NO. 87-509

IN THE SUPREME COURTOF THE STATEOF MONTANA
1988

THE STATEOF MONTANA, PlaintiffandAppellant,

-vsSCOTTA. WOMBOLT, Defendantand Respondent.

APPEAL FROM: District Court of the Thirteenth JudicialDistrict, Inand for theCounty ofYellowstone, TheHonorableRobert

### W. Holmstrom,Judgepresiding.

COUNSELOF RECORD:
ForAppellant:
HonorableMike Greely,Attorney General,Helena,Montana Harold F. Hanser,CountyAttorney, Billings,Montana CharlesA. Bradley,Deputy CountyAttorney
For Respondent: Arthur J. Thompson; Thompsonand Sessions, Billings, Montana

Submitted onBriefs: March 24, 1988 Decided: April 21, 1988Mr. Justice L. C. Gulbrandson delivered the Opi-nionof the Court.

The State appeals from an order of the District Court of the Thirteenth Judicial District, County of Yellowstone, dismissing an informationchargingdefendant/respondent Scott A. Wombolt (Wombolt)with arson. The dismissalwas based on failure toprovide a speedy trial. We affirm. The State raisesbut one issue: Did the District Court abuse itsdiscretion in granting Wombolt's motion to dj-smissfor failure to provide a speedy trial? Wornbolt was arrested and jailed on March 27, 1987. He
was charged with the crime of felony arson. A preliminary hearing was scheduled for April 16, 1987 when Wombolt appeared in justice court onMarch 31, 1987. At theMarch 31 hearing, and before any examination began, Wombolt invoked his statutory right to close the proceedings to thepress and public pursuant to 

### 5 46-10-201,MCA. Accordingly, the court closed the preliminary examination to the public and press. The Billings Gazette (Gazette) commenced a series of legal proceedings, ultimately culminating in an August 5, 1987, Federal District Court ruling that the closure statute

was unconstitutional. Therefore,the preliminary examination did not occur until August 25, 1987. The State filed an information in District Court on September 1, 1987 and trial

was set for October 27, 1987. Defendantasserted his right to

a speedy trial at an October 2, 1987 omnibus hearing. Wombolt formally moved the court for dismissal of the action on October 5, 1987 and argued that he had previously made five unsuccessful attempts to have his bail reduced. The court entered it order of dismissal on October 23, 1987. As the District Court noted, Wombolt would have commenced his214thday of incarcerationonOctober 27, 1987,the scheduled date of trial. The law in this area is clear. Our most recent statementwas in Statev. Waters (Mont. 1987), 743 P.2d 617,

Any person accused of a crime is guaranteed the right to a speedy trialby the Sixth Amendment to the United States Constitution and Art. 11, S 24 of the Montana Constitution. The right to a speedy trial is fundamental. Itattaches when a defendant is accused of a crime, Statev. Ackley (1982), 201 Mont. 252, 255, 653 P.2d 851, 853,but thenature of the right precludes establishing a time period cast in stone as determinative. The right of a speedy trial is necessarily relative. It is consistent with delays and dependson circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.
Beaversv. Haubert (1905), 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed.2d 950, 954. Thus, any inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular contextof the case. Consistent with the amorphous quality of the right, the United States Supreme Court established a four-pronged balancing test to determine speedy trial claims in Barker

### v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. This Courthas adopted the Barker test as stated in State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-4:

These cases involve a sensitive balancing of four factors, in which the conduct of the prosecution and defendant are weighed in determining whether there has been a denial of the right to aspeedy trial. The four factors to be evaluated and balanced are: 1) Length of delay; 2) Reason for delay; 3) Assertion of the right by defendant; and 4) Prejudice.
No single factor is determinative. Each facet of the analysis isweighed in light of the surrounding facts and circumstances.

In speedy trial analysis,the length of delay acts as a "triggering"mechanism and the other above enunciated factors need not be examined unless presumptive prejudicial delay is present. State v. Harvey (1979), 184 Mont. 423, 433, 603 P.2d 661, 667. The State argued only 56 days expired between the filing of the information and the trial date. The District Court properly dispelled this claim stating the right to speedy trial attachesat arrest or the filingof the complaint in justice court. State v. Larson (Mont. 1981), 623 P.2d 954, 957, 38 St.Rep. 213, 215. The delay in this

case would have been 214 days. It is indisputable that this length of time is sufficient to trigger a speedy trial examination. Statev. Palmer (Mont. 1986), 723 P.2d 956, 43 St.Rep. 1503 (256 days); State v. Chavez (Mont. 1984), 691 P.2d 1365, 41 St.Rep. 2219 (214 days); State v. Ackley

