1985.
The writ was again refused.
In good conscience this Court cannot count against
Forsyth a delay caused by the majority's mistake of law.
It is galling to read in the majority opinion that the
trial delay was "mitigated by the presence of transcripts
from the previous trials." In this case, the mistrial on the
second trial occurred on January 2, 1983. The last volume of
the transcript of the second trial was d livered to Forsyth
on April 23, 1984, a delay itself of $6 days, most of it
unnecessary. It was said in United States v. MacDonald
(1978), 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18, that in
applying Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182,
33 L.Ed..2d 101, the possibility that the defense will be
impaired is the most serious consideration, "because the
inability of the defendant adequately to prepare this case
skews the fairness of the entire system." Wingo, 407 U.S. at
532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118.
JURY TAMPERING
The majority opinion does not discuss the jury tampering
issue, but it was a large factor in the efforts made by
Forsyth between the second and third trials to obtain a
dismissal on the ground of double jeopardy.
Without question, the court's bailiff during the second
trial in Lake County made ten documented egregious comments
to members of the jury adverse to Forsyth's case. The
instances are outlined in my dissent found in 701 P.2d at
1359. Despite the baleful remarks of the bailiff, the
majority denied Forsyth's double jeopardy claims because the
remarks were not an act of the prosecution, because no
conviction was obtained, and, incredibly because "in the
present case, the comments could at most be construed as an
attempt to assist the state in obtaining a conviction." 701
P.2d at 1356.
True, a conviction was not obtained; neither was an
acquittal. Who is to say if left the jury untampered, an
acquittal might not have been obtained?
I iterate this point to insist that a proper
construction of the law in cases of jury tampering by a
bailiff is not to be tested by the test applied to
prosecutors, whether the bailiff was attempting to provoke a
mistrial. We cannot know the bailiff's intent in this case.
We can only know that his remarks to the jury were
inexcusable, in violation of the bailiff Is oath of office,
were abhorrent to our sense of justice, and cannot be excused
on the ground that the bailiff is only attempting "to assist
the state in securing a conviction." Oregon v. Rathbun
(1979), 287 Ore. 421, 600 P.2d 392.
CHANGE OF PLACE OF TRIAL
Because it may go unreported in the written opinions
that have evolved from this case, some mention should be made
of the jury climate in which the third trial in Flathead
County occurred.
The homicide of Karen Forsyth on December 11, 1979
became the subject of intense public discussion in Flathead
County. Spurred by pervasive and abrasive newspaper and
radio coverage, public sentiment was brought to a white heat
in that county. After the first trial, and the reversal of
the conviction by this Court, the defendant moved in the
District Court for a change of place of trial from Flathead
County. A survey of public opinion, and press clippings from
the date of the homicide until the defendant was sentenced in
May, 1980, convinced the then presiding district judge to
make findings of fact and a conclusion requiring the cause to
be transferred to Lake County before the second trial,
because a fair trial could not be had in Flathead County.
After the Lake County jury hung up in the second trial
and a mistrial was ordered, the State moved the District
Court for a change of place of trial from Lake County back to
Flathead County, requesting that the cause be tried in
Flathead County, either before a Flathead County jury or one
selected from another county and returned to Flathead County
for trial. The court in effect granted that motion. Thus,
the third trial was returned to Flathead County, the same
county, in which it had been earlier judicially determined
that defendant could not receive a fair trial.
The trial judge commented to the Toole County jury on
the first day of the third trial:
I would note as you have seen already that there is
considerable public interest in these proceedings
and you can tell that if by no other reason than
the presence of the news media representatives,
 including a television camera, among other things.
I want to say at the outset, that even though this
controversy has generated a great deal of community
interest in Flathead County, and even though as a
result of this trial, to a certain extent this
Court will probably be under the microscope of
public scrutiny as well as the parties and their
counsel . . .
The court went on to give the jury the usual cautionary
instructions that they were not to be influenced by matters
outside the testimony of the trial and the exhibits received.
