No. 13059 IN'THE SUPREME COURT OF THE STATE OF MONTANA 19 

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THE STATE OF MONTANA, Plaintiff and Appellant,

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# - CLARENCE STEWARD, Defendant and Respondent,

Appeal from: DistrictCourt of the Eleventh Judicial District, Honorable Robert C. Sykes, Judge presiding, Counsel of Record: For Appellant: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana WilliamA. Douglas, CounuAttorney, argued,

Libby, Montana Ann C. German, Law Student, argued, Missoula, Montana For Respondent: Moses, Kampfe, Tolliver and Wright, Billings,

Montana D. Frank Kampfe argued, Billings, Montana

Submitted: November 10, 1975

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### \31iB Decided:

## fil; Filed: % L ." I '.>Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. This is an appeal from an order of the district court, Lincoln County,dismissing with prejudice an Informationdue to denial of the right to a speedy trial. Defendantwas charged and arrested on January 10, 1974 for lewd and lascivious acts against children, a felony under former section 94-4106,R.C.M. 1947. He was released on $25,000 bond within the week and has been free on bond since that time. On January 16, 1974,the Lincoln County attorney received a call from defendant's attorney notifying the county attorney that he would be involved in the Pennsylvania murder trial of Tony Boyle and requesting a postponement of defendant's arraignmentand trial until the conclusion of the Boyle trial. The Information charging defendant with the felonywas filed on January 31, 1974. On February 14, 1974,defendant's attorney sent the county attorney a letter stating in part: "Inthat I am involved in the Tony Boyle case, I anticipate being out of the office on a continuous basis from next week until the 1st part of June, 1974. I would therefore, appreciateyour efforts to have trial in the Steward matter postponed until after my return. 

## * * *" The nationallypublicized Tony Boyle trial was completed in March 1974,but no further correspondencebetween the county attorney and defendant's attorney appears on the record until a letter dated January 28, 1975, from the county attorney to defendant's attorneywhich said in part: 

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## * * * It ismy firm [Steward] in the jury 23rd day of February, intention to try your client term commencing with the 1975. 

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## * * * In any event I will not permit this case to be put over the spring jury term." On February 25, 1975,defendant'sattorney responded, indicating he would appear with defendant at the arraignment and would file unspecified pretrial motions.The arraignment was set for March 13, 1975, but on March 12, 1975, defendant's attorney filed a motion todismiss on the ground of denial of the constitutional right of speedy trial. On May 15, 1975, the districtcourt dismissed the Information with prejudice. Two issues arepresented for review: 1. Was defendant denied hisconstitutional right toa speedy trial? 2. Was the districtcourt inerror indismissing the Information with prejudice thereby barring subsequent prosecution for the same offense? The right toa speedy trial iscontained inthe United States and theMontana Constitutions. Amendment 6 totheUnited StatesConstitution states: "In allcriminal prosecutions the accused shall enjoy the right toa speedy and public trial

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## *." Article 111, Sec. 16, Montana Constitution, 1889, states: "In allcriminal prosecutions the accused shall have the right to

## * * * a speedy public trial

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## *." Article 11, Sec. 24, 1972 Montana Constitution contains the identical language asArticle 111, Sec. 16, Montana Constitution 1889. The United States Supreme Court states inKlopfer v. North Carolina, 386 U.S. 213, 18 L ed 2d 1, 8, 87 S.Ct. 988, 

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## * * theright toa speedy trial is asfundamental asany of the rights secured by the SixthAmendment." The four factors tobe considered indetermining whether

a defendant has been denied hisright toa speedy trial are set forth inBarker v. Wingo, 407 U.S. 514, 33 L ed 2d 101, 114, 116, 118, 121, 92 S.Ct. 2182. This Court adopted the Barker factors inStateex rel. Thomas v. District Court, 151Mont. 1, 438 P.2d 554, based on an earlier listingof the federal criteriacontained in United Statesv. Simmons, 338 F.2d 804, 807. In Barker Mr. Justice Powell said: 

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## * * * The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed. "Abalancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do littlemore than identify some of the factorswhich courts should assess in determining whether a particular defendant has been deprived of his right. Though somemight express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Unless there is a presumptively prejudicial delay, there is no necessity to inquire as to the other factors that go into the balance. In the instant case defendant was charged and arrested

on January 10, 1974, the arraignment was not scheduled until March 13, 1975, a period of 406 days, and the date of the trial had still not been set. Itwas stated in United Statesv. Rucker,

"Adelay of over one year between arrest and trial raises a SixthAmendment claim of 'prima facie merit.' Hedgepeth v. United States, 124 U.S. App. D.C. 291, 364 F.2d 684 (1966). Itplaces on the Government the necessity of justification, the burden of which increases with the length of delay. 

