No. 14603 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsEDWARD R. HARVEY, 

Defendant and Appellant. 

Appeal from: District Court of the Third Judicial District, 

Honorable Robert J. Boyd, Judge presiding. 

Counsel of Record: 

For Appellant: 

Knight, Dahood, Mackay and McLean, Anaconda, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Ted Mizner, County Attorney, Deer Lodge, Montana 

Submitted on briefs: September 13, 1979 

Decided: MOV 2 1 1979 . .* Filed: -2,. ' '*7 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

Defendant Edward R. Harvey appeals from a conviction entered 

in the District Court, Third Judicial District, Powell County, on 

the charge of felony theft in violation of section 45-6-301, MCA. 

On February 16, 1978, an information was filed in the 

District Court, Powell County, charging Harvey with the November 

23, 1977, felony theft of a .243 caliber Sako rifle from Theodore 

Nelson. On February 23, 1978, Harvey entered a plea of not guilty 

and the District Court appointed counsel to represent Harvey. 

Harvey was released on a recognizance bond at this time. On 

April 27, 1978, however, Harvey was incarcerated in the Montana 

State Penitentiary for a parole violation charge. 

On September 19, 1978, Harvey filed a motion to dismiss on 

the ground of failure to grant a speedy trial. That motion was 

denied two days later. Harvey then filed a writ of supervisory 

control with this Court on September 22, 1978. We denied the 

writ without prejudice on September 29, 1978. 

During the time Harvey was incarcerated for the parole 

violation charge, he became dissatisfied with the work of his 

court-appointed counsel. So, on October 2, 1978, one day before 

the trial of this cause, Harvey excused his court-appointed 

counsel. Harvey represented himself throughout his trial on the 

charge of felony theft. 

At the trial, there was a conflict in testimony concerning 

the circumstances surrounding the theft of the Sako rifle. 

Robert Paulus, Harvey's former son-in-law, was the State's 

chief witness. Paulus testified at the trial that he and Loretta 

Paulus (Dillion), his former wife, were house guests of the 

Harveys during the Thanksgiving holidays. At about ten or 
eleven o'clock p.m. on November 23, 1977, both couples decided 

to go to Elliston, Montana, to sell a used pickup truck for 

Wallin's Ford, where Edward Harvey was employed as a salesman. 

They arrived in Elliston about a half hour later and stopped 

at a bar there. 

Paulus further testified that Edward Harvey noticed a 

.243 caliber Sako rifle in the back window of a pickup truck 

parked at the bar. Ignoring the warnings of his three passengers, 

Edward Harvey put on a pair of gloves, unlocked the door through 

the vent window and took the rifle. Edward Harvey then left with 

the rifle and headed towards Helmville, Montana. Harvey stopped 

just outside of Avon, Montana, shot five shells through the 

rifle and discarded the leather sling from the rifle. About 

fifteen minutes later, Harvey and his passengers returned to 

Deer Lodge. Upon arriving at the Harveys'. apartment, Harvey put 

the rifle in the closet in the bedroom. 

Harvey was the only witness for his defense. He testified 

that Paulus brought the rifle to the Harvey's apartment on 

November 23, 1977. Paulus told the Harveys that he needed money. 

Over Harvey's objections, Paulus talked Mrs. Harvey into 

buying the rifle for $135. Mrs. Harvey executed a receipt for 

payment in full for the rifle. She handed the receipt to Paulus 

for his signature and walked out of the room to get the $135. 

While Mrs. Harvey was out of the room, Paulus signed the name 

Paul Johnson on the receipt, folded it in half and gave it back 

to Mrs. Harvey upon her return. Mrs. Harvey stored the receipt 

without ever looking at the signature. 

On November 29, 1977, Paulus and his wife returned to their 

home in Roundup, Montana. On their way, they stopped at the 

McDonald Pass Bar in Elliston to report Harvey's theft. 

