State v. Rose

January 13 2009

05-129

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 4

STATE OF MONTANA,

Plaintiff and Appellee,

v.

ROBERT LYSLE ROSE,

Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC 2002-02
Honorable Jeffrey H. Langton, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Hooks & Wright, P.C., Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Tammy K. Plubell,
Assistant Attorney General, Helena, Montana

George Corn, Ravalli County Attorney, Hamilton, Montana

Submitted on Briefs: October 31, 2007

Decided: January 13, 2009

Filed:

__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.

¶1 Robert Rose appeals from his 2003 convictions for aggravated kidnapping, assault

with a weapon and assault on a peace officer. Rose was found guilty by a jury and

judgment entered on June 6, 2003. He appealed and this Court remanded to the District

Court to enter findings of fact and conclusions of law relating to the denial of Rose’s

motion to dismiss for lack of a speedy trial.

¶2 After remand, the District Court held a two day evidentiary hearing on Rose’s

speedy trial claim and subsequently entered findings of fact, conclusions of law and an

order again denying his motion to dismiss for lack of speedy trial. We restate and

consider the several issues Rose raises on appeal as follows:

¶3 1) Did the District Court err in denying Rose’s motion to dismiss for lack of a

speedy trial?

¶4 2) Did the District Court err when it failed to hold a hearing on Rose’s complaints

of ineffective assistance of counsel?

¶5 3) Did the District Court abuse its discretion in denying Rose’s motion for a new

trial on the basis that the prosecutor’s statements during the State’s closing argument

denied Rose a fair and impartial trial?

¶6 4) Was Rose’s trial counsel ineffective before she was removed, thus requiring a

mistrial?

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 FACTUAL BACKGROUND

¶7 Rose was arrested on January 11, 2002, in Ravalli County following an incident in

which he kidnapped a friend and co-worker, Jonathan Kirk Davies at knife point, badly

cutting Davies when he tried to escape. Both Rose and Davies required medical

attention. Later, upon his release from the hospital, Rose obtained pepper spray

inadvertently left in the back of a patrol car and sprayed a law enforcement officer with it

when in the Ravalli County Detention Facility.

¶8 The odyssey which occurred between Rose’s arrest on January 11, 2002, and his

eventual trial which commenced 507 days later, on June 2, 2003, is summarized here as it

relates to Rose’s claim that he was denied a speedy trial and his claim that he was denied

a hearing to address his complaints about his lawyers.

¶9 The day after his arrest on January 11, a complaint was filed in the Ravalli County

Justice Court charging Rose with aggravated kidnapping, assault with a weapon and

assault on a peace officer. On January 23, the State filed an information charging Rose

with these same felony offenses in District Court.

¶10 On February 6, Rose made his initial appearance in District Court with court-

appointed counsel, Larry Mansch. When asked if the defense needed further time to

enter a plea, Mansch said, “We do, your Honor. We received about 160-some pages of

discovery just the other day, and I know that Robert would like more time to review that,

so we’d like to reappear next Wednesday, if I could, please.” On Wednesday, February

13, Rose appeared with counsel and entered not guilty pleas. The District Court set an

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Omnibus Hearing for March 6. At the Omnibus hearing, defense counsel noted Rose’s

desire to move for a change of venue, and asked for additional time to pursue that option.

The court gave the defense until March 27, 2002, to file the motion and stated: “Then it

will be on the standard schedule.” The court set a status conference for April 10 and a

settlement conference for April 18, 2002.

¶11 At the April 10 status hearing, Rose appeared with counsel and requested a

continuance of the April 18 settlement conference. The State, represented by Ravalli

County Attorney George H. Corn, objected. Corn predicted that Rose would later raise

speedy trial problems and requested to proceed to trial with all haste. The District Court

granted Rose’s motion to postpone the settlement conference until May 2, 2002.

¶12 On April 17, the District Court received the first of several letters from Rose

complaining about his legal representation by Mansch. On April 18, the District Court

scheduled a special hearing for April 24 to inquire about Rose’s complaints. The day

before the hearing, the court received another letter from Rose, retracting his complaints

against Mansch. Rose then appeared at the hearing on April 24 along with Mansch. He

personally advised the court that he was satisfied with his counsel and there was no need

for a further hearing on the matter.

¶13 On May 6, the court received another letter from Rose saying he regretted stating

in court that he was satisfied with Mansch. On May 30, Mansch, who received Rose’s

letters only after the court forwarded copies of them to him, wrote the court saying

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Rose’s letters to the court had not affected his representation and he was unwilling to step

down from the case.

¶14 On June 6, Rose sent another letter to the court saying he was far from happy or

satisfied with Mansch’s assistance. Rose also asked to represent himself pro se until he

could retain private counsel or until he was appointed different counsel.

¶15 At a status hearing on June 12, Mansch told the court that Rose’s letters to the

court had not compromised his representation of Rose. The State, again desiring the

proper procedure be followed concerning Rose’s off again on again complaints about his

lawyer and wishing to avoid speedy trial issues, asked the District Court to inquire about

the letters written by Rose complaining about his lawyer, and noted that the trial was set

to take place in less than two months. The judge asked Rose to state the reasons why he

was dissatisfied with Mansch’s representation and explained that only then could the

court determine if there was a substantial basis for Rose’s dissatisfaction. The judge

explained that only if there was a valid basis for Rose’s complaints, would the court hold

a full hearing to determine if Mansch should be replaced. The following exchange then

took place:

Rose: Your Honor, I was wondering if we could maybe postpone this issue
until a further time when we can meet with Mr. Corn and discuss
some things, and if I still feel there’s a problem, could I address the
Court at that time.

State: . . . I’ll rearrange my schedule and make sure we get it done. I think
I want the record to reflect that this is done on Mr. Rose’s request.
There could be a speedy trial issue, and I don’t want that to be on the
State’s hook, so that’s my concern.

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 Court: So we’ll continue this hearing then until June 19th at 9:00 on request
of the Defendant.

¶16 On June 19, 2002, a status hearing was held at which Corn said that the State

would press ahead and assumed the trial would be held on July 31. By that time, Rose

had sent yet another letter to the court regarding Mansch’s representation. The State

asked that Rose decide whether or not he wanted to proceed with Mr. Mansch, noting he

signed no waiver of a speedy trial. The judge asked Rose if it was his wish to have a

different attorney, Rose replied, “Yes, I think I would, because things have not run

smoothly.”

¶17 The District Court specifically told Rose that if a new attorney was assigned to

represent him, it would mean the trial would probably be postponed for weeks or even

months. Mansch noted that Rose continuously complained about his representation and

indicated his willingness to step aside. The District Court, noting it would save time,

dismissed Mansch and appointed another attorney, Mr. Dustin Gahagan to represent

Rose. The prosecutor, Mr. Corn, made no objection, noting the trial was still scheduled

for July 29.

¶18 On July 11, 2002, the defense filed a motion to continue the July 29 trial.

Attached to the motion was a handwritten waiver of speedy trial signed by Rose.

Reasons cited for requesting the continuance were counsel Gahagan had not been on the

case very long, was extremely busy, and needed additional time to prepare the defense.

Rose sent a letter to the District Court on July 13, 2002, requesting postponement of the

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July trial saying he had hoped not to have to waive his right to a speedy trial but due to

the lack of preparation by present counsel, he was left with no other option.

¶19 Six days later, Gahagan moved to substitute a different attorney as counsel for

Rose due to the change in the public defender contract with Ravalli County. On July 22,

2002, the District Court appointed Kelli Sather as Rose’s attorney. The District Court

granted Rose’s motion for further delay caused by his request for a different lawyer and

reset the trial for November 18, 2002.

¶20 On October 25, 2002, less than one month before the November trial date, the

defense filed a motion for a psychological exam. Three days later, the State filed a

motion requesting that the trial proceed as scheduled on November 18. That same day,

Rose appeared in court with Sather. Rose told the court he was interested in proceeding

pro se but did not have a chance to talk to counsel about it enough yet. Sather reiterated

the request for a psychological evaluation. The State reiterated its request that trial

proceed as scheduled and any delay be attributed to the defense. The court advised Rose

an evaluation would further delay trial and asked if he understood. Rose advised the

court he understood. The court granted the motion for a psychological evaluation and

advised a new trial date would be set after the evaluation was received. Rose requested

to proceed pro se with consultation from Sather and the court postponed any decision on

that matter until completion of the psychological examination.

¶21 On January 31, 2003, Rose wrote to the court requesting a hearing about his

complaints about his attorney. On February 12, 2003, Rose appeared with Sather. The

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District Court inquired about both the status of the psychological examination and Rose’s

complaints about his attorney. Sather stated the examination was finished and the doctor

reported Rose was competent to proceed to trial. Sather further advised that Rose had not

yet decided whether he wanted to rely on the psychological evaluation at trial, which

would require him to disclose it to the State.

¶22 The court then inquired about Rose’s complaints with his representation by Sather

as follows:

Court: . . . Well, Mr. Rose, do you have a problem with Miss Sather’s
representation?

Rose: . . . We met Monday, as she said, and I feel there’s been some
confidence restored there, but as I mentioned in my complaint, I felt
there’s been some due process violations and I would like to make
mention of, if the Court would allow me time. If not we can-.

Court: You can’t have an attorney and represent yourself at the same time,
Mr. Rose. If you want to represent yourself, we can discuss that. If
you want to be represented by an attorney, you need to deal with
her and she will evaluate your claims and proceed with what she
thinks is valid.

Rose: Okay.

Court: Is that clear? So are you dissatisfied with her representation or not?

Rose: I felt that I was. We met on Monday and we have started to address
some issues and some concerns that I have had, and I feel if we are
allowed to continue in those and spend time together and discuss
my other defenses and gathering of evidence, I feel that that
confidence – that the competence issue between her and I is fine. I
do not have a complaint with her. I told her that. I felt it was a
conflict rather with the State of Montana and Ravalli County and
providing me with counsel that’s real busy, and that’s been the
issue, and I feel that’s where my conflict lies.

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 Court: You’re never going to be appointed an attorney who has only you
for a client.

Rose: I understand, Your Honor. I’ve never expected that from an
attorney.

Court: These are busy people and that’s just part of the situation.

Rose: I know, Your Honor.

Court: So right now you are not asking that your attorney be relieved?

Rose: No, I’m not, Your Honor.

Court: Okay.

¶23 Rose requested that trial be set.

Rose: But I do not want to make light of the complaints I had in the letter
about representation. I feel I had adequate complaint. We have
addressed issues on Monday, and if the Court would like to hear
why I made those issues and put something on the record, I’m fine
with that. I – but I would like to also say that her representation of
me at this point, as of Monday, I feel is fine. We have discussed
some due process issue that she’s agreed to look at with me, and
those were my concerns that were being ignored.

