No. 13059 

IN' THE SUPREME COURT OF THE STATE OF MONTANA 

19 7 5 

THE STATE OF MONTANA, 

Plaintiff and Appellant, 

-VS - 

CLARENCE STEWARD, 

Defendant and Respondent, 

Appeal from: District Court of the Eleventh Judicial District, 

Honorable Robert C. Sykes, Judge presiding, 

Counsel of Record: 

For Appellant : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

William A. Douglas, Counu Attorney, 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 

n - :! \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 Information due 

to denial of the right to a speedy trial. 

Defendant was 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 arraignment and trial 

until the conclusion of the Boyle trial. The Information charging defendant with the felony was filed on January 31, 1974. On 

February 14, 1974, defendant's attorney sent the county attorney 

a letter stating in part: 

"In that 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, appreciate your efforts to have trial in the Steward 

matter postponed until after my return. * * *" 

The nationally publicized Tony Boyle trial was completed in 

March 1974, but no further correspondence between 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 attorney which said in part: 

" * * * It is my firm 

[Steward] in the jury 

23rd day of February, 

intention to try your client 

term commencing with the 

1975. * * * 

" * * * In any event I will not permit this case 

to be put over the spring jury term." 

On February 25, 1975, defendant's attorney 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 to dismiss on the 

ground of denial of the constitutional right of speedy trial. On 

May 15, 1975, the district court dismissed the Information with 

prejudice. 

Two issues are presented for review: 

1. Was defendant denied his constitutional right to a 

speedy trial? 

2. Was the district court in error in dismissing the 

Information with prejudice thereby barring subsequent prosecution for the same offense? 

The right to a speedy trial is contained in the United 

States and the Montana Constitutions. Amendment 6 to the United 

States Constitution states: 

"In all criminal prosecutions the accused shall 

enjoy the right to a speedy and public trial * * *." 

Article 111, Sec. 16, Montana Constitution, 1889, states: 

"In all criminal prosecutions the accused shall 

have the right to * * * a speedy public trial * * *." 

Article 11, Sec. 24, 1972 Montana Constitution contains the 

identical language as Article 111, Sec. 16, Montana Constitution 

1889. 

The United States Supreme Court states in Klopfer v. 

North Carolina, 386 U.S. 213, 18 L ed 2d 1, 8, 87 S.Ct. 988, 

" * * * the right to a speedy trial is as fundamental as any 

of the rights secured by the Sixth Amendment." 

The four factors to be considered in determining whether 

a defendant has been denied his right to a speedy trial are 

set forth in Barker 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 in State ex rel. Thomas v. District Court, 151 Mont. 1, 

438 P.2d 554, based on an earlier listing of the federal criteria 
contained in United States v. Simmons, 338 F.2d 804, 807. In 

Barker Mr. Justice Powell said: 

" * * * The approach we accept is a balancing test, 

in which the conduct of both the prosecution and 

the defendant are weighed. 

"A balancing test necessarily compels courts to 

approach speedy trial cases on an ad hoc basis. 

We can do little more than identify some of the 

factors which courts should assess in determining 

whether a particular defendant has been deprived 

of his right. Though some might 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. It was stated in United States v. Rucker, 

"A delay of over one year between arrest and trial 

raises a Sixth Amendment claim of 'prima facie 

merit.' Hedgepeth v. United States, 124 U.S. App. 

D.C. 291, 364 F.2d 684 (1966). It places on the 

Government the necessity of justification, the burden of which increases with the length of delay. * * * 

When the delay approaches a year and a half, as 

in this case, the Government must provide a justification which 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 right will be 

considered in detail when the next factor is considered. The 

district court correctly ruled the overcrowded court docket would 
not mitigate the failure to provide a speedy trial. Mr. Chief 

Justice Burger stated in Strunk v. United States, 412 U.S. 434, 

" * * * Unintentional delays caused by overcrowded 

court dockets or understaffed prosecutors are 

among the factors to be weighed less heavily than 

intentional delay, calculated to hamper the defense, 

in determining whether the Sixth Amendment has been 

violated but, as we noted in [Barker], they must 

'nevertheless * * * be considered since the ultimate 

responsibility for such circumstances must rest with 

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-waiver rule", 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 

States v. Research Foundation, 155 F.Supp. 650, 654, the court 

said : 

" * * * 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 appropriate motion." 