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## * When the delay approaches a year and a half, as in this case, the Governmentmust provide a justificationwhich convincingly outweighs the prejudice which can normally be assumed to have been caused the defendant." The delay of 406 days in this case is sufficient to trigger the inquiry mechanism to determine whether defendant was denied a speedy trial. The State alleges the reason for the delay was two-fold: Defendant's failure to assert his right to a speedy trial and the crowded trial docket which would not have allowed a trial during 1974. Defendant's failure to assert his rightwill be considered in detail when the next factor is considered. The district court correctly ruled the overcrowded court docket wouldnot mitigate the failure to provide a speedy trial. Mr. Chief Justice Burger stated in Strunk v. United States, 412 U.S. 434,



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## * * Unintentional delays caused by overcrowded court dockets or understaffed prosecutors are among the factors to be weighed less heavily than intentionaldelay, calculated to hamper the defense, in determining whether the SixthAmendment has been violated but, as we noted in [Barker], they must

'nevertheless

## * * * be considered since the ultimate responsibility for such circumstances must restwith the government rather than with the defendant.'" The State alleges defendant here waived his right to a speedy trial by his failure to assert his right until the day before the arraignment in March 1975,and by the request of his attorney for a postponement of the trial. The State appears to argue the "demand-waiverrule", i.e. unless the accused demands

a speedy trial, he waives his right. The "demand-waiver rule"was specifically rejected in Barker in favor of the four factors test. The general rule remains that an accused must take some affirmative action to obtain a trial to be entitled to a discharge for delay. 22A C.J.S. Criminal Law, 5469,p. 37. In United Statesv. Research Foundation, 155 F.Supp. 650, 654, the court said: 

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## * * * The burden is on the defendant to assert his constitutional right by some affirmative act in court, such as, objecting to adjournments of the trial,demanding a trial, or making an appropriatemotion." The "appropriate motion" is a motion to dismiss for denial of

a speedy trial. The proper.timeto assert the right to a speedy trial is prior to the actual commencement of the trial, usually at the time the trial date is set, or the time the case is called to trial. Morse v. Municipal Court, et., 13 C.3d 149, 529 P.2d 46, 118 Cal.Rptr. 14. Defendant, in the instant case,made his motion to dismiss at the proper time. The U. S. Supreme Court in Barker, said the failure toassert the right will make it difficult for a defendant to prove that he was denied a speedy trial. Also, inaction by the accused will make itmore difficult to prove the denial of the right, but: "Suchan approach,by presuming waiver of a fundamental right from inaction, is inconsistentwith this Court's pronouncements on waiver of constitutional rights. 

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## * * "Thenature of the speedy trial right does make it impossible to pinpoint a precise time in the process when the rightmust be asserted or waived, but that fact does not argue for placing the burden of protecting the right solely on defendants. A defendant has no duty to bring himself to trial; the State has that duty 

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## *". (33L ed 2d 114, 115)

[SeeMorse for the last possible time when the right should be asserted.] Mr. Chief Justice Burger earlier in Dickey v. Florida, 398 U.S. 30, 26 L ed 2d 26, 32, 90 S.Ct. 1564 stated: 

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## * * * Although a greatmany accused persons seek to put off the confrontation as long as possible, the right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial." This position was reaffirmed in Strunk. The district court here was correct in holding: 

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## * * * the Defendant'sattorneywould not be representing the Defendant if he would raise the question of the fair speedy trial. This was incumbent upon the County Attorney to do so under the circumstances." The district court found no waiver of defendant's rights: 

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## * * * nor any consent to extending the constitutional basis for a speedy trial by jury on the part of the Defendant

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## *". The district court found the letters from defendant's attorney to the county attorney were: 

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## * * * no indication of an intention to waive or extend or consent to an extension of the time for a speedy and impartial trial by jury 

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## *." There is a presumption against waiver of the right to 

# A speedy trial. Barker. The general rule as stated in ~~/c.J.S.criminal Law S477, p. 70 is: 

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## * * * A waiver of the right to speedy trial is not tobe lightly inferred from equivocal circumstances. " In Hodges v. United States, 408 F.2d 543, 552, it was stated: "A defendant's waiver of his right toa speedy trialisnot, inthisday, readily tobe assumed. Of course, waiver of that right ispossible but mere inaction isnot always automatically tobe regarded asequating with waiver." This Court has held many timesthat allpresumptions are in favor of the trialcourt's decision. Stateex rel. Elakovich

v. Zbitnoff, 142Mont. 576, 386 P.2d 343; In re MyerlsEstate, 92 Mont. 474, 15P.2d 846. See also: 5 C.J.S. Appeal & Error, S1533, p. 1025. The districtcourt had ample opportunity toview the record and determine the inferences tobe drawn from the actionsof the parties. We find no substantial evidence on the record rebutting thepresumption the districtcourt acted properly inholding the actions of defendant and his attorney did not waive the right toa speedy trial. The county attorney argues defendant was not prejudiced due to the lapse of timebetween arrestand arraignment. In Barker, the United States Supreme Court identified three interestsof the defendant which are tobe protected by a speedy trial: 

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## * * * (i) toprevent oppressive pretrial incarceration; (ii) tominimize anxiety and concern of the accused; and (iii)tolimitthe possibility that the defense willbe impaired." (33L ed 2d 101, 118) The firstinterest of defendant was not affectedby a lack of a speedy trial as he was released on bond within days of his arrest and remained freeon bond. The second interest tobe protected by a speedy trial may be difficulttoprove, asanxiety and concern arenot readily subject toobjective evidence. The United States Supreme Court,on at least two occasions stated that, although the defendant is free on bond: (1) 

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## * The pendency of the indictmentmay subject him to public scorn and deprive him of employment, and almost certainly will force curtailment of his speech, associations and participation in unpopular causes." (Klopfer

### v. North Carolina, 386 U.S. 213, 18 L ed 2d 1, 7, 87 S.Ct. 988) (2) "Arrest is a public act thatmay seriously interferewith the defendant's liberty,whether he is free on bail or not, and thatmay disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy,and create anxiety in him, his family and his friends." (UnitedStatesv. Marion, 404 U.S. 307, 30 L ed 2d 468, 478, 92 S.Ct. 455; cited by Mr. JusticeWhite in his concurring opinion in Barker.) See also: Moore 

### v. Arizona, 414 U.S. 25, 38 L ed 2d 183, 94

The record is bare of facts on anxiety and concern caused defendant, but during oral argument and in the briefs submitted, statementswere made indicating a number of the interferences with defendant's liberty set forth in Klopfer and Marion had occurred to defendant. Given the nature of the charges,public and private feelingsagainst defendantwould be expected. It is difficult to determinewhether defendantwould be prejudiced due to impairment of his defense as there has been no trial or witness testimonywhich might indicate a loss of memory regarding events of the distant past. The prosecutionmight also have its case impaired due to the loss of memory of its witnesses, but the greater danger of prejudice exists for an innocentdefendant who might, through lapse of time, be unable to accurately recall events on a certain day when there was no remarkable or memorable occucrences to etch thememory of the day in hismind. The county attorney argues the district court erred in dismissing the Informationwith prejudice. Section 95-1703(3), R.C.M. 1947, states:"An order for the dismissal of an action, asprovided in this chapter, is a bar toother prosecution for the same offense if it isa misdemeanor, but it isnot a bar if the offense is a felony." The predecessor statutewas held constitutional by thisCourt in Statev. McGowan, 113Mont. 591, 131P.2d 262,and this holding

was reaffirmed in State ex rel. Keast v. District Court, 135 Mont. 62, 336 P.2d 699. Both McGowan and Keast dealtwith dismissals due todenial of a speedy trial. There isno mandate in section 95-1703(3), R.C.M. 1947, to reprosecute should the original prosecution be dismissed due todenial of a speedy trial. The Statemay exercise discretion

as towhether the accused willbe reprosecuted. The trialcourt should possess similar discretion todisallowreprosecution if the prejudice caused the accused and hisdefense by the denial of a speedy trialwould be compounded by a subsequent prosecution for the same offense. Reprosecution is constitutional, so long

asthe interestsprotected by the right toa speedy trialwould not continue tobe violated by the reprosecution. There must be guidelines for the trialcourt tofollow in dismissing an Information or indictment with prejudice due todenial of a speedy trial. These guidelines arenecessary because a dismissal with prejudice should only be granted if serious harm would be inflicted on the accused's rights by a reprosecution. The guidelines given the federal court system in 18 U.S.C. $3162(a)(2) of the Speedy TrialAct of 1974 (PublicLaw 93-619) areappropriate for the Montana trialcourts indetermining whether todismisswith orwithout prejudice: 

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## * * * In determining whether todismiss the case with orwithout prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the [rightof a speedy trial] and on the administration of justice."When applying these factors to the instant case, as the factorsmust be examined anew on a case by case basis,

we find the district court used proper discretion in dismissing the Informationwith prejudice. The offense is not of such

a serious nature as to require reprosecution for the protection of society. The 406 day delay and the attendantprejudice to defendant cannotbe remedied by a reprosecution. A reprosecution in this casewould tend to negate the rightsprotected by the dismissal due to denial of a speedy trial. The district court's dismissal of the Informationwith prejudice is affirmed. 

# J ,I Chief Justice We concur: 1

Ju tices 

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