State v. Ariegwe

04-620

IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 204

STATE OF MONTANA,

Plaintiff and Respondent,

v.

KINGSLEY ARIEGWE,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. BDC 2003-052D
Honorable Dirk M. Sandefur, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

William F. Hooks; Attorney at Law, Helena, Montana

For Respondent:

Hon. Mike McGrath, Montana Attorney General, Carol E. Schmidt,
Assistant Attorney General, Helena, Montana

Brant Light, Cascade County Attorney, Sue Weber,
Deputy County Attorney, Great Falls, Montana

Submitted on Briefs: February 14, 2007

Decided: August 16, 2007

Filed:

__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1 A jury convicted Kingsley Ariegwe of attempted sexual intercourse without

consent and unlawful transactions with children, and the District Court for the Eighth

Judicial District, Cascade County, sentenced him to a term of imprisonment in the

Montana State Prison. The court also ordered Ariegwe to pay restitution totaling

$14,234.66. Ariegwe now appeals from his conviction and sentence. We affirm in part,

reverse in part, and remand for further proceedings.

¶2 The issues on appeal are as follows:

1. Did the District Court err in denying Ariegwe’s motion to dismiss for lack of a

speedy trial?

2. Did the District Court abuse its discretion in denying Ariegwe’s motion for a

new trial?

3. Is the District Court’s restitution order illegal?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Ariegwe and a 15-year-old girl whom we will refer to as “K.M.” met on January

15, 2003, in an Internet chat room devoted to romance in Montana. 1 During the course of

their online conversation, K.M. learned that Ariegwe was a 32-year-old male (he was

actually 35) living in Great Falls. K.M. informed Ariegwe that she also lived in Great

Falls, and she directed him to the online profile associated with her screen name (online

pseudonym). The profile contained descriptive information—including K.M.’s age,
1
For a basic description of Internet chat rooms, see United States v. Johnson, 376
F.3d 689, 690 n. 1 (7th Cir. 2004), and Slattery v. United States, 2005 WL 2416339 at *1
(N.D. Miss. Sept. 30, 2005).

2
which was listed as 15—and her picture. The two of them chatted for awhile, and

Ariegwe gave K.M. his telephone number.

¶4 K.M. called Ariegwe the following evening (January 16) and again the next

morning (January 17). In the course of these conversations, Ariegwe mentioned that he

was divorced and that he had a 9-year-old son. K.M. informed Ariegwe that his age did

not bother her “because [she] wasn’t planning on doing anything with him.” (K.M. later

explained at Ariegwe’s trial that because she was homeschooled and worked upwards of

thirty hours a week as a babysitter, contact over the Internet was one way for her to make

friends.) K.M. and Ariegwe also discussed alcoholic beverages, and K.M. disclosed that

she had previously tried rum.

¶5 During the conversation on January 17, K.M. and Ariegwe arranged to meet later

that morning at a local car dealership, where K.M. would be dropping off her mother’s

car for servicing. Upon arriving at the dealership, Ariegwe found K.M. in the waiting

area. The two talked briefly and then decided to leave. Ariegwe drove K.M. to his house

(which he shared with his ex-wife, his son, and his daughter), and upon arriving, they

proceeded down to Ariegwe’s living quarters in the basement. As for what transpired

next, K.M.’s and Ariegwe’s stories diverge dramatically.

¶6 According to K.M., Ariegwe went upstairs to get some glasses in which to serve

them each an alcoholic beverage. Meanwhile, he had given her permission to play

Nintendo, but K.M. was not able to get the game to work, so she just sat on the couch and

waited. When Ariegwe came back downstairs, he poured K.M. a glass of liquor and she

drank it. Ariegwe then sat next to K.M. on the couch and they watched television. After

3
a couple of minutes, Ariegwe began playing with K.M.’s hair and kissing her neck. K.M.

told him to stop doing this, but he replied that she should give him a chance to show her

that he’s good with his tongue. Ariegwe then pulled K.M. onto his lap and, in so doing,

bruised her left arm. He continued to kiss her neck and then pulled up her shirt and her

bra and began kissing her breasts, notwithstanding K.M.’s insistence that he stop. He

also stuck his hands between her legs and started rubbing her, after which he got on his

knees on the floor and began biting in between her legs.

¶7 K.M. tried to push Ariegwe away. She told him that she wanted to leave, at which

point he served her two more glasses of liquor, which she drank, as she later explained,

“[b]ecause I was stupid.” Thereafter, Ariegwe and K.M. stood up and he hugged her.

She thought he was going to take her back to the car dealership, but instead he moved her

over to the bed a short distance away where he laid her down, straddled her, removed

most of her clothing, and performed oral sex—again, notwithstanding K.M.’s demand

that he stop. Ariegwe then attempted several times to penetrate K.M. The first attempt

occurred on the bed, but K.M. managed to slide out from underneath him. She fell on the

floor, where he persisted to attempt to penetrate her, but K.M. kept sliding out from

underneath him. Eventually, K.M. ended up at the bottom of the stairs, where Ariegwe

finally penetrated her for about twenty seconds. He apparently pulled away before

climaxing, which enabled K.M. to retrieve her clothing and get dressed. Ariegwe asked

K.M. if she was okay, to which she replied, “No.” He then got dressed and drove her

back to the car dealership.

4
¶8 According to Ariegwe, by contrast, he did not have any sexual contact with K.M.

Rather, upon arriving at the house, K.M. accompanied Ariegwe down to the basement

and they sat down to talk. K.M. stated that she wanted an alcoholic beverage, so Ariegwe

retrieved a bottle of liquor from the utility room, set the bottle on top of his entertainment

center, and went upstairs to get drinking glasses. When he returned to the basement, he

found K.M. sitting on the couch and playing the Nintendo game without his permission.

He also observed that she was drinking directly from the bottle of liquor, was becoming

“too playful” and “very hyper,” and was “touching everything.”

¶9 Ariegwe put the liquor away and brought K.M. back to the couch to talk and

watch televsion. After about ten or twenty minutes, K.M. indicated that she wanted to

leave, at which point the two of them walked over to the stairs. When K.M. took the first

step, she staggered and fell backwards, prompting Ariegwe to grab K.M.’s arm to

stabilize her. He led her up the stairs and then drove her back to the car dealership.

¶10 That afternoon, K.M. telephoned her best friend R.K. Although she did not

disclose all of the details, K.M. confided to R.K. that she had had sex with a man in his

thirties. Unbeknownst to K.M., this brief conversation was recorded on an answering

machine at R.K.’s house. R.K.’s parents heard the conversation and contacted K.M.’s

parents, who confronted K.M. the next morning. K.M. acknowledged a sexual encounter

and stated that it had been involuntary.

¶11 K.M.’s parents contacted the police and took K.M. to the hospital for an

examination. The police questioned K.M. at the hospital and then asked her to show

them the house where she had been taken the previous morning (i.e., Ariegwe’s house).

5
The police later obtained a warrant to search the residence. They seized two shot glasses

from the upstairs sink and a bottle of rum, a computer, and bedding from the basement.

They also went to K.M.’s home and retrieved the clothing she had worn while at

Ariegwe’s house. Meanwhile, Ariegwe’s ex-wife contacted Ariegwe, who was at work

at the time, and told him that the police were investigating his encounter with K.M.

Ariegwe turned himself in at the police station later in the day (January 18), believing

that he was in trouble only for providing an alcoholic beverage to a minor. The police

arrested him and executed a body search warrant (which involves the collection of

biological samples, such as blood, saliva, and hair). Ariegwe was then incarcerated for

four days before he posted bond securing his release.

¶12 On February 7, 2003, the State filed an information charging Ariegwe with Count

I, sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA (2001),

and Count II, unlawful transactions with children, a misdemeanor, in violation of § 45-5-

623(1)(c), MCA (2001). Ariegwe pleaded not guilty to these charges on February 20,

2003, and the District Court set trial for May 13, 2003. Five postponements of the trial

date ensued. (Each of the postponements is detailed under Issue One, infra.) Then, on

December 16, 2003, the State filed an amended information adding an alternative charge

under Count I—namely, attempted sexual intercourse without consent, a felony, in

violation of §§ 45-4-103 and 45-5-503, MCA (2001)—to which Ariegwe pleaded not

guilty on December 18, 2003. Five days later, the District Court vacated the existing

January 5, 2004 trial date, since the parties were waiting for test results from the crime

lab, and the court set a status hearing for January 22, 2004.

6
¶13 At the status hearing, defense counsel stated that he had received the crime lab

reports, and the court and the parties then agreed on a March 1, 2004 trial date. Defense

counsel also indicated, however, that he would be filing a motion to dismiss on speedy

trial grounds. That motion was filed, as was a response by the State, and the District

Court denied the motion following a hearing on February 17, 2004. The case then

proceeded to trial on March 1 and concluded on March 3, 2004. On March 4, the jury

acquitted Ariegwe of sexual intercourse without consent but convicted him of attempted

sexual intercourse without consent and unlawful transactions with children.

¶14 On March 24, 2004, Ariegwe filed a motion for a new trial pursuant to § 46-16-

702, MCA. He argued that he had been denied a fair trial because the prosecutor, during

closing arguments, had inaccurately represented certain scientific evidence adduced at

trial and because defense counsel, during trial, had failed to object to allegedly improper

testimony by the State’s trace hair and fiber examination expert. The State filed a

response opposing the motion, and Ariegwe filed a reply. The District Court thereafter

denied Ariegwe’s motion, noting that the court had given a curative instruction to the jury

concerning the prosecutor’s inaccurate representations of the evidence, that the trace hair

and fiber examination expert’s allegedly improper testimony was of limited evidentiary

value, and that there was ample remaining evidence upon which the jury could have

found Ariegwe guilty of attempted sexual intercourse without consent and unlawful

transactions with children.

¶15 The District Court sentenced Ariegwe on June 17, 2004, to fifty years in the

Montana State Prison, with fifteen years suspended, and six months in the Cascade

7
County Detention Center, to run concurrently with the fifty-year sentence. The court also

ordered Ariegwe to pay restitution as follows: $3,332.68 to K.M.’s family, $38.40 to the

Montana State Crime Victims Compensation Unit, and $10,863.58 to EBMS Insurance

Co., for a total of $14,234.66. This appeal followed.

¶16 Additional facts are provided below where relevant.

DISCUSSION

¶17 Issue One. Did the District Court err in denying Ariegwe’s motion to dismiss for
lack of a speedy trial?

I. Our Framework for Analyzing Speedy Trial Claims

¶18 Ariegwe’s first contention on appeal is that the District Court erred in denying his

motion to dismiss for lack of a speedy trial. We last clarified the framework by which we

analyze speedy trial claims in City of Billings v. Bruce, 1998 MT 186, 290 Mont. 148,

965 P.2d 866, and we have consistently applied the Bruce test to such claims that have

since come before this Court. In so doing, however, it has become apparent that certain

aspects of the test are now in need of clarification or modification. Thus, we have

determined at this juncture to revisit our approach to speedy trial claims, in particular

because our doing so here does not affect the outcome of this appeal.

¶19 We begin in Part A by reviewing the speedy trial test articulated by the United

States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972), followed

in Part B with a discussion of the framework we adopted in Bruce. We then set forth, in

Part C, a detailed explanation of our revised speedy trial test, including several important

rules for applying that test, after which we provide a summary and an outline of the

8
revised speedy trial test in Part D. Lastly, in Part E, we specify the rules pertaining to the

timing of a motion to dismiss on speedy trial grounds and the corresponding ruling by the

trial court.

A. The Barker v. Wingo Balancing Test

¶20 A criminal defendant’s right to a speedy trial is guaranteed by the Sixth and

Fourteenth Amendments to the United States Constitution and by Article II, Section 24 of

the Montana Constitution. Klopfer v. North Carolina, 386 U.S. 213, 222-26, 87 S. Ct.

988, 993-95 (1967); Mont. Const. art. II, § 24. In Barker, the United States Supreme

Court set forth the approach under which the Sixth Amendment right to a speedy trial is

to be evaluated. Specifically, the Court adopted “a balancing test, in which the conduct

of both the prosecution and the defendant are weighed.” Barker, 407 U.S. at 530, 92

S. Ct. at 2191-92. Acknowledging that such an approach “necessarily compels courts to

approach speedy trial cases on an ad hoc basis,” the Court identified “some of the factors

which courts should assess in determining whether a particular defendant has been

deprived of his right”: (1) the length of the delay, (2) the reason for the delay, (3) the

defendant’s assertion of the right to a speedy trial, and (4) the prejudice to the defendant

as a result of the delay. Barker, 407 U.S. at 530, 92 S. Ct. at 2192; see also Doggett v.

United States, 505 U.S. 647, 651, 112 S. Ct. 2686, 2690 (1992) (articulating these factors

as four separate inquiries: “whether delay before trial was uncommonly long, whether

the government or the criminal defendant is more to blame for that delay, whether, in due

course, the defendant asserted his right to a speedy trial, and whether he suffered

prejudice as the delay’s result”). The Court explained that “these factors have no

9
talismanic qualities”; rather, “they are related factors and must be considered together

with such other circumstances as may be relevant.” Barker, 407 U.S. at 533, 92 S. Ct. at

2193.

¶21 In State v. Sanders, 163 Mont. 209, 516 P.2d 372 (1973), we noted that this Court

had been considering “[e]ssentially the same factors” when analyzing speedy trial claims.

Sanders, 163 Mont. at 213, 516 P.2d at 375; accord Fitzpatrick v. Crist, 165 Mont. 382,

388, 528 P.2d 1322, 1325 (1974) (“The United States Supreme Court and this Court have

adopted essentially the same test to determine whether a trial is ‘speedy.’ ”). Indeed, in

State v. Steward, 168 Mont. 385, 543 P.2d 178 (1975), we explained that this Court had

adopted the Barker factors in State ex rel. Thomas v. District Court, 151 Mont. 1, 438

P.2d 554 (1968), based on an earlier listing of those factors in United States v. Simmons,

338 F.2d 804 (2nd Cir. 1964). See Steward, 168 Mont. at 389, 543 P.2d at 181. Thus,

following the Barker decision, we merely incorporated the Supreme Court’s clarification

of the four factors into our existing analytical framework. See e.g. Sanders, 163 Mont. at

213-15, 516 P.2d at 375-76; Fitzpatrick, 165 Mont. at 388-90, 528 P.2d at 1326; Steward,

168 Mont. at 389-94, 543 P.2d at 181-83; State v. Keller, 170 Mont. 372, 377-81, 553

P.2d 1013, 1016-19 (1976); see also State v. Tiedemann, 178 Mont. 394, 398, 584 P.2d

1284, 1287 (1978).

B. The Bruce Test

¶22 Twenty-six years after Barker was decided, we observed that the four-factor

balancing test had, unfortunately, led to “seemingly inconsistent results” nationwide.

Bruce, ¶ 20; see also Bruce, ¶¶ 21-49 (identifying varied and inconsistent applications of

10
the test in our own caselaw). Therefore, seeking to achieve more consistent dispositions

of speedy trial claims in Montana, we articulated a more structured method for analyzing

such claims. As described below, we retained the four factors identified in Barker, but

we incorporated objective, bright-line criteria into three of them, and we modified the

function and importance each factor plays in the overall balancing.

¶23 Under Factor One (the length of the delay), we explained that we would continue

to consider the length of the delay from the date of accusation (e.g., when the charges

were filed) until the defendant’s trial date “for the purpose of determining whether there

is a basis for conducting a speedy trial analysis.” Bruce, ¶ 55. We then established 200

days—irrespective of fault for the delay—as “the necessary length of time to trigger

further speedy trial analysis.” Bruce, ¶ 55. If less than 200 days have passed, then

further speedy trial analysis is unnecessary. Thus, we fashioned Factor One as a

threshold criterion; however, we indicated that the length of the delay would also be

considered later in the analysis. See Bruce, ¶ 55.

¶24 Under Factor Two (the reason for the delay), we retained our approach of

assigning responsibility or “fault” for the various periods of delay to either the State or

the defendant. Bruce, ¶ 56. However, we then created a burden-shifting scheme based

on the number of days of delay attributable to the State. Specifically, we stated that if

less than 275 days of delay are attributable to the State, then the defendant has the burden

(under Factor Four) to demonstrate that he or she has been prejudiced by the delay.

Bruce, ¶ 56. Conversely, if 275 or more days of delay are attributable to the State, then a

rebuttable presumption of prejudice arises and the State has the burden to overcome this

11
presumption by demonstrating that the defendant has not been prejudiced by the delay.

Bruce, ¶¶ 39, 56. We explained that the rebuttable presumption of prejudice “ ‘mandates

the conclusion [that the defendant has been prejudiced] in the absence of contradictory

evidence.’ ” Bruce, ¶ 33 (quoting 22A C.J.S. Criminal Law § 695 (1985)); see also

Bruce, ¶¶ 21-39 (discussing and reaffirming this presumption). Finally, we stated that if

the State overcomes the presumption of prejudice, then the burden shifts to the defendant

to demonstrate that he or she has been prejudiced by the delay, and the district court then

weighs the evidence of each party. Bruce, ¶ 56.

¶25 Next, under Factor Three (whether the defendant timely asserted the right to a

speedy trial), we stated 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.” Bruce, ¶ 57.

¶26 Finally, under Factor Four (prejudice to the defendant), we indicated that we

would continue to consider pretrial incarceration, anxiety and concern to the defendant,

and impairment of the defense. Bruce, ¶¶ 58, 68. We noted, however, that “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.” Bruce, ¶ 58.

¶27 In sum, the Bruce framework requires (1) a determination that the length of the

delay from the date of accusation until the defendant’s trial date is at least 200 days, (2) a

determination of who has the burden to demonstrate prejudice (the defendant) or to

demonstrate lack thereof (the State) under Factor Four, (3) notation of whether the

12
defendant asserted the right to a speedy trial prior to the commencement of trial, and (4)

an assessment of the proof offered by the defendant (to prove prejudice) or the State (to

disprove prejudice) based on pretrial incarceration, anxiety and concern to the defendant,

and impairment of the defense, with due consideration for the length of the delay and the

reason for the delay. Although these modifications to our speedy trial test resulted in a

more structured analytical approach, we recognize, for the reasons which follow, that our

method of analysis has strayed considerably from the actual balancing approach

envisioned in Barker and that it is necessary to reexamine certain features of our existing

analytical framework.

¶28 First, both Ariegwe and the State refer to speedy trial analysis under Bruce as “a

balancing of four factors.” We too have used this characterization. See e.g. State v.

Hardaway, 1998 MT 224, ¶ 13, 290 Mont. 516, ¶ 13, 966 P.2d 125, ¶ 13 (“[T]his Court

recently established a four-part balancing test in [Bruce].”); State v. Johnson, 2000 MT

180, ¶ 14, 300 Mont. 367, ¶ 14, 4 P.3d 654, ¶ 14 (“We analyze and balance each of the

four factors.”); State v. Blair, 2004 MT 356, ¶ 14, 324 Mont. 444, ¶ 14, 103 P.3d 538,

¶ 14 (“[C]ourts must engage in a difficult and sensitive balancing process.”); State v.

