State v. Curtis

• Citation: 47 St.Rep. 277,787 P.2d 306,241 Mont. 288
• Decision Date: 09 February 1990
• Docket Number: No. 89-422,89-422
• Parties: STATE of Montana, Plaintiff and Respondent, v. Betty Ann CURTIS, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 306

787 P.2d 306

241 Mont. 288

STATE of Montana, Plaintiff and Respondent, v. Betty Ann CURTIS, Defendant and Appellant.

No. 89-422.

Supreme Court of Montana.

Submitted on Briefs Dec. 1, 1989.

Decided Feb. 9, 1990.

[241 Mont. 292] James A. Haynes, Hamilton, for defendant and appellant.

Marc Racicot, Atty. Gen., Elizabeth S. Baker, Asst. Atty. Gen., and John W. Robinson, County Atty., Hamilton, for plaintiff and respondent.

TURNAGE, Chief Justice.

A jury in the Fourth Judicial District, Ravalli County, found Betty Ann Curtis

                guilty of felony theft from a checking account and of a certificate of deposit belonging to an elderly patient under her care.   She now appeals on grounds of excessive pre-indictment delay, lack of speedy trial, and refusal of a directed verdict.   We affirm
                

ISSUES

1. Did a 422-day delay between completion of the crime and the filing of the criminal complaint violate the defendant's right to due process?

2. Did a 291-day delay between the filing of the criminal complaint and the beginning of trial violate the defendant's right to a speedy trial?

3. Was the evidence following the State's case-in-chief sufficient to refuse the defendant's motion for a directed verdict on Count IV, theft of a certificate of deposit?

FACTS

Octogenarian Dorothy Bullock lived alone in his life-long home of Hamilton, Montana. His niece, Carol Curry, lived in Whitefish, Montana. She did not maintain a close relationship with her uncle, but held a power of attorney enabling her to supervise his financial affairs.

In November of 1985 Bullock hired a licensed practical nurse, Betty Curtis, to help with his daily affairs. Bullock paid Curtis between $800 and $1000 per month to cook, clean, wash clothes, buy groceries, and run errands. Two months after hiring Curtis, Bullock had his attorney draw up a will appointing Curtis his personal representative, and, among other dispositions, leaving Curtis his home in Hamilton. In April of 1986, he provided Curtis with a power of attorney giving her access to his safety deposit box and bank accounts.

In the spring of 1987, Carol Curry became suspicious when she noticed a dramatic change in Bullock's banking activities. On April 20, 1987, she asked the Ravalli County sheriff's office to investigate, and they confirmed Curry's suspicions. In March 1986, Bullock's check-writing increased from an average of five to seven checks per month to twenty to thirty checks per month. Many of those checks went to Curtis and her sons. Between March of 1986 and April of 1987, Curtis received 161 checks totaling $34,540, an average of $2,467 per month. Curtis's son Todd received $2,760 and her son Barry received $1,500 from Bullock's checking account.

Investigating officers also discovered the loss of a $20,000 certificate of deposit held jointly by Bullock and his brother Clarence. On the morning of March 17, 1987, Bullock and Curtis took the certificate from Bullock's safety deposit box, cashed it, and purchased a new certificate held jointly by Bullock and Curtis. One week later the certificate was cashed for $19,931.46. Of the proceeds, $6,700 was deposited in the account of Curtis's son Kyp and used to satisfy a judgment to repossess the appellant's car. Seven thousand dollars was deposited in Curtis's bank account and the remaining $6,231.46 was taken in cash. The next week, $6,231.46 was deposited in a joint checking account in the names of Betty and Kyp Curtis.

On June 2, 1988, a complaint was filed against the appellant charging four counts of felony theft. The trial commenced on March 20, 1989. The District Court ruled that Bullock was not competent to testify on substantive issues. The jury found Curtis guilty on two counts; one of theft from Bullock's checking account and another of the theft of the certificate of deposit. Curtis now appeals her conviction.

DISCUSSION

In her accusations of pre-indictment delay and lack of speedy trial, the appellant presents a difficult and close question. The length of delays from investigation to accusation and from accusation to trial approach the tolerable constitutional limits. The exclusion of the victim as a potentially exculpatory witness raises the possibility of great prejudice against the defense. Because of these concerns, we set out our analysis in commensurate detail.

We begin by noting that the appellant has lumped together arguments on lack of a speedy trial and arguments on excessive pre-indictment delay. The United States Supreme Court utilizes different standards for each of these issues. Speedy trial is guaranteed by the Sixth Amendment of the United States Constitution and is analyzed according to the standards set out in Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117. Freedom from excessive pre-indictment delay is guaranteed by the statutes of limitations and the Fifth and Sixth Amendments. It is analyzed according to the standards set out in United States v. Marion (1971), 404 U.S. 307, 323-24, 92 S.Ct. 455, 465, 30 L.Ed.2d 468, 480-81. These rights act in a complimentary fashion to protect the criminal defendant from unreasonable delay from the time when investigation begins to the time when trial commences. The statute of limitations and due process cover from the time when the investigation begins to the point at which the defendant is accused, whereas the speedy trial guarantee covers from the accusation to the time when trial begins. United States v. Lovasco (1977), 431 U.S. 783, 788-89, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752, 758. This Court utilizes the same analysis. State v. Bartnes (Mont.1988), 764 P.2d 1271, 1273-74, 45 St.Rep. 2101, 2103; State v. Goltz (1982), 197 Mont. 361, 365-66, 642 P.2d 1079, 1081-82; State v. Burchett (1974), 165 Mont. 280, 283, 530 P.2d 471, 473, cert. den. 420 U.S. 974, 95 S.Ct. 1397, 43 L.Ed.2d 654 (1975).

PRE-INDICTMENT DELAY

Under the due process analysis, the defendant has the burden of proving whether the State intentionally delayed charging the defendant to gain a tactical advantage and whether any delay caused actual prejudice to the conduct of the defense. Marion, 404 U.S. at 324, 92 S.Ct. at 465, 30 L.Ed.2d at 481; Bartnes, 764 P.2d at 1274, 45 St.Rep. at 2013. We need not decide in this case whether the appellant must prove both intentional delay and actual prejudice since she does not claim the former and fails to sufficiently prove the latter. See Goltz, 197 Mont. at 367, 642 P.2d at 1082.

Prejudice to the Defense

The appellant argues that the 422-day delay between the final date of the commission of the offenses, April 30, 1987, and the date the complaint was filed, June 2, 1988, violated her due process rights. She asserts that the delay prejudiced her defense because during that time Bullock's mental condition deteriorated leaving him unable to exonerate the defendant. According to the appellant, if the trial had been held earlier, Bullock's memory would have been intact and he would have testified that he freely gifted the money in question to Curtis and her children. The appellant points to testimony given by various witnesses indicating that Bullock was sharp, alert, and competent in January, April, May, and September of 1987. By the time trial began on March 23, 1989, however, Bullock's memory of the events had deteriorated to the point where the trial court adjudged him incompetent to testify.

Prejudice to the defense is the primary consideration in pre-indictment delay. "[T]he inability of a defendant adequately to prepare his case skews the fairness of the entire system." Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. In particular, the loss of a witness's ability to recall disputed events can seriously impair the defense. See Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118; State v. Larson (1981), 191 Mont. 257, 264, 623 P.2d 954, 959. In this case, however, the record contains considerable evidence which discredits the appellant's claim of prejudice due to Bullock's loss of memory.

First, during the trial, the defense presented much of the evidence to which Curtis alleges Bullock would have testified. As noted by the appellant, a number of witnesses testified on Bullock's ability to handle his financial affairs during the time of the disputed transactions. The defense also presented testimony given by Bullock during a competency hearing in June of 1987. In that testimony, Bullock stated That in consideration of [Betty Ann Curtis's] having cared for me and assisted me in all of my personal affairs for several years, I have given her money and other items which are intended to be wages and gifts for the many kindnesses shown me.

                that he was aware of his financial condition and that Curtis wrote the checks and signed the certificate of deposit with his approval.   The defense introduced an affidavit signed by Bullock on May 14, 1987, to the same effect
                

We recognize that second-hand evidence cannot have the same impact on a jury as a statement of exoneration by the purported victim of the crime. The defense, however, was not precluded from presenting the essential facts supporting its theory.

Second, even if the trial had been held at an earlier date, the appellant has not shown that the court would have allowed Bullock to testify. Following the June 1987 competency hearing, the court held that Bullock was not competent to manage his financial and personal affairs and appointed Curry as his permanent guardian. While the standard of competency to manage one's affairs, §§ 72-5-316(1), -409(2)(b), MCA, is not identical to the standard of competency to testify, State v. Coleman (1978), 177 Mont. 1, 27, 579 P.2d 732, 748, cert. den. 448 U.S. 914, 101 S.Ct. 34, 65 L.Ed.2d 1177 (1980), the evidence indicates that Bullock may not have been competent to testify as early as June 1987 when the investigation began.

Third, the appellant has not shown that even if allowed to...