State v. Johnson

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No. 99-263

IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 180

300 Mont. 367

4 P.3d 654

STATE OF MONTANA,

Plaintiff and Respondent,

v.

AARON L. JOHNSON, Sr.

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

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The Honorable Kenneth R. Neill, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jeff R. Lynch, Lynch Law Firm, Great Falls, Montana

For Respondent:

Joseph P. Mazurek, Montana Attorney General, Cregg W. Coughlin, Assistant Montana
Attorney General, Helena, Montana; Brant S. Light, Cascade County Attorney, Great
Falls, Montana

Submitted on Briefs: January 20, 2000

Decided: July 6, 2000

Filed:

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__________________________________________

Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

1. ¶In the Eighth Judicial District Court, Cascade County, Defendant Aaron L.
Johnson, Sr. (Johnson), was convicted by jury on March 3, 1999, of three counts of
criminal sale of dangerous drugs. Johnson appeals from the District Court's denial of
his motion to dismiss for lack of speedy trial, and from the court's action in
sustaining the objection of the State of Montana (the State) to Johnson's attempt to
impeach the confidential informant. We affirm.
2. ¶The two issues on appeal are:
3. ¶I. Whether the District Court erred in denying Johnson's motion to dismiss for lack
of speedy trial.
4. ¶II. Whether the District Court abused its discretion in sustaining the State's
objection to Johnson's attempt to impeach the confidential informant.

FACTUAL AND PROCEDURAL BACKGROUND

1. ¶On June 10, 1998, Johnson sold one-quarter gram of cocaine to Kathy Hart (Hart),
a reliable and experienced confidential informant for the Great Falls Police
Department. Prior to the sale, Hart was searched by law enforcement officials to
control the drug transaction and preserve the evidence by ensuring that she
possessed only the $50 cash provided by the officers to make the drug buy. Hart was
also outfitted with a "wire" or electronic transmitting device, which enabled the
officers to listen to and record any conversation that occurred during the drug sale.
Additionally, from the time she was searched through the consummation of the deal,
law enforcement officials visually observed either Hart or her location. After the
transaction, which occurred in the area of Fourth Avenue South and Tenth Street in
Great Falls, Hart was again searched and the officers took receipt of the drugs. The
substance Johnson sold Hart on June 10, 1998, field-tested positive for cocaine. It
was then sent to the State Crime Laboratory, where it was tested by a forensic

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chemist and determined to be .14 grams of the controlled substance cocaine.
2. ¶On June 12, 1998, confidential informant Hart was again preliminarily searched,
provided with $100 cash, fitted with a wire, and directed to attempt to purchase one
gram of "crank" or methamphetamine from Johnson. She was again surveilled by
law enforcement officials as she walked to Johnson's residence. Johnson told Hart to
get in his car, and they again proceeded to the same Fourth Avenue South location
where they had completed the drug transaction two days earlier. Johnson took the
$100 from Hart, walked up the street, and returned several minutes later with a
paper "bindle" which he handed to Hart. After the transaction, Hart was picked up
by the officers, searched, and the drug bindle was taken into evidence. The
substance Johnson sold Hart on June 12, 1998, field-tested positive for crank, and
was subsequently determined by a forensic scientist for the State Crime Laboratory
to be .33 grams of the controlled substance methamphetamine.
3. ¶On June 19, 1998, Johnson again sold dangerous drugs to Hart in her capacity as a
confidential informant. Following the same procedure outlined above, Hart
proceeded to Johnson's residence under police surveillance, the two then climbed in
Johnson's car, and Hart proceeded to purchase a "gram" of what was believed to be
crank from Johnson for $90. After the drug deal, police searched Hart and took
receipt of a foil bindle containing a substance which field-tested positive for
amphetamine. Subsequent testing by a forensic scientist for the State Crime
Laboratory corroborated that the substance Johnson sold Hart on June 19, 1998,
was .48 grams of the controlled substance amphetamine.
4. ¶Johnson was charged by Information on July 23, 1998, with three counts of
criminal sale of dangerous drugs, felony offenses in violation of § 45-9-101, MCA
(1997). Johnson's bail was set at $25,000. The case proceeded through the pre-trial
process. On August 12, 1998, Johnson filed a Motion for Discovery and Assertion
of Right to Fair and Speedy Trial. Following a bail hearing on August 18, 1998, the
District Court denied Johnson's request either to release him on his own
recognizance or to reduce his bail to $2000.
5. ¶The District Court scheduled the jury trial in this matter for November 30, 1998.
Johnson filed, on November 20, 1998, a Notice of Intent to Proceed to Trial as
Scheduled. On November 24, 1998, the State moved for a continuance on the
ground that the State's chief witness, Detective Jeff Beecroft, was out of state
interviewing witnesses in a federal case and would not return until the following
week. Finding good cause for the motion, the court vacated the November 30, 1998
jury trial date and rescheduled it for December 14, 1998. Then, on December 10,
1998, the State again moved the District Court to continue the trial date for the

