NO. 90-460 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJERRY L. HEFFERNAN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Powell, 

The Honorable Ted L. Mizner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

C. F. Mackay, Public Defender Project Off ice, 

Anaconda, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

James Yellowtail, Assistant Attorney General, 

Helena, Montana 

Christopher Miller, County Attorney, Deer Lodge, 

Montana 

Submitted on Briefs: February 28, 1991 

APR - 4 1991 Decided: April 4, 1991 

Filed: L"/ XFLid 

CLERK CF SblPREI'AE COURT ! " S'iATku33F i,'it~u'iatdA 

'Clerk 
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Justice John Conway Harrison delivered the opinion of the Court. 

The District Court of Powell County found the defendant guilty 

of the crime of escape, a felony, in violation 5 45-7-306, MCA. 

Defendant filed a motion to dismiss for lack of a speedy trial. 

The court denied the motion and this appeal followed. We affirm. 

The sole issue for review is whether defendant was deprived 

of the right to a speedy trial. 

On August 10, 1989, following an August 5 departure from the 

Montana State Prison, Heffernan was charged by Information with the 

offense of escape, in violation of 5 45-7-306, MCA. Heffernan was 

arraigned on August 17, 1989, and pled not guilty. Thereafter, on 

October 16, 1989, the State filed a motion to set a trial date and 

trial was scheduled for November 30, 1989. The bench trial was 

continued until April 19, 1990, due to various delays which we 

discuss below. The bench trial was held on a set of stipulated 

facts which simply stated that Jerry Heffernan, defendant, escaped 

from the Montana State Prison on August 5, 1989 and turned himself 

in, on the following day, to the Gallatin County Sheriff. 

~dditional facts pertinent to the speedy trial issue before us are 

discussed below. 

~ollowing the bench trial, the court convicted Heffernan of 

escape and sentenced him to three years in prison, with one year 

suspended, and ordered the sentence to run consecutively with the 

term of the sentence Heffernan served at the time of his escape. 

The sole issue before this Court is whether Heffernan was 

deprived of the right to a speedy trial. 
A'S an introduction, any person accused of a crime is 

guaranteed the fundamental right to a speedy trial by the Sixth 

Amendment to the United States Constitution, which is made 

applicable to the States by the Fourteenth Amendment. State v. 

Chavez (1984), 213 Mont. 434, 691 P.2d 1365. Both parties 

recognize that the primary authority in any speedy trial analysis 

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

L.Ed.2d 101. We have set out, in detail, the parameters of a 

proper speedy trial analysis under the Sixth Amendment, and the 

theoretical foundations of the four factor balancing approach of 

Barker, in State v. Curtis (1990), 241 Mont. 288, 299, 787 P.2d 

306, 313 and State v. Hall (Mont. 1990), 797 P.2d 183, 185-86, 47 

St.Rep. 1501, 1504. In Montana, the four Barker factors which we 

must evaluate and balance, with consideration given to the conduct 

of the prosecution and the accused, respectively, when analyzing 

speedy trial issues, are: 

1) length of delay; 

2) reason for delay; 

3) assertion of the right by the defendant; and 

4) prejudice to the defendant. 

I Hall 797 P.2d at 185-86. We shall now proceed directly to the 

outcome arrived at by simply applying, within defined parameters, 

the factors of the analytical framework set forth in Barker. 

I 

LENGTH OF DELAY 

The first element, the length of the delay, is of primary 

importance. Our analysis comes to an abrupt halt if the length of 

the delay is not sufficiently long to trigger a presumption of 
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prejudice. State v. Wiman (1989), 236 Mont. 180, 182, 769 P.2d 

1200, 1201. On the other hand, if the length of the delay is 

presumptively prejudicial, then further inquiry is warranted. What 

length will be considered presumptively prejudicial depends on the 

facts of each individual case. The length of a delay which we will 

consider in any given case is directly proportional to the 

complexities of the case. State v. Harvey (1979), 184 Mont. 423, 

434, 603 P.2d 661, 667. Barker, 407 U.S. at 530-31, 92 S.Ct. at 

2192, 33 L.Ed.2d at 117. Proper calculation of the length of the 

delay, for purposes of determining whether the delay has created 

a presumption of prejudice, requires us to consider the total 

pretrial delay without separately considering the delay 

attributable to either party. Curtis at 299, 787 P.2d at 313. 

