NO. 93-188

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

STATE OF MONTANA,

Plaintiff and Respondent,

v.

ROBERT JOHN EKLUND,

Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead,

The Honorable Ted 0. Lympus, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Patrick D. Sherlock, Sherlock & Nardi,

Kalispell, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

George Schunk, Assistant Attorney General,

Helena, Montana

Thomas J. Esch, Flathead County Attorney,

Ed Corrigan, Deputy Flathead County

Attorney, Kalispell, Montana

Filed:

Submitted on Briefs: February 3, 1994

Decided: April 5, 1994
Justice William E. Hunt, Sr., delivered the opinion of the Court.

Defendant Robert John Eklund was found guilty of sexual

intercourse without consent following a jury trial in the District

Court for the Eleventh Judicial District, Flathead County. Eklund

moved to dismiss the charge due to lack of a speedy trial, and

moved for a mistrial contending that the court allowed the State to

introduce inadmissible character evidence at trial. The District

Court denied both motions. Eklund appeals.

We affirm in part, reverse in part, and remand for retrial.

The issues are:

1 . Was Eklund denied a speedy trial since 197 days elapsed

between his arrest and his trial?

2. Did the District Court err in allowing character evidence

to be introduced during cross-examination of Eklund's character

witness?

In June 1992, a neighbor of Eklund's estranged wife reported

to the Department of Family Services that Eklund's 13-year-old

stepdaughter, J.L., had told her that Eklund had molested her.

J.L. stated that the alleged offenses occurred in early April 1992,

when she and Eklund's natural children, six-year-old B.E. and

five-year-old A-E., stayed two weekends at Eklund's house. She and

Eklund had slept on separate couches in the living room where the

television was, while the other two children slept in another room.

She alleged that before he sexually molested her he ordered her to

take her clothes off, and that she complied because she was afraid

he would hit her. Eklund denied that the acts took place or that

2
J.L. slept in the living room with him during the visits. He

stated that his house guest and renter, who were staying with him

during the time of the alleged occurrences, would confirm his

version.

On June 24, :L992, prior to his arrest for the present charges,

Eklund was arrested and incarcerated on contempt charges for

failing meet a release condition resulting from a conviction for

driving under the influence. Therefore, on July 7, 1992, when

Eklund was arrested for charges of sexual intercourse without

consent, he was already incarcerated. On September 2, 1992, Eklund

was arraigned and pled not guilty to the charge.

On October 29, 1992, the court denied Eklund's motion to

dismiss for delay of his arraignment until September 2, 1992.

Also, on January 13, 1993, the court denied his motion to dismiss

for lack of speedy trial after finding that he was not prejudiced

by the delay. A jury trial was held on January 19 and 20, 1993.

During trial, Eklund called Dave Svinth as a character witness.

Svinth testified about Eklund's good relationship with his children

and his nonviolent behavior toward them. In rebuttal to Svinth's

testimony, during cross-examination the State questioned him

concerning Eklund's numerous driving under the influence offenses,

prior incarceration, alcohol abuse, and murder charges in 1974.

The court denied Eklund's objections to the evidence as

inadmissible character evidence. On January 20, 1993, Eklund moved

for a mistrial, which the court also denied.

3
The jury found Eklund guilty of sexual intercourse without

consent. The court classified Eklund as a dangerous offender and

sentenced him to 40 years at the Montana State Prison. Eklund

appeals.

ISSUE 1

Was Eklund denied a speedy trial since 197 days elapsed

between his arrest and his trial?

Eklund was arrested on July 7, 1992, and was incarcerated at

all times prior to his trial beginning on January 19, 1993,

resulting in a delay of 197 days. Eklund argues that the delay

violates his right to a speedy trial under the Sixth Amendment to

the United States Constitution, and Article II, Section 24, of the

Montana Constitution. We disagree.

Whether a defendant's constitutional right to a speedy trial

has been violated is determined by a four-part test set out in

Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33

L. Ed. 2d 101, 117. The four-part test was adopted by this Court

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

518, 568 P.2d 162, 163-64. A sensitive balancing of the following

four factors determines whether a defendant was denied a speedy

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

(3) the assertion of the right by the defendant; and (4) prejudice

to the defendant. State v. Thompson (Mont. 1993), 865 P.2d 1125,

1135. All four factors are weighed by considering the facts and

circumstances of each case. Thomoson, 865 P.2d at 1135.