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reason that an essential state witness, forensic scientist Annalivia Harris, had been
subpoenaed to testify in other courts during the time set for trial. The court, again
finding good cause for the State's motion, granted a continuance and rescheduled the
jury trial for January 25, 1999. However, because of an irreconcilable conflict in the
court's calendar, the District Court acted sua sponte on January 22, 1999, and reset
the jury trial in this matter for March 2, 1999.
6. ¶Johnson filed a motion to dismiss the criminal charges on speedy trial grounds on
March 1, 1999. The following day, prior to the start of trial and over strenuous
objections of the prosecutor, the District Court heard argument from Johnson on the
speedy trial motion. The court issued a written order denying Johnson's motion on
March 3, 1999. The jury trial began on March 2, 1999. During trial, the District
Court sustained the prosecutor's objections to two questions posed by Johnson to
Hart having to do with her possible evasion of income taxes on the $60 she earned
while acting as a confidential informant in the three drug transactions at issue. The
jury returned its unanimous guilty verdicts on March 3, 1999. A sentencing hearing
was held on April 13, 1999, and sentence was orally pronounced by the District
Court. Other facts will be set forth as necessary in our discussion.

DISCUSSION

I.

1. ¶Did the District Court err in denying Johnson's motion to dismiss for lack of
speedy trial?
2. ¶A criminal defendant's right to a speedy trial is guaranteed by the Sixth
Amendment to the United States Constitution and Article II, Section 24 of the
Montana Constitution. State v. Matthews (1995), 271 Mont. 24, 27, 894 P.2d 285,
287. As a general matter, the right to a speedy trial places on the State the burden of
diligent prosecution at all stages of a criminal proceeding. See State v. Kipp, 1999
MT 197, ¶ 16, 295 Mont. 399, ¶ 16, 984 P.2d 733, ¶ 16; State v. Tweedy (1996),
277 Mont. 313, 318, 922 P.2d 1134, 1137 (citing State v. Tiedemann (1978), 178
Mont. 394, 400, 584 P.2d 1284, 1288).
3. ¶Since the question of whether a defendant has been denied a speedy trial raises a
matter of constitutional law, we review the district court's conclusions of law on the
right to a speedy trial to determine if its interpretation of the law is correct. See State
v. Maier, 1999 MT 51, ¶ 74, 293 Mont. 403, ¶ 74, 977 P.2d 298, ¶ 74; State v.
Olmsted, 1998 MT 301, ¶ 27, 292 Mont. 66, ¶ 27, 968 P.2d 1154, ¶ 27. The only

