No. 95-459

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE OF MONTANA,

Plaintiff and Respondent,

v.

GARY ATKINS,

Defendant and Appellant.

APPEAL FROM: District Court of the Third Judicial District,

In and for the County of Powell,

The Honorable Ted L. Mimer, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Michael B. Grayson, Public Defender Project Office,

Anaconda, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, John

Paulson, Assistant Attorney General, Helena,

Montana; Christopher G. Miller, Powell County

Attorney, Deer Lodge, Montana

Filed:

Submitted on Briefs: April 4, 1996

Decided: June 25, 1996

Clerk
Justice William E. Hunt, Sr. delivered the Opinion of the Court

A jury in the Third Judicial District Court, Powell County,

found Gary Atkins (Atkins) guilty of one count of felony assault

and one count of possession of a deadly weapon by an inmate.

Atkins appeals the denial of his motion to dismiss for lack of a

speedy trial, as well as the denial of his motion for a mistrial.

We affirm.

Atkins raises the following issues on appeal:

1 . Did the District Court err by denying Atkins' motion to

dismiss the charges because his constitutional right to a speedy

trial allegedly had been violated?

2 . Did the District Court err by denying Atkins' motion for

a mistrial after "other crimes" evidence was introduced at trial?

Atkins is an inmate at the Montana State Prison at Deer Lodge.

On December 1, 1994, the unit manager for a one of the housing

facilities at the prison received information indicating Atkins

might be in possession of a "shank," which is prison vernacular for

a homemade weapon such as a knife. The unit manager directed two

correctional officers to conduct a "shakedown" of Atkins--that is,

to search him for weapons. The correctional officers stopped

Atkins on his way back frqm lunch and took him into an office.

They then informed him that the purpose of drawing him aside was to

conduct a shakedown and told him to empty his pockets. Atkins

became agitated and refused to empty his pockets or to allow the

search. He kept one hand in his pocket and admitted that he was in

fact in possession of a shank. He told the unarmed correctional

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officers to stay away from him or he would stab one of them. At

some point, he took the shank from his pocket--a sharpened piece of

chain-link fencing with a handle made of tape--and either kept it

in his hand (according to the officers) or set it on the desk and

kept his hand right above it (according to Atkins).

Atkins asked to speak to the unit manager, who spoke to him

briefly on the phone and informed Atkins that he would be right

down. The unit manager then picked up two more correctional

officers who accompanied him to the office in question. When these

officers entered the office, the shank was on the desk but Atkins

had his hand over it. As the office became more crowded, one of

the officers grabbed the shank off the desk while several others

subdued Atkins. He was then placed in handcuffs, advised of his

rights, and taken to Maximum Security.

Because of the incident, Atkins was charged with one count of

felony assault and one count' of possession of a deadly weapon by an

inmate. After trial, a jury found him guilty of both counts.

Atkins appeals

Issue 1

Did the District Court err by denying Atkins' motion to

dismiss the charges because his constitutional right to a speedy

trial allegedly had been violated?

Atkins was read his rights and transferred to Maximum Security

immediately after the incident in question occurred on December 1,

1994. On December 14, 1994, he was formally charged. The trial

began on June 26, 1995. Two weeks previously, on June 11, Atkins

moved that the charges be dismissed because he had not received a

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speedy trial. The District Court denied the motion and Atkins

appeals.

A defendant's right to a speedy trial is guaranteed by both

the Sixth Amendment to the United States Constitution and Article

11, Section 24 of the Montana Constitution. The United States

Supreme Court has set out a four-part test to determine whether a

defendant's right to a speedy trial has been violated. Barker v.

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

Court adopted the Barker test in State ex rel. Briceno v. District

Court (1977), 173 Mont. 516, 568 P.2d 162.

Under the Barker test, when deciding a speedy trial issue the

court must evaluate:

(1) the length of the delay;

(2) the reason for the delay;

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

(4) the prejudice to the defendant.

State v. Gould (1995), 273 Mont. 207, 214, 902 P.Zd 532, 537; State

v. Barker (1993), 261 Mont. 379, 382, 862 P.2d 1112, 1114.

First, if the length of delay is not long enough to be

presumptively prejudicial, no speedy trial issue is triggered and

a court need not consider the remaining three factors of the Barker

test. If however, the delay is of such duration that it is

presumptively prejudicial, the burden shifts to the State to rebut

the presumption by providing a reasonable explanation of the delay

and showing that the defendant was not prejudiced by it. ,Gould

902 P.2d at 537 (citing State v. Curtis (1990), 241 Mont. 288, 299,

787 P.2d 306, 313).
In its appellate brief, the State contends that the roughly

ZOO-day delay in this case need not be presumed to be prejudicial.

At trial, however, the county attorney informed the District Court

that "the State concedes that the length of delay here is

sufficient to require you to enter into the balancing test in

Barker v. Wingo." Since the State conceded the point at trial,

this Court will assume that the length of the delay in this case

was long enough to be presumptively prejudicial.

The second factor in the speedy trial analysis is the reason

for the delay. In this case, both parties concede that the delay

was purely institutional. Neither party cultivated delay by moving

for continuances or procedurally impeding the process of the case.

Yet, given the trial calendar of the District Court, it took

approximately 200 days to bring this matter to trial. Such

institutional delay must be charged to the State. State v. Van

Voast (1991), 247 Mont. 194, 201, 805 P.2d 1380, 1384. However,

institutional delay weighs less heavily against the State than

other kinds of delay because it is not a delay the State actively

pursued or encouraged. Van Voast, 805 P.2d at 1384 (citing Curtis,

787 P.2d at 315).

Turning to the third factor, the State concedes that Atkins

asserted his right to a speedy trial in a timely manner by moving

to dismiss on speedy-trial grounds prior to trial. State v.

Stewart (1994), 266 Mont. 525, 531, 881 P.2d 629, 633.

The fourth factor to be considered is the prejudice to the

defendant. In deciding whether a defendant was prejudiced by a

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delay, a court will assess the impact of the delay on the following

interests, which are protected by the right to a speedy trial:

(1) the preventionof oppressive pretrial incarceration;

(2) the minimization of the defendant's anxiety and

concern; and

(3) the limitation of impairment of the defense.

-,Gould 902 P.2d at 538; Barker, 862 P.2d at 1115.

It is undisputed that Atkins was incarcerated prior to trial.

However, as an inmate serving an extended sentence, he would have

remained incarcerated in any event. As this Court held in Gould,

"incarceration on a different charge negates any prejudice

resulting from incarceration while awaiting trial." Gould, 902

P.2d at 539 (citing State v. Hembd (1992), 254 Mont. 407, 413, 838

P.2d 412, 416). Nor did Atkins exhibit notable anxiety and concern

regarding the disposition of the charges. He testified that he was

inconvenienced by the charges in that he decided not to begin

taking certain classes at the Prison until the charges were

resolved, because a finding of guilt meant he would have to abandon

the classes. His concerns focused on the fact that, in his

opinion, his ability to go to school depended on an ultimate

resolution of the charges, although he was not in fact precluded

from enrolling in classes.

The record reflects that Atkins did not assert that he had

suffered any increased anxiety during the pendency of the charges.

While anxiety or distress are difficult to prove, it is nearly

impossible for the State to prove such emotional states do not

exist. Consequently, we have held that "the State's burden to show

a lack of anxiety becomes considerably lighter in the absence of

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more than marginal evidence of anxiety." Curtis, 787 P.2d at 316.

In this case, the record shows no evidence whatsoever of anxiety or

undue concern.

Atkins, however, argues that his ability to defend the charges

was impaired because one of his potential witnesses disappeared

prior to trial. Atkins wanted to subpoena a teacher from the

prison, whom he asserts would have testified regarding Atkins'

apprehension that another inmate would attack him. This in turn

would corroborate Atkins' explanation of why he made and carried

the shank. The teacher in question disappeared while the trial was

pending, and Atkins was unable to subpoena him. Atkins asserts

that his inability to have this teacher testify seriously

prejudiced his defense. The burden remains on the State to show

that Atkins was not in fact prejudiced by the teacher's failure to

testify.

At the hearing on his motion to dismiss, Atkins' testified

that he had spoken to two teachers, one male and one female,

regarding his apprehension about the other inmate. He testified,

however, that he had told the female teacher, who testified at

trial, "a little less" than he told the male teacher, who is

missing, "because I got along with him better and I trusted him

more."

Atkins planned on using the missing teacher's testimony to

substantiate his own apprehension in an attempt to justify

possession of the shank. The State points out that Atkins, without

objection, was allowed to testify to the substance of his

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conversation with the missing teacher. He further testified to the

conversation he had with the female teacher, and this was in turn

corroborated by her testimony. Thus, the jury heard uncontroverted

evidence that he had conveyed his concerns to both teachers.