However cautioned, the jury members could not fail to
perceive and perhaps to respond to the unremitting pressure
for a conviction of the defendant.
Bands of women, sensing somehow that the case involved
women's rights, made it their business to pack the courtroom,
every one of the 41 court days of the third trial. Sandy
Richards, testifying that Douglas Richards had admitted to
her that he committed the homicide of Karen Forsyth and not
the defendant, complained on the record of the laughter
coming from the members of the audience during her testimony,
from two different sections of the courtroom audience.
Interruptions from the audience in the court proceedings
during trial are reflected in the court transcript.
Everyday, before the jury verdict was announced, prejudicial
radio coverage of the trial proceedings was going out over
the airwaves.
After the third trial, Forsyth filed a motion for a new
trial and to supplement the record with respect to the
prejudicial trial publicity adverse to the defendant.
Defendant claimed that radio broadcasts to which the juror
members were exposed contained biased, false and prejudicial
statements. One of the jurors had written a post-trial
article in the "Shelby Promoter," a newspaper published in
Toole County, which article contained several of the radio
statements. The defendant caused to be issued and served a
subpoena duces tecum upon the owner of the offending radio
station. On the day of the hearing, the owner did not deign
to appear, but sent one of his employees who sought to excuse
not bringing the copies of broadcasts on the grounds the
broadcast of all the news all over the world was too
voluminous to bring to court. On the day of the hearing, the
trial court ordered that the radio station provide at least
one copy of the longest broadcast for each of the court days.
Before adjourning the hearing, the District Court stated that
the broadcast material would be placed in the record prior to
the court's ruling on the motion for a new trial and the
defense would be permitted to make its argument. That
evening, copies of broadcasts of 27 of the 41 days were
furnished to the trial judge. No further copies of the
broadcast were supplied and no further hearing was set. Five
days later, the District Court denied the motion for new
trial without further argument or hearing.
Thus, the District Court gave the defendant no
opportunity to complete the record with respect to the effect
of the radio broadcasts on the jurors and now the majority
condemns the defendant for failing to show such influence.
Even if we were not to consider the effect of the radio
broadcasts, the transcript itself contains enough reference
to the packed courtroom antics to assure us that the first
district judge was correct in the first place in determining
that in Flathead County the defendant could not receive a
fair trial.
The majority now state that the District Court acted
properly in changing the place of trial back to Flathead
County because the District Court is empowered under §
46-13-203 (3)(c), MCA, to "take any other action to ensure
that a fair trial may be had." Flathead County was the least
possible of the 56 counties in Montana in which Forsyth could
have received a fair trial. Not lost to the taxpayers of
Flathead County, especially reminded by the press and radio,
was the mounting cost to them of the prosecution and defense
of Forsyth.
ADDITION OF NEW WITNESSES
In mid-course of the State's case-in-chief in the third
trial, the state moved to amend the information to add new
witnesses not therefore disclosed to the defendant Forsyth.
The court permitted the amendment of the information and
the subsequent testimony. Thus, Charlie Perkins and Timothy
Hiser, prisoners in the Montana State Prison, were permitted
to testify that Forsyth had made a jailhouse confession that
he killed Karen while Forsyth was incarcerated after the
first trial.
During the second trial of Forsyth, in Lake County, the
jury had been permitted to know that Forsyth had been
convicted of a homicide in the first trial in Flathead
County. In preparation for a third trial, Forsyth and the
District Court seemed in agreement that any knowledge of
Forsyth's first conviction should be kept from the Toole
County jury. Thus, voir dire of prospective jurors from
Toole County was conducted without reference to the first
conviction, nor any impression the jurors might have
regarding a first conviction.
When the State proposed to amend the information to add
the name of Charlie Perkins, Forsyth objected strenuously,
pointing out Perkins' untrustworthiness, substantiated by
some of the prison staff, and particularly objecting that his
testimony would reveal to the jury the first conviction about
which Forsyth had not an opportunity to voir dire the
prospective jurors. The majority hold that the "denial of
this opportunity is not so material that it gives rise to a
claim for a new trial." But see, State v. Doll (Mont. 1985),
692 P.2d 473, 42 St.Rep. 40.
In like manner, Timothy Hiser was also permitted to
testify to a jailhouse confession.
With the amendment of the names of Perkins and Hiser,
the issues in the District Court trial took off in all
directions. Hearings were necessary to bring in prison
officials and others respecting the characters of Perkins and
Hiser. A search was made of the possibility of finding
witnesses among the 135 prison inmates who might disprove the
jailhouse confession (an impossible task). When permitted to
testify, the prison inmates not only testified to the
jailhouse confession, but claimed Forsyth committed other
crimes, including wielding a shank while he was in prison
(Perkins had in fact been disciplined in prison for carrying
a shank, which is a knife-like object). Hiser testified that
the defendant had made threats to kill the prosecutor, and
that his counsel had threatened to reveal to other prisoners
that he was an informer. This evidence of other crimes were
not noticed pretrial to defendant (State v. Just (1980), 184
Mont. 262, 602 P.2d 957). Defendant's counsel, however, did
not object to the evidence of other crimes.
Post-trial, Forsyth moved for new trial, including as
grounds that Perkins and Hiser had been promised benefits for
their testimony. The pretrial hearings had brought out
evidence from the prison officials that Perkins under
long-term sentences, had wanted to be transferred out of the
Montana State Prison; that two states, Washington and Idaho,
had refused his transfer; and that as far as the prison staff
was concerned, they would make no other effort to get him
transferred. Following the trial of Forsyth, Perkins was
transferred to the Wyoming Prison; he never returned to the
Montana State Prison following the trial.
 Forsyth further learned post-trial that correspondence
existed between Timothy Hiser and the district judge before
the third trial in which Hiser complained of the conditions
of the Montana State Prison. Although Hiser testified that
he was promised nothing for his testimony, following the
third Forsyth trial, he was kept in the Flathead County jail
until the spring of 1986, when he was completely released
from all incarceration though he had been given a five year
sentence in 1985. Hiser also never returned to Montana State
Prison. The District Court denied the motion for new trial
on this ground without giving Forsyth an opportunity to
develop further hearings as to what agreements, if any,
existed between the State and the prisoners when their
testimony was arranged.
The majority approves the District Court's denial of a
new trial on this point by stating that the additional
evidence would be merely cumulative impeaching evidence as to
the prison witnesses. That ground understates the impact on
the trial of the introduction of this kind of testimony, the
distraction of the jurors of having to choose between the
testimony of the accused defendant and the uncorroborated
testimony of prison inmates who probably stood to benefit
from their testimony, and the grinding-down effect of a
prolonged trial that ensued from the amendment allowing these
witnesses. Defendant's constitutional right to a fair trial
is directly involved in this issue.
CUMULATIVE ERROR
I do not wish to belabor this dissent by additional
comments upon the testimony of the mother of the homicide
victim that Forsyth had urinated on the victim; the murder
charge filed against Gary Red Elk; the change of testimony of
Dr. Johnson; the withholding of the names of witnesses and
exculpatory evidence by the State; and, a variety of other
errors and improprieties which made a farce out of the fair
trial requirement in this case.
To sustain the conviction, the majority has had to
resort to a litany of intonements about "burdens" on the
defendant, that claimed errors are "arguable" and that no
"prejudice" has resulted to the defendant Forsyth.
I am unable to be convinced that the errors and
improprieties singly or in concert, did not contribute to
Forsyth's conviction in the third trial beyond a reasonable
doubt. Accordingly, as to those errors and improprieties, I
would reverse and grant a new trial. However, because of the
bailiff's baleful attempts to assist the prosecution to
convict Forsyth in the second trial, I would find that the
third trial constituted double jeopardy and order a reversal
and dismissal of the case.

:
--

<: Justice

Mr. Justice William E. Hunt, Sr., dissenting:

I concur in the foregoing