*1
STATE OF MONTANA,
Appellee,
Plaintiff and
SHAWN DAVID STRONG,
Appellant.
Defendant and
No. DA 09-0403.
April
Submitted on Briefs
2010.
July
Decided
CHIEF JUSTICE McGRATH by jury in the District Court his conviction Strong appeals from ¶1 District, felony offense of County, Prairie ofthe ofthe Seventh Judicial below, stated we reverse. aggravated assault. For the reasons review, one of which is Strong presents several issues ¶2 properly Strong’s denied determinative: Whether the District comply the State’s failure to with motion to dismiss based MCA. requirements
BACKGROUND K.S., an infant at the time of the Strong is the father of who was Strong charged. Shortly before the incident incident for which he was years, and re- after an absence of two Terry, returned to Montana During Teal Finneman. of K.S. and his mother entered lives for and raised Finneman Strong’s his son had been cared absence staying and started with K.S. Strong unemployed was parents. and her a nurse’s assistant at a night her shift as while Finneman worked nursing home. 24, 2008, Strong alone with K.S. while of March was night On the when night, and K.S. vomited twice
Finneman worked. baby seemed to be she noticed that the got Finneman home from work mother, a bruising. Finneman called her noticed faint pain and she and to baby pale to be lifeless and nurse, and found the who came over day after the next difficulty breathing. K.S. was worse having by a being pediatrician hospitalized City. seen was for a week Miles personnel suffering Medical determined that K.S. was from a traumatic, Grade III liver laceration which was a serious life- threatening injury. injury only Such an could be caused severe blunt accidents, force to the seen in heights abdomen motor vehicle falls from being Strong responded vaguely inquiries kicked a horse. about happened speculated might what could have to K.S. and that he have toy. fallen Strong only person on a was the who was with the child when injury. he suffered the March charged Strong by On the State information
felony aggravated by causing bodily injury assault to his son K.S. The warrant, $25,000, setting District Court issued an arrest bail Strong day. arrested the same He did not make bail and remained jail. A month later attorney visiting a Public Defender another prisoner Strong jail inquired noticed about his circumstances. On 28 the Office of April Public Defender filed a written notice of Strong. as counsel for The Public Defender filed a motion the charges grounds on not related to this appeal, but later May 5, 2008, withdrew it. On Strong was taken to his initial Peace, before a Justice and was “bound over to District Court.” The District Court denied pre-trial motion to *3 46-7-101, dismiss for violation of MCA. Strong by was later convicted § jury aggravated assault and was prison. sentenced to a term in
STANDARD OF REVIEW A applying 46-7-101, MCA, district court’s decision is an issue of statutory construction that this Court reviews to determine whether it Peterson, Billings 13, is correct. v. 2004 97 ¶ P.3d 532.
DISCUSSION 46-7-101(1), MCA, This appeal arises from requires which person arrested unnecessary delay “must be taken without before the judge nearest and most appearance.” duty accessible an initial of the appearance at the initial is to inform the defendant of the charges, right of his right appointed, have counsel of the may release, circumstances under which he seek pretrial of the right any statement, may refuse to make of the fact that conviction firearms, rights regarding right result the loss of judicial of the to a probable charge determination of cause if the complaint, was made 46-7-102, listed in of bail. Section MCA. and the amount privilege and the self- this as to counsel such Gatlin, v. incrimination, underpinnings. constitutional State have Mont. ¶ his Strong’s arrest and initial Forty-two passed between that this Strong’s State not contest assertion appearance. The does 46-7-101(1),MCA,that he have an delay requirement of § violated unnecessary delay” after arrest. The initial “without proper consequence for violation of primary determining issue is the statute.1 occupies important place an Section system. recognized requirement has justice
criminal This Court beingjailed appearance protects for a initial the defendant from prompt possibly protracted periods for indefinite and held incommunicado requirement of a Closely of time. associated a defendant prompt requirement initial is the unnecessary delay important rights of the set out in informed without ensure together MCA. 23. These two sections begins recognition and with a promptly criminal rights. essential defendant’s 46-7-101(1),MCA, provide any does not sanction Section itself requirement prompt appearance2
a violation of its for a initial differing consequences. applied State (1977), P.2d we held that the defendant inculpatory developed entitled to law during period enforcement initial appearance. P.2d Rodriquez, State (1981), “strongly any disapprove^]” attempt 42-day delay, explanation has no if the Public The State Defender Strong, happened upon delay had not longer. have been much anyone deliberately Strong’s There is no evidence that withheld struggled consequences “unnecessary Other states have with the of similar delay” exclusively appearance consequence statutes or rules that no for a violation. Almost also issue, has been whether requires warrants or exclusion of evidence confessions obtained *4 unnecessary delay. Note, Prearraignment Commonwealth Duncan: Delay Exclusionary Remedy, L. Rev. the Failure Rule as a 49 U. Pitt. (1988). dealing delays often Cases claims arise in the context 1975) (Kan. (42 Taylor, of a few a few State v. P.2d 1375 or even hours. See (Mich. 1984) (60 Mallory, delay). delay); People v. hour Under 18 hour 365 N.W.2d 3501(c) delay begins unnecessary after arrest. §USC the examination of 6 hours
avoid the requirements of the statute and warned that if a defendant
can
show
or a deliberate attempt
to avoid a speedy initial
appearance, “we will not
hesitate to fashion an
remedy.”
