NO. 86-492 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJERRY PAUL FORSYTH, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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

Montana 

For Respondent: 

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: 

Clerk 
Mr. 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 to dismiss 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 disclose new 

evidence, favorable, or unfavorable, on the issue 

of appellant's guilt, contrary to the District 

Court's standing order. 

B. The State deliberately withheld exculpatory 

evidence. 

C. The State initiated prosecution of a critical 

witness without probable cause one week before 

trial for the sole purpose of discrediting 

the witness. 

(3) Whether the Court erred in permitting 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 for new trial accordingly? 

(5) Whether the Court erred in failing to grant 

Forsyth's motions for a new trial based 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, 642 P.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 transcript of the second trial. 

January 11, 1983 - Defendant's motion that his counsel 

continue to be appointed, and be paid at State expense. 

January 17, 1983 - Defendant's written motion for a 

transcript of the 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 on Defendant's motions. 

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 status affirmed. 

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 

Supreme Court for a Writ of Supervisory Control. 

May 11, 1983 - Supreme Court Order denying the Writ 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 five days within which time to notify the Court of 

the required portion or portions of the transcript and the 

reasons or intended use 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 a hearing on appointment of 

counsel for June 22, 1983. 
June 22, 1983 - Hearing on appointment of counsel, and 

Defendant renewed his motions in writing, 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 the place of trial. 

August 12, 1983 - Order denying Defendant's motion for 

appointment of counsel, and withholding ruling on the request 

for a transcript, until response by counsel. 

August 19, 1983 - Response by Keller and German. 

August 23, 1983 - Order appointing Messrs. Doran and 

Allison as counsel for Defendant. 

August 29, 1983 - Defendant's Petition to Montana 

Supreme Court for Writ of Supervisory Control. 

October 6, 1983 - Writ granted, and Keller and German 

appointed as counsel for Defendant at public 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, in writing, for evidentiary hearings on jury 

tampering and prosecutorial misconduct, and for remainder of 

transcript. 
December 23, 1983 - State's motion for Change of Venue. 

January 5, 1984 - Hearing on State's Motion for Change 

of Venue. 

January 13, 1984 - Order, remainder of transcript 

ordered and tentative trial date of January 30 vacated. 

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 

trial delivered. 

April 24, 1984 - Order denying Defendant's motions to 

dismiss for Double Jeopardy and lack of Due Process. 

May 4, 1984 - Defendant's motion to dismiss for lack of 

speedy trial. 

May 10, 1984 - Hearing on motion 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 trial date of October 1, 1984. 

July 11, 1984 - Defendant's second motion to dismiss for 

lack of speedy trial. 

July 13, 1984 - Hearing on motion to dismiss for lack of 

speedy trial, and Order denying 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 these documents. 

On page 48 of his opening brief, Forsyth concedes that 

the time between October 1, 1984, to July 2, 1985, is 

chargeable to the defense as time occupied in an unsuccessful 

attempt to obtain a writ of supervisory control. (An October 

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 letter documents Forsyth's request to the Clerk 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 relevant period is therefore 

from January of 1983, to July of 1984. 

Forsyth contends that delay caused by the State mandates 

dismissal because his speedy trial rights were violated. 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 the delay. 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 set out 

in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 

L.Ed.2d 101. See State v. Bailey (1982), 201 Mont. 473, 478, 

655 P.2d 494, 497. The four factors are; (1) length of 

delay, (2) reason for delay, (3) defendant's assertion of 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, it must be remembered that: 
"none of the four factors is recognized as either a 

necessary or sufficient condition to 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. The Court must still engage in 

a difficult and sensitive balancing process. See 

Barker, 407 U.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 

complex offenses. Bailey, 655 P.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". State v. 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 in Bailey. 

Forsyth contends specifically that the time from January 

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 also points out that 

it was not until October of 1983 that appropriate counsel was 

appointed. 

Forsyth's further contention on attribution of delay 

concerns the State's change of venue motion. 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 the parties 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 prosecutorial delay. 