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remedy for denial of the speedy trial right is dismissal of the State's case. See Strunk
v. United States (1973), 412 U.S. 434, 440, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56, 61.
4. ¶Johnson contends that the District Court erred in denying his motion to dismiss for
lack of a speedy trial, particularly, by failing to recognize the prejudice he suffered
by the pre-trial delay in this case. Since 1972, this Court has evaluated speedy trial
claims based on the four-pronged balancing test 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 also City of Billings v. Bruce, 1998 MT 186, 290 Mont. 148, 965 P.2d 866
(clarifying this Court's case law interpreting and applying Barker), as modified by
State v. Hardaway, 1998 MT 224, 290 Mont. 516, 966 P.2d 125. Pursuant to the
Barker test, there are four factors which must be assessed in reviewing any claim
that a speedy trial was denied: (1) the length of the delay; (2) the reason for the
delay; (3) the defendant's assertion of the right; and (4) prejudice to the defendant.
Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. No single factor of the
Barker test is "indispensable or dispositive." Tweedy, 277 Mont. at 320, 922 P.2d at
1138; accord Bruce, ¶ 75. Rather, the four factors established in Barker are
necessarily general guidelines to be applied on a case-by-case basis as part of a "
'difficult and sensitive balancing process.' " Bruce, ¶ 20 (quoting Barker, 407 U.S. at
533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118). We analyze and balance each of the four
factors below in light of our recent clarification of the Barker test in Bruce.

1. Length of Delay

1. ¶As elucidated in Bruce, the first Barker factor looks to the length of delay from the
time the charges are filed until the defendant's trial date. The purpose of this inquiry
is to make a threshold calculation as to whether there is any basis for conducting
further speedy trial analysis. In order to make that initial determination, "[t]his
period of time will be calculated without assignment of fault to either party for the
various periods of delay." Bruce, ¶ 55. In Bruce, after surveying our speedy trial
case law, we held that a delay of at least 200 days is necessary to "trigger" further
speedy trial analysis. Bruce, ¶ 55.
2. ¶Here, the parties agree that the period of delay between the filing of the charges
against Johnson and the date of trial was 230 days. Without assigning fault to either
party for the various periods of delay, it is clear that this case meets the 200-day
threshold required by Bruce. We conclude that further speedy trial analysis is
necessary. Thus, we proceed to evaluate the other Barker factors.

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2. Reason for Delay

1. ¶Under the second Barker factor, we allocate between the parties the periods of
delay attributable to each party. The purpose of this inquiry is to determine which
party bears the burden of proving prejudice to the defendant (or lack thereof) as a
result of delay in the trial process. Therefore, we held in Bruce that when at least
275 days of delay are attributable to the State, we indulge a rebuttable presumption
of prejudice and shift the burden of proof to the State "to demonstrate that the
defendant has not been prejudiced by the delay." Bruce, ¶ 56. In contrast, "[i]f the
delay attributable to the State is less than 275 days, the burden remains on the
defendant to demonstrate prejudice." Bruce, ¶ 56.
2. ¶Here, since the total delay in the trial process is below the 275-day threshold
necessary to shift the burden to the State, allocating the periods of delay between the
parties is inconsequential. See State v. Stanko, 1998 MT 323, ¶ 30, 292 Mont. 214, ¶
30, 974 P.2d 1139, ¶ 30 (stating that it is "immaterial" under such circumstances to
apportion the periods of delay between the parties, since "the burden remains on the
defendant to demonstrate prejudice"). Even if the full 230-day delay were
attributable to the State, that period of delay is insufficient, under Bruce, to shift the
burden to the State. See Olmsted, ¶ 53. We conclude, therefore, that Johnson bears
the burden of demonstrating that he suffered prejudice as a result of the pre-trial
delay.
3. ¶However, for purposes of subsequently assessing prejudice, we proceed to allocate
the periods of delay between Johnson and the State. In this case, the bulk of delay
(190 days) was due to the State's two motions for continuance of the trial date, while
the remaining delay (40 days) was attributable to the District Court's sua sponte
continuance of the trial date due to calendaring conflicts. Trial delay "caused by
crowded court dockets and corresponding difficulties in setting trial dates" is
"institutional delay" chargeable to the State. Tweedy, 277 Mont. at 320-21, 922 P.2d
at 1138; See also State v. Hembd (1992), 254 Mont. 407, 413, 838 P.2d 412, 416.
However, institutional delay weighs less heavily against the State than does
"purposeful" or delay. Matthews, 271 Mont. at 29, 894 P.2d at 287; State v. Weeks
(1995), 270 Mont. 63, 72, 891 P.2d 477, 482.
4. ¶Hence, all 230 days of delay in this case are attributable to the State. Nonetheless,
the institutional delay caused by the District Court's crowded docket, though
chargeable to the State, does not weigh heavily against it. Further, the two
continuances requested by the State in this trial were supported by good cause,
namely, the unavailability of key prosecution witnesses on the scheduled trial dates.

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Therefore, this period of delay, although directly attributable to the State, was not
the result of intentional or purposeful foot-dragging on the part of the State. This
Court also notes that Johnson did not lodge any objections to the State's two motions
to continue the trial date. In short, we agree with the District Court that there is no
indication in the record that the State harbored any motive to unduly delay Johnson's
trial date and, therefore, "that the degree of fault of the State for these periods of
delay is minimal."

3. Assertion of Right by Defendant

1. ¶We held in Bruce that the third prong of the Barker test is satisfied if the defendant
invokes the constitutional right to a speedy trial at any time prior to commencement
of trial, either by demanding a speedy trial or by moving to dismiss for failure to
provide a speedy trial. See Bruce, ¶ 57. Here, not only did Johnson assert his speedy
trial right in his motion filed August 12, 1998, well in advance of the trial date, but
he also filed a motion to dismiss the charges on grounds of a speedy trial violation
on March 1, 1999, just prior to actual commencement of the trial on March 2, 1999.
We conclude that Johnson properly invoked his constitutional right to a speedy trial
prior to commencement of the trial in this matter. 4. Prejudice to Defendant
2. ¶Hence, the resolution of Johnson's speedy trial claim comes down to the final
Barker factor, whether Johnson suffered prejudice as a result of the 230-day delay in
the trial process. As already determined herein, Johnson bears the burden of
demonstrating prejudice.
3. ¶Pursuant to Barker, prejudice to the defendant may be established based on any or
all of the three traditional concerns that the right to a speedy trial is designed to
protect against: (a) pre-trial incarceration; (b) anxiety and concern to the defendant;
and (c) impairment of the defense. See Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33
L.Ed.2d at 118. The most important of these three concerns is the last, impairment
of the defense, " 'because the inability of a defendant adequately to prepare his [or
her] case skews the fairness of the entire system.' " Bruce, ¶ 19 (quoting Barker, 407
U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118). To determine whether Johnson
has sustained his burden of proving prejudice, we address each of the traditional
bases for prejudice in turn.

a. Pre-Trial Incarceration

1. ¶The first basis for assessing prejudice is present here. Johnson was incarcerated for

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the entire 230-day period between the filing of the charges and the commencement
of trial. Johnson argues that he suffered an impairment to his liberty by virtue of the
lengthy pre-trial incarceration, which substantially limited "his ability to assist with
his defense." That Johnson suffered an impairment to his liberty is undoubtedly true.
However, he provides this Court with no evidence or indication of what, if anything,
he could or would have done to "assist" in his defense had he not been incarcerated
pending his trial. And, while we agree with Johnson that pre-trial incarceration
suggests a greater degree of prejudice to the defendant, and can be sufficient under
particularized circumstances to constitute prejudice standing alone, we disagree with
Johnson that his pre-trial incarceration proves prejudice in this case.
2. ¶Johnson remained incarcerated pending his trial, principally, because he was
unable to post the $25,000 bail required by the District Court. Although the court
refused his request to reduce his bail to $2,000 or to release him on his own
recognizance, the record does not support Johnson's intimation on appeal that the
District Court was unwilling to admit him to any lesser bail.
3. ¶Importantly, a defendant's right to a speedy trial is not designed to prevent any pre-
trial incarceration whatsoever. Rather, Barker instructs that the speedy trial right is
designed only "to prevent oppressive pre-trial incarceration." Barker, 407 U.S. at
532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118 (emphasis added). Thus, as we have
suggested since the Bruce decision, the proper inquiry is whether a defendant was
"unduly prejudiced by pretrial incarceration." See Kipp, ¶ 20 (emphasis added).
4. ¶As the State indicates, the only possible basis in the record for prejudice due to pre-
trial incarceration was Johnson's complaints about inadequate medical treatment
while incarcerated. However, the record does not support a conclusion that Johnson
was unduly prejudiced by the medical conditions in jail. Rather, both Johnson's
testimony at the hearing on his speedy trial motion as well as the medical records
militate in favor of finding little prejudice here.
5. ¶In addressing Johnson's allegation of prejudice due to medical treatment while
incarcerated, the District Court found that Johnson

did receive treatment for his medical complaints. In fact, [Johnson]'s requests for medical
attention ended in August, 1998, just over one month after his arrest. [Johnson]'s final
medical request, dated August 16, 1998, states:

"(Ex-meds) seem to be working nicely now if I can get my blood pressure checked and my
weight . . . . I'm not in the best of shape and was in poorer shape when I got here. Just
would like to keep a eye on things. Thank you."