Doyle, 2007 MT 125, ¶ 18, 337 Mont. 308, ¶ 18, 160 P.3d 516, ¶ 18 (“We engage in a

lengthy and difficult balancing process.”). Yet, the approach we adopted in Bruce does

not actually involve a “balancing” of all four factors. Factor One is a threshold criterion;

Factor Two determines who has the burden of proof under Factor Four; Factor Three,

which is satisfied if the right to a speedy trial is invoked at any time prior to the

commencement of trial, is properly characterized as a “non-weighted, ‘either you asserted

13
the right or you did not’ ” criterion, Bruce, ¶ 81 (Leaphart, J., specially concurring); and

Factor Four involves an assessment of prejudice to the defendant pursuant to the burden

established under Factor Two. This approach more closely approximates a four-step

analytical progression than it does a four-factor balancing test. Moreover, it channels the

focus of the analysis to the issue of prejudice (Factor Four), rendering the reasons for the

delay (Factor Two) and any efforts by the defendant to move the case along (Factor

Three) relatively inconsequential.

¶29 The District Court’s speedy trial analysis in the case at hand illustrates this point.

The court noted that more than 200 days of delay had occurred, that at least 275 days of

that delay were attributable to the State, and that Ariegwe had asserted his right to a

speedy trial prior to the commencement of trial. Hence, the court focused on the issue of

prejudice, ultimately concluding that the State had met its burden of demonstrating that

Ariegwe had not been prejudiced by the delay and that he therefore had not been denied

his right to a speedy trial. Factor Four, thus, seems to have been dispositive; indeed, the

court’s analysis does not reflect a “balancing” of Factor Four against the three other

factors, thus prompting Ariegwe’s contention on appeal that the District Court “gave

undue weight to this factor, to the exclusion or minimization of the other factors.”

¶30 Yet, the District Court’s approach is consistent with the analytical progression set

forth in ¶¶ 55-58 of Bruce, which contradicts the notion that speedy trial analysis under

Bruce involves “a balancing of four factors.” However, given that the right to a speedy

trial is “necessarily relative” and “depends upon circumstances,” United States v. Ewell,

383 U.S. 116, 120, 86 S. Ct. 773, 776 (1966) (internal quotation marks omitted), we

14
believe that an actual balancing of all four factors is preferred and, in fact, is more likely

to produce an accurate assessment of a speedy trial claim than is an approach under

which three of the factors function, essentially, as mere preludes to the fourth.

¶31 Second, based on the rebuttable presumption of prejudice articulated in Bruce and

restated in several of our subsequent precedents, Ariegwe suggests that once the State has

caused 275 days of delay, the defendant need not come forward with any proof that he or

she has been prejudiced as a result of the delay unless the State rebuts the presumption of

prejudice (citing Blair, ¶ 26, Johnson, ¶ 17, and Bruce, ¶ 56). This interpretation of the

presumption is consistent with our explanation of rebuttable presumptions in Bruce:

“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.”

Bruce, ¶ 33 (ellipsis in original, emphasis added) (quoting 22A C.J.S. Criminal Law

§ 695 (1985)); see also State v. Kipp, 1999 MT 197, ¶ 25, 295 Mont. 399, ¶ 25, 984 P.2d

733, ¶ 25 (“[O]nce the presumption attached, it was not incumbent on the defendant to

prove prejudice. It was incumbent on the State to disprove prejudice. Because it did not

do so, the presumption of prejudice prevails.”); State v. Haser, 2001 MT 6, ¶ 25, 304

Mont. 63, ¶ 25, 20 P.3d 100, ¶ 25 (“[O]nce the delay attributable to the State exceeds 275

days, . . . prejudice is presumed.”). Yet, presuming prejudice based on nothing more than

the State’s failure to prove the contrary is not, in our view, an accurate basis on which to

evaluate a speedy trial claim.

15
¶32 Lastly, we held in Bruce that so long as the defendant asserts the right to a speedy

trial prior to the commencement of trial, he or she has satisfied the third prong of the

Barker test and “further analysis of that prong is not only unnecessary, but

inappropriate.” Bruce, ¶ 48. For reasons we detail below, however, we are no longer of

the view that further analysis under Factor Three is “unnecessary” and “inappropriate.”

¶33 Accordingly, we take this opportunity to revisit the process by which speedy trial

claims are to be analyzed by the courts of this State and to revise our analytical

framework in several significant respects.

C. Our Revised Speedy Trial Test

¶34 At the outset, we reaffirm that Barker’s balancing approach is “the correct and

most complete standard available to judge speedy trial questions.” State v. Tiedemann,

178 Mont. 394, 398, 584 P.2d 1284, 1287 (1978). Furthermore, although the Supreme

Court indicated in Barker that the factors which courts should assess when analyzing a

speedy trial claim might be expressed in different ways, Barker, 407 U.S. at 530, 92

S. Ct. at 2192, we find the four factors suggested by the Supreme Court—the length of

the delay, the reason for the delay, assertion of the right, and prejudice to the defendant—

to be suitable for our method of speedy trial analysis.

¶35 However, while we are guided by Barker’s general approach for analyzing speedy

trial claims, the test we articulate below is grounded in Article II, Section 24 of the

Montana Constitution, which provides a speedy trial guarantee that is independent of the

Sixth and Fourteenth Amendments to the United States Constitution. See Buckman v.

Montana Deaconess Hosp., 224 Mont. 318, 324, 730 P.2d 380, 384 (1986) (“Because the

16
federal constitution establishes the floor and not the apex of constitutional rights, state

action may violate our Montana Constitution, but not violate any federal constitutional

guarantee.”). Accordingly, we may “give our own meaning” to Barker’s four factors.

State v. Britton, 213 Mont. 155, 158, 689 P.2d 1256, 1258 (1984).

¶36 We now detail the inquiries a court is to make under each factor of the balancing

test.

1. Factor One: The Length of the Delay

¶37 In Barker, the Supreme Court stated with respect to Factor One that “[u]ntil there

is some delay which is presumptively prejudicial, there is no necessity for inquiry into the

other factors that go into the balance.” Barker, 407 U.S. at 530, 92 S. Ct. at 2192. In

Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686 (1992), however, the Supreme

Court clarified that Factor One “is actually a double enquiry.” Doggett, 505 U.S. at 651,

112 S. Ct. at 2690. The Court explained as follows:

Simply to trigger a speedy trial analysis, an accused must allege that the
interval between accusation and trial has crossed the threshold dividing
ordinary from “presumptively prejudicial” delay, since, by definition, he
cannot complain that the government has denied him a “speedy” trial if it
has, in fact, prosecuted his case with customary promptness. If the accused
makes this showing, the court must then consider, as one factor among
several, the extent to which the delay stretches beyond the bare minimum
needed to trigger judicial examination of the claim. This latter enquiry is
significant to the speedy trial analysis because . . . the presumption that
pretrial delay has prejudiced the accused intensifies over time.

Doggett, 505 U.S. at 651-52, 112 S. Ct. at 2690-91 (citations omitted).

¶38 Thus, under the Supreme Court’s approach, the first inquiry under Factor One—

whether a speedy trial analysis has been triggered—is a threshold matter, while the

17
second inquiry under Factor One—the extent to which the delay stretches beyond the

trigger date—is a matter to be weighed in the overall balancing. We agree with this

approach and adopt it. Thus, consistent with the distinction explained in Doggett, and for

the sake of clarity in the analysis, trial courts henceforth must address the length of the

delay clearly, and first, as a threshold matter and then, if the speedy trial test has been

triggered, as a factor to be weighed in the overall balancing.

i. The 200-Day Threshold

¶39 Accordingly, the first question to be answered with every speedy trial claim is

whether the interval between accusation and trial is sufficient to trigger the four-factor

balancing test. This interval is measured without regard to fault for the delay. Bruce,

¶ 55; State v. Collier, 277 Mont. 46, 54, 919 P.2d 376, 382 (1996).

¶40 As for what constitutes a sufficient interval between accusation and trial, the

Supreme Court stated in Barker that “because of the imprecision of the right to speedy

trial, the length of delay that will [trigger a speedy trial analysis] is necessarily dependent

upon the peculiar circumstances of the case.” Barker, 407 U.S. at 530-31, 92 S. Ct. at

2192. However, the Supreme Court also cautioned that “[n]othing we have said should

be interpreted as disapproving a presumptive rule adopted by a court in the exercise of its

supervisory powers which establishes a fixed time period within which cases must

normally be brought.” Barker, 407 U.S. at 530 n. 29, 92 S. Ct. at 2192 n. 29.

¶41 In Bruce, we established 200 days as “the necessary length of time to trigger

further speedy trial analysis.” Bruce, ¶ 55. We arrived at this number based on the

varying lengths of delay we had considered sufficient (or insufficient) in our prior

18
decisions. See Bruce, ¶¶ 22-23. We believe that this length of time is still appropriate,

given the reality of crowded court dockets throughout the State and certain built-in

pretrial delays, such as reciprocal discovery; pretrial motions, appearances, and hearings

(some of which are statutorily mandated); defense investigation; and obtaining the results

of tests and analyses of evidence from the crime lab. It is true that the amount of delay

that is customary is also a function of the complexity of the charged offense(s). See

Barker, 407 U.S. at 531, 92 S. Ct. at 2192. However, for the sake of retaining a bright-

line trigger date, we will address the complexity of the charged offense(s) under Factor

Two (the reasons for the delay). Accordingly, we reaffirm the 200-day threshold: A

speedy trial claim lacks merit as a matter of law if the interval between accusation and

trial is less than 200 days (again, irrespective of fault for the delay). 2

¶42 As for when the speedy trial clock begins to run, we stated in State v. Longhorn,

2002 MT 135, 310 Mont. 172, 49 P.3d 48, that “[t]he right of a defendant to a speedy

trial commences when he becomes an accused.” Longhorn, ¶ 22. We explained this

concept in greater detail in State v. Larson, 191 Mont. 257, 623 P.2d 954 (1981):

The right to a speedy trial is guaranteed to an “accused” by the
Montana and United States constitutions. Consequently, the protection
afforded by the guarantee is activated when a criminal prosecution has
begun and extends to those persons who have been formally accused or
charged in the course of that prosecution whether that accusation be by
arrest, the filing of a complaint, or by indictment or information.

Larson, 191 Mont. at 261, 623 P.2d at 957-58; accord State v. Morris, 230 Mont. 311,

315, 749 P.2d 1379, 1381 (1988); see also Dillingham v. United States, 423 U.S. 64, 65,

2
This rule does not apply to misdemeanor cases. See § 46-13-401(2), MCA.

19
96 S. Ct. 303, 303-04 (1975) (per curiam) (“ ‘[I]t is either a formal indictment or

information or else the actual restraints imposed by arrest and holding to answer a

criminal charge that engage the particular protections of the speedy trial provision of the

Sixth Amendment.’ ” (quoting United States v. Marion, 404 U.S. 307, 320, 92 S. Ct. 455,

463 (1971)). We reaffirm the rule set forth in Larson and add that the speedy trial clock

begins to run at the earliest of the enumerated occurrences. 3

¶43 Lastly, it bears repeating that the interval between accusation and trial runs not to

the date on which the accused’s speedy trial motion is considered by the court but, rather,

to the scheduled trial date or the date on which a plea of guilty is entered, whichever date

represents the date of disposition of the case. State v. Kipp, 1999 MT 197, ¶ 9, 295 Mont.

399, ¶ 9, 984 P.2d 733, ¶ 9; State v. Ellenburg, 2000 MT 232, ¶ 16, 301 Mont. 289, ¶ 16,

8 P.3d 801, ¶ 16; see also State v. Mooney, 2006 MT 121, ¶ 15, 332 Mont. 249, ¶ 15, 137

P.3d 532, ¶ 15 (holding that the right to a speedy trial applies through sentencing).
3
This rule must be extended logically to situations not involving “arrest, the filing
of a complaint, or . . . indictment or information.” See e.g. Bruce, ¶ 55 (where Bruce’s
right to a speedy trial was allegedly violated on his appeal from city court for a trial de
novo in district court, the speedy trial clock began on the date when the notice of appeal
from city court was filed); State v. Ray, 2003 MT 171, ¶ 22, 316 Mont. 354, ¶ 22, 71 P.3d
1247, ¶ 22 (discussing this aspect of Bruce); State v. Stanko, 1998 MT 323, ¶ 28, 292
Mont. 214, ¶ 28, 974 P.2d 1139, ¶ 28 (the speedy trial clock began on the date the notice
of appeal from justice court was filed); State v. Price, 2001 MT 212, ¶ 13, 306 Mont.
381, ¶ 13, 34 P.3d 112, ¶ 13 (“When the case involves a trial after an appeal from this
Court, the length of delay is measured from the time remittitur is filed in the District
Court until the trial date.”); State v. Olmsted, 1998 MT 301, ¶ 61, 292 Mont. 66, ¶ 61,
968 P.2d 1154, ¶ 61 (“[W]hen a mistrial is declared, the speedy trial clock is reset and
begins to run from the date of the mistrial.”); State v. Daniels, 248 Mont. 343, 348-49,
811 P.2d 1286, 1289 (1991) (affirming the district court’s determination that the speedy
trial clock started when the defendant became an “accused” in the civil youth court
proceeding, not when he became a “criminal defendant” subject to the jurisdiction of the
district court after the charge was transferred there).

20
 ii. The Extent to which the Delay Stretches beyond the
Trigger Date

¶44 The Supreme Court stated in Doggett that if the accused shows that “the interval

between accusation and trial has crossed the threshold dividing ordinary from

‘presumptively prejudicial’ delay,” “the court must then consider, as one factor among

several, the extent to which the delay stretches beyond the [trigger date].” Doggett, 505

U.S. at 651-52, 112 S. Ct. at 2690-91. The significance of this inquiry, the Supreme

Court explained, is that “the presumption that pretrial delay has prejudiced the accused

intensifies over time.” Doggett, 505 U.S. at 652, 112 S. Ct. at 2691.

¶45 Like the Supreme Court, this Court has recognized that “a delay sufficient to

trigger further analysis also creates a presumption of prejudice.” Bruce, ¶ 24. Beyond

this, however, our approach has diverged substantially from that of the Supreme Court.

Whereas the Supreme Court characterizes the presumption of prejudice as something

which “intensifies over time,” Doggett, 505 U.S. at 652, 112 S. Ct. at 2691, this Court has

followed a bright-line rule pursuant to which prejudice is either presumed or not

presumed and the burden of presenting evidence on the issue of prejudice “shifts” from

the accused to the State, see Bruce, ¶¶ 21, 39, 56. Because we intend herein to adopt

Doggett’s articulation of the role played by the presumption of prejudice in the overall

balancing, we shall explain in detail how that presumption operated in our past cases and

why we now conclude that the presumption of prejudice serves a more practical purpose

under the approach set forth in Doggett.

21
¶46 The starting point for this discussion is Barker’s articulation of Factor One—in

particular, the Supreme Court’s statement that “[u]ntil there is some delay which is

presumptively prejudicial, there is no necessity for inquiry into the other factors that go

into the balance,” Barker, 407 U.S. at 530, 92 S. Ct. at 2192 (emphasis added).

Consistent with this language, this Court long followed the rule that a delay sufficient to

trigger the speedy trial test is also sufficient to impose on the State the burden of showing

that the accused has not been prejudiced by the delay or to create a presumption of

prejudice that the State must then rebut. Indeed, our pre-Bruce cases on this point are

legion.4

4
See e.g. State v. Steward, 168 Mont. 385, 389, 543 P.2d 178, 181 (1975); State v.
Keller, 170 Mont. 372, 377, 553 P.2d 1013, 1017 (1976); State v. Cassidy, 176 Mont.
385, 389-90, 578 P.2d 735, 738 (1978); State v. Tiedemann, 178 Mont. 394, 399, 584
P.2d 1284, 1288 (1978); State v. Puzio, 182 Mont. 163, 166, 595 P.2d 1163, 1165 (1979);
State v. Harvey, 184 Mont. 423, 433-34, 603 P.2d 661, 667 (1979); State v. Worden, 188
Mont. 94, 96-97, 611 P.2d 185, 186 (1980); State v. Fife, 193 Mont. 486, 489-90, 632
P.2d 712, 714-15 (1981); State v. Ackley, 201 Mont. 252, 255-56, 653 P.2d 851, 853
(1982); State v. Bailey, 201 Mont. 473, 479, 481, 655 P.2d 494, 497-98, 499 (1982); State
v. Kelly, 203 Mont. 159, 160, 661 P.2d 26, 27 (1983); State v. Chavez, 213 Mont. 434,
441-42, 443, 691 P.2d 1365, 1370 (1984); State v. Cutner, 214 Mont. 189, 192, 692 P.2d
466, 467-68 (1984); State v. Haskins, 220 Mont. 199, 202, 714 P.2d 119, 121 (1986);
State v. Tilly, 227 Mont. 138, 140-41, 737 P.2d 484, 486 (1987); State v. Wombolt, 231
Mont. 400, 402-03, 753 P.2d 330, 331 (1988); State v. Bartnes, 234 Mont. 522, 527, 764
P.2d 1271, 1275 (1988); State v. Curtis, 241 Mont. 288, 299, 787 P.2d 306, 313 (1990);
State v. Sunford, 244 Mont. 411, 416, 796 P.2d 1084, 1087 (1990); State v. Hall, 244
Mont. 161, 165, 797 P.2d 183, 186 (1990); State v. Heffernan, 248 Mont. 67, 70-71, 809
P.2d 566, 568 (1991); State v. Eklund, 264 Mont. 420, 424, 872 P.2d 323, 326 (1994);
State v. Matthews, 271 Mont. 24, 28, 894 P.2d 285, 287 (1995); State v. Collier, 277
Mont. 46, 54-55, 919 P.2d 376, 382 (1996); State v. Tweedy, 277 Mont. 313, 320, 922
P.2d 1134, 1138 (1996); State v. Williams-Rusch, 279 Mont. 437, 449-50, 928 P.2d 169,
176-77 (1996); State v. Keating, 285 Mont. 463, 471, 949 P.2d 251, 256 (1997); cf.
Fitzpatrick v. Crist, 165 Mont. 382, 388, 528 P.2d 1322, 1326 (1974); State ex rel.
Sanford v. District Court, 170 Mont. 196, 199-200, 551 P.2d 1005, 1007 (1976); State v.
Carden, 173 Mont. 77, 85, 566 P.2d 780, 784 (1977); State v. Freeman, 183 Mont. 334,

22
¶47 In Bruce, we modified our approach by establishing the 275-day rule. Pursuant to

this rule, the presumption of prejudice arises not on the 200-day trigger date but, rather,

when 275 days of delay are attributable to the State. See Bruce, ¶ 56. Thus, there is an

interval after the balancing test has been triggered—between 200 days of total delay and

275 days of delay attributable to the State—during which the presumption does not exist.

However, once the presumption arises, it mandates the conclusion that the accused has

been prejudiced by the delay unless it is overcome by contradictory evidence presented

by the State. See Bruce, ¶ 33. In other words, the accused need not come forward with

evidence of prejudice unless and until the State overcomes the presumption.

¶48 Upon further scrutiny of the Supreme Court’s analysis in Doggett, the premise

upon which our approaches to the presumption of prejudice rested is no longer

compelling. Barker’s reference to “presumptively prejudicial” delay was not meant to

place the burden of proof with respect to the issue of prejudice entirely on the State or to

mandate a finding of prejudice absent evidence to the contrary. Indeed, the Supreme

Court clarified in Doggett that “as the term is used in this threshold context, ‘presumptive

prejudice’ does not necessarily indicate a statistical probability of prejudice; it simply

marks the point at which courts deem the delay unreasonable enough to trigger the

Barker enquiry.” Doggett, 505 U.S. at 652 n. 1, 112 S. Ct. at 2691 n. 1 (emphasis added).

338, 599 P.2d 368, 371 (1979); State v. Britton, 213 Mont. 155, 162, 689 P.2d 1256, 1261
(1984); State v. Palmer, 223 Mont. 25, 27-28, 723 P.2d 956, 958 (1986); State v. Waters,
228 Mont. 490, 493, 743 P.2d 617, 619 (1987); State v. Thompson, 263 Mont. 17, 32, 865
P.2d 1125, 1134-35 (1993); State v. Stewart, 266 Mont. 525, 529-30, 881 P.2d 629, 632
(1994); State v. Weeks, 270 Mont. 63, 72, 891 P.2d 477, 482 (1995).

23
¶49 This does not mean, however, that presumptive prejudice plays no further role in

the speedy trial analysis. To the contrary, a presumption of prejudice arises at the point

when the balancing test is triggered; our cases simply misinterpreted the function of that

presumption under Barker. Rather than establishing a bright-line point in time at which

the accused is relieved of the burden of proving prejudice and the State takes on the

burden of disproving prejudice, the presumption’s significance is in its intensifying

effect: the further the delay stretches beyond the trigger date, the more likely the delay

has prejudiced the accused. See Doggett, 505 U.S. at 652, 112 S. Ct. at 2691 (“[T]he

presumption that pretrial delay has prejudiced the accused intensifies over time.”). In this

respect, the length of the delay (Factor One) and the necessary showing of prejudice

(Factor Four) are inversely related: as the delay gets longer, the quantum of proof that

may be expected of the accused decreases, while the quantum of proof that may be

expected of the State increases. Thus, the intensifying nature of the presumption of

prejudice suggests simultaneously increasing (the State’s) and decreasing (the accused’s)

burdens under Factor Four.

¶50 We have not heretofore considered the propriety of such an approach for purposes

of our own speedy trial test. We do so now and conclude, for the reasons which follow,

that an intensifying presumption of prejudice is a more practical application of

presumptive prejudice than is Bruce’s bright-line 275-day rule.

¶51 For one thing, the point of the presumption of prejudice is not to relieve the

accused of coming forward with evidence of prejudice; rather, it is simply an indicator of

the quantum of evidence required: the less the delay extends beyond the trigger date, the

24
smaller the presumption of prejudice and, thus, the greater the accused’s burden to show

prejudice (and the smaller the State’s concomitant burden to disprove prejudice). To be

sure, there is a point in time at which prejudice may be presumed without affirmative

proof thereof. See Doggett, 505 U.S. at 655, 112 S. Ct. at 2693 (“[W]e 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.”). However, we do not

believe that that point is reached simply because the State is responsible—perhaps due to

institutional forces beyond the prosecutor’s control—for 275 days of delay.

¶52 Furthermore, presuming prejudice merely because the State has presented

insufficient evidence to the contrary is not always justified and would, in some cases,

provide the accused with an undeserved windfall. Indeed, a finding of prejudice based on

nothing more than the State’s failure of proof does not provide an accurate basis on

which to weigh Factor Four against the other three factors in the overall balancing.

¶53 In this regard, we note that the accused generally has better access than does the

State to evidence showing whether he or she has suffered oppressive pretrial

incarceration, unduly prolonged anxiety and concern, and impairment of his or her ability

to prepare an effective defense. The State, by contrast, is in the position of having to

overcome a presumption by proving a negative—namely, that the accused’s interests in

being brought to trial promptly have not been infringed and that the defense has not been

impaired—a task that we have recognized in some instances is all but impossible. See

e.g. State v. Keating, 285 Mont. 463, 476, 949 P.2d 251, 259 (1997) (“From a practical

standpoint, it would be virtually impossible for the State to rebut presumed prejudice

25
from an allegedly impaired defense without some showing by the defendant of actual

impairment resulting in prejudice.”); Bruce, ¶ 56 (noting “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”); State v.

Haser, 2001 MT 6, ¶ 32, 304 Mont. 63, ¶ 32, 20 P.3d 100, ¶ 32 (“[S]ince it is nearly

impossible for the State to prove that anxiety and concern do not exist, the State’s burden

to show a lack of anxiety becomes considerably lighter in the absence of more than

marginal evidence of anxiety.” (internal quotation marks omitted)); State v. Boese, 2001

MT 175, ¶ 16, 306 Mont. 169, ¶ 16, 30 P.3d 1092, ¶ 16 (observing that “impairment to

one’s defense is the most difficult form of speedy trial prejudice to prove” and,

conversely, that “prejudice is difficult to disprove” (emphasis added, internal quotation

marks omitted)).

¶54 It is true that the State might present evidence tending to establish the absence of

prejudice indirectly. For instance, if the accused’s own actions during the periods of

delay suggest that he or she did not actually want to be brought to trial, then it seems less

likely that he or she was actually prejudiced by the delay. See e.g. State v. Keyes, 2000

MT 337, ¶ 18, 303 Mont. 147, ¶ 18, 15 P.3d 443, ¶ 18 (observing that Keyes had fled

from Montana’s jurisdiction, had remained a fugitive from justice for nearly two years,

and, during that time, had demonstrated absolutely no interest in obtaining a speedy trial,

preserving evidence or witnesses, or advancing his legal defenses). Or, if previously

unknown or unavailable exculpatory evidence came to light during the pendency of the

trial, then it seems plausible that the delay worked to the accused’s advantage. Cf. State

26
v. Stuart, 2001 MT 178, ¶ 23, 306 Mont. 189, ¶ 23, 31 P.3d 353, ¶ 23 (noting that “delay

would have provided more—not less—time to locate [exculpatory] witnesses”).

Alternatively, the State might demonstrate that all of the potential evidence in the case

has been preserved and that all of the accused’s potential witnesses are available to testify

at trial and possess adequate memories of the events in question, which suggests that the

accused’s ability to present an effective defense has not been impaired. See e.g. State v.

Bowser, 2005 MT 279, ¶¶ 22-23, 329 Mont. 218, ¶¶ 22-23, 123 P.3d 230, ¶¶ 22-23.

¶55 Nevertheless, requiring the State to disprove the considerations that make up the

prejudice inquiry under Factor Four in order to overcome an otherwise mandated

presumption of prejudice is, as a general rule, impractical. More importantly, the

accuracy of the overall balancing is enhanced when both the accused and the State

present evidence on the issue of prejudice and neither party relies solely on the existence

(the accused) or nonexistence (the State) of the presumption of prejudice (except,

perhaps, in cases of unusually long delay).

¶56 For these reasons, we are not retaining Bruce’s 275-day rule in our speedy trial

framework. Instead, the presumption that pretrial delay has prejudiced the accused exists

as of the 200-day trigger date for speedy trial analysis (at which point it is minimal) and

intensifies (escalates) over time. Furthermore, the accused should come forward with

evidence tending to establish prejudice, the State should come forward with evidence

tending to establish the contrary, and the court must weigh each party’s evidence (or lack

thereof) pursuant to the principles discussed above. Thus, the State’s failure to make a

persuasive showing of no prejudice weighs more heavily against it in the overall

27
balancing when the delay is long, but such failure is of little weight where the delay is

relatively brief. Likewise, a persuasive showing of prejudice by the defendant is more

important where the delay is short and less important where the delay is long.

¶57 Before proceeding to Factor Two, three additional aspects of our Bruce decision

bear on the instant discussion and, therefore, require attention. First, we discussed “the

rebuttable presumption of prejudice” at length in Bruce. See Bruce, ¶¶ 21-39. After

identifying reasons for presuming prejudice, and after acknowledging the Supreme

Court’s observations that affirmative proof of particularized prejudice is not essential to

every speedy trial claim, see Bruce, ¶¶ 34-38, we concluded “that the rebuttable

presumption of prejudice established by our earlier cases is not only the better public

policy, but that it is constitutionally required,” Bruce, ¶ 39 (emphasis added). Later in

the opinion, we articulated “the point at which and the circumstances under which the

presumption of prejudice will attach”—namely, when 275 or more days of delay are

attributable to the State. See Bruce, ¶¶ 39, 56.

¶58 Although we are not retaining Bruce’s 275-day rule in our revised speedy trial

framework, we do not intend this as an implicit overruling of our statement that the

rebuttable presumption of prejudice is “constitutionally required.” Rather, we conclude

only that Bruce’s particular construct of that presumption is neither constitutionally

required nor supported by the Supreme Court precedents from which it purportedly

derives. For the reasons set forth above, the presumption of prejudice does not establish

mutually exclusive burdens of proving and disproving prejudice but, instead, determines

the necessary showings both parties must make under Factor Four. Under this

28
interpretation, both the accused and the State should come forward with evidence on this

issue; but because “the presumption that pretrial delay has prejudiced the accused

intensifies over time,” Doggett, 505 U.S. at 652, 112 S. Ct. at 2691, the necessary

showing by the accused of particularized prejudice decreases, and the necessary showing

by the State of no prejudice correspondingly increases, with the length of the delay.

¶59 Second, we opined in Bruce that “[a]t some point in time (which we leave for

future consideration) . . . the mere passage of time must necessarily be considered

sufficient to conclusively establish denial of the right to speedy trial.” Bruce, ¶ 56 (citing

Doggett generally). Yet, Doggett does not preclude the State from attempting to rebut the

presumption of prejudice, as would a conclusive presumption (see Bruce, ¶ 33). Indeed,

in reaching the conclusion that Doggett was entitled to relief, the Supreme Court noted

specifically that the government had not “persuasively rebutted” the presumption of

prejudice in that case. See Doggett, 505 U.S. at 658, 112 S. Ct. at 2694.

¶60 Furthermore, nothing in Doggett supports the proposition that the mere passage of

time may be sufficient to establish denial of the right. While the mere passage of time

may give rise to a presumption of prejudice so compelling that the accused need not

make any showing under Factor Four, the Supreme Court clarified that such presumptive

prejudice “cannot alone carry a Sixth Amendment claim without regard to the other

Barker criteria.” Doggett, 505 U.S. at 655-56, 112 S. Ct. at 2693. Indeed, the Supreme

Court stated that generally a speedy trial claim would fail, “however great the delay,” if

the government had pursued the accused with reasonable diligence and the accused could

not show specific prejudice to his or her defense as a result of the delay. Doggett, 505

29
U.S. at 656, 112 S. Ct. at 2693. Thus, it was a combination of lack of diligence on the

part of the government and excessive delay that led the Supreme Court to conclude that

Doggett was entitled to relief. See Doggett, 505 U.S. at 656-58, 112 S. Ct. at 2693-94.

For this reason, it is doubtful that the mere passage of time could “conclusively” establish

that the accused has been denied his or her right to a speedy trial.

¶61 Lastly, in our discussion of the significance of Factor One in the overall balancing,

we have focused, thus far, on the relationship between the length of the delay (Factor

One) and prejudice (Factor Four), explaining that the further the delay stretches beyond

the 200-day trigger date, the more likely the delay has prejudiced the accused. This is not

to say, however, that the extent of the post-trigger-date delay bears only on Factor Four.

Indeed, the State’s burden under Factor Two to provide valid justifications for the delay

likewise “ ‘ “increases with the length of delay.” ’ ” Bruce, ¶ 26 (quoting State v.

Steward, 168 Mont. 385, 389, 543 P.2d 178, 181 (1975), in turn quoting United States v.

Rucker, 464 F.2d 823, 825 (D.C. Cir. 1972)). In other words, the further the delay

stretches beyond the 200-day trigger date, the more compelling the State’s justifications

for the delay must be. See e.g. Doggett, 505 U.S. at 657, 112 S. Ct. at 2693 (“[T]he

weight we assign to official negligence [in bringing an accused to trial] compounds over

time as the presumption of evidentiary prejudice grows. Thus, our toleration of such

negligence varies inversely with its protractedness.”); Rucker, 464 F.2d at 825 (“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.”); State v. Barker, 261 Mont. 379, 383-84, 862 P.2d

30
1112, 1115 (1993) (“Because the State was unable to demonstrate either compelling

circumstances to warrant such a lengthy delay, or that it diligently pursued bringing

Barker’s case to trial, we conclude that, in this instance, the delay weighs heavily against

the State.”).

¶62 Thus, to sum up the speedy trial inquiries under Factor One, the first question to

be answered is whether the interval between accusation and trial is at least 200 days

(irrespective of fault for the delay). If not, then further analysis is unnecessary and the

claim should be denied. But if the interval is at least 200 days, then the four-factor

balancing test is triggered and the court must proceed with a full analysis. With respect

to the second inquiry under Factor One, the court must consider the extent to which the

delay (again, irrespective of fault for the delay) stretches beyond the 200-day trigger date.

The significance of this latter inquiry is twofold: first, the presumption that pretrial delay

has prejudiced the accused intensifies over time, and second, the State’s burden under

Factor Two to justify the delay likewise increases with the length of the delay.

2. Factor Two: The Reasons for the Delay

¶63 Turning now to Factor Two, under this factor the court first identifies each period

of delay in bringing the accused to trial. Because the question is one of “delay,” the court

does not consider any actions taken by the State or the accused which do not result in a

postponement of the trial date.

¶64 Second, the court attributes each period of delay to the appropriate party. In this

regard, “[a] defendant has no duty to bring himself to trial; the State has that duty.”

Barker, 407 U.S. at 527, 92 S. Ct. at 2190 (footnote omitted); accord State v. Blair, 2004

31
MT 356, ¶ 23, 324 Mont. 444, ¶ 23, 103 P.3d 538, ¶ 23 (“[A] defendant is under no

obligation to ensure diligent prosecution of the case against him or to help the State avoid

dismissal for failure to timely prosecute him.”); In re A.G., 2002 MT 111, ¶ 26, 309

Mont. 491, ¶ 26, 47 P.3d 831, ¶ 26 (“[I]t is up to the State to move the case towards

prosecution.”). Furthermore, “society has a particular interest in bringing swift

prosecutions, and society’s representatives are the ones who should protect that interest.”

Barker, 407 U.S. at 527, 92 S. Ct. at 2190; see also Barker, 407 U.S. at 519-21, 92 S. Ct.

at 2186-87 (discussing “[the] societal interest in providing a speedy trial which exists

separate from, and at times in opposition to, the interests of the accused”). Accordingly,

the State bears the burden of explaining the pretrial delays.

¶65 The Ninth Circuit reached the same conclusion in McNeely v. Blanas, 336 F.3d

822 (9th Cir. 2003), reasoning as follows:

The Supreme Court has repeatedly held that the prosecutor and the
court have an affirmative constitutional obligation to try the defendant in a
timely manner and that this duty requires a good faith, diligent effort to
bring him to trial quickly. See Moore v. Arizona, 414 U.S. 25, 26, 94 S.Ct.
188, 38 L.Ed.2d 183 (1973) (stating that courts should inquire whether the
state “discharge[d] its ‘constitutional duty to make a diligent, good-faith
effort to bring [the defendant to trial]’ ” (quoting Smith v. Hooey, 393 U.S.
374, 384, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969))); Dickey v. Florida, 398
U.S. 30, 38, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) (“[T]he right to a prompt
inquiry into criminal charges is fundamental and the duty of the charging
authority is to provide a prompt trial.”).
Numerous lower courts have, thus, held that the prosecution bears
the burden of explaining delay in bringing an accused to trial. See e.g.,
United States v. Brown, 169 F.3d 344, 349 (6th Cir. 1999) (stating that
government had the burden of proving that defendant was actually culpable
in causing the delay by evading arrest on the indictment, or was aware of
the issuance of the indictment and intentionally hid himself from law
enforcement agents); United States v. Graham, 128 F.3d 372, 374 (6th Cir.
1997) (holding that the state has the burden to explain pretrial delay); Jones

32
 v. Morris, 590 F.2d 684, 686 (7th Cir. 1979) (finding that where reason for
23-month delay did not clearly appear in the record, “the absence of any
reason for the delay should weigh against the state”); Morris v. Wyrick, 516
F.2d 1387, 1390 (8th Cir. 1975) (stating that where the record does not
demonstrate reason for the delay and the state has provided no reasonable
explanation, the court will “assume that there is no justifiable reason and
weigh this factor heavily against the state”); Georgiadis v. Superintendent,
Eastern Correctional Facility, 450 F.Supp. 975, 980 (S.D.N.Y.), aff’d, 591
F.2d 1330 (2d Cir. 1978) (stating that where actions of the defendant do not
account for entire period, “the responsibility for these unexplained delays
should rest with the state”). Although Barker did not explicitly identify the
burden of proof for pretrial delay, it refers to the reason for the delay as
“the reason the government assigns to justify the delay.” 407 U.S. at 531,
92 S.Ct. 2182. We likewise hold that the prosecution bears the burden of
explaining pretrial delays.

McNeely, 336 F.3d at 826-27 (alterations in original). Any delay not demonstrated to

have been caused by the accused or affirmatively waived by the accused, therefore, is

attributed to the State by default. See McNeely, 336 F.3d at 827, and cases cited therein;

Bruce, ¶¶ 60-63; State v. Kipp, 1999 MT 197, ¶ 16, 295 Mont. 399, ¶ 16, 984 P.2d 733,

¶ 16; see also State v. Ellenburg, 2000 MT 232, ¶¶ 29-31, 301 Mont. 289, ¶¶ 29-31, 8

P.3d 801, ¶¶ 29-31.

¶66 In attributing each period of delay, however, the court must bear in mind that

delay requested by a particular party may be attributable to the other party. See e.g. State

v. Diaz, 2006 MT 303, ¶¶ 32-33, 334 Mont. 479, ¶¶ 32-33, 148 P.3d 628, ¶¶ 32-33

(holding that delay requested by the State but necessitated by the accused’s unlawful acts

was attributable to the accused); State v. Keyes, 2000 MT 337, ¶¶ 13-14, 303 Mont. 147,

¶¶ 13-14, 15 P.3d 443, ¶¶ 13-14 (holding that the time associated with Keyes’ application

to this Court for a writ of supervisory control was attributable to the State, given that the

necessity of the application and the delay occasioned by our consideration of the

33
application were due to the confusing nature of the charges under which the State had

sought to prosecute Keyes).

¶67 Lastly, after identifying and attributing each period of delay in bringing the

accused to trial, the court assigns weight to each period based on the specific cause and

motive for the delay. This is necessary because the weight assigned to a particular period

of delay will depend on the party’s culpability in causing it. The following examples

provided by the Supreme Court in Barker illustrate this point with respect to delay

attributable to the State:

A deliberate attempt to delay the trial in order to hamper the defense should
be weighted heavily against the government. A more neutral reason such
as negligence or overcrowded courts should be weighted less heavily but
nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with the
defendant. Finally, a valid reason, such as a missing witness, should serve
to justify appropriate delay.

Barker, 407 U.S. at 531, 92 S. Ct. at 2192 (emphases added, footnote omitted); see also

Strunk v. United States, 412 U.S. 434, 436, 93 S. Ct. 2260, 2262 (1973) (“Unintentional

delays caused by overcrowded court dockets or understaffed prosecutors are among the

factors to be weighed less heavily than intentional delay, calculated to hamper the

defense, in determining whether the Sixth Amendment has been violated.”).

¶68 With respect to deliberate attempts by the prosecution to delay the trial versus

overcrowded court dockets, our cases already require that these two types of delay be

attributed to the State but weighed differently. In State v. Blair, 2004 MT 356, 324 Mont.