An analysis of the pretrial motions made in the lower 

court prior to the third trial supports the State's position. 

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, (later Keller 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 for public 

defense should represent Forsyth. As explained below in this 

opinion, Forsyth later prevailed on the appointment of 

counsel issue. 

In connection with the motion 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 specifying which portions of the record 

should be made available and which should not. 

The venue motion involved the parties' contentions on an 

appropriate forum for a fair trial. The State proposed 

returning venue to Flathead County, the venue of the first 
trial, 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 jury were selected from Toole 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 

procurement of a transcript in January of 1983. Forsyth also 

moved for evidentiary hearings on jury tampering and 

prosecutorial misconduct. In February of 1983, the District 

Court denied the motions, and Forsyth petitioned to this 

Court for a writ of supervisory control. This Court's order 

resolving the petition 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 rulings hereafter set forth. 

2. Petitioner claims error by the District 

Court in refusing to appoint the law firm of Keller 

and Gilmer to represent the defendant in further 

proceedings at public expense. No showing has been 

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 

this purpose. 

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 

the prosecutor and the bailiff at his second trial. 

This claim of error is denied without prejudice 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 should be 

remanded to Judge Douglas Harkin for an evidentiary 

hearing is denied on the basis that by our 

foregoing rulings, no evidentiary hearing is 

necessary. 

7. The Clerk is directed to mail a true copy 

hereof to counsel of record for the respective 

parties and to the Honorable Michael H. Keedy and 

the Honorable Douglas Harkin. 

Following the disposition of 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 represent him. 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 were pending. 

This Court granted Forsyth's second petition for 

supervisory control ordering as follows: 
ORDER 

Relator Forsyth has filed a petition for a 

writ of supervisory control to review the orders of 

the District Court denying appointment of 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 a written response to relator's 

petition. Both the petition and response have been 

fully reviewed by this Court. The extraordinary 

nature of this case requires that this Court 

explain the basis for its Order 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 represent him. 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. 

Present were 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. 

The only remaining public 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 hearing 
was conducted during the June 22, 1983 hearing to 

present information regarding conflicts of 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 

which prevent 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 District Court'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. 

The District Court 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 support these 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. It has not been clearly established what 

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 that preparation 

for trial by any other appointed attorneys would 

require much more time than for Keller and German. 

The record contains nothing to contradict the claim 

of Forsyth that the representation offered by 

Keller and German would be less costly to the 

county than appointment of 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, will 
continue 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 stage would be unfair. 

THEREFORE, IT IS ORDERED: 

1. That this Court accepts jurisdiction of 

the petition for writ 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 the District Court appoint Keller and 

German to represent relator Forsyth at public 

expense, a reasonable rate of compensation to be 

established by the District Court. 

4. The Clerk is directed to mail a true copy 

of this Order to counsel of record for the 

respective parties and to the District Court. 

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 

substantial pretrial controversies; how much 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: the District Court ordered 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. 

Between May of 1984 and July of 1984, the District Court 

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 noted 
above, Forsyth requested transcripts for the hearings on 

prosecutorial misconduct, jury tampering, change of venue, 

and speedy trial to submit with another petition for writ of 

supervisory control. 

The lengthy recitation of these filings helps in 

analyzing the cause of the delay factor from Barker. 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 the attribution and weight attached to the delay caused by 

the pretrial motions which resulted in these interlocutory 

appeals. 

First, the State bears the burden of bringing 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 for delay. Harvey, 603 P.2d at 667. In this case, the 

block of time necessary to adjudicate pretrial motions 
resulting in interlocutory appeals fails to weigh heavily in 

favor of Forsyth's claim. 

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, 474 U.S. at 314. In regard to the cause 

for delay factor, a majority of the Court agreed that delays 

due to a defendant's pretrial appeals: 

ordinarily will not weigh in favor of a defendant'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 receive a 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 the delay attributable to the State from January 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, as documented in our first writ 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 should weigh heavily in his favor because 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 a wholly unjustifiable delay by the appellate 

court." Loud Hawk, 474 U.S. at 316. 

Second, in this case the delay occasioned by 

adjudication of these issues was reasonable and justified. 

For example, the District 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 on who was appointed. This 

Court refused to reverse the lower court's order holding that 

inasmuch as the motion was still pending, the claimed lack of 

transcript was premature. 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 own motion to dismiss. 

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 available public defender firms in Flathead 

County. Thus, our ruling required further proceedings. 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, even 
though 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 complexity of the 

counsel issue, and the lack of a showing the prosecution 

acted intentionally to delay. 

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 

because he moved to dismiss the flawed information instead of 

allowing the case to go forward. This Court rejected the 

argument because: 

[wle cannot penalize the defendant for exercising 

his statutory rights or for the prosecutor's 

mistake. To do so would 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 that one constitutional right should 

have to be surrendered to assert another." 

Bailey, 655 P.2d at 498. 

The particular issue addressed in Bailey, as well 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 for a properly filed information. In the 

present case, the issue concerns the cause for delay factor, 

not the assertion of the right factor. 

The distinction is important. The presence of the 

assertion of the right is entitled to strong evidentiary 

weight in determining whether the defendant is being 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 

weighting process where "different weights should be assigned 

to different reasons". Barker, 407 U.S. at 531-32. Thus, as 

shown by Loud Hawk, the delay due to the State's positions on 

the transcript and appointment of counsel issues only affects 

the weighting process in the reason for the delay factor, not 

the more threshold issue of whether the defendant asserted 

the right to speedy trial. And, ordinarily, this delay will 

not weigh in favor of a defendant's speedy trial claim. 

Loud Hawk, 474 U.S. at 316. 

Factually, the cases are distinguishable in regard to 

the cause of delay factor. In Bailey, 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 from January 5, 1984 

to June 6, 1984, was occupied with the State's venue motion. 

Thus, according to Forsyth, this time period must be 

attributed to the State and weighed in favor of his speedy 
trial claim. Forsyth's argument here sidesteps the fact that 

the venue motion was only one of the issues before the lower 

court during this period. 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 

as well 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 the venue motion. 

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 for delay 

factor supports the State's position on this issue. 

Similarly, the prejudice factor weighs 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. John Pfaff 

Charles L. White 

Debbie Stahlberg (Neff) 

Dale Gifford 

Doris Richards 

Lupe Grif faldo 

Sheryl Hester 

Roger Krauss 

Paul Hahn 

Douglas M. Richards 

Lynn Norbe 

Greg Phillips 

Dawnita French 

Rand Cullen 

Rolene Anderson 

Dawn Morris 

Ron Young 

Kevin Appel 

Dick Stotts 

Steven Klingler 
Jan Beck 

Paula Stalnaker 

Ron DuPuy 

Addison Clark 

Jerry Forsyth 

Ray Dyer 

Tim Schuldheiss 

William Harris 

Dana Joseph Kraut 

Dr. M.E.K. Johnson 

Jon William Ball 

Bonnie Olson 

Dan Hess 

Jim Oleson 

Ed Helmetag 

Gary Red Elk 

Douglas Richards 

Rick Perry 

Paul Forsyth 

On the basis of this review, we hold that the transcript 

mitigated the prejudice caused by failure of witness memory, 

and thus the prejudice factor in this regard fails to weigh 

heavily for Forsyth. In regard to the assertion that use of 

the transcript proved cumbersome and ineffective, we have 

discovered in our review of the testimony that the transcript 

also provided the defense with repeated opportunities to 

impeach State witnesses. 

The State's demonstrative evidence which, according to 

Forsyth, improved with age to his prejudice, involved a test 

at trial demonstrating an allegation made by witness Douglas 

Richards. Richards told the jury that Forsyth had inserted a 

pencil in the barrel of a pistol left purposely 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 the gun left at the scene. At the second and third 

trials, according to Forsyth, Richards had figured out how to 

lift the pistol without leaving residues. Thus, Forsyth 

claims prejudice. 

This particular contention does little to further 

Forsyth's claim. At the third trial Forsyth called a witness 

who had served as an alternate juror. This witness testified 
to the presence of paint chips in the barrel at the first 

trial. Thus, evidence discrediting Richards's demonstration 

was not lost to the defense. 

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 

discredited Perkins. 

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 to weigh heavily 

in favor of Forsyth's claim here. 

The prejudice factor should be evaluated in light of the 

defendant's interests the right to speedy trial protects; 

prevention of oppressive pretrial 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 

transcript minimized impairment of the defense. 

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 the defendant 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 right was 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 also persuaded to affirm because 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, and we affirm on this issue. 

I1 

In connection with subissue A of the second issue, the 

relevant facts and procedure are as follows: Douglas 

Richards revealed to the prosecution 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 trial Johnson varied his testimony 

by stating that he had become more skeptical that the blow 

rendered Forsyth unconscious. 

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 relationship with Forsyth. 
The State knew that Cullen possessed important knowledge 

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 State became aware that Dr. Johnson had 

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 substance of 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. 

Subissue A: 

Forsyth claims that the State violated his due process 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 that Richards allegedly 

revealed the murder to Cullen, could have discredited 

Cullen's testimony. Bremner was a witness at the first two 

trials, but was unavailable 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 file with the clerk of the court 

at the time of arraignment a list of the witnesses 

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 

showing of good cause, no addition is allowed. 

The State contends that good cause existed because the 

State lacked knowledge that the case would 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. 

See Klein, 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 is no 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. 

Following discovery of Cullen, there is no 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 properly 
allowed the testimony. See State v. Liddell (Mont. 1984), 

685 P.2d 918, 924, 41 St.Rep. 1293, 1299. Similarly, in 

regard to violation of the discovery order, prejudice must be 

shown. See State v. Wallace (Mont. 1986), 727 P.2d 520, 524, 

43 St.Rep. 1908, 1912 (suppression of evidence in violation 

of discovery order harmless error in the absence of a showing 

of prejudice) . Over nine weeks elapsed between disclosure of Cullen and 

the October 15, 1985, trial date. Thus, surprise cannot be 

claimed. However, Forsyth contends that the prejudice to his 

case could not be cured by a continuance because of the time 

passing between discovery of Cullen as a witness and the date 

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 Doug Richards. She specifically was 

with Richards when he had his third, and last, 

meeting with Cullen [Tr. page 3261: 11-17] 

(emphasis added). 

Page 3261 of the transcript records some of Richards's 

testimony, and reads in relevant part as follows: 

Q. Do you recall going down to Missoula to 

get this pistol out of a pawn shop down 

there? 

A. I do. 

Q. One that you used for your stunt things 

and that sort of thing? 

A. I do. 

Q. And you would have had Debbie Rremner with 

you when you went to get it, would you 

not? 

A. I believe so. 
Q. And you saw Rand Cullen? 

A. Correct. 

A reading of this excerpt supports the possibility that 

Bremner could discredit Cullen's testimony because the 

implication is that since she was along on the trip, she was 

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 cafe while you were talking 

to Rand by yourself? 

A. Correct. 

Q. She knew what your storv was at that 

time, didn't she? 

A. No. 

Q. You had 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 upset with me when I told him 

on Christmas and like I said it scared him. I did 

not want her to be with me if Rand belittled me. I 

didn't want to be humbled in front of her. It 

could have been a very embarrassing situation and I 

was trying to say I was sorry to him and I guess I 

didn't want to apologize and have him not accept it 

and do it in front of her. 
Thus, Bremner's unavailability does not show prejudice which 

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 other argument in regard to Bremner's supposed 

ability to discredit Cullen's testimony concerns Cullen's 

assertion that Richards appeared more upset during the period 

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, the memory loss occurred prior to 

the time the prosecution spoke with Cullen, and no prejudice 

may be ascribed due to Cullen's poor memory as a result of 

the State's failure to reveal Cullen until 1985. 

Furthermore, our reading of the record reveals that the 

State correctly contends that Forsyth's failure to discredit 

Cullen's testimony did not result from any late revelation of 

Cullen's identity. Cullen was steadfast in his belief that 

Richards helped Forsyth plan and commit the murder. 

Inconsistencies between the details that Richards revealed to 

police and details he revealed to Cullen were brought out on 

cross-examination, and thus were available for consideration 

by the jury. 

In summary, we have reviewed Cullen's testimony, and we 

conclude that the District Court acted within its discretion 

in allowing Cullen to testify. Good cause existed for not 
listing Cullen on the information at 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 cure by continuance. 

Proceeding under the contentions in subissue A, Forsyth 

argues that the admission of Shirley Kienas's testimony in 

regard to an incident where Forsyth allegedly urinated on the 

murder victim constitutes violation of the discovery order 

and denial of due process. Forsyth acknowledges that the 

prosecution listed Kienas as a possible 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 incident occurred 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 Justices on this Court 

asked for an explanation. Counsel for the parties did not 

know at that time what 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 relationship with his wife. 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 showing 
Forsyth mistreated 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 testimony had supported Forsyth's 

claim that robbers had rendered him unconscious with a blow 

to the head prior to his wife'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. The defense also concedes that the lower court 

ruled that the prosecution could not 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. " [GI iven 

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. 

Subissue B: 

The relevant facts in regard to subissue B concern Rand 

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 the prosecution's failure to reveal Cullen 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, there has been no denial of fair trial, and we will not 
proceed to consider the numerous other requirements for such 

claims as is made here. 

Subissue C: 

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 a witness at the first trial by 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 that Red Elk 

had in his possession a gun similar to the murder weapon 

prior to the murder. 

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 the defense. 

There is little doubt that the misconduct Forsyth 

alleges here would, in the appropriate case, constitute a 

violation of the guarantee of 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 and murdering 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 State discovered in the middle 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 insurmountable by a 

continuance, (2) improper disclosure of the verdict from 

Forsyth's first trial, (3) inability to voir dire the jurors 

concerning their attitudes towards prison inmates in general. 

These claims are made here on appeal. The State responds 

that: (1) the week continuance given to Forsyth to prepare 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 of knowledge of Perkins at the time of the 

arraignment constitutes good cause for not adding his name to 

the listed witnesses. The continuance granted Forsyth to 

meet the testimony mitigated surprise. Thus, the lower court 

acted within its discretion. 
We are also swayed by the lack of support for Forsyth's 

contention that he had no opportunity to properly voir dire, 

and that disclosure of the prior conviction resulted in 

prejudice. The record reveals that prior 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 knowledge of the confession. Thus, 

Forsyth can claim no 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 list after trial has 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 the witnesses from the particular "class" 

to testify. Thus, we affirm on this issue. 

IV 

In regard 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 in Lake County. Following the mistrial of the 

second trial, the State moved to return venue to Flathead 

County, and proposed that the jury be composed of citizens 

from Toole County. The lower court granted this request over 

Forsyth's objections. 

After the third trial the defense moved for a new trial 

on the grounds that trial publicity prejudiced the jury. The 

defense produced evidence purporting to show prejudice in the 

form of transcribed radio broadcasts aired during the trial. 
The defense produced no evidence that the jurors heard the 

radio broadcasts. 

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 

Flathead County. 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 trial may be had; 

(b) direct that a jury be selected in any county 

where a fair trial may be had and then returned to 

the county where the prosecution is pending to try 

the case; or 

(c) take any other action designed 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 Lake County. 

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) . This Court will not: 

overturn a District Court order granting or denying 

a motion for change of venue 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 on prejudice 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 

radio broadcasts. After the jury verdict, Forsyth moved for 

a new trial based 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 

should be placed on the prosecution, and that the trial court 

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), 184 Mont. 229, 242, 602 P.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 

light after the trial inferred that witnesses Charlie Perkins 

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 to present evidence that Perkins wanted a 

transfer. New evidence which is merely cumulative or 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 for a 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 is both 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 the new evidence at trial would be only impeachment. 

There is a further contention that the District Court 

Judge improperly failed to inform defense 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 information to 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 

expenses on June 25, 1986. However, this motion had not been 

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 the motion can be scheduled. We 

further order the District Court to include fees for this 

appeal in the determination on the motion. 

VI I 

Issue 7 relates to Forsyth's sentence. The District 

Court Judge presiding 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 rights by enhancing his sentence by 

ten years for use of a dangerous weapon. 

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 

enhancement of sentences. 

Due process guarantees resentencing free from 

vindictiveness stemming from reversal. As explained by the 

United States Supreme Court: 

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 defendant be 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, we have 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. 

occurring after 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: 

In Wasman v. 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 subsequent to 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 Carolina v. Pearce, 395 U.S. at 723, 89 S.Ct. 

at 2079. Due process bars an increased sentence 

where no intervening conduct or events justifies 

the increase, United States v. 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. Texas v. 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 of vindictiveness 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; Colten v. 

Kentucky (1972), 407 U.S. 104; 92 S.Ct. 1953, 32 

L.Ed.2d 584. 

Village of Lodi v. McMasters (0h.App. 1986), 511 N.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, there 
is no presumption of vindictiveness and the defense must show 

actual vindictiveness. McMasters, 511 N.E.2d at 125. 

Forsyth has made 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 enhancement of sentence 

for use of a weapon under 5 46-18-221, MCA. Forsyth cites 

Pearce and Specht v. Patterson (1967), 386 U.S. 605, 87 S.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, 395 U.S. at 718. Specht held 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 case here, and we affirm on this contention. 

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 disposition of this matter. 

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 

charges were brought in this case. 

Justice 
We Concur: 

4.- ZML 

Chief ~ustm 

Justices 
Mr. Justice John C. Sheehy, dissenting: 

SPEEDY TRIAL 

I protest the way the majority has papered over the 

facts relating to the issue of speedy trial. The long and 

intolerable delay in bringing this defendant to a third trial 

is the direct result of the improper tactics of the 

prosecution, the intransigence of 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 not be had in Flathead County and so the place of trial 

was changed to Lake County. Forsyth underwent a second trial 

commencing December 1, 1982, where a mistrial was ordered on 

January 2, 1983, because of a hung 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 represent him at county 

expense. The District Court refused, and proposed instead to 

require that Forsyth be represented by the Flathead County 

public defender. At some point in these proceedings, the two 

counsel, who had formerly been retained by 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 its public defenders and to charge but for one 

attorney. Nonetheless, the District Court persisted in 

looking first to the public defenders and when conflict there 

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 

conflicts of interest and could not represent Forsyth. 

The question of Forsyth's defense counsel required two 

petitions to this Court. His first petition here was denied 

on May 11, 1983, where we held that there was no showing 

sufficient to warrant 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 counsel were appointed at public 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. Forsyth made a 

demand, as was his right, for a transcript at public expense 

of the testimony and proceedings in the second trial. 

Section 3-5-604, MCA, provides that in a criminal case where 

the defendant is unable to pay for a transcript, it shall be 

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 

pursuing before this Court it was not until January 13, 1984, 

that the District Court ordered that he be supplied with 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 

transcript of the second trial. 

Again, the majority attribute this delay completely to 

the defendant. 

I urge and insist that these two items of delay, brought 

about by the District Court itself, cannot be characterized 

as institutional delay to be weighed less heavily, or 

otherwise attributable to the defendant; for if the defendant 

must bear the brunt in a speedy trial computation in choosing 

between pursuing his legal rights to a fair defense or 

proceeding with ineffective counsel, improperly prepared, he 

is given no choice at all. 

A third item which caused delay was the immoderate order 

of the District Court to change the place of trial from Lake 

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 choose who should win between the 

Christians and the lions before the packed 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 District Court of his motion for dismissal 

for lack of speedy trial caused Forsyth to come to this Court 

again seeking a writ of supervisory control. His application 
was filed here on September 24, 1984, 631 days after the 

mistrial caused by a hung jury in Lake County. A final 

decision on his application for writ did not come out of this 

Court until July 2, 1985. The further delay of 281 days can 

mostly be attributed to a mistake of law made by this Court. 

