No. 90-488 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsNICHOLAS LEE DANIELS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Rosebud, 

The Honorable Joe L. Hegel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

J. B. Wheatcroft, Miles City, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General; Joseph E. 

Thaggard, Assistant, Helena, Montana 

John Forsythe, County Attorney, Forsyth, Montana 

Submitted on Briefs: March 28, 1991 

MAY 2 3 1991 

Decided: May 23, 1991 

Filed: Cd SmitL 

CLERK OF SUPREME COURT 

STATE OF MONTANA 

t' 

Clerk 
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Justice John Conway Harrison delivered the Opinion of the Court. 

Nicholas Lee Daniels appeals from a conviction of burglary 

after a jury trial in the District Court of the Sixteenth Judicial 

District, in and for the County of Rosebud, State of Montana. We 

affirm. 

Two issues are presented on appeal: 

1. Whether the defendant and appellant was denied his right 

to a speedy trial. 

2. Whether the District Court erred in admitting certain 

evidence of other crimes. 

At about 12:30 a.m. on the morning of June 18, 1989, Jerry's 

Big Sky Service, a service station located in Forsyth, Montana, was 

burglarized. Items taken from the service station included cash, 

candy, sunglasses, a car battery, and cigarettes. During the same 

night, a pickup truck was stolen from the nearby residence of one 

Gerald Schaefer. 

On June 19, 1989, appellant, then seventeen years old, and his 

brother, Charles then sixteen, were apprehended in Hutchinson, 

Minnesota with the Schaefer pickup. The two had escaped from the 

Pine Hills School for Boys in Miles City, Montana, two days 

earlier. Items identified as those taken in the Forsyth, Montana, 

burglary were found in the truck. 

The County Attorney of Rosebud County filed a petition in 

Youth Court on June 27, 1989, charging the appellant with the theft 

of Schaeferls truck and the burglary of Jerry's Big Sky Service. 

On July 26, 1989, the State moved the Youth Court for leave to 
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transfer the burglary charge to District Court. While the 

appellant resisted the transfer of the burglary charge to the 

District Court, he failed to file his proposed findings of fact and 

conclusions of law with respect to that transfer hearing until 

August 30, 1989. The District Court, on September 20, 1989, 

granted the State's motion to transfer the burglary charge from 

Youth Court to the District Court and filed findings of fact, 

conclusions of law and an order accomplishing this transfer. 

The procedural history which then transpired was as follows: 

October 12, 1989: The appellant was arraigned in 

district court. 

October 20, 1989: The appellant gave notice of his 

intent to rely on mental disease or 

defect as a defense to the charged 

crime. 

October 23, 1989: The court held the required omnibus 

hearing and set the trial for 

December 13, 1989. 

October 27, 1989: The State gave the appellant the 

first Just notice of its intent to 

introduce evidence of other crimes. 

November 2, 1989: The appellant moved the court to 

order a mental examination of him. 

November 17, 1989: The State moved to consolidate the 

appellant's trial with the trial of 

his brother Charles, a motion the 

court granted. 

November 20, 1989: The court set the consolidated trial 

for January 23, 1990. 

November 30, 1989: The court ordered a mental 

examination of the appellant. 

January 6, 1990: The appellant wrote a letter to 

Charles Daniels which suggested that 

the defense attorney had a conflict 

of interest in representing both 

brothers in a consolidated trial. 

The State intercepted the letter and 
informed the court and the defense 

attorney that a potential conflict 

of interest existed. 

January 16, 1990: The court held a hearing on the 

potential conflict of interest and 

noted that the impending trial date 

would likely be continued. 

January 19, 1990: The court appointed separate counsel 

for Charles Daniels. 

February 5, 1990: The court set the trial date for 

March 6, 1990. 

February 20, 1990: Charles Danielsn new attorney moved 

to sever his trial from that of the 

appellant. 

March 2, 1990: The State moved to continue the trial 

date because of the unavailability 

of a witness. The court continued 

the trial until March 27, 1990. 