444, 103 P.3d 538, for example, we characterized delay inherent in the criminal justice

system and caused by circumstances largely beyond the control of the prosecutor and the

34
accused as “institutional delay,” and we attributed such delay to the State. See Blair,

¶ 19; see also State v. Good, 2002 MT 59, ¶ 26, 309 Mont. 113, ¶ 26, 43 P.3d 948, ¶ 26

(“[The accused] cannot be held responsible for the court’s policy regarding the setting of

trial dates and its management of its criminal caseload.”); Kipp, ¶ 14 (“When a trial court,

for its own reasons, vacates the trial date and does not set a new date, this delay is not

attributable to the defendant.”). However, we explained that institutional delay weighs

less heavily against the State than does intentional delay, because institutional delay “is

not one the State actively pursued,” whereas intentional delay “exposes the defendant to

‘oppressive tactics of the prosecution.’ ” Blair, ¶ 19.

¶69 As for negligence, the Supreme Court explained in Doggett that “[b]etween

diligent prosecution and bad-faith delay, official negligence in bringing an accused to

trial occupies the middle ground.” Doggett, 505 U.S. at 656-57, 112 S. Ct. at 2693. The

Court stressed that “[a]lthough negligence is obviously to be weighed more lightly than a

deliberate intent to harm the accused’s defense, it still falls on the wrong side of the

divide between acceptable and unacceptable reasons for delaying a criminal prosecution

once it has begun.” Doggett, 505 U.S. at 657, 112 S. Ct. at 2693. We too have treated

negligence (or lack of diligence) in bringing the accused to trial as an unacceptable

reason for delay. See e.g. State v. Tiedemann, 178 Mont. 394, 399-405, 584 P.2d 1284,

1288-91 (1978); State v. Fife, 193 Mont. 486, 490, 632 P.2d 712, 715 (1981); State v.

Barker, 261 Mont. 379, 383-84, 862 P.2d 1112, 1115 (1993); Blair, ¶ 24; see also State v.

Johnson, 2000 MT 180, ¶ 12, 300 Mont. 367, ¶ 12, 4 P.3d 654, ¶ 12 (“As a general

matter, the right to a speedy trial places on the State the burden of diligent prosecution at

35
all stages of a criminal proceeding.”); Kipp, ¶ 16 (same); State v. Longhorn, 2002 MT

135, ¶ 22, 310 Mont. 172, ¶ 22, 49 P.3d 48, ¶ 22 (“If the accused is out of state, the State

must act diligently and in good faith to acquire jurisdiction.”).

¶70 Finally, besides delay caused by bad faith on the part of the prosecution, delay

caused by negligence or lack of diligence, and delay caused by circumstances largely

beyond the control of the prosecutor and the accused (e.g., overcrowded court dockets),

there are “valid reasons” for delay attributable to the State. For instance, if the charged

offense is particularly complex, additional time to prepare for trial may be required. See

Barker, 407 U.S. at 531, 92 S. Ct. at 2192 (“[T]he delay that can be tolerated for an

ordinary street crime is considerably less than for a serious, complex conspiracy

charge.”); see also State v. Bretz, 185 Mont. 253, 264, 269, 605 P.2d 974, 981-82, 984

(1979); State v. Kills on Top, 243 Mont. 56, 77, 80, 793 P.2d 1273, 1287, 1289 (1990).

Another “valid reason” is a missing witness. Barker, 407 U.S. at 531, 92 S. Ct. at 2192.

In Johnson, for example, we observed that “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.” Johnson, ¶ 20. We therefore weighed such delay

less heavily against the State in the overall balancing. See Johnson, ¶¶ 20, 39. 5

5
We have stated that “[s]peedy trial delay will not be charged to the State when a
material witness with ‘valid reason’ is not available.” Diaz, ¶ 32 (citing State v. Tilly,
227 Mont. 138, 142, 737 P.2d 484, 487 (1987)). Yet, if the “valid reason” has nothing to
do with the accused, then the delay is, in fact, charged to the State. See Barker, 407 U.S.
at 531, 92 S. Ct. at 2192; Johnson, ¶ 20. Thus, to clarify our holdings in Diaz and Tilly,
when the State requests a postponement of the trial because a material witness with “valid
reason” is not available, the resulting delay is charged to the State unless that delay was
brought about by the accused’s unlawful acts, as was the situation in both Diaz and Tilly.

36
¶71 The crucial point of these distinctions and examples is that there are gradations of

culpability in the delay attributed to the State—with bad-faith delay at one extreme and a

valid reason, such as a missing witness, at the other extreme—which depend on the

cause, the motive, and other surrounding circumstances. And the same is true of delay

attributed to the accused. Delay caused by the accused to avoid being brought to trial or

for tactical reasons weighs more heavily against him or her than does delay caused by a

missing witness.

¶72 The function of Factor Two in the overall balancing, therefore, is no longer “to

conclusively establish a burden shift for the determination of prejudice,” State v. Haser,

2001 MT 6, ¶ 25, 304 Mont. 63, ¶ 25, 20 P.3d 100, ¶ 25; see also State v. Doyle, 2007

MT 125, ¶ 21, 337 Mont. 308, ¶ 21, 160 P.3d 516, ¶ 21 (“The court allocates the total

number of days of delay between the parties for the purpose of determining which party

carries the burden of proof under the prejudice factor.”); State v. Stanko, 1998 MT 323,

¶¶ 29-30, 292 Mont. 214, ¶¶ 29-30, 974 P.2d 1139, ¶¶ 29-30 (stating that it was

“immaterial” whether the delay at issue was attributed to the State or to Stanko, since the

burden under Factor Four was on Stanko either way). Rather, this factor’s significance is

in the specific cause and culpability for each period of delay. Obviously, the more delay

in bringing the accused to trial that is due to lack of diligence or other “unacceptable”

reasons, the more likely the accused’s speedy trial right has been violated. Likewise, the

more delay caused by the accused for “unacceptable” reasons, the less likely the right has

been violated. Lastly, because “the primary burden” to assure that cases are brought to

trial is “on the courts and the prosecutors,” Barker, 407 U.S. at 529, 92 S. Ct. at 2191, the

37
further the delay stretches beyond the 200-day trigger date, the more compelling the

State’s justifications for the delay must be (see ¶ 61, supra).

3. Factor Three: Assertion of the Right (hereinafter, The Accused’s
Responses to the Delay)

¶73 In Bruce, we held 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 accused asserts the right to a speedy trial at any time prior to the

commencement of trial, he or she “has satisfied the third-prong of the Barker test and . . .

further analysis of that prong is not only unnecessary, but inappropriate.” Bruce, ¶ 48. In

establishing this bright-line rule, we reasoned as follows:

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.

Bruce, ¶ 48.

¶74 It is true that analyzing when and how often the accused asserted the right to a

speedy trial is a less objective approach than the “non-weighted, ‘either you asserted the

right or you did not’ approach” we adopted in Bruce (see Bruce, ¶ 81 (Leaphart, J.,

specially concurring)). Moreover, there is indeed no “magical time” for assertion of the

right. See Barker, 407 U.S. at 521, 92 S. Ct. at 2187 (noting that “there 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”). That said, we conclude, for the

38
reasons which follow, that the overall accuracy of the balancing test is enhanced when

the totality of the accused’s responses to pretrial delays is considered.

¶75 The right to a speedy trial is “generically different” from any of the other rights

enshrined in the Constitution for the protection of the accused. Barker, 407 U.S. at 519,

92 S. Ct. at 2186. One difference is that deprivation of the right may actually work to the

accused’s advantage. For instance, as the time between the commission of the crime and

the trial lengthens, witnesses may become unavailable or their memories may fade; and if

these witnesses support the prosecution, its case will be weakened, sometimes seriously

so. Barker, 407 U.S. at 521, 92 S. Ct. at 2187.

¶76 Thus, as Barker makes clear, whether the accused actually wanted to be brought to

trial promptly is an “important” consideration in ascertaining whether his or her right to a

speedy trial has been violated. Barker, 407 U.S. at 534, 92 S. Ct. at 2194. Indeed, the

fact that Barker seemingly did not want to be tried was the primary factor that

counterbalanced the “extraordinary” delay of over five years between his arrest and trial.

See Barker, 407 U.S. at 533-36, 92 S. Ct. at 2193-95. It is not always readily apparent

whether the accused actually wanted a speedy trial, but some useful indicators identified

in Barker are whether and how the accused asserted the speedy trial right, see Barker,

407 U.S. at 531, 92 S. Ct. at 2192, the frequency and force of the accused’s objections to

pretrial delays, see Barker, 407 U.S. at 529, 92 S. Ct. at 2191, and the reasons for any

acquiescence by the accused in pretrial delays, see Barker, 407 U.S. at 534-36, 92 S. Ct.

at 2194-95.

39
¶77 For instance, the Supreme Court observed that Barker initially acquiesced for

tactical reasons in most of the prosecution’s motions to continue; but once it became clear

to Barker that he had lost his tactical gamble, he began to object to further continuances.

See Barker, 407 U.S. at 534-36, 92 S. Ct. at 2194-95. On these facts, the Supreme Court

concluded that Barker had not been deprived of his right to a speedy trial:

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
strongly indicates, as does this one, that the defendant did not want a
speedy trial.

Barker, 407 U.S. at 536, 92 S. Ct. at 2195; see also Barker, 407 U.S. at 536-37, 92 S. Ct.

at 2195 (White, J., concurring) (“Although the Court rejects [Barker’s] speedy trial claim

. . . , it is apparent that had Barker not so clearly acquiesced in the major delays involved

in this case, the result would have been otherwise.”).

¶78 The accused’s various responses to delays, aside from providing some insight into

whether he or she actually wanted to be brought to trial promptly, also serve as a useful

gauge of the weights the court should assign to the other three factors in the balancing:

Whether and how a defendant asserts his right is closely related to the other
factors we have mentioned. The strength of his efforts will be affected by
the length of the delay, to some extent by the reason for the delay, and most
particularly by the personal prejudice, which is not always readily
identifiable, that he experiences. The more serious the deprivation, the
more likely a defendant is to complain. The defendant’s assertion of his
speedy trial right, then, is entitled to strong evidentiary weight in
determining whether the defendant is being deprived of the right.

40
Barker, 407 U.S. at 531-32, 92 S. Ct. at 2192-93.

¶79 Thus, Factor Three serves an important role in the balancing test by providing

insight into whether the accused actually wanted a speedy trial and what weights the

court should assign to the other three factors in the analysis. For this reason, we are

departing from the non-weighted, “either you asserted the right or you did not” approach

of Bruce. We hold that under Factor Three, the court must evaluate the accused’s

responses to the delay—i.e., his or her acquiescence in and objections to pretrial delays.

(An objection to delay could take the form of a motion to dismiss on speedy trial

grounds, an objection to a motion by the prosecution for a continuance, a motion to

compel requested discovery, etc.) The sum of this evaluation—i.e., the totality of the

accused’s various responses to the delays in bringing him or her to trial—should then be

considered together with the other three factors of the balancing test.

¶80 We caution, however, that we are not suggesting that the accused should complain

early and often. The timing and number of instances in which the accused objects to

pretrial delay are not talismanic. Indeed, a pro forma motion to dismiss on speedy trial

grounds is itself only marginal evidence of a desire to be brought to trial. At the same

time, however, acquiescence in delay requested by the prosecutor is not conclusive

evidence of a desire not to be brought to trial. Rather, the accused’s various responses to

the delays must be evaluated based on the surrounding circumstances—such as the

timeliness, persistence, and sincerity of the objections, the reasons for the acquiescence,

whether the accused was represented by counsel, the accused’s pretrial conduct (as that

conduct bears on the speedy trial right), and so forth. See United States v. Loud Hawk,

41
474 U.S. 302, 314, 106 S. Ct. 648, 655-56 (1986) (noting that the accused’s assertion(s)

of the speedy trial right “must be viewed in the light of [his or her] other conduct”).

¶81 Thus, a situation in which the accused’s pretrial conduct has been consistent with a

sincere desire to be brought to trial promptly would be weighed differently than a

situation in which the accused has objected repeatedly to pretrial delays but, at the same

time, has filed indisputably frivolous pretrial motions that necessitated postponements of

the trial date. See e.g. Loud Hawk, 474 U.S. at 314-15, 106 S. Ct. at 656 (observing that

while the defendants were making a record of their speedy trial claims in the district

court, they also filled that court’s docket with repetitive and unsuccessful motions).

Likewise, a situation in which the accused has acquiesced in a well-founded request by

the prosecution to continue the trial would be weighed differently than a situation in

which the circumstances demonstrate that the accused acquiesced in long delay in order

to gain a tactical advantage. See e.g. Barker, 407 U.S. at 535, 92 S. Ct. at 2194 (“[T]he

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, [Barker] definitely did not

want to be tried.”). Finally, a situation in which the accused knowingly failed to object to

delay would be weighed differently than a situation in which the accused was unaware

that he had been charged with a crime. See e.g. Doggett, 505 U.S. at 653, 112 S. Ct. at

2691 (noting that Factor Three would have weighed heavily against Doggett had he

known of the indictment); Barker, 407 U.S. at 529, 92 S. Ct. at 2191 (observing that a

court may attach a different weight to a situation in which the accused knowingly failed

42
to object as opposed to a situation in which his attorney acquiesced in long delay without

adequately informing his client).

¶82 We note here that the court may not infer that the accused did not want a speedy

trial solely because he or she did not object to pretrial delay often or at all. For one thing,

Barker does not stand for such an inference. In concluding that Barker did not want a

speedy trial, the Supreme Court relied on corroborating facts: counsel’s concessions to

this effect during oral argument, see Barker, 407 U.S. at 535, 92 S. Ct. at 2194, and

Barker’s apparent goal of gaining a tactical advantage, see Barker, 407 U.S. at 535-36, 92

S. Ct. at 2194-95. Furthermore, such an inference would conflict with the fact that while

the accused has “some responsibility” to object to pretrial delay, see Barker, 407 U.S. at

529, 92 S. Ct. at 2191, he has “no duty to bring himself to trial,” Barker, 407 U.S. at 527,

92 S. Ct. at 2190. Thus, failure to object to pretrial delay does not, by itself, establish that

the accused did not want a speedy trial or that the speedy trial right has not been violated.

See Barker, 407 U.S. at 536, 92 S. Ct. at 2195 (“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.”). At the same time, however, an absence

in the record of any objections to delay will make it difficult for the accused to prove that

he or she was denied a speedy trial. Barker, 407 U.S. at 532, 92 S. Ct. at 2193.

¶83 In a similar vein, the court may not infer waiver of the speedy trial right based on

silence or inaction on the part of the accused. In Barker, the Supreme Court explicitly

rejected the rule, followed by a number of courts at the time, under which “a defendant

waives any consideration of his right to speedy trial for any period prior to which he has

43
not demanded a trial.” Barker, 407 U.S. at 525, 528, 92 S. Ct. at 2189, 2191. Among

other things, the Court pointed out that “waiver” is “an intentional relinquishment or

abandonment of a known right or privilege” and that courts “should not presume

acquiescence in the loss of fundamental rights.” Barker, 407 U.S. at 525-26, 92 S. Ct. at

2189 (emphasis added, internal quotation marks omitted).

¶84 In sum, Factor Three is no longer a procedural formality. Rather, this factor

serves as an indicator of whether the accused actually wanted a speedy trial, which in turn

informs the inquiry into whether there has been a deprivation of the right to a speedy

trial. Factor Three also serves as a useful gauge of the weights the court should assign to

the other three factors in the balancing.

¶85 Under Factor Three, therefore, the court must evaluate, based on the surrounding

circumstances, the accused’s various responses to the delays in bringing him or her to

trial. The sum of this evaluation—i.e., the totality of the accused’s responses—should

then be considered together with the other three factors of the balancing test. For

instance, conduct evidencing a sincere desire to be brought to trial promptly weighs in

favor of the accused in the overall balancing, whereas conduct demonstrating a desire to

avoid trial weighs against the accused in the overall balancing. Furthermore, in the

analysis of prejudice under Factor Four, the court may take account of the timeliness and

persistence of the accused’s objections to pretrial delay—though, as explained above, the

number of such objections does not equate with the degree of actual prejudice suffered.

Finally, because the pertinent focus here is on the totality of the accused’s various

responses to pretrial delays, and not simply whether and when he or she filed a motion to

44
dismiss on speedy trial grounds, we are abandoning the “Assertion of the Right” label

and henceforth will refer to Factor Three as “The Accused’s Responses to the Delay.”

4. Factor Four: Prejudice to the Accused

¶86 Lastly, under Factor Four, the court inquires into whether the accused has been

prejudiced by the delay. Because the speedy trial guarantee “does not purport to protect a

defendant from all effects flowing from a delay before trial,” Loud Hawk, 474 U.S. at

311, 106 S. Ct. at 654 (emphasis added), prejudice should be assessed “in the light of the

interests of defendants which the speedy trial right was designed to protect,” Barker, 407

U.S. at 532, 92 S. Ct. at 2193.

¶87 Two such interests are minimizing impairment of liberty and shortening disruption

of life:

The speedy trial guarantee is designed to minimize the possibility of
lengthy incarceration prior to trial, to reduce the lesser, but nevertheless
substantial, impairment of liberty imposed on an accused while released on
bail, and to shorten the disruption of life caused by arrest and the presence
of unresolved criminal charges.

United States v. MacDonald, 456 U.S. 1, 8, 102 S. Ct. 1497, 1502 (1982). A third

interest is “ ‘limit[ing] the possibilities that long delay will impair the ability of an

accused to defend himself.’ ” Smith v. Hooey, 393 U.S. 374, 377-78, 89 S. Ct. 575, 577

(1969) (quoting United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 776 (1966)).

¶88 The Supreme Court has expressed these interests as follows: (i) to prevent

oppressive pretrial incarceration, (ii) to minimize anxiety and concern of the accused, and

(iii) to limit the possibility that the defense will be impaired by dimming memories and

loss of exculpatory evidence. Barker, 407 U.S. at 532, 92 S. Ct. at 2193; Doggett, 505

45
U.S. at 654, 112 S. Ct. at 2692. We recognized these same three considerations in Bruce,

see Bruce, ¶¶ 19, 56, 58, and we now reaffirm them as the pertinent considerations when

evaluating whether the accused has been prejudiced by the delay. We also reaffirm that

prejudice may be established based on “any or all” of these considerations. State v.

Johnson, 2000 MT 180, ¶ 23, 300 Mont. 367, ¶ 23, 4 P.3d 654, ¶ 23.

i. Prevent Oppressive Pretrial Incarceration

¶89 The first interest—preventing oppressive pretrial incarceration—reflects the “core

concern” of the speedy trial guarantee: “impairment of liberty.” Loud Hawk, 474 U.S. at

312, 106 S. Ct. at 654. In Barker, the Supreme Court observed:

The time spent in jail awaiting trial has a detrimental impact on the
individual. It often means loss of a job; it disrupts family life; and it
enforces idleness. Most jails offer little or no recreational or rehabilitative
programs. The time spent in jail is simply dead time. Moreover, if a
defendant is locked up, he is hindered in his ability to gather evidence,
contact witnesses, or otherwise prepare his defense. Imposing those
consequences on anyone who has not yet been convicted is serious. It is
especially unfortunate to impose them on those persons who are ultimately
found to be innocent.

Barker, 407 U.S. at 532-33, 92 S. Ct. at 2193 (footnotes omitted).