4
The first factor of the Barker test, length of delay, triggers

further inquiry into the other three factors; it is not necessary

to consider the other factors unless the length of the delay is

presumptively prejudicial. ThomDson, 865 P.2d at 1134. When

considering the length of delay, no regard is given to which party

caused the delay. ThomDson, 865 P.2d at 1135. A delay of over 200

days will usually trigger further analysis. Thompson, 865 P.2d at

1135. In State v. Bartnes (1988), 234 Mont. 522, 764 P.2d 1271,

this Court completed a full analysis where there was a delay of 175

days. Here, 197 days is presumptively prejudicial to Eklund, given

the close proximity to the 200-day trigger. The State has the

burden to provide reasonable explanation for the delay and to show

that Eklund was not prejudiced by the delay. State v. Curtis

(1990), 241 Mont. 288, 299, 787 P.2d 306, 314. In analyzing the

three remaining factors, no particular factor is determinative.

ThomDson, 865 P.2d at 1135.

The second factor of the Barker test, reason for the delay, is

analyzed by first allocating delay to the responsible party.

ThomDson, 865 P.2d at 1135. Here, the State and Eklund agree that

the reason for the delay was institutional due to the clogged court

system. The delay is chargeable to the State, however,

institutional delay "weighs less heavily against the State than

does purposeful delay." ThomDson, 865 P.2d at 1135.

Both parties agree that the third factor of the Barker test,

the defendant's assertion of the right to a speedy trial, has been

met.

5
The fourth factor of the Barker test, prejudice to the

defendant, is analyzed by considering its three parts: (1) pretrial

incarceration: (:2) anxiety and concern; and (3) impairment of

defense, the most critical factor. ThomDson, 865 P.2d at 1135.

After applying these three parts of the fourth factor to this case

we conclude that Eklund was not prejudiced by the delay.

Eklund argues that he has met the requirement of pretrial

incarceration because he was incarcerated at all times prior to his

trial. The State argues that he would have been incarcerated

regardless of the pending charge and trial due to his incarceration

for an unrelated offense. Eklund replies that the State's argument

is weak because Eklund's memorandum for motion to dismiss for lack

of speedy trial stated that the Justice Court would release him

from the sentence for his driving under the influence offense if

released from the present charges. Our review of the record fails

to show sufficient evidence to resolve this argument. However,

based on the further discussion in this opinion we need not decide

this point.

Eklund argues that he has met the next part, anxiety and

concern, because anxiety and concern are inherent in the experience

of being incarcerated for 197 days. He also argues that due to

incarceration he was unable to locate his witnesses, and being

separated from his friends caused him anxiety.

The presence of anxiety and concern is difficult for a

defendant to prove, and the State is presented with the "near

impossible burden of proving that it does not exist." Curtis, 707

6
P.2d at 316. However, the State's burden to show lack of anxiety

lessens considerably when marginal evidence of anxiety is

presented. Curtis, 787 P.2d at 316. Here, Eklund's argument that

he was unable to contact his witnesses and he missed his friends

appears to us as marginal evidence.

Eklund argues that he has met impairment of defense, because

he was unable to locate his house guest and renter as defense

witnesses, and all his witnesses experienced memory loss due to the

delay. However, he provides no evidence that his defense was

impaired by the delay, and the record reveals that he did not

attempt to locate witnesses until they were unavailable.

On January 13, 1993, at the hearing for motion to dismiss for

lack of speedy trial, Eklund testified that he knew the location of

potential witnesses in July 1992, but waited until October 1992 to

locate them for his defense as alibi witnesses. He also testified

that he lacked evidence to prove that the witnesses' memories were

dimmed because neither he nor his attorney had contacted them.

Eklund next argues that B.E. and A.E., his children who were

present in his home during the alleged offenses, had experienced

memory loss due to the delay. In State v. Scott (1993), 257 Mont.

454, 459-60, 850 P.2d 286, 289, the defendant argued that due to

the delay of his trial, his child witnesses were unable to remember

important details concerning whether the defendant sexually

assaulted another child, thus impairing his defense. However, this

Court stated that the defendant had failed to show how he was

prejudiced by providing details of the children's memory loss;

7
rather the children's memory loss was beneficial to the defendant

because they could not remember the circumstances of the offense

and give testimony against the defendant that he sexually assaulted

the child. Here, at the end of the trial and at Eklund's request,

B.E. and A.E. were examined by counsel and the court: after the

examination neither child was called to testify. Neither of the

children's transcripts support that their testimony would have

benefitted his defense, and he fails to show how he was prejudiced.

We hold that the District Court did not err in denying Eklund's

motion to dismiss for lack of speedy trial.

ISSUE 2

Did the District Court err in allowing character evidence to

be introduced during cross-examination of Eklund's character

witness?

