No. 85-536 IN THE SUPREME COURT OF THE STATEOF MONTANA 1986

STATE OF MONTANA, Plaintiff and Respondent,
-vsWILFORD EARL PALMER, Defendantand Appellant.

A.PPEALFROM: DistrictCourt of the Third JudicialDistrict, In and for the County of Powell, TheHonorableArnold Olsen, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: C. F. Mackay,Anaconda, Montana

For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana JoeR. Roberts,Asst. Atty. General,Helena Ted L. Mizner, CountyAttorney, Deer Lodge,Montana

Submitted on Briefs: June 6,1986 Decided: August 21, 1986

Filed:

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## l!z%w%bu ClerkMr. 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, Palmerwas an inmate at the Montana State Prison at Deer Lodge. Palmer resided,by himself, in cellnumber 10 of "Xublock which is a maximum securityunit. On September 18, 1984,three officersat theprison 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 knifehidden in the stuffing of Palmer's mattress. The officers then conducted a body search of Palmer and discovered a piece ofmetal inhisboot. On October 11, 1984, Palmer was charged by information with the felonyoffense ofpossession of a deadlyweaponby a prisoner in violation of5 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 causewas 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 Palmerwas 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 ofvenue. 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 statesby the FourteenthAmendment. 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 guaranteedby 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 factorstobe evaluated and balanced are:

(1) Length of delay; (2) Reason fordelay; (3) Assertion of the rightby defendant; and (4) Prejudicetothe 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 isno need toexamine the latterthree 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 untilthe firstdate set fortrial, islong enough to trigger a speedy trial inquiry. See Statev. 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); Statev. Cassidy (1978), 176 Mont. 395, 578 P.2d 735 (246 days). The delay inthe instant case gives riseto
a presumptive deprivation of Palmer's speedy trialright, and shifts the burden tothe Statetogive reasons why the trial should proceed. Ackley, 201Mont. at256; 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, thesetwo factorsmust be balanced.The second Barker factor is reason for delay. In the instant case Palmerwas responsible for two delays. One was for a seven-dayperiod,November 1, 1984 toNovember 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 ownmotion. 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 "assertionof 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 "prejudiceto 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) tominimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92S.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 inbringing his cause to trial. First,Palmer suffered
nopretrial incarceration becausehewas 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 thathewas notprejudiced in thismanner. 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,Palmerwas 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 ofplace of trial on the ground that there exists in the county in which the charge ispending 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, itmay be made thereafter. (2) Themotion must be in writing and supportedby 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 themotion.

(3) If the court determines that there exists in the county inwhich theprosecution ispending 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 trialmay be had; (b) direct that a jury be selected in any county where a fair trialmay be had and then returned to the countywhere the prosecution ispending to try the case; 

### or(c) take any other action designed to insure that a fair trialmay be had. In State v. Ritchson (1982), 199Mont. 51, 54, 647 P.2d 830, 832, this Court studied the requirements ofproof 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 cannotreceive a fair trial. It is Palmer's contention that a change ofvenue 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 notbe 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 Statev. Bashor (1980),188Mont. 397, 614P.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 conditionsat theprison. We, therefore, hold the District Court did not err in denying Palmer's motion for a change ofvenue because Palmer made no showingthat there existed such prejudice that a fair trial could notbe had in PowellCounty. We affirm the DistrictCourt.Justice 

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We Concur: 

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, Chi'ef Justice