No. 84-170 

TN THE SUPREME COURT OF THE STATE OF MONTANA 

1.984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsLEO CHAVEZ, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twelfth Judicial District 

In and for the County of Hill 

The Honorable R. D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mark Suagee, Havre, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Ronald W. Smith, County Attorney, Havre, Montana 

-- 

Submitted on Briefs: Oct. 11, 1984 

Decided: November 29, 1984 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

This is an appeal from an order of the District Court 

of the Twelfth Judicial District, Hill County, denying 

defendant's motion to dismiss for a lack of a speedy trial, 

and the trial court's ruling allowing the admission of a 

pre-trial photographic identification of the defendant. At 

trial, the jury found the defendant not guilty of burglary, 

and guilty of felony theft, and he was sentenced to four 

vears in the Montana State Prison. 

We affirm. 

On the morning of June 15, 1983, Anton Schwan, the 

lessee of a steel building near the Burlington Northern 

railroad tracks west of Havre, Montana, discovered that the 

building had been broken into. The break-in had apparently 

occurred the night before because Schwan testified that he 

had been there the previous evening at 8:00 p.m. and had not 

noticed anything missing. Items stolen from the building 

were a black and white television set, a stereo system and 

two roping saddles. Schwan immediately notified the Hill 

County Sheriff's office of the burglary. 

Later that same day, Allen Marden was working at his 

job for the Burlington Northern Railroad. At about 12:15 

p.m. he was in a locomotive stopped near a crossing west of 

Havre. At that time, he observed a red and white Pontiac 

LeMans with three occupants proceeding westerly on the gravel 

road paralleling the tracks. As Marden watched, the car 

stopped 100 to 150 feet away from him and two men got out. 

One went down into the ditch and retrieved a saddle out of a 

bush. They put the saddle into the trunk of the car, a.nd 
drove off to a nearby mobile home court. Marden testified 

that he wrote down the personalized phrase "HIDES" on the 

license plate of the car as it proceeded easterly past him. 

Because he felt the activity was suspicious, Marden 

telephoned his brother Steve, a Hill County deputy sheriff, 

and told him what he had seen. Steve Marden contacted 

another deputy, Monte Riechelt, who confirmed that a saddle 

had been reported stolen. From Alan Marden's identification, 

the automobile was traced to its owner, John Chance Houle, a 

jailer at the Blaine County Sheriff's office. 

Mr. Houle made a statement to the Hill County Sheriff 

that he had stopped at Fred Castaneda's trailer to inquire 

about buying two saddles that he had heard Castaneda wanted 

to sell. The defendant, Leo Cha~~ez was at the trailer. 

Boule stated that he, Castaneda, and Chavez got into Houle's 

car to get the saddle. Chavez was the one who gave 

directions to, and actually retrieved the saddle. Houle 

purchased the saddle from Chavez for $10 and a beaded belt, 

and then took it to his grandfatherus ranch on the Rocky Roy 

Indian reservation. A few days later, Leo Chavez went to a 

local pawn shop and pawned the belt for $20. 

As a result of Houle's statement and Marden's report, 

the Sheriff's office located the remaining stolen items 

hidden in the bushes in the same a.rea, about .3 of a mile 

from the building where they had been stored. On June 20, 

1983, both Fred Castaneda and Leo Chavez were arrested and 

charged with the burglary and theft of these items. Leo 

Chavez's bond was set at $3,000 and he remained incarcerated 

in the Hill County jail until August 2, 1983--a period of 

forty-three days. After his release, defendant Chavez 

remained in the Havre area until trial on January 19, 1984. 
At trial, all charges against Fred Castaneda were dismissed 

by the court upon motion of his defense counsel at the 

conclusion of the State's case. The jury found Chavez not 

guilty of burglary and guilty of theft. He was later 

sentenced to four years in the Montana State Prison. 

Prior to trial, on September 29, 1983, the Hill County 

Attorney filed a notice of readiness for trial and request 

that trial be set. On December 22, 1983, the county attorney 

filed a motion requesting the District Court to set a trial 

date. At the omnibus hearing on January 6, 1984, defendant 

gave notice that he would raise the speedy trial issue. On 

January 13, 1984, he filed a motion to dismiss for lack of a 

speedy trial. 

At the hearing on the motion, held on the same day the 

trial commenced, defendant testified that while he was in 

jail he entertained thoughts of suicide, and though those 

urges subsided upon his release, that the long delay had 

caused him great anxiety. He testified that after his 

release he found it difficult to find steady employment, and 

that he felt estranged from the community. Defendant also 

contended that due to the delay of 214 days in being brought 

to trial, his ability to present a defense was impaired 

because he and his witnesses found it difficult to remember 

the events of June past. 

On cross-examination defendant testified that, pending 

trial, he worked for awhile with a carnival when it came to 

town, and then found a job at a local cafe. He quit his job 

at the cafe because the owner gave him a "weird look" after 

some deputies had come to visit him. As to the estrangement, 

he admitted that he "kind of got used to it." And finally, 

he conceded that part of his "anxiety" was due to the fact 
that there were other criminal charges proceeding against him 

in Montana, and that he was on probation from a California 

district court. The record discloses that on July 16, 1983, 

less than two days after the theft and prior to his arrest 

for the present charge, defendant had been sentenced by the 

Hill County District Court for two other previous felonies. 

The court sentenced him to two concurrent three year terms in 

the Montana State Prison, but suspended them and put 

defendant on probation. The court also fined him $2,000 and 

ordered him to report to the appropriate authorities in 

California. 

During the hearing on the motion to dismiss, the 

District Court observed that the notice of and motion for 

trial were timely filed by the State, and that "the only 

reason this wasn't tried in the fall was because of the heavy 

trial schedule that [the judge] had." In arguing against the 

motion to dismiss, the county attorney contended that 

although he did not affirmatively present evidence, the 

cross-examination of the defendant had adequately shown that 

there was not sufficient anxiety or prejudice to mandate a 

dismissal. Rased on this, the District Court denied 

defendant's motion. 

During the trial, the State offered into evidence an 

identification of the defendant based on a photographic 

line-up Marden had been shown shortly before the trial. The 

defendant lodged a general objection, and the court allowed 

both the identification, and the photoqraphic line-up to be 

introduced. 

Defendant raises two issues on appeal: 

(1) That the District Court erred in denying the motion 

to dismiss for a lack of speedy trial; and 
(2) that the District Court erred in allowing the State 

to admit the pre-trial photographic identification of the 

defendant. 

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. Klopfer v. North 

Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 ~~~d.2~3 1. 

The test to be applied to determin.e whether the speedy trial 

right has been violated was set forth in Ba.rker v. Wingo 

(1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. This 

test has been applied by this Court, and was stated in State 

ex re1 Briceno v. Dist. Ct. (19771, 173 Mont. 516, 518, 568 

"These cases involve a sensitive 

balancing of four factors, in which the 

conduct of the prosecution and defendant 

are weighed in determining whether there 

has been a denial of the right to a 

speedy trial. The four factors to be 

evaluated and balanced are: 

"1) Length of delay; 

"2) reason for delay; 

"3) assertion of the right .by defendant; 

and 

"4) prejudice to the defendant." 

The first factor, the length of delay is the "trigger" 

to the speedy trial inquiry. There is no need to examine the 

other three factors unless some delay deemed presumptively 

prejudicial has occurred. State v. Harvey (1979), 184 Mont. 

423, 603 P.2d 661, and the delay tolerated varies with the 

complexity of the case. Harvey, 184 Mont. at 433-434, 603 

P.2d at 667; Barker, 507 U.S. at 531, 92 S.Ct. at 2192, 33 

L.Ed.2d at 117 ("the delay that can be tolerated for an 
ordinary street crime is considerably less than for a serious 

complex conspiracy charge.") 

The delay here, 214 days, is long enough to trigger the 

speedy trial inquiry. See State v. Ackley (Mont. 1982), 653 

P.2d 851, 39 St.Rep. 2091, (257 days); State v. Fife (Mont. 

1981), 632 P.2d 712, 38 St.Rep. 1334 (195 days); State v. 

Freeman (1979) , 183 Mont. 334, 599 P.2d 368 (207 days) ; State 

v. Cassidy (1978), 176 Mont. 385, 578 P.2d 735 (246 days). 

This delay gives rise to a presumptive deprivation of 

defendant's speedy trial right, and shifts the burden to the 

State to give reasons why the trial should proceed. State v. 

Ackley, supra; State v. Harvey, supra. In this respect, the 

State must either give a reasonable excuse for the delay, or 

show that the defendant was not prejudiced thereby. If there 

is both excuse and prejudice, those two factors must be 

balanced. 

In State v. Ackley, supra, we were confronted with a 

remarkably similar situation. There, the trial was delayed 

for a period of 257 days because of the trial court's heavy 

schedule. The defendant in Ackley had spent forty-one days 

in jail, and alleged the delay had prejudiced him in his 

ability to present his defense, and in the marital 

difficulties and anxiety it caused. The District Court 

denied Terry Ackley's motion to dismiss and this Court 

affirmed. 

The speedy trial right is primarily designed to protect 

the accused from oppressive tactics of the prosecution, 

Barker . Other reasons such as institutional delay weigh 

less heavily against the State in the balancing process, 

Ackley. Nonetheless, the State has the duty to bring the 

accused to trial and is ultimately responsible for any delay. 
Although institutional delay weighs less heavily against the 

State, it is the policy of this Court to gradually reduce our 

tolerance for this excuse, and to begin according it full 

weight. State v. Fife, 632 P.2d at 716, 38 St.Rep. at 1336. 

Here, the defendant asserted his right in a timely and 

proper fashion. The motion was made before trial and the 

hearing was had before the trial commenced. The portion of 

the delay that can be attributed to the defendant is seven 

days. Conversely, the State also indicated its readiness for 

trial in a timely fashion. There were no oppressive tactics 

employed. Consequently, the cause for delay is narrowed to 

pure institutional delay, and only that may be balanced 

against the defendant's prejudice. 

In Barker v. Wingo, supra, the United States Supreme 

Court identified three interests of a defendant which may be 

prejudiced by a delay in coming to trial. The right is 

designed " . . . (i) to prevent oppressive pre-trial 

incarceration; (ii) to minimize anxiety and concern of the 

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

will be impaired." 407 U.S. at 532, 92 S.Ct. at 2193, 33 

L.Ed.2d at 118. 

If the delay is sufficient to trigger the speedy trial 

inquiry, then it is presumptively prejudicial to the 

defendant. Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 

2192, 33 L.Ed.2d at 117. In Moore v. Arizona (1973), 414 

U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183, the United States 

Supreme Court held that the defendant is not required to 

affirmatively prove prejudice. Thus, the State has the 

burden to rebut the presumption of prejudice or forward a 

reason for the delay that outweighs it. 
In Acklev, we held that the burden on the State "to 

show lack of prejudice becomes considerably lighter in the 

absence of prejudice to the appellant" 653 P.2d at 854, 39 

St.Rep. at 2094. If the State has no justification for the 

delay, or cannot show that the defendant has not been 

prejudiced by it, the defendant is entitled to dismissal. 

But, if the defendant's prejudice rests merely on this 

presumption, he must meet any evidence presented by the State 

that outweighs the presumed prejudice. At that point, the 

defendant is entitled to dismissal only if he presents 

evidence of prejudice that exceeds in weight the State's 

proof. 

Chavez pointed out his forty-three day incarceration 

and alleged that the delay caused him great anxiety and 

impaired his ability to mount a defense. In Ackley, the 

defendant was incarcerated for forty-one days prior to trial. 

We did not find that to be, under the circumstances, 

oppressive incarceration. Here, defendant Chavez alleged 

that his incarceration caused him great anxiety and that he 

entertained thoughts of suicide. On cross-examination, the 

county attorney brought out the fact that a great deal of the 

anxiety Mr. Chavez was feeling at that time was not 

necessarily attributable to his incarceration. His stay in 

jail simply "brought up a lot of worries," but they were not 

all directly caused by his present situation. And naturally 

we are to expect a certain amount of anxiety and concern that 

is inherent in being accused of a crime. State v. Collins 

(1978), 178 Mont. 36, 50, 582 P.2d 1179, 1186. In addition, 

the defendant had received two suspended prison terms, just 

two days after the theft occurred and four days prior to his 

arrest. A portion of any anxiety he may have felt certainly 
was attributable to the possibility that the order suspending 

the prison terms would be revoked if he were to be convicted 

again. We find that, as far as the term in jail, the State 

adequately showed that there was not oppressive 

incarceration. 

Defendant's allegations that he was made anxious by the 

delay and that he felt estranged from the community, closely 

parallels the prejudice alleged by the defendant in Ackley. 

There, the defendant alleged that the delay caused him 

marital problems and restricted his right to free speech. In 

Ackley, the defendant did no more than state in a conclusory 

fashion his anxiety and prejudice, and we held that the 

State ' s excuse outt~eighed the presumed prejudice. Again, 

this case is remarkably similar. Chavez admitted that a 

great deal of the anxiety he was feeling was due to the other 

criminal actions against him, and that he "kind of got used 

to" the comments and stares of others in the community. The 

trial judge saw and heard Chavez on cross-examination when 

the county attorney attempted to rebut and discredit his 

allegations of prejudice. We must defer to his findings if 

they are supported by substantial evidence. Here, the State 

effectively showed an absence of prejudice to the defendant 

and therefore met its burden of proof. 

Finally, Chavez alleged that the delay impaired his 

ability to defend himself. The State, through 

cross-examination showed an absence of prejudice. There was 

no memory loss on the part of any witness and no difficulty 

to the defendant in contacting them. The defendant called. 

only one witness, Alan Marden, on his behalf, and then only 

for a cursory examination in regards to the photographic 

line-up. Again, the facts are strikingly similar to Ackley, 
as is our conclusion: the defendant did not meet the State's 

proof, and was not prejudiced by the delay. 

We find that Ackley is controlling in this case and we 

conclude that defendant was not denied his right to a speedy 

trial. 

Chavez next argues that it was error for the District 

Court to allow the county attorney, Mr. Smith, to produce an 

in-court identification of him based upon an earlier 

photographic identification. The allegedly defective 

exchange went as follows: 

"Q [By Mr. Smith] Mr. Marden, I am going 

to show you what is marked. as proposed 

exhibit E and ask you if you have seen 

that before? 

"A Yes. 

"Q And the purpose of this exhibit was 

for what reason? 

"A To see if I could identify any of the 

occupants of the car. 

"Q And did you have an opportunity then 

to examine this to see if you could, and 

take your time? 

"A Yes. I was. 

"Q And were you advised in advance the 

names of any individuals who were placed 

within this? 

"A NO. I wasn't. 

"& And at this time, or at the time that 

you examined that, were you able to 

indicate to [sic] individuals out of that 

lineup, or that photographic? 

"A Yes. I was. 

Q And in referring to that, wha.t 

picture numbers did you select? 

"A Number 1 and number 6. 

"MR. LITTETVEDT: Your Honor, I am going 

to object to this testimony at this point 
in time and have the objection noted for 

the record. 

"MR. SUAGEE: I would like to join in 

that objection. 

"THE COURT: Very well. 

"MR. SMITH: The objection if [sic] 

overruled? 

"THE COURT: Overruled." 

Chavez alleges that this testimony was improper because 

his due process rights were violated in that the existence of 

the photographs were not disclosed to Chavez prior to trial, 

and this non-disclosure prejudiced his defense. 

The record discloses that Hill County has an "open 

file" policy in all criminal matters. We note here that 

defendant does not allege that the photograph line-up was not 

in the file or was otherwise hidden from him. 

The difficulty we have is with the specificity of 

defendant's objection. Counsel for defendant Castaneda said 

no more than "I am going to object," and counsel for 

defendant Chavez stated "I would like to join in that 

objection." We have previously held that broad, generalized 

objections of this type are insufficient to preserve an error 

for appeal, State v. Close (Mont. 1981), 623 P.2d 940, 38 

St.Rep. 177; State v. Bretz (1979), 185 Mont. 253, 605 P.2d 

974; State v. Sullivan and DePue (1979), 182 Mont. 66, 595 

P.2d 372; State v. Kates (1934), 97 Mont. 173, 33 P.2d 578. 

There was sufficient other testimony identifying the 

defendant, or linking him to the stolen property, for the 

jury to find as it did. John Houle earlier identified the 

defendant from the same photographic line-up that Marden saw 

just prior to trial and defendant's counsel did not object to 

that testimony. The testimony of Officer Riechelt, and John 
Erhardt, owner of the pawn shop where defendant pawned the 

beaded belt, and other testimony of Alan Marden, all 

implicate the defendant. His counsel was able to, and did 

cross-examine the various investigating officers about the 

photographic line-up and other aspects of the investigation, 

and counsel did not object to the photographic line-up when 

it was offered and received as an exhibit. 

Finally, the use of a photographic line-up is not, by 

itself, unconstitutional. The use of such devices for the 

investigation of crimes is an accepted and normal method of 

law enforcement. The defendant is not even required to be 

present or represented by counsel during such a proceeding, 

Ash v. United States (1973), 413 U.S. 300, 93 S.Ct. 2568, 37 

L.Ed.2d 619; Mata v. Summer (9th Cir. 1979), 61.1 F.2d 754. 

We will only bar the use of photographic line-ups if the 

defendant can show that the procedure was "so impermissibly 

suggestive as to give rise to a very substantial likelihood 

of irreparable misidentification." Mata v. Summer, supra, 

citing Simmons v. United States (1968), 390 U.S. 377, 88 

S.Ct. 967, 19 L.Ed.2d 1247. Defendant's counsel 

cross-examined Officer Riechelt and Alan Marden at length 

about the identification procedure, and could come up with no 

evidence of unusual suggestiveness. Neither can we, on a 

review of the record, find any such evidence. 

The orders of the District Court are affi 

I 
We concur: 

s,4JI@c,& 

Chief Justike 

Justices 
Justice John C. Sheehy, special]-y concurring: 

I would hold that Chavez is not entitled to a dismissal 

on the speedy trial issue, but not for the reasons cited by 

the majority. 

Because of his other problems with the courts, I am not 

persuaded that Chavez really wished for a speedy trial. This 

was a compelling factor to the United States Surpreme Court 

in Barker v. Wingo (1972), 407 U.S. 514. In ~arker we were 

warned against mechanically ticking off the factors there 

enumerated and boiling the issue down to the simple question 

of prejudice. Prejudice should always be presumed, and for 

good reasons, outlined in U.S. v. Marion (1971), 404 U.S. 

Mr. Justice Daniel J. Shea and Mr. Justice Frank B. Morrison, 

Jr., dissent and will file a written dissent later.