City of Billings v. Bruce

No

No. 97-183

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 186

CITY OF BILLINGS,

Plaintiff and Respondent,

v.

RODNEY BRUCE,

Defendant and Appellant.

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APPEAL FROM: District Court of the Thirteenth Judicial
District,

In and for the County of Yellowstone,

The Honorable Maurice R. Colberg, Jr., Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Matthew J. Wald, Attorney at Law; Miles City, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Patricia J. Jordan,

Assistant Attorney General; Helena, Montana

Craig C. Hensel, Deputy City Attorney; Billings, Montana

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Submitted on Briefs: January 15, 1998

Decided: July 29, 1998

Filed:

__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶ Rodney Bruce appealed to the District Court for the Thirteenth Judicial District in
Yellowstone County from a misdemeanor conviction in the City Court for the City of
Billings for the offense of stalking. He moved to dismiss the charges based on a
violation of his right to speedy trial in both the City Court and District Court, and
based on a violation of his due process rights. The District Court denied the motions.
Bruce pled guilty and reserved his right to file this appeal from the denial of his
motions. We reverse the District Court's order.

¶ Bruce raises three issues on appeal:

¶ 1. Was Bruce denied his constitutional right to a speedy trial in the District Court?

¶ 2. Was Bruce denied his constitutional right to a speedy trial in the City Court?

¶ 3. Did the document which charged Bruce in the City Court violate his
constitutional right to due process because it failed to provide adequate notice?

FACTUAL BACKGROUND

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¶ On May 19, 1994, Rodney Bruce was charged in the City Court for the City of
Billings with the misdemeanor offense of stalking, in violation of § 45-5-220(1)(a) and
(b), MCA. The complaint alleged that Bruce committed the offense during the period
from June 1993 through May 1994. He was arraigned on May 30, 1994, and a trial in
City Court was set for September 30, 1994.

¶ At the omnibus hearing on September 20, 1994, Bruce claimed the stalking statute
was unconstitutional and filed a motion to dismiss. A few days later, he requested a
continuance and, together with the motion and a request to interview more witnesses,
he filed a waiver of his right to a speedy trial. Trial was reset for February 8, 1995,
and a hearing on the constitutionality of the statute was set for January 17, 1995, but
reset for January 24, 1995, due to a conflict with the schedule of Bruce's counsel.
However, on January 17, 1995, his counsel moved to withdraw. The City Court
granted the motion and reset the trial for July 12, 1995.

¶ New counsel took over for Bruce in May 1995, and at the pretrial conference on
July 3, 1995, he moved to dismiss based on the 407-day delay since the initial
arraignment. Without a response from the City, the City Court denied the motion,
based on Bruce's waiver in September 1994. Bruce was convicted of the crime
charged following a three-day jury trial which had commenced on July 12. On July
18, 1995, Bruce appealed the verdict and the denial of his motions to the District
Court.

¶ On August 23, 1995, District Judge G. Todd Baugh set a date for the omnibus
hearing and for trial. The next day, however, Bruce moved to substitute judges, and
Judge Robert Holmstrom took over the case. On August 28, the City sought
substitution of Judge Holmstrom, and the matter was assigned to Judge Russell
Fagg. On September 15, Judge Fagg disqualified himself, and on September 18, the
case was assigned to Judge Maurice Colberg. On September 25, the District Court
set the omnibus hearing for October 12, and the trial date for November 13, 1995.

¶ At the omnibus hearing on October 12, the parties indicated their intent to file
motions. In response, the District Court ordered that all motions be filed by
November 1, 1995, and that the response briefs be filed by November 13; in the event
that an evidentiary hearing on the motions was necessary, it was scheduled for
November 16. Bruce moved to dismiss for denial of due process and for denial of his
right to speedy trial. The City moved to amend its complaint to extend the period

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covered by the charge through August 1994, and on November 3 the District Court
granted that motion.

¶ On November 13, 1995, the City also moved to continue the evidentiary hearing. It
based its motion on the fact that Bruce had subpoenaed a number of individuals
from the City Court whose schedules could not be rearranged on short notice. A
week later, it filed its response to Bruce's motion to dismiss.

¶ No further action in the matter took place until May 6, 1996, nearly six months
later, when the District Court ordered the parties to appear by telephone conference
on May 20, 1996. It appears that counsel for each party had been discussing a
separate matter, and counsel for Bruce asked whether the City had dismissed the
case. The conversation prompted the City to contact the District Court and schedule
the telephone conference.

¶ On May 23, 1996, the District Court ordered that a hearing be set for June 12,
1996, and that all motions be filed by May 24; all responsive briefs were to be filed by
May 31, 1996. On May 24, Bruce filed a motion to dismiss based solely on the denial
of his right to speedy trial. In support of his motion, he alleged that all but one of the
353 days of delay that had occurred in the District Court by that time should be
attributed to the City. In response to the motion, on May 30, the City moved for a
continuance of an additional week so that it could submit its response to the motion
to dismiss; the District Court granted the City leave to file its brief by June 7.
However, on June 6, the City requested a second continuance, until June 14, by
which to respond. It eventually filed its response on June 13.

¶ On June 10, 1996, the parties filed a stipulation to continue the hearing set for
June 12, 1996. The parties agreed in the stipulation that any delay between June 12
and the date of the hearing would not be held against either party for purposes of the
speedy trial motion. On June 24, the District Court granted the parties' request and
reset the hearing for August 22, 1996. On the day of the hearing, the City moved for
a continuance due to the unavailability of a City Court Judge who had been
subpoenaed by Bruce. The District Court granted the continuance, and on
September 30, 1996, reset the hearing at which to consider the motions for October
16, 1996.

¶ At the hearing on October 16, Bruce's former counsel testified regarding the

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problems he encountered with Bruce's defense as a result of the delay, including the
unavailability of two witnesses and the impaired memory of those who were still
available. Bruce did not appear at the hearing, but he submitted an affidavit in which
he stated that the delay caused him anxiety, resulted in the unavailability of certain
witnesses, and hindered his defense.

