No. 84-268 

IN THE SUPREME COURT OF THC STATE OF MONTANA 

1984 

STATE OF MOP?TAI\TA, 

Plaintiff and Respondent, 

-VSALAN CRAIG CUTNER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial aistrict, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jeffrey T. McAllister, Great Falls, Montana 

For Respondent : 

Hon. Milce Greely, Attorney General, Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, 

Montana 

Submitted on Briefs: Oct. 25, 1984 

Decided: December 20, 1984 

Filed: IIEC 2 0 1984 

-- Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Alan Cutner appeals a iudgment of the Cascade County 

District Court finding him guilty of sexual assault and 

burglary. The defendant contends that the trial court. 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 in his Black Eagle home on April 

t q 2-23 

21, 4AW4. Arraignment was set for May Il. At the request of 

his counsel the arraignment was continued until May 17, 1983, 

so that the court could formally appoint the counsel to 

represent the defendant. 

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 trial date was reset for 

August 29, 1983. 

Cutner filed a notice of intent to raise the defense of 

a.libi on June 17, 1983. On July 28, 1983, the defendant 

filed a notice of intent to rely on mental disease or defect 

to prove that he did not have a particular state of mind 

which is an essential element of the offense charged. Cutner 

requested a. tra.nsfer to the Montana Sta.te Hospital for a 

psychiatric examination and. that the trial date of August 29, 

1983, be vacated. The District Court granted the motion, and 

the defendant was examined at the State Hospital. 

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 after Judge Coder's resignation, set December 5, 1983, as the trial date. On November 
23 Cutner again moved for substitution of iudge. Judge 

McCarvel assumed jurisdiction from Judge Bradford and on 

November 28 reset trial for December 6. 

On December 2, 1983, the defendant filed a motion 

requesting that hair samples be 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 the victim. The defendant 

further requested 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 signed waiver 

of speedy trial rights that was limited to the time required 

For the analysis. The motion was granted, but Judge McCarvel 

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 setting was later changed due to a docket 

conflict to February 14, 1984. The trial wzs held in fact on 

February 14 and 15, 286 days after the defendant was arrested 

and charged. 

On the morning of the trial, defendant filed his motion 

to dismiss for want of a speedy trial. Following jury voir 

dire, the motion was argued by counsel in chambers. The 

District Court denied Cutner's motion, and the trial proceeded. The defendant was found guilty of both charges and 

appeals the denial of his speedy trial motion. 
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 right by t.he defendant; and 

(4) prejudice to the defend-ant. 

Without examining in detail the various 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 there was 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 defendant was responsible for much 

of his delay in being brought to trial. Twice Cutner moved 

for substitutj-on of judge. The lower court took notice of 

the fact that Cutner did not raise mental disease or defect 

until two months after arraignment. Other delays were 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-l to 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 evidence presented 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 for purposes 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 hj s alibi witnesses' memories showed no diminution 

of detail with the passage of time. The defendant's alibi 

defense was adequately" a1 though 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 not want to go to trial before February 1984. In 

the nine months that preceded his trial-, his attorney 
repeatedly 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 the District Court is affirmed. 

-- Chief Justice 

We concur: