State v. Steward

• Decision Date: 08 December 1975
• Docket Number: No. 13059,13059
• Citation: 543 P.2d 178,168 Mont. 385,32 St.Rep. 1185
• Parties: The STATE of Montana, Plaintiff and Appellant, v. Clarence STEWARD, Defendant and Respondent.
• Court: Montana Supreme Court

Page 178

543 P.2d 178

168 Mont. 385

The STATE of Montana, Plaintiff and Appellant, v. Clarence STEWARD, Defendant and Respondent.

No. 13059.

Supreme Court of Montana.

Submitted Nov. 10, 1975.

Decided Dec. 8, 1975.

Robert L. Woodahl, Atty. Gen., Helena, William A. Douglas, County Atty. (argued), Libby, Ann C. German, Missoula, for plaintiff and appellant.

Moses, Kampfe, Tolliver & Wright, Billings, D. Frank Kampfe (argued), Billings, for defendant and respondent.

JAMES T. HARRISON, Chief Justice.

This is an appeal from an order the district court, Lincoln County, dismissing with prejudice an Information due to denial of the right to a speedy trial.

Defendant was charged and arrested on January 10, 1974 for lewd and lascivious acts against children, a felony under former section 94-4106, R.C.M.1947. He was released on $25,000 bond within the week and has been free on bond since that time. On January 16, 1974, the Lincoln County attorney received a call from defendant's attorney notifying the county attorney that he would be involved in the Pennsylvania murder trial of Tony Boyle and requesting a postponement of defendant's arraignment and trial until the conclusion of the Boyle trial. The Information charging defendant with the felony was filed on January 31, 1974. On February 14, 1974, defendant's attorney sent the county attorney a letter stating in part:

'In that I am involved in the Tony Boyle case, I anticipate being out of the office on a continuous basis from next week until the 1st part of June, 1974. I would therefore, appreciate your efforts to have trial in the Steward matter postponed until after my return. * * *'

The nationally publicized Tony Boyle trial was completed in March 1974, but no further correspondence between the county attorney and defendant's attorney appears on the record until a letter dated January 28, 1975, from the county attorney to defendant's attorney which said in part:

'* * * It is my firm intention to try your client (Steward) in the jury term commencing with the 23rd day of February, 1975. * * *

'* * * In any event I will not permit this case to be put over the spring jury term.'

On February 25, 1975, defendant's attorney responded, indicating he would appeal with defendant at the arraignment and would file unspecified pretrial motions.

The arraignment was set for March 13, 1975, but on March 12, 1975, defendant's attorney filed a motion to dismiss on the ground of denial of the constitutional right of speedy trial. On May 15, 1975, the district court dismissed the Information with prejudice.

Two issues are presented for review:

1. Was defendant denied his constitutional right to a speedy trial?

2. Was the district court in error in dismissing the Information with prejudice thereby barring subsequent prosecution for the same offense?

The right to a speedy trial is contained in the United States and the Montana Constitutions. Amendment 6 to the United States Constitution states:

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

Article III, Sec. 16, Montana Constitution, 1889, states:

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

Article II, Sec. 24, 1972 Montana Constitution contains the identical language as Article III, Sec. 16, Montana Constitution 1889.

The United States Supreme Court states in Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1, 8, '* * * the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment.'

The four factors to be considered in determining whether a defendant has been denied his right to a speedy trial are set forth in Barker v. Wingo, 407 U.S. 514, 526, 529, 533, 538, 92 S.Ct. 2182, 2189, 2191, 2193, 2195, 33 L.Ed.2d 101, 114, 116, 118, 121. This Court adopted the Barker factors in State ex rel. Thomas v. District Court, 151 Mont. 1, 438 P.2d 554, based on an earlier listing of the federal criteria contained in United States v. Simmons, 2 Cir., 338 F.2d 804, 807. In Barker Mr. Justice Powell said:

'* * * The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.

'A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.'

Unless there is a presumptively prejudicial delay, there is no necessity to inquire as to the other factors that go into the balance. In the instant case defendant was charged and arrested on January 10, 1974, the arraignment was not scheduled until March 13, 1975, a period of 406 days, and the date of the trial had still not been set. It was stated in United States v. Rucker, 150 U.S.App.D.C. 314, 464 F.2d 823, 825:

'A delay of over one year between arrest and trial raises a Sixth Amendment claim of 'prima facie merit.' Hedgepeth v. United States, 124 U.S.A.pp.D.C. 291, 364 F.2d 684 (1966). It places on the Government the necessity of justification, the burden of which increases with the length of delay. * * * When the delay approaches a year and a half, as in this case, the Government must provide a justification which convincingly outweighs the prejudice which can normally be assumed to have been caused the defendant.'

The delay of 406 days in this case is sufficient to trigger the inquiry mechanism to determine whether defendant was denied a speedy trial.

The State alleges the reason for the delay was two-fold: Defendant's failure to assert his right to a speedy trial and the crowded trial docket which would not have allowed a trial during 1974. Defendant's failure to assert his right will be considered in detail when the next factor is considered. The district court correctly ruled the overcrowded court docket would not mitigate the failure to provide a speedy trial. Mr. Chief Justice Burger stated in Strunk v. United States, 412 U.S. 434, 436, 93 S.Ct. 2260, 2262, 37 L.Ed.2d 56, 60:

'* * * Unintentional delays caused by overcrowded court dockets or understaffed prosecutors and among the factors to be weighed less heavily than intentional delay, calculated to hamper the defense, in determining whether the Sixth Amendment has been violated but, as we noted in (Barker), they must 'nevertheless * * * be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant."

The State alleges defendant here waived his right to a speedy trial by his failure to assert his right until the day before the arraignment in March 1975, and by the request of his attorney for a postponement of the trial. The State appears to argue the 'demand-waiver rule', i. e. unless the accused demands a speedy trial, he waives his right. The 'demand-waiver rule' was specifically rejected in Barker in favor of the four factors test.

The general rule remains that an accused must take some affirmative action to obtain a trial to be entitled to a discharge for delay. 22A C.J.S. Criminal Law § 469, p. 37. In United States v. Research Foundation, D.C., 155 F.Supp. 650, 654, the court said:

'* * * The burden is on the defendant to assert his constitutional right by some affirmative act in court, such as, objecting to adjournments of the trial, demanding a trial, or making an appropriate motion.'

The 'appropriate motion' is a motion to dismiss for denial of a speedy trial. The proper time to assert the right to a speedy trial is prior to the actual commencement of the trial, usually at the time the trial date is set, or the time the case is called to trial. Morse v. Municipal Court, et al., 13 Cal.3d 149, 118 Cal.Rptr. 14, 529 P.2d 46. Defendant, in the instant case, made his motion to dismiss at the proper time.

The U. S. Supreme Court in Barker, said the failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. Also, inaction by the accused will make it more difficult to prove the denial of the right, but:

'Such an approach, by presuming waiver of a fundamental right from inaction, is inconsistent with this Court's pronouncements on waiver of constitutional rights. * * *

'The nature of the speedy trial right does make it impossible to pinpoint a precise time in the process when the right must be asserted or waived, but that fact does not argue for placing the burden of protecting the right solely on defendants. A defendant has no duty to bring himself to trial; the State has that duty * * *'. (407 U.S. 525-527, 92 S.Ct. 2189-2190, 33 L.Ed.2d 114, 115)

(See Morse for the last possible time when the right should be asserted.)

Mr. Chief Justice Burger earlier in Dickey v. Florida, 398 U.S. 30, 37-38, 90 S.Ct. 1564, 1569, 26 L.Ed.2d 26, 32, stated:

'* * * Although a great many accused persons seek to put off the confrontation as long as possible, the right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial.'

This position was reaffirmed in Strunk.

The district court here was correct in holding:

'* * * the Defendant's attorney would not be representing the Defendant if he would raise the question of the fair speedy trial. This was incumbent upon the County Attorney to do so under the circumstances.'

The district court found no waiver of defendant's rights:

'* * * nor any consent to extending the constitutional basis for a speedy trial by jury on the part of the Defendant * * *'.

The district court found the letters from defendant's attorney to the county attorney were:

'* * * no indication of an intention to waive or...