*1 MONTANA, STATE OF Rеspondent, Plaintiff Appellant. CURTIS, BETTY ANN Defendant No. 89-422. on Briefs Dec. 1989. Submitted Decided Feb.
CHIEF JUSTICE Opinion TURNAGE delivered the of the Court. juryA District, County, Fourth Judicial Betty Ravalli found Ann guilty felony checking theft from a account and of a deposit belonging certificate of elderly patient to an under her care. appeals grounds She now on pre-indictment delay, of excessive lack speedy and refusal of a directed verdict. We affirm.
ISSUES 422-day delay 1. Did a completion between of the crime and the filing of the complaint criminal right violate the defendant’s to due procеss? 291-day Did a filing complaint between the of the criminal
and the beginning right of trial violate the defendant’s trial?
3. Was following the evidence the State’s case-in-chief sufficient to IV, refuse the defendant’s motion for a directed verdict on Count theft of a deposit? certificate of
FACTS Octogenarian Dorothy life-long home of Bullock lived alone his Hamilton, niece, Whitefish, Curry, Montana. His Carol lived uncle, Montana. She did relationship not maintain a close with her power but attorney held a enabling supervise her to his financial affairs. nurse,
In November practical of 1985 Bullock hired a licensed *5 Betty Curtis, help daily paid with his affairs. Bullock Curtis be- to cook, clothes, per clean, buy tween month to wash $800 $1000 and Curtis, groceries, hiring Bullock and run errands. Two months after up personal rep- аttorney appointing had his draw a Curtis his will resentative, and, among dispositions, leaving other his home 1986, April power in provided Hamilton. In of he Curtis with a of attorney safety giving deposit her access and to his box bank accounts. 1987,
In spring Curry suspicious of Carol became when she no- change ticed banking April a dramatic in On Bullock’s activities. 1987, she County investigate, asked the Ravalli sheriff’s office to and they Curry’s suspicions. In confirmed March Bullock’s check- writing average per increased from an five to of seven checks month twenty thirty per Many checks month. of those checks went to Curtis and her April sons. Between March of 1986 and of Cur- $34,540, tis $2,467 checks totaling average per received 161 an of $2,760 month. Barry Curtis’s son Todd son received and her re- $1,500 checking ceived from Bullock’s account. $20,000
Investigating officers also discovered loss of a certifi- deposit jointly by cate of held and Bullock his brother Clarence. On the morning of March and the certifi- Bullock Curtis took box, cate safety it, purchased from deposit Bullock’s cashed a new jointly by certificate held Bullock and Curtis. One week later $19,931.46. $6,700 proceeds, certificate cashed for Of was was deposited in Kyp satisfy the account of son Curtis’s and used to a judgment repossess car. Seven thousand dollars deposited $6,231.46 was remaining in Curtis’s bank and the account $6,231.46 was week, joint taken in deposited cash. next was a checking Betty Kyp account names of Curtis.
On complaint June against аppellant charg- a filed ing felony four counts on March of theft. The trial commenced competent 1989. The District Court Bullock ruled that was not testify guilty jury on on two substantive issues. The found Curtis counts; checking one of theft from another of Bullock’s account and appeals deposit. theft her of the certificate Curtis now of conviction.
DISCUSSION speedy pre-indictment delay her accusations and lack appellant length presents question. The close difficult and delays investigation from to accusation from accusation to trial approach the tolerable constitutional limits. The exclusion of the victim as potentially exculpatory possibility witness raises the great prejudice conсerns, against the defense. Because these we analysis out set our in commensurate detail. begin by noting
We
lumped together
arguments
pre
on
arguments
lack of a
trial and
on excessive
delay.
Supreme
indictment
The United States
Court utilizes differ
by
ent
Speedy
guaranteed
standards
for each of these issues.
trial is
the Sixth
Amendment
United
ana
States Constitution and is
Wingo
Barker v.
lyzed
according
to the standards
set
out
407 U.S.
92 S.Ct.
L.Ed.2d
117. Freedom
pre-indictment delay
from excessive
guaranteed
statutes
limitations and
Fifth
analyzed
and Sixth
It is
ac
Amendments.
*6
States v.
cording
(1971),
set out United
Marion
to the
in
standards
307, 323-24,
455,
U.S.
465,
468,
404
92 S.Ct.
30 L.Ed.2d
480-81.
rights
These
complimentary
in
protect
act
to
fashion
the criminal
delay
defendant
from
investiga
unreasonable
time
from the
when
begins
tion
to
when
the time
trial commences. The
limita
statute of
process
tions and
investigation
due
cover from
when the
the time
begins
point
accused,
to the
which
at
the defendant
the
whereas
guarantee
covers from the accusation to the time when
v.
(1977),
United States
Lovasco
begins.
783, 788-89,
431 U.S.
2044, 2048,
752,
S.Ct.
97
52 L.Ed.2d
758. This Court
the
utilizes
(Mont. 1988),
State v. Bartnes
analysis.
same
522,]
Mont.
764
[234
1271, 1273-74,
v.
2101,
(1982),
State Goltz
St.Rep.
2103;
197
45
361, 365-66,
1079,
(1974),
State Burchett
1081-82;
642 P.2d
280,
974,
cert. den.
283,
471, 473,
95
530 P.2d
420 U.S.
1397,
(1975).
S.Ct.
PRE-INDICTMENT
Under
process analysis,
the due
the
the defendant has
burden
proving
intentionally delayed charging
de
whether the State
gain
any delay
fendant
advantage
a tactical
whether
caused
Marion,
at
prejudice
actual
to the conduct of the defense.
U.S.
Bartnes,
1274,
L.Ed,2d
481;
92 S.Ct. at
at
764 P.2d at
appel
at 2013. We need not
in
case whether the
decide
prove
lant
prejudice
must
since
both intentional
and actual
sufficiently prove
she does
lat
not claim
former
and fails to
Goltz,
See
ter.
Prejudice to the Defense appellant argues 422-day delay that between the final offenses, 30, 1987, April date of the commission of the and the date complaint filed, process June violated her due rights. She prejudiced asserts that her because defense during leaving time Bullock’s mental condition deteriorated him According appellant, unable to exonerate the defendant. to the if earlier, memory trial had been held Bullock’s would have been freely money intact and he would gifted have testified that he question to Curtis and points her children. The to testi mony given by indicating sharp, various witnesses that Bullock was alert, competent January, April, May, September By 1987. began 1989, however, the time trial on March Bullock’s memory point of the events had deteriorated to the where the trial adjudged incompetent court him testify.
Prejudice
primary
pre-indict-
defense is the
consideration
delay.
ment
inability
adequately
prepare
of a defendant
“[T]he
system.” Barker,
his case
skews the fairness of the entire
U.S.
at
92 S.Ct.
particular,
L.Ed.2d at 118.
loss
of a
ability
witness’s
disputed
seriously
to recall
impair
events can
Barker,
defense.
See
In this the record contains considerable evidence which discredits the claim of due to Bullock’s memory. loss of
First, during presented the defense much of the evidence to which alleges Bullock would have testified. As noted appellant, a ability number of witnesses testified on Bullock’s *7 handle his financial during disputed affairs the time of the transac- tions. presented testimony given by during defense also Bullock competency hearing in testimony, June of In Bullock that stated that he was aware of his financial condition and that Curtis wrote the signed deposit ap- checks and his the certificate of with proval. by signed defense introduced an Bullock on affidavit May 14, 1987, to the same effect. in [Betty having
“That Ann for me consideration of cared Curtis’s] my and I personal years, assisted me all of have affairs for several given money wages her and other are intended to be itеms which gifts and many for the kindnesses shown me.” recognize We im- that have the same second-hand evidence cannot pact jury purported on a aas statement of exoneration victim defense, however, of the precluded present- crime. The was not from ing the theory. essential facts its supporting
Second,
date,
if
even
been
trial had
held at an earlier
appellant
not
shown that
the court would have allowed Bullock
testify.
to
Following
competency hearing,
the June 1987
the court
held that
competent
manage
Bullock
to
his financial and
personal
appointed Curry
permanent guardian.
affairs and
his
as
affairs,
While
competency
manage
of
to
standard
one’s
72-5-
§§
316(1), -409(2)(b), MCA,
compe
is not identical
to the standard of
State v. Coleman
tency
testify,
to
den.
cert.
448 U.S.
101 S.Ct.
(1980), the may evidence indicates Bullock not have been com petent testify early investigation as as began. June when the
Third, testify, has not shown that even if allowed to Bullock would have testified for defense. The record indicates changed that Bullock allegiance hiring his Before several times. Cur- tis, power Bullock attorney supervi- trusted his niece awith of sion of his presence bank accounts. Curtis After became a constant life, in his began Curry. January Bullock In to favor her over of signed he a will devising appointing his house to Curtis personal representative. April gave Curtis as In of he Curtis a power attorney Curry checking of ovеr his account. When discovered depletion spring began of Bullock’s account she proceedings gain court guardianship full Bullock. On over learn- ing guardianship proceedings May, fully turned Bullock against gave general power attorney, his niece. He Curtis re- Curry’s power previ- voked attorney, rewrote his will to delete a Curry, ous devise to stating and wrote the affidavit above-mentioned that the gifts. July posi- transactions were lost her Curtis caring By Sep- tion for Bullock and her influence over him ended. opinion tember he had revised his her. Bullock wrote a new will deleting Curtis, Curry per- his replacing devise to her as his with representative, reinstating Curry. sonal his former devise scenario, loyal apparent From this it is remained that Bullock only during period Curtis in which constant influ- she exerted held, ence over his life. Even if had and Bullock al- the trial been just testify, early September might lowed to as as as Bullock well have testifying been the State’s star the influence witness about him. exerted over testimony concern the loss of about Bullock’s *8 by depose thirty days prior undermined her failure Bullock until v. to trial. See Shurtliff memory 306. If deteriorating, testimony Bullock’s and if his defense, appellant preserved was essential to the the could have exculpatory testimony by taking deposition Bullock’s any his at time Indeed, charges July after were filed in of 1988. the exclusion of Bul- may lock given appellant have possible. the the best defense She presented early exculpatory evidence of Bullock’s statements with- running out testimony changed risk of after adverse Bullock his opinion of Curtis.
Fourth,
prejudice
question
the issue of
ais
of fact which
Dis
trict Court
on
decided
two different occasions. Six weeks before
trial, the
appellant’s
District Court denied the
motion to dismiss for
lack of a
trial. The court considered Bullock’s mental condi
prejudice
by
tion and
appellant’s
found no
defense caused
commencing
notes,
appellant
As
trial.
the District Court
apparently accepted the State’s contention
mental
that Bullock’s
condition
improved
had
actually
not deteriorated but had
between
beginning
investigation
approaching
trial date.
days
Ten
rejеcted
before
appellant’s
the court
mo
renewed
again
tion to dismiss. The court
considered Bullock’s mental condi
tion and
change
Although
found no
from the summer of 1988.
specifically appealed
has not
rulings
on
District Court’s
the mo
dismiss,
give
tions to
weight
we
substantial
to the District Court’s
Coleman,
competency.
determinations of a witness’s
at
27,
Finally, appellant required purported is to show that prejudice Goltz, than speculation. more mere Mont. at Here, P.2d at 1082. foregoing indicates that the trial; argument is not on it is based what Bullock would have said at based on say what the con desired Bullock to at trial. We clude the appellant proving that in her suffi failed burden prejudice cient to the defense.
Investigаtive Delay case, proven if prejudice Even some had been allowing time outweigh necessity must reasonable Goltz, 368-69, investigate the crime. 197 Mont. at Lovasco, Supreme 1083. In United States the United States in- recognized protects Court investigative that reasonable potential terests of both the From the de- State and the defendant. would, perspective, premature fendant’s indictment filed, charges being “increase the likelihood of unwarranted during would the defendants stand accused add to the time which but since ... untried. These costs are no means insubstantial *9 liberty, disrupt may formal accusation interfere with the defendant’s resources, employment, his associa- his drain his financial curtail tions, him, public obloquy, аnxiety in his subject him to and create family and his friends.”
Lovasco,
(Cita-
791,
2049,
at
The in the record the case contains no evidence prosecution’s long delay reasons for the in indictment. We have that, in- only “The before us the State’s unsubstantiated assurance year required vestigation period more than one covered delving involving belonging into numerous bank records accounts this, appellant nothing Against four different individuals.” the offers delay necessary in to show that the was not reasonable and relation complexity investigation. of the Lovasco, Supreme faced a similar situa- the United States Court explicitly on holding government, tion. In Court relied for the the prosecution’s delay given government’s in briefs reasons for the the Lovasco, 97 S.Ct. at arguments. and oral 431 U.S. at (1958), v. Court, Ciucci Illinois Supreme L.Ed.2d at 763. Like the 839, 840, 983, 985, generally we 356 U.S. 78 S.Ct. 2 L.Ed.2d only par- in accept presented will the not unsubstantiated evidence (1978), State v. Tiedemann briefs, ties’ however, nor- delay, are not investigative 1287. Reasons for Fur- evidentiary rеcord.
mally may produce an issues and thermore, case, evidence offered no the case, the Therefore, we follow in this counter the State’s contention. were Supreme statements assuming prosecution’s Court the good rendered in faith. length complexity warranted
We hold that of the evidence investigative period. requirements of the of a in- conscientious vestigation outweighed prejudice, any, may if which oc- have pre-indictment curred. did not violate the right process. to due TRIAL
SPEEDY
start,
parameters
At
we set
out
basic
of the
analysis
inquiry
under the Sixth Amendment. The
centers on four
(1)
(2)
(3)
length
delay,
delay,
factors:
the reason for the
defendant,
(4)
right by
the assertion of
Barker,
defense.
407 U.S. at
at
S.Ct.
Length Dеlay primary importance first element is of triggering the re- analysis. mainder of the go beyond The court need not the first ele- Barker, ment presumptively prejudicial. unless 407 U.S. 117; at State v. Wiman S.Ct. at 33 L.Ed.2d *10 180,] 1200, 1202, St.Rep. [236 If 46 283. the delay court finds presumptively the prejudicial, be the State has the rebutting burden of presumption by providing the a reasonable explanation delay showing for the the defendant was not State v. Wombolt (Mont. prejudiced. 1988), 400-403, 753 330, 331, St.Rep. P.2d 45 716. complaint 2, 1988,
Here the was filed on June and trial 20, 1989, on creating delay days. commenced March 291 a of parties’ concerning point briefs exhibit de some confusion at what lay confu attributable to the Some defendant be considered. should sion is surprising not cases considering the case Some recent law. deducted determining time attributable the before defendant delay whether long presumption the enough to establish a prejudice.1 delay Other cases the did consider such until after presumption dealt it had been established and with analytical delay.2 under element, the second the for the reasons procedure appropriate.3 We believe that the second is more length delay analysis. speedy is the considered twice in trial instance, merely first it fur trigger acts as a whether to determine inquiry warranted, length ther is inquiry If warranted. further is 300 component of the delay again
of the is considered as an inextricable Barker, U.S. at element, delay. 407 reasons for the See second 117; States v. Colombo 33 L.Ed.2d at United 92 S.Ct. at (1st 1988), 852 F.2d 24. Cir. delay trigger pro- primary purpose length as a is to of the warning parties rudimentary of when
vide the with a courts and alleges speedy speedy problems may a defendant a trial arise. When violation, delay rough measure of length of the acts as a ele- inquiry Incorporating into that whether further is warranted. delay caused and how arguments ment over how much the State complicate measure and caused would much the defendant thereby dilute its usefulness. quantification of the procedure signify precise a
This does not for sev overly-specific objectionable An is triggering time. measure may First, bringing a case to trial eral reasons. the tolerable time for recog practical policy We have vary years over for reasons. delay length acceptable policy nized that as a matter 331-32, Wombolt, 753 P.2d at gradually be shortened. should (1984), 434, 442, 716-17; St.Rep. at State v. Chavez (Mont. 1981), [_Mont._,] 1365, 1370; State v. P.2d Fife policy Against such considera sys weigh reality overburdened court tions we must of an often simply speed; is guarantee is not it goal tem. The of the preventing op orderly disposition proceedings while of criminal States v. Marion pressive prosecution. United tactics Wiman, 468, 474; 455, 459, 30 L.Ed.2d 404 U.S. 92 S.Ct. St.Rep. at 281. 769 P.2d at
Second, may longer than case warrant the facts of the individual that the delay. Supreme Court has stated usual The United States determining complexity whether may of the case be a factor dеlay analysis: trigger should further inquiry is necessa- provoke ... an length of that will
“[T]he take case. To rily dependent upon peculiar circumstances ordinary for an example, that can be tolerated but one serious, conspir- complex considerably less than for a street crime acy charge.” See 530-31, at 117.
Barker,
33 L.Ed.2d
U.S. at
92 S.Ct. at
*11
(6th
1369;
Chavez,
441,
v. Smith
P.2d at
Cain
also
301 However, circumstances, sumption complex- prejudice. in unusual ity may a become factor.
Finally, actively speedy if the defendant avoids analysis may regardless length delay. be not warranted (1988), 180, 264, 177, State v. Wirtala 596, St.Rep. 599. apparent exceptiоn adopted procedure
One here arises accused, prosecution cases in which the defendant has been but the procedurally proceeding In United States v. barred from to trial. Supreme Loud Hawk the United States Court held that a seven- year delay during prosecution’s appeal of dismissed indictments speedy excluded from the Loud Hawk defendants’ trial claim. (1986), 654, 640, 474 U.S. 106 S.Ct. 88 L.Ed.2d 652. Similarly, Armstrong 407,] State Mont. held this Court [189 three-year stay pending corpus that a petition a habeas not should (1980), Armstrong be 424-25, counted. 616 P.2d delays specifically defendants; are Such attributable to the are, they properly, during more time which the clock does not run presumption and should not triggering count toward prejudice. judice, delay the case days sub of 291 is sufficient to raise a presumption require inquiry. further State v. See 25, 27-28, (256 Palmer days). The State now has providing explanation the burden of a reasonable for the and to prejudiced by show that the defendant was not delay. Wombolt, 753 P.2d at at 716. Delay
Reasons for parties agree days that fourteen are attributable appellant. appellant produced seven-day delay by ask- ing August for a arraignment August continuance of 10 to from arraignment appellant requested 1988. At the a substitution Judge District August Court James B. Dis- Wheelis. On trict Judge jurisdiction produc- Court Gordon R. Bennett assumed ing seven-day delay appellant. another attributable to the days January 31, also asserts that ten between dismiss, when the defendant filed first and Feb its motion ruary motion, when the District Court refused the should charged be against appellant. State v. Kerns The State relies on period during which this Court excluded the defend- which *12 Kerns (1986), 172, ant’s motion pending. to dismiss was 223 Mont. 174, 1190, 725 P.2d 1191.
Kerns case. Kerns the Dis- distinguishable present is from In delayed hearing setting trict Court the omnibus and of the trial date Here, until after it had ruled on motion the defendant’s to dismiss. the District Court Curtis’s motion to considered and decided dismiss 27, setting January 1989, proposed after trial date. On the Dis- February appellant trict Court set the trial date for 27. The moved January to dismiss on 31 the court decided the issue on Febru- and ary pre-established 10. Since the entire issue was settled within the schedule, delay chargeable against trial it is caused no (1987), v. Pease аppellant. 424, 428-29, See 227 Mont. 740 662. is, however, appellant properly twenty credited with a five-day delay by caused another defense motion. The District Court granted uncontested motion to continue the trial February appellant date from 23 to March 1989. While the cor rectly points period out that the State used this to continue trial preparations, appellant fails to show that the State could not continuance, therefore, proceeded have to trial without it. The falls entirely appellant. days on the Of the entire 291 from accusation to trial, thirty-nine days appellant are attributable and the State explain remaining days. must Judge
The retirement of
Bennett at the end of December
delay.
replacement,
1988 caused some of this
His
District Court
Judge Jeffrey Sherlock,
hearing and set the trial
held the omnibus
State v.
