No. 85-536 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsWILFORD EARL PALMER, 

Defendant and Appellant. 

A.PPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Powell, 

The Honorable Arnold Olsen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

C. F. Mackay, Anaconda, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Joe R. Roberts, Asst. Atty. General, Helena 

Ted L. Mizner, County Attorney, Deer Lodge, Montana 

Submitted on Briefs: June 6, 1986 

Decided: August 21, 1986 

Filed: 

4 

l!z%w%bu Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appellant, Wilfred Earl Palmer, appeals from a judgment 

of conviction after jury trial of criminal possession of a 

deadly weapon by a prisoner. The appeal arises from the 

District Court, Third Judicial District, County of Powell. 

We affirm. 

In September, 1984, Palmer was an inmate at the Montana 

State Prison at Deer Lodge. Palmer resided, by himself, in 

cell number 10 of "Xu block which is a maximum security unit. 

On September 18, 1984, three officers at the prison conducted 

a routine spot check of the cells in the "X" block. Palmer 

was removed from his cell and was taken out in the "yard." 

Palmer's cell was then searched. The search revealed a 

homemade "shank" or knife hidden in the stuffing of Palmer's 

mattress. The officers then conducted a body search of 

Palmer and discovered a piece of metal in his boot. 

On October 11, 1984, Palmer was charged by information 

with the felony offense of possession of a deadly weapon by a 

prisoner in violation of 5 45-8-318 (1) , MCA. 

On December 3, 1984, Palmer filed a motion for 

psychiatric evaluation which was granted. On January 25, 

1985, Palmer's psychiatric evaluation was returned to the 

court indicating Palmer suffered from no mental disease or 

defect. 

Trial of the cause was eventually set for June 25, 1985. 

Before the trial date, however, Palmer requested a 

postponement of the trial date to more fully prepare. The 

District Court granted Palmer's motion and reset trial for 

July 22, 1985. 
On the day of trial Palmer, through his counsel, 

presented the District Court with a motion to dismiss for 

lack of speedy trial and a motion for change of venue. The 

District Court denied both motions. 

At trial witnesses for the State were the prison 

officers who discovered the contraband and corrections 

investigator Robert McNally. Palmer presented no defense. 

The jury returned a verdict of guilty. On October 15, 

1985, a sentencing hearing was held and Palmer was sentenced 

to ten years' imprisonment consecutive to his outstanding 

sentence. 

Palmer raises two issues for our review. 

1. Did the District Court err in refusing Palmer's 

motion to dismiss for lack of a speedy trial; 

2. Did the District Court err in refusing Palmer's 

motion for change of venue. 

Palmer first contends that he was denied his right to a 

speedy trial. Any person accused of a crime is guaranteed 

the right to a speedy trial pursuant to the Sixth Amendment 

to the United States Constitution, which is made applicable 

to the states by the Fourteenth Amendment. Klopfer v. North 

Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1. 

The right to a speedy trial is also guaranteed by Article 11, 

24 of the 1972 Montana Constitution. The test to be 

applied to determine whether an accused's right to a speedy 

trial has been violated was first set forth in Barker v. 

Wingo (1972), 407 U.S. 514, 92 S.Ct 2182, 33 L.Ed.2d 101. 

This Court applied and stated the Barker test in State ex 

rel. Briceno v. District Court (1977), 173 Mont. 516, 518, 

568 P.2d 162, 163-64 as follows: 
These cases involve a sensitive balancing of our 

factors, in which the conduct of the prosecution 

and the defendant are weighed in determining 

whether there ha.s been a denial of the right to a 

speedy trial. The four factors to be evaluated and 

balanced are: 

(1) Length of delay; 

(2) Reason for delay; 

(3) Assertion of the right by defendant; and 

(4) Prejudice to the defendant. 

This Court has stated that the first of the Barker 

factors, the length of delay, is the trigger to a speedy 

trial inquiry. There is no need to examine the latter three 

factors unless some delay deemed presumptively prejudicial 

has occurred. State v. Harvey (1979), 184 Mont. 423, 603 

P.2d 661. 

The delay here, 256 days from the date Palmer was 

charged until the first date set for trial, is long enough to 

trigger a speedy trial inquiry. See State v. Chavez (Mont. 

1984), 691 P.2d 1365, 41 St.Rep. 2219 (214 days); State v. 

Ackley (1982), 201 Mont. 252, 653 P.2d 851 (257 days) ; State 

v. Fife (Mont. 1981), 632 P.2d 712, 38 St.Rep. 1334 (195 

days); State v. Freeman (1979), 183 Mont. 334; 599 P.2d 368 

(207 days) ; State v. Cassidy (1978), 176 Mont. 395, 578 P.2d 

735 (246 days). The delay in the instant case gives rise to 

a presumptive deprivation of Palmer's speedy trial right, and 

shifts the burden to the State to give reasons why the trial 

should proceed. Ackley, 201 Mont. at 256; 653 P.2d at 853. 

