No. 14628 INTHE SUPREME COuKr OF THE STATE OF

## Imwmw 1979



### THE STATE OF MXFANA, Plaintiff andAppellant,

-vsGRJXDW PUZIO and CELESTEALLEN, Defendants and Respondents.

Appeal 

### fran: DistrictCourt of theThirteenth Judicial District, HonorableCharles Luedke, Judge presiding. Counselof Record: For Appellant: Hon. Mike Greely, Attorney 

### General, Helena, Pbntana Mike WCarter,AssistantAttomey General, argued,

Helena, Mtana Harold F. Hanser, CountyAttorney, Billings, Wntana Jock 

### West 

### argued, Deputy CountyAttomey, Billings,

mntana For Respondents: 

## mses, Tolliver and Wright, Billings, mntana Ralph S. Wright argued, Billings, lbntana John L. Adams argued, Billings, 

### mntana

-- Submitted: May 

### 1, 1979 Decided: 

# Lrm~ 30 

## 1979 Filed: 

# -KAY in 

## 1979 -- -&!W. Justice John Conway Harrison delivered the Opinion of the Court.

Defendants 

### were arrested on November 28, 1977, and subsequently charged with the 

### crime of criminal possession with intent to 

### sell dangerous drugs. Trial

### was set by the DistrictCourt for October 10, 1978, some ten and one-half months, or 317 days, after arrest. On September 26, 1978, defendant Puzio moved to dismiss thematter for lack of 

### a speedy trial. The DistrictCourt granted the motion. The State appeals under section 95-2403, R.C.M. 1947, now 

### section 46-20-103 MCA. Before considering the speedy trial issue, however, 

### we must clarify 

### a question of the record 

### we willconsider. Both parties in their briefs make statements of fact concerning the parole revocation of defendant Puzio which 

### are not supported inthe record. The parties on appeal are bound by the record and may not add additional facts in their briefs or by appendices thereto. Thriftv. Thrift (1918), 54 Mont. 463, 171P. 272; Farmers State Bank of Conrad v. Iverson (1973), 162 Mont. 130, 509 P.2d 839. The statements of factnot contained in the record concerning the parole revocation of defendant Puzio have not been considered. In Statev. Tiedemann (1978), Mont. 

## , 584 P.2d 1284, 1287, 35 St.Rep. 1705, 1706-07, this Court discussed the right to a speedy trial: "The right toa speedy trial 

### isguaranteed by both the United States and Montana Constitutions. U.S. Const., Amend. VI; 1972 Mont. Const., art. 11, S24. The right to a speedy trial 

### is fundamental, Klopfer v. North Carolina (1967), 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18L.Ed.2d 1, 8, and the federal standard, 

### as a minimum, is imposed by the due process clause of the Fourteenth Amendment on the 

### states. See Dickey v.Florida (1970), 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26; Smith v. Hooey (1969), 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607. "The touchstone inany analysis of the speedy trial issue 

### is Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 116-17, inwhich the Supreme Court 

### set out a four factor balancing approach with the conduct of both prosecution and defense being weighed. The four factors tobe considered are: 

### "(1)Length of delay; 

### "(2) Reason for the delay; 

### "(3) Defendant's assertion of the right; and, 

### "(4) Prejudice to the defendant. "The Court emphasized the necessity of balancing the factors: "'We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they arerelated factors and must be considered together with such other circumstances asmay be relevant. In sum, these factors have no talismanic qualities; courtsmust still engage in a difficult and sensitivebalancing process.' 407 U.S. at533, 92 S.Ct. at2193, 33 L.Ed.2d at 118. "This Court has adopted and applied the four factor balancing 

### test of Barker ina 

### series of decisions dating back to 1973. See Statev. Collins (1978)I -Mont. 

## , 582 P.2d 1179, 35 St.Rep. 993; Statev. Cassidy (1978), Mont. I 578 P.2d 735, 737, 35 St.Rep. 612; State ex 

### rel. Briceno v. DistrictCourt (1977), 

### -Mont. 

## -, 568 P.2d 162, 164, 34 St.Rep. 927; Statev. Keller (1976), 170Mont. 372, 377, 553 P.2d 1013, 1016; State ex 

### rel. Sanford v. District Court (1976), 170Mont. 196, 199, 551 P.2d 1005, 1007; State v. Steward (1975), 168 ?40nt. 385, 389, 543 P.2d 178, 181; Fitzpatrick v. Crist (1974), 165Mont. 382, 388, 528 P.2d 1322, 1325; State