In January 1978, a special deputy sheriff came to the 

Harvey residence to inquire about the rifle. Harvey was the only 

one home at the time. Harvey voluntarily gave the rifle to the 

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deputy sheriff. An examination of the serial number confirmed 

that the rifle belonged to Theodore Nelson. Harvey was informed 

that the rifle was stolen and would have to be confiscated. 

Mrs. Harvey arrived just as the deputy sheriff was leaving. 

The deputy sheriff was informed that Mrs. Harvey had purchased 

the rifle from her son-in-law, Paulus. Mrs. Harvey then 

produced the receipt bearing the name Paul Johnson for the 

deputy sheriff. 

Harvey's trial on the charge of felony theft was held on 

October 3, 1978. A jury verdict of guilty was entered on October 

4, 1978, and on October 19, 1978, Harvey was sentenced to a term 

of five years in the state penitentiary. 

Following his conviction, Harvey, acting pro se, filed a 

notice of appeal and appellant's initial brief. On May 10, 

1979, the District Court appointed counsel to represent Harvey 

upon this appeal. 

Harvey raises the following issues upon appeal: 

1. Was the evidence sufficient to support a finding that 

the value of the Sako rifle exceeded $150? 

2. Did the District Court err in failing to instruct 

the jury that Harvey could have been convicted of a lesser 

included offense? 

3. Was Harvey denied the right to adequate counsel? 

4. Did the District Court abuse its discretion in 

requiring Harvey to testify in question-answer form? 

5. Was Paulus an accomplice to the crime charged, and 

if so, did the State fail to corroborate his testimony? 

6. Was it error to deny Harvey's motion for a continuance 

for the purpose of subpoenaing witnesses to impeach Paulus' 

testimony? 

7. Was Harvey denied his constitutional right to a speedy 

trial? 
Having examined the record and the briefs of both parties, 

we find for the State on all issues. 

The first assignment of error questions the sufficiency 

of the evidence to support a finding that the value of the Sako 

rifle exceeded $150. In effect, Harvey is challenging the 

sufficiency of the evidence to support the verdict. The value 

of the property taken must exceed $150 before a conviction for 

felony theft will lie. Section 45-6-301(4), MCA. 

Harvey's contention is without merit. The determination 

of disputed questions of fact and the credibility of witnesses 

is within the province of the jury. State v. Bouldin (1969), 

153 Mont. 276, 284, 456 P.2d 830, 834. Upon appeal, we will 

not disturb a verdict if substantial evidence is found to support 

that verdict. State v. McKenzie (19781, Mont. , 581 

P.2d 1205, 1226, 35 St.Rep. 759, 785. 

We find sufficient evidence of the value of the rifle to 

support the verdict rendered. At the trial, Marvin Hiatt, 

owner of a Deer Lodge sporting goods store, testified that the 

rifle had a current wholesale value of between $175 and $200 

and a current retail value of between $200 and $280. Similarly, 

Theodore P?-lson, the owner of the rifle, testified at the trial 

that he had the rifle appraised at $280. Harvey made no objection 

to the testimony of either of these witnesses. 

The second assignment of error is that the District Court 

erred in failing to instruct the jury on misdemeanor theft. 

Harvey never offered such an instruction at the trial level. 

In State v. Radi (1975), 168 Mont. 320, 325, 542 P.2d 1206, 

1209-1210, we said: 

". . . Generally, this Court will refuse to rule 

on issues which were not presented to the district 

court and this rule is especially applicable to the 

instant case. The Montana Code of Criminal Procedure, 

section 95-1910(d), R.C.M. 1947, [now section 46-16-401, 

MCA] provides in pertinent part: 

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"'When the evidence is concluded, if either party 

desires special instructions to be given to the 

jury, such instructions shall be reduced to writing, 

numbered, and signed by the party, or his attorney, 

and delivered to the court.' 

"The statute is written in mandatory language and 

therefore should be construed as such. State v. 

Cook, 42 Mont. 329, 112 P. 537; State v. ~oughzty, 

71 Mont. 265, 229 P. 735; State v. ~aw~r, 71 Mont. 

269. 229 P. 734: State - v. -- 

~onues.126 Mont. 341, 251 

~.2d 254; state*~. - Maciel, 130 Mont. 569, 305 ~12d 

335." 

The third assignment of error is that Harvey was denied 

the right to adequate counsel. 

The record does not support the contention that Harvey's 

court-appointed counsel was inadequate prior to his excusal. 

The court-appointed counsel assisted Harvey by interviewing 

witnesses in preparation for trial, subpoenaing witnesses and 

filing in good faith two motions to dismiss. 

Harvey also may not complain that he himself was inadequate 

at trial. The Sixth and Fourteenth Amendments to the United 

States Constitution guarantee to an accused the right of selfrepresentation provided the choice has been made knowingly and 

intelligently. Faretta v. California (1975), 422 U.S. 806, 95 

The record establishes that Harvey made his choice of selfrepresentation with his eyes wide open. Adams v. United States 

ex rel. McCann (1942), 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 

L.Ed. 268, 275. The District Court repeatedly warned Harvey 

of the disadvantages of self-representation. In fact, the 

District Court appointed "standby" counsel to assist Harvey should 

he so request. Having made his choice of self-representation 

knowingly and intelligently, Harvey cannot now be heard to 

complain. 

The fourth assignment of error is that the District Court 

abused its discretion in requiring Harvey to testify in questionanswer form. 
The mode and order of the presentation of evidence is 

within the sound discretion of the District Court. Rule 611(a), 

Mont.R.Evid., provides in pertinent part: 

"(a) Control by court. The court shall exercise 

reasonable control over the mode and order of 

interrogating witnesses and presenting evidence 

so as to (1) make the interrogation and presentation 

effective for the ascertainment of the truth . . ." 

The District Court required Harvey to testify in questionanswer form to give the State an opportunity to object and avoid 

the introduction of inadmissable evidence. Harvey can claim no 

prejudice from being barred from introducing inadmissable evidence. 

Once again, the District Court warned Harvey at the outset of 

the difficulties in representing himself. Moreover, the District 

Court advised Harvey that he could use "standby" counsel to ask 

the questions while he testified, but Harvey refused to do so. 

The fifth assignment of error is that the State failed 

to corroborate the testimony of Robert Paulus. 

An accused may not be convicted solely on an accomplice's 

testimony. Section 46-16-213, MCA. State v. Harmon (19591, 

135 Mont. 227, 236, 340 P.2d 128, 132, defines accomplice as 

follows : 

"An accomplice is defined by Chief Justice Brantly 

as 'one who knowingly, voluntarily, and with common 

intent with the principal offender unites in the 

commission of a crime.. . . One may become an 

accomplice by being present and joining in the 

criminal act, by aiding and abetting another in 

its commission, or, not being present, by advising 

and encouraging its commission; but knowledge and 

voluntary actions are essential in order to impute 

guilt.' State ex rel. Webb v. District Court, 1908, 

37 Mont. 191, 200, 201, 95 P. 593, 597, 15 Ann. 

Cas. 745, jury tampering; included with citations 

in 3 Jones on Evidence, 5th ed., 5813 at p. 1525." 

There is no evidence in the record indicating Paulus 

knowingly, voluntarily and with common intent united with Harvey 

in the commission of a crime. Therefore, the State did not have 

to corroborate Paulus' testimony. 
The sixth assignment of error is that the District Court 

erred in failing to grant Harvey's motion for a continuance for 

the purpose of challenging the credibility of Paulus, the 

State's witness. 

After both sides rested, Harvey orally moved the District 

Court for a continuance so he could subpoena personnel from the 

Black Hills Pack or the Billings Vocational-Technical School 

to prove Paulus did not work at either of these businesses as 

he had testified. 

The denial of a motion for a continuance is within the sound 

discretion of the District Court, and it is not error to deny 

such a motion unless a clear abuse of discretion is shown. State 

v. Olsen (1968), 152 Mont. 1, 11, 445 P.2d 926, 932. 

Section 25-4-501, MCA, provides: 

"Motion to postpone -- trial for absence of testimony. 

A motionto postpone a trial on groundsof the 

absence of evidence shall only be made upon affidavit 

showing the materiality of the evidence expected to 

be obtained and that due diligence has been used to 

procure it." 

The language of the statute is mandatory and must be construed 

as such. State v. Radi, supra. 

Harvey never filed an affidavit demonstrating materiality 

or due diligence. In view of Harvey's failure to comply with 

section 25-4-501, MCA, it cannot be said the District Court 

abused its discretion in denying the motion for a continuance. 

State v. Pascgo (19771, ~ont . , 566 P.2d 802, 804, 

34 St.Rep. 657, 659. 

Also, the matters sought to be obtained by the motion for 

a continuance go to the credibility of a witness and not to 

facts which tend to prove or disprove the allegations of the 

information. One cannot impeach a witness on a collateral 

matter. Tigh v. College Park Realty Co. (1967), 149 Mont. 358, 
The final assignment of error is that the District 

Court erred in denying Harvey's motion to dismiss for failure 

to grant a speedy trial. 

The following is the table of relevant dates and events 

set forth in the State's brief. 

DATE TOTAL DAYS 

ELAPSED 

Information filed 0 

Arraignment 

Continuance to consult with attorney 

requested by and granted to defendant 

Defendant released on own 

recognizance 

Entry of plea 7 

Defendant incarcerated on parole 

violation charge 70 

Motion by defendant to dismiss on 

grounds of double jeopardy filed 126 

Motion to dismiss denied 147 

Trial set for 9/19/78 202 

Trial continued 209 

Motion by defendant to dismiss 

for failure to grant a speedy 

trial filed 215 

State's opposition to motion to 

dismiss filed 217 

Motion to dismiss denied 

Trial reset for 10/2/78 

Trial continued 228 

Trial 229 

Verdict 230 

The right of an accused to a speedy trial is guaranteed 

by both the United States and Montana Constitutions. United 

States Constitution, Amend. VI; 1972 Mont. Const., Art. 11, 

524. The Fourteenth Amendment due process clause imposes the 

federal standard, as a minimum, upon Montana. See Dickey v. 

Florida (1970), 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26; and 

State v. Bretz (19791, - Mont. -I - P.2d I 36 

Each speedy trial case must be considered on an -- ad hoc 

basis. We must balance the conduct of both Harvey and the 

State. In balancing such conduct, we must look to four factors: 

the length of the delay, the reason for the delay, the defendant's 
assertion of the right and any prejudice to the defendant. 

Barker v. Wingo (19721, 407 U.S. 514, 530, 92 S.Ct. 2182, 

2192, 33 L.Ed.2d 101, 116-117; State v. Bretz, supra, 

36 St.Rep. at 1041. 

.We will examine each of these four factors individually 

under the facts of the instant case. 

Length - of delay. The length of the delay is a triggering 

device. There is no need to examine the other three factors 

until some delay which is deemed presumptively prejudicial has 

occurred. What length will be deemed presumptively prejudicial 

depends on the facts of each individual case. A longer delay will 

be tolerated in a complex case than would be tolerated in one 

involving a simple fact situation. Barker v. Wingo, supra, 407 

U.S. at 530-531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; State v. 

Bretz, supra, 36 St.Rep. at 1041-1042. 

In the instant case, the passage of 229 days from the 

date the information was filed to the date of the trial is 

sufficient to shift to the State the burden of explaining the 

reason for the delay and showing absence of prejudice to Harvey. 

This was not a complex case. 

The State asserts that thirty days should be subtracted 

because of motions made by Harvey. We do not agree. The good 

faith motions of a defendant are not chargeable to that defendant. 

State v. Carden (19771, Mont . , 566 P.2d 780, 785, 

34 St.Rep. 420, 427. 

Reason -- for the delay. Different weights must be assigned 

to different reasons for the delay. Barker v. Wingo, supra, 

407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; State v. 

Bretz, supra, 36 St.Rep. at 1042. The State asserts the delay 

in this case was institutional delay. While institutional delay 

weighs less heavy than intentional delay by the State, it still 

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must be considered. Delay inherent in the system is 

chargeable to the State. The State bears the burden of 

bringing a defendant to trial. State v. Puzio and Allen 

(1979), Mont . I P.2d , 36 St.Rep. 1004, 

Defendant's assertion -- of the right. The defendant's 

assertion of his right is entitled to strong evidentiary weight 

in determining a deprivation of that right. State v. Bretz, 

supra, 36 St.Rep. at 1043. Therefore, an accused should take 

some affirmative action to be entitled to a discharge for 

delay. The appropriate action is a motion to dismiss for 

denial of a speedy trial made prior to the commencement of 

the trial. State v. Puzio and Allen, supra, 36 St.Rep. at 

1008. This was done by Harvey. 

Prejudice -- to the defendant. This factor must be weighed 

with regard to the three interests which the right to a 

speedy trial is intended to protect. These three factors are 

(1) avoiding oppressive pretrial incarceration, (2) minimizing 

the anxiety and concern of the accused and (3) limiting the 

possibility of impairing the accused's defense. State v. 

Bretz, supra, 36 St.Rep. at 1044. 

We find no evidence of oppressive pretrial incarceration. 

Initially, Harvey was released on a recognizance bond. On 

April 27, 1978, Harvey was incarcerated on a parole violation 

charge. The grounds for the parole revocation were possession 

of a weapon, the Sako rifle, and Harvey's drinking habits. 

Since Harvey's pretrial incarceration was due in part to an 

unrelated offense, we cannot attribute any prejudice from that 

imprisonment to the case at hand. We cannot assess the fault 

by any precise means. - See, State v. Bretz, supra, 36 St.Rep. 

at 1044; and State v. Mielke (1966), 148 Mont. 320, 420 P.2d 

155. 

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Harvey next contends he suffered undue anxiety and concern 

while waiting to be brought to trial. Prior to his being 

charged with felony theft, Harvey had made a new life for 

himself. He was a successful salesman for Wallin's Ford in 

Deer Lodge, and the people of that city trusted him. However, 

as a result of the felony charge and his pretrial incarceration, 

he lost his job, his income, the public trust and his wife 

suffered an emotional breakdown. 

Harvey's contention is without merit. To a large extent, 

any emotional stress, economic hardship or public obloguy 

suffered by Harvey were due to his incarceration for an unrelated 

offense. Any prejudice suffered from that incarceration cannot 

be charged against the State. See State v. Bretz, supra; and 

State v. Mielke, supra. 

Harvey contends his pretrial incarceration impaired his 

ability to prepare a defense. As a result of that incarceration 

his wife suffered such emotional distress that Harvey could 

not call her as a witness. Similarly, Harvey could not call 

his daughter as a witness since she blamed Harvey for her 

divorce. 

Harvey has not shown any factors which would impair his 

ability to prepare a defense. There is no evidence that any 

witness died prior to the trial or that any witness suffered 

an impaired memory due to the delay. The distress within 

Harvey's family is unfortunate. However, Harvey could have 

subpoenaed his wife and daughter but voluntarily chose not 

to do so. 

Application. On the balance, we find no excessive delay 

in bringing this cause to trial. While no one factor is 

determinative, the presence of prejudice should be weighed 

heavily in the balancing of all factors. Barker v. Wingo, 

supra. Harvey has not demonstrated any actual prejudice which 

is attributable to the State. 

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Having found no substance to Harvey's assignments of error, 

we affirm the conviction entered by the District Court. 

/ Justice u 

i' 

We Concur: 

Chief Justice 

.................................. Justices