In its first opinion, issued January 3, 1985 (701 P.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 criminal defendant lay only in an appeal 

following his 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 the majority was made aware of the 

holding of the United States Supreme Court in Abney 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. 

The writ was 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 trial occurred on January 2, 1983. The last volume 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 

applying Barker v. Wingo (1972), 407 U.S. 514, 92 S.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 fairness of the entire system." Wingo, 407 U.S. at 

532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. 

JURY TAMPERING 

The majority opinion does not 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 of double 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's double 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 not have 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 bailiff was attempting to provoke 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 bailiff Is oath of office, 

were abhorrent to our sense of 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), 287 Ore. 421, 600 P.2d 392. 
CHANGE OF PLACE OF TRIAL 

Because it may go unreported in the written opinions 

that have evolved from this 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 sentiment was brought to a white 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 survey of public opinion, and press clippings from 

the date of the homicide until the defendant was sentenced in 

May, 1980, convinced the then presiding district judge to 

make findings of fact and 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 for a change of place of trial from Lake County 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 that motion. Thus, 

the third trial was returned to Flathead County, the same 

county, in which it had been earlier judicially determined 

that defendant could not receive a fair trial. 

The trial judge commented to the Toole County jury on 

the first day of the third trial: 

I would note as you have seen already 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. 

I want 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 court went on to give the jury the usual cautionary 

instructions that they were not to be influenced by matters 

outside the testimony of 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 the defendant. 

Bands of women, sensing somehow that the case involved 

women's rights, made it their business to pack 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 the members of the audience during her 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 a motion 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 owner did not deign 

to appear, but sent one of his employees who 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 the day of the hearing, the 

trial court ordered that the radio station provide at least 

one copy of the longest broadcast for each of the court days. 

Before adjourning the hearing, the District Court 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 hearing was set. Five 

days later, the District Court denied the motion for new 

trial without further argument or hearing. 

Thus, the District Court gave the defendant no 

opportunity to complete the record with respect to the effect 

of the radio broadcasts on the jurors and now the majority 

condemns the defendant for failing to show such influence. 

Even if we 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 judge was correct in the first place 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." Flathead County was the least 
possible of the 56 counties in Montana in which 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 

of Forsyth. 

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 court permitted 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 

first trial. 

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 

regarding a first conviction. 

When the State proposed to amend the information to add 

the name of Charlie Perkins, Forsyth objected strenuously, 

pointing out Perkins' untrustworthiness, substantiated by 

some of the prison staff, and particularly objecting that his 

testimony would reveal to the jury the first conviction about 

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 a 
claim for a new trial." But see, State v. Doll (Mont. 1985), 

692 P.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 others respecting the characters of Perkins and 

Hiser. A search was made of the possibility of finding 

witnesses among the 135 prison 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 

(Perkins had in fact been disciplined in prison for carrying 

a shank, which is a knife-like object). 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 (State v. Just (1980) , 184 

Mont. 262, 602 P.2d 957). Defendant's counsel, however, did 

not object to the evidence of other crimes. 

Post-trial, Forsyth moved for new trial, including as 

grounds that Perkins and Hiser had been promised 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 far as the prison 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 also never returned to Montana 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 

testimony was arranged. 

The majority approves the District Court's denial of a 

new trial on this point by stating that the additional 

evidence would be merely cumulative impeaching evidence as to 

the prison witnesses. That ground understates the impact on 

the trial of the introduction of 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 from the amendment allowing these 

witnesses. Defendant's constitutional right to a fair trial 

is directly involved in this issue. 

CUMULATIVE ERROR 

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 other 
errors and improprieties which made a farce out of the fair 

trial requirement 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 defendant Forsyth. 

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 reverse and 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 dismissal of the case. -- 

Justice 

Mr. Justice William 

I concur in the 

E. Hunt, 

foregoing 

Sr., 

<: 

dissenting: 

: