State v. Ariegwe

STATE OF MONTANA, Respondent, Plaintiff and v. ARIEGWE,

KINGSLEY Appellant. Defendant No. 04-620. February on Briefs 2007. Submitted August 2007. Decided MT 204. 338 Mont. 442. Hooks; Law, Appellant: Attorney

For F. Helena. William McGrath, Attorney Respondent: For Hon. Mike Montana Schmidt, General, Helena; General, Attorney Carol E. Assistant Weber, County Attorney, Deputy County Sue Light, Brant Cascade Attorney, Great Falls. Opinion of the Court.

JUSTICE NELSON delivered attempted sexual jury Kingsley Ariegwe A convicted children, and unlawful transactions with intercourse without consent District, Eighth Judicial Cascade and the District Court imprisonment to a term of in Montana County, sentenced him Ariegwe totaling restitution pay Prison. The court also ordered State his conviction and sentence. We $14,234.66. Ariegwe appeals now from proceedings. for further part, reverse and remand part, affirm The issues are as follows: appeal on motion to denying Ariegwe’s Did Court err the District for lack of a trial? dismiss

2. Did the denying Ariegwe’s District Court abuse its discretion in motion for a new trial? illegal?

3. Is the District Court’s restitution order FACTUAL AND PROCEDURAL BACKGROUND Ariegwe 15-year-old and girl whom we ¶3 will refer to as “K.M.” January 15,2003, met on in an Internet chat room devoted to romance During Montana.1 conversation, course of their online K.M. (he 35) Ariegwe learned that 32-year-old was a male actually living in Great Falls. Ariegwe K.M. informed that she also lived in Falls, Great and she directed him profile to the online associated with (online her screen name pseudonym). profile The contained descriptive information-including age, K.M.’s which was listed as 15-and her picture. awhile, The two of them chatted for and Ariegwe gave K.M. telephone his number. 16) K.M. called Ariegwe following evening (January again and 17).

the next morning (January conversations, the course of these Ariegwe mentioned that he was divorced and that 9-year-old he had a son. K.M. Ariegwe informed age that his did not bother her “because (K.M. [she] planning wasn’t on doing anything with him.” later explained Ariegwe’s trial that because she was homeschooled and upwards worked thirty hours a babysitter, week as a contact over friends.) the Internet way was one for her to make Ariegwe K.M. and also discussed alcoholic beverages, and K.M. disclosed that she had previously tried mm. During the conversation on January K.M. and Ariegwe

arranged to meet later that morning at a local car dealership, where K.M. dropping would be off her mother’s car servicing. Upon arriving at the dealership, Ariegwe found waiting K.M. area. briefly two talked and then decided to Ariegwe leave. drove K.M. (which to his house he ex-wife, son, shared with his his and his daughter), and upon arriving, they proceeded Ariegwe’s down to living quarters in the next, basement. As for what transpired and KM.’s Ariegwe’s diverge dramatically. stories K.M., According Ariegwe upstairs get glasses went some

which to serve them each an beverage. Meanwhile, alcoholic he had given permission her play Nintendo, but get K.M. was not able to description rooms, Johnson, For a basic of Internet chat see United States v. (7th 2004), States, Slattery F.3d 690 n. 1 Cir. and v. United 2005 WL 2416339 at (N.D. 2005). Sept. *1 Miss. When work, on the couch and waited. just she sat game so downstairs, glass liquor K.M. a poured he came back

Ariegwe they the couch and next to K.M. on Ariegwe then sat she drank it. minutes, began playing Ariegwe couple After a television. watched this, doing stop told him to kissing her neck. K.M. hair and with KM.’s her that he’s him a chance to show give that she should replied he but and, in lap onto his so Ariegwe pulled then K.M. tongue. his good with her neck and then He continued to kiss her left arm. doing, bruised breasts, began kissing her and her bra up her shirt pulled He also stuck his stop. that he notwithstanding KM.’s insistence her, got he on rubbing after which legs her and started hands between legs. her began biting between knees on the floor his him that she wanted away. She told Ariegwe to push K.M. tried which glasses liquor, more leave, he served her two point to at which Thereafter, stupid.” I drank, “[b]ecause was explained, as she later she thought She he was hugged and he her. up and K.M. stood Ariegwe her instead he moved dealership, the car but take her back to going to down, laid her away where he distance to the bed short over oral clothing, performed her and her, most of removed straddled Ariegwe then stop. that he notwithstanding KM.’s demand sex-again, occurred attempt The first penetrate K.M. several times attempted underneath him. She out from bed, managed K.M. to slide on the but her, but penetrate floor, attempt persisted on the where he fell Eventually, ended him. K.M. from underneath sliding K.M. out kept finally her for stairs, Ariegwe penetrated ofthe where up at the bottom climaxing, away before pulled apparently He twenty about seconds. Ariegwe dressed. clothing get her and KM. to retrieve enabled which got “No.”He then replied, she okay, if to which asked KM. she was dealership. her back to the car and drove dressed any have sexual contrast, he did not Ariegwe, by According to ¶8 house, K.M. Rather, arriving at upon with K.M. contact to talk. they and sat down to the basement Ariegwe down accompanied Ariegwe so beverage, an alcoholic that she wanted KM. stated room, top on set the bottle utility liquor from the a bottle of retrieved drinking glasses. get center, upstairs to and went entertainment ofhis sitting on the couch basement, K.M. he found to the When he returned He also permission. his game without and the Nintendo playing was liquor, directly from the bottle drinking that she was observed “touching and was “very hyper,” playful” “too becoming everything.” couch brought K.M. back away and liquor Ariegwe put minutes, KM. twenty ten or After about televsion.

to talk and watch leave, indicated that she at point wanted the two of them step, staggered walked over to the stairs. When K.M. took the first she backwards, prompting Ariegwe grab and fell K.M.’s arm to stabilize up her. He led her the stairs and then drove her back to the car dealership. afternoon, telephoned Although That K.M. her best friend R.K. details,

she did not disclose all of the K.M. confided to R.K. that she K.M., had had Unbeknownst sex with man in his thirties. brief conversation was recorded on an answering machine at R.K.’s house. R.K’s parents heard the conversation and contacted KM.’s parents, who confronted K.M. the next morning. acknowledged K.M. a sexual encounter and stated that it had been involuntary. parents K.M.’s police contacted the and took hospital K.M. to the

for an police questioned examination. The hospital K.M. at the then asked her to show them the house where she had been taken the house). previous (i.e., morning Ariegwe’s police later obtained a warrant They to search the residence. glasses seized two shot from the upstairs rum, sink and a bottle of a computer, bedding from the They basement. also went to K.M.’s home and clothing retrieved the she had worn while at Ariegwe’s Meanwhile, house. Ariegwe’s ex-wife contacted Ariegwe, time, who was at him work and told that the police were investigating his Ariegwe encounter with K.M. turned himself in at the police day 18), station later in the (January believing that he was in only providing trouble an alcoholic beverage to a police minor. The arrested him and body executed a search warrant (which involves the collection of biological samples, blood, such as hair). saliva, and Ariegwe then incarcerated for four days before posted he bond securing his release. February On the State filed an charging information

Ariegwe I, with Count consent, sexual intercourse felony, without a 45-5-503, (2001), violation of II, MCA and § Count unlawful children, misdemeanor, transactions with a in violation of 45-5- § (2001). 623(l)(c), Ariegwe pleaded MCA guilty charges not to these on 20, 2003, February and the May 13, District Court set trial for 2003. (Each postponements Five of the trial date ensued. postponements One, Then, is detailed under Issue infra.) on December 16,2003, the State filed an amended adding information an alternative charge I-namely, under Count attempted sexual intercourse without consent, felony, 45-5-503, a in violation of 45-4-103 and MCA §§ (2001)-to Ariegwe which pleaded guilty not on December 2003. later, days Five existing January 5, District Court vacated the date, 2004 trial parties waiting since the were for test results from the hearing January for lab, set a status crime and the court he had received counsel stated that hearing, defense At the status ¶13 agreed then on a parties and the and the court reports, the crime lab however, indicated, also 1,2004 trial date. Defense counsel March grounds. That to on filing a motion dismiss he would be State, filed, by the and the District response as was a motion was 17,2004. The hearing February following a on Court denied the motion 1 and concluded on March to trial on March proceeded case then intercourse Ariegwe of sexual jury acquitted March 2004. On sexual intercourse attempted him of consent but convicted without transactions with children. consent and unlawful without filed a motion for a new Ariegwe On March ¶14 46-16-702, that he had been denied argued MCA. He to pursuant § had during closing arguments, the prosecutor, fair trial because adduced at trial certain scientific evidence inaccurately represented counsel, object had failed to during and because defense hair and fiber testimony by the State’s trace allegedly improper motion, opposing the response The State filed a expert. examination denied District Court thereafter reply. filed a Ariegwe a curative motion, given had noting that the court Ariegwe’s inaccurate prosecutor’s jury concerning instruction to evidence, hair and fiber the trace representations testimony was of limited allegedly improper expert’s examination upon value, remaining evidence ample that there was evidentiary sexual guilty attempted Ariegwe could have found jury with children. and unlawful transactions without consent intercourse fifty Ariegwe on June Court sentenced The District Prison, years suspended, fifteen with in the Montana State years Center, run County Detention in the Cascade six months ordered The court also fifty-year sentence. concurrently with the $3,332.68 family, K.M.’s as follows: Ariegwe pay restitution Unit, and Compensation Victims Montana State Crime $38.40 $14,234.66. This Co., for a total $10,863.58 EBMS Insurance followed. appeal relevant. below where provided facts are Additional

DISCUSSION Ariegwe’s denying Court err the District One. Did Issue trial? lack to dismiss motion for Claims Speedy Trial Analyzing Framework I. Our Court that the District appeal on contention Ariegwe’s first trial. We lack of a dismiss for his motion to denying erred by analyze speedy last clarified the framework which we trial claims Bruce, MT 186, 290 City Billings 148, 965 in v. Mont. P.2d consistently applied we have the Bruce test to such claims that however, doing, have since come before this Court. In so it has become apparent aspects that certain of the test are now need of clarification or modification. we have determined at this juncture approach speedy claims, to revisit our trial in particular doing because our so here does not affect the outcome of this appeal. begin by We in Part A reviewing speedy trial test articulated the United States Supreme Wingo, Court in Barker v. 407 U.S. (1972), 92 S. Ct. 2182 B followed Part with a discussion of the forth,

framework we adopted C, Bruce. We then set in Part a explanation test, detailed of our including revised several important test, rules for applying that after provide which we summary and an outline of the revised speedy trial test in Part D. Lastly, E, specify Part we pertaining timing rules to the of a motion to dismiss on speedy grounds and the corresponding ruling by the trial cotut.

A. The Wingo Barker v. Balancing Test A criminal right defendant’s to speedy guaranteed by trial is Sixth and Fourteenth Amendments to the United States Constitution II, and Article Section 24 of the Montana Klopfer Constitution. v. Carolina, 213, 222-26, North 386 U.S. (1967); 87 S. Ct. 993-95 II, Barker, Mont. Const. art. 24. In the United Supreme § States Court set approach forth the under which the Sixth right Amendment to a speedy trial is to Specifically, be evaluated. adopted Corut “a balancing test, in which the conduct of prosecution both the and the defendant are weighed.” Barker, 407 U.S. at 92 S. Ct. at 2191-92. Acknowledging approach “necessarily that such an compels courts to approach speedy basis,” trial cases on an ad hoc the Court identified “some of the factors which courts should determining assess in (1) particular whether a deprived defendant has been right”: ofhis (3) (2) length delay, delay, the reason for the the defendant’s (4) trial, assertion right to a prejudice Barker, delay. 530, 92 defendant as a result of the 407 U.S. S. Ct. at 2192; Doggett States, see also v. United 505 U.S. 112 S. Ct. (1992) 2686, 2690 (articulating separate inquiries: these factors as four “whether uncommonly long, before trial was whether government delay, or the criminal defendant is more to blame for that whether, course, in due the defendant asserted his to a result”). delay’s and whether he suffered as the explained Court that “these qualities”; factors have no talismanic together and must considered with rather, “they are related factors Barker, 407 U.S. at may be relevant.” such other circumstances 92 S. Ct. at 2193. (1973), Sanders, we noted In State v. factors” considering “[essentially the same this Court had been Sanders, 516 trial claims. 163 Mont. analyzing speedy

when 382, 388, Crist, Mont. 528 P.2d 375; v. 165 Fitzpatrick P.2d at accord (“The (1974) this Court Supreme States Court and United a trial is test to determine whether essentially the same adopted have ”). Steward, P.2d 178 Indeed, 168 Mont. 543 in State v. ‘speedy/ factors in (1975), adopted had the Barker explained that this Court we Court, P.2d 554 151 Mont. 438 ex rel. Thomas v. District State in United States v. (1968), listing an earlier of those factors based on (2nd 1964). Steward, 168 Mont. at Simmons, Cir. See 338 F.2d 804 decision, merely Thus, Barker we following the 543 P.2d at 181. factors into clarification of the four Supreme Court’s incorporated Sanders, at 213- e.g. 163 Mont. existing analytical framework. See our 388-90, P.2d at 375-76; 165 Mont. at 528 Fitzpatrick, P.2d at 516 Keller, 181-83; 389-94, 543 P.2d at State v. 1326; Steward, Mont. at 168 1013, 1016-19 (1976); 372, 377-81, see also 553 P.2d (1978). Tiedemann, Mont. Test B. The Bruce decided, that the we observed Twenty-six years after Barker “seemingly had, unfortunately, led to balancing test

four-factor Bruce, Bruce, 21-49 20; also ¶¶ nationwide. see ¶ inconsistent results” in our of the test own applications and inconsistent (identifying varied caselaw). of Therefore, dispositions more consistent seeking to achieve Montana, a more structured we articulated trial claims speedy below, we retained claims. As described analyzing method for such bright- Barker, incorporated objective, but we four factors identified them, modified the function of and we line criteria into three balancing. factor in the overall plays each importance (the explained we length delay), of the we Under Factor One of delay from the date length to consider would continue filed) until the defendant’s charges were (e.g., when the accusation for determining there is basis of whether purpose date “for the trial Bruce, 55. We then established analysis.” conducting ¶ trial necessary length delay-as “the fault for the days-irrespective of Bruce, If less 55. analysis.” ¶ further trigger of time to analysis then further days passed, have than 200 criterion; a threshold Factor One as we fashioned unnecessary. however, we indicated length would also be Bruce, considered later analysis. in the See 55. ¶ (the delay), Under Factor Two reason we retained our approach assigning of responsibility or “fault” for the periods various Bruce, However, to either the State or the defendant. 56. burden-shifting then created a days scheme based on the number of delay attributable to the Specifically, State. we stated that if less than days State, are then attributable the defendant has (under Four) the burden Factor to demonstrate that he or she has been Bruce, prejudiced by delay. Conversely, days 56. if 275 or more State, are attributable to the then a presumption rebuttable arises and the State has the burden to overcome this presumption by demonstrating that the defendant has not been prejudiced by delay. Bruce, explained We ¶¶ “ presumption rebuttable of prejudice ‘mandates the [that conclusion the defendant prejudiced] has been contradictory the absence of ” Bruce, evidence.’ (quoting 22A C.J.S. Criminal Law 695 § (1985)); Bruce, see also 21-39 (discussing and reaffirming ¶¶ presumption). Finally, we stated that if the State overcomes the presumption of prejudice, then the burden shifts to the defendant demonstrate that he or she has prejudiced by delay, been and the district weighs court then the party. Bruce, evidence of each 56. ¶ (whether Next, under Factor Three ¶25 the defendant timely asserted right trial), the to speedy a right we stated that “if the speedy to trial is any prior invoked at time commencement trial, to the of either demanding trial, a speedy or dismiss moving to for failure to provide trial, a speedy the third prong Bruce, is satisfied.” 57. ¶ Finally, under Factor (prejudice defendant), Four we indicated that we would continue to consider pretrial incarceration, anxiety defendant, and concern to the impairment and of the defense. Bruce, 58, noted, however, 68. We ¶¶ that “the importance of this factor and the degree prejudice speedy to establish denial of trial vary will upon considerations, based other length delay such as the Bruce, and the delay.” reason for ¶ (1) sum, the Bruce a requires framework determination that length

the the from the date of accusation until (2) defendant’s trial date is at days, least 200 a determination of who (the defendant) has the burden prejudice to demonstrate or to (the State) (3) Four, demonstrate lack thereof under Factor notation of whether the defendant asserted the a right speedy prior to trial to (4) trial, the commencement of proof and an assessment of the offered (to (to by the prove prejudice) defendant or the disprove State 454 incarceration, anxiety and concern to

prejudice) pretrial based on defendant, defense, impairment with due consideration for Although length delay. and the reason for these modifications speedy our trial test resulted in a more structured follow, recognize, analytical approach, we reasons which analysis considerably method has from the actual strayed our balancing approach necessary envisioned in Barker and that it is existing analytical reexamine features of framework. certain our First, analysis Ariegwe and the State refer to trial speedy both balancing Bruce factors.” We used under as “a of four too have 224, 13, Hardaway, MT e.g. characterization. See State v. 1998 290 ¶ (“[T]his 516, 125, 13, 966 recently P.2d Court ¶ Mont. 13 established ¶ [Bruce].”); Johnson, 180, v. 2000 MT four-part balancing a test in State (“We 14, 14, 654, 367, analyze 4 14 and balance P.3d ¶ ¶ ¶ factors.”); Blair, MT 324 each of the four State v. 2004 Mont. ¶ (“[C]ourts engage must in a difficult and P.3d ¶ ¶ Doyle, MT balancing process.”); sensitive ¶ (‘We lengthy in a engage Mont. Yet, approach adopted Bruce balancing process.”). difficult a of all four Factor One actually “balancing” does not involve factors. criterion; Factor the burden of is a threshold Two determines who has Four; Three, right if the under Factor Factor satisfied proof at any prior to a trial is invoked time the commencement of “non-weighted, you ‘either asserted properly characterized as a ” Bruce, J., you criterion, specially right (Leaphart, did not’ concurring); prejudice Four an assessment of and Factor involves Factor the defendant to the burden established under Two. pursuant analytical closely four-step approach approximates This more Moreover, it balancing than it does a four-factor test. progression (Factor analysis to the issue of channels focus of (Factor Two) any Four), reasons for the efforts rendering the (Factor Three) along relatively by the defendant to move case inconsequential. analysis in the case hand The District Court’s days of delay The court that more than 200 point.

illustrates this noted occurred, days least 275 of that were attributable had that at State, his Ariegwe had asserted and that Hence, focused on the of trial. court commencement prior had met ultimately that the State its prejudice, concluding issue of not demonstrating Ariegwe prejudiced had been burden right denied to a had not been his and that he therefore indeed, dispositive; Four, thus, have been trial. Factor seems to analysis “balancing” against court’s does not reflect a of Factor Four factors, Ariegwe’s the three other thus contention on prompting appeal factor, “gave weight the District Court undue to this exclusion or minimization of the other factors.” Yet, the District approach analytical Court’s is consistent with the progression Bruce, set forth in 55-58 of which contradicts the notion ¶¶ analysis that speedy balancing under Bruce “a involves of four However, given right factors.” that the to a speedy “necessarily trial is “depends upon circumstances,” Ewell, relative” and United States v. (1966) (internal 116, 120, 773, 383 U.S. 86 S. Ct. quotation marks omitted), we balancing believe that an actual of all four factors is and, fact, preferred likely produce is more an accurate assessment of a trial claim than an approach is under which three of the function, factors essentially, preludes as mere to the fourth. Second, based on the presumption rebuttable of prejudice

articulated in Bruce and restated in subsequent several of our precedents, Ariegwe suggests that once the State days has caused 275 delay, the defendant need not come any proof forward with that he or she prejudiced has been as a result of the unless the State Blair, 26, rebuts the presumption prejudice (citing Johnson, 17, ¶ ¶ 56). Bruce, This interpretation presumption ¶ is consistent explanation with our presumptions of rebuttable in Bruce: “A presumption ... probative attaches definitive value to certain conclusive, facts. If the presumption is it particular mandates a conclusion; rebuttable, if it is it mandates the conclusion in the contradictory absence evidence.” added) Bruce, 33 (ellipsis original, emphasis (quoting ¶ 22A C.J.S. (1985)); Criminal Law see also State v. Kipp, § 1999 MT ¶ (“[O]nce 399, 295 Mont. 984 P.2d presumption ¶ ¶ attached, it was not incumbent on the defendant prove prejudice. It was incumbent on the State to disprove prejudice. Because it did not so, presumption Haser, do of prejudice prevails.”); State v. 2001 MT (“[O]nce ¶ days, attributable to the State exceeds . . . Yet,

presumed.”). presuming prejudice nothing based on more than the view, contrary not, State’s failure to prove our an accurate basis on which to evaluate a trial claim. Lastly, long we held in Bruce that so as the defendant asserts the to a speedy prior to the commencement of he or she prong analysis

has satisfied the third of the Barker test and “further Bruce, of that prong only unnecessary, inappropriate.” is not but below, however, For reasons detail longer we are no of the view “unnecessary” and Factor Three is analysis under that further “inappropriate.” process to revisit the opportunity take this Accordingly, we

¶33 this State by the courts of analyzed are to be trial claims speedy which respects. significant in several analytical framework to revise our Trial Test Speedy C. Our Revised is “the outset, balancing approach Barker’s we reaffirm that At the ¶34 speedy trial judge available to complete standard correct and most 394, 398, Tiedemann, questions.” (1978). Court indicated Furthermore, although Supreme analyzing a assess when which courts should that the factors Barker Barker, 407 ways, in different might expressed trial claim speedy suggested by the find the four factors Ct. at 92 S. U.S. delay, the reason for the delay, length Court-the Supreme for be suitable to the defendant-to right, assertion of analysis. trial speedy our method of for general approach However, guided by Barker’s while we are grounded is claims, test we articulate below trial

analyzing speedy Constitution, provides II, 24 of the Montana in Article Section of the Sixth independent that guarantee a Constitution. See the United States Amendments to Fourteenth Hosp., 224 Mont. v. Montana Deaconess Buckman (1986) (“Because the floor establishes the federal constitution 380, 384 our may action violate rights, state of constitutional apex and not any federal constitutional Constitution, not violate but Montana Barker’s meaning” to may “give our own Accordingly, we guarantee.”). 155, 158, 689 P.2d Britton, 213 Mont. v. four factors. State (1984). factor under each is to make inquiries a court now detail We balancing test. Delay Length of the One: The

1. Factor Factor One respect to Court stated with Barker, Supreme In prejudicial, presumptively which is there is some “[u]ntil into the go factors that into the other necessity inquiry is no there Doggett v. at 2192. Barker, 92 S. Ct. U.S. at balance.” however, (1992), States, 112 S. Ct. 505 U.S. United actually enquiry.” a double One “is that Factor clarified Supreme Court explained The Court at 2690. 112 S. Ct. 505 U.S. at Doggett, follows: allege accused must analysis, an trigger

Simply crossed the trial has accusation and between the interval prejudicial” “presumptively from dividing ordinary threshold since, definition, delay, complain he cannot has, fact, government has denied him a trial if it “speedy” prosecuted customary promptness. his case with If the accused showing, consider, makes this the court must then as one factor several, among beyond the extent to which the stretches bare minimum trigger judicial needed to examination of the claim. enquiry significant This latter to the speedy trial analysis presumption because . . . the that pretrial delay has prejudiced the accused intensifies over time. (citations omitted). 651-52, 112

Doggett, 505 U.S. at S. Ct. at 2690-91 Thus, under the Supreme approach, Court’s the first inquiry under Factor One-whether trial analysis has been triggered-is matter, a threshold inquiry while second under Factor delay One-the extent to which the beyond trigger stretches the date-is weighed a matter to be in balancing. the overall agree We with this approach and adopt it. consistent with explained the distinction Doggett, and clarity for the sake of analysis, trial courts henceforth must length first, address the of the clearly, and as then, a threshold matter speedy and if the triggered, trial test has been a weighed factor to be in the overall balancing. 200-Day i. The Threshold Accordingly, question the first to be answered every with

speedy trial claim is whether the interval between accusation and trial is trigger sufficient to balancing four-factor test. This interval is measured regard Bruce, without to fault delay. 55; for the Collier, (1996). 46, 54, 376, 277 Mont. 919 P.2d As for what constitutes a sufficient interval between accusation trial, the Supreme Court stated in Barker that “because of the imprecision right speedy length of that will [trigger speedy a trial analysis] necessarily dependent upon the peculiar Barker, 530-31, circumstances of the case.” 407 U.S. at However, S. Ct. at Supreme 2192. Court also cautioned that “[n]othing we have said interpreted should be as disapproving a presumptive adopted by rule a court in supervisory the exercise of its powers which establishes a fixed period time within which cases must normally brought.” Barker, 29, 407 U.S. at 530 n. 92 S. Ct. at 2192 n. 29. Bruce, days necessary length we established 200 as “the of Bruce,

time trigger speedy analysis.” further 55. arrived We at this varying lengths number based on the we had (or insufficient) Bruce, considered prior sufficient in our decisions. See 22-23. length appropriate, given We believe this of time is still ¶¶ the State and certain throughout court dockets reality of crowded motions, discovery; pretrial delays, reciprocal such as pretrial

built-in (some mandated); statutorily are hearings of which appearances, analyses tests and obtaining the results of investigation; defense true that the amount the crime lab. It is of evidence from charged complexity customary is also a function offense(s). However, Barker, for at 92 S. Ct. at 2192. See 407 U.S. date, address the trigger we will retaining bright-line a the sake (the offense(s) under Factor Two reasons charged complexity of 200-day speedy threshold: A reaffirm the delay). Accordingly, if the interval between merit as a matter of law trial claim lacks of fault (again, irrespective days is less than 200 accusation and trial delay).2 for the in State run, we stated begins trial clock As for when the right MT 135, 310 172, 49 “[t]he P.3d Longhorn,

v. Mont. an when he becomes trial commences of a defendant detail concept greater Longhorn, explained accused.” We (1981): Larson, v. in State 191 Mont. by “accused” guaranteed to an to a trial is Consequently, constitutions. and United States

Montana a criminal guarantee is activated when afforded protection have persons to those who begun and extends prosecution has prosecution of that charged or the course formally accused been arrest, filing complaint, that accusation be whether or information. by indictment Morris, v. accord State 957-58;

Larson, 623 P.2d at 191 Mont. Dillingham v. see also (1988); (1975) States, (per 303-04 96 S. Ct. United 423 U.S. curiam) (“ else the or information or indictment ‘[I]t is either a formal to answer a criminal holding imposed arrest actual restraints trial speedy protections of engage particular charge that ” Marion, States v. (quoting United Amendment.’ of the Sixth provision (1971)). the rule set 455, reaffirm 307, 320, 463 We 92 S. Ct. 404 U.S. to run at the begins trial clock in Larson and add speedy that the forth occurrences.3 of the enumerated earliest

2 46-13-401(2), MCA. apply See § misdemeanor cases. rule does not This 3 “arrest, filing involving logically to situations not extended This rule must be (where Bruce, e.g. Bruce’s 55¶ See complaint, or information.” or . .. indictment of city de appeal for a trial allegedly from court speedy on his right trial was violated to a appeal of court, began the notice speedy on the date when trial clock novo district

459 that the interval between accusation Lastly, repeating it bears speedy trial not to the date on which the accused’s and trial runs but, rather, trial to the scheduled is considered the court motion entered, date guilty is whichever plea date or the date on which a of 1999 MT Kipp, of of the case. State v. represents disposition the date 733, 9; 197, 9, 295 399, 9, 984 Ellenburg, State v. 2000 Mont. P.2d ¶ ¶ ¶ 16, 801, 16; 232, 16, 289, P.3d see also State v. MT 301 Mont. 8 ¶ ¶ ¶ 121, 15, 249, 15, 532, MT 332 Mont. 137 P.3d 15 Mooney, ¶ 2006 ¶ ¶ sentencing). (holding speedy applies through that the to a Delay beyond ii. The Extent to which the Stretches Trigger Date Supreme Doggett Court stated in that if the accused shows

that “the interval accusation and trial has crossed the between dividing ordinary delay,” threshold from ‘presumptively prejudicial’ consider, several, among “the court must then as factor one extent beyond the [trigger Doggett, date].” which stretches 505 651-52, significance U.S. at 112 S. Ct. at 2690-91. The this inquiry, of the Supreme explained, presumption pretrial Court is that “the prejudiced Doggett, has the accused intensifies over time.” 505 652, U.S. at 112 S. Ct. at 2691. Court, Like the Supreme recognized this Court has that “a

sufficient to further trigger analysis presumption also creates a of Bruce, this, however, prejudice.” Beyond 24. our approach has ¶ diverged substantially from that of the Cotut. Whereas the Supreme Supreme Court characterizes the presumption prejudice of time,” 652, 112 something Doggett, which “intensifies over 505 atU.S. 2691, S. Ct. at bright-line pursuant this Court has followed a rule prejudice presumed presumed is either or not and the burden “shifts” presenting evidence on the issue of from the State, Bruce, accused to the see intend Because we ¶¶ adopt Doggett’s played by herein to articulation of the role Ray, 171, 22, 316 354, 22, 71 city filed); State v. ¶ ¶ from court was 2003 MT Mont. P.3d Bruce); Stanko, 1247, 323, 28, (discussing aspect State v. MT 292 ¶ ¶ (the 214, 28, 974 1139, began ¶ Mont. P.2d trial clock on the date the notice ¶ Price, 13, 306 appeal justice filed); State v. ¶ from court was 2001 MT Mont. (“When Court, 13, 34 appeal the case a trial after an from this ¶ ¶ P.3d involves length in the Court is measured from the time remittitur is filed District Olmsted, 66, 61, 968 date.”); 1998 MT Mont. until the trial (“[W]hen declared, begins a mistrial trial clock is reset Daniels, 348-49, mistrial.”); v. State run from the date of the (1991) (affirming determination the district court’s youth court clock started when the defendant became an “accused” proceeding, the civil subject jurisdiction defendant” not when he became “criminal there). charge district court after the was transferred 460

presumption prejudice balancing, explain of in the overall we shall presumption operated past why detail how that in our cases and we prejudice practical now conclude that the of serves a more presumption purpose approach Doggett. under the set forth in starting of point for this discussion is Barker’s articulation “[u]ntil statement particular, Supreme Factor One-in Court’s no delay presumptively prejudicial, there is some which is there is balance,” necessity inquiry go into the other factors that into the added). Barker, 530, 92 (emphasis 407 U.S. at S. Ct. at 2192 Consistent language, long delay the rule that a with this Court followed trigger impose sufficient to trial test is also sufficient to on showing the State the the accused has not been burden prejudiced by presumption prejudice or to create a that the Indeed, pre-Bruce point State must then rebut. our cases on this are legion.4 Bruce, approach by establishing 275-day modified our rule, presumption

rule. Pursuant to this arises not on but, rather, 200-day trigger days date when 275 are Bruce, an attributable to the State. See there is interval balancing triggered-between days after the test has been 200 of total 4 Steward, 389, 543 178, 181 e.g. 385, (1975); See State v. 168 Mont. P.2d State v. Keller, 372, 377, 553 1013, 1017 (1976); 385, Cassidy, 176 Mont. 170 Mont. P.2d State v. 389-90, 735, (1978); Tiedemann, 394, 399, Mont. 584 P.2d 578 P.2d 738 State v. 178 1284, 1288 Puzio, 163, 166, 595 1163, 1165 (1979); (1978); State State v. 182 Mont. P.2d 423, 433-34, 603 661, 667 (1979); Worden, Harvey, State v. 188 Mont. v. 94, 184 Mont. P.2d 185, 186 486, 489-90, 632 712, 96-97, (1980); Fife, P.2d 611 P.2d State v. 193 Mont. (1981); 252, 255-56, 851, (1982); Ackley, State 714-15 State v. 201 Mont. 653 P.2d 853 473, 479, 481, 494, 497-98, 499 (1982); Kelly, Bailey, 201 655 P.2d State v. 203 v. Mont. P.2d Mont. 434, 441-42, 443, 691 159, 160, 661 26, 27 (1983); Chavez, P.2d State 213 Mont. v. 189, 192, 466, 1365, (1984); Cutner, 1370 State v. 214 Mont. 692 P.2d 467-68 (1984); Haskins, 199, 202, 119, 121 (1986); Tilly, v. 220 Mont. 714 P.2d State v. State Wombolt, 400, 138, 140-41, 737 484, 486 (1987); 227 Mont. 402-03, (1988); P.2d State v. 231 Mont. 522, 527, 1271, 1275 330, 331 (1988); Bartnes, State v. 234 Mont. 764 P.2d 753 P.2d Curtis, 288, 299, 306, (1990); Sunford, State v. State v. 241 Mont. 787 P.2d 313 1084, 1087 (1990); Hall, 161, 165, 411, 416, 244 Mont. 797 244 Mont. 796 P.2d State v. 67, 70-71, 809 566, 568 (1991); 183, 186 (1990); Heffernan, State v. 248 Mont. P.2d P.2d State v. (1994); Matthews, Eklund, 420, 424, 323, P.2d 326 State v. 271 264 Mont. 872 Collier, 46, 54-55, 24, 28, 285, (1995); 287 State v. 277 Mont. 919 P.2d Mont. 894 P.2d 1134, 1138 376, 382 313, 320, 922 (1996); (1996); Tweedy, P.2d State State v. 277 Mont. 437, 449-50, 928 P.2d 169, 176-77 (1996); Keating, Williams-Rusch, State v. v. 279 Mont. Crist, 382, 463, 251, (1997); 471, Fitzpatrick v. 165 Mont. 285 Mont. 388, 949 P.2d 256 cf. 196, (1974); Court, 1322, 1326 170 Mont. 528 P.2d State ex rel. v. District Sanford 77, 85, 199-200, 1005, 1007 (1976); Carden, P.2d State 173 Mont. 566 551 P.2d v. (1979); 334, 338, (1977); Freeman, P.2d 371 State v. v. 183 Mont. State 1256, 1261 (1984); Palmer, Britton, 155, 162, v. 223 Mont. Mont. 689 P.2d State 490, 493, 617, 619 27-28, 723 (1987); (1986); Waters, v. 228 Mont. 743 P.2d P.2d State (1993); Thompson, State v. 865 P.2d 1134-35 State v. Mont. Weeks, Stewart, 525, 529-30, 881 629, 632 (1994); 270 Mont. (1995). State-during attributable to days and 275 arises, it However, presumption once the does not exist. presumption by the prejudiced the accused has been the conclusion that mandates presented by the by contradictory evidence delay unless it is overcome words, the accused need not come Bruce, 33. In other State. See and until the State prejudice of unless with evidence forward the presumption. overcomes scrutiny analysis Doggett, the Court’s Upon Supreme further of

¶48 the of approaches presumption which our premise upon the longer compelling. is no Barker’s reference prejudice rested the “presumptively prejudicial” delay place was not meant burden entirely the State or respect prejudice of to the issue of on proof with contrary. evidence to the finding prejudice to mandate a of absent Indeed, that “as the term is Supreme Doggett the Court clarified context, not ‘presumptive prejudice’ used in this threshold does necessarily probability prejudice; simply indicate a statistical of it point delay enough marks the at which courts deem the unreasonable 1, 112 trigger enquiry.” Doggett, the Barker 505 U.S. at 652 n. S. Ct. added). at 2691 n. 1 (emphasis mean, however, presumptive prejudice plays This does not that no analysis. contrary,

further role in the To the a balancing at the the test presumption prejudice point of arises when that triggered; simply misinterpreted is our cases the function of presumption establishing bright-line under Barker. Rather than proving at the the of point time which accused is relieved of burden prejudice disproving prejudice, and the State takes on the burden of significance intensifying the in its effect: the further presumption’s is date, beyond trigger likely the stretches the the more the S. Ct. at prejudiced Doggett, has the accused. See 505 U.S. (“[T]he delay has presumption pretrial prejudiced that time.”). respect, length accused intensifies over In this of (Factor One) (Factor Four) necessary showing prejudice and the of are inversely delay gets longer, quantum proof related: as the of that decreases, may expected quantum proof be of the accused while the of intensifying may expected that be of the State increases. simultaneously presumption prejudice suggests nature of the of (the State’s) (the accused’s) increasing decreasing burdens under Factor Four. propriety considered the of such an We have not heretofore trial test. We do so now and

approach purposes for of our own conclude, follow, intensifying an the reasons which practical application presumptive a more of presumption prejudice of is bright-line 275-day than is Bruce’s rule. prejudice is not to thing, point presumption prejudice For one coming prejudice; relieve the accused of forward with evidence of rather, quantum it is an indicator of the of evidence simply required: date, beyond trigger the less the extends the smaller the and, thus, presumption prejudice greater the accused’s burden (and prejudice to show the smaller the State’s concomitant burden to sure, disprove prejudice). point To be there is a in time at which prejudice may presumed proof without affirmative thereof. See (“[W]e Doggett, generally 505 U.S. at 112 S. Ct. at 2693 have to recognize delay presumptively compromises excessive or, reliability ways prove of a trial in that neither can for that party matter, However, identify.”). point we do not believe that simply responsible-perhaps reached because the State is due to beyond days control-for 275 prosecutor’s institutional forces delay. Furthermore, presuming prejudice merely because the State has always not

presented contrary justified insufficient evidence to the would, cases, provide in some the accused with an undeserved Indeed, finding nothing windfall. based on more than proof provide failure of does not an accurate basis on which to State’s weigh against Factor Four the other three factors in the overall balancing. regard, generally that the accused has better In this we note showing

access than does the State to evidence whether he or she has incarceration, oppressive pretrial unduly prolonged anxiety suffered concern, ability prepare and his or her to an impairment of State, contrast, having position effective defense. The is in the to negative-namely, a that presumption proving overcome a being interests in to trial have not been brought promptly accused’s impaired-a and that the defense has not been task that we infringed State recognized impossible. e.g. have in some instances is all but See (“From (1997) 251, 463, 476, P.2d 259 Keating, v. 285 Mont. 949 virtually impossible it for the State to practical standpoint, would be allegedly impaired from an defense without presumed prejudice rebut impairment resulting in showing by the defendant of actual some Bruce, a defendant’s state (noting proof “that direct prejudice.”); ¶ ability and that the State’s to may always possible of mind not be may vary from case to the nature of the defendant’s defense anticipate 63, 32, case”); Haser, Mont. 20 P.3d State v. 2001 MT ¶ ¶ (“[S]ince 100, prove that nearly impossible it is for the State 32¶ exist, to show a lack of anxiety and concern do not the State’s burden more than considerably lighter in the absence of anxiety becomes (internal omitted)); marks anxiety.” quotation marginal evidence 16, 1092, Boese, 2001 MT 175, 16, 169, 30 P.3d State v. 306 Mont. ¶ ¶ difficult to one’s defense is the most (observing “impairment that ¶ and, conversely, “prejudice that prejudice prove” form of added, disprove” (emphasis quotation internal marks is difficult omitted)). tending to might present It is true that the State evidence instance, For if the prejudice indirectly. the absence of

establish during delay suggest that he or periods accused’s own actions trial, actually brought then it seems less she did not want e.g. See State likely actually prejudiced by delay. that he or she was Keyes, v. 337, 18, 147, 18, 443, 2000 MT 303 Mont. 15 P.3d ¶ ¶ ¶ (observing Keyes jurisdiction, that had fled from Montana’s had and, fugitive justice nearly years, during remained a from two time, absolutely obtaining had demonstrated no interest witnesses, trial, advancing legal or preserving evidence his defenses). Or, if previously exculpatory unknown or unavailable light dining pendency evidence came to then it seems State plausible advantage. worked to the accused’s Cf. Stuart, v. 189, 2001 MT 306 Mont. (noting “delay would have more-not less-time to locate provided witnesses”). [exculpatory] Alternatively, might State demonstrate potential that all of the evidence in the case has been preserved potential testify that all of the accused’s are witnesses available to trial and possess adequate question, memories of events suggests ability present that the accused’s an effective defense has Bowser, e.g. See 22-23, impaired. not been 2005 MT ¶¶ 22-23, 123 22-23. ¶¶ ¶¶ Nevertheless, requiring disprove the State to the considerations up prejudice inquiry that make under Factor Four in order to is, prejudice overcome an as a presumption otherwise mandated general rule, accuracy impractical. importantly, More overall is enhanced when both the accused and the State balancing present solely neither relies on the party evidence on the issue of (the accused) (the State) of the presumption existence or nonexistence unusually long delay). prejudice (except, perhaps, of cases of Bruce’s reasons, retaining 275-day rule For these we are not Instead, presumption pretrial that in our trial framework. date 200-day trigger exists as of the delay prejudiced has the accused (at minimal) it is and intensifies analysis point for trial (escalates) Furthermore, time. come forward the accused should over come tending prejudice,

with evidence to establish State should tending contrary, and the court forward with evidence establish (or thereof) weigh party’s pursuant must each evidence lack discussed the State’s failure to make a principles above. showing prejudice weighs heavily against of no more it in persuasive balancing delay long, the overall when the is but such failure is of little relatively Likewise, weight persuasive where the is brief. showing prejudice by important of the defendant is more where the important long. is short and less where the Two, proceeding aspects Before to Factor three additional of our and, therefore, require Bruce decision on the instant discussion bear First, presumption attention. we discussed “the rebuttable of Bruce, prejudice” length identifying in Bruce. See 21-39. After ¶¶ presuming prejudice, acknowledging reasons after Supreme proof particularized Court’s observations that affirmative of claim, Bruce, prejudice every speedy is not essential to see 34- ¶¶ presumption prejudice we concluded “that the rebuttable only policy, our earlier cases is not the better but public established added). Bruce, constitutionally required,” (emphasis it is 39¶ opinion, point Later in the we articulated “the at which and the presumption prejudice circumstances under which the will attach’-namely, days when 275 or more are attributable to the Bruce, State. See ¶¶ Although retaining 275-day we are not Bruce’s rule in our revised framework, overruling an implicit we do not intend this as presumption prejudice

of our statement the rebuttable Rather, only conclude that Bruce’s “constitutionally required.” we presumption constitutionally construct of that is neither particular required supported by Supreme precedents nor Court from which above, it derives. For the reasons set forth purportedly mutually does not establish exclusive presumption prejudice but, instead, determines proving disproving prejudice burdens of make under Factor Four. necessary showings parties both must the accused and the State should come interpretation, Under this both issue; presumption “the forward with evidence on this but because time,” delay has the accused intensifies over pretrial prejudiced necessary showing by Doggett, 505 U.S. at S. Ct. at decreases, necessary and the particularized prejudice the accused of increases, correspondingly with showing by the State of no delay. length (which Second, point “[a]t in Bruce that some time opined we consideration). passage of time must leave for future . . the mere

465 necessarily conclusively be considered sufficient to establish denial of Bruce, Yet, right (citing Doggett generally). the trial.” 56 Doggett the preclude attempting does not State from to rebut the (see presumption prejudice, presumption of as would a conclusive 33). Bruce, Indeed, reaching Doggett the conclusion that was relief, Supreme specifically entitled to Court noted government “persuasively had not presumption rebutted” 658, 112 prejudice Doggett, that case. See 505 U.S. at S. Ct. at 2694. Furthermore, nothing Doggett supports proposition that the passage may mere of time right. be sufficient to establish denial passage may give While the mere of time rise to a presumption of prejudice compelling so that the any showing accused need not make Four, under Factor the Supreme Court clarified that such presumptive prejudice carry “cannot alone a Sixth Amendment claim without regard 655-56, to the other Barker criteria.” Doggett, 505 U.S. at 112 Indeed, S. Ct. at 2693. the Supreme generally Court stated that a fail, speedy trial claim would great delay,” “however if the government had pursued diligence the accused with reasonable the accused specific could not show prejudice to his or her defense as a delay. Doggett, 656, 112 result of the Thus, 505 U.S. at S. Ct. at 2693. it was a diligence combination of lack of on the part government delay and excessive Supreme led the Court to conclude that Doggett entitled Doggett, 656-58, to relief. See 505 U.S. at 112 reason, S. Ct. at 2693-94. For this passage it is doubtful that the mere “conclusively” of time could establish that the accused has been denied his or her to a trial. Lastly, significance in our discussion of the of Factor One in the balancing, focused, far,

overall we relationship have thus on the (Factor One) (Factor length between the of the delay prejudice Four), explaining delay that the further the beyond stretches the 200- day date, trigger likely delay the more has the accused. prejudiced say, however, This is not to that the post-trigger-date extent of the delay only Indeed, bears on Factor Four. the State’s burden under Factor provide justifications Two to valid for the likewise ‘“ ’ ” Bruce, length delay.” “increases with the 26 (quoting State v. Steward, 385, 389, 543 178, 181 (1975), 168 quoting Mont. in turn (D.C. 1972)). Rucker, United States v. 464 F.2d Cir. In other words, date, beyond 200-day trigger the further the stretches compelling justifications the more the State’s for the must be. (“[T]he e.g. Doggett, weight See at U.S. S. Ct. assign negligence bringing compounds [in trial] to official an accused to Thus, presumption evidentiary prejudice grows. over time as the our inversely its with negligence such varies toleration (“When Rucker, F.2d at 825 protractedness.”); half, case, must as in this the Government year a and a approaches convincingly outweighs justification provide defendant.”); assumed to have been caused normally which can (1993) 383-84, Barker, (“Because either compelling unable to demonstrate the State was diligently it lengthy delay, or that to warrant such circumstances that, in we conclude bringing Barker’s case pursued State.”). instance, heavily against the delay weighs One, Factor inquiries under up to sum the the interval between to be answered is whether question the first fault for the days (irrespective of and trial is at least 200 accusation claim unnecessary and the not, analysis further is delay). If then then the four- days, is at least 200 denied. But if the interval should be with a proceed and the court must balancing triggered test is factor One, Factor inquiry under analysis. respect to the second full With delay (again, irrespective the extent to which court must consider The 200-day trigger date. delay) beyond stretches of fault for the first, presumption twofold: inquiry this latter significance of time, and the accused intensifies over prejudiced has pretrial justify Factor Two to second, the State’s under burden length delay. likewise increases with the Delay Reasons for the 2. Factor Two: The court first Two, under this factor the now to Factor Turning Because bringing accused to trial. period identifies each any actions does not consider “delay,” the court question is one of result in a which do not State or the accused taken of the trial date. postponement delay to the period each Second, the court attributes bring duty has no regard, “[a] defendant party. In this

appropriate 527, Barker, at 92 duty.” 407 U.S. trial; has that himself to the State 356, (footnote Blair, omitted); v. 2004 MT accord State at 2190 S. Ct. (“[A] 538, is under 444, 23, 103 23 defendant 23, ¶ 324 Mont. ¶ ¶ against him or of the case diligent prosecution obligation no to ensure him.”); timely prosecute dismissal for failure the State avoid help 831, 491, 26, 26 26, A.G., 2002 MT In re (“[I]t prosecution.”). towards to move the case to the State up swift bringing interest Furthermore, “society particular has a the ones who should are society’s representatives prosecutions, 2190; see S. Ct. at Barker, U.S. at that interest.” protect (discussing “[the] 519-21, 92 Ct. at 2186-87 Barker, S. 407 U.S. also from, providing speedy separate societal interest which exists accused”). to, opposition and at times in the interests Accordingly, the State bears the of explaining pretrial burden delays. The Ninth Circuit reached the in McNeely same conclusion v. (9th

Blanas, 2003), reasoning 336 F.3d 822 Cir. as follows: Supreme Court has repeatedly prosecutor held that the and the obligation court have an affirmative constitutional try timely duty defendant in a manner and that this requires a faith, good diligent bring effort to him quickly. to trial See Moore Arizona, (1973) 25, 26, v. 414 U.S. 94 S.Ct. 38 L.Ed.2d 183 (stating that courts inquire “discharge[d] should whether the state its duty diligent, ‘constitutional to make a good-faith effort to ” bring [the defendant (quoting Hooey, trial]’ Smith v. 393 U.S. 374, 384, (1969))); 89 S.Ct. Dickey Florida, L.Ed.2d 607 v. (1970) (“[T]he

398 U.S. 90 S.Ct. 26 L.Ed.2d 26 a prompt inquiry into criminal charges is fundamental and the trial.”). duty of the charging authority provide is to a prompt have, thus, Numerous lower courts held prosecution that the bears the burden of explaining delay bringing an accused to (6th e.g., Brown, trial. See United States v. 169 F.3d Cir. 1999) (stating government had proving the burden of defendant actually culpable in causing delay by evading indictment, arrest on the or was aware of the issuance of the intentionally indictment and hid himself from law enforcement (6th agents); Graham, United v. States 128 F.3d Cir. 1997) (holding that the state has the explain pretrial burden to (7th 1979) Morris, delay); Jones v. (finding 590 F.2d Cir. delay that where reason for 23-month clearly appear did not record, the “the any delay weigh absence of reason for the should (8th against state”); Wyrick, 1387, 1390 the Morris v. 516 F.2d Cir. 1975) (stating that where the record does not demonstrate reason delay for the provided and the state has no reasonable explanation, justifiable the court will “assume that there is no weigh heavily state”); reason and this against factor the Georgiadis v. Superintendent, Facility, Eastern Correctional 450 (2d 1978) 975, (S.D.N.Y.), F.Supp. aff'd, 980 591 F.2d 1330 Cir. (stating that where actions of the defendant do account not for period, responsibility delays entire “the for these unexplained state”). Although explicitly should rest with the Barker did not identify the proof pretrial delay, burden of for it refers to the delay government assigns reason for the as “the reason the to hold 531, 92 2182. We likewise delay.” 407 U.S. at S.Ct. justify the explaining pretrial the burden of prosecution the bears delays. (alterations Any delay not original). at 826-27

McNeely, 336 F.3d affirmatively the accused or by have been caused demonstrated to therefore, by default. accused, is attributed to the State by the waived therein; Bruce, 60-63; 827, F.3d at and cases cited McNeely, ¶¶ See 16, 733, 399, 984 P.2d MT 295 Mont. Kipp, State v. 29-31, 232, 301 Mont. Ellenburg, 2000 MT 16; ¶¶ see also State v. 801, 289, 29-31, 8 P.3d 29-31. ¶¶ ¶¶ however, the court must bear attributing period delay, each party may be attributable delay requested by particular a

in mind that 303, 32-33, Diaz, MT party. e.g. ¶¶ other See to the delay 32-33, (holding that 148 P.3d 32-33 ¶¶ Mont. ¶¶ accused’s unlawful acts necessitated by the State but requested MT 13- accused); Keyes, v. ¶¶ to the State was attributable (holding that the 13-14, 13-14 ¶¶ ¶¶ a writ of to this Court for Keyes’ application with time associated State, given was attributable supervisory control by our delay occasioned application necessity of confusing nature of were due to the application ofthe consideration Keyes). sought prosecute had to under which the State charges attributing period each identifying and Lastly, after each assigns weight period accused to the court bringing necessary delay. for the This cause and motive specific on the based depend will period weight assigned particular because the examples following causing it. party’s culpability on point with in Barker illustrate Supreme Court provided to the State: attributable respect hamper in order to the trial attempt A deliberate A government. heavily against weighted be defense should courts or overcrowded negligence neutral reason such more should be nevertheless weighted heavily less but should such responsibility ultimate since considered than with government rather rest with the must circumstances witness, missing reason, as a Finally, such valid the defendant. delay. justify appropriate should serve added, footnote (emphases Ct. at 2192 Barker, 92 S. 407 U.S. 434, 436, 93 S. Ct. States, 412 U.S. omitted); Strunk v. United see also (1973) (“Unintentional court by overcrowded delays caused to be the factors among are prosecutors or understaffed dockets hamper delay, calculated intentional heavily than weighed less 469 defense, determining whether the Sixth Amendment has been violated.”). by respect attempts prosecution delay With to deliberate dockets, already

the trial versus overcrowded court our cases require delay that these types weighed two be attributed to the State but Blair, differently. In State v. 2004 MT 324 Mont. 103 P.3d criminal for example, delay we characterized inherent in the justice system by largely beyond and caused circumstances the control of the prosecutor delay,” and the accused as “institutional and we delay Blair, attributed 19; such to the State. See see also State v. ¶ (“[The Good, 59, 26, 113, 26, 2002 MT 309 Mont. 43 P.3d 26 ¶ ¶ ¶ responsible accused] cannot be held for the policy regarding court’s setting of trial and management caseload.”); dates its of its criminal (“When Kipp, court, 14 reasons, a trial for its ¶ own vacates the trial date, date and does not set a new is not attributable to the defendant.”). However, explained that institutional delay weighs heavily against less the State than does intentional delay, because institutional delay “is not one the actively pursued,” State whereas intentional “exposes the defendant to ‘oppressive tactics of the ” Blair, prosecution.’ ¶ negligence, As for Supreme Court explained Doggett diligent “[b]etween prosecution delay, and bad-faith negligence official bringing an accused to trial occupies ground.” the middle Doggett, 656-57, 505 U.S. at 112 S. Ct. at 2693. The Court stressed that “[although negligence obviously weighed lightly more than a defense, deliberate intent to harm the accused’s it still falls on the wrong side of the acceptable divide between and unacceptable reasons for delaying a criminal prosecution begun.” once it has Doggett, 505 (or 657, 112 U.S. at S. Ct. at 2693. We too treated negligence have lack diligence) bringing the accused to trial unacceptable as an reason for delay. e.g. Tiedemann, 394, 399-405, See State v. 178 Mont. 584 1284, 1288-91 (1978); P.2d Fife, 486, 490, State v. 193 Mont.

712, 715 (1981); Barker, 379, 383-84, 862 State v. P.2d (1993); Blair, 24; 1115 Johnson, 180, 12, see also State v. 2000 MT ¶ ¶ (“As general matter, Mont. P.3d ¶ ¶ to speedy places on the diligent prosecution State the burden of stages (same); at all of a criminal proceeding.”); Kipp, ¶ (“If Longhorn, 135, 22, 310 172, 2002 MT Mont. state, diligently accused is out of the State must act and in good faith acquire jurisdiction.”). Finally, besides caused faith on part bad

prosecution, delay by negligence caused lack diligence, beyond prosecutor the control of largely circumstances

caused dockets), there are “valid (e.g., overcrowded court and the accused instance, For if the delay attributable to the State. reasons” for prepare time to complex, additional charged particularly offense 531, Barker, S. Ct. at 2192 407 U.S. at 92 may required. trial be See (“[T]he ordinary crime is tolerated for an street delay that can be serious, charge.”); see complex conspiracy for a considerably less than 974, 981-82, Bretz, 253, 264, 269, 984 Mont. 605 also State v. 185 1273, 1287, 56, 77, 80, 793 P.2d (1979); 243 Mont. Top, State v. Kills on (1990). Barker, 407 missing “valid reason” is a witness. 1289 Another Johnson, 531, example, In we observed S. Ct. at 2192. U.S. at were by the State in this trial requested continuances that “the two cause, key namely, unavailability prosecution the of by good supported Johnson, therefore 20. We on the scheduled trial dates.” ¶ witnesses in the overall heavily against less State weighed delay such Johnson, 20, balancing. See 39.5 ¶¶ there examples is that point of these distinctions The crucial to the State-with delay in the attributed gradations culpability

are reason, missing a such as a delay at one extreme and valid bad-faith cause, motive, witness, depend on at the other extreme-which delay And the same is true surrounding circumstances. and other being by the accused to avoid Delay the accused. caused attributed to heavily against him weighs reasons more brought to trial or for tactical missing witness. delay by caused or her than does therefore, balancing, in the overall The of Factor Two function for the conclusively a burden shift longer “to establish is no 6, 25, 304 Haser, 2001 MT Mont. State v. prejudice,” ¶ determination of 21, 125, Doyle, 2007 MT 63, 25, 100, 25; ¶ see also State v. 20 P.3d ¶ ¶ (“The the total court allocates 308, 21, 160 P.3d 337 Mont. ¶ purpose for the delay parties days number of between proof under the burden of determining party carries 29-30, 292 Mont. factor.”); Stanko, 1998 MT ¶¶ State v. (stating that it was 29-30, 29-30 974 P.2d ¶¶ ¶¶ charged delay the State when “[s]peedy not be trial will We have stated Diaz, (citing Tilly, ¶ 32 with ‘valid reason’ is not available.” a material witness (1987)). nothing Yet, reason” has if the “valid Barker, is, fact, accused, delay charged the State. See then the do with the holdings Johnson, clarify Diaz and 2192; our 20. S. Ct. at U.S. at witness requests postponement trial a material Tilly, because the State when available, resulting delay charged unless to the State is not with “valid reason” that both acts, the situation brought as was delay Diaz and the accused’s unlawful about Tilly. delay “immaterial” whether the at issue was attributed to the State or Stanko, since the burden under Factor Four was on Stanko either Rather, way). significance this factor’s is in the specific cause culpability period delay. Obviously, for each the more bringing diligence the accused to trial that is due to lack of or other reasons, “unacceptable” likely right the more the accused’s trial Likewise, has been violated. the more caused the accused for “unacceptable” reasons, likely right the less has been violated. Lastly, primary because “the to assure that brought burden” cases are Barker, to trial is “on the prosecutors,” courts and the 407 U.S. at 92 S. Ct. at the further beyond 200-day stretches date, trigger compelling justifications more the State’s for the (see 61, must supra). Right (hereinafter, Factor Three: Assertion Responses

Accused’s to the Delay) Bruce, we held that magical “there is no time for assertion of the right to a weighed favorably which should be more time”; defendant than some other long so as the accused asserts to a any prior time to the commencement of trial, he or she “has satisfied the third-prong of the Barker test and... analysis further prong of that is not only unnecessary, but Bruce, inappropriate.” 48. In establishing bright-line rule, we reasoned as follows:

Analysis in long period delay, when a or how often during a long period of delay a defendant right speedy trial, asserts the to a makes an already subjective and arbitrary process review even more so. In consistency, the interests of predictability, justice, our purpose should be to objective establish more criteria for prosecutors, lawyers, defense and district courts to evaluate speedy trial subjectively issues. The trend of evaluating the date on which each appellant has asserted his or her right speedy to a trial objective. is the antithesis of that

Bruce, 48. analyzing It is true that when and how often the accused asserted right speedy

the to a a objective approach trial is less than the “non- weighted, you ‘either asserted the right you approach” or did not’ we (see adopted Bruce, J., in Bruce (Leaphart, specially concurring)). Moreover, “magical there is indeed no right. time” for assertion of the Barker, See 407 U.S. at (noting S. Ct. at 2187 that “there is no fixed point in the criminal process put when the State can defendant to the choice of either exercising waiving right to a trial”). said, speedy conclude, follow, That for the reasons which balancing test is enhanced when accuracy the overall of the that delays is considered. totality responses pretrial of the accused’s any different” from right speedy “generically to a trial is protection in the Constitution for rights the other enshrined Barker, One difference is 407 U.S. at 92 S. Ct. at 2186. accused. may actually work to the accused’s right deprivation instance, the commission of the advantage. For as the time between lengthens, may become unavailable or crime and the trial witnesses fade; support and if these witnesses may their memories Barker, weakened, seriously so. case sometimes prosecution, its will be at 92 S. Ct. at 2187. 407 U.S. actually clear, the accused as Barker makes whether consideration brought promptly “important” to trial is an

wanted to be speedy to a trial has been ascertaining right whether his or her Indeed, Barker, the fact U.S. at 92 S. Ct. at 2194. violated. primary tried factor seemingly did not want to be that Barker years “extraordinary” delay of over five counterbalanced 533-36, 92 Barker, 407 U.S. at S. Ct. his arrest and trial. See between the accused always readily apparent whether at 2193-95. It is not indicators identified a but some useful actually speedy wanted accused asserted the are and how the Barker whether Barker, frequency S. Ct. at right, 407 U.S. at see Barker, U.S. delays, see objections pretrial the accused’s force of by any acquiescence the reasons for 529, 92 S. Ct. at 534-36, Barker, 92 S. Ct. at delays, 407 U.S. at pretrial accused in see 2194-95. initially Barker instance, Supreme Court observed For motions to prosecution’s tactical reasons most of

acquiesced for that he had lost his continue; it clear to Barker but once became Barker, further continuances. See began object he gamble, tactical facts, Supreme 534-36, S. Ct. at 2194-95. On these 407 U.S. at his to a deprived had not concluded that Barker been Court trial: an in which may that there never be situation do not hold We grounds where the on may indictment be dismissed may There object to continuances. has failed defendant incompetent by represented defendant was in which the situation in which the or even cases counsel, severely prejudiced, extraordinary barring But granted parte. ex continuances were that a indeed to rule circumstances, reluctant would be a record that right on denied this constitutional defendant was did not one, that the defendant indicates, does this strongly want a trial. speedy

Barker, 2195; Barker, 407 U.S. at 92 Ct. at S. see also 407 U.S. at 536-37, (White, J., concurring) 92 S. Ct. at 2195 (“Although the Court rejects claim..., speedy apparent [Barker’s] trial it is that had Barker clearly delays case, not so in the in acquiesced major involved this otherwise.”). result would have been responses delays, The accused’s various to aside providing from insight

some into he actually brought whether or she wanted to be trial promptly, gauge also serve as a useful of the weights the court assign should to the other three in balancing: factors Whether right and how a defendant asserts his is closely related to the other factors strength we have mentioned. The of his efforts by will be affected length delay, to some by extent delay, reason for the and most particularly by personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, likely the more defendant is to complain. The defendant’s assertion of his then, trial right, is entitled strong evidentiary weight determining whether the being defendant is deprived right. Barker, 531-32, 407 U.S. at 92 S. Ct. at 2192-93. Thus, Factor Three serves an important role in the balancing

test providing insight into actually whether the accused wanted a speedy trial and weights what the court assign should to the other three analysis. reason, factors For we are departing from non-weighted, you “either asserted you or did not” approach Three, of Bruce. hold that We under Factor the court must evaluate the accused’s responses delay-i.e., to the his her (An acquiescence objections in and pretrial delays. objection could take the form of a grounds, motion to dismiss on an objection to a motion prosecution continuance, for a a motion to etc.) compel requested discovery, evaluation-i.e., The sum of this totality ofthe responses delays accused’s various to the in bringing him or her to trial-should then together be considered with other three balancing factors of the test. caution, however, We suggesting that we are not that the accused early

should complain timing and often. The and number of instances objects which the accused are pretrial not talismanic. Indeed, pro forma motion to grounds dismiss on is itself only marginal brought evidence of a desire to be to trial. At the same time, however, acquiescence delay requested by the prosecutor is not brought Rather, conclusive evidence of a desire not to trial. accused’s responses delays various must be evaluated based on timeliness, persistence, as the surrounding circumstances-such acquiescence, objections, the reasons for sincerity of the counsel, the accused’s pretrial represented

whether the accused was (as right), and so forth. speedy bears on the trial conduct that conduct 648, Hawk, 302, 314, 106 S. Ct. 474 U.S. See United States v. Loud assertion(s) (1986) trial speedy the accused’s of the (noting that 655-56 conduct”). light [his her] in the other right “must be viewed conduct has been Thus, pretrial in which the accused’s a situation brought promptly desire to to trial would consistent with a sincere be has than a situation in which the accused weighed differently be time, but, filed delays at the same has objected repeatedly pretrial to motions necessitated pretrial frivolous indisputably 314-15, Hawk, U.S. at e.g. trial date. See Loud postponements making (observing that while the defendants were S. Ct. at 656 court, they claims filled in the district also speedy record of their trial motions). and unsuccessful repetitive docket with that court’s in a well- Likewise, acquiesced in the accused has a situation which to continue the trial would be request by prosecution founded in the circumstances differently than a situation which weighed long delay gain in in order to acquiesced that the accused demonstrate 535, 92 at 2194 Barker, 407 U.S. at S. Ct. advantage. e.g. See a tactical (“[T]he advantage to take suggests hoped that while he strongly record thereby obtain acquiesced, in which he had tried.”). to be definitely did not want charges, [Barker] dismissal of the object to to knowingly accused failed a situation in which the Finally, differently than a situation which weighed delay would be e.g. See charged with a crime. that he had been accused was unaware (noting that Factor Three Ct. at 2691 Doggett, 505 U.S. at S. had he known of the heavily against Doggett weighed would have (observing that Barker, 529, 92 S. Ct. at 2191 indictment); 407 U.S. at to a situation which weight attach a different may a court to a situation object opposed to knowingly accused failed informing his adequately attorney long delay without acquiesced his client). the accused did not may not infer that note here that the court We object pretrial not to he or she did solely trial because speedy

want a for such an Barker does not stand thing, all. For one delay often or at trial, a speedy Barker did not want concluding inference. to concessions corroborating facts: counsel’s relied on Supreme Court Barker, at 92 S. Ct. 407 U.S. dining argument, oral see this effect advantage, see goal gaining a tactical apparent and Barker’s at Furthermore, an such 535-36, 92 2194-95. Barker, S. Ct. at 407 U.S. at the fact that the accused has “some inference would conflict with while Barker, at responsibility” object pretrial delay, to see 407 U.S. trial,” Barker, duty bring

92 S. Ct. at he has “no himself to object 92 S. at failure pretrial U.S. Ct. not, itself, speedy

does establish that the accused did not want a Barker, trial or that the has not been violated. See (“We may 407 U.S. at 92 S. Ct. at 2195 hold that there do not dismissed may never a situation in which an indictment be on grounds object where the defendant has failed to continuances.”). time, however, At the same an in the record absence any objections prove will make it difficult for the accused to Barker, that he or she was denied a trial. 407 U.S. at S. Ct. at 2193. vein, In may a similar the court not infer of the speedy

¶83 waiver right trial based on silence or inaction on the In part of the accused. Barker, rule, the Supreme explicitly rejected by Court followed time, number of courts at the under “a any defendant waives right consideration of his to speedy any period prior trial for to which Barker, 525, 528, he has not demanded a trial.” 407 U.S. at 92 S. Ct. at Among things, other pointed the Court out that “waiver” is “an relinquishment right intentional or abandonment of a known privilege” and that courts presume acquiescence “should not in the loss Barker, 525-26, of fundamental rights.” 407 U.S. at 92 S. Ct. at 2189 omitted). added, (emphasis quotation internal marks smn, Factor Three is longer procedural formality. no Rather, this factor serves as an indicator of whether the accused actually speedy inquiry wanted a which in turn informs the into deprivation right whether there has been a a speedy to trial. gauge Factor Three also as a useful weights serves the court assign balancing. should to the other three factors in the Three, therefore, evaluate, Under Factor the court must based on circumstances, surrounding to the responses accused’s various delays bringing i.e., him or her to of trial. The sum this evaluation — totality of the accused’s then responses-should be considered together balancing with the other three factors of the test. For instance, trial evidencing brought conduct a sincere desire to be to balancing, promptly weighs in favor of the accused the overall demonstrating weighs against whereas conduct a desire to avoid trial Furthermore, balancing. analysis in the of accused the overall Four, may take account of the prejudice under Factor the court objections pretrial of the accused’s persistence timeliness above, objections of does delay-though, explained the number such Finally, degree of actual suffered. equate not with the totality the accused’s here is on the pertinent focus because and when delays, simply and not whether responses pretrial various grounds, trial we are speedy filed a motion to dismiss on he or she refer and henceforth will abandoning Right” the “Assertion ofthe label Delay.” Responses as “The Accused’s to Factor Three Accused Prejudice Four: 4. Factor Four, inquires into whether the Lastly, under Factor the court trial delay. Because prejudiced accused has been a defendant from all effects purport protect “does not guarantee trial,” Hawk, Loud 474 U.S. flowing from a before added), assessed “in the prejudice should be (emphasis S. Ct. at 654 the interests of defendants which light of Barker, 532, 92 Ct. at 2193. 407 U.S. at S. designed protect,” liberty minimizing impairment interests are Two such of life: shortening disruption designed possibility to minimize the guarantee

The lesser, trial, to reduce the but lengthy prior incarceration substantial, liberty on an impairment imposed nevertheless bail, disruption and to shorten the while released on accused criminal of unresolved presence caused arrest and the life charges. MacDonald, 1, 8, 102 S. Ct. 456 U.S. United States v. “ (1982). long delay ‘limiting] possibilities A third interest ” v. accused to defend himself.’ Smith ability of an impair

will (1969) 374, 377-78, (quoting United 393 U.S. 89 S. Ct. Hooey, (1966)). Ewell, S. Ct. v. 383 U.S. States (i) to these interests as follows: Supreme expressed Court has ¶88 (ii) incarceration, anxiety and to minimize pretrial prevent oppressive (iii) the defense accused, limit the possibility ofthe concern exculpatory loss of by dimming memories and impaired will 532, 2193; Doggett, 505 U.S. Barker, 92 S. Ct. at 407 U.S. at evidence. three recognized these same 654, 112 Ct. at 2692. We S. Bruce, 19, 56, 58, and now reaffirm Bruce, considerations in see ¶¶ evaluating when whether pertinent as the considerations them delay. We also reaffirm by the prejudiced accused has been or all” of these “any based on may be established 367, 180, 23, Mont. Johnson, MT 300 v. 2000 ¶ considerations. State 23, 654, 23. ¶ ¶ Incarceration Pretrial Oppressive

i. Prevent pretrial oppressive interest-preventing first guarantee: ofthe the “coreconcern” incarceration-reflects Hawk, “impairment liberty.” Loud 474 U.S. at S. Ct. at 654. Barker, Supreme Court observed: spent jail awaiting The time trial has a detrimental impact on life; It job; disrupts family individual. often means loss of a it jails and it enforces idleness. Most offer little or no recreational or programs. spent jail simply rehabilitative The time is dead Moreover, time. if a defendant up, is locked he is hindered in his ability evidence, witnesses, gather contact prepare or otherwise his defense. Imposing consequences anyone those on who has not yet been is especially convicted serious. It is unfortunate impose them on persons those who are ultimately found to be innocent. (footnotes

