No. 86-542 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsEMIL TILLY, 

Defendant and Appellant. 

APPEAL FROM: The District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Theodore P. Cowan, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Paulson, Asst. Atty. General, Helena 

Robert Deschamps, 111, County Attorney, Courthouse, 

Missoula; Karen Townsend & Betty Wing, Deputy County 

Attorneys, Missoula, Montana 

Submitted on Briefs: March 12, 1987 

Decided: MaY 26, 1987 

Filed: MAY 2 6 1987 

W*#44 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Emil Tilly appeals his conviction for sexual intercourse without consent from the Fourth Judicial District, 

Missoula County. 

We affirm. 

Two issues are presented for our review: 

1. Did the District Court err when it denied defendant 

Tilly's motion to dismiss for lack of speedy trial? 

2. Did the District Court abuse its discretion when it 

denied defendant Tilly ' s motion to depose the prosecution' s 

main witness? 

Defendant and appellant Tilly was charged by information on November 23, 1985, with sexual intercourse without 

consent in violation of S 45-5-503 (3) (a), MCA. The information and supporting affidavit accused defendant of engaging 

in sexual relations with his daughter, C. T., a minor. 

Following a week-long jury trial in September 1986, 

Tilly was found guilty of sexual intercourse without consent. 

Tilly was sentenced to thirty years in the Montana State 

Prison with ten years suspended. 

At trial the defendant's children, Charles, C. T., and 

P. T. testified that defendant had intermittently engaged in 

sexual relations with C. T. for approximately eight years. 

C. T. testified that defendant's sexual advances continued 

until C. T. was removed from defendant's custody on February 

22, 1985. The victim's brothers, P. T. and Charles Tilly, 

testified that on a number of occasions, they witnessed the 

defendant and C. T. engaged in sexual acts. P. T. and 

Charles also testified that defendant and C. T. regularly 

slept together from February 1980 to February 22, 1985. 

While awaiting trial, defendant was incarcerated with 

bond set at $10,000. During his pretrial incarceration, 
defendant wrote twelve "love letters1' to his daughter. In 

defendant's love letters, defendant requested C. T. to marry 

him and not to "hurt him" with testimony. 

Defendant's love letters were in violation of court 

orders dated December 12, 1985, and February 28, 1986, ordering defendant to cease all contact with his daughter. After 

repeatedly violating these orders, defendant was charged with 

tampering with a witness, in violation of $ 45-7-206 (1) (a) , 

MCA. This charge was eventually dismissed by motion of the 

State following defendant's sexual intercourse without consent conviction. 

Issue 1 

Did the District Court abuse its discretion when it 

denied defendant's motion to dismiss for lack of a speedy 

trial? 

The right to a speedy trial is guaranteed by both the 

United States Constitution and the Montana Constitution. 

U.S. Const., Amend. VI; 1972 Mont. Const., Art. 11, Sec. 24. 

In Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 

L.Ed.2d 101, the United States Supreme Court adopted a 

four-factor balancing test in which conduct of both the 

prosecution and the defendant are weighed in order to determine whether there has been a denial of defendant's right to 

speedy trial. The four factors to be considered are: 

(1) length of the delay; (2) reason for the delay; 

(3) defendant's assertion of the right; and (4) prejudice to 

the defendant. Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 

L.Ed.2d at 117. See, State v. Palmer (Mont. 1986), 723 P.2d 

956, 958, 43 St.Rep. 1503, 1505, citing State ex rel. Briceno 

v. District Court (1977), 173 Mont. 516, 518, 568 P.2d 162, 

163-164. 
In the case at hand, 312 days elapsed between 

defendant's arrest on October 28, 1985, and the commencement 

of defendant's trial on September 5, 1986. A 312-day delay 

triggers a speedy trial inquiry. State v. Palmer, 723 P. 2d 

at 958, 43 St.Rep. at 1505; State v. Chavez (Mont. 1984), 691 

P.2d 1365, 1370, 41 St.Rep. 2219, 2222. The delay gives rise 

to a presumption that defendant has been deprived of his 

right to speedy trial. Palmer, 723 P.2d at 958, 43 St.Rep. 

at 1505. Further, the delay shifts the burden to the State: 

(1) to give a reasonable excuse for the delay, or (2) to show 

that defendant was not prejudiced by the delay. State v. 

