NO. 86-492

INTHE SUPREME COURTOF THE STATE OF MONTANA

1988

STATE OFMONTANA, Plaintiff and Respondent,-vsJERRY PAULFORSYTH,

Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District, Inand for the County of Flathead, TheHonorable Douglas Harkin,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant:

Keller & German;Robert S. Keller argued, Kalispell, Montana

ForRespondent:

Hon. Mike Greely,Attorney General, Helena,Montana Robert F.W. Smith argued,Asst. Atty. General,Helena Ted 0.Lympus argued, County Attorney, Kalispell, Montana

Submitted: May 5, 1988 Decided: Auqust 25, 1988 

## TUG 2

### 5

## \988 Filed:

ClerkMr. Justice R. C. McDonough delivered the Opinion of the Court.

Forsyth appeals his conviction for deliberate homicide. This case first went to trial in Kalispell in 1980, and resulted in a conviction this Court reversed because the jury

was not instructed on the elements of deliberate homicide. State v. Forsyth (1982), 197 Mont. 248, 642 P.2d 1035. A second trial at Polson in 1982 resulted in a hung jury. The third trial at Kalispell in 1985 resulted in the conviction Forsyth appeals. We affirm. Forsyth presents the following issues for review:

(1) Whether the Court erred in failing to grant Forsyth's motion todismiss for lack of speedy trial? (2) Whether the Court erred in failing to grant Forsyth's motion to dismiss for denial of due process because: 

### A. The State failed to properly disclosenew evidence, favorable,or unfavorable, on the issue of appellant's guilt, contrary to the District Court's standing order. 

### B. The Statedeliberately withheld exculpatory evidence. C. The State initiated prosecution of a critical witness without probable cause one week before trial for the solepurpose ofdiscrediting the witness. (3) Whether the Court erred inpermitting the State to add 

### a witness in the middle of trial, and then erred in failing to grant Forsyth's request for a mistrial as a consequence?

### (4) Whether the Court erred in failing to order the place of trial outside of Flathead County, and in denying Forsyth's motion fornew trial accordingly? (5) Whether the Court erred in failing to grant Forsyth's motions for a new trialbased upon newly discovered evidence? (6) Whether the Court erred in failing to award attorney's fees? (7) Whether the Court erred in increasing the defendant's sentence, and in failing to credit the defendant with time for incarceration?

The facts surrounding the murder of the victim, Karen Forsyth, are recorded in State v. Forsyth (1982)

### , 19? Mont. 248, 642P.2d 1035.

I In connection with the first issue, Forsyth contends that the delay between his second trial and his third trial violated his speedy trial rights. Forsyth presented the following documents as relevant to the speedy trial issue: January 2, 1983

## - Defendant's oral request to the Court for a transcriptof the second trial. January 11, 1983

## - Defendant's motion that his counsel continue tobe appointed,and be paid at State expense. January 17, 1983 

### - Defendant's written motion for a transcriptofthe second trial. January 25, 1983 

## - Defendant's motion to dismiss for double jeopardy grounds based upon jury tampering and prosecutorial misconduct, as well as a motion to strike the testimony of Douglas Richards on the grounds that he was incompetent; and evidentiary hearings were requested as to jury tampering and prosecutorial misconduct.February 9,1983

## - Hearing onDefendant'smotions. February 14, 1983

## - Defendant's Affidavit of Indigency filed, at request of Court. February 22, 1983

## - Letter of Gary Crowe, Esq., to the Court explaining his conflict of interest in being appointed to represent the Defendant. February 28, 1983 

## - Order denying all motions and requesting the Defendant to either make suitable and acceptable arrangements with his present counsel, or the Court would appoint counsel from the public defenders; Defendant's indigency statusaffirmed. March 10, 1983 

## - Defendant's response to the Court's Order of February 28, 1983, coupled with a written request for the transcript of the second trial. March 15, 1983 

## - Defendant's Petition to the Montana SupremeCourt for aWrit of Supervisory Control. May 11, 1983

## - Supreme CourtOrder denying theWrit for the reason that all but one of the grounds asserted were premature, and, in addition, with respect to the appointment of counsel, that no showing had been made that the public defender firms were incompetent or unable to represent the Defendant. May 17, 1983 

## - Order requiring Defendant to elect counsel in five days, and if counsel is selected, an additional fivedays within which time tonotify the Court of the required portion or portions of the transcript and the

reasons or intendeduse thereof. May 19, 1983 

## - Defendant's letter to the Court requesting a hearing with respect to the conflicts of the public defenders,and requesting the transcript of the second trial. May 27, 1983

### - Order setting ahearing on appointment of counsel forJune 22, 1983.June 22, 1983

## - Hearing on appointment of counsel, and Defendantrenewedhismotions inwriting, to appoint the firm of Keller and German as counsel at public expense, for a transcript of the second trial, and to conduct evidentiary hearing on the jury tampering and the prosecutorial misconduct; and informed the court of a desire for a speedy trial. July 28, 1983 

## - Attorneys conference by telephone in which the Court requested the Defendant to designate the portions of the transcript that did not need to be transcribed, and requested written comment by both parties with respect to theplace of trial. August 12, 1983

## - Order denying Defendant's motion for appointment of counsel,andwithholding ruling on the request fora transcript,until responseby counsel. August 19,1983

### - Responseby Keller and German. August 23, 1983 

## - Order appointing Messrs. Doran and Allison as counsel for Defendant. August 29, 1983 

## - Defendant's Petition to Montana SupremeCourt forWrit of Supervisory Control. October 6, 1983

## - Writ granted, and Keller and German appointed as counsel for Defendantatpublic expense. October 18, 1983 

### - State's motion to Supreme Court for Reconsideration. October 31, 1983 

## - Supreme Court Order, reaffirming Order of October 6,1983. November 14, 1983 

## - Part of transcript ordered to be transcribed, tentative trial date set and attorneys conference set for December 12, 1983. December 12, 1983

## - Attorneys conference: Defendant's motions renewed, inwriting, for evidentiary hearings on jury tampering and prosecutorial misconduct, and for remainder of transcript.December 23, 1983 

### - State's motion for Change ofVenue. January 5, 1984 

### - Hearing on State'sMotion for Change ofVenue. January 13, 1984 

## - Order, remainder of transcript ordered and tentative trialdate ofJanuary 30vacated. March 15, 1984

## - Minute entry order setting evidentiary hearings. April 5, 1984 

### - Evidentiary hearing on jury tampering. April 6, 1984 

### - Evidentiary hearing on prosecutorial misconduct. April 23, 1984 

## - Last volume of transcript of second trialdelivered. April 24, 1984 

## - Order denying Defendant's motions to dismiss forDouble Jeopardyand lack ofDue Process. May 4, 1984

### - Defendant'smotion to dismiss for lack of speedy trial. May 10, 1984

### - Hearing onmotion to dismiss for lack of speedy trial. May 23, 1984 

## - Order denying Defendant's motion to dismiss for lack of speedy trial. June 6,1984

## - Order granting State's Motion for Change of Place of trial,and setting trialdate of October 1, 1984. July 11, 1984

## - Defendant's secondmotion to dismiss for lack of speedy trial. July 13,1984

### - Hearing onmotion todismiss for lack of speedy trial,and Orderdenying Defendant's motion to dismiss for speedy trial. July 23, 1984 

## - Request for transcript of hearing of January 5, 1984 (change of venue), April 5-6, 1984

(evidentiary hearing on jury tampering and prosecutorial misconduct), and July 13, 1984 (second speedy trial hearing).We have reviewed thesedocuments. On page 48 of his opening brief, Forsyth concedes that the time between October 1, 1984, to July 2, 1985, is chargeable to thedefense as time occupied in anunsuccessful attemptto obtain a writ of supervisorycontrol. (AnOctober 1, 1984, trial date was vacated prior to this Court's resolution of the writ petition.) However, we date the beginning of this period as July of 1984, instead of October of 1984, because a letter shows that preparation for this writ began in the lower court at least as early as July 18, 1984. The letterdocumentsForsyth's request to theClerk of Flathead County to prepare a transcript of the lower court's hearing on jury tampering and prosecutorial misconduct for use on the writ petition. The relevantperiod is therefore fromJanuary of 1983,toJuly of 1984. Forsyth contends that delay caused by the Statemandates dismissalbecause his speedy trial rightswereviolated. The District Court considered and rejected Forsyth's motion for dismissal for lack of a speedy trial holding that a rigorous defense rather than the conduct on the part of the State caused thedelay. We affirm on this issue. First, we hold that the length of delay which may be attributed to the State is sufficient to trigger further analysis,and therefore balancing of the four factors setout in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. See Statev. Bailey (1982),201 Mont. 473,478, 655 P.2d 494, 497. The four factors are; (1) length of delay, (2)reason fordelay, (3)defendant's assertionof the right, and (4)prejudice to the defendant. Bailey, 655 P.2d at 497. In analyzing a particular speedy trial claim using the four factors,itmust be remembered that:"noneof the four factors isrecognized aseithera necessary or sufficient conditionto a finding that the right to a speedy trial has been deprived. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. TheCourt must still engage in a difficult and sensitive balancing process. See Barker, 407U.S. at 533. 92 S.Ct. at 2193." Bailey, 655 P.2d at 497 (quoting State v. Larson (Mont. 1981), 623 P.2d 954, 957, 38 St.Rep. 213, 215). A lesser delay will be tolerated for simple street crimes than for complexoffenses. Bailey, 655P.2d at 498. The focus of the dispute in this complex homkcide prosecution is the "flag all litigants seek 

### to capture

# . . . the reason for delay". Statev. Loud Hawk (1986), 474 U.S. 302, 315, S.Ct. 648, 656, 88 L.Ed.2d 640, 654. Forsyth attacks the District Court's conclusion that a vigorous defense caused the delay in this case. In this regard,he contends that the pursuit of his constitutional right to counsel and transcript occasioned much of the delay in this
case, and that the delay caused by pursuit of these rights may not be attributed to a defendant under this Court's decision inBailey. Forsythcontends specifically that the time fromJanuary of 1983, to April of 1984,must be attributed to the State because it was not until April of 1984 that the defense received a complete transcript. Forsyth alsopoints out that itwasnotuntil October of 1983 that appropriate counselwas appointed. Forsyth's further contention on attribution of delay concerns the State's change of venuemotion. In this regard, he contends that the time from January 5, 1984, to June of 1984, must be attributed to the State because during that period theparties argued the venue issue.The State responds that delay associated with bona fide pretrial motions where the State has not been independently dilatory should not be attributed to the State. The State also contends in the alternative that any delay in this case attributable to the State constitutes institutional delay which must be weighed less heavily than delay caused by intentional prosecutorialdelay. An analysis of the pretrial motions made in the lower courtprior to the third trial supports the State'sposition. First, in connection with the appointment of counsel, the controversy in the lower court in 1983 hinged on whether the law firm handling Forsyth's defense through the first two trials, Keller and Gilmer, (laterKeller and German)

### ,would continue to represent Forsyth. Forsyth,with help from his family, had paid the law firm himself for this representation. By the end of the third trial these funds

were exhausted, and Forsyth requested that his old firm be appointed at public expense. The State objected contending that firms Flathead County already had on retainer forpublic defense should representForsyth. As explained below in this opinion, Forsyth later prevailed on the appointment of counsel issue. Inconnection with themotion for a transcript after the second trial, the State objected contending that Forsyth could make do with the transcript from the first trial. The lower court declined to rule on Forsyth's transcript request reasoning that counsel should be appointed first. Once appointed, according to the lower court, defense counsel could make a request specifyingwhich portions of the record should be made available and which should not. Thevenue motion involved theparties' contentionson an appropriate forum for a fair trial. The State proposed returning venue to Flathead County, the venue of the firsttrial, and trying the case with a jury selected from Toole County residents. Forsyth agreed that venue should be changed from Lake County, but opposed the State's proposal arguing that a trial in Flathead County would not be fair even if the jurywere selected fromToole County. A motion to dismiss alleging prosecutorial misconduct and double jeopardy because of jury tampering accompanied Forsyth's motions for appointment of counsel and for procurementof a transcript inJanuary of 1983. Forsyth also moved for evidentiary hearings on jury tampering and prosecutorialmisconduct. In February of 1983, the District Court denied the motions, and Forsyth petitioned to this Court for awrit of supervisory control. This Court's order resolving thepetition read as follows:

PER CURIAM: Relator Forsyth has filed a petition for a writ of supervisory control to review various post-trial motions of the District Court. The State has filed a written response thereto. All have been considered by the Court. IT IS NOW ORDERED AND ADJUDGED AS FOLLOWS: 1. The Court accepts jurisdiction of the petition for writ of supervisory control for the purpose of the rulingshereafter set forth. 2. Petitioner claims error by the District Court in refusing to appoint the law firmofKeller and Gilmer to represent the defendant in further proceedingsatpublic expense. No showinghasbeen made that the public defender firms of the county are incompetent or unable to represent defendant. Accordingly, there is no error in the District Court's refusal to appoint Keller and Gilmer for thispurpose. 3. Petitioner claims error in the District Court's failure to order preparation of a transcript of the second trial at public expense. The record discloses that the District Court held this motion under advisement pending resolution of the selection of defense counsel. This claim of error is dismissed as premature.

### 4. Petitioner claims error in refusing an evidentiary hearing on the alleged misconduct of theprosecutor and thebailiff at his second trial. This claimof error isdenied withoutprejudice and without a decision on the merits. It should be presented by defense counsel, when one is selected, in pretrial proceedings before the next trial, during the trial or upon appeal in the event of conviction. 5. Petitioner claims error by the District Court in failing to strike the testimony of Douglas Richards because the same is alleged to be incredible. The credibility of the witness and the weight to be given his testimony are patently questions for the jury. 6. Petitioner's claim that the case shouldbe remanded to Judge DouglasHarkin for an evidentiary hearing is denied on the basis that by our foregoing rulings, no evidentiary hearing is necessary. 7. The Clerk is directed tomail a true copy hereof to counsel of record for the respective parties and to the Honorable Michael H. Keedy and the Honorable DouglasHarkin. Following the dispositionof Forsyth's first supervisory control petition, the case returned to the lower court where Forsyth attempted to show why the public defender firms in Flathead County could not representhim. On June 22, 1983, the lower court heard the counsel issue, and at that time Forsyth also renewed his motions for evidentiary hearings on his charges of prosecutorial misconduct and jury tampering. On August 12, 1983, the District Court denied Forsyth's motion for appointment of his old law firm and appointed a public defender, and Forsyth immediately petitioned for a writ of supervisory control. During this period of time Forsyth's claims for prosecutorial misconduct and jury tampering werepending. This Court granted Forsyth's second petition for supervisory controlordering as follows:ORDER
Relator Forsyth has filed a petition for a writ of supervisory control to review the orders of the District Court denying appointmentof attorneys Keller and German at public expense to represent him in further proceedings and appointing attorneys Gary Doran and Robert Allison to represent him. The State has filed awritten response to relator's petition. Both the petition and responsehave been fully reviewed by this Court. The extraordinary nature of this case requires that this Court explain thebasis for itsOrder in detail. On May 11, 1983, this Court denied Forsyth's previous petition for writ of supervisory control, stating that no showing had been made that the public defender firms of Flathead County are incompetent or unable to representhim. 

### A hearing was then held by the District Court on June 22, 1983 to hear reasons why public defenders in Flathead County were unable to represent Forsyth. Presentwere Forsyth,his counsel, counsel for the State and representatives of all public defender firms in the county. It was established at the hearing that the firm of Sherlock and Nardi was unable to represent Forsyth because of a conflict of interest. That conflict is uncontested by the State. It was further established that public defender Gary Crowe, of the firm of Moore, Doran and Crowe, had a conflict of interest which prevented him from representing Forsyth. The details of this conflict were recorded at the hearing and Crowe also wrote a letter to the District Court stating that he had conflicts which prevented him from representing Forsyth. Because this conflict prevents Crowe from representing Forsyth, it also prevents any member of Crowe's firm from representing Forsyth. Code of Professional Responsibility DR 5-105(D) (1979)

# . The District Court nonetheless appointed Gary Doran, a member of Crowe's firm, to represent Forsyth. Theonly remainingpublic defender in Flathead County, Robert Allison, was also appointed by the District Court to represent Forsyth. Significantly, Allison is a sole practitioner with no felony trial experience. An in camera hearingwas conducted during the June 22, 

### 1983 hearing to present informationregarding conflictsof interest which prevent Allison from representing Forsyth. The transcript of that hearing was ordered sealed by the District Court because it contains discussion of confidential defense strategy. The District Court ordered that the transcript was to be opened only by order of this Court. We have examined the contents of that transcript and conclude that Allison has conflicts of interest whichprevent him from representing Forsyth. We hold that Doran and Allison are precluded by conflicts of interest from representing Forsyth and that Allison has no felony trial experience. The DistrictCourt's finding that there are no such conflicts is not supported by the record. For these reasons, we find the District Court abused its discretion in appointing Doran and Allison to represent Forsyth. TheDistrictCourt also states in its order of August 12, 1983 that to appoint Keller and German to represent Forsyth would undermine the quality and availability of public defense services in Flathead County and would drain the resources of the public defender program. There is nothing in the record to supportthese statements. The record shows that Keller and German have offered to provide Forsyth the services of two attorneys for the hourly rate of one public defender. Ithas notbeen clearly establishedwhat fee arrangement exists between Flathead County and its public defenders for compensation in cases requiring expenditure of extraordinary amounts of time


# . The record shows that Keller and German spent approximately 1,650 hours in preparation for the first two trials. It is clear thatpreparation for trial by any other appointed attorneys would requiremuch more time than for Keller and German. The record containsnothing to contradict the claim of Forsyth that the representation offered by Keller and German would be less costly to the county than appointmentof new attorneys. This unique case presents a question of lack of basic fairness in effectively depriving an accused of his counsel at such a late stage. Forsyth privately retained Keller and German to represent him in the two previous trials of this case at his own and his family's expense. Their funds are now depleted. The State,however, willcontinue to be represented by the same prosecutors who have represented the State in the first two trials. To force upon Forsyth new attorneys at this stagewould be unfair. THEREFORE, IT ISORDERED: 

### 1. That this Court accepts jurisdiction of thepetition forwrit of supervisory control. 2. That the order of the District Court appointing public defenders Gary Doran and Robert Allison to represent relator Forsyth is vacated. 3. That theDistrictCourt appoint Keller and German to represent relator Forsyth at public expense, a reasonable rate of compensation to be established by the DistrictCourt. 4. The Clerk is directed tomail a true copy of this Order to counsel of record for the respective parties and to theDistrictCourt. Following this Court's order appointing Keller and German, the District Court resumed. jurisdiction of the case and the parties began the process of settling the remaining substantialpretrial controversies;howmuch of the testimony from the second trial would be transcribed, whether Forsyth would prevail on his motions to dismiss for jury tampering, and for prosecutorial misconduct, and where venue should lie for trying the case. The pretrial issues set out above were resolved as follows: theDistrict Courtordered that the State provide a full transcript of the second trial on January 13, 1984; the District Court conducted hearings on Forsyth's motion 

### to dismiss for jury tampering and prosecutorial misconduct on April 5-6, 1984, and denied the motion April 24, 1984; the District Court granted the State's venue motion on June 6, 1984.BetweenMay of 1984 and July of 1984, the DistrictCourt considered two motions to dismiss for lack of speedy trial. Hearings preceded both motions, and the lower court settled the matter by denying the second motion on July 13, 1984. Following the denial of the speedy trial motion, as notedabove, Forsyth requested transcripts for the hearings on prosecutorial misconduct, jury tampering, change of venue, and speedy trial to submitwith anotherpetition for writ of supervisorycontrol. The lengthy recitation of these filings helps in analyzing the cause of the delay factor fromBarker. First, the filings demonstrate that the time between the second trial and Forsyth's assertion of the speedy trial right in May of 1984, was taken up principally with issues first settled by the lower court, and then reviewed by this Court

on petition for writ of supervisory control. For example, Forsyth moved for counsel, transcript, and evidentiary hearings on jury tampering and prosecutorial misconduct in January of 1983, and the lower court denied the motions in February of 1983. The petition for writ of supervisory control was filed in this Court in March of 1983, and the resolution from this Court on the petition came in May of 1983. Similarly, the second petition 

### for supervisory control, on the issue of appointment of counsel,was filed with this Court in August of 1983, and granted in late October of 1983. Thus, the weight and attribution of the delay between January of 1983,and November of 1983,depends

on theattributionandweight attached to thedelay caused by the pretrial motions which resulted in these interlocutory appeals. First,the Statebears the burden ofbringing an accused to trial, and good faith pretrial motions are not chargeable to the defendant. State v. Harvey (1979), 184 Mont. 423, 434, 603 P.2d 661, 667. Thus,we attribute the delay time from January of 1983, to November of 1983, to the State. However,different weight attaches to delay depending on the cause fordelay. Harvey, 603 P.2d at 667. In this case,the block of time necessary to adjudicate pretrial motionsresulting in interlocutory appeals fails toweigh heavily in favorofForsyth'sclaim. The United States Supreme Court has stated that interlocutory appeals pit the "competing concerns of orderly appellate review on the one hand, and a speedy trial on the other". Loud Hawk, 474U.S. at 314. In regard to the cause for delay factor, amajority of the Court agreed that delays due to adefendant'spretrial appeals:

ordinarilywill not weigh in favorof adefendant's speedy trial claims.

# ... A defendant who resorts to an interlocutory appeal normally should not be able upon return to the district court to reap the reward of dismissal for failure to receivea speedy trial. As one Court of Appeals has noted in the context of a District Court's consideration of pretrial motions: "Having sought the aid of the judicial process and realizing the deliberateness that a court employs in reaching a decision, the defendants are not now able to criticize the very process which they so frequently called upon." United States v. Auerbach, 423 F.2d 921, 924 (CA5 1969), rehearing denied, 423 F.2d 676, cert. denied, 399 U.S. 905 (1970).

Loud Hawk, 474 U.S. at 316-17. Here, the circumstances surrounding the delay caused 

### by pretrial motions and appeals justifies thedelay attributable to the State fromJanuary of 1983, to November of 1983. In particular, Forsyth's claims for jury tampering and prosecutorial misconduct necessitated proceedings and deliberations in the lower court and this Court. These claims, as explained later in this opinion, lacked merit. Forsyth's claim for exclusion of Richards's testimony,asdocumented in our firstwrit order, also lacked merit. Forsyth chose to avail himself of this writ procedure, and cannot now complain 

### of the delay associated with deliberateness inherent in the process.Forsyth also contends that the time attributable to adjudication of the appointment of counsel and transcript issues shouldweigh heavily inhis favorbecause the State's position denied him constitutional rights. First, there is

no showing that the State engaged in intentional delay designed to hamper the defense on these issues. And as stated by the United States Supreme Court, even "a defendant with a meritorious appeal would bear the heavy burden of showing an unreasonable delay caused by the prosecution in that appeal,or awholly unjustifiabledelay 

### by the appellate court." Loud Hawk, 

### 474U.S. at 316. Second, in this case the delay occasioned by adjudication of these issues was reasonable and justified. For example,theDistrict Court reasoned that the appointment of counsel issue should be resolved before ordering a transcript because the portions of the record to be transcribed could vary depending onwho was appointed. This Courtrefused to reverse the lower court'sorder holding that inasmuchas the motionwas stillpending, the claimed lack of transcriptwaspremature. We hold here that any delay caused by the lower court's failure to order an immediate transcription was justified and reasonable given the pending counsel motion, and Forsyth's ownmotion todismiss. On the appointment of counsel issue and the delay it caused, in our first order we refused to grant the writ reasoning that no showing had been made that a conflict existed as to the availablepublic defender firms in Flathead County. Thus, our ruling required furtherproceedings. The dissent in that order reasoned that fundamental fairness required appointment of the counsel serving Forsyth through the first two trials. Later this Court reversed holding that a conflict existed, and that it would be unfair to force Forsyth to proceed with different counsel. However, eventhough the State's position on this issue was erroneous, it

was not so unsupportable that it infers intentional delay. Finally, we note that the delay during this period cannot be completely attributed to litigation of this single pretrial issue. Thus, the record supports the contention that delay attributable to the State is justified by: the need for evidence on the counsel issue,the complexityof the counsel issue, and the lack of a showing the prosecution acted intentionallytodelay. However, Forsyth contends this Court's decision in Bailey mandates dismissal. In Bailey, the State argued that the defendant's exercise of the right to a properly filed information constituted failure to assert the right to a speedy trial. Bailey, 655 P.2d at 498. Specifically, the State contended that the defendant failed to assert the right becausehemoved todismiss the flawed information instead of allowing the case to go forward. This Court rejected the argumentbecause: [wle cannot penalize the defendant for exercising his statutory rights or for the prosecutor's mistake. To do sowould be to deprive him of due process of law which is guaranteed under Article 11,Section 7 of the Montana Constitution. Neither can we force him to choose one right over another, this was made clear by the United States Supreme Court in Simmons v. United States (1968),390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, where it addressed a similar issue and stated:

# "...we find it intolerable thatone constitutional right should have tobe surrendered to assert another."
Bailey, 655P.2d at 498. Theparticular issueaddressed in Bailey,aswell as the facts in Bailey, distinguish it from this case. First, in regard to the issue, in Bailey we addressed the intolerable choice offered to a defendant between trading the assertion

### of the right factor foraproperly filed information. In the 

### -- present case,the issue concerns the cause for delay factor, not theassertion of the right factor. The distinction is important. The presence of the assertion of the right is entitled to strong evidentiary weight indeterminingwhether thedefendant isbeing deprived of the right, and failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. On the other hand, the reason for the delay factor, the principle point of 

### contention here, involves a weightingprocesswhere "different weights shouldbe assigned todifferent reasons". Barker, 407U.S. 

### at 531-32. 

### Thus,as shownby Loud Hawk, the delaydue to the State's positions on the transcriptand appointmentof counsel issues only affects the weightingprocess in the reason for thedelay factor,not the more threshold issue of whether the defendant asserted the right to speedy trial. And, ordinarily, this delaywill not weigh in favor of a defendant's speedy trial claim. Loud Hawk, 474U.S. 

### at 316. Factually, the cases are distinguishable in regard to the cause ofdelay factor. InBailey,the prosecutor clearly caused the delay by improperly filing the information. In this case, the defendant's motion to dismiss, coupled with his demands for evidentiary hearings, contributed substantially to the delay. Even if Forsyth's counsel and transcript motions had been granted immediately, there was still the time consuming issues of prosecutorial misconduct and jury tampering to resolve. Thus, we refuse to apply Bailey. Forsyth also argues that the delay fromJanuary 5,

### 1984 to June 6,1984,was occupiedwith the State's venuemotion. Thus, according to Forsyth, this time period must be attributed to the State and weighed in favor of his speedy

### trial claim. Forsyth's argumenthere sidestepsthe fact that the venuemotion was only one of the issues before the lower court during thisperiod. At this stage in the case,Forsyth continued to actively litigate his motion to dismiss by renewing his request for evidentiary hearings on the jury tampering and prosecutorial misconduct issues. Thus, no deliberate delay is evident in regard to this time period. Rather, the case was stalled by Forsyth's motion to dismiss

aswell as by 

### the lack of a 

### decision on venue,and we refuse to weigh this time period heavily in favor of the claim because of thevenuemotion. In sum, the State has carried the burden of justifying the delay occasioned by resolution of the numerous pretrial issues in this case. Thus, we hold that the cause fordelay factor supports the State'sposition on this issue. Similarly, theprejudice factorweighs against Forsyth's claim. Forsyth contends that the passage of time impaired his defense because: witnesses could not remember previous testimony, the use of the transcript to refresh witness memory was both cumbersome and ineffective, the State's new witnesses could have been discredited by the testimony of witnesses who are now unavailable, and the State presented demonstrative evidence more effectively. In regard to the contentions on use of the transcript,

we have reviewed the testimony of the following witnesses:

Dr. JohnPfaff CharlesL. 

