No. 89-422
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
BETTY ANN CURTIS,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial ~istrict,
In and for the County of ~avalli,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James A. Haynes, Hamilton, Montana
For Respondent :
Hon. Marc Racicot, Attorney General, Helena, Montana
Elizabeth S. Baker, Asst. Atty. General, Helena
John W. Robinson, County Attorney, Hamilton, Montana
Submitted on Briefs: Dec. 1, 1989
Decided: February 9, 1990
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
A jury in the Fourth Judicial District, Ravalli County, found
Betty Ann Curtis guilty of felony theft from a checking account and
of a certificate of deposit belonging to an elderly patient under
her care. She now appeals on grounds of excessive pre-indictment
delay, lack of speedy trial, and refusal of a directed verdict.
We affirm.
ISSUES
1. Did a 422-day delay between completion of the crime and
the filing of the criminal complaint violate the defendant's right
to due process?
2. Did a 291-day delay between the filing of the criminal
complaint and the beginning of trial violate the defendant's right
to a speedy trial?
3. Was the evidence following the State's case-in-chief
sufficient to refuse the defendant's motion for a directed verdict
on Count IV, theft of a certificate of deposit?
FACTS
Octogenarian Dorothy Bullock lived alone in his life-long home
of Hamilton, Montana. His niece, Carol Curry, lived in Whitefish,
Montana. She did not maintain a close relationship with her uncle,
but held a power of attorney enabling her to supervise his
financial affairs.
In November of 1985 Bullock hired a licensed practical nurse,
Betty Curtis, to help with his daily affairs. Bullock paid Curtis
between $800 and $1000 per month to cook, clean, wash clothes, buy
groceries, and run errands. Two months after hiring Curtis,
Bullock had his attorney draw up a will appointing Curtis his
personal representative, and, among other dispositions, leaving
Curtis his home in Hamilton. In April of 1986, he provided Curtis
with a power of attorney giving her access to his safety deposit
box and bank accounts.
In the spring of 1987, Carol Curry became suspicious when she
noticed a dramatic change in Bullock's banking activities. On
April 20, 1987, she asked the Ravalli County sheriff's office to
investigate, and they confirmed Curry's suspicions. In March 1986,
Bullock's check-writing increased from an average of five to seven
checks per month to twenty to thirty checks per month. Many of
those checks went to Curtis and her sons. Between March of 1986
and April of 1987, Curtis received 161 checks totaling $34,540, an
average of $2,467 per month. Curtis's son Todd received $2,760
and her son Barry received $1,500 from Bullock's checking account.
Investigating officers also discovered the loss of a $20,000
certificate of deposit held jointly by Bullock and his brother
Clarence. On the morning of March 17, 1987, Bullock and Curtis
took the certificate from Bullock's safety deposit box, cashed it,
and purchased a new certificate held jointly by Bullock and Curtis.
One week later the certificate was cashed for $19,931.46. Of the
proceeds, $6,700 was deposited in the account of Curtis's son Kyp
and used to satisfy a judgment to repossess the appellant's car.
Seven thousand dollars was deposited in Curtis's bank account and
the remaining $6,231.46 was taken in cash. The next week,
$6,231.46 was deposited in a joint checking account in the names
of Betty and Kyp Curtis.
On June 2, 1988, a complaint was filed against the appellant
charging four counts of felony theft. The trial commenced on March
20, 1989. The ~istrictCourt ruled that Bullock was not competent
to testify on substantive issues. The jury found Curtis guilty on
two counts; one of theft from Bullock's checking account and
another of the theft of the certificate of deposit. Curtis now
appeals her conviction.
DISCUSSION
In her accusations of pre-indictment delay and lack of speedy
trial, the appellant presents a difficult and close question. The
length of delays from investigation to accusation and from
accusation to trial approach the tolerable constitutional limits.
The exclusion of the victim as a potentially exculpatory witness
raises the possibility of great prejudice against the defense.
Because of these concerns, we set out our analysis in commensurate
detail.
We begin by noting that the appellant has lumped together
arguments on lack of a speedy trial and arguments on excessive pre-
indictment delay. The United States Supreme Court utilizes
different standards for each of these issues. Speedy trial is
guaranteed by the Sixth Amendment of the United States Constitution
and is analyzed according to the standards set out in Barker v.
Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d
101, 117. Freedom from excessive pre-indictment delay is guaran-
teed by the statutes of limitations and the Fifth and Sixth
Amendments. It is analyzed according to the standards set out in
United States v. Marion (1971), 404 U.S. 307, 323-24, 92 S.Ct. 455,
465, 30 L.Ed.2d 468, 480-81. These rights act in a complimentary
fashion to protect the criminal defendant from unreasonable delay
from the time when investigation begins to the time when trial
commences. The statute of limitations and due process cover from
the time when the investigation begins to the point at which the
defendant is accused, whereas the speedy trial guarantee covers
from the accusation to the time when trial begins. United States
v. Lovasco (1977), 431 U.S. 783, 788-89, 97 S.Ct. 2044, 2048, 52
L.Ed.2d 752, 758. This Court utilizes the same analysis. State
v. Bartnes (Mont. 1988), 764 P.2d 1271, 1273-74, 45 St.Rep. 2101,
2103; State v. Goltz (1982), 197 Mont. 361, 365-66, 642 P.2d 1079,
1081-82; State v. Burchett (1974), 165 Mont. 280, 283, 530 P.2d
471, 473, cert. den. 448 U.S. 914, 95 S.Ct. 1397, 43 L.Ed.2d 654
(1975).
PRE-INDICTMENT DELAY
Under the due process analysis, the defendant has the burden
of proving whether the State intentionally delayed charging the
defendant to gain a tactical advantage and whether any delay caused
actual prejudice to the conduct of the defense. Marion, 404 U.S.
at 324, 92 S.Ct. at 465, 30 L.Ed.2d at 481; Bartnes, 764 P.2d at
1274, 45 St.Rep. at 2013. We need not decide in this case whether
the appellant must prove both intentional delay and actual
prejudice since she does not claim the former and fails to
sufficiently prove the latter. See Goltz, 197 Mont. at 367, 642
P.2d at 1082.
Prejudice to the Defense
The appellant argues that the 422-day delay between the final
date of the commission of the offenses, April 30, 1987, and the
date the complaint was filed, June 2, 1988, violated her due
process rights. She asserts that the delay prejudiced her defense
because during that time Bullock's mental condition deteriorated
leaving him unable to exonerate the defendant. According to the
appellant, if the trial had been held earlier, Bullock's memory
would have been intact and he would have testified that he freely
gifted the money in question to Curtis and her children. The
appellant points to testimony given by various witnesses indicating
that Bullock was sharp, alert, and competent in January, April,
May, and September of 1987. By the time trial began on March 23,
1989, however, Bullockts memory of the events had deteriorated to
the point where the trial court adjudged him incompetent to
testify.
Prejudice to the defense is the primary consideration in pre-
indictment delay. [TIhe inability of a defendant adequately to
prepare his case skews the fairness of the entire system.It Barker,
407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. In par-
ticular, the loss of a witness's ability to recall disputed events
can seriously impair the defense. See Barker, 407 U.S. at 532, 92
S.Ct. at 2193, 33 L.Ed.2d at 118; State v. Larson (1981), 191 Mont.
257, 264, 623 P.2d 954, 959. In this case, however, the record
contains considerable evidence which discredits the appellant's
claim of prejudice due to Bullockts loss of memory.
First, during the trial, the defense presented much of the
evidence to which Curtis alleges Bullock would have testified. As
noted by the appellant, a number of witnesses testified on
Bullock's ability to handle his financial affairs during the time
of the disputed transactions. The defense also presented testimony
given by Bullock during a competency hearing in June of 1987. In
that testimony, Bullock stated that he was aware of his financial
condition and that Curtis wrote the checks and signed the certifi-
cate of deposit with his approval. The defense introduced an
affidavit signed by Bullock on May 14, 1987, to the same effect.
That in consideration of [Betty Ann Curtisls]
having cared for me and assisted me in all of
my personal affairs for several years, I have
given her money and other items which are
intended to be wages and gifts for the many
kindnesses shown me.
We recognize that second-hand evidence cannot have the same impact
on a jury as a statement of exoneration by the purported victim of
the crime. The defense, however, was not precluded from presenting
the essential facts supporting its theory.
Second, even if the trial had been held at an earlier date,
the appellant has not shown that the court would have allowed
Bullock to testify. Following the June 1987 competency hearing,
the court held that Bullock was not competent to manage his
financial and personal affairs and appointed Curry as his permanent
guardian. While the standard of competency to manage one's
affairs, §§ 72-5-316 (I), -409 (2)(b), MCA, is not identical to the
standard of competency to testify, State v. Coleman (1978), 177
Mont. 1, 27, 579 P.2d 732, 748, cert. den. 448 U.S. 914, 101 S.Ct.
34, 65 L.Ed. 2d 1177 (1980), the evidence indicates that Bullock may
not have been competent to testify as early as June 1987 when the
investigation began.
Third, the appellant has not shown that even if allowed to
testify, Bullock would have testified for the defense. The record
indicates that Bullock changed his allegiance several times.
Before hiring Curtis, Bullock trusted his niece with a power of
attorney and supervision of his bank accounts. After Curtis became
a constant presence in his life, Bullock began to favor her over
Curry. In January of 1986, he signed a will devising his house to
Curtis and appointing Curtis as personal representative. In April
of 1986, he gave Curtis a power of attorney over his checking
account. When Curry discovered the depletion of Bullock's account
in the spring of 1987, she began court proceedings to gain full
guardianship over Bullock. On learning of the guardianship
proceedings in May, Bullock turned fully against his niece. He
gave Curtis a general power of attorney, revoked Curry's power of
attorney, rewrote his will to delete a previous devise to Curry,
and wrote the above-mentioned affidavit stating that the transac-
tions were gifts. In July of 1987, Curtis lost her position caring
for Bullock and her influence over him ended. By September he had
revised his opinion of her. Bullock wrote a new will deleting his
devise to Curtis, replacing her with Curry as his personal repre-
sentative, and reinstating his former devise to Curry.
From this scenario, it is apparent that Bullock remained loyal
to Curtis only during the period in which she exerted constant
influence over his life. Even if the trial had been held, and
Bullock allowed to testify, as early as September of 1987, Bullock
might just as well have been the State's star witness testifying
about the influence Curtis exerted over him.
The appellant's concern about the loss of Bullock's testimony
is undermined by her failure to depose Bullock until thirty days
prior to trial. See State v. Shurtliff (1980), 187 Mont. 235, 241,
609 P.2d 303, 306. If Bullock's memory was deteriorating, and if
his testimony was essential to the defense, the appellant could
have preserved Bullock's exculpatory testimony by taking his
deposition at any time after charges were filed in July of 1988.
Indeed, the exclusion of Bullock may have given the appellant the
best defense possible. She presented evidence of Bullock's early
exculpatory statements without running the risk of adverse tes-
timony after Bullock changed his opinion of Curtis.
Fourth, the issue of prejudice is a question of fact which the
District Court decided on two different occasions. Six weeks
before trial, the District Court denied the appellant's motion to
dismiss for lack of a speedy trial. The court considered Bullock's
mental condition and found no prejudice to the appellant's defense
caused by delay in commencing trial. As the appellant notes, the
District Court apparently accepted the State's contention that
Bullock's mental condition had not deteriorated but had actually
improved between the beginning of the investigation and the
approaching trial date. Ten days before trial, the court rejected
the appellant's renewed motion to dismiss. The court again
considered Bullock's mental condition and found no change from the
summer of 1988. Although Curtis has not specifically appealed the
District Court's rulings on the motions to dismiss, we give
substantial weight to the District Court's determinations of a
witness's competency. Coleman, 177 Mont. at 27, 579 P.2d at 748.
Finally, the appellant is required to show that the purported
prejudice is more than mere speculation. Goltz, 197 Mont. at 367,
642 P.2d at 1082. Here, the foregoing indicates that the appel-
lant's argument is not based on what Bullock would have said at
trial; it is based on what the appellant desired Bullock to say at
trial. We conclude that the appellant has failed in her burden of
proving sufficient prejudice to the defense.
Investiqative Delav
Even if some prejudice had been proven in this case, that
prejudice must outweigh the necessity of allowing a reasonable time
to investigate the crime. Goltz, 197 Mont. at 368-69, 642 P.2d at
1083. In United States v. Lovasco, the United States Supreme Court
recognized that reasonable investigative delay protects the
interests of both the State and the defendant. From the potential
defendant's perspective, premature indictment would,
increase the likelihood of unwarranted charges
being filed, and would add to the time during
which the defendants stand accused but un-
tried. These costs are by no means insubstan-
tial since . . . a formal accusation may
interfere with the defendant's liberty, dis-
rupt his employment, drain his financial
resources, curtail his associations, subject
him to public obloquy, and create anxiety in
him, his family and his friends.
Lovasco, 431 U.S. at 791, 97 S.Ct. at 2049, 52 L.Ed.2d at 760.
(Citations, quotations and footnote deleted.) From the State's
perspective, premature indictment could impair investigations by
causing sources of information to dry up and by alerting other
potential defendants of the possibility of indictment. The threat
of dismissal for failure to prosecute would pressure the State into
early and potentially ill-considered and unwarranted prosecutions
thereby increasing the burden on the judicial system. Lovasco, 431
U.S. at 791-94, 97 S.Ct. at 2049-51, 52 L.Ed.2d at 760-62.
The record in the present case contains no evidence concerning
the prosecution's reasons for the long delay in indictment. We
have before us only the State's unsubstantiated assurance that,
''The investigation covered a period of more than one year and
required delving into numerous bank records involving accounts
belonging to four different individuals. Against this, the
appellant offers nothing to show that the delay was not reasonable
and necessary in relation to the complexity of the investigation.
In Lovasco, the United States Supreme Court faced a similar
situation. In holding for the government, the Court explicitly
relied on reasons for the prosecution's delay given in the govern-
ment's briefs and oral arguments. Lovasco, 431 U.S. at 796, 97
S.Ct. at 2052, 52 L.Ed.2d at 763. Like the Supreme Court, Ciucci
v. Illinois (1958), 356 U.S. 571, 573, 78 S.Ct. 839, 840, 2 L.Ed.2d
983, 985, we generally will not accept unsubstantiated evidence
presented only in the parties' briefs, State v. Tiedemann (1978),
178 Mont. 394, 397, 584 P.2d 1284, 1287. Reasons for investigative
delay, however, are not normally trial issues and may not produce
an evidentiary record. Furthermore, in this case, the appellant
has offered no evidence to counter the State's contention.
Therefore, in this case, we follow the Supreme Court in assuming
that the prosecution's statements were rendered in good faith.
We hold that the complexity of the evidence warranted the
length of the investigative period. The requirements of a con-
scientious investigation outweighed the prejudice, if any, which
may have occurred. The pre-indictment delay did not violate the
appellant's right to due process.
SPEEDY TRIAL
At the start, we set out the basic parameters of the speedy
trial analysis under the Sixth Amendment. The inquiry centers on
four factors: (1) the length of the delay, (2) the reason for the
delay, (3) the assertion of the right by the defendant, and (4) the
prejudice to the defense. Barker, 407 U.S. at 530, 92 S.Ct. at
2192, 33 L.Ed.2d at 117; Briceno v. District Court (1977), 173
Mont. 516, 518, 568 P.2d 162, 163-64.
Lensth of the Delay
The first element is of primary importance in triggering the
remainder of the analysis. The court need not go beyond the first
element unless the delay is presumptively prejudicial. Barker, 407
U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; State v. Wiman
(Mont. 1989), 769 P.2d 1200, 1202, 46 St.Rep. 279, 283. If the
court finds the delay to be presumptively prejudicial, the State
has the burden of rebutting the presumption by providing a reason-
able explanation for the delay and showing that the defendant was
not prejudiced. State v. Wombolt (Mont. 1988), 753 P.2d 330, 331,
45 St.Rep. 714, 716.
Here the complaint was filed on June 2, 1988, and trial
commenced on March 20, 1989, creating a delay of 291 days. The
parties' briefs exhibit some confusion concerning at what point
delay attributable to the defendant should be considered. Some
confusion is not surprising considering the recent case law. Some
cases deducted time attributable to the defendant before determin-
ing whether the delay was long enough to establish a presumption
of prejudice.' Other cases did not consider such delay until after
the presumption of prejudice had been established and dealt with
it under the second analytical element, the reasons for the delay.2
See e.g. State v. Wiman (Mont. 1989), 769 P.2d 1200, 1202,
46 St.Rep. 279, 283; State v. Forsyth (Mont. 1988), 761 P.2d 363,
369, 45 St.Rep. 1577, 1581; State v. Kerns (1986), 223 Mont. 172,
174, 725 P.2d 1190, 1191; State v. Robbins (1985), 218 Mont. 107,
117, 708 P.2d 227, 234; State v. Britton (1984), 213 Mont. 155,
161, 689 P.2d 1256, 1260; State v. Kelly (1983), 203 Mont. 159,
161, 661 P.2d 26, 27.
* See e.g. State v. Morris (1988), 230 Mont. 311, 315, 749
P.2d 1379, 1381; State v. Tilly (1987), 227 Mont. 138, 140-41, 737
P.2d 484, 486; State v. Palmer (1986), 223 Mont. 25, 28, 723 P.2d
956, 958; State v. Chavez (1984), 213 Mont. 434, 441-42, 691 P.2d
We believe that the second procedure is more appropriate.3
The length of delay is considered twice in speedy trial analysis.
In the first instance, it acts merely as a trigger to determine
whether further inquiry is warranted. If further inquiry is
warranted, the length of the delay is again considered as an
inextricable component of the second element, the reasons for the
delay. See Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d
at 117; United States v. Colombo (1st Cir. 1988), 852 F.2d 19, 24.
The primary purpose of the length of delay as a trigger is to
provide the courts and the parties with a rudimentary warning of
when speedy trial problems may arise. When a defendant alleges a
1365, 1370; State v. Ackley (1982), 201 Mont. 252, 256, 653 P.2d
851, 853; State v. Larson (1981), 191Mont. 257, 262, 623 P.2d 954,
958; State v. Shurtliff (1980), 187 Mont. 235, 239-40, 609 P.2d
303, 305-06.
This procedure is utilized by the majority of federal
circuit courts. The circuit courts near universally look only to
the unallocated length of the delay in determining whether a
presumption of prejudice has arisen. They credit delays to the
defense and the prosecution only after finding that such a
presumption exists. See United States v. Columbo (1st Cir. 1988),
852 F.2d 19, 24; United States v. Richards (8th Cir. 1983), 707
F.2d 995, 997; United States v. Varella (11th Cir. 1982), 692 F.2d
1352, 1359, cert. den. 464 U.S. 838, 104 S.Ct. 127, 78 L.Ed.2d 124
(1983); Cain v. Smith (6th Cir. 1982), 686 F.2d 374, 381; United
States v. Nance (9th Cir.) 666 F.2d 353, 360, cert. den. 456 U.S.