¶ On November 1, the District Court set a trial date for December 2, 1996. On
November 27, 1996, the District Court denied Bruce's motions to dismiss. The parties
agreed to waive a jury trial, and the District Court rescheduled the trial for
December 9, 1996. On December 9, Bruce pled guilty and reserved his right to appeal
the denial of his motions.

DISCUSSION

¶ Was Bruce denied his constitutional right to a speedy trial in the District Court?

¶ Whether a defendant has been denied a speedy trial constitutes a question of
constitutional law. See State v. Small (1996), 279 Mont. 113, 116, 926 P.2d 1376, 1378;
see also State v. Bullock (1995), 272 Mont. 361, 368, 901 P.2d 61, 66. We review a
district court's conclusions of law to determine whether its interpretation of the law
is correct. See Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469,
898 P.2d 680, 686; see also Kreger v. Francis (1995), 271 Mont. 444, 447, 898 P.2d 672,
674; Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601,
603.

¶ Since 1972, we have reviewed claims that a speedy trial was denied in violation of
the Sixth Amendment to the United States Constitution, and Article II, Section 24, of
the Montana Constitution, based on the general guidelines established by the United
States Supreme Court in Barker v. Wingo (1972), 407 U.S. 514, 92 S. Ct. 2182, 33 L.
Ed. 2d 101. See, e.g., Bullock, 272 Mont. at 368-69, 901 P.2d at 67; State v. Sunford
(1990), 244 Mont. 411, 416, 796 P.2d 1084, 1087; Fitzpatrick v. Crist (1974), 165 Mont.
382, 388, 528 P.2d 1322, 1325. The Barker test requires that we consider: (1) the
length of the delay; (2) the reason for the delay; (3) the assertion of the right to a
speedy trial by the defendant; and (4) the prejudice to the defense. See Barker, 407 U.
S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. Prejudice to the defense can be
established based on any of the following factors: (1) pretrial incarceration; (2)
anxiety and concern to the defendant; and (3) impairment of the defense. See Barker,

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407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. Of these concerns, the Supreme
Court stated the following about their order of importance:

Of these, the most serious is the last, because the inability of a defendant adequately to
prepare his case skews the fairness of the entire system. If witnesses die or disappear
during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are
unable to recall accurately events of the distant past. Loss of memory, however, is not
always reflected in the record because what has been forgotten can rarely be shown.

Barker, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118.

¶ However, the four factors established by Barker are necessarily general guidelines
to be applied on a case-by-case basis to the unique circumstances of each case. "In
sum, these factors have no talismanic qualities; courts must still engage in a difficult
and sensitive balancing process." Barker, 407 U.S. at 533, 92 S. Ct. at 2193, 33 L. Ed.
2d at 118. Perhaps for that reason, commentators have noted the seemingly
inconsistent results from Barker's application. As noted by one author:

Because the right is so "amorphous," "slippery," and generally difficult to vindicate, courts
have not applied a consistent legal standard in speedy trial cases. Indeed, federal appellate
courts' speedy trial rulings throughout this century have portrayed the right as somehow
less fundamental and more contingent than other procedural safeguards in the Bill of
Rights. This treatment reflects the orthodoxy that the right to a speedy trial is the one
criminal procedural guarantee in the Constitution that must be limited by the
countervailing demands of "public justice." In other words, courts have typically held--and
most academic commentators have agreed--that the Sixth Amendment provides relief for
defendants suffering from trial delays only where society lacks a countervailing interest in
continuing to hold them for trial.

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Brian P. Brooks, A New Speedy Trial Standard for Barker v. Wingo: Reviving a
Constitutional Remedy in an Age of Statutes, 61 U. Chi. L. Rev. 587, 588 (1994).

¶ Montana's experience in dealing with speedy trial issues mirrors the national
experience described by Mr. Brooks in his article. For example, we have considered
the first factor, the length of delay, as both a triggering mechanism which justifies
further speedy trial analysis, see State v. Dahms (1992), 252 Mont. 1, 12, 825 P.2d
1214, 1220, and as a factor which, if sufficient in length, can shift the burden to the
State to disprove that prejudice has occurred. See State v. Carden (1977), 173 Mont.
77, 85, 566 P.2d 780, 784.

¶ However, the length of delay that we have found necessary to trigger further
speedy trial analysis has varied from case to case. In Dahms, 252 Mont. at 12, 825
P.2d at 1220-21, we stated that "[i]n [State v. ]Wombolt [(1988), 231 Mont. 400, 753
P.2d 330], we set out a number of recent decisions indicating that delays over 200
days will usually trigger the full analysis." However, we also recognized that we had
previously held a 175-day delay sufficient to trigger the presumption. See State v.
Bartnes (1988), 234 Mont. 522, 764 P.2d 1271; see also State v. Bailey (1982), 201
Mont. 473, 655 P.2d 494 (186 days triggered the presumption); State v. Fife (1981),
193 Mont. 486, 632 P.2d 712 (194 days triggered the presumption). Nevertheless, in
Dahms we held that a 161-day delay was not a sufficient delay to require further
analysis. See Dahms, 252 Mont. at 12, 825 P.2d at 1221.

¶ We later cited Dahms for the proposition that 200 days usually triggers the
analysis. See State v. Thompson (1993), 263 Mont. 17, 32, 865 P.2d 1125, 1135; see
also State v. Eklund (1994), 264 Mont. 420, 424, 872 P.2d 323, 326 (relying on
Thompson for the same proposition). We have not, however, considered 200 days as a
necessary threshold. First, Thompson introduced the 200-day proposition from
Dahms immediately after citing Dahms for the notion that the length of delay is case
specific. See Thompson, 263 at 32, 865 P.2d at 1134-35. Second, in Eklund, the Court
held that "197 days is presumptively prejudicial . . . given the close proximity to the
200-day trigger." Eklund, 264 Mont. at 424, 872 P.2d at 326. More recent cases,
though, have referred to 200 days as the length of delay which will trigger a full
Barker analysis. See State v. Williams-Rusch (1996), 279 Mont. 437, 449, 928 P.2d 169,
176-77; State v. Collier (1996), 277 Mont. 46, 54, 919 P.2d 376, 382.

