No. 84-268 INTHE SUPREME COURT OF THC STATE OF MONTANA 1984

STATE OF MOP?TAI\TA, Plaintiff and Respondent,

-VSALAN CRAIG CUTNER, Defendantand Appellant.

APPEAL FROM: DistrictCourtof the EighthJudicial 

### aistrict, Inand for the Countyof Cascade, The HonorableJohn M. McCarvel, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Jeffrey T. McAllister, GreatFalls, Montana

For Respondent: Hon. Milce Greely, AttorneyGeneral, Helena, Montana J. FredBourdeau, CountyAttorney, GreatFalls, Montana

Submittedon Briefs: Oct. 25, 1984 Decided: December 20, 1984

Filed: 

## IIEC20

## 1984

-- ClerkMr. Chief Justice Frank I. Haswell delivered the Opinion of theCourt. Alan Cutner appeals a iudgment of the Cascade County District Court finding him guilty of sexual assault and burglary. The defendant contends that the trialcourt.erred by denying his motion to dismiss for lack of speedy trial. Cutner was charged May 4, 1983, with sexually assaulting a seventy-year-old man inhis Black Eagle home on April 

### t

## q2-23 21, 4AW4. Arraignment was setforMay Il. Atthe request of hiscounsel the arraignment was continued untilMay 17, 1983,

so that the court could formally appoint the counsel to represent thedefendant. The first of the seven trial dates which were set in this case was July 6, 1983. On May 18, Cutner moved for substitution of Judge R.oth. The motion was granted, Judge Coder accepted jurisdiction and the trialdatewas reset for August 29, 1983. Cutner fileda notice of intenttoraisethe defense of a.libi on June 17, 1983. On July 28, 1983, the defendant filed a notice of intent torely on mental disease or defect to prove that he did not have a particular state of mind which is an essentialelement of theoffense charged. Cutner requested a. tra.nsfer to the Montana Sta.te Hospital for a psychiatric examination and.thatthe trial dateof August 29, 1983, be vacated. The DistrictCourt granted themotion, and the defendantwas examined atthe StateHospital. On August 25, 1983, the court received the report of the psychiatric examination and Cutner was returned to the Cascade County jail. On November 22 Judge Bradford, who had assumed jurisdiction over the case afterJudge Coder's resignation, setDecember 5, 1983, asthe trialdate. On November

### 23 Cutner again moved for substitution of iudge. Judge McCarvel assumed jurisdiction from Judge Bradford and on November 28 reset trial forDecember 6. On December 2, 1983, the defendant filed a motion requesting that hair samplesbe taken from the defendant and other individua1.s who resided at his home, and these be analyzed by the State's Forensic Sciences Division for comparison with samples taken from a pair of thermal underwear the defendant allegedly stole from thevictim. The defendant furtherrequested that the December 6 trial date be rescheduled after December 26 to allow time for completion of the hair analysis. Cutner filed with this motion a signedwaiver of speedy trial rights thatwas limited to the time required For the analysis. Themotion was granted, but JudgeMcCarvel set trial for December 19, 

### 1983. This trial was vacated on December 15, 1983,pursuant to a motion filed on 

### a stipulation of the parties. The parties stipulated that additional time be allocated for a

semen analysis, incorporated the prior waiver of defendant's speedy trial rights, and requested 

### a January 1984 trial setting. The District Court rescheduled the trial for February 21, 

### 1984. The settingwas later changed due to a docket conflict to February 14, 1984. The trialwzs held in facton February 14and 15, 

### 286 days after the defendantwas arrested and charged. On the

### morning of the trial,defendant filedhismotion to dismiss for want of a speedy trial. Following jury voir dire, the motion was argued by counsel in chambers. The District Courtdenied Cutner's motion,and the trial proceeded. The defendant was found guilty of both charges and appeals the denial of his speedy trialmotion.The analysis that this Court employs in reviewing a speedy t.rial denial is well established. We have recently issued an opinion that summarizes this analysis. See State


### v. Chavez (Mont. 1984), P.2d a 

## , 41 St.Rep. 2219. In prior decisions this Court has adopted the test described by the United States Supreme Court in Barker 

### v. Wingo !1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. Basica-lly,four factors are considered under this test: (1) length of delay; (2) reason for delay; (3) assertion of the rightby t.hedefendant; and

(4) prejudice to the defend-ant. Without examining in detail thevarious reasons for the delay at issue, we note that the claimed 286-day delay is long enough to trigger the speedy trial inquiry. The State 

### has the burden of showing that therewas a reasonable excuse for this delay and that the defendant was not prejudiced. State v. Ackley (Mont. 1982), 653 P.2d 851, 39 St.Rep. 2091. During the in-chambers hearing on February 14, 1984, the State argued that the defendantwas responsible for much of his delay in being brought to trial. Twice Cutner moved for substitutj-onof judge. The lower court took notice 

### of the fact that Cutner did not raise mental disease or defect until two months after arraignment. Other delayswere occasioned by the defendant's request for laboratory analysis in December and institutional delay associated with Judge Coder's resignation from the bench. Reviewing the record and the arguments presented, we find there was a. reasonable excuse for the delay in Cutner's trial. Furthermore,we find that the State has overcome the

### rebuttable presumption that the delay was prejudicia-lto the defendant. Cutner has alleged as prejudice that he was the victim of oppressive pretrial incarceration, suffered anxiety and concern, and his defense was impaired by the delay. Cutner argued that due to the passage of time, his memory and that of one of his key witnesses had become confused about the facts. We have found that the State's proof exceeds in weight the evidencepresented by the defendant. During the time the defendant sat in the Cascade County jail,his counsel actively 

### pursued his defense. The numerous defense motions that

were filed support this observation. The continued incarceration is attributable to actions by defendant's counsel in preparing a defense; we do not find such incarceration oppressive forpurposes of the speedy trial right. The statements made by defendant's counsel in the February 14 

### hearing concerning Cutner's anxiety and lapse of memory were conclusory. At trial the defendant's recollection and hjs 

### alibi witnesses' memories showed no diminution of 

### detail with the passage of time. The defendant's alibi defense was adequately"a1though unsuccessfully, presented to the jury. Finally,we note that the defendant did not assert his speedy trial riqht until the actual commencement of trial. While we do not rest our decision on this factor,Cutner did not timely assert his right. See State v. Ackley, 653 

### P.2d at 854. It 

### is obvious from the procedural record that Alan Cutner did notwant to go to trial before February 1984. 

### In the nine months that preceded his trial-, his attorneyrepeatedly sought different judues and pursued alternative defense theories. The resulting delay allowed the defendant to explore all avenues of defense. Such delay will not serve a dual role as qrounds for denial of the right to a speedy trial. The judgment of theDistrict Court is affirmed.

-- Chief Justice

We concur: