No

No. 97-163 & 97-289

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 224

STATE OF MONTANA,

Plaintiff and Respondent, 

v.

JASON HARDAWAY,

Defendant and Appellant.

 APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Maurice R. Colberg, Jr., Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jack E. Sands, Attorney at Law, Billings, Montana

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For Respondent:

Hon. Joseph P. Mazurek, Attorney General

Cregg W. Coughlin, Ass't Attorney General, Helena, Montana

Dennis Paxinos, Yellowstone County Attorney,

Dale Mrkich, Ass't Yellowstone County Attorney, Billings, Montana

Submitted on Briefs: January 15, 1998

Decided: September 9, 1998

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Jason Hardaway (Hardaway) appeals from the decision of the Thirteenth Judicial 

District Court, Yellowstone County, denying his motion to dismiss for lack of speedy 

trial, denying his motion for mistrial as a result of prejudicial comments made 

during jury voir dire and, in a separate matter, denying his motion for defense costs. 

We reverse and remand this matter to the District Court.

Factual and Procedural Background

¶2 Hardaway was arrested on February 22, 1995 following a high speed car chase 

that led to a subsequent foot chase through a field. When the officer caught up with 

Hardaway he was wearing a ladies slip, a black shirt and some jewelry. He was 

carrying a pair of jeans. The officer arrested Hardaway and transported him to the 

Yellowstone County Detention Facility. During an inventory search of Hardaway 

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and the items in his possession, the detention officer found two small bindles 

containing a white powdery substance in the right front pocket of the jeans that 

Hardaway was carrying. The officer also found a bindle and a plastic baggie 

containing a white powdery substance in the right watch pocket of the jeans. The 

white powdery substances tested positive for methamphetamine. Although 

Hardaway later denied ownership of the jeans, Hardaway had the jeans in his 

possession when he was arrested and claimed the jeans from inventory to wear home 

when he was released from custody.

¶3 On February 27, 1995, the State of Montana (State) charged Hardaway with 

criminal possession of dangerous drugs. Hardaway appeared at the arraignment 

with appointed counsel and pled not guilty to the charge. On March 23, 1995, the 

District Court released Hardaway on his own recognizance. Trial on Hardaway's 

drug charge was set to begin on June 27, 1995. For reasons unknown, but believed to 

have been caused by the court's backlog, the case did not proceed to trial in June, but 

was reset for November 6, 1995.

¶4 On November 6, 1995, the court, the prosecutor, defense counsel and the jury 

assembled to proceed with the trial. Defense counsel, however, informed the court 

that he could not find Hardaway. The court issued a bench warrant. Hardaway was 

arrested on November 15, 1995 in Lake County on charges of burglary and theft. He 

was incarcerated and served with the outstanding Yellowstone County bench 

warrant. Yellowstone County charged Hardaway with bail jumping as a result of his 

failure to appear for the November 6, 1995 trial. 

¶5 Hardaway retained new counsel on December 19, 1995. On May 22, 1996, 

Hardaway entered an Alford plea and was sentenced on the Lake County charges of 

burglary and theft. Thereafter, he was transported back to Yellowstone County to 

face the bail jumping and drug possession charges. The District Court set the trial on 

Hardaway's drug possession charge for November 26, 1996 (643 days after his 

arrest).

¶6 On October 9, 1996, Hardaway filed a motion to dismiss the drug possession 

charge based on lack of speedy trial. The court held a hearing and denied 

Hardaway's motion.

¶7 Hardaway's trial for bail jumping began on October 21, 1996. Hardaway called 

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two out-of-town witnesses, one appeared at trial, the other appeared via telephonic 

deposition. Following the presentation of the State's case, the court granted 

Hardaway's motion for directed verdict of acquittal. Defense counsel requested 

reimbursement for costs incurred in obtaining the out-of-town witnesses' testimony 

pursuant to § 46-15-116, MCA. The District Court denied the request for costs 

finding that defense counsel was retained, not court appointed and thus not eligible 

to receive reimbursement for the costs. Hardaway appeals from the District Court's 

decision denying his request for reimbursement (Cause Number 97-289).

¶8 On November 26, 1996, the jury was assembled for trial on Hardaway's drug 

possession charge. When asked if any of the prospective jurors knew the defendant, 

three members of the prospective panel revealed that they had been in court "a 

month ago for the defendant earlier for something else." One of those three 

prospective jurors commented that "[Hardaway] shouldn't have been doing what he 

was doing to be here." This prospective juror was removed for cause. The second 

prospective juror was peremptorily removed, and the third juror sat on the jury that 

decided Hardaway's drug possession case. In addition, another prospective juror 

stated during voir dire that she had seen an account of Hardaway's arrest on 

television, that she believed he was guilty, and that she would find him guilty 

regardless of the evidence presented at trial. This fourth juror was also removed for 

cause. As a result of these damaging comments made in the presence of the entire 

jury panel, defense counsel requested that the court inform the jury during voir dire

that Hardaway had been acquitted of the bail jumping charge. The District Court 

denied Hardaway's specific request, but agreed to instruct the jurors that they were 

not to consider the prior criminal charge in any way. Defense counsel moved for a 

mistrial and the court denied the motion. The trial proceeded and the jury found 

Hardaway guilty of the drug possession charge. Following the jury verdict, 

Hardaway moved for a new trial due to the comments made during voir dire, and the 

court denied the motion. Hardaway appeals from the District Court's denial of his 

motion to dismiss for lack of speedy trial and denial of his motion for mistrial (Cause 

Number 97-163). This Court consolidated Hardaway's two appeals. Hardaway 

presents three issues on appeal:

¶9 1. Did the District Court abuse its discretion in determining that Hardaway's 

speedy trial rights were not violated?

¶10 2. Did the District Court abuse its discretion in denying Hardaway's motion for a 

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mistrial?

¶11 3. Did the District Court err in denying Hardaway's request for reimbursement 

of costs incurred in his defense of the bail jumping charge?

I

¶12 1. Did the District Court abuse its discretion in determining that Hardaway's 

speedy trial rights were not violated?

¶13 A criminal defendant is guaranteed a speedy trial by the Sixth Amendment to 

the United States Constitution and Article II, Section 24 of the Montana 

Constitution. In determining whether a defendant has been denied his right to a 

speedy trial, this Court recently established a four-part balancing test in City of 

Billings v. Bruce, 1998 MT 186, ___ P.2d ___, 55 St.Rep. 750, which loosely follows 

the United States Supreme Court test set forth in Barker v. Wingo (1972), 407 U.S. 

514, 92 S.Ct. 2182, 33 L.Ed.2d 101. The District Court applied the four-part Barker 

test to the facts of this case and determined that Hardaway's right to a speedy trial 

was not violated. We determine, however, that the District Court and the parties did 

not, at the time Hardaway moved for a dismissal based on lack of speedy trial, have 

the benefit of the Bruce decision. Therefore, we remand this issue to the District 

Court to hold a hearing regarding Hardaway's motion to dismiss for lack of speedy 

trial applying the test set forth in Bruce. 

¶14 Under this Court's recently adopted speedy trial test, the District Court should 

analyze four factors: 1) length of delay, 2) reason for delay, 3) assertion of the right 

by defendant, and 4) prejudice to the defense. Bruce, ¶¶55-58. In remanding this 

issue to the District Court, we correct the court's allocation of time under the second 

factor and elaborate on the manner in which the Bruce decision is to be applied. 

¶15 The second factor articulated in Bruce requires the court to consider the reasons 

for the delay. In so considering, the court determines which party is responsible for 

specific periods of time, then respectively allocates the total time delay between the 

parties. 

¶16 The District Court determined that the case would have been tried on November 

6, 1995, but for Hardaway's failure to appear at trial and thus, attributed the time 

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between February 22 (Hardaway's arrest) and November 6 (the second trial date) to 

Hardaway. Hardaway contends that in attributing this time to him, the District 

Court has effectively concluded that Hardaway waived his right to a speedy trial by 

failing to appear on November 6th. Hardaway further argues that he did not appear 

for trial on November 6th because his attorney did not inform him of the trial date. 

Moreover, Hardaway argues that the fact that he was acquitted of the bail jumping 

charge is further evidence that he should not be held accountable for the missed trial 

date and subsequently held responsible for the delay between his arrest and the 

November 6th trial date. 

¶17 We determine that the District Court erred in attributing the time between 

February 22 and November 6 (257 days) to Hardaway. Had the trial been held on 

June 27th, as originally scheduled, Hardaway's right to speedy trial would have been 

satisfied. It is not apparent from the record why the June 27th trial date was vacated 

in favor of the November 6th setting. The District Court ventured that the resetting 

of trial from June 27th to November 6th was likely the result of backlog. Therefore, 

since the time delay between February 22nd to November 6th was not attributable to 

Hardaway, we allocate that time to the State as institutional delay.