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Clearly, [Johnson]'s complaints and anxiety [about his medical condition] had been greatly
relieved within a short amount of time.

1. ¶We agree with the State that Johnson's medical complaints bore no relationship to
his pre-trial incarceration, nor to the delay in bringing him to trial. In fact, Johnson's
medical problems existed prior to his arrest in this matter. And, by his own
admissions, Johnson received prompt medical treatment while incarcerated, and his
medical condition improved during his incarceration. We conclude that Johnson was
not unduly prejudiced by pre-trial incarceration in and of itself. Neither the length
nor the conditions of incarceration indicate that Johnson's pre-trial incarceration was
oppressive in nature. However, we keep in mind the fact of pre-trial incarceration as
we move on and evaluate the other bases for prejudice.

b. Anxiety and Concern

1. ¶Johnson alleges that he suffered substantial anxiety and concern due to the
"economic hardship" of lost income caused by delays in the trial process. Johnson
correctly acknowledges that "a certain amount of anxiety and concern is inherent in
being accused of a crime." Olmsted, ¶ 57. However, as Johnson argues, "[e]conomic
hardship has been recognized as one form of prejudice that can flow from the
deprivation of a defendant's speedy trial right . . . ." State v. Bailey (1982), 201
Mont. 473, 481, 655 P.2d 494, 498 (citing State v. Harvey (1979), 184 Mont. 423,
435, 603 P.2d 661, 668; United States v. Marion (1971), 404 U.S. 307, 320, 92 S.Ct.
455, 463, 30 L.Ed.2d 468, 478). In Bailey, this Court held that the record supported
the defendant's claim of prejudice due to suffering economic hardship while
incarcerated, since there was evidence that the defendant had been forced to give up
his job in Indiana so that he could return to Montana to defend against the criminal
charges at issue there. See Bailey, 201 Mont. at 480-81, 655 P.2d at 498.
2. ¶We disagree with Johnson that the same result should obtain here. First, in contrast
to the defendant in Bailey, Johnson bears the burden of proving prejudice; the State
does not bear any burden of rebutting presumptive prejudice. Therefore, to
discharge his burden of proof, Johnson is obligated to provide this Court with
"evidence" that he "suffered economic hardship." See Olmsted, ¶ 57. The simple fact
that Johnson's pre-trial incarceration prevented him from working is insufficient,
without more, to prove prejudice. Johnson neither alleges nor shows that his pre-
trial incarceration either resulted in a lost job opportunity or forced him to give up a
preexisting job.

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3. ¶Second, the situation in Bailey is clearly distinguishable from the case at bar. The
Bailey Court found prejudice because the "economic hardship the defendant
suffered [was] a direct result of error in the handling of th[e] case by the State."
Bailey, 201 Mont. at 481, 655 P.2d at 499 (emphasis added). In Bailey, the
defendant moved to dismiss the first information filed by the State because it was
untimely, and the trial court issued an order dismissing the information on that basis.
"After that dismissal and in apparent reliance on the District Court's order, the
defendant moved to Indiana and obtained employment." Bailey, 201 Mont. at 475,
655 P.2d at 495-96. The State then filed a new information against the defendant
alleging the same charge, thus forcing the defendant to forego his newfound
employment in Indiana so as to defend against the newly-filed charge in Montana.
In other words, the economic hardship suffered by the defendant in Bailey was the
causal result of procedural error by the State and, therefore, the defendant was
directly prejudiced by the delays attributable to the State's error. Here, in contrast,
there is no indication of any error in the prosecution of Johnson by the State, nor of
any motive on the part of the State to delay trial in this matter.
4. ¶Johnson has simply failed to prove that he suffered any actual economic hardship;
his contentions about lost income are purely speculative and unsupported in the
record. We conclude that Johnson has failed to prove prejudice on the grounds of
economic hardship. Nor is there any indication in the record that Johnson has
suffered anxiety and concern of a higher order than does any defendant facing
felony charges.