The "appropriate motion" is a motion to dismiss for denial of 

a speedy trial. The proper.time to 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 to 
assert 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 it more difficult to prove the denial of the 

right, but: 

"Such an approach, by presuming waiver of a fundamental right from inaction, is inconsistent with 

this Court's pronouncements on waiver of constitutional rights. * * * 

"The nature of the speedy trial right does make it 

impossible to pinpoint a precise time in the process 

when the right must 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 * * *". (33 L ed 2d 114, 115) 

[See Morse 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: 

" * * * Although a great many 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: 

" * * * the Defendant's attorney would 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: 

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

of the Defendant * * *". 

The district court found the letters from defendant's 

attorney to the county attorney were: 

" * * * 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 * * *." 

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: 

" * * * A waiver of the right to speedy trial is 

not to be 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 to a speedy 

trial is not, in this day, readily to be assumed. 

Of course, waiver of that right is possible but 

mere inaction is not always automatically to be 

regarded as equating with waiver." 

This Court has held many times that all presumptions are 

in favor of the trial court's decision. State ex rel. Elakovich 

v. Zbitnoff, 142 Mont. 576, 386 P.2d 343; In re Myerls Estate, 

92 Mont. 474, 15 P.2d 846. See also: 5 C.J.S. Appeal & Error, 

S1533, p. 1025. The district court had ample opportunity to view 

the record and determine the inferences to be drawn from the 

actions of the parties. We find no substantial evidence on the 

record rebutting the presumption the district court acted properly 

in holding the actions of defendant and his attorney did not waive 

the right to a speedy trial. 

The county attorney argues defendant was not prejudiced 

due to the lapse of time between arrest and arraignment. 

In Barker, the United States Supreme Court identified 

three interests of the defendant which are to be protected by a 

speedy trial : 

" * * * (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the 

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

defense will be impaired." (33 L ed 2d 101, 118) 

The first interest of defendant was not affected by a 

lack of a speedy trial as he was released on bond within days 

of his arrest and remained free on bond. 

The second interest to be protected by a speedy trial 

may be difficult to prove, as anxiety and concern are not readily 

subject to objective evidence. The United States Supreme Court, 
on at least two occasions stated that, although the defendant 

is free on bond: 

(1) " * * * The pendency of the indictment may 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 that may seriously interfere with the defendant's liberty, whether he is 

free on bail or not, and that may 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." (United States v. Marion, 404 

U.S. 307, 30 L ed 2d 468, 478, 92 S.Ct. 455; 

cited by Mr. Justice White 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, 

statements were 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 

feelings against defendant would be expected. 

It is difficult to determine whether defendant would be 

prejudiced due to impairment of his defense as there has been no 

trial or witness testimony which might indicate a loss of memory 

regarding events of the distant past. The prosecution might also 

have its case impaired due to the loss of memory of its witnesses, 

but the greater danger of prejudice exists for an innocent defendant 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 the memory of the day in his mind. 

The county attorney argues the district court erred in 

dismissing the Information with prejudice. 

Section 95-1703(3), R.C.M. 1947, states: 
"An order for the dismissal of an action, as provided in this chapter, is a bar to other prosecution 

for the same offense if it is a misdemeanor, but 

it is not a bar if the offense is a felony." 

The predecessor statute was held constitutional by this Court 

in State v. McGowan, 113 Mont. 591, 131 P.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 dealt with dismissals due to denial of a speedy trial. 

There is no mandate in section 95-1703(3), R.C.M. 1947, 

to reprosecute should the original prosecution be dismissed due 

to denial of a speedy trial. The State may exercise discretion 

as to whether the accused will be reprosecuted. The trial court 

should possess similar discretion to disallow reprosecution if 

the prejudice caused the accused and his defense by the denial 

of a speedy trial would be compounded by a subsequent prosecution 

for the same offense. Reprosecution is constitutional, so long 

as the interests protected by the right to a speedy trial would 

not continue to be violated by the reprosecution. 

There must be guidelines for the trial court to follow 

in dismissing an Information or indictment with prejudice due 

to denial of a speedy trial. These guidelines are necessary 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 Trial Act of 1974 (Public Law 93-619) are appropriate for the Montana trial courts in determining whether to dismiss with or without prejudice: 

" * * * In determining whether to dismiss the 

case with or without 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 [right of a speedy trial] and on the administration of justice." 
When applying these factors to the instant case, as 

the factors must be examined anew on a case by case basis, 

we find the district court used proper discretion in dismissing the Information with 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 attendant prejudice to 

defendant cannot be remedied by a reprosecution. A reprosecution 

in this case would tend to negate the rights protected by the 

dismissal due to denial of a speedy trial. 

The district court's dismissal of the Information with 

prejudice is affirmed. 

J ,I Chief Justice 

We concur: 1 

Ju tices w