On January 1.5, 1992, prior to trial, Eklund filed notice of

the character witnesses he intended to call at trial. During the

jury trial, Svinth, Eklund's character witness, responded to

questions on direct examination and testified as follows:

Q. Did you know whether or not he exhibited any harsh

words or discipline toward any of the children?

A. None. In fact, maybe to the opposite. In fact, he

didn't see them as often as he would have liked,

really. Be was probably the opposite, you know,

letting them get away with more than I would have,

myself.

On cross examination, the prosecutor for the State asked the

following:

Q. Why is it, do you think, that Mr. Eklund didn't get

to see his kids as much as he liked?

8
A. His drinking problem, I am sure, was a big factor.

Q. He would rather be out drinking and carousing

around, as opposed to taking care of his family?

A: It was a factor.

EKLDWD'S COUNSEL: Your Honor, I object to that question

as calling for a conclusion.

THE COURT: Overruled.

The State continued to cross-examine Svinth about Eklund's

convictions for driving under the influence, and his incarceration.

The State then asked the witness:

Q.

A.

Q.

A.

QA.

Q.

A.

Q.

A.

Do you know what Mr. Eklund is charged with?

No, not: really.

He is accused of using threat of violence to coerce

his thirteen-year-old stepdaughter into allowing

him to have intercourse with her. Does it surprise

you that he has threatened her with violence, that

he cou1.d be violent?

I have never known him to be violent.

How long have you known him?

Since the mid-seventies.

And you have never known him to be violent?

NO.

Were you aware of a charge filed against him in

1974?

NO.

EKLDWD'S COUNSEL: Your Honor, I object to this question

as well. Improper cross-examination.

THE COURT: Overruled.

Q. Were you aware, in 1974, that he was charged with

murder7

9
A. Yeah, I have been filled in with bits and pieces

from my sister.

Q. Did she tell you that he took a man by the name of

1VFoxV8 out hunting, shot him in the head, and dumped

his body in a barrow pit?

A. I am not aware of the particulars. I don't know if

she was even--

The State continued to ask questions concerning prior reports that

Eklund was emotionally and physically abusive toward his children

while he was intoxicated. Eklund objected to the questions as

introducing new evidence which the court denied.

After trial, Eklund moved for a mistrial, contending that the

State had introduced inadmissible character evidence because Eklund

did not open the door to his character as to truthfulness or that

he was law-abiding, but had presented testimony to show generally

that he treated his children well and never hit J.L. to rebut her

testimony that he threatened her. The court denied this motion by

stating:

The Court is satisfied that the Rules of Evidence--for

the requirement precedent to allowing the State, in this

case, to produce evidence as to certain of Defendant's

character, the requirements of Rule 404, the Court is

satisfied with that being opened up, first by the

Defendant, since beginning with counsel's opening

statement, and then various questions on

cross-examination, as well as Defendant's testimony; and

the motion is denied.

The State contends that Eklund opened the door to all

legitimate cross-examination of that witness when he called his

character witness to support his good reputation that he was a

kind, caring, and nonviolent father pursuant to Rule 404(a)(l),

M.R.Evid.

10
Eklund argues that the court erred in overruling his objection

to the state's statement that he was charged with murder in 1974.

Eklund denies that he was charged with murder in 1974. He admits

that he was convicted in 1973 of manslaughter, a crime of

negligence rather than of intent. He argues that the statement was

highly prejudicial and inflammatory and impossible to defend

against, and that he did not receive a fair and impartial trial.

We agree.

A mistrial may be granted upon a demonstration of manifest

necessity, along with the denial of a fair and impartial trial.

This Court will not disturb a lower court's denial of a motion for

mistrial unless there is clear and convincing proof of error.

State v. Dixon (Mont. 1994), 51 St. Rep. 135, 137.

A new trial may be granted if there is an "irregularity in the

proceedings of the court, jury, or adverse party or any order of

the court or abuse of discretion by which either party was

prevented from having a fair trial." Section 25-11-102(l), MCA.

Generally, character evidence is not admissible to prove

conduct. Rule 404(a), M.R.Evid. Rule 404(a)(l), M.R.Evid., allows

the prosecution to rebut the accused's offer of a pertinent trait

of character. Rule 405(a), M.R.Evid., provides the following

method to prove character:

Reputation or opinion. . . . proof may be made by

testimony as to reputation or by testimony in the form of

an opinion. On cross-examination, inquiry is allowable

into relevant specific instances of conduct.

