*1
MONTANA,
STATE
OF
Respondent,
Plaintiff
Appellant.
MORRIS,
TIMOTHY L.
Defendant
No. 87-017.
on Briefs
Submitted
Oct.
1987.
Decided Feb.
Michael Morris, Butte, Sol & Dee William *3 appellant. defendant and Greely, Atty. Gen.,
Mike Kimberly Kradolfer, Atty. Gen., A. Asst. Helena, III, Deschamps, Robert Atty., Missoula, plaintiff Co. for and respondent.
MR. JUSTICE Opinion WEBER delivered of the Court. appeals Mr. District, Morris his in the conviction Fourth Judicial County, possession Missoula for dangerous a of drug of violation 45-9-102, Section MCA. presents
He four issues for review. 1. Did the District Court denying err in dis- motion to defendant’s upon miss based lack of trial?
2. Did the District Court denying suppression err in of defendant’s evidence motions?
3. Did the District Court err de- when evidence over it admitted possession fendant’s chain of objection?
4. Did the District Court err in a motion for defendant’s new trial? 13, 1985,
On March Missoula, p.m. around Mr. was 11:30 Morris driving recently purchased a working used car. His heater was pull parking shopping so he decided to into a center lot parked He him- light, positioned fix the heater. underneath a street dashboard, pliers, using began a knife self under the and and some working on his car.
City Neumeyer night police patrolling officer Jim was the area that parked lights engine when he saw the Morris vehicle on and Neumeyer he one running. Officer testified at trial that could see no investigate. expressed so The his con- in the car he decided to officer perhaps pulled had fallen cern that someone had off the street and asleep taking approached the might place. a crime be As he or that car, empty gun he holster in the back seat and some knives saw an underneath the dash- on the dashboard. then saw Mr. Morris measure, safety Neumeyer pointed flashlight his board. As a Officer momentarily him. Mr. directly eyes into of Mr. Morris to blind car, position, rolled out of the Morris was in an awkward he flashlight him with the and a drawn revolver. the officer confronted himself but testified that the officer never identified try shouted, you ground. Don’t only hit the “You’ll be dead before Neumeyer your I’ll Officer testified that it. blow brains out.” coming of car. For in his hand as he was out Morris had a knife out safety own he his and ordered Mr. Morris his drew revolver immediately agrees assumed a the car. The officer gun had spread-eagle position that he a under and volunteered possession gun, jacket. says took officer then pat-down search Morris, performed brief handcuffed Mr. carrying any Morris for weapons. other officer then arrested Mr. weapon. a concealed jail officer found
During booking procedure jail, at defendant pocket. The powder pants vial white inside Morris’ day one count crimi- charged justice court with later that carry- (felony) one count dangerous drug nal (misdemeanor). ing weapon a concealed justice complaint filed On March an amended dangerous possession of a adding a second count of criminal court of defendant. drug, relating separate arrest and search *4 directly at issue is not the trial and count was dismissed re- appeal. justice The court docket indicates although the court preliminary on all counts quested a examination never conducted one. informa- 16, 1985, file an requested leave to August
On the State day. Ar- same filed that in district The information was tion court.
315 9, raignment September hearing was held on and the omnibus was delay on 7. At this to dismiss for November time Morris moved eventually arraignment which motion was denied. matter 10, jury guilty went to a on June 1986. Mr. Morris was found of one dangerous drug. count of
I in denying Did the District Court err defendant’s motion to dis- upon speedy miss based lack of trial? speedy right trial attaches at the moment a defendant is
accused,
arrest,
may
and that
occur at the
at
time
the time of the
filing
complaint
information,
aof
or
or at
time
of indictment.
State
(Mont. 1981),
v. Larson
954,
[_ Mont. _,]
623
957-
P.2d
58,
213,
St.Rep.
right
38
215. Mr. Morris stood accused and his
speedy
day
trial attached the
he was
must
arrested. We
balance four
together
any
factors
other relevant circumstances to determine
whether
Morris’
speedy
constitutional
to a
trial has been
length
delay,
for-delay,
violated:
reason
the defendant’s assertion
Larson,
right,
prejudice
of the
to the defendant.
Mr. Morris was arrested the first time on March
days
10,
certainly
tried 453
later
June
1986.
enough
on
delay
State v.
presumption
to raise a
prejudice
defendant.
(1975),
Steward
385,
168 Mont.
In considering delay, delay reason for we will deduct attributa- ble to Grant delay. defendant’s own actions from the total (Mont. 1987), 994, 181,] St.Rep. Mont. P.2d 44 [227 request The State did not file in district leave to an information August court arraignment days until 1985. The after filed, hearing days information was and the omnibus was held 59 arraignment. far, after days Thus elapsed had since initial ar- qualified rest. Mr. Morris made several waivers trial for periods delay of time. He also made a motion dismiss due to arraignment and set additional consolidated motions. Trial was January 1986. continuance,
On January requested defendant tran- script, independent testing vials. The of the substance granted court these motions. From the record we understand period perhaps Morris waived trial for time ex- tending beyond promote or March 1986. He did not initiate transfer *5 316 testing, May, they
of
were not tested until late
sev-
the vials for
and
May hearing
eral
5
on the State’s motion to
weeks before trial. At
date,
May.
try
set
to
the case
Defense
a trial
the court offered
May,
for
so trial was set for June.
counsel could not calendar
trial
delay.
total,
days of
responsible
In
the
for 253
defendant was
explaining
days remaining.
the reason for
200
The burden of
leaves
this
State,
delay
question
prosecu-
the
is whether
with the
and
rests
Grant,
pursued
diligence.
We now look to
assertion of
to
the defendant’s
trial,
prior
Morris moved to dismiss
trial. On two
to
Mr.
occasions
trial,
speedy
the omnibus hear
all counts
of lack of
once at
because
Morris,
ing
day
the
somewhat inconsis
and once on
before trial.
speedy
tently
speedy
argument,
trial three
with his
waived
trial
trial,
attorney
process.
indi
the
One month before
times
complete
waivers were
waiver. We note however that these
cated
calendar,
its
given partially of the court and
trial
convenience
that Mr.
partially
defense. We conclude
to accommodate the
right
Morris
asserted his
to
Morris.
Lastly
delay prejudiced Mr.
we
whether the
consider
State.
prejudice
rests with the
showing
burden of
absence of
Grant,
inter
serves three
Of
single
the four factors we have
factor
“[n]o
analysis
light
determinative. Each
is weighed
facet of
of the
*6
Waters,
surrounding
facts and circumstances.”
II Did the District Court err in suppression defendant’s evidence motions? gun drugs contends that evi- alleged and the are
dence which suppressed the court should have as the result of an illegal arrest. He illegal that the arrest was in the officer probable lacked comply stop cause arrest and failed requirements. frisk v. Gopher (Mont. in 1981), [_ Mont. _,] Court 293, 296, St.Rep. explained for standard stop
a valid and search: now police particular- hold that when “[W]e a trained officer has a suspicion ized occupant engaged of a vehicle is has or been activity, thereto, in criminal or in- witness a limited and reasonable vestigatory stop justified.” and search is Rather, stop. Probable is cause not the the of- standard a valid particularized ficer justify stop. must have a fur- suspicion to We Gopher, suspicion” in P.2d at explained “particularized ther 296: (1) objective
“The State’s burden has data from two elements: (2) inferences; experienced which an certain officer can make suspicion occupant resulting a certain vehicle or activity.” criminal engaged wrongdoing been or was witness to case, years’ experience this an nine noticed a car In officer of lot, parked empty parking mid an otherwise sometime around yet night. engine running headlights and the were on occupant officer could see an the car. The officer then decided investigate should determine whether someone was need assistance, unconscious, intoxicated, or whether the driver was asleep process of theft or whether an was in the an auto individual empty gun approached, or other crime. As he an hol officer saw lying ster saw a man and several knives inside the car. then under the from these facts that dashboard of car. conclude reasonably reasonably suspected wrongdoing the officer took precautionary safety. measures for his own investigatory justified. point,
At that search was reasonable voluntarily spread-eagle posi Mr. Morris testified that he assumed a gun jacket. tion and warned the officer that he had a under his person officer had or defendant’s not searched frisked the point, gun of a The District and the was not the result search. Court, gun suppression of as evidence. therefore denied Neumeyer did not complains
Mr. Morris further that Officer *7 46-5-402, stop MCA. procedures follow of Section the and frisk lawfully procedures apply of that the officer has statute once portion of stopped person apply specifically to “frisk” a and so the process. possessed the the that he Once Morris volunteered fact arrest for gun jacket, probable a under cause for his the officer had stop for possession suspicion “A to weapon. of founded a concealed to may ripen probable arrest investigative into cause detention stop.” State through after the the occurrence of facts or incidents St.Rep. Sharp (Mont. 1985), 40,] Mont. [217 pat-down the search subsequent at the scene and 1013. The to incident upon booking jail proper searches at the were and valid 46-5-101(1), District Court We hold that the arrest. Section MCA. was suppress the vial which properly denied defendant’s motion to during booking procedures. found his violated argues actions
Mr. Morris also the officer’s Constitution, Article right privacy. of The Montana constitutional II, 10, provides, Section privacy well-being to of a
“The of is essential the individual society com- infringed showing be a free and shall not without of pelling state interest.” believing that
Mr. Morris contends that the officer had no basis for therefore, compel- activity; he was involved in criminal there was no However, ling infringing privacy. state al- reason for we have ready to particularized suspicion concluded that this officer had a investigate by Gopher. required experienced as When trained and officer confronted with circumstances which officer believes investigation, parameters Gopher, demand within the of that officer duty investigate. requires “Effective law given enforcement some latitude to be investigating up officers to react to and on their follow observations. Drawing artificial distinctions as or ‘time lines’ situations such comport reality these does not sense.” or common Sharp, 702 P.2d at 963. hold that District Court suppression denied defendant’s motion invasion which based on privacy. of
Ill Did District err Court when it evidence admitted over defend- possession chain objection? ant’s of possession the chain of of Exhibit respects.
is flawed numerous 2 is the vial found Exhibit booking procedure. admitted into evidence exhibit case, objection. without defense de When the rested its fense, part dismiss, as challenged posses of a motion chain of pertinent portions appear sion of the exhibit. The of the motion follows:
“I could I possession not follow chain 2 .... Exhibit very have had a following possession difficult time the chain of I .... don’t am- think we can trace the that bottle phetamine Timothy deputy, jailer, Morris and that not a but jailer not presumption regularity carrying covered offi- really cial jailer passed functions. The it I found and on and possession.” couldn’t follow the chain of only generally Other than his jailer, concern about the defense as, objected general to the Such “I could exhibit. statement *8 preserve objec- possession follow the . . does not valid chain of Further, appeal appeal. at trial or on cite tion for Mr. Morris did not any authority possession is some- for his chain of concern rather than a jailer how tainted the fact that the was a civilian peace Court overruled officer. We hold that District 2. objection Mr. of Exhibit Morris’ to the chain of IV in for a new Did the District Court err defendant’s motion trial? newly ground Morris bases motion for new trial on only
discovered that some facts became clear evidence. indicates during transcript. 46-16- trial after review of the trial Section 702(1), MCA, grant a new allows the court discretion to defendant “if required justice.” trial The Commission Com- the interest provide part: ments to this statute may which be specify grounds does not “[Section 46-16-702] encompasses the vari- the basis for a motion for a trial. . . new [It] grounds plus permits it existing ous set forth in the law Montana any reason the granting of a motion for a new trial for other . may justice court . . .” find to be the interest of 580, 1052, (1959), 586-87, In Greeno 135 Mont. govern this which a motion for Court enumerated certain rules consider newly new evidence. We need trial based on discovered only knowledge of come to the first one: the evidence must have applicant for new granting of a motion since trial. The or denial State v. court. trial within of the trial rests the sound discretion Gallagher (1973), P.2d 162 Mont. conducting an un
Mr. Morris contends that the State was opera factory”. part of this operation “drug dercover As to locate tion, suspected to be put pressure the State him he was on because pres factory. part of this knowledge As involved or to have sure, during book contends, on him he which was “found” vial facts actually All of the ing “planted” during him arrest. on to him upon motion were available which Morris bases his fact, un conspiracy and argued before and In only new operation theory evidence dercover at trial. The alleg exculpatory which the State Morris mentions is evidence some the de edly over to or failed to turn its hands but refused pre- 26-1-602(5), MCA, it is states fense. He which cites Section willfully suppressed be if sumed would adverse “[e]vidence *9 produced.” present that the State failed to evidence to However, disputable presumption. pro- controvert this willfully sup- indicating duced no evidence the State pressing exculpatory newly allegations His evidence. discovered Court, simply evidence are unfounded. The District new trial, “drug stated it believed the of the fac- defense aware tory implications” prior agree trial. with the court. The de- — only allegations fense allegations the same at trial. made makes We hold that the District Court sound it exercised when discretion denied Mr. Morris’ for new motion judgment of the District Court is affirmed.
MR. CHIEF TURNAGE and MR. HARRI- JUSTICE JUSTICES SON, GULBRANDSON, HUNT and concur. McDONOUGH SHEEHY,
MR. specially JUSTICE concurring: I agree issue, speedy with the results. On the the time taken trial bring inordinately long. case to trial was There was no here, agree trial I but with the result demon- because record really strates that Morris did not want a trial. See Barker Wingo (1972), 407 U.S. 92 S.Ct. L.Ed.2d