State v. Johnson, 99-263.

• Decision Date: 06 July 2000
• Docket Number: No. 99-263.,99-263.
• Citation: 2000 MT 180,4 P.3d 654
• Parties: STATE of Montana, Plaintiff and Respondent, v. Aaron L. JOHNSON, Sr., Defendant and Appellant.
• Court: Montana Supreme Court

4 P.3d 654

2000 MT 180

STATE of Montana, Plaintiff and Respondent, v. Aaron L. JOHNSON, Sr., Defendant and Appellant.

No. 99-263.

Supreme Court of Montana.

Submitted on Briefs January 20, 2000.

Decided July 6, 2000.

Jeff R. Lynch, Lynch Law Firm, Great Falls, Montana, For Appellant.

Joseph P. Mazurek, Montana Attorney General, Cregg W. Coughlin, Assistant Montana Attorney General, Helena, Montana; Brant S. Light, Cascade County Attorney, Great Falls, Montana, For Respondent.

Justice WILLIAM E. HUNT, Sr. delivered the Opinion of the Court.

¶ 1 In the Eighth Judicial District Court, Cascade County, Defendant Aaron L. Johnson, Sr. (Johnson), was convicted by jury on March 3, 1999, of three counts of criminal sale of dangerous drugs. Johnson appeals from the District Court's denial of his motion to dismiss for lack of speedy trial, and from the court's action in sustaining the objection of the State of Montana (the State) to Johnson's attempt to impeach the confidential informant. We affirm.

¶ 2 The two issues on appeal are:

¶ 3 I. Whether the District Court erred in denying Johnson's motion to dismiss for lack of speedy trial.

¶ 4 II. Whether the District Court abused its discretion in sustaining the State's objection to Johnson's attempt to impeach the confidential informant.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 On June 10, 1998, Johnson sold one-quarter gram of cocaine to Kathy Hart (Hart), a reliable and experienced confidential informant for the Great Falls Police Department. Prior to the sale, Hart was searched by law enforcement officials to control the drug transaction and preserve the evidence by ensuring that she possessed only the $50 cash provided by the officers to make the drug buy. Hart was also outfitted with a "wire" or electronic transmitting device, which enabled the officers to listen to and record any conversation that occurred during the drug sale. Additionally, from the time she was searched through the consummation of the deal, law enforcement officials visually observed either Hart or her location. After the transaction, which occurred in the area of Fourth Avenue South and Tenth Street in Great Falls, Hart was again searched and the officers took receipt of the drugs. The substance Johnson sold Hart on June 10, 1998, field-tested positive for cocaine. It was then sent to the State Crime Laboratory, where it was tested by a forensic chemist and determined to be .14 grams of the controlled substance cocaine.

¶ 6 On June 12, 1998, confidential informant Hart was again preliminarily searched, provided with $100 cash, fitted with a wire, and directed to attempt to purchase one gram of "crank" or methamphetamine from Johnson. She was again surveilled by law enforcement officials as she walked to Johnson's residence. Johnson told Hart to get in his car, and they again proceeded to the same Fourth Avenue South location where they had completed the drug transaction two days earlier. Johnson took the $100 from Hart, walked up the street, and returned several minutes later with a paper "bindle" which he handed to Hart. After the transaction, Hart was picked up by the officers, searched, and the drug bindle was taken into evidence. The substance Johnson sold Hart on June 12, 1998, field-tested positive for crank, and was subsequently determined by a forensic scientist for the State Crime Laboratory to be .33 grams of the controlled substance methamphetamine.

¶ 7 On June 19, 1998, Johnson again sold dangerous drugs to Hart in her capacity as a confidential informant. Following the same procedure outlined above, Hart proceeded to Johnson's residence under police surveillance, the two then climbed in Johnson's car, and Hart proceeded to purchase a "gram" of what was believed to be crank from Johnson for $90. After the drug deal, police searched Hart and took receipt of a foil bindle containing a substance which field-tested positive for amphetamine. Subsequent testing by a forensic scientist for the State Crime Laboratory corroborated that the substance Johnson sold Hart on June 19, 1998, was .48 grams of the controlled substance amphetamine.

¶ 8 Johnson was charged by Information on July 23, 1998, with three counts of criminal sale of dangerous drugs, felony offenses in violation of § 45-9-101, MCA (1997). Johnson's bail was set at $25,000. The case proceeded through the pre-trial process. On August 12, 1998, Johnson filed a Motion for Discovery and Assertion of Right to Fair and Speedy Trial. Following a bail hearing on August 18, 1998, the District Court denied Johnson's request either to release him on his own recognizance or to reduce his bail to $2000.