Here, defendant was arrested and charged with the crime of 

escape. This was not a complex case. Defendant's trial on his 

escape charge was delayed for a total of 256 days from the date of 

his arrest on August 6, 1989, to the trial date on April 19, 1990. 

We find, and the parties agree, that this total delay of 256 days 

between arrest and trial triggers a rebuttable presumption of 

prejudice. See State v. Palmer (1986), 223 Mont. 25, 27-8, 723 

P.2d 956, 958 (256 days held sufficient to require further 

inquiry) , and Hall, 797 P. 2d at 187 (207 days held sufficient) , and 

State v. Bartnes (1988), 234 Mont. 522, 528, 764 P.2d 1271, 1275 

(175 days held sufficient) ; compare State v. Wiman (1989), 236 

Mont. 180, 184, 769 P.2d 1200, 1203 (119 days of allocated delay 

held insufficient). Therefore, further inquiry into the remaining 

Barker factors is required. Furthermore, the State has the burden 

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of rebutting the presumption by providing a reasonable explanation 

for the delay and showing that the defendant was not prejudiced. 

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REASONS FOR THE DELAY 

Different weights must be assigned to different reasons for 

the delay. Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d 

at 117; Curtis at 302, 787 P.2d at 315. In considering the reasons 

for the 256-day delay, we shall allocate the delay by incorporating 

into this element arguments of how much delay is separately 

attributable to each party. Naturally, although it is not the case 

here, if the delay was entirely the cause of the defendant, then 

defendant's speedy trial argument is without merit. State v. 

Wirtala (1988), 231 Mont. 264, 268, 752 P.2d 177, 180. The 

State contends that Heffernan is directly responsible for 140 days 

of the 256-day delay and asserts that it is only responsible for 

the remaining 116 days. Heffernan denies this and contends that 

the State must bear complete responsibility for the total delay. 

The State argues that 140 days of the delay for the time period 

from November 30, 1989, the initial trial date, until ~pril 19, 

1990, the actual trial date, is attributable to Heffernan because 

he actively avoided trial during this period, citing Curtis at 301, 

787 P.2d at 314. 

The record indicates that Heffernan was arrested on August 6, 

1989. The Powell County Attorney, Mr. Christopher G. Miller, filed 

an information on August 10,1989, charging Heffernan with the crime 

of escape. On October 16, 1989, Mr. Miller moved the District 

Court to set the trial date. Heffernanls case was initially set 
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for trial on November 30, 1989. A November 30, 1989 entry in the 

District Court Journal, on page #180, states as follows: 

STATE OF MONTANA, Plaintiff -vs- GUS GARDNER, Defendant 

STATE OF MONTANA, Plaintiff -vs- JERRY L. HEFFERNAN, Defendant 

Public Defender Conde F. Mackay appears on the two above 

entitled companion cases and advises that defendant just 

yesterday rejected the plea bargaining in each case. In 

fact it is still not decided for certain if this case 

will go to trial as set for today. Court wonders if 

these cases could be tried together. Mr. Mackay will 

check on this. County Attorney Christopher G. Miller who 

is present representing the State moves to consolidate. 

