No. 87-468 

IN THE STJPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsNORMAN GERALD BARTNES , 

Defendant and Appellant. 

APPEAL FROM: District Court of the Sixteenth Judicial District 

In and for the County of Custer, 

The Honorable Alfred R. Coate, Judge presiding. 

COITMSEL OF RECORD: 

For Appellant: 

James G. Hunt, Helena, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Paul D. Johnson, Asst. Atty. General, Helena 

Keith D. Haker, County Attorney, Miles City, Montana 

Submitted on Briefs: Oct. 13, 1988 

Decided: November 29, 1988 

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Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The defendant, Mr. Rartnes, was convicted by a jurv of 

criminal sale of dangerous drugs in the District Court for 

the Sixteenth Judicial District, Custer County. He appeals 

his conviction and sentence. We affirm. 

The issues presented to this Court are: 

1. Was the defendant denied his constitutional rights 

by either pre-indictment or post-indictment delay? 

2. Did the District Court err in refusing the defendant's jury instructions on criminal possession of dangerous 

drugs or criminal possession with intent to sell? 

Robert Fairchild, an undercover agent for the Montana 

Criminal Investigation Bureau, testified at trial that in May 

of 1986, the defendant had sold him methamphetamine, which is 

a dangerous drug under Montana law otherwise known as 

"crank." Agent Fairchild testified that the drug connection 

was established through Sandra JO Stone, from whom he had 

purchased drugs during the course of his undercover investigation in Miles City, beginning in January 1986. 

On May 7, 1986, Agent Fairchild contacted Ms. Stone and 

told her he wanted to buy an ounce of methamphetamine. Ms. 

Stone told him that she would make contact with a person 

named "Bruno," whom Agent Fairchild identified at trial as 

the defendant. Ms. Stone and Agent Fairchild went to a bar 

where the defendant was playing cards. Ms. Stone testified 

that she made contact with the defendant at the bar, but that 

no sale took place at that time and that she told Agent 

Fairchild to stop by her residence later than evening. Agent 

Fairchild testified that when he arrived, Ms. Stone made a 

phone call to arrange the drug sale, presumably with the man 

named "Bruno." Following the conversation, Ms. Stone told 
Agent Fairchild he could purchase an ounce of methamphetamine 

after the bars closed at 2 a.m. 

Agent Fairchild later telephoned Ms. Stone and arranged 

to meet her at another bar to consummate the deal. He went 

to the bar accompanied by a Billings detective, and was told 

by Ms. Stone that she would take him to the defendant's 

house. Agent Fairchild testified that at the residence, the 

defendant produced a small cellophane bag containing a white 

powdery substance, and that he gave the defendant $1,700 cash 

in exchange for the contents. A forensic scientist for the 

state crime laboratory testified that the powder sold to 

Agent Fairchild contained methamphetamine. In addition to 

providing "crank," Agent Fairchild testified that the defendant also offered to sell him quantities of other drugs 

including LSD, ounces of cocaine, and pounds of marijuana. 

Was the defendant denied his constitutional rights by 

either pre-indictment or post-indictment delay? 

The information was filed in this matter on September 

30, 1986. This occurred 146 days after the May 7 transaction 

which led to the charges. On February 5, 1987, an omnibus 

hearing was held and trial was set for March 21, 1987, which 

was 175 days after the information was filed and 321 days 

after the May 7 incident. Eight days prior to trial, the 

defendant filed a motion to dismiss for delay in charging, or 

in the alternative, for failure to provide a speedy trial. 

The District Court denied the motion because there was no 

showing that the defendant had suffered from any delay or 

that the delay was caused by the State. The defendant contends that after reviewing the transcript, it is apparent 

that the delay did in fact contribute to memory loss and 

resulted in preiudice to him. He also contends that the 
State's reasons for the delay are not sufficient to preclude 

dismissal of the charges because his right to a speedy trial 

was violated. 

In analyzing Mr. Bartnes' claims, we first note that 

this Court has distinguished between pre-indictment delay and 

post-indictment delay. See State v. Goltz (1982), 197 Mont. 

361, 642 P.2d 1079, and cases cited therein. The reasoning 

behind this distinction rests upon the interpretation of the 

speedy trial clause of the Sixth Amendment. The United 

States Supreme Court has held that as far as the speedy trial 

clause is concerned, any pre-indictment delay is irrelevant 

since it is only a formal indictment or information or actual 

restraint imposed by arrest which triggers the protection of 

that provision. United States v. Lovasco (1977), 431 U.S. 