In this respect, the State must either give a reasonable 

excuse for the delay, or show that the defendant was not 

prejudiced thereby. If there exists both excuse and 

prejudice, these two factors must be balanced. 
The second Barker factor is reason for delay. In the 

instant case Palmer was responsible for two delays. One was 

for a seven-day period, November 1, 1984 to November 7, 1984, 

during which a new judge was called in pursuant to Palmer's 

motion. The second delay attributable to Palmer occurred 

from December 3, 1984 to January 25, 1985, 54 days, during 

which time Palmer underwent mental evaluations pursuant to 

his own motion. Thus of the 256 days of delay, 61 days are 

attributable to Palmer reducing the delay not attributable to 

him to 195 days. Of these 195 days, there is no evidence to 

suggest nor does Palmer contend bad faith or oppressive 

tactics by the State. Institutional delay weighs less 

heavily against the State in the Barker balancing process. 

The third factor under Barker is "assertion of the right 

by defendant." Palmer made a timely assertion of his right 

to a speedy trial by raising the issue before the 

commencement of his trial. State v. Steward (19751, 168 

Mont. 385, 390, 543 P.2d 178, 182. 

The final Barker factor is "prejudice to the defendant." 

In Barker, the United States Supreme Court identified three 

interests of a defendant which may be prejudiced by a delay 

in coming to trial. The interest are: (1) to prevent 

oppressive pre-trial incarceration; (2) to minimize anxiety 

and concern of the accused; and (3) to limit the 

possibility that the defense will be impaired. Barker, 407 

U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. 

Applying these interests to the facts of the instant 

case we held that Palmer was not prejudiced by the State's 

delay in bringing his cause to trial. First, Palmer suffered 

no pretrial incarceration because he was already incarcerated 

for the duration of the proceedings on an another charge. 
Second, there is nothing in the record to indicate that the 

time involved in coming to trial caused any additional or 

unusual anxiety and concern to Palmer. The final interest 

involved in the prejudice factor is the impairment of 

Palmer's defense. Because Palmer did not present a defense, 

it is clear that he was not prejudiced in this manner. Thus, 

our review of the above interests lead us to the conclusion 

that Palmer was not prejudiced by the delay in bringing his 

cause to trial. 

We hold that under the four factor balancing test of 

Barker, Palmer was not denied his right to a speedy trial and 

the District Court did not err in denying Palmer's motion to 

dismiss. 

Palmer next argues that the District Court erred in 

denying Palmer's motion for a change of venue. Section 

46-13-203, MCA, provides: 

(1) The defendant or the prosecution may move for 

a change of place of trial on the ground that there 

exists in the county in which the charge is pending 

such prejudice that a fair trial cannot be had in 

such county. The motion must be made at least 15 

days prior to trial except that, if good cause is 

shown, it may be made thereafter. 

(2) The motion must be in writing and supported by 

an affidavit which must state facts showing the 

nature of the prejudice alleged. The defendant or 

the state may file counteraffidavits. The court 

shall conduct a hearing and determine the merits of 

the motion. 

(3) If the court determines that there exists in 

the county in which the prosecution is pending such 

prejudice that a fair trial cannot be had, it 

shall: 

(a) transfer the cause to any other court of 

competent jurisdiction in any county in which a 

fair trial may be had; 

(b) direct that a jury be selected in any county 

where a fair trial may be had and then returned to 

the county where the prosecution is pending to try 

the case; or 
(c) take any other action designed to insure that 

a fair trial may be had. 

In State v. Ritchson (1982), 199 Mont. 51, 54, 647 P.2d 

830, 832, this Court studied the requirements of proof for a 

party seeking to change venue as follows: 

A defendant seeking a change of venue must show 

that there is reasonable grounds to believe that a 

prejudicial atmosphere exists within the present 

venue which creates a reasonable apprehension that 

he cannot receive a fair trial. 

It is Palmer's contention that a change of venue should have 

been granted in the instant case because prejudice exists in 

Powell County against inmates at the prison. Palmer further 

contends that, because a Citizen Protection Association had 

been formed in Powell County and because a large number of 

the prison employees lived within the community, there 

existed such prejudice in the county that a fair trial could 

not be had. 

Palmer, however, made no showing of a "prejudicial 

atmosphere" in Powell County other than stating in his 

memorandum in support of his motion for change of venue the 

above listed contentions. Further, we have reviewed the 

record of the voir dire and conclude that an impartial jury 

was empaneled. Here, as in State v. Bashor (1980), 188 Mont. 

397, 614 P.2d 470, all the jurors stated under oath that they 

could return a verdict based solely on the evidence. This 

belies the statement that all Powell County juries are 

unalterably prejudiced by the conditions at the prison. 

We, therefore, hold the District Court did not err in 

denying Palmer's motion for a change of venue because Palmer 

made no showing that there existed such prejudice that a fair 

trial could not be had in Powell County. 

We affirm the District Court. 
Justice B 

We Concur: 

, 

l7 f- , 

Chi'ef Justice