The record shows that Heffernan rejected a prior negotiated plea 

agreement the day before trial. This tactic left the State with 

insufficient time to marshal its evidence for trial. Due to 

Heffernanls actions in waiting the day before trial to reject the 

plea, which had already been negotiated and agreed upon, the State 

was forced to request a continuance. The trial was continued until 

March 26, 1990. We shall call this u-day delay, from November 

30, 1989 until March 26, 1990, #!delay #I." On March 26, 1990, due 

to a backlog of cases pending in the District Court, this case was 

continued until April 5, 1990. This 9-day institutional delay, 

from March 26, 1990 until April 5, 1990, shall be referred to as 

"delay #2.11 The record reflects that, on the day before the April 

5 trial, Heffernan filed a motion to dismiss for lack of a speedy 

trial, along with a motion for appointment of new counsel and a 

motion to sever his case from a companion case. On April 5, 1990, 

the District Court heard arguments pertaining to Heffernan1s 

motions and thereafter denied them on April 17, 1990. On ~pril 19, 

1990, a bench trial was held on stipulated facts and the District 

Court found Heffernan guilty as charged. We shall call this final 
t 

- 14-da; delay, from April 5 until April 19, "delay #3. 

We find that Heffernan is responsible only for delay #I, or 

days of the 256 day delay, and the State is charged with the 

remaining 139 days.' Heffernan is responsible for delay #1 because 

he caused it by rejecting the prior negotiated plea agreement. 

This rejection forced a continuance of the trial. The record shows 

that, but for Heffernan's rejection, the trial would have 

proceeded, as scheduled, on November 30, 1989. Instead, the trial 

was continued until March 26, 1990. Although the State requested 

the continuance, it was caused solely by Heffernanls own actions 

and so the delay is chargeable to Heffernan, the State. 

Conversely, delays #2 and #3 are chargeable to the State. These 

delays were institutional in nature, caused by circumstances over 

which Heffernan had no control, including trial preparation and a 

backlog of pending cases. !#Delay inherent in the system is 

chargeable to the State" because the State bears the burden of 

bringing a defendant to trial. Harvev at 34, 603 P.2d at 667. 

For this reason, these delays, totalling 139 days, are chargeable 

to the State. The State asserts that delay #3 was caused by the 

motions which Heffernan made prior to the April 5, hearing and, 

thus, this delay should be charged against Heffernan. We disagree. 

Considering that portion of the pretrial delay which is 

chargeable to the State, we note that the speedy trial is primarily 

designed to protect the accused from oppressive tactics of the 

 his is not to suggest that all delays not charged to 

defendant are automatically charged to the State--because this is 

simply not the case. See State v. Carden (1977), 173 Mont. 77, 

87, 566 P.2d 780, 785. 
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prosecution. Barker, 407 U. S. at 529, 92 S. Ct. at 2191, 33 L. Ed. 2d 

at 116. The question is whether the frprosecution was pursued with 

reasonable diligencef1 during that time of delay for which the State 

was charged. State v. Grant (1987), 227 Mont. 181, 185, 738 P.2d 

106, 109. "The essential ingredient is orderly expedition and not 

mere speed." United States v. Marion (1991), 404 U.S. 307, 313, 

92 S.Ct. 455, 459, 30 L.Ed.2d 468, 474 (citing Smith v. United 

States (1959), 360 U.S. 1, 795 S.Ct. 991, 3 L.Ed.2d 1041). 

Vacation of the District Court's order would be required if it were 

shown that, Itthe pre-indictment delay in this case caused 

substantial prejudice to appell[antfs] rights to a fair trial and 

that the delay was an intentional device to gain tactical advantage 

over the ac~used.'~ Marion, 404 U.S. at 324, 92 S.Ct. at 465, 30 

L.Ed.2d at 481. The 139-day delay attributable to the State was 

not caused by oppressive tactics by the State. There is no showing 

by Heffernan that the State intentionally delayed to gain some 

tactical advantage over Heffernan or to harass him. We find that 

the reason for the State's 139-day delay was that such delays are 

inherent in the system and, thus, institutional in nature. We 

point out that institutional delays, such as these, weigh less 

heavily against the State in the Barker balancing process than 

intentional delays resulting from oppressive tactics. State v. 

