IN THE SITPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJERRY R. WIMAN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorah1.e Roy C. Rodeghiero, ,Judqe presidi-ng. 

COUNSEL OF RECORD: 

For Appellant: 

Larry Jent, Rozeman, Montana 

For Respondent : 

LL 4 Filed: ,, 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Robert F.W. Smith, Asst. Atty. General, Helena 

A. Michael Salvagni, County Attorney, Bozeman, Montana 

+Marty Lambert, Deputy County Attorney, Roleman 

u: 

1 

i ] l:: 

. . Submitted on Briefs: Dec. 2, 1988 c !I-1 

Decided: February 17, 1989 

0 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Jerry Wiman, defendant, appeals from a judgment 

convicting him of felony sexual assault. Wiman was found 

guilty in a jury trial before the Eiahteenth Judicial 

District Court, Gallatin County. We affirm. 

Wiman raises the following two issues on appeal: 

(1) whether Wiman was deprived of the right to a 

speedy trial; and, 

(2) whether the prosecutor improperly commented on 

Wiman's failure to testify. 

On December 10, 1986, an information was filed charginq 

the appellant with one count of sexual assault, a felony, in 

violation of § 45-5-502 (1) , MCA. A jury trial began on Apri 1 

28, 1987, and concluded on April 30, 1987. The jury was 

unable to reach a verdict and the presiding judge declared a 

mistrial. The Gallatin County Attorney then asked that the 

case be reset for trial. Trial was reset for July 20, 1987, 

and continued until September 1, 1987. The reason for this 

continuance was the absence from the state of two key 

witnesses for the prosecution. 

On August 13, 1987, District Judge Thomas Olson recused 

himself from presiding in this case and District Judge 

Douglas Harkin assumed jurisdiction of the case. 

On August 25, 1987, appellant filed a motion for 

peremptory substitution of Judge Harkin. 

On September 17, 1987, District Judge Roy Rodeghiero 

assumed jurisdiction of the case. 

On November 17, 1987, a hearing was held on defendant's 

motion to dismiss for denial of speedy trial. Evidence was 

presented to the court and attorneys argued the motion. The 
court, ruling from the bench, denied Wiman's motion to 

dismiss. 

On November 17, 1987, the second jury trial began. On 

November 19, 1987, the jury found Wiman guilty of felony 

sexual assault. On January 12, 1988, the court sentenced 

Wiman to ten years in the Montana State Prison. The court. 

then entered an order setting Wiman free on bail pendinq this 

appeal. 

I 

The first issue raised on appeal is whether the 

appellant was deprived of the right to a speedy trial. 

Any person accused of a crime is guaranteed the 

fundamental right to a speedy trial by the Sixth Amendment to 

the United States Constitution, which is made applicable to 

the states by the Fourteenth Amendment. State v. Chavez 

(1984), 213 Mont. 434, 691 P.2d 1365. "The Amendment would 

appear to guarantee to a criminal defendant that the 

Government will move with the dispatch that is appropriate to 

assure him an early and proper disposition of the charges 

against him. [Tlhe essential ingredient is orderly 

expedition and not mere speed.'" United States v. Marion 

(1971), 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468, 

474 (citing Smith v. IJnited States (1959), 360 U.S. 1, 10). 

In speedy trial determinations, a factor to be 

considered is the length of the delay in getting to trial.. 

State v. Armstrong (1980), 189 Mont. 407, 616 P.2d 341; State 

v. Harvey (1979), 184 Mont. 423, 603 P.2d 661. However, 

there is no need to examine other factors unless there has 

been some delay which is deemed presumptively prejudicial. 

The other factors we refer to are the factors enunciated in 

Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 

2192, 33 L.Ed.2d IOI., 117. In analyzing the validity of a 
claim of lack of speedy trial, the Court investigates and 

balances the four factors set out in Barker: 

Length of delay, the reason for the delay, the 

defendant's assertion of his right [to a speedy 

trial], and prejudice to the defendant. 

Length of delay is of primary importance. Unless it is 

sufficiently long to he deemed presumptively prejudicial to 

the defendant, there is no need to consider the other 

factors. What length will be deemed presumptively 

prejudicial depends on the facts in each individual case. 

State v. Robbins (1985), 708 P.2d 227, 42 St.Rep. 1440; State 

v. Worden (1980), 188 Mont. 94, 611 P.2d 185. There is no 

need to determine other factors unless there has been some 

delay which is deemed presumptively prejudicial. Armstrong, 

616 p.2d at 351. 

When appellant's second trial began on November 17, 

1987, 201 days had passed since the conclusion of the fi.rst 

trial. The chronology is as follows: 

Event Date 

Information filed 12/10/86 

First Jury Trial 4/28/81-4/30/87 

Court resets trial for 7/20/87 5/28/87 

State moves for Continuance, and 

Court resets trial for 9/1/87 7/13/87 

Judge Olson excuses himself from 

presiding in this case, Judge 

Harkin assumes jurisdiction 8/13/87 

Defendant moves for substitution 

of Judge Harkin 8/25/87 

Judge Rodeghiero assumes 

jurisdiction & sets trial for 11/17/87 9/17/87 

Defendant's jury trial begins 11/17/87 
Defendant's jury trial concludes 11/19/87 

The State of Montana asserts that it is responsible for 

1.23 days of the delay, the time period between May 1, 1987 

and September 1, 1987 and that the appellant is responsible 

for 78 days of the delay for the time period of September 1, 

1987, when the trial was necessarily vacated by Wiman's 

substitution of Judge Harkin, until November 17, 1987, the 

date the new district judge set for trial. 

Wiman asserts that the delay is 342 days by computing 

the delay from the date of the arraignment December 16, 1986, 

to the second trial date set for November 17, 1987. We do 

not agree. In State v. Sanders (1973), 163 Mont. 209, 214, 

516 P.2d 372, 375, this Court adopted the rule from the 

American Bar Association Project on Minimum Standards for 

Criminal Justice: 

"The time for trial should commence running . . . 

(c) if the defendant is to be tried again 

following a mistrial, . . . from the date of the 

mistrial, order granting a new trial, or remand." 

Therefore, in calculating the delay in this appeal we begin 

by counting the day after the first trial. 

We agree with the State that the length of the delay 

caused by the State is not sufficiently long to trigger 

further inquiry. Therefore, this Court will not consider the 

other factors set out in Barker. 

The appellant's second trial began 201 days after the 

conclusion of his first two-day trial on April 30, 1987, but 

the date was reset for September 1, 1987, when the Gallatin 

County Attorney moved for a continuance because two key state 

witnesses would be out of the state at the time set for 

trial-. These witnesses were to give vital testimony 
attesting to the credibility of the nine-year-old assault 

victim in this case. Since defendant's counsel had put the 

victim's credibility in question, the date became 

impracticable for the State's case without these witnesses. 

On August 13, 1987, two weeks before the second trial 

was to begin, Judge Olson excused himself from presiding in 

this case and Judge Harkin immediately assumed jurisdiction 

for the trial that was to begin on September 1, 1987. 

However, a further delay resulted when on August 25, 1987, 

six days before the trial date, the defendant moved for a 

substitution of Judge Harkin. On August 31, 1987, Judqe 

Olson siqned the order calling in Honorable Roy C. Rodeghiero 

and sent out an invitation to him to assume jurisdiction. On 

September 17, 1987, Judge Rodeghiero signed and mailed the 

assumption of jurisdiction which arrived at the Gallatin 

County Clerk and Recorder's Office on September 18, 1987. 

District Judge Rodeghiero put the stalled legal machinery 

back into motion by setting a trial for November 17, 1987. 

This gave the district judge two months to acquaint himself 

with the record and issues of the Wiman case, and give the 

parties time to reschedule briefs and witnesses. Therefore, 

the two months between the assumption of jurisdiction by 

Judge Rodeghiero and the date set for the new trial is 

reasonable under the circumstances. 

The defendant is responsible for the time between 

August 25, 1987, when he moved for a substitution of Judqe 

Harkin, and November 17, 1987, when the new trial, set by 

Judge Rodeghiero began. The trial date of September 1, 1987, 

would have been adhered to but for the substitution of Judge 

Harkin at defendant's request. Defendant's motions caused 83 

days of a 201 day delay. The State caused 119 days of delay 

because of unavailability of key witnesses. 
We have focused our decision on this 119 days. This 

amount of time is not long enough to be deemed presumptively 

prejudicial. 

Wiman was free on bail during this time and the length 

of his delay was much shorter than in Armstrong, where the 

delay was three and one-half years from the time of 

Armstrong's original conviction to his second conviction. In 

addition, Armstrong was incarcerated during this delay. 

Wiman was not. 

The length of delay is the "trigger" factor to the 

speedy trial inquiry. There is no need to examine other 

factors unless some delay presumptively prejudicial has 

occurred. Chavez, 691 P.2d at 1369; Harvey, 603 P.2d at 

667. The delay here, 119 days, is not enough to trigger the 

speedy trial inquiry. Compare, Armstrong, (three and 

one-half year delay, 108 days attributable to the state), 

with Fitzpatrick v. Crist (1974), 165 Mont. 382, 528 P.2d 

1322 (seven-month delay). 

The speedy trial right is primarily designed to protect 

the accused from oppressive tactics of the prosecution. 

Barker, 407 U.S. at 529. The 119-day delay in this cause is 

not sufficiently long to be deemed presumptively prejudicial, 

nor was the delay caused hy oppressive tactics by the State. 

There is no showing by defendant that the State intentionally 

delayed to gain some tactical advantage over appellants or to 

harass them. Vacation of this order would be required if it 

were shown that, "the pre-indictment delay in this case 

caused substantial prejudice to appell[antls! rights to a 

fair trial and that the delay was an intentional device to 

gain tactical advantage over the accused." Marion, 404 U.S. 

at 324. We, therefore, hold that the appel1.ant1s right to a 

speedy trial was not violated. 
The second issue before this Court is whether the 

prosecutor improperly commented in jury argument on the 

defendant's failure to testify. 

Appellant contends that the Gallatin County Attorney's 

summation contained several comments on the appellant's 

failure to testify and requires a new trial. It is a settled. 

rule that the prosecutor may not direct attention to the 

failure of a defendant charged with a criminal offense to 

testify. State v. Gladue (19841, 208 Mont. 174, 677 P.2d 

1028; United States v. Republic. Steel Corp. (6th Cir. 19741, 

491 F.2d 315; Knowles v. United States (10th Cir. 19551, 224 

F.2d 168. However, in Republic Steel, the Court explains 

that Knowles held: 

"It is concedely improper and reversible error to 

comment on the failure of a defendant to testify in 

his own behalf, and the test is whether the 

language used was manifestly intended or was of 

such character that the jury would naturally and 

necessarily take it to be a comment on the failure 

of the accused to testify. 224 F.2d 168, l7O." 

Republic Steel also directs: 

"That Government counsel may direct the jury's 

attention to the fact that the evidence against the 

defendant is uncontradicted, especially when the 

facts in issue could be controverted by persons 

other than the defendant." 

491 F.2d at 315. (citing Doty v. United States (10th Cir. 

1968), 416 F.2d 887, vacated on other grounds sub nom., Epps 

v. United States (1971), 401 U.S. 1006, 91 S.Ct. 124?, 28 

In the course of argument to the jury, the deputy 

county attorney made the following argument: 

. . . Detective Lessley asks, "How does she learn 

all these things?" And here is what the defendant 

told Detective Lessley on October 3: "She learned 
them from the neighbor's kids, one of whom is five 

and one of whom is eight and the mother, their 

mother, who lives next door, she learned them from 

seven-year-olds at school; she learned them from 

Playboy magazine; she learned from watching R-rated 

movies; she learned them from watching X-rated 

movies, and she learned them from her own brother. 

Then he says--quoted by Detective Lessley--'Most of 

what I say is true' not all of it, 'Most of what I 

say is true, but that's one thing I wouldn't. lie 

about. ' 

Did defendant say he thought she was coached, 

thought that maybe somebody's telling her to say 

these things? (Whereon Mr. Lambert indicates in 

the negative.) 

