State v. Zimmerman

• Decision Date: 03 July 2014
• Docket Number: No. DA 13–0560.,DA 13–0560.
• Citation: 375 Mont. 374,328 P.3d 1132
• Parties: STATE of Montana, Plaintiff and Appellee, v. David Michael ZIMMERMAN, Defendant and Appellant.
• Court: Montana Supreme Court

375 Mont. 374

328 P.3d 1132

STATE of Montana, Plaintiff and Appellee,

v.David Michael ZIMMERMAN, Defendant and Appellant.

No. DA 13–0560.

Supreme Court of Montana.

Submitted on Briefs April 30, 2014.

Decided July 3, 2014.

For Appellant: Richard Bartos, Bartos Law Offices, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Leo Gallagher, Lewis and Clark County Attorney, Jeffrey Sealey, Deputy County Attorney, Helena, Montana.

Justice LAURIE McKINNON delivered the Opinion of the Court.

¶ 1 David Zimmerman appeals from the order of the First Judicial District Court, Lewis and Clark County, denying his motion to dismiss for lack of a speedy trial. We reverse and remand for dismissal of the charges.

¶ 2 The issue on appeal is whether the delay in bringing Zimmerman to trial violated his constitutional right to a speedy trial.

BACKGROUND

¶ 3 During the early morning hours of July 21, 2012, Officer William Harrington of the City of East Helena Police Department observed a pickup truck that appeared to be exceeding the posted 25–mile–per–hour speed limit. Harrington activated his radar unit, which registered the pickup's speed as 41 miles per hour. Harrington initiated a traffic stop and made contact with the driver (Zimmerman). Based on his observations at the scene, Harrington conducted a DUI investigation. Ultimately, Zimmerman was arrested for driving under the influence of alcohol, fourth or subsequent offense, a felony, in violation of §§ 61–8–401 and –731, MCA. He was also cited with misdemeanor traffic offenses. Zimmerman's driving privileges were revoked due to his refusal to submit to a preliminary breath test. See§ 61–8–402, MCA.

¶ 4 Zimmerman made his initial appearance in Lewis and Clark County Justice Court on July 23, 2012. The Justice Court scheduled a preliminary hearing under § 46–10–105, MCA, for August 3. Zimmerman retained counsel, who filed a notice of appearance on July 31 and requested that the preliminary hearing be continued due to a scheduling conflict. Counsel also represented that the assigned prosecutor would be unavailable for the two weeks immediately following August 3, 2012. The Justice Court vacated the August 3 preliminary hearing; however, the court did not reschedule the preliminary hearing and, ultimately, a preliminary hearing was never conducted.

¶ 5 Zimmerman was incarcerated for three days following his arrest. He borrowed money from family members in order to post bail of $10,000. Following his release, Zimmerman was prohibited from consuming alcohol and was required, as a condition of release, to submit to regular testing for alcohol use. He was given the choice of either going to the police station twice daily (every 12 hours) to provide a breath sample or, alternatively, wearing an electronic leg bracelet (a Secure Continuous Remote Alcohol Monitor, or SCRAM) that continuously monitors alcohol consumption. Zimmerman elected a leg bracelet. This option required him to report to county officials once a week to have the alcohol monitoring device checked for compliance. It also required him to pay $56 weekly for the use of the device and the monitoring program. Zimmerman wore the bracelet on his right leg continuously for the ensuing nine to ten months and was still wearing it at the time the District Court decided his speedy trial motion. He complied with the program and was found to be alcohol free throughout the pretrial period.

¶ 6 The State took no action in regard to Zimmerman's case until mid-January 2013. The prosecutor later explained (in response to Zimmerman's speedy trial motion) that the case had “fall[en] off the Court's calendar” and “went into a state of limbo until counsel for the State realized the matter was pending without [a] date.” On January 15, 2013, the prosecutor filed a motion for leave to file an information in the District Court. The court granted the motion, and an information was filed on January 15 charging Zimmerman with felony DUI and misdemeanor driving without valid liability insurance. Zimmerman made his initial appearance on January 17. At his arraignment on January 31, he entered pleas of not guilty and stated that he would be raising a speedy trial issue. The District Court set the omnibus hearing for March 21, 2013, and the trial for May 6, 2013.

¶ 7 Zimmerman filed a motion to dismiss for denial of his right to a speedy trial on April 4, 2013. Applying the balancing test we adopted in State v. Ariegwe, 2007 MT 204, 338 Mont. 442, 167 P.3d 815, he argued that he was not responsible for any of the 289–day delay between his July 21, 2012 arrest and his May 6, 2013 trial date.¹ He further asserted that the State had been negligent, or failed to act diligently, in bringing him to trial. He observed that he had asserted his right to a speedy trial promptly at his first appearance before the District Court after the Information was filed, that he had not requested any continuances of his trial date, and that he had not taken any actions that would have prevented the State from prosecuting the case. Finally, Zimmerman argued that he had been prejudiced by the delay for various reasons.

¶ 8 The District Court held an evidentiary hearing at which Zimmerman provided testimony in support of his speedy trial motion. On the issue of prejudice, he noted that the SCRAM bracelet had been strapped to his leg continuously for eight and a half months. This had cost him over $2,000 thus far. He contended that the device limited his work as a construction and carpentry worker because, to preclude the possibility of alcohol entering his system, he had to avoid chemicals that may contain alcohol, such as pipe solder, construction glue, paint removers, and other solutions. He stated that both the existence of a pending felony charge against him and the condition of his release prohibiting him from leaving Lewis and Clark County had hindered his ability to secure stable employment which, in turn, had prevented him from providing appropriate financial support for his two-year-old daughter. Moreover, he testified that he no longer had any assets, home, or vehicle and that he had been forced to live with his brother. Zimmerman admitted that he had experienced some depression prior to his arrest, but he stated that his anxiety, stress, and depression had worsened due to the pretrial delay. He noted that he had seen a doctor for his mental health issues and was prescribed antidepressants in February 2013. Finally, Zimmerman asserted that his ability to present a defense had been impaired due to his and Officer Harrington's fading memories of the incident.

¶ 9 During cross-examination, Zimmerman was asked about the six-month period between his arrest and the filing of the Information. He testified that he had maintained contact with his attorney, but that he had never asked his attorney to get his case back on the Justice Court's calendar. He explained, “I didn't think it was my duty.”

¶ 10 The District Court entered an order denying the motion to dismiss. The court's reasoning will be discussed below. Zimmerman then changed his plea to guilty on both charges, reserving the right to appeal the denial of his speedy trial motion. On the DUI offense, the court sentenced him to the Department of Corrections for thirteen months, followed by a four-year suspended sentence. For failing to have valid liability insurance, the court imposed a fine.

STANDARDS OF REVIEW

¶ 11 We apply two standards when reviewing a trial court's ruling on a speedy trial motion. First, we review the factual findings underlying the court's ruling to determine whether those findings are clearly erroneous. Ariegwe, ¶ 119. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the court has misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been made. Ariegwe, ¶ 119. Second, whether the factual circumstances, when evaluated pursuant to the four-factor balancing test, amount to a speedy trial violation presents a question of constitutional law, which we review de novo to determine whether the trial court correctly interpreted and applied the law. Ariegwe, ¶ 119; State v. Couture, 2010 MT 201, ¶ 47 n. 2, 357 Mont. 398, 240 P.3d 987 (on questions of law, the parties are entitled to full review by the appellate court without special deference to the views of the trial court).

DISCUSSION

¶ 12 A criminal defendant's right to a speedy trial is a fundamental constitutional right guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article II, Section 24 of the Montana Constitution. Ariegwe, ¶ 20; State v. Stops, 2013 MT 131, ¶ 18, 370 Mont. 226, 301 P.3d 811. It has been acknowledged that this right has an “amorphous quality” in the sense that it is “impossible to determine with precision ... how long is too long in a system where justice is supposed to be swift but deliberate.” Barker v. Wingo, 407 U.S. 514, 521, 522, 92 S.Ct. 2182, 2187, 2188, 33 L.Ed.2d 101 (1972); accordAriegwe, ¶ 91. As a result, the right to a speedy trial is necessarily relative and depends upon the circumstances of the case. Ariegwe, ¶ 104. To determine whether the delay in bringing the accused to trial amounts to a violation of the right, we apply a balancing test that takes into consideration (1) the length of the delay, (2) the reasons for the delay, (3) the accused's responses to the delay, and (4) prejudice to the accused as a result of the delay. We balance these factors, and any other relevant circumstances, to determine whether the accused has been deprived of his or her right. Couture, ¶ 46; Stops, ¶ 19. No one factor is dispositive by itself; the factors are related and must be considered together with such other circumstances as may be relevant. Ariegwe, ¶ 112. Each factor's...