(1982), 201 Mont. 252, 653 P.2d 851 (257 days); State v. Cassidy (1978), 176Mont. 385, 578 P.2d 735 (246days). This delay gives rise to a rebuttable presumption of prejudice. The State therefore, in order to rebut this presumption, has an affirmative duty to come forward with evidence showing Wombolt was not prejudiced by the delay and show therewas a reasonableexcuse. Waters, 743 P.2d at 619.The State's burden was not met in this case to rebut the presumption of prejudice. This length, 214 days, leads

us to the second Barker factor, reason for delay. The State claimed the delay was "institutional" and therefore not chargeable to the State. "Although institutional delay weighs less heavily against the State, it is the policy of this Court to gradually reduce our tolerance for this excuse



# ..." Chavez, supra, 691 P.2d at 1370. Nevertheless, institutional delay still must be considered by this Court: "[dlelay inherent in the system 

# . .

# . chargeable to the State." Ackley, supra, 201 Mont. at 256, 653 P.2d at 853-854; citing, State v. Harvey (1979), 184Mont. 423, 434, 603 P.2d 661, 667. As the District Court appropriately pointed out, the institutionaldelay in this casewas caused by the "Gazettesuit,and the State's inaction in the faceof that suit." Here, the Statehad the alternative toproceed with the filing of the information in the District Court. State ex rel. Brackmanv. DistrictCourt (1977),172Mont. 24, 28, 560 P.2d 523, 526. Although the State properly asserts that it has the power to choose the method of commencement of prosecution, the District Court appropriately pointed out "concomitant with this discretion, however, is the duty to bring the accused to trial." Citing,Larson, supra, 623P.2d 954. Here, the State held Wombolt in custody without proceeding with the motion for leave to file an information. Therefore, although institutional, the delay was still chargeable to the State. The Statehas the responsibilityto bring the accused to trial, it is not theduty of the accused to bring himself to trial. This responsibility was clearly notmet. Larson, supra, 623 P.2d at 958. The third factor involved in this analysis is Wombolt's assertion of the right. Womboltproperly asserted this rightprior to trial at the omnibus hearing, October 2, 1987. This factor is met when the denial of speedy trial is put before the courtprior to the commencement of trial. Waters, supra, 743 P.2d at 620; Statev. Steward (1975), 168Mont. 385, 390,

The final factor involved requires an analysis of whether thedefendantwas prejudiced. "Prejudiceisdeterminedby examining the defendant's interest in a speedy trial. These interests are: (1) to prevent oppressivepretrial incarceration; (2)to minimize anxiety and concern of the accused; and, (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118." Waters, supra, 743 P.2d at 620. Here, a review of the District Court's order of October 23, 1987, disposes of any argument the State can present in regard to the prejudice Wombolt suffered: The State does not address the first interest, the prevention of oppressive incarceration. The Supreme Court discussed the prejudicial effect of incarceration inBarker:
"We have discussed previously the societal disadvantages of lengthy pretrial incarceration,hut obviously the disadvantages for the accused who cannot obtain his releaseare evenmore serious. The time spent in jail awaiting trialhas a detrimental impact on the individual. It often means the loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time. Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. Imposingthose consequences on anyone who has not yet been convicted is serious 

### * 

## * * "
92 S.Ct. at 2193. The State has failed to demonstrate that Defendant's incarcerationwas not oppressive.
The State does not address the second interest, the minimization of anxiety. In Statev. Britton, 

## -- Mont. 

## --I 689 P.2d 1256, 41 St.Rep. 2018 (1984), the Montana Supreme Court held that a criminal Defendant's anxiety over a "potential loss of liberty because of a criminal conviction"was significant. 41 St.Rep. at 2022. There, Defendant was released on his own recognizance after his first appearance in Justice Court. The criminal charges against him were pending for over a year before he was brought to trial. 

## - Id. It cannot be conscientiously argued that thedegree of anxiety and concern experienced by Britton regarding his potential loss of liberty in any way outweighs Defendant Wombolt's anxiety and concern caused 

### by his actual loss of liberty.
The Court must next consider whether the accused defense has been impaired by the delay. As noted above, oppressive incarceration hinders the preparation of a defense. Barker, supra. Further, witnesses may die, suffermemory lapses, and physical evidence may vanish. State v. Larson, 623 P.2d at 959. The Defendant is not required to affirmatively prove prejudice; the State must come forwardwith some evidence that outweighs the presumption of prejudice. Chavez, 41 St.Rep. at 2223. Here, the State asserts only that the witnesses "are still alive, present and able to testify". Such a statement, without more, is insufficient to carry the State'sburden. Thus, the State fails to show that Defendantwas notprejudiced by the delay.

### The State argues on this appeal that Wombolt admitted he could not prove prejudice and therefore the State should be entitled to the advantage

### of this admissionaspart of its burden to overcome prejudice. However, from the above recitation of the District Court's ruling, it is clear that the State alleges only that witnesses "are still alive, present and able to testify." This argumentpales in light ofWombolt's incarceration of over 200

### days. Upon consideration of the Barker factors and the circumstances of this case, we have no alternative than to determine that there was excessive delay on the part of the prosecution with no justification. Wombolt timely asserted his right to a speedy trial. The judgmentof theDistrict Court ispfirmed.

We concur: 

# 2
P*$f Justice