### White Debbie Stahlberg (Neff) DaleGifford DorisRichards Lupe Grif faldo SherylHester RogerKrauss PaulHahn DouglasM. 

### Richards LynnNorbe Greg Phillips Dawnita French Rand Cullen Rolene Anderson DawnMorris RonYoung KevinAppel Dick Stotts Steven KlinglerJanBeck Paula Stalnaker Ron DuPuy Addison Clark Jerry Forsyth RayDyer Tim Schuldheiss William Harris Dana JosephKraut Dr. M.E.K. Johnson JonWilliam Ball Bonnie Olson DanHess JimOleson Ed Helmetag Gary Red Elk DouglasRichards Rick Perry PaulForsyth

On the basis of this review,wehold that the transcript mitigated theprejudice caused by failure ofwitnessmemory, and thus the prejudice factor in this regard fails to weigh heavily for Forsyth. In regard to the assertion thatuse of the transcript proved cumbersome and ineffective, we have discovered in our reviewof the testimony that the transcript also provided the defense with repeated opportunities to impeach Statewitnesses. The State's demonstrative evidence which, according to Forsyth, improved with age tohis prejudice, involved a test at trial demonstrating an allegation made by witness Douglas Richards. Richards told the jury that Forsythhad inserted a pencil in thebarrel of a pistol leftpurposely at the scene of the murder in order to lift and place the pistol in the hand of the victim. Richards demonstrated how this was allegedly done at the first trial, and counsel for Forsyth pointed out that paint residues remained in the barrel after Richards's demonstration,but no residues were found in the barrel of thegun leftat the scene. At the second and third trials,according to Forsyth,Richardshad figured out how to lift the pistol without leaving residues. Thus, Forsyth claimsprejudice. This particular contention does little to further Forsyth's claim. At the third trial Forsythcalled awitness whohad served as an alternate juror. Thiswitness testified

### to the presence of paint chips in the barrel at the first trial. Thus, evidence discrediting Richards's demonstration

was not lost to thedefense. Forsyth also argues that the passage of time impaired his ability to counter the testimony of Charlie Perkins. Perkins testified at the third trial to an alleged jailhouse confession made by Forsyth following the first trial. Forsyth claims that unavailable witnesses could have discreditedPerkins. This claim is necessarily speculative and carries less weight than it would if the record supported it. At any rate,we have considered it,and we have also considered the fact that Forsyth called numerous witnesses to discredit Perkins's testimony. Thus,prejudice fails toweigh heavily in favorof Forsyth's claimhere. Theprejudice factor shouldbe evaluated in lightof the defendant's interests the right to speedy trial protects; prevention ofoppressivepretrial incarceration, minimization of anxiety and concern of the accused,and most importantly, limiting the possibility that the defense will be impaired. Barker, 407 

### U.S. at 532. 

### None of these interests compel a finding that the State violated the speedy trial right in this case. The State freed Forsyth between trials, and the transcriptminimized impairment of thedefense. In regard to the assertion of the right factor, we accord it some weight in favor of Forsyth in analyzing his speedy trial claim. However,another relevant factor here is that Forsyth's assertion of his speedy trial right was preceded by his time consuming motion to dismiss. Bailey states that thedefendant does not trade the assertion factor for a properly filed information. However,we hold in this

case that Forsyth's jury tampering and prosecutorial misconduct claims constitute circumstances affecting the

### assertion of the right factor. These circumstances reduce the weight in favor of Forsyth in regard to the assertion of the right factor, and inasmuch as we have held that the weight of the other factors falls for the State,we refuse to dismiss because the rightwas asserted. In summary, we affirm on this issue because the case presented complex issues, and the delay attributable to the State must be weighed less heavily as institutional delay. We 

### are alsopersuaded to affirmbecause the prejudice Forsyth suffered as a result of the delay was mitigated by the presence of transcripts from the previous trials, and by Forsyth's release on bail between the second and third trials. Thus, Forsyth's speedy trial claim has failed to convince this Court,andwe affirmon this issue.

I1 In connection with subissueA of the second issue, the relevant facts and procedure are as follows: Douglas Richards revealed to theprosecution prior to the third trial that he had related to Rand Cullen details of the murder in 1979. 

### Cullen testified at the third trial concerning Richards's statements. Dr. M.E.K. Johnson testified at the first and second trials that the blow to the head Forsyth received on the night of the murder was of sufficient force to knock Forsyth unconscious. At the third trialJohnsonvariedhis testimony by stating that he had become more skeptical that the blow rendered Forsythunconscious. The prosecution listed the victim's mother, Shirley Kienas, as a witness for all three trials,but only called her for the third trial. She testified at the third trial concerning her daughter's marital relationshipwith Forsyth.The Stateknew thatCullenpossessed importantknowledge of the murder after taking his statement in January of 1984, but did not reveal Cullen's identity to the defense until August of 1985. The Statebecame aware that Dr. Johnsonhad changed his testimony sometime after the second trial. In August of 1985 the State notified the defense that the State planned to call Johnson as a witness. The State probably knew the substanceof Shirley Kienas's testimony prior to the first trial. Kevin Appel and Paul Hahn were new witnesses at the third trial. They testified in regard to events they witnessed as Kalispell police officers at the time of the murder. The parties agree that the substance of their testimony was not new. The District Court's standing order required the prosecution to notify the defendant of any new material regarding the guilt or innocence of the defendant. SubissueA: Forsyth claims that the Stateviolated his dueprocess rights by failing to comply with the lower court's standing discovery order mandating disclosure of new evidence. Forsyth also argues that the lower court improperly allowed amendment of the information to include new witnesses under the authority provided by S 46-15-301(1), MCA (1983). We hold that the lower court properly applied S 46-15-301(1), MCA (1983), that any violation of the discovery order constitutes harmless error, and that Forsyth has no due process claim under this subissue. First, Forsyth argues that the lower court erred by allowing Rand Cullen to testify over his objections. Forsyth concedes that the State revealed Cullen's potential as a witness on August 1, 1985,but contends the State should have revealed him sooner, and that prejudice resulted from the State's late revelation.Forsyth claims prejudice from the State's failure to reveal Cullen as a witness arguing that Debbie Bremner, a witness close to Richards at the time thatRichards allegedly revealed the murder to Cullen, could have discredited Cullen's testimony. Bremner was a witness at the first two trials, but wasunavailable for the third trial. Section 46-15-301(I),MCA (1983) (repealed in 1985) (in effect at time of trial), reads:

(1) For the purpose of notice only and to prevent surprise, the prosecution shall furnish to the defendant and filewith the clerk of the court at the time of arraignmenta list of thewitnesses the prosecution intends to call. The prosecution may, any time after arraignment, add to the list the names of any additional witnesses upon a showing of good cause. The list shall include the names and addresses of the witnesses. This subsection does not apply to rebuttal witnesses.

Section 46-15-301(1),MCA (1983). Forsyth concedes Cullen was revealed before trial, but contends that the lower court violated the statute's spirit and intent by allowing the testimony. See State 

### v. Klein

(1976),169 Mont. 350, 354, 547 P.2d 75, 77. Forsyth also contends that good cause is a threshold requirement for additions to the witness list under this Court's interpretation of $ 46-15-301(I), MCA (1983), in State v. Haag (1978),176 Mont. 395, 578 P.2d 740,and thus, absent a showingof good cause,no addition is allowed. The State contends that good cause existed because the State lacked knowledge that the casewould go to trial until July of 1985, and that at any rate, Forsyth has failed to show prejudice which could not be cured by a continuance. SeeKlein, 547 P.2d at 77.Section 46-15-301(1), MCA (1983),makes it clear that the proper remedy where surprise is claimed by additions to the witness list is to grant a continuance to meet the new evidence. Klein, 547 P.2d at 77; State v. Mckenzie (1980), 186 Mont. 481, 502, 608 P.2d 428, 441. Forsyth's contention that Haag requires a showing of good cause as a threshold to any amendment fails here because in Haag the issue was the prosecution's negligent failure to endorse any witnesses at the defendant's arraignment, and its continued failure to list witnesses until the date of the trial. Haag, 578 P.2d at 743-44. Thus, the good cause threshold inquiry in Haag concerned failure to present a witness list of known witnesses at the time of the arraignment. In this case, there is no contention that Cullen's name should have been endorsed on the information because there isno evidence that the State knew of Cullen at the time of the arraignment. Lack of knowledge constitutes good cause under the statute. State v. Smith (1986),715 P.2d 1301, 1307, 43 St.Rep. 449, 455. Moreover, Haag is limited by its particular facts. Haag, 578 P.2d at 745. Followingdiscovery of Cullen, there isno evidence that the State intentionally withheld his identity to prejudice the defense. Rather, the record supports the State's contention that it negligently failed to inform Forsyth of Cullen's existence sooner because retrial depended on pretrial motions pending before the lower court and this Court. Lack of knowledge of the witness at the time of arraignment, together with uncertainty of whether the case would be tried and disclosure of the witness when the lower court set a trial date, are circumstances which sufficiently

excuse the State's failure to disclose Cullen under the statute. Thus, we hold that allowing amendment is discretionary,and absent prejudice the lower court properlyallowed the testimony. See State v. Liddell (Mont. 1984), 685 P.2d 918, 924, 41 St.Rep. 1293, 1299. Similarly, in regard toviolation of thediscovery order,prejudicemustbe shown. See Statev. Wallace (Mont. 1986), 727P.2d 520, 524, 43 St.Rep. 1908, 1912 (suppressionof evidence in violation of discovery orderharmlesserror in the absenceof a showing ofprejudice)

# . Over nineweeks elapsed between disclosure of Cullenand the October 15, 1985, trial date. Thus, surprise cannot be claimed. However,Forsyth contends that theprejudice tohis

case could not be cured by a continuance because of the time passingbetweendiscovery of Cullen as awitness and thedate of trial. Specifically,Forsyth's brief reads:

Bremner testified at the first two trials, but she cannot be found for the third trial. Thus, there is no chance to interrogate her with respect to Rand Cullen or DougRichards. She specificallywas with Richards when he had his third, and last, meeting with Cullen [Tr.page 3261: 11-17]

(emphasisadded).

Page 3261 of the transcript records some of Richards's testimony,and reads in relevantpart as follows:



### Q. Do you recall going down to Missoula to get this pistol out of a pawn shop down there?

A. Ido. 

### Q. One that you used for your stunt things and that sortof thing?

A. Ido. Q. And youwould havehad DebbieRremnerwith you when you went to get it, would you not?

A. Ibelieve so.

### Q. And you sawRand Cullen?

A. Correct.



### A reading of this excerpt supports the possibility that Bremner could discredit Cullen's testimony because the implication is that since shewas along on the trip, shewas present when Cullen and Richards's discussed the murder. However, page 3262 of the transcript reads in relevant part:

Q. But when you got to Seeley Lake to visit with Rand, you dropped Debbie Rremner off at a cafewhile

### youwere talking toRand by yourself?

A. Correct. 

### Q. She knew whatyour storvwas at that time,didn't she?

A. No. Q. Youhad already given it?

A. Wait, that was after the-- yeah, okay.

This last excerpt explains that Rremner was not present during the conversation between Cullen and Richards. Richards also discussed Bremner's involvement as follows:



### Q. Why wasn't Debbie included in the discussion that you had with Rand about what happened in the bowling alley?

A. Because Rand was upsetwithme when I told him on Christmas and like I said it scared him. Idid notwanther tobewith me if Rand belittled me. I didn't want to be humbled in front of her. It could have been avery embarrassing situation and I was trying to say Iwas sorry tohim and Iguess I didn't want to apologize and have him not accept it and 

### do it in frontofher.

### Thus,Bremner's unavailability does not showprejudicewhich could not be cured by a continuance in regard to Cullen's testimony because there is no evidence Bremner witnessed any of the conversations constituting the source of Cullen's testimony. Forsyth's otherargument in regard toBremner's supposed ability to discredit Cullen's testimony concerns Cullen's assertion that Richardsappeared more upsetduring theperiod of time when he related details of the murder to Cullen. Forsyth contends Bremner could have testified on Richard's mental state. This assertion is wholly speculative,and it goes to a collateral matter in Cullen's testimony. Thus, Forsyth has failed to show prejudice by this contention. Forsyth also claims that Cullen's memory lapses constitute prejudice which could not be cured by a continuance. However, the record reveals that Cullen's memory lapses existed in 1984, when the prosecution first took his statement. Thus,thememory loss occurred prior to the time the prosecution spokewith Cullen,and no prejudice may be ascribed due to Cullen's poor memory as a result of the State's failure torevealCullenuntil 1985. Furthermore, our reading of the record reveals that the State correctly contends that Forsyth's failure to discredit Cullen's testimonydid not result from any laterevelation of Cullen's identity. Cullen was steadfast in his belief that Richards helped Forsyth plan and commit the murder. Inconsistencies between the details thatRichards revealed to police and detailshe revealed to Cullenwere brought out on cross-examination,and thus were available for consideration by the jury. In summary,we have reviewed Cullen's testimony,andwe conclude that the DistrictCourt actedwithin its discretion in allowing Cullen to testify. Good cause existed for notlistingCullen on the informationat the time of arraignment,

so Haag does not apply. After discovering Cullen, the prosecution failed to immediately inform Forsyth of Cullen's potential as a witness, and arguably violated the discovery order. However, no surprise can be claimed,and we find no prejudice incapable of cureby continuance. Proceeding under the contentions in subissueA, Forsyth argues that the admission of Shirley Kienas's testimony in regard to an incident where Forsyth allegedlyurinated on the murder victim constitutes violation of the discovery order and denial of due process. Forsyth acknowledges that the prosecution listed Kienas as apossible witness at all three trials, but contends that the prosecution deliberately withheld the specific information concerning the incident when the defense requested specifics on Kienas's testimony. The first reference to the incidentoccurred during the first trial when the State queried Forsyth concerning the term "yellow shower", and Forsyth denied knowledge of the term. On appeal of the first conviction the term surfaced when,during oral argument,one of the Justiceson thisCourt asked for an explanation. Counsel for the parties did not knowat that timewhat the term referred to. Prior to the third trial, counsel for Forsyth inquired of the State what Kienas would testify to. The State informed Forsyth that Kienas would testify to Forsyth's stormy marital relationshipwith hiswife. Forsyth failed to depose Kienas prior to trial. The fact that the State had attempted to uncover the alleged incident long prior to the third trial, and the fact that counsel for Forsyth knew Kienas would testify to Forsyth's marital relationship but failed to depose her, mitigates any failure to reveal occasioned here by the State's conduct. Furthermore, the testimony itself was cumulative to other evidence showingForsythmistreated the victim. Thus,we refuse to predicate

error on this contention in subissue

### A. Wallace, 727 P.2d at 524.A further contention under subissue A is that the admission of the altered testimony of Dr. M.E.K. Johnson, violated the discovery order and denied Forsyth due process rights. Johnson's previous testimonyhad supported Forsyth's claim that robbers had rendered him unconscious with a blow to thehead prior to hiswife's murder by testifying that the blow could have knocked Forsyth out. Johnson testified at the third trial that he had become more skeptical that the blow Forsyth received the night of the murder would have sufficient force to render an individual unconscious. Forsyth concedes in his brief that the District Court delayed Johnson's testimony so that he could be deposed by the defense. Thedefense also concedes that the lower court ruled that the prosecution couldnot call Johnson in its case in chief, and gave the defense an opportunity to obtain its

own medical witness. Thus, Forsyth can claim neither surprise nor an inability to cure prejudice by continuance, and we affirm in regard to allowing Johnson's testimony. Forsyth also complains that the testimony of Paul Hahn and Kevin Appel should not have been allowed, and that it prejudiced the defense. The specific prejudice assertion is

as follows:

Nothing they claimed to know in 1985 was "new," but it just added to the defendant's burden of discrediting

# .... As shown by the quote from Forsyth's brief,Forsyth concedes no surprise existed in regard to this testimony. 

### "[GIiven that the appellant cannot convincingly claim surprise, we find no error on this issue." Wallace, 727 P.2d at 525.As to a violation of due process under subissue A, Forsyth cites no specific authority. However, this issue is easily resolved because prejudice is also required for a due process claim. State v. Craig (1976)

### , 169 Mont. 150, 153, 545 P.2d 649, 651. Thus, no due process claim exists as to admission of testimony covered above. SubissueB: The relevant facts in regard to subissue B concernRand Cullen's testimony. The assertion on appeal is that aspects of his testimony were exculpatory because the statements he remembered Richards making around the time of the murder varied with the story Richards gave to police. Forsyth contends that theprosecution's failure to revealCullen as a witness sooner than August of 1985 constitutes a violation of the State's duty to reveal exculpatory evidence. Brady v. Maryland (1963),373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. We affirm on this subissue. Forsyth contends his inability to better capitalize on inconsistencies between Richards's testimony, and the testimony offered by Cullen as to what Richards related to Cullen shortly after the murder, was due to the State's failure to disclose Cullen. Forsyth's brief cites to portions of the trial transcript where the defense revealed the inconsistencies. First, in regard to this claim, the issue here is not whether the suppression of exculpatory material until after trial requires reversal for retrial, but rather whether the disclosure came so late as to prevent the defendant from receiving a fair trial. United States v. Xheka (7th Cir. 1983), 704 F.2d 974, 981. As stated in subissue B, we have found no prejudice in regard to failure to reveal Cullen. Thus, therehas been no denial of fair trial,and wewill notproceed to consider the numerous other requirements for such claims as ismade here. SubissueC: In regard to subissue C, the relevant facts are as follows: Gary Red Elk was a Kalispell police officer and friend of Jerry Forsyth at the time of the murder. Red Elk

was called as awitness at the first trialby both the State and Forsyth. Red Elk worked to prepare Forsyth's defense prior to the first trial, and was helping with the defense prior to the second trial. Prior to the second trial, the State charged Red Elk with accountability for the murder of Karen Forsyth. The State supported the charge with statements made by Douglas Richards, and circumstantial evidence indicating thatRed Elk had in his possession a gun similar to the murder weapon prior to themurder. Forsyth contends that the State's misconduct in charging Gary Red Elk with accountability for the murder of Karen Forsyth denied him due process. Red Elk was arrested and charged one week before the second trial. Forsyth claims that the State deliberately brought the charges without probable cause to harass thedefense. There is little doubt that the misconduct Forsyth alleges here would, in the appropriate case, constitute a violation of the guaranteeof a fair trial. However,we have reviewed the transcript from the preliminary hearing on probable cause to arrest Red Elk. The evidence from the hearing shows that probable cause existed. Thus,we affirm on this subissue.

