No. 84-170

TN THE SUPREMECOURT OF THE STATEOF MONTANA

1.984

STATE OF MONTANA, Plaintiff and Respondent,

-vsLEO CHAVEZ, Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth JudicialDistrict Inand for the County of Hill TheHonorableR. D. McPhillips,Judgepresiding.

COUNSELOF RECORD:

ForAppellant: Mark Suagee, Havre,Montana For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana RonaldW. Smith,CountyAttorney, Havre,Montana

-- Submitted on Briefs: Oct. 11, 1984 Decided: November 29, 1984

ClerkMr. 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 theMontana 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 theburglary. 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 crossingwest of Havre. At that time, he observed a red and white Pontiac LeManswith three occupantsproceedingwesterly 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.nddrove 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 itproceeded 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. FromAlan Marden's identification, the automobilewas traced to its owner,JohnChance Houle, a jailer at theBlaine County Sheriff'soffice. 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 grandfatherusranch on the Rocky Roy Indian reservation. A fewdays later,Leo Chavez went to a localpawn shop and pawned thebelt 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 fouryears in theMontana State Prison. Prior to trial,on September 29, 1983,the Hill County Attorney filed a notice of readiness for trial and request that trialbe 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 amotion to dismiss for lack of a speedy trial. At thehearing on themotion,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 thatdue 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 ofJunepast. On cross-examination defendant testified that,pending trial, he worked for awhilewith a carnival when it came to town,and then found a job at a local cafe. He quithis job at the cafe because the owner gave him a "weird look" after some deputieshad come tovisithim. 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 factthattherewere othercriminalcharges proceeding againsthim in Montana, and that he was on probation from a California districtcourt. The record discloses thaton July 16, 1983, less than two days after the theft and prior tohis arrest for the present charge, defendant had been sentenced by the HillCounty District Court for two other previous felonies. The court sentencedhim totwo concurrent threeyear 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 thiswasn't tried inthe fallwas because of theheavy trialschedule that [thejudge] had." Inarguingagainstthe 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 shortlybefore the trial. The defendant lodged a general objection, and the court allowed both the identification, and the photoqraphic line-up tobe introduced. Defendant raises two issues on appeal: (1)That theDistrictCourt erred indenying themotion todismiss fora lackof speedy trial; and(2) thattheDistrictCourt erred inallowing the State to admit the pre-trial photographic identification of the defendant. Any person accused of a crime is guaranteed the fundamental righttoa speedy trialby the SixthAmendment 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 tobe applied todetermin.ewhether 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 appliedby thisCourt, and was stated inState

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 fordelay; "3) assertion of the right.by defendant; and "4) prejudice tothe defendant." The first factor, the length of delay is the "trigger" tothe speedy trialinquiry. There isno need toexamine the other three factors unless some delay deemed presumptively prejudicial has occurred. Statev. 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 anordinary street crime is considerably less than for a serious complex conspiracy charge.") The delayhere, 214days, is long enough to trigger the speedy trial inquiry. See Statev. Ackley (Mont. 1982), 653 P.2d 851, 39 St.Rep. 2091, (257days); State v. Fife (Mont. 1981), 632 P.2d 712, 38 St.Rep. 1334 (195 days); State v. Freeman (1979)

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

v. Cassidy (1978), 176 Mont. 385, 578 P.2d 735 (246days). This delay gives rise to a presumptive deprivation of defendant's speedy trial right,and shifts theburden to the State to give reasons why the trial should proceed. Statev. Ackley, supra; Statev. Harvey, supra. In this respect,the State must either give a reasonable excuse for the delay,or show that thedefendantwas notprejudiced 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 trialright is primarily designed toprotect 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 isultimately responsible forany 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 Statealso indicated itsreadiness for trial in a timely fashion. Therewere no oppressive tactics employed. Consequently, the cause for delay is narrowed to pure institutional delay, and only that may be balanced against thedefendant'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 thepossibility 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,hemustmeet any evidencepresented 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 defendantwas incarcerated for forty-onedaysprior 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 greatdeal of the anxiety Mr. Chavez was feeling at that time was not necessarily attributable to his incarceration. His stay in jail simply "broughtup a lot of worries," but theywere not all directly caused by his present situation. And naturally

we are to expect a certain amountof anxiety and concernthat is inherent in being accused of a crime. State v. Collins (1978), 178Mont. 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 hemay have felt certainlywas 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 allegationsthat hewasmade anxiousby 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 maritalproblems and restrictedhis right to free speech. In Ackley, the defendantdid nomore than state in a conclusory fashion his anxiety and prejudice, and we held that the State

### 's excuse outt~eighedthe presumed prejudice. Again, this case is remarkably similar. Chavez admitted that a greatdeal of the anxietyhe was feelingwas 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 substantialevidence. Here, the State effectively showed an absence of prejudice to the defendant and thereforemet its burden ofproof. Finally, Chavez alleged that the delay impaired his ability to defend himself. The State, through cross-examination showed an absence ofprejudice. Therewas 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 defendantdid not meet the State's proof, andwasnotprejudiced by thedelay. We find that Ackley is controlling in this case and we conclude that defendantwas 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 exchangewent as follows: "Q [ByMr. Smith]Mr. Marden, Iamgoing 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 forwhat reason? "A To see if Icould identifyany of the occupantsof the car. "Q And did you have an opportunity then to examine this to see if you could,and takeyour time? "A Yes. Iwas. "Q And were you advised in advance the names of any individualswho were placed within this?

"A NO. Iwasn't. "& And at this time,or at the time that you examined that, were you able to indicate to [sic]individualsoutof that lineup, or that photographic? "A Yes. Iwas.

Q And in referring to that, wha.t picture numbersdid you select? "A Number 1and number 6.

"MR. LITTETVEDT: Your Honor, Iam going to object to this testimony at thispointin time and have the objection noted for the record. "MR. SUAGEE: I would like to join in that objection. "THECOURT: Very well. "MR. SMITH: The objection if [sic] overruled? "THE COURT: Overruled." Chavez alleges that this testimonywas improperbecause his due process rightswereviolated in that the existence of the photographs were not disclosed to Chavez prior to trial, and this non-disclosureprejudiced 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 thephotograph line-upwas not in the file or was otherwisehidden fromhim. 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 objectionsof this type are insufficientto 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),97Mont. 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 trialand defendant's counseldid not object to that testimony. The testimony of Officer Riechelt, and JohnErhardt, 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 itwas 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 normalmethod 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 (9thCir. 1979), 61.1F.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 comeupwith no evidence of unusual suggestiveness. Neither can we, on a reviewof the record,find any such evidence. The orders of the District Court are affi

IWe concur: 

# s,4JI@c,& Chief Justike

JusticesJusticeJohnC. Sheehy,special]-yconcurring:

Iwould 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, Iam not persuaded thatChavez reallywished fora speedy trial. This

was a compelling factor to the United States Surpreme Court inBarker 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 DanielJ. Shea and Mr. Justice Frank B. Morrison, Jr., dissent andwill file a written dissent later.