(Defense counsel) Objection, Your Honor, comment 

on non-testimony by Defendant. 

THE COURT: Alright, Mr. Lambert, stay away from 

that area. 

MR. LAMBERT: Yes, Your Honor. 

In the defendant's brief on appeal, defendant's counsel 

points to several other instances in the jury argument by the 

prosecuting attorney, where the statement was made that the 

evidence was uncontradicted. It is difficult to tell from 

the record whether the possibility of contradiction would 

come from other witnesses, or from the defendant himself. At 

any rate, when those arguments were being made, no objection 

was made by defense counsel and the District Court was not 

given an opportunity, if the necessity existed to admonish 

the jury to ignore the argument, or to give a curative 

instruction nor was any motion made for mistrial. 

There is no showing by appellant here that there is a 

reasonable possibility that the comments complained of might 

have contributed to the conviction. There was no objection 

made at trial, no request for an in-chambers objection to the 

langua-qe used in prosecutor's summation and no motion for a 
mistrial. Section 46-20-104, MCA, provides that failure to 

make a timely objection during trial constitutes a waiver of 

the objection. 

It is significant that defendant made only one 

objection during the prosecutor's summation. That objectio~ 

was about prosecutor ' s reference to the defendant's 

accusation during the second trial that the victim had been 

coached. The prosecutor reminded the jury that the defendant 

did not say the victim had been coached when defendant was 

initially interrogated by Detective Lessley of the Bozeman 

Police Department. We believe that this was not a comment on 

defendant's refusal to take the stand. 

Although use against a criminal defendant of silence 

maintained after receipt of governmental assurances is barred 

by Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 

L.Ed.2d 91 this directive does not apply to language that 

merely inquires into prior inconsistent statements. Such 

comment makes no unfair use of silence, because a defendant 

who voluntarily speaks after receiving Miranda warnings has 

not been induced to remain silent. Anderson v. Charles 

(1980), 447 U.S. 404, 408, 100 S.Ct. 2180, 2188, 65 L.Ed.2d 

222, 226. As to the subject matter of his statements the 

defendant has not remained silent at all. FJiman was given 

the Miranda warnings and he did waive his rights and chose 

not to remain silent when interrogated by Detective Lessley. 

What he said may be and was used against him in the 

prosecutor's summation. Prosecutor's objected to remark does 

not refer to Wiman's exercise of his right to remain silent. 

Rather, it asks appellant's counsel, who impeached the younq 

victim with her testimony in the first trial, and alleged 

that she was being coached by comparing her testimony with 

her inconsistent statements in the second trial, why the 

appellant didnY tell Detective Lessley that in the initial 
interrogation the girl was coached as his counsel was now 

asserting. Prosecutor's summation remarks were not designed 

to draw attention to appellant's silence, but to remind the 

jury that appellant voluntarily spoke to Detective Lessley 

after receiving Miranda warnings and that his counsel's 

present assertion about coaching was inconsistent with 

defendant's prior statements. 

After reading the entire closing statement, we find 

only this one objection. We find no objection to any other 

comments made by the prosecution. Therefore, we find no 

error in regard to the prosecutor's comments in light of the 

fact that the trial judge did all that he was asked to do 

when he sustained objection and warned the prosecutor to 

"stay away from that area." Read in context, it is clear 

that those comments were not intended to comment on 

defendant's failure to testify in his own behalf. 

If defendant's counsel believed that these comments 

were directed at the defendant's failure to testify it was 

incumbent upon him to make an objection to the comments. As 

a general rule, this Court will not entertain issues not. 

raised at trial. State v. Wilkins (Mont. 19871, 746 P.2d 

588, 44 St.Rep. 1794; State v. Goddard (Mont. 1987)) 734 P.2d 

680, 44 St.Rep. 551. 

Finding no error, we conclude that the conviction of 

Jerry Wiman should he and is affirmed. 

/ 

\... 

Justice 

ye Concur: / ,I