In summary, we hold for the State on all three subissues. The decision of the lower court to allow the testimony is affirmed.I11 In connection with issue 3, the relevant facts are as follows: Charlie Perkins testified at the third trial in regard to statements allegedly made by Forsyth while in prison after the first trial. According to Perkins,Forsyth confessed to torturing andmurdering Karen Forsyth. Forsyth contends that the lower court erred by allowing the prosecution to amend the information to add Charlie Perkins to the State's listed witnesses. The amendment came shortly after the Statediscovered in themiddle of the third trial that Perkins would testify that Forsyth confessed to the murder. The lower court allowed Perkins to testify over the defense's objection that a mistrial should be granted. The motion for mistrial claimed that allowing Perkins to testify would result in; (1)prejudice insurmountableby a continuance, (2) improper disclosure of the verdict from Forsyth's first trial, (3) inability to voir dire the jurors concerning their attitudestowards prison inmates in general. These claims are made here on appeal. The State responds that: (1)theweek continuance given toForsyth toprepare to meet Perkins's testimony prevents Forsyth from claiming prejudice from surprise; (2) the prior verdict was not improperly disclosed; (3) the lower court's caution to counsel that the prior conviction might come up vilified Forsyth's right to voir dire jurors on inmate attitudes. First, the statute to be applied once again is 

### 5 46-15-301(1), MCA (1983), which grants the District Court discretion to allow additions to the witness list. The prosecution's lack ofknowledgeof Perkins at the time of the arraignment constitutesgood cause fornot addinghis name to the listed witnesses. The continuance granted Forsyth to meet the testimony mitigated surprise. Thus,the lower court actedwithin itsdiscretion.

### We are also swayedby the lack of support forForsyth's contention that he had no opportunity to properlyvoir dire, and that disclosure of the prior conviction resulted in prejudice. The record reveals thatprior to voir dire, the lower court cautioned Forsyth's counsel that the prior conviction might come out at trial. Forsyth's incarceration

was relevant to Perkins's knowledgeof the confession. Thus, Forsyth can claimno error in this regard. Forsyth's inability to question prospective jurors on their attitudes toward inmates in general also fails. Amendments adding to the witness listafter trialhas started necessarily deprive the opposing party of the opportunity to voir dire prospective jurors with a particular "class" of witnesses in mind. Under the circumstances of this case, however, the denial of this opportunity is not so material that it gives rise to a claim for a new trial. Nor does it demonstrate abuse of discretion on the part of the trial court for allowing thewitnesses from theparticular "class" to testify. Thus,we affirm on this issue.

IV Inregard to issue 4,the relevant facts are as follows: Forsyth's first trial occurred in Flathead County. After reversal of the conviction in the first trial, the second trial occurred inLakeCounty. Following themistrial of the second trial, the State moved to return venue to Flathead County, and proposed that the jury be composed of citizens fromTooleCounty. The lower courtgranted this request over Forsyth's objections. After the third trial the defensemoved for a new trial

on the grounds that trialpublicity prejudiced the jury. The defenseproduced evidencepurporting to showprejudice in the form of transcribed radio broadcasts aired during the trial.The defense produced no evidence that the jurors heard the radiobroadcasts. Forsyth contends that the District Court erred by granting the State's motion for a change of venue from Lake County to Flathead County, with a jury selected from Toole County. The State responds that the trial court had discretion under S 46-13-203, MCA, to return the case to FlatheadCounty. We agree. The applicable part of the statute reads:

If the court determines that there exists in the county in which the prosecution is pending such prejudice that a fair trial cannot be had, it shall: (a) transfer the cause to any other court of competent jurisdiction in any county in which a fair trialmay be had; (b) direct that a jury be selected in any county where a fair trialmay be had and then returned to the county where the prosecution ispending to try the case;or

(c) take any other actiondesigned to insure that a fair trial may be had.
After the second trial the parties agreed that a new

venue was necessary to insure a fair trial. The State's motion suggested that Flathead County could provide a fair forum if the jurors were selected from outside Flathead County and LakeCounty. The result at first glance resembles an application of subsection (b)

## , i.e., the option to select a jury from another county and return the case to the county where the prosecution is pending. However, in this case, after selection of the jury from Toole County, the cause did not return to Lake County, where it was most recently pending.Instead, it returned to Flathead County, where the first trial occurred. Thus, technically, subsection (b) did not apply. Apparentlv recognizing that subsection (b) did not apply,the lower court specifically relied on subsection (c). We hold that the lower court acted within its discretion in applying subsection (c)

# . ThisCourt will not:

overturna DistrictCourt order grantingor denying a motion for change ofvenue unless such action is found to be arbitrary or capricious, or, in other words,an abuse of discretion.

State v. Beach (Mont. 1985), 705 P.2d 94, 102, 42 St.Rep. 1080, 1087. The inquiry here is whether the District Court took action to insure a fair trial. This issue is primarily a question of fact. Beach, 705 P.2d at 102. In Beach we upheld the lower court's application of subsection (a)of the statute because the lower court properly balanced the competing considerations of cost and inconvenience to the prosecuting county, with the defendant's right to a fair trial. Beach, 705 P.2d at 102. The lower court in Beach also reserved the right to reconsider the defendant's objections to venue if voir dire showed prejudice. Beach, 705 P.2d at 102. Here, the State points out that the crime

scene and most of the witnesses were located in Flathead County. The State also contends that there has been no showing of prejudice among the Toole County jury panel. We agree that Forsyth's contentions onprejudice among the jury panel fails. In regard to the jury itself, the lower court took actions to insure that they were insulated from prejudice within the community. Thus, we hold that the lower court properly balanced the considerations at issue in this
case,and properly applied subsection (c)

# .Forsyth also contends that the Flathead venue provided an unfair forum because jurors were exposed to prejudicial radiobroadcasts. After the jury verdict, Forsythmoved for

a new trialbased on the exposure. However, the lower court denied the motion holding that Forsyth failed to carry the burden of showing such exposure occurred. Forsyth offers nothing on appeal to controvert this ruling except an unsupported assertion that the burden to show a fair trial shouldbe placed on theprosecution,and that the trialcourt failed to give the "defendant opportunity to complete the record". First, the record reveals that the lower court provided Forsyth an adequate opportunity to muster evidence for this claim, and second, the burden belongs properly on the defendant in this type of situation. State v. Kirkland (1979), 184Mont. 229, 242, 602P.2d 586, 594.



### v The relevant facts on issue 5 are as follows: Forsyth moved for a new trial on the grounds that evidence coming to lightafter the trial inferred that witnesses CharliePerkins and Timothy Hiser testified in exchange for favors from the State. New evidence also revealed that presiding District Court Judge Michael D. Keedy corresponded with State's witness Hiser concerning Hiser's problems at prison prior to Hiser's testimony at Forsyth's third trial. First, in regard to Perkins, the lower court properly denied a new trial topresent evidence that Perkinswanted a transfer. New evidence which is merely cumulativeor tending only to impeach does not provide grounds for a new trial. State v. Short (1985), 702 P.2d 979, 984, 42 St.Rep. 1026, 1032. Forsyth brought out Perkins's desire fora transfer at trial. There has been no showing that the transfer Perkins received after the trial was promised before trial. Thus,

### the new evidence in regard to Perkins isboth cumulative and tending only to impeach. The same is true as to the new evidence concerning Hiser. There is no proof that officials promised Hiser an early release in exchange for his testimony, and the effect of thenew evidence at trialwould be 

### only impeachment. There is a further contention that the District Court Judge improperly failed to informdefense counsel that Hiser feared for his life while in prison prior to testifying for the State in the third trial. Hiser testified at the third trial that Forsyth and Forsyth's counsel spread rumors to endanger his life. The contention on appeal is that the District Court Judge should have disclosed Hiser's prior fears so that Forsyth could use the informationto discredit Hiser. This, again is merely cumulative, tends only to impeach, and does not amount to grounds for a new trial.

VI 

### Issue 6 

### concerns attorney fees for Forsyth's counsel. Forsyth's counsel moved for attorney fees and necessary expensesonJune 25, 1986. 

### However, thismotion had notbeen heard at the time that this appeal was made. Forsyth contends this Court should order the District Court to hear and determine the motion for fees and expenses. We agree. The District Court is hereby ordered to hear and determine the motion as soon as the needed information on the fees can be gathered,and as soon as themotion can be scheduled. We further order the District Court to include fees for this appeal in the determinationonthemotion.

VI

### I Issue 7 

### relates to Forsyth's sentence. The District Court Judgepresiding over the first trial sentenced Forsyth

### to 70 

### years for the murder. The sentencing judge after the verdict of the third trial sentenced Forsyth to 100 

### years, with an enhancement of 10 

### years for the use of a weapon. Forsyth contends that the increase violates his due process rights. Forsyth also contends that the lower court violated his due process rightsby enhancinghis sentenceby tenyears foruse of adangerousweapon. The State responds that objective identifiable evidence justified the increased sentence, and that this Court. has 

### rejected the contention made by Forsyth in regard to enhancementof sentences. Due process guarantees resentencing free from vindictiveness stemming from reversal. As 

### explained by the United StatesSupremeCourt:

Due process of law, then, requires that vindictiveness against 

### a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendantbe freed of apprehension of such a retaliatory motivation on the part of the sentencing judge. In order to assure the absence of such a motivation,wehave concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of defendant. occurringafter the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.North Carolina v. Pearce, (1969), 395 U.S. 711, 725-26, 89 S.Ct. 2072, 2080-81, 23 L.Ed.2d 656, 670-71. Since Pearce, other United States Supreme Court cases have further explained this particular right:

InWasmanv. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984), the Supreme Court indicated that relevant conduct or events that occurred subsequentto the original sentencing proceedings are those that throw "new light upon the defendant's 'life,health,habits,conduct,and mental and moral propensities.

### '" Id. 104 S.Ct. at 3225-26 (Powell, J. concurring), quoting North Carolinav. Pearce, 395U.S. at 723,89 S.Ct. at 2079. Due process bars an increased sentence where no intervening conduct or events justifies the increase, United Statesv. Whitley, 734 F.2d 994, 996 (4th Cir.1984), or where no objective information concerning petitioner's conduct or culpability justifying the increase has been received. Texasv. McCullough, U.S. 

