State v. Bretz, 13826
| Decision Date | 10 December 1979 |
| Docket Number | No. 13826,13826 |
| Citation | 36 St.Rep. 1037,185 Mont. 253,605 P.2d 974 |
| Parties | The STATE of Montana, Plaintiff and Respondent, v. L. R. BRETZ, Defendant and Appellant. |
| Court | Montana Supreme Court |
Mike Greely, Atty. Gen., Helena, Robert S. Keller, Asst. Atty. Gen. (argued), Kalispell, Thomas Budewitz, County Atty. (argued), Townsend, for plaintiff and respondent.
On December 1, 1976, after a trial by jury in the District Court of the Eighth Judicial District, the Honorable A. B. Martin presiding, defendant was convicted of fourteen counts of grand larceny, two counts of obtaining money and property by false pretenses, and two counts of preparing false evidence. He was sentenced to fourteen-year prison terms on each count with the exception of two counts of preparing false evidence which offenses were found to be incident to other offenses for which defendant was sentenced. The sentences were grouped so that defendant was ultimately sentenced to 56 years in prison, the last 30 years to be suspended on the condition that defendant reimburse the victims of the offenses within one year from the time of sentencing. Defendant was unable to make restitution within the prescribed time and brings this appeal.
In view of the number and complexity of the issues presented for review, factual summaries, insofar as they are pertinent, will accompany our discussion of individual issues.
Defendant presents twenty-one issues for review by this Court:
1. Whether defendant was denied his right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution and Article II, Section 24 of the 1972 Montana Constitution.
2. Whether defendant was denied his right to the effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution and Article II, Sections 4 and 24 of the 1972 Montana Constitution.
3. Whether defendant was denied his right to trial by a fair and impartial jury under the Fifth and Fourteenth Amendments to the United States Constitution and Article II, Sections 4 and 24 of the 1972 Montana Constitution by virtue of extensive pretrial and trial publicity.
4. Whether the District Court erred in denying defendant's motion to quash the information due to the lack of showing of probable cause for its filing.
5. Whether prosecution of this case was barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution and the accompanying doctrine 6. Whether the District Court erred in refusing to grant a new trial on the basis of a juror's independent knowledge of the facts of the case.
of collateral estoppel and by the provisions of section 95-1711, R.C.M.1947, now sections 46-11-501 through -505 MCA.
7. Whether defendant's sentence constituted cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution and Article II, Sections 22 and 28 of the Montana Constitution of 1972.
8. Whether conditioning suspension of the last 30 years of defendant's 56 year sentence on defendant's payment of restitution by December 13, 1977, was improper and constituted cruel and unusual punishment.
9. Whether defendant's sentencing hearing was properly conducted.
10. Whether the District Court erred in admitting certain evidence.
11. Whether the State proved the essential elements of the offense of preparing false evidence.
12. Whether the State proved the essential elements of larceny by bailee.
13. Whether defendant was denied his right to a fundamentally fair trial under the Sixth and Fourteenth Amendments to the United States Constitution and Article II, Section 24 of the 1972 Montana Constitution because of alleged over-zealous acts on the part of the prosecution.
14. Whether defendant was denied the opportunity to present his defense.
15. Whether the District Court erred in allowing certain testimony with respect to reasonable attorney's fees.
16. Whether the District Court erred in excluding other testimony with respect to reasonable attorney's fees.
17. Whether the District Court erred in allowing testimony concerning other crimes of the accused.
18. Whether the District Court erred in allowing the State to impeach its own witness in the absence of a showing of surprise by the State.
19. Whether the District Court erred in allowing the testimony of Larry Sanford.
20. Whether the District Court erred with respect to its jury instructions relating to the offenses of obtaining money and property by false pretenses and preparing false evidence.
21. Whether the District Court erred in refusing certain of defendant's jury instructions and in giving certain of the State's instructions.
We will address these issues in the order of their presentation.
The following is a table of dates and events relevant to our consideration of whether defendant was denied his right to a speedy trial:
DAYS
DATE ACTION ELAPSED
---- ------- -------
7/30/74 Information filed 0
8/5/74 Arraignment 6
9/16/74 New Information filed 48
9/26/74 Motion for Change of
Venue filed 58
10/15/74 Change of Venue granted 77
10/16/74 State appeals order 78
4/16/75 Supreme Court reverses
order 260
5/8/75 Remittitur filed 282
5/20/75 Amended Information filed 294
7/29/75 Defense procedural motions
filed 364
8/27/75 State's response to motions
filed 393
9/17/75 Hearing of motions and
arraignment of defendant 414
11/20/75 State moves to continue
pretrial conference 478
12/29/75 Pretrial conference--
speedy trial motions 517
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. II, § 24. The federal standard, as a minimum, is imposed upon the states by the due process clause of the Fourteenth Amendment. 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.
Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 116-17, is the touchstone in an analysis of speedy trial issues. See State v. Tiedemann (1978), Mont., 584 P.2d 1284, 1287, 35 St.Rep. 1705, 1707; State v. Collins (1978), Mont., 582 P.2d 1179, 1186, 35 St.Rep. 993, 1002; State v. Cassidy (1978), Mont., 578 P.2d 735, 737, 35 St.Rep. 612, 614; State ex rel. Briceno v. District Court (1977), Mont., 568 P.2d 162, 164, 34 St.Rep. 927, 930; 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 Mont. 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.
In Barker, the petitioner was not tried until more than five years had passed from the time he was arrested. The delay in that case largely resulted from the fact that Barker's accomplice was tried six times altogether before finally being convicted. In Barker, 407 U.S. at 521, 92 S.Ct. at 2187, 33 L.Ed.2d at 111, the Supreme Court noted:
(Emphasis added.)
The Court went on to reject two approaches which could have eliminated a great deal of uncertainty in protecting the right. The suggestions were that the Court (1) hold that the Constitution requires a criminal defendant to be offered a trial within a specified time period, or (2) adopt some form of the demand-waiver doctrine. "The demand-waiver doctrine provides that a defendant waives any consideration of his right to speedy trial for any period prior to which he had not demanded a trial." Barker, 407 U.S. at 525, 92 S.Ct. at 2189, 33 L.Ed.2d at 114. The Court found each of these approaches too inflexible "the fixed-time period because it goes further than the Constitution requires; the demand-waiver rule because it is insensitive to a right which we have deemed fundamental" and adopted instead "a balancing test, in which the conduct of both the prosecution and the defendant are weighed." Barker, 407 U.S. at 529-30, 92 S.Ct. at 2191-2192, 33 L.Ed.2d at 116.
Noting that courts must approach speedy trial cases on an ad hoc basis, the Court identified four factors to be considered as part of the balancing test: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d 117. We will discuss each of these factors in turn as we examine defendant's claim in the instant case. State v. Sanders (1973), 163 Mont. 209, 213, 516 P.2d 372, 375.
Length of delay. The Supreme Court addressed the delay...
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