State v. Burt

• Decision Date: 04 May 2000
• Docket Number: No. 99-169.,99-169.
• Citation: 299 Mont. 412,2000 MT 115,3 P.3d 597
• Parties: STATE of Montana, Plaintiff and Respondent, v. Barbara BURT, Defendant and Appellant.
• Court: Montana Supreme Court

3 P.3d 597

2000 MT 115

299 Mont. 412

STATE of Montana, Plaintiff and Respondent, v. Barbara BURT, Defendant and Appellant.

No. 99-169.

Supreme Court of Montana.

Submitted on Briefs September 23, 1999.

Decided May 4, 2000.

Brock Albin; Albin Law Office, Bozeman, Montana, For Appellant.

Hon. Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General; Helena, Montana; Marty Lambert, Gallatin County Attorney; Matt Putzier, Deputy County Attorney, Bozeman, Montana, For Respondent.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Appellant Barbara Burt (Burt) appeals from the judgment and orders of the District Court.

¶ 2 We affirm.

¶ 3 The following issues are presented on appeal:

¶ 4 1. Whether the District Court erred in concluding that the preindictment delay was not a violation of due process.

¶ 5 2. Whether the District Court erred in denying Burt's motion to dismiss for lack of speedy trial.

Standard of Review

¶ 6 We review a district court's conclusions of law de novo to determine whether they are correct. See Steer, Inc. v. Dept. Of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. We review a district court's findings of fact to determine whether they are clearly erroneous. See Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

Factual and Procedural Background

¶ 7 In June, 1990 Burt was hired as office manager and bookkeeper for Sunbird Aviation (Sunbird), a fixed-base aviation services company. Burt handled Sunbird's books, accounts payable and receivable, and payroll. She had authority to sign checks for Sunbird. In October, 1995, Burt resigned her position.

¶ 8 Following Burt's departure from Sunbird, Sunbird's new bookkeeper and Sunbird's president, Greg Mecklenburg, reviewed Sunbird's bank statements from the previous year and discovered that each one of the bank statements was missing approximately four canceled checks. These checks were payable either to "cash" or to Burt. Further investigation established that from June, 1990 Burt wrote approximately three hundred unauthorized checks on Sunbird's account and that she also wrote approximately forty-five duplicate payroll checks. In January, 1996, Sunbird filed suit to recover monies from Burt.

¶ 9 In January, 1997, the State filed an Information charging Burt with five counts of felony theft. The first four counts alleged that Burt stole more than a quarter million dollars from Sunbird. The fifth count alleged that Burt stole $840 from another company, Simpson Honda.

¶ 10 In October, 1998 Burt filed a motion to dismiss for lack of speedy trial. The District Court held a hearing in October, 1998 and denied Burt's motion. Burt received a jury trial in October, 1998 and was convicted on all five counts. In December, 1998 the District Court sentenced Burt to ten years prison, with five years suspended, on Count one, and to four consecutive terms of ten years, each one of them suspended, on Counts two through five, resulting in a total sentence of fifty years prison with forty-five years suspended.

Discussion

¶ 11 1. Whether the District Court erred in concluding that the preindictment delay was not a violation of due process.

¶ 12 Burt urges that the delay between the time when the State could have filed charges and the time when the State filed the Information (hereafter, the preindictment delay) violated due process. Burt argues that the State could have charged her in January, 1996 but intentionally delayed charging her and directed private citizens to investigate her. Burt argues that the State in essence used unfettered civil discovery to investigate her criminal case and that her cooperation in civil discovery "nailed shut her criminal coffin." Burt argues that by waiting to file charges, the State avoided triggering her right to a speedy trial. Burt contends further that she suffered actual prejudice in the effect of the preindictment delay on her "health and emotions" and the "hurricane effect that civil discovery and investigation had on [her] subsequent criminal case."

¶ 13 The State responds that the District Court did not err in finding that Burt was not actually prejudiced by the preindictment delay. The State argues that the only evidence of prejudice was testimony by Burt's husband that Burt's state of mind had deteriorated and that she was depressed and anxious. The State asserts that anxiety by itself does not constitute actual prejudice for purposes of due process. The State notes that Burt does not claim that her defense was impaired by the unavailability or death of any critical witness. The State also argues that the preindictment delay was necessary for the State to investigate "Burt's deceptions more fully." The State argues further that although the prosecution apparently obtained some investigative materials from the civil action brought against Burt, charges were filed against Burt only after an independent audit was performed.

¶ 14 This Court has previously addressed the due process implications of preindictment delay. In State v. Curtis (1990), 241 Mont. 288, 297, 787 P.2d 306, 311, we concluded that "the issue of prejudice is a question of fact." We recognized that the State must have "a reasonable time to investigate the crime," Curtis, 241 Mont. at 297, 787 P.2d at 312, and that premature indictments could "increase the likelihood of unwarranted charges being filed" or "impair investigations by causing sources of information to dry up and by alerting other potential defendants of the possibility of indictment." Curtis, 241 Mont. at 298, 787 P.2d at 312 (citation omitted).

¶ 15 Further, in State v. Taylor, 1998 MT 121, 289 Mont. 63, 960 P.2d 773, we concluded that whether preindictment delay results in a violation of a defendant's due process rights requires a two-step analysis:

First, the defendant has the burden to show that he has suffered actual and substantial prejudice from the delay. Then, if he has shown sufficient prejudice, we must weigh the reasons for the delay offered by the State, as well as the length of the delay, to determine whether the defendant's rights have been denied. Throughout our analysis, we should be guided by the principle that a pre-indictment delay will lead to a violation of a defendant's due process rights if it can be said that requiring the defendant to stand trial "violates those fundamental conceptions of justice which lie at the base of our civil and political institutions and which define the community's sense of fair play and decency."

Taylor, ¶ 20 (citations omitted).

¶ 16 In the present case, we hold that the District Court correctly determined that Burt was not prejudiced by the preindictment delay. We decline to conclude that a defendant's anxiety during the preindictment period, without more, constitutes actual prejudice for purposes of establishing a due process violation. Compare State v. Mouser (Alaska Ct.App.1991), 806 P.2d 330, 337, n. 3 (concluding that "[b]ecause anxiety, no matter how real, will not, in itself, impair the accused in defending against a charge, it does not qualify as prejudice in the due process context"). Burt has cited no authorities in support of her claim that the anxiety and stress that she experienced as a result of the asserted delay amounted to "actual and substantial prejudice." Taylor, ¶ 20. Nor has Burt shown that the preindictment delay resulted in a loss of witnesses or evidence or that requiring her to stand trial "violate[d ] those fundamental conceptions of justice which lie at the base of our civil and political institutions and which define the community's sense of fair play and decency." Taylor, ¶ 20 (citations omitted). ¶ 17 Burt also claims that the preindictment delay violated her right to privacy. We conclude that Burt has failed to preserve this issue for our review. The State contends and Burt does not dispute that she failed to raise this issue below. The rule is well established that we do not address issues that have not been preserved for review. See Unified Industries, Inc. v. Easley, 1998 MT 145, ¶ 15, 289 Mont. 255, ¶ 15, 961 P.2d 100, ¶ 15.

¶ 18 2. Whether the District Court erred in denying Burt's motion to dismiss for lack of speedy trial.

¶ 19 Burt argues that her right to speedy trial has been violated. Without citation to any authority, Burt contends that she became an accused in January, 1996 when a civil complaint was filed against her and that the filing by "State agents" was tantamount to filing by the prosecution. Burt argues that Deputy County Attorney Marty Lambert directed two private citizens, Mecklenburg and Jim McLean (McLean) to investigate her alleged crimes and that those citizens were therefore agents of the State. The State responds that the District Court correctly concluded that the filing of Sunbird's civil complaint does not mark the time from which a speedy trial analysis should be made.

¶ 20 We note that Burt also claims that "[t]he seizure of Mrs. Burt and then papers from her car in early January is an `arrest' for purposes of speedy trial calculations." Burt fails to indicate the year in which this alleged "seizure" occurred. She also fails to cite to anything in the record that would suggest a "seizure" of her person. Regarding her papers, in her statement of facts Burt cites only to testimony by her husband that police had removed papers from Burt's car when it was found in Jefferson County and that the police returned some of the papers. Burt does not identify the papers, nor does she argue their importance to her defense. On this scant record, we conclude that Burt's claim is without merit.

¶ 21 The District Court found that Mecklenburg and McLean were not agents of the State but rather that they met with the County Attorney to request prosecution of Burt and that the County Attorney told them that he would not assist them in their civil action. Further, the District Court...