State v. Keller

• Citation: 33 St.Rep. 795,553 P.2d 1013,170 Mont. 372
• Parties: STATE of Montana, Plaintiff and Respondent, v. Robert A. KELLER, Defendant and Appellant. No 13073.
• Decision Date: 20 August 1976
• Court: United States State Supreme Court of Montana

Page 1013

553 P.2d 1013

170 Mont. 372

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

No 13073.

Supreme Court of Montana.

Submitted May 25, 1976.

Decided Aug. 20, 1976.

Graybill, Ostrem, Warner & Crotty, Great Falls, Gregory Warner (argued), Great Falls, for defendant and appellant.

Robert L. Woodahl, Atty., Gen., Helena, Lon J. Maxwell, Asst. Atty. Gen., (argued), Helena, James Masar, County Atty., Deer Lodge, Daniels & Mizner, Ted L. Mizner, Deer Lodge, for plaintiff and respondent.

HASWELL, Justice.

Defendant appeals from his conviction of mitigated deliberate homicide in the strangulation death of his wife following trial by jury in the district court for Powell County.

On March 16, 1974, the nude body of the deceased, Gloria Keller, was found between Avon and Elliston in Powell County, Montana, hidden in an old rusted car body. Dr. John Pfaff, a forensic pathologist, concluded death was by strangulation by her brassiere found wrapped around her neck.

Defendant Robert Keller and Gloria Keller resided in an apparent common law relationship as husband and wife since 1964, together with their five children, the two eldest by previous marriage of Gloria Keller.

Briefly stated, the State's case was that Gloria had disappeared the evening of February 3, 1974, after leaving the family home in East Helena with Robert in the family pickup truck; that the pickup was at the home the next day; that a stub from a parking ticket involving the truck, issued some months earlier, was found near the scene of the crime; that the decomposition of the body was such that it possibly could have lain at the scene of the crime since February 4, 1974; that Robert's later actions were consistent with knowledge that Gloria would not return; and that samples of hair and candy taken from deceased's sweater found with the body matched samples of hair and candy taken from the family pickup truck and samples of defendant's hair. The State also introduced evidence of prior marital disputes.

The transcript of testimony by Gary Keller, the couple's nine year old son, given at the preliminary hearing on May 10, 1974, was read at the trial to the effect that the family had chicken for dinner February 3, before his mother's disappearance. The autopsy of deceased showed she had eaten chicken less than two hours before death. This testimony was given by a nine year old child recalling what he had eaten for dinner more than three months previously. Gary did not appear at the trial, and testimony showed he was in Wyoming.

Defendant presented a defense of alibi but was unable to present the testimony of two defense witnesses he attempted to subpoena to corroborate his testimony as to his whereabouts for the hours of 7:00 to 10:00 p.m. February 3, 1974. Robert testified that Gloria drove them into Helena in the pickup and let him out to go into a bar to buy cigarettes; and that when he got out and walked to the bar, she drove off and did not return. Robert testified that he then walked home to East Helena and that when he got there, about 10:00 p.m., the truck was there with the keys in it but Gloria was gone.

Todd Keller, eleven years old, the eldest child, testified that his mother had returned, picked up some clothes, and left again. He also testified that he had helped fix Hamburger Helper for the family dinner that evening, February 3. Robert testified he saw Gloria three days later riding in a car with another man on the viaduct between Helena and East Helena but was unable to follow the car because of the median divider. Gloria had left the family unannounced on numerous other occasions for periods of a week to a month or more without leaving word of her whereabouts. During those periods Robert took care of the five children as he did on this occasion until his arrest.

Defendant seeks reversal on the following grounds:

(1) That the delay of 326 days between arrest and trial denied defendant his right to a speedy trial,

(2) The prosecution's nondisclosure of evidence contrary to the court's order to produce;

(3) Evidence illegally seized from the family pickup truck should have been excluded;

(4) That it was reversible error to admit evidence of a previous incident involving defendant and a gun;

(5) Improper conduct of the jury foreman; and

(6) Insufficiency of evidence to support the conviction.

The first issue on appeal is whether a delay of 326 days, or nearly eleven months from defendant's arrest until trial, deprived defendant of his right to a speedy trial. We hold it did under the circumstances here.

The right to a speedy trial is mandated by the Sixth Amendment to the Constitution of the United States and Article II, Section 24 of the 1972 Montana Constitution, which states:

'In all criminal prosecutions the accused shall have the right to * * * a speedy public trial * * *.'

In applying this guarantee to the particular facts of each case, this Court has adopted the balancing test that the United States Supreme Court described in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, (1972). See State v. Steward, Mont., 543 P.2d 178, 181, 32 St.Rep. 1185 (1975); and State ex rel. Sanford v. District Court, decided July 8, 1976, Mont., 551 P.2d 1005, 33 St.Rep. 644. The four factors to be considered are: (1) Length of delay, (2) reason for delay, (3) defendant's assertion of the right, and (4) prejudice to the defendant.

Directing our attention first to the length of the delay we note that Robert Keller was arrested March 21, 1974, and trial began February 10, 1975, nearly 11 months later. This delay was presumptively prejudicial, and triggered the balancing of factors. See Steward where 12 months between arrest and arraignment was held to be presumptively prejudicial; State ex rel. Sanford where 10 months between arraignment and trial was held to be presumptively prejudicial delay; and Fitzpatrick v. Crist, 165 Mont. 382, 388, 528 P.2d 1322, 1326 (1974), where 7 months was held '* * * long enough to shift to the state the burden of explaining the reason for the delay and showing absence of prejudice * * *.'

One of the majory purposes of the constitutional provision is to guard against delay, both to protect the defendant's rights and to further the State's interests in criminal prosecutions. As was said in Barker, 407 U.S. at page 519, 92 S.Ct. at page 2186, 33 L.Ed.2d at page 110:

'The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused. The inability of courts to provide a prompt trial has contributed to a large backlog of cases in urban courts which, among other things, enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the system. In addition, persons released on bond for lengthy periods awaiting trial have an opportunity to commit other crimes. * * * Moreover, the longer an accused is free awaiting trial, the more tempting becomes his opportunity to jump bail and escape. Finally, delay between arrest and punishment may have a detrimental effect on rehabilitation.

'* * * Finally, lengthy pretrial detention is costly. * * * In addition, society loses wages which might have been earned, and it must often support families of incarcerated breadwinners.' (Emphasis supplied.)

In his concurring opinion in Barker, 407 U.S. at page 537, 92 S.Ct. at page 2195, 33 L.Ed.2d at page 121 Justice White emphasizes one of the major purposes in protecting the accused. Wholly aside from possible prejudice to a defense on the merits, the accused will be subject to substantial restrictions on his liberty pending trial, either in jail or while free on bond, "* * * that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.' U. S. v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971).'

In summary, criminal charges should not be brought until there is sufficient evidence to believe a crime has been committed by the person charged and until the prosecution is prepared to proceed within a reasonable time.

Delay also hampers the liberty of possible witnesses and impairs their memory, thus impairing both the prosecution and the defense in their quest of the truth.

We recognize that delay may be used as a defense tactic. Where the record strongly indicates that the defendant did not want a speedy trial, we would be reluctant to rule that he has been denied this constitutional right. See Barker, 407 U.S. at [170 Mont. 379] page 536, 92 S.Ct. at page 2194, 33 L.Ed.2d at page 120. Such is not the case here.

In considering the reason for the delay in this case, we observe that the preliminary hearing was not held until seven weeks after arrest. The State contends this time was necessary for defendant to obtain counsel. However, it appears defendant was able to obtain counsel within 16 days after his arrest, and no valid excuse for the remaining five week delay is shown.

The preliminary hearing was held May 10. The order of the justice court binding defendant over to district court is dated August 15, fourteen weeks later. The justice court delayed its decision after the preliminary hearing until it could receive laboratory reports. Neither the results of the tests nor the items tested were properly admitted in evidence. Also see section 95-902, R.C.M.1947 and section 95-1202, R.C.M.1947, which declare the justice of the peace shall hold a preliminary examination within a reasonable time and shall hear the evidence without unnecessary delay.

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