918, 102 S.Ct. 1776, 72 L.Ed.2d 179 (1982); United States v. Greene
(5th Cir. 1978), 578 F.2d 648, 655, cert. den. 439 U.S. 1133, 99
S.Ct. 1056, 59 L.Ed.2d 96 (1979); United States v. Calloway (D.C.
Cir. 1974), 505 F.2d 311, 316; but see United States v. Strayf
(11th Cir. 1983), 701 F.2d 875, 878-79; Ricon v. Garrison (4th
Cir.) , 517 F.2d 628, 632-33, cert. den. 423 U.S. 895, 96 S.Ct. 195,
46 L.Ed.2d 127 (1975).
speedy trial violation, the length of the delay acts as a rough
measure of whether further inquiry is warranted. Incorporating
into that element arguments over how much delay the State caused
and how much the defendant caused would complicate the measure and
thereby dilute its usefulness.
This procedure does not signify a precise quantification of
the triggering time. An overly-specific measure is objectionable
for several reasons. First, the tolerable time for bringing a case
to trial may vary over the years for practical and policy reasons.
We have recognized that as a matter of policy the length of
acceptable delay should be gradually shortened. Wombolt, 753 P.2d
at 331-32, 45 St.Rep. at 716-17; State v. Chavez (1984), 213 Mont.
434, 442, 691 P.2d 1365, 1370; State v. Fife (Mont. 1981), 632 P.2d
712, 714, 38 St.Rep. 1334, 1336. Against such policy considera-
tions we must weigh the reality of an often overburdened court
system. The goal of the speedy trial guarantee is not simply
speed; it is the orderly disposition of criminal proceedings while
preventing oppressive tactics by the prosecution. United States
v. Marion (1971), 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d
468, 474; Wiman, 769 P.2d at 1201, 46 St.Rep. at 281.
Second, the facts of the individual case may warrant a longer
than usual delay. The United States Supreme Court has stated that
the complexity of the case may be a factor in determining whether
a delay should trigger further analysis:
[TJhe length of delay that will provoke . ..
an inquiry is necessarily dependent upon the
peculiar circumstances of the case. To take
but one example, the delay that can be tolera-
ted for an ordinary street crime is con-
siderably less than for a serious, complex
conspiracy charge.
Barker, 407 U.S. at 530-31, 92 S.Ct. at 2192, 33 L.Ed.2d at 117.
See also Chavez, 213 Mont. at 441, 691 P.2d at 1369; Cain v. Smith
(6th ~ i r .1982), 686 F.2d 374, 381; State v. Worden (1980), 188
Mont. 94, 96-97, 611 P.2d 185, 186. This Court has not yet found
a case so complex as to warrant an exceptional delay without
triggering a presumption of prejudice. However, in unusual
circumstances, complexity may become a factor.
Finally, if the defendant actively avoids trial, speedy trial
analysis may not be warranted regardless of the length of the
delay. State v. Wirtala (Mont. 1988), 752 P.2d 177, 180, 45
St.Rep. 596, 599.
One apparent exception to the procedure here adopted arises
in cases in which the defendant has been accused, but the prosecu-
tion is procedurally barred from proceeding to trial. In United
States v. Loud Hawk the United States Supreme Court held that a
seven-year delay during the prosecutionts appeal of dismissed
indictments was excluded from the defendantst speedy trial claim.
Loud Hawk (1986), 474 U.S. 302, 312, 106 S.Ct. 648, 654, 88 L.Ed.2d
640, 652. Similarly, in State v. Armstrong this Court held that
a three-year stay pending a habeas corpus petition should not be
counted. Armstronq (1980), 189 Mont. 407, 424-25, 616 P.2d 341,
351. Such delays are not specifically attributable to the defen-
dants; they are, more properly, time during which the speedy trial
clock does not run and should not count toward triggering a
presumption of prejudice.
In the case sub judice, the delay of 291 days is sufficient
to raise a presumption of prejudice and require further inquiry.
See State v. Palmer (1986), 223 Mont. 25, 27-28, 723 P.2d 956, 958
(256 days). The State now has the burden of providing a reasonable
explanation for the delay and to show that the defendant was not
prejudiced by the delay. Wombolt, 753 P.2d at 331, 45 St.Rep. at
716.
Reasons for the Delay
The parties agree that fourteen days of the delay are at-
tributable to the appellant. The appellant produced a seven-day
delay by asking for a continuance of the arraignment from August
10 to August 17, 1988. At the arraignment the appellant requested
a substitution of District Court Judge James B. Wheelis. On August
24, 1988, District Court Judge Gordon R. Bennett assumed jurisdic-
tion producing another seven-day delay attributable to the appel-
lant.