Barker, 532-33, omitted). 407 U.S. at 92 S. Ct. at 2193 In assessing pretrial whether the given incarceration in a “oppressive,” case is the court must consider all of the circumstances of the among duration, incarceration. Foremost given these is that one of the purposes of the trial guarantee is to ensure that “ prosecution ‘willmove dispatch with the that is appropriate to assure early [the accused] an proper disposition charges against of the ” him,’ MacDonald, 7, 456 U.S. at 102 S. Ct. at 1501 (quoting United Marion, 455, States v. 404 U.S. (1971)), 92 S. Ct. thereby possibility “minimize the lengthy prior incarceration trial,” MacDonald, 8, 456 U.S. at 102 S. Ct. at 1502. See also State v. Blair, 356, 2004 MT

(concluding that “the fact days pretrial of 342 incarceration suffices case”). Thus, establish this element in this the longer pretrial incarceration, likely the more oppressive it has been and the more likely the accused has prejudiced by delay. been time, however, At the justice same while should be administered “ dispatch, ingredient with ‘the essential orderly expedition and not ” (alteration speed.’ Marion, mere 404 U.S. at 92 S. atCt. omitted) (quoting States, 1, 10, 79 Smith v. United 360 U.S. S. Ct. (1959)). offense(s) complexity charged is also above, relevant here. As noted Supreme Court observed in Barker that “the ordinary that can be tolerated for an street crime is serious, considerably less than for a complex conspiracy charge.” Barker, Likewise, 407 U.S. at 92 S. Ct. at length pretrial “oppressive” relatively incarceration that is is less for a simple complex charge. offense than it is for a any Another consideration pertinent part misconduct on instance, directly pretrial accused related to the incarceration. For

if jurisdiction the accused has demonstrated a likelihood to flee the

478 147, 337, 18, 303 Mont. court, Keyes, 2000 MT e.g. ¶ see State v. (“As 443, Keyes’ lengthy effects of any prejudicial 18 P.3d ¶

¶ high a incarceration, in this case that there can be no doubt pretrial necessary light in of . . . his resulting incarceration were bail and if justice.”), from or ability willingness to abscond demonstrated awaiting in while incarcerated engaged accused has misconduct 289, 232, 37, Mont. Ellenburg, 2000 MT 301 e.g. ¶ see the result of... 37, 801, (“Ellenburg’s incarceration was 8 P.3d 37¶ ¶ confinement, incarcerated.”), necessitating thus misconduct while [his] In a similar oppressive. incarceration was likely then it is less that the charge a vein, separate incarcerated on the fact that the accused was the issue of charge the instant informs awaiting trial on while 368, 26, Mont. 2000 MT 303 Highpine, See State v. oppressiveness. LaGree, 26, therein; State v. 26, 938, cases cited 422, 24-26, 615, 375, P.3d 24- 65, 24-26, Mont. 154 ¶¶ MT 336 ¶¶ 2007 ¶¶ however, fact of note, that while the 26, cited therein. We and cases relevant, See dispositive. is it is not separate charge on a incarceration (1969).6 575, 89 S. Ct. 577 Hooey, v. 393 U.S. Smith in are relevant of the incarceration Lastly, the conditions (3rd Petsock, 257 941 F.2d assessing See Wells v. oppressiveness. 1991) equally detention is not (observing pretrial “[a]ll Cir. liberty due deprivation “the seriousness of oppressive” and that conditions of the defendant’s vary with the incarceration will pretrial 27-29, Johnson, MT confinement”); v. ¶¶ see also State claim 27-29, (assessing 27-29 Johnson’s ¶¶ Mont. ¶¶ he medical treatment inadequate prejudiced that he was incarcerated, concluding “[n]either received while allegedly that Johnson’s incarceration indicate nor the conditions of length in In incarceration particular, oppressive”). incarceration was pre-trial opportunities, in lacking or recreational that are overcrowded facilities explained: Hooey, Supreme Court already prison might appear under lawful that a man At first blush it oppressive hardly position incarceration from undue and in a to suffer sentence bringing person on a such a to trial prior trial. But the fact is that oppression one may ultimately as is suffered pending charge in as much result First, charge. possibility that the upon jailed an untried bail who is without partially already might least concurrent prison a sentence at receive defendant charge pending may serving lost if trial of the be forever the one he is with widely practiced, of his Secondly, procedures the duration postponed. present now under increased, may he must imprisonment and the conditions under which charge worsened, by pendency greatly of another criminal his sentence serve outstanding against him. (footnote quotation marks and internal Hooey, Ct. at 577 U.S. at 89 S. omitted). food, control, care, cleanliness, adequate proper climate medical legal may research capabilities assessing be considered whether the oppressive. incarceration was Where such conditions have been present, likely it is more that the pretrial incarceration has been however, oppressive. emphasize, any We that presented evidence concerning the conditions the incarceration must be tied to the speedy trial a inquiry; speedy trial motion is not an avenue for pursuing grievances that properly pursued are through administrative channels or for attacking workings the inner of the prison system generally. Furthermore, it is purposes insufficient for the conditions of the incarceration have at times been disagreeable. question here oppressiveness, is one of merely not occasional unpleasantness. sum, In bright-line there is no date on which the pretrial Rather,

incarceration becomes “oppressive.” this determination will vary from case to case based on the specific circumstances of the incarceration.

ii. Minimize the Anxiety Accused’s and Concern The second interest-minimizing anxiety and concern caused by the presence of charges-is unresolved criminal subjective, more not to mention difficult to Nonetheless, demonstrate. it is an interest protected by right to a speedy Marion, trial. United States v. 404 (1971) 307, 320, 92 455, 463 U.S. S. Ct. (noting that one purpose of the “ guarantee ‘to anxiety minimize and concern ” accompanying public accusation’ (quoting Ewell, United v. States 383 (1966))). 116, 120, 773, U.S. such, 86 S. Ct. As it is a pertinent consideration under Factor Four. The Supreme Court has minimizing described interest in

anxiety relatively instance, and concern in Barker, broad terms. For in the Court pointed out that “a awaiting might defendant trial on bond subjected scorn, to public deprived employment, and chilled in for, the exercise speak with, ofhis participate associate and in unpopular political Barker, 33, causes.” 407 U.S. at 532 n. 92 S. Ct. at 2193 n. 33 (citing Klopfer Carolina, 213, 221-22, v. North 386 U.S. (1967)). 988, 992-93 S. Ct. Similarly, in Marion the Court observed that “[a]rrest is a public may act that . . . disrupt [the accused’s] employment, resources, associations, drain his financial curtail his subject public obloquy, anxiety him, him to and family create in his Marion, and his friends.” 404 U.S. at 92 S. Ct. at 463. We too have recognized hardship damage economic reputation accused’s community types as that can presence flow from the charges. e.g. Bailey, unresolved criminal See State v. 201 Mont. Haskins, (1982);

480-81, 655 P.2d 498-99 “ (1986). are more serious for 119, 121-22 ‘These factors every case to others, inevitably present they but are some than for pending either be incarcerated extent, every defendant will some ” liberty.’ on his to substantial restrictions subject trial or on bail (1973) Arizona, (per Ct. 414 U.S. 94 S. Moore v. curiam) (White, J., Barker, Ct. at 2195 407 U.S. at 92 S. (quoting (“[A]n 379, 89 S. Ct. at 577 Hooey, 393 U.S. at concurring)); see also effect fully depressive as an charge . . . can have outstanding untried Barker, U.S. large.”); at upon person who is upon prisoner (“[E]ven prior if accused is not incarcerated at 2193 an S. Ct. liberty his disadvantaged by restraints on he is still hostility.”). anxiety, suspicion, and often living under a cloud of concern, minimizing anxiety and evaluating the interest of unresolved therefore, ways presence the focus is on which may infer life. The court disrupted has the accused’s charges criminal anxiety the accused has suffered disruption such from evidence of he or she has been concern, suggests in turn anxiety and concern is However, amount of a certain prejudiced. 434, Chavez, v. 213 Mont. in accused of a crime. State being inherent Voast, 194, (1984); 247 Mont. 444, 1365, State v. Van 691 P.2d 1371 54, 22, 336 MT 1380, 1385 (1991); v. 2007 201, 805 Spang, ¶ State P.2d Furthermore, 646, the trial 184, 22, 153 P.3d ¶ Mont. ¶ by arrest of life caused disruption “to shorten the guarantee designed United States v. charges,” criminal of unresolved presence and the (1982) 1497, (emphasis 1, 8, 1502 MacDonald, U.S. 102 S. Ct. 456 the Accordingly, disruption altogether. the added), not to eliminate anxiety and of life and the associated disruption the extent to which on their depend will finding prejudice a support will concern words, here is question In the crucial intensity. other duration unduly trial has the accused to delay bringing whether anxiety aggravated life or of his or her disruption prolonged MacDonald, crime. being accused of a that are inherent and concern Peterson, MT 2004 1502; City Billings v. 8, 102 S. Ct. at 456 U.S. at 36, 532, 36; also State v. 444, P.3d see 232, 36, ¶ Mont. 97 322 ¶ ¶ 100, 34, 34 34, 63, 20 P.3d Haser, 6, ¶ 304 Mont. ¶ 2001 MT ¶ more to the attributable anxieties were (concluding that Haser’s to the charged than he had been the crimes with which nature of trial). commencing Be Impaired Defense Will Possibility Limit iii. evidence, issues of concerns itself with third interest Finally, the an effective ability present to the accused’s reliability, and witness

481 90, 36, 146, 36, Jefferson, defense. State 2003 MT 315 Mont. 69 v. ¶ ¶ 641, 36; Haser, 35, 38; 654-55, 112 Doggett, P.3d 505 U.S. at S. Ct. ¶ ¶¶ Barker, In characterized this interest as Supreme at 2692. Court “the most serious” of the interests that

designed protect, inability adequately to “because the of defendant Barker, prepare system.” to his case skews the fairness of the entire 532, regard, at 92 at the Supreme 407 U.S. S. Ct. 2193.7 Court disappear during delay, “[i]f observed that witnesses die or prejudice “[t]here is obvious” and that is also if defense prejudice accurately witnesses are to recall past.” unable events of distant Barker, Likewise, recognized 407 U.S. 92 S. Ct. at 2193. we that “time may accuracy testimony erode the of witness Jefferson exculpatory Jefferson, 36; evidence.” see also State MT Kipp, v. ¶ (“The 197, 23, 295 399, 23, 984 Mont. P.2d loss of a ‘main ¶ ¶ ¶ witness’ as a result of prejudicial attributable State is defense.”). Thus, stated that “this factor often carries more weight concluding than the other bases for a defendant has been prejudiced by 36; a pretrial delay.” Jefferson, Good, see also State v. ¶ 59, 29, 309 2002 MT 29, 43 Mont. (“Impairment ¶ ¶ ¶ arguably defense is the most important of the three factors to consider because a defendant’s inability adequately prepare his case undermines the system.”); Price, fairness of the entire trial (same). 2001 MT Impairment defense, however, one’s “is the most difficult form of speedy prove because time’s erosion of exculpatory testimony rarely evidence and can Doggett, be shown.” (internal 655, 112 U.S. at S. quotation omitted); Ct. at 2692-93 marks (“Loss Barker, see also 407 U.S. at S. Ct. at 2193 memory... always is not reflected in the forgotten record because what has been shown.”). rarely reason, can For this the accused’s failure to make an showing ability affirmative that the weakened his or her “ Barker, Subsequent Supreme ‘[i]nordinate Court stated that arrest, indictment, may impair ability present between and trial a defendant’s an major protected against by speedy guarantee effective defense. But the evils the quite apart prejudice possible exist Sixth Amendment prejudice S. Ct. at 1502 92 S. forms of from actual or to an accused’s defense. . . .’ The right primarily prevent to a trial is thus not intended to MacDonald, 7-8, by passage to the defense caused of time.” 456 U.S. at (citation omitted) paragraph Marion, (quoting break 404 U.S. at 463). however, Doggett, Supreme again “[o]f at In Ct. Court stated that these prejudice, possibility [the ‘the most serious is that the accused’s defense will impaired], inability adequately prepare be the fairness of the entire because the of a defendant his case skews ” system.’ 654, 112 Doggett, (quoting U.S. at S. Ct. at 2692 2193). Barker, 407 U.S. at 92 S. Ct. at defenses, testimony, produce specific specific elicit specific

raise finding that the defense has been preclude does not items ofevidence limited to the Indeed, prejudice “consideration of is not impaired. demonstrable,” delay presumptively since “excessive specifically can reliability ways party of a trial in that neither compromises the matter, 655, 112 at or, identify.” Doggett, 505 U.S. S. Ct. prove for that proof particularized prejudice 2693. “affirmative 655, 112 505 U.S. at every speedy Doggett, not essential to claim.” S. Ct. at 2692. that the Accordingly, proof in the absence of affirmative defense, ability present the accused’s an effective impaired has in the based on other factors

impairment must be assessed (the delay, greater analysis-e.g., length greater ofthe testimony), the accused’s exculpatory the erosion of evidence (the ability accused’s imperiled more responses to becomes, likely she is to defense the more he or present an effective delay), pretrial and the duration of complain about (an hindered in his or her up incarceration accused who is locked evidence, witnesses, his prepare contact or otherwise ability gather defense).8 or her Balancing explained Court respect balancing, Supreme With

Barker: as either a none of the four factors identified above regard

We finding deprivation of a necessary or sufficient condition to Rather, and must they trial. are related factors right may such other circumstances together be considered with sum, qualities; these factors have no talismanic relevant. balancing in a difficult and sensitive engage courts must still fundamental But, dealing are with a process. because we accused, recognition carried out full process must be with affirmed specifically in a trial is that the accused’s interest in the Constitution. omitted). (footnote

Barker, Ct. at 2193 407 U.S. at 92 S. Johnson, observations, e.g. see made similar We have inquiry, both the explained of Factor One’s second above in the context As regard, prejudice. In this we clarified the issue of and the State should address accused 516, 966 can Hardaway, that “if the State MT Mont. in State v. must, prejudice, it only the three traditional bases lack of on one of show impairment minimum, question there has been address the of whether at a defense.” requirement Hardaway, holding of the State’s as a 22. We reaffirm this proof under Factor Four.

483 (“No 180, 14, 367, 14, 654, MT 4 14 single 2000 300 Mont. P.3d ¶ ¶ ¶ (internal factor of the Barker test is indispensable dispositive.” quotation omitted)); 368, 14, marks MT Highpine, State v. 2000 303 ¶ (“Because 422, 14, 15 Mont. P.3d 14 single no factor is itself ¶ ¶ decisive, engage courts must still balancing a difficult and sensitive (internal process.” omitted)), quotation marks reaffirm we now foregoing that none of the necessary four factors is either a or a legal sufficient condition to the conclusion that the accused has been deprived right Rather, of the a speedy trial. the factors must be together considered with such other may circumstances relevant.9 As for each factor’s importance relative in the overall

balancing, we indicated in Bruce that adopting we were a method of analysis that includes “straight features both the balancing test” and Bruce, the “motive test.” See 54. The former “considers each of the ¶ four equally, single decisive,” factors and no Bruce, factor is (citing 51¶ Brooks, Brian A Speedy P. New Trial Standard Wingo: Barker v. for Reviving Remedy a Constitutional Age Statutes, in an 61 U. Chi. (1994)), L. Rev. 592-93 whereas the latter “gives greatest consideration to the factor, second Barker delay,” Bruce, the reason for 610). (citing Brooks, 53¶ 61 U. Chi. L. Rev. at right speedy trial, however, to a is “necessarily relative” and “depends upon Ewell, circumstances.” United States v. 383 U.S. (1966) (internal 116, 120, omitted). 86 S. Ct. quotation marks such, As speedy analysis trial necessarily is case-specific. A defendant whose trial delayed has been twelve months due to stonewalling by the State, but objected who has not and has not been prejudiced to any significant degree by delay, presents markedly different claim than does a defendant whose trial also has been delayed State, twelve months due to stonewalling by the who but has repeatedly demanded a speedy during this period and has been prejudiced significant to a degree by delay. reason, For state, rule, we decline general as a reason, contrary Olmsted, For this we overrule our statements to the v. State (“The 301, 55, 66, 55, 1998 MT ¶ 292 Mont. 968 P.2d ¶ ¶ 55 fourth factor of the test, prejudice defendant,

Barker must be demonstrated the defendant before violation.”), Foshee, there is a (1997) (“A criminal defendant must somehow show that he or she has been prejudiced by right before this Court will hold that the State has violated his or her speedy trial.”), 121, 17, 332 Mooney, to a and State v. MT ¶ Mont. (“Because Mooney prejudice we conclude that has not satisfied the prong test, prongs.”). of the Barker we decline to address the first and second (the factor, delay)-or any other reason for the Factor Two Rather, balancing. in the “greatest consideration” matter-deserves case, a court vary from case to significance will each factor’s weigh the four factors trial claim must assessing particular ofthe on the facts and circumstances accordingly-i.e., based enough, or if the length great if is example, case. For showing of causing delay, a lesser sufficiently culpable State is extreme, hand, if necessary. On the other prejudice is less. a violation of the length delay required to establish balancing test” “straight is consistent with the approach, This (see inherently case-specific nature of Bruce, 51), best reflects the outweigh all reality given may that a factor trial claims and in another. consequence of little of the others in one case but be Trial Test Summary Speedy of the Revised D. analyzing speedy for sum, revising we are our framework