c. Impairment of Defense

1. ¶We now turn to the " 'most serious' " type of prejudice to the defendant that the
speedy trial right is designed to shield against, impairment of the defense. See
Bruce, ¶ 19 (quoting Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118).
This interest of the defendant carries more weight than the other bases for finding
prejudice, because loss of evidence and especially memory due to passage of time "
'is not always reflected in the record . . . .' " Bruce, ¶ 19 (quoting Barker, 407 U.S. at
532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118).
2. ¶Johnson alleges that he was prejudiced by the trial delay in this case "based upon
considerable disintegration of his relationship with his counsel." However, the State
responds that the record shows that difficulties in the attorney-client relationship
between Johnson and his counsel existed, as the District Court found, "almost from
the beginning of this case." Indeed, Johnson's numerous complaints about his

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counsel, which he filed with the Commission on Practice, the Public Defender's
Office, and the District Court, began even before the State filed its first motion for a
continuance of the trial in this matter.
3. ¶Perhaps more importantly, the substance of the complaints levied by Johnson
against his counsel consistently focused, as the State correctly maintains, on
Johnson's allegations that he had not had sufficient contact with his court-appointed
attorney. Both Johnson and his counsel testified at the hearing on the speedy trial
motion, with Johnson again voicing his complaint of minimal attorney-client contact
pending trial and Johnson's counsel explaining without elaboration that he and
Johnson had a preexisting dispute that was "aggravated" by the three continuances
of the trial date. This testimony suggests that the acrimonious relationship between
Johnson and his counsel, while perhaps exacerbated by the trial delay, cannot be
said to be attributable to the delay.
4. ¶Crucially, neither Johnson nor his counsel presented any evidence, beyond
speculation, that Johnson had suffered prejudice to his theory of defense as a result
of trial delay. For example, Johnson did not even attempt to show that he had
suffered the loss of key defense witnesses or evidence, or that the memory of
defense witnesses had deteriorated due to the delay in his trial. In rejecting his
speedy trial motion, the District Court thus pronounced that:

No evidence has been presented that the defense has been impaired due to the loss of
witnesses or evidence or due to deterioration of memories, etc. [Johnson]'s assertions of
impairment of his defense are very broad, general, and unsupported statements that the
lapse of time has had a detrimental effect on his ability to present a defense.

1. ¶Furthermore, as the District Court noted in denying Johnson's motion, both
Johnson and his attorney stated at the hearing that they were prepared to go forward
with the trial. The trial did proceed as scheduled and, as the State indicates,
Johnson's defense strategy at trial only served to confirm the District Court's finding
that the defense was not impaired by the delay. At trial, Johnson offered little in the
way of a factual defense to the charges, relying instead on his claim that he was only
a middleman in the transactions between Hart and the true drug dealers (whom he
refused to name). In pursuing this theory of reduced culpability (i.e., mere
possession of dangerous drugs) Johnson's testimony substantially corroborated the
testimony of prosecution witnesses regarding the actual delivery of the drugs in the
three transactions at issue. Johnson's testimony did not demonstrate that trial delay
caused him to suffer from any loss of memory, nor is there any indication in the

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record that his defense theory of reduced culpability suffered from the loss of
supporting witnesses or evidence.
2. ¶ In conclusion, while we acknowledge that Johnson suffered some minimal degree
of prejudice by virtue of pre-trial incarceration, we determine that Johnson has
failed to carry his burden of demonstrating that he suffered prejudice from trial
delay rising to the level of a speedy trial violation. This Court stated in Bruce that
"the importance of [the prejudice] 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 reason for the delay." Bruce, ¶ 58. We have already established that the
delay in the trial process here was not so lengthy as to raise a presumption of
prejudice, and that the delay, though attributable entirely to the State, was not the
result of an intentional filibuster on the part of the State. After carefully weighing
the four prongs of the Barker test, we hold that the District Court correctly denied
Johnson's motion to dismiss for lack of a speedy trial.