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¶ Although we have been consistent in our statements that a delay sufficient to
trigger further analysis also creates a presumption of prejudice, we have likewise
been inconsistent in our application of that presumption.

¶ We first discussed the effect of presumptive prejudice in Fitzpatrick, 165 Mont. at
388, 528 P.2d at 1326, where we were concerned with a delay of seven months. There
we held that:

We emphasize this delay is not considered a per se violation of petitioner's right to a
speedy trial, but under the circumstances here it is thought long enough to shift to the state
the burden of explaining the reason for the delay and showing absence of prejudice to
petitioner.

¶ In State v. Steward (1975), 168 Mont. 385, 389, 543 P.2d 178, 181, we cited with
approval United States v. Rucker (D.C. Cir. 1972), 464 F.2d 823, 825, where that court
held that:

A delay of over one year between arrest and trial raises a Sixth Amendment claim of
"prima facie merit." Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F.2d 684
(1966). It places on the Government the necessity of justification, the burden of which
increases with the length of delay. . . . When the delay approaches a year and a half, as in
this case, the Government must provide a justification which convincingly outweighs the
prejudice which can normally be assumed to have been caused the defendant.

¶ In State ex rel. Sanford v. District Court (1976), 170 Mont. 196, 199, 551 P.2d 1005,
1007, we held that a ten-month delay between arraignment and trial established a
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prima facie case of denial of the right to a speedy trial.

¶ In Fife, 193 Mont. at 491, 632 P.2d at 715, we cited Moore v. Arizona (1973), 414 U.
S. 25, 26, 94 S. Ct. 188, 189, 38 L. Ed. 2d 183, 185, for the principle that "Barker v.
Wingo expressly rejected the notion that an affirmative demonstration of prejudice
was necessary to prove a denial of the constitutional right to a speedy trial."

¶ In State v. Britton (1984), 213 Mont. 155, 689 P.2d 1256, we had the following to say
about the presumption of prejudice from a delay which was less than the delay in this
case:

Here it was the State's burden to rebut the presumption of prejudice caused by the 396-day
delay. The State has not sufficiently done so, and we therefore conclude the delay has resulted in prejudice to the
defendant. . . . [I]t is nonetheless clear defendant had no duty to prosecute himself and the State had the burden to
proceed in a manner that would protect his constitutional right to a speedy trial. The State did not do so, and the
delay continued with the State giving no constitutionally acceptable explanation for the substantial delay.

Britton, 213 Mont. at 162-63, 689 P.2d at 1261.

¶ In State v. Waters (1987), 228 Mont. 490, 743 P.2d 617, we explained the effect of "presumptive
prejudice" as follows:

The delay in the instant case gives rise to a rebuttable presumption of prejudice. In order to rebut the
presumption, the State must come forward with evidence showing that the defendant was not prejudiced
by the delay and that there is a reasonable excuse.

Waters, 228 Mont. at 493, 743 P.2d at 619 (citing State v. Ackley (1982), 201 Mont. 252, 256, 653 P.2d
851, 853).

¶ We have followed the rule that a delay less than that found in this case gives rise to a presumption
of prejudice which must be rebutted by direct evidence produced by the State in State v. Matthews
(1995), 271 Mont. 24, 28, 894 P.2d 285, 287, State v. Heffernan (1991), 248 Mont. 67, 71, 809 P.2d

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566, 568, State v. Curtis (1990), 241 Mont. 288, 299, 787 P.2d 306, 313, State v. Wombolt (1988), 231
Mont. 400, 403, 753 P.2d 330, 331, State v. Haskins (1986), 220 Mont. 199, 202, 714 P.2d 119, 121,
State v. Cutner (1984), 214 Mont. 189, 192, 692 P.2d 466, 467, State v. Chavez (1984), 213 Mont. 434,
443, 691 P.2d 1365, 1370, State v. Tiedemann (1978), 178 Mont. 394, 399, 584 P.2d 1284, 1288, and
State v. Cassidy (1978), 176 Mont. 385, 390, 578 P.2d 735, 738. We have also recently applied the rule
in State v. Tweedy (1996), 277 Mont. 313, 320, 922 P.2d 1134, 1138, where the delay was greater than
the delay in this case.

¶ Only recently, and without either distinguishing or reversing our earlier cases, have we begun
paying lip service to "presumptive prejudice," but placing the burden on the defendant to prove
prejudice. See State v. Keating (Mont. 1997), 949 P.2d 251, 259, 54 St. Rep. 1250, 1254-55; Williams-
Rusch, 279 Mont. at 452, 928 P.2d at 178-89; State v. Lane (1996), 279 Mont. 128, 134, 927 P.2d 989,
992-93; State v. Moore (1994), 268 Mont. 20, 69-70, 885 P.2d 457, 487-88.

¶ Those recent cases, including this case, which have shifted the burden to the defendant to disprove
prejudice, ignore the effect of the presumption which has been established by our earlier decisions.

A presumption has been defined as an inference as to the existence of one fact from the existence of
some other fact founded on logic or on a previous experience of their connection. A true presumption is
a rule of law laid down by the courts which attaches to facts certain procedural consequences, such as
the shift in the burden of evidence production. . . .

. . . A presumption . . . attaches definitive probative value to certain facts. If the presumption is
conclusive, it mandates a particular conclusion; if it is rebuttable, it mandates the conclusion in the
absence of contradictory evidence.

22A C.J.S. Criminal Law § 695 (1985).

¶ Furthermore, the presumption of prejudice, at some point in time, is well-founded and this Court's
recent decisions ignore those decisions of the United States Supreme Court which point out why
prejudice is often difficult to prove and why a defendant cannot always be held to the burden of such
proof in a state court's speedy trial analysis.

¶ In Barker, the Court pointed out that delay skews the fairness of the entire judicial system, and that

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even without the disappearance of witnesses, there is likely to be prejudice by the passage of time
when witnesses are unable to recall accurately the events about which they testify. Most importantly,
the Court in that case pointed out that "[l]oss of memory, however, is not always reflected in the
record because what has been forgotten can rarely be shown." Barker, 407 U.S. at 532, 92 S. Ct. at
2193, 33 L. Ed. 2d at 118.

¶ In Moore, the Supreme Court reversed the Arizona Supreme Court's denial of a defendant's motion
to dismiss based on the Arizona Court's conclusion that the defendant had not made an affirmative
demonstration of prejudice. The U.S. Supreme Court held that:

The state court was in fundamental error in its reading of Barker v. Wingo and in the standard applied
in judging petitioner's speedy trial claim. Barker v. Wingo expressly rejected the notion that an
affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a
speedy trial[.]

....

Moreover, prejudice to a defendant caused by delay in bringing him to trial is not confined to the
possible prejudice to his defense in those proceedings. Inordinate delay,

'wholly aside from possible prejudice to a defense on the merits, may seriously interfere
with the defendant's liberty whether he is free on bail on not, and . . . may disrupt his
employment, drain his financial resources, curtail his associations, subject him to public
obloquy, and create anxiety in him, his family and his friends.' United States v. Marion,
404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed. 468 (1971).

Moore, 414 U.S. at 26-27, 94 S. Ct. at 190, 38 L. Ed. 2d at 186 (footnote omitted).

¶ Most recently, in Doggett v. United States (1992), 505 U.S. 647, 112 S. Ct. 2686, 120 L. Ed. 2d 520,
the Supreme Court reversed the denial of a defendant's motion to dismiss on speedy trial grounds,
even though no demonstration of prejudice had been established. There, the Court stated:

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[C]onsideration of prejudice is not limited to the specifically demonstrable, and . . . affirmative proof of
particularized prejudice is not essential to every speedy trial claim. Barker explicitly recognized that
impairment of one's defense is the most difficult form of speedy trial prejudice to prove because time's
erosion of exculpatory evidence and testimony "can rarely be shown." And though time can tilt the case
against either side, one cannot generally be sure which of them it has prejudiced more severely. Thus,
we generally have to recognize that excessive delay presumptively compromises the reliability of a trial
in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice
cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part of the
mix of relevant facts, and its importance increases with the length of delay.

Doggett, 505 U.S. at 655-56, 112 S.Ct. at 2692-93, 120 L. Ed. 2d at 530-31 (citations omitted).

¶ Finally, the Supreme Court, in Doggett, concluded that:

When the Government's negligence thus causes delay six times as long as that generally sufficient to
trigger judicial review, see n.1., supra, and when the presumption of prejudice, albeit unspecified, is
neither extenuated, as by the defendant's acquiescence, e.g., 407 U.S. at 534-536, 92 S.Ct. 2194-2195,
nor persuasively rebutted, the defendant is entitled to relief.

Doggett, 505 U.S. at 658, 112 S.Ct. at 2694, 120 L. Ed. 2d at 532 (emphasis added; footnotes omitted).

¶ For those reasons articulated in the preceding paragraphs, i.e., the purposes that the speedy trial
requirement serves, the difficulty of proving the extent to which witnesses' memories have been
impaired, and the fact that in most instances only the State can bring the defendant to trial in an
expeditious fashion, we conclude that the rebuttable presumption of prejudice established by our
earlier cases is not only the better public policy, but that it is constitutionally required. However, in
recognition that the only remedy for denial of speedy trial is dismissal of the State's case, see Strunk
v. United States (1973), 412 U.S. 434, 440, 93 S. Ct. 2260, 2263-64, 37 L. Ed. 2d 56, 61, and in
recognition of the countervailing demands of "public justice" recognized generally by both courts
and academic commentators, we will, later in this opinion, state more clearly than we have in the past
the point at which and the circumstances under which the presumption of prejudice will attach.

¶ A second area where our decisions have been at least arguably inconsistent is our consideration of
the third Barker factor, the assertion of the right to a speedy trial by the defendant. We have

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repeatedly held that so long as a defendant asserts his or her right to a speedy trial prior to the
commencement of trial, the assertion is timely, and we have relied on language from Barker, 407 U.S.
at 527, 92 S. Ct. at 2190, 33 L. Ed. 2d at 115, for the principle that:

The nature of the speedy trial right does make it impossible to pinpoint a precise time in the process
when the right must be asserted or waived, but that fact does not argue for placing the burden of
protecting the right solely on defendants. A defendant has no duty to bring himself to trial; the State has
that duty . . . .

¶ In Steward, 168 Mont. at 390-91, 543 P.2d at 182, we held that:

The general rule remains that an accused must take some affirmative action to obtain a trial to be
entitled to a discharge for delay. 22A C.J.S. Criminal Law § 469, p. 37. In United States v. Research
Foundation, D.C., 155 F.Supp. 650, 654, the court said:

"* * * The burden is on the defendant to assert his constitutional right by some affirmative
act in court, such as, objecting to adjournments of the trial, demanding a trial, or making
an appropriate motion."

The "appropriate motion" is a motion to dismiss for denial of a speedy trial. The proper time to assert
the right to a speedy trial is prior to the actual commencement of the trial, usually at the time the trial
date is set, or the time the case is called to trial. Morse v. Municipal Court, et al., 13 Cal.3d 149, 118
Cal.Rptr. 14, 529 P.2d 46. Defendant, in the instant case, made his motion to dismiss at the proper time.
[Steward's motion was made at the time of arraignment.]

(Emphasis added.)

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¶ In Fife, 193 Mont. at 490-91, 632 P.2d at 715, we held that:

The third test is whether there has been a timely assertion of the right by defendant. A motion to dismiss
for denial of speedy trial made by the defendant prior to the commencement of the trial is an
"appropriate motion" which fulfills this requirement. State v. Steward (1975), 168 Mont. 385, 390, 543
P.2d 178, 182. The appellant properly asserted his right with such a motion four days prior to trial.

The State contends we should consider that the appellant failed to put the State on notice by earlier
communicating his desire for a speedy retrial. This is not the law. ". . . (I)t is not the duty of defendant to
bring himself to trial." Larson, 623 P.2d at 958.

¶ In State v. Bailey (1982), 201 Mont. 473, 479, 655 P.2d 494, 498, we noted that:

The State, when discussing this factor [assertion of the right], urges this Court to adopt the position that
Bailey's assertion was sufficient to raise inquiry as to whether the right was denied, but is insufficient to
sustain the defendant's claim on its merits because the right was not asserted often enough.

However, we held that "this is not the case, because as long as the defendant has asserted his right to
speedy trial prior to trial, he has met the third factor in this test; State v. Steward (1975), 163 Mont. 385,
543 P.2d 178, 182; State v. Larson, 623 P.2d at 958." Bailey, 201 Mont. at 479-80, 655 P.2d at 498.

¶ In State v. Britton (1984), 213 Mont. 155, 161-62, 689 P.2d 1256, 1260, we reaffirmed our prior
position with the following explanation:

Our rule is that if a defendant has moved to dismiss before trial, he has fulfilled the requirement of

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asserting his constitutional right to a speedy trial. State v. Bailey (Mont. 1982), [201 Mont. 473,] 655
P.2d 494, 498. The trial court, on the other hand, held defendant was tardy in asserting his right to a
speedy trial by first raising it at the omnibus hearing on July 15, 1983, more than eleven months after
the complaint had first been filed in Justice Court. The trial court did not indicate when that magic time
was, but simply ruled that defendant's motion was too late. However, delay of assertion of the right to
speedy trial is not measured simply by measuring the lapse of time from the time of the charge until the
time the motion is made. Rather, the sole inquiry is whether defendant has moved before trial to dismiss
on the ground that he has been denied a speedy trial. The United States Supreme Court stated in Barker
v. Wingo, supra, that "[t]here is no fixed point in the criminal process when the State can put the
defendant to the choice of either exercising or waiving the right to a speedy trial." 407 U.S. at 521, 92 S.
Ct. at 2187. We adopt this same position when interpreting our own Constitution. In holding that the
defendant in effect waived his right to assert his right to a speedy trial because his motion at the
omnibus hearing came too late, the trial court was clearly wrong.

¶ We reaffirmed our traditional rule regarding the defendant's timely assertion of the right to a
speedy trial, if made before trial, in Tweedy, 277 Mont. at 321, 922 P.2d at 1139, Waters, 228 Mont. at
493-94, 743 P.2d at 620, and Haskins, 220 Mont. at 202, 714 P.2d at 121.

¶ We first suggested that there might be varying degrees of timely assertion in State v. Mooney (1991),
248 Mont. 115, 119-20, 809 P.2d 591, 594, where it was suggested in dictum that:

[F]uture litigants are reminded that in the past failure to object to lack of speedy trial until the eve of
trial shows a lack of actual interest which should be considered in balancing the Barker factors. State v.
Carden (1977), 173 Mont. 77, 566 P.2d 780, 626 F.2d 82 (9th Cir. 1980), cert. denied, 449 U.S. 1014,
101 S.Ct. 573, 66 L.Ed.2d 473.

¶ Although the gratuitous advice in Mooney was probably ill-founded based on the unique facts of the
Carden decision upon which it was based, it has since assumed a life of its own in subsequent
decisions of this Court. See State v. Deavila (Mont. 1997), 949 P.2d 1185, 1188, 54 St. Rep. 1300,
1301; Keating, 949 P.2d at 257, 54 St. Rep. at 1253; Williams-Rusch, 279 Mont. at 451, 928 P.2d at
178; Lane, 279 Mont. at 133, 927 P.2d at 992; Thompson, 263 Mont. at 32-33, 865 P.2d at 1135.
However, in none of the more recent cases which suggest that the time when the right to speedy trial

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was asserted should be weighed did we reverse our previous decisions to the contrary or address
policy reasons for our previous decisions.

¶ We conclude that for the reasons stated in our earlier decisions, and especially, the compelling
policy argument against waiver of a constitutional right, there is no magical time for assertion of the
right to a speedy trial which should be weighed more favorably to the defendant than some other time.
So long as the defendant asserts his or her right to a speedy trial by a motion to dismiss on speedy trial
grounds filed prior to the time of trial, we conclude that the defendant has satisfied the third-prong of
the Barker test and that further analysis of that prong is not only unnecessary, but inappropriate.
Analysis of when in a long period of delay, or how often during a long period of delay a defendant
asserts the right to a speedy trial, makes an already subjective and arbitrary review process even more
so. In the interests of consistency, predictability, and justice, our purpose should be to establish more
objective criteria for prosecutors, defense lawyers, and district courts to evaluate speedy trial issues.
The trend of subjectively evaluating the date on which each appellant has asserted his or her right to
a speedy trial is the antithesis of that objective.

¶ We also note that there is disagreement nationally about the respective weight to be given each of
the Barker factors when conducting a speedy trial analysis and that our own decisions have not been
consistent in that regard. While earlier decisions placed greater emphasis on the length of delay
without regard to demonstrable prejudice, see, e.g., Sanford, 170 Mont. 196, 551 P.2d 1005, later
decisions have placed greater emphasis on the defendant's failure to demonstrate prejudice regardless
of the length of delay. See, e.g., Williams-Rusch, 279 Mont. 437, 928 P.2d 169.

¶ In this regard, various approaches have been described for purposes of balancing the four Barker
considerations. They have been referred to as: (1) the straight balancing test, (2) the weighted
balancing test, and (3) the motive test. See Brooks, A New Speedy Trial Standard for Barker, 61 U.
Chi. L. Rev. at 592-94, 608.

¶ The straight balancing test considers each of the four factors equally, and no single factor is
decisive. For example, if the length of delay is great enough, or the State is sufficiently culpable in
causing delay, prejudice is unnecessary. On the other hand, if prejudice is extreme, the length of
delay required is less. See Brooks, A New Speedy Trial Standard for Barker, 61 U. Chi. L. Rev. at 592-
93.

¶ The weighted balancing test considers each factor, but places the greatest emphasis on whether or
not there has been prejudice to the defendant. Without prejudice to the defendant, it would be very
unlikely that even lengthy delay or culpable delay by the State would result in dismissal for denial of a
speedy trial. See Brooks, A New Speedy Trial Standard for Barker, 61 U. Chi. L. Rev. at 593-94.

¶ The motive test gives greatest consideration to the second Barker factor, the reason for delay. The
greater the degree of fault by the State in causing the delay, the less the delay or prejudice that need
be shown. Where there is no fault on the part of the State for delay, greater prejudice, and presumably

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greater delay, would have to be shown. See Brooks, A New Speedy Trial Standard for Barker, 61 U.
Chi. L. Rev. at 610.

¶ It is our intention to adopt a method for analysis of speedy trial claims which includes features of
both the "straight balancing test" and the "motive test." For purposes of this case and future cases,
we will apply the Barker factors in the following manner to determine whether a defendant has been
denied his or her right to a speedy trial in violation of the Sixth Amendment to the United States
Constitution, or Article II, Section 24, of the Montana Constitution.

¶ 1. We will first consider the length of delay from the time charges are filed (or as in this case, the
date on which the notice of appeal from the city court is filed) until the defendant's trial date for the
purpose of determining whether there is a basis for conducting a speedy trial analysis. This period of
time will be calculated without assignment of fault to either party for the various periods of delay.
This period of time has been referred to, in the past, as the "trigger" for speedy trial analysis. Based
on our prior decisions, we establish 200 days as the necessary length of time to trigger further speedy
trial analysis. However, length of delay will also be considered later in our analysis after
responsibility for various periods of delay has been assigned.

¶ 2. We will next consider the reason for delay. This is something that we have, in the past, assigned
to either the State or the defendant, based on the unique facts in each case. We see no reason to
change this part of our analysis because it will necessarily vary from case to case. However, after we
have determined how many days of delay are attributable to the State, we will next determine whether
that length of delay is sufficient to shift the burden to the State to demonstrate that the defendant has
not been prejudiced by the delay. We conclude that when it has been demonstrated that 275 days of
delay is attributable to the State, the burden should shift to the State to demonstrate that the defendant
has not been prejudiced by the delay. The State's proof should take into consideration, but need not
include, all three traditional bases for prejudice: (a) pretrial incarceration, (b) anxiety and all of its
attendant considerations, and (c) impairment of the defense. In considering whether the State has met
its burden, the district court should take into consideration the fact that direct proof of a defendant's
state of mind may not always be possible, and that the State's ability to anticipate the nature of the
defendant's defense may vary from case to case. Therefore, there may be cases where the State can
satisfy its burden without demonstrating a lack of prejudice based on each consideration. Once the
State has demonstrated lack of prejudice based on one or more of these considerations, the burden
will then shift to the defendant to demonstrate prejudice and the district court will have to weigh the
evidence of each party. If the delay attributable to the State is less than 275 days, the burden remains
on the defendant to demonstrate prejudice. At some point in time (which we leave for future
consideration), however, the mere passage of time must necessarily be considered sufficient to
conclusively establish denial of the right to speedy trial. See generally Doggett, 505 U.S. 647 112 S.
Ct. 2686, 120 L. Ed. 2d 520. Furthermore, where the delay is both excessive (but not sufficient to
establish a conclusive presumption of prejudice, as required by Doggett), an intentional,
demonstration of prejudice may not be necessary. See Moore, 414 U.S. at 27, 94 S. Ct. at 190, 38 L.
Ed. 2d at 186.

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¶ 3. When we consider the third Barker factor, whether the defendant's right to speedy trial has been
timely asserted, we will follow those decisions in which we have held that if the right to speedy trial is
invoked at any time prior to the commencement of trial, either by demanding a speedy trial, or by
moving to dismiss for failure to provide a speedy trial, the third prong is satisfied. However, we will
require that once a motion to dismiss for denial of speedy trial has been made, that it be ruled upon by
the district court before commencement of trial. We also note, as a practical matter, that unless a
motion to dismiss for speedy trial has been made at least ten days prior to the commencement of trial,
it may be difficult for the State to adequately brief the issue, and for the court to adequately consider
the issue, without postponing the existing trial date. Therefore, any delay directly attributable to a
motion to dismiss based on denial of speedy trial which is filed less than ten days prior to the
commencement of trial will be assigned to the defendant.

¶ 4. Our consideration of the fourth Barker factor, which relates to prejudice, will continue to include
those traditional considerations: (a) pretrial incarceration, (b) anxiety and all of the practical
applications that have been articulated by the U.S. Supreme Court, and (c) impairment to the defense.
However, the importance of this factor and the degree of prejudice to establish denial of speedy trial
will vary based upon other considerations, such as the length of delay and the reason for delay.

¶ Applying this approach to the facts in this case, we first note that the length of delay, which was 508
days from the time of appeal to the ultimate date of trial, is sufficient to trigger further analysis of
whether Bruce was denied his right to a speedy trial.

¶ Next, we consider whether any of the 508-day delay is attributable to Bruce. In this case, Bruce
moved for no continuances, nor did he, through other maneuvers, prevent the City from bringing him
to trial in a timely fashion. Bruce did move to substitute the judge to whom the case was originally
assigned; however, that substitution was accomplished on the same date. The original trial date was
vacated because both parties expressed the need to file motions; however, Bruce was no more at fault
for that delay than was the City. Furthermore, when the District Court established a date for
submission of those motions, the defendant fully complied. Subsequent hearings to consider the
parties' motions were continued at the request of the City.

¶ Bruce did agree to continue a hearing from June 12 to August 22, 1996, and did agree that the
amount of time resulting from that delay would not count against the City for purposes of speedy trial
analysis. However, that period of delay accounts for only 61 days, and leaves 447 days of delay which
was either institutional or caused directly by the prosecution. In either event, it is charged to the City.
See State v. Hembd (1992), 254 Mont. 407, 413, 838 P.2d 412, 416.

¶ Here, the longest delay occurred between November 1995 and May 1996, a span of nearly six
months. Neither party has provided a reason for the delay, although the lack of an explanation by the
City and the complete void in the District Court record seem to reflect that the delay occurred mainly
because the District Court and the City had simply neglected the matter. Nonetheless, the District
Court described it as institutional, refused to use it as grounds on which to find a violation of Bruce's

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right to speedy trial, and even implied that Bruce was partially responsible for the delay. The court
stated: "What always troubles me in these cases, I never have the defendant asking me to set
something for trial. They just bushwack you at the end when you've got a problem."

¶ However, the City bears the burden of prosecution, and a defendant is under no obligation to ensure
diligent prosecution of the case against him or to help the City avoid dismissal for failure to timely
prosecute him. See Tweedy, 277 Mont. at 318-20, 922 P.2d at 1137-38.

¶ The District Court stated that the delay was precipitated by Bruce's "extensive motions" after the
October 1995 hearing, and the fact that he subpoenaed key personnel from the City Court. It
suggested that his actions were an intentional attempt to set up a claim of denial of speedy trial. For
example, it quoted our holding in State v. Wirtala (1988), 231 Mont. 264, 752 P.2d 177, in which we
stated:

The right to a speedy trial . . . is not designed to reward a criminal defendant who artificially creates
delay through an avalanche of motions and hearings. Nor does the right protect a defendant who makes
a transparent assertion of the right or sleeps on his rights during the course of a proceeding only to
belatedly claim injustice as the day of reckoning draws near.

Wirtala, 231 Mont. at 268, 752 P.2d at 180 (citation omitted). However, we disagree with the District
Court's characterization of the reasons for the delay, and conclude that Bruce did not here attempt to
"create delay through an avalanche of hearings and motions." In fact, we note that Bruce's motions
were filed in accordance with the schedule set by the District Court, and that they represented
arguments he had raised initially in the City Court. We have no reason to believe that they were
"artificially" made to create delay in the District Court. We further note that Bruce was not the
unilateral source of delay after the omnibus hearing; the City also filed motions after the hearing in
October 1995. Finally, the City's subsequent motion to continue the evidentiary hearing was made
because of scheduling problems for witnesses who had been subpoenaed, not so that it could respond to
Bruce's motions.

¶ Neither the City nor the District Court suggest that consideration of Bruce's motions necessitated
over six months of total inactivity. Additionally, despite the fact that all parties, including the District
Court, had been aware in November 1995, of the scheduling problems created by Bruce's subpoenas,
there is no indication that those problems, or any other aspect of this case, were even addressed
during the delay. Finally, the record seems to reflect that the primary reason this matter was even
remembered in May 1996, was the fortuitous fact that Bruce's counsel alluded to it when he and
counsel for the City were discussing another matter.

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¶ Based on our holding that the City is responsible for 447 days of delay which was either
institutional or caused by the City's repeated requests for a continuance, we conclude that sufficient
delay is attributable to the City of Billings to shift the burden to the City to prove that Bruce was not
prejudiced by the delay.

¶ Bruce has satisfied the third Barker criteria by asserting his right to a speedy trial when he moved to
dismiss the action against him based on denial of his right to speedy trial on May 24, 1996, well in
advance of his December 9, 1996, trial date.

¶ When considering the fourth Barker factor, we look to the problems the speedy trial guarantee is
intended to prevent: (1) pretrial incarceration, (2) anxiety and concern, and (3) impairment of defense.

¶ Bruce concedes that he suffered little pretrial incarceration, and none after his appeal to the District
Court.

¶ As to the second interest, we recognize that anxiety and concern are an inherent part of being
charged with a crime, and that the City's "burden to show a lack of anxiety becomes considerably
lighter in the absence of more than marginal evidence of anxiety." Williams-Rusch, 279 Mont. at 452,
928 P.2d at 178; see also State v. Weeks (1995), 270 Mont. 63, 74, 891 P.2d 477, 483. Even in light of
a diminished burden, however, the City's only response has been to deny that Bruce suffered any
anxiety or concern. It suggests that his failure to appear at the final hearing is evidence that he did
not suffer anxiety or concern, although we fail to see a logical connection between his failure to
appear and his level of anxiety.

¶ We focus instead on the third interest. Although prejudice is presumed and it is the State's burden to
rebut it, the only evidence relating to impairment was presented by Bruce. Therefore, it is Bruce's
evidence we will discuss. Bruce contends that his defense was substantially impaired by the delay.
Both he and the attorney who represented him through most of this matter testified that the delay
impaired the defense because he was unable to locate important witnesses, and those he could locate
could not remember events that had occurred almost three years earlier.