¶90 In assessing whether the pretrial incarceration in a given case is “oppressive,” the

court must consider all of the circumstances of the incarceration. Foremost among these

is duration, given that one of the purposes of the speedy trial guarantee is to ensure that

the prosecution “ ‘will move with the dispatch that is appropriate to assure [the accused]

an early and proper disposition of the charges against him,’ ” MacDonald, 456 U.S. at 7,

102 S. Ct. at 1501 (quoting United States v. Marion, 404 U.S. 307, 313, 92 S. Ct. 455,

459 (1971)), and thereby “minimize the possibility of lengthy incarceration prior to trial,”

46
MacDonald, 456 U.S. at 8, 102 S. Ct. at 1502. See also State v. Blair, 2004 MT 356,

¶ 28, 324 Mont. 444, ¶ 28, 103 P.3d 538, ¶ 28 (concluding that “the fact of 342 days of

pretrial incarceration suffices to establish this element in this case”). Thus, the longer the

pretrial incarceration, the more likely it has been oppressive and the more likely the

accused has been prejudiced by the delay.

¶91 At the same time, however, while justice should be administered with dispatch,

“ ‘the essential ingredient is orderly expedition and not mere speed.’ ” Marion, 404 U.S.

at 313, 92 S. Ct. at 459 (alteration omitted) (quoting Smith v. United States, 360 U.S. 1,

10, 79 S. Ct. 991, 997 (1959)). Thus, the complexity of the charged offense(s) is also

relevant here. As noted above, the Supreme Court observed in Barker that “the delay that

can be tolerated for an ordinary street crime is considerably less than for a serious,

complex conspiracy charge.” Barker, 407 U.S. at 531, 92 S. Ct. at 2192. Likewise, the

length of the pretrial incarceration that is “oppressive” is less for a relatively simple

offense than it is for a complex charge.

¶92 Another pertinent consideration is any misconduct on the part of the accused

directly related to the pretrial incarceration. For instance, if the accused has

demonstrated a likelihood to flee the jurisdiction of the court, see e.g. State v. Keyes,

2000 MT 337, ¶ 18, 303 Mont. 147, ¶ 18, 15 P.3d 443, ¶ 18 (“As to any prejudicial

effects of Keyes’ lengthy pretrial incarceration, there can be no doubt in this case that a

high bail and resulting incarceration were necessary in light of . . . his demonstrated

ability and willingness to abscond from justice.”), or if the accused has engaged in

misconduct while incarcerated awaiting trial, see e.g. State v. Ellenburg, 2000 MT 232,

47
¶ 37, 301 Mont. 289, ¶ 37, 8 P.3d 801, ¶ 37 (“Ellenburg’s incarceration was the result of

. . . [his] misconduct while incarcerated.”), thus necessitating confinement, then it is less

likely that the incarceration was oppressive. In a similar vein, the fact that the accused

was incarcerated on a separate charge while awaiting trial on the instant charge informs

the issue of oppressiveness. See State v. Highpine, 2000 MT 368, ¶ 26, 303 Mont. 422,

¶ 26, 15 P.3d 938, ¶ 26, and cases cited therein; State v. LaGree, 2007 MT 65, ¶¶ 24-26,

336 Mont. 375, ¶¶ 24-26, 154 P.3d 615, ¶¶ 24-26, and cases cited therein. We note,

however, that while the fact of incarceration on a separate charge is relevant, it is not

dispositive. See Smith v. Hooey, 393 U.S. 374, 378, 89 S. Ct. 575, 577 (1969). 6

¶93 Lastly, the conditions of the incarceration are relevant in assessing oppressiveness.

See Wells v. Petsock, 941 F.2d 253, 257 (3rd Cir. 1991) (observing that “[a]ll pretrial

detention is not equally oppressive” and that “the seriousness of a deprivation of liberty

due to pretrial incarceration will vary with the conditions of the defendant’s

confinement”); see also State v. Johnson, 2000 MT 180, ¶¶ 27-29, 300 Mont. 367, ¶¶ 27-
6
In Hooey, the Supreme Court explained:
At first blush it might appear that a man already in prison under a
lawful sentence is hardly in a position to suffer from undue and oppressive
incarceration prior to trial. But the fact is that delay in bringing such a
person to trial on a pending charge may ultimately result in as much
oppression as is suffered by one who is jailed without bail upon an untried
charge. First, the possibility that the defendant already in prison might
receive a sentence at least partially concurrent with the one he is serving
may be forever lost if trial of the pending charge is postponed. Secondly,
under procedures now widely practiced, the duration of his present
imprisonment may be increased, and the conditions under which he must
serve his sentence greatly worsened, by the pendency of another criminal
charge outstanding against him.
Hooey, 393 U.S. at 378, 89 S. Ct. at 577 (footnote and internal quotation marks omitted).

48
29, 4 P.3d 654, ¶¶ 27-29 (assessing Johnson’s claim that he was prejudiced by the

inadequate medical treatment he allegedly received while incarcerated, and concluding

that “[n]either the length nor the conditions of incarceration indicate that Johnson’s pre-

trial incarceration was oppressive”). In particular, incarceration in facilities that are

overcrowded or lacking in recreational opportunities, adequate food, climate control,

proper medical care, cleanliness, or legal research capabilities may be considered in

assessing whether the incarceration was oppressive. Where such conditions have been

present, it is more likely that the pretrial incarceration has been oppressive. We

emphasize, however, that any evidence presented concerning the conditions of the

incarceration must be tied to the speedy trial inquiry; a speedy trial motion is not an

avenue for pursuing grievances that are properly pursued through administrative channels

or for attacking the inner workings of the prison system generally. Furthermore, it is

insufficient for speedy trial purposes that the conditions of the incarceration have at times

been disagreeable. The question here is one of oppressiveness, not merely occasional

unpleasantness.

¶94 In sum, there is no bright-line date on which the pretrial incarceration becomes

“oppressive.” Rather, this determination will vary from case to case based on the specific

circumstances of the incarceration.

ii. Minimize the Accused’s Anxiety and Concern

¶95 The second interest—minimizing anxiety and concern caused by the presence of

unresolved criminal charges—is more subjective, not to mention difficult to demonstrate.

Nonetheless, it is an interest protected by the right to a speedy trial. United States v.

49
Marion, 404 U.S. 307, 320, 92 S. Ct. 455, 463 (1971) (noting that one purpose of the

speedy trial guarantee is “ ‘to minimize anxiety and concern accompanying public

accusation’ ” (quoting United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 776

(1966))). As such, it is a pertinent consideration under Factor Four.

¶96 The Supreme Court has described the interest in minimizing anxiety and concern

in relatively broad terms. For instance, in Barker, the Court pointed out that “a defendant

awaiting trial on bond might be subjected to public scorn, deprived of employment, and

chilled in the exercise of his right to speak for, associate with, and participate in

unpopular political causes.” Barker, 407 U.S. at 532 n. 33, 92 S. Ct. at 2193 n. 33 (citing

Klopfer v. North Carolina, 386 U.S. 213, 221-22, 87 S. Ct. 988, 992-93 (1967)).

Similarly, in Marion the Court observed that “[a]rrest is a public act that . . . may disrupt

[the accused’s] employment, drain his financial resources, curtail his associations, subject

him to public obloquy, and create anxiety in him, his family and his friends.” Marion,

404 U.S. at 320, 92 S. Ct. at 463. We too have recognized economic hardship and

damage to the accused’s reputation in the community as types of prejudice that can flow

from the presence of unresolved criminal charges. See e.g. State v. Bailey, 201 Mont.

473, 480-81, 655 P.2d 494, 498-99 (1982); State v. Haskins, 220 Mont. 199, 203, 714

P.2d 119, 121-22 (1986). “ ‘These factors are more serious for some than for others, but

they are inevitably present in every case to some extent, for every defendant will either be

incarcerated pending trial or on bail subject to substantial restrictions on his liberty.’ ”

Moore v. Arizona, 414 U.S. 25, 27, 94 S. Ct. 188, 190 (1973) (per curiam) (quoting

Barker, 407 U.S. at 537, 92 S. Ct. at 2195 (White, J., concurring)); see also Hooey, 393

50
U.S. at 379, 89 S. Ct. at 577 (“[A]n outstanding untried charge . . . can have fully as

depressive an effect upon a prisoner as upon a person who is at large.”); Barker, 407 U.S.

at 533, 92 S. Ct. at 2193 (“[E]ven if an accused is not incarcerated prior to trial, he is still

disadvantaged by restraints on his liberty and by living under a cloud of anxiety,

suspicion, and often hostility.”).

¶97 In evaluating the interest in minimizing anxiety and concern, therefore, the focus

is on the ways in which the presence of unresolved criminal charges has disrupted the

accused’s life. The court may infer from evidence of such disruption that the accused has

suffered anxiety and concern, which in turn suggests that he or she has been prejudiced.

However, a certain amount of anxiety and concern is inherent in being accused of a

crime. State v. Chavez, 213 Mont. 434, 444, 691 P.2d 1365, 1371 (1984); State v. Van

Voast, 247 Mont. 194, 201, 805 P.2d 1380, 1385 (1991); State v. Spang, 2007 MT 54,

¶ 22, 336 Mont. 184, ¶ 22, 153 P.3d 646, ¶ 22. Furthermore, the speedy trial guarantee is

designed “to shorten the disruption of life caused by arrest and the presence of

unresolved criminal charges,” United States v. MacDonald, 456 U.S. 1, 8, 102 S. Ct.

1497, 1502 (1982) (emphasis added), not to eliminate the disruption altogether.

Accordingly, the extent to which the disruption of life and the associated anxiety and

concern will support a finding of prejudice will depend on their duration and intensity. In

other words, the crucial question here is whether the delay in bringing the accused to trial

has unduly prolonged the disruption of his or her life or aggravated the anxiety and

concern that are inherent in being accused of a crime. MacDonald, 456 U.S. at 8, 102

S. Ct. at 1502; City of Billings v. Peterson, 2004 MT 232, ¶ 36, 322 Mont. 444, ¶ 36, 97

51
P.3d 532, ¶ 36; see also State v. Haser, 2001 MT 6, ¶ 34, 304 Mont. 63, ¶ 34, 20 P.3d

100, ¶ 34 (concluding that Haser’s anxieties were attributable more to the nature of the

crimes with which he had been charged than to the delay in commencing the trial).

iii. Limit the Possibility that the Defense Will Be Impaired

¶98 Finally, the third interest concerns itself with issues of evidence, witness

reliability, and the accused’s ability to present an effective defense. State v. Jefferson,

2003 MT 90, ¶ 36, 315 Mont. 146, ¶ 36, 69 P.3d 641, ¶ 36; Haser, ¶¶ 35, 38; Doggett,

505 U.S. at 654-55, 112 S. Ct. at 2692. In Barker, the Supreme Court characterized this

interest as “the most serious” of the interests that the speedy trial right was designed to

protect, “because the inability of a defendant adequately to prepare his case skews the

fairness of the entire system.” Barker, 407 U.S. at 532, 92 S. Ct. at 2193.7 In this regard,

the Supreme Court observed that “[i]f witnesses die or disappear during a delay, the

prejudice is obvious” and that “[t]here is also prejudice if defense witnesses are unable to

recall accurately events of the distant past.” Barker, 407 U.S. at 532, 92 S. Ct. at 2193.

Likewise, we recognized in Jefferson that “time may erode the accuracy of witness

7
Subsequent to Barker, the Supreme Court stated that “ ‘[i]nordinate delay
between arrest, indictment, and trial may impair a defendant’s ability to present an
effective defense. But the major evils protected against by the speedy trial guarantee
exist quite apart from actual or possible prejudice to an accused’s defense. . . .’ The Sixth
Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to
the defense caused by passage of time.” MacDonald, 456 U.S. at 7-8, 102 S. Ct. at 1502
(citation and paragraph break omitted) (quoting Marion, 404 U.S. at 320, 92 S. Ct. at
463). In Doggett, however, the Supreme Court again stated that “[o]f these forms of
prejudice, ‘the most serious is [the possibility that the accused’s defense will be
impaired], because the inability of a defendant adequately to prepare his case skews the
fairness of the entire system.’ ” Doggett, 505 U.S. at 654, 112 S. Ct. at 2692 (quoting
Barker, 407 U.S. at 532, 92 S. Ct. at 2193).

52
testimony and exculpatory evidence.” Jefferson, ¶ 36; see also State v. Kipp, 1999 MT

197, ¶ 23, 295 Mont. 399, ¶ 23, 984 P.2d 733, ¶ 23 (“The loss of a ‘main witness’ as a

result of delay attributable to the State is prejudicial to the defense.”). Thus, we stated

that “this factor often carries more weight than the other bases for concluding a defendant

has been prejudiced by a pretrial delay.” Jefferson, ¶ 36; see also State v. Good, 2002

MT 59, ¶ 29, 309 Mont. 113, ¶ 29, 43 P.3d 948, ¶ 29 (“Impairment of defense is arguably

the most important of the three factors to consider because a defendant’s inability to

adequately prepare his case undermines the fairness of the entire trial system.”); State v.

Price, 2001 MT 212, ¶ 28, 306 Mont. 381, ¶ 28, 34 P.3d 112, ¶ 28 (same).

¶99 Impairment of one’s defense, however, “is the most difficult form of speedy trial

prejudice to prove because time’s erosion of exculpatory evidence and testimony can

rarely be shown.” Doggett, 505 U.S. at 655, 112 S. Ct. at 2692-93 (internal quotation

marks omitted); see also Barker, 407 U.S. at 532, 92 S. Ct. at 2193 (“Loss of memory . . .

is not always reflected in the record because what has been forgotten can rarely be

shown.”). For this reason, the accused’s failure to make an affirmative showing that the

delay weakened his or her ability to raise specific defenses, elicit specific testimony, or

produce specific items of evidence does not preclude a finding that the defense has been

impaired. Indeed, “consideration of prejudice is not limited to the specifically

demonstrable,” since “excessive delay presumptively compromises the reliability of a

trial in ways that neither party can prove or, for that matter, identify.” Doggett, 505 U.S.

at 655, 112 S. Ct. at 2692, 2693. Thus, “affirmative proof of particularized prejudice is

not essential to every speedy trial claim.” Doggett, 505 U.S. at 655, 112 S. Ct. at 2692.

53
¶100 Accordingly, in the absence of affirmative proof that the delay has impaired the

accused’s ability to present an effective defense, impairment must be assessed based on

other factors in the analysis—e.g., the length of the delay (the greater the delay, the

greater the erosion of exculpatory evidence and testimony), the accused’s responses to

the delay (the more imperiled the accused’s ability to present an effective defense

becomes, the more likely he or she is to complain about the delay), and the duration of

the pretrial incarceration (an accused who is locked up is hindered in his or her ability to

gather evidence, contact witnesses, or otherwise prepare his or her defense). 8

5. Balancing

¶101 With respect to balancing, the Supreme Court explained in Barker:

We regard none of the four factors identified above as either a
necessary or sufficient condition to the finding of a deprivation of the right
of speedy trial. Rather, they are related factors and must be considered
together with such other circumstances as may be relevant. In sum, these
factors have no talismanic qualities; courts must still engage in a difficult
and sensitive balancing process. But, because we are dealing with a
fundamental right of the accused, this process must be carried out with full
recognition that the accused’s interest in a speedy trial is specifically
affirmed in the Constitution.

Barker, 407 U.S. at 533, 92 S. Ct. at 2193 (footnote omitted).

¶102 We have made similar observations, see e.g. State v. Johnson, 2000 MT 180, ¶ 14,

300 Mont. 367, ¶ 14, 4 P.3d 654, ¶ 14 (“No single factor of the Barker test is
8
As explained above in the context of Factor One’s second inquiry, both the
accused and the State should address the issue of prejudice. In this regard, we clarified in
State v. Hardaway, 1998 MT 224, 290 Mont. 516, 966 P.2d 125, that “if the State can
only show lack of prejudice on one of the three traditional bases of prejudice, it must, at a
minimum, address the question of whether there has been impairment of the defense.”
Hardaway, ¶ 22. We reaffirm this holding as a requirement of the State’s proof under
Factor Four.

54
indispensable or dispositive.” (internal quotation marks omitted)); State v. Highpine,

2000 MT 368, ¶ 14, 303 Mont. 422, ¶ 14, 15 P.3d 938, ¶ 14 (“Because no single factor is

by itself decisive, courts must still engage in a difficult and sensitive balancing process.”

(internal quotation marks omitted)), and we now reaffirm that none of the foregoing four

factors is either a necessary or a sufficient condition to the legal conclusion that the

accused has been deprived of the right to a speedy trial. Rather, the factors must be

considered together with such other circumstances as may be relevant. 9

¶103 As for each factor’s relative importance in the overall balancing, we indicated in

Bruce that we were adopting a method of analysis that includes features of both the

“straight balancing test” and the “motive test.” See Bruce, ¶ 54. The former “considers

each of the four factors equally, and no single factor is decisive,” Bruce, ¶ 51 (citing

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, 592-93 (1994)),

whereas the latter “gives greatest consideration to the second Barker factor, the reason for

delay,” Bruce, ¶ 53 (citing Brooks, 61 U. Chi. L. Rev. at 610).

¶104 The right to a speedy trial, however, is “necessarily relative” and “depends upon

circumstances.” United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 776 (1966)
9
For this reason, we overrule our statements to the contrary in State v. Olmsted,
1998 MT 301, ¶ 55, 292 Mont. 66, ¶ 55, 968 P.2d 1154, ¶ 55 (“The fourth factor of the
Barker test, prejudice to the defendant, must be demonstrated by the defendant before
there is a speedy trial violation.”), State v. Foshee, 282 Mont. 326, 333, 938 P.2d 601,
605 (1997) (“A criminal defendant must somehow show that he or she has been
prejudiced by the delay before this Court will hold that the State has violated his or her
right to a speedy trial.”), and State v. Mooney, 2006 MT 121, ¶ 17, 332 Mont. 249, ¶ 17,
137 P.3d 532, ¶ 17 (“Because we conclude that Mooney has not satisfied the prejudice
prong of the Barker test, we decline to address the first and second prongs.”).

55
(internal quotation marks omitted). As such, speedy trial analysis is necessarily case-

specific. A defendant whose trial has been delayed twelve months due to stonewalling by

the State, but who has not objected to the delay and has not been prejudiced to any

significant degree by the delay, presents a markedly different claim than does a defendant

whose trial also has been delayed twelve months due to stonewalling by the State, but

who has repeatedly demanded a speedy trial during this period and has been prejudiced to

a significant degree by the delay.

¶105 For this reason, we decline to state, as a general rule, that Factor Two (the reason

for the delay)—or any other factor, for that matter—deserves the “greatest consideration”

in the balancing. Rather, each factor’s significance will vary from case to case, and a

court assessing a speedy trial claim must weigh the four factors accordingly—i.e., based

on the facts and circumstances of the particular case. For example, if the length of the

delay is great enough, or if the State is sufficiently culpable in causing delay, a lesser

showing of prejudice is necessary. On the other hand, if prejudice is extreme, the length

of the delay required to establish a violation of the right is less. This approach, which is

consistent with the “straight balancing test” (see Bruce, ¶ 51), best reflects the inherently

case-specific nature of speedy trial claims and the reality that a given factor may

outweigh all of the others in one case but be of little consequence in another.

D. Summary of the Revised Speedy Trial Test

¶106 In sum, we are revising our framework for analyzing speedy trial claims so that it

more closely tracks the balancing approach envisioned by the Supreme Court in Barker,

56
Doggett, and other post-Barker cases. A court presented with a speedy trial claim is to

analyze and then balance the following four factors.

¶107 Factor One: The Length of the Delay. Under Factor One, the court first ascertains

whether the interval between accusation and trial is at least 200 days (irrespective of fault

for the delay). If it is not, then further analysis is unnecessary, and the claim should be

denied; but if the interval is at least 200 days, then the four-factor balancing test is

triggered and the court must proceed with a full analysis. Second, the court considers the

extent to which the delay (again, irrespective of fault for the delay) stretches beyond the

200-day trigger date. The significance of this latter determination is twofold. First, the

presumption that pretrial delay has prejudiced the accused intensifies over time. Thus,

the further the delay stretches beyond the trigger date, the stronger is the presumption

under Factor Four that the accused has been prejudiced by the delay. Second, the State’s

burden under Factor Two to justify the delay likewise increases with the length of the

delay. Thus, the further the delay stretches beyond the 200-day trigger date, the more

compelling the State’s justifications for the delay must be under Factor Two.

¶108 Factor Two: The Reasons for the Delay. Under Factor Two, the court first

identifies each period of delay in bringing the accused to trial. The court then attributes

each period of delay to the appropriate party, with any delay not demonstrated to have

been caused by the accused or affirmatively waived by the accused being attributed to the

State by default. Finally, the court assigns weight to each period of delay based on the

specific cause and motive for the delay. Reasons for the delay may include institutional

circumstances, such as overcrowded court dockets, and “valid” reasons, such as a missing

57
witness. Both of these types of delay weigh less heavily against the State than do lack of

diligence in bringing the accused to trial, which occupies a middle ground on the

culpability scale, and bad-faith delay, such as a deliberate attempt to hamper the defense,

which is weighed most heavily against the State. Weight is similarly assigned to

acceptable and unacceptable reasons for delay caused by the accused.

¶109 The significance of Factor Two in the balancing process, therefore, is in the

specific cause and culpability for each period of delay. The more delay caused by the

State for “unacceptable” reasons (e.g., lack of diligence or bad-faith delay), the more

likely the accused’s speedy trial right has been violated. Likewise, the more delay caused

by the accused for such reasons (e.g., to avoid being brought to trial), the less likely the

right has been violated.

¶110 Factor Three: The Accused’s Responses to the Delay. Under Factor Three, the

court evaluates the accused’s responses to the delay—i.e., his or her acquiescence in and

objections to pretrial delays. The number of instances in which the accused acquiesces in

or objects to pretrial delay is not talismanic. Rather, the court’s evaluation must be based

on the surrounding circumstances, such as the timeliness, persistence, and sincerity of the

objections, the reasons for the acquiescence, whether the accused was represented by

counsel, the accused’s pretrial conduct (as that conduct bears on the speedy trial right),

and so forth. The sum of this evaluation—i.e., the totality of the accused’s various

responses to the delays in bringing him or her to trial—is indicative of whether he or she

actually wanted a speedy trial, which in turn informs the inquiry into whether there has

58
been a deprivation of the right. The evaluation also serves as a gauge of the weights the

court should assign to the other three factors in the balancing.

¶111 Factor Four: Prejudice to the Accused. Under Factor Four, the court assesses

whether the accused has been prejudiced by the delay in light of the interests that the

speedy trial right was designed to protect—namely, (i) preventing oppressive pretrial

incarceration, (ii) minimizing anxiety and concern caused by the presence of unresolved

criminal charges, and (iii) limiting the possibility that the accused’s ability to present an

effective defense will be impaired. With respect to the first interest, the court considers

whether the pretrial incarceration is “oppressive” in light of all of the circumstances of

the incarceration. With respect to the second interest, the issue is whether the delay in

bringing the accused to trial has unduly prolonged the disruption of his or her life or

aggravated the anxiety and concern that are inherent in being accused of a crime. And

with respect to the third interest, the court considers whether the delay has weakened the

accused’s ability to raise specific defenses, elicit specific testimony, or produce specific

items of evidence. However, because affirmative proof of particularized prejudice is not

essential to every speedy trial claim, impairment of the defense may be evaluated based

on other factors in the analysis, such as the length of the delay (the greater the delay, the

greater the erosion of exculpatory evidence and testimony), the accused’s responses to

the delay (the more imperiled the accused’s ability to present an effective defense

becomes, the more likely he or she is to complain about the delay), and the duration of

the pretrial incarceration (an accused who is locked up is hindered in his or her ability to

gather evidence, contact witnesses, or otherwise prepare his or her defense).

59
¶112 Balancing. Lastly, the court determines whether the accused has been deprived of

the right to a speedy trial by balancing each of the foregoing four factors. No one factor

is dispositive by itself; rather, the factors are related and must be considered together with

such other circumstances as may be relevant.

¶113 For the convenience of the bench and bar, we are providing the following outline

of our revised speedy trial test.

I. Factor One: The Length of the Delay
A. Is the delay long enough to trigger the four-factor balancing test?
1. When did the defendant become an accused?
2. When is the defendant’s trial date?
3. Is the interval between accusation and trial at least 200 days?
B. To what extent does the delay stretch beyond the trigger date?
1. The presumption that pretrial delay has prejudiced the accused
intensifies over time; thus, as the delay gets longer, the quantum of
proof that may be expected of the accused under Factor Four
decreases, while the quantum of proof that may be expected of the
State under Factor Four simultaneously increases.
2. The State’s burden under Factor Two to justify the delay likewise
increases with the length of the delay; thus, the further the delay
stretches beyond the 200-day trigger date, the more compelling the
State’s justifications under Factor Two must be.
II. Factor Two: The Reasons for the Delay
A. Identify each period of delay in bringing the accused to trial.
B. Attribute each period of delay to the appropriate party.
1. The prosecution bears the burden of explaining the pretrial delays.
2. Any delay not demonstrated to have been caused by the accused or
affirmatively waived by the accused is attributed to the State by
default.
C. Assign weight to each period of delay based on the specific cause and
culpability for the delay.

60
 1. Bad-faith delay, such as a deliberate attempt to gain a tactical
advantage or to avoid trial, weighs heavily against the party that
caused it.
2. Negligence or lack of diligence in bringing the accused to trial
occupies the middle ground on the culpability scale. It is weighed
more lightly against the State than a deliberate attempt to hamper the
defense, but it still falls on the wrong side of the divide between
acceptable and unacceptable reasons for delaying a criminal
prosecution once it has begun.
3. Delay inherent in the criminal justice system and caused by
circumstances largely beyond the control of the prosecutor and the
accused is “institutional delay,” which is attributed to the State but
weighs less heavily against the State than bad-faith delay and lack of
diligence.
4. Delay for “valid” reasons, such as a missing witness or a particularly
complex charged offense, is weighed least heavily of all the types of
delay.
III. Factor Three: The Accused’s Responses to the Delay
A. Evaluate the accused’s responses to the delay—i.e., his or her acquiescence
in and objections to pretrial delays—in light of the surrounding
circumstances. Some considerations:
1. The timeliness, persistence, and sincerity of the objections
2. The reasons for the acquiescence
3. Whether the accused was represented by counsel
4. The accused’s pretrial conduct (as that conduct bears on the speedy
trial right)
B. The totality of the accused’s various responses to the delays in bringing him
or her to trial is indicative of whether he or she actually wanted a speedy
trial, which in turn informs the inquiry into whether there has been a
deprivation of the right.
C. The totality of the accused’s various responses to the delays also serves as a
gauge of the weights the court should assign to the other three factors in the
balancing.
IV. Factor Four: Prejudice to the Accused
A. Was the pretrial incarceration oppressive, given the circumstances of that
incarceration? Some considerations:
1. Duration of the incarceration

61
 2. The complexity of the charged offense(s)
3. Any misconduct on the part of the accused directly related to the
pretrial incarceration
4. The conditions of the incarceration
B. Has the delay in bringing the accused to trial unduly prolonged the
disruption of his or her life caused by the presence of unresolved criminal
charges or aggravated the anxiety and concern that are inherent in being
accused of a crime? Some considerations:
1. Public scorn or obloquy; damage to reputation in the community
2. Deprivation of employment
3. Drain of financial resources or economic hardship
4. Curtailment of associations
C. Has the accused’s ability to present an effective defense been impaired by
the delay? Some considerations:
1. The availability of witnesses and their ability to recall accurately
events related to the charged offense(s)
2. The accused’s ability to raise specific defenses, elicit specific
testimony, or produce specific items of evidence
3. The length of the delay (excessive delay presumptively compromises
the reliability of a trial in ways that neither party can prove or, for
that matter, identify)
4. The accused’s responses to the delay (the more imperiled the
accused’s ability to present an effective defense becomes, the more
likely he or she is to complain about the delay)
5. The duration of the pretrial incarceration (an accused who is locked
up is hindered in his or her ability to gather evidence, contact
witnesses, or otherwise prepare his or her defense)
V. Balancing
A. Given the length of the delay, the cause and culpability for each period of
delay, the totality of the accused’s responses to the delay, the strength of
the presumption of prejudice in the case, and the strength of the parties’
respective showings on the issue of prejudice, has the accused been
deprived of his or her right to a speedy trial?
B. None of the four factors is either a necessary or a sufficient condition to the
legal conclusion that the accused has been deprived of the right. Rather, the

62
 four factors must be considered together with such other circumstances as
may be relevant.

E. Timing of the Motion and Ruling by the Court

¶114 We noted in Bruce, “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.” Bruce, ¶ 57. Thus, we

stated that “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.” Bruce, ¶ 57; see also State v. Kipp, 1999 MT 197, ¶ 12, 295

Mont. 399, ¶ 12, 984 P.2d 733, ¶ 12 (“When a defendant files an ‘eve of trial’ motion,

which raises a complex legal issue or requires an evidentiary hearing which thereby

makes the original trial date impracticable, the reasonable period of delay caused thereby

is attributable to the defendant.”).

¶115 The negative implication of this ten-day rule is that any delay directly attributable

to a speedy trial motion that is filed ten or more days prior to the commencement of trial

will be assigned to the State. This time frame, in our view, is too short and places on the

State an unwarranted amount of responsibility for a trial postponement. To be sure, it is

not the accused’s duty to ensure that the briefing and argument schedule proceeds in a

manner that will insure that he or she is prosecuted in a timely fashion. Kipp, ¶ 14.

However, due consideration of a speedy trial motion generally requires time for an

evidentiary hearing and a careful analysis of the facts pursuant to the four-factor

63
balancing test set forth above (not to mention the time required for the parties to brief the

issues fully), which cannot realistically be accomplished in less than thirty days without

postponing the existing trial date.

¶116 Accordingly, we are modifying Bruce’s ten-day rule such that any delay directly

attributable to the filing of a speedy trial motion less than thirty days prior to the

scheduled trial date should be charged to the accused. Conversely, any delay directly

attributable to the filing of such a motion thirty or more days prior to the scheduled trial

date should be charged to the State (as institutional delay). We believe that this rule

equitably balances responsibility for any such delay and affords the court and the parties

a reasonable time frame in which to address the speedy trial motion fully.

¶117 We also stated in Bruce that “once a motion to dismiss for denial of speedy trial

has been made, . . . it [must] be ruled upon by the district court before commencement of

trial.” Bruce, ¶ 57. We reaffirm this requirement and add that the court must, of

necessity, enter findings of fact and conclusions of law with respect to each of the four

factors and how the four factors were balanced against each other. Without these

findings of fact and conclusions of law, appellate review of the court’s final disposition

of the claim is, as a practical matter, impossible, and we will be forced to remand the case

to the trial court in such situations.

¶118 With that, we now turn to Ariegwe’s speedy trial claim.

II. Standard of Review

¶119 A court presented with a speedy trial claim must first make factual findings and

then determine whether the factual circumstances amount to a speedy trial violation. We,

64
in turn, review the factual findings underlying the court’s speedy trial ruling to determine

whether those findings are clearly erroneous. State v. Spang, 2007 MT 54, ¶ 7, 336

Mont. 184, ¶ 7, 153 P.3d 646, ¶ 7. The court’s findings of fact are clearly erroneous if

they are not supported by substantial credible evidence, if the court has misapprehended

the effect of the evidence, or if a review of the record leaves this Court with the definite

and firm conviction that a mistake has been made. Ray v. Nansel, 2002 MT 191, ¶ 19,

311 Mont. 135, ¶ 19, 53 P.3d 870, ¶ 19. However, whether the defendant has been

denied a speedy trial—i.e., whether the factual circumstances, when evaluated pursuant

to the four-factor balancing test, amount to a speedy trial violation—is a question of

constitutional law. Bruce, ¶ 18; Spang, ¶ 7. We review a trial court’s conclusions of law

de novo to determine whether the court’s interpretation and application of the law are

correct. Bruce, ¶ 18; Spang, ¶¶ 7, 32.

III. Application of the Balancing Test to Ariegwe’s Speedy Trial Claim

¶120 Although the District Court and the parties analyzed Ariegwe’s speedy trial

motion in accordance with the approach articulated in Bruce, which we have now

clarified and modified in several significant respects, we find it unnecessary to vacate the

court’s ruling and remand this case for reconsideration in light of the clarifications and

modifications set forth above. See e.g. State v. Hardaway, 1998 MT 224, ¶ 13, 290

Mont. 516, ¶ 13, 966 P.2d 125, ¶ 13 (remanding for reconsideration in light of Bruce).

The factual record before us, which includes a complete transcript of the parties’

arguments at the hearing on Ariegwe’s motion, is well-developed, thus enabling us to

evaluate his speedy trial claim pursuant to the revised speedy trial test. Moreover,

65
because the process by which the four factors are to be analyzed and balanced under our

revised speedy trial test is substantially different from our approach under the Bruce test,

we believe that it would be helpful and appropriate to illustrate that process for the

benefit of the courts and the litigants who will be applying the test in future cases. Cf.

Bruce, ¶¶ 59-75 (applying the approach articulated therein to the facts of that case).

Accordingly, we will proceed with an analysis of Ariegwe’s speedy trial claim.

A. Analysis of the Four Factors

1. Factor One: The Length of the Delay

¶121 The threshold question is whether the interval between accusation and Ariegwe’s

scheduled trial date (March 1, 2004) is at least 200 days, thereby triggering further

speedy trial analysis. The District Court found the interval to be 388 days; however, this

finding was based on an incorrect determination of when the speedy trial clock began to

run. Although the court’s error does not change the outcome under this threshold

question (the court ultimately concluded, correctly, that further speedy trial analysis was

required), it is still necessary, for purposes of the analysis below, to ascertain the correct

length of the delay.

¶122 Relying on Bruce, ¶ 55 (“We will first consider the length of delay from the time

charges are filed . . . until the defendant’s trial date.” (emphasis added)), the District

Court measured from the date the State filed the original Information (February 7, 2003).

However, as clarified above:

[T]he protection afforded by the [speedy trial] guarantee is activated when a
criminal prosecution has begun and extends to those persons who have
been formally accused or charged in the course of that prosecution whether

66
 that accusation be by arrest, the filing of a complaint, or by indictment or
information.

State v. Larson, 191 Mont. 257, 261, 623 P.2d 954, 957-58 (1981) (emphasis added).

Here, Ariegwe became an “accused” for speedy trial purposes on January 18, 2003, when

he was arrested in relation to the charges subsequently filed on February 7. Thus, the

interval between accusation and trial was 408 days.

¶123 The second inquiry under Factor One is the extent to which the delay stretches

beyond the 200-day trigger date. Here, the delay in bringing Ariegwe to trial stretched

208 days beyond the trigger date—more than twice the amount of delay that is considered

sufficiently prejudicial to trigger the speedy trial test. As a result, the State must provide

particularly compelling justifications for the delay under Factor Two; and under Factor

Four, the State must make a highly persuasive showing that Ariegwe was not prejudiced

by the delay, while the quantum of proof that may be expected of Ariegwe under this

factor is correspondingly lower.

2. Factor Two: The Reasons for the Delay

¶124 The issue under Factor Two is whether the justifications proffered by the State for

the various periods of delay weigh for or against the conclusion that Ariegwe was

deprived of his right to a speedy trial. To make this determination, it is necessary to

identify each period of delay in bringing Ariegwe to trial, to attribute each period of delay

to the State or Ariegwe, and to assign appropriate weight to each period of delay based on

the specific cause and culpability.

67
¶125 First Trial Setting: The first trial date set in this case was May 13, 2003, which the

District Court selected at Ariegwe’s February 20, 2003 arraignment. This constitutes a

115-day delay (measured from January 18, 2003, the date on which Ariegwe became an

accused). The District Court attributed one of these days to Ariegwe because he had filed

a request for substitution of judge on February 18, 2003. However, the question here is

one of “delay,” and Ariegwe’s request did not result in a later trial date. Thus, all 115

days are attributable to the State. This delay, however, is of the type inherent in the

criminal justice system due to the court’s docket and built-in requirements such as

reciprocal discovery, the omnibus and status hearings, and pretrial motions. As such, the

115 days constitute institutional delay.

¶126 Second Trial Setting: The second trial date was September 15, 2003, which added

an additional 125 days of delay. The District Court charged 20 days of this delay to

Ariegwe “as a result of the Court’s scheduling accommodation of defense counsel’s

summer vacation.” The remaining 105 days were charged to the State “because it was

caused by the State’s failure to timely provide discovery to the defendant”—a finding

that is supported by substantial credible evidence in the record. Specifically, the

prosecution was twice ordered to comply with § 46-15-322, MCA (requiring the

prosecutor, upon request, to make enumerated items within his or her control available to

the defendant for examination and reproduction)—first in the District Court’s February

20, 2003 Order Setting Trial Date, Requiring Discovery, and Setting Omnibus Hearing,

and second in the court’s March 19, 2003 Omnibus Hearing Memorandum and Order.

However, the prosecution did not fully comply with these discovery orders. Thus, in his

68
Pretrial Motions filed April 15, 2003, Ariegwe stated that he had been unable “to carry

out [his] pretrial factual and legal investigation and otherwise prepare for trial.” Of

particular concern was the hard drive of his computer, which he believed might contain

exculpatory evidence. In response, the prosecutor explained that while the computer had

been seized at the time of the initial search of Ariegwe’s living quarters (on January 18,

2003), a detective had not been assigned to this case. “And so rather than sending the

computer over to Helena to the Department of Justice, it was sitting in Evidence.”

¶127 This justification does not suggest a deliberate attempt to delay the trial in order to

hamper Ariegwe’s defense; rather, it suggests a combination of understaffing and lack of

diligence on the part of the State. Such delay occupies the middle ground on the

culpability scale, though the lack of diligence is clearly “on the wrong side of the divide

between acceptable and unacceptable reasons for delaying a criminal prosecution once it

has begun,” Doggett, 505 U.S. at 657, 112 S. Ct. at 2693.

¶128 Accordingly, of the 125 days of delay resulting from the second trial setting, 105

days are attributable to the State as a result of understaffing and lack of diligence 10 and

20 days are attributable to Ariegwe as a result of the District Court’s scheduling

accommodation of defense counsel’s summer vacation.

¶129 Third Trial Setting: The third trial date was October 27, 2003, which added an

additional 42 days of delay. This postponement was the result of the prosecutor’s

10
Lack of diligence weighs more heavily against the State than lack of personnel;
however, while it is unclear from the record before us how many of the 105 days were
due to one and how many were due to the other, the correct allocation would not change
our ultimate conclusion under this Factor (explained below).

