No. 14628 

IN THE SUPREME COuKr OF THE STATE OF Imwmw 

1979 

THE STATE OF MXFANA, 

Plaintiff and Appellant, 

-vsGRJXDW PUZIO and CELESTE ALLEN, 

Defendants and Respondents. 

Appeal fran: District Court of the Thirteenth Judicial District, 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Pbntana 

Mike WCarter, Assistant Attomey General, argued, 

Helena, Mtana 

Harold F. Hanser, County Attorney, Billings, Wntana 

Jock West argued, Deputy County Attomey, 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~ 3 0 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 

District Court for October 10, 1978, some ten and one-half 

months, or 317 days, after arrest. On September 26, 1978, 

defendant Puzio moved to dismiss the matter for lack of a 

speedy trial. The District Court 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 will consider. 

Both parties in their briefs make statements of fact concerning the parole revocation of defendant Puzio which are 

not supported in the record. The parties on appeal are 

bound by the record and may not add additional facts in 

their briefs or by appendices thereto. Thrift v. Thrift 

(1918), 54 Mont. 463, 171 P. 272; Farmers State Bank of 

Conrad v. Iverson (1973), 162 Mont. 130, 509 P.2d 839. The 

statements of fact not contained in the record concerning 

the parole revocation of defendant Puzio have not been 

considered. 

In State v. 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 to a speedy trial is guaranteed 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, 18 L.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 in any 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, in which the Supreme Court set out a 

four factor balancing approach with the conduct 

of both prosecution and defense being weighed. 

The four factors to be 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 are related 

factors and must be considered together with 

such other circumstances as may be relevant. In 

sum, these factors have no talismanic qualities; 

courts must still engage in a difficult and sensitive balancing process.' 407 U.S. at 533, 92 

S.Ct. at 2193, 33 L.Ed.2d at 118. 

"This Court has adopted and applied the four factor balancing test of Barker in a series of decisions dating back to 1973. See State v. Collins 

(1978) I - Mont. , 582 P.2d 1179, 35 St.Rep. 

993; State v. Cassidy (1978), Mont. I 

578 P.2d 735, 737, 35 St.Rep. 612; State ex rel. 

Briceno v. District Court (1977), - Mont. -, 

568 P.2d 162, 164, 34 St.Rep. 927; State v. Keller 

(1976), 170 Mont. 372, 377, 553 P.2d 1013, 1016; 

State ex rel. Sanford v. District Court (1976), 

170 Mont. 196, 199, 551 P.2d 1005, 1007; State 

v. Steward (1975), 168 ?40nt. 385, 389, 543 P.2d 

178, 181; Fitzpatrick v. Crist (1974), 165 Mont. 

382, 388, 528 P.2d 1322, 1325; State v. Sanders 

(1973), 163 Mont. 209, 213, 516 P.2d 372, 375. 

We reaffirm our support of this test as the correct and most complete standard available to 

judge speedy trial questions." 

The Court in Tiedemann then went on to discuss the 

first factor, length of delay: 

"Length of delay. Length of delay has been referred toas the trigger setting off the speedy 

trial issue 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 will provoke such an inquiry 

is necessarily dependent upon the peculiar circumstances of the case.' Barker, 407 U.S. at 530-31, 

92 S.Ct. at 2192, 33 L.Ed.2d at 117. 

"Accord, Keller, 170 Mont. at 377, 553 P.2d at 

1017; Steward, 168 Mont. at 389, 543 P.2d at 

181." 584 P.2d at 1287-88, 35 St-Rep. at 1707. 

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 date of arrest to date set for trial) is longer 

than or comparable to the delays found sufficient to warrant 

dismissal in Fitzpatrick (seven months), Cassidy (eight 

months), Sanford (ten months), Briceno (ten and one-half 

months), and Keller (eleven months). "The length of delay 

thus shifts the burden to the State of explaining the reason 

for the delay and showing absence of prejudice to defendant." Tiedemann, 584 P.2d at 1288. See also Cassidy, 578 

P.2d at 738; Sanford, 170 Mont. at 200, 551 P.2d at 1007; 

and Fitzpatrick, 165 Mont. at 388, 528 P.2d at 1326. 

Reason -- for the delay. The parties agree that neither 

defendants nor the county attorney's office was the cause of 

any great delay in this 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 at two 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 sat from the time Judge 

Wilson assumed jurisdiction in April 1978 until he excused 
himself 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 it prosecuted the case with reasonable 

diligence and should not be responsible for crowded court 

dockets and the method of scheduling trials. We do not 

agree. The court in Cassidy flatly held that this position 

of the State is without merit. 578 P.2d at 738. The situation here is very similar to that found in Briceno in that 

the matter simply sat on the calendar from April 1978 until 

it was eventually set for trial in October 1978. 