## , 106 S.Ct. 976, 980-981,89 L.Ed.2d 1041986).- Thompson v. Armontrout (W.D.Mo. 1986), 647 F.Supp. 1093, 1095. Thus, due process rights on resentencing create a presumption ofvindictiveness when a sentence is increased on remand. However, where a different judge sentences upon retrial:

it does not follow that the second sentencer would have any reason to have acted vindictively against the defendant. Texas v. McCullough (1986), 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104;Coltenv. Kentucky (1972), 407 U.S. 104; 92 S.Ct. 1953, 32 L.Ed.2d 584.
Village of Lodi v. McMasters (0h.App. 1986), 511N.E.2d 123, 125. In this case, the first sentencer, District Court Judge Robert Sykes, was replaced by District Court Judge Douglas Harkin for resentencing after the third trial. Thus, thereis nopresumptionofvindictivenessand thedefense must show actual vindictiveness. McMasters, 511 N.E.2d at 125. Forsyth hasmade no such showing. Thus,we affirm as to the additions to Forsyth's sentence. Forsyth also contends that due process requires notice and an opportunity to defend against enhancementof sentence for use of a weapon under 

### 5 46-18-221,MCA. Forsyth cites Pearce and Spechtv. Patterson (1967),386U.S. 605, 87S.Ct. 1209, 18 L.Ed.2d 326, for this proposition. Pearce holds that a defendant may not be twice punished for the same crime. Pearce, 395U.S. at 718. Spechtheld that invocation of Colorado's Sex Offender's Act constituted a "new charge leading to criminal punishment". Specht, 386 U.S. at 610. However, 

### 5 46-18-221,MCA, "does not provide for a separate, substantive offense". State v. Davison (1980), 188 Mont. 432, 445, 614 P.2d 489, 497. Thus, the information is sufficient if it states that a firearm was used in the commission of the offense. Davison, 614 P.2d at 497. That. is the casehere,andwe affirmon thiscontention. Finally, in regard to the sentence, Forsyth complains that the lower court failed to give him credit for time served. The lower court's Sentence reads:

4. The Defendant is granted credit for time spent in presentence incarceration while awaiting the dispositionof thismatter.

We hold that the Sentence's "presentence incarceration",and the application of 

### 55 46-18-402 to -403,MCA,mandate credit for the time Forsyth has spent in jail and prison since chargeswerebrought in this case.

JusticeWeConcur: 

# 4.- 

# ZML

Chief ~ustm

JusticesMr. Justice JohnC. Sheehy,dissenting:

SPEEDYTRIAL I protest the way the majority has papered over the facts relating to the issue of speedy trial. The long and intolerabledelay in bringing this defendant to a third trial is the direct result of the improper tactics of the prosecution, the intransigenceof the District Court and the unwillingness of this Court, when requested, to face the issues and make a decision. Those factors which served to delay the third trial cannot all be laid at the feet of the defendant. Forsyth was originally charged in the District Court of Flathead County, with deliberate homicide on January 28, 1980. His first trial was held in that county during March and April, 1980 and resulted in his conviction. We reversed in State v. Forsyth (1982), 197 Mont. 248, 642 P.2d 1035. The District Court then determined that a fair trial could notbe had in FlatheadCounty and so theplace of trial

was changed to Lake County. Forsyth underwent a second trial commencing December 1, 1982,where amistrial was ordered on January 2, 1983,because of ahung jury. Up through the second trial, Forsyth had been represented by private counsel retained by him. The two trials apparently depleted his assets, and as an indigent person, he applied to the District Court for the appointment of his formerly retained counsel to representhim at county expense. TheDistrictCourt refused,and proposed instead to require that Forsyth be represented 

### by the Flathead County public defender. At somepoint in these proceedings, the two counsel, who had formerlybeen retainedby Forsyth to defend him, offered to continue representing him in his defense and

### to charge the county for their services at the rate paid by the county to itspublic defenders and to chargebut for one attorney. Nonetheless, the District Court persisted in looking firstto thepublic defendersandwhen conflictthere showed, to another firm of attorneys who were completely without knowledge of the facts and defenses supplied to Forsyth's case. Even these counsel protested they had conflictsof interestand couldnot representForsyth. The question of Forsyth's defense counsel required two petitions to this Court. His firstpetition here was denied

on May 11, 1983, where we held that there was no showing sufficienttowarrant supervisory control. When the District Court persisted in appointing defense counsel other than his retained counsel, Forsyth again petitioned this Court for a 

### writ of supervisory control and on October 6, 1983, on the order of this Court, the writ was granted and Forsyth's present counselwere appointed atpublic expense. Thus, the two petitions in this Court relating to the appointment of his counsel for a third trial were necessitated by the inexplicable refusal of the District Court judge to appoint,at the same expense to the county as

a public defender, those attorneys most directly conversant with the case and who had obtained for Forsyth a reversal of his first conviction, and a hung jury on the second trial.. The appointment of counsel was not the only problem faced by Forsyth before the District Court. Forsythmade a demand, as was his right, for a transcript atpublic expense of the testimony and proceedings in the second trial. Section 3-5-604,MCA, provides that in a criminal case where the defendant isunable topay for a transcript, it shallbe furnished to him and paid for by the state. The District Court first limited the transcript which he would permit to that of defendant's testimony and the State's witnesses.

### Although Forsyth made several motions for a full transcript, and included this problem as part of the writs which he was pursuingbefore this Court it was notuntil January 13, 1984, that the District Court ordered that he be suppliedwith the remainder of the transcript. Perhaps the majority can explain how defense counsel could properly prepare for the third trial without having available to them the full transcriptofthe second trial. Again, the majority attribute this delay completely to 

### thedefendant. I

### urge and insist that these two itemsofdelay,brought about by the District Court itself, cannot be characterized

as institutional delay to be weighed less heavily, or otherwise attributableto the defendant; for ifthedefendant must bear the brunt ina speedy trial computation in choosing between pursuing his legal rights to a fair defense or proceeding with ineffective counsel, improperly prepared, he isgiven no choice atall. A third itemwhich causeddelaywas the immoderate order of the DistrictCourt to change the place of trial fromLake County to Flathead County. The poisoned atmosphere that pervaded Flathead County was the reason that the trial had been changed to Lake County originally. True, a jury was imported from Toole County to Flathead County for the third trial. The task of the jury in Flathead County was like having a band of Gauls to choosewho shouldwin between the Christians and the lions before thepacked Roman citizenry in the coliseum in the days of the Caesars. The change of place of trial, the refusal of the District Court to dismiss on his jury tampering charge,and the denial of the DistrictCourt ofhis motion for dismissal for lack of speedy trial caused Forsyth to come to thisCourt again seekinga

### writ of supervisory control. His applicationwas filed here on September 24, 1984, 631 days after the mistrial caused by a hung jury in Lake County. A final decision onhis application forwrit did not come out of this Court until July 2, 1985. The further delay of 281 days can mostly be attributed to amistake of lawmade by this Court. In its first opinion, issued January 3, 1985 (701P.2d 1356!, the majority held that the refusal of a district court to dismiss criminal charges on a double jeopardy claim did not warrant supervisory control, and that the remedy on a double jeopardy claim for a criminaldefendant lay only in an appeal followinghis conviction or in a post-conviction proceeding. In other words, the majority held that even though he would be subjected to double jeopardy he must nevertheless go to trial a second time. When themajoritywasmade aware of the holding of the United States SupremeCourt inAbney

### v. United States (1977),431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651, it was forced to grant a rehearing. Thus, a final decision did not come on Forsyth's application until July 2, 1985. Thewritwas again refused. In good conscience this Court cannot count against Forsyth a delay caused by the majority's mistake of law. It is galling to read in the majority opinion that the trial delay was "mitigated by the presence of transcripts from the previous trials." In this case,the mistrial on the second trialoccurred on January 2, 1983. The lastvolume of the transcript of the second trial was d livered to Forsyth

on April 23, 1984, a delay itself of

# $6 days, most of it unnecessary. It was said in United States v. MacDonald

(1978), 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18, that in applyingBarkerv. Wingo (1972),407U.S. 514, 92S.Ct. 2182, 33 L.Ed..2d 101, the possibility that the defense will be impaired is the most serious consideration, "because the inability of the defendant adequately to prepare this case

### skews the fairnessof the entire system." Wingo, 407U.S. at 532, 92S.Ct. at 2193, 33 L.Ed.2d at 118. JURYTAMPERING Themajority opiniondoesnot discuss the jury tampering issue, but it was a large factor in the efforts made by Forsyth between the second and third trials to obtain a dismissal on the ground ofdouble jeopardy. Without question, the court's bailiff during the second trial in Lake County made ten documented egregious comments to members of the jury adverse to Forsyth's case. The instances are outlined in my dissent found in 701 P.2d at 1359. Despite the baleful remarks of the bailiff, the majority denied Forsyth'sdouble jeopardy claims because the remarks were not an act of the prosecution, because no conviction was obtained, and, incredibly because "in the present case, the comments could at most be construed as an attempt to assist the state in obtaining a conviction." 701 P.2d at 1356. True, a conviction was not obtained; neither was an acquittal. Who is to say if left the jury untampered, an acquittal might nothave been obtained? I 

### iterate this point to insist that a proper construction of the law in cases of jury tampering by a bailiff is not to be tested by the test applied to prosecutors, whether the bailiffwas attempting toprovoke a 

### mistrial. We cannot know the bailiff's intent in this case. We can only know that his remarks to the jury were inexcusable, in violation of the bailiffIs oath of office,

were abhorrent to our senseof justice,and cannot be excused

on the ground that the bailiff is only attempting "to assist the state in securing a conviction." Oregon v. Rathbun

(1979),287Ore. 421,600P.2d 392.

### CHANGEOF PLACEOF TRIAL Because it may go unreported in the written opinions thathave evolved fromthis case,some mention should be made of the jury climate in which the third trial in Flathead County occurred. The homicide of Karen Forsyth on December 11, 1979 became the subject of intense public discussion in Flathead County. Spurred by pervasive and abrasive newspaper and radio coverage,public sentimentwas brought to awhite heat in that county. After the first trial, and the reversal of the conviction by this Court, the defendant moved in the District Court for a change of place of trial from Flathead County. A 

### surveyofpublic opinion,andpress clippings from the date of thehomicide until the defendantwas sentenced in May, 1980, convinced the then presiding district judge to make findingsof factand a conclusion requiring the cause to be transferred to Lake County before the second trial, because a fair trial could not be had in Flathead County. After the Lake County jury hung up in the second trial and a mistrial was ordered, the State moved the District Court fora changeofplace of trial fromLakeCounty back to Flathead County, requesting that the cause be tried in Flathead County, either before a Flathead County jury or one selected from another county and returned to Flathead County for trial. The court in effect granted thatmotion. Thus, the third trial was returned to Flathead County, the same county, in which it had been earlier judicially determined that defendant could not receivea fair trial. The trial judge commented to the Toole County jury on the firstday of the third trial: Iwould note asyouhave seenalready that there is considerable public interest in these proceedings and you can tell that if by no other reason than the presence of the news media representatives,including a television camera, among other things. 

### Iwant to say at the outset, that even though this controversy has generated a great deal of community interest in Flathead County, and even though as a result of this trial, to a certain extent this Court will probably be under the microscope of public scrutiny as well as the parties and their counsel

# ..

# . The courtwent on to give the jury the usual cautionary instructions that they were not to be influenced by matters outside the testimonyof the trial and the exhibits received. However cautioned, the jury members could not fail to perceive and perhaps to respond to the unremitting pressure for a conviction of thedefendant. Bands of women, sensing somehow that the case involved women's rights,made it their business topack the courtroom, every one of the 41 court days of the third trial. Sandy Richards, testifying that Douglas Richards had admitted to her that he committed the homicide of Karen Forsyth and not the defendant, complained on the record of the laughter coming from themembers of the audienceduringher testimony, from two different sections of the courtroom audience. Interruptions from the audience in the court proceedings during trial are reflected in the court transcript. Everyday,before the jury verdict was announced,prejudicial radio coverage of the trial proceedings was going out over the airwaves. After the third trial,Forsyth filed amotion for a new trial and to supplement the record with respect to the prejudicial trial publicity adverse to the defendant. Defendant claimed that radio broadcasts to which the juror members were exposed contained biased, false and prejudicial statements. One of the jurors had written a post-trial article in the "Shelby Promoter," a newspaper published in Toole County, which article contained several of the radio

### statements. The defendant caused to be issued and served a subpoena duces tecum upon the owner of the offending radio station. On the day of the hearing, the ownerdid not deign to appear,but sent one ofhis employeeswho sought to excuse not bringing the copies of broadcasts on the grounds the broadcast of all the news all over the world was too voluminous to bring to court. On theday of the hearing, the trial court ordered that the radio stationprovide at least

one copy of the longestbroadcast foreach of the courtdays. Before adjourning thehearing,theDistrictCourt stated that the broadcast material would be placed in the record prior to the court's ruling on the motion for a new trial and the defense would be permitted to make its argument. That evening, copies of broadcasts of 27 

### of the 41 days were furnished to the trial judge. No further copies of the broadcast were supplied and no further hearingwas set. Five days later, the District Court denied the motion for new trialwithout further argument orhearing. Thus, the District Court gave the defendant no opportunity to complete the recordwith respectto the effect of the radio broadcasts on the jurors and now the majority condemns the defendant for failing to show such influence. Even ifwe were not to consider the effect of the radio broadcasts, the transcript itself contains enough reference to the packed courtroom antics to assure us that the first district judgewas correct in the firstplace in determining that in Flathead County the defendant could not receive a fair trial. The majority now state that the District Court acted properly in changing the place of trial back to Flathead County because the District Court is empowered under § 

### 46-13-203(3)

### (c), MCA, to "take any other action to ensure that a fair trial may be had." FlatheadCountywas the leastpossible of the 56 counties inMontana inwhich Forsyth could have received a fair trial. Not lost to the taxpayers of Flathead County, especially reminded by the press and radio,

was the mounting cost to them of the prosecution and defense ofForsyth. ADDITION OF NEW WITNESSES In mid-course of the State's case-in-chief in the third trial, the state moved to amend the information to add new witnesses not therefore disclosed to the defendant Forsyth. The courtpermitted the amendment of the information and the subsequent testimony. Thus,Charlie Perkins and Timothy Hiser,prisoners in the Montana State Prison,were permitted to testify that Forsyth had made a jailhouse confession that he killed Karen while Forsyth was incarcerated after the firsttrial. During the second trial of Forsyth, in Lake County, the jury had been permitted to know that Forsyth had been convicted of a homicide in the first trial in Flathead County. In preparation for a third trial, Forsyth and the District Court seemed in agreement that any knowledge of Forsyth's first conviction should be kept from the Toole County jury. Thus, voir dire of prospective jurors from Toole County was conducted without reference to the first conviction, nor any impression the jurors might have regardinga first conviction. When the State proposed to amend the informationto add the name of Charlie Perkins, Forsyth objected strenuously, pointing out Perkins' untrustworthiness, substantiated by

someof theprison staff,andparticularly objecting that his testimonywould reveal to the jury the first convictionabout which Forsyth had not an opportunity to voir dire the prospective jurors. The majority hold that the "denial of this opportunity is not so material that it gives rise to aclaim fora new trial." But see,Statev. Doll (Mont. 1985), 692P.2d 473, 42 St.Rep. 40. In like manner, Timothy Hiser was also permitted to testify to a jailhouse confession. With the amendment of the names of Perkins and Hiser, the issues in the District Court trial took off in all directions. Hearings were necessary to bring in prison officials and othersrespectingthe charactersof Perkins and Hiser. A search was made of the possibility of finding witnesses among the 135prison inmates who might disprove the jailhouse confession (an impossible task). When permitted to testify, the prison inmates not only testified to the jailhouse confession, but claimed Forsyth committed other crimes, including wielding a shank while he was in prison

(Perkinshad in fact been disciplined inprison for carrying a shank,which is a knife-likeobject). Hiser testified that the defendant had made threats to kill the prosecutor, and that his counsel had threatened to reveal to other prisoners that he was an informer. This evidence of other crimes were not noticed pretrial to defendant (Statev. Just (1980)

## , 184 Mont. 262, 602 P.2d 957). Defendant's counsel, however,did not object to the evidenceof other crimes. Post-trial, Forsyth moved for new trial, including as grounds that Perkinsand Hiserhad beenpromised benefits for their testimony. The pretrial hearings had brought out evidence from the prison officials that Perkins under long-term sentences,had wanted to be transferred out of the Montana State Prison; that two states,Washington and Idaho, had refused his transfer; and that as faras theprison staff

was concerned, they would make no other effort to get him transferred. Following the trial of Forsyth, Perkins was transferred to the Wyoming Prison; he never returned to the Montana State Prison following the trial.

### Forsyth further learned post-trial that correspondence existed between Timothy Hiser and the district judge before the third trial in which Hiser complained of the conditions of the Montana State Prison. Although Hiser testified that he was promised nothing for his testimony, following the third Forsyth trial,he was kept in the Flathead County jail until the spring of 1986, when he was completely released from all incarceration though he had been given a five year sentence in 1985. Hiser alsonever returned toMontana State Prison. The District Court denied the motion for new trial

on this ground without giving Forsyth an opportunity to develop further hearings as to what agreements, if any, existed between the State and the prisoners when their testimonywasarranged. The majority approves the District Court's denial of a new trial on this point by stating that the additional evidencewould be merely cumulative impeaching evidenceas to the prison witnesses. That ground understates the impacton the trial of the introductionof this kind of testimony, the distraction of the jurors of having to choose between the testimony of the accused defendant and the uncorroborated testimony of prison inmates who probably stood to benefit from their testimony, and the grinding-down effect of a prolonged trial that ensued fromthe amendmentallowing these witnesses. Defendant's constitutional right to a fair trial isdirectly involved in this issue. CUMULATIVEERROR 

### I do not wish to belabor this dissent by additional comments upon the testimony of the mother of the homicide victim that Forsyth had urinated on the victim; the murder charge filed against Gary Red Elk; the change of testimony of Dr. Johnson; the withholding of the names of witnesses and exculpatory evidence by the State; and, a variety of othererrors and improprieties which made a farce out of the fair trialrequirement in this case. To sustain the conviction, the majority has had to resort to a litany of intonements about "burdens" on the defendant, that claimed errors are "arguable" and that no "prejudice" has resulted to the defendantForsyth. I am unable to be convinced that the errors and improprieties singly or in concert, did not contribute to Forsyth's conviction in the third trial beyond a reasonable doubt. Accordingly, as to those errors and improprieties, I would reverseand grant a new trial. However,because of the bailiff's baleful attempts to assist the prosecution to convict Forsyth in the second trial, 

### I would find that the third trial constituted double jeopardy and order a reversal and dismissalof the case. --

Justice 

# <: 

# :

Mr. Justice William E. Hunt,Sr., dissenting:

I concur in the foregoing