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NO.

32-102

I N THE SUPREFE COURT OF THE STATE OF M N A A OTN

1982

STATE O F MONTANA, P l a i n t i f f and Respondent, -vsTERRY LEE ACKLEY,

D e f e n d a n t and A p p e l l a n t .

Appeal from:

D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t , I n and f o r t h e County o f M i s s o u l a , The Honorable Douglas G. Warkin, J u d g e p r e s i d i n g .

Counsel o f Record: For Appellant: Goldman and Goldman, M i s s o u l a , >lantana F o r Respondent: Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , G e l e n a , Montana R o b e r t L. Deschamps, County A t t o r n e y , 1 4 i s s o u l a , Montana

S u b m i t t e d on B r i e f s :

S e p t e n b e r 16, 1982

~ e c i d e d : November 1 6 , 1982

Filed:

Xr. Fred J. Weber delivered the Opinion of the Court. Terry Ackley was convicted of burglary in the District Court of the Fourth Judicial District, Missoula County. appeals the conviction, and we affirm. A single issue has been raised for our review: Was
He

the appellant denied his constitutional right to a speedy trial? On March 11, 1981, a complaint was filed in Missoula County Justice Court charging appellant with the crime of burglary, a felony under section 45-6-204, MCA. An arrest

warrant was issued, and appellant was arrested in Eugene, Oregon, on March 17, 1981. On April 14, 1981, appellant

waived extradition, and he was transported to Missoula County on April 18, 1981. Appellant's initial appearance Appellant

in Justice Court took place on April 20, 1981.

again appeared in Justice Court on April 27, 1981, at which time he waived a preliminary examination and was released on his own recognizance. On May 13, 1981, the county attorney filed an information in District Court. Arraignment was set for May 27, 1981.

On P l y 21, 1981, appellant's counsel moved that the arraignment 'a

be reset for June 3, 1981.

The motion was granted and

appellant appeared with counsel on June 3, 1981, and entered a plea of not guilty. An omnibus hearing was held on September 1, 1931, at which time trial was set for October 19, 1981. On September

17, 1981, the trial judge, acting sua sponte, reset the

trial date to November 2, 1981.

Some time later the judge

again reset the trial date, this time to November 23, 1981. Appellant filed a motion to dismiss on November 12, 1981. The motion alleged the deprivation of appellant's right to

a speedy trial.

The motion was denied, and appellant's The jury returned a This appeal foll-owed.

trial began on November 23, 1981.

verdict of guilty on November 25, 1981.

The sole issue on appeal is whether Terry Ackley was denied his right to a speedy trial. A person accused of a crime is guaranteed the fundamental right to a speedy trial by the Sixth Amendment to the United States Constitution, which is made applicable to the states by virtue of the Fourteenth Amendment. Klopfer v. North

Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1. In Montana, the same right is provided by Article 11, Section 24, of the Montana Constitution. 407 U.S. 514, 92 S.@t. In Barker v. Wingo (19721,

2182, 33 L.Ed.2d 101, the United

States Supreme Court established a test by which courts could determine whether an accused has been deprived of his or her right to a speedy trial. The Barker test has been

applied by this Court, and it was stated in State ex rel. Briceno v. Dist. Ct. of 13th Jud. Dist., etc. (1977), 173 Mofit. 516, 518, 568 P.2d 162, 163-4, that: "These cases involve a sensitive balancing of four factors, in which the conduct of the prosecution and the defendant are weighed in determining whether there has been a denial of the right to a speedy trial. The four factors to be evaluated and balanced are:

" (1) Length of delay;
"(2) Reason for delay;
"(3)

Assertion of the right by defendant; and Prejudice .Lo the defendant. "

" (4)

We will now apply these factors to the case before us. "The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejucial, there is no necessity for inquiry into the other factors that go into the balance." Barker, supra, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117.

The speedy trial right attaches when the putative defendant in some way becomes an "accused." United States

v. Marion (1971), 404 U.S. 307, 313, 92 S.Ct. 455, 459,
30 L.Ed.2d 468, 474. The complaint which accused appellant

of theft was filed on Plarch 11, 1981, and he came to trial on November 23, 1981. Thus, 257 days elapsed between the

appellant's acquisition of the constitutional protection and his coming to trial. Cases have arisen in Montana in which

this Court has found that a shorter period of time was sufficient to give rise to the presumption. (19791, - Mon t State v. Harvey

. -, 603 P.2d

661, 36 St.Rep. 2035, (229

days between filing of information and date of trial); State v. Cassidy (1978), 176 Mont. 385, 578 P.2d 735, (246 days between arrest and date of trial). Therefore, we find that

the passage of 257 days in the noncomplex case before us is a presumptive deprivation of appellant's right to a speedy trial. Once the presumption is raised, the State must assume

the burden of explaining the reason for the delay and showing an absence of prejudice to the appellant. Fitzpatrick v.