Court: Okay. Did you—

State: Your Honor, I did. Thank you. I just wanted to remind the Court
that these were the same complaints the Court has heard from Mr.
Mansch last May, June and July. Mr. Mansch was ultimately
relieved. The Court attempted to address Mr. Rose’s concerns, and
it seems like we’re back to the same spot as eight months before.
The matter has been set for trial twice. Witnesses have been
subpoenaed, interviewed. I think that I’d respectfully request the
Court impose some deadlines, not too quick, since we have
witnesses out of town, but it sounds like Mr. Rose is heading down
the same path. He’s going to attempt to fire present counsel, would
be my prediction, so I would ask that the Court put some deadlines.
It would take us probably a month to five weeks, just because we
have witnesses that are out of the county that we have gone through
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 the process of contacting and lining up before, but I think the
deadlines are necessary, given the history of the case. Thank you,
Judge.

Court: Are we ready to set this for trial, then?

Sather: Your Honor, yes, I believe we are. And if I could have until
tomorrow to make a final decision, as I stated, with Mr. Rose about
the disclosure of Dr. Davis’s report and whether we’re going to use
that at trial as a defense or not. We’re still planning on going to
trial, so yes, I think setting a trial date is fine at this point.

State: My only caveat to that is if they do use Dr. Davis’s, we may have to
request some more time, ironically enough, to see if we agree with
that and have that scrutinized by the State’s expert.

Court: The soonest we could set it would be probably in May.

Rose: Your Honor, may I make a response to the State’s accusations of
frivolous matters pertaining to my complaint here today? The State
responded to me –

Court: You know, I –

Rose: I would like some –

Court: No disrespect to Mr. Corn, but he’s saying what he has to say, and
we just don’t have the time to get into this back and forth here, and
it’s not going to do your case any good anyway.

¶24 Two days later, on February 14, 2003, Sather filed notice of Rose’s intent to

introduce evidence of his mental disease or defect at trial. On February 18, 2003, the

court scheduled a jury trial to begin May 12.

¶25 On March 11, 2003, Rose wrote another letter directly to the judge, questioning

the fairness of the presiding judge and requesting an inquiry into whether his speedy trial

rights had been violated. Three days later the court was forced to reset the jury trial for

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June 2, 2003, due to conflicts with the court’s calendar. Also on March 14, the State

moved for a psychological examination of Rose by a doctor of the State’s choosing.

¶26 On March 19, 2003, Rose appeared in court with counsel. The judge advised that

the State’s motion for a psychological examination was granted and Rose’s motion for

new judge was denied. For the State’s expert to perform an evaluation, the State asked

the defense to provide the supplemental materials relied upon by Dr. Davis in his

evaluation of Rose. The defense failed to expeditiously provide that discovery.

¶27 On March 25, 2003, Rose again wrote directly to the court complaining of issues

he felt his attorney was failing to address.

¶28 On March 28, Rose again sent a letter to the court attempting to make motions on

his own behalf to protect his constitutional rights. This letter contained (1) a complaint

about court-appointed counsel; (2) an invocation of his speedy trial rights; and (3) a

motion for the court to take judicial notice of various evidentiary rules.

¶29 On April 8, 2003, the State moved to bar evidence of Rose’s mental disease or

defect because the defense failed to produce the discovery related to the evaluation after

the court had ordered its production. The State attached to its motion a letter written by

Rose to the court and Sather. The letter contained questions regarding his constitutional

rights and criticizing County Attorney Corn for failing to protect his constitutional rights.

¶30 On April 16, 2003, Rose filed a pro se Petition for Writ of Habeas Corpus, raising

issues regarding his representation and his speedy trial rights. Rose then appeared with

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counsel in court. The State made sure that Rose’s complaints about court-appointed

counsel were addressed:

State: And thirdly your Honor, the third thing is Mr. Rose has been
sending letters to the Court regarding dissatisfaction with counsel
and the system in general. The State’s concern is that that may
need to be addressed at some point before the trial. What I don’t
want to happen is we have to reschedule three times. Mr. Rose has
been through several attorneys, and if he intends to represent
himself with Miss Sather as standby attorney or something, that
needs to be sorted out before we get up to the eve of trial. I’m
afraid, because there are quite a few subpoenas we have to send out,
I would hate to see trial derailed again. And given the tenor of the
letter that I received last week that I had to send to the Court and
Miss Sather, it particularly concerns me. He wrote me directly. I
sent a copy to the Court and I sent one to Miss Sather, and that’s
one reason that you may need to set something up so that that is all
settled before you get closer to trial, Your Honor.

Court: . . . Now, Mr. Rose, are you currently dissatisfied with Miss
Sather’s representation?

Rose: I felt that the—that we have a very serious lack of time together.
I’ve prepared a handwritten writ of habeas corpus. I don’t know if
the Court has jurisdiction here. I would like to ask if it’s frivolous
to apply in this Court; if not, I would like to – I’ve got two copies,
one for the Court and one for Mr. Corn, if that’s feasible to present
today. If not, then I understand.

Court: Well, I couldn’t comment on it without seeing it. . . . [Rose hands
it to clerk who stamps it. Judge says he’ll look at it later.] Maybe
what we ought to do here is have another attorney appointed to
independently evaluate Mr. Rose’s complaints and make a report to
the Court as to whether or not a hearing is necessary. . . . [Court
determines that Ms. Brownlee has not been involved in the case.]
I’ll appoint Miss Brownlee, just for the sole purpose of inquiring
into your complaints about Miss Sather and determining, in her
opinion, if further hearing is warranted on your concerns.

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¶31 The District Court ordered attorney Sasha Brownlee to inquire into Rose’s

complaints regarding his current counsel and to report to the court whether Rose’s

complaints seemed substantial, warranting a hearing. The State meanwhile requested a

hearing on the State’s motion for sanctions be continued without date until the State had a

chance to evaluate a stack of materials that the defense provided 5 days prior.

¶32 On April 30, 2003, Rose appeared with counsel. The State inquired into the

investigation by Brownlee to see if Rose’s complaints were valid. Rose responded:

Rose: May I have a minute, Your Honor? Miss Brownlee met with me
Friday. We went over some things. She’s familiarizing herself
with the rest of the matters that we discussed. She said she would
get back with me, and so I’m just waiting to hear back from her on
that. As I said before, I was dissatisfied at the time that counsel and
I have had to get together and discuss matters of the case, and one
of those would be that my right to privilege on some of this
information is being discussed here today. I wanted some
arguments on that and counsel and I, I felt, need some more time to
go over the matters of privilege as far as mental evaluation. There’s
some parts of that that I don’t feel have been released in accord
with – or have been released lawfully and it was a violation of my
privilege. Whether that’s true or not, I would like some argument
on it, and maybe have some time to look into that.

Sather: Your Honor, I have looked into that somewhat, and if--I mean, I
don’t mind setting a hearing on that if we want – at a later date if I
find something or if Miss Brownlee finds something. I began to
look into it in filing this response.

¶33 On May 23, 2003, ten days before they were to go to trial, Sather, on behalf of

Rose, filed a motion to dismiss for a violation of speedy trial rights, arguing he suffered

from a 498 day delay, triggering the speedy trial analysis. Rose alleged the entire delay

was attributable to the State.

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¶34 In chambers on June 2, 2003, the day of trial, defense requested a hearing on

Rose’s speedy trial motion. After some argument, the District Court denied the request

for a hearing and the motion to dismiss for lack of a speedy trial. On appeal, this Court

remanded for a hearing on the speedy trial issue.

¶35 Trial was held as scheduled. The jury returned a verdict of guilty on all three

counts. Rose was sentenced to Montana State Prison. As noted above, Rose appealed

and we remanded for a hearing on the speedy trial issue. The District Court held a

hearing and thereafter entered its findings of fact, conclusions of law and order denying

Rose’s motion to dismiss.

STANDARDS OF REVIEW

¶36 We review the factual findings underlying a district court’s speedy trial ruling to

determine whether those findings are clearly erroneous. State v. Ariegwe, 2007 MT 204,

¶ 119, 338 Mont. 442, ¶ 119, 167 P.3d 815, ¶ 119. 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. Ariegwe, ¶ 119. We

review de novo a district court’s determination of whether a speedy trial violation

occurred because it is a conclusion of constitutional law. Ariegwe, ¶ 119; State v.

Johnson, 2000 MT 180, ¶ 13, 300 Mont. 367, ¶ 13, 4 P.3d 654, ¶ 13.

¶37 Ariegwe was decided August 16, 2007, which was after the District Court heard

and entered its order denying Rose’s motion to dismiss for lack of a speedy trial. The

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District Court utilized the now superseded analysis set forth in City of Billings v. Bruce,

1998 MT 186, 290 Mont. 148, 965 P.2d 866, to reach its decision. In other cases that

were on appeal when a district court entered its decision before Ariegwe, we remanded

for the district court to reconsider its orders applying the Ariegwe factors. See State v.

Billman, 2008 MT 326, 346 Mont. 118, 194 P.3d 58; State v. Smith, 2008 MT 7, 341

Mont. 82, 176 P.3d 258; State v. Madplume, 2008 MT 37, 341 Mont. 321, 176 P.3d 1071;

State v. Howard, 2008 MT 173, 343 Mont. 378, 184 P.3d 344. However, as this case was

previously remanded for a hearing on Rose’s claim that he was denied a speedy trial, the

factual record concerning Rose’s speedy trial motion is comprehensive and complete, and

the District Court has made the necessary findings of fact for application of the Ariegwe

analysis. A second remand for the District Court to again examine the record and

reconsider its decision under Ariegwe would further delay a resolution for the parties

involved. We conclude that judicial economy and fairness require we analyze the record

and District Court’s findings of fact and reach the merits of the speedy trial argument.

See ABC Collectors, Inc. v. Birnel, 2008 MT 35, ¶ 15, 341 Mont. 310, ¶ 15, 176 P.3d

1067, ¶ 15. Therefore, in this singular instance, we have carefully examined and utilized

the record to consider the speedy trial issue in this case using the Ariegwe analysis.

¶38 Rose argues the judgment must be vacated because the District Court erred in not

conducting a hearing to determine whether he was entitled to have his appointed counsel

replaced. We will not overturn a district court’s decision on a request for the

appointment of new counsel absent an abuse of discretion. State v. Gallagher, 1998 MT

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70, ¶ 10, 288 Mont. 180, ¶ 10, 955 P.2d 1371, ¶ 10. The substitution of counsel is within

a district court’s sound discretion. City of Billings v. Smith, 281 Mont. 133, 136, 932

P.2d 1058, 1060 (1997).

¶39 Rose argues that two segments of the State’s closing argument violated his right to

a fair trial guaranteed to him by the Sixth Amendment of the United States Constitution

and Article II, Section 24, of the Montana Constitution. He makes this argument for the

first time on appeal. We may discretionarily review claimed errors—even absent timely

objection—which implicate a defendant's fundamental constitutional rights where failing

to review the claimed error may result in a manifest miscarriage of justice, leave

unsettled the question of the fundamental fairness of the proceedings, or compromise the

integrity of the judicial process. State v. Daniels, 2003 MT 247, ¶ 20, 317 Mont. 331,

¶ 20, 77 P.3d 224, ¶ 20.

¶40 Rose discharged his appointed counsel during the trial and proceeded by

representing himself with his former counsel standing by. On appeal, he argues his

counsel was ineffective before he discharged her. We review claims of ineffective

assistance of counsel de novo because they present mixed questions of law and fact.

State v. Parker, 2007 MT 243, ¶ 10, 339 Mont. 211, ¶ 10, 169 P.3d 380, ¶ 10; State v.

Kougl, 2004 MT 243, ¶ 12, 323 Mont. 6, ¶ 12, 97 P.3d 1095, ¶ 12.

16
 DISCUSSION

¶41 Issue 1. Did the District Court err in denying Rose’s motion to dismiss for lack of

a speedy trial?

¶42 A court presented with a speedy trial claim analyzes and balances four factors: (1)

the length of the delay; (2) the reasons for the delay; (3) the accused’s responses to the

delay; and, (4) prejudice to the accused. Ariegwe, ¶¶ 106-112.

¶43 On remand, the District Court held a two day speedy trial hearing which resulted

in a 250 page transcript. There are also over 150 docket entries leading up to the June 2,

2003, trial date, as well as transcripts from most of the pre-trial hearings. Also, the

parties not only filed their original briefs, but filed supplemental briefs pertaining to the

speedy trial issue. We examined the record and consider the Ariegwe factors as follows:

¶44 Factor One: Length of the Delay.

A. The Interval between Accusation and Trial.

¶45 The speedy trial clock begins to run at the earliest of arrest, indictment, or the

filing of a complaint or information. Ariegwe, ¶ 42. Rose was arrested on January 11,

2002, in relation to the charges subsequently filed in District Court on January 23, 2002.

The trial date was June 2, 2003. The interval between the accusation and trial was 507

days, as found by the District Court on remand. This delay triggers further speedy trial

analysis.

B. The Extent to which the Delay Stretches beyond the Trigger Date.

¶46 As a speedy trial analysis is triggered, we next consider the extent to which the

17
delay, irrespective of fault for the delay stretches beyond the 200-day trigger date. The

delay stretched 307 days beyond the trigger date. As a result, under Factor Two the

State’s burden is to explain that its delay was not caused by bad faith, negligence or lack

of diligence is increased substantially. Likewise, the presumption that pretrial delay

prejudiced Rose is increased and the quantum of proof expected of Rose under Factor

Four is substantially decreased.

¶47 Factor Two: The reasons for the delay.

¶48 Under Factor Two, we determine whether the reasons for the delay weigh for or

against the conclusion that Rose’s right to a speedy trial was violated. The more delay

caused by the State for “unacceptable” reasons (e.g., lack of diligence or bad faith), the

more likely the right was violated. The more delay caused by Rose for such reasons (e.g.,

to avoid being brought to trial), the less likely the right was violated. See Ariegwe, ¶¶ 71-

72, 108-09.

¶49 On January 11, 2002, Rose made his first appearance in Justice Court and was

later scheduled to be arraigned in District Court on February 6, 2002. At his arraignment

in District Court, Rose moved to continue for an additional week before he pled so his

counsel could review discovery materials, which was granted. Thus, we attribute seven

days of delay to Rose.

¶50 On February 13, Rose appeared with counsel and pleaded not guilty. An Omnibus

hearing was set for March 6, 2002. At the Omnibus hearing Rose was unprepared and

requested a further delay to investigate whether he should move for a change of venue.

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This delay was granted. The court gave Rose until March 27 to make his motion. Thus

we attribute 21 days of delay to Rose. At this time the court also set a settlement

conference for April 18.

¶51 On April 10, at a scheduled status hearing, Rose appeared with counsel and moved

for a continuance of the April 18 settlement conference. The State objected, arguing it

was necessary to press ahead in order to avoid speedy trial issues. However, the District

Court granted Rose’s motion and set a new settlement conference for May 2. On April

25, the District Court set Rose’s trial for July 29. Thus, we attribute only 7 days of delay

to Rose for the time between April 18 and April 25 when the District Court set the first

trial date.

¶52 As noted in ¶¶ 15 and 16, the District Court held to the July 29 trial date, even

though Rose began making complaints about his lawyer until July 11, when Rose moved

to continue the trial and filed a waiver of his right to a speedy trial. Based on this motion,

the trial was continued from July 29 until November 18, 2002. Thus, an additional 102

days of delay is attributed to Rose.

¶53 We note here that in most cases, once the defendant waived his right to a speedy

trial, it is unnecessary to continue with an analysis of whether that right has been

violated. However, in this case, the trial was not held as re-scheduled. Thus, we

continue with the speedy trial analysis.

¶54 On October 25, 2002, Rose appeared in court with counsel and moved to continue

the November 18 trial for the purpose of obtaining a psychological examination to

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determine if the defense of mental disease or defect should be raised.1 At yet another

hearing held on October 28, 2002, the State objected to any further delay. It was the

State, not Rose, which was concerned with Rose’s right to a speedy trial. Rose said he

understood that the exam would cause a further delay, but nevertheless desired to proceed

with the mental examination. The District Court granted Rose’s motion. At this time the

court held off on rescheduling the trial until the examination was completed. On

February 18, 2003, after the defense received the results of the psychological

examination, the court set trial for May 12, 2003. Thus, we attribute an additional 171

days to Rose for the time between November 18, 2002, and May 12, 2003.

¶55 On March 11, 2003, the trial was moved from May 12 to June 2, due to conflicts

in the court’s calendar. On June 2, 2003, the trial commenced as scheduled.

¶56 Based on our analysis of the record, of the 507 days of delay we attribute 199 days

to the State and 308 days to Rose, as detailed above in ¶¶ 48-54.

¶57 Institutional delay is delay that is inherent in the justice system and largely beyond

the control of the justice system. This delay is attributed to the state but weighs less

heavily against the State than delay caused by lack of diligence or bad faith in the

balancing process because it is not delay that the State actively pursued or encouraged.

State v. Atkins, 277 Mont. 103, 107, 920 P.2d 481, 483 (1996). In this case, all of the

delay attributable to the State is institutional delay. The record clearly reflects the State

1
Rose previously gave the State notice he might rely on the defense of justifiable use of force.
20
objected to Rose’s requests for postponements from the beginning of the process. In this

case it was the State, not Rose, concerned with protecting his right to a speedy trial.

¶58 To the contrary, Rose made complaints about his counsel and then withdrew those

complaints, only to make the same complaints and again withdraw them. When a

defendant makes requests for new counsel and then withdraws those requests only to

renew those requests later, requiring a hearing and ultimately resulting in the withdrawal

of counsel, the delay caused is appropriately attributed to the defendant. State v.

Ellenburg, 2000 MT 232, ¶¶ 22-24, 301 Mont. 289, ¶¶ 22-24, 8 P.3d 801, ¶¶ 22-24; State

v. Collier, 277 Mont. 46, 55-56, 919 P.2d 376, 382-83 (1997). Also, when the District

Court inquired into Rose’s complaints and explained that, if they were substantial, a

hearing would be conducted to decide if counsel should be replaced, Rose said he would

proceed. When he again complained about his representation, the District Court carefully

explained to Rose that if he wanted new counsel it would cause a delay. Rose accepted

the delay and went so far to file a waiver of his right to a speedy trial. Then, after new

counsel had time to prepare, and shortly before the trial was set, Rose filed a new request

for further delay to advance a new defense, and then again complained about his lawyer’s

representation. Based on this record, we conclude it was Rose who caused the greater

portion of the delay in bringing this case to trial.

¶59 Factor Three: Response to the delay and assertion of speedy trial right.

¶60 A defendant must assert his speedy trial right before the case goes to trial in order

to assert the right on appeal. The evaluation of Rose’s response to the delay must be

21
based on surrounding circumstances, such as timeliness, persistence and sincerity of any

objection to the delay, the reasons for any acquiescence in delay, and his pretrial conduct

(as that conduct bears on the speedy trial right). See Ariegwe, ¶¶ 79-81. Conduct

evidencing a desire to be brought to trial promptly weighs in Rose’s favor whereas

conduct demonstrating a desire to avoid trial weighs against Rose in the overall

balancing. See Ariegwe, ¶ 85.

¶61 Rose, in a half-hearted fashion, asserted his right to speedy trial in letters sent

directly to the District Court on March 11 and 28, 2003, and in his writ of habeas corpus

filed on April 16, 2003. He was also advised on several occasions that his various

motions would result in delay of trial, at which time he said he understood but still

wanted to make his belated motions even though he knew they would cause delay. He

finally filed a formal motion to dismiss for lack of a speedy trial on May 23, 2003, 497

days after he was arrested and 10 days before trial commenced.

¶62 The State’s response to the motions for delay indicates its desire to proceed to

trial. The State was diligent in its attempt to bring the matter to trial.

¶63 The record in this case shows it was Rose who caused the delay over the

objections of the prosecution. In sum, Factor Three tips the balance substantially against

dismissal for lack of a speedy trial.

¶64 Factor Four: Prejudice to Rose.

¶65 A presumption the accused was prejudiced by a trial delay arises after 200 days.

As the length of delay grows beyond 200 days, the prejudice intensifies. Ariegwe, ¶ 56.

22
The court must weigh each party’s evidence (or lack thereof) in light of this intensifying

presumption. Ariegwe, ¶¶ 49, 51. Specifically, as the delay gets longer, the accused’s

duty to show prejudice decreases while the necessary showing by the State of no

prejudice simultaneously increases.

¶66 The length of delay in this case is sufficient to raise the presumption of prejudice

to the degree that the State must make a highly persuasive showing Rose was not

prejudiced by the delay.

¶67 The determination of how much mental and physical discomfort a defendant is

forced to endure because of delay between the time of his or her arrest and the trial is a

fact intensive inquiry. The factual nature of this determination is a principal reason why

the trial courts, who personally see and hear the defendant and other witnesses, should in

the ordinary case consider whether a defendant’s right to a speedy trial has been violated.

However, as noted above, this is not the ordinary case and this Court has a fully

developed record which contains the trial judge’s findings of fact concerning the degree

which Rose personally suffered.

¶68 First, Rose argues his pretrial incarceration was oppressive, noting his weight loss

and his grievance forms about the food and temperature at the Ravalli County Detention

Center. Next, he argues the delay of his trial caused him substantial anxiety and concern

as demonstrated by his nail biting, his mental illness for which he sought treatment, his

parents’ health problems and divorce, and his loss of work and contact with his daughter.

These claims can be considered in light of the District Court’s findings of fact.

23
¶69 i. Oppressive Pretrial Incarceration.

¶70 In assessing whether the pretrial incarceration in a given case is “oppressive,” we

consider all of the circumstances surrounding the incarceration. In Ariegwe, we

identified a number of pertinent circumstances, including the duration of the

incarceration, the complexity of the charged offense(s), any misconduct on the part of the

accused directly related to the pretrial incarceration (e.g., a demonstrated likelihood to

flee the jurisdiction of the court), whether the accused was incarcerated on a separate

charge while awaiting trial on the instant charge, and the conditions of the incarceration,

such as overcrowding and lack of recreational opportunities, adequate food, climate

control, proper medical care, cleanliness, or legal research capabilities. Ariegwe, ¶¶ 90-

93.

¶71 We agree with the District Court’s findings of fact that although Rose’s pretrial

incarceration was lengthy, neither its length nor the conditions of incarceration were

unduly oppressive in light of the very serious offenses with which Rose was charged,

Rose’s criminal history, and the potential danger Rose’s release would pose to others. In

addition, there is substantial evidence in the record which supports the District Court’s

determination Rose received sufficient medical treatment for a hip problem and other

medical conditions while he was in detention, including medical appointments with a

nurse and a physician, as well as treatment with various pain medications and anti-

inflammatory drugs.

24
¶72 In regard to Rose’s complaints that his medical needs were not met, we also agree

with the District Court and the United States District Court that the detention staff acted

appropriately in their responses to grievances and were reasonably responsive to his

mental health needs.2

¶73 There is evidence the temperature in the jail was unsatisfactory for a short time.

However, the problem was corrected. Considering the particular difficulties Rose

suffered while incarcerated we do not conclude the District Court erred in finding that

Rose’s time in jail was not so uncomfortable that it was “oppressive.”

¶74 ii. The Accused’s Anxiety and Concern.

¶75 “[T]he speedy trial guarantee serves ‘to shorten the disruption of life caused by

arrest and the presence of unresolved criminal charges,’ not to eliminate the disruption

altogether.” Ariegwe ¶ 97 (quoting United States v. MacDonald, 456 U.S. 1, 8, 102 S. Ct.

1497, 1502 (1982). The question is whether the delay in bringing Rose to trial unduly

prolonged the disruption or aggravated the anxiety and concern inherent in being accused

of a crime. Ariegwe, ¶¶ 97, 147.

¶76 Although the length of delay is, in this instance, significant, the State

demonstrated Rose was, to say the least, anxious and in mental turmoil before his arrest

on these charges. While his incarceration pending trial may have increased his mental

unrest, Rose suffered with anxiety and mental illness before his arrest and had refused

2
Rose filed a petition for habeas corpus in the United States District Court, which made a
factual determination he was not being ill-treated and denied the writ.
25
treatment. In fact, it was while he was incarcerated on these charges he finally requested

and received treatment.

¶77 Rose claims the delay exacerbated his anxiety and concern because Rose’s mother

underwent surgery and he was unable to be with her while she was ill. He also claims

that being unable to spend more time with his teenage daughter caused additional anxiety

and concern. We agree with the District Court while Mrs. Rose’s medical condition was

undoubtedly a source of anxiety for Rose, there is no evidence this anxiety was any

greater than would reasonably be expected for someone who has a family member with a

serious medical condition. In regard to his daughter, Rose did not spend much time with

her previously, but only claimed he was trying to form a relationship at the time of his

arrest. The District Court concluded any anxiety and concern Rose suffered regarding

these family relationships may have been caused by his incarceration, but were not

unduly aggravated by the delay in his trial. We cannot conclude from the record that the

District Court erred in this regard.

¶78 iii. The Possibility that the Defense will be impaired.

¶79 The third interest protected in a consideration of prejudice to the defense caused

by a delay in trial relates to the accused’s ability to present an effective defense.

Ariegwe, ¶ 98. Impairment of one’s defense can be difficult to prove because time’s

erosion of exculpatory evidence and testimony can rarely be shown. For this reason,

affirmative proof of particularized prejudice is not essential to every speedy trial claim.

Ariegwe, ¶ 99.

26
¶80 Rose argues the delay in bringing him to trial damaged his ability to present an

effective defense because cell phone records disappeared, the truck in which the

kidnapping took place was no longer available, and various witnesses were no longer

available or could not remember certain details of the events in question.

¶81 However, in spite of the delay, the State was able to demonstrate Rose’s ability to

present an effective defense was not demonstrably impaired. While incarcerated, Rose

had access to at least three lawyers and a private investigator. While he did not always

agree with the tactics and techniques of his attorneys, he had the ability to consult with

them, advise them where evidence could be collected, and assist them in preparation for

trial. With the use of his special investigator, Rose was able to secure and preserve any

information or evidence which could have been exculpatory.

¶82 Rose’s defense, after he decided to forgo the defense of mental disease or defect,

was based on justifiable use of force. There were only two persons present at the time of

the altercation between himself and Mr. Davies. Considering the circumstances, there is

no reason to believe that cell phone records he claims are missing or the absence of his

pickup would have provided evidence which would tend to exculpate him. Nor is there

any showing that a witness forgot exculpatory evidence. Likewise, there is nothing in the

record revealing what the witnesses Rose claims could not be located could have testified

to, nor is there a showing of how their testimony could have been relevant to his defense.

¶83 The District Court concluded Rose was intimately familiar with the legal system

and willing and able to assert every possible legal claim available. This weighs against

27
him when deciding if his defense was impaired, which has been considered by many

courts to be the most important factor in this analysis. Ariegwe, ¶ 98. See Barker v.

Wingo, 407 U.S. 514, 532, 92 S. Ct. 2182, 2193 (1972); State v. Price, 2001 MT 212,

¶ 28, 306 Mont. 381, ¶ 28, 34 P.3d 112, ¶ 28.

¶84 iv. Factor Four Summary.

¶85 In summary, Rose was incarcerated 507 days. However, due to the severity of the

crimes and his criminal history, the length of time he was incarcerated does not rise to the

level of oppressive. While Rose suggests his medical treatment was not sufficient, we

conclude that under these circumstances, he was not unduly prejudiced by lack of

medical care. The anxiety Rose suffered existed before his arrest and was not overly

aggravated by delay. The anxiety Rose suffered came from the nature of the offenses and

the general jail experience, not the delay in bringing him to trial. While the delay may

have caused some witnesses to forget some details, there is no evidence this hampered his

defense. Nor is there any indication as to how any alleged missing evidence would have

been used at trial.

¶86 Balancing.

¶87 We next determine whether Rose was deprived of his right to speedy trial in light

of the facts of the case and the weight assigned to each of the four factors laid out above.

“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.” Ariegwe, ¶ 153.

28
¶88 Factor One weighs in favor of Rose. The period between his arrest and his trial

date is 507 days. This is indeed a substantial delay. However, considering the reasons for

the delay under Factor Two, the length of the delay does not require that the charges be

dismissed. The entire 199 days of delay attributable to the State is institutional delay.

The remaining portion of the delay, 308 days, was not only caused by Rose, the State

repeatedly objected to his motions for continuances. Thus, we must conclude that Rose’s

right to a speedy trial was not violated by the length of the delay.

¶89 Considering Rose’s desire to proceed to trial, after the greater portion of the delay

was incurred, he asserted his right to speedy trial but then delayed the trial by subsequent

motions. In sum, Rose’s actions were inconsistent with someone who desires to be

brought to trial.

¶90 Finally, taking into consideration the crimes for which Rose was being held, the

length of time incarcerated cannot be considered oppressive. The mental and physical

problems Rose has were not unduly compounded by the amount of time he spent

incarcerated.

¶91 Importantly, an examination of the record leads to the conclusion that Rose’s

ability to defend himself was not impaired by the delay between his arrest and the trial.

¶92 The District Court did not abuse its discretion in denying Rose’s motion to dismiss

for lack of a speedy trial.

29
¶93 Issue 2: Did the District Court err when it failed to hold a hearing on Rose’s

complaints of ineffective assistance of counsel?

¶94 Rose alleges the District Court erred in failing to hold a hearing on his complaints

of ineffective assistance of counsel. The right to counsel does not include the right to

select an attorney of one’s own choosing or to require the particular attorney be

appointed. State v. Pepperling, 177 Mont. 464, 472, 582 P.2d 341, 346 (1978).

¶95 We will not overturn a district court’s decision on a request for the appointment of

new counsel absent an abuse of discretion. Gallagher, ¶ 10. The substitution of counsel

is within the district court’s sound discretion. City of Billings, 281 Mont. at 136, 932

P.2d at 1060.

¶96 “A defendant is entitled to a hearing on the issue of ineffective assistance of

counsel where the defendant presents a ‘seemingly substantial complaint’ about effective

assistance.” City of Billings, 281 Mont. at 136, 932 P.2d at 1060 (quoting State v.

Weaver, 276 Mont. 505, 511, 917 P.2d 437, 441 (1996)). The inquiry by the district

court is sufficient if the district court considers the defendant’s factual complaints

together with counsel’s specific explanations addressing the complaints. City of Billings,

281 Mont. at 136-37, 932 P.2d at 1060.

¶97 Rose sent letters directly to the judge regarding his concerns with his first court

appointed attorney, Mansch. In response to the first letter, the judge questioned Rose

about his current representation. Rose responded that the problems had been addressed,

and no further conversation on the topic was needed:

30
 Court: Mr. Rose, we had been here to address your concerns about your
attorney. I’m now in possession of a letter received by the court
yesterday where you appeared to indicate that you’ve worked
through whatever concerns you have with Mr. Mansch here. Are
you currently satisfied with his representation?

Rose: Yes. Your Honor, the complaints I made last week in the letter
were some things that I felt that we needed to go over and hadn’t
gone over yet, and we’ve started to go over those things and started
to work on some of those things, so, you know, that’s what I was
making reference to in the letter yesterday.

Court: So at this time then there’s no need to address the adequacy of your
representation; is that correct?

Rose: Yes.

Court: Okay.

¶98 Later, upon receiving another complaint letter from Rose, the judge once again

inquired into the matter and Rose responded he still had the same concerns and felt a new

attorney was the best option. The judge, following the procedure suggested in Weaver,

suggested a full hearing to determine if the complaints were so substantial that a different

attorney was required. No hearing was held, however, as the lawyer said it would be

more efficient for him to step aside. Rose and the District Court agreed.

¶99 Another lawyer, Gahagan, was appointed and represented Rose for about a month

before he was replaced by Sather. In January of 2003 Rose began sending letters to the

court directly complaining about Sather. On February 12, 2003, the court questioned

Rose about his representation by Sather. Rose responded he had concerns with her, but

they were beginning to work through those. Rose also explained to the court he was

upset with the system in general. Finally, Rose informed the District Court that he
31
simply wanted his concerns to be heard and noted by the court. As the District Court

inquired into Rose’s complaints and determined that he was in fact happy with counsel,

there was no need to conduct a hearing to inquire further. See Gallagher, ¶ 15.

¶100 On April 16, 2003, after receiving more letters from Rose complaining about

Sather, the District Court appointed another attorney, Sasha Brownlee, to inquire into

Rose’s complaints.

¶101 After multiple meetings with both Rose and Sather, Brownlee filed a report with

the court on May 16, 2003. Brownlee advised the District Court Rose made it clear to

her he did not want Sather replaced; rather he wanted her to do things his way. Brownlee

also advised the District Court that Sather’s communication with Rose was not deficient.

Rose did not inform the District Court that Brownlee’s conclusions were wrong, nor has

he argued on appeal that her advice to the District Court was inaccurate.

¶102 When the District Court asked Rose what his problems with his lawyers were, he

voiced no seemingly substantial complaints. When the District Court appointed yet

another lawyer to inquire into Rose’s complaints about Sather, he told her he did not want

her replaced. The District Court did not err in failing to hold a separate hearing to

determine if Rose was being effectively represented by counsel. See Gallagher, ¶ 15.

¶103 Issue 3: Did the District Court abuse its discretion in denying Rose’s motion for a

new trial on the basis that the prosecutor’s statements during the State’s closing

argument denied Rose a fair and impartial trial?

¶104 Rose alleges two particular segments of the State’s closing argument violated his

32
right to a fair trial guaranteed by the Sixth Amendment of the United States Constitution

and Article II, Section 24, of the Montana Constitution.

¶105 Rose first objects to the following comment made by the prosecutor near the end

of his argument:

The real question is, and the one reason the defendant took the stand in this
particular case and just told you so many untruthful things, is he doesn’t
think you’ll hold him accountable. He doesn’t think that you, as members
of the community, have the nerve to hold him accountable for his actions.
He thinks that if he gets up and tells the big lie, that you’re too gullible,
you’re too naïve, you’re too nice to imagine that anyone would do that, and
he hopes that by doing that, he will escape his responsibility.

¶106 A prosecutor invades the jury's province and engages in highly improper behavior

when an attorney characterizes the defendant or witnesses as liars or offers personal

opinions on a witness's credibility. State v. Racz, 2007 MT 244, ¶ 36, 339 Mont. 218,

¶ 36, 168 P.3d 685, ¶ 36; State v. Hanson, 283 Mont. 316, 326, 940 P.2d 1166, 1172

(1997). However, to properly preserve an issue for appeal the defendant must make a

timely objection or it is considered waived. Section 46-20-104 (2), MCA. Rose did not

contemporaneously object to this statement and thus the objection was waived.3 Having

failed to object, Rose requests we employ our discretionary plain error review and reverse

on this issue.

¶107 Our review of the closing arguments fails to persuade us the prosecutor's

comments resulted in a manifest miscarriage of justice, undermined the trial’s

fundamental fairness, or compromised the judicial process’s integrity. We conclude Rose

3
By the time of closing arguments Rose had persuaded the District Court to allow him to
represent himself with Sather as stand by counsel.
33
failed to preserve this argument for appeal and we decline to exercise our discretionary

plain error review and do not consider this matter further. See Racz, ¶ 36.

¶108 The second statement Rose objects to is about one of the weapons Rose used. In

his closing argument the prosecutor said:

There’s no question these things are weapons. There’s just no question. We
have got a utility knife – we all know this is the same sort of thing that the
people that hijack the airplanes that ran into the World Trade Center, this is
what they used.

¶109 Rose asserts on appeal that using this language 21 months after the September 11

terrorist attacks was an improper tactic which appealed to the patriotic emotions of the

jury. In this instance the prosecutor referred to the type of knife supposedly used in the

attacks of September 11 as an example of how a utility knife could be a weapon of which

one could reasonably be afraid. Again, Rose did not object to this analogy and our

review of the record does not persuade us that the prosecutor's comment resulted in a

manifest miscarriage of justice, undermined the trial's fundamental fairness, or

compromised the judicial process's integrity and we decline to exercise our discretionary

plain error review. See Racz, ¶ 34; State v. Daniels, 2003 MT 247, ¶ 20, 317 Mont. 331,

¶ 20, 77 P.3d 224, ¶ 20.

¶110 Issue 4: Was Rose’s trial counsel ineffective before she was removed, thus

requiring a mistrial?

¶111 A criminal defendant’s right to counsel is guaranteed by the Sixth Amendment to

the United States Constitution and Article II, Section 24 of the Montana Constitution.

34
The right to counsel means the right to effective assistance of counsel. Strickland v.

Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984).

¶112 This Court has adopted the two-prong test first enunciated by the United States

Supreme Court in Strickland for evaluating a defendant’s claim of ineffective assistance

of counsel. See e.g. State v. Meza, 2006 MT 210, ¶ 27, 333 Mont. 305, ¶ 27, 143 P.3d

422, ¶ 27; State v. Jefferson, 2003 MT 90, ¶ 43, 315 Mont. 146, ¶ 43, 69 P.3d 641, ¶ 43;

State v. Rose, 1998 MT 342, ¶ 12, 292 Mont. 350, ¶ 12, 972 P.2d 321, ¶ 12. A defendant

who brings an ineffective assistance of counsel claim bears the burden of showing: (1) his

counsel’s representation fell below an objective standard of reasonableness, and (2) his

counsel’s failure was prejudicial. Jefferson, ¶ 43 (citing Strickland, 466 U.S. at 668, 104

S. Ct. at 2052).

¶113 In regard to the first prong of the Strickland test – whether counsel’s performance

was deficient – the inquiry must be “‘whether counsel’s assistance was reasonable

considering all the circumstances.’” Whitlow v. State, 2008 MT 140, ¶ 14, 343 Mont. 90,

¶ 14, 183 P.3d 861, ¶ 14 (quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2065). Every

effort must be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time. Whitlow, ¶ 15 (citing Strickland, 466 U.S. at 689, 104

S. Ct. at 2065).

¶114 The pertinent inquiry, therefore, is not whether counsel acted because of ignorance

or neglect but, rather, whether counsel’s conduct fell below an objective standard of

35
reasonableness measured under prevailing professional norms under the surrounding

circumstances. Whitlow, ¶ 20.

¶115 Under the second prong of Strickland, the defendant must show the existence of a

reasonable probability that, but for counsel’s unprofessional conduct, the result of the

proceedings would have been different. Jefferson, ¶ 53 (citing Strickland, 466 U.S. at

694, 104 S. Ct. at 2068). The prejudice inquiry focuses on whether counsel’s deficient

performance renders the trial result unreliable or the proceedings fundamentally unfair.

Jefferson, ¶ 53 (citing Strickland, 466 U.S. at 696, 104 S. Ct. at 2069).

¶116 Rose made no claim on appeal his counsel was ineffective by causing the delay

between the time he was arrested and the time he was brought to trial.

¶117 Even though Rose discharged his counsel and represented himself, he claims on

appeal Sather was ineffective before he discharged her because during voir dire she failed

to either properly question, or attempt to remove for cause, a prospective juror who

previously worked at the county attorney’s office. Rose asserts he is entitled to a new

trial, relying on State v. LaMere, 2005 MT 118, 327 Mont. 115, 112 P.3d 1005, where

defense counsel admitted he was negligent in reviewing a jury questionnaire, and allowed

a mother of a paralegal who worked for the prosecutor’s office to sit on the jury.

¶118 A defendant is guaranteed an impartial jury by Article II, Section 24 of the

Montana Constitution. LaMere, ¶ 7. Voir dire in a criminal proceeding requires

adequate questioning to assure counsel's ability to challenge a prospective juror for cause.

36
LaMere, ¶ 15; State v. Herrman, 2003 MT 149, ¶ 23, 316 Mont. 198, ¶ 23, 70 P.3d 738,

¶ 23.

¶119 In this case, defense counsel has not admitted a mistake, as was the case in

LaMere. In conducting voir dire, the prosecutor listed the witnesses that may be called to

testify and then asked if any veniremen knew them. One remarked she knew one of the

potential witnesses, a retired detective, because a couple of years previously she had held

a temporary position in the county attorney’s office. She then stated she would not tend

to favor one side or the other and could hear the evidence and decide the case. She stated

she would be fair. In her voir dire for the defense, Sather confirmed this potential juror

knew the named witness. The juror then stated she also knew the Roses, years

previously.

¶120 There is nothing in the record that indicates this juror held any bias or prejudice.

She had, years before, worked as a temporary employee in the county attorney’s office

and was also acquainted with the defendant’s family. These facts do not indicate a bias

or a prejudice. When there is nothing in the record to indicate a potential juror is biased,

this Court does not presume she harbors a bias or prejudice. Cf. State v. Ibarra-Salas,

2007 MT 173, ¶ 22, 338 Mont. 191, ¶ 22, 164 P.3d 898, ¶ 22 (stating there is no

presumption of juror bias for or against members of any particular racial or ethnic group).

The juror, without coaching, affirmatively stated she could be fair, and would hear the

evidence and decide the issues presented to her. As there is no record this particular juror

had any bias or prejudice, we conclude counsel’s assistance did not fall below an

37
objective standard of reasonableness measured under prevailing professional norms under

the surrounding circumstances. Whitlow, ¶ 20.

¶121 Finally, Rose takes a shotgun approach and argues under the second prong of

Strickland he probably would not have been convicted if his counsel inspected and tested

blood evidence in Davies’ pickup where the offense occurred, because counsel did not

object to evidence concerning his use of methamphetamine, and because counsel made

no objection to a jury instruction that an intoxicated condition is not an excuse to commit

a crime.

¶122 Rose argues the failure to preserve the pickup led to his inability to present blood

evidence. Davies testified, and Rose does not deny, both he and Davies suffered bloody

injuries in the cab of the pickup. How blood evidence could have been exculpatory

remains a mystery.

¶123 Relating to methamphetamine use, after the trial had started, Rose decided to

change his defense theory from lack of ability to form the intent to commit an offense

because of mental disease or defect, to justifiable use of force. He then discharged his

counsel, and proceeded pro se. When the State called the victim to testify, he said

without objection, Rose was agitated and nervous the day of the offenses, that Rose told

him that his girlfriend had spiked his hot chocolate with meth or speed, and that Rose

wanted to go to a treatment center. Rose himself testified he was afraid and nervous that

day, and also he would have gone to a treatment center. He also testified about his

methamphetamine use. On appeal, Rose has not made a cogent argument as to why

38
evidence of his methamphetamine use was error. Even if there were an error in

introduction of such evidence, its introduction is attributable to Rose himself, not

appointed counsel. Also, considering the evidence introduced, we see no error in giving

the instruction concerning voluntary intoxication.

¶124 We conclude appointed counsel’s assistance was reasonable considering all the

circumstances and did not fall below an objective standard of reasonableness measured

under prevailing professional norms. Whitlow, ¶ 20.

¶125 Affirmed.

/S/ JOHN WARNER

We Concur:

/S/ W. WILLIAM LEAPHART

/S/ JIM RICE

/S/ SUSAN P. WATTERS
District Court Judge Susan P. Watters
Sitting in for Justice Brian Morris

Justice James C. Nelson, specially concurring.

¶126 I concur in the ultimate results the Court reaches on all four issues, but I do not

agree with all of the Court’s reasoning. My primary concerns relate to the Court’s

decision on the speedy trial issue (Issue 1). Thus, I limit my discussion here to that

specific issue.

39
¶127 For one thing, the Court’s speedy trial analysis contains a number of factual errors

and unsupported legal propositions. The Court also paints extremely one-sided pictures

of the circumstances related to Factors Two and Four. For instance, the Court unduly

minimizes the conditions of Rose’s incarceration and overstates the extent to which Rose

caused pretrial delay. Along these same lines, the Court totally ignores the District

Court’s role in unnecessarily delaying Rose’s trial. Lastly, in several instances, the Court

misapplies the revised speedy trial test articulated in State v. Ariegwe, 2007 MT 204, 338

Mont. 442, 167 P.3d 815. Under Factor Two in particular, the Court does not follow the

approach we established in Ariegwe and repeated in State v. Billman, 2008 MT 326, 346

Mont. 118, 194 P.3d 58. See Ariegwe, ¶¶ 124-134; Billman, ¶¶ 22-30. I address these

and other points in the following application of the Ariegwe test to the facts of this case.

FACTOR ONE: THE LENGTH OF THE DELAY

¶128 I agree with the Court’s calculation of a 507-day delay between arrest and trial.

Opinion, ¶ 45. I also agree that the State’s burden to justify the delay under Factor Two

is “increased substantially” and that the State must make a “highly persuasive showing”

under Factor Four that Rose was not prejudiced by the delay. Opinion, ¶¶ 46, 66. It is

important to point out, however, that in Ariegwe the delay stretched 208 days beyond the

200-day trigger date for speedy trial analysis, see Ariegwe, ¶ 123, while here the delay

stretches 307 days beyond the trigger date. In Ariegwe, we stated that the State must

provide “particularly compelling justifications” for the delay under Factor Two and must

make a “highly persuasive showing” under Factor Four that Ariegwe was not prejudiced

40
by the delay. Ariegwe, ¶ 123. Accordingly, the burden on the State in the present case is

even heavier under these two factors.

FACTOR TWO: THE REASONS FOR THE DELAY

¶129 At the outset of discussing Factor Two, I note that my primary disagreement with

the Court’s analysis is its failure to acknowledge and properly attribute the substantial

amount of avoidable delay in this case. As explained below, there are significant blocks

of time during which no trial date was set, which in turn created delay for which there

was no constitutionally acceptable justification. Such delay certainly cannot be blamed

on Rose, as the Court has done. Rather, it must be attributed to the State.

¶130 In this connection, it is necessary to recall the basic principles which dictate our

approach under Factor Two. For one, “ ‘the primary burden’ to assure that cases are

brought to trial is ‘on the courts and the prosecutors.’ ” Ariegwe, ¶ 72 (quoting Barker v.

Wingo, 407 U.S. 514, 529, 92 S. Ct. 2182, 2191 (1972)). “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 MT 356, ¶ 23, 324 Mont. 444, ¶ 23, 103

P.3d 538, ¶ 23. Moreover, “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 (emphasis added). Thus, the Supreme Court

has repeatedly held that the prosecutor and the trial 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 Ariegwe, ¶ 65.

41
Consistent with these principles, the prosecution bears the burden of explaining pretrial

delays. Ariegwe, ¶¶ 64-65.

First Trial Setting: July 29, 2002 (199 Days of Delay)

¶131 Rose became an “accused” on January 11, 2002, when he was arrested in relation

to the charges ultimately filed in the District Court. The first trial date set by the District

Court was July 29, 2002. This constitutes a 199-day delay between arrest and the first

trial setting. The District Court attributed this delay to the State as institutional delay.

This Court appears to attribute 35 days of it to Rose. See Opinion, ¶¶ 49-51. An analysis

under Ariegwe reveals both to be incorrect.

¶132 The following events occurred following Rose’s arrest:

• January 11: Initial appearance in Justice Court.

• January 23: Filing of the Information in District Court.

• February 6: Initial appearance in District Court. Upon inquiry by the court,
defense counsel stated that he had recently received about 160 pages of discovery
and needed time to review it before Rose would enter his plea. The court
scheduled entry of plea for February 13.

• February 13: Rose entered a plea of not guilty. The District Court scheduled the
omnibus hearing for March 6.

• March 6: Omnibus hearing. The District Court approved the Omnibus Hearing
Memorandum. In addition, pursuant to its trial procedure, the court ordered Rose
and the State to conduct a “face to face settlement conference” on April 18. The
court stated that a trial date would “be set thereafter if necessary.”

• April 10: Status hearing. Defense counsel requested a continuance of the
settlement conference. The District Court reset the conference for May 2.

• April 24: Hearing to address Rose’s complaints about defense counsel. At the
conclusion of this hearing, the prosecutor and defense counsel advised the court
that the case had not been settled.
42
 • April 25: The District Court entered an order setting trial for July 29, 2002
(95 days out).

¶133 The 95-day delay between April 25 and the July 29 trial date is attributable to the

State as institutional delay. Ariegwe, ¶ 68. But the 104-day delay between January 11

(Rose’s arrest) and April 25 is another matter. Again, the primary burden to assure that

cases are brought to trial is on the courts and the prosecutors, and the trial court itself has

an “ ‘affirmative constitutional obligation’ ” to make a good faith, diligent effort to bring

the defendant to trial quickly. Ariegwe, ¶¶ 65, 72. Given these constitutional mandates,

there is simply no justification for a trial court’s failing to select a trial date at the earliest

practical opportunity to do so.

¶134 Notably, in Ariegwe, the district court set trial at Ariegwe’s arraignment. In

Billman, the district court issued an order 20 days after Billman’s arraignment scheduling

the omnibus hearing and setting a trial date. In this case, however, the District Court did

not set trial until well after the omnibus hearing. The State offers no justification for

delaying until 50 days after the omnibus hearing and 71 days after Rose’s arraignment to

set a trial date which, as noted, was 95 days out.

¶135 Absent exceptional circumstances, a trial court should be able to select a trial date

by the time of the omnibus hearing or promptly thereafter. The purpose of this hearing,

which is to be held “[w]ithin a reasonable time following the entry of a not guilty plea but

not less than 30 days before trial,” is “to expedite the procedures leading up to the trial of

the defendant.” Section 46-13-110(1), (2), MCA. At this point in time, the parties should

have a good idea of whether a trial is “necessary.” Indeed, § 46-13-110(3), MCA,
43
instructs the prosecutor and defense counsel to be prepared to discuss a number of pretrial

matters, including the existence of a plea agreement; reliance on certain defenses; intent

to seek persistent felony offender status; intent to rely on evidence of other crimes,

wrongs, or acts; and change of venue. While a “face to face settlement conference” after

the omnibus hearing might ultimately resolve the case, that is beside the point. There is

always a risk that the case will not be settled, and the speedy trial right prohibits the court

from placing that risk on the defendant by refusing to select a trial date until after the

conference.

¶136 Here, on March 6, the District Court required the parties to have a “face to face

settlement conference” on April 18 and stated that a trial date would be set thereafter, “if

necessary.” While this procedure may have enabled the court to set only “necessary”

trial dates, it conflicted with the court’s affirmative constitutional obligation to ensure

that criminal defendants are brought to trial expeditiously. Fifty days later, after being

apprised by the prosecutor and defense counsel that the case remained unresolved, the

court set trial. Presumably, July 29 was the earliest suitable date; however, this does not

change the fact that a suitable date roughly 50 days earlier might have been possible had

the court not delayed setting Rose’s trial.

¶137 The Court asserts that Rose’s counsel was “unprepared” at the March 6 omnibus

hearing and requested additional time to investigate whether he should move for a change

of venue. Opinion, ¶ 50. Conspicuously absent from the Court’s discussion, however, is

the fact that the prosecutor likewise was “unprepared” and, thus, requested additional

time to file his notice under State v. Just, 184 Mont. 262, 274, 602 P.2d 957, 963-64
44
(1979), and State v. Matt, 249 Mont. 136, 142-43, 814 P.2d 52, 56 (1991). The District

Court gave defense counsel until March 27 to file a change of venue motion and gave the

prosecutor until March 29 to file his Just/Matt notice. Nevertheless, the Court assigns

21 days of delay to Rose. Opinion, ¶ 50. This approach is erroneous for two reasons.

¶138 First, the District Court’s policy, as stated in the Omnibus Hearing Memorandum,

was not to set a trial date until after the settlement conference, which was slated for

April 18. Thus, defense counsel’s request for additional time to investigate a change of

venue had absolutely no impact on the setting of a trial date in this case. Both his

investigation and his motion were to be completed several weeks before the settlement

conference was to occur. Consequently, the Court here is doing exactly what we said in

Ariegwe a court should not do: “consider any actions taken by the State or the accused

which do not result in a postponement of the trial date.” Ariegwe, ¶ 63. Defense

counsel’s request did not delay Rose’s trial; thus, there is no basis for the Court to assign

Rose the 21 days of delay.

¶139 Second, and more to the point, neither Rose’s request for additional time to

investigate a change of venue nor the State’s request for additional time to file its

Just/Matt notice precluded the District Court from setting a trial date. The record reflects

that that a three- to four-month delay between setting a trial date and holding the trial was

typical for the District Court during this period. Had the court set trial on March 6 for

June 10, instead of setting it on April 25 for July 29, 50 days of delay could have been

averted. While this might appear to be speculative, the critical point here is that the State

has the burden of justifying the pretrial delays, and that burden in this case is “increased
45
substantially” (Opinion, ¶ 46) due to the extent of the delay. Yet, the State has offered no

justification for the District Court’s waiting until April 25 to select a trial date.

¶140 Based on the foregoing analysis, I conclude that the 199-day delay between arrest

and the first trial setting is properly attributed as follows. First, from the January 11

arrest to the March 6 omnibus hearing (54 days): Accepting, for the sake of argument,

the Court’s assertion that Rose delayed the selection of a trial date by 7 days when he

requested time to review discovery before entering his plea (Opinion, ¶ 49), 47 days are

attributable to the State as institutional delay and 7 days are attributable to Rose as

acceptable delay in preparing his case. See Ariegwe, ¶¶ 68-72. Second, from March 7 to

April 25 (50 days): Because this delay resulted from the District Court’s decision to

postpone setting Rose’s trial date, for which the State has provided no justification, it is

attributable to the State and weighted more heavily than unavoidable delay inherent in the

criminal justice system. See e.g. Ariegwe, ¶¶ 126-128. Lastly, from April 26 to July 29

(95 days): These days are attributable to the State as institutional delay.

Second Trial Setting: November 18, 2002 (112 Days of Delay1)

¶141 The Court notes that on July 11, 2002, defense counsel filed a motion to continue

the trial and included a “waiver” of Rose’s right to a speedy trial. Opinion, ¶ 52. Based

on this single fact, the Court attributes all 112 days to Rose. Opinion, ¶ 52. While I do

not necessarily disagree with the Court that Rose is responsible for some, if not all, of this

delay, the question is not as straightforward as the Court’s reasoning suggests. For one

1
The Court calculates “102 days.” Opinion, ¶ 52. However, the period beginning
July 30, 2002, and running through November 18, 2002, spans 112 days.
46
thing, the Court simply assumes that Rose’s supposed “waiver” was valid. Moreover, the

Court fails to consider a number of pertinent circumstances related to the continuance.

Rose’s Motion to Continue and “Waiver”

¶142 Through a series of letters sent to the District Court in April, May, and June 2002,

Rose expressed dissatisfaction with court-appointed counsel Larry Mansch. At a status

hearing held June 19, Rose stated that he wanted a different attorney, and Mansch

indicated that his ability to communicate with Rose had been compromised. Mansch

advised the court that he had spoken with Dustin Gahagan about assuming the case, and

the County Attorney concurred with this suggestion, stating that “the best thing we could

do at this point is relieve Mr. Mansch, appoint Mr. Rose another attorney, with the

understanding that trial is set for July 31st [sic]. I think that gives the other attorney time

to come up to speed on the case.” Accordingly, the court appointed Gahagan to replace

Mansch and instructed Gahagan to advise the court if a trial postponement was needed.

