State v. Forsyth

Decision Date25 August 1988
Docket NumberNo. 86-492,86-492
PartiesSTATE of Montana, Plaintiff and Respondent, v. Jerry Paul FORSYTH, Defendant and Appellant.
CourtMontana Supreme Court

Keller & German, Robert S. Keller, argued, Kalispell, for defendant and appellant.

Mike Greely, Atty. Gen., Robert F.W. Smith, argued, Asst. Atty. Gen., Helena, Ted O. Lympus, argued, County Atty., Kalispell, for plaintiff and respondent.

McDONOUGH, Justice.

Forsyth appeals his conviction for deliberate homicide. This case first went to trial in Kalispell in 1980, and resulted in a conviction this Court reversed because the jury was not instructed on the elements of deliberate homicide. State v. Forsyth (1982), 197 Mont. 248, 642 P.2d 1035. A second trial at Polson in 1982 resulted in a hung jury. The third trial at Kalispell in 1985 resulted in the conviction Forsyth appeals. We affirm.

Forsyth presents the following issues for review:

(1) Whether the Court erred in failing to grant Forsyth's motion to dismiss for lack of speedy trial?

(2) Whether the Court erred in failing to grant Forsyth's motion to dismiss for denial of due process because:

A. The State failed to properly disclose new evidence, favorable, or unfavorable, on the issue of appellant's guilt, contrary to the District Court's standing order.

B. The State deliberately withheld exculpatory evidence.

C. The State initiated prosecution of a critical witness without probable cause one week before trial for the sole purpose of discrediting the witness.

(3) Whether the Court erred in permitting the State to add a witness in the middle of trial, and then erred in failing to (4) Whether the Court erred in failing to order the place of trial outside of Flathead County, and in denying Forsyth's motion for new trial accordingly?

grant Forsyth's request for a mistrial as a consequence?

(5) Whether the Court erred in failing to grant Forsyth's motions for a new trial based upon newly discovered evidence?

(6) Whether the Court erred in failing to award attorney's fees?

(7) Whether the Court erred in increasing the defendant's sentence, and in failing to credit the defendant with time for incarceration?

The facts surrounding the murder of the victim, Karen Forsyth, are recorded in State v. Forsyth (1982), 197 Mont. 248, 642 P.2d 1035.

I

In connection with the first issue, Forsyth contends that the delay between his second trial and his third trial violated his speedy trial rights. Forsyth presented the following documents as relevant to the speedy trial issue:

January 2, 1983--Defendant's oral request to the Court for a transcript of the second trial.

January 11, 1983--Defendant's motion that his counsel continue to be appointed, and be paid at State expense.

January 17, 1983--Defendant's written motion for a transcript of the second trial.

January 25, 1983--Defendant's motion to dismiss for double jeopardy grounds based upon jury tampering and prosecutorial misconduct, as well as a motion to strike the testimony of Douglas Richards on the grounds that he was incompetent; and evidentiary hearings were requested as to jury tampering and prosecutorial misconduct.

February 9, 1983--Hearing on Defendant's motions.

February 14, 1983--Defendant's Affidavit of Indigency filed, at request of Court.

February 22, 1983--Letter of Gary Crowe, Esq., to the Court explaining his conflict of interest in being appointed to represent the Defendant.

February 28, 1983--Order denying all motions and requesting the Defendant to either make suitable and acceptable arrangements with his present counsel, or the Court would appoint counsel from the public defenders; Defendant's indigency status affirmed.

March 10, 1983--Defendant's response to the Court's Order of February 28, 1983, coupled with a written request for the transcript of the second trial.

March 15, 1983--Defendant's Petition to the Montana Supreme Court for a Writ of Supervisory Control.

May 11, 1983--Supreme Court Order denying the Writ for the reason that all but one of the grounds asserted were premature, and, in addition, with respect to the appointment of counsel, that no showing had been made that the public defender firms were incompetent or unable to represent the Defendant.

May 17, 1983--Order requiring Defendant to elect counsel in five days, and if counsel is selected, an additional five days within which time to notify the Court of the required portion or portions of the transcript and the reasons or intended use thereof.

May 19, 1983--Defendant's letter to the Court requesting a hearing with respect to the conflicts of the public defenders, and requesting the transcript of the second trial.

May 27, 1983--Order setting a hearing on appointment of counsel for June 22, 1983.

June 22, 1983--Hearing on appointment of counsel, and Defendant renewed his motions in writing, to appoint the firm of Keller and German as counsel at public expense, for a transcript of the second trial, and to conduct evidentiary hearing on the jury tampering and the prosecutorial misconduct; and informed the court of a desire for a speedy trial.

July 28, 1983--Attorneys' conference by telephone in which the Court requested the August 12, 1983--Order denying Defendant's motion for appointment of counsel, and withholding ruling on the request for a transcript, until response by counsel.

Defendant to designate the portions of the transcript that did not need to be transcribed, and requested written comment by both parties with respect to the place of trial.

August 19, 1983--Response by Keller and German.

August 23, 1983--Order appointing Messrs. Doran and Allison as counsel for Defendant.

August 29, 1983--Defendant's Petition to Montana Supreme Court for Writ of Supervisory Control.

October 6, 1983--Writ granted, and Keller and German appointed as counsel for Defendant at public expense.

October 18, 1983--State's motion to Supreme Court for Reconsideration.

October 31, 1983--Supreme Court Order, reaffirming Order of October 6, 1983.

November 14, 1983--Part of transcript ordered to be transcribed, tentative trial date set and attorneys conference set for December 12, 1983.

December 12, 1983--Attorneys' conference: Defendant's motions renewed, in writing, for evidentiary hearings on jury tampering and prosecutorial misconduct, and for remainder of transcript.

December 23, 1983--State's motion for Change of Venue.

January 5, 1984--Hearing on State's Motion for Change of Venue.

January 13, 1984--Order, remainder of transcript ordered and tentative trial date of January 30 vacated.

March 15, 1984--Minute entry order setting evidentiary hearings.

April 5, 1984--Evidentiary hearing on jury tampering.

April 6, 1984--Evidentiary hearing on prosecutorial misconduct.

April 23, 1984--Last volume of transcript of second trial delivered.

April 24, 1984--Order denying Defendant's motions to dismiss for Double Jeopardy and lack of Due Process.

May 4, 1984--Defendant's motion to dismiss for lack of speedy trial.

May 10, 1984--Hearing on motion to dismiss for lack of speedy trial.

May 23, 1984--Order denying Defendant's motion to dismiss for lack of speedy trial.

June 6, 1984--Order granting State's Motion for Change of Place of trial, and setting trial date of October 1, 1984.

July 11, 1984--Defendant's second motion to dismiss for lack of speedy trial.

July 13, 1984--Hearing on motion to dismiss for lack of speedy trial, and Order denying Defendant's motion to dismiss for speedy trial.

July 23, 1984--Request for transcript of hearing of January 5, 1984 (change of venue), April 5-6, 1984 (evidentiary hearing on jury tampering and prosecutorial misconduct), and July 13, 1984 (second speedy trial hearing).

We have reviewed these documents.

On page 48 of his opening brief, Forsyth concedes that the time between October 1, 1984, to July 2, 1985, is chargeable to the defense as time occupied in an unsuccessful attempt to obtain a writ of supervisory control. (An October 1, 1984, trial date was vacated prior to this Court's resolution of the writ petition.) However, we date the beginning of this period as July of 1984, instead of October of 1984, because a letter shows that preparation for this writ began in the lower court at least as early as July 18, 1984. The letter documents Forsyth's request to the Clerk of Flathead County to prepare a transcript of the lower court's hearing on jury tampering and prosecutorial misconduct for use on the writ petition. The relevant period is therefore from January of 1983, to July of 1984.

Forsyth contends that delay caused by the State mandates dismissal because his speedy trial rights were violated. The District Court considered and rejected Forsyth's First, we hold that the length of delay which may be attributed to the State is sufficient to trigger further analysis, and therefore balancing of the four factors set out in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. See State v. Bailey (1982), 201 Mont. 473, 478, 655 P.2d 494, 497. The four factors are: (1) length of delay, (2) reason for delay, (3) defendant's assertion of the right, and (4) prejudice to the defendant. Bailey, 655 P.2d at 497. In analyzing a particular speedy trial claim using the four factors, it must be remembered that:

motion for dismissal for lack of a speedy trial holding that a rigorous defense rather than the conduct on the part of the State caused the delay. We affirm on this issue.

"none of the four factors is recognized as either a necessary or sufficient condition to a finding that the right to a speedy trial has been deprived. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. The Court must still engage in a difficult and sensitive balancing process. See Barker, 407 U.S. at 533, 92 S.Ct. at 2193."

Bailey, 655 P.2d at 497 (quoting State v. Larson (Mont.1981), 623 P.2d...

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