The State also asserts that the ten days between January 31,
1989, when the defendant filed its first motion to dismiss, and
February 10, 1989, when the District Court refused the motion,
should be charged against the appellant. The State relies on State
v. Kerns in which this Court excluded the period during which the
defendant 's motion to dismiss was pending. Kerns (1986), 223 Mont.
172, 174, 725 P.2d 1190, 1191.
Kerns is distinguishable from the present case. In Kerns the
District Court delayed the omnibus hearing and setting of the trial
date until after it had ruled on the defendant's motion to dismiss.
Here, the District Court considered and decided Curtis's motion to
dismiss after setting the proposed trial date. On January 27,
1989, the District Court set the trial date for February 27. The
appellant moved to dismiss on January 31 and the court decided the
issue on February 10. Since the entire issue was settled within
the pre-established trial schedule, it caused no delay and is not
chargeable against the appellant. See State v. Pease (1987), 227
Mont. 424, 428-29, 740 P.2d 659, 662.
The appellant is, however, properly credited with a twenty-
five-day delay caused by another defense motion. The District
Court granted the appellant's uncontested motion to continue the
trial date from February 23 to March 20, 1989. While the appellant
correctly points out that the State used this period to continue
trial preparations, the appellant fails to show that the State
could not have proceeded to trial without it. The continuance,
therefore, falls entirely on the appellant. Of the entire 291 days
from accusation to trial, thirty-nine days are attributable to the
appellant and the State must explain the remaining 252 days.
The retirement of Judge Bennett at the end of December 1988
caused some of this delay. His replacement, District Court Judge
Jeffrey Sherlock, held the omnibus hearing and set the trial date
on February 27, 1989. Such delays are institutional. State v.
Ackley (1982), 201 Mont. 252, 256, 653 P.2d 851, 853 (delay caused
by election of new judge held institutional). The State provides
no explanation for the remaining time except that both parties were
involved in trial preparation up to the time of trial. We there-
fore concluded that the State is chargeable with 252 days of
institutional delay. Such delays are weighed against the State,
but not as heavily as delays resulting from oppressive tactics.
Chavez, 213 Mont. at 442, 691 P.2d at 1370. Although this delay
is unusually long, delay is not in itself sufficient to establish
a speedy trial violation. State v. Waters (1987), 228 Mont. 490,
492, 743 P.2d 617, 619. Against this delay, we must balance the
other Barker factors.
Assertion of the Risht
The State concedes that the appellant satisfied the third
element by moving to dismiss on speedy trial grounds on January
31, 1989, and again on March 10, 1989.
Prejudice to the Defendant
In considering the final factor in the analysis, the court
must look to the interests protected by the right to speedy trial:
(1) to prevent oppressive pre-trial incarceration; (2) to minimize
the defendant's anxiety and concern; (3) to limit the impairment
of the defense. Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33
L.Ed.2d at 118; State v. Morris (1988), 230 Mont. 311, 316, 749
P.2d 1379, 1382.
The first interest carries no weight in this case because
Curtis was never incarcerated. See Morris, 230 Mont. at 316, 749
P.2d at 1382.
As to the second interest, Curtis argues that she suffered
anxiety from her loss of employment. The appellant points to a
letter discharging her from employment with the Ravalli County
Public Health Nursing Service shortly after the investigation
began. Curtis also notes that the presentence report documents
the loss of her Licensed Practical Nurse status and employment with
the Valley View Nursing Home as a result of her conviction.4
The District Court found no serious allegation or proof of
anxiety and we agree. The dismissal letter shows that Curtis lost
her employment with Ravalli County, but not why she lost it. The
We note that the appellant deprived the State of an oppor-
tunity to respond to evidence based on the presentence report by
referring to it for the first time in the appellant Is reply brief.
presentence report indicates that she was able to work at her
normal occupation at Valley View, though perhaps not for her chosen
employer, up until the time of conviction. Her continued employ-
ment should have mitigated any anxiety Curtis suffered.
The existence of anxiety or emotional distress is notoriously
difficult to prove. The State is faced with the near impossible
burden of proving that it does not exist. We have recognized that,
!'The State's burden to show a lack of prejudice becomes considerab-
ly lighter in the absence of evidence of prejudice to the appel-
lant." Ackley, 201 Mont. at 258, 653 P.2d at 854. It necessarily
follows that the State's burden to show a lack of anxiety becomes
considerably lighter in the absence of more than marginal evidence
of anxiety.
Even if Curtis had presented some evidence of anxiety, the
anxiety she suffered was not uncommon. "A certain amount of
anxiety and concern is inherent in being accused of a crime."