¶143 On July 11, Gahagan filed the motion to continue, explaining as follows:

The undersigned has not been on this case very long and needs additional
time to review the evidence and prepare a defense. Defendant has signed a
handwritten waiver of his right to a speedy trial and the undersigned will
execute and file a more formal waiver in the near future.[2] Another reason
for the request is that the undersigned is no longer a part of the “conflict
public defender” contract with Ravalli County. Because the undersigned is
currently extremely busy, the new “conflict public defenders” have been
contacted about taking over this case and they have indicated that they
would also need additional time to prepare for trial. County Attorney
George Corn has been contacted and does not oppose a continuance.

Attached to the motion was a piece of paper on which a single handwritten statement

2
It does not appear that the “more formal waiver” was ever executed.
47
appeared: “I Robert L. Rose here by wave [sic] my Right to a Quick and Speedy Trial.”

This statement was dated July 10.

¶144 On July 12, Rose sent a letter to the District Court in which he explained, on one

hand, that “I was hoping not to have to wave [sic] my Right to a speedy trial,” but on the

other hand, that “I do not feel it is possible for me to have a fair trial if it is not

postponed.” According to Rose, Gahagan had told him that he (Gahagan) would not have

time to prepare for trial.

¶145 On July 19, the District Court sent Rose a letter stating that the motion to continue

would be granted. In addition, the court informed Rose that Gahagan “is no longer a

contract public defender which may require reassignment of your defense to the new

conflict public defenders in the immediate future.” Also on July 19, Gahagan filed a

motion to substitute Kelli Sather as defense counsel “for the reason that Kelli S. Sather

and Sasha Brownlee now have the conflict contract with Ravalli County and all cases

need to be transferred to new counsel.” The court granted this motion on July 22. On

July 29, the District Court entered an order resetting trial for November 18.

¶146 Without citation to any authority, the Court asserts that “in most cases, once the

defendant waived his right to a speedy trial, it is unnecessary to continue with an analysis

of whether that right has been violated.” Opinion, ¶ 53. This statement is patently

incorrect. Assuming for the moment that Rose’s one-sentence “waiver” is valid, it was

attached to a specific motion to continue, and nothing in the waiver indicates that Rose

intended to waive his right to a speedy trial for all pretrial delays. The waiver, rather,

was intended (as Rose later confirmed in his July 12 letter) to secure a continuance of the
48
July 29 trial date. The Supreme Court has said that courts “should indulge every

reasonable presumption against waiver” and “not presume acquiescence in the loss of

fundamental rights.” Barker, 407 U.S. at 525-26, 92 S. Ct. at 2189 (internal quotation

marks omitted). Accordingly, the Court errs in suggesting that Rose’s supposed waiver

applied to all of the delays in this case. See United States v. DeLongchamps, 679 F.2d

217, 219 (11th Cir. 1982) (“The defendants’ waivers were manifestly intended to secure a

continuance and were submitted for no other purpose. Indulging every reasonable

presumption against waiver of the right to a speedy trial, we decline to hold that the

waivers extended to other delays in this case.” (citations omitted)).

¶147 At a more fundamental level, however, I question the validity of this waiver. It is

well-established that “any waiver of one’s constitutional rights must be made specifically,

voluntarily, and knowingly.” State v. Tapson, 2001 MT 292, ¶ 25, 307 Mont. 428, ¶ 25,

41 P.3d 305, ¶ 25 (citing Park v. District Court, 1998 MT 164, ¶ 36, 289 Mont. 367, ¶ 36,

961 P.2d 1267, ¶ 36, in turn citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019,

1023 (1938), and State v. Lucero, 151 Mont. 531, 538, 445 P.2d 731, 735 (1968)). The

Supreme Court has “placed the entire responsibility on the prosecution to show that the

claimed waiver was knowingly and voluntarily made.” Barker, 407 U.S. at 529, 92 S. Ct.

at 2191. The State, however, has made no effort in the present case to show that Rose’s

waiver was made knowingly and voluntarily.

¶148 In this connection, Rose contends that he was “forced” to choose between his right

to effective assistance of counsel and his right to a speedy trial. He cites Simmons v.

United States, 390 U.S. 377, 88 S. Ct. 967 (1968), in which the Supreme Court observed:
49
 [The defendant] was obliged either to give up what he believed, with advice
of counsel, to be a valid Fourth Amendment claim or, in legal effect, to
waive his Fifth Amendment privilege against self-incrimination. In these
circumstances, we find it intolerable that one constitutional right should
have to be surrendered in order to assert another.

Simmons, 390 U.S. at 394, 88 S. Ct. at 976. Rose also relies on State v. Blair, 2004 MT

356, 324 Mont. 444, 103 P.3d 538, in which we agreed with the following argument by

defense counsel in support of Blair’s speedy trial motion:

“[R]egardless of the fact that I am in fact Mr. Blair’s third attorney and that
he had two before, he is in no way responsible for that. He’s not
accountable for that, and certainly is entitled, regardless of personnel
changes in the Yellowstone County Public Defender’s Office, to a timely
and effective representation.”

Blair, ¶ 22.

¶149 In the present case, according to the report filed by Sasha Brownlee in May 2003,

Gahagan asked Rose to sign the purported waiver “as Gahagan was no longer going to

work for the county and [Rose] would be assigned new counsel.” A defendant, however,

cannot be required to waive his right to a speedy trial simply because the public defender

contract is changing hands and his new counsel will not be prepared for trial. It is

doubtful that such a waiver is “voluntary.” Moreover, the defendant certainly should not

be blamed for delay caused by personnel changes within the public defender system.

¶150 I accept that Rose’s objections to Mansch’s representation, which ultimately led to

Mansch’s replacement on June 19, contributed to the need for a continuance of the

July 29 trial date. On the other hand, Rose could not be required to choose between his

right to effective assistance of counsel on one hand and his right to a speedy trial on the

other. Simmons, 390 U.S. at 394, 88 S.Ct. at 976.
50
 The State’s Motion to Add Witnesses

¶151 Wholly aside from the substitutions of Rose’s appointed counsel, another event

occurring in early July 2002 bears on the instant discussion. Section 46-11-401(2),

MCA, requires the prosecution to “include endorsed on the information or indictment the

names of the witnesses for the prosecution, if known.” When the prosecutor filed the

Information on January 23, 2002, he endorsed ten witnesses:

• RCSO Lt. Bruce Hennell
• RCSO Deputy Zae Hudson
• RCSO Sgt. Kevin McConnell
• RCSO Deputy Steve Holton
• Marcus Daly Hospital employees
• RCSO Detention Officer Lt. Andy Kollmer
• RCSO Detention Center personnel
• John H. Beck
• Geneviere Indreland
• Kermit Indreland

¶152 Although the prosecution may disclose additional witnesses at the omnibus

hearing, see §§ 46-13-110(3)(e) and 46-15-322(1)(a), MCA, there is no record that such

witnesses were mentioned at the March 6, 2002 omnibus hearing in this case. However,

on July 8, a mere 21 days before trial, the State filed a motion to add 13 new witnesses to

the Information. The following witnesses were listed in the motion:

• Sgt. Detective Pete Clarkson, RCSO
• Detective Sterling Maus, RCSO
• Detective Jim Chinn, RCSO
• Officer Donald Wilks, RCSO
• Officer Rick Hardy, RCSO
• Kirk Davies, Missoula, MT
• Dr. Brett Bender, Marcus Daly ER, Hamilton, MT
• Dr. Frederick M. Ilgenfritz, Marcus Daly ER, Hamilton, MT
• Dr. Walker J. Ashcraft, Marcus Daly, Hamilton, MT
• Mary Wojciechowski, RN, Marcus Daly Hospital, Hamilton, MT
51
 • Brian Finkle, Ph.D., Cameron, MT
• John Hyslip, Risk Manager, Pathways Treatment Center, Kalispell, MT 59901
• Mark Dalby, Ravalli County, MT

The District Court granted the State’s motion on July 9. Defense counsel filed the motion

to continue the trial two days later.

¶153 The prosecutor offered no justification for not endorsing these witnesses sooner,

and it is difficult to conceive of a meritorious explanation for why the prosecution

apparently was unaware, prior to July 8, 2002, that Kirk Davies (one of the victims of the

charged offenses), five members of the Ravalli County Sheriff’s Office, and four

healthcare professionals from Marcus Daly Hospital had relevant testimony to provide at

Rose’s trial. In any event, the point here is that even if Mansch had stayed on as Rose’s

counsel, the State’s endorsement of 13 new witnesses 21 days before trial likely would

have necessitated a continuance. For this reason, I cannot agree with the State’s assertion

that “there would have been no delay but for Rose’s request for new counsel.”

Conclusion

¶154 The State must provide particularly compelling justifications for the delay in this

case. See Ariegwe, ¶ 123. Moreover, “[a]ny delay not demonstrated to have been caused

by [Rose] or affirmatively waived by [Rose] . . . is attributed to the State by default.”

Ariegwe, ¶ 65. If these standards are to have any meaning in our speedy trial framework,

I cannot agree with the Court that the 112-day delay between the first and second trial

settings should be attributed solely to Rose. Opinion, ¶ 52. The State has the burden to

show that that Rose’s “waiver” was made knowingly and voluntarily, but the State has

not done so. The State also has the burden to show that postponement of the July 29 trial
52
date was caused by Rose, but the record is ambiguous on this point. The postponement

may have been necessitated by institutional changes in the public defender system, by the

prosecution’s motion to add 13 new witnesses 21 days before trial, by the replacement of

Mansch at Rose’s request about six weeks before trial, or by all of these factors.

¶155 The Court makes the valid point that “[w]hen a defendant makes requests for new

counsel and then withdraws those requests only to renew those requests later, requiring a

hearing and ultimately resulting in the withdrawal of counsel, the delay caused is

appropriately attributed to the defendant.” Opinion, ¶ 58 (citing State v. Ellenburg, 2000

MT 232, ¶¶ 22-24, 301 Mont. 289, ¶¶ 22-24, 8 P.3d 801, ¶¶ 22-24, and State v. Collier,

277 Mont. 46, 55-56, 919 P.2d 376, 382-83 (1996)). Yet, the record in this case does not

establish that Rose’s complaints about court-appointed counsel were meritless. See

Ellenburg, ¶ 24 (observing that Ellenburg’s “meritless” complaints delayed his trial).

And to the extent Rose’s complaints were made in the legitimate exercise of his right to

effective assistance of counsel, he cannot be charged with the resulting delay.

¶156 For these reasons, I conclude that responsibility for the 112 days should be

shouldered in part (if not in whole) by the State, given the State’s heavy burden to justify

the delay and the State’s failure to make the proper showings here. That being said,

attributing the 112 days to Rose (as does the Court, see Opinion, ¶ 52) does not change

my ultimate conclusion under Factor Two. Thus, for the sake of argument, I will assume

that this delay is attributable to Rose.

53
 Third Trial Setting: May 12, 2003 (175 Days of Delay3)

¶157 On October 25, 2002, defense counsel (Sather) filed a Motion for Psychological

Examination. At a hearing on October 28, the District Court advised Rose that the trial

would have to be rescheduled if an evaluation was conducted. Rose indicated that he

understood this. The court then granted the motion. The court stated, however, that a

new trial date would not be set until the evaluation was received.