Palmer (1986), 223 Mont. 25, 28, 723 P.2d 956, 959. With this in 

mind, our next task is to balance the other Barker factors against 

the harm caused by the inherent and institutional nature of the 

139-day delay. 
ASSERTION OF THE RIGHT 

We find, and the State concedes, that Heffernan satisfied the 

third element by moving to dismiss on speedy trial grounds on April 

4, 1990, before this case was brought to trial. 

PREJUDICE TO DEFENDANT 

The primary interests which lie at the heart of this factor 

are set forth in Barker: 

A fourth factor is prejudice to the defendant. 

Prejudice, of course, should be assessed in the light of 

the interests of defendants which the speedy trial right 

was designed to protect. This Court has identified three 

such interests : (i) to prevent oppressive pretrial 

incarceration; (ii) to minimize anxiety and concern of 

the accused; and (iii) to limit the possibility that the 

defense will be impaired. Of these, the most serious is 

the last, because the inability of a defendant adequately 

to prepare his case skews the fairness of the entire 

system. If witnesses die or disappear during a delay, 

the prejudice is obvious. There is also prejudice if 

defense witnesses are unable to recall accurately events 

of the distant past. Loss of memory, however, is not 

always reflected in the record because what has been 

forgotten can rarely be shown. 

Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 101 and 

I Hall 797 P.2d at 187. Applying these interests to the facts of 

this case, we hold that Heffernan was not prejudiced by the State's 

delay in bringing his case to trial. 

We find no evidence of oppressive pretrial incarceration since 

Heffernan was an inmate in the Montana State Prison during the 

entire subject pretrial period due to an unrelated conviction. He 

therefore did not suffer any prejudice from pretrial incarceration. 

Regarding the second interest we must consider, Heffernan 
alleges that he has suffered anxiety and concern as a result of the 

pretrial delay. We have recognized that I1[t]he existence of 

anxiety or emotional distress is notoriously difficult to prove.I1 

Curtis at 303, 787 P. 2d at 316. Here, the record contains no facts 

or proof conclusively showing that anxiety and concern have been 

caused to Heffernan. However, various statements in Heffernanls 

brief support the conclusion that Heffernan has likely been subject 

to at least some anxiety and concern because of the pretrial delay. 

In his brief, Heffernan alleges that he has been held in closer 

custody, denied parole, and denied the opportunity to dispose of 

a Wyoming detainer by virtue of the delay. We find, under these 

circumstances, that at least some prejudice in the nature of 

anxiety and concern can be presumed to have occurred. 

As for the third and most important of the interests outlined 

above, we find that the delay did not hamper, impair or otherwise 

prejudice the defense. This was not a complex case involving a 

complicated fact pattern. The bench trial for the escape crime 

proceeded on a very brief and concise paragraph of stipulated 

facts. Furthermore, Heffernan did not allege that his defense was 

prejudiced nor were there facts or circumstances in the record to 

support such a finding. Lastly, and most importantly, Heffernan 

did not even present any defense to his escape charge and 

subsequent conviction. Under these circumstances, we must find 

that Heffernan was not prejudiced in this manner. "The crucial 

factor in a prejudice determination is whether the defense has been 

impaired.I1 State v. Waters (1987), 228 Mont. 490, 494, 743 P.2d 

617, 620. Considering the above interests, in light of the facts 
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presented, we conclude that Heffernan was not prejudiced by the 

delay in bringing his cause to trial. 

In summary, the State is charged with a 139-day delay. This 

delay was not intentional, but was rather inherent and 

institutional in nature. Lastly, except for some anxiety which we 

have presumed, Heffernan was not prejudiced by the pretrial delay. 

Based on our analysis, we hold that under the four factor balance 

test of Barker, Heffernan was not denied his right to a speedy 

trial and the District Court did not err in denying Heffernanls 

motion to dismiss. 

The District Court is hereby affirmed. 

We concur: 

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