State v. Freeman

• Decision Date: 11 September 1979
• Docket Number: No. 14503,14503
• Citation: 183 Mont. 334,36 St.Rep. 1622,599 P.2d 368
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Michael Scott FREEMAN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 368

599 P.2d 368

183 Mont. 334

The STATE of Montana, Plaintiff and Respondent, v. Michael Scott FREEMAN, Defendant and Appellant.

No. 14503.

Supreme Court of Montana.

Submitted June 5, 1979.

Decided Sept. 11, 1979.

John L. Adams, argued, Billings, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Richard Larson, argued, Asst. Atty. Gen., Helena, Harold F. Hanser, County Atty., Billings, for plaintiff and respondent.

SHEEHY, Justice.

This is an appeal by defendant, Michael Scott Freeman, from a judgment of conviction of mitigated deliberate homicide entered in the District Court, Thirteenth Judicial District, Yellowstone County. Defendant was sentenced to ten years imprisonment, with three years suspended.

Early in the morning of September 11, 1977, Kirk Nelson and two companions drove in an automobile to the home of Michael Scott Freeman. Nelson had a "bone to pick" with Freeman in that earlier that evening Nelson had been arguing with a man named Larry Foster who imputed to Freeman statements that Freeman had made to Foster concerning Nelson.

Nelson arrived at Freeman's home at approximately 2:00 a. m. He walked up to the house alone and knocked on the door. Freeman awakened, answered the door, and Nelson entered the house. Shortly thereafter, the two men who had been waiting in Nelson's car also entered the house. Freeman testified at trial that Nelson threatened him repeatedly, but the two companions testified that no threats were made in their presence in the house.

At Nelson's request, the two companions left in Nelson's car. They returned a short time later and found the house empty and Freeman's car gone.

Freeman testified that Nelson ordered him to get dressed and accompany him to Raymond Best's house for a meeting with Foster. Freeman claims that Nelson repeatedly threatened to pistol-whip Freeman with the handgun he was carrying. However, at no time did Nelson take the gun out of his jacket.

Freeman drove his car to Best's house with Nelson riding in the front passenger seat. He parked the car directly in front of the house and Nelson got out and started to walk toward the gate. Freeman got out of his car slowly, which enabled him to grab a gun he kept hidden under the passenger seat. As Freeman stepped out, he aimed the gun over the hood of the car and shot Nelson in the hip. Freeman fired three more shots in rapid succession as Nelson moved away. Nelson did not fire his weapon.

At 2:40 a. m., Freeman walked into the Billings Police Station and told the authorities that he had just shot Nelson. He explained what had happened and was taken into custody. The police searched for Nelson but did not find him. At approximately 6:30 a. m. that morning, David Ramirez discovered Nelson's body on the front porch of the Ramirez house, which is located in the same neighborhood as the Best house. A loaded .357 caliber pistol was found on the body, and several .357 caliber shells. Also, a set of brass knuckles, a razor blade, paint scraper, and a small quantity of marijuana were found in Nelson's pockets.

The subsequent autopsy established that Nelson bled to death from the bullet wound in his left hip.

On September 12, 1977, Freeman was charged with the crime of deliberate homicide. A trial date of November 17, 1977 was set. However, on November 14, 1977, the Yellowstone County Attorney filed an amended information which included further charges against Freeman of conspiracy to commit homicide and aggravated burglary of Nelson's home. Larry Foster was also charged with these crimes in the amended information.

Freeman gave notice of his intent to rely on self-defense on November 16, 1977. Freeman and Foster were arraigned on November 21, 1977. Both men entered pleas of not guilty.

On December 5, 1977, Freeman himself filed on his own behalf a "demand for speedy trial or motion to dismiss for lack of evidence" and a further "motion to withdraw court-appointed counsel."

A trial date of April 4, 1978, was set for Freeman and Foster, who were to be tried jointly. Prior to trial on February 15, 1978, the District Court heard arguments on Freeman's motions and determined (1) a truth serum test Freeman had requested would be permitted, but the results would be inadmissible as evidence; (2) a special investigator for the defense would be permitted; and (3) a motion for severance of trials would be continued at Freeman's counsel's request.

On March 14, 1978, Freeman moved for acquittal due to the lack of speedy trial.

On April 4, 1978, at the final pretrial conference, the District Court denied defendant's motions for acquittal for lack of speedy trial and granted his motion for severance of trials. Trial of the charges against Freeman began immediately thereafter.

The jury found Freeman guilty of mitigated deliberate homicide on April 11, 1978. The conspiracy charge had previously been dismissed by the court at the close of the prosecutor's case. On April 21, 1978, Freeman was sentenced to ten years in prison, with three years suspended and credit for time served.

Larry Foster ultimately entered a plea of guilty to the charge of aggravated burglary of Nelson's home. The remaining charges against him were dismissed on the County Attorney's motion.

Freeman timely appealed the judgment of conviction against him and the matter is now before us for decision.

Freeman's appeal gives us these issues to consider:

(1) Was Freeman denied a speedy trial?

(2) Was the jury inadequately instructed on the defense of self-defense?

(3) Is there a statutory conflict between the defense of self-defense and the crime of mitigated deliberate homicide?

(4) Did the prosecution's presentation of evidence concerning the alleged conspiracy so cloud the jury's mind that Freeman was denied a fair and impartial trial?

A speedy trial is a federal and state constitutional right. U.S.Const. Amend. VI; 1972 Mont.Const., Art. II, § 24. When a speedy trial inquiry is triggered, we examine the issue under the balancing test suggested in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. The factors in Barker "have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process" to determine whether a speedy trial has been denied. 407 U.S. at 533, 92 S.Ct. at 2193.

We have followed the Barker test in State v. Tiedemann (1978), Mont., 584 P.2d 1284, 35 St.Rep. 1705; and State v. Collins (1978), Mont., 582 P.2d 1179, 35 St.Rep. 993. We held that the balancing test was required after a delay of twelve months in State v. Steward (1975), 168 Mont. 385, 543 P.2d 178; ten months in State ex rel. Sanford v. District Ct. Thirteenth J. D. (1976), 170 Mont. 196, 551 P.2d 1005; and seven months in Fitzpatrick v. Crist (1974), 165 Mont. 382, 528 P.2d 1322. In Fitzpatrick, we held that a seven-month delay was long enough to shift to the State the burden of explaining the reason for the delay and showing the absence of prejudice.

If the date of Freeman's arrest is used as a starting point, the pretrial delay totals 207 days. If the date the amended information was filed, the time elapsed to the time of trial totals 142 days.

The time from Freeman's arrest until trial on the charges consumed approximately seven months. The State contends that the delay should be computed only from the time the amended information was filed. However, such computation of time would be insufficient. Freeman was arrested and placed in jail on September 11, 1977, and remained there until trial, seven months later. He was accused of a crime on the day he was arrested and his right to a speedy trial accrued as of that date. Therefore, the total delay in Freeman's case approximates the delay found in Fitzpatrick, supra, and so the balancing test of Barker must be considered here.

Once the burden has shifted to the State to explain the reason for the delay, the question becomes, to whom is the delay to be attributed? For the State, the question is whether the prosecution was pursued with reasonable diligence. State v. Carden (1977), Mont., 566 P.2d 780, 34 St.Rep. 420. Typically, the courts look for "dead time" in which nothing is done by the prosecution in defendant's case. On the other side of the coin, it must be determined what percentage of the delay is chargeable to the defendant and this amount of time must accordingly be deducted from the total delay.

The lapse of time from September 11, 1977 to November 14, 1977, when the amended information was filed is explained by the State in this way: Freeman's confession did not reveal the involvement of Larry Foster in the alleged crime. It was not until a subsequent investigation by the police revealed that Nelson's house had been burglarized the same night the shooting had occurred and that Larry Foster was a likely suspect, that the authorities considered the possibility of a conspiracy between Foster and Freeman to commit deliberate homicide. The State had a viable case against Freeman when the original charges were filed. It was not a lack of evidence or inexcusable neglect that delayed the trial. Rather, it was the possibility of a considerably more complicated crime that prompted the State to investigate further and ultimately to file the amended information. Therefore, because the State pursued the prosecution with reasonable diligence, this lapse of time cannot be charged against the State.

After the amended information was filed on November 14, 1977, there were several motions presented by defendant, including a motion to withdraw court-appointed counsel that Freeman had earlier filed on December 5, 1977. These motions took up the time of the court and of the prosecution until the time of trial. The motions included a motion of intent to rely on self-defense, a motion for additional time to give notice valid by witnesses, a motion for severance, a motion to suppress the evidence, a motion for disclosure of investigative files, a ...