State v. Tiedemann

• Decision Date: 18 September 1978
• Docket Number: No. 14083,14083
• Citation: 35 St.Rep. 1705,584 P.2d 1284,178 Mont. 394
• Parties: STATE of Montana, Plaintiff and Appellant, v. Brian TIEDEMANN, Defendant and Respondent.
• Court: Montana Supreme Court

Page 1284

584 P.2d 1284

178 Mont. 394

STATE of Montana, Plaintiff and Appellant, v. Brian TIEDEMANN, Defendant and Respondent.

No. 14083.

Supreme Court of Montana.

Submitted on Briefs May 9, 1978.

Decided Sept. 18, 1978.

Denzil R. Young, Jr., County Atty., Baker, Mike Greely, Atty. Gen., Helena, for plaintiff and appellant.

Gene Huntley, Baker, for defendant and respondent.

DALY, Justice.

Defendant Brian Tiedemann was charged with three offenses aggravated assault, felony criminal mischief, and driving while intoxicated following a high-speed chase on April 11, 1976, which resulted in the destruction of two police cars stationed as a roadblock and of the car driven by Tiedemann. On August 24, 1977, 500 days after defendant was first taken into custody, the District Court, Fallon County, dismissed the charges for failure to diligently prosecute. The State appeals under section 95-2403, R.C.M.1947.

This appeal was classified as Class No. 2 under the Internal Operating Rules of this Court, and as such has been decided on the briefs submitted without oral argument.

The District Court, in making its ruling of dismissal, urged the county attorney to appeal to this Court "in order that guidelines could be handed down based upon this case for the edification of all trial courts in Montana, all prosecutors and all defense attorneys on the speedy trial question".

Before proceeding to a consideration of the speedy trial issue, however, we are forced to clarify a question of the record we will consider on appeal. Defendant-respondent has raised several challenges to the accuracy of the Justice Court record for the first time on this appeal by way of affidavits from defendant, defendant's mother, the county attorney, the justice of the peace, and defendant's counsel. These are not proper materials to be brought before this Court.

" Appeals can only be taken on the record made, not on the record which should have been made." State v. Totterdell (1959), 135 Mont. 56, 61, 336 P.2d 696, 699. Review is limited to the existing record which cannot be supplemented or supplanted by affidavits filed for the first time on appeal. State v. Thomson (1976), 169 Mont. 158, 166, 545 P.2d 1070, 1074; State v. Lane (1973), 161 Mont. 369, 374-75, 506 P.2d 446, 449. The time for defendant to have lodged his objections to the record being made was before this appeal was taken. Rule 46, M.R.Civ.P. The affidavits have not been considered.

The right to a speedy trial is guaranteed by both the United States and Montana Constitutions. U.S.Const., Amend. VI; 1972 Mont.Const., art. II, § 24. The right to a speedy trial is fundamental, Klopfer v. North Carolina (1967), 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1, 8, and the federal standard, as a minimum, is imposed by the due process clause of the Fourteenth Amendment on the states. See Dickey v. Florida (1970), 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26; Smith v. Hooey (1969), 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607.

The touchstone in any analysis of the speedy trial issue is Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 116-17, in which the Supreme Court set out a four factor balancing approach with the conduct of both prosecution and defense being weighed. The four factors to be considered are:

(1) Length of delay;

(2) Reason for the delay;

(3) Defendant's assertion of the right; and,

(4) Prejudice to the defendant.

The Court emphasized the necessity of balancing the factors:

"We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." 407 U.S. at 533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118.

This Court has adopted and applied the four factor balancing test of Barker in a series of decisions dating back to 1973. See State v. Collins (1978), Mont., 582 P.2d 1179, 35 St.Rep. 993; State v. Cassidy (1978), Mont., 578 P.2d 735, 737, 35 St.Rep. 612; State ex rel. Briceno v. District Court (1977), Mont., 568 P.2d 162, 164, 34 St.Rep. 927; State v. Keller (1976), 170 Mont. 372, 377, 553 P.2d 1013, 1016; State ex rel. Sanford v. District Court (1976), 170 Mont. 196, 199, 551 P.2d 1005, 1007; State v. Steward (1975), 168 Mont. 385, 389, 543 P.2d 178, 181; Fitzpatrick v. Crist (1974), 165 Mont. 382, 388, 528 P.2d 1322, 1325; State v. Sanders (1973), 163 Mont. 209, 213, 516 P.2d 372, 375. We reaffirm our support of this test as the correct and most complete standard available to judge speedy trial questions.

Length of delay. Length of delay has been referred to as the trigger setting off the speedy trial issue inquiry:

"The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case." Barker, 407 U.S. at 530-31, 92 S.Ct. at 2192, 33 L.Ed.2d at 117.

Accord, Keller, 170 Mont. at 377, 553 P.2d at 1017; Steward, 168 Mont. at 389, 543 P.2d at 181.

In the instant case, the State concedes that the time lapse is sufficient to trigger an inquiry into the other three factors of the balancing test. We agree. The delay in the present case (500 days 161/2 months from date of arrest to date of dismissal) is longer than the delays found sufficient to warrant dismissal in Fitzpatrick (seven months), Cassidy (eight months), Sanford (ten months), Briceno (ten and one-half months), and Keller (eleven months).

The length of delay thus shifts the burden to the State of explaining the reason for the delay and showing absence of prejudice to defendant. Cassidy, 578 P.2d at 738; Sanford, 170 Mont. at 200, 551 P.2d at 1007; Fitzpatrick, 165 Mont. at 388, 528 P.2d at 1326.

Reason for the delay. It is on this factor that the views of the State and those of defendant most sharply conflict. Successful resolution of this conflict will, to a large extent, resolve the speedy trial issue in this case.

The successful motion to dismiss filed by defendant was entitled "Motion to Dismiss for Failure to Diligently Prosecute". (Emphasis added.) It is this euphemism for violation of the right to speedy trial that, in our view, describes what has happened in this case. From the beginning, we find the record replete with instances of prosecutorial delays, duplications, errors, and missed deadlines, which individually may account for only a few weeks or a month but in their sum stretch out to nearly a year and a half for the prosecution of an alleged offense that should have been disposed of in a much shorter time. See Keller, 170 Mont. at 383, 553 P.2d at 1020; Courts Task Force of the Montana Study on Criminal Justice Standards and Goals, Standard 4.1 (1976) ("The trial date shall be set, by the judge, within 60 days of the plea . . .").

We begin our analysis of this factor with the general rule: "A defendant has no duty to bring himself to trial; the State has that duty . . .." Barker, 407 U.S. at 527, 92 S.Ct. at 2190, 33 L.Ed.2d at 115. The Montana legislature, in enacting the Code of Criminal Procedure, has defined what satisfies that duty by establishing time limits within which certain prosecutorial steps must be taken, absent good reason for failure by the State or waiver by the defendant. It is against these statutory time limits that we measure the diligence of the prosecution of defendant. Keller,170 Mont. at 379, 553 P.2d at 1017-18.

Defendant was first taken into custody on April 11, 1976. This arrest began the ticking of the speedy trial clock. Dillingham v. United States (1975), 423 U.S. 64, 65, 96 S.Ct. 303, 304, 46 L.Ed.2d 205, 207. It was not until April 29, however, that he was brought before a justice of the peace for his initial appearance. Section 95-901, R.C.M.1947, requires any person making an arrest to take the arrested person before the appropriate judge for an initial appearance "without unnecessary delay".

We are unable to discover from the record a reason for this delay of 18 days which on its face appears unnecessary. Cf. State v. Johnston (1962), 140 Mont. 111, 113, 367 P.2d 891, 892 (21 days detention). We recognize that as a result of the automobile accident in which defendant was involved, he suffered some injuries, especially to his face, which required treatment in a hospital until, at the latest, April 18. Aside from this possible reason for delay, In re Walker (1974), 10 Cal.3d 764, 778, 112 Cal.Rptr. 177, 186, 518 P.2d 1129, 1138, we discern from the testimony at the preliminary hearing that defendant was not immobilized or otherwise rendered unable to come to court during the 11 days between his release from the hospital and his initial appearance. While this delay in initial appearance may not, of itself, violate constitutional principles (a question we do not reach here), it does indicate the pace at which the prosecution proceeded and did contribute to the overall denial of speedy trial.

At the initial hearing on April 29, defendant requested and was granted a preliminary examination which was scheduled for May 5. The Justice Court docket entry relating to this incident reads:

"(B)ecause of inability to obtain a Court Reporter preliminary hearing was postponed, and upon request of defendant to enable him to return to the North Slope of Alaska and the defendant's agreement to waive the possible time defect in the State's proceeding by reason of the delay in the preliminary hearing in order to allow the defendant to return to work, the preliminary hearing was...