State v. Gould, 95-018

• Decision Date: 21 September 1995
• Docket Number: No. 95-018,95-018
• Citation: 273 Mont. 207,902 P.2d 532
• Parties: STATE of Montana, Plaintiff and Respondent, v. Robert GOULD, Defendant and Appellant.
• Court: Montana Supreme Court

Page 532

902 P.2d 532

273 Mont. 207

STATE of Montana, Plaintiff and Respondent, v. Robert GOULD, Defendant and Appellant.

No. 95-018.

Supreme Court of Montana.

Submitted on Briefs July 27, 1995.

Decided Sept. 7, 1995.

Rehearing Denied Sept. 21, 1995.

Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, for appellant.

Joseph P. Mazurek, Attorney General, Barbara C. Harris, Asst. Attorney General, Helena, Brant Light, County Attorney, Dean D. Chisholm, Deputy County Attorney, Great Falls, for respondent.

GRAY, Justice.

Robert Gould (Gould) appeals from the judgment and sentence entered by the Eighth Judicial District Court, Cascade County, on the jury verdict finding him guilty of the offense of sexual intercourse without consent. We affirm.

We restate the issues on appeal as follows:

1. Did the District Court err in denying Gould's motion to dismiss based on lack of speedy trial?

2. Did the District Court err in concluding that mental incapacity, as defined in § 45-2-101(35), MCA, includes voluntary intoxication and in denying Gould's motion to dismiss on that basis?

3. Did the District Court err in denying Gould's motion for a directed verdict of acquittal based on insufficiency of the evidence on the "without consent" element of the offense of sexual intercourse without consent?

4. Is there sufficient evidence to support the jury's guilty verdict on the offense of sexual intercourse without consent?

Disregarding minor discrepancies, the general facts in this case are not disputed. On the evening of February 5, 1992, Janetta Jo Paitra Clark (Clark), Tami Lynn Archer Horvath (Horvath), Russ Moddison (Moddison), Ian "Skip" Johnson (Johnson), Jordan Mattfeld (Mattfeld) and Gould met at the Black Eagle Country Club, in Black Eagle, Montana. The group drank and socialized at the club for several hours. Clark consumed approximately nine drinks. The group left the club at approximately 1:00 a.m. on the morning of February 6, 1992.

After leaving the club, the group met at the residence of Mattfeld and Johnson. At around 1:45 a.m., Mattfeld and Clark had a drinking contest in which they took turns drinking from a fifth of Jack Daniels. Clark drank approximately one-half of the bottle.

After the contest, Clark stumbled into Mattfeld's room. At one point, Clark fell and Mattfeld had to assist her in getting up. Clark collapsed onto Mattfeld's bed and, soon thereafter, Johnson and Moddison assisted her from Mattfeld's room to Johnson's room. They removed Clark's sweater and jeans, then stepped into the hallway where, together with Gould, they discussed having sex with Clark. Moddison returned to Johnson's room; Johnson and Gould went to the living room.

Moddison removed Clark's bra and underwear and had vaginal and anal intercourse with her. Johnson also had vaginal and anal intercourse with Clark. Finally, Gould entered the room and had vaginal intercourse with Clark. A few hours later, Moddison discovered Clark dead on Johnson's bed.

On April 13, 1993, the State of Montana (State) charged Gould by information with the felony offense of sexual intercourse without consent. Gould's jury trial began on June 6, 1994, and the jury returned a guilty verdict on June 8, 1994. Additional facts are set forth where necessary to our resolution of the issues.

1. Did the District Court err in denying Gould's motion to dismiss based on lack of speedy trial?

The Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee a criminal defendant the right to a speedy trial. Gould argues on appeal that the District Court erred in denying his motion to dismiss based on lack of speedy trial.

The State contends that Gould waived his right to a speedy trial and, as a result, that we should refuse to reach the merits of his argument. While it is true that Gould waived his right to a speedy trial on two occasions, first on September 14, 1993, and again on December 13, 1993, the record indicates that his waivers were limited to specific time periods. Therefore, the waivers did not constitute a total waiver by Gould of his speedy trial rights and we will address the waivers within our speedy trial analysis.

The United States Supreme Court set forth a four-factor test to be used in determining whether a defendant's right to a speedy trial has been violated in Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117; we adopted the Barker test in State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64. The Barker factors are: (1) length of the delay; (2) reason for the delay; (3) defendant's assertion of the right; and (4) prejudice to the defendant. State v. Thompson (1993), 263 Mont. 17, 32, 865 P.2d, 1125, 1134 (citation omitted). None of these factors alone is dispositive; rather, they are considered together and balanced in light of the unique circumstances of each case. State v. Stewart (1994), 266 Mont. 525, 529, 881 P.2d 629, 632 (citations omitted).

Length of Delay

The length of the delay is of primary importance. State v. Heffernan (1991), 248 Mont. 67, 70, 809 P.2d 566, 568. Unless the length of the delay is presumptively prejudicial, it is unnecessary to consider the remaining three factors. State v. Weeks (1995), --- Mont. ----, ----, 891 P.2d 477, 482, 52 St.Rep. 78, 81 (citation omitted). If a delay is presumptively prejudicial, the State has the burden of rebutting the presumption by providing a reasonable explanation for the delay and showing that the defendant was not prejudiced. State v. Curtis (1990), 241 Mont. 288, 299, 787 P.2d 306, 313 (citation omitted). We previously have stated that a delay greater than 200 days usually triggers a full speedy trial analysis. State v. Hembd (1992), 254 Mont. 407, 413, 838 P.2d 412, 416 (citation omitted).

Here, the total delay between the filing of the information and the commencement of Gould's trial was 419 days. Thus, the length of delay is presumptively prejudicial and we analyze the remaining speedy trial factors.

Reason for Delay

Analysis of the second factor, reason for the delay, requires allocating the delay to the party responsible for causing it. Heffernan, 809 P.2d at 568. The overall 419-day delay in this case can be divided into five segments.

The first segment, of 56 days, began when the State filed the information against Gould on April 13, 1993, and continued until June 8, 1993, when Gould successfully moved to continue the trial set for June 21, 1993. This segment of the delay is attributable to the State.

The second segment, of 136 days, began on June 8, 1993, and continued until October 22, 1993, when the State successfully moved to continue the trial set for October 25, 1993. During this time, Gould successfully moved for three continuances and, in his September 14, 1993, motion, specifically waived his right to a speedy trial until October 11, 1993, when Dr. Donald Reay, an expert witness for the defense, would be available for trial. Additionally, he entered into, and then withdrew from, a plea agreement with the State. Upon withdrawing from the plea agreement, Gould informed the court he would be seeking new counsel.

Gould points out that the State amended the information against him during this period by dropping one of the charges. In fact, the State filed the amended information on July 26, 1993, subsequent to Gould's successful motion to continue. Gould argues that we should allocate the time from that date until October 22, 1993, to the State. However, the amended information did not impact the trial date set in response to Gould's July 26, 1993, motion to continue and did not require additional trial preparation by Gould; therefore, the State's filing of the amended information did not result in any delay. This 136-day segment of delay is attributable to Gould.

The third segment, of 34 days, began on October 22, 1993, and continued until November 24, 1993. The State's October 22, 1993, motion to continue was due to Gould's failure to obtain counsel after his withdrawal from the plea agreement with the State. On November 18, 1993, upon motion by the State, Gould appeared in court and was ordered to retain counsel or proceed pro se by November 24, 1993. While this segment of delay arguably should be attributed to Gould on the basis that his unrepresented status undoubtedly prompted the State's October 22nd and November 18th motions, we attribute it to the State given the importance of the right to a speedy trial at issue here.

The fourth segment, of 106 days, began on November 24, 1993, and continued until March 11, 1994. Although ordered to retain counsel or proceed pro se by November 24, 1993, Gould did not appear with new counsel until December 13, 1993. Additionally, Gould requested that his trial be set no sooner than March 7, 1994, and in this request, he waived his right to a speedy trial for that time period. On March 11, 1994, the State successfully moved to continue the trial set for March 21, 1994. This segment of delay is attributable to Gould.

The fifth segment, of 87 days, began with the State's March 11, 1994, motion to continue the trial date, and concluded when Gould's trial began on June 6, 1994. During this period, the District Court, on its own initiative, continued the trial and set an omnibus hearing. This segment of delay is attributable to the State.

Gould is responsible for 242 days, while the State is responsible for 177 days, of the 419-day overall delay. The right to a speedy trial was primarily designed to protect defendants from oppressive tactics by the prosecution. Heffernan, 809 P.2d at 569; citing Barker, 407 U.S. at 529, 92 S.Ct. at 2191. Gould does not contend, and the record does not reflect, that the State engaged in any deliberate tactics to delay the trial. The delay we attribute to the State was of the type which is inherent in the system and which we categorize as institutional...