Ackley (1982), 201 Mont. 252, 256, 653 P.2d 851, 853. If 

both excuse and prejudice exist, these factors must be balanced. Ackley, 201 Mont. at 256, 653 P.2d at 853. 

In the case at bar, C. T., a material witness, was 

temporarily unavailable to testify due to emotional instability. During defendant's pretrial incarceration, C. T. was 

undergoing psychiatric therapy at the Montana Youth Treatment 

Center in Billings. Her illness was due in large part to 

defendant's unlawful acts. We hold the State produced a 

reasonable excuse for delay due to the absence of a material 

witness. Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 

L.Ed.2d at 117. 

The second Barker factor is reason for delay. " . . . [Ilt must be determined what percentage of the delay is 

chargeable to the defendant and this much time must accordingly be deducted from the total delay." State v. Freeman 

(1979), 183 Mont. 334, 339, 599 P.2d 368, 371. Defendant 

Tilly is responsible for much of the delay. Prior to arraignment, defendant requested a substitution of judge. 

Defendant has this right of substitution. In the balancing 

test, the exercise of this right will not necessarily be 

heavily weighed against the defendant. Defendant's 
arraignment was then moved from November 18, 1985, to December 12, 1985 (24-day delay). On December 13, 1985, defendant 

waived his right to speedy trial and requested a continuance 

over the current jury term. The defendant was informed the 

next available jury term was April 1, 1986 (108-day delay). 

On February 19, 1986, defendant requested that a public 

defender be appointed. On March 3, 1986, defendant's 

newly-appointed counsel requested a psychiatric evaluation to 

determine whether defendant was suffering from mental disease 

or defect. On that date, defendant again waived his right to 

speedy trial. On March 13, 1986, defendant requested and was 

granted an extension of thirty days to file motions and 

memoranda in preparation for the March 1986 omnibus hearing 

(12-day delay). 

On March 20, 1986, the State moved for a continuance 

beyond the April jury term due to the mental and physical 

illness of C. T., a material witness. C. T. 's guardian ad 

litem concurred with the State's motion for continuance. 

Also, on March 20, 1986, defendant moved to dismiss this 

action for denial of right to speedy trial. The District 

Court denied defendant's motion to dismiss. The court ruled 

that defendant's trial date would be set when C. T., the 

victim and material witness, was able to testify. 

On May 21, 1986, defendant filed with this Court a 

petition for writ of habeas corpus and supervisory control. 

This Court denied defendant's petition on July 9, 1986 

(48-day delay). 

The State filed an amended information on August 8, 

1986, charging defendant with tampering with a witness in 

violation of $ 45-7-206, MCA. The District Court severed 

this charge (Count 11) from the sexual intercourse without 

consent change (Count I), on August 28, 1986. 
Trial on Count I commenced on September 5, 1986, and 

concluded on September 10, 1986. The jury returned a verdict 

of guilty to the charge of sexual intercourse without 

consent. 

A thorough review of the record reveals that defendant 

was not denied his right to a speedy trial. Defendant's 

numerous delays overlap one another, making an accurate 

accounting difficult. However, it is clear that defendant 

caused the following delays: 

(1) substitution of judge, arraignment postponed until 12/18/85 24 days 

(2) waiver of speedy trial until 

April jury calendar 108 days 

(3) 30-day extension to file brief 12 days 

(4) petition for supervisory control and habeas corpus (petition 

denied) 48 days 

TOTAL -- 192-day delay 

The State is not charged with speedy trial delay when a 

material witness with "valid reason" is not available. 

Barker v. Wingo, 407 U. S. at 531, 92 S.Ct. at 2192, 33 

L.Ed.2d at 117. We hold a valid reason exists when a material witness is unavailable due to defendant's unlawful acts. 

C. T. was unavailable in excess of thirty days. However, 

only thirty days may be may be deducted from the State's 

delay in order to prevent a "time overlap." Accordingly, 222 

days are deducted from the 312 days defendant spent while 

awaiting trial. State v. Freeman (1979), 183 Mont. 334, 599 

P.2d 368, 371. 

The next application of Barker is defendant's assertion 

of the right. Defendant waived his right to speedy trial on 

December 12, 1985, and March 6, 1986. Defendant's waiver 
served to extinguish his right to trial until the next 

(April) jury term. However, defendant made a timely assertion of his right to a speedy trial by raising the issue on 

April 6, 1986. State v. Harvey (Mont. 1986), 713 ~.2d 517, 

43 St.Rep. 46, 50; State v. Stewart (1975), 168 Mont. 385, 

543 P.2d 178. 

The final Barker factor is "prejudice to the defendant." Barker identified three interests of a defendant 

which may be prejudiced by a delay in coming to trial. The 

interests are: (1 to prevent oppressive pretrial incarceration; (2) to minimize anxiety of the accused; and (3) to 

limit the possibility the defense will be impaired. Barker, 

407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. 

Applying these interests to the facts of the instant 

case, we hold defendant Tilly was not prejudiced by the 

State's delay in bringing his cause to trial. First, defendant repeatedly violated the December 12, 1985, and February 

28, 1986, orders of the trial court not to contact the victim. Defendant, in essence, showed the court he could not be 

entrusted to leave the emotionally disturbed sixteen-year-old 

alone. Therefore, defendant's pretrial incarceration was an 

appropriate alternative. Secondly, nothing in the record 

indicates that defendant was unduly "anxious and concerned." 

One may expect a certain amount of anxiety and concern when 

accused of a crime. State v. Chavez (Mont. 1984), 691 P.2d 

1365, 41 St.Rep. 2219, 2224. Finally, we find no prejudice in 

defendant's presentation of his defense. 

Accordingly, we hold defendant was not denied his right 

to speedy trial. 

-- Issue 2 
Did the District Court abuse its discretion when it 

denied defendant Tilly's motion to depose the prosecution's 

main witness? 

Defendant contends §S 45-15-201 and 45-15-204(1) (c), 

MCA, stand for the proposition that a deposition of an indisposed material witness is mandatory in order to prevent 

violation of defendant's right to a speedy trial. 

Section 45-15-201 (I), MCA, provides in pertinent part: 

When depositions taken. (1) If it 

appears that a prospective witness may 

be unable to attend or prevented from 

attending a trial . . . and that his 

testimony is material and that it is 

necessary to take his deposition in 

order to prevent a failure of justice, 

the court . . . may upon motion and 

notice to the parties order that his 

testimony be taken by deposition . . . 

Section 45-15-201, MCA, is obviously a discretionary 

statute. State v. Austad (1982), 197 Mont. 70, 641 P.2d 

1373, 1386. The trial court found, following the March 20, 

1986, hearing, that a material witness, C. T., was not immediately available for deposition or trial. The court granted 

the State's motion to continue the trial into the July trial 

calendar. Defendant, on July 24, 1986, was granted an interview with the victim. Further, defendant at all times, was 

given complete access to the State's files. During trial, 

C. T. was subject to defendant's cross-examination. Defendant was given every opportunity to prepare an adequate 

defense. State v. Austad, 197 Mont. at 94, 641 P.2d at 1386. 

We hold the trial court did not abuse its discretion 

when it denied defendant's motion to depose a material 

witness. 

Affirmed. 
We concur 

Justices I