Waters, 228 Mont. at 494, 743 P.2d at 620. When a defendant is
accused and then convicted of taking advantage of a position of
care and trust, she should expect to lose that position and its
requisite licensed privileges. As to this interest, we must
conclude that it does not weigh heavily against the State.
We have already determined under the pre-indictment delay
issue that the defense suffered little if any prejudice. The
present analysis differs only in that the burden is on the State
to prove a lack of prejudice. Based on our previous analysis of
prejudice to the defense, we hold that the State has adequately met
its burden.
Conclusion
We must consider the four speedy trial factors collectively
and in relation to the circumstances of the particular case; no one
factor is either necessary or sufficient to establish a deprivation
of the right. Barker, 407 U.S. at 533, 92 S.Ct. at 2193, 33
L.Ed.2d at 118; Wombolt, 753 P.2d at 331, 45 St.Rep. at 716. The
time required to bring this case to trial was longer than would
normally be expected and the State offers no adequate explanation
other than institutional delay. The State has, however, shown that
the appellant suffered little more anxiety than would normally be
expected. Finally, and most importantly, the appellant's conten-
tion that the loss of Bullock as a witness prejudiced the defense
is based primarily on speculation not supported by the record.
Taking all of these factors together, we hold that the State did
not violate appellant's right to a speedy trial.
DIRECTED VERDICT
Following the State's case-in-chief, the appellant moved for
a directed verdict on all counts. The District Court denied the
motion and the jury found Curtis guilty on Count One, theft from
Bullock's Citizens State Bank checking account, and Count Four,
theft of Bullock's Ravalli County Bank certificate of deposit.
The decision to grant or deny a directed verdict at the close
of the prosecution's case-in-chief is within the discretion of the
trial court. The trial court may exercise that discretion to
acquit the defendant only when the State presented no evidence upon
which a jury could base a guilty verdict. State v. Miller (Mont.
1988), 757 P.2d 1275, 1282, 45 St.Rep. 790, 798. In our review of
the trial court's decision,
the relevant question is whether after review-
ing the evidence in the light most favorable
to the prosecution, any rational trier of fact
could have found the essential elements of the
crime beyond a reasonable doubt.
Miller, 757 P.2d at 1282, 45 St.Rep. at 798.
The statute cited in Count Four states:
(2) A person commits the offense of theft when
he purposely or knowingly obtains by threat or
deception control over property of the owner
and :
(b) purposely or knowingly uses, conceals, or
abandons the property in such manner as to
deprive the owner of the property . . . .
section 45-6-301(2)(b), MCA.
The appellant argues that the court should have granted the
directed verdict as to Count Four because the State failed to
introduce evidence showing that Curtis used, concealed, or aban-
doned the certificate with the purpose of depriving Bullock of his
property. She contends that Bullock knowingly made her joint owner
is that Curtis deceived or threatened Bullock into giving her that
access and approval.
The evidence is uncontested that Curtis cashed the certificate
of deposit for her own benefit thereby purposely depriving Bullock
of its use. The State offered no evidence that Curtis threatened
Bullock. The only question left is whether the State presented
enough evidence that any rational trier of fact could find that
Curtis purposely or knowingly obtained control over the certificate
through deception. We hold that it did.
The task of finding evidence of purposeful or knowing decep-
tion in this case would be much more straight forward if the record
contained evidence of conspicuous untruths by Curtis. See Swope
v. State (Tex. App. 1986), 723 S.W.2d 216. Circumstantial evi-
dence, however, is sufficient to prove any element of a crime,
State v. Bradford (1978), 575 P.2d 83, 86, 175 Mont. 545, 550,
including mental state, State v. Krum (Mont. 1989), 777 P.2d 889,
890, 46 St.Rep. 1334, 1336, and deception, State v. Howe (N.D.
1987), 413 N.W.2d 350, 354-55.
While a close question, the jury in this case could have
relied on the State's circumstantial evidence to find that Curtis
intentionally deceived Bullock. The evidence establishes that
prior to employing Curtis, Bullock was a frugal man seldom spending
more than was necessary for his daily needs. Bullock had given his
niece Curry a power of attorney to oversee his financial affairs
indicating that he was unsure of his own abilities. When Bullock
hired Curtis, the situation dramatically changed. Curtis acquired
a power of attorney and took control of Bullock's finances. Over
a period of thirteen months, she gradually siphoned money out of
his steadily diminishing funds. She used the money for her own
benefit and gave it to her children. Curtis knew that Curry had
control of Bullock's finances, but failed to communicate with her
about the alleged gifts. We hold that from this scenario a
reasonable jury could have concluded that the appellant intention-
ally used her influence over the aged and vulnerable Bullock to
deceive him into acting against his own best interests.
While the appellant has presented close and difficult ques-
tions on all issues, the record contains sufficient evidence to
uphold her conviction.
