State v. Hodge , 377 Mont. 123 ( 2014 )

November 25 2014
DA 13-0273
Case Number: DA 13-0273
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 308STATE OF MONTANA,
Plaintiff and Appellee,
v.
DARRYL DISMASS HODGE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC 12-422A
Honorable Robert B. Allison, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade M. Zolynski, Chief Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
Assistant Attorney General, Helena, Montana
Ed Corrigan, Flathead County Attorney, Stacy Boman, Deputy County
Attorney, Kalispell, Montana
Submitted on Briefs: October 22, 2014
Decided: November 25, 2014
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Darryl Hodge appeals from the decision of the Eleventh Judicial District Court,
Flathead County, which determined that Hodge’s right to a speedy trial had not been
violated. Hodge argues on appeal that his speedy trial right was violated by the delay in
bringing him to trial in Flathead County Justice Court. We affirm.
BACKGROUND
¶2 On May 4, 2010, the Flathead County Sheriff’s Office stopped Hodge, placed him
under arrest, and cited him with driving under the influence of alcohol, driving while
license suspended, and traveling the wrong way on a one-way street, all misdemeanors.
Hodge was released on his own recognizance the next day.
¶3 On May 21, 2010, Hodge appeared for arraignment in Justice Court. He entered
pleas of not guilty and was appointed a public defender. The court set the omnibus
hearing for July 13, 2010, and ordered Hodge “to appear in person.” Hodge failed to
appear at the July 13 hearing, however. Defense counsel explained that he had not had
time to confer with Hodge and that he had intended to request a continuance of the
omnibus hearing. The Justice Court opted not to issue a bench warrant for Hodge’s
failure to appear and instead continued the omnibus hearing to August 10, 2010.
¶4 On August 9, 2010, defense counsel moved to continue the omnibus hearing “for a
period not less than 2 weeks” because “Defendant is currently working out of town.” The
Justice Court reset the hearing for September 7, 2010. In the interim, the State filed an
amended complaint on September 3, adding an alternative charge of driving with an
alcohol concentration of 0.08 or more, also a misdemeanor. On September 7, at the time
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set for the rescheduled omnibus hearing, Hodge failed to appear. The Justice Court thus
issued a warrant for his arrest that same day.
¶5 Hodge was arrested pursuant to the warrant nearly 22 months later, on June 29,
2012. He appeared in Justice Court on July 2, 2012, and pleaded not guilty to the
Amended Complaint. The court ordered that he be released from custody and that he
maintain contact with his attorney. The court set an omnibus hearing for September 4,
2012. The court’s Omnibus Hearing Notice, provided both to defense counsel and to
Hodge at his last known address, states: “You must appear in person. . . . If you fail to
attend the Omnibus Hearing you will waive (give up) the right to trial by jury.”
(Emphasis in original.) At the September 4 hearing, Hodge’s counsel was present, but
Hodge failed to appear. The Justice Court thus set a bench trial for November 7, 2012.
¶6 On September 18, 2012, Hodge, through counsel, filed a motion to dismiss for
lack of a speedy trial. The thrust of his argument was that the “extreme” delay of over
two years was due to negligence or lack of diligence by the State in serving the
September 7, 2010 arrest warrant. Hodge further asserted: that his desire for a speedy
trial “is clearly sincere”; that he had “undergone substantial change” and “reformed”
during the intervening two years; that the State should not be allowed to “disrupt” his life
by subjecting him to prosecution on “long forgotten” charges; and that the delay had
eroded his memory of the events in question and precluded him from an opportunity to
prepare a defense while the case was relatively fresh. In response, the State argued that
there was no speedy trial violation. Primarily, the State contended that Hodge had been
informed of the requirement to appear at court proceedings and, thus, the vast majority of
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the delay should be attributed to him due to his refusal to appear. Additionally, the State
argued that Hodge’s conduct reflected a lack of desire to be brought to trial and that
Hodge’s ability to present a defense had not been impaired. The State noted that
evidence, including police reports, various videotapes, and Hodge’s breath analysis, had
been preserved by the State and previously provided to the defense.
¶7 The Justice Court held a hearing on October 24, 2012. Hodge’s counsel appeared
at the hearing and presented no evidence. Hodge himself was not present and, thus, did
not testify in support of his motion. Hence, no evidence was offered that he had suffered
prejudice from the pretrial delay. The State presented the testimony of Flathead County
Undersheriff Dave Leib. Leib testified that the Flathead County Sheriff’s Office had
approximately 5,000 active arrest warrants awaiting service. Deputies are given a current
list of arrest warrants while on duty. Time permitting, they attempt to serve the warrants;
however, warrants in felony cases are given priority. Due to limited resources, the
Sheriff’s Office cannot devote a deputy solely to locating and arresting persons subject to
misdemeanor warrants. Thus, arrests on misdemeanor warrants typically occur when the
person has incidental contact with law enforcement. Leib had no specific knowledge
about the efforts made to serve the arrest warrant on Hodge.
¶8 The Justice Court denied Hodge’s motion by order dated November 5, 2012. The
court concluded that the six-month limit of § 46-13-401(2), MCA, had not been violated
because Hodge’s two requests to continue the omnibus hearing in July and August 2010,
and his failure to appear for the third setting of the omnibus hearing on September 7,
2010, had the incidental effect of postponing his trial. State v. Fitzgerald, 283 Mont. 162,
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166-67, 940 P.2d 108, 111 (1997). As for Hodge’s constitutional claim, the court found
that although the pretrial delay of 918 days was significant, 737 of those days (80 percent
of the total delay) were attributable to Hodge’s requests for continuances, his failure to
appear as ordered at the September 7, 2010 omnibus hearing, and his decision to remain
at large for nearly two years. Significantly, the court further found that Hodge’s primary
desire was not to receive a speedy trial but, rather, “to avoid appearing before the Court
for any reason in this matter.” Hodge had even failed to appear for the October 24, 2012
hearing conducted on his speedy trial motion. The court observed that “his response to
the delays [is] more consistent with a person hoping now to obtain a fortuitous dismissal
of the charges as opposed to a person intent upon obtaining the speedy trial that the law
would otherwise prefer.” Finally, the court found that Hodge had not been prejudiced by
the delay. He had been subject to almost no pretrial incarceration; there was no evidence
that the delay had disrupted his life; the charges, consisting of traffic offenses, were not
particularly complex; there was no indication that any potential defense witness was
missing or could not be located; and there was no indication that any potential defense
theory or potentially exculpatory evidence had become unavailable.
¶9 At the time set for trial on November 7, 2012, Hodge failed to appear. Hodge’s
counsel was present. The Justice Court observed that notice of the trial had been sent to
Hodge at his last known address, but Hodge had failed repeatedly to heed the court’s
notices and orders. The court entered a finding that Hodge either had remained willfully
ignorant of the proceedings, or had knowledge of the trial and was voluntarily absent.
The court thus proceeded with trial in Hodge’s absence pursuant to § 46-16-122(2)(d),
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MCA. The court ultimately found Hodge guilty of DUI per se (§ 61-8-406(1)(a), MCA)
and driving the wrong direction on a one-way street (§ 61-8-327(2), MCA). The court
dismissed the other charges. The court imposed fines plus a 10-day jail sentence, with all
but 1 day suspended.
¶10 Hodge appealed to the District Court, challenging the denial of his motion to
dismiss. The District Court affirmed, reasoning that because Hodge had “simply walked
away from the process,” his right to a speedy trial had not been violated. Hodge now
appeals to this Court.
STANDARDS OF REVIEW
¶11 The Flathead County Justice Court is a court of record pursuant to § 3-10-101(5),
MCA. In an appeal from a justice court established as a court of record, the district court
functions as an intermediate appellate court and, as such, is confined to review of the
record and questions of law. Sections 3-5-303, 3-10-115, MCA; State v. Luke, 2014 MT
22, ¶ 9, 373 Mont. 398, 321 P.3d 70. Like this Court, the district court reviews factual
findings under the “clearly erroneous” standard, discretionary rulings for abuse of
discretion, and both legal conclusions and mixed questions of law and fact de novo.
Luke, ¶ 9. Because the scope of the district court’s review and this Court’s review is the
same, we review the justice court’s decision as if the appeal originally had been filed in
this Court. Luke, ¶ 9. We examine the record independently of the district court’s
decision, applying the relevant standard of review. Luke, ¶ 9.
¶12 Whether the constitutional right to a speedy trial has been violated is a question of
law. State v. Zimmerman, 2014 MT 173, ¶ 11, 375 Mont. 374, 328 P.3d 1132. We
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review the trial court’s legal conclusions to determine whether the court’s interpretation
of law is correct. Zimmerman, ¶ 11. The trial court’s underlying factual findings are
reviewed to determine whether those findings are clearly erroneous. Zimmerman, ¶ 11.
DISCUSSION
¶13 Whether Hodge’s right to a speedy trial was violated.
¶14 Pursuant to § 46-13-401(2), MCA, a prosecution on a misdemeanor charge must
be dismissed, with prejudice, if the defendant is not brought to trial within six months
after entering his plea, unless (1) the trial has been postponed upon the defendant’s
motion or (2) the State has shown “good cause” for the delay. Apart from this statutory
provision, the United States Constitution and the Montana Constitution provide that, “[i]n
all criminal prosecutions,” the accused has the right to a speedy trial. U.S. Const.
amends. VI, XIV; Mont. Const. art. II, § 24; Zimmerman, ¶ 12. Generally speaking, it is
unnecessary to apply the constitutional analysis in misdemeanor cases since the statutory
protection—mandating dismissal after six months, absent the two exceptions specified in
the statute—is “more restrictive” than the constitutional standard. State v. Ronningen,
213 Mont. 358, 362, 691 P.2d 1348, 1350 (1984); see also City of Helena v. Broadwater,
2014 MT 185, ¶ 14, 375 Mont. 450, 329 P.3d 589; State v. Case, 2013 MT 192, ¶ 6,
371 Mont. 58, 305 P.3d 812; State v. Bullock, 272 Mont. 361, 368, 901 P.2d 61, 66
(1995); State v. Belgarde, 244 Mont. 500, 507, 798 P.2d 539, 544 (1990). Nevertheless,
a misdemeanor defendant may choose, as Hodge has done here, to assert only the
constitutional protection. In fact, the constitutional protection is the defendant’s only
protection in cases where the statute is inapplicable because the trial was postponed upon
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the defendant’s motion or the State showed good cause for delaying the trial past the
statutory six-month deadline. Thus, because Hodge asserts only his constitutional right,
we limit our analysis to that issue.
¶15 The constitutional right to a speedy trial is necessarily relative and depends upon
the circumstances of the case. State v. Ariegwe, 2007 MT 204, ¶ 104, 338 Mont. 442,
167 P.3d 815. To determine whether the delay in bringing the accused to trial amounts to
a constitutional violation, we consider (1) the length of the delay, (2) the reasons for the
delay, (3) the accused’s responses to the delay, and (4) prejudice to the accused as a result
of the delay. Ariegwe, ¶¶ 106-111. These factors must be balanced to determine whether
the accused has been deprived of his or her right. Zimmerman, ¶ 12. No one factor is
dispositive by itself; the factors are related and must be considered together with any
other relevant circumstances. Ariegwe, ¶ 112. Each factor’s significance will vary from
case to case. Ariegwe, ¶ 105.
¶16 Factor One. At the time the Justice Court considered Hodge’s motion, the
pretrial delay was 918 days from Hodge’s May 4, 2010 arrest to the November 7, 2012
trial setting. This is a significant delay, especially given that the case involved relatively
simple misdemeanor offenses. As such, the State has a heavy burden to justify the delay
and to show that Hodge was not prejudiced. State v. Morrisey, 2009 MT 201, ¶ 53,
351 Mont. 144, 214 P.3d 708; cf. Zimmerman, ¶ 21 (we tolerate considerably less delay
for simple, ordinary driving offenses than for complex charges).
¶17 Factor Two. The Justice Court determined that, of the 918-day delay, Hodge was
responsible for 737 days. The court attributed 73 days to his requests for continuances,
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and 664 days to the period from September 7, 2010, when he failed to appear at the
omnibus hearing and the court issued an arrest warrant, to July 2, 2012, when he next
appeared in the Justice Court following his arrest on the warrant. The court determined
that the 181 days attributable to the State were due to institutional delay.
¶18 Hodge disputes the court’s attribution of the 664-day period to him. He contends
that he had no duty to bring himself to trial or to ensure diligent prosecution of the case
against him. He cites Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686 (1992),
and State v. Larson, 191 Mont. 257, 623 P.2d 954 (1981), for the proposition that delay in
executing an arrest warrant is properly attributed to the State. Although he failed to
appear at the evidentiary hearing and provide testimony in support of his motion to
dismiss, Hodge nevertheless faults the State for not presenting any evidence that he was
“actively avoiding the service of the bench warrant for any portion of the 664 day delay.”
¶19 We recently rejected a similar argument by the defendant on similar facts in City
of Kalispell v. Gabbert, 2014 MT 296, ¶¶ 19-20, ___ Mont. ___, ___ P.3d ___, and we do
so again here. When an arrest warrant is issued in conjunction with the filing of criminal
charges, the State must act diligently in executing the warrant. Doggett, 505 U.S.
at 652-54, 112 S. Ct. at 2691; Larson, 191 Mont. at 262-63, 623 P.2d at 958; see also
State v. Lacey, 2010 MT 6, ¶¶ 17, 19, 355 Mont. 31, 224 P.3d 1247. Delay due to
negligence by government actors will be weighed more heavily against the State than
delay due to an inability to locate the defendant despite diligent efforts. Ariegwe, ¶ 69;
Lacey, ¶ 19. In Doggett, for example, the defendant was indicted in February 1980, but
was not arrested until September 1988. 505 U.S. at 648-50, 112 S. Ct. at 2689-90. The
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Supreme Court found that this delay of eight and one-half years was due to negligence by
investigators and that it weighed heavily against the government. Doggett, 505 U.S.
at 656-58, 112 S. Ct. at 2693-94.
¶20 We view the matter differently, however, for speedy trial purposes, when the
arrest warrant is issued, as it was here, in the midst of the proceedings. Hodge had been
arraigned. He was well aware that charges were pending against him, and he had entered
pleas of not guilty to those charges. He knew that his case was progressing toward trial,
and he had been ordered by the court to appear for the omnibus hearing. It was Hodge’s
failure to appear at the September 7, 2010 hearing that resulted in the issuance of the
arrest warrant now at issue. We will not attribute the ensuing delay of 664 days to the
State under these circumstances. We agree that a defendant is under no obligation to
ensure diligent prosecution of the case against him or to help the State avoid dismissal for
failure to timely prosecute him. Zimmerman, ¶ 18. The prosecution and the court have
an affirmative constitutional obligation to try the defendant in a timely manner, and this
duty requires a good-faith, diligent effort to bring him to trial quickly. Ariegwe, ¶ 65.
Contrary to Hodge’s arguments, however, this duty does not impose upon the Sheriff’s
Office the obligation to essentially “babysit” criminal defendants who have been released
from custody pending trial. A defendant who chooses to keep himself deliberately
ignorant of the proceedings, or who has knowledge of the proceedings and is voluntarily
absent, should expect that the resulting delay in locating him and bringing him back to
court may be attributed to him. Cf. Gabbert, ¶ 17 (a defendant’s unjustified failure to
appear for mandatory court hearings may constitute good cause for delaying his trial).
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¶21 The 664 days of delay are attributable to Hodge’s decisions (1) not to show up as
ordered for the omnibus hearing and (2) to remain at large for 22 months. The Justice
Court correctly assigned this delay to Hodge. Furthermore, we agree with the Justice
Court that 737 days (80 percent) of the total 918-day delay are attributable to Hodge. Of
that, the 664-day delay weighs heavily against him since it resulted from his deliberate
choice to “walk away from the process” (as the District Court put it).
¶22 Factor Three. Hodge concedes that his failure to attend various pretrial hearings
weighs against him. He seeks to minimize this, however, with the conclusory assertion
that he was not actively avoiding the police or attempting to manufacture a speedy trial
violation. He contends that Factor Three should be weighed in his favor. The Justice
Court, however, found that Hodge did not desire a speedy trial, and the record amply
supports this finding. Hodge repeatedly failed to appear for mandatory court hearings.
He did not appear for the hearing on his speedy trial motion. He effectively absconded
from the process. Hodge demonstrated no desire to be brought to trial at all, let alone
brought to trial quickly. “‘[B]arring extraordinary circumstances, we would be reluctant
indeed to rule that a defendant was denied this constitutional right on a record that
strongly indicates, as does this one, that the defendant did not want a speedy trial.’”
Ariegwe, ¶ 77 (quoting Barker v. Wingo, 407 U.S. 514, 536, 92 S. Ct. 2182, 2195
(1972)). Accordingly, we hold that Factor Three weighs heavily against Hodge.
¶23 Factor Four. Under the fourth factor, we consider whether the accused has been
prejudiced by the pretrial delay in light of the interests that the speedy trial right was
designed to protect: (i) preventing oppressive pretrial incarceration, (ii) minimizing
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anxiety and concern caused by the presence of unresolved criminal charges, and
(iii) limiting the possibility that the accused’s ability to present an effective defense will
be impaired. Ariegwe, ¶ 111. Hodge does not argue that he suffered specific prejudice
under any of these considerations. We note that such an argument would be difficult to
make, given that Hodge failed to appear and offer testimony in support of his motion. He
instead relies on the presumption of prejudice that exists in this case due to the lengthy
918-day delay. Citing Doggett, 505 U.S. at 655-57, 112 S. Ct. at 2692-94, and the
concurring opinion in State v. Steigelman, 2013 MT 153, ¶¶ 31-37, 370 Mont. 352,
302 P.3d 396, he argues that he need not make an affirmative showing of prejudice.
¶24 It is true that “‘affirmative proof of particularized prejudice is not essential to
every speedy trial claim.’” Ariegwe, ¶ 99 (quoting Doggett, 505 U.S. at 655, 112 S. Ct.
at 2692). We have recognized that “‘consideration of prejudice is not limited to the
specifically demonstrable,’ since ‘excessive delay presumptively compromises the
reliability of a trial in ways that neither party can prove or, for that matter, identify.’”
Ariegwe, ¶ 99 (quoting Doggett, 505 U.S. at 655, 112 S. Ct. at 2692-93). “Although it
must be considered together with the other factors and ‘cannot alone carry’ a speedy trial
claim, presumptive prejudice ‘is part of the mix of relevant facts, and its importance
increases with the length of delay.’” Steigelman, ¶ 36 (Baker & McKinnon, JJ.,
concurring) (quoting Doggett, 505 U.S. at 655-56, 112 S. Ct. at 2693).
¶25 Nevertheless, while there may be cases where the absence of affirmative proof of
particularized prejudice will not defeat a speedy trial claim, those cases will be few and
far between—most likely a case involving government bad faith or conduct similarly
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egregious to that involved in Doggett, where the government’s negligence caused delay
six times longer than the delay necessary to trigger speedy trial review and where “the
presumption of prejudice, albeit unspecified, [was] neither extenuated, as by the
defendant’s acquiescence, nor persuasively rebutted [by the government],” Doggett,
505 U.S. at 658, 112 S. Ct. at 2694 (footnote and citation omitted). Steigelman, ¶ 37
(concurring opinion); see also Ariegwe, ¶ 60. We disagree with Hodge’s contention that
this is such a case. There is no delay attributable to either bad faith or negligence by the
State of the sort that would entitle a presumption to carry the day without any showing of
actual prejudice. Rather, the vast majority of the delay is attributable to Hodge’s decision
to abscond from the proceedings. Furthermore, there is no evidence that the delay
disrupted Hodge’s life; to the contrary, the only “disruption” identified by Hodge is the
fact that his two-year hiatus from the proceedings came to an end and he was required to
proceed to trial. The charges, consisting of ordinary traffic offenses, are not particularly
complex, and there is no indication that any potential defense witness went missing or
could not be located. Nor is there any indication that a potential defense theory or
potentially exculpatory evidence became unavailable during the delay. Finally, as the
prosecutor pointed out in the Justice Court, the police reports, videotapes, and Hodge’s
breath analysis have all been preserved and previously provided to the defense. We
therefore conclude that Factor Four weighs in the State’s favor.
¶26 Balancing. Balancing the four factors, the Justice Court concluded, and we agree,
that Hodge’s constitutional right to a speedy trial was not violated. Eighty percent of the
total delay is attributable to Hodge, and most of that delay was due to Hodge’s decision
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to disengage from the process. The record establishes that Hodge did not actually want to
be brought to trial. And while the presumption of prejudice is strong based solely on the
length of the 918-day delay, this is not a case where the presumption alone is sufficient.
It was incumbent on Hodge to demonstrate some prejudice in support of his speedy trial
claim. The record, however, reflects that Hodge has suffered no prejudice at all from the
delay.
CONCLUSION
¶27 The Justice Court’s denial of Hodge’s motion to dismiss is supported by the record
and is consistent with established law governing the right to a speedy trial. Hodge’s right
to a speedy trial was not violated. The District Court correctly refused to reverse the
Justice Court’s decision.
¶28 Affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JIM RICE
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