### No. 85-224 

### IN THE SUPREMECOURT OF THE STATEOF MONTANA 1986



### STATE OF MONTANA, Plaintiff and Respondent,

-VS

### R. RAY 

### HASKINS, Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County ofMineral, The Honorable DouglasHarkin,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: StewartA. Pearce, 11,Missoula,Montana

For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana John Paulson,Asst. Atty. General, Helena,Montana M. ShaunDonovan,CountyAttorney, Superior,Manta-na



### Submitted on Briefs: Dec. 30, 1985 

### Decided: February 13, 1985



### Filed: 

# FEB13

# I986Mr. Justice Frank E. Morrison, 

### Jr., delivered the Opinion of theCourt. This 

### is an appeal from a conviction of felony theft in the District Court of the Fourth Judicial District, Mineral County. Because defendant was denied his constitutional right to a speedy trial, 

### we reverse and remand with instructions todismiss thecharge. Defendant, R. Ray Haskins, was arrested on October 19, 1982, and held in the Mineral County Jail until October 22, 1982, when he was released on bond. The State filed an information November 16, 1982, charging defendant with the burglary of the L.D. Polich residence near Tarkio, Monta.na, and with the theft of various household 

### items belonging to the Polichs. Defendant filed motions December 21, 1982, seeking to quash his arrest as being illegal and to suppress evidence. A hearing was held on the motions January 18, 1983. The motion to suppress evidence was granted, while themotion to quash the arrestwas denied on February 24, 1983. Then, on April 1, 1983, pursuant to a motion to amend, the District Court granted themotion toquash the arrest. Defendant next filed a motion on April 20, 1983, to dismiss the information for lack of probable cause. The motion was denied May 13, 1983, and on May 17, 1983, the trial judge 

### set defendant's arraignment for May 31, 1983. At the arraignment, defendant entered pleas of not guilty to both charges and submitted numerous motions, including a motio~? to dismiss for lack of speedy trial. The trial jud.ge ordered briefing on the speedy trial issue and set trial for July 25, 1983. The speedy trial motion was denied July 1, 1983, 

### as most of thedelay

### was found attributable todefendant.On the morning of trial, the County Attorney moved to amend the already amended information to allege a different offense date. Defendant had 

### earlier given notice of an alibi defense totheburglary charge. Therefore, defendant objected to the amendment as being substantive in nature. The trialjudge gra.nted the amendment, but alsogranted defendant



### a continuance. On July 28, 1983, a new judge accepted jurisdiction and 

### set trial forAugust 29, 1983. Despite motions by defendant to compel production of certain evidence, to continue the trial date and to sever the two counts, trial

### was had August 29, 1983. The jury found defendantnot guiltyof burglary on August 31, 1983, hut failed toreach a verdict on the theft charge. The Mineral County Attorney filed

### a motion September 7, 1983, requestingthata new 

### trialon the theftchargebe 

### set. Trial 

### was 

### set on September 9, 1983, for October 24, 1983. Thereafter, on September 14, 1983, defendant filed a motion requesting substitutionof a new judge. Judge Harkin accepted jurisdiction of the case September 20, 1983, and on September 27, 1983, 

### reset trialforNovember 14, 1983. Because defense counsel already ha.d a trial scheduled forthatdate, he requested the trialdatebe continued until the week of December 12, 1983. The 

### trial judge granted defendant's motion on the condition that defendant waive his righttoa speedy trial for the

### timeperiod commencing November 14, 1983, until the court could schedule a new trial date. Defendant waived hisright toa speedy trialon November 10, 1983, stating: IN

### MOVING forcontinuance of hisre-trial tothe spring, 1984, Jury

### term, Defendant 

## -- waives hisright tospeedy 

### trial fromthe period 14-November-83 to early 1984, while reserving all objections for the

### period 19-October-82 to 14-November-83. (emphasis supplied) On January 16, 1984,defendant's trial was set to begin September 4, 1984. Practically the only activity between January 1984and the trial was a motion filed by defendant on May 16, 1984, requesting any evidence obtained hy the prosecution since the last trial. No response was made to the motion. Finally, on August 31, 1.984,defendant filed numerous pre-trial motions, including a motion alleging the denial of defendant's right to a speedy trial. Trial commenced as scheduled, with the trial judge reserving his ruling on the speedy trial motion until after trial-. Defendant was convicted of theft on September 10, 1984. On November 20, 1984, after denying d.efendantlsspeedy trial motion from the bench, the trial judge gave defendant a three-year deferred sentence, predicated on defendant serving six months in the Mineral County Jail, paying restitution to the Polichs and obeying a.11conditions imposed by the Department of Institutions' Division ofAdult Probation and Parole. Defendant appeals, raising numerous issues. However,we find the issue of whether defendant was denied his constitutional right to a speedy trial tobe dispositive. The right to a speedy trial is guaranteed to all crimi

### nal defendants by the Sixth Amendment to the United States Constitution and article 11, 

### 5 

### 24 of the Montana Constitution

(1972)

# . The factors to be used in determining whether this right has been abridged were originally set forth by the United States Supreme Court in Barker v. Wingo (1972), 407 U.S. 

### 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. They are: 1) 

### length of the delay; 2) the 

### reason for the delay; 3) 

### the defendant's timely assertion 

### of his right; and 4) theprejudice suffered by defendant. We have repeatedly used these same factors for determining whether P40ntana1 

### s constitutional right to a speedy trial has been denied. However,

no individual factor 

### is dispositive. See State v. Britton (Mont. 1984), 689 P.2d 1256, 1258, 41 St.Rep. 2018, 2019. The length of the delay j.s the 

### test 

### by which a speedy trial inquiry 

### is triggered. The del-aymust be or' a sufficient length to be deemed "presumptively prejudicial," else there 

### is no need to inquire into the remaining factors. Statev. Chavez (Mont. 1984), 691 P.2d 1365, 1369, 41St.Rep. 2219, 2222. The length of 

### timebetween defendant's arreston October 19, 3982, and the start of defendant1 s second trial

on September 4, 1984 (686 days), clearly constitutes "presumptive prejudice." So does the length of 

### timebetween the first trial, which ended August 31, 1983, in

### a hung jury on the theft charge, and September 4, 1984, th.e startof defendant's second trial (370 days). See Statev. Ackley (1982)

## , 201Mont. 252, 653 P.2d 851. Wetherefore confine our analy

### sis tothe second 

### timeframe. Though defendant waited until August 31, 1984, toraise the speedy trialissue, the assertion of hisrightwas timely because 

### it was made prior tothe startof trial. However, delay of assertion of the right tospeedy trial

### isnot measured simplyby measuring the lapse of 

### timefrom the

### time of the charge until the 

### time the motion i.s made. Rather, the sole inquiry 

### is whether defendant has moved before trial todismiss on theground thathe hasbeen denied a speedy trial. The United States Supreme Court stated inBarker 

## 5Wingo, supra, that "[t] here 

### isno fixedpoint in the criminal process when the State can put the defenda.nt tothe choice of either exercising or waiving the right to a speedy trial." 407 U.S. at521, 92 S.Ct. at 2187. FJe adopt this same position when interpreting our own Constitutio~.Statev. Britton, 689 P.2d at 1260, 41 St.Rep. at2022. Since defendant was presumptively prejud-iced by the delay in his trial, the State has the burden of rebutting this prejudice by proving that defendant was not prejudiced 

### by the delay and/or by providing a reason forthe delaywhich outweighs the prejudice to the defendant. State v. Chavez, 691P.2d at 1370, 41St.l?ep. at2223. In 

### its brief, the State contends defendant made only vague allegations 

### of prejudice and that pursuant to Statev. Chavez, supra, defendant "may not 

### rest merely on the presumption of prejudice under such circumstances.

## " Prejudice can be shown in many ways, primarily: 1)oppressive pre-trial incarceration; 2) anxiety and concern of the accused while a.waiting trial; and 3) impairment of the defense. Barker, 407 U.S. at532, 92 S.Ct. at2193, 33 L.Ed.2d at 118. Defendant obviously did not suffer oppressive pre-trial incarceration. He was in the Mineral County Jail for only three days. However, defendant alleges that he suffered severe anxiety while awaiting final disposition of the charges againsthim. He experienced both personal bankruptcy and the bankruptcy of his logging business. Testimony by several characterwitnesses atthe trial supports defendant's allegation that his reputation in the community was ruined. These

are allreasons for great anxiety and sufficient allegations to place the burden of proving no resultant prejudice 

### on the State. See State v. Britton, supra. The State has not 

### met itsburden. Finally, and most importantly, 

### we note the lack of

reasons offered by the State for the delay between November 14, 1983, and September 

### 4, 1984. The only reason offered by the State was that no trials were held in Mineral County during the 1984 spring calendar. This reason 

### is inadequate

### in light of the waiver signed by defendant and quoted above, specifically waiving his right to a speedy trial until early 1984. Given thepresumption against waivers of constitutional rights, State v. Ackley, 201 Mont. at 257, 653 P.2d at 854,we refuse to extend defendant's waiver past the Spring

There is no indication the State attempted to reschedule the trial for an earlier time or to ascertainwhy an earlier datewould not be possible. Granted, the delay is an "institutional delay" and therefore should not be weighed against the State asheavily as an intentional "draggingof the feet1' by the State. However, it is the responsibility of the State tobring defendant to trial. It isnot the responsibilityof the defendant to ensure that he is prosecuted. State v. Britton, 689 P.2d at 1261, 41 St.Rep. at 2023. Reversed. w