February
delays
date on
1989. Such
are institutional.
Ackley
(1982),
252, 256,
(delay
653 P.2d
caused
institutional).
by
judge
provides
election of
no
new
held
The State
explanation
except
parties
remaining
for the
both
were
time
that
preparation up
therefore
involved
to the time of trial. We
days
chargeable
concluded that
of institutional
the State is
with
heavily
State,
delay.
delays
weighed against
not as
Such
are
but
Chavez,
delays resulting
oppressive
as
from
tactics.
unusually long,
is
Although
not in itself sufficient establish a trial violation. Waters Against 619. Barker delay, we must factors. balance other Right Assertion The State concedes satisfied the third element by moving speedy January to dismiss grounds on on again on March
Prejudice to the Defendant
considering
analysis,
the final
factor
the court
(1)
protected
must look to
right
the interests
trial:
prevent
incarceration; (2)
oppressive pre-trial
to minimize the de
(3)
concern;
anxiety
fendant’s
impairment
to limit the
Barker,
118;
defense.
atU.S.
The District allegation anxiety Court found no proof serious or of agree. and we The dismissal letter shows that Curtis lost her em- ployment with County, why Ravalli but not she lost it. The presentence report indicates that she to at was able work her normal occupation Valley View, though at perhaps not for her chosen em- ployer, up until employment the time of conviction. Her continued any should mitigated anxiety have Curtis suffered. anxiety notoriously existence of or emotional distress is diffi prove. to impossible
cult
is
The State
with
of
facеd
the near
burden
proving
that,
it
recognized
does not
“The
exist. We have
State’s
lighter
burden to
prejudice
considerably
show a lack of
in
becomes
Ackley,
the absence of
prejudice
appellant.”
evidence of
Mont. at
necessarily
854. It
State’s
at
follows that the
considerably
burden to
lack
anxiety
lighter
show a
of
becomes
marginal
absence of
anxiety.
more than
evidence
anxiety
Even if
presented
anxiety,
Curtis had
some
evidence
anxiety
she suffered was not
“A
uncommon.
certain amount of
Waters,
concern
being
is
inherent
accused
a crime.”
at
and then con-
We have determined present analysis any prejudice. if that the defense suffered little prove only a lack of differs in that the burden is on the State de- prejudice. previous analysis Based on our fense, adequately we met its burden. hold that the State
Conclusion collectively factors We must the four consider case; particular no one relation to the circumstances deprivation necessary factor is either or sufficient establish Barker, at at 33 L.Ed.2d right. 407 U.S. at S.Ct. required 118; Wombolt, at 716. The time normally ex bring longer this case to thаn would be pected in adequate explanation other than and the State offers no has, however, delay. that the stitutional The State shown normally expected. Fi anxiety be suffered little more than would nally, importantly, that the loss and most contention primarily on prejudiced of Bullock is based as a witness defense factors speculation supported by Taking all of these the record. appellant’s right to a together, violate we hold that the State did not speedy trial. *14 VERDICT
DIRECTED case-in-chief, di- appellant moved for a Following the the State’s motion denied the rected verdict on all counts. The District Court One, Bullock’s theft from jury guilty and the found Curtis on Count Four, Bul- account, theft of checking Count Citizens State Bаnk County deposit. lock’s Ravalli Bank certificate of close at the deny verdict grant The decision to or a directed the prosecution’s the discretion of of the case-in-chief is within de acquit the may to court. The trial court exercise that discretion a upon which only presented no evidence fendant when (1988), 231 Mont. jury State v. Miller guilty could base a verdict. 497, 508-509, of 1282. In our the trial court’s review decision, question reviewing
“the relevant is the evidence whether after light prosecution, any most favorable to the rational trier fact beyond could have found the of the crime a rea- essential elements sonable doubt.”
Miller, P.2d at statute cited Count Four states:
“(2) person A purposely commits the offense of theft when he or knowingly deception property or over obtains threat control the owner and:
“(b) purposely uses, conceals, knowingly prop- or or abandons erty deprive property such manner as . . .” to the owner of the 45-6-301(2)(b), Section MCA. appellant argues granted that the court should have
the directed verdict as to Count Four because the State failed to used, concealed, introduce showing evidence that Curtis or aban (cid:127) purpose doned the depriving certificate with the of his Bullock property. joint She contends knowingly that Bullock made her deposit, owner of the gave power attorney, certificate of her his approved cashing of her the certificate. Although superficially pеrsuasive, are Curtis’s defenses real Haack, State v. Haack issue as the case recent demonstrates. In $30,000 the victims up checking authorizing set a joint account defendant contractor to withdraw funds finance construction of their home. charged allegedly The defendant with when theft he $10,000 withdrew more personal purposes. than for unauthorized that, law, We affirmed the District ruling Court’s as a matter of governing statute deposits joint deposit, Joint certificates of § 32-1-442, MCA, precluded application of theft to withdrawals laws Haack from such accounts.
1001, 1003.
Haack is distinguishable In present from the case. that case the charged stealing defendant was from an with account which fully-informed purpose. No given viсtims him for lawful had access allegation by intending was made that them the defendant deceived from arrangement. steal he account when entered into the present case, however, had the issue not whether power dispute cash certificate. State does not gave certificate, joint power Bullock ownership *15 attorney, approval why he and of her actions. The real issue is did precise allegation so. The or State’s is that Curtis deceived giving approval. threatened Bullock into her that access and The evidence is uncontested cashed the certificate of that Curtis deposit thereby purposely depriving for her own benefit Bullock of its use. The State no that Curtis threаtened Bul- offered evidence only question presented enough lock. The left is whether the State any pur- evidence that rational trier of fact could find that Curtis posely knowingly through or obtained control over the certificate de- ception. We hold that it did. finding purposeful knowing decep
The task of
evidence of
or
tion in
straight
this case would be much more
forward if the record
Swope
conspicuous
contained evidence of
Curtis. See
v.
untruths
(Tex.
1986),
evidence,
App.
State
While jury a close relied on this case could have intentionally the State’s circumstantial evidence to find that Curtis prior employing deceived Bullock. The evidence establishes that Curtis, frugal spending Bullock was a man seldom more than was necessary daily Curry for given his needs. Bullock had his niece a power attorney indicating that he oversee his financial affairs Curtis, was unsure of his situ- own abilities. When Bullock hired attorney dramatically changed. acquired power ation months, period took control of thirteen Bullock’s finances. Over a gradually siphoned money steadily diminishing she funds. out of his money gave She used the her children. for her own benefit and it to finances, Curry Curtis knew but failed had control of Bullock’s alleged gifts. to communicate that from with her about the We hold appel- jury scenаrio a reasonable could have concluded that the intentionally aged lant vulnerable used her influence over the Bullock acting against to deceive him his own best interests. into questions on presented
While the difficult close and issues, uphold her all contains sufficient evidence to record conviction.
Affirmed. HARRISON,
JUSTICES WEBER concur. BARZ and McDONOUGH, dissenting: JUSTICE analogous issue is to Senator Everett Dirkson’s statement of a billion dollars here and a billion dollars there and pretty money being soon a lot In this there thrown around. case prejudice is a charging, little before more before little *16 a major alleged and infliction of the was when victim incompetent found testify. to speedy
The
rights
defendant’s
trial
were violated.
day delаy
A
charges
filed
occurred between the time the
were
and
days
chargeable
the time of trial. The
asserts
are
that
days.
to the
delay
magnitude
defendant. This leaves 242
A
of this
speedy
inquiry.
inquiry
necessitates a
trial
When faced with such an
the State must
a
delay
assert
reasonable excuse for the
and show
Furthermore,
that
prejudiced.
the
pre-
defendant was not
is a
there
sumption
prejudiced by
delay
that
the defendant was
and it is
the State’s burden to overcome it. The State has
to do so.