March 22, 1990: Five days before the trial date, the 

appellant filed a motion to dismiss 

the instant case for lack of speedy 

trial. 

March 23, 1990: The court continued the trial date 

in order to provide the State with 

an opportunity to respond to the 

appellant's motion to dismiss. 

March 30, 1990: The appellant was released from jail 

on bail. 

April 26, 1990: The court denied the appellant s 

motion to dismiss. 

May 11, 1990: The State filed a second Just notice 

of its intention to introduce at 

trial evidence of other crimes, 

including the theft of Schaeferns 

pickup truck. 

May 15, 1990: Trial commenced in the instant case. 

Prior to trial, counsel for the appellant filed a motion in 

limine to prevent the State from admitting evidence of the 

appellant's record as a juvenile, including his theft of the pickup 
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truck on the night the burglary occurred. This motion was denied 

with respect to the theft of the pickup truck, which the court 

perceived as part of the res sestae of the burglary. At trial, 

three witnesses called by the State offered evidence and testified 

concerning possible participation by the appellant in other crimes. 

Gerald Schaefer testified that his truck had a value in excess of 

$300. Rosebud County Sheriff's Deputy Charles Skillen corroborated 

Mr. Schaeferls testimony that someone had stolen Schaeferts truck 

at approximately the same time as the burglary at Jerry's Big Sky 

Service. Deputy Skillen further testified that the authorities 

found the pickup truck in Hutchinson, Minnesota. However, the 

court did not allow Skillen to testify specifically that the 

appellant and his brother Charles were in possession of the vehicle 

at the time the police recovered it in Minnesota. All of this 

testimony went to the chain of custody of the evidence taken from 

the stolen pickup truck. 

In addition to the above testimony, appellant's brother, 

Charles, testified for the State and offered testimony regarding 

the theft of the pickup truck and other crimes committed by the 

appellant. Charles claimed that the appellant did not enter 

Jerry's Big Sky Service, but acted as a lookout during the 

burglary. Charles1 testimony also revealed that he and the 

appellant had escaped from Pine Hills School for Boys. However, 

this testimony was stricken and the jury was directed to disregard 

the reference to the Pine Hills School for Boys. 

Upon completion of the State's case-in-chief the appellant 

moved for a mistrial because of the testimony of Deputy Skillen and 
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Charles Daniels about possible other crimes committed by the 

appellant. ÿ his motion was denied. The court ruled that the theft 

of the truck constituted the same transaction as the burglary and 

that the references to Pine Hills and other burglaries were 

inadvertent on the part of the witnesses. The jury found the 

appellant guilty of the offense charged. He now appeals. 

Issue one, the speedy trial issue, is complicated principally 

because there was a transfer from a juvenile to an adult court. 

The District Court properly applied the law in determining whether 

the appellant was denied a speedy trial, relying on this Court's 

opinion in State v. Palmer (1986), 223 Mont. 25, 27, 723 P.2d 956, 

958. In Palmer we noted: 

Palmer first contends that he was denied his right 

to a speedy trial. Any person accused of a crime is 

guaranteed the right to a speedy trial pursuant to the 

Sixth Amendment to the United States Constitution, which 

is made applicable to the states by the Fourteenth 

Amendment. Klopfer v. North Carolina (1967), 386 U.S. 

213, 87 S.Ct. 988, 18 L.Ed.2d 1. The right to a speedy 

trial is also guaranteed by Article 11, 5 24 of the 1972 

Montana Constitution. The test to be applied to 

determine whether an accused's right to a speedy trial 

has been violated was first set forth in Barker v. Winqo 

(1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. 

This Court applied and stated the Barker test in State 

ex rel. Briceno v. District Court (1977), 173 Mont. 516, 

518, 568 P.2d 162, 163-64 as follows: 

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. 
This Court has stated that the first of the Barker 

factors, the length of delay, is the trigger to a speedy 

trial inquiry. There is no need to examine the latter 

three factors unless some delay deemed presumptively 

prejudicial has occurred. State v. Harvey (1979), 184 

Mont. 423, 603 P.2d 661. 

The United States Supreme Court has determined that the speedy 

trial clock does not start running until the defendant becomes an 

llaccusedn in a criminal proceeding. United States v. Marion 

(1971), 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468, 474. 

The appellant claims that the time used to figure the length 

of the delay begins to run on the date he was initially arrested 

and brought back to Montana from Minnesota, June 19, 1989, or at 

least from the date the original petition for a hearing was filed 

in the Youth Court, June 27, 1989. Relying on Marion, the State 

claims that the appellant only became an llaccused" for purposes of 

the criminal speedy trial computation when the information was 

filed in District Court. 

We note here that while the State alleged that the appellant 

did not become a I1criminal defendant" subject to the jurisdiction 

of the District Court until September 26, 1989, he went through 

the civil Youth Court proceedings for a period of time previous to 

that date. The trial court started the clock when the appellant 

became an "accused" in the civil Youth Court proceeding on June 27, 

1989. The court noted, however, that if the youth resists the 

motion to transfer to the adult court, that resistance ought to be 

considered when determining the reasons for the delay and the 

amount of the delay, if any, which can be charged to him. We agree 

with the District Court. 
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The court determined that the total amount of delay in this 

case was 322 days. That is sufficient to trigger consideration of 

the remaining Barker factors. 

The period from June 27, 1989, to August 7, 1989, is 

attributable to the State as institutional delay. The court found 

that the period from August 7, 1989, to August 30, 1989, was 

attributed to the appellant in that he resisted transfer to the 

District Court but did not file his proposed findings with respect 

to such hearing until August 30, 1989. 

The period from August 30, 1989, to December 13, 1989, was 

charged to the State. There is no indication of intentional delay 

on the State's part. The delay is weighed accordingly. 

The court found that the period from December 13, 1989, to 

January 23, 1990, was chargeable to the appellant in that the 

appellant filed a motion for mental examination on November 2, 

1989, but failed to provide the court with either a brief or a 

proposed order as required by the court until November 30, 1989. 

By that date, it was apparent to the court and to the State that 

no written report of the mental examination could be had prior to 

the December 13, 1989, trial date. The court continued the matter 

to the next available court date, January 23, 1990, on the Staters 

motion. The court stated this motion should have been made by 

defense counsel but the State had acted in the absence of 

affirmative action by defense counsel. The defense did not object 

and acquiesced in the continuance and the 41 days were therefore 

attributed to the appellant. 

On November 17, 1989, the court granted the State's motion to 
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consolidate this case with the charges against appellant's brother 

Charles Daniels. Defense counsel, who also represented the 

brother, did not object to the consolidation or raise the issue of 

a conflict of interest. Thereafter, law enforcement officers 

intercepted a letter from the appellant to his brother Charles 

Daniels, in which appellant indicated his position that Charles had 

committed the burglary while appellant was incapacitated by 

llalcoholic beverages." The letter indicated that the appellant 

knew the police would intercept it. The District Court stated 

that: 

The court can only conclude that either the defendant or 

his brother told defense counsel this story early on, or 

that they hid this fact from him. Defense counsel either 

knew or should have known, that the defendant's defense 

was to include implicating his brother in the companion 

case. This is a clear conflict of interest situation, 

which, when it became known to the court, was promptly 

rectified by appointment of other counsel for the 

defendant's brother. Counsel for the defendant's brother 

promptly moved to sever the trials and, after a hearing, 

the court granted the motion to sever the trials. If the 

defendant's proposition (that he was asleep while his 

brother did the crime) were true, this defendant's 

counsel should have been the one to file the motion to 

sever. Indeed, he should have fought the consolidation 

of the two cases, because the defense counsel was relying 

on the testimony of a co-defendant which would be 

exculpatory to the defendant, but necessarily implicate 

the co-defendant brother in the commission of the 

offense. When the court questioned defense counsel about 

this, defense counsel stated that he expected to request 

the court to grant the co-defendant use immunity in order 

to obtain his testimony at trial. In a consolidated 

trial, however, the court cannot force a co-defendant to 

testify by granting immunity, because the co-defendant 

would be testifying in front of the very jury charged 

with determining his guilt or innocence. Therefore, 

although it was the co-defendant's counsel who brought 

the motion to sever, it was actually this defendant's 

counsel who should have fought against consolidation in 

the first place, or, if he were somehow unaware of the 

conflict at that point, he should have moved to sever and 

for the appointment of other counsel as soon as he became 

aware. Of course, if defendant's proposition that his 
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brother did the crime while he slept is not true, then 

the court would have to conclude that the defendant 

knowingly leaked the information to the police in order 

to create a conflict situation and delay the trial. In 

either event, the State cannot be chargeable for motions 

which would have been unnecessary except for the failure 

of the defendant and his counsel to appropriately 

communicate or appropriately act on those communications. 

Therefore, defendant is chargeable with the delay caused 

by those motions from January 23, 1990 to March 6, 1990, 

another 42 days. 

We conclude that this delay was properly charged to appellant. 

The State moved to continue the March 6, 1990, trial date due 

to unavailability of an out-of-state witness. The period from 

March 6, 1990, to the next scheduled trial date of March 27, 1990, 

is therefore charged to the State. 

The final delay charged to appellant occurred after the 

defense's March 22, 1990, motion to dismiss for failure to 

prosecute. This motion was made two business days prior to the 

scheduled trial date. The court continued the trial date in order 

to allow the county attorney to respond and itself time to decide 

the motion, resulting in a 30-day delay which was attributable to 

the defense. The trial date was then reset to May 15, 1990. 

The net result is that 186 days of the delay in bringing 

appellant to trial were chargeable to the State. Other than the 

21-day delay in March due to unavailability of a witness, the 

reasons for the delay attributable to the State were institutional. 

Although appellant's March 22, 1990, assertion of his right to a 

speedy trial qualifies as one made in a timely manner, we conclude 

that the delay was not prejudicial. At the time of his arrest, 

appellant was already under a commitment to the Pine Hills School 

for Boys. As the ~istrict Court noted, appellant was moved to the 
* 

Rosebud County Jail at the request of the Pine Hills administration, who indicated that appellant had escaped from their 

institution on numerous occasions and that they could no longer 

hold him there. Appellant would have been confined for the entire 

period prior to his trial because of previous unrelated Youth Court 

actions. Further, there is nothing to indicate that the defense 

was in any way impaired by the delay in trying appellant. On 

balancing the factors set forth in Barker, we conclude that the 

District Court was correct in ruling that appellant was not denied 

his right to a speedy trial. 

The second issue on appeal relates to the evidence presented 

at trial of past crimes and past criminal conduct charged in Youth 

Court. These references were made by Detective Skillen and by 

appellant's brother. 

Skillen's reference to Pine Hills came as part of his 

testimony establishing a chain of custody for an exhibit seized in 

Minnesota and given to Pine Hills employees who retrieved appellant 

from that state. Rule 404, M.R.Evid., does not prohibit evidence 

of other crimes unless it is offered to prove the character of a 

person to show that he acted in conformity therewith. 

Additionally, we hold that the passing reference that an employee 

of Pine Hills had brought the exhibit back from Hutchinson, 

Minnesota, did not violate the confidentiality provisions of §§ 41- 

5-601 and -602, MCA. 

Charles Daniels, who had entered into a plea bargain with the 

State, was clearly a difficult witness for the State to control. 

His references to his brother's juvenile record were not solicited 
By the State's questions. Further, the court instructed the jury 

to consider such evidence only to establish proof of motive, 

opportunity, plan, knowledge, identity, or absence of mistake or 

accident. We conclude that under these circumstances the testimony 

of Charles ~aniels is not grounds for reversal of appellant's 

conviction. 

Affirmed. 

We concur: 

, , 

Chief Justice 

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