No. 92-496 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

STATE OF MONTANA, 

Plaintiff and Respondent, 

BRIAN E. BARKER, 

Defendant and Appellant. 

APPZAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Larry W. Moran, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William F, Hooks, Attorney at Law, Appellate 

Defender Office, Helena, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

Elizabeth L. Griffing, Assistant Attorney 

General, Helena, Montana; Mike Salvagni, 

Gallatin County Attorney, Gary T. Balaz, 

Deputy County Attorney, Bozeman, Montana 

Filed: 

Submitted on Briefs: June 10, 1993 

Decided: November 2, 1993 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Brian E. Barker appeals from a judgment of the District Court 

for the Eighteenth Judicial District, in Gallatin County, in which 

he was convicted of the offense of felony theft. Prior to trial, 

Barker had twice moved the court to dismiss for lack of a speedy 

trial, but these motions were denied. He appeals on the basis that 

he was denied his constitutional right to a speedy trial. 

We reverse the conviction and dismiss. 

The dispositive issue is whether Barker was denied his right 

to a speedy trial as guaranteed by the Sixth Amendment to the 

United States Constitution and Article 11, Section 24, of the 

Montana Constitution when his case did not go to trial until over 

400 days after his arrest. 

Barker was arrested May 9, 1991, and charged by information on 

May 28, 1991, with felony theft. He was incarcerated in the 

Gallatin County jail until his arraignment on June 6, 1991, at 

which time he entered a plea of not guilty. Barker was then 

transferred to the Yellowstone County Detention Center for an 

unrelated offense and was ultimately incarcerated at the Montana 

State Prison for that offense. 

Trial of the felony theft charge was set for October 3, 1991. 

Barker filed several pretrial motions on September 12, after which 

the District Court, on its own motion, vacated the October 3 trial 

and rescheduled the trial for November 19, 1991. On October 31, 

the court again vacated the trial date on its own motion and trial 

was reset for January 21, 1992. 
On January 2, 1992, Barker filed a motion to dismiss the case 

on the ground that his right to a speedy trial under the State and 

Federal Constitutions had been violated. At that time, 257 days 

had elapsed between Barker's arrest and the pending trial. 

Following a hearing on January 13, 1992, the court denied the 

motion to dismiss, noting that the delay was caused by 

"institutional diffi~ulties.~ 

The January 21, 1992, trial date was then continued. Neither 

party requested a continuance and the District Court file is 

unclear regarding the reason for postponement. However, the court 

later stated that the trial had been continued due to a crowded 

court calendar and a conflict with another trial on that date. 

When no trial date was set, Barker filed a second motion on 

April 23, 1992, to dismiss the case for violation of his right to 

a speedy trial. By then, 354 days had elapsed since his arrest. 

A hearing on the motion to dismiss was held on June 15, 1992. The 

prison psychiatrist and two prison officials testified that Barker 

was experiencing high levels of stress and anxiety, and that the 

pending Gallatin County charges had impacted Barker's eligibility 

for transfer to a pre-release program. Barker also testified that 

he had waived a parole hearing set for April 1992, because he had 

been told the parole board would not consider parole due to the 

pending charges. 

The District Court denied the motion to dismiss and attributed 

the delay of Barker's trial date to a "heavy trial calendar." The 

court found no prejudice as a result of the delay because Barker 
was already incarcerated for a different offense. Furthermore, it 

stated that there was no definitive proof that Barker's stress and 

anxiety had been caused by the pending felony theft charge, as 

opposed to the stress experienced from being incarcerated. 

Barker's case finally went to trial on June 24, 1992, and the 

jury returned its verdict on June 25, finding Barker guilty of 

felony theft as defined in S 45-6-301(1), MCA. Barker was 

sentenced to ten years in the Montana State Prison with five years 

suspended, the sentence to run consecutively to the prison term 

that Barker was already serving. From that judgment, Barker 

appeals. 

Was Barker denied his right to a speedy trial as guaranteed by 

the Sixth Amendment to the United States Constitution and 

Article 11, Section 24, of the Montana Constitution when his case 

did not go to trial until 412 days after his arrest? 

The right of any defendant to a speedy trial is guaranteed by 

the Federal and Montana Constitutions. U.S. Const. amend. VI; 

Mont. const. art. 11, 5 24; State v. Hall (asgo), 244 Mont. 161, 164, 

797 P.2d 183, 185. The test used to determine whether the 

constitutional right to a speedy trial has been violated was set 

forth in Barker v. Wngo (l972), 407 U.S. 514, 92 S. Ct. 2182, 33 

L. Ed. 2d 101, and was adopted by this Court in Briceno v. District Court 

(1977), 173 Mont. 516, 518-19, 568 P.2d 162, 163-64. When a speedy 

trial issue is presented, the court must evaluate and balance the 

following four factors: 
1) length of delay; 

2) reason for delay; 

31 assertion of the right by the defendant; and 

4) prejudice to the defendant. 

State v. Heffenian (1991), 248 Mont. 67, 70, 809 P.2d 566, 567. No 

single factor is determinative, and each factor is weighed in light 

of the surrounding facts and circumstances. State v. Van Voast (1991) , 

247 Mont. 194, 200, 805 P.2d 1380, 1384. 

The parties agree that Barker sufficiently asserted his right 

to a speedy trial, thereby satisfying the third prong of Barker. 

Therefore, the factors to be evaluated and balanced in this 

instance are the length and reason for delay, and whether Barker 

was prejudiced by the delay. This Court has made clear that the 

length of delay acts as a "triggering" mechanism, and the other 

enumerated factors need not be examined unless presumptive 

prejudicial delay is present. State v. Scott (Mont. 1993) , 850 P. 2d 286 

50 St. Rep. 353; Van Voast, 805 P.2d at 1384. Here, the State 

concedes that the 412 days from the date of arrest to trial is 

sufficient delay to trigger the remainder of the speedy trial 

analysis and to give rise to a rebuttable presumption of prejudice. 

The State further concedes that, because of the presumption of 

prejudice, it has the burden of providing a reasonable explanation 

for the delay and showing that Barker was not prejudiced by the 

delay. SeeStatev. Curtis (1990), 241 Mont. 288, 787 p.2d 306; VanVoast, 

805 P.2d at 1384; Hall, 797 P.2d at 186. 

5 
This Court's analysis, therefore, focuses on whether the 

state met its affirmative duty to come forward with evidence to 

show that there was a reasonable excuse for the delay and that 

Barker was not prejudiced by the delay. 

When analyzing the reason for delay, a court must balance the 

State's actions against those of the defendant. In this case, 

citing Slate v. Hernbd (3.9921, 254 Mont. 407, 838 P.2d 412, the State 

contends that the cause for the delay was purely institutional, and 

although chargeable to the State, it should be given only minimal 

weight when balancing the Barker factors. The State asserts that 

there is nothing in the record to indicate that the State 

intentionally delayed the trial to gain some tactical advantage 

over Barker, or to harass him, which are the types of oppressive 

tactics that the right to a speedy trial is designed to protect 

against. 

There is no question in this instance that Barker was not 

responsible for any of the delay. He did not once ask for, nor 

acquiesce in the continuances. He consistently opposed them by 

twice asserting his right to a speedy trial. Although we agree 

that an institutional delay weighs less heavily than other kinds of 

delays in the balancing process, the record here establishes only 

minimal justification for this lengthy delay, other than the fact 

that the court had a crowded calendar. 

A review of the record yields no evidence that the State 

attempted to reschedule the trial after the first two dates were 
continued by the court. Although this delay may have been 

unavoidable due to institutional reasons, this does not mean that 

the State is relieved of its responsibility and the duty to bring 

an accused to trial in a timely manner. Stazev. Wornbolt (1988), 231 

Mont. 400, 753 P.2d 330. Nor does the fact that Barker was already 

incarcerated for other reasons serve as a justification for failing 

to bring this case to trial for well over a year. 

With regard to the continuance of the January 21 trial date, 

although unclear, the record suggests that Barker's trial was 

preempted by another trial. However, the State has neither 

presented evidence with respect to the circumstances surrounding 

the other trial, nor has it offered any other reasons for the 

indefinite postponement. What is clear from the record is that no 

affirmative efforts were made by the State to move for another 

trial setting. 

Because the State was unable to demonstrate either compelling 

circumstances to warrant such a lengthy delay, or that it 

diligently pursued bringing Barker's case to trial, we conclude 

that, in this instance, the delay weighs heavily against the State. 

We now turn to the question of prejudice. Where the trial in 

a criminal proceeding has been delayed, the court must consider the 

following interests which are protected by the right to speedy 

trial: (1) prevention of oppressive pretrial incarceration, 

(2) minimization of the defendant's anxiety and concern, and 
(3) avoidance of impairment of the defense. Barker, 407 U.S. at 

532; Van Voast, 805 P.2d at 1384. 

Barker reiterates that the length of delay in this instance 

gives rise to a rebuttable presumption of prejudice. He also 

contends that the record adequately demonstrates that he was 

prejudiced by the pretrial incarceration and that he suffered 

anxiety and concern due to the delay. 

Barker does not assert that his pretrial incarceration was 

attributable solely to the pending charges, but he argues that the 

delay resulted in significant and oppressive impacts with respect 

to his incarceration. Although we stated in Hernbd, 838 P.2d at 

416, that the defendant's incarceration on another charge negated 

any prejudice arising from being incarcerated awaiting trial, we 

conclude, after reviewing the record in this instance: that there 

is evidence that the pending charges did affect Barker's 

eligibility for pre-release and parole. The State's only rebuttal, 

however, is its contention that Barker was not able to definitively 

show that he would have been eligible for a pre-release program in 

the absence of the felony theft charges. We agree there is no 

proof that Barker would have been eligible for a pre-release 

program. However, Barker did not have the opportunity to test his 

eligibility due to the pending charges. Therefore, this assertion 

by the State does not satisfy its burden of demonstrating that 

Barker was not prejudiced by being incarcerated while awaiting 

trial. 
Finally, Barker contends that the record contains ample 

evidence that he suffered anxiety and concern over the pending 

charges. The State relies on the District Court's finding that 

"the causes of the defendant's anxiety cannot be determined with 

any degree of certainty, and the anxiety cannot be attributed to 

the pendency of this case." The argument that there is no proof of 

prejudice in the record is not persuasive. It is the State's 

burden to prove that Barker was prejudiced and it has offered 

no evidence to establish that fact. 

After considering the circumstances of this case and carefully 

balancing the Barker factors, we conclude that the State has failed 

to satisfy its burden of rebutting the presumption of prejudice and 

demonstrating a reasonable excuse for the delay. Therefore, we 

hold that Barker's constitutional right to a speedy trial was 

violated. The U.S. Supreme Court has made clear that the remedy 

for a violation of one's right to a speedy trial is reversal of the 

conviction and dismissal. Stmnk v. United States (1973), 412 U.S. 434, 

93 S. Ct. 2260, 37 L. Ed. 2d 56. On this basis, we reverse the 

judgment of the District Court and dismiss the charges that are the 

subject of this appeal. 
We concur: 
November 2. 1993 

CERTIFICATE OF SERVICE 

I hereby certifl that the following order was sent by United States mail, prepaid, to the following 

named: 

William F. Hooks 

Appellate Defender 

P. 0. Box 200145, Capitol Station 

Helena, MT 59620-0145 

Hon. Joseph P. Mazurek, Attorney General 

, Assistant 

215 N. Sanders, Justice Bldg. 

Helena, MT 59620 

A. Michael Salvagni 

County Attorney 

615 S. 16th St. 

Bozeman, MT 59715 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA