STATE v CUTNER
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No. 84-268 I N THE SUPREME COURT O F THC S T A T E O F MONTANA 1984 S T A T E O F MOP?TAI\TA, P l a i n t i f f and R e s p o n d e n t , -VS- ALAN C R A I G CUTNER, D e f e n d a n t and A p p e l l a n t . A P P E A L FROM: D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l a i s t r i c t , I n and f o r t h e C o u n t y of C a s c a d e , T h e H o n o r a b l e John M. M c C a r v e l , Judge p r e s i d i n g . COUNSEL O F RECORD: For A p p e l l a n t : J e f f r e y T. M c A l l i s t e r , G r e a t F a l l s , Montana For R e s p o n d e n t : H o n . Milce G r e e l y , J. F r e d B o u r d e a u , Montana Attorney General, Helena, Montana County A t t o r n e y , G r e a t Falls, S u b m i t t e d on B r i e f s : Decided: Filed: IIEC 2 0 1984 Clerk -- Oct. 25, 1984 D e c e m b e r 20, 1984 Chief J u s t i c e Frank I . Haswell d e l i v e r e d t h e Opinion of t h e Court. Mr. iudgment of Alan C u t n e r a p p e a l s a District burglary. Court finding him guilty t h e Cascade County of sexual assault The d e f e n d a n t c o n t e n d s t h a t t h e t r i a l c o u r t . e r r e d by d e n y i n g h i s motion t o d i s m i s s f o r l a c k of C u t n e r was c h a r g e d May 4 , i n g a seventy-year-old t q 2-23 2 1 , 4AW4. and speedy t r i a l . 1983, w i t h s e x u a l l y a s s a u l t - man i n h i s Black E a g l e home on A p r i l Arraignment was s e t f o r May I l . A t t h e r e q u e s t of h i s c o u n s e l t h e a r r a i g n m e n t was c o n t i n u e d u n t i l May 1 7 , 1983, so that the court could formally appoint the counsel to represent t h e defendant. t h e s e v e n t r i a l d a t e s which were s e t i n The f i r s t of t h i s c a s e was J u l y 6 , 1983. s u b s t i t u t i o n of Judge R.oth. Coder a c c e p t e d j u r i s d i c t i o n O May n 1 8 , Cutner moved f o r The motion was g r a n t e d , Judge and t h e t r i a l d a t e was r e s e t f o r August 2 9 , 1983. C u t n e r f i l e d a n o t i c e of i n t e n t t o r a i s e t h e d e f e n s e of a . l i b i on J u n e 17, 1983. On J u l y 2 8 , 1983, t h e defendant f i l e d a n o t i c e of i n t e n t t o r e l y on m e n t a l d i s e a s e o r d e f e c t t o prove t h a t he d i d n o t have a p a r t i c u l a r s t a t e of which i s an e s s e n t i a l e l e m e n t o f t h e o f f e n s e c h a r g e d . requested a. t r a . n s f e r t o t h e Montana Sta.te Hospital mind Cutner for a p s y c h i a t r i c e x a m i n a t i o n and. t h a t t h e t r i a l d a t e of August 29, 1983, be v a c a t e d . The D i s t r i c t C o u r t g r a n t e d t h e motion, and t h e d e f e n d a n t was examined a t t h e S t a t e H o s p i t a l . On August 2 5 , 1983, t h e c o u r t r e c e i v e d t h e r e p o r t of t h e p s y c h i a t r i c e x a m i n a t i o n and C u t n e r was r e t u r n e d t o t h e Cascade County j a i l . On November 2 2 Judge B r a d f o r d , who had assumed j u r i s d i c t i o n o v e r t h e c a s e a f t e r Judge C o d e r ' s r e s i g n a t i o n , s e t December 5 , 1983, a s t h e t r i a l d a t e . On November 23 Cutner again moved McCarvel assumed for substitution of iudge. Judge jurisdiction from Judge Bradford and on November 28 reset trial for December 6. On December 2, 1983, the defendant filed a motion requesting that hair samples be taken from the defendant and other individua1.s who resided at his home, and these be analyzed by the State's Forensic Sciences Division for comparison with samples taken from a pair of thermal underwear the defendant allegedly stole from the victim. The defendant further requested that the December 6 trial date be rescheduled after December 26 to allow time for completion of the hair analysis. Cutner filed with this motion a signed waiver of speedy trial rights that was limited to the time required For the analysis. The motion was granted, but Judge McCarvel set trial for December 19, 1983. This trial was vacated on December 15, 1983, pursuant to a motion filed on a stipulation of the parties. The parties stipulated that additional time be allocated for a semen analysis, incorporated the prior waiver of defendant's speedy trial rights, and requested a January setting. 1984 trial The District Court rescheduled the trial for Febru- ary 21, 1984. The setting was later changed due to a docket conflict to February 14, 1984. The trial wzs held in fact on February 14 and 15, 286 days after the defendant was arrested and charged. On the morning of the trial, defendant filed his motion to dismiss for want of a speedy trial. Following jury voir dire, the motion was argued by counsel in chambers. The District Court denied Cutner's motion, and the trial proceeded. The defendant was found guilty of both charges and appeals the denial of his speedy trial motion. The analysis that this Court employs in reviewing a speedy t.rial denial is well established. We have recently issued an opinion that summarizes this analysis. v. Chavez (Mont. 1984), P.2d a , See State 41 St.Rep. 2219. In prior decisions this Court has adopted the test described by the United States Supreme Court in Barker v. Wingo !1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. Basica-lly, four factors are considered under this test: (1) length of delay; (2) reason for delay; (3) assertion of the right by t.he defendant; and (4) prejudice to the defend-ant. Without examining in detail the various reasons for the delay at issue, we note that the claimed 286-day delay is long enough to trigger the speedy trial inquiry. The State has the burden of showing that there was a reasonable excuse for this delay a n d that the defendant was not prejudiced. State v. Ackley (Mont. 1982), 653 P.2d 851, 39 St.Rep. 2091. During the in-chambers hearing on February 14, 1984, the State argued that the defendant was responsible for much of his delay in being brought to trial. for substitutj-on of judge. Twice Cutner moved The lower court took notice of the fact that Cutner did not raise mental disease or defect until two months after arraignment. Other delays were occa- sioned by the defendant's request for laboratory analysis in December and institutional delay associated with Judge Coder's resignation from the bench. Reviewing the record and the arguments presented, we . find there was a reasonable excuse for the delay in Cutner's trial. Furthermore, we find that the State has overcome the rebuttable presumption that the delay was prejudicia-l to the defendant. Cutner has alleged as prejudice that he was the victim of oppressive pretrial incarceration, suffered anxiety and concern, and his defense was impaired by the delay. Cutner argued that due to the passage of time, his memory and that of one of his key witnesses had become confused about the facts. We have found that the State's proof exceeds in weight the evidence presented by the defendant. During the time the defendant sat in the Cascade County jail, his counsel actively pursued his defense. The numerous defense motions that were filed support this observation. The continued incarcer- ation is attributable to actions by defendant's counsel in preparing a defense; we do not find such incarceration oppressive for purposes of the speedy trial right. The statements made by defendant's counsel in the February 14 hearing concerning Cutner's anxiety and lapse of memory were conclusory. At trial the defendant's recollec- tion and hj s alibi witnesses' memories showed no diminution of detail with the passage of time. The defendant's alibi defense was adequately"a1 though unsuccessfully, presented to the jury. Finally, we note that the defendant did not assert his speedy trial riqht until the actual commencement of trial. While we do not rest our decision on this factor, Cutner did not timely assert his right. See State v. Ackley, 653 P.2d at 854. It is obvious from the procedural record that Alan Cutner did not want to go to trial before February 1984. the nine months that preceded his trial-, his In attorney repeatedly sought different judues and pursued alternative defense theories. The resulting delay allowed the defendant to explore all avenues of defense. Such delay will not serve a dual role as qrounds for denial of the right to a speedy trial. The judgment of the District Court is affirmed. -- We concur: Chief Justice
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