We fashioned
no such
Dieziger,
(1982),
rejecting
the defendant’s motion to dismiss
the charges against him for an asserted violation of the statute. The
defendant had not made a motion
suppress
Benbo;
as in
he was in
the Montana State Prison at the time of the offense so an arrest was
unnecessary; and he was unable to
any prejudice.
demonstrate
long ago
As
as the
Benbo case in 1977
recognized
46-7-101(1),
requirements
could meaningless
§
unless there
was an “incentive” for officials to
requirements. Benbo,
follow its
Mont. at
unnecessary delay, but there was no evidence that the presiding judge
advised defendant
required by
MCA. This Court concluded that
appropriate remedy
was to vacate
the conviction and
charges dismissed,
order the
While
present
case arises from a
46-7-101, MCA,
violation of §
and Gatlin arose from a
requirements
of those
closely
two statutes are
intertwined and interdependent. The
*5
a
without
the
requires defendant
former
the information and
unnecessary
specifies
latter
delay,
the
Therefore, if dismissal
judge then must furnish.
advisories that the
provide
in
failure
remedy Gatlin based
appropriate
were the
at
initial
required
and advisories
with all the information
defendant
if the
appropriate remedy
manifestly dismissal is
appearance, then
delayed.3
unnecessarily
itself is
appearance
initial
ignore
law
Contrary
dissent, this
does not
opinion
to the
just
opposite. Our
decision
cases; it does
prior
established
suppress evidence
granting a defendant’s motion to
in Benbo endorsed
appearance.
unnecessarily delayed initial
consequence
for an
however,
only
suppression is the
indicate,
does
Benbo
unless
is evidence to
opinion
noted that
there
consequence, and
appearance would never be
provide prompt
failure to
initial
suppress,
at
That is
into
a violation of is reflected this Court’s decision In if a Rodriguez. expressly case stated that defendant prejudice attempt can show from a deliberate to circumvent “we not hesitate to fashion an requirements of will “example” remedy.” opinion The cited Benbo as an of an appropriate remedy, appropriate remedy. but not as the Mont. at 284. next failing issue is whether the an dismissal delay or unnecessary without should be with without
prejudice. prejudice we ordered without because the Gatlin dismissal resulting showing specific prejudice defendant made no from the right failure to him ofhis to counsel. Relevant factors were that advise prior being steps to Gatlin took no furnished him; no place, advance the case critical confrontations took gathered against generally him. no and no evidence was There was “profited informing ... in not showing that the State from the mistake him he had the counsel.” (Ill. People Dees, App. 1980), the court also ordered N.E.2d 14-day charges following delay providing an initial
dismissal of case it clear present facts make that there is no
justification unnecessarily holding prisoner incommunicado, required However, unrepresented, proceedings and without the law. specific a showing prejudice impose we decline to the drastic prejudice in all the present dismissal such cases. In case, Strong only Therefore, prejudice. seeks MCA, is, of a consequence the absence of a showing specificprejudice, charge dismissal ofthe implied We re-affirm what was at least if a Gatlin: defendant -102, who not afforded the provided 46-7-101 and §§ demonstrates an arising material from from failure to provide required advisories, information and then with prejudice may warranted. *6 holding prosecution We also reaffirm the of that if the
¶21 during obtains evidence or confession of in implementing the defendant is entitled to have State, 191, 316 that suppressed. Hope evidence confession And, developed whether the or a during period unnecessary delay confession of can be in assessing degree prejudice a factor of to determine whether a with prejudice. However, dismissal should be or without Benbo may no longer be to support argument construed that suppression of only remedy evidence is the impose court for violation of 46-7- 101, MCA. judgment, in sentence and conviction this
¶22 case are reversed and the case is remanded to the District Court with instructions to prejudice. information without MORRIS,WHEAT,
