State v. Weeks

• Decision Date: 16 February 1995
• Docket Number: No. 94-023,94-023
• Citation: 52 St.Rep. 78,270 Mont. 63,891 P.2d 477
• Parties: STATE of Montana, Plaintiff and Respondent, v. Michael WEEKS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 477

891 P.2d 477

270 Mont. 63

STATE of Montana, Plaintiff and Respondent, v. Michael WEEKS, Defendant and Appellant.

No. 94-023.

Supreme Court of Montana.

Submitted on Briefs Nov. 10, 1994.

Decided Feb. 16, 1995.

[270 Mont. 69] Steven J. Shapiro, Clancy, for appellant.

Joseph P. Mazurek, Atty. Gen., Cregg Coughlin, Asst. Atty. Gen., Helena, and John Flynn, Broadwater County Atty., Townsend, for respondent.

NELSON, Justice.

Defendant/Appellant, Michael Weeks, was charged with sexual intercourse without consent, a felony in violation of § 45-5-503, MCA (1991), alleged to have occurred on or about October 17, 1991. After a jury trial Weeks raises five issues on appeal.

                held in the First Judicial District, Lewis and Clark County, Weeks was convicted of the charge, and the District Court entered its Judgment and Order on September 22, 1993, sentencing Weeks to 35 years in prison with 15 years suspended.   Weeks appeals his conviction.   We affirm
                

1. Whether he was denied his right to a speedy trial?

2. Whether the District Court abused its discretion in finding a sufficient chain of custody for the blood specimens?

3. Whether the District Court abused its discretion in admitting evidence of serological and DNA testing?

4. Whether the District Court properly denied Weeks' motion for a judgment of acquittal?

5. Whether the District Court abused its discretion when it excluded evidence of prior sexual abuse of the victim?

FACTUAL BACKGROUND

In the fall of 1991, the victim, C.R., was in the seventh grade and living in Townsend, Montana, with her mother, two brothers and her stepfather, Weeks. In December of 1991, C.R. went to a doctor in Townsend, who determined that C.R. was pregnant. C.R. testified that from the time she was eight years old until she left the home, Weeks would have sex with her two to three times a week. C.R. stated that the incidents would usually take place in the morning, after her mother had left for work, and before her brothers had awakened.

In January of 1992, Cheryl Rolfe, a social worker for the Montana Department of Social Services working in Broadwater County received an anonymous referral stating that C.R. was pregnant. As a result of this referral, Rolfe interviewed C.R. at school, and C.R. told Rolfe that Weeks had impregnated her. Rolfe immediately placed C.R. in a foster home, where she stayed until January 31, 1992, at which time Rolfe placed C.R. at the Florence Crittenton Home. Rolfe stated that she specifically told C.R.'s mother not to make any contact with C.R. including telephone calls, unless it was first approved by Rolfe. C.R. stated that while she was staying at the foster home, her mother and Weeks called her and asked her to change her testimony and claim someone else was the father of the child.

On July 20, 1992, C.R. gave birth to a baby boy. C.R. testified that Weeks was the only person she had ever had sexual intercourse with. Weeks denies that he is the father of the child, and presented evidence that C.R.'s brother could have been the potential father.

The Montana State Crime Lab received blood samples from C.R., the baby, Weeks, and C.R.'s brother. Julie Long, a forensic scientist working at the State Crime Lab testified that she ran serological tests on the blood samples and determined that Weeks was included as a possible father of the baby. According to Long, C.R.'s brother was positively excluded as the baby's father.

The State sent blood samples from C.R., the baby, and Weeks to Genelex Corporation, a paternity testing laboratory in Seattle, for DNA analysis. The president of Genelex, Howard Coleman, testified that the DNA analysis evidence demonstrated that Weeks could not be excluded as the baby's father. In addition, Genelex conducted a statistical analysis of the DNA testing results and determined that Weeks was 154,000 times more likely to be the baby's father than a random man.

Weeks was arrested on October 30, 1992, and charged with sexual intercourse without consent. A jury trial was held July 26 through July 28, 1993, and Weeks was found guilty of the charge. Additional facts will be presented as is necessary for the discussion of the issues.

