No. 13832 

IN THE SUFREME COURT OF THE STATE OF MONTANA 

1977 

THE STATE OF ElONTANA ex rel. 

SOL BRICENO and JESSIE BRICENO, 

Relators, 

THE DISTRICT COURT OF THE THIRTEENTH 

JUDICIAL DISTRICT OF THE STATE OF MONTANA, 

In and for the County of Yellowstone, and 

the Hon. C. B. Sande, 

Respondents. 

Original Proceeding: 

Counsel of Record: 

For Relators: 

Moses, Tolliver & Wright, Billings, Montana 

Ralph Allan Beck argued, Billings, Montana 

For Respondents: 

Harold F. Hanser, County Attorney, Billinqs, Montana 

Charles Bradley argued, Deputy County Attorney, 

Billings, IvlOntana 

Submitted: June 22, 1977 

Filed: - 

=w<q ,~~ 

clerk 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This is an original proceeding. Relators Sol Briceno and 

Jessie Briceno, defendants in a criminal action, seek a writ of 

supervisory control or other appropriate writ from this Court to 

require the presiding judge of the district court, Yellowstone 

County, annul and set aside the denial of relators' motion to 

dismiss for lack of a speedy trial. 

Defendants Sol and Jessie Briceno, father and son respectively, 

were arrested in Billings on November 20, 1975, and charged with 

the crime of aggravated assault, a felony. The offense was alleged 

to have occurred on July 7, 1975. Defendants appeared in justice 

court on November 20, 1975, and were released upon posting bond 

the next day. 

On April 28, 1976, the Yellowstone County attorney and defendants, accompanied by counsel, appeared in district court. The 

county attorney moved for and was granted leave to file an Informtion formally charging defendants with aggravated assault. Defendants were arraigned during the proceedings and pled "NOT GUILTY" 

to the charge. Two weeks thereafter the trial date was set for 

May 26, 1976. On May 18, 1976, counsel for defendants moved for 

a continuance and, in addition to other matters, for a dismissal 

of the charges for lack of a speedy trial. The motion stated in 

part : 

"The defendants agree that they will waive any right 

they have by law to complain as to a speedy trial by 

reason of any delay in their trial date caused by this 

mot ion ." 

The trial was reset for September 1976. Defendants, on 

September 2, 1976, renewed their motion to dismiss. Various pretrial proceedings were had between September 1976 and March 1977. 
On April 12, 1977, following a hearing, the district court 

orally denied defendants' motion to dismiss for lack of a 

speedy trial. Thereupon defendants filed the instant application for a writ of supervisory control with this Court, seeking 

that the district court order of April 12, 1977, denying the 

motion to dismiss be set aside and annulled. 

The sole issue on appeal is whether the Information should 

be dismissed because defendants have been denied their constitutional right to a speedy trial. 

Defendants argue that, under the facts of this case, a delay 

of 4 1/2 months between the date of the alleged offense and their 

arrest and of over 6 months between the arrest and the filing 

of the Information is sufficiently long to shift to the state the 

burden of explaining the delay and showing the absence of prejudice to defendants. Their argument is grounded in the constitutional principles outlined by the United States Supreme Court in . Fs . Lj 4 t 

Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 99&, 18 L ed 2d 

and Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L ed 2d 101; 

as further developed by this court's decisions in State ex rel. 

Thomas v. District Court, 151 Mont, 1, 438 P.2d 554; Fitzpatrick 

v. Crist, 165 Mont, 382, 528 P.2d 1322; State v. Steward, 168 Mont. 

385, 543 P.2d 178; and State v. Keller, Mont . , 553 P.2d 

1013, 33 St. Rep. 795. These cases involve a sensitive balancing 

of four factors, in which the conduct of the prosecution and the 

defendant are weighed in determining whether there has been a 

denial of the right to a speedy 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 to the defendant. 

Defendants aseert the facts of the instant case, when considered and balanced in the context of the above four factors, 

clearly demonstrate they have been denied the right to a speedy 

trial. They stress (1) the Iefigth of the delay was unreasonable; 

(2) the delay was aggravated by the fact the investigation which 

formed the basis for the Information was completed during August 

1975, more than 8 months prior to the filing of the Information, 

aad the entire period of delay can be characterized as one of 

total inaction on the part of the prosecution, chargeable as such 

to the prosecution; (3) the denial of the right to a speedy trial 

was asserted through counsel shortly following the filing of the 

Information and arraignment in district court; and (4) severe 

actual prejudice has resulted through the loss of an essential 

defense witness, 

The state concedes the applicability of the four factor 

balancing process of Barker,,as accepted in the various Montana 

decisions, It contends the inability to resolve one of the four 

factors in favor of the accused is sufficient gmetwd for rejecting 

a lack of speedy trial argument. The state argues the delay in 

the instant case was neither purposeful nor oppressive; that the 

anxiety and concern of the defendants were minimized by reason 

of no pretrial incarceration, and no actual prejudice resulted 

from the loss of the defense witness. The state relies on this 

Court's decision in State v. Carden, - Mont . -9 P.2d , 

34 St.Rep. 420, wherein the Court indicated that not every delay 
in a criminal action is properly chargeable to the state. 

It is maintained the delays in the instant case fall 'under 

the rule of Carden and, as such, are not chargeable to the 

state. No attempt is made to distinguish Fitzpatrick, Steward or 

Keller . 

The right to a speedy trial is expressly guaranteed by the 

United States and Montana Constitutions. The Sixth Amendment 

to the United States Constitution provides: 

"In all criminal prosecutions the accused shall 

enjoy the right to a speedy and public trial * * *." 

Art. 11, Section 24, 1972 Montana Constitution states: 

"In all criminal prosecutions the accused shall 

have the right to * * * a speedy public trial * * *." 

The right to a speedy trial has been classified as a fundamental right, applicable to the states by virtue of the Fourteenth 

Amendment to the United States Constitution. Klopfer v. North 

Carolina, supra. 

The touchstone in any analysis of the speedy trial issue 

is Barker v. Wingo, supra. Both parties, at least implicitly, 

recognize the primary authority of Barker. We find no need to 

reiterate the theoretical foundations of the four factor balancing 

approach of Barker as adopted by numerous Montana decisions. It 

is suf fieient to say the balancing test involves a weighing of 

these four factors with consideration given to the conduct of the 

accused and prosecution, respectively: 

(1) Length of delay; 

(2) Reason for delay; 

(3) ~efendant's assertion of the right; and 

(4) Prejudice to the defendant. 
First, the length of delay in this case. There were two 

basic delays involved (a) 4 1/2 months between the alleged 

offense and the actual arrest, and (b) 6 months between the arrest 

and the filing of the Information. A-similar delay was considered 

by this Court in Fitzpatrick: 

"Length of delay: Seven months. We emphasize this 

delay is not considered a per se violation of petitioner's right to a speedy trix, but under the circumstances here it is thought long enough to shift to 

the state the burden of explaining the reason for the 

delay and showing absence of prejudice to petitioner." 

165 Mont. 382, 388. 

Here, as in Fitzpatrick, we find the burden to have shifted to 

the state by reason of the delays. Unlike the situation in 

Carden, the entire 10 1/2 month delay in this case consists 

primarily of "dead time". The prosecution simply was not pursued 

with reasonable diligence until the time the Information was 

filed. Indeed, the investigation of the case which furnished 

the information necessary to charge these defendants was completed at least 8 months prior to the filing of the Information. 

Second, the reason for the delay. The state argues it was 

not made aware of the fact defendants were arrested and brought 

before the justice court on November 20, 1975, until shortly 

prior to the time the Information was filed. 

This is not *a case involving delays occasioned in any 

manner, whether thcough time consuming investigations or good 

faith motions, by the conduct of the defendants. It is true 

the state, in a given case, is not automatically chargeable with 

all delays not attributable to the defendant. State v. Carden, 

supra. The delays here appear to be unintentional rather than 

deliberate, nevertheless they are substantial delays resulting 

directly from a breakdown in the chain of prosecution, for which 
the state will be held responsible. The reason for the delay 

advanced by the state is insufficient to justify the lengthy 

delay. 

Third, we find defendants' assertion of the right to a 

speedy trial was timely. As stated in Steward: 

"The 'appropriate motion' is a motion to dismiss 

for denial of a speedy trial. The proper time 

to assert the right to a speedy trial is prior 

to the actual commencement of the trial, usually 

at the time the trial date is set, or the time 

the case is called to trial." 168 Mont. 385, 390. 

Here, defendants moved to dismiss for lack of a speecy trial 

two weeks following arraignment in district court and less 

than a week after the first trial date was set. Under these 

circumstances we find the assertion of the right was properly 

and timely made. Defendants' waiver of the right regarding 

any delay occasioned by their motion to dismiss has no effect 

on the propriety of the assertion. 

Fourth, prejudice, both presumptive and actual, to 

defendants. 

The primary interests which lie at the heart of thPs factor 

are set forth in Barker: 

"* * * Prejudice, of course, should be assessed 

in the light of the interest of defendants which 

the speedy trial right was designed to protect. 

This Court has identified three such interests: 

(i) to prevent oppressive pretrial incarceration; 

(ii) to minimize anxiety and concern of the accused; 

and (iii) to limit the possibility that the defense 

will be impaired. Of these, the most important 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 a delay, the prejudice is obvious. There 

is also prejudice if defense witnesses are unable to 

recall accurately events of the distant past. Loss 

of memory, however, is not always reflected in the 

record because what has been forgotten can rarely 

be shown." 407 U.S. 514, 532. 
Defendants acknowledge they were not prejudiced with 

regard to oppressive pretrial confinement. There was no 

pretrial con£ iaement . 

The second interest to be protected by a speedy trial, 

minimization of an accused's anxiety and concern, is difficult 

to show as such is not readily subject to proof by objective 

evidence. State v. Steward, supra. Here, while the record 

contains no facts conclusively showing anxiety and concern 

have been caused to defendants, various statements appearing 

in defendants' brief support the conclusion defendants have 

likely been subject to substantial anxiety and emotional abuse 

because of the delays. We find, under the facts, some prejudice 

in the nature of anxiety and concern can be presumed to have 

occurred. 

It is the third and most important OF the interests 

outlined above which concerns us here. The defense was seriously 

impaired by the death of an essential witness and it has resulted 

in actual prejudice to defendants. Its deleterious effect on 

the ability of defendants to prepare an adequate defense is 

more than obvious. It is no argument to say the testimony of the 

deceased witness might have been controverted by testimony of 

state's witnesses. We cannot allow any defendant's right to 

an adequately prepared case to be dismissed in this manner. 

After considering the circumstances in the light of the 

factors established by Barker, we hold there has been an 

excessive delay; that no viable justification for the delay 

has been demonstrated; that defendants' assertion of the right 

to a speedy trial was proper and timely; and that some preaudice, 

both actual and presumptive, resulted directly from the delay. 
Accordingly, it is ordered the district court annul 

and set aside its oral order of April 12, 1977, denying 

defendants' motion to dismiss and substitute therefor an 

order of dismissal. 

Justice 

We Concur: 

n 

f Cbief Justice