DA 08-0383

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 249

STATE OF MONTANA,

Plaintiff and Appellant,

v.

JASON DOUGLAS HARDAWAY,

Defendant and Appellee.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and For the County of Yellowstone, Cause No. DC 2006-0492

Honorable Russell C. Fagg, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Hon. Steve Bullock, Montana Attorney General, John Paulson, Assistant

Attorney General, Helena, Montana

Dennis Paxinos, Yellowstone County Attorney, Sheila R. Kolar, Deputy

County Attorney, Billings, Montana

For Appellee:

Jim Wheelis, Chief Appellate Defender, Roberta R. Zenker, Assistant

Appellate Defender, Helena, Montana

Submitted on Briefs: April 29, 2009

Decided: July 28, 2009

Filed:

__________________________________________

Clerk

July 28 2009
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Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 The Thirteenth Judicial District Court of Yellowstone County granted Jason

Douglas Hardaway’s motion to dismiss his criminal drug possession case for lack of a

speedy trial. The State of Montana appeals. We affirm.

ISSUE

¶2 Did the District Court properly grant Hardaway’s motion to dismiss for lack of a

speedy trial?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 The State of Montana charged Hardaway with felony criminal distribution of

dangerous drugs based on a drug transaction between Hardaway and a confidential

informant (CI). The charge was subsequently amended to criminal possession of

dangerous drugs with intent to distribute. The State claimed that on October 12, 2004,

Hardaway sold 1.3 grams of methamphetamine to a CI working with the Division of

Criminal Investigations (DCI). DCI referred the case to the Yellowstone County

Attorney for prosecution 11 months later, on September 8, 2005. The State formally

charged Hardaway on February 10, 2006, and a warrant was issued for Hardaway’s arrest

on February 23, 2006. At that time, Hardaway was incarcerated in the Yellowstone

County Detention Facility on unrelated charges. He was released on April 1, 2006. The

February warrant was served on June 19, 2006. On June 30, 2006, Hardaway made a

discovery demand for, among other things, the identity of the CI.

¶4 In July, the District Court set an omnibus hearing for September 12, 2006, and a

trial for October 30, 2006. The day before the omnibus hearing, Hardaway moved for a
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continuance because his attorney was not going to be available. The court granted the

motion, and reset the omnibus hearing for October 3. Also on October 3, Hardaway filed

a motion to suppress evidence he alleged was obtained in violation of his constitutional

rights. On October 11, because the State had not yet disclosed the name of the CI,

Hardaway requested an extension of time to file a brief in support of his motion to

suppress. The District Court gave him until 10 days after the State provided the CI’s

identity to file his brief in support.

¶5 In December 2006, Hardaway filed a pro se motion to dismiss that he later

withdrew. On January 9, 2007, the District Court, apparently realizing that the trial had

not been rescheduled from its original October 30, 2006 date, sua sponte reset the trial

date to March 19, 2007. On January 12, 2007, Hardaway, through newly-appointed

counsel, filed a Motion to Dismiss for Lack of Speedy Trial and Brief in Support. The

District Court set a hearing on the motion for February 1, 2007. The State filed its

response to Hardaway’s dismissal motion on January 30, 2007. Hardaway moved to

continue the hearing in order to prepare a reply to the State’s response. The court granted

the motion and the hearing was held on February 7, 2007.

¶6 On March 2, 2007, the State moved to endorse an additional witness as an expert.

On March 6, the court granted the motion over Hardaway’s objection. On March 7,

Hardaway moved to continue the trial scheduled for March 19 in order to interview the

new witness and prepare rebuttal. On March 12, the court granted his motion and

rescheduled the trial for April 23, 2007.
4

¶7 On March 22, 2007, the court denied Hardaway’s motion to dismiss. The court

analyzed Hardaway’s claim under the 4-prong test set forth in Barker v. Wingo, 407 U.S.

514, 92 S. Ct. 2182, (1972), examining (1) length of delay; (2) reason for delay; (3)

defendant’s response to delay; and (4) prejudice to the defendant. The court determined

that more than 200 days had passed since the filing of the Information, and this length of

delay triggered a speedy trial analysis. As part of that analysis, the court attributed the

majority of the delay to the State. It concluded, however, that the delay was

“institutional” delay rather than intentional and, therefore, did not weigh as heavily

against the State. The court acknowledged that Hardaway had timely asserted his right to

a speedy trial. Lastly, relying on City of Billings v. Bruce, 1998 MT 186, ¶ 19, 290 Mont.

148, 965 P.2d 866, the court examined whether Hardaway’s defense was prejudiced by

the delay. The District Court considered: (1) pretrial incarceration; (2) anxiety and

concern to Hardaway; and (3) impairment to his defense. Addressing each of

Hardaway’s claims of prejudice, the District Court ultimately concluded Hardaway had

not been prejudiced by the delay. Based on its Barker analysis, the court denied

Hardaway’s motion to dismiss for lack of a speedy trial. In April 2007, Hardaway

entered a plea of nolo contendere. Four hundred and thirty two days had elapsed between

the time Hardaway was charged and the date he entered his plea.

¶8 Hardaway appealed the District Court’s ruling denying his motion to dismiss for

lack of a speedy trial, and we remanded the case to the District Court with instructions

that the court analyze the issue by applying the speedy trial test newly set forth in State v.

Ariegwe, 2007 MT 204, 338 Mont. 442, 167 P.3d 815. The District Court held a hearing
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on July 9, 2008, and issued its Findings of Fact, Conclusions of Law and Order on July

31, 2008. The court incorporated by reference the factual findings from its March 2007

order, acknowledging that the law had changed but the facts had not.

¶9 The District Court noted that under Ariegwe, courts still must analyze a speedy

trial claim using the 4-factor test in Barker but must include the modifications outlined in

Ariegwe. Considering the “length of delay” factor, the District Court observed that under

Ariegwe, once a delay exceeds 200 days, the presumption that pretrial delay has

prejudiced the accused intensifies over time. Concluding that this case lasted 432 days—

232 days beyond the threshold 200 days—the court ruled that the State’s burden to prove

that Hardaway was not prejudiced was heightened, and Hardaway’s burden to prove that

he was prejudiced was diminished.

¶10 The court then considered the second factor—“reason for delay”—and determined

that the first 120 days (from the time Hardaway was charged on February 10, 2006, until

he was arrested on June 19, 2006—in actuality, 129 days) was neither institutional nor

intentional but could not be attributed to Hardaway; therefore, it must be attributed to the

State, though not heavily. Subsequently, the court ruled that 288 days (purportedly from

Hardaway’s June 19, 2006 arrest until the State disclosed the identity of its CI on

February 1, 2007

1—in actuality, 226 days) weighed heavily against the State because the

State had the power and ability to disclose the CI’s name much earlier than it did.

1

The parties dispute the date on which the State provided the name of the CI—the State claims

it was on January 3, 2007, while Hardaway claims it was February 1, 2007. As indicated above,

the District Court concluded it was February 1. This conclusion is supported by Hardaway’s

January 12 motion to dismiss in which he claims that the State had yet to reveal the name of the
6

¶11 Turning to the third prong—Hardaway’s response to the delay—the court noted

that Hardaway diligently attempted to keep his case moving forward and timely brought

the speedy trial issue to the court’s attention. The court concluded that this weighed

heavily in Hardaway’s favor.

¶12 Lastly, as noted above, the District Court repeated that Hardaway’s need to prove

prejudice was diminished by both the length of time that had elapsed and the State’s lack

of good reason for earlier providing Hardaway with the CI’s name. The court determined

that the State failed to meet its burden to provide compelling justification for the delay;

therefore, balancing all four factors, the District Court granted Hardaway’s motion to

dismiss for lack of a speedy trial.

¶13 The State filed a timely appeal.

STANDARD OF REVIEW

¶14 Whether a defendant has been denied the right to a speedy trial presents a question

of constitutional law. We review de novo a district court’s legal conclusions to determine

whether the court correctly interpreted and applied the law. We will not disturb the

factual findings underlying a speedy trial ruling unless the findings are clearly erroneous.

A finding is clearly erroneous if it is not supported by substantial credible evidence, if the

district court misapprehended the effect of the evidence, or if our review of the record

CI. Nothing in the record definitively establishes when this identification occurred. Given the

evidence is conflicting, we defer to the District Court’s determination. State v. Lally, 2008 MT

452, ¶ 22, 348 Mont. 59, 199 P.3d 818 (It is the province of the District Court to weigh the

evidence and resolve any conflicts between the parties’ positions, and this Court will not secondguess the District Court’s determinations regarding the strength and weight of conflicting

testimony.).
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convinces us that the district court committed a mistake. State v. Billman, 2008 MT 326,

¶ 8, 346 Mont. 118, 194 P.3d 58 (citing Ariegwe, ¶ 119).

DISCUSSION

¶15 Did the District Court properly grant Hardaway’s motion to dismiss for lack of a 

speedy trial? 

¶16 On appeal, the State argues that the District Court’s initial denial of Hardaway’s

motion to dismiss was correct and was fully supported by the court’s factual findings. It

claims that the court’s post-remand order misapplies Ariegwe and reaches an incorrect

legal conclusion. The State faults the court for erroneously attributing pre-arrest delay to

the State, incorrectly weighting certain periods of delay, and failing to attribute and

weigh some delays altogether. The State claims that the 432 lapsed days should be

broken into 4 increments—129 days for pre-arrest; 204 days from arrest to the January 9,

2007 order resetting trial; 62 days from the January order resetting trial and the March 12,

2007 order resetting trial again; and 37 days from the March 2007 order resetting trial to

Hardaway’s April 18, 2007 plea. It asserts the District Court erred by dividing the time

into 2 periods totaling 408 days—120 days for pre-arrest and 288 days purportedly from

arrest to disclosure of the CI’s identification. The State correctly notes that the court did

not attribute the full number of delay days, i.e., 432. The State also submits that the

District Court “provided a cursory, incomplete, and flawed analysis of the prejudice

factor.” Hardaway counters that the court’s interpretation and application of Ariegwe

was correct.
8

¶17 We note the State does not challenge the court’s factual findings. As the factual

findings are not disputed, we accept them and turn to the court’s conclusions of law. As

noted above, the court broke the elapsed time into 2 increments while the State suggested

it should be divided into 4 increments. While the State divides the time in the manner

anticipated by Ariegwe, i.e., from initial charge to first trial setting, from first trial setting

to second trial setting, from second trial setting to third, we conclude that the manner of

dividing the increments of time would not change the outcome here. Absent a clearly

mistaken attribution of delay, we will not put a court in error over its method of dividing

the time.

¶18 Turning to the first increment of time, the State urges us to determine that the

speedy trial clock does not start running until after a defendant’s arrest. The cases relied

upon by the State are distinguishable because the facts in each of those cases were unique

and, thus, drove the outcome. Moreover, “the right of a defendant to a speedy trial

commences when he becomes an accused.” Ariegwe, ¶ 42. A defendant becomes “an

accused” at the time the State files the complaint or at the time he or she is arrested,

whichever is earlier. Ariegwe, ¶ 42. The State’s argument to the contrary is

unpersuasive.

¶19 In the case before us, we acknowledge, as argued by the State, that during the 129

days between the filing of the complaint and Hardaway’s arrest, Hardaway’s life “was

not disrupted.” Presumably, it was for this reason that the District Court stated this delay

would not “weigh heavily” against the State. Certainly, under these circumstances, it

should not weigh against Hardaway because he knew nothing of the complaint nor did he
9

intentionally attempt to evade arrest. The alternatives, therefore, are to not attribute this

time to either party, as urged by the State, or attribute it to the State. We conclude the

District Court did not err by attributing it to the State but assigning it lesser weight.

¶20 Turning to the next period of attributed time, the court attributed 288 days to the

State. The court identified this time as the period between Hardaway’s arrest and the

State’s disclosure of the CI’s identity. As noted above, this was not 288 days, but rather

226 days. While the court incorrectly calculated the number of days, it correctly

attributed this delay to the State. It acknowledged that during this time period, there were

numerous motions and delays in the proceeding, but only one continuance was requested

by Hardaway, to delay the omnibus hearing. The court concluded that this request for

continuance was reasonable in that Hardaway had a right to know the identity of the CI

before the omnibus hearing. We note that the reason given in Hardaway’s request for

continuance of the omnibus hearing was attorney unavailability. Nonetheless, the

District Court’s reason for attributing this time to the State is correct. Hardaway

requested the CI’s identity on June 30 and had not received it as of September 11, the day

before the omnibus hearing when he moved for a continuance. As a result, the court

concluded that it was the State’s failure to identify the CI’s identity much earlier than it

did that caused such a lengthy delay in the proceeding. It therefore weighed this delay

heavily against the State. We conclude the District Court did not err in its attribution and

assignment of weight to these delay days.

¶21 We next address the 77 days from the February 1 disclosure of the CI’s name to

Hardaway’s April 18 plea that was not specifically attributed by the court. On February
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1, Hardaway moved to continue the “motion to dismiss” hearing scheduled for later that

day on the ground that the State had not filed its response to his January 12 motion until

January 30. He stated that he wished to have time to reply before the hearing. The court

granted the motion and rescheduled the hearing, holding it on February 7. Subsequently,

as noted above, on March 2, the State moved to endorse a DEA agent as an additional

expert witness. The court held a hearing on March 6, and over Hardaway’s objection

granted the State’s motion. Hardaway moved to continue the trial scheduled for March

19, 2007, in order to schedule and interview the newly-named witness and to prepare an

effective rebuttal. He asked that this additional time be attributed to the State for its late

disclosure of a trial witness. The court granted the motion and scheduled the trial for

April 23. Hardaway entered a plea on April 18, 2007.

¶22 From the record, the 30 days from February 1 until March 2 appear to be

institutional delay appropriately attributed to the State. Additionally, the 47-day delay

occasioned by the State’s late identification of an expert witness was attributed to the

State at the time the District Court granted Hardaway’s motion to continue. While the

court should have included this attribution in its post-remand order granting Hardaway’s

motion to dismiss, failure to do so under these circumstances is not reversible error.

¶23 In summary, between the court’s order granting Hardaway a continuance to

accommodate endorsement of the State’s late witness and the court’s post-remand order

granting Hardaway’s motion to dismiss, the District Court attributed the entire delay to

the State. While it did not expressly attribute weight to the delay days caused by the

State’s late notice of a witness, the lack of weight assigned to these specific days does not
11

affect the outcome of this case. The District Court’s rationale for attributing the delay in

bringing Hardaway to trial to the State is sound and supported by the record. Therefore,

we will not disturb it on appeal despite calculation errors and failure to attribute weight to

a small percentage of delay days.

¶24 The State concedes that Hardaway’s response to the delay was timely and satisfies

the third prong of the speedy trial test. It argues, however, that the District Court, in

concluding that this factor “weighs heavily in [Hardaway’s] favor,” accorded too much

weight to this prong in the overall balancing test the court performed. The State

maintains that the original “response to delay” analysis of Hardaway’s speedy trial claim

was conducted under Bruce which did not require or allow for such weighting. In other

words, under Bruce, the defendant either asserted his or her right to a speedy trial before

the trial or did not. Bruce, ¶ 57. In Ariegwe, we noted that the district court analyzed this

prong of Ariegwe’s speedy trial claim under Bruce which did not require weighing this

factor and balancing it with the other 3 factors. We stated in Ariegwe, however, that we

would nonetheless analyze it “to illustrate the process for the benefit of the courts and the

litigants who will be applying the test in future cases.” Ariegwe, ¶ 138.

¶25 We are not persuaded by the State’s argument that Hardaway’s response to the

delay was analyzed under Bruce and therefore should not have been weighted by the

District Court and considered in the overall balancing of the factors. We remanded this

case to the District Court with express instructions to analyze it under Ariegwe. Having

done so, we will not conclude the court incorrectly applied the Ariegwe analysis by

assigning weight to the third prong of the speedy trial test and balancing this factor with
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the remaining factors. Moreover, given that the entire delay in this case was correctly

attributed to the State, disregarding the weight in favor of Hardaway on this prong would

not have changed the outcome.

¶26 Lastly, the District Court stated that Hardaway’s need to prove prejudice was

diminished by the length of the delay and the State’s failure to provide compelling

justification for the delay. The court concluded that under the circumstances of this case

Hardaway was prejudiced and, therefore, was denied his right to a speedy trial. The State

opines that while Hardaway’s burden to show prejudice may have been diminished by the

length of delay and the reasons for delay, it was not eliminated, and the court erred when

it allowed the presumption of prejudice to “tip the scales” in Hardaway’s favor. We

disagree and conclude that in some cases the presumption does, indeed, “tip the scales” in

a defendant’s favor. In Billman, ¶ 47, we stated: “The accused’s failure to submit

affirmative proof of prejudice is not fatal to a speedy trial claim, and, in the absence of

affirmative proof of impairment, we focus on the other speedy trial factors to assess

whether the pretrial delay has prejudiced the accused’s defense.”

¶27 We acknowledge, as argued by the State, that a district court should include its

analysis of the balancing process of the 4 factors in its order and the District Court in this

case failed to do so in a comprehensive manner. However, reviewing the court’s legal

conclusions in their totality, we conclude the District Court weighed the length of time of

delay (432 days), the State’s failure to provide a compelling reason for such delay,

Hardaway’s 2 timely speedy trial complaints, and the presumption of prejudice, and

concluded that Hardaway had been deprived of his right to a speedy trial. Hardaway’s
13

burden to demonstrate prejudice was certainly not totally eliminated by the 432-day delay

(Ariegwe, ¶¶ 56, 58); however, there was ample evidence of prejudice in the record,

including Hardaway’s complaints of health and financial complications as well as

impairment of his defense. Under these circumstances, the State has failed to

demonstrate that the District Court’s conclusion was wrong.

¶28 We acknowledge that the Ariegwe analysis calls for careful weighting and analysis

of a number of factors. We urge the district courts to set forth in their speedy trial orders

a full Ariegwe analysis for the benefit of all parties and this Court on review.

CONCLUSION

¶29 For the foregoing reasons, we affirm the District Court’s order granting

Hardaway’s motion to dismiss for lack of a speedy trial.

/S/ PATRICIA O. COTTER

We concur:

/S/ JAMES C. NELSON

/S/ JOHN WARNER

/S/ W. WILLIAM LEAPHART

/S/ BRIAN MORRIS

Justice Jim Rice, dissenting.

¶30 The Court acknowledges that the District Court’s analysis under Ariegwe is

incomplete, but does not regard the error as significant. Opinion, ¶ 27. The Court
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summarily concludes that prejudice has been demonstrated, but in so doing does not

analyze whether Hardaway’s defense was impaired—despite the recognition in our

previous cases and by the U.S. Supreme Court that this is a critical component in

consideration of prejudice. See Barker v. Wingo, 407 U.S. 514, 532, 92 S. Ct. 2182, 2193

(1972) (impairment of defense is the “most serious” form of prejudice, “because the

inability of a defendant to adequately prepare his case skews the fairness of the entire

system”). I believe the District Court’s analysis was flawed and fatal to its ultimate

decision, and I would not affirm it.

¶31 When it considered prejudice the first time, prior to our remand for

reconsideration under Ariegwe, the District Court determined that the “Defendant has

suffered little, if any, prejudice,” and, concerning the impairment of defense, stated that

“the Defendant’s defense has not been impaired. If anything the amount of time that has

passed has hindered the State’s case.” The court also found that the facts did not support

the Defendant’s claim that the delay had caused him increased anxiety, or that the pretrial incarceration was unduly oppressive. Then, following remand for reconsideration,

the District Court determined that “the facts have not changed.” In other words,

Hardaway still had suffered little, if any, prejudice and, importantly, his defense still had

not been impaired. Thus, what remained was the application of the new Ariegwe test to

these facts.

¶32 However, the District Court substantially abandoned the approach under Ariegwe

and analyzed prejudice by relying upon U.S. v. Rucker, 464 F.2d 823 (D.C. Cir. 1972),

which held that a delay of greater than a year and a half virtually eliminates a defendant’s
15

burden to show the delay caused him any prejudice. However, we have not adopted such

a rule. On the contrary, we held in Ariegwe:

Thus, while both parties should come forward with evidence on the

question of prejudice, the court must weigh each party’s evidence (or lack

thereof) in light of this intensifying presumption. Specifically, as the delay

gets longer, the necessary showing by the accused of particularized

prejudice decreases while the necessary showing by the State of no

prejudice simultaneously increases.

Ariegwe, ¶ 143 (emphasis added). The holdings in Ariegwe and in the seminal Barker

case emphasize the importance of this approach to analyzing prejudice. Both cases

involved substantial delay attributable to the State, but both cases nonetheless determined

that the respective defendant’s rights to speedy trial had not been violated. Yet, here the

District Court did not consider the lack of evidence that Hardaway had been prejudiced.

Relying upon the Rucker rule, it concluded that “the State has gone beyond the one and a

half years, and the State has been unable to provide justification which convincingly

outweighs the prejudice which can be normally assumed.” (emphasis added). The Court

summarily affirms the District Court.

¶33 Based upon the District Court’s determination that the facts have not changed

(Hardaway’s defense has not been impaired, he did not sustain inordinate anxiety and his

incarceration was not oppressive), and given the proper test to be applied under Ariegwe,

I would conclude the evidence did not establish that Hardaway sustained the kind of

significant prejudice which, upon balancing of the factors, requires the conclusion that his

right to a speedy trial was violated. Therefore, I would reverse.

/S/ JIM RICE