Even if the missing teacher had testified, he could only have

confirmed the validity of Atkins' representations regarding the

substance of their conversation. In fact, however, the State never

challenged the validity of Atkins' testimony. The teacher's

testimony, therefore, would have been cumulative and repetitive of

Atkins' own testimony. The State has shown that the evidence which

the teacher would have presented was in fact presented by Atkins

himself, without objection. It has therefore demonstrated that the

presentation of Atkins' defense was not impaired by the teacher's

absence.

If a speedy trial inquiry is triggered, the State must either

show a reasonable excuse for the delay or show that the defendant

was not prejudiced thereby. State v. Mooney (1991), 248 Mont. 115,

118, 809 P.2d 591, 594 (citing State v. Ackley (1982), 201 Mont.

252, 653 P.2d 851). In this case, the State has shown that the

delay was purely institutional and not prejudicial to Atkins'

defense. The District Court did not err by refusing to dismiss the

charges based on lack of a speedy trial.

Issue 2

Did the District Court err by denying Atkins' motion for a

mistrial after "other crimes" evidence was introduced at trial?

During the confrontation in the prison office, a correctional

officer tried to persuade Atkins to surrender the shank, noting

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that there could be serious consequences if he refused. According

to the officer, Atkins replied that "he was doing time for two

homicides and he wouldn't be eligible for parole until he was 75,

[sol he didn't care." Before trial, the defense moved in limine to

exclude evidence of any crimes other than the ones at issue in this

case. The State agreed not to present any "other crimes" evidence,

provided the defense would stipulate that Atkins was an inmate.

During direct examination at trial, however, the correctional

officer related the substance of Atkins' comment before the jury.

Defense counsel immediately objected, and the District Court

admonished the jury to disregard the correctional officer's

comment. Defense counsel then moved for a mistrial, which motion

the District Court denied. Before deliberations, the jury was also

provided with a jury instruction again admonishing them not to

consider any other crimes but those for which Atkins was currently

on trial. On appeal, Atkins asserts that the District Court abused

its discretion by denying his motion for a mistrial. He contends

that the officer's comments were so prejudicial the District

Court's admonishment and jury instruction could not sufficiently

cure the error.

The standard of review for denial of a motion for mistrial is

whether there is clear and convincing evidence that the trial

court's ruling was erroneous. State v. Greytak (1993), 262 Mont.

401, 404, 865 P.2d 1096, 1098 (citing State v. Benton (1992), 251

Mont. 401, 404, 825 P.2d 565, 567-68). A district court properly

grants a motion for a mistrial only when a manifest necessity

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exists to do so. Grevtak, 865 P.Zd at 1098; State v. seaman

(1989), 236 Mont. 466, 475, 771 P.2d 950, 956.

In this case, the correctional officer's reference to Atkins'

criminal record surprised the State as well as the defense. Atkins

does not allege that the State purposely elicited the testimony,

but, nevertheless, the jury heard it. Atkins asserts that the fact

that the jury heard this testimony is reversible error because the

comment was so prejudicial that "[al jury could not and will not

forget or disregard [it-l .I' He speculates that the jury disregarded

both the District Court's admonishment and the specific jury

instruction. Speculation, however, is not the clear and convincing

evidence necessary to reverse a district court's denial of a motion

for a mistrial.

In any event, any declaration, act, or omission which itself

forms part of the transaction in dispute is admissible. Section

26-l-103, MCA. As we held in State v. Wing (1994), 264 Mont. 215,

224, 870 P.2d 1368, 1375, "[wlhether an act is referred to as part

of the res gestae or as part of the 'transaction,' that act is

evidence which is part of the same litigated event." In this case,

Atkins' reference to his existing sentence took place during the

short stand-off in the prison office. It explained why he was

indifferent to the consequences of his actions and why he would not

peacefully surrender. Evidence which is closely related to and

explanatory of the offense may be admissible. Winq, 870 P.2d at

1374 (citing State v. Cameron (1992), 255 Mont. 14, 20, 839 P.2d

1281, 1285). Accordingly, even if the jury considered the disputed

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evidence despite the District Court's admonishment and jury

instruction not to do so, such consideration is not reversible

error.

Affirmed.

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