State v. Hardaway, s. 97-163

• Decision Date: 09 September 1998
• Docket Number: 97-289,Nos. 97-163,s. 97-163
• Citation: 966 P.2d 125,290 Mont. 516,1998 MT 224
• Parties: , 1998 MT 224 STATE of Montana, Plaintiff and Respondent, v. Jason HARDAWAY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 125

966 P.2d 125

290 Mont. 516, 1998 MT 224

STATE of Montana, Plaintiff and Respondent, v. Jason HARDAWAY, Defendant and Appellant.

Nos. 97-163, 97-289.

Supreme Court of Montana.

Submitted on Briefs Jan. 15, 1998.

Decided Sept. 9, 1998.

Jack E. Sands, Billings, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Ass't Attorney General, Helena, Dennis Paxinos, Yellowstone County Attorney, Dale Mrkich, Ass't Yellowstone County Attorney, Billings, for Plaintiff and Respondent.

LEAPHART, Justice.

¶1 Jason Hardaway (Hardaway) appeals from the decision of the Thirteenth Judicial District Court, Yellowstone County, denying his motion to dismiss for lack of speedy trial, denying his motion for mistrial as a result of prejudicial comments made during jury voir dire and, in a separate matter, denying his motion for defense costs. We reverse and remand this matter to the District Court.

Factual and Procedural Background

¶2 Hardaway was arrested on February 22, 1995 following a high speed car chase that led to a subsequent foot chase through a field. When the officer caught up with Hardaway he was wearing a ladies slip, a black shirt and some jewelry. He was carrying a pair of jeans. The officer arrested Hardaway and transported him to the Yellowstone County Detention Facility. During an inventory search of Hardaway and the items in his possession, the detention officer found two small bindles containing a white powdery substance in the right front pocket of the jeans that Hardaway was carrying. The officer also found a bindle and a plastic baggie containing a white powdery substance in the right watch pocket of the jeans. The white powdery substances tested positive for methamphetamine. Although Hardaway later denied ownership of the jeans, Hardaway had the jeans in his possession when he was arrested and claimed the jeans from inventory to wear home when he was released from custody.

¶3 On February 27, 1995, the State of Montana (State) charged Hardaway with criminal possession of dangerous drugs. Hardaway appeared at the arraignment with appointed counsel and pled not guilty to the charge. On March 23, 1995, the District Court released Hardaway on his own recognizance. Trial on Hardaway's drug charge was set to begin on June 27, 1995. For reasons unknown, but believed to have been caused by the court's backlog, the case did not proceed to trial in June, but was reset for November 6, 1995.

¶4 On November 6, 1995, the court, the prosecutor, defense counsel and the jury assembled to proceed with the trial. Defense counsel, however, informed the court that he could not find Hardaway. The court issued a bench warrant. Hardaway was arrested on November 15, 1995 in Lake County on charges of burglary and theft. He was incarcerated and served with the outstanding Yellowstone County bench warrant. Yellowstone County charged Hardaway with bail jumping as a result of his failure to appear for the November 6, 1995 trial.

¶5 Hardaway retained new counsel on December 19, 1995. On May 22, 1996, Hardaway entered an Alford plea and was sentenced on the Lake County charges of burglary and theft. Thereafter, he was transported back to Yellowstone County to face the bail jumping and drug possession charges. The District Court set the trial on Hardaway's drug possession charge for November 26, 1996 (643 days after his arrest).

¶6 On October 9, 1996, Hardaway filed a motion to dismiss the drug possession charge based on lack of speedy trial. The court held a hearing and denied Hardaway's motion.

¶7 Hardaway's trial for bail jumping began on October 21, 1996. Hardaway called two out-of-town witnesses, one appeared at trial, the other appeared via telephonic deposition. Following the presentation of the State's case, the court granted Hardaway's motion for directed verdict of acquittal. Defense counsel requested reimbursement for costs incurred in obtaining the out-of-town witnesses' testimony pursuant to § 46-15-116, MCA. The District Court denied the request for costs finding that defense counsel was retained, not court appointed and thus not eligible to receive reimbursement for the costs. Hardaway appeals from the District Court's decision denying his request for reimbursement (Cause Number 97-289).

¶8 On November 26, 1996, the jury was assembled for trial on Hardaway's drug possession charge. When asked if any of the prospective jurors knew the defendant, three members of the prospective panel revealed that they had been in court "a month ago for the defendant earlier for something else." One of those three prospective jurors commented that "[Hardaway] shouldn't have been doing what he was doing to be here." This prospective juror was removed for cause. The second prospective juror was peremptorily removed, and the third juror sat on the jury that decided Hardaway's drug possession case. In addition, another prospective juror stated during voir dire that she had seen an account of Hardaway's arrest on television, that she believed he was guilty, and that she would find him guilty regardless of the evidence presented at trial. This fourth juror was also removed for cause. As a result of these damaging comments made in the presence of the entire jury panel, defense counsel requested that the court inform the jury during voir dire that Hardaway had been acquitted of the bail jumping charge. The District Court denied Hardaway's specific request, but agreed to instruct the jurors that they were not to consider the prior criminal charge in any way. Defense counsel moved for a mistrial and the court denied the motion. The trial proceeded and the jury found Hardaway guilty of the drug possession charge. Following the jury verdict, Hardaway moved for a new trial due to the comments made during voir dire, and the court denied the motion. Hardaway appeals from the District Court's denial of his motion to dismiss for lack of speedy trial and denial of his motion for mistrial (Cause Number 97-163). This Court consolidated Hardaway's two appeals. Hardaway presents three issues on appeal:

¶9 1) Did the District Court abuse its discretion in determining that Hardaway's speedy trial rights were not violated?

¶10 2) Did the District Court abuse its discretion in denying Hardaway's motion for a mistrial?

¶11 3) Did the District Court err in denying Hardaway's request for reimbursement of costs incurred in his defense of the bail jumping charge?

I

¶12 1) Did the District Court abuse its discretion in determining that Hardaway's speedy trial rights were not violated?

¶13 A criminal defendant is guaranteed a speedy trial by the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution. In determining whether a defendant has been denied his right to a speedy trial, this Court recently established a four-part balancing test in City of Billings v. Bruce, 1998 MT 186, 290 Mont. 148, 965 P.2d 866, 55 St.Rep. 750, which loosely follows the United States Supreme Court test set forth in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. The District Court applied the four-part Barker test to the facts of this case and determined that Hardaway's right to a speedy trial was not violated. We determine, however, that the District Court and the parties did not, at the time Hardaway moved for a dismissal based on lack of speedy trial, have the benefit of the Bruce decision. Therefore, we remand this issue to the District Court to hold a hearing regarding Hardaway's motion to dismiss for lack of speedy trial applying the test set forth in Bruce.

¶14 Under this Court's recently adopted speedy trial test, the District Court should analyze four factors: 1) length of delay, 2) reason for delay, 3) assertion of the right by defendant, and 4) prejudice to the defense. Bruce, pp 58. In remanding this issue to the District Court, we correct the court's allocation of time under the second factor and elaborate on the manner in which the Bruce decision is to be applied.

¶15 The second factor articulated in Bruce requires the court to consider the reasons for the delay. In so considering, the court determines which party is responsible for specific periods of time, then respectively allocates the total time delay between the parties.

¶16 The District Court determined that the case would have been tried on November 6, 1995, but for Hardaway's failure to appear at trial and thus, attributed the time between February 22 (Hardaway's arrest) and November 6 (the second trial date) to Hardaway. Hardaway contends that in attributing this time to him, the District Court has effectively concluded that Hardaway waived his right to a speedy trial by failing to appear on November 6th. Hardaway further argues that he did not appear for trial on November 6th because his attorney did not inform him of the trial date. Moreover, Hardaway argues that the fact that he was acquitted of the bail jumping charge is further evidence that he should not be held accountable for the missed trial date and subsequently held responsible for the delay between his arrest and the November 6th trial date.

¶17 We determine that the District Court erred in attributing the time between February 22 and November 6 (257 days) to Hardaway. Had the trial been held on June 27th, as originally scheduled, Hardaway's right to speedy trial would have been satisfied. It is not apparent from the record why the June 27th trial date was vacated in favor of the November 6th setting. The District Court ventured that the resetting of trial from June 27th to November 6th was likely the result of backlog. Therefore, since the time delay between February 22nd to November 6th was not attributable to Hardaway, we allocate that time to the State as institutional delay.

¶18 The District Court allocated the 198 days between November 6, 1995 and May 22, 1996 (while Hardaway was held on Lake County charges) to Hardaway...