State v. Highpine

• Decision Date: 28 December 2000
• Docket Number: No. 97-004.,97-004.
• Citation: State v. Highpine, 2000 MT 368, 15 P.3d 938, 303 Mont. 422 (Mont. 2000)
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Respondent, v. Shawn Ray HIGHPINE, Defendant and Appellant.

15 P.3d 938

2000 MT 368

303 Mont. 422

STATE of Montana, Plaintiff and Respondent, v.Shawn Ray HIGHPINE, Defendant and Appellant.

No. 97-004.

Supreme Court of Montana.

Submitted on Briefs June 8, 2000.

Decided December 28, 2000.

William F. Hooks, Appellate Defender, Helena, MT, For Appellant.

Hon. Joseph P. Mazurek, Attorney General; Micheal S. Wellenstein, Assistant Attorney General, Helena, MT; Brant Light, Cascade County Attorney; Great Falls, MT, For Respondent.

Justice W. WILLIAM LEAPHARTdelivered the Opinion of the Court.

¶ 1Shawn Ray Highpine(Highpine) appeals from the Eighth Judicial District Court's denial of his motions to dismiss on a speedy trial issue and to strike the jury panel.The State initially resisted both grounds but later filed a partial concession regarding the motion to strike the jury panel.We affirm in part and reverse in part.

¶ 2 Highpine raises the following issues on appeal:

¶ 3 1.Was Highpine denied his right to speedy trial?

¶ 4 2.Did the District Court err in denying Highpine's motion to strike the jury panel?

Factual and Procedural Background

¶ 5 The facts pertinent to this appeal are primarily procedural.Highpine was charged with aggravated kidnaping, sexual intercourse without consent, and aggravated burglary on March 28, 1995 and arraigned within three weeks.The court set the omnibus hearing for September 20, 1995.At the hearing, the trial was set for February 19, 1996, but was subsequently changed three times.On May 20, 1996, eight days before the trial, Highpine moved the court to dismiss for violation of his right to a speedy trial.After hearing argument three days later, the court denied the motion.Although some dispute exists as to precisely how many of the 428 days of delay should be attributed to whom, the State concedes that 350 days of the delay should be attributed to the State.

¶ 6 Highpine also filed a pre-trial motion to strike the jury panel for violations of the statutory procedure for drawing and notifying the jurors.Highpine objected to the fact that the clerk of court mailed questionnaires and notices to jurors, but included in the final list of jurors only those people who included their telephone numbers on the returned questionnaires.People who returned the questionnaires with no phone numbers, who did not respond to the notice, or did not return the clerk's phone calls were not included in the final list of jurors.

¶ 7The statute requires that when "a person fails to respond to the notice, the clerk shall certify the failure to the sheriff, who shall then serve notice personally on such person and require a response to the notice."Section 3-15-505,MCA(1995).Because the clerk did not so certify, the Sheriff did not personally serve notice on any of the potential jurors.

¶ 8The court denied Highpine's motion, holding that although the clerk of court had not followed the procedures outlined in § 3-15-505, MCA, the clerk had not discriminated against any particular group and Highpine had not been deprived of an impartial jury.

¶ 9 Following the trial on May 28, 1996, the jury found Highpine guilty and the court sentenced him to 105 years in Montana State Prison.In August, 1998, Highpine's case was before this Court on appeal and we ordered the speedy trial issue remanded to the district court for reconsideration in light of Billings v. Bruce,1998 MT 186, 290 Mont. 148, 965 P.2d 866.

¶ 10 After remand by this Court, the District Court received briefs and heard arguments for reconsideration of the speedy trial issue.The court attributed 215 days of the delay to the State and 213 days to Highpine.The court concluded that under the Bruce analysis, which requires attribution of 275 days of delay to the State in order to shift the burden, the State did not bear the burden of establishing a lack of prejudice resulting from the delay.The court also held that despite this conclusion, the State had established, through presentation of testimony from Lieutenant Hada and argument based on evidence in the record, that Highpine was not prejudiced, as he had suffered neither impairment of his defense nor anxiety and concern as a result of the delay.The court further concluded that Highpine did not present testimony or evidence to overcome the State's evidence establishing a lack of prejudice.

¶ 11 Highpine's appeal of the second denial of his motion to dismiss as well as of the earlier denial of his motion to strike the jury panel is now before this Court.

Discussion

¶ 12 1.Was Highpine denied his right to speedy trial?

¶ 13 Highpine contends that the District Court incorrectly concluded that he was not denied a speedy trial.Whether a defendant has been denied a speedy trial is a question of constitutional law.We review a district court's conclusions of law to determine whether its interpretation of the law is correct.State v. Ellenburg,2000 MT 232, ¶ 14, ____ Mont. ____, ¶ 14, 8 P.3d 801, ¶ 14.

¶ 14 Both the Sixth Amendment to the United States ConstitutionandArticle II, Section 24, of the Montana Constitution, guarantee a criminal defendant's right to a speedy trial.Ellenburg,¶ 14.We consider and balance each of four factors in our review of a claim that a defendant has been denied a speedy trial: 1) the length of the delay; 2) the reason for the delay; 3) the defendant's assertion of his right; and 4) the prejudice to the defendant.Barker v. Wingo(1972), 407 U.S. 514, 532, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101, 118.Because no single factor is by itself decisive, "courts must still engage in a difficult and sensitive balancing process."Barker,407 U.S. at 533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118.We employ the balancing test enunciated in Bruce: the "greater the degree of fault by the State in causing the delay, the less the delay or prejudice that need be shown.Where there is no fault on the part of the State for delay, greater prejudice, and presumably greater delay, would have to be shown."Bruce,¶ 53.

Length of Delay

¶ 15We first consider the length of delay from the time the charges were filed until Highpine's trial date.When the delay is 200 days or longer, further speedy trial analysis is necessary.Bruce,¶ 55.In this case, the court found that the 428 days of delay triggered further speedy trial analysis.

Reason for Delay

¶ 16We next consider the reason for the delay and attribute the delay to the parties.If the court attributes 275 days or more to the State, the burden shifts to the State to establish that the defendant has not been prejudiced by the delay.Bruce,¶ 56.Because the State bears the burden to prosecute, we attribute to the State institutional delay along with delay caused directly by the State.Ellenburg,¶ 18.However, institutional delay weighs less heavily against the State because it is not a delay the State actively pursued.State v. Atkins(1996), 277 Mont. 103, 107, 920 P.2d 481, 483.

¶ 17The District Court attributed 215 days of the delay to the State, and 213 to Highpine.The court, concluding that 271 days of the delay should be equally attributed between the parties, attributed 136 days of that delay to the State and 135 days to Highpine.The remaining days it attributed to the State, with the exception of the 78 days between the March 11 trial date and the actual trial held on May 28.

¶ 18 Highpine argues that the court incorrectly attributed 135 days of institutional delay to him as well as the 78 days delay resulting from his objection to a last-minute deposition.On appeal, the State admits that of the 428 days of delay, 350 days should be attributed to the State.Implicit in this admission is a concession that the District Court incorrectly attributed to Highpine 135 days of institutional delay.

¶ 19We agree with Highpine and the State that the court incorrectly attributed 135 days of institutional delay to Highpine.We agree with the State that 350 days of delay should be attributed to the State.

Assertion of Right

¶ 20 The third factor we consider is whether the defendant has asserted his right to a speedy trial.This factor is satisfied if the defendant invoked his speedy trial right at any time prior to trial.Bruce,¶ 57.The court held, and the State has conceded that Highpine asserted his speedy trial right on May 20, eight days prior to trial.

Prejudice

¶ 21 Finally, we consider whether Highpine was prejudiced by the delay.Although the District Court incorrectly concluded that Highpine bore the burden to prove prejudice, the State in fact did take on the burden of proof and presented substantial evidence that Highpine was not prejudiced by the delay.At the hearing on the motion to dismiss for lack of speedy trial, the court also encouraged Highpine to present proof to rebut the State's evidence that he was not prejudiced.After allowing both parties to present proof, the judge weighed all the evidence in making her decision that Highpine suffered no prejudice as a result of the delay.Although the District Court erred in holding that the State did not bear the burden, we conclude that this error was harmless, as the State did in fact shoulder that burden.

¶ 22 In Bruce,we explained that in establishing lack of prejudice the State"should take into consideration, but need not include, all three traditional bases for prejudice: (a) pretrial incarceration, (b) anxiety and all of its attendant considerations, and (c) impairment of the defense."Bruce,¶ 56.Shortly thereafter, we clarified the Bruce analysis by stating that although the State should offer proof on as many of the bases as possible, it must, at a minimum, present proof that the delay did not impair the defense.State v. Hardaway,1998 MT 224, ¶ 22, 290 Mont. 516, ¶ 22, 966 P.2d 125, ¶ 22.We also held that if the State satisfies its burden of demonstrating that the defendant was not prejudiced by the delay, the burden then shifts to the defendant to show prejudice.Hardawa...