783, 788-89, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752, 758. As 

this Court pointed out in Goltz, the protections which guard 

against lengthy pre-indictment delays are the statute of 

limitations and the due process clause of the Fifth and 

Fourteenth Amendments. Goltz, 642 P.2d at 1081-82. Thus, 

two different Constitutional provisions offer protection to 

the criminal defendant at various stages of the proceedings. 

The pre-indictment stage is protected by the due process 

clause, while the post-indictment stage is protected by the 

speedy trial clause. 

Under a due process analysis, this Court has held that 

the inquiry is whether the pre-indictment delay caused substantial prejudice to the defendant's right to a fair trial 

and whether the delay was used as an intentional device to 

gain a tactical advantage over the accused. Goltz, 642 P.2d 

at 1082, citing United States v. Marion (1971), 404 U.S. 307, 

324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468, 481. At the 

pre-indictment stage, the burden of proof is on the defendant 
to establish actual prejudice. Goltz, 642 P.2d at 1082, 

citing United States v. West (9th Cir. 1979), 607 F.2d 300, 

304. 

In this case there were 146 days, or just under five 

months, between the time Mr. Bartnes sold the drugs to Agent 

Fairchild and the filing of the information. Agent 

Fairchild's testimony indicated that it was not practical to 

make each arrest at the time he became aware of the illegal 

activity due to the nature and size of the investigation. He 

testified that it was necessary to maintain his undercover 

status in order to assure the presence of enough agents to 

simultaneously make all the arrests involved in the Miles 

City investigation. The record fails to show that the State 

used the pre-indictment period to gain a tactical advantage 

over the accused. 

The defendant contends that pre-indictment delay caused 

actual prejudice by dimming the memories of the witnesses and 

that this interfered with his ability to present an entrapment defense. Entrapment is an affirmative defense requiring 

the defendant to prove 1) criminal intent or design originating in the mind of the police officer or informer; 2) absence 

of criminal intent or design originating in the mind of the 

accused; and 3) that the accused was lured or induced into 

committing a crime he had no intention of committing. State 

v. Canon (Mont. 1984), 687 P.2d 705, 710, 41 St.Rep. 1659, 

1665. The record in this case is replete with evidence that 

the defendant was engaged in the business of selling dangerous drugs. This evidence refutes Mr. Bartnes' contention 

that he had no criminal intent or that he would not have made 

the sale without inducement from the agent. 

The defendant argues that Ms. Stone could not sufficiently recall a conversation with him in which he expressed 
reservation about dealing with Agent Fairchild. After examining her testimony, we conclude that the testimony does not 

indicate an inability to recall any facts which support the 

defendant's claim that he had no criminal intent or that 

Agent Fairchild lured him into selling the drugs. If anyone 

induced Mr. Bartnes to make the sale, it was Ms. Stone who 

responded to the agent's request by leading him to the defendant. There is no evidence that Agent Fairchild prodded or 

coerced Ms. Stone into arranging the deal. The testimony of 

both Agent Fairchild and Ms. Stone establishes that Ms. Stone 

acted upon her own initiative in soliciting the help of Mr. 

Bartnes to obtain the drugs. We hold that there has been no 

violation of the defendant's due process rights by any 

pre-indictment delay. 

The defendant also contends that his right to a speedy 

trial was violated due to delays chargeable to the State. 

The information was filed September 30, 1986. Trial was 

scheduled for March 24, 1987, but did not take place until 

June 24, 1987. The defendant concedes that he is responsible 

for that three month period of delay. Thus, we are concerned 

with the 175 days from the filing of the information to the 

scheduled trial date. 

To evaluate the effect of any post-indictment delay 

under the speedy trial clause of the Sixth Amendment, the 

United States Supreme Court has identified four factors to 

consider 1) length of the delay; 2) reason for the delay; 3) 

the defendakt's assertion of the right; and 4) prejudice to 

the defendant. Barker v. Wingo (1972), 407 U.S. 514, 530, 92 

S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117. In applying the 

factors, the lenqth of delay acts as a triggering mechanism 

so that: 
[ulntil there is some delay which is presumptively 

prejudicial, there is no necessity for inquiry into 

the other factors that go into the balance. Nevertheless, because of the imprecision of the right to 

speedy trial, the length of delay that will provoke 

such an inquiry is necessarily dependent upon the 

peculiar circumstances of the case. 40? U.S. at 

530-31, 92 S.Ct. at 2192-93, 33 L.Ed.2d at 117-18. 

A 175 day post-indictment period is somewhat less than 

the delay periods in other cases where this Court has found a 

presumption of prejudice. State v. Palmer (Mont. 1986), 723 

P.2d 956, 43 St.Rep. 1503, (256 days); State v. Chavez 

(1984), 213 Mont. 434, 691 P.2d 1365, (214 days); State v. 

Ackley (19821, 201 Mont. 252, 653 P.2d 851, (257 days). The 

State argues that the 175 day delay less the period of time 

attributable to the defendant through several motions, leaving a total of 152 days, is insufficient to establish a 

presumption of prejudice. In a strict comparison with previous cases cited above, we tend to agree. However, when 

looking to the "peculiar circumstances of the case" as suggested by the Court in Barker, we choose not to halt our 

analysis at this point. The record shows that the majority 

of the delay is attributable to the State, and that this is a 

relatively uncomplicated case both in its preparation and 

presentation. The State is therefore required to give a 

reasonable excuse for that delay or to show that the defendant was not prejudiced. Palmer, 723 P.2d at 958. 

The second factor in the Barker analysis is the reason 

for the delay. The State contends that the 152 days of delay 

attributable to itself was institutional rather than intentional and was not used as a tactical device. While delay 

inherent in the system weighs less heavily than intentional 

delay, it is still chargeable to the State and does not offer 

an excuse. Ackley, 653 P.2d at 853-54. 
The third Barker factor is the assertion of the right to 

a speedy trial by the defendant. The State concedes that Mr. 

Bartnes asserted his right in a timely and proper fashion. 

Finally, the State must show that the defendant was not 

prejudiced by the delay. Three interests which are adversely 

affected by prejudice as identified in Barker have been 

adopted by this Court: 1) to prevent oppressive pretrial 

incarceration; 2) to minimize anxiety and concern of the 

accused; and 3) to limit the possibility that the defense 

will be impaired. Chavez 691 P.2d 1369. In this case, the 

defendant was in jail only one day prior to trial. The 

defendant's assertion of prejudice relates to the third 

interest cited above, in that the delay caused an impairment 

of memory which affected his ability to present his entrapment defense. 

We have already discussed this matter in relation to 

pre-indictment delay and we reach the same conclusion regarding any post-indictment delay. The testimony of Ms. Stone 

does not reveal that she suffered any memory loss relating to 

the elements of an entrapment defense. The record fails to 

demonstrate that Mr. Bartnes suffered oppressive pretrial 

incarceration or anxiety, or that the defense was impaired in 

any way. We conclude that his right to a speedy trial has 

not been violated. 

Did the District Court err in refusing the defendant's 

jury instructions on criminal possession of dangerous drugs 

or criminal possession with intent to sell? 

The defendant was charged with the offense of criminal 

sale of dangerous drugs in violation of § 45-9-101, MCA. He 

argues that the District Court erred in failing to instruct 

the jury regarding the 1-esser included offenses of criminal 
possession of dangerous drugs in violation of 45-9-102, 

MCA, and criminal possession with intent to sell in violation 

of S 45-9-103, MCA. Under the theory upon which the defendant's case was tried, such instructions on a lesser included 

offense theory were not appropriate. 

The defendant argued in his case in chief that the State 

was guilty of entrapment by its use of the undercover agent 

and Ms. Stone soliciting the sale of drugs. If the defendant 

had convinced the iury of entrapment, he would have been 

entitled to an acquittal of the charge of criminal sale of 

dangerous drugs. In State v. Ostwald (1979) , 180 Mont. 530, 

538-39, 591 P.2d 646, 651, this Court stated: 

. . . where an accused is either guilty of the 

offense charged or is entitled to an acquittal . . . an instruction on the lower offense is not necessary and is properly refused. The Court may not be 

put in error for refusing to instruct on a lesser 

offense in such cases. 

We further point out that criminal sale of dangerous 

drugs does not include possession as an element of the crime. 

Criminal sale of dangerous drugs is defined as follows: 

A person commits the offense of criminal sale of 

dangerous drugs if he sells, barters, exchanges, 

gives away, or offers to sell, barter, exchange, or 

give away or manufactures , prepares, cultivates, 

compounds, or processes any dangerous drug, as 

defined in § 50-32-101. 

Section 45-9-101(1), MCA. As the statute makes clear, possession is not an element of the crime with which the defendant was charged. 

We therefore conclude that the District Court did not 

err in refusing to give the offered instructions on criminal 
possession of dangerous drugs and criminal possession with 

intent to sell. 

Affirmed.