11
The State claims that the cross-examination properly rebutted

Eklund's character evidence. State v. Clark (1984), 209 Mont. 473,

682 P.2d 1339. In Clark, the defendant was charged with sexual

intercourse without consent with his young stepdaughter whereby he

offered character evidence that he was gentle and nonviolent with

his children and others, and concerning his propensity for

truthfulness. By presenting character evidence, the defendant had

placed his character at issue pursuant to 404(a)(l), M.R.Evid.

Using the method in Rule 405(a), M.R.Evid., the prosecution

properly cross-examined the defense character witness by asking

whether he knew the following: the defendant had a prior armed

robbery conviction; the defendant forcibly escaped from jail by

overpowering the jailer; and other violent crimes the defendant

committed while serving in Vietnam. Clark, 682 P.2d at 1347. This

Court found that the evidence was relevant to rebut the defendant's

good character evidence because the defendant denied the charges

and denied any violent acts toward the stepdaughter; also, this

Court noted that the court gave the jury a cautionary instruction.

Clark, 682 P.2d at 1348.

The present case is distinguishable from Clark. The evidence

in Clark concerned prior convictions that depicted the defendant's

violent character, and the probative value of the evidence

outweighed the unfair prejudice to the defendant. Here, the State

cross-examined Eklund's character witness about Eklund's prior

murder charses to rebut his nonviolent character evidence: the

actual conviction for these charges was for manslaughter. &

12
State v. Benton (1992), 251 Mont. 401, 404, 825 P.2d 565, 567,

where danger of unfair prejudice of evidence of charses, not a

conviction, clearly outweighed the probative value.

Character is defined as the "aggregate of the moral qualities

which belong to and distinguish an individual person; the general

result of one's distinguishing attributes." Black's Law Dictionary

232 (6th ed. rev. 1990). While the prosecution may rebut

defendant's offer of character evidence, the prosecution must

present legitimate and relevant character evidence, and "the

accused's entire life should not be searched in a effort to convict

him." State v. Heine (1975), 169 Mont. 25, 29, 544 P.2d 1212,

1214.

After the court overruled Eklund's objection to the State's

inquiry concerning murder charges, the State asked the following:

"Did she tell you that he took a man by the name of I*FoxIt out

hunting, shot him in the head, and dumped his body in a barrow

pit?" This Court, in State v. Jones (1914), 48 Mont. 505, 517, 139

P. 441, 446, condemned questions in cross-examination where the

question assumes the existence of facts not admissible as

independent evidence, citing People v. Mullings (1890), 83 Cal.

138, 23 P. 229:

It is quite evident that the questions, and not the

answers, were what the prosecution thought important.

The purpose of the questions clearly was to keep

persistently before the jury the assumption of damaging

facts which could not be proven, and thus impress upon

their minds the probability of the existence of the

assumed facts upon which the questions were based.

13
This Court said "[wlhether or not such questions are answered

OX- not, the putting of them his condemned by the courts and

text-writers as gross misconduct." Jones, 139 P. at 446. In the

present case, the inquiry was improper and was intended to show

Eklund had a violent character, and the prejudice to him outweighed

the probative value under Rule 403, M.R.Evid. We conclude that

Eklund has met his burden of showing clear and convincing evidence

of error.

Section 46-20-701, MCA, provides that any ruling of the trial

court that affects the respondent's substantial rights will be

deemed harmless unless the record shows that the error was

prejudicial. The test to decide if the prejudicial error requires

a reversal is "whether there is a reasonable possibility that the

inadmissible evidence might have contributed to the verdict."

Brodniak v. State (1989), 239 Mont. 110, 114, 779 P.2d 71, 73,

(quoting State v. Gray (1983), 207 Mont. 261, 268, 673 P.2d 1262,

1266). In our inquiry, we must examine the totality of the

circumstances in which the error occurred. Brodniak, 779 P.2d at

74.

In the present case, the following testimony was presented by

the State: J.L.'s testimony concerning the alleged offenses; J.L.'s

mother who gave general testimony: the neighbor's testimony who

reported the alleged offenses: and the social worker's and

detective's testimony who were involved in the investigation.

Because the jury reached its verdict by considering the credibility

of all the witnesses, the misleading evidence must have created

14
great prejudice to Eklund for the jury to know he was charged with

murder. We conclude that there is a reasonable possibility that

the inadmissible evidence of Eklund's murder charge denied him a

fair and impartial trial.

Because we have found reversible error on the evidence

concerning murder charges and remand for retrial, we decline to

discuss further evidence concerning Eklund's driving under the

influence convictions, that he had abused alcohol, and that he had

been incarcerated.

We affirm the District Court's denial of Eklund's motion to

dismiss for lack of speedy trial, reverse the District Court's

denial of motion for mistrial, and remand for a new trial.