69
September 9, 2003 motion to continue and, thus, was attributed by the District Court to

the State. As for categorizing this delay (e.g., as bad-faith, lack of diligence, institutional,

or for valid reasons), the motion does not disclose the particular reason for the

prosecutor’s request. A postponement brought about by a motion that does not reveal the

basis therefor is presumed to be unjustified and is weighed heavily against the proponent,

unless evidence elsewhere in the record establishes otherwise. See Morris v. Wyrick, 516

F.2d 1387, 1390 (8th Cir. 1975) (assuming on a record that did not reveal the reason for

the delay that there was no justifiable reason and, accordingly, weighing that delay

heavily against the state). Here, the record reveals that the motion was necessitated by

the State’s delay in delivering evidence for testing at the crime lab. Thus, the 42 days are

attributable to the State as the result of lack of diligence.

¶130 Fourth Trial Setting: The fourth trial date was November 24, 2003, which added

an additional 28 days of delay. This postponement was the result of the prosecutor’s

October 10, 2003 motion to continue, which she filed on the ground that “the evidence in

this matter is currently being tested at the Montana State Crime Laboratory, and . . . the

testing will not be completed in time for the current trial setting.” This delay, which the

District Court charged to the State, is institutional in nature.

¶131 Fifth Trial Setting: The fifth trial date was December 8, 2003, which added an

additional 14 days of delay. This postponement was the result of a sua sponte order by

the District Court due to a conflict in the court’s calendar. As such, it is institutional.

¶132 Sixth Trial Setting: The sixth trial date was January 5, 2004, which added an

additional 28 days of delay. This postponement was the result of Ariegwe’s November

70
25, 2003 motion to continue, which he filed on the ground that the parties were still

waiting for test results from the crime lab. The delay, which the District Court correctly

charged to the State, is institutional.

¶133 Seventh Trial Setting: The seventh, and final, trial date was March 1, 2004, which

added an additional 56 days of delay. This postponement was the result of Ariegwe’s

December 22, 2003 motion to continue, which he filed on the grounds that he had not yet

received the trace evidence report and that he needed time to review the serology and

DNA report, which he had received four days earlier. The District Court vacated the

January 5, 2004 trial date and scheduled a status hearing for January 22, 2004. At that

hearing, defense counsel stated that he had received all crime lab reports, and the court

and the parties then agreed on the March 1 trial date. In attributing this period of delay,

the District Court determined that the State’s failure to produce the crime lab reports in a

timely manner had necessitated Ariegwe’s motion to continue. Thus, the court attributed

the 56 days to the State as institutional delay.

¶134 Summary: In sum, the interval between accusation and trial in this case was 408

days. Of that, 241 days are attributable to the State as institutional delay, 42 days are

attributable to the State due to lack of diligence, and 105 days are attributable to the State

as delay caused in part by understaffing and in part by lack of diligence, for a total of 388

days. Ariegwe is responsible for the remaining 20 days, which were the result of the

District Court’s scheduling accommodation of defense counsel’s summer vacation.

¶135 As discussed under Factor One, the State was required to provide particularly

compelling justifications for the delay in this case, given the extent to which the delay

71
stretched beyond the 200-day trigger date. The foregoing analysis establishes, however,

that 95% of the delay in this case is attributable to the State. Significantly, more than half

of the State’s delay was institutional in nature (i.e., due to circumstances largely beyond

the prosecutor’s control), but that fact takes the State only so far, given that the primary

burden to assure that cases are promptly brought to trial is “on the courts and the

prosecutors,” Barker, 407 U.S. at 529, 92 S. Ct. at 2191. In this regard, a significant

portion of the delay here was necessitated, according to the District Court, by “the State’s

failure to timely provide discovery to the defendant” and “the State’s failure to timely

produce the [crime lab] reports.” The fact that evidence seized from Ariegwe’s living

quarters was left “sitting in Evidence” for several months, rather than being promptly sent

to the crime lab for analysis, is inconsistent with a diligent prosecution of this case. For

these reasons, we conclude that Factor Two weighs in favor of the conclusion that

Ariegwe was deprived of his right to a speedy trial.

3. Factor Three: The Accused’s Responses to the Delay

¶136 The focus under Factor Three is on the accused’s responses to the delay, which are

evaluated based on the surrounding circumstances. The totality of the accused’s

responses—which is indicative of whether he or she actually wanted a speedy trial—is

then balanced with the other three factors in the overall balancing.

¶137 During the time period at issue here, however, Ariegwe was operating under our

Bruce test, which required only that the right to a speedy trial be “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.” Bruce, ¶ 57. There is no suggestion in

72
Bruce’s articulation of Factor Three that a court may infer, based on the timing of the

accused’s assertion of the right and the accused’s other responses to pretrial delays, that

he did or did not want a speedy trial. Indeed, we stated 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
inappropriate.

Bruce, ¶ 48.

¶138 For these reasons, any inference that Ariegwe did or did not want a speedy trial,

given the timing of his motion to dismiss on speedy trial grounds and his other responses

to pretrial delays, would be of questionable accuracy. On the other hand, as explained

above, we are applying the revised speedy trial test to the facts of this case to illustrate

the process for the benefit of the courts and the litigants who will be applying the test in

future cases, and omitting an analysis of revised Factor Three would undermine that goal.

Under these circumstances, therefore, we will proceed with a full analysis of Factor

Three in this case; however, we will accord little weight to this factor in the overall

balancing, given that Ariegwe was operating under the mandates of Bruce.

¶139 We begin by noting that Ariegwe filed his motion to dismiss on January 26, 2004

(35 days before trial). However, as a general rule the mere fact that the accused filed a

motion to dismiss on speedy trial grounds sometime prior to the commencement of trial is

itself of little probative value on the question of whether the right has been violated.

Rather, we must view the assertion of the right in the context of the case as a whole.

73
¶140 In this regard, we observe that Ariegwe’s motion was filed on the 373rd day of the

delay in this case. (Actually, he first asserted his speedy trial right four days earlier at the

January 22, 2004 status hearing and indicated that a written motion would be

forthcoming.) If not for the fact that he was operating under the mandates of Bruce,

Ariegwe’s waiting this long past the 200-day trigger date to assert the right would suggest

that he was not particularly interested in being brought to trial sooner. 11

¶141 Other facts in the record, however, support a contrary conclusion. For instance,

during the period immediately following his arraignment, Ariegwe requested a number of

discoverable items from the State (e.g., his computer hard drive, certain physical

evidence, photographs taken by the police, medical records concerning the examination

and treatment of K.M., the tape-recording of the conversation between K.M. and R.K.,

and telephone records); and when the State did not respond to these requests, which

Ariegwe had made “on an informal basis,” he filed his April 15, 2003 Pretrial Motions

asking the court to order the State to provide the items. Such persistence in the early

stages of this case appears elsewhere in the record, suggesting that Ariegwe sought to

move the case along, not to delay it. Indeed, as noted under Factor Two, he was

responsible for only 20 days of the 408-day delay in this case, which indicates no

stonewalling on his part. Furthermore, although Ariegwe appears to have acquiesced in

11
We do not mean by this that an accused must assert the speedy trial right on Day
201 or that an accused should object to every continuance requested by the prosecutor.
Cooperation is essential to completing discovery matters in a timely manner. Rather, we
note the timing of the motion merely as one consideration among many; it is certainly not
entitled to dispositive weight.

74
some of that delay, he explained in his affidavit attached to his motion to dismiss as

follows:

I do understand that my attorneys have on three occasions requested
trial be delayed. To the extent that I was consulted at all, I only consented
to these delays because my attorneys convinced me delay, no matter how
painful to me personally, was necessary to obtain and have the opportunity
to review what might be essential evidence.

Given these circumstances, it appears that Ariegwe wanted to be brought to trial sooner

rather than later.

¶142 In Barker, the Supreme Court observed:

The more serious the deprivation, the more likely a defendant is to
complain. The defendant’s assertion of his speedy trial right, then, is
entitled to strong evidentiary weight in determining whether the defendant
is being deprived of the right.

Barker, 407 U.S. at 531-32, 92 S. Ct. at 2192-93. Here, Ariegwe did “complain” about

the State’s delay in providing discovery (which necessitated the first postponement), but

no additional complaints appear in the record until the January 22, 2004 status hearing—

the 369th day of the delay—when defense counsel indicated that he would be filing a

motion to dismiss on speedy trial grounds. While these facts would be entitled to

significant weight in a case where the accused was operating under the revised speedy

trial test, we accord them little weight here since Ariegwe was operating under the Bruce

test. We simply observe that the totality of Ariegwe’s various responses to the pretrial

delays in this case, including his apparent reluctance to acquiesce in delay

notwithstanding the advice of counsel, is consistent with a desire to be brought to trial.

Thus, we conclude that Factor Three weighs slightly in favor of the conclusion that

75
Ariegwe was deprived of his right to a speedy trial, though we will accord this factor

little weight in the overall balancing.

4. Factor Four: Prejudice to the Accused

¶143 Lastly, the issue under Factor Four is whether Ariegwe was prejudiced as a result

of the delay in bringing him to trial. As explained above, a presumption that the accused

has been prejudiced by the delay arises on the 200-day trigger date for speedy trial

analysis (at which point it is minimal) and intensifies over time. Thus, while both parties

should come forward with evidence on the question of prejudice, the court must weigh

each party’s evidence (or lack thereof) in light of this intensifying presumption.

Specifically, as the delay gets longer, the necessary showing by the accused of

particularized prejudice decreases while the necessary showing by the State of no

prejudice simultaneously increases. For purposes of this case, we concluded under Factor

One that the presumption had intensified to the point at which the State must make a

highly persuasive showing that Ariegwe was not prejudiced by the delay, while the

quantum of proof that may be expected of Ariegwe under this factor is correspondingly

lower.

¶144 Prejudice is assessed in light of the interests that the speedy trial right was

designed to protect: preventing oppressive pretrial incarceration, minimizing anxiety and

concern caused by the presence of unresolved criminal charges, and limiting the

possibility that the accused’s ability to present an effective defense will be impaired.

Here, the extent of Ariegwe’s pretrial incarceration was four days following his arrest,

which he conceded in the District Court was not oppressive. Likewise, in response to the

76
State’s argument that all of the potential evidence in the case had been preserved and that

all of Ariegwe’s potential witnesses were available to testify at trial, he conceded that he

could not point to any specific impairment of his ability to present an effective defense

(though he did point out that a certain amount of impairment—e.g., dimming

memories—must be presumed given the length of the delay).

¶145 Accordingly, Ariegwe emphasized the interest in minimizing anxiety and concern.

In an affidavit attached to his motion to dismiss, he described numerous consequences

that had flowed from the existence of the charges against him. Specifically, his being

accused of sexual relations with a minor had caused tension between him and his ex-wife

(with whom he shared a residence), and they had sought counseling as a result. Their

oldest child had been taunted at school. Ariegwe had resigned his position as a counselor

to troubled youth at A.W.A.R.E., Inc. because the charges were “so especially

humiliating due to the nature of my work.” He stated that the pendency of the charges

was precluding him from employment in his chosen field as a youth counselor and was

making employment opportunities in other fields uncertain. Lastly, acknowledging that

“all defendants suffer at least some distress,” he asserted that his “is particularly acute in

that I live with not only the prospect of imprisonment and disqualification from my

chosen employment, I also face deportation [to Nigeria]” and “loss of the society of my

children.”

¶146 Ariegwe attached two supporting exhibits to his affidavit. One was a December

15, 2003 letter from a licensed clinical social worker and board certified psychotherapist,

who stated that Ariegwe was experiencing “moderate to at times a severe level of

77
anxiety.” The other was a November 22, 2003 letter from Ariegwe’s ex-wife, who stated

that she had been having trouble sleeping at night, was fearful of what people were

thinking about her and her family, and was worried about the effects the case was having

on her children. She also testified to this effect at the speedy trial hearing.

¶147 Unquestionably, the experiences described by Ariegwe and his ex-wife constitute

disruptions to his life, which in turn created anxiety and concern in him and his family.

However, the speedy trial guarantee serves “to shorten the disruption of life caused by

arrest and the presence of unresolved criminal charges,” MacDonald, 456 U.S. at 8, 102

S. Ct. at 1502 (emphasis added), not to eliminate the disruption altogether. Thus, the

question here is whether the delay in bringing Ariegwe to trial unduly prolonged the

disruption or aggravated the anxiety and concern that are inherent in being accused of a

crime. Furthermore, as the prosecutor correctly pointed out during the speedy trial

hearing, the focus is on the anxiety and concern experienced by Ariegwe, to whom the

speedy trial right applies; the anxiety and concern experienced by his family are relevant

only to the extent that they affected the anxiety and concern experienced by Ariegwe.

¶148 In response to Ariegwe’s motion and affidavit, the State took the position that the

anxiety and concern cited by Ariegwe were not caused by the delay in bringing him to

trial. For instance, the prosecutor argued that Ariegwe’s decision to resign his position as

a youth counselor was due to the nature of the charges against him, which he had

characterized as “especially humiliating.” Likewise, she contended that his concern

about a future devoid of contact with his children was due to the possibility that he would

be deported upon conviction, not the delay in bringing him to trial. She acknowledged

78
that the delay may have contributed to the strain on his relationship with his ex-wife, but

she opined that this strain was due more to the nature of the charged offenses than to the

length of the delay.

¶149 In response to the prosecutor’s argument, Ariegwe pointed out that although some

of the anxiety and concern articulated in his affidavit was either inherent in being charged

with a crime or due to the nature of the charged offenses, “there’s a difference between

being subject to these kinds of stressors in one’s life for a period of 90 days or 180 days

. . . and being subjected to those stresses for a period of 380 days.” The District Court,

however, ultimately agreed with the State, finding that “the primary source” of Ariegwe’s

anxiety and concern was the nature of the charged offenses and that while the delay in

bringing him to trial had “contributed somewhat” to Ariegwe’s anxiety and concern, “it

did not substantially aggravate it . . . to the extent warranting dismissal on that factor

alone.”

¶150 Ariegwe assigns error to the District Court’s analysis on two grounds. First, he

claims that the court erroneously required him “to apportion his anxiety and concern

between the nature of the offense charged, and the delay.” Such apportionment,

however, is necessary, given that the speedy trial guarantee serves to shorten the

disruption of life caused by the presence of unresolved criminal charges, not to make the

criminal charges themselves less “humiliating” or unsettling. On the other hand, Ariegwe

is correct that anxiety and concern caused by the nature of the charged offenses may be

unduly prolonged in a given case. But he has not demonstrated that his anxiety and

79
concern were unduly prolonged in this case. Accordingly, we conclude that the District

Court’s apportionment of Ariegwe’s anxiety and concern is not clearly erroneous.

¶151 Second, Ariegwe claims that the District Court erroneously required him to show

“a demonstrable, direct effect” that the delay had on his anxiety and concern and his

ability to present an effective defense. Relying on Doggett, he argues that “a requirement

that the accused demonstrate actual, provable prejudice is inappropriate.” This

interpretation of Doggett, however, is too broad. It is true that “consideration of

prejudice is not limited to the specifically demonstrable,” that “excessive delay

presumptively compromises the reliability of a trial in ways that neither party can prove

or, for that matter, identify,” and that “affirmative proof of particularized prejudice is not

essential to every speedy trial claim.” Doggett, 505 U.S. at 655, 112 S. Ct. at 2692, 2693.

However, as explained above, the extent to which an accused may rely on presumptive

prejudice depends on the extent to which the delay extends beyond the 200-day trigger

date. In the case at hand, while the presumption of prejudice did operate in Ariegwe’s

favor by requiring the State to make a highly persuasive showing that he had not been

prejudiced by the delay, the presumption was not so strong that Ariegwe was relieved

entirely of making a showing of some particularized prejudice. Accordingly, we

conclude that the District Court did not err in requiring a showing by Ariegwe of some

demonstrable prejudice.

¶152 Proceeding, then, with an evaluation of Factor Four, we conclude that the State

made the required highly persuasive showing that Ariegwe was not prejudiced by the

delay in bringing him to trial. First, the State demonstrated, and Ariegwe conceded, a

80
complete absence of oppressive pretrial incarceration. Second, the State demonstrated

that Ariegwe’s ability to present an effective defense had not been demonstrably

impaired. Third, the delay in this case somewhat aggravated the anxiety and concern that

are inherent in being accused of a crime; however, the State demonstrated, and the

District Court found, that “the primary source” of Ariegwe’s anxiety and concern was the

nature of the charged offenses. Taking these three considerations together, we conclude

that the State’s showing outweighs the presumption of prejudice established under Factor

One and that Factor Four, therefore, weighs against the conclusion that Ariegwe was

deprived of his right to a speedy trial.

B. Balancing

¶153 A court assessing a speedy trial claim must balance the four factors based on the

facts of the particular case and the weights assigned to each factor. None of the factors is

dispositive by itself; rather, the factors are related and must be considered together with

such other circumstances as may be relevant. But because the right to a speedy trial is a

fundamental right of the accused, this process must be carried out with full recognition

that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.

¶154 Here, Factor One weighs in Ariegwe’s favor. It establishes that a significant delay

of 408 days occurred in this case. Likewise, Factor Two weighs in Ariegwe’s favor,

given that 95% of the 408-day delay was attributable to the State and that the record

reflects a significant lack of diligence on the part of the State in providing discovery and

sending evidence to the crime lab in a timely manner. Factor Three weighs slightly in

Ariegwe’s favor; however, we are according this factor relatively little weight in the

81
overall balancing, given that Ariegwe was operating under the Bruce test during the time

period at issue here and, thus, the inferences we have drawn based on his responses to the

pretrial delays in this case are of questionable accuracy. We simply observe that the

totality of Ariegwe’s various responses is consistent with a desire to be brought to trial.

Finally, Factor Four weighs in the State’s favor. Although the delay in this case

somewhat aggravated the anxiety and concern that are inherent in being accused of a

crime, the State made a highly persuasive showing that Ariegwe’s anxiety and concern

were due primarily to the nature of the charged offenses rather than to the delay in

bringing him to trial.

¶155 We conclude that the State’s highly persuasive showing of no prejudice (Factor

Four) outweighs the extent of the delay (Factor One) and the State’s culpability in

causing the delay (Factor Two). We further conclude that although the totality of

Ariegwe’s responses to the pretrial delays in this case is consistent with a desire to be

brought to trial (Factor Three), the relatively little weight we have assigned to this factor

is not enough to tip the scale in Ariegwe’s favor. We therefore affirm the District Court’s

conclusion that Ariegwe was not deprived of his right to a speedy trial.

¶156 Issue Two. Did the District Court abuse its discretion in denying Ariegwe’s
motion for a new trial?

I. Background

¶157 Ariegwe contends that the District Court abused its discretion in not granting his

motion for a new trial. The basis of that motion was that (1) defense counsel’s failure to

object to allegedly improper hair comparison testimony by one of the State’s experts

82
during trial and (2) the prosecutor’s inaccurate representations of certain scientific

evidence during closing arguments had denied Ariegwe a fair and impartial trial.

Although the motion was specifically “premise[d] . . . on the conduct of both defense

counsel and the prosecutor,” Ariegwe has not renewed his claim based on defense

counsel’s failure to object to the hair comparison testimony. Accordingly, we will focus

only on the prosecutor’s closing arguments.

¶158 During trial, the State called Michelle Griffin, a forensic scientist specializing in

serology and DNA analysis at the State Crime Lab. Griffin had examined a blanket

seized from Ariegwe’s bed and found eight stains on the blanket. One of these stains

tested positive for amylase (an enzyme found in saliva), and a subsequent DNA analysis

revealed the presence of multiple contributors to the stain, two of whom could have been

K.M. and Ariegwe. More specifically, Griffin testified that K.M. and Ariegwe “cannot

be excluded as contributors to that mixture” and that “there is data there present [in the

stain] not associated with [K.M. and Ariegwe].”

¶159 Paraphrasing Griffin’s testimony during closing argument, the prosecutor stated

that the mixture of DNA found in the saliva stain, from which Ariegwe and K.M. could

not be excluded,

is consistent with the Defendant performing oral sex with [K.M.] on that
bed, and body fluids mixing and running onto that blanket. And that’s what
they found. Their genetic material was found on that bed, mixed together.
Right in the area where [K.M.] says this took place. [Emphasis added.]

Defense counsel did not object at this point to the prosecutor’s misstatement. Rather, he

pointed out during his closing argument that Griffin had testified only that K.M. and

83
Ariegwe “cannot be excluded” as contributors to the mixture of DNA found in the saliva

stain.

¶160 During her rebuttal, however, the prosecutor again suggested that K.M.’s and

Ariegwe’s DNA had, in fact, been found mixed together on the blanket. Specifically, she

argued that in order to buy Ariegwe’s story, the jury would have to believe that 15-year-

old K.M. was “so savvy and so smart” that she knew to plant forensic evidence to support

a claim of rape. “It’s ludicrous. She . . . knew that she needed to plant some of the

Defendant’s saliva with some of her vaginal fluid on that blanket in the very spot --” At

this point, defense counsel did object: “That is not supported by testimony, by any

evidence, as to the source of the DNA that they found. There’s no evidence. There was

no testimony as to any vaginal fluid.” The court sustained the objection.

Notwithstanding, the prosecutor then continued: “[K.M.] knew that she had to place

some form of DNA substance of hers mixed in with some DNA substance of his on the

blanket, at the very place where saliva is found, and she claims oral sex occurred.”

¶161 Following the prosecutor’s rebuttal, the judge called counsel to the bench for a

sidebar conference regarding his ruling on defense counsel’s objection. The judge stated

that the jury had probably not heard him sustain the objection, because he had done so

“under [his] breath.” Since he wanted to make sure that there were no errors in the case,

the judge indicated that he would instruct the jury that there was no evidence that

Ariegwe’s DNA had been found in any of K.M.’s vaginal fluid. The prosecutor and

defense counsel agreed, and the judge then instructed the jury as follows:

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 Before we proceed with deliberations, jurors, Mr. Sehestedt made an
objection during Miss Weber’s rebuttal argument that I sustained. I did that
almost under my breath. I’m not sure that that was audible to you.
And so that there’s no confusion in this case, I’m telling you for the
record right now that there is no evidence in this case that the Defendant’s
DNA was found in any vaginal fluid of the alleged victim in this case.

Immediately thereafter, the jurors began their deliberations.

¶162 In his motion for a new trial, Ariegwe argued that “[w]hile prosecutors have the

right to suggest inferences—identified as such—which they wish the jury to draw from

the evidence, they have no right to go beyond the record or make greater the weight of

the evidence presented.” He asserted that the prosecutor had done so in this case by

making “inaccurate and untrue representations about the evidence.”

¶163 The District Court agreed. In its order on Ariegwe’s motion, the court observed

that “the State’s counsel did in fact improperly and inaccurately represent to the jury that

‘[t]heir genetic material was found on that bed, mixed together’ ” (alteration in original).

The court further observed that “[t]he State’s counsel then compounded the problem

during rebuttal argument” when she suggested that K.M.’s vaginal fluid and Ariegwe’s

saliva had been found mixed together on the blanket. However, the court noted that it

had, sua sponte, given a curative instruction and that Ariegwe had not requested any

further clarification or curative instruction. Accordingly, the court concluded that “to the

extent that State’s counsel improperly or erroneously characterized the evidence to the

jury during closing arguments, the error was contemporaneously cured by the Court’s

curative instruction.”

II. Standard of Review

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¶164 Section 46-16-702(1), MCA, provides that “[f]ollowing a verdict or finding of

guilty, the court may grant the defendant a new trial if required in the interest of justice.”

Our standard of review of a trial court’s ruling on a motion for a new trial depends on the

basis of the motion. See Giambra v. Kelsey, 2007 MT 158, ¶¶ 24-27, 338 Mont. 19,

¶¶ 24-27, ___ P.3d ____, ¶¶ 24-27 (clarifying that our standard of review of a trial court’s

ruling on a motion for a new trial based on insufficiency of the evidence is de novo, not

manifest abuse of discretion, given that the trial court’s conclusion as to whether

sufficient evidence exists to convict is ultimately an analysis and application of the law to

the facts, not a matter of discretion). Here, the basis of the new trial motion is that the

prosecutor’s inaccurate representations of certain evidence during closing arguments

denied Ariegwe a fair and impartial trial. The analysis of this claim entails an evaluation

of the prejudicial effect of the inaccurate representations and the remedial value of the

court’s curative instruction. The trial judge, having been present throughout the course of

the trial and having observed the jurors firsthand, is in a better position than are we to

conduct such an evaluation. We thus will review the District Court’s ultimate

determinations that Ariegwe was not denied a fair and impartial trial and that a new trial,

therefore, was not required in the interests of justice for abuse of discretion. See State v.

Goettle, 253 Mont. 111, 113, 831 P.2d 595, 596-97 (1992); State v. Staat, 251 Mont. 1, 9-

10, 822 P.2d 643, 648-49 (1991); cf. State v. Dubois, 2006 MT 89, ¶¶ 57-61, 332 Mont.

44, ¶¶ 57-61, 134 P.3d 82, ¶¶ 57-61. In order to establish that the court abused its

discretion, Ariegwe must demonstrate that the court acted arbitrarily without

conscientious judgment or exceeded the bounds of reason and, further, that the court’s

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abuse of discretion was prejudicial. State v. Price, 2006 MT 79, ¶ 17, 331 Mont. 502,

¶ 17, 134 P.3d 45, ¶ 17; § 46-20-701(1), MCA.

III. Discussion

¶165 In light of the District Court’s finding that the prosecutor had “improperly and

inaccurately” represented to the jury that K.M.’s and Ariegwe’s DNA had been found

“mixed together” on the blanket, Ariegwe focuses on the issue of whether he was

prejudiced by the inaccurate representations. In this regard, he argues that K.M.’s

testimony alone could not have carried the State’s case. For one thing, the jury acquitted

him of sexual intercourse without consent, which in his view indicates that the jurors did

not fully credit K.M.’s testimony. In addition, he points to the following argument by the

prosecutor during her rebuttal argument:

[L]adies and gentlemen, this is not a he said, she said case. You don’t need
to rely only on [K.M.’s] testimony in this case. You have photographic
evidence that supports what she told the police. You have hair evidence.
You have fiber evidence. You have DNA saliva evidence. You have
physical evidence of injury and you have psychological evidence of injury,
all of which support [K.M.’s] version of what happened on that day.

Given this argument and his acquittal on the charge of sexual intercourse without

consent, Ariegwe contends that the forensic expert’s testimony “played a crucial part in

the state’s case” and that the prosecutor’s inaccurate representations about “mixed” DNA,

therefore, prejudiced his right to a fair and impartial trial.

¶166 The prosecutor’s inaccurate representations, however, were addressed by the

District Court in its curative instruction to the jury, and we have said that “[t]he potential

prejudicial effect of improper arguments may be cured when the jury has been

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admonished not to regard those statements as evidence,” State v. Gladue, 1999 MT 1,

¶ 31, 293 Mont. 1, ¶ 31, 972 P.2d 827, ¶ 31. Thus, the specific issue here is whether the

court’s instruction was not sufficient to cure any prejudice that resulted from the

misstatements about “mixed” DNA.

¶167 In this regard, Ariegwe contends that “[i]n light of the repeated representations in

the state’s closing, one curative instruction, following a ruling on an objection which the

judge himself was unsure the jury even heard, cannot be said, with confidence, to have

remedied the problem.” In response, the State contends that by instructing the jury that

“there is no evidence in this case that the Defendant’s DNA was found in any vaginal

fluid of the alleged victim in this case,” the court’s instruction actually “aided” Ariegwe’s

defense, given that he was acquitted of the charge of sexual intercourse without consent.

At the very least, the State argues, the court did not abuse its discretion in denying

Ariegwe’s motion on the ground that the instruction cured the prosecutor’s error.

¶168 We agree with the State’s latter point. As noted above, the District Court reasoned

in its order denying Ariegwe’s motion that “to the extent that State’s counsel improperly

or erroneously characterized the evidence to the jury during closing arguments, the error

was contemporaneously cured by the Court’s curative instruction.” The record supports

this conclusion, as does the fact that the jury is presumed to have followed the court’s

instruction. See State v. Turner, 262 Mont. 39, 55, 864 P.2d 235, 245 (1993) (“It is a well

recognized principle of law that juries are presumed to follow the law as given them.”);

State v. Long, 2005 MT 130, ¶ 25, 327 Mont. 238, ¶ 25, 113 P.3d 290, ¶ 25 (“[T]he jury

cannot be presumed to ignore their duties to respect the instructions of the court.”).

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Accordingly, applying our standard of review to the court’s ruling on Ariegwe’s motion

for a new trial, we hold that he has not demonstrated that the court acted arbitrarily

without conscientious judgment or exceeded the bounds of reason in denying that motion.

¶169 Before concluding this discussion, we note Ariegwe’s brief argument that he was

also prejudiced by the prosecutor’s misstatement of testimony regarding blanket fibers

found in K.M.’s underwear. Alice Ammen, an expert in trace hair and fiber examination,

testified on direct examination that it was “highly probable” that K.M.’s underwear had

come in contact with the blanket recovered from Ariegwe’s bed. However, Ammen

acknowledged on cross-examination that it was “entirely possible” that blanket fibers on

K.M.’s outer garments—her socks, jeans, sweater, and blouse—had transferred to K.M.’s

underwear when all of these items were placed together in a pile at K.M.’s house

following the incident. Furthermore, on redirect examination, Ammen would only say

that the number of blanket fibers found on K.M.’s underwear was “more indicative” of

direct transfer than indirect transfer. During her rebuttal argument, however, the

prosecutor stated: “The cross-contamination issue was ruled out by Alice Ammen. She

told you that the fiber transfer in [K.M.’s] underwear was direct.” Ariegwe objected that

these statements were not supported by the evidence, but the court overruled the

objection.

¶170 Ariegwe now argues that he was prejudiced by the prosecutor’s incorrect

statements concerning fiber cross-contamination and by the District Court’s failure to

sustain his objection. Yet, Ariegwe did not make this argument in his motion for a new

trial. (He did mention Ammen’s testimony regarding the fibers, but he did not list the

89
prosecutor’s misstatements of that testimony as a basis for a new trial, and the District

Court, therefore, did not address it.) Accordingly, the prosecutor’s statements concerning

fiber cross-contamination are not relevant in determining whether the District Court

abused its discretion in denying Ariegwe’s motion.

¶171 In sum, we conclude that the District Court did not abuse its discretion when it

denied Ariegwe’s motion for a new trial.

¶172 Issue Three. Is the District Court’s restitution order illegal?

I. Background

¶173 The District Court found that as a result of Ariegwe’s offenses, K.M. and her

family had sustained a pecuniary loss of $3,332.68 due to uninsured medical, counseling,

and related travel expenses; that the Montana State Crime Victims Compensation Unit

had incurred costs in the amount of $38.40 as partial compensation to K.M. and her

family; and that K.M. and her family had incurred medical and counseling expenses that

were covered by EBMS Insurance Co. in the amount of $10,863.58. The court, therefore,

ordered Ariegwe to pay restitution to these victims in the specified amounts. In so doing,

however, the court acknowledged that it had no information regarding Ariegwe’s

financial resources and future ability to pay restitution. For this reason, Ariegwe

contends that the restitution requirement is illegal.

II. Standard of Review

¶174 We review criminal sentences that include at least one year of actual incarceration

for legality only. State v. Herd, 2004 MT 85, ¶ 22, 320 Mont. 490, ¶ 22, 87 P.3d 1017,

¶ 22. The term “legality” in this context signifies that “we will not review a sentence for

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mere inequity or disparity.” State v. Webb, 2005 MT 5, ¶ 8, 325 Mont. 317, ¶ 8, 106 P.3d

521, ¶ 8. Rather, our review is confined to determining whether the sentencing court had

statutory authority to impose the sentence, State v. Hicks, 2006 MT 71, ¶ 41, 331 Mont.

471, ¶ 41, 133 P.3d 206, ¶ 41; State v. Ruiz, 2005 MT 117, ¶ 12, 327 Mont. 109, ¶ 12,

112 P.3d 1001, ¶ 12, whether the sentence falls within the parameters set by the

applicable sentencing statutes, State v. Seals, 2007 MT 71, ¶ 7, 336 Mont. 416, ¶ 7, 156

P.3d 15, ¶ 7; State v. Montoya, 1999 MT 180, ¶ 15, 295 Mont. 288, ¶ 15, 983 P.2d 937,

¶ 15, and whether the court adhered to the affirmative mandates of the applicable

sentencing statutes, see State v. Pence, 273 Mont. 223, 231, 902 P.2d 41, 46 (1995); State

v. Pritchett, 2000 MT 261, ¶ 7, 302 Mont. 1, ¶ 7, 11 P.3d 539, ¶ 7; State v. Shults, 2006

MT 100, ¶ 34, 332 Mont. 130, ¶ 34, 136 P.3d 507, ¶ 34.

¶175 We have characterized this “legality” standard more generally as reviewing for

correctness. See State v. Megard, 2006 MT 84, ¶ 16, 332 Mont. 27, ¶ 16, 134 P.3d 90,

¶ 16 (“This Court reviews a district court’s imposition of sentence for legality only. The

question is one of law and the determination is whether the district court interpreted the

law correctly.” (citation omitted)); State v. Sprinkle, 2000 MT 188, ¶ 6, 300 Mont. 405,

¶ 6, 4 P.3d 1204, ¶ 6 (“We review the district court’s application of the sentencing

statutes to determine whether the district court was correct.”). This determination is a

question of law and, as such, our review is de novo. Seals, ¶ 7.

III. Discussion

¶176 As a preliminary matter, we will address the State’s argument that Ariegwe should

not be allowed to challenge the District Court’s restitution order on appeal. The State

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claims that Ariegwe “refused to cooperate [with the probation and parole officer who

prepared the presentence investigation report] and therefore he cannot now benefit from

his own wrong.” The State cites no support for this argument in the pertinent statutes, but

instead relies on Sikora v. Sikora, 160 Mont. 27, 30-33, 499 P.2d 808, 810-11 (1972),

where we held that a surviving widow, who had pleaded guilty to the voluntary

manslaughter of her husband, could not benefit from her wrongful act and share in his

estate.

¶177 As Ariegwe points out, however, the State’s argument is factually incorrect.

When the probation and parole officer arrived at the jail to interview Ariegwe, he simply

stated that he would like to consult with his attorney before meeting with the officer. He

was aware that his motion for a new trial was pending at the time, and he explained that

he had been trying to get a hold of his attorney for four weeks but had been unable to do

so. On this record, we cannot agree with the State’s assertion that Ariegwe “refused to

cooperate” with the officer. Furthermore, we have been presented with no authority for

the proposition that an offender is not entitled to consult with his or her attorney before

meeting with the probation and parole officer. We therefore reject the State’s contention

that Ariegwe should be precluded from challenging the District Court’s restitution order.

¶178 The sentencing statutes in effect at the time of the commission of the offense

control as to the possible sentence. State v. Tracy, 2005 MT 128, ¶ 16, 327 Mont. 220,

¶ 16, 113 P.3d 297, ¶ 16. Ariegwe committed the crimes of attempted sexual intercourse

without consent and unlawful transactions with children on January 17, 2003. Thus, the

2001 sentencing statutes apply.

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¶179 Section 46-18-201(5), MCA (2001) provides that “if the sentencing judge finds

that the victim of the offense has sustained a pecuniary loss, the sentencing judge shall

require payment of full restitution to the victim as provided in 46-18-241 through 46-18-

249.” Section 46-18-242(1)(a), MCA, in turn, requires the probation officer, restitution

officer, or other designated person to include “documentation of the offender’s financial

resources and future ability to pay restitution” in the presentence investigation report

(“PSI”).

¶180 In State v. Pritchett, 2000 MT 261, 302 Mont. 1, 11 P.3d 539, we held that the

“general mandate” of § 46-18-201(5), MCA, “is subject to the detailed procedures and

qualifications found in §§ 46-18-241 to 249, MCA,” and that district courts “are not

authorized to impose a sentence of restitution until all these additional statutory

requirements are satisfied.” Pritchett, ¶ 7. Thus, given that the PSI in that case failed to

document Pritchett’s financial resources and his future ability to pay restitution, we held

that the district court’s restitution order was illegal. Pritchett, ¶ 13. We reached the same

conclusion in State v. Hilgers, 1999 MT 284, 297 Mont. 23, 989 P.2d 866, and State v.

Muhammad, 2002 MT 47, 309 Mont. 1, 43 P.3d 318. See Hilgers, ¶¶ 13-14; Muhammad,

¶ 47; accord State v. Dunkerson, 2003 MT 234, ¶ 18, 317 Mont. 228, ¶ 18, 76 P.3d 1085,

¶ 18 (“Failure of a PSI report to contain documentation of . . . an offender’s financial

resources and future ability to pay renders a district court’s sentencing of restitution

illegal.”); but see § 46-18-242(2), MCA (“When a presentence report is not authorized or

requested, the court may receive evidence of the offender’s ability to pay . . . at the time

of sentencing.”).

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¶181 Likewise, in the case at hand, the PSI did not contain documentation of Ariegwe’s

financial resources and future ability to pay restitution. Nor was such evidence presented

at the sentencing hearing pursuant to § 46-18-242(2), MCA. Accordingly, we hold that

the District Court was “not authorized to impose [the] sentence of restitution,” Pritchett,

¶ 7, and that the restitution order is illegal.

CONCLUSION

¶182 We affirm the District Court’s denial of Ariegwe’s motion to dismiss for lack of a

speedy trial. We also affirm the District Court’s denial of Ariegwe’s motion for a new

trial. However, we reverse the portion of Ariegwe’s sentence requiring him to pay

restitution under § 46-18-201(5), MCA (2001) and remand this case to the District Court

for a restitution hearing followed by resentencing pursuant to a correct and complete

application of §§ 46-18-241 through -249, MCA (2001).

¶183 Affirmed in part, reversed in part, and remanded for further proceedings consistent

with this Opinion.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JOHN WARNER

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Justice Jim Rice specially concurring.

¶184 Because I believe the Opinion accurately interprets and states the law, I have

joined it. I write only to bemoan the law’s complexity. Incorporation of all the speedy

trial factors, as previously and newly interpreted, has led herein to creation of, I fear, the

“mother of all balancing tests.” The outline of the principles governing application of the

factors which the Court has included in ¶113 is helpful and appreciated, and I regret only

that this summary of the test requires three single-spaced pages. I sincerely wish the best

to counsel and the trial courts in working with these principles, and in making a record

thereof. I also look forward to the day when I see a seminar topic or law review article

entitled “Toward a Simpler Speedy Trial Analysis.”

/S/ JIM RICE

Justice Brian Morris, Justice W. William Leaphart and Justice John Warner join the
concurring opinion of Justice Rice.

/S/ BRIAN MORRIS
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART

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