NO. 90-504 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

STATE OF MONTANA, Plaintiff and Respondent, 

### APR

### 221991 TIMOTHY W. MOONEY, 1 

### G' -,I bd3m~th CLERKOFSUPREMECOURT Defendant and Appellant. STATEOFMONTANA TIM0---- ..- -------, uu J~LL

# + CLERKOFSUPREMECOURT Defendant and Appellant. STATEOFMONTANA APPEAL FROM: District Court of the Third Judicial District, In and for the County of Powell, The Honorable Ted L. Mizner, Judge presiding.

COUNSEL OF RECORD: For Appellant: C. F. Mackay; Anaconda, Montana For Respondent: Marc Racicot, Attorney General; Paul D. Johnson, Assistant Attorney General, Helena, Montana; Christopher G. Miller; Deer Lodge, Montana

Submitted on Briefsl February 28, 1991 Decided: April 22, 1991 Filed:JusticeTerry N. Trieweilerdelivered the Opinion of the Court. Appellant, Timothy W. Mooney, was convicted, following a jury trial in the District Court for the Third Judicial District, Powell County, of felony assault in violation of 5 45-5-202(2)(c)

### , MCA. From that convictionhe appeals. We affirm. The only issue raised on appeal is: Did the District Court err in refusing defendant's motion to dismiss for lack of a speedy trial? SUMMARY OF FACTS On June 15, 1989, the District Court issued its Order granting leave to file an information charging the defendant with felony assault. Leave had been sought based upon the State's allegation that on May 23, 1989, while an inmate at the Montana State Prison, Mooney had knowingly and purposefully caused bodily injury to a correctional officer whose name was Tallon Miller. The information

was filed on that same date. On June 22, 1989, defense counsel appeared in court on behalf of thedefendant. At that time the defendantrequested apsychiatric examinationand asked that his arraignmentbe continued until receipt of the psychiatrist's report. That order was granted. The psychiatric reportwas submitted on October 10, 1989. This

casewas then set for trial on November 30, 1989. The clerk of court'snotes dated November 30, reflect that the defendant had not been able to decide until the previous Tuesday 1whether to plead guilty or go to trial. On that basis,his attorney represented to the court that he was unprepared to go to trial, and the trial date was vacated. The clerk's notes also reflect that at that time defendant's attorney represented to the court that there would not be a ''speedytrial1'problem. This case was next scheduled for trial and was actually tried

on March 26, 1990. On March 21, four days before trial, defendant moved todismiss the complaintagainsthim for the reason that he had been denied his constitutional right to a speedy trial. That motion

was denied. OnMarch 26, 1990,the State called fourwitnesses and concluded its case by noon. Defendant's case was concluded by 2:25 p.m., and the jury returned a verdict of guilty by 5:00 p.m. that same day. There is no indication in the record that the State in any way contributed to the delay that occurred from November 30, 1989,until March 26, 1990, when this case actuallywent to trial. It appears to have been a purely institutional delay as a result of the normal

occurrence of the criminal trial calendar in Powell County. The record also reflects that at the time of the actswhich form the basis of the complaint against the defendant he was an inmate at the Montana State Prison housed in maximum security; he was not eligible tobe considered forparole until June 1990;and the soonest he could have been released from his original imprisonment was August 26, 1990.SPEEDY TRIAL ANALYSIS The right to a speedy trial is guaranteed by the Sixth Amendment 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 L.Ed.2d 1. The right to a speedy trial is also guaranteed by Article 11, Section 24, of the 1972 Montana Constitution. Todetermine whether adefendant's righttoa speedytrial has been violated, the United States Supreme Court has set forth several factors which should be considered. Barker 

### v. Wingo (1972), 407U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. These factors have been applied by this Court on numerous occasions. Statev. Steward (1975), 168 Mont. 385, 543 P.2d 178; Statev. Keller (1976)

### , 170Mont. 372, 553 P.2d 1013; Stateex rel. Briceno v. DistrictCourt (1977),173 Mont. 516, 568 P.2d 162. The four factors that are to be considered and balanced are: 1. length of delay; 2. reason for delay; 3. assertion of the right by defendant;and 4. prejudice to the defendant. However, none of the four factors are either necessary or sufficient conditions in the determination of whether there has been a deprivation of the right to a speedy trial. Barker, 407 U.S. at 533. This Court has stated: 3

# . . . that the first of the

### Barker factors, the length of delay, is the trigger to a speedy trial inquiry. There is no need to examine the latter three factors unless some delay deemed presumptively prejudicialhasoccurred. Statev. Palmer (1986), 223 Mont. 25, 27, 723 P.2d 956, 958. The appellant contends that the delay dates from his arrest

on May 23, 1989, and continues to the date of trial on March 26, 1990, for a total of 307 days. The State contends that when an accused is already in prison for a prior offense,the speedy trial clock does not begin to run until formal charges are filed. From that starting point, the State suggests that the total delay that occurred in this case is 284 days. It is not necessary to decide in this case whether the total delay is calculated from the date of Mooneylsarrest or the date on which he was formally charged. By either calculation the total delay was sufficient to trigger a speedy trial inquiry. See, Palmer, 723 P.2d at 958. Having triggered the I1speedytrial1'inquiry based upon the unusual lengthof delay in this case,the Statemust eitherprovide

a reasonable excuse for the delay or show that the defendant was notprejudiced thereby. Statev. Ackley (1982), 201Mont. 252, 653 P.2d 851. In considering those factors,we will proceed with the remainder of the Barker test. The second Barker factor is the reason for delay. Theperiod of delay attributable to thedefendant's actions shouldbe deductedfrom the total delay in determiningwhether itwas an unreasonable period. 

### In Palmer we found that the length of delay caused by a defense request for a mental evaluation was attributable to the defendant. Palmer, 723 P.2d at 958. In this case, a mental evaluationwas requestedby the defendant onJune 22, 1989,and the evaluation was provided to the court on October 10, 1989. The evaluation resulted in a delay of 110 days. In State v. Dess (1979), 184 Mont. 116, 124, 602 P.2d 142, 146,we held that delay which resulted from the defendant'smotion to continue the trial date was also attributable to the defendant. 

### In this case, trial was originally set for November 30, 1989, and

was continued at the request of the defendant. It was next scheduled forMarch 26, 1990. There is no evidence that the length of the continuance was caused by any conduct on the part of the State. The length of that delay was 116 days. Therefore, if we accept the length of delay as 307 days, as suggested by the defendant, 226 of those days were necessitated by the defendant's exercise of his procedural rights. Eighty-one days are attributable to the State. Of those 81 days, there is no evidence to suggest, nor does the defendant contend, that they were caused by bad faith or oppressive tactics by the State. No one would suggest that defendant should waive his procedural rights for a speedy trial or that institutional delays are acceptable if they result inprejudice to the defendant. However, 5institutional delays, and delays which are attributable to the defendant, weigh less heavily against the State in the balancing process to which we initially referred. The third factor under Barker is "assertion of the right by the defendant. In this case, even though defendant at one time suggested thathe would not raise a "speedy trialr1 issue,and even though itwas not raised until four days prior to trial, the State concedes that the defendant made a timely assertion of his right to a speedy trial. Based upon previous decisions of this Court, it appears that defendant's assertion of his right was timely. 

## a, Steward, 543 P.2d at 182. However, future litigants are reminded that in the past failure to object to lack of a speedy trial until the eve of trial shows a lack of actual interestwhich should be considered in balancing the Barker factors. State v. Carden (1977), 173 Mont. 77, 566 P.2d 780; 626 F.2d 82 (9th Cir. 1980), cert. denied 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473. The final Barker factor is "prejudice to the defendant." In Barker, theUnited States Supreme Court identified three interests of a defendant which may be prejudiced by a delay in coming to trial. The interests are: (1) to prevent oppressive pretrial incarceration; (2) tominimize anxiety and concern of the accused; and (3) to limit thepossibility that thedefensewill be impaired. Barker, 407 U.S. at 532.Applying those factors to this case we find that, regardless of how the various periods of delay are attributed, the total length of delay did not prejudice the defendant. First ofall,there wasnopretrial incarcerationattributable to these charges. Mooney was already in prison on an unrelated conviction and would have remained in prison on that conviction beyond the date on which this case was tried. It is true that where the circumstances of imprisonment change for the worse because of subsequent charges pretrial incarceration can be a factor causing prejudice to the defendant, even though he would have remained inprison under other circumstances during that same period of time. Smithv. Hooey (1969), 393U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607. However, the evidence in this case is that defendant had been housed in maximum security at the time of the offense with which he was charged and that he remained in maximum security. There is no evidence in the record regarding any rights, privileges, orbenefits that were lostby the defendantas a result of the chargeswhich were pending against him. Second, there is nothing in the record to indicate that the time involved in coming to trial caused any additional or unusual anxiety and concernto thedefendant. It ispresumed that in every case, a person who has felony charges pending against him will experienceanxiety and concernbecause of those charges. However, there is no evidence that in this case those feelings were aggravated or made worse by conduct on the part of the State or 7because of the length of time that occurred from the time of defendant's arrest until his trial. The finalandmost important consideration indeciding whether there was prejudice to the defendant is the consideration of whether his defense was impaired by the delay. We conclude that it was not. The State called three correctional officers and the prison

nurse as witnesses at the time of trial. In essence, they testified that onMay 23, 1989,thedefendantwas released fromhis cell in themaximum security section of theprison so that he could go to the shower room for a shower. Tallon Miller, who was a correctional officer, was present in the shower room. The defendant grabbed him by the collar and punched him in the head. As a result of the blow, Miller developed a painful bump on his head.Thedefendantdid notdeny thathe assaultedMiller. Instead, he called three other inmates as witnesses. All of them were housed in the samemaximum security cell block in which defendant

was housed at the time of his alleged offense. They described an incidentthat occurred severaldaysprior toMay 23whenMiller was bringing food to the defendant. They testified that Miller appeared to spit into the food before passing the tray to the defendant;thatdefendant rejected the tray;and thatMiller called the defendant a llpunk.ll They testified that the term 'lpunk"is an extremely derogatory term inprison vernacular,and that ifMooney 8had failed to respond, his failure would have exposed him to ridicule and potential abuse from other inmates. In spite of this evidence, the jury found that Mooneylsconduct was unjustified. There is no evidence that Mooney would have called witnesses who were unavailabledue to thepassage of time or thathe had any evidence to offer other than that which was offered. For these

reasonswe conclude thathis defensewas in no way impaired by the passage of time. We hold that under the four-factor balancing test of Barker, Mooney wasnotdeniedhis right to a speedytrial,and theDistrict Court did not err in denying the defendant'smotion to dismiss. We affirm the defendant's conviction in the District Court.