1. SPEEDY TRIAL

Although not reflected in the District Court record, Weeks maintains, and the State does not dispute, that Weeks was charged by complaint in Broadwater County Justice Court in October of 1992, and arrested on October 30, 1992. An information charging Weeks was filed on November 17, 1992, and during Week's arraignment, which was held on December 4, 1992, the court set the original trial date for the week of April 12, 1993. On February 9, 1993, Weeks requested documentation of the DNA testing Genelex conducted. The State produced the documentation on March 18, 1993. On March 31, 1993, Weeks moved for a continuance of the trial date scheduled for April 12, 1993 to May 17, 1993, alleging that his expert needed additional time to review the DNA testing documentation. Weeks specifically waived his right to a speedy trial in his motion.

The District Court granted Weeks' motion for a continuance, and a second trial date was scheduled for May 17, 1993. On May 3, 1993, Weeks moved to exclude scientific evidence, which included the evidence of the DNA testing, statistical probabilities based on the DNA and serological tests, and references to the terms "match" and "fingerprints." The State objected to Weeks' motion to exclude on May 5, 1993, alleging that "[t]he very nature of Defendant's motion begs for an evidentiary hearing to address the issues raised by the Defense." The State requested that the court vacate the May 17 trial date and hold an evidentiary hearing on Weeks' motion. After giving preliminary consideration to Weeks' motion on May 7, the court decided a hearing was necessary to determine the admissibility of the scientific evidence, and therefore rescheduled trial for July 26, 1993.

On June 21, 1993, Weeks filed a motion to dismiss on the grounds that he was denied his right to a speedy trial. Weeks alleged the State was responsible for the delay because it took six weeks to respond to his discovery request and because it moved to vacate the trial and hold a hearing on his motion to exclude the scientific evidence. After a hearing held on July 2, 1993, the court denied his motion.

The Sixth Amendment to the United States Constitution, and Article II, Section 24 of the Montana Constitution, guarantee a criminal defendant the right to a speedy trial. State v. Stewart (1994), 266 Mont. 525, 528-30, 881 P.2d 629, 632. This Court applies the four part test set forth in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, to determine whether a criminal defendant has been denied his right to a speedy trial. State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 568 P.2d 162. The four factors which must be evaluated are the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; State v. Thompson (1993), 263 Mont. 17, 31-32, 865 P.2d 1125, 1134. No particular factor is determinative, rather, all four factors must be weighed in light of the surrounding facts and circumstances. Stewart, 881 P.2d at 632.

The first factor, the length of the delay is the threshold factor, as the other three factors need not be considered unless the length of the delay is presumptively prejudicial. Thompson, 865 P.2d at 1134. In this case, the State concedes that the 269 day pretrial delay is sufficient to warrant additional speedy trial analysis. See, Thompson, 865 P.2d at 1135, "[a] delay of over 200 days will usually trigger further analysis." Therefore, we consider the remaining three factors.

The second factor, the reason for the delay, requires an allocation of portions of the overall delay to the party responsible for causing any given period of delay. Thompson, 865 P.2d at 1135.

The delay in this case may be divided into three separate segments. The first period consists of 164 days and represents the time between Weeks' arrest on October 30, 1992, and the original trial date of April 12, 1993. Because the District Court set the original trial date, the delay is considered institutional, and is therefore chargeable to the State. Thompson, 865 P.2d at 1135. "However, institutional delay weighs less heavily against the State than does purposeful delay." Thompson, 865 P.2d at 1135. Weeks makes no argument, and the record does not indicate, that the State purposefully caused the delay between his arrest and the first scheduled trial date, which is by far the longest period of delay. Therefore, we weigh this initial 164 days less heavily against the State.

The second period of delay consists of 36 days, and represents the time between the original trial date of April 12, 1993, and the trial date set for May 17, 1993. The defendant requested this delay in his motion for continuance, wherein he specifically waived his right to a speedy trial. On appeal, Weeks contends that the State should be responsible for this delay, as it did not timely respond to his request for discovery. Nevertheless, Weeks specifically waived his right to a speedy trial until May 17, 1993. Therefore, the second period of delay is attributable to Weeks. State v. Tilly (1987), 227 Mont. 138, 143, 737 P.2d 484, 487; see also, State v. Nelson (1991), 251 Mont. 139, 822 P.2d 1086.

The third period of delay consists of 69 days, and represents the delay between the court's vacating the May 17 trial date and rescheduling the trial for July 26, 1993. Weeks maintains that this delay should be attributable to the State, as it moved to vacate the May 17 trial date. While the State agrees that it requested that the trial date be vacated, it argues that the delay should be attributed to Weeks, as the delay was caused by Weeks' motion to exclude the DNA evidence. The...