State v. Taylor, 97-261

• Decision Date: 08 May 1998
• Docket Number: No. 97-261,97-261
• Citation: 1998 MT 121,289 Mont. 63,960 P.2d 773
• Parties: STATE of Montana, Plaintiff and Respondent, v. Edwin A. TAYLOR, Defendant and Appellant.
• Court: Montana Supreme Court

Page 773

960 P.2d 773

1998 MT 121

STATE of Montana, Plaintiff and Respondent, v. Edwin A. TAYLOR, Defendant and Appellant.

No. 97-261.

Supreme Court of Montana.

Submitted on Briefs March 19, 1998.

Decided May 8, 1998.

Bernard J. "Ben" Everett; Knight, Dahood, McLean & Everett; Anaconda, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General; Helena, Marty Lambert, Gallatin County Attorney; Elizabeth Horsman-Wiitala, Barbara C. Harris, and Kathy Seeley, Assistant Attorneys General and Special Deputy County Attorneys; Bozeman, for Plaintiff and Respondent.

TRIEWEILER, Justice.

¶1 The defendant, Edwin A. Taylor, was charged by information in the District Court for the Eighteenth Judicial District in Gallatin County with three counts of felony theft based on workers' compensation claims that he had filed. Taylor moved to dismiss the information for unconstitutional pre-indictment delay. The District Court denied that motion. Taylor pled guilty to one count of theft and now appeals the denial of his motion to dismiss. We reverse the order and judgment of the District Court.

¶2 The sole issue on appeal is whether pre-indictment delay violated Taylor's constitutional right to due process.

FACTUAL BACKGROUND

¶3 Edwin A. Taylor was employed by the Montana Highway Department in 1990. On March 30, 1990, Taylor reported to the State Fund a work-related injury that he alleged had occurred on February 26, 1990. The State Fund accepted liability and paid Taylor $5,591.64 for disability benefits and$17,161.70 for medical benefits. Taylor had surgery on his neck in July, but returned to work in September 1990. His treating surgeon was Dr. James Johnson.

¶4 Taylor claimed that a second work-related injury occurred on November 15, 1990. He received $274.47 for medical expenses related to that claim. Finally, Taylor claimed that a third work-related injury occurred on March 4, 1991. The State Fund paid approximately $36,000.00 for disability benefits and $18,000.00 for medical expenses related to that claim. Although Taylor had not returned to work, the State Fund terminated Taylor's benefits in April 1994.

¶5 In May 1991, the State Fund began an investigation into Taylor's claims after it received reports that they were fraudulent. In August of that year, the State Fund referred the matter to the Department of Justice, Criminal Investigation Bureau, for further investigation. The State contends that the CIB referred the investigation to the Gallatin County Attorney on April 22, 1992. Taylor contends that the decision to refer the case to the Gallatin County Attorney was made on January 31, 1992.

¶6 After the County Attorney's office reviewed the matter, it contacted the CIB agent, Brian Costigan, on September 8, 1992, to request that he conduct further investigation. The County Attorney's office received Costigan's report on approximately October 6, 1992. In April 1993, Deputy County Attorney Jane Mersen was appointed to prosecute the case, although she was on maternity leave from May until July of that year. Mersen contacted Costigan again in October 1993, to request further investigation. Shortly thereafter, the County Attorney hired Assistant Attorney General Elizabeth Horsman-Wiitala to prosecute this case, and she was appointed special counsel for that purpose on December 13, 1993.

¶7 The State Fund remained in frequent contact with the County Attorney's office about its progress in the matter, since it continued to pay Taylor's benefits and apparently deferred its investigation of his claims in favor of the investigation by the County Attorney's office. In addition, Taylor and his attorney were in contact with the County Attorney's office and other investigators to facilitate resolution of the matter. On January 13, 1994, Taylor's counsel wrote Horsman-Wiitala about, among other things, the effect of the delay on Taylor, their past and ongoing desire to cooperate in the investigation, and the perceived violation of his client's constitutional rights.

¶8 On March 9, 1994, Horsman-Wiitala filed a motion for leave to file information in the District Court, and a week later filed an information charging Taylor with three felony counts of theft, pursuant to §§ 45-6- ¶9 After the information was filed, the State Fund terminated Taylor's benefits and began proceedings against Taylor in the Workers' Compensation Court. Taylor filed a response in the Workers' Compensation Court and sought reinstatement of his benefits; the Workers' Compensation Court consolidated the claims and set a trial date.