¶158 Of the 175 days between November 18, 2002 (second trial setting) and May 12,

2003 (third trial setting), the District Court attributed 86 days to Rose and 89 days to the

State. The court reasoned that the time it took to complete the psychological evaluation

was Rose’s responsibility and the time between completing the evaluation and trial was

the State’s responsibility. The flaw in this reasoning, however, is that these two time

periods could have elapsed simultaneously had the court promptly rescheduled trial upon

granting Rose’s motion.

¶159 The first trial date in this case was set on April 25, 2002, for July 29, 2002 (about

three months out); the second trial date was set on July 29, 2002, for November 18, 2002

(nearly four months out); and the third trial date was set on February 19, 2003, for

May 12, 2003 (almost three months out). Thus, on October 28, 2002, when the court

granted the Motion for Psychological Examination and vacated the existing trial date, had

the court then set a new trial date, the new date likely would have been sometime in

February 2003. (Actually, the prosecutor pointed out during the October 28 hearing that

3
The Court calculates “171 days.” Opinion, ¶ 54. However, the period beginning
November 19, 2002, and running through May 12, 2003, spans 175 days.
54
“trial dates are already being scheduled in March.”) But that did not occur. Rather, the

court stated that “I won’t set [the trial date] until we get the report in.” As a result, there

is a significant period of time (October 28, 2002, to February 19, 2003) during which

there was no trial date set in this case at all.

¶160 Such delay is unacceptable, and it clearly is not attributable to Rose. As explained

above, the trial court shares the duty of assuring that a criminal case is brought to trial

expeditiously. This includes maintaining a trial date. Having a pending trial date

provides an impetus for the parties to prepare their cases diligently for trial, which in turn

lessens the chance of a speedy trial violation. It also creates a favorable situation in

which “docket delay” (i.e., delay caused by the reality that trial dates have to be set a

number of months in advance) transpires simultaneously with the time required by the

parties to prepare their cases.

¶161 By waiting until February 19, 2003, to set a trial date, the District Court created

needless delay (during which, incidentally, Rose was incarcerated). Had the court, on

October 28, 2002, set a trial date for, e.g., March 3, 2003 (about four months out), and

had Rose’s counsel requested additional time to review the psychological report (which

counsel received during the first week of February 2003), then such delay would have

been properly attributed to Rose. But Rose was never even given the opportunity to

proceed to trial in early March 2003 because the District Court failed to set a new trial

date promptly after it vacated the November 18, 2002 trial date.

¶162 This Court attributes the entire 175-day period to Rose on the ground that his

Motion for Psychological Examination caused the District Court to vacate the
55
November 18 trial date. Opinion, ¶ 54. Yet, for the reasons just discussed, although

Rose’s motion caused the court to vacate the existing trial date, the motion did not in any

way preclude the court from promptly setting a new trial date. Rather, the court of its

own accord decided to allow four months to pass by without a pending trial date in

Rose’s case. Notably, the parties were ready to proceed in mid-February 2003, but they

had to wait an additional three months to go to trial due entirely to the District Court’s

failure to maintain a trial setting for Rose on the court’s docket.

¶163 For these reasons, I conclude that of the 175 days between the second and third

trial settings, the 93 days of avoidable delay during which no trial date was set

(November 18, 2002, to February 19, 2003) is attributable to the State and weighs more

heavily than institutional delay. The remaining 82 days are attributable to Rose.

Fourth Trial Setting: June 2, 2003 (21 Days of Delay)

¶164 This postponement was necessitated by a conflict in the District Court’s calendar.

The 21-day delay is attributable to the State as institutional delay.

Summary

¶165 In sum, the interval between accusation and trial in this case was 507 days. Of

that, 306 days (60 percent) are attributable to the State as follows: 163 days as

institutional delay, and 143 days as avoidable delay in setting trial dates. The remaining

201 days (40 percent) are attributable to Rose due to his trial preparations. Significantly,

there is no evidence of stonewalling on the part of the prosecution. Indeed, on a number

of occasions, the prosecution expressed concern about the speedy trial issue and objected

to postponing the trial date. On the other hand, given the State’s substantially increased
56
burden to justify the delay in this case (Opinion, ¶ 46), and given the amount of delay

attributable to the State that could have been avoided, I conclude that Factor Two weighs

in Rose’s favor, though only slightly.

FACTOR THREE: ROSE’S RESPONSES TO THE DELAY4

¶166 At the outset, I note the Court’s assertion that “[t]he State’s response to the

motions for delay indicates its desire to proceed to trial.” Opinion, ¶ 62. As explained in

Ariegwe, however, the critical question under Factor Three is “whether the accused

actually wanted to be brought to trial promptly.” Ariegwe, ¶ 76 (emphasis added). The

State’s desire to proceed to trial has little, if any, relevance to this question. Rather, we

must evaluate Rose’s responses to the pretrial delays. See Ariegwe, ¶¶ 79-81. Conduct

evidencing a desire to be brought to trial promptly weighs in Rose’s favor, whereas

conduct demonstrating a desire to avoid trial weighs against Rose in the overall

balancing. See Ariegwe, ¶ 85.

¶167 Some of Rose’s pretrial letters suggest ongoing frustration about the pace at which

defense counsel was investigating and preparing the defense. Yet, many of Rose’s

actions (such as the repeated about-faces concerning Mansch’s representation and the

request for a psychological examination in spite of the fact that it would require a trial

postponement) suggest that Rose was not overly concerned about the pretrial delays.

Likewise, although Rose asserted his right to a speedy trial in a number of court filings

4
The Court captions this factor: “Response to the delay and assertion of speedy
trial right.” Opinion, ¶ 59. In Ariegwe, however, we explicitly “abandon[ed] the
‘Assertion of the Right’ label” and stated that, henceforth, we would “refer to Factor
Three as ‘The Accused’s Responses to the Delay.’ ” Ariegwe, ¶ 85.
57
beginning in late-February 2003, the sincerity of these assertions is questionable. See

Opinion, ¶ 61 (referring to Rose’s assertions as “half-hearted”). Considering the totality

of Rose’s conduct, I agree with the Court that Factor Three weighs in favor of the State.

FACTOR FOUR: PREJUDICE TO ROSE

¶168 Under Factor Four, we assess whether Rose was prejudiced in the light of the

interests that the speedy trial right was designed to protect: preventing oppressive pretrial

incarceration, minimizing anxiety and concern, and limiting the possibility that the

defense will be impaired. See Ariegwe, ¶¶ 86-88. As noted, the State must make a

“highly persuasive showing” that Rose was not prejudiced by the delay. Opinion, ¶ 66.

¶169 I generally agree with the Court’s analysis under Factor Four (Opinion, ¶¶ 69-85),

except with respect to the oppressiveness of the incarceration. Rose was incarcerated at

the Ravalli County Detention Center (RCDC) for the entire 507 days between arrest on

January 11, 2002, and trial on June 2, 2003. He spent the first seven months isolated in a

maximum security cell. He testified in the District Court (during the speedy trial hearing)

that he was not allowed contact with other inmates during this period. He was in his cell

for at least 23 hours a day, and some days he was not let out of his cell at all. His only

human contact was with the guards when they delivered his meals through a food slot.

He ate alone in his cell, which was seven feet wide and approximately ten feet long and

had a cement floor, a cement ceiling, cinderblock walls, and a stainless steal toilet and

sink. The only window was a four inch by four inch piece of glass in the door.

¶170 Rose claims he was placed in isolation despite strong indications that he suffered

from existing mental health issues including bipolar disorder. Rose cites Walker v. State,
58
2003 MT 134, 316 Mont. 103, 68 P.3d 872, in which we recognized “the psychological

harm caused by placing inmates in a severely restrictive setting for nearly 24 hours a

day,” which can manifest as massive anxiety, acute confusion, paranoia, concentration

and memory problems, and aggressive or self-destructive behaviors. Walker, ¶ 66. In

this connection, Paul Graves, who met with Rose almost weekly as part of the jail

ministry, testified that Rose lost around 15 or 20 pounds during his isolation and that the

slight limp Rose had when they first met appeared to worsen over this period.

¶171 During the winter months, Rose’s cell was “unbearable” in terms of temperature.

Rose testified that there were “times you could see your breath in the cell and there was

just no relief.” He was allowed only one blanket and would “shiver all night long.” He

also stated that he was threatened with disciplinary action when he plugged a vent that

blew cold air into his cell. Cathy Powell, RCDC Commander, acknowledged at the

speedy trial hearing that there had been problems with the heating. She testified that

these problems have since been remedied.

¶172 The State asserts that “[n]either the length nor the conditions of Rose’s pretrial

incarceration were oppressive in light of the nature of the charged offenses, Rose’s

criminal history and Rose’s drug history.” The Court appears to agree. See Opinion,

¶ 71. Yet, even if Rose’s pretrial incarceration was necessitated to an extent by the

factors set forth in the bail statute (§ 46-9-301, MCA), nothing about the nature of the

charged offenses, Rose’s criminal history, or Rose’s drug history could justify subjecting

him for an extended period of time to the conditions discussed above.

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¶173 Rose was incarcerated for 507 days in a short-term holding facility. He spent the

first seven months isolated in a maximum security cell. Considering the duration and

conditions of that incarceration, I conclude that the incarceration was oppressive.

However, as noted, I agree with the Court that the delay in bringing Rose to trial did not

unduly prolong the disruption of his life or aggravate the anxiety and concern inherent in

being accused of a crime. Opinion, ¶ 77. Likewise, it does not appear that the delay

significantly impaired Rose’s ability to present an effective defense. Opinion, ¶¶ 81-83.

For these reasons, I conclude that Factor Four weighs slightly in favor of the State.

BALANCING

¶174 There was a substantial delay of 507 days between Rose’s arrest and his last

scheduled trial date. A significant portion of that delay (28 percent) was caused by the

District Court’s delay in setting trial dates. And Rose’s incarceration was oppressive due

to the conditions of the incarceration and the amount of time Rose was subjected to them.

¶175 On the other hand, there is no evidence of stonewalling by the prosecution. To the

contrary, the prosecutor objected to several of the delays in this case. Moreover, Rose is

responsible for 40 percent of the delay, and his actions during much of the pretrial period

suggest that he was not overly concerned about the delays. Finally, it does not appear

that Rose’s ability to present an effective defense was significantly impaired by the delay

or that the delay aggravated or unduly prolonged Rose’s anxiety and concern.

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¶176 For these reasons, I reach the same conclusion as the Court: The District Court

did not err5 in denying Rose’s motion to dismiss for lack of a speedy trial. I base this

conclusion, however, on the foregoing analysis under Ariegwe.

/S/ JAMES C. NELSON

Justice Patricia O. Cotter joins the Special Concurrence of Justice James C. Nelson.

/S/ PATRICIA COTTER

5
The Court states that the District Court did not “abuse its discretion” in denying
Rose’s speedy trial motion, Opinion, ¶ 92, but that is clearly the wrong standard. As we
explained in Ariegwe, and as the Court acknowledges in ¶ 36 of the Opinion, “whether
the defendant has been denied a speedy trial . . . is a question of constitutional law,”
which we review “de novo,” not for abuse of discretion. Ariegwe, ¶ 119.
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