State v. Carden

• Decision Date: 04 August 1977
• Docket Number: No. 13478,13478
• Parties: The STATE of Montana, Plaintiff and Appellant, v. John J. CARDEN, a/k/a James J. Carden and Gloria (Eusek) Carden, Defendants and Respondents.
• Court: Montana Supreme Court

Page 780

566 P.2d 780

173 Mont. 77

The STATE of Montana, Plaintiff and Appellant, v. John J. CARDEN, a/k/a James J. Carden and Gloria (Eusek) Carden, Defendants and Respondents.

No. 13478.

Supreme Court of Montana.

Submitted Feb. 16, 1977.

Decided May 25, 1977.

Rehearing Denied Aug. 4, 1977.

Mike Greely, Atty. Gen. (argued), Helena, Robert S. Keller (argued), Kalispell, for appellant.

Smith, Emmons, Baillie & Walsh, Robert J. Emmons (argued), Great Falls, Knight, Dahood & Mackay, Wade J. Dahood (appeared), Anaconda, for respondents.

HASWELL, Justice.

Defendants James J. Carden and his wife Gloria Eusek Carden were charged with several crimes arising out of a $5,000 settlement of her Workmen's Compensation claim. The district court, Lewis and Clark County, dismissed the case on the ground that defendants had been denied their constitutional right to a speedy trial. The state appeals. We reverse.

On December 20, 1974, the attorney general filed a direct Information against the defendants in the district court of Lewis and Clark County. Defendant James J. Carden is the former administrator of the Workmen's Compensation Division, Department of Labor and Industry, of the State of Montana. Defendant Gloria Eusek Carden is the wife of defendant James J. Carden. The Information contained 19 counts charging defendants with the following crimes in connection with a $5,000 settlement of Gloria Eusek Carden's claim under the Workmen's Compensation Act: Embezzlement by a public officer; grand larceny; obtaining money or property by false pretenses; presenting false proofs on a policy of insurance; officer illegally interested in a contract; offering false or forged document to be recorded; preparing false evidence; and offering false evidence.

Defendants made their initial appearance on January 3, 1975, before District Judge Gordon R. Bennett. Defendants were granted additional time to brief the Information and were released on their own recognizance. On January 9, 1975, District Judge Nat Allen assumed jurisdiction of the case upon request of Judge Bennett.

On January 17, 1975, Judge Allen granted defendants an extension of time to February 10 in which to file their motions and briefs. On February 10 defendants filed 56 motions attacking the Information in various particulars. Defendants received an extension of time to February 26 to file their supporting brief.

On March 18, Judge Allen revised the briefing schedule on defendants' motions so that defendants' brief was due on April 21, the state's answering brief was due on May 21 and defendants' reply brief was due on May 30. The state contends this was done to synchronize the briefing schedule in this case with the briefing schedule in State v. James J. Carden, Cause # 3937 in the district court. Defendants deny this.

On May 20, the state received an extension of time to June 4 to file its answering brief. Thereafter defendants received an extension of time to July 3 in which to file their reply brief.

On August 4, the state moved to disqualify Judge Allen resulting in an appeal to this Court. We ruled that Judge Allen was disqualified. On September 30, District Judge Jack D. Shanstrom assumed jurisdiction.

On October 21, Judge Shanstrom set all pending motions for hearing on November 17. On November 3, defendants disqualified Judge Shanstrom.

On December 9, District Judge Paul G. Hatfield assumed jurisdiction. Judge Hatfield set all motions by the defendants for hearing on February 4, 1976. At the hearing, Judge Hatfield requested counsel to submit proposed orders and requested the state to review its Information for consolidation of counts. According to the state, it subsequently wrote Judge Hatfield suggesting that the Information could be reduced to 6 counts and the judge concurred.

On April 14, 1976, Judge Hatfield entered an order (1) dismissing 13 counts of the Information, (2) granting the state leave to file an amended Information, (3) indicating that many of the defendants' original motions were rendered moot by the dismissal of the 13 counts, and (4) setting a further hearing for April 27. This was subsequently continued to May 4 due to inclement weather.

In the meantime, on April 21, the state filed an amended Information containing 6 counts. In the amended Information the defendants were charged with 6 crimes generally corresponding to the remaining counts in the original Information. The crimes charged in the amended Information were: Embezzlement by a public officer; grand larceny; offering a forged or false document to be recorded; and preparing false evidence.

Following the hearing on May 4, Judge Hatfield set May 14 as the date for arraignment of defendants on the amended Information; May 17 was set for hearing further motions to be filed by defendants; and June 17 was set as the tentative trial date.

On May 11, defendants filed their motion to dismiss the case for denial of a speedy trial in violation of the Sixth Amendment to the United States Constitution and Art. II, section 24, 1972 Montana Constitution.

On May 17, defendants presented the state with 25 motions attacking the amended Information; a motion to dismiss all charges because of prejudicial pretrial publicity; a motion for change of place of trial; a demand for production of documents for trial; a motion for production of documents; and a motion to compel the state to furnish defendants with a copy of any oral or written confessions or admissions with a list of witnesses.

On May 27, defendant Gloria Eusek Carden moved for a severance of her trial from that of James J. Carden.

On June 8, Judge Hatfield, who was then engaged in a statewide campaign for election as Chief Justice of this Court, removed himself from jurisdiction in the case, following a motion by defendants.

District Judge James Sorte then assumed jurisdiction and set all motions by defendants for hearing on June 17. Following hearing all motions by defendants were denied, except those relating to discovery. Trial was set for August 16.

On July 16, defendants requested a rehearing on the issue of a speedy trial. The rehearing was held on July 28, in Kalispell during the annual convention of the State Bar of Montana. Judge Sorte ruled from the bench that the case be dismissed for lack of a speedy trial. The state filed its notice of appeal the following day. On August 1, Judge Sorte filed a memorandum opinion setting forth the reasons for his ruling.

The appeal was originally argued on October 22, 1976 and reargued on February 9, 1977.

The sole issue on appeal is whether the defendants have been denied their constitutional right to a speedy trial. We note defendants have presented 16 additional issues for review relating to other pretrial aspects of the case, which we will not review at this time as the district court's dismissal is based exclusively on denial of a speedy trial.

Although the arguments of the respective parties on the speedy trial issue consist of hundreds of pages of briefs filed in the district court and in this Court on appeal, we will endeavor to summarize the principal positions of the respective parties in brief, understandable form. In so doing, we will confine ourselves to the basic thrust of the arguments as we view them, directing our attention to the forest rather than the individual trees.

The defendants principally contend that they have been denied their constitutional right to a speedy trial under the principles enunciated by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, and our decisions in State v. Steward, 168 Mont. 385, 543 P.2d 178, 32 St. Rep. 1185; State ex rel. Sanford v. Dist. Ct., Mont., 551 P.2d 1005, 33 St.Rep. 644; and State v. Keller, Mont., 553 P.2d 1013, 33 St.Rep. 795. These cases generally involve a sensitive balancing of four principal factors in the individual case to determine whether a given defendant has been denied a speedy trial: (1) length of delay, (2) reasons for the delay, (3) assertion of the right by defendant, and (4) prejudice to defendant.

Defendants contend that when these four factors are properly evaluated and balanced under the circumstances of this case, defendants have clearly been denied their right to a speedy trial. They emphasize the length of the delay here is excessive and unreasonable; that the principal reason for the delay is the manner in which the state chose to prosecute the case by a 19 count Information covering an essentially simple factual transaction; that the duty is on the state to afford defendants a speedy trial, which defendants have neither waived nor consented to; and that defendants have suffered severe actual prejudice by the failure of the state to bring them to trial within a reasonable time. In short, defendants claim the state is responsible and chargeable with unreasonably delaying the trial of defendants without justification entitling defendants to dismissal of the charges against them.

The basic position of the state, on the other hand, is that while the four factor balancing test of Barker and its Montana progeny Steward, Sanford and Keller is controlling, a proper evaluation and balancing of these factors demonstrates that defendants have not been denied a speedy trial within constitutional requirements. The state argues it has pursued the prosecution of this case with dispatch and cites several cases where delays substantially in excess of those here were held not to constitute violations of constitutional speedy trial guarantees: Barker, supra; United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627; United States v. Lane, 5 Cir., 465 F.2d 408; United States v. Jones, 154 U.S.App.D.C. 211, 475 F.2d 322; United States v. Skeens, 161 U.S.App.D.C. 131, 494 F.2d 1050; United States v. Churchill, 1 Cir., 483 F.2d 268; Ricon v. Garrison, 4 Cir., 517 F.2d 628; United States v. Fairchild, 7 Cir., 526 F.2d 185; United States...