NO. 90-504 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

Plaintiff and Respondent, 

APR 22 1991 

TIMOTHY W. MOONEY, 1 G' -,I bd 3m~th 

CLERK OF SUPREME COURT 

Defendant and Appellant. STATE OF MONTANA 

TIM0 ---- .. - --- -- --, 

CLERK 

uu 

OF SUPREME 

J~LL + 

COURT 

Defendant and Appellant. STATE OF MONTANA 

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: 
Justice Terry N. Trieweiler delivered 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 conviction he 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 the defendant. At that time the defendant requested a psychiatric 

examination and asked that his arraignment be continued until receipt 

of the psychiatrist's report. That order was granted. 

The psychiatric report was submitted on October 10, 1989. This 

case was then set for trial on November 30, 1989. 

The clerk of court's notes dated November 30, reflect that the 

defendant had not been able to decide until the previous Tuesday 

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whether 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 ''speedy trial1' 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 to dismiss the complaint against him for the reason that he had 

been denied his constitutional right to a speedy trial. That motion 

was denied. 

On March 26, 1990, the State called four witnesses 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 actually went 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 acts which 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 to be considered for parole 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. 

To determine whether a defendant's right to a speedy trial has 

been violated, the United States Supreme Court has set forth 

several factors which should be considered. Barker v. Wingo 

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

These factors have been applied by this Court on numerous 

occasions. State v. Steward (1975), 168 Mont. 385, 543 P.2d 178; 

State v. Keller (1976) , 170 Mont. 372, 553 P. 2d 1013 ; State ex rel. 

Briceno v. District Court (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: 

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. . . 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 prejudicial has occurred. 

State v. 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 Mooneyls arrest 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 I1speedy trial1' inquiry based upon the 

unusual length of delay in this case, the State must either provide 

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

not prejudiced thereby. State v. Ackley (1982), 201 Mont. 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. The period 

of delay attributable to the defendant's actions should be deducted 
from the total delay in determining whether it was 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 

evaluation was requested by the defendant on June 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's motion 

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 for March 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 in prejudice to the defendant. However, 

5 
institutional 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 that he would not raise a "speedy trialr1 issue, and even 

though it was 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 interest which 

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, the United 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) to minimize anxiety and concern of the accused; 

and (3) to limit the possibility that the defense will 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 of all, there was no pretrial incarceration attributable 

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 in prison under other circumstances during that same 

period of time. Smith v. Hooey (1969), 393 U.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, or benefits that were lost by the defendant as a result 

of the charges which 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 concern to the defendant. It is presumed that in every 

case, a person who has felony charges pending against him will 

experience anxiety and concern because 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 

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because of the length of time that occurred from the time of 

defendant's arrest until his trial. 

The final and most important consideration in deciding 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 on May 23, 1989, the defendant was released from his 

cell in the maximum security section of the prison 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. 

The defendant did not deny that he assaulted Miller. Instead, 

he called three other inmates as witnesses. All of them were 

housed in the same maximum security cell block in which defendant 

was housed at the time of his alleged offense. They described an 

incident that occurred several days prior to May 23 when Miller was 

bringing food to the defendant. They testified that Miller 

appeared to spit into the food before passing the tray to the 

defendant; that defendant rejected the tray; and that Miller called 

the defendant a llpunk.ll They testified that the term 'lpunk" is an 

extremely derogatory term in prison vernacular, and that if Mooney 

8 
had 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 Mooneyls conduct was unjustified. 

There is no evidence that Mooney would have called witnesses 

who were unavailable due to the passage of time or that he had any 

evidence to offer other than that which was offered. For these 

reasons we conclude that his defense was in no way impaired by the 

passage of time. 

We hold that under the four-factor balancing test of Barker, 

Mooney was not denied his right to a speedy trial, and the District 

Court did not err in denying the defendant's motion to dismiss. 

We affirm the defendant's conviction in the District Court.