¶106 balancing approach closely tracks the claims so that it more trial Barker, Doggett, post- in and other by Supreme the Court envisioned analyze trial claim is to presented A court with a Barker cases. following the four factors. and then balance Length Delay. One, the of the Under Factor Factor One: The the interval between accusation first ascertains whether court not, delay). If it is of fault for the days (irrespective is at least 200 trial denied; unnecessary, and the claim should be analysis further then balancing days, then the four-factor if the interval is at least 200 but analysis. a full proceed and the court must with triggered test is delay (again, extent to which the Second, the court considers the 200-day trigger the delay) beyond stretches offault for the irrespective First, the latter determination is twofold. significance date. The ofthis intensifies delay the accused pretrial prejudiced has presumption trigger the Thus, delay beyond stretches the further the over time. Four that the under Factor date, stronger presumption is the the Second, State’s burden by delay. the prejudiced accused has been increases with justify delay likewise under Factor Two to beyond the delay stretches the further the length delay. of the justifications date, the State’s trigger compelling the more 200-day under Factor Two. delay must be Delay. Two,the Under Factor for the Factor Two: The Reasons the accused to delay bringing in period each court first identifies delay appropriate to the period attributes each The court then trial. by caused to have been delay not demonstrated any with party, to the being attributed by the accused affirmatively waived accused or period of assigns weight to each Finally, the court by default. State specific delay. based on the cause and for the motive Reasons for circumstances, delay may include institutional such as dockets, reasons, missing overcrowded court and “valid” such as a Both types delay weigh heavily against witness. of these less State than do lack of diligence bringing the accused to occupies ground scale, a middle on the culpability delay, and bad-faith attempt defense, such as a deliberate hamper weighed which is heavily against most Weight similarly assigned State. acceptable and unacceptable by reasons for caused the accused. significance balancing of Factor Two in the process, therefore, specific is in the culpability cause and for each period of delay. The more caused “unacceptable” the State for reasons (e.g., diligence delay), lack of or bad-faith likely the more the accused’s right Likewise, has been violated. the more caused by the accused (e.g., being trial), for such reasons brought avoid likely the less has been violated. Responses Delay. Factor Three: The Accused’s to the Under Three,

Factor the court evaluates the responses accused’s to the delay-i.e., acquiescence his or her objections to pretrial delays. The number of instances which the accused acquiesces objects in or to pretrial delay Rather, is not talismanic. the court’s evaluation must surrounding circumstances, based on the timeliness, such as the persistence, sincerity objections, the reasons for the acquiescence, whether the represented counsel, accused was (as pretrial accused’s conduct that conduct bears on the right), and evaluation-i.e., so forth. The sum of this totality responses accused’s various him delays bringing or her to trial-is of actually indicative whether he or she speedy wanted a which in turn inquiry informs the into whether there has been deprivation right. of the The gauge evaluation also serves as a of the weights assign the court should to the other three factors in the balancing. Prejudice Four, Factor Four: to the Accused. Under Factor the

court assesses whether the prejudiced by delay accused has been the in light of the right interests that the trial designed (i) (ii) protect-namely, preventing oppressive pretrial incarceration, minimizing anxiety and concern presence caused the of unresolved (iii) charges, criminal limiting possibility the that the accused’s ability to present an effective defense will be impaired. respect With interest, to the first the court pretrial considers whether the “oppressive” light incarceration is in of all of the circumstances of the respect interest, incarceration. With to the second the issue is whether the unduly prolonged has the accused to trial delay bringing the and concern that anxiety the aggravated of or her life or disruption his third respect And to the being accused of a crime. with are inherent the delay the has weakened interest, whether the court considers defenses, testimony, or specific elicit ability specific to raise accused’s However, proof because affirmative items of evidence. produce specific claim, every speedy is not essential particularized prejudice of on other factors may of the defense be evaluated based impairment (the greater delay, the the length delay as the analysis, the such testimony), exculpatory of evidence greater the erosion (the the accused’s imperiled more responses delay accused’s becomes, likely the more he or defense ability present an effective delay), pretrial and the duration of about the complain she is to (an hindered in his or her up is locked incarceration accused who his evidence, witnesses, prepare or otherwise contact ability gather defense). or her Balancing. whether the accused Lastly, the court determines by balancing each of to a deprived been has rather, itself; dispositive No one factor is foregoing four factors. together such considered with are related and must be the factors may be relevant. other circumstances bar, providing we are the convenience ofthe bench For trial test. outline of our revised

following Delay Length Factor One: The I. balancing the four-factor delay long enough trigger

A. Is the test? an accused? did the defendant become

1. When trial date? is the defendant’s 2. When and trial at least 200 accusation Is the interval between 3. days? beyond trigger date? delay stretch extent does the

B. To what prejudiced has pretrial presumption 1. The thus, longer, the time; delay gets as the over accused intensifies accused under may expected be quantum proof may decreases, quantum proof while Factor Four simultaneously increases. Factor Four ofthe State under expected justify under Factor Two burden State’s thus, the further delay; length of the increases with the likewise date, the more 200-day trigger beyond stretches must Factor Two be. under justifications the State’s compelling Delay Reasons for the Two: The II. Factor to trial. bringing the accused Identify period each A. appropriate party. to the period B. Attribute each of pretrial prosecution explaining bears the burden of 1. delays. by demonstrated to have been caused Any

2. not to the affirmatively by accused or waived the accused attributed State default. weight period specific

C. to each based on the Assign delay. cause and for the culpability delay, attempt gain

1. Bad-faith such as a deliberate a advantage trial, weighs heavily against tactical or to avoid it. party caused Negligence diligence bringing

2. or lack of the accused to occupies ground culpability the middle on the scale. It is weighed lightly against attempt more the State than a deliberate defense, hamper wrong but it still falls on the side of the acceptable unacceptable divide reasons for delaying between prosecution begun. a criminal once it has Delay justice 3. inherent system the criminal and caused largely beyond prosecutor circumstances the control of the delay,” the accused is “institutional which is attributed to the weighs heavily against State less the State than but bad-faith diligence. and lack of Delay reasons, missing for “valid” such as a witness or a offense, particularly charged weighed heavily complex least delay. all the types of Responses Delay

III. Factor Three: The Accused’s to the responses delay-i.e., A. Evaluate the accused’s to the his or her acquiescence objections delays-in light in and pretrial surrounding circumstances. Some considerations: timeliness, persistence, sincerity objections

1. The acquiescence 2. The reasons for the represented by

3. Whether the accused was counsel (as pretrial 4. The accused’s conduct that conduct bears on the right) totality delays responses B. The accused’s various he or she bringing him or her to trial is indicative of whether actually inquiry in turn informs the wanted right. deprivation into whether there has been delays totality responses C. The of the accused’s various weights assign as a the court should gauge also serves balancing. in the the other three factors Prejudice

IV. Factor Four: to the Accused given the pretrial oppressive, A. Was the incarceration that incarceration? Some considerations: circumstances of 1. Duration of the incarceration offense(s) complexity charged

2. The of the directly related on the of the accused Any part 3. misconduct pretrial to the incarceration

4. The conditions of the incarceration unduly prolonged bringing B. Has the the accused to presence the of disruption of his or her life caused anxiety charges aggravated or unresolved criminal being accused of a crime? Some concern that are inherent considerations: in the obloquy; damage reputation scorn or

1. Public community employment of Deprivation

2. hardship economic 3. Drain of financial resources or 4. Curtailment of associations defense been ability present Has the accused’s an effective

C. delay? Some considerations: impaired ability and their to recall availability 1. The of witnesses offense(s) accurately charged events related to the defenses, specific elicit ability specific 2. The accused’s to raise items of evidence testimony, produce specific or (excessive delay presumptively length 3. The of the ways party that neither reliability of a trial compromises matter, or, identify) prove can for (the imperiled to the more responses 4. The accused’s becomes, the more defense ability present accused’s an effective delay) likely complain he she is to about the or (an accused who pretrial The duration of the incarceration 5. evidence, ability gather hindered in his or her up is locked defense) witnesses, his or her prepare or otherwise contact Balancing V. delay, culpability the cause and length of the

A. Given responses accused’s delay, totality of the period each of case, in the delay, strength presumption of the showings on the issue strength parties’ respective and the right of his or her deprived the accused prejudice, has been speedy trial? necessary or a sufficient either a of the four factors is B. None has been the accused legal to the conclusion condition Rather, must be considered right. the four factors deprived of the may be relevant. together with such other circumstances Ruling by Motion and the Court Timing E. matter, Bruce, that unless a motion practical We noted in “as days ten to the prior

to dismiss for trial has been made at least trial, may adequately it be difficult for the State to commencement issue, issue, adequately brief the and for the court to consider Bruce, existing trial date.” postponing without ¶ “any delay directly to a motion to dismiss stated attributable days filed than ten prior based on denial of trial which is less Bruce, assigned to the commencement of trial to the defendant.” will be 57; MT Kipp, see also State v. ¶ (“When motion, a defendant files an ‘eve of trial’ legal raises a an complex requires evidentiary hearing which issue thereby original makes the trial date impracticable, thereby reasonable period caused is attributable defendant.”). negative implication ten-day any delay rule is that

directly to a attributable motion that is filed ten or more days prior to the commencement of trial assigned will be to the State. frame, view, This time in our is too short and places on the State an responsibility unwarranted amount of for a trial postponement. To be sure, duty it is not the accused’s briefing to ensure that and argument proceeds schedule in a manner that insure that he will she is prosecuted timely However, in a fashion. Kipp, 14. due ¶ speedy generally consideration of a trial motion requires time for an evidentiary hearing analysis and a careful of the pursuant facts to the (not balancing four-factor test set forth above to mention the time required parties for the fully), to brief the issues which cannot realistically in accomplished thirty days less than without postponing existing trial date. Accordingly, modifying ten-day are Bruce’s rule such

¶116 any delay directly filing speedy attributable of a trial thirty days prior motion less than to the scheduled trial date should be charged Conversely, any delay directly to the accused. attributable to filing thirty days prior of such a motion or more to the scheduled (as charged delay). trial date should be State institutional We such equitably responsibility any believe that this rule balances for parties and affords the court and the a reasonable time frame fully. speedy which to address motion dismiss a We also stated Bruce that “once motion made,... by the speedy upon [must] denial of trial has been it be ruled Bruce, district court before commencement of trial.” 57. We reaffirm ¶ must, necessity, add that court enter requirement and to each of the four findings respect of fact and conclusions of law with against the four factors were balanced each other. factors and how law, findings appellate these offact and conclusions of review Without is, matter, claim disposition practical of the court’s final remand the to the trial court impossible, and we will be forced to case in such situations. that, Ariegwe’s speedy turn to trial claim. With we now

II. Standard of Review make presented speedy A court with a trial claim must first findings factual and then determine whether the factual circumstances We, turn, review the factual speedy amount to a trial violation. ruling findings underlying speedy the court’s to determine 2007 MT findings clearly Spang, those are erroneous. State v. whether 184, 7, findings 7. The court’s 336 Mont. 153 P.3d ¶ ¶ ¶ clearly they supported by fact are erroneous if are not substantial evidence, misapprehended if the court has the effect of credible evidence, if leaves this Court with the definite or a review of record Nansel, mistake Ray has made. v. and firm conviction that been However, MT 19. ¶ ¶ ¶ trial-i.e., the defendant has denied a whether the whether been circumstances, pursuant evaluated to the four-factor factual when test, question trial violation-is a balancing amount to a Bruce, 18; 7. a trial court’s Spang, constitutional law. We review the court’s of law de novo to determine whether conclusions Bruce, 18; are correct. interpretation application law Spang, ¶¶ Balancing Ariegwe’s Speedy Test to Application

III. Trial Claim Ariegwe’s parties analyzed the District Court and the Although articulated in approach trial motion in accordance with the

Bruce, significant and modified in several which we have now clarified ruling the court’s unnecessary we find it to vacate respects, light of the clarifications remand this case for reconsideration MT e.g. Hardaway, See modifications set forth above. (remanding 13, 290 Mont. 966 P.2d ¶ Bruce). us, which of The factual record before light reconsideration hearing the arguments at transcript parties’ ofthe complete includes a motion, enabling thus us to evaluate well-developed, is Ariegwe’s on speedy trial test. pursuant to the revised speedy trial claim his the four factors are to be Moreover, process by the which because speedy trial test under our revised analyzed and balanced test, substantially approach different from our under the Bruce we helpful appropriate that it would be to illustrate that believe litigants the and the who will be process for the benefit of courts Bruce, (applying the test in future cases. 59-75 applying ¶¶ Cf. case). Accordingly, articulated therein to the facts ofthat approach proceed analysis Ariegwe’s speedy with an trial claim. will Analysis

A. of the Four Factors Delay Length 1. Factor One: The of the question The threshold is whether the interval between (March 2004) Ariegwe’s accusation and scheduled trial date is at days, thereby triggering speedy analysis. least 200 further trial days; however, District Court found the finding interval be 388 an incorrect was based on determination ofwhen the trial clock began to Although change run. the court’s error does not the outcome (the under question ultimately concluded, this threshold court correctly, that further speedy analysis required), trial was it is still necessary, below, for purposes analysis to ascertain the correct length delay. (‘We Relying Bruce, on will first consider length delay charges from the time are . . . until the defendant’s trial filed (emphasis added)),

date.” the District Court measured from the date 2003). the State filed original Information (February However, as clarified above: protection

[T]he by [speedy afforded guarantee trial] prosecution activated when criminal begun has and extends to persons those who formally have been accused or charged prosecution arrest, course that whether that by accusation be the filing complaint, of a indictment or information. (1981) Larson, 957-58 added). Here,

(emphasis Ariegwe an became “accused”for purposes January 18,2003, on when he was arrested in relation to the charges subsequently February filed on the interval between days. accusation and trial was 408 inquiry The second under Factor One is the extent to beyond 200-day trigger Here, stretches date. bringing Ariegwe days beyond to trial stretched 208 trigger date-more than twice the amount of is considered sufficiently prejudicial trigger result, test. As State must provide particularly compelling justifications for the Two; Four, under Factor and under Factor the State must make a highly persuasive showing Ariegwe not prejudiced delay, while the quantum proof may expected Ariegwe

492 correspondingly lower.

under this factor is Delay for the 2. Factor Two: The Reasons justifications The issue under Factor Two is whether delay weigh for or periods various of by the State for the proffered of his to a Ariegwe deprived was against the conclusion determination, identify necessary it is trial. To make this each bringing Ariegwe to attribute period each of assign appropriate and to Ariegwe, to the State or period and specific on the cause weight period to each based culpability. Setting: May case was The first trial date set First Trial February Ariegwe’s selected at which the District Court delay (measured from This constitutes a 115-dav arraignment. 2003 accused). The 18,2003, Ariegwe an January the date on which became Ariegwe he had days one of these because District Court attributed February judge on request for substitution filed did However, “delay,” Ariegwe’s request and question here is one of days all 115 are attributable not in a later trial date. result however, in the criminal type is of the inherent delay, the State. This requirements and such due to the court’s docket built-in justice system hearings, pretrial and discovery, the omnibus and status reciprocal delay. such, days constitute institutional motions. As Setting: September The trial date was Second Trial second days delay. The District Court added an additional which days a result of the Court’s delay Ariegwe of this “as charged 20 counsel’s summer vacation.” accommodation of defense scheduling days it caused charged to the State “because was were remaining discovery to the defendant”-a timely provide failure to by the State’s evidence credible supported substantial finding comply with twice ordered to prosecution was Specifically, record. to make 46-15-322, upon request, (requiring prosecutor, MCA § defendant available to the his or her control enumerated items within in the District Court’s reproduction)-first for examination Date, Discovery, and Requiring Trial 20,2003 Setting Order February March and second in the court’s Hearing, Omnibus Setting However, prosecution Memorandum and Order. Hearing Omnibus Thus, Pretrial orders. his discovery these fully comply did not with that he had been unable 15,2003, Ariegwe stated April filed Motions investigation legal factual and pretrial [his] out carry “to the hard drive concern was particular for trial.” Of prepare otherwise evidence. might exculpatory contain he believed computer, ofhis had computer that while the explained prosecutor response, Ariegwe’s living quarters the time of the initial search of been seized at (on 2003), January 18, assigned had not been to this case. detective Helena to the sending computer “And rather than over to so Justice, sitting it in Evidence.” Department justification suggest attempt does not a deliberate This rather, defense; suggests a hamper Ariegwe’s the trial in order to it understaffing diligence part combination of and lack of on the scale, delay occupies ground culpability State. Such the middle on the though diligence clearly wrong the lack of “on the side of the divide acceptable unacceptable delaying between reasons for a criminal prosecution begun,” Doggett, once it has at U.S. S. Ct. Accordingly, days delay resulting of the 125 of from the second ¶128 setting, days 105 are attributable to the State as a result of understaffing diligence10 days and lack of and 20 are attributable to Ariegwe scheduling as a result of the District Court’s accommodation of defense counsel’s summer vacation. Setting: 27,2003, Third Trial The third trial date ¶129 was October days delay. which added an additional 42 postponement of This was 9, the result of the prosecutor’s September 2003 motion to continue and, thus, by was attributed the District Court to the State. As for categorizing delay (e.g., bad-faith, lack diligence, of institutional, reasons), or for valid the motion does not disclose the particular prosecutor’s brought reason for the A request. postponement by about a motion that presumed does not reveal the basis therefor is unjustified weighed heavily against proponent, and is unless evidence elsewhere in the record establishes otherwise. See Morris v. (8th 1975) Wyrick, (assuming 516 F.2d Cir. on a record that did not reveal the reason justifiable for the that there was no and, reason accordingly, weighing delay heavily against state). Here, the record reveals that the motion was necessitated in delivering testing State’s evidence for at the crime lab.