In United States v. Jones (D.C. Cir. 1975), 524 F.2d 

834, 849, the Court stated: 

". . . The Supreme Court has held that delays 

due to the operation of the system also must 

be placed at the Government's door, stating in 

Barker v. Wingo: 

"'A defendant has no duty to bring himself to 

trial; the State has that duty as well as the 

duty of insuring that the trial is consistent 

with due process . . . [Tlhe rule we announce 

today, which comports with constitutional principles, places the primary 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 to defendants but rather to the State. The type 

of institutional delays we have herein enumerated, where a 

case is allowed to merely 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 forth by this Court in State v. Steward (1975), 168 

Mont. 385, 543 P.2d 178. 
The following statement by this Court in Cassidy is 

dispositive on this factor: 

"3. Defendant's Assertion -- of the Right. 

"The State argues, in this regard, that defendant 

has failed to expedite the proceedings in this 

case through any active pleadings before the District Court, such as by requesting an earlier 

trial date. In addition, it is maintained that 

defendant's motion to dismiss for denial of a 

speedy trial was untimely, and should have been 

made at some 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 to assert a denial 

of a speedy trial. 

"It is, of course, the general rule under the 

present state of the law that '. . . an accused 

must take some affirmative action to obtain a 

trial to be entitled to a discharge for delay.' 

State v. Steward, 168 Mont. 390, 543 P.2d 182. 

Such burden is satisfied, however, by the making of an appropriate motion, discussed by this 

Court in Steward as follows: 

"'The "appropriate motion" is a motion to dismiss 

for denial of a speedy trial. The proper time 

to assert the right to a speedy trial is prior 

to the actual commencement of the trial, usually 

at the time the trial date is set, or the time 

the case is called to trial . . .' 168 Xont. 

390-91, 543 P.2d 182. 

"Defendant's assertion of the right in this case 

was in all respects proper under the standard 

outlined in Steward, having been made between 

the time the matter was set for trial and the 

trial date itself ." 578 P.2d at 739. 

Prejudice - to defendants. The final factor to be considered in the balancing process is the question of whether 

defendants were prejudiced by the delay. This prejudice is 

further defined in Barker: 

"Prejudice, of course, should be assessed in 

light of the interests of defendants which the 

speedy trial right was designed to protect. 

This Court has identified three such interests: 

(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of 

the accused; and (iii) to limit the possibility 

that the defense will be impaired." 407 U.S. 

at 532, 92 S.Ct. at 2193, 33 L Ed 2d at 118. 
with regard to oppressive pretrial incarceration, 

defendant Puzio has been incarcerated since the day of his 

arrest. Defendant Allen was not incarcerated prior to 

trial. Puzio was detained in the 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 to Yellowstone County by the 

sheriff for each of his court appearances and returned to 

the prison. 

The second item to be 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 to Deer 

Lodge, and the inability to communicate by telephone were 

reasons for Puzio to have a great deal of concern about the 

progress in his case, and a great deal of concern about the 

preparation of his defense. 

The last consideration under prejudice to the defendants is the possibility that the defense will be impaired. 

Barker states that this concern is the most serious because 

the inability of a defendant adequately to prepare 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 reflect what has been forgotten. In this 

particular case, Puzio has been incarcerated in the 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, with 
regard to memory, the State is the only benefactor since its 

policy usually requires witnesses to type their statements 

and scenarios of activity which are used to refresh their 

recollection. However, lay witnesses called by the defendants rarely have their past recollections refreshed by 

statements and scenarios prepared by them at the time the 

events occurred, which, in this case, was November 28, 

1977--two days after Thanksgiving. 

We find the fact that Puzio has been incarcerated the 

entire time since his arrest on November 28, 1977, demonstrates affirmative prejudice against him. 

We reemphasize that we are engaged in a delicate balancing process. The presence of prejudice in this case 

should be weighed heavily in the balancing of all factors. 

On balance, we find there has been excessive delay in 

bringing this case to trial; the State has failed to explain 

satisfactorily the reasons for the delay; the defendants 

properly and timely asserted their right to a 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 in Tiedemann again bear repeating: 

"This Court, as well as many other courts, has 

often stated that society at large, as well as 

the individual defendant, has a stake in the 

speedy disposition of criminal matters. E.g., 

Barker, 407 U.S. at 519-21, 92 S.Ct. at 2186-87, 

33 L.Ed.2d at 110-11. In view of the result in 

this case, the comments of now Chief Justice 

Haswell in Keller bear repeating: 

11 1 . . .Delayed criminal justice proceedings are 

undermining public confidence in the 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 is public 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 in Tiedemann: 

"While we will not 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 at 1293. 

We recommend that the judges of the Thirteenth Judicial 

District of the State of Montana would do well to cooperate 

to the extent that the situation that occurred in this case 

is not repeated. 

The judgment of the District Court dismissing the 

charges for lack of a speedy trial is affirmed. 

We concur: 

%ad??$. pAwd! Chief rustice 

-4- /I Justices