State v. Chavez, 84-170

• Citation: 213 Mont. 434,691 P.2d 1365,41 St.Rep. 2219
• Decision Date: 29 November 1984
• Docket Number: No. 84-170,84-170
• Parties: STATE of Montana, Plaintiff and Respondent, v. Leo CHAVEZ, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 1365

691 P.2d 1365

213 Mont. 434

STATE of Montana, Plaintiff and Respondent, v. Leo CHAVEZ, Defendant and Appellant.

No. 84-170.

Supreme Court of Montana.

Submitted on Briefs Oct. 11, 1984.

Decided Nov. 29, 1984.

Mark Suagee, Havre, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Ronald W. Smith, County Atty., Havre, for plaintiff and respondent.

GULBRANDSON, Justice.

This is an appeal from an order of the District Court of the Twelfth Judicial District, Hill County, denying defendant's motion to dismiss for a lack of a speedy trial and the trial court's ruling allowing the admission of a pre-trial photographic identification of the defendant. At trial, the jury found the defendant not guilty of burglary, and guilty of felony theft, and he was sentenced to four years in the Montana State Prison.

We affirm.

On the morning of June 15, 1983, Anton Schwan, the lessee of a steel building near the Burlington Northern railroad tracks west of Havre, Montana, discovered that the building had been broken into. The break-in had apparently occurred the night before because Schwan testified that he had been there the previous evening at 8:00 p.m. and had not noticed anything missing. Items stolen from the building were a black and white television set, a stereo system and two roping saddles. Schwan immediately notified the Hill County Sheriff's office of the burglary.

Later that same day, Allen Marden was working at his job for the Burlington Northern Railroad. At about 12:15 p.m. he was in a locomotive stopped near a crossing west of Havre. At that time, he observed a red and white Pontiac LeMans with three occupants proceeding westerly on the gravel road paralleling the tracks. As Marden watched, the car stopped 100 to 150 feet away from him and two men got out. One went down into the ditch and retrieved a saddle out of a bush. They put the saddle into the trunk of the car, and drove off to a nearby mobile home court. Marden testified that he wrote down the personalized phrase "HIDES" on the license plate of the car as it proceeded easterly past him.

Because he felt the activity was suspicious, Marden telephoned his brother Steve, a Hill County deputy sheriff, and told him what he had seen. Steve Marden contacted another deputy, Monte Riechelt, who confirmed that a saddle had been reported stolen. From Alan Marden's identification, the automobile was traced to its owner, John Chance Houle, a jailer at the Blaine County Sheriff's office.

Mr. Houle made a statement to the Hill County Sheriff that he had stopped at Fred Castaneda's trailer to inquire about buying two saddles that he had heard Castaneda wanted to sell. The defendant, Leo Chavez was at the trailer. Houle stated that he, Castaneda, and Chavez got into Houle's car to get the saddle. Chavez was the one who gave directions to, and actually retrieved the saddle. Houle purchased the saddle from Chavez for $10 and a beaded belt, and then took it to his grandfather's ranch on the Rocky Boy Indian reservation. A few days later, Leo Chavez went to a local pawn shop and pawned the belt for $20.

As a result of Houle's statement and Marden's report, the Sheriff's office located the remaining stolen items hidden in the bushes in the same area, about .3 of a mile from the building where they had been stored. On June 20, 1983, both Fred Castaneda and Leo Chavez were arrested and charged with the burglary and theft of these items. Leo Chavez's bond was set at $3,000 and he remained incarcerated in the Hill County jail until August 2, 1983--a period of forty-three days. After his release, defendant Chavez remained in the Havre area until trial on January 19, 1984. At trial, all charges against Fred Castaneda were dismissed by the court upon motion of his defense counsel at the conclusion of the State's case. The jury found Chavez not guilty of burglary and guilty of theft. He was later sentenced to four years in the Montana State Prison.

Prior to trial, on September 29, 1983, the Hill County Attorney filed a notice of readiness for trial and request that trial be set. On December 22, 1983, the county attorney filed a motion requesting the District Court to set a trial date. At the omnibus hearing on January 6, 1984, defendant gave notice that he would raise the speedy trial issue. On January 13, 1984, he filed a motion to dismiss for lack of a speedy trial.

At the hearing on the motion, held on the same day the trial commenced, defendant testified that while he was in jail he entertained thoughts of suicide, and though those urges subsided upon his release, that the long delay had caused him great anxiety. He testified that after his release he found it difficult to find steady employment, and that he felt estranged from the community. Defendant also contended that due to the delay of 214 days in being brought to trial, his ability to present a defense was impaired because he and his witnesses found it difficult to remember the events of June past.

On cross-examination defendant testified that, pending trial, he worked for awhile with a carnival when it came to town, and then found a job at a local cafe. He quit his job at the cafe because the owner gave him a "weird look" after some deputies had come to visit him. As to the estrangement, he admitted that he "kind of got used to it." And finally, he conceded that part of his "anxiety" was due to the fact that there were other criminal charges proceeding against him in Montana, and that he was on probation from a California district court. The record discloses that on July 16, 1983, less than two days after the theft and prior to his arrest for the present charge, defendant had been sentenced by the Hill County District Court for two other previous felonies. The court sentenced him to two concurrent three year terms in the Montana State Prison, but suspended them and put defendant on probation. The court also fined him $2,000 and ordered him to report to the appropriate authorities in California.

During the hearing on the motion to dismiss, the District Court observed that the notice of and motion for trial were timely filed by the State, and that "the only reason this wasn't tried in the fall was because of the heavy trial schedule that [the judge] had." In arguing against the motion to dismiss, the county attorney contended that although he did not affirmatively present evidence, the cross-examination of the defendant had adequately shown that there was not sufficient anxiety or prejudice to mandate a dismissal. Based on this, the District Court denied defendant's motion.

During the trial, the State offered into evidence an identification of the defendant based on a photographic line-up Marden had been shown shortly before the trial. The defendant lodged a general objection, and the court allowed both the identification, and the photographic line-up to be introduced.

Defendant raises two issues on appeal:

(1) That the District Court erred in denying the motion to dismiss for a lack of speedy trial; and

(2) that the District Court erred in allowing the State to admit the pre-trial photographic identification of the defendant.

Any person accused of a crime is guaranteed the fundamental right to a speedy trial by 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 test to be applied to determine whether the speedy trial right has been violated was set forth in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. This test has been applied by this Court, and was stated in State ex rel Briceno v. Dist.Ct. (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-4:

"These cases involve a sensitive balancing of four factors, in which the conduct of the prosecution and defendant are weighed in determining whether there has 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."

The first factor, the length of delay is the "trigger" to the speedy trial inquiry. There is no need to examine the other three factors unless some delay deemed presumptively prejudicial has occurred. State v. Harvey (1979), 184 Mont. 423, 603 P.2d 661, and the delay tolerated varies with the complexity of the case. Harvey, 184 Mont. at 433-434, 603 P.2d at 667; Barker, 507 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117 ("the delay that can be tolerated for an ordinary street crime is considerably less than for a serious complex conspiracy charge.")

The delay here, 214 days, is long enough to trigger the speedy trial inquiry. See State v. Ackley (Mont.1982), 653 P.2d 851, 39 St.Rep. 2091, (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. 385, 578 P.2d 735 (246 days). This delay gives rise to a presumptive deprivation of defendant's speedy trial right, and shifts the burden to the State to give reasons why the trial should proceed. State v. Ackley, supra; State v. Harvey, supra. 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 is both excuse and prejudice, those two factors must be balanced.

In State v. Ackley, supra, we were confronted with a remarkably similar situation. There, the trial was delayed for a period of 257 days because of the trial court's heavy schedule. The defendant in Ackley had spent forty-one days in jail, and alleged the delay had prejudiced him in his ability to present his defense, and in the marital difficulties and anxiety it caused. The District Court denied Terry Ackley's motion to dismiss and this Court affirmed.

The speedy trial right is...