*1
MONTANA,
STATE OF
Respondent,
Plaintiff
v.
Appellant.
FORSYTH,
JERRY PAUL
Defendant
No. 86-492.
5,May
Submitted
1988.
Aug.
Decided
Keller argued, Robert S. Kalispell, for defend- ant appellant. Greely, Gen.,
Mike Atty. Smith, Atty. argued, Robert F.W. Asst. Gen., Helena, Lympus, Ted O. argued, County Atty., Kalispell, plaintiff respondent.
MR. JUSTICE McDONOUGH Opinion delivered the of the Court. Forsyth appeals his conviction for deliberate This homicide. case first Kalispell went to trial conviction resulted this Court reversed because the was not instructed the ele- Forsyth ments of deliberate homicide. State v. 197 Mont. 248, 642 P.2d A second trial at Poison 1982 resulted in a hung jury. The Kalispell third trial 1985 resulted the convic- Forsyth appeals. tion We affirm.
Forsyth presents the following issues for review: (1) Whether the Court failing grant Forsyth’s erred in motion to dismiss for speedy lack of trial?
(2) Whether the failing grant Court erred in motion to dismiss for denial process of due because: *5 394 favorable, evidence, or properly
A. to disclose new The State failed contrary District unfavorable, appellant’s guilt, to the the issue of standing Court’s order. exculpatory deliberately
B. evidence. withheld The State without prosecution of a critical witness C. The State initiated purpose of discred- probable trial for the sole cause one week before iting the witness.
(3) permitting to add a wit- in Whether Court erred grant failing in For- ness in the of and then erred middle syth’s request consequence? for mistrial as a
(4) place of trial failing to order the Whether Court erred Forsyth’s County, denying motion for outside Flathead new accordingly? trial
(5) grant motions failing Whether Court erred upon newly discovered evidence? a new trial based (6) attorney’s fees? failing to award Whether Court erred (7) increasing the sen- the Court erred in defendant’s Whether tence, time for failing defendant with to credit incarceration? victim, Forsyth, surrounding Karen facts the murder 248, v. in State 642 P.2d 197 Mont.
are recorded I delay issue, contends connection with the first speedy trial violated
between his second trial and his third to the rights. Forsyth presented following as relevant documents speedy trial issue: — for a 2, request Court
January 1983 Defendant’s oral transcript of the second — 11, continue January his counsel 1983 Defendant’s motion that expense. appointed, paid be at State — transcript of for a January 1983 written motion Defendant’s the second trial. — jeop- double
January 25,1983 Defendant’s motion dismiss prosecutorial miscon- ardy upon tampering and grounds jury based Douglas Rich- duct, strike the as well as motion to evidentiary incompetent; grounds he was ards on the prosecutorial tampering and hearings requested were as to misconduct.
395 — February Hearing on Defendant’s motions. 1983 — February 14, filed, Indigency Defendant’s Affidavit request of Court. — Crowe,
February 22, Gary Esq., to Letter of the Court ex- represent plaining being appointed his conflict interest Defendant. —
February 28,1983 denying all requesting Order motions and acceptable to either arrangements Defendant make suitable and counsel, present appoint with his or the Court would counsel from defenders; public indigency Defendant’s status affirmed. — response March Defendant’s Court’s Order 28, 1983, February coupled request a written with for the *6 of the second trial. — 15,
March 1983 Supreme Defendant’s Petition to the Montana Court Supervisory for a Writ of Control. —
May 11, Supreme 1983 denying Court Order for the Writ grounds premature, and, reason that all but one of the asserted were addition, respect counsel, appointment with to the of showing public had been made that firms defender were incom- petent represent or unable to the Defendant. —
May 17, 1983 requiring Order Defendant to elect counsel five days, selected, if and days counsel five an additional within which notify time to required the Court portion portions of the or of the transcript and the reasons or intended use thereof. —
May 19, 1983 requesting Defendant’s letter to the Court a hear- ing respect defenders, with to the public conflicts of the and re- questing transcript of the second trial. —
May 27, setting 1983 hearing Order appointment on of counsel 22, for June 1983. — 22,
June Hearing counsel, 1983 appointment on of and Defend- ant renewed his motions in writing, appoint firm of Keller and German as public expense, transcript counsel at for a of the second evidentiary and to hearing tamper- conduct on jury ing prosecutorial and the misconduct; of a and informed the court desire speedy for a — 28,
July Attorneys telephone 1983 conference in which the requested Court designate portions Defendant transcript transcribed, requested did not need to be writ- ten parties respect comment both place with of trial. — 12,
August 1983 denying appoint- Order for Defendant’s motion 396 counsel, request tran- on the withholding ruling
ment of script, response by until counsel. — 19,
August Response by and German. 1983 Keller — 23, Allison August appointing Doran and as 1983 Order Messrs. counsel for Defendant. — Supreme August 29, Montana 1983 Defendant’s Petition to Supervisory Court for of Control. Writ — ap- 6, granted, Keller and German 1983 Writ October public expense. pointed as for Defendant at counsel — 18, Supreme Court October 1983 State’s motion Reconsideration. — Order, reaffirming 31, Order of Supreme 1983 Court
October 6, October — transcribed, 14, transcript ordered November 1983 Part attorneys for December conference set tentative trial date set and 12, 1983. — 12, motions Attorneys Defendant’s conference:
December 1983 renewed, tampering and evidentiary hearings on writing, for misconduct, transcript. prosecutorial and for remainder — 23, Change of Venue. December 1983 State’s motion for — Change January 5, Hearing 1984 State’s Motion for on Venue. — Order, 13, transcript January ordered 1984 remainder January vacated. tentative trial date 30 — evidentiary hearings. entry setting March 1984 Minute order — April Evidentiary hearing jury tampering. on — April 6, Evidentiary hearing prosecutorial misconduct. — April second trial volume of Last *7 delivered. — 24, for April motions to dismiss denying Defendant’s 1984 Order Jeopardy lack Due Process. Double and of — speedy of 4, for lack May motion to dismiss 1984 Defendant’s trial. — speedy 10, for of May Hearing dismiss lack 1984 on motion to trial. — 23, dismiss for motion to May denying Defendant’s 1984 Order speedy lack of trial. — Change Place 6, of granting June State’s Motion 1984 Order 1, trial, setting trial of October 1984. of and date — 11, for lack of to dismiss July motion 1984 Defendant’s second speedy trial.
397 — 13, July on Hearing speedy 1984 motion to dismiss for lack of denying and speedy Order Defendant’s motion to dismiss for — July 23, Request 5, transcript hearing January 1984 of of venue), 5-6, (change April (evidentiary hearing 1984 of jury 1984 on tampering misconduct), (second prosecutorial July 13, 1984 speedy hearing). trial
We have reviewed these documents. brief, page
On 48 opening of his concedes that the time 1, 1984, 2, July 1985, between chargeable October to is to the de occupied fense as attempt time an unsuccessful to obtain a writ of (An supervisory 1, 1984, control. October trial date was vacated prior However, to this Court’s of petition.) resolution the writ we beginning 1984, date the of period July as instead of October 1984, because preparation began a letter shows that for this writ in the early 18,1984. lower court at July least as as The letter docu Forsyth’s request ments County prepare to the Clerk of Flathead a hearing the lower court’s tampering on prosecutorial petition. misconduct for use on the writ The relevant period 1983, January therefore from July of 1984. delay contends that caused the State mandates dismis- sal speedy because his rights trial were violated. The District Court rejected Forsyth’s considered and motion for for lack of dismissal speedy holding rigorous trial that a defense rather than conduct part delay. of the State caused the affirm on We this issue.
First,
delay
we hold
length
may
that the
which
be attributed
to the State is
trigger
sufficient
analysis,
further
and therefore
balancing of
Wingo
in Barker v.
(1972),
four factors
set out
407
Bailey U.S.
92
“none of the four recognized factors is suf- as either a or ficient condition a finding right speedy has that the been deprived. Rather, they are related factors and must be considered together may with such other as be relevant. The circumstances Court must engage process. still balancing a difficult and sensitive Barker, See 407 U.S. at S.Ct. at 2193.” Bailey, Larson (Mont. 1981), State v. 655 P.2d at (quoting [191 *8 398 213, 215). delay 954, 957, St.Rep. A lesser 257,] P.2d 38
Mont. complex offenses. simple than for will be street crimes tolerated Bailey, 655 at 498. P.2d complex prosecution is dispute of in this homicide
The focus delay”. capture . . reason for “flag litigants . all seek to 302, 315, (1986), 474 106 S.Ct. Loud Hawk U.S. United States v. 656, 648, 640, Forsyth attacks the District Court’s 88 L.Ed.2d delay In vigorous in this case. conclusion defense caused the that a right his regard, pursuit of constitutional this he contends that the case, delay in much of the this transcript occasioned counsel may rights be at- delay by pursuit of these not and that the caused Bailey. under this Court’s decision tributed to defendant January specifically the time from of contends that it not April to the State because was must be attributed transcript. complete April received until of 1984 that the defense of 1983 that points not until October also out that was appointed. appropriate counsel was delay concerns the on further contention attribution regard, In contends that the change venue motion. this he
State’s 5, 1984, January must attributed time from to June argued period parties venue during the State because that issue. delay pretrial fide responds with bona
The State associated dilatory independently should has not motions where the State been contends the alter- not be attributed to the State. The State also any delay consti- case State native that this attributable heavily than weighed less delay must be tutes institutional which delay. delay prosecutorial caused intentional prior to pretrial lower court analysis An motions made First, in connection position. supports the third trial the State’s counsel, court controversy in lower appointment with the handling Forsyth’s defense hinged firm on whether the law (later Gilmer, trials, Keller and through two Keller and the first Forsyth, help German), represent Forsyth. with would continue to representa- family, paid his had law firm himself for this from exhausted, and By trial these funds were tion. the end of the third public expense. Forsyth requested appointed firm be old County already objected contending that firms Flathead State ex- Forsyth. As public represent should had retainer for defense ap- prevailed plained on the opinion, later below pointment of counsel issue. transcript connection with the motion for a after second objected contending make could do
with the first from the trial. The lower court declined to *9 Forsyth’s transcript request rule on reasoning that counsel should be appointed appointed, according court, first. Once the lower de- fense request specifying portions counsel could make a which of the record be should made available and which should not.
The parties’ venue motion appro- involved contentions on an priate for proposed forum a fair trial. The returning State venue to County, Flathead the venue trying of the first and the case jury with a from County selected Toole agreed residents. that venue changed be County, opposed should from Lake but proposal arguing State’s County that a in trial Flathead would not be fair even if the County. were selected from Toole
A motion alleging prosecutorial to dismiss and misconduct double jeopardy jury tampering accompanied because of Forsyth’s motions appointment for procurement of counsel for transcript of a January of 1983. evidentiary also moved for hearings on jury tampering prosecutorial February misconduct. motions, District Court denied the petitioned this Court supervisory writ This control. Court’s order resolving petition read as follows:
“PER CURIAM:
“Relator petition has supervisory filed for a writ of con- trol post-trial to review various motions of the District Court. State response has filed a written thereto. All have been considered by the Court.
“IT IS NOW ORDERED AND ADJUDGED FOLLOWS: AS “1. accepts jurisdiction petition The Court super- of the writ of visory purpose rulings control for the of the set forth. hereafter
“2. refusing ap- Petitioner claims error District Court point represent firm of law Keller and Gilmer to defendant proceedings public expense. showing further at No been made has public county incompetent that the firms or defender are una- represent Accordingly, ble to defendant. is in the Dis- there no error appoint purpose. trict Court’s refusal Keller and Gilmer for this “3. Petitioner claims error in the to order District Court’s failure preparation public expense. of a of the second record discloses that under ad- District Court held this motion counsel. This pending of the selection of defense visement resolution premature. claim is dismissed as of error evidentiary hearing refusing an on “4. claims error in Petitioner prosecutor his sec- alleged and the bailiff at misconduct prejudice and with- ond This claim of error is denied without presented by defense on It be out a decision the merits. should counsel, selected, pretrial proceedings the next when one before is upon appeal trial, during of conviction. the trial or the event failing to strike “5. claims error the District Court Petitioner alleged the same is be testimony Douglas Richards because given credibility weight of the witness and the incredible. The patently questions jury. for the are Judge remanded to “6. the case should be Petitioner’s claim evidentiary hearing is denied the basis Douglas Harkin for an necessary. evidentiary hearing is foregoing rulings, our copy hereof to counsel of “7. The mail a true Clerk directed to Michael H. respective parties to the Honorable for the record Douglas Harkin.” Keedy and Honorable *10 pe- Forsyth’s supervisory Following disposition first control of attempted tition, lower court where the case returned County could not why public firms Flathead to show defender 22, 1983, the counsel represent the lower court heard him. On June eviden- issue, Forsyth also renewed his motions for and that time at jury tiary charges prosecutorial and of misconduct hearings on his tampering. 12, 1983, Forsyth’s motion for denied August
On the District Court defender, appointed public appointment his firm and of old law supervisory con- Forsyth immediately petitioned and for writ prosecutorial Forsyth’s During period of claims for trol. this time tampering pending. were misconduct and supervisory con- Forsyth’s petition for granted This Court second ordering trol as follows:
“ORDER con- supervisory petition for a writ “Relator has filed a appointment denying Court trol the orders of the District to review represent him expense attorneys public Keller and German Gary attorneys Doran appointing proceedings in further re- filed a written him. State has represent The Robert Allison response have petition and sponse petition. Both the relator’s fully by extraordinary been The nature of this reviewed this Court. explain requires, case the basis for its Order detail. that this Court 11, 1983, May previous petition “On this Court denied control, supervisory stating showing for writ of had been that County public firms incom- made that the defender of Flathead are petent by represent hearing A held or unable to him. was then why public District Court on June to hear reasons defend- County Forsyth. represent ers Flathead Present were unable to Forsyth, counsel, representatives were counsel for the State public county. all firms defender in the “It hearing was established at the the firm of Sherlock and represent Nardi was unable to because of a conflict of inter- by est. That conflict unconstested the State. public Crowe,
“It was Gary further established defender Moore, Crowe, firm of Doran had conflict of interest which prevented him from representing Forsyth. The details of con- flict were hearing recorded at the and Crowe also wrote a letter to the District stating Court prevented that he had conflicts which him from representing Forsyth. prevents Because this conflict Crowe Forsyth, from representing prevents any it also member of Crowe’s firm Forsyth. from representing Responsibility Code of Professional 5-105(D) (1979). DR The District appointed Gary Court nonetheless Doran, firm, represent a member of Forsyth. Crowe’s only
The public remaining County, defender Flathead Robert Allison, appointed represent also the District Court to For- syth. Significantly, practitioner felony Allison is a sole with no experience. An in hearing during camera was conducted the June hearing present regarding information conflicts of interest prevent which Forsyth. transcript Allison representing from hearing was ordered sealed the District Court because contains strategy. discussion of confidential defense District Court opened only ordered that the was to order of *11 this Court. We have examined the contents of that conclude prevent that Allison him has conflicts interest which from representing Forsyth. by
“We hold that in- precluded Doran and Allison are conflicts of Forsyth terest representing felony from and that Allison has no experience. The finding District Court’s such con- that there are no supported reasons, flicts is not find the record. we For these District Court its appointing abused discretion in Doran and Allison represent Forsyth. August 1983 that “The states in its order of District Court also Forsyth under- appoint represent Keller and German to would public services Flat- quality availability defense mine public County of the defender and would drain the resources head support these statements. nothing is record to program. There provide offered to German have “The record shows that Keller and hourly pub- attorneys rate of one for the the services of two arrange- clearly lic what fee defender. It has not been established public County and its defenders ment exists between Flathead extraordinary compensation requiring éxpenditure of in cases spent German amounts of time. The record shows that Keller and 1,650 It is approximately preparation for the first two trials. hours in attorneys by any appointed other preparation clear for trial require and German. The would much more time than for Keller nothing record to contradict the claim of contains costly less representation would be offered Keller and German appointment attorneys. county of new than unique question of lack basic fairness presents “This case stage. a late effectively depriving counsel at such an accused of his represent him in Forsyth privately German to retained Keller and family’s ex- previous his own and his the two trials this case at however, State, con- pense. depleted. The will Their funds are now repre- prosecutors represented by who have tinue be same upon To new sented first two trials. force attorneys stage at this would unfair. be
“THEREFORE, IT IS ORDERED: for writ of jurisdiction petition accepts
“1. That Court this supervisory control. public defend- appointing
“2. That the order of the District Court Forsyth is Gary represent relator ers Doran and Robert Allison to vacated. to re- appoint and German
“3. That the District Court Keller of com- present expense, rate public relator a reasonable pensation Court. District be established coun- copy of Order to
“4. a true The Clerk directed to mail District Court.” respective parties sel of record for the German, the Following appointing this Court’s order Keller began parties and the jurisdiction resumed of the case District Court controver- remaining pretrial process settling substantial sies; trial would the second how much of the from
403 transcribed, prevail on his motions to dis- whether would misconduct, jury tampering, prosecutorial miss for for and and trying where venue lie for the case. should pretrial The as issues set out above were resolved follows: the Dis- provide trict Court a full the ordered that of 1984; January 13, second trial on the District Court conducted hear- ings Forsyth’s jury tampering on motion for and to dismiss prosecutorial 5-6, 1984, April misconduct on and denied the motion 24, 1984; April granted the District Court the State’s venue motion 6, on June 1984. 1984, May July
Between of 1984 and of the Court District consid- ered speedy pre- two motions to dismiss of Hearings for lack motions, ceded both by deny- and the lower court settled the matter ing 13, July Following the second on motion 1984. the denial the of speedy motion, above, Forsyth requested trial transcripts as noted for hearings prosecutorial misconduct, jury on tampering, change venue, speedy of and petition trial submit with another for of supervisory writ control. lengthy
The filings helps recitation of these in analyzing the cause delay of factor from Barker. First, filings demonstrate the time between the second trial and assertion of the speedy right 1984, May trial in up principally of was taken with is- sues court, first settled lower and then reviewed this Court petition on for writ supervisory example, Forsyth of control. For counsel, moved for transcript, evidentiary hearings and on tam- pering prosecutorial 1983, and January in misconduct of and the lower court February denied the in petition motions of 1983. for of supervisory 1983, writ in control was this filed Court March and the resolution petition May from this on Court came Similarly, control, 1983. petition supervisory the second on appointment issue of counsel, August was filed with this Court 1983, granted Thus, weight late October of 1983. delay 1983, attribution of the January between and November of 1983, depends on weight delay attribution attached to pretrial caused interlocutory motions which resulted these appeals.
First, bringing State bears the burden of an accused to good pretrial faith chargeable motions are not to the de Harvey fendant. State v. 423, 434, 184 Mont. 603 P.2d delay January we attribute the time from to No However, vember of weight State. different attaches to Harvey, P.2d delay delay. at 667. depending on the cause case, necessary adjudicate pretrial motions the block of time weigh heavily in favor of interlocutory appeals fails to resulting Forsyth’s claim. interlocutory Supreme Court has stated that United States orderly appellate pit “competing review
appeals concerns of Hawk, on the other”. Loud hand, speedy the one and a *13 factor, 314, delay regard In U.S. 106 to the cause for at S.Ct. at pre- agreed delays majority that due to a defendant’s of the Court appeals: trial
“ordinarily speedy weigh in defendant’s will not favor of a interlocutory appeal A an claims .... who resorts to defendant reap normally upon court to not be able return to the district should speedy trial. As one the reward of dismissal for failure receive a District con Appeals Court of has in the context of Court’s noted judicial sought the of the pretrial ‘Having sideration of motions: aid process employs realizing the that a court deliberateness decision, the reaching a are not now able to criticize the defendants United States v. upon.’ very process they frequently which so called denied, Auerbach, 1969), rehearing (CA5 921, 423 924 F.2d 423 F.2d 2195, denied, cert. S.Ct. 26 L.Ed.2d 399 U.S. 560] [90 (1970).” Hawk, 316-17, Here,
Loud
the circum-
Second, delay by adjudication in this case the occasioned of these example, justified. issues was reasonable and For the District Court appointment reasoned that issue should be resolved counsel transcript ordering portions before because record be vary depending appointed. transcribed could on who was This Court refused holding to reverse the lower court’s order as inasmuch pending, pre- motion still was the claimed lack of was delay mature. any We hold here that caused the lower court’s transcription failure to an justified order immediate and reason- given motion, pending able counsel own motion to dismiss. appointment caused,
On the delay of counsel issue and the our first grant order we reasoning refused to the writ that no show- ing had been made that a conflict public existed as to the available defender County. firms ruling required Flathead our fur- ther proceedings. The dissent in that order reasoned that fundamen- required tal appointment fairness serving counsel through the first two trials. holding Later this Court reversed that a existed, conflict pro- and that it would unfair to force However, ceed with different though posi- counsel. even the State’s *14 tion erroneous, on this issue was unsupportable it was not so it infers delay. intentional
Finally, delay we note that during the period this be cannot com- pletely litigation Thus, attributed to single pretrial of this issue. the supports delay record the contention that attributable to the State justified by: is the issue, need for evidence the counsel the com- plexity of issue, the prosecu- counsel showing and the lack of a the tion intentionally acted delay. to
However, Forsyth
Bailey
contends this Court’s
in
man-
decision
Bailey,
dates
In
argued
dismissal.
ex-
that the defendant’s
ercise of the right
properly
to a
filed information constituted failure
to
Bailey,
right
speedy
assert the
to a
Specifi-
trial.
“[w]e
the
for
defendant
rights
prosecutor’s
or
deprive
for the
mistake. To do so would
process
him of
II,
due
guaranteed
law which is
under Article
Sec-
him to
7 of the
Neither can we force
tion
Montana Constitution.
another,
right
was made clear
the United
choose one
over
this
v. United States
in Simmons
Supreme
390 U.S.
States
Court
967,
1247,
it
a similar is-
88 S.Ct.
19 L.Ed.2d
where
addressed
‘.
sue and stated:
. . we find
intolerable that one constitutional
”
right should have to be surrendered to assert another.’
Bailey,
The as well as the facts issue addressed issue, Bailey, First, distinguish regard it from to the this case. Bailey we to a defendant addressed the intolerable choice offered right properly the assertion trading filed between for factor case, present concerns the cause for information. issue delay factor, right not the assertion of the factor. important. presence distinction is of the assertion evidentiary weight determining right strong is entitled deprived right, being and failure to
whether the defendant right prove that he assert the will make it difficult for a defendant hand, speedy was denied a On the other the reason trial. delay factor, here, principle point involves a of contention assigned weighting process weights should be where “different Barker, 531-32, 92 at 2192-93. 407 U.S. at S.Ct. different reasons”. Hawk, Thus, posi Loud delay to the as shown due State’s only transcript appointment tions of counsel issues af on the factor, delay weighting process fects not the the reason for right to more threshold issue asserted the of whether the defendant And, speedy ordinarily, delay weigh in favor of a will not Hawk, Loud speedy 474 U.S. at defendant’s trial claim.
S.Ct. at 656.
Factually, cause of distinguishable regard to the the cases are delay by Bailey, delay prosecutor clearly caused the factor. In case, mo- defendant’s improperly filing In this the information. dismiss, evidentiary hearings, coupled tion to with his demands substantially delay. if counsel contributed Even immediately, was still the granted there motions had been tamper- consuming time misconduct and prosecutorial issues of Bailey. ing apply to resolve. we refuse January delay from argues also *15 Thus, 6, 1984, ac occupied motion. June with the State’s venue the State period cording Forsyth, time must be attributed this argument Forsyth’s weighed speedy claim. favor of his only one sidesteps motion was here the venue fact period. during stage issues before the lower At this court case, Forsyth actively litigate by his continued to motion to dismiss renewing request evidentiary hearings jury tampering on the prosecutorial Thus, delay misconduct issues. no deliberate is ev- period. Rather, regard by ident in to this time the case was stalled motion to dismiss as well as lack a decision on venue, weigh period and we heavily refuse to this time in favor of the claim because of the venue motion. sum,
In justifying delay has carried the burden of pretrial occasioned resolution the numerous issues this case. delay we hold that the supports cause for factor the State’s position on this issue.
Similarly, prejudice weighs against Forsyth’s factor claim. Forsyth contends passage impaired that the of time his defense be cause: witnesses previous could testimony, not remember the use of to refresh memory witness was both cumbersome and ineffective, the State’s new witnesses could have been discredited testimony unavailable, of witnesses who are now and the State presented demonstrative effectively. evidence more regard transcript, contentions on use we have re- viewed the following witnesses: Dr. John Pfaff Lynn Norbe Charles L. White Greg Phillips Stahlberg (Neff) Debbie Dawnita French Dale Gifford Rand Cullen Doris Richards Rolene Anderson Lupe Griffaldo Dawn Morris Sheryl Hester Young Ron Roger Krauss Appel Kevin Paul Hahn Dick Stotts Douglas M. Richards Klingler Steven Jan Beck Jon William Ball Paula Stalnaker Bonnie Olson DuPuy Ron Dan Hess Addison Clark Jim Oleson Jerry Forsyth Ed Helmetag Ray Dyer Gary Red Elk Tim Schuldheiss Douglas Richards William Harris Perry Rick Joseph Dana Kraut Paul Dr. M.E.K. Johnson *16 transcript review, mitigated
On of we that the the basis hold memory, and thus the prejudice of witness the caused failure Forsyth. heavily In prejudice regard weigh to factor in this fails proved transcript cumber- regard use of the to the assertion that ineffective, of in our review the testi- some and we discovered have repeated provided mony transcript the defense with that also opportunities impeach State witnesses. which, Forsyth, according to
The State’s demonstrative evidence demon- improved age prejudice, his involved a test at trial with strating allegation Douglas Richards. Richards an made witness pencil in of a Forsyth told had the barrel inserted pistol in purposely of the murder order to lift left at the scene place pistol of victim. Richards demonstrated the hand Forsyth allegedly was and counsel for how this done at first pointed in the barrel after Rich- paint out that residues remained demonstration, in the barrel of the ards’s no residues were found but trials, according to gun and third left at the scene. At the second pistol Forsyth, figured without out how to lift Richards had leaving Thus, Forsyth prejudice. residues. claims Forsyth’s particular
This to further claim. At contention does little Forsyth served as an alter- the third trial called a witness who had presence paint chips in juror. of nate This witness testified Thus, discrediting Richards’s the barrel at the first trial. evidence lost to the defense. demonstration was not Forsyth impaired ability argues passage time his also that the Perkins at the counter Perkins. testified Charlie by Forsyth alleged jailhouse made follow- third trial to an confession could ing witnesses the first trial. claims that unavailable have discredited Perkins. weight than it necessarily
This carries less speculative claim is it, rate, any considered supported if it. At we have would the record numerous called and we also the fact that have considered testimony. prejudice fails to witnesses to discredit Perkins’s Forsyth’s weigh heavily in here. favor of claim the de light prejudice be evaluated factor should prevention protects; right speedy trial fendant’s interests the anxiety and con pretrial incarceration, oppressive minimization of possibility accused, limiting the importantly, cern of the most Barker, 92 S.Ct. 407 U.S. at impaired. the defense will be vio State compel finding that None of these interests Forsyth be- freed speedy right The State lated the trial in this case. trials, impairment tween and the minimized defense. regard factor, right to the assertion of we accord speedy weight analyzing
some favor of his trial claim. However, Forsyth’s another relevant factor here is that assertion of speedy right preceded his consuming time motion Bailey dismiss. states that defendant does not trade the asser properly However, tion factor for a filed information. we hold in this case jury tampering prosecutorial misconduct affecting right claims constitute circumstances the assertion of the factor. These weight circumstances reduce the favor regard factor, right assertion and inasmuch as we have *17 held weight State, that the of the other factors falls for the we refuse right dismiss because the was asserted. summary,
In we affirm on this issue because the case presented complex issues, delay and the attributable to the State weighed must be heavily delay. less per as institutional We are also prejudice suaded to affirm Forsyth because the suffered as a result delay of mitigated presence transcripts from the previous trials, by Forsyth’s release on bail between second and third Forsyth’s speedy trials. trial claim has failed to con Court, vince this and we affirm on this issue.
II In issue, connection with Subissue A of the second the relevant procedure facts and Douglas are as follows: Richards revealed to the prosecution prior to the third trial that he had related to Rand Cul- len details murder 1979. Cullen testified the third trial concerning Richards’s statements.
Dr. M.E.K. Johnson testified at the first and second trials that the Forsyth blow to the head night received on the was of the murder Forsyth sufficient force knock At unconscious. the third testimony Johnson by stating varied his that he had become more skeptical Forsyth that the blow rendered unconscious. prosecution Kienas,
The mother, Shirley listed the as a victim’s trials, all only witness for three but called her for the third trial. She testified concerning at the third trial daughter’s her marital relation- ship Forsyth. with possessed important knowledge State that knew Cullen taking
murder after January his statement in but did not August 1985. The identity to defense until reveal Cullen’s testimony changed his that Dr. Johnson had State became aware August of 1985 State notified sometime after the second trial. planned call as a witness. The the defense Johnson that State Shirley testimony probably Kienas’s State knew the substance prior to the first trial. Appel Hahn were new witnesses at the third trial.
Kevin and Paul Kalispell police They regard they as testified in to events witnessed parties agree the sub- the time of murder. officers at standing District Court’s of their was not new. The stance notify any required prosecution to the defendant of new order the defendant. regarding guilt or innocence of material Subissue A: process rights his due claims that the State violated discovery standing order
failing comply with the lower court’s argues that mandating new evidence. also disclosure of in- improperly of the information to court allowed amendment lower authority 46-15- provided Section clude new witnesses under the (1983). 301(1), properly applied court MCA We hold that the lower 46-15-301(1), any violation of the discov- Section MCA error, has no due ery and that order constitutes harmless process claim under this subissue.
First, by allowing Rand Forsyth argues court erred the lower testify objections. concedes that Cullen over his August con- potential but revealed Cullen’s as a witness sooner, prejudice him and that tends the State should have revealed resulted from the State’s late revelation. *18 to reveal Cullen prejudice the State’s failure claims from Bremner, Rich- close to arguing
as a witness that a witness Debbie Cul- murder to allegedly revealed the ards at the time that Richards wit- len, testimony. was a Bremner could have discredited Cullen’s trials, for the third at unavailable ness the first two but was (in 1985) (1983) effect at 46-15-301(1), (repealed in Section MCA trial), time of reads: prevent surprise, the
“(1) only and to purpose For the of notice of file with the clerk prosecution shall furnish to the defendant pros- the of the witnesses arraignment at the time a list court of arraign- may, any time after prosecution ecution intends to call. upon a ment, any witnesses list of additional add to the the names and ad- names showing good include the cause. The list shall of
411 apply dresses of the This not to rebuttal witnesses. subsection does witnesses.” 46-15-301(1), (1983).
Section MCA Forsyth concedes Cullen was revealed before but contends by spirit that the lower court violated the statute’s and intent al- (1976), 350, 354, State v. Klein lowing testimony. 169 Mont. See 75, good 547 P.2d 77. also contends that cause a threshold requirement for additions list in- to the witness under this Court’s terpretation 46-15-301(1), (1983), Haag in State v. of Section MCA (1978), 395, 740, thus, showing 176 Mont. 578 absent a of P.2d cause, good no addition is allowed. good State contends cause because the State existed knowledge
lacked
go
July
the case would
until
any rate, Forsyth
and that at
prejudice
has
failed
show
which
Klein,
could not be cured
See
P.2d
77.
continuance.
46-15-301(1),
(1983),
Section
MCA
makes it
clear that
proper remedy
surprise
where
is claimed
additions to the witness
Klein,
grant
list is
continuance
meet the new evidence.
77;
State v. McKenzie
481, 502,
P.2d at
(1980),
186 Mont.
608 P.2d
Haag
441.
requires
good
showing
contention that
cause as a
Haag
any
threshold to
amendment
fails here
because
prosecution’s
issue was the
negligent
any
failure to endorse
wit
nesses at the
arraignment,
defendant’s
and its continued
failure
Haag,
the date of the trial.
list
witnesses until
Following discovery Cullen, there is evidence that intentionally identity State prejudice withheld his the defense. Rather, supports negli record State’s contention that gently failed to inform of Cullen’s sooner because existence depended pretrial retrial pending the lower court motions before and this knowledge Court. Lack of of ar witness at time raignment, together uncertainty with case would be of whether the tried and disclosure of set the witness when the lower court a trial *19 412
date, sufficiently the State’s failure excuse are circumstances which Thus, allowing we hold that under the statute. to disclose Cullen discretionary, prejudice the lower court amendment is absent (Mont. 1984), v. Liddell testimony. State properly See allowed the 924, 1293, Similarly, St.Rep. 41 211 685 P.2d Mont. order, discovery prejudice must be regard to violation (Mont. 1986), 454,] Mont. 727 See State v. Wallace shown. [223 520, 524, (suppression evidence vio- St.Rep. P.2d 1912 showing discovery in the absence of a lation of order harmless error prejudice). the Oc- elapsed disclosure Cullen and Over nine weeks between 15, 1985, Thus, surprise be claimed. How- trial date. cannot tober ever, his not be prejudice case could contends that passing between discov- of the time cured a continuance because Specifically, For- ery and the date of Cullen as witness syth’s brief reads: trials, but she cannot found
“Bremner the first two testified at interrogate her with is no chance to for the third trial. there specifically was with respect Doug or Richards. She to Rand Cullen last, third, meeting with Cullen he [Tr. Richards when had added).” (emphasis page 3261: 11-17] testimony,
Page some of Richards’s records part relevant as follows: reads pistol “Q. get this out of you going Do recall down Missoula shop pawn down there?
“A. I do. thing? sort of
“Q. you your things stunt and that One that used “A. I do. you you when
“Q. you Bremner with And would have had Debbie it, you get went not? would
“A. I believe so.
“Q. you And saw Rand Cullen?
“A. Correct.” Bremner excerpt supports possibility that reading A is that implication could because discredit Cullen’s present when Cullen along trip, she was since she was tran- However, page 3262 of murder. Richards’s discussed the script part: reads in relevant Rand, you visit with
“Q. you Seeley Lake to got But when talking to you were dropped cafe while Debbie Bremner off by yourself? Rand
“A. Correct. time,
“Q. your story She knew what was at that she? didn’t *20 “A. No.
“Q. already given You had it? — Wait, yeah, “A. okay.” that was after the excerpt explains present during This last that Bremner was not conversation between Cullen and Richards. Richards also discussed Bremner’s involvement as follows: Why
“Q. you wasn’t in Debbie included the discussion that had with bowling alley? Rand about happened what in the upset
“A. Because Rand was me I him with when told on Christ- mas and like I it I said scared him. want if did not her to be with me I Rand belittled me. didn’t to in want be humbled front of her. It could very have been embarrassing a I trying situation and was to say sorry I was I guess to him and I apologize didn’t want to accept have him not it and do front her.” Thus, unavailability Bremner’s prejudice does not show could which by not be cured regard testimony continuance in to Cullen’s be- cause there is no any evidence Bremner witnessed the conversa- constituting tions testimony. source Cullen’s Forsyth’s argument other ability in regard supposed to Bremner’s testimony discredit Cullen’s concerns Cullen’s assertion appeared Richards upset during period more of time when he related details of the murder to Cullen. contends Bremner could have testified on Richard’s mental This state. assertion wholly speculative, goes and it to collateral matter Cullen’s tes- timony. Thus, Forsyth prejudice by has failed show contention. memory also claims lapses that Cullen’s constitute
prejudice However, which could not be cured continuance. memory lapses record reveals that Cullen’s existed when the prosecution first memory took his statement. loss occurred prior Cullen, prosecution spoke time the with and no prejudice may poor memory be ascribed due to Cullen’s as a result of the State’s failure to reveal Cullen until
Furthermore, reading our reveals State cor- the record that the rectly testimony contends that failure to discredit Cullen’s did any identity. not result from late revelation of Cullen’s Cullen Forsyth plan steadfast helped belief that Richards commit the murder. Rich- Inconsistencies between the details that ards police revealed to he to Cullen were details revealed cross-examination, con- available for brought on and thus were out jury. sideration testimony, con- summary, and we have reviewed Cullen’s we in allowing its acted within discretion
clude that the District Court listing testify. not Cullen on the Good cause existed for Cullen Haag Af- apply. not does arraignment, at time of so information immediately Cullen, inform discovering prosecution ter failed witness, arguably potential as a violated Cullen’s claimed, However, discovery surprise and we find order. no can prejudice incapable of cure continuance. A, Forsyth ar Proceeding subissue under the contentions regard gues Shirley the admission of Kienas’s Forsyth allegedly murder victim urinated on the an incident where pro discovery and denial of due constitutes violation of the order prosecution as a acknowledges listed Kienas cess. trials, prosecution possible that the witness all three but contends concerning the inci deliberately specific information withheld the testimony. specifics Kienas’s requested dent when the defense *21 during the first trial first reference to the incident occurred “yellow queried Forsyth concerning the term when the State shower”, appeal of Forsyth knowledge the term. On denied when, during argument, oral the first surfaced conviction term explanation. an Counsel one of the on this Court asked for Justices to. parties term referred for the not know at that time what the did trial, Forsyth inquired of the State to Prior the third counsel Forsyth that testify to. The State informed what Kienas would relationship Forsyth’s stormy with testify marital Kienas would to Forsyth depose prior The fact that to trial. wife. failed to Kienas long prior alleged attempted incident the State had to uncover the Forsyth Kienas knew to counsel the third and the fact that depose to Forsyth’s relationship failed testify would to marital but her, by here the State’s mitigates any failure to reveal occasioned Furthermore, other testimony to was cumulative conduct. itself Thus, we refuse to showing Forsyth victim. evidence mistreated the Wallace, 727 P.2d A. predicate in Subissue error this contention at 524.
A A is that the admission further contention under Subissue discovery Johnson, or- testimony Dr. violated the altered of M.E.K. testi- previous Forsyth process rights. Johnson’s der and due denied him had rendered mony supported Forsyth’s that robbers had claim murder wife’s prior to his unconscious with a blow to the head Forsyth testifying Johnson that the blow could have knocked out. skeptical testified at the third trial that he more had become Forsyth night the blow suffi- received the of the murder would have cient force render an individual unconscious. delayed in his concedes brief that the District Court John- testimony deposed by
son’s
so
that he could be
the defense.
defense
prosecu-
also concedes that the lower
court ruled that
chief,
tion
gave
could not call Johnson in
its case
the defense
opportunity
Thus, Forsyth
an
to obtain its own medical witness.
can
surprise
claim neither
inability
prejudice
nor an
continu-
cure
ance,
testimony.
regard
allowing
we affirm in
Johnson’s
complains
testimony
also
that the
of Paul Hahn and Kevin
Appel
allowed,
should not have been
de-
prejudiced
and that it
specific prejudice
fense. The
assertion is as follows:
“Nothing they
‘new,’
just
claimed to
know 1985 was
added
but
discrediting
defendant’s burden of
..
. .”
brief,
As shown
quote
from
concedes no
surprise
in regard
testimony.
existed
appel
to this
that the
“[G]iven
lant
surprise,
cannot convincingly claim
we find no error on this is
Wallace,
sue.”
As to a process A, violation of due under Subissue cites no specific authority. However, easily is issue resolved because prejudice required is process Craig also for a due State v. claim. 150, 153, 169 Mont. process 545 P.2d no due claim exists as admission covered above.
Subissue B:
The relevant regard facts in B Subissue concern Rand Cul testimony. len’s appeal aspects The assertion on of his testi mony exculpatory were because the he statements remembered making Richards around time of the murder varied with the story gave police. Forsyth Richards prosecu contends that the *22 tion’s failure to August reveal Cullen a as witness sooner than 1985 duty exculpatory constitutes violation of the State’s to reveal Brady Maryland (1963), 1194, evidence. v. U.S. 83 S.Ct. L.Ed.2d 215. We affirm on this subissue. inability capitalize contends his to better on inconsisten-
cies testimony, between Richards’s and the offered Cullen as shortly to what mur- Richards related to Cullen after der, was due to the State’s brief failure to disclose Cullen. portions transcript the defense revealed where cites to the trial the inconsistencies. claim, sup-
First, is not whether the regard to the issue here requires for reversal pression exculpatory material until after retrial, prevent as so late but whether the disclosure came rather Xheka United States v. receiving from a fair trial. the defendant B, (7th 1983), in Subissue we have 704 F.2d 981. As stated Cir. there regard to failure reveal Cullen. prejudice found no trial, proceed we will not to consider has been denial of fair here.7 requirements such claims as made the numerous other Subissue C: C, facts are as follows: regard
In to Subissue the relevant Jerry Gary Kalispell police and friend For Red Elk officer was a at syth Elk was called as witness of the murder. Red time Elk Forsyth. worked to Red the first trial both State and trial, helping and was prepare Forsyth’s prior to the first defense prior trial. with the defense to the second charged Elk with accounta- the State Red Prior to the second supported bility Forsyth. The murder of Karen State Richards, charge by Douglas and circumstan- with statements made possession gun indicating Elk tial evidence that Red had weapon prior murder. similar the murder Gary charging the State’s misconduct contends Forsyth denied accountability murder of Karen Red Elk with for the charged one week before process. him Elk due Red was arrested deliberately brought second trial. claims that the defense. charges probable cause to harass without Forsyth alleges here There is the misconduct little doubt case, guaran- would, appropriate constitute a violation However, from the reviewed the tee of a fair trial. we have Elk. evi- preliminary hearing probable Red cause arrest Thus, we probable cause existed. hearing dence from the shows that affirm on this subissue. The deci-
In all three subissues. summary, we hold for the State on testimony is affirmed. sion lower court allow Ill as follows: facts are the relevant connection with Issue regard statements Perkins the third trial
Charlie testified at Ac- prison after the first allegedly while in made *23 Perkins, cording Forsyth torturing murdering to confessed to Forsyth. Karen Forsyth by allowing prose- contends that the lower court erred the amend,
cution to the information to Charlie Perkins add shortly State’s listed witnesses. The amendment came after the State discovered the third middle trial that Perkins would testify confessed to the murder. The al- lower court testify lowed Perkins objection to over the defense’s that a mistrial granted. should be The motion for mistrial allowing claimed that testify in; (1) Perkins to prejudice would result insurmountable continuance, (2) improper Forsyth’s disclosure of the verdict from trial, (3) inability first jurors to voir dire the concerning their atti- prison tudes in general. towards inmates These claims are made (1) appeal. here on responds The State that: the week continuance given to prepare testimony to prevents to meet Perkins’s (2) from claiming prejudice surprise; from prior verdict disclosed; (3) was not improperly the lower court’s coun- caution to sel prior that the might up Forsyth’s conviction come right vilified jurors voir dire on inmate attitudes.
First, applied again statute to be 46-15-301(1), once is Section MCA grants which the District Court discretion to allow ad- ditions to the prosecution’s witness list. The knowledge lack of Perkins at the arraignment time good constitutes cause for adding not his name to the listed witnesses. The continuance granted Thus, mitigated surprise. meet the lower court acted within its discretion.
We swayed by are also support Forsyth’s lack of contention that he had opportunity properly dire, voir disclosure prior of the prejudice. conviction resulted The record reveals that prior dire, to voir Forsyth’s the lower court cautioned counsel that prior might conviction come out incarceration was relevant to knowledge Thus, Perkins’s For- confession. syth can claim no regard. error in this
Forsyth’s inability question prospective jurors on their attitudes toward in general inmates adding also fails. to the wit- Amendments ness list after necessarily deprive trial has opposing started party of opportunity prospective jurors to voir dire with a par- ticular “class” of witnesses mind. Under of this the circumstances case, however, opportunity the denial of this is not so material that gives rise to a claim for a new trial. Nor does it demonstrate abuse allowing part the witnesses of the trial court for discretion on testify. we on this issue. particular from affirm “class” IV regard as follows: For the relevant facts are Issue County.
syth’s After reversal of the first trial occurred Flathead trial, conviction the second trial occurred Lake first moved County. Following the mistrial of the second *24 County, proposed jury that be to return to the venue Flathead composed County. granted The lower court citizens from Toole request Forsyth’s objections. this over the for the new trial on
After the third trial the defense moved pro- jury. The grounds publicity prejudiced the defense that trial form of purporting prejudice to in the tran- duced evidence show pro- during trial. The defense scribed radio broadcasts aired the jurors the heard the radio broadcasts. duced evidence that by granting the the District Court erred contends that County change of Lake to Flathead State’s motion for a venue from County. responds County, Toole The State jury with a selected from MCA, 46-13-203, that under Section to the trial court had discretion County. agree. return the case Flathead We applicable part of the statute reads: in in county “If the which the determines that there exists court prosecution fair trial cannot be pending prejudice is such that a had, it shall:
“(a) any competent jurisdiction transfer the cause to other court had; county may any fair be which a trial “(b) fair trial any county where a jury direct a be selected that prosecution may county had then where be returned case; try pending is or
“(c) may a fair trial any designed to insure that take other action be had.” was nec- parties agreed a new venue trial
After second Flat- suggested motion essary to insure a fair trial. The State’s selected County jurors if were provide head forum the could fair County. County from Flathead Lake outside of Subsection glance application The result at first resembles an (b), county return i.e., jury from another option select However, county prosecution pending. case where the County, case, the cause from Toole after selection recently County, pending.
did not return it to Lake where was most Instead, County, the first oc- returned to Flathead where (3)(b) technically, apply. Appar- curred. did not Subsection (3)(b) ently recognizing apply, the lower that Subsection did not (3)(c). specifically court relied Subsection We hold that the lower (3)(c). applying court acted within its discretion Subsection This Court will not: granting denying
“overturn a District or Court order a motion change arbitrary capri- of venue unless such or action is found cious, or, words, in other an of discretion.” abuse State (Mont. 1985), v. Beach 132,] Mont. 705 P.2d [217 St.Rep. inquiry here is whether the District Court took in- action to Beach,
sure a
primarily
question
fair trial. This issue is
fact.
at 102. In Beach we
P.2d
upheld
application
court’s
lower
(a)
Subsection
properly
statute because the lower
bal-
court
anced
competing
considerations of cost and inconvenience to the
prosecuting county,
Beach,
with the
right
defendant’s
to a fair trial.
burden the defendant (1979), 229, 586, 242, 594. State v. Kirkland Mont. P.2d
V Issue as moved for a The relevant facts on 5 are follows: light the trial grounds coming new on that evidence to after trial Timothy testified inferred that witnesses Charlie Perkins and Hiser exchange for from revealed favors the State. New evidence also presiding Keedy corresponded Judge District Court Michael D. problems prison concerning State’s Hiser Hiser’s at with witness prior Forsyth’s to Hiser’s third trial.
First, Perkins, de regard properly to the lower court present a new trial that Perkins wanted a transfer. nied evidence tending im merely only to New evidence is cumulative or which peach v. Short provide grounds for a trial. State does not new 1026, St.Rep. 62,] Mont. 702 P.2d [217 There Forsyth brought for transfer at trial. out Perkins’s desire showing no that the Perkins received after has been transfer regard promised the new evidence before trial. tending only impeach. Perkins is both cumulative and concerning There is same is true as to the evidence Hiser. new exchange early proof promised Hiser an releaseNn officials would testimony, for his of the new evidence at trial effect impeachment. only Judge There is further that the District Court contention improperly Hiser for his failed to inform counsel that feared defense prison prior testifying State the third life while Forsyth’s counsel Hiser testified third trial that at the spread appeal is that endanger rumors on his life. contention so prior fears Judge District have disclosed Hiser’s Court should This, Hiser. could use the information to discredit cumulative, again merely only impeach, does not tends grounds amount to for a new trial.
VI Forsyth’s attorney Issue 6 counsel. concerns fees expenses June attorney necessary counsel moved for fees and However, that this at the time *26 this motion not been heard had Dis- appeal this Court should order was made. contends expenses. trict for fees and Court to hear and determine motion agree. hereby We is ordered to hear and deter- District Court can mine the motion as soon as the needed information on the fees gathered, fur- be and as soon as the motion can be scheduled. We appeal ther order fees in the the District Court to include for on the determination motion.
VII Issue 7 relates sentence. District Court Judge presiding years the first over trial sentenced to 70 for sentencing judge murder. The after of the verdict the third years, years sentenced to 100 an for with enhancement of weapon. the use of a process rights. contends that the due increase violates his
Forsyth also contends process that the lower court violated his due rights by enhancing years his dangerous sentence ten for use of a weapon. responds objective
The State justified identifiable evidence sentence, rejected increased and that this Court has the conten- tion by Forsyth regard made to enhancement sentences. process guarantees resentencing
Due free from vindictiveness stem- ming explained from reversal. As Supreme the United States Court: law, process then,
“Due requires against that vindictiveness a having defendant successfully attacked his first conviction must play part in the sentence he new receives after a trial. And since the fear of may unconstitutionally such vindictiveness deter a de- right appeal fendant’s exercise collaterally of the or his attack conviction, process first requires due also that a be freed defendant apprehension retaliatory part such on of the motivation sentencing judge.
“In motivation, order to assure absence of such have con- we upon cluded judge imposes that whenever a a more severe sentence doing defendant after a new so af- the reasons must firmatively appear. upon objective in- Those reasons must be based concerning part formation identifiable on defendant conduct occurring original sentencing proceeding. after the time And of the upon the factual data which the must be increased sentence based part record, legitimacy made so that the constitutional may fully increased appeal.” sentence reviewed *27 Pearce, (1969), 711, 725-26, v. 89 S.Ct. North Carolina 395 U.S. 656, 2072, 2080-81, ' L.Ed.2d 670-71. 23 Pearce, fur- Supreme Court cases have United States Since other explained particular right: ther this States, 3217, 559, 104 S.Ct. 82
“In Wasman v. United
468 U.S.
(1984),
that relevant con-
Supreme Court indicated
L.Ed.2d 424
sentencing
subsequent
original
or events that occurred
duct
light upon the defendant’s
proceedings
throw ‘new
are those
health, habits, conduct,
propensities.”'
“life,
mental and moral
concurring), quoting North Caro-
(Powell,
Id.
S.Ct. at 3225-26
J.
104
Pearce,
723,
process bars an
v.
at 2079. Due
lina
Thompson v. Armontrout
647
presumption of
Thus,
resentencing create a
process rights on
due
However,
remand.
is increased on
a sentence
vindictiveness when
upon retrial:
judge sentences
where a different
any
have
rea-
sentencer would
not
the second
“it does
follow that
Texas v. Mc-
vindictively
defendant.
against the
son to have acted
Colten
104;
Cullough (1986),
134,
976,
89 L.Ed.2d
U.S.
106 S.Ct.
475
104;
1953,
(1972),
ing
there
after the third
McMasters,
vindictiveness.
must show actual
ness and the defense
Thus,
showing.
we
no such
at 125.
has made
511 N.E.2d
Forsyth’s sentence.
affirm as to the additions
and an
requires notice
process
due
Forsyth also contends that
use of a
of sentence
opportunity
against
enhancement
defend
Pearce
46-18-221,
Forsyth cites
weapon
MCA.
under Section
1209,
605,
18 L.Ed.2d
(1967),
Specht v. Patterson
87 S.Ct.
386 U.S.
may not be
proposition. Pearce holds that
a defendant
for this
718, 89 S.Ct.
Pearce,
at
395 U.S.
punished
crime.
twice
for the same
Sex Offender’s
Specht
Colorado’s
invocation of
at 2077.
held that
punishment”.
leading
charge
to criminal
a “new
Act constituted
Specht,
However,
U.S.
1212.
46-18-
87 S.Ct. at
Section
221, MCA,
separate,
provide
“does
offense”.
not
substantive
432, 445,
State v. Davison
Mont.
614 P.2d
is
the information
sufficient
if
states that a firearm was
Davison,
used
the commission of the
“4. The Defendant credit for time awaiting disposition incarceration while matter.” “presentence incarceration”, We hold Sentence’s MCA, application -403, of Sections 46-18-402 to mandate credit for spent jail prison time charges has since were brought in this case.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRI- SON, WEBER and GULBRANDSON concur. SHEEHY,
MR. JUSTICE dissenting: SPEEDY TRIAL protest
I way majority the papered the has relating over the facts speedy to the long delay issue of bring- trial. The and intolerable ing this defendant improper to a third trial is the direct result prosecution, intransigence tactics of the District Court unwillingness Court, and the requested, to face the is- when sues and delay make decision. Those factors which served to third trial cannot all be laid at the feet the defendant.
Forsyth
originally charged
was
in the District Court of Flathead
County,
January
with deliberate
trial
homicide on
1980. His first
county
was held in
during
April,
March and
1980 and resulted
in his conviction.
in State v.
We
Mont.
reversed
248,
The District Court then that a fair could not be determined County had in Flathead place changed and so the of trial was County. Forsyth Lake commencing underwent second trial Decem- 1, 1982, 2, 1983, ber where be- January a mistrial was on ordered hung jury. cause of a
Up through by pri- represented second had been by vate depleted counsel apparently retained him. The trials two assets, Court indigent person, applied to the District and as an he represent formerly counsel to appointment for the of his retained refused, proposed county expense. him at The District Court represented by Flathead require instead proceedings, point in the two County public At these defender. some him, counsel, by Forsyth to defend formerly been retained who had charge representing him in his defense and to offered to continue county county paid to its for their services at the rate Nonetheless, attorney. public charge defenders and to but for one public looking defenders persisted Court first to the District showed, attorneys firm of who there to another and when conflict sup- completely knowledge of the facts and defenses were without protested they con- plied Forsyth’s had case. Even these counsel represent Forsyth. flicts of interest and could not required petitions to question Forsyth’s counsel two defense 11, 1983, May petition this Court. His first here was denied super- showing to warrant there sufficient where we held that appointing visory persisted in de- When District Court control. counsel, Forsyth again peti- fense counsel other than his retained October supervisory control and on tioned this Court for a writ of Court, granted and on the order of this the writ was public expense. present appointed counsel were appointment relating petitions in this Court the two inexplicable his counsel for a third trial were necessitated expense appoint, at the same judge District Court refusal of the directly defender, attorneys county public most as a those Forsyth rever- who had obtained for conversant with the case and conviction, hung jury on the second sal of his first and a only problem faced appointment was not the of counsel demand, as was Forsyth made a before the District Court. *29 testimony and expense right, transcript public of the his for a 3-5-604, MCA, provides that proceedings in the second trial. Section pay for a tran- is unable to in a criminal case where the defendant paid by the state. script, him and for it shall be furnished to permit to he would Court first limited which District Although witnesses. and the State’s that of defendant’s transcript, included this motions for a full made several this pursuing before problem part he was as of the writs which or- 13, 1984, District Court January that the Court it was not until transcript. Per- supplied remainder of the dered that he be with the properly could haps majority explain defense counsel can how
425 full prepare having available to them the trial without the third transcript of the second trial. delay completely
Again, majority attribute defendant. delay, brought
I urge and these two items about insist that itself, de- District Court cannot characterized as institutional lay weighed heavily, to be less or otherwise attributable to the de- fendant; speedy for if in the defendant must bear brunt a computation choosing pursuing legal rights between his fair a counsel, or proceeding improperly prepared, defense with ineffective given he is no choice at all. delay
A third item which caused was immoderate order of the change place County District Court to of trial from Lake to Flat- County. atmosphere poisoned pervaded head Flathead County changed was the reason the trial had been to Lake County True, originally. jury imported County a was from Toole County Flathead jury the third trial. The task of the Flathead County having was like a band of Gauls choose who win should between the packed Christians lions before the Roman citi- zenry in days coliseum the of the Caesars.
The change place the refusal of the District Court on his tampering dismiss charge, and the denial of the District Court of his motion for speedy dismissal for lack of trial caused For- syth to again come to this seeking supervisory Court a writ of con- application trol. 24, 1984, His September days was filed here on 631 after the mistrial hung jury County. caused A Lake final decision on application for writ did not come out of this Court July 2, until delay days mostly The further of 281 can be at- tributed to opinion, a mistake of law made this Court. In first its Court, January 3, ex v. issued rel. District 1985 [State (701 480,] 1346), Mont. P.2d majority held the refusal district charges court jeopardy dismiss criminal on a double claim did supervisory control, remedy not warrant and that on a jeopardy double claim for lay only appeal a criminal defendant an following his post-conviction conviction or in proceeding. In other words, majority though subjected held that even he would be jeopardy double he must go nevertheless to trial a time. second majority When the holding made the United aware Supreme States Abney v. United Court States 431 U.S. S.Ct. grant L.Ed.2d it was forced to a rehear- *30 426 Forsyth’s application un-
ing. on final not come a decision did 2, July again til 1985. The writ was refused. Forsyth delay against good
In cannot count conscience this Court majority’s caused the mistake law. delay majority opinion the trial galling
It to in the is read presence transcripts previous trials.” “mitigated by from the January 2, case, occurred on the mistrial on the second trial transcript of the second trial was deliv- 1983.The last volume of the 1984, days, 23, delay most Forsyth April of 476 ered to on itself (1978), v. unnecessary. in United States MacDonald It was said 850, 1547, 18, applying Barker that in 435 U.S. 98 S.Ct. 56 L.Ed.2d 101, (1972), 514, 2182, Wingo v. 33 L.Ed.2d 407 U.S. 92 S.Ct. con- possibility impaired be is the most serious defense will sideration, inability adequately to of the defendant “because the Wingo, system.” prepare of the entire this case skews the fairness at 118. at 92 33 L.Ed.2d U.S. S.Ct. at JURY TAMPERING issue, opinion jury tampering majority not discuss the does by Forsyth large
but made between it was a factor the efforts ground double second and third trials obtain dismissal jeopardy. during trial in question, the second
Without the court’s bailiff mem County egregious comments to Lake made ten documented jury Forsyth’s The instances are outlined bers of adverse case. remarks my Despite at the baleful dissent found 701 P.2d bailiff, jeopardy claims majority double denied because no prosecution, were act of the because remarks not an present obtained, and, incredibly “in the conviction was because attempt to case, as an the comments could at most be construed 496,] Mont. obtaining assist the a conviction.” state [216 P.2d at 1356. obtained; acquittal. Who
True, neither was an a conviction was not might have untampered, acquittal not say jury if an left the been obtained? law in
I
point
proper
that a
construction
iterate this
to insist
test
tampering
is not to be tested
jury
cases of
a bailiff
pro-
attempting to
applied
prosecutors,
the bailiff was
whether
We
in this case.
intent
voke a mistrial. We cannot know the bailiff’s
inexcusable, in vio-
only
were
can
that his remarks
know
our sense of
office,
were abhorrent
lation of the bailiff’s oath of
ground
only
justice, and
on the
that the bailiff is
cannot
excused
Oregon
securing
v.
attempting
assist the state in
a conviction.”
“to
Rathbun
287 Ore.
CHANGE OF PLACE OF TRIAL *31 may go unreported in opinions
Because the written that have case, jury evolved from some this mention should be made of the County in climate which the third trial in Flathead occurred. The homicide of Karen on December 1979 became the subject public County. Spurred by of intense discussion Flathead pervasive public newspaper coverage, and abrasive and radio senti- brought county. ment was to a white heat in that After the first trial, Court, and the reversal of the conviction this the defendant change place moved the District for Court a of trial from Flat- County. survey public head A opinion, press clippings and from the date of the May, homicide until the defendant was sentenced presiding convinced judge the then findings district to make fact requiring and a conclusion the cause be transferred to Lake County trial, before the second because a fair trial could not be had County. Flathead
After County jury hung the Lake up in the second trial and a mis- ordered, trial was change moved the District Court a place of trial from County County, Lake back to request- Flathead ing the that cause County, be tried in Flathead either before a Flat- County jury head or county one selected from another and returned County to Flathead granted trial. court in effect mo- tion. third County, the trial was returned to Flathead county, same in which judicially it had been earlier determined that defendant could not a receive fair trial. judge trial County jury commented to the Toole the first
day of the third trial:
“I you would note as already have seen that there is considerable public proceedings you interest these if can tell other presence reason than representatives, news media including camera, a among things. say television I other want to outset, though controversy that even generated great has community deal of though interest County, in Flathead and even as a result of this probably to a certain extent this Court will be under microscope public scrutiny parties as well as the their counsel . . .” give
The court jury cautionary went on the usual instruc- the tes- they influenced matters outside tions that were not cautioned, received. However timony of the trial and exhibits perhaps respond perceive jury not fail to members could unremitting pressure for a conviction of defendant. to the women, sensing that the case involved women’s Bands of somehow courtroom, every rights, pack the one of made it their business to Richards, Sandy testifying days of the 41 court the third Douglas committed homi- admitted to her that he Richards had defendant, complained on the cide of Karen and not laughter from of the audience coming of the the members record testimony, the courtroom during her from two different sections of proceedings Interruptions from in the court audience. the audience transcript. Everyday, before during trial the court are reflected announced, prejudicial coverage radio was verdict proceedings going over the airwaves. out trial, Forsyth After filed motion for new trial and to the third publicity supplement prejudicial trial respect with the record that radio broadcasts adverse to the defendant. Defendant claimed biased, exposed false juror to which the members were contained post-trial jurors had written a prejudicial statements. One of the *32 Promoter,” newspaper published in “Shelby in the Toole article County, of the radio statements. The which article contained several subpoena tecum caused to issued and served a duces defendant be upon offending day On the of the the owner of the radio station. em- appear, sent one of his hearing, deign the not to but owner did copies broadcasts ployees sought bringing not the of who to excuse over the world was grounds on the broadcast of all the news all the hearing, day the trial bring On too voluminous to to court. the copy of the provide radio station at least one court ordered that the days. adjourning the longest Before broadcast for each of the court material would the hearing, the District Court stated that broadcast placed prior ruling the motion in to the court’s be the record argu- permitted make its to a new trial and the defense would be days were evening, copies of ment. That the of broadcasts were copies of the broadcast judge. to trial No further furnished later, days District supplied hearing was set. Five no further argument or further for new trial without Court denied the motion hearing. opportunity to
Thus, gave the District Court the defendant broad- complete of the radio respect the effect record with jurors majority casts on the and now the condemns the defendant failing to show such influence. broadcasts, Even if we were not to consider the effect of the radio enough packed itself contains reference court- judge room antics assure us that the first district was correct in place determining County the first in in Flathead the defendant could not receive a fair trial. majority properly now state that the District Court acted
changing place County of trial back to Flathead because the Dis- empowered 46-13-203(3)(c), MCA, trict Court is under Section any may “take other action to ensure that a fair trial be had.” Flat- County possible head was the least of the 56 counties in Montana Forsyth which could have fair received a trial. Not lost to the tax- payers County, especially press Flathead reminded and ra- dio, mounting prosecution was the cost to them of the and defense of Forsyth. OF
ADDITION NEW WITNESSES In mid-course of the State’s case-in-chief in third state moved amend the information to add new witnesses not therefore disclosed Forsyth. to the defendant permitted
The court amendment the information and the subsequent testimony. Thus, Timothy Hiser, Charlie Perkins and prisoners Prison, in the permitted testify Montana State were jailhouse had made a confession that he killed Karen while was incarcerated after the first trial.
During Forsyth, County, the second trial Lake had permitted been to know that had been convicted of a homi- cide the first County. preparation Flathead for a third trial, Forsyth and the agreement any District Court seemed knowledge kept first conviction should from the County jury. Toole prospective voir jurors dire from Toole County conviction, was conducted without reference to the first nor any impression jurors might regarding have a first conviction.
When proposed to amend the information to add the Perkins, name of strenuously, Charlie objected pointing out *33 untrustworthiness, Perkins’ prison substantiated some staff, particularly objecting that his would reveal to Forsyth oppor- first conviction which not an about had tunity to prospective jurors. majority voir dire the hold that opportunity “denial of this gives so rise to a is not material that (Mont. 1985), v. Doll State see, [214 claim for a new trial.” But 390,] St.Rep. Mont. 692 P.2d testify manner, Timothy permitted to to a Hiser also like was
jailhouse confession. Hiser, issues of Perkins and the amendment of the names
With Hearings in all were Court took off directions. the District necessary bring prison respecting the char- to officials and others possibility of Perkins and Hiser. A search was made acters disprove might among prison who finding the 135 inmates witnesses (an task). permitted impossible When to jailhouse confession only jailhouse confes- testify, prison inmates not testified crimes, including sion, Forsyth wield- committed other but claimed (Perkins had in fact been disci- ing prison was in a shank while he shank, object). plined prison is a knife-like carrying which pros- to kill the defendant had made threats Hiser testified pris- ecutor, had threatened to reveal other and that his counsel crimes of other were oners that he was an informer. This evidence (State v. Just 184 Mont. pretrial not defendant noticed 957). counsel, however, object did not Defendant’s 602 P.2d the evidence of other crimes.
Post-trial, trial, grounds that including as moved for new testimony. promised for their Perkins Hiser had been benefits prison offi- brought pretrial hearings had out evidence from sentences, long-term had wanted cials that Perkins under states, Prison; Wash- two transferred out of the Montana State Idaho, transfer; as far as the ington his and that had refused concerned, they get effort prison make other staff was would Following Forsyth, was trans- him Perkins transferred. the trial Prison; the Montana Wyoming he never returned to ferred to the following Prison State the trial. correspondence be- post-trial existed further learned trial in third Timothy judge before the
tween Hiser and the district State complained the Montana Hiser of the conditions of which nothing promised he Although testified that was Prison. Hiser kept was testimony, following he the third com- he County jail spring of when until Flathead given pletely though he had been released from all incarceration to Montana never returned year five sentence in 1985. Hiser also trial on motion for new Prison. The State District Court denied develop fur- opportunity ground giving without an *34 hearings agreements, any, ther as to if existed what between prisoners testimony arranged. State and the their when majority approves the District Court’s denial of new point by merely stating that the additional evidence would be prison impeaching cumulative evidence as to the witnesses. That ground impact on of understates the the trial the introduction of testimony, having this kind jurors of of distraction testimony choose between the of the accused defendant and the un- testimony prison probably corroborated of inmates who stood to testimony, pro- benefit from grinding-down their and the effect of a longed allowing trial that ensued from the amendment these wit- right nesses. directly Defendant’s constitutional to a in- fair trial volved in this issue.
CUMULATIVE ERROR
I do not wish upon to belabor this dissent additional comments testimony of the mother of homicide victim that victim; had charge urinated on the against Gary the murder filed Elk; change Red Johnson; withholding Dr. State; names of exculpatory and, witnesses and evidence variety improprieties other errors and which made a farce out requirement the fair trial in this case.
To conviction, sustain the majority litany has had to resort to a defendant, intonements about “burdens” on the er- that claimed rors “arguable” are “prejudice” and that no has resulted to de- Forsyth. fendant
I am unable to be improprieties convinced that sin- the errors and gly concert, or in did not contribute conviction beyond third trial Accordingly, reasonable doubt. er- as those improprieties, rors and I grant would reverse and a new trial. How- ever, because of attempts prosecu- the bailiffs baleful to assist the tion to convict in the second I would find that the third trial jeopardy constituted double and order and dis- a reversal missal of the case.
MR. JUSTICE HUNT foregoing concurs in of MR. dissent JUSTICE SHEEHY.