No. 87-468

IN THE STJPREMECOURTOF THE STATEOF MONTANA
1988

STATE OF MONTANA, Plaintiffand Respondent,-vsNORMAN GERALD BARTNES

## , Defendantand Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District In and for the County of Custer, TheHonorableAlfred R. Coate, Judgepresiding.
COITMSEL OF RECORD:
ForAppellant:
JamesG. Hunt,Helena,Montana
For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Paul D. Johnson,Asst. Atty. General,Helena Keith D. Haker,CountyAttorney,Miles City,Montana

Submitted on Briefs: Oct. 13, 1988 Decided: November 29, 1988



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# &&d&d P$ CClerkMr. 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 convictionand sentence. We affirm. The issues presented to this Court are: 1. Was the defendant denied his constitutional rights by either pre-indictment orpost-indictment delay? 2. Did the District Court err in refusing the defendant's jury instructions on criminal possession of dangerous drugs or criminal possessionwith intent to sell? Robert Fairchild, an undercover agent for the Montana Criminal Investigation Bureau, testified at trial that inMay of 1986,the defendanthad soldhim 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 inMiles 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 thebar,but that
no sale took place at that time and that she told Agent Fairchild to stopby 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 toldAgent Fairchild he could purchase an ounce ofmethamphetamine after thebars 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 cellophanebag 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 eitherpre-indictment orpost-indictment delay? The information was filed in this matter on September 30, 1986. This occurred 146 days after theMay 7 transaction which led to the charges. On February 5, 1987, an omnibus hearing was held and trialwas set forMarch 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 amotion todismiss 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 theState's reasons for the delay are not sufficient topreclude dismissal of the chargesbecause his right to a speedy trial

wasviolated. In analyzing Mr. Bartnes' claims, we first note that this Courthas distinguished between pre-indictment delay and post-indictment delay. See Statev. Goltz (1982),197Mont. 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 Courthas held that as far as the speedy trial clause is concerned, any pre-indictment delay is irrelevant since it is only a formal indictmentor informationor actual restraint imposed by arrest which triggers theprotection 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 Courtpointed 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 Courthas 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, 642P.2d at 1082,citing United Statesv. Marion (1971),404U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468, 481. At the pre-indictment stage,the burden ofproof is on the defendantto establish actual prejudice. Goltz, 642 P.2d at 1082, citing United States v. West (9thCir. 1979), 607 F.2d 300, 304. In this case there were 146 days, or just under five months, between the timeMr. Bartnes sold the drugs toAgent Fairchild and the filing of the information. Agent Fairchild's testimony indicated that itwas not practical to make each arrest at the time he became aware of the illegal activitydue to thenature 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 prejudiceby dimming thememories of thewitnesses and that this interfered with his ability to present an entrapment defense. Entrapment is an affirmative defense requiring the defendant toprove 1)criminal intent or design originating in themind of thepolice 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 defendantwas engaged in the business of selling dangerous drugs. This evidence refutes Mr. Bartnes' contention thathe had no criminal intentor thathe would not have made the salewithout inducement from the agent. The defendant argues that Ms. Stone could not sufficiently recall a conversation with him in which he expressedreservation 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 requestby 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 thatMs. 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. Thedefendant concedes that he is responsible for that threemonth period ofdelay. 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. Barkerv. Wingo (1972),407U.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 ispresumptively prejudicial, there isno necessity for inquiry into the other factors thatgo into thebalance. Nevertheless,because of the imprecisionof the right to speedy trial, the lengthof 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 caseswhere this Court has found a presumption of prejudice. Statev. Palmer (Mont. 1986), 723 P.2d 956, 43 St.Rep. 1503, (256 days); State v. Chavez

(1984), 213 Mont. 434, 691 P.2d 1365, (214days); State v. Ackley (19821,201 Mont. 252, 653 P.2d 851, (257days). The State argues that the 175 day delay less the period of time attributable to the defendant through severalmotions, leaving a total of 152 days, is insufficient to establish a presumption ofprejudice. In a strictcomparisonwith 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 defendantwas notprejudiced. Palmer, 723 P.2d at 958. The second factor in the Barker analysis is the reason for the delay. The State contends that the 152days ofdelay 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 trialby the defendant. The State concedesthatMr. Bartnes asserted his right in a timely and proper fashion. Finally, the Statemust show that the defendantwas not prejudiced by thedelay. Three interestswhich 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-indictmentdelay andwe reach the same conclusion regarding any post-indictment delay. The testimony of Ms. Stone doesnot 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 incarcerationor anxiety,or that the defensewas impaired in any way. We conclude that his right to a speedy trial has notbeen violated.

Did the District Court err in refusing the defendant's jury instructions on criminal possession of dangerous drugs or criminalpossessionwith intent to sell? The defendant was charged with the offense of criminal sale of dangerousdrugs in violation of § 45-9-101,MCA. He argues that the District Court erred in failing to instruct the jury regarding the 1-esserincluded offenses of criminalpossession of dangerous drugs in violation of 45-9-102, MCA, and criminal possessionwith intent to sell inviolation of S 45-9-103,MCA. Under the theory upon which the defendant's casewas tried, such instructions on a lesser included offense theorywere not appropriate. The defendantargued inhis case in chief that the State
was guilty of entrapment by its use of the undercover agent and Ms. Stone soliciting the saleof 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 Statev. Ostwald (1979)

### , 180Mont. 530, 538-39, 591 P.2d 646, 651,this Court stated:



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# . . where an accused is either guilty of the offense charged or is entitled to an acquittal

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# .an instructionon the lower offense is not necessary and isproperly refused. The Courtmay 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 includepossession as an element of the crime. Criminal saleofdangerous drugs isdefined 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 statutemakes 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 criminalpossession of dangerous drugs and criminal possession with intent to sell. Affirmed.