II.

1. ¶Did the District Court abuse its discretion in sustaining the State's objection to
Johnson's attempt to impeach the confidential informant?
2. ¶This Court reviews a trial court's evidentiary rulings for an abuse of discretion.
State v. Lantis, 1998 MT 172, ¶ 52, 289 Mont. 480, ¶ 52, 962 P.2d 1169, ¶ 52.
3. ¶Johnson argues that the District Court improperly sustained the prosecutor's
objection to two questions posed to the confidential informant. Regarding the $60
that the confidential informant, Hart, was paid by the Great Falls Police Department,
Johnson's counsel inquired of Hart on cross examination as follows:

Q: Did the police department give you a 1099 form or a W-2 form?

A: No.

¶43 At this point the prosecutor objected on the ground that the question was irrelevant.
The District Court sustained the objection. Johnson's counsel did not respond to the State's
objection, nor did he at any time suggest to the District Court that his question was an
attempt to impeach Hart's credibility or to expose illegal conduct by the Great Falls Police
Department.

¶44 Johnson's counsel then queried Hart as to what she had done with the $60

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remuneration, to which she responded she had spent it:

Q: You spent it. Did you claim it on taxes?

A: I didn't file taxes last year.

Q: And you never received any receipt in your own possession for this

amount of money . . . you received from the police?

A: No, I don't have a receipt.

Q: So, in essence, the Great Falls Police Department has assisted you in

evading taxes?

¶45 At this point, the prosecutor again objected to Johnson's line of questioning. However,
the prosecutor did not state a ground for the objection. The District Court sustained the
objection without comment. Johnson's counsel neither responded to the State's objection,
nor requested that the court provide a basis for the ruling. Indeed, Johnson's counsel did
not assert that the question was in any way pertinent or permissible.

¶46 On appeal, Johnson contends that the District Court's rulings "specifically prevented"
him from attacking the credibility of both the confidential informant and the law
enforcement officers involved in this case, thus denying his "fundamental right of cross-
examination." We disagree. The State points to deficiencies in Johnson's line of
questioning making it objectionable: that it lacked a proper foundation (since Johnson
never established an obligation by Hart to file an income tax return or an obligation by the
Great Falls Police Department to provide her with "a 1099 form or a W-2 form"); that it
called for witness speculation (since a foundation was never established showing that Hart
had any knowledge of the alleged attempt by the police to aid her in evasion of taxes); and
that Johnson never raised the subject of income tax evasion with any other relevant
witnesses (since officers or employees of the Great Falls Police Department would be
more likely to have knowledge about what tax documents, if any, were required to be
provided to Hart). On those bases, the State argues that the District Court did not abuse its
discretion in sustaining the objections to Johnson's cross-examination of Hart.

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¶47 Ultimately, however, we need not decide whether the court abused its discretion.
Rather, we agree with the State that Johnson has failed to demonstrate that the District
Court's rulings prejudiced his substantial rights. Johnson never offered any evidence at
trial to independently establish that tax fraud occurred. On appeal, Johnson does not
provide this Court with any indication as to how he would have pursued the line of
questioning had it been allowed by the District Court, or how an attack on the credibility
of the confidential informant or the police department would have furthered his defense.
Indeed, as previously mentioned, Johnson offered little in the way of a factual defense to
the State's charges and did not substantially dispute the facts surrounding the drug
transactions as testified to by Hart and the officers who witnessed them.

¶48 Even if the District Court's rulings did amount to an abuse of discretion, there is no
indication in the record "that the error was prejudicial." Section 46-20-701(1), MCA. "Any
error, defect, irregularity, or variance that does not affect substantial rights must be
disregarded." Section 46-20-701(2), MCA; see also § 46-20-104, MCA. We hold that
Johnson has failed to demonstrate that in sustaining the State's objections, the District
Court prejudiced his substantial rights.

¶49 Affirmed.

/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER

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