the 42 days are attributable to the State as the result lack 10 reason, contrary Olmsted, For this we overrule our statements to the in State v. (“The 301, 55, 66, 55, 1154, 1998 MT 292 Mont. 968 P.2d 55 fourth factor of the ¶ ¶ ¶ test, defendant, prejudice Barker to the must be demonstrated defendant before violation.”), Foshee, 326, 333, 601, there is a 938 P.2d (1997) (“A criminal defendant must show that he or she has been somehow prejudiced by the this Court will hold that the State has violated his or her before trial.”), 121, 17, 332 249, 17, Mooney, MT Mont. to a and State v. (“Because Mooney not satisfied the we conclude that has test, prong prongs.”). of the Barker we decline to address the first and second

diligence. Setting: Trial The fourth trial date was November Fourth delay. This postponement added an additional 28 davs of which continue, 10,2003 prosecutor’s result of the October motion was the “the in this matter is ground she filed on the evidence which Laboratory, and... currently being tested at the Montana State Crime setting.” current trial testing completed will not be time for the State, charged delay, the District Court This which in nature. institutional Setting: 8, 2003, Trial The fifth trial date was December Fifth delay. was postponement added an additional This which davs by the District Court due to a conflict sponte the result of a sua order such, in the court’s calendar. As it is institutional. Setting: January date Sixth Trial The sixth trial was delay. This postponement

which added an additional 28 davs continue, 2003 motion to which Ariegwe’s the result of November waiting for test ground parties he filed on the were still Court delay, from the crime lab. The which the District results State, institutional. correctly charged to the Setting: seventh, final, trial date was Seventh Trial delay. added an additional 56 This March davs motion Ariegwe’s the result of December postponement was continue, grounds yet on the that he had not received which he filed time to review the report the trace evidence and that he needed days had four earlier. The serology report, and DNA which he received 5,2004 January trial date and scheduled a District Court vacated the 22,2004. At that defense counsel hearing January hearing, status and the reports, had all crime and the court stated that he received lab attributing In this on the March 1 trial date. parties agreed then that the State’s failure delay, the District Court determined period timely manner had necessitated reports the crime lab a produce days the court attributed the Ariegwe’s motion to continue. delay. to the State as institutional Summary: trial sum, accusation and the interval between ¶134 that, days are attributable to days. case Of was the State due delay, days are attributable to State as institutional delay are attributable to State diligence, days to lack of and 105 diligence, lack of for a understaffing part by and in part by caused in days, remaining for the days. Ariegwe responsible total of 388 scheduling Court’s result the District which were summer vacation. of defense counsel’s accommodation One, required the State was discussed under Factor As case, for the in this justifications compelling provide particularly 200-day beyond stretched the extent to which the given establishes, however, that 95% foregoing analysis The trigger date. Significantly, more attributable to the State. in this case is (i.e., in nature due to delay was institutional than half of the State’s control), but that fact beyond prosecutor’s largely circumstances far, burden to assure only given primary so that the takes the State is “on the courts and brought that are to trial promptly cases regard, In this Barker, 407 U.S. at S. Ct. at 2191. prosecutors,” necessitated, according to a here was significant portion Court, timely discovery provide “the State’s failure to the District timely produce [crime and “the State’s failure to to the defendant” Ariegwe’s living reports.” lab] The fact that evidence seized from months, rather than “sitting was left in Evidence” for several quarters with being analysis, sent to the crime lab for is inconsistent promptly reasons, that diligent a of this case. For these we conclude prosecution Ariegwe was weighs Factor Two favor of conclusion deprived right speedy of his to a trial. Responses Delay

3. Factor Three: The Accused’s responses Three the accused’s The focus under Factor is on surrounding on the delay, which are evaluated based totality responses-which of the accused’s circumstances. actually speedy he a trial-is then indicative of whether or she wanted balancing. three factors in the overall balanced with other here, however, Ariegwe During period the time at issue test, only right that the operating required under our Bruce which any time to the commencement of speedy prior a trial be “invoked at trial, trial, by moving a to dismiss for by demanding speedy either Bruce, suggestion is no provide speedy failure to trial.” 57. There infer, may based on in Bruce’s articulation of Factor Three that court the accused’s right the accused’s assertion of the timing of speedy did or did not want a responses pretrial delays, other that he Indeed, trial. we stated right to a trial magical

there is no time for assertion favorably the defendant than weighed should be more his or her long other So as the defendant asserts some time. grounds a motion to dismiss on

to a has conclude that the defendant prior filed to the time of further the Barker test and that third-prong satisfied the unnecessary, only inappropriate. but analysis prong of that is not Bruce, not reasons, Ariegwe did or did any inference For these speedy given timing

want a of his motion to dismiss on speedy grounds trial and his other responses pretrial delays, would hand, above, of questionable accuracy. explained On the other applying are the revised trial test to the facts of this case to process illustrate the litigants benefit of the courts and the who cases, applying omitting analysis will be the test future an undermine goal. Factor Three revised would that Under these circumstances, therefore, proceed analysis we will with a full of Factor case; however, Three in this we will accord little weight this factor balancing, given Ariegwe in the overall operating under the mandates of Bruce. begin by noting Ariegwe We filed his motion to dismiss on (35 trial). 26,2004 However,

January days general before as a rule the mere fact that the accused filed a motion to on speedy dismiss trial grounds prior sometime to the commencement of trial is itself of little probative question right value on of whether the has been violated. Rather, right we must view the assertion of the in the context of the case as a whole. regard, Ariegwe’s this we observe that motion was filed on day (Actually,

the 373rd in this case. he first asserted his right days January 22, four earlier at 2004 status hearing forthcoming.) and indicated that a written motion would be If Bruce, operating not for the fact that he was under the mandates of Ariegwe’s waiting long past 200-day trigger date to assert the suggest being would that he was not interested in particularly brought to trial sooner.11 record, however, contrary Other facts in the support instance, during period immediately following

conclusion. For his arraignment, Ariegwe items from requested number discoverable drive, evidence, (e.g., computer physical the State his hard certain concerning the photographs police, taken medical records K.M., tape-recording examination and treatment R.K., records); telephone conversation between K.M. and Ariegwe had respond requests, when the State did not to these basis,” Pretrial April made “on an informal he filed his Such asking provide Motions the court to order the State to the items. right on We do not mean this that an accused must assert the object every requested by Day prosecutor. manner. many; that an accused should continuance discovery timely Cooperation completing matters in a is essential Rather, timing merely among we note the of the motion as one consideration certainly dispositive weight. it is not entitled in the elsewhere early stages appears of this case in the persistence along, not to sought move the case record, Ariegwe suggesting Two, Indeed, responsible he was as noted under Factor delay it. case, which indicates no 408-day delay in this only days Furthermore, although Ariegwe appears part. on his stonewalling in affidavit delay, explained that he his acquiesced have in some of his motion to dismiss as follows: attached to have on three occasions my attorneys I that do understand at the extent that I was consulted delayed. trial be To requested my attorneys all, delays to these because only I consented to me was delay, painful personally, me no matter how convinced what necessary opportunity and have the to review to obtain might be essential evidence. circumstances, Ariegwe it that wanted be appears

Given these brought trial sooner rather than later. Barker, Court observed: Supreme likely the more a defendant is deprivation,

The more serious the speedy right, of his trial complain. The defendant’s assertion then, evidentiary weight determining in strong is entitled to right. being deprived the defendant is whether Here, Barker, 531-32, Ariegwe did 407 U.S. at 92 S. Ct. 2192-93. (which discovery “complain” delay providing about the State’s in complaints postponement), necessitated the first but no additional January 22, hearing-the in the record until the 2004 status appear that he would day delay-when defense counsel indicated 369th facts grounds. on trial While these filing speedy be a motion to dismiss weight in a case where the accused was significant would be entitled to test, accord them little speedy under the we operating revised under the Bruce test. We weight Ariegwe operating here since was to the totality Ariegwe’s responses various simply observe that case, reluctance to delays including apparent his pretrial counsel, notwithstanding the advice of is consistent acquiesce Thus, that Factor brought to trial. we conclude with a desire to be Ariegwe that was slightly in favor of the conclusion weighs Three accord this factor though to a we will deprived ofhis balancing. weight little in the overall Accused Prejudice

4. Factor Four: Ariegwe is was Lastly, the issue under Factor Four whether As bringing him to trial. as a result of the prejudiced above, prejudiced the accused has been presumption that explained analysis date for 200-day trigger arises on the by the minimal) (at time. while it and intensifies over point parties question both should come forward with evidence on the (or thereof) prejudice, weigh party’s the court must each evidence lack light intensifying of this presumption. Specifically, gets longer, necessary showing by the accused of particularized necessary showing by decreases while the the State of no prejudice simultaneously purposes case, increases. For of this concluded under presumption Factor One had intensified to point highly at which the State must make a persuasive showing Ariegwe prejudiced by delay, quantum was not while the proof may expected Ariegwe under this factor correspondingly lower. Prejudice light is assessed in of the interests that the

trial right designed protect: preventing oppressive pretrial was incarceration, minimizing anxiety presence and concern caused charges, limiting possibility of unresolved criminal that the Here, ability present accused’s an impaired. effective defense will be Ariegwe’s the extent of pretrial days following incarceration was four arrest, his which he conceded in the District Court not oppressive. Likewise, in response argument potential State’s that all of the evidence in the case had been and that all preserved Ariegwe’s potential witnesses at testify were available to he conceded that any point specific impairment ability present he could not of his (though point an effective defense he did out that a certain amount of impairment-e.g., dimming presumed given memories-must the be length delay). the Accordingly, Ariegwe emphasized minimizing the interest in dismiss,

anxiety and concern. In an affidavit attached to his motion to consequences he described numerous that had flowed from the charges against Specifically, being existence of the him. his accused of him sexual relations a minor had caused and his with tension between (with residence), they sought ex-wife whom he shared a and had counseling as a result. Their oldest child had been taunted at school. Ariegwe resigned position youth had his as a counselor to troubled at A.W.A.R.E., charges humiliating Inc. because the were “so especially my pendency due to the nature of work.” He stated that the him charges from in his chosen field as a precluding employment was making employment opportunities in other youth counselor and was at Lastly, acknowledging uncertain. that “all defendants suffer fields distress,” in that particularly he asserted that his “is acute least some only prospect imprisonment disqualification I live with not the and Nigeria]” I and my employment, deportation [to from chosen also face society my children.” “loss One to his affidavit. supporting exhibits Ariegwe attached two clinical social worker letter from a licensed

was a December Ariegwe who stated psychotherapist, certified and board anxiety.” The other level of “moderate to at times severe experiencing ex-wife, stated Ariegwe’s from who 2003 letter was a November of what night, at was fearful having sleeping had trouble that she been family, and was worried about thinking about her and her people were also testified to having on her children. She the effects the case was hearing. trial speedy this effect at the by Ariegwe and his experiences described Unquestionably, the anxiety life, in turn created disruptions to his which

ex-wife constitute However, trial family. his the in him and concern by of life caused arrest guarantee disruption serves “to shorten the MacDonald, charges,” 456 U.S. presence of unresolved criminal added), disruption not to eliminate the (emphasis S. Ct. at 1502 bringing altogether. question here is whether Ariegwe unduly prolonged disruption aggravated trial being that are inherent accused of a crime. anxiety and concern Furthermore, correctly during prosecutor pointed as the out anxiety by hearing, experienced the focus is on the and concern Ariegwe, right applies; anxiety to whom the family only to the extent that experienced concern his are relevant by Ariegwe. they anxiety experienced affected the and concern affidavit, the State took response Ariegwe’s motion and by Ariegwe were not anxiety that the and concern cited position instance, For bringing caused him to trial. resign position his as a argued Ariegwe’s decision to prosecutor him, charges against youth was due to the nature of the counselor Likewise, humiliating.” she “especially he had characterized as of contact with his that his concern about a future devoid contended deported upon possibility that he would children was due to acknowledged conviction, bringing him to trial. She not the relationship to the strain on his delay may that the have contributed due more to ex-wife, she that this strain was opined with his but delay. length to the of the charged offenses than nature Ariegwe pointed out prosecutor’s argument, to the response in articulated his anxiety the and concern although that some of crime or due to being charged with a either inherent affidavit was offenses, being “there’s a difference between charged the nature days of 90 period in one’s life for a these kinds of stressors subject to of 380 period stresses for a being subjected to those days or 180 ... and State, Court, however, with the ultimately agreed days.” The District finding primary Ariegwe’s anxiety that “the source” of and concern was the charged nature of the offenses and that while the in bringing him to trial had “contributed somewhat” Ariegwe’s anxiety concern, “it did substantially, aggravate not it ... to the extent warranting dismissal on that factor alone.” Ariegwe assigns error analysis District Court’s on two First, grounds. he claims that erroneously required court him “to his apportion anxiety and concern between the nature of the offense charged, delay.” however, and the apportionment, necessary, Such given guarantee that the serves to shorten the disruption by presence charges, of life caused of unresolved criminal not to make criminal charges “humiliating” unsettling. themselves less hand, Ariegwe anxiety On the other is correct that and concern caused charged may unduly the nature of the prolonged offenses in a given anxiety case. But he has not demonstrated that his and concern unduly prolonged were in this Accordingly, case. we conclude that the apportionment Ariegwe’s anxiety District Court’s of and concern is not clearly erroneous. Second, Ariegwe claims that the District erroneously Court

required demonstrable, him to show “a direct effect” that the had anxiety ability present on his and concern and his an effective Doggett, defense. on Relying argues requirement he that “a actual, prejudice accused demonstrate provable inappropriate.” This Doggett, however, interpretation is too broad. It is true that “consideration of prejudice specifically is not limited demonstrable,” delay presumptively compromises that “excessive reliability ways or, party prove a that neither can for that matter, identify,” proof particularized and that “affirmative Doggett, prejudice every is not essential trial claim.” 505 U.S. However, above, 112 S. Ct. at explained may rely presumptive prejudice depends extent to which an accused on beyond 200-day on the extent trigger extends hand, presumption date. In the case at while the did operate Ariegwe’s favor the State make a requiring highly persuasive showing prejudiced by delay, that he had not been entirely presumption strong Ariegwe was not so was relieved showing Accordingly, making particularized prejudice. of some we showing by the District did not err in requiring conclude that Court Ariegwe of some prejudice. demonstrable Four, then, Proceeding, with an evaluation of Factor highly persuasive showing required

conclude that the State made the Ariegwe prejudiced by bringing not him to trial. conceded, complete a demonstrated, Ariegwe and First, the State Second, the State incarceration. pretrial oppressive absence of had an effective defense ability present Ariegwe’s demonstrated that Third, delay in this case demonstrably impaired. not been inherent in anxiety and concern that are aggravated the somewhat demonstrated, however, and crime; a the State being accused of anxiety found, Ariegwe’s primary that “the source” District Court Taking these three charged the nature ofthe offenses. and concern was showing State’s we conclude that together, considerations One under Factor outweighs presumption prejudice established that Four, therefore, weighs against the conclusion and that Factor speedy to a trial. Ariegwe deprived right was of his Balancing B. the four assessing speedy A a trial claim must balance court weights case and the particular

factors based on the facts of the by itself; assigned dispositive to each factor. None of the factors is rather, together considered with the factors are related must be may right other circumstances as relevant. But because the such be accused, must right process trial is a fundamental this recognition be carried out with full the accused’s interest in a specifically trial is affirmed in the Constitution. Here, weighs Ariegwe’s Factor One in favor. It establishes that Likewise, delay days in Factor significant of 408 occurred this case. weighs favor, 408-day delay Ariegwe’s given Two in that 95% of the significant was to the State and that the record reflects a attributable diligence providing discovery lack of on the of the State in part sending timely to the crime in a manner. Factor Three evidence lab favor; however, according in we are this weighs slightly Ariegwe’s balancing, given that relatively weight factor little in the overall during period test the time Ariegwe operating was under the Bruce and, thus, we have drawn based on his issue here the inferences delays questionable in this case are of responses pretrial accuracy. totality Ariegwe’s various simply We observe Finally, brought a desire to be to trial. responses is consistent with in this case weighs Although Factor Four in the State’s favor. inherent anxiety and concern that are aggravated somewhat showing crime, highly being persuasive accused of a the State made a to the nature Ariegwe’s anxiety primarily and concern were due bringing him to rather than to the charged offenses trial. showing highly persuasive the State’s We conclude that (Factor Four) (Factor outweighs the extent of the

of no One) (Factor Two). causing culpability the State’s We although totality Ariegwe’s responses further conclude that pretrial delays brought with a desire to this case consistent (Factor Three), relatively weight assigned to trial little have enough tip Ariegwe’s factor is not the scale in favor. We Ariegwe therefore affirm the District Court’s conclusion that not deprived of his to a trial. Did the Issue Two. District Court abuse its discretion in

denying Ariegwe’s motion a new trial? Background I. Ariegwe contends that the District Court abused its discretion

¶157 in granting not his motion for a new trial. The basis ofthat motion was (1) that object allegedly improper defense counsel’s failure to to hair (2) comparison testimony by during one ofthe State’s trial and experts the prosecutor’s representations inaccurate of certain scientific during closing arguments Ariegwe evidence had denied a fair and impartial Although specifically “premise[d]... trial. the motion was on prosecutor,” Ariegwe the conduct of defense counsel and the both has object not renewed his claim based on defense counsel’s failure to comparison testimony. Accordingly, only the hair focus on the we will prosecutor’s closing arguments. Griffin, During the State called Michelle a forensic specializing serology analysis

scientist and DNA at the State Crime Ariegwe’s Lab. Griffin had examined a blanket seized from bed and eight found stains on the blanket. One of these stains tested positive (an saliva), amylase enzyme subsequent found and DNA analysis stain, presence multiple revealed the contributors to Ariegwe. specifically, two of whom could have been K.M. and More “cannot that excluded as Ariegwe Griffin testified K.M. and present [in that and that “there is data there contributors to mixture” Ariegwe].” stain] [K.M. not associated with and testimony during closing argument, the Paraphrasing Griffin’s stain, in the prosecutor stated that the mixture of DNA found saliva excluded, Ariegwe from which and K.M. could not be performing [K.M.] is consistent with the Defendant oral sex with bed, mixing running and onto that body on that fluids they genetic And that’s found. Their material was blanket. what bed, together. Right [K.M.] on that mixed in the area where found says place. [Emphasis added.] this took object point prosecutor’s Defense counsel did not at this Rather, that during closing argument he out his pointed misstatement. Ariegwe “cannot be excluded” only Griffin had testified that K.M. stain. mixture found in the saliva of DNA as contributors however, again suggested rebuttal, prosecutor During her together mixed had, fact, found DNA been Ariegwe’s that KM.’s buy Ariegwe’s argued that order she Specifically, on the blanket. K.M. was “so 15-year-old have to believe story, jury would forensic evidence plant that she knew to savvy and so smart” that she needed ludicrous. She . .. knew rape. a claim of “It’s support vaginal fluid with some of her of the Defendant’s saliva plant some counsel did very point, At this defense spot-” in the on that blanket evidence, any as to the by testimony, by object: supported “That is not There was no they found. There’s no evidence. source of the DNA objection. any vaginal fluid.” The court sustained testimony as to knew that “[K.M.] then continued: Notwithstanding, prosecutor of hers mixed in with some form of DNA substance place she had to blanket, where very place on the at the some DNA substance of his found, saliva is and she claims oral sex occurred.” rebuttal, judge called counsel to Following prosecutor’s ruling on defense regarding conference his the bench for sidebar not jury probably that the had objection. judge counsel’s stated [his] he had done so “under objection, heard him sustain the because there no errors in the Since he wanted to make sure that were breath.” case, jury that there was judge indicated that he would instruct K.M.’s Ariegwe’s any had been found in no evidence DNA agreed, and defense counsel and the vaginal prosecutor fluid. The judge jury then instructed the as follows: deliberations, made jurors, Mr. Sehestedt proceed

Before we with that I during argument Miss rebuttal objection an Weber’s that my I that under breath. I’m not sure sustained. did almost you. that was audible to case, you telling in this I’m

And so that there’s no confusion there no evidence in this case that the right the record now that alleged any vaginal found in fluid of the Defendant’s DNA was victim in this case. thereafter, began their deliberations.

Immediately jurors trial, Ariegwe argued “[w]hile that In his motion for a new right suggest inferences-identified prosecutors have the evidence, they from the have they jury wish the to draw such-which weight beyond greater the record or make go no had done so in prosecutor He that the presented.” evidence asserted about the representations “inaccurate and untrue by making this case evidence.” motion, the Ariegwe’s In its order on agreed. The District Court

court observed that “the State’s improperly counsel did fact and inaccurately represent jury genetic ‘[t]heir that material was ” (alteration bed, found on that mixed together’ original). The court compounded “[t]he further observed that State’s counsel then problem during argument” suggested rebuttal when she that K.M.’s vaginal Ariegwe’s fluid and had together saliva been found mixed on However, had, the blanket. the court noted that sponte, given it sua curative Ariegwe requested any instruction and that had not further clarification or curative Accordingly, instruction. the court concluded that “to the erroneously extent that State’s counsel or improperly characterized the jury during closing arguments, evidence to the error was contemporaneously cured the Court’s curative instruction.”

II. Standard of Review 46-16-702(1), MCA, Section provides “[following a verdict finding guilty, may grant the court the defendant a new trial if required justice.” in the interest of Our standard of review of a trial ruling court’s on a motion depends for new trial on the basis of the 158, Kelsey, 24-27, motion. See Giambra v. 2007 MT 338 Mont. ¶¶ 24-27, 162 P.3d (clarifying 24-27 that our standard of ¶¶ ¶¶ ruling review of a trial court’s on a motion for a new trial based on insufficiency novo, of the evidence is de not manifest abuse of discretion, given that the trial court’s conclusion as to whether sufficient ultimately analysis evidence exists to convict is an discretion). facts, application Here, of the law to the not a matter of basis of the new trial motion is that the prosecutor’s inaccurate representations of certain during closing arguments evidence denied Ariegwe impartial analysis a fair and trial. The of this claim entails an prejudicial evaluation of the effect of the inaccurate representations and the remedial value of the The trial court’s curative instruction. judge, having present throughout been the course of the trial and having jurors firsthand, position observed is in a better than are we to conduct such an evaluation. We thus will review District ultimate Court’s a fair Ariegwe determinations was not denied trial, therefore, impartial required that a new was not Goettle, justice the interests of for abuse of discretion. See State v. (1992); Staat, Mont. 831 P.2d State v. 596-97 Mont. 1, 9-10, (1991); Dubois, 822 P.2d 648-49 2006 MT cf. 57-61, 57-61, 57-61. In order to ¶¶ ¶¶ ¶¶ discretion, must Ariegwe establish that the court abused its arbitrarily demonstrate that the court acted without conscientious and, further, judgment or exceeded the bounds of reason Price, 2006 MT State v. prejudicial. was court’s abuse of discretion 17; 46-20-701(1), MCA. ¶ § 331 Mont. ¶ ¶

III. Discussion had finding prosecutor that the In of the District Court’s light and jury that KM.’s inaccurately” represented

“improperly blanket, on the together” had been found “mixed Ariegwe’s DNA by he prejudiced on the issue of whether was Ariegwe focuses KM.’s regard, argues In this he representations. inaccurate thing, the State’s case. For one testimony alone could not have carried consent, without which jury acquitted him of sexual intercourse testimony. jurors fully did credit KM.’s his view indicates that the not addition, following argument by prosecutor points In he during argument: her rebuttal said, You gentlemen, this is not a he she said case.

[L]adies case. You rely only testimony [KM.’s] don’t need to on this photographic supports evidence that what she told the have You hair evidence. You have fiber evidence. You have police. have injury physical DNA saliva evidence. You have evidence you psychological injury, support have evidence of all of which day. on that happened [K.M.’s]version what argument acquittal charge and his on the of sexual Given consent, contends that the forensic Ariegwe intercourse without expert’s testimony “played part a crucial in the state’s case” and that DNA, prosecutor’s representations inaccurate about “mixed” therefore, impartial his to a fair and trial. prejudiced however, representations, inaccurate were prosecutor’s jury, addressed the District Court in its curative instruction to the improper effect of potential prejudicial “[t]he and we have said that not to arguments may jury be cured when the has been admonished Gladue, evidence,” MT regard those statements as specific issue any sufficient to cure here is whether the court’s instruction was not “mixed” DNA. that resulted from the misstatements about regard, Ariegwe light repeated “[i]n contends that In this instruction, closing, one curative in the state’s representations judge himself was unsure following ruling objection on an confidence, heard, said, remedied cannot with have jury even instructing the contends that problem.” response, the State the Defendant’s DNA jury that “there is no in this case that evidence case,” in this any vaginal alleged fluid of the victim was found defense, given that he actually Ariegwe’s “aided” court’s instruction At charge intercourse without consent. acquitted of sexual least, the very argues, the State the court did not abuse its discretion in denying Ariegwe’s ground motion on the that the instruction cured prosecutor’s error. agree above, point. We with the State’s latter As noted the ¶168 District in denying Ariegwe’s Court reasoned its order motion that “to improperly erroneously the extent that State’s counsel characterized jury during the evidence the closing arguments, the error was contemporaneously by cured the Court’s curative instruction.” The conclusion, record supports this as does the fact that jury the presumed Turner, to have followed court’s instruction. See State v. (1993) (“It 39, 55, 262 Mont. recognized is a well principle juries presumed of law that are to follow the given law as them.”); Long, 2005 MT (“[T]he jury presumed ignore cannot be their duties court.”). respect the instructions Accordingly, applying our

standard of ruling Ariegwe’s review the court’s on motion for a new trial, hold that he has not demonstrated that the court acted arbitrarily judgment without conscientious or exceeded the bounds denying reason in that motion. discussion, concluding Ariegwe’s Before this we note

¶169 brief argument by that he prejudiced prosecutor’s was also testimony regarding misstatement of blanket fibers found K.M.’s Ammen, expert underwear. Alice an in trace hair and fiber examination, examination testified on direct that “highly it was probable” that KM.’s underwear had come in contact with the blanket However, Ariegwe’s acknowledged recovered from bed. Ammen on “entirely cross-examination that it was possible” that blanket fibers on socks, sweater, garments-her jeans, K.M.’s outer and blouse-had placed transferred to KM.’s underwear when all of these items were Furthermore, in a together pile following at KM.’s house the incident. examination, only say on redirect Ammen would that the number blanket fibers found on KM.’s underwear was “more indicative” of During argument, direct transfer than indirect transfer. her rebuttal however, prosecutor stated: “The issue cross-contamination by you ruled out Alice Ammen. She told the fiber transfer Ariegwe objected [K.M.’s] underwear was direct.” these evidence, supported by statements were not but the court objection. overruled the by Ariegwe argues prejudiced prosecutor’s now that he was cross-contamination concerning

incorrect statements fiber objection. Yet, Ariegwe did not District Court’s failure to sustain his (He make in his motion for a new trial. did mention argument fibers, fist he did not testimony regarding but Ammen’s new as a basis for a prosecutor’s testimony misstatements ofthat it.) therefore, Court, Accordingly, the did not address and the District not concerning fiber cross-contamination are prosecutor’s statements Court abused its determining whether District relevant denying Ariegwe’s motion. discretion sum, District Court did not abuse its we conclude Ariegwe’s motion for a new trial. when it denied

discretion Three. Is the District Court’s restitution order Issue illegal? Background

I. offenses, Ariegwe’s Court found that as a result of District $3,332.68 family pecuniary loss of due K.M. her had sustained medical, counseling, travel that the expenses; uninsured and related Compensation Crime Unit had incurred costs Montana State Victims partial compensation amount of K.M. and her $38.40 in the family; family her incurred medical and that K.M. and had counseling Co. in expenses that were covered EBMS Insurance $10,863.58. court, therefore, Ariegwe The pay amount ordered to specified doing, these In so restitution to victims the amounts. however, acknowledged regarding it the court that had no information Ariegwe’s ability pay financial resources and future to restitution. For reason, Ariegwe requirement this contends the restitution is that illegal.

II. Standard of Review year criminal We sentences that include at least one review Herd, 85, 22, legality only. State MT actual incarceration for v. 2004 ¶ 22, 490, 1017, “legality” 22. term in this 320 Mont. 87 P.3d The ¶ ¶ signifies mere inequity context that “we will not review sentence for 5, 317, Webb, 8, 8, v. 106 disparity.” State 2005 MT 325 Mont. ¶ ¶ 521, Rather, determining review is confined to whether P.3d 8. our ¶ sentence, statutory authority impose to the sentencing court had 71, 471, 41, 206, Hicks, 41, Mont. 133 P.3d ¶ State v. 2006 MT 331 ¶ 12, 109, 12, 41; Ruiz, 117, 327 112 P.3d State v. 2005 MT Mont. ¶ ¶ ¶ 12, 1001, parameters within the set whether the sentence falls ¶ 71, statutes, Seals, 7, sentencing v. 2007 MT 336 ¶ State applicable 180, 15, 416, 15, 7; MT 7, 156 Montoya, v. 1999 ¶ Mont. P.3d State ¶ ¶ 15, 937, 15, the court 288, P.2d and whether ¶ 295 Mont. 983 ¶ sentencing applicable adhered the affirmative mandates 41, 46 (1995); statutes, Pence, 223, 231, 902P.2d see v. 273 Mont. State 7; Pritchett, 261, 7, 1, 539, 302 Mont. P.3d ¶ ¶ 2000 MT ¶ 130, 34, 136 507, Shults, P.3d v. 2006 MT 332 Mont. ¶ ¶ State 508

¶ We have “legality” characterized this standard more generally reviewing 16, as for v. Megard, 84, correctness. See State MT ¶ (“This 27, 90, Court reviews a ¶ district ¶ imposition legality only. court’s of sentence for question is one of the determination law and interpreted whether the district court (citation correctly.” omitted)); law v. Sprinkle, State 2000 MT (‘We 4 P.3d Mont. review the district court’s application sentencing determine statutes whether correct.”). court question district This determination is a of law and, such, Seals, our is de review novo. 7.¶

III. Discussion matter, preliminary Asa argument we will address the State’s Ariegwe should not be challenge allowed to the District Court’s order appeal. Ariegwe restitution on The State claims that “refused to [with cooperate probation and officer parole prepared who presentence investigation report] and therefore he cannot now benefit wrong.” from his own The State support argument cites no for this pertinent statutes, Sikora, but on v. instead relies Sikora 27, 30-33, (1972), Mont. 810-11 we held where that a surviving widow, pleaded guilty voluntary who had manslaughter husband, wrongful of her could not benefit from her act in his share estate. out, however, Ariegwe argument As points the State’s factually incorrect. probation parole When officer arrived at jail Ariegwe, simply interview he stated that he would like to attorney with meeting consult his before with the officer. He was time, aware that his motion for a new pending trial was at the and he explained trying get attorney he had been hold of his for four record, agree weeks but had been unable to do cannot so. On we with State’s “refused Ariegwe cooperate” assertion with the Furthermore, authority officer. have been presented with no proposition that an offender is not with his or entitled consult her meeting attorney probation before with the officer. parole We reject that should Ariegwe therefore State’s contention precluded challenging from the District Court’s order. restitution sentencing statutes in at the time of the commission effect ¶178 possible Tracy, control sentence. v. 2005 offense State 128, 16, 220, 16, 297, Ariegwe MT 327 Mont. 16. ¶ ¶ ¶ attempted committed the crimes of sexual intercourse consent without 17, and with on 2003. January unlawful transactions children sentencing apply. 2001 statutes (2001) 46-18-201(5), that “if the provides MCA Section a has sustained sentencing judge finds that the victim of offense judge require payment of full loss, sentencing shall pecuniary through 46-18-249.” provided to the victim as in 46-18-241 restitution officer, 46-18-242(l)(a), MCA, turn, requires probation Section to officer, designated person include other restitution ability future the offender’s financial resources and “documentation of (“PSI”). investigation report to in the pay presentence restitution” 1, 539, Pritchett, 261, MT v. 302 Mont. P.3d State MCA, 46-18-201(5), subject “is “general we held that mandate” § to qualifications to detailed and found in 46-18-241 procedures §§ MCA,” 249, courts not to a impose and that district “are authorized statutory all these additional sentence restitution until Pritchett, Thus, given 7. PSI in requirements are satisfied.” ¶ case financial resources his failed to document Pritchett’s ability restitution, pay future to we held that the district court’s Pritchett, illegal. restitution order was We reached the same ¶ 284, 23, v. 1999 MT 297 Mont. P.2d Hilgers, conclusion State Muhammad, 2002 MT 309 Mont. 43 P.3d 318. Muhammad, Dunkerson, 13-14; 47; Hilgers, See accord State v. ¶¶ ¶ (“Failure 2003 MT ¶ report PSI contain of... an financial of a to documentation offender’s ability pay sentencing resources and future to renders a district court’s (‘When illegal.”); 46-18-242(2), of restitution see MCA § but may presentence report requested, is not authorized or the court ability pay of the offender’s at the time of receive evidence ... sentencing.”). Likewise, hand, in the case at the PSI did not contain Ariegwe’s ability

documentation of financial resources and future sentencing pay presented restitution. Nor was such evidence 46-18-242(2), hearing pursuant Accordingly, MCA. hold § impose [the] the District was “not authorized to sentence Court restitution,” Pritchett, illegal. and that the restitution order

CONCLUSION Ariegwe’s denial of motion We affirm District Court’s We affirm the District Court’s dismiss for lack of trial. also However, a new we reverse Ariegwe’s denial of motion for trial. restitution under portion Ariegwe’s requiring pay sentence him (2001) case Court 46-18-201(5), and remand this to the District MCA § hearing by resentencing a correct pursuant for a restitution followed (2001). -249, through MCA complete 46-18-241 application of §§ part, Affirmed in reversed in part, and remanded for further proceedings consistent this Opinion. with GRAY, RICE, COTTER,

CHIEF JUSTICE JUSTICES LEAPHART, MORRIS and WARNER concur.

JUSTICE RICE specially concurring. I Opinion Because believe the accurately interprets and states law, I joined I have it. write only to bemoan the law’s complexity. factors, Incorporation newly all the previously interpreted, of, fear, has led I herein creation of all “mother balancing tests.” principles governing application The outline Court factors has included in is helpful and appreciated, regret only summary and I requires test single-spaced three I pages. sincerely wish the best to counsel and the trial courts in working principles, making with these and in a record I also day thereof. look forward to the when I topic see a seminar law article entitled Simpler Speedy Analysis.” review “Toward a Trial MORRIS,

JUSTICE JUSTICE LEAPHART and JUSTICE join concurring opinion WARNER of JUSTICE RICE.

Case Details

Case Name: State v. Ariegwe

Court Name: Montana Supreme Court

Date Published: Aug 16, 2007

Citation: 167 P.3d 815

Docket Number: 04-620

Court Abbreviation: Mont.