No. 81-336 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

STATE OF MONTANA, Plaintiff and Respondent,

VS. MARK CREEKMORE, Defendant and Appellant.

Appeal from: DistrictCourt 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 

# --

_ Filed:

## ,.m.fgIMr. Justice John C. Sheehy delivered the Opinion of the Court.

DefendantMark Creekmore was convicted in a jury trial of felonydeceptivepractices under section 45-6-317(1)(a), MCA, in the District Court, Eighth JudicialDistrict,Cascade County. He was chargedwith 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 testwas improperly admitted against him. We affirm the judgment of conviction. The alleged crime occurred on or about September 23, 1979. The informationwas filed on July 31, 1980, and defendant and his wife Diana Creekmore were arrested on July 31, 1980. Theywere released on their own recognizance on August 1, 1980. On January 19, 1981, the State filed a motion to set an arraignmentdate. 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 arraignmentwas held with both defendants pleading not guilty. The court set an omnibus hearing forFebruary 20, 1981, and a jury trialforMarch 20, 1981. On February 20, 1981, the omnibus hearingwasheld. On March 3, 1981, the defendants filed their first motion todismiss for lack of speedy trial and also a motion tocontinue the trialdateof March 20, 1981. The court ordered a hearing on defendants'motion todismiss on March 23, 1981, and alsoordered that theMarch 20 jury trialbe vacated, tobe reset depending upon the ruling on themotion todismiss. On March 13, 1981, the State filed a brief inopposition tothedefendants' motion todismiss. On March 23, the deputy county attorney handling the

casewas inHelena before thisCourt on a casewhere the Cascade County Attorney had been ordered toappear, and hence the hearingwasvacated. The defendants and their attorneywerepresent in the DistrictCourt atthe time set forthe hearing. On May 21, 1981, the defendants filed a second motion todismiss for lack of speedy trial. An order was entered settingthathearing forJune 11, 1981. On May 26, 1981, the Statemoved to

### set 

### a trialdate and an order settingthejury trialdatewas entered for June 17, 1981. On June 3, 1981, the Statemoved tovacate theJune 11 hearing date and reset the same forJune 9. That motion was granted. On June 9, 1981, a hearing was held on themotion 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 rightwas 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 defensewill be impaired. Of these, themost 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 ofmemory, 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 therewas 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 forwant 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 courtattorneywho 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 settingwas 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 sentencewas 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),173Mont. 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 casewe pass over the first three factorsnamed, 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 againstdefendant.

### finds with respect to the factor of prejudice, that defendanfs right to a fair trial was not impaired, thatpart of the prejudice test, set forth in Barker,has not been met. On thatphase, Creekmore failshere. We distinguish our holding in this case regarding prejudice from our decision in Statev. Fife (1981), - 

### Mont. - 

### , 632P.2d 712, 38 St.Rep. 1334, where, though the delay was shorter (194 days), the defendantwas incarcerated 40 

### days in the county jail and 154 days in the stateprison. 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 itsmerits. Barker 

### v. Wingo, supra, 407 U.S. 514, 530. The second issue, the polygraph question, requires explanation. Creekmore, in an attempt to obtainmore money from the insurance company, told one of the insurance company's employees, Kathy Williams, that he had taken a polygraph examination through the GreatFallspolice and had been cleared of any wrongdoing. Williams attempted to verify the defendant's statementswith the Great Fallspolice and was told that the defendanthad 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 statementactually had been made to her supervisor and that she was not present when the statementhad been made or that she did not talk to Warrington. The State then called DetectiveWarrington who testified that in facthe had talked to Kathy Williams over the telephone aboutwhat Mark Creekmorehad said, and Warrington reported thatKathy Williams had told him that Creekmore's statementwas 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 testimonywhich isnot ordinarily allowable inMontana, and that in effect itwas a commenton his right not to testify. The court,by jury instruction, cautioned the jury that the defendantneed 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 thatwitness Williams had stated to him that shewas 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 showCreekmore'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