### v. Sanders (1973), 163Mont. 209, 213, 516 P.2d 372, 375. We reaffirm our support of this 

### test as the cor

### rect and most complete standard available to judge speedy trialquestions." The Court inTiedemann then went on todiscuss the firstfactor, length of delay: "Length of delay. Length of delay has been 

### referred toasthe trigger setting off the speedy trialissue inquiry:"'The length of the delay 

### is to some extent a triggering mechanism. Until 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

### willprovoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.' Barker, 407 U.S. at530-31, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. "Accord, Keller, 170Mont. at377, 553 P.2d at 1017; Steward, 168Mont. at389, 543 P.2d at 181." 584 P.2d 

### at 1287-88, 35 St-Rep. at1707. In the instant case, the 

### time lapse 

### is sufficient to trigger an inquiry into the other three factors of the balancing 

### test. The delay (317 days, ten and one-half months, from dateof arrest todate 

### set for 

### trial) 

### is longer than or comparable tothe delays found sufficient towarrant dismissal inFitzpatrick (seven months), Cassidy (eight months), Sanford (tenmonths), Briceno (tenand one-half months), and Keller (elevenmonths). "The length of delay thus shifts the burden to the State of explaining the reason for the delay and showing absence of prejudice todefendant." Tiedemann, 584 P.2d at1288. See alsoCassidy, 578 P.2d at738; Sanford, 170 Mont. at200, 551 P.2d at 1007; and Fitzpatrick, 165Mont. at388, 528 P.2d at1326. Reason -- for the delay. The parties agree that neither defendants nor the county attorney's officewas the cause of any great delay inthis 

### case. They contend that the main

reason for the delay was crowded court dockets and inadequate calendaring procedures. We agree. Judge Sande had jurisdiction of the case attwo different times as did Judge Luedke. Both Judge Wilson and Judge Martin assumed jurisdiction once. The main cause of the delay 

### was that the case simply satfrom the 

### time Judge Wilson assumed jurisdiction inApril 1978 until he excusedhimself August 9, 1978. On August 16, 1978, Judge Sande again assumed jurisdiction and was again substituted by defendant Puzio. Judge Luedke again assumed jurisdiction, and the matter was eventually 

### set for 

### trial on October 10,

The State argues 

### itprosecuted the case with reasonable diligence and should not be responsible for crowded court dockets and themethod of scheduling 

### trials. We do not agree. The court inCassidy flatly held that this position of the State 

### iswithout 

### merit. 578 P.2d at738. The situation here 

### isvery 

### similar tothat found inBriceno inthat thematter simply saton the calendar from April 1978 until 

### it was eventually 

### set for trial inOctober 1978. In United States v. Jones (D.C. Cir. 1975), 524 F.2d 834, 849, theCourt stated: 

# ".

. . The Supreme Court has held that delays due to the operation of the system alsomust be placed 

### atthe Government's door, stating in Barker v. Wingo: "'A defendant has no duty tobring himself to trial; the Statehas that duty as

### well as the duty of insuring that the trial 

### is consistent with due process 

# . . . [Tlherule

### we announce today, which comports with constitutional principles, places theprimary burden on the courts and the prosecutors to assure that 

### cases are brought to trial.

## '" We find that delays inherent in the system are not chargeable todefendants but rather to the State. The type of institutional delays 

### we have herein enumerated, where a

case is allowed tomerely 

### sit awaiting trial, cannot be overlooked, absent counterbalancing factors. Defendants' assertion of 

### -rights. We find that defendants asserted their rights properly under the guidelines 

### set forthby this Court inState v. Steward (1975), 168 Mont. 385, 543 P.2d 178.The following statement by this Court inCassidy 

### is dispositive on this factor: "3. Defendant's Assertion of the Right. -- "The State argues, inthis regard, that defendant has failed to expedite the proceedings inthis case through any activepleadings before the Dis

### trict Court, such 

### as by requesting an earlier trial date. In addition, it 

### ismaintained that defendant's motion todismiss for denial of a speedy trial

### was untimely, and should have been made atsome point between entry of plea and the setting of the trial date. The State does not specifically contend, however, that defendant in some manner waived his right toassert a denial of a speedy trial. "It

### is, of course, the general rule under the present stateof the law that 

## '. 

# . . an accused must take some affirmative action toobtain a trial tobe entitled toa discharge for delay.' Statev. Steward, 168Mont. 390, 543 P.2d 182. Such burden 

### is satisfied, however, by themaking of an appropriatemotion, discussed by this Court inSteward as follows: "'The "appropriate motion" 

### is a motion todismiss for denial of a speedy 

### trial. The proper 

### time to assert the right toa speedy trial isprior to the actual commencement of the trial, usually atthe 

### time the trial date is 

### set, or the 

### time the case 

### is called to trial

# . . .' 168Xont. 390-91, 543 P.2d 182. "Defendant's assertion of the right in this case was inallrespects proper under the standard outlined inSteward, having been made between the 

### timethe matter 

### was set for trial and the trial date itself

# ." 578 P.2d at739. Prejudice - todefendants. The final factor tobe considered in the balancing process 

### is the question of whether defendants 

### were prejudiced by the delay. This prejudice is further defined inBarker: "Prejudice, of course, should be assessed in light of the interests of defendants which the speedy trialrightwas designed toprotect. This Court has identified three such interests: (i) toprevent oppressive pretrial incarceration; (ii)tominimize anxiety and concern of the accused; and (iii) to 

### limitthe possibility that the defense 

### willbe impaired." 407 U.S. at532, 92 S.Ct. at2193, 33 L Ed 2d at118.

### with regard tooppressive pretrial incarceration, defendant Puzio has been incarcerated since the day of his arrest. Defendant Allen was not incarcerated prior to trial. Puzio 

### was detained inthe Yellowstone County jail away from his family and friends during the entire Christmas and New 

### Year's holidays. Then he was given a parole revocation and was removed from the county jail to the state prison. He

### was then returned toYellowstone County by the sheriff for each of his court appearances and returned to the prison. The second 

### itemtobe considered 

### is the anxiety and

concern of the accused. Here, 

### the delay of 317 days, along with Puzio's removal from Billings across the 

### state toDeer 

### Lodge, and the inability to communicate by telephone 

### were

reasons forPuzio tohave a great deal of concern about the progress inhis case, and a great deal of concern about the preparation of his defense. The lastconsideration under prejudice tothe defendants is 

### the possibility that the defense 

### willbe impaired. Barker states that this concern 

### is the most serious because the inabilityof a defendant adequately toprepare his 

### case skews the fairness of the entire system. The court in Barker commented on the possibility of witnesses dying, witnesses unable to

### recall accurately events of the distant past, and loss of memory. These 

### items are always a problem because the record does not always reflectwhat has been forgotten. In this particular case, Puzio has been incarcerated inthe state prison, a great distance from his defense counsel and the

scene of the crime. He 

### has not been able to assist in the preparation of his defense except by 

### letter. Further, withregard tomemory, the State 

### is the only benefactor since 

### its policy usually requires witnesses to type their statements and scenarios of activitywhich are used torefresh their recollection. However, lay witnesses called by the defendants rarely have their past recollections refreshed by statements and scenarios prepared by them atthe 

### time the events occurred, which, inthis case, was November 28, 1977--two days after Thanksgiving. We find the fact that Puzio has been incarcerated the entire 

### time since his arreston November 28, 1977, demonstrates affirmative prejudice against him. Wereemphasize that 

### we are engaged ina delicate balancing process. The presence of prejudice inthis 

### case should be weighed heavily inthe balancing of allfactors. On balance, 

### we find there has been excessive delay in bringing this 

### case totrial; the Statehas failed to explain satisfactorily thereasons for the delay; the defendants properly and timely asserted their right toa speedy 

### trial; and, prejudice to defendant Puzio has resulted by reason of the delay. We believe the comments of now Chief Justice Haswell in Keller, as 

### set forth inTiedemann again bear repeating: "This Court, as 

### well asmany other courts, has often stated that society atlarge, 

### as well as the individual defendant, has a stake in the speedy disposition of criminal matters. E.g., Barker, 407 U.S. at519-21, 92 S.Ct. at2186-87, 33 L.Ed.2d at 110-11. Inview of the result in this case, the comments of now Chief Justice Haswell inKellerbear repeating:

11 1

# . . .Delayed criminal justice proceedings are undermining public confidence inthe system itself. Justice delayed may not only be justice denied but justice brought seriously under question. The backbone of law enforcement and the justice system ispublic support. The courts must not permit the erosion of that support by permitting unnecessary delay between charge and conviction or release.' 

# . . 

# . " Tiedemann, 584 P.2d at 1292-93.We stated further inTiedemann: "While 

### we willnot tolerate undue delay in the prosecution of an individual defendant, neither 

### will society long tolerate dismissal of criminal charges for lack of speedy trial. Prosecutors and courts must work to avoid the kind of result 

### we reach today." 584 P.2d at1293.

We recommend that the judges of the Thirteenth Judicial Districtof the Stateof Montana would do 

### well to cooperate tothe extent that the situation that occurred in this case 

### is not repeated. The judgment of the DistrictCourt dismissing the charges for lack of 

### a speedy 

### trial is affirmed.

We concur: 

# %ad??$. 

# pAwd! Chief rustice



# -4- /I Justices