301(5)(b) and -301(7), MCA. In the charging documents, it was alleged that Taylor fraudulently received workers' compensation benefits in the amount of $74,526.59 for the three claims. Taylor appeared on May 11, 1994, and pled not guilty.

¶10 On August 19, 1994, Taylor moved the District Court to dismiss the information based on a lack of jurisdiction, or in the alternative to stay the District Court proceedings until the Workers' Compensation Court made its determination. He also moved the District Court to dismiss the information based on alleged denial of due process from the length of pre-indictment delay. Taylor alleged that the County Attorney's office "inexcusably procrastinated" in bringing the charges, and that he had suffered severe prejudice, both psychologically and to his defense, due to the impairment of witnesses' memories. The State, in response, contended that the delay was not intentional or for tactical advantage and that Taylor's allegations of prejudice were insufficient for dismissal. After oral argument, the District Court, on October 24, 1994, denied the motion to dismiss and reserved its ruling on the motion to stay. The order stated that there was no showing of actual or substantial prejudice, and that the State had gained no tactical advantage from the considerable, albeit "excusable" delay.

¶11 The District Court reserved its decision to stay because at the time, the Workers' Compensation Court trial was expected to be completed by the date set for trial in the District Court. As it stated in another pre-trial decision, "a resolution of that cause could very well make the criminal matter moot." After a number of delays (which necessitated corresponding delays in the District Court), the trial in the Workers' Compensation Court was finally held on February 23 and 24, 1995.

¶12 On August 21, 1995, the Workers' Compensation Court held that the November 15, 1990, and March 4, 1991, claims of injury were fraudulent, and entered judgment in the amount of $55,362.85 against Taylor. It found a suspicion of fraud regarding the February 26, 1990, injury, but found that there was insufficient evidence to conclude that the claim was fraudulent. Taylor eventually appealed the Workers' Compensation Court judgment to this Court, and we affirmed the Workers' Compensation Court. See Taylor v. State Compensation Ins. Fund (1996), 275 Mont. 432, 913 P.2d 1242. On August 28, 1995, the District Court set March 25, 1996, as the trial date.

¶13 On January 24, 1996, Taylor moved the District Court to reconsider its previous denial of his motion to dismiss based on pre-indictment delay. His motion was based on the fact that at the time that he filed the first motion, Taylor was unaware that two key witnesses had died during the period of pre-indictment delay. He stated that his primary physician after the February 26, 1990, injury, Dr. James Johnson, had died on October 24, 1993, and that the psychologist, Dr. Richard Traynham, who had examined Taylor at the request of the State Fund, and concluded that he suffered depression as a result of his work-related injuries, had died on April 15, 1993. The motion explained briefly the nature of the testimony they would have given and its importance to Taylor's case. Their testimony had not been preserved prior to their deaths.

¶14 The State's response alleged that Taylor's motion was untimely, that Taylor should have discovered Johnson's death sooner than he did if the testimony was in fact critical to his defense, and that Taylor had initiated post-indictment delay which rendered disingenuous his claim of pre-indictment delay.

¶15 On February 14, 1996, the District Court denied the motion to reconsider without explanation, and based on its earlier reasoning in response to Taylor's motion to stay, it also granted a motion from Taylor to continue the trial date until this Court could issue its decision in the appeal from the

Workers' Compensation Court decision. A month later and after this Court affirmed the judgment of the Workers' Compensation Court, the district court trial was set for July 22, 1996. The trial was continued several times until, finally, on February 6, 1997, Taylor entered a guilty plea to Count III regarding the March 4, 1991, injury and Counts I and II were dismissed. The District Court deferred imposition of sentence for three years and placed Taylor on probation, subject to his compliance with the order from the Workers' Compensation Court and his performance of community service, among other conditions. The plea agreement reserved Taylor's right to appeal the denial of his motions to dismiss for pre-indictment delay.

DISCUSSION

¶16 Did pre-indictment delay violate Taylor's constitutional right to due process?

¶17 The State suggests that we should review a district court decision to grant or deny a motion to dismiss for pre-indictment delay for abuse of discretion. Taylor, on the other hand, contends that the district court's decision constitutes a question of law for which this Court's review is plenary. We have not expressly set forth our standard of review for decisions regarding pre-indictment delay.

¶18 We recognize that the question of post-indictment delay or whether a defendant's right to speedy trial has been violated is a question of constitutional law which requires that we revie...