No. 13832 INTHE 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 CharlesBradley 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 SolBriceno and Jessie Briceno, defendants ina criminal action, seek a 

### writof supervisory control or other appropriate 

### writ from this Court to require the presidingjudge of the district court, Yellowstone County, annul and setaside the denial of relators' motion to dismiss for lack of a speedy trial. Defendants Sol and Jessie Briceno, father and son respectively,

were arrested inBillings 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 injustice court on November 20, 1975, and were released upon posting bond the next day. OnApril 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 filean 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 datewas set for May 

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

a continuance and, inaddition 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 willwaive any right they have by law to complain as to a speedy trialby reason of any delay in their trial date caused by this motion

# ."
The trialwas reset for September 1976. Defendants, on September 

### 2, 1976, renewed theirmotion todismiss. Various pretrialproceedings 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 

### writof supervisory control with this Court, seeking that the district court order of April 12, 1977, denying the motion to dismiss be setaside and annulled. The sole issue on appeal 

### iswhether 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 arrestand of over 6 months between the arrest and the filing of the Information 

### is sufficiently long to shift to the statethe burden of explaining the delay and showing the absence of prejudice to defendants. Their argument 

### is grounded in the constitutional principles outlinedby the United States Supreme Court in

. Fs . Lj4 t Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 

### 99&, 18L 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, 151Mont, 1, 438 P.2d 554; Fitzpatrick



### v. Crist, 165Mont, 382, 528 P.2d 1322; Statev. Steward, 168Mont. 385, 543 P.2d 178; and Statev. Keller, Mont

# . ,553 P.2d 1013, 

### 33 St. Rep. 795. These cases involve a sensitivebalancing of four factors, inwhich the conduct of the prosecution and the defendant areweighed indetermining whether there has been a denial of the right to a speedy trial. The four-factors tobe 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 investigationwhich formed the basis for the Information was completed during August 1975, more than 

### 8 months prior to the filing of the Information, 

### aad the entireperiod of delay can be characterized as one of total inaction on the part of the prosecution, chargeable as such tothe prosecution; 

### (3) the denial of the right to a speedy trial

was asserted through counsel shortly following the filingof 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 trialargument. The stateargues 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 Statev. Carden, 

# - Mont

# . -9 P.2d 

# , 34 St.Rep. 420, wherein the Court indicated that not every delayina criminal action 

### isproperly chargeable to the state. It 

### ismaintained the delays in the instant case fall'under the rule of Carden and, as such, arenot chargeable to the state. 

### No attempt 

### ismade todistinguish Fitzpatrick, Steward or Keller

# . The right to a speedy trial

### is expressly guaranteed by the United States

### and Montana Constitutions. The SixthAmendment to the United StatesConstitution provides: "In allcriminal prosecutions the accused shall enjoy the right to a speedy and public trial

# *

# *

# *." Art. 11, Section 

### 24, 1972Montana Constitution states: "In allcriminal prosecutions the accused shall have the right to

# *** a speedy public trial

# *

# * *." The right to a speedy trialhas been classified as a fundamental right, applicable to the statesby virtue of the Fourteenth Amendment to the United StatesConstitution. Klopfer v. North Carolina, supra. The touchstone inany analysis of the speedy trial issue 

### isBarker v. Wingo, supra. Both parties, atleast implicitly, recognize the primary authority of Barker. We findno need to reiterate the theoretical foundations of the four factor balancing approach of Barker asadopted by numerous Montana decisions. It 

### is suffieient to say the balancing test involves a weighing of these four factorswith 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 1/2months between the alleged offense and the actual arrest, and (b) 6months between the arrest and the filing of the Information. A-similar delay was considered by this Court inFitzpatrick: "Length of delay: Seven months. We emphasize this delay 

### isnot 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 topetitioner." 165Mont. 382, 388. Here, as inFitzpatrick, 

### we find the burden tohave shifted to the stateby reason of the delays. Unlike the situation in Carden, the entire 10 1/2month delay in this case consists primarily of "dead time". The prosecution simplywas not pursued with reasonable diligence until the time the Information was filed. Indeed, the investigationof the case which furnished the information necessary tocharge these defendants was completed atleast 8months prior tothe filing of the Information. Second, the reason for the delay. The stateargues it was not made aware of the fact defendants were arrested and brought before thejustice court on November 

### 20, 1975, until shortly prior to the time the Information was filed. This 

### isnot *acase involving delays occasioned in any manner, whether thcough time consuming investigations or good faithmotions, by the conduct of the defendants. It 

### is true the state, ina given case, 

### isnot automatically chargeablewith alldelays not attributable to the defendant. Statev. Carden, supra. The delays here appear tobe unintentional rather than deliberate, nevertheless they are substantial delays resulting directly from a breakdown inthe chain of prosecution, forwhichthe state

### willbe held responsible. The reason for the delay advanced by the state

### is insufficient tojustify the lengthy delay. Third, we find defendants' assertion of the right to a speedy trialwas timely. As stated in Steward: "The 'appropriate motion' isa motion to dismiss for denial of a speedy trial. The proper time to assert the right toa speedy trial

### is prior to the actual commencement of the trial, usually atthe 

### timethe trialdate 

### is set, or the time the case 

### iscalled to trial." 168Mont. 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 trialdatewas 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 theirmotion todismiss has no effect

on the propriety of the assertion. Fourth, prejudice, both presumptive and actual, to defendants. The primary interestswhich lieatthe heart of thPs factor

are set forth inBarker: 

# "*** Prejudice, of course, should be assessed inthe light of the interest of defendants which the speedy trialright was designed toprotect. This Court has identified three such interests: (i) toprevent oppressive pretrial incarceration; (ii) tominimize anxiety and concern of the accused; and (iii) to 

### limitthe possibility that the defense 

### willbe impaired. Of these, the most important 

### is the last, because the inability of a defendant adequately toprepare his case skews the fairness of the entire system. Ifwitnesses die or disappear during a delay, the prejudice 

### isobvious. There 

### is alsoprejudice if defense witnesses areunable to recall accurately events of the distantpast. Loss of memory, however, 

### isnot 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 tooppressive pretrial confinement. There was no pretrial con£iaement

# . The second interest tobe protected by a speedy trial, minimization of an accused's anxiety and concern, 

### is difficult to show as such 

### isnot readily subject toproof by objective evidence. Statev. Steward, supra. Here, while the record contains no facts conclusively showing anxiety and concern have been caused todefendants, various statements appearing indefendants' brief support the conclusion defendants have likelybeen subject to substantial anxiety and emotional abuse because of the delays. We find, under the facts, some prejudice inthe nature of anxiety and concern can be presumed tohave 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 essentialwitness and it has resulted inactualprejudice to defendants. 

### Its deleterious effect on the abilityof defendants toprepare an adequate defense 

### is

more than obvious. It 

### isno 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 tobe dismissed inthismanner. After considering the circumstances inthe light of the factors established by Barker, 

### we hold there has been an excessive delay; thatno viablejustification for the delay has been demonstrated; that defendants' assertion of the right to a speedy trialwas proper and timely; and that some preaudice, both actual and presumptive, resulted directly from the delay.

### Accordingly, it 

### isordered the district court annul and setaside 

### its oral order of April 12, 1977, denying defendants' motion to dismiss and substitute therefor an order of dismissal.

Justice

We

### Concur:



## n

Cbief Justice



# f