¶ 9 The District Court scheduled the jury trial in this matter for November 30, 1998. Johnson filed, on November 20, 1998, a Notice of Intent to Proceed to Trial as Scheduled. On November 24, 1998, the State moved for a continuance on the ground that the State's chief witness, Detective Jeff Beecroft, was out of state interviewing witnesses in a federal case and would not return until the following week. Finding good cause for the motion, the court vacated the November 30, 1998 jury trial date and rescheduled it for December 14, 1998. Then, on December 10, 1998, the State again moved the District Court to continue the trial date for the reason that an essential state witness, forensic scientist Annalivia Harris, had been subpoenaed to testify in other courts during the time set for trial. The court, again finding good cause for the State's motion, granted a continuance and rescheduled the jury trial for January 25, 1999. However, because of an irreconcilable conflict in the court's calendar, the District Court acted sua sponte on January 22, 1999, and reset the jury trial in this matter for March 2, 1999.

¶ 10 Johnson filed a motion to dismiss the criminal charges on speedy trial grounds on March 1, 1999. The following day, prior to the start of trial and over strenuous objections of the prosecutor, the District Court heard argument from Johnson on the speedy trial motion. The court issued a written order denying Johnson's motion on March 3, 1999. The jury trial began on March 2, 1999. During trial, the District Court sustained the prosecutor's objections to two questions posed by Johnson to Hart having to do with her possible evasion of income taxes on the $60 she earned while acting as a confidential informant in the three drug transactions at issue. The jury returned its unanimous guilty verdicts on March 3, 1999. A sentencing hearing was held on April 13, 1999, and sentence was orally pronounced by the District Court. Other facts will be set forth as necessary in our discussion.

DISCUSSION

I.

¶ 11 Did the District Court err in denying Johnson's motion to dismiss for lack of speedy trial?

¶ 12 A criminal defendant's right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution. State v. Matthews (1995), 271 Mont. 24, 27, 894 P.2d 285, 287. As a general matter, the right to a speedy trial places on the State the burden of diligent prosecution at all stages of a criminal proceeding. See State v. Kipp, 1999 MT 197, ¶ 16, 295 Mont. 399,

¶ 16, 984 P.2d 733, ¶ 16; State v. Tweedy (1996), 277 Mont. 313, 318, 922 P.2d 1134, 1137 (citing State v. Tiedemann (1978), 178 Mont. 394, 400, 584 P.2d 1284, 1288).

¶ 13 Since the question of whether a defendant has been denied a speedy trial raises a matter of constitutional law, we review the district court's conclusions of law on the right to a speedy trial to determine if its interpretation of the law is correct. See State v. Maier, 1999 MT 51, ¶ 74, 293 Mont. 403,

¶ 74, 977 P.2d 298, ¶ 74; State v. Olmsted, 1998 MT 301, ¶ 27, 292 Mont. 66, ¶ 27, 968 P.2d 1154, ¶ 27. The only remedy for denial of the speedy trial right is dismissal of the State's case. See Strunk v. United States (1973), 412 U.S. 434, 440, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56, 61.

¶ 14 Johnson contends that the District Court erred in denying his motion to dismiss for lack of a speedy trial, particularly, by failing to recognize the prejudice he suffered by the pre-trial delay in this case. Since 1972, this Court has evaluated speedy trial claims based on the four-pronged balancing test established by the United States Supreme Court in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101; see also City of Billings v. Bruce, 1998 MT 186, 290 Mont. 148, 965 P.2d 866 (clarifying this Court's case law interpreting and applying Barker), as modified by State v. Hardaway, 1998 MT 224, 290 Mont. 516, 966 P.2d 125

. Pursuant to the Barker test, there are four factors which must be assessed in reviewing any claim that a speedy trial was denied: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) prejudice to the defendant. Barker, 407 U.S. at 530,

92 S.Ct. at 2192,

33 L.Ed.2d at 117. No single factor of the Barker test is "indispensable or dispositive." Tweedy, 277 Mont. at 320,

922 P.2d at 1138; accord Bruce, ¶ 75. Rather, the four factors established in Barker are necessarily general guidelines to be applied on a case-by-case basis as part of a "`difficult and sensitive balancing process.'" Bruce, ¶ 20 (quoting Barker, 407 U.S. at 533,

92 S.Ct. at 2193,

33 L.Ed.2d at 118). We analyze and balance each of the four factors below in light of our recent clarification of the Barker test in Bruce.

1. Length of Delay

¶ 15 As elucidated in Bruce, the first Barker factor looks to the length of delay from the time the charges are filed until the defendant's trial date. The purpose of this inquiry is to make a threshold calculation as to whether there is any basis for conducting further speedy trial analysis. In order to make that initial determination, "[t]his period of time will be calculated without assignment of fault to either party for the various periods of delay." Bruce,...