No. 81-336 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

MARK CREEKMORE, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Howard F. Strause argued, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mark Murphy argued, Assistant Attorney General, Helena, 

Montana 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

Thomas M. McKittrick argued, Deputy County Attorney, 

Great Falls, Montana 

Submitted: September 24, 1981 

Decided: JAB 5 1982 

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Filed: ,.m.fgI 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Defendant Mark Creekmore was convicted in a jury trial 

of felony deceptive practices under section 45-6-317(1)(a), 

MCA, in the District Court, Eighth Judicial District, Cascade 

County. He was charged with making false claims to an 

insurance company and receiving $1,840.00 as a result of the 

deceptive claims. 

The District Court sentenced Creekmore to a three-year 

sentence, deferred upon certain conditions, including restitution. 

He was designated a nondangerous offender. 

Creekmore appeals from this judgment and sentence upon 

two principal grounds: (1) that he was denied a speedy 

trial, and (2) that evidence of whether he had taken a 

polygraph test was improperly admitted against him. 

We affirm the judgment of conviction. 

The alleged crime occurred on or about September 23, 

1979. The information was filed on July 31, 1980, and 

defendant and his wife Diana Creekmore were arrested on July 

31, 1980. They were released on their own recognizance on 

August 1, 1980. 

On January 19, 1981, the State filed a motion to set an 

arraignment date. The court ordered an arraignment for 

January 23, 1981. Due to an overcrowded caseload and a 

conflict on the court calendar, the court, sua sponte, 

ordered the January 23 date to be vacated and reset the 

arraignment for January 30, 1981. On January 30, 1981, the 

court vacated the arraignment because the presiding judge 

was engaged in a trial in Choteau County. The arraignment 

was reset for February 4, 1981. 
On February 4, 1981, the arraignment was held with both 

defendants pleading not guilty. The court set an omnibus 

hearing for February 20, 1981, and a jury trial for March 

20, 1981. 

On February 20, 1981, the omnibus hearing was held. 

On March 3, 1981, the defendants filed their first 

motion to dismiss for lack of speedy trial and also a motion 

to continue the trial date of March 20, 1981. The court 

ordered a hearing on defendants'motion to dismiss on March 

23, 1981, and also ordered that the March 20 jury trial be 

vacated, to be reset depending upon the ruling on the motion 

to dismiss. 

On March 13, 1981, the State filed a brief in opposition 

to the defendants' motion to dismiss. 

On March 23, the deputy county attorney handling the 

case was in Helena before this Court on a case where the 

Cascade County Attorney had been ordered to appear, and 

hence the hearing was vacated. The defendants and their 

attorney were present in the District Court at the time set 

for the hearing. 

On May 21, 1981, the defendants filed a second motion 

to dismiss for lack of speedy trial. An order was entered 

setting that hearing for June 11, 1981. 

On May 26, 1981, the State moved to set a trial date 

and an order setting the jury trial date was entered for 

June 17, 1981. 

On June 3, 1981, the State moved to vacate the June 11 

hearing date and reset the same for June 9. That motion was 

granted. 

On June 9, 1981, a hearing was held on the motion for 

dismissal for lack of speedy trial. The deputy county 
Under Barker, prejudice to defendant is to be considered as follows: 

"Prejudice, of course, should be assessed 

in light of the interests of defendants 

which the speedy trial right was designed 

to protect. This Court has identified three 

such interests: (i) to prevent oppressive 

incarceration; (ii) to minimize anxiety and 

concern of the accused; and (iii) to limit the 

possibility that the defense will be impaired. 

Of these, the most serious is the last, 

because the inability of a defendant adequately 

to prepare his case skews the fairness of the 

entire system. If witnesses die or disappear 

during the delay, the prejudice is obvious. 

There is also prejudice if defense witnesses are 

unable to recall accurately events of the 

distant past. Loss of memory, however, is not 

always reflected in the record because what 

has been forgotten can rarely be shown." Barker, 

407 U.S. at 532. 

Here, Creekmore was not subjected to oppressive pretrial 

incarceration because he was released on his own recognizance. 

The only anxiety claim is the fact that his wife, who was 

also a defendant at the time, lost her job, she claiming 

that the pending prosecutions caused her to lose the job. 

The District Court disagreed on this point, however, since 

there was conflicting evidence relating to the reasons for 

her discharge. . The District Court relied on evidence that 

she was terminated because of tardiness in reporting for 

work rather than because of the pending charges. Moreover, 

the District Court saw no relationship between her firing 

and the pending charges or the right to a speedy trial. 

Nothing in the record before the District Court at the 

time it refused to dismiss for want of speedy trial, nor in 

the record since,discloses in any way that Creekmore's 

ability to prepare his defense was impaired. As the United 

States Supreme Court said, that is the most important factor 

with respect to the consideration of prejudice. Barker, 

supra. If, in considering all the circumstances, the court 
attorney who requested the June 9 hearing was not in court 

because he was engaged in another felony trial before another 

judge in Cascade County. 

On June 9, 1981, the court took testimony with respect 

to the motion to dismiss for lack of speedy trial and heard 

oral arguments. He entered his memorandum decision and 

order on June 10, 1981, denying dismissal for lack of speedy 

trial. 

On June 16, 1981, the charge against Diana Creekmore 

was severed from that of her husband, Mark Creekmore, and 

his trial setting was reaffirmed for June 17, 1981. 

Mark Creekmore's trial before a jury came on in the 

regular course and he was found guilty by the jury on June 

18, 1981. His sentence was thereafter imposed. 

Creekmore contends that the delay of approximately 11 

months between his arrest and the date of the trial triggers 

the tests of Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 

2182, 33 L.Ed.2d 101. We agree. The delay in this case is 

sufficient to trigger the balancing test required in Barker. 

See State ex rel. Briceno v. Dist. Ct. of 13th Jud. Dist., Etc. 

(1977), 173 Mont. 516, 568 P.2d 162; Fitzpatrick v. Crist (1974), 

165 Mont. 382, 528 P.2d 1322. 

The four factors to be considered under Barker are: (1) 

length of delay, (2) reason for the delay, (3) the defendant's 

assertion of his right to a speedy trial, and (4) the determination 

of any prejudice to the defendant. Barker, 407 U.S. at 530; 

State v. Larson (1981), Mont . - , 623 P.2d 954, 957, 38 

St-Rep. 213, 215. In this case we pass over the first three 

factors named, because even if defendant's assertion as to 

those factors are all in his favor, our view of the fourth 

factor is dispositive in this case. In balancing the Barker 

factors, the lack of prejudice tips the scales against defendant. 
finds with respect to the factor of prejudice, that defendanfs 

right to a fair trial was not impaired, that part of the 

prejudice test, set forth in Barker, has not been met. On 

that phase, Creekmore fails here. 

We distinguish our holding in this case regarding 

prejudice from our decision in State v. Fife (1981), - 

Mont. - , 632 P.2d 712, 38 St.Rep. 1334, where, though the 

delay was shorter (194 days), the defendant was incarcerated 

40 days in the county jail and 154 days in the state prison. 

That consideration, plus his evidence of anxiety, tipped the 

balance of the Barker test in Fife's favor. Those factors 

do not exist here. Fife's incarceration impaired his right 

to prepare his defense. Creekmore's defense was not impaired 

as far as the record here shows. The delay in Creekmore's 

case did not subvert, as far as we can determine, his right 

to a fair trial. In applying the Barker balancing tests, we 

take each case on its merits. Barker v. Wingo, supra, 407 

U.S. 514, 530. 

The second issue, the polygraph question, requires 

explanation. 

Creekmore, in an attempt to obtain more money from the 

insurance company, told one of the insurance company's 

employees, Kathy Williams, that he had taken a polygraph 

examination through the Great Falls police and had been 

cleared of any wrongdoing. Williams attempted to verify the 

defendant's statements with the Great Falls police and was 

told that the defendant had failed to keep an appointment to 

take the polygraph examination. On direct examination at the 

trial, witness Williams testified, in effect, that "there 

was a statement made that he had taken a polygraph test," 

and that she had called Detective Warrington, and he related 
to her that Creekmore had not taken such an examination. On 

cross-examination, witness Williams indicated that the 

statement actually had been made to her supervisor and that 

she was not present when the statement had been made or that 

she did not talk to Warrington. The State then called 

Detective Warrington who testified that in fact he had 

talked to Kathy Williams over the telephone about what Mark 

Creekmore had said, and Warrington reported that Kathy 

Williams had told him that Creekmore's statement was he had 

taken the polygraph test. Warrington further stated he had 

not taken such test. 

Defendant cohtends that the adn~ission of this evidence 

over his objection constituted hearsay, allowed polygraph 

testimony which is not ordinarily allowable in Montana, and 

that in effect it was a comment on his right not to testify. 

The court, by jury instruction, cautioned the jury that 

the defendant need not testify and that the jury is not 

permitted to draw any inference from his failure to do so. 

Warrington's testimony was admissible to show that witness 

Williams had stated to him that she was directly involved in 

the conversation and to show that she had made a prior 

inconsistent statement. Rule 801 (d) (1) (A) , Mont .R.Evid. 

In jury argument, the State contended on this point only 

that Creekmore had lied to Kathy Williams in an attempt to 

get more money. By this the State intended to show Creekmore's 

state of mind with respect to the crime charged against him. 

We find no error on this point in the state of the record. 

The judgment of conviction is affirmed. 

Justice 
We Concur: 

Chief Justice