¶ Prejudice from diminished memory is especially plausible based on the facts alleged in this case.
For example, the charge here involves the fifteen-month period from June 1993 to August 1994; trial
was eventually set for December 9, 1996. Witness testimony would necessarily encompass a prolonged
period of time and, as the District Court noted, it goes without saying that witnesses' memories
suffered as more time passed between the period of the alleged offense and the time of trial. We also
recognize that unlike some other offenses, the nature of the charge here is very fact-sensitive, and
Bruce's defense depended on all the parties' and witnesses' recollection of the period.

¶ Furthermore, the record indicates that at least one witness who testified in the City Court trial was
lost as a result of the delay in the District Court. Bruce's former attorney testified that John Scott was
his "main witness in the City Court trial" and that they had remained in contact until approximately

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May 1996, but that he could not locate him when the hearing was set for August 1996. Neither the
City nor the District Court's order addressed the potential impairment from the loss of that witness.

¶ For these reasons, we conclude that the City has failed to rebut the presumption that Bruce's
defense was impaired.

¶ No single factor of the Barker analysis is determinative, and each must be weighed in light of the
facts of this case to determine if Bruce was denied his right to speedy trial. See Weeks, 270 Mont. at
72, 891 P.2d at 482; Moore, 268 Mont. at 67, 885 P.2d at 486. When we consider that over 500 days of
delay occurred from the time that Bruce appealed this case until the time that a trial was finally set,
and that for almost half of that period the City made no effort to ensure expeditious resolution of this
matter, and that Bruce was prejudiced by the loss of evidence, we conclude that the City denied Bruce
his right to speedy trial.

¶ Although our criminal justice system is clearly strongest when a determination of each case can be
made on the merits, we recognize that the system also depends on fundamental principles, such as the
right to a speedy trial. The State or City must diligently pursue the prosecution of those who have
been charged with a criminal offense, and when a defendant has been harmed and his defense
impaired by the City's failure to reasonably and timely try him, his constitutional right to a speedy
trial has been denied and a decision on the merits is not possible.

¶ Where a defendant's right to speedy trial has been denied, we must reverse the conviction and
dismiss the claim. See State v. Barker (1993), 261 Mont. 379, 385, 862 P.2d 1112, 1116 (citing Strunk,
412 U.S. 434, 93 S. Ct. 2260, 37 L. Ed. 2d 56). Accordingly, we need not address the remaining
constitutional challenges raised by Bruce. We reverse the order of the District Court and dismiss the
charge that is the subject of this appeal.

/S/ TERRY N. TRIEWEILER

We concur:

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ WILLIAM E. HUNT, SR.

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Justice W. William Leaphart, specially concurring.

¶ I concur in the result reached by the Court and in the Court's ultimate method of resolving the
speedy trial claims under the Montana Constitution. However, I do not agree with all of the Court's
analysis with regard to the third Barker factor; that is, assertion of the right to speedy trial. The Court
reviews our confusing and inconsistent precedent on assertion of the right and then, relying on
language from Barker that the nature of the speedy trial right makes it impossible to pinpoint a
precise time in the process when the right must be asserted or waived, concludes that "there is no
magical time for assertion of the right to a speedy trial which should be weighed more favorably to the
defendant than some other time. So long as the defendant asserts his or her right to a speedy trial by a
motion to dismiss on speedy trial grounds filed prior to the time of trial, we conclude that the
defendant has satisfied the third-prong of the Barker test and that further analysis of that prong is not
only unnecessary, but is inappropriate." Although I agree that there is no magical time for assertion
of the right, I do not agree that Barker rejects a weighing analysis when considering assertion of the
right to a speedy trial. On the contrary, the United States Supreme Court's consideration of the
tardiness and infrequency of Barker's assertion goes to the very heart of the Barker decision.

¶ In rejecting Barker's speedy trial claim, the Court noted that, in addition to the absence of serious
prejudice, the record did not indicate any action whatsoever between October 21, 1958 and February
12, 1962 which could be construed as the assertion of the speedy trial right. Although Barker did
make a motion to dismiss in February 1962, the record did not show on what ground the motion was
based, "[i]nstead the record strongly suggests that while he hoped to take advantage of the delay in
which he had acquiesced, and thereby obtain a dismissal of the charges, he definitely did not want to
be tried." Barker, 407 U.S. at 535.

We do not hold that there may never be a situation in which an indictment may be
dismissed on speedy trial grounds where the defendant has failed to object to
continuances. There may be a situation in which the defendant was represented by
incompetent counsel, was severely prejudiced, or even cases in which the continuances
were granted ex parte. But barring extraordinary circumstances, we would be reluctant
indeed to rule that a defendant was denied this constitutional right on a record that

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strongly indicates, as does this one, that the defendant did not want a speedy trial. We
hold, therefore, that Barker was not deprived of his due process right to a speedy trial.

Barker, 407 U.S. at 536.

¶ It is apparent from the Supreme Court's conclusion, that, had Barker asserted his right to a speedy
trial earlier on and more frequently, his speedy trial claim would have carried more weight. Although
Barker eventually filed a motion to dismiss before trial, the Court concluded that his acquiescence in
continuances without objection for over three years indicated that "[he] did not want a speedy trial." I
do not agree that we can invoke Barker for the proposition that, so long as the defendant files a
speedy trial motion sometime prior to trial, any further analysis of the timing is inappropriate. If
further analysis of the timing were inappropriate, the Court would have accepted Barker's pretrial
motion on its face and would not have engaged in an analysis of what Barker "really wanted" when
the motion was viewed in the context of his three plus years of lying in the weeds.

¶ Although I do not agree that this Court's non-weighted, "either you asserted the right or you did
not" approach is consistent with Barker v. Wingo, I recognize that it favors the defendant over an
approach in which the timing of a speedy trial motion is scrutinized. Accordingly, since the rule
adopted by this Court offers more, not less, protection to the defendant, I concur in the result.

/S/ W. WILLIAM LEAPHART

Justice Karla M. Gray joins in the foregoing special concurrence.

/S/ KARLA M. GRAY

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