No. 94-359

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

APPEAL FROM: District Court of the Seventeenth Judicial District,

In and for the County of Phillips,

The Honorable M. James Sorte, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Hon. Joseph Mazurek, Attorney General, Mark J.

Murphy, Assistant Attorney General, Helena, Montana;

Ed Amestoy, Phillips County Attorney, Malta, Montana

For Respondent:

Robert D. Morrison, Morrison Law Firm, Whitefish,

Montana

Filed:

Submitted on Briefs: January 19, 1995

Decided: April 18, 1995
Justice James C. Nelson delivered the Opinion of the Court

The State of Montana appeals from an order of the Seventeenth

Judicial District Court, Phillips County, dismissing the action

against the defendant, Larry D. Matthews, for lack of a speedy

trial. We affirm.

The State raises three issues on appeal, which we have

consolidated into one issue and state as follows:

Was the defendant denied his constitutional right to a

speedy trial?

Larry Matthews is the owner/operator of Delta Ford, a motor

vehicle dealership in Malta, Montana. On May 12, 1993, Matthews

was charged by information with six counts of forgery, all

felonies, in violation of § 45-6-325, MCA, or in the alternative

six counts of felony theft, in violation of § 45-6-301, MCA. The

information alleged that Matthews drafted six cash rebate checks in

amounts of $500 or $1000, on the account of the Ford DivisionCustomer Cash Assistance account. The checks were made payable to

the six customers who were entitled to receive the rebates.

According to the affidavit in support of the information, Matthews

made the checks payable to the benefit of Delta Ford, and forged

the customers' names on the checks without their knowledge or

authority. The information alleged that Matthews' purpose was to

either defraud the customers of the rebate money, or to defraud the

manufacturer.

Matthews was summoned to appear on the charges on May 21,

1993. Matthews appeared in court with his attorney on this date,

2
and was advised of the charges against him. Matthews requested

more time to enter a plea, and the court continued the matter to a

later date.

The record indicates that no further action was taken on the

case until June 18, 1993, when Matthews moved to dismiss the

information. The motion raised the issue of failure to charge with

certainty and precision in the information, as well as raising the

issue of insufficiency of the affidavit in support of filing the

information. Matthews also requested discovery and inspection of

evidence in the State's possession on this same date. The

prosecution then moved for a continuance to respond to the motion

to dismiss which the court granted. The District Court never ruled

on Matthews' pretrial motions.

The next action indicated by the record occurred on September

21, 1993, when Matthews moved the court to compel discovery, and

suppress evidence. Matthews also requested that the court hold an

evidentiary hearing on his motion to suppress. The State responded

to the motions, however again the court made no rulings on the

motions.

On December 9, 1993, the State filed a motion to set a trial

date, which indicated that Matthews had been properly arraigned,

but that a trial date had not yet been set. Matthews objected to

the motion on December 15, 1993, on the basis that he had not been

arraigned, and because the court had never ruled on his pretrial

motions.

Further delay was caused by the retirement of Judge Leonard H.

3
Langen, who retired from the bench on December 31, 1993. The

newly-appointed District court Judge recused himself from

jurisdiction on January 14, 1994, as did the District Court Judge

invited to assume jurisdiction. District Court Judge James M.

Sorte assumed jurisdiction on February 7, 1994.

The court then set a date for a jury trial for March 7, 1994.

Although not evident from the record, the State claims that

Matthews objected to the trial date, apparently on the grounds that

the court had not ruled on his pretrial motions, and because he had

never been arraigned. Consequently, the District Court scheduled

a hearing on the motions for April 18, 1994. This hearing was

rescheduled for May 2, 1994, due to "scheduling conflicts."

The parties appeared in court on the scheduled date, and the

court heard arguments on Matthews' motion to dismiss and took the

matter under advisement. The court also heard argument concerning

Matthews' motion to compel discovery, and ordered the State to

prepare an order directing the Clerk of the District Court to

release the investigative file concerning Matthews.

At this same hearing, Matthews advised the court that he would

be filing a motion to dismiss for failure to provide a speedy

trial. Matthews filed this motion on May 16, 1994, and on June 7,

1994, the District Court entered its order dismissing the action

with prejudice. The State appeals from this order.

A criminal defendant's right to a speedy trial is guaranteed

by the Sixth Amendment to the United States Constitution and

Article II, Section 24, of the Montana Constitution. State v.

4
Stewart (1994), 266 Mont. 525, 529, 881 P.2d 629, 632. This Court

uses the test from Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct.

2182, 33 L.Ed.2d 101, to determine whether a defendant's

constitutional right to a speedy trial has been violated. State ex

rel. Briceno v. District Court (1977), 173 Mont. 516, 568 P.2d 162.

This test requires a balancing of the following four factors:

1) length of the delay;

2) reason for the delay;

3) assertion of the right by the defendant; and

4) prejudice to the defendant.

Stewart, 881 P.Zd at 632. No one factor is determinative, rather,

each factor is weighed in light of the surrounding facts and

circumstances. Stewart, 881 P.2d at 632.

The first factor to be considered, the length of the delay, is

of primary importance, as it acts as a "triggering" mechanism. If

the delay is found to be presumptively prejudicial, this triggers

further analysis of the remaining three factors. State v. Eklund

(19941, 264 Mont. 420, 424, 872 P.2d 323, 326. In this case the

State concedes that the delay of 298 days from the date Matthews

was charged (May 12, 19931, to the date he would have been tried,

(March 7, 1994), is sufficient to warrant further analysis. See,

State v. Thompson (1993), 263 Mont. 17, 865 P.2d 1125 "[al delay of

over 200 days will usually trigger the full analysis." Because of

the presumption of prejudice, the State has the burden of providing

a reasonable explanation for the delay, and for showing that

Matthews was not prejudiced by the delay. Eklund, 872 P.2d at 326.

Consideration of the second factor, the reason for the delay,

requires us to allocate portions of the overall delay between the

5
parties to determine which party is responsible for causing any

given period of delay. Thomoson, 865 P.2d at 1135. The record

indicates that the delay in this case can be entirely attributed to

the State, and resulted from the District Court's failure to rule

or take any action on Matthews' pretrial motions and for its

failure to arraign Matthews. In fact, in its brief in opposition

to Matthews' motion to dismiss for lack of a speedy trial, which it

filed in District Court, the State conceded that:

[allthough the delay results entirely in time spent

deciding defense motion[sl, it would be disingenuous to

suggest that the Defendant caused the delay. The

District Court must be allowed reasonable time to decide

motions, the time spent on these motions is excessive.

The District Court never decided those Motions.

While the State attempts to attribute the delay to Matthews on

appeal, we conclude that the delay resulted from the court's

failure to arraign Matthews, from its failure to rule on the

pretrial motions, and the prosecution's lack of diligence.

The delay caused by the court's failure to arraign Matthews,

and to rule on the pretrial motions is classified as "institutional

delay," and is chargeable to the State. State v. Hembd (1992), 254

Mont. 407, 413, 838 P.2d 412, 416. Institutional delay weighs less

heavily on the State than does purposeful delay. Hembd, 838 P.2d

at 416. While the prosecution argues that it "did everything

reasonably within [its] means to bring this case to trial," the

record does not reflect that the prosecution attempted to set a new

date for Matthews' arraignment and entry of plea, or to notify the

court of its failure to hold a proper arraignment. In addition,

while the prosecution claims it contacted the court concerning its

6
failure to rule on Matthews' pretrial motions, it produced nothing

by means of affidavit or otherwise to demonstrate it had done so.

With regard to the prosecution's diligence in bringing the

case to trial, the only formal action the prosecution took was when

it filed the motion to set a trial date on December 9, 1993.

Matthews objected to this motion because he had not been arraigned

and because the court had not ruled on his pretrial motions.

Because Matthews' objection was merely advising the court of its

failure to arraign him and to rule on his pretrial motions, we

cannot attribute this delay to him.

The State has a duty to move the prosecution forward in a

timely manner. State v. Barker (1993), 261 Mont. 379, 383, 862

P.2d 1112, 1115. The State failed to demonstrate a compelling

circumstance to warrant the institutional delay, or that it

diligently pursued bringing Matthews' case to trial. Accordingly,

we weigh the entire delay against the State. Barker, 862 P.2d at

1115.

In addressing the third factor, assertion of the right, the

State argues that the manner in which Matthews asserted his right

does not suggest that he made a good faith effort to obtain a

speedy trial. The State contends that Matthews sat by idly and did

nothing to get the case moving, and only when the District Court

began to move the case along, by setting a trial date, did Matthews

assert his right to a speedy trial.

The State relies on State v. Carden (1977), 173 Mont. 77, 88,

566 P.2d 780, 786, in support of its argument that the manner in

7
which a defendant seeks a speedy trial is "entitled to strong

evidentiary weight in determining whether the defendant is being

deprived of the right." Quoting Barker, 407 U.S. at 531, 92 S.Ct.

2192-93. According to the manner in which the defendants in Carden

asserted their speedy trial right, we concluded that they did not

really want a speedy trial. In Carden, the defendants did not

request a speedy trial until 507 days after they were charged,

during which time they had asked for and received continuances and

had failed to object to continuances requested by the State. In

addition, prior to filing their motion for a speedy trial, the

defendants had not pursued any pretrial discovery. Finally we

noted that the defendants waited until the eve of trial to file

their motion for dismissal for lack of a speedy trial. Carden, 566

P.2d at 786.

The facts of Carden are distinguishable from the facts of the

instant case. Here, Matthews asserted his right to a speedy trial

at the first appearance he was required to make since he initially

appeared on May 21, 1993. Matthews also had filed pretrial

motions, including a request for discovery and a motion to compel

discovery. Based on these facts, we conclude that Matthews

satisfied the assertion of the right element by notifying the court

of his intent to move to dismiss the action on speedy trial grounds

at his first appearance, and by his filing the motion shortly

thereafter.

The final factor which must be analyzed under the Barker test

is prejudice to the defendant. Prejudice is assessed in light of

8
three interests which the speedy trial right was designed to

protect. These interests are : (1) prevention of oppressive

pretrial incarceration, (2) minimization of the defendant's anxiety

and concern, and (3) avoidance of impairment of the defense.

Barker, 862 P.2d at 1115. All three factors are important,

however, the most critical interest is impairment of the defense.

Stewart, 881 P.2d at 633.

In considering the first interest, the prevention of

oppressive pretrial incarceration, we conclude that Matthews did

not suffer any prejudice as a result of pretrial incarceration, as

he was never incarcerated.

Regarding the second interest, anxiety and concern, the

District Court noted that the felony charges levied against

Matthews, and his affidavit demonstrate that he suffered anxiety

and concern. The State argues however, that Matthews' claims of

anxiety and concern are purely conclusory, and the State was not

afforded an opportunity to challenge Matthews' claims that he

suffered prejudice as a result of anxiety and concern.

We find the State's arguments unpersuasive. Matthews did

present some evidence by affidavit that he suffered anxiety and

concern, and the State failed to meet its burden to prove that

Matthews was not prejudiced. Barker, 862 P.2d at 1116. Regarding

the State's argument that it was not provided an opportunity to

challenge Matthews' claims concerning anxiety and concern, we note

that the State did not request an evidentiary hearing to rebut

Matthews' claims, and therefore this argument is without merit.

9
The final interest we must consider is whether Matthews'

defense was impaired by the delay. In this case the record

indicates that Matthews moved to compel discovery of interviews the

State conducted of sixty-one Delta Ford customers. Matthews

alleged that the interviews would provide exculpatory evidence

because the procedures used in dealing with those customers were

the same as those used in dealing with the customers involved in

the charged counts. According to Matthews, the interviews would be

exculpatory because he believed the individuals interviewed were

satisfied with the manner in which they received or were credited

with rebates. Matthews moved the court to compel this discovery

because he did not have the resources to interview all sixty-one

customers. The court never ruled on Matthews' motion.

On appeal, Matthews alleges the records are now unavailable

because they have either been lost or destroyed. The State does

not deny this allegation, but instead argues that Matthews was not

prejudiced by not having the interview notes because Matthews knew

who his business customers had been, and he could have interviewed

them if he thought they held exculpatory information. In light of

both Matthews' allegations concerning the loss or destruction of

the interview records, and the State's apparent concession to this

charge, we conclude that Matthews' defense was prejudiced by the

delay.

After considering the four factors of the Barker test in

relation to the circumstances of this case, we conclude that the

State has failed to meet its burden of rebutting the presumption of

10
prejudice and demonstrating a reasonable excuse for the delay

Therefore, we hold that the District Court was correct in granting

Matthews' speedy trial motion and dismissing the charges with

prejudice.

d AFFIRMED.

11