¶18 The District Court allocated the 198 days between November 6, 1995 and May 

22, 1996 (while Hardaway was held on Lake County charges) to Hardaway due to his 

failure to appear at the November 6th trial and due to the inability of Yellowstone 

County to obtain jurisdiction over him while he was held in Lake County. Hardaway 

argues that the State acted in bad faith during this period of time. He argues first, 

that as a result of the bail jumping charge in Yellowstone County, he could not post 

bond in Lake County to appear in Yellowstone County. Furthermore, when he did 

appear in Yellowstone County, he was tried on the bail jumping charge before the 

drug possession charge even though the drug possession charge was eighteen months 

older than the bail jumping charge. We agree with the District Court that this period 

of delay was the result of Hardaway's failure to appear at trial (even if he was not 

informed of the date) and his subsequent arrest in Lake County. We reject 

Hardaway's claim of bad faith and therefore allocate this period of delay to 

Hardaway.

¶19 Finally, the District Court allocated the remaining 188 days from May 22 

through Hardaway's trial on November 26 to the State. The District Court, allocating 

only this 188 days to the State, determined that since the 188-day delay was not itself 

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violative of Hardaway's speedy trial right and was not intentional or deliberate, the 

State satisfactorily explained the reasons for the delay. As set forth above, we 

disagree with the court's allocation and, instead, allocate a total of 445 days to the 

State.

¶20 Pursuant to this Court's recent amendments to its speedy trial analysis, as set 

forth in Bruce, ¶56, if the court determines that the State is responsible for 275 or 

more days of the total delay, the State has the initial burden of demonstrating that 

the defendant has not been prejudiced by the delay. The 445-day delay attributed to 

the State exceeds the 275-day threshold and raises a presumption that Hardaway was 

prejudiced by the delay. Thus, in accordance with Bruce, the State has the initial 

burden of demonstrating a lack of prejudice.

¶21 We explained in Bruce that "[t]he State's proof should take into consideration, 

but need not include, all three traditional bases for prejudice: (a) pretrial 

incarceration, (b) anxiety and all of its attendant considerations, and (c) impairment 

of the defense. . . . Once the State has demonstrated lack of prejudice based on one or 

more of these considerations, the burden will then shift to the defendant to 

demonstrate prejudice and the district court will have to weigh the evidence of each 

party." Bruce, ¶56. 

¶22 In stating that the State may demonstrate lack of prejudice on one or more of the 

traditional bases of prejudice, we intended that the State offer proof on as many 

bases as possible and that the District Court weigh that evidence to determine 

whether the burden should shift to the defendant to show prejudice. We clarify that 

if the State can only show lack of prejudice on one of the three traditional bases of 

prejudice, it must, at a minimum, address the question of whether there has been 

impairment of the defense. That is, the State must offer proof that the defense has 

not been impaired by the delay in bringing the defendant to trial. 

¶23 If the State satisfies its burden of demonstrating that the defendant has not been 

prejudiced by the delay, the burden will shift to the defendant to show he/she has 

been prejudiced. With the above correction and this clarification of the Bruce 

decision, we remand this issue to the District Court to hold a hearing on Hardaway's 

motion to dismiss for lack of speedy trial applying the test set forth in Bruce.

II

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¶24 2. Did the District Court abuse its discretion in denying Hardaway's motion for a 

mistrial?

¶25 Hardaway moved for a mistrial during jury voir dire, and moved for a new trial 

after the trial. The District Court denied both of Hardaway's motions concluding 

that Hardaway received a fair and impartial trial. We recently clarified in State v. 

Partin (Mont. 1997), 951 P.2d 1002, 54 St.Rep. 1474, that the district court, when 

deciding whether to grant a mistrial, should determine whether the conduct in 

question denies the defendant a fair and impartial trial. We further clarified that this 

Court will review a district court's ruling on a motion for a mistrial to determine 

whether the court abused its discretion. Partin, 951 P.2d at 1005. 

¶26 In support of his motion for mistrial, Hardaway asserted that the jury panel was 

poisoned by comments made by four veniremen during voir dire. Three of the 

prospective jurors, S.E., D.V., and S.H., stated that they had been on Hardaway's 

jury panel one month earlier for his trial on bail jumping charges and that they 

recognized Hardaway and his attorney from that experience. S.E. expressed that 

"[Hardaway] shouldn't have been doing what he was doing to be here . . ." and that 

she believed she would be a potentially unfair juror in the drug possession case. S.E. 

was removed for cause. D.V. was peremptorily challenged, and S.H. sat on the jury 

that decided Hardaway's drug possession case. In addition, a fourth juror, J.D., 

stated that she had seen an account of Hardaway's arrest on television, that she 

believed he was guilty and that she would find him guilty regardless of the evidence 

presented at trial. J.D. also expressed that "[she] believe[d] that we've got too many 

people being killed for drugs. If we put them away from drugs, we wouldn't have to 

spend taxpayer's money on this [trial]. . . . [We] should just put them in jail." Shortly 

before being removed for cause, J.D. further expressed her opinion that 

"[Hardaway's] guilty or he wouldn't be here."

¶27 As a result of these damaging statements made in open court in the presence of 

the jury panel, defense counsel requested that the District Court inform the potential 

jurors that Hardaway had been acquitted of the bail jumping charges. The court 

refused to so instruct the jury, but agreed to instruct the veniremen that they were 

not to consider other criminal charges in any way. The District Court informed 

defense counsel that it was "this instruction or nothing." Defense counsel indicated 

that he preferred the instruction to nothing, but immediately moved for a mistrial. 

The District Court denied the motion. The case proceeded and the jury found 

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Hardaway guilty of the charges. Hardaway moved for a new trial at the conclusion of 

the trial and the court denied the motion.

¶28 In State v. McMahon (1995), 271 Mont. 75, 894 P.2d 313, this Court analyzed 

several cases wherein district courts had denied motions for mistrial based on juror 

prejudice. We recognized "a trend that improper comments by prosecutors or 

prospective jurors about the defendant or about the evidence, are not grounds for 

mistrial if the judge instructs the jury to disregard the questionable comment and if 

the court is satisfied that the juror can lay aside a fixed opinion and render a verdict 

solely on the evidence presented." McMahon, 271 Mont. at 79, 894 P.2d at 316. In 

McMahon, we held that when comments of members of the prospective jury are so 

prejudicial that they have a "natural tendency" to infect the entire proceedings with 

an unfairness, such prejudice can only be corrected by declaring a mistrial and 

"starting anew the legal contest." McMahon, 271 Mont. at 81, 894 P.2d at 317. 

However, we cautioned that our holding in McMahon should be interpreted 

narrowly and reserved only for the most egregious and prejudicial prospective juror 

comments. McMahon, 271 Mont. at 81, 894 P.2d at 317. We determine that this is 

such a case. 

¶29 Hardaway argues that, "the jury was left with the firm impression that their 

Thanksgiving plans had to be interrupted because they had to hear the case of a 

defendant who had just been convicted a month previously and who was identified as 

obviously guilty by one prospective juror." In addition, Hardaway argues that the 

cautionary instruction given by the District Court, that the jurors should not 

consider other criminal charges in any way, did not defuse the incriminatory 

statements made by the prospective jurors. The State asserts that Hardaway has not 

shown that the jury was prejudiced by the remarks, nor has he established that the 

District Court's cautionary instruction did not cure any supposed harm. 

¶30 We apply the general principle, as we did in McMahon, that " 'any improper 

influence which has the natural tendency to prejudice the verdict is grounds for a 

mistrial.' " McMahon, 271 Mont. at 80, 894 P.2d at 317 (quoting Putro v. Baker 

(1966), 147 Mont. 139, 148, 410 P.2d 717, 722). We conclude that the comments made 

by the prospective jurors in the presence of the entire panel were so prejudicial that 

they had a "natural tendency" to infect the proceedings with an unfairness that 

could only have been corrected by an instruction from the District Court that 

Hardaway had been acquitted of the bail jumping charge, thus preserving 

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Hardaway's presumption of innocence, or by declaring a mistrial and starting anew 

the legal contest. In the absence of such corrective action by the District Court, 

Hardaway was denied a fair and impartial trial. We hold that the District Court 

abused its discretion in denying Hardaway's motion for a mistrial or, in the 

alternative, by failing to instruct the jury that Hardaway had been acquitted on the 

bail jumping charge. Accordingly, in the event the District Court determines that 

Hardaway was not denied a speedy trial, we reverse and remand this matter to the 

District Court for a new trial.

III

¶31 3. Did the District Court err in denying Hardaway's request for reimbursement 

of costs incurred in his defense of the bail jumping charge?

¶32 Following Hardaway's acquittal of the bail jumping charge, defense counsel 

moved for reimbursement of costs incurred in procuring testimony of two out-oftown witnesses. The first witness, Roberta Tamcke, flew from Oregon to Montana 

the day before trial and appeared as a witness at the trial. The second witness, 

Christopher J. Riccardi, was unavailable for trial and appeared via telephonic 

deposition. Defense counsel asserted that, pursuant to § 46-15-116, MCA, he was 

entitled to reimbursement of costs incurred in procuring this testimony. In support 

of his claim on appeal, defense counsel represents that he was acting pro bono on 

behalf of Hardaway. 

¶33 The District Court determined that since defense counsel was retained, not court 

appointed, he was not entitled to reimbursement. Hardaway appeals from the 

District Court's denial of costs. The State moved this Court to dismiss Hardaway's 

claim for costs asserting that this issue does not effect substantial rights of the 

defendant and thus is not proper on appeal. Hardaway counters this argument by 

asserting that this issue is linked to his constitutional right to counsel. In support, 

Hardaway asserts that his court appointed counsel was providing ineffective 

assistance. Hardaway contends that, although his current counsel was willing to 

serve pro bono, his counsel should not be burdened with the witness costs incurred in 

his defense. We deny the State's motion to dismiss and consider Hardaway's appeal 

on the issue of reimbursement of costs. 

¶34 The District Court, in denying reimbursement of witness costs, reasoned that § 

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46-15-116, MCA, "must necessarily be read in conjunction with § 3-5-901, M.C.A." 

and that, the "statute anticipates that the witness fees and expenses will be paid for 

witnesses called on behalf of the prosecution but not on the behalf of privately funded 

retained counsel where a defendant has not as an indigent requested court-appointed 

counsel." The District Court also noted that there was no request for attendance or 

subpoena of Ms. Tamcke pursuant to § 46-15-113, MCA (compelling attendance of 

out-of-state witness), and that the request for reimbursement should be denied for 

that reason. 

¶35 The clear language of § 46-15-116, MCA, states that "[w]hen a person attends 

before a judge, grand jury, or court as a witness in a criminal case upon a subpoena, 

the witness shall receive the witness fee prescribed in Title 26, chapter 2, part 5. . . . 

The court may determine the reasonable and necessary expenses of subpoenaed 

witnesses and order the clerk of the court to pay the expenses from the appropriate 

city or county treasury." Section 3-5-901, MCA, states that "[t]o the extent the 

revenue is available . . . the state shall fund . . . the following district court expenses in 

criminal cases only . . . witness fees and necessary expenses . . . ." We disagree with 

the District Court's interpretation that the statutes apply only to court appointed 

counsel or indigent defendants since the statutes impose no such requirement. The 

only prerequisites that appear in the statutes are that the court has the revenue 

available and that the witness be subpoenaed.

¶36 The record indicates that Ms. Tamcke voluntarily appeared for trial on October 

22, 1996 and acknowledged service of the subpoena shortly before testifying on the 

same day. Having been served with a subpoena prior to testifying, Ms. Tamcke 

qualifies for fees and costs under § 46-15-116, MCA. Moreover, we determine that 

the procedural requirements of § 46-15-113, MCA, for compelling the attendance of 

an out-of-state witness do not apply to an out-of-state witness who voluntarily 

appears and acknowledges service of a subpoena.

¶37 As to deposition costs, Hardaway argues that the statutes allowing costs do not 

distinguish between court appointed and retained attorneys, but rather rely on the 

indigency status of the defendant. Section 46-15-202(7), MCA, provides that 

"whenever a deposition is taken at the instance of a defendant who is unable to bear 

the expense of taking a deposition, the court shall direct that the expense . . . be paid 

by the city for a municipal court proceeding or by the state for a district court 

proceeding." Christopher Riccardi, also an out- of-town witness, was not available to 

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appear at Hardaway's trial. As a result, defense counsel conducted a telephonic 

deposition the night before trial and moved the court the next day for its admission 

into evidence. The court granted the motion allowing the testimony, but subsequently 

denied counsel's request for reimbursement of costs associated with procuring the 

testimony. While § 46-15-202(7), MCA, does not specifically address the cost of a 

telephonic deposition, we note that, in most instances, a telephonic deposition is more 

cost effective than incurring travel expenses associated with conducting a deposition 

in person. We hold that the costs of a telephonic deposition are within the scope of "a 

deposition" under § 46-15-202(7), MCA.

¶38 The record reveals that in Cause Number 97-163, Hardaway was declared 

indigent and an attorney was appointed on his behalf when he was arrested in 1995. 

However, Hardaway obtained new counsel in December 1995, claiming his court 

appointed attorney was rendering ineffective assistance. In addition, the District 

Court, based on Hardaway's showing of indigency, allowed the preparation of 

transcripts for purposes of appeal without cost to Hardaway, thereby supporting 

Hardaway's claim that his indigency status had continued throughout the time that 

counsel requested reimbursement. We agree with Hardaway that a defendant's 

entitlement to reimbursement for deposition costs under § 46-15-202(7), MCA, does 

not hinge on whether the defendant's counsel is court appointed or retained; rather, 

the determining factor is whether the defendant is indigent and thus unable to bear 

the expense. We remand this issue to the District Court for an award of costs 

consistent with this opinion.

¶39 In conclusion, we remand this matter to the District Court for the following 

purposes: First, the District Court shall conduct a hearing on Hardaway's motion to 

dismiss for lack of speedy trial. In conducting such hearing, the District Court shall 

adhere to the corrections and clarifications set forth in this opinion. In addition, the 

District Court shall apply the speedy trial test as recently set forth by this Court in 

City of Billings v. Bruce, 1998 MT 186, ___ P.2d ___, 55 St.Rep. 750. Second, if the 

court determines Hardaway was denied a speedy trial, the court shall dismiss the 

drug possession charge against Hardaway. In the alternative, if the court determines 

that Hardaway's constitutional right to a speedy trial was not denied, the court shall 

promptly set this matter for a retrial based on this Court's holding on Issue II. 

Finally, the District Court shall hold a hearing to determine the amount of 

Hardaway's costs in accordance with this Court's resolution of Issue III. Reversed 

and remanded.

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/S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ JIM REGNIER 

Justice Terry N. Trieweiler concurring in part and dissenting in part.

¶40 I concur with parts II and III of the majority opinion related to Jason 

Hardaway's motion for mistrial and reimbursement for costs incurred in his defense 

against the bail jumping charge. I also concur with the majority's decision to remand 

the speedy trial issue to the District Court for further consideration based on our 

decision in City of Billings v. Bruce, 1998 MT 186, 55 St. Rep. 750. However, I do not 

agree with all that is said in the majority's speedy trial analysis. 

¶41 Specifically, I disagree with the majority's calculation of the number of days 

attributable to the State. The majority concludes, and I agree, that the 257 days of 

delay from the date on which Hardaway was charged until his November 6, 1995, 

trial date is attributed to the State. The majority also concludes, and I agree, that the 

188 days after Hardaway's return to Yellowstone County until his final trial date is 

attributed to the State. However, the majority has arbitrarily concluded, without 

explanation, that the time from November 6, 1995 (the date of the trial at which 

Hardaway did not appear), until May 22, 1996 (the date on which Hardaway was 

returned to Billings following a guilty plea to other charges in Lake County), is 

attributed to Hardaway. The majority makes this conclusion in spite of the fact that 

Hardaway denied knowledge of the November 6 trial date; a jury apparently agreed 

that he had no knowledge of the November 6 trial date; and, whether or not he had 

knowledge of that trial date, he was arrested in Lake County on November 15, 1995, 

served with the outstanding Yellowstone County bench warrant, and could have been 

returned to Yellowstone County for trial at any time thereafter. There is no 

explanation of why the time from November 15, 1995, to May 22, 1996, is any less 

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attributable to the State as institutional delay than the time from May 22, 1996, to 

November 26, 1996. I conclude that it is attributable to the State and, therefore, that 

the total delay which should be attributed to the State in this case is 633 days, rather 

than the 445 days attributed by the majority. Therefore, even though the delay was 

institutional, rather than intentional, I believe that a delay of that length should 

weigh heavily against the State. However, whether the delay is sufficient to require 

dismissal of the charges against Hardaway will depend on further analysis consistent 

with the Bruce decision.

¶42 For these reasons, I concur with the result of the majority opinion, but not with 

all that is said therein.

/S/ TERRY N. TRIEWEILER

Justice William E. Hunt, Sr., joins in the foregoing concurring and dissenting opinion.

/S/ WILLIAM E. HUNT, SR.

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