JUSTICES COTTERand LEAPHARTconcur. NELSON, concurring. JUSTICE specially I concur in Strong the Court’s decision to dismiss this ¶23 case. If had requested that case prejudice, be dismissed with I would have however, agreed Curiously, with him. his briefs on appeal request Accordingly, dismissal without prejudice. request, because of I that am agree constrained to with the Court. Typically, this, argue in cases such as I that dismissal with remedy; is
prejudice I would not remand for new trial. As in State v. 353 Mont. here the real reason Strong statutory right that accorded his to a timely he simply through was that fell the cracks due prosecutorial neglect to after was he arrested. The State concedes as result, denied Gatlin, Strong was like Opinion, See As much. of his judge to be advised counsel; appearing he was denied fairness. law and fundamental rights; process he was denied due of (Nelson JJ., in Cotter, concurring part dissenting part). to cases, serves of In these sorts statutory rights nor his constitutional neither the defendant’s
protect those, Indeed, the State having already deprived once been rights. case, consequence, As a gets all over with a clean slate. to start subjected again to a trial and Strong likely second example, will the State put jeopardy of conviction. violation is, goes unpunished but because really, a nonevent-one that occurred wrongful its No exonerated from conduct. government effectively is Heads, wins; tails, harm; Strong loses. no foul. State requirements” [the] for officials to “follow To an “incentive” 46-7-101(1), Opinion, put and to some actual teeth of § dismissal, If we should sanction strongly would see fewer prejudice, suspect dismissed with I explain grieving When officials have public these sorts cases. justice because family victim’s abuser will not be they-the it,” there will be a real-life officials-“blew rest assured get “incentive” it the first time. I concur. specially RICE, dissenting.
JUSTICE conveys that for analysis adequately I do not the Court’s believe years held consistently we have past 46-7-101(1), MCA, all evidence obtained any “unnecessary delay.” See (1977); *7 280, (1981); Dieziger, 284 P.2d P.2d 200 Mont. 650 800, 132, 149-50, 94,105 (1982); Beach, v. 217 705 P.2d 802 Mont. State, 191, 14, 497, 1039; (1985); Hope v. 2003 MT 74 P.3d ¶ 232, 27-30, 444, City Billings Peterson, MT 322 97 2004 Mont. of Court, dismiss, In denying Strong’s P.3d 532. motion to the District cases, proper it that “the citing got exactly by reasoning these suppression of evidence.” remedy improperly is obtained acknowledge “weighty considerations” of The Court fails under that “cardinal stare decisis the limited circumstances which Tonn, 330, 19, doctrine” Certain v. be contravened. ¶ omitted). (citations 21, 220 “Faced with viable Mont. P.3d Certain, alternatives, provides ‘preferred decisis course.’” ¶ stare Kirkbride, 13, (citing State Mont. ¶ (1991)). 340; Tenn., Payne v. 501 U.S. 111 S. Ct. Instead, years precedent adopts Court overrules a rule new demonstrating that contravening the standards for stare decisis have been established. response, flexibility In the Court offers that there is our within
previous
However,
problem.
decisions which relieves the stare decisis
analysis
First,
Benbo,
very
Court’s
incorrect.
declared
“[h]enceforth,
clearly
person
the effect of a failure to take a
a
after
arrest” would be
Benbo,
suppression
delay.
of evidence collected
at
fact,
remedy
adult offenders. Wehave not even mentioned dismissal as a let remedy, it, alone applied adoption since of the suppression remedy in until today. the Court’s new venture practical matter, As a suppression may superior remedy because, hypothetically, defendant, jail the State could
deprive him of an collecting evidence, while the charges, and then him. re-arrest new remedy adopted by Court is unclear. I it understand
to be prejudice, specific prejudice unless there is shown which warrants dismissal with prejudice, “reaffirm[ing] but also holding Benbo,”Opinion, to the limited extent during period delay collected can determining also be considered in specific prejudice. The Court holds that of evidence is remedy, only remedy.” Opinion, but not “the 21.1 clarity believe that by retaining long-established rule, law would be served our application affirm the District Court’s of it.