failed
State v. Waters
presumption. delay The District Court found the attributable retirement of the presiding judge delays sys- within the and other Normally, tem. due to the inherеnt of criminal characteristics our justice system, six unexpected a not of month between time charging Any systematic delays and the time longer of trial. than six months, however, extraordinary compelling must he or else charges should be dismissed. are Such circumstances not shown presiding judge officially Monday here. The retired on first January of Furthermore, he retire State knew that would charges even before were filed June of 1988. These facts do extraordinary rise to the compelling. level of right speedy applies constitutional to all branches government. conduct, prosecute, judiciary executive to to legislative and the to impediments not to or fail enact constitutional provide sufficient resources set to the other branches. Under the presented by case, government circumstances this it is clear that duty right failed in its to to afford the defendant her constitutional delays” trial. not satis- “Institutional as set forth here are factory excuses.
Moreover, presumption delay prejudiced there is a that this victim, defendant. The who was in fact the salient witness case, very elderly was a eighties subject man in his who was all deficiency. vagaries age, particularly of advanced There mental witnesses, was not unusu- extraordinary the case number of was no practically all bank were ally complex, documents and written However, 14 months investigative subpoenas. by records obtainable authority until enforcement transpired complaint to law from the period time the During this charged. the time the defendant was attorney the com- will, for prepared victim wrote a new compe- attorney that the victim plaining witness. This testified trial, ap- However, by the time dispose property. tent to of his testify. later, incompetent to deemed proximately 18 months he was bringing delay in the defendant The State’s reasons for the pre- clearly support the which the facts are insufficient overcome prejudiced. sumption the defendant was who present witnesses was able to argues that defendant The State alleged competency the time of testified as to the victim’s present her case before acts аnd therefore was able criminal vic- presenting the However, prevented her from jury. cross- prevented her from part in chief and has tim as of her case alleged crimi- surrounding the examining him to events as the actual nal acts. state, im- physical and mental age, of the victim’s view presump- testimony, has not overcome
portance of his the State *17 compe- known the have prejudice. The State knew or should tion of likely tency important for the defense of the most witness bring steps take Despite knowledge it did not deteriorate. be reversed and case should matter to and therefore the charges dismissed. foregoing dissent in the concur JUSTICES SHEEHY and HUNT McDonough. justice
FOOTNOTES 1200, 1202, (Mont. 1989), 180,] 46 P.2d State v. Wiman e.g. Mont. 769 [236 1. See 369, 363, 389, Forsyth (1988), 45 279, 283; P.2d State v. St.Rep. Mont. 761 233 1191; 1190, 172, 174, (1986), 1577, 1581; P.2d State v. Kerns Mont. 725 223 Britton 227, 234; v. 117, State (1985), 107, 708 P.2d State v. Robbins 218 Mont. 159, (1983), Kelly 1256, 1260; v. (1984), 155, 161, 203 Mont. State 213 Mont. 689 P.2d 161, 26, P.2d 661 v. 1379, 1381; State 315, 311, (1988), 749 P.2d State v. Morris e.g. Mont. 230 2. See (1986), 486; 223 v. Palmer 138, 140-41, 484, Tilly State (1987), 737 P.2d 227 Mont. 441-42, 434, (1984), 691 28, 956, 958; v. Chavez 25, State Mont. 723 P.2d 853; 851, 252, 256, Ackley (1982), P.2d 1365, 1370; 653 State v. Mont. 201
P.2d (1980), 958; 954, 187 State v. 257, 262, v. Larson 623 Shurtliff 303, 235, 239-40, 305-06.
309
procedure
majority
3. This
is utilized
of the federal circuit courts. The cir
universally
only
length
cuit courts near
look
to the unallocated
deter
mining
presumption
They
delays
whether a
arisen.
credit
to the de
prosecution only
presumption
finding
fense
after
exists. See
that such a
(1st
1988),
19, 24;
United States v. Columbo
v.
Cir.
852 F.2d
United States
Richards
(8th
1983),
995,
(11th
1982),
997;
Cir.
707 F.2d
United
v.
692
States Varella
Cir.
F.2d
1352, 1359,
(1983);
cert. den. 464 U.S.
104