Crist (19741, 165 Mont. 382, 388, 528 P.2d 1322, 1326; State v. Cassidy (1978), 176 Mont. 385, 390, 578 P.2d 735, 732. The State acknowledges that the only delay attributable to the appellant is the one week postponement of the arraignment which was requested by appellant's counsel. The State

characterizes the delay between the June 3, 1981, arraignment and the November 23, 1981, trial as institutional in nature ana due to jury term and calendaring problems and the fact that the judge was newly elected. It is true that the delay

was not caused by the tactics of the prosecution, and it should be weighed less heavily against the State. ~arker,

supra, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117.

Nevertheless, institutional delay still must be considered by this Court; "[dlelay inherent in the system is chargeable to the State." State v. Harvey, supra, - Mont. at The reasons for the
I

603 P.2d at 667, 36 St.Rep. at 2042.

delay advanced by the State do not excuse the delay. The State does n ~ dispute the fact that appellant t satisfied the third factor of the Barker test by properly asserting his speedy trial right. Appellant met his burden

by making a timely motion to dismiss based upon the denial of his right to a speedy trial. Appellant's motion was

made on November 12, 1981, eleven days before 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." State v. Steward (1975), 168 Mont. 385, 390-91, 543 P.2d 178, 182. In its denial of the motion to dismiss, the District Court found that the appellant had waived his right to a speedy trial by not making his motion at the omnibus hearing on September 1, 1981. The omnibus hearing checklist states

"[tlhat defense counsel knows of no problems involving speedy trial

. . .

. . ."

Counsel for appellant signed this form.

Because the State has chosen not to raise this point, it is not being considered as a factor in the present case. However,

in a closer speedy trial case, this could be a factor for consideration, keeping in mind the United States Supreme Court cases which speak of the presumption against waivers of constitutional rights. Finally, we must consider whether the appellant was prejudiced by the passage of time before trial. In Barker,

the United States Supreme Court identified three interests of a defendant which may be prejudiced by delay in coming to trial. The speedy trial right is designed:

". . . (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Barker, supra, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118.
(1) Appellant spent 41 days in custody from the time of arrest in Eugene, Oregon, to release on his own recognizance in Missoula, Montana. The District Court found that this Following

incarceration was minimal under the circumstances.

arrest, it was necessary for the State to make application for extradition, after which the defendant agreed to voluntary extradition.

We do not find any indication of

oppressive incarceration here. (2) The "anxiety of the accused" which appellant claims to have suffered is an inability to secure employment, marital problems, and a diminution of his freedom of speech. Appellant did not offer any evidence to support such assertions. The State's burden to show a lack of prejudice

becomes considerably lighter in the absence of evidence of prejudice to the appellant. On the employment issue, the

facts show that appellant returned to Eugene, Oregon, upGn his release on his own recognizance. In 1977, appellant

was sentenced to a prison term for burglary in Eugene, Oregon. That conviction would appear to have been at least as significant as the charge in the present case in reducing the likelihood of securing employment. As to marital

problems and timidity in speaking out, we recognize that a certain amount of concern and anxiety are inherent in being accused of a crime. State v. Collins (1978), 178 Nonetheless, in the

Mont. 36, 50, 582 P.2d 1179, 1186.

absence of evidence on the part of appellant, we do not find unusual, significant anxiety or concern under the present facts.

(3) Appellent contends that his defense was impaired because two witnesses had memory lapses. The difficulties

in recollection by these witnesses did not relate to any key elements of the case. by the State. These two witnesses were called

The difficulties in recollection arose when

appellant's counsel was seeking to attack the credibility
of those witnesses.

As a result, their problems in memory

appear to have been more of a benefit to appellant than a problem. On this issue it is important to note that the

defendant did not call any witnesses in his own defense. Appellant also complains that the State did not provide him with current addresses and telephone numbers of the State's witnesses until one week before trial. We note

that the original addresses of the witnesses were provided on May 13, 1981, and that the witnesses were friends of the appellant. If in fact the appellant had a problem in

preparation for trial, he should have dealt with the same by a motion for continuance or a motion in limine. We find

that appellant has completely failed to show that his defense was impaired in any way. Having reviewed the entire record, and having balanced the factors required under Barker v. Wingo, we conclude that Terry Ackley was not denied his right to a speedy trial. The judgment is affirmed.

We Concur:

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