State v. Small, 96-176
| Decision Date | 07 November 1996 |
| Docket Number | No. 96-176,96-176 |
| Citation | 926 P.2d 1376,279 Mont. 113 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Max SMALL, Defendant and Appellant. |
| Court | Montana Supreme Court |
James L. Vogel, Hardin, for Defendant and Appellant.
Joseph P. Mazurek, Attorney General, Micheal Wellenstein, Assistant Attorney General, Helena; Christine Cooke, Big Horn County Attorney, Hardin, for Plaintiff and Respondent.
Appellant Max Small (Small) appeals the decision of the Thirteenth Judicial District Court, Big Horn County, denying his motion to dismiss a charge of felony assault based on the lack of a speedy trial. We reverse and remand with instructions.
On July 25, 1994, the State charged Small with one count of felony assault. Small pled not guilty to the charge at his arraignment and was released on his own recognizance. The District Court scheduled a trial in the matter for November 14, 1994. However, on November 14, 1994, the State moved to continue the trial date on the grounds that the parties had worked out an agreement in the case but that the necessary paperwork had not yet been completed.
On June 27, 1995, the District Court reset the trial for August 15, 1995, but the trial did not take place on that date. On August 25, 1995, the District Court rescheduled the trial for November 7, 1995. On September 7, 1995, the District Court again vacated the existing trial date and reset the trial, this time for December 5, 1995.
On November 30, 1995, Small moved to dismiss the charge for lack of a speedy trial. The issue was briefed and argued before the District Court, which denied the motion. At that time, Small agreed to enter into a plea bargain by which he would plead guilty to a reduced charge of misdemeanor assault. Until this plea bargain, no agreement regarding the disposition of the case was ever reached by the parties although extensive discussions regarding the matter apparently took place. When accepting the plea bargain, Small specifically reserved his right to appeal the ruling on his motion to dismiss for lack of a speedy trial. It is that issue we decide today.
The sole issue raised on appeal is whether the District Court erred by denying Small's motion to dismiss for lack of a speedy trial.
The right to a speedy trial in a criminal prosecution is guaranteed by both the Sixth Amendment to the United States Constitution and by Article II, Section 24 of the Montana Constitution. State v. Hagberg (1996), 277 Mont. ----, ----, 920 P.2d 86, 91, 53 St.Rep. 528, 531 (citing State v. Thompson (1993), 263 Mont. 17, 31, 865 P.2d 1125, 1134). A speedy trial claim is a question of constitutional law, and we review questions of law de novo to determine whether the court's interpretation of the law is correct. Hagberg, 920 P.2d at 91 ().
The United States Supreme Court has established a four-part test to determine whether a defendant's right to a speedy trial has been violated. See Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117. This Court adopted the Barker test in State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64. As this Court has noted repeatedly, the Barker test requires the trial court and the appellate court to consider: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) the prejudice to the defendant. See, generally, State v. Gould (1995), 273 Mont. 207, 902 P.2d 532; State v. Collier (1996), 277 Mont. 46, 919 P.2d 376, 53 St.Rep. 534; Hagberg, 920 P.2d 86; State v. Atkins (1996), 277 Mont. 103, 920 P.2d 481, 53 St.Rep. 561; and State v. Tweedy (1996), 277 Mont. 313, 922 P.2d 1134, 53 St.Rep.656.
If the length of the delay is not long enough to be presumptively prejudicial, the full speedy trial analysis is not triggered and the court need not consider the remaining three components of the Barker test. If, however, the delay is of such duration that is presumptively prejudicial, the burden shifts to the State to rebut the presumption of prejudice by providing a reasonable explanation for the delay and by showing the defendant was not prejudiced thereby. Atkins, 920 P.2d at 483 (citations omitted).
In this case, the length of the delay from Small's arrest to his ultimate trial date was 511 days. The State concedes that this is a sufficient amount of time to trigger the full speedy trial analysis and to give rise to a rebuttable presumption that the delay prejudiced Small.
Under the second factor of the Barker test, the reviewing court must allocate responsibility for the delay between the defendant and the State. Since the 511 days in this case supports a finding that the delay was presumptively prejudicial, the burden shifts to the State to rebut that presumption by showing a reasonable explanation for the delay and by demonstrating that the defendant was not prejudiced thereby. Tweedy, 922 P.2d at 1138.
The first delay, of 125 days, was the span of time between Small's arrest and the initial trial date set by the District Court. The State concedes that it is responsible for this first delay, but contends the delay was institutional in nature, generated only by the District Court's calendar and its determination of when the trial could be held. We agree. Institutional delay is weighed less heavily against the State than intentional delay. Tweedy, 922 P.2d at 1138 (citing State v. Weeks (1995), 270 Mont. 63, 891 P.2d 477). Obviously, however, such delay cannot be blamed on the defendant.
The second delay, of 274 days, occurred when the State moved to vacate the first trial date and did not reschedule the trial for over nine months. The State, however, contends that this delay should not be wholly apportioned to it, but that Small should be considered responsible for some portion of this time.
The State says it vacated the original trial date because "the parties [had] reached an agreement but [had] yet to finalize the paperwork." Small, too, acknowledges that a deferred prosecution agreement was discussed. However, no such agreement was ever finalized.
The State raises a similar argument for the third and fourth delays (112 days collectively). It contends that Small must be allotted some part if these delays as well because they was caused, at least in part, by the State's understanding that he would come in during that time and plead to a reduced charge of misdemeanor assault in order to dispose of the case. The State contends that this arrangement "gave the State the impression that there would be no trial and thus no speedy trial problem." The State further contends that Small must be held accountable for at least part of these delays because the State's counsel "was under the impression Small was going to plead guilty to the misdemeanor charge of domestic abuse and he simply failed to do so month after month." Again, no such agreement was ever concluded.
Essentially, the State argues that ongoing negotiations, whether they be for deferred prosecution or a plea bargain, somehow relieve it of its duty to bring defendants to trial in a timely fashion. However, the State fails to cite a single case which would support this proposition. In fact, to rule as the State urges would be to compel a criminal defendant to try to choose the lesser of two evils. He could pursue negotiations with the State at the expense of his constitutional right to a speedy trial, or he could preserve the right to a speedy trial by refusing to engage in negotiations. The law does not require such a choice.
This Court has stated that "[i]t has never been incumbent upon a defendant to assist the State in his own prosecution." State v. Fuller (1996), 276 Mont. 155, 166, 915 P.2d 809, 816. On the contrary, "as a general rule, it is the State's duty to ensure that a criminal case is diligently prosecuted; the defendant has no duty to bring himself to trial." Tweedy, 922 P.2d at 1137. When, as in this case, a plea agreement is not completed, the State retains the duty to proceed as it sees fits, without the assistance of the defendant. If, instead, the State allows the case to languish, the defendant will not be faulted for it. Therefore, all of the second, third and fourth delays also must be charged to the State.
The State, however, also argues that even if it is deemed responsible for the second, third, and fourth delays, they should nevertheless be considered institutional delay and, therefore, weigh less heavily upon the State. While the third and fourth delays may be construed as institutional, the second cannot.
Institutional delay is delay which is caused by circumstances largely beyond the control of either the defendant or the State. It most often will be...
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