Affirmed.
Chief Justice
of the certificate of deposit, gave her his power of attorney, and
approved of her cashing the certificate.
Although superficially persuasive, Curtis's defenses are not
the real issue as the recent case of State v. Haack demonstrates.
In Haack, the victims set up a $30,000 joint checking account
authorizing the defendant contractor to withdraw funds to finance
construction of their home. The defendant was charged with theft
when he allegedly withdrew more than $10,000 for unauthorized
personal purposes. We affirmed the ~istrictCourt's ruling that,
as a matter of law, the statute governing joint deposits and joint
certificates of deposit, 5 32-1-442, MCA, precluded application of
theft laws to withdrawals from such accounts. Haack (1986), 220
Mont. 141, 145, 713 P.2d 1001, 1003.
Haack is distinguishable from the present case. In that case
the defendant was charged with stealing from an account to which
the fully-informed victims had given him access for a lawful
purpose. No allegation was made that the defendant deceived them
by intending to steal from the account when he entered into the
arrangement. In the present case, however, the issue is not
whether the appellant had the power to cash the certificate. The
State does not dispute that Bullock gave Curtis joint ownership of
the certificate, a power of attorney, and approval of her actions.
The real issue is why he did so. The State's precise allegation
We concur:
Justices
Justice R. C. McDonough dissenting.
The speedy trial issue is analogous to Senator Everett
Dirkson's statement of a billion dollars here and a billion
dollars there and pretty soon a lot of money is being thrown
around. In this case there is a little prejudice before
charging, a little more prejudice before trial, and a major
infliction of prejudice when the alleged victim was found
incompetent to testify.
The defendant's speedy trial rights were violated.
A 291 day delay occurred between the time the charges
were filed and the time of trial. The State asserts that 49
days are chargeable to the defendant. This leaves 242 days.
A delay of this magnitude necessitates a speedy trial
inquiry. When faced with such an inquiry the State must
assert a reasonable excuse for the delay and show that the
defendant was not prejudiced. Furthermore, there is a
presumption that the defendant was preiudiced by the delay
and it is the State1s burden to overcome it. The State has
failed to do so. State v. Waters (1987), 228 Mont. 491, 743
P.2d 617.
The State's excuse of "institutional delay" does not
overcome this presumption. The District Court found the
delay attributable to the retirement of the presiding judge
and other delays within the system. Normally, due to the
inherent characteristics of our criminal justice system, a
six month delay is not unexpected between time of charging
and the time of trial. Any systematic delays longer than six
months, however, must he extraordinary and compelling or else
charges should be dismissed. Such circumstances a not
shown here. The presiding judge officially retired on the
first Monday in January of 1 9 8 9 . Furthermore, the State knew
that he would retire even before charges were filed in June
of 1988. These facts do not rise to the level of
extraordinary and compelling.
The constitutional right of a speedy trial applies to
all branches of government. The executive to prosecute, the
judiciary to conduct, and the legislative not to enact
constitutional impediments or fail to provide sufficient
resources to the other branches. Under the set of
circumstances presented by this case, it is clear that the
government failed in its duty to afford the defendant her
constitutional right to a speedy trial. "Institutional
delays" as set forth here are not satisfactory excuses.
Moreover, there is a presumption that this delay
prejudiced the defendant. The victim, who was in fact the
salient witness of the case, was a very elderly man in his
eighties who was subject to all of the vagaries of advanced
age, particularly mental deficiency. There was no
extraordinary number of witnesses, the case was not unusually
complex, and written documents were practically all bank
records obtainable by investigative subpoenas. However, 14
months transpired from the complaint to law enforcement
authority until the time the defendant was charged. During
this period of time the victim wrote a new will, prepared by
the attorney for the complaining witness. This attorney
testified that the victim was competent to dispose of his
property. However, by the time of trial, approximately 18
months later, he was deemed incompetent to testify. The
State's reasons for the delay in bringing the defendant to
trial are insufficient to overcome the facts which clearly
support the presumption that the defendant was prejudiced.
The State argues that defendant was able to present
witnesses who testified as to the victim's competency at the
time of the alleged criminal acts and therefore was able to
present her case before the jury. However, this delay has
prevented her from presenting the victim as part of her case
in chief and has prevented her from cross-examining him as to
the actual events surrounding the alleged criminal acts.
In view of the victim's age, physical and mental state,
and the importance of his testimony, the State has not
overcome the presumption of prejudice. The State knew or
should have known the competency of the most important
witness for the defense was likely to deteriorate. Despite
this knowledge it did not take steps to bring the matter to
trial, and therefore the case s h o u l d be r e v e r s e d and t h e
charges dismissed.
@ a -
& & Justice
W e concur i n t h e foregoing d i s s e n t of J u s t i c e ~ c ~ o n d G ~ h .