08/31/2021
DA 19-0477
Case Number: DA 19-0477
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 217N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
TAMMY JANE SMITH,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 19-179
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Johnna K. Sutton, Johnna K. Sutton Law, P.C., Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Michael P. Dougherty,
Assistant Attorney General, Helena, Montana
Scott D. Twito, Yellowstone County Attorney, Billings, Montana
Submitted on Briefs: July 21, 2021
Decided: August 31, 2021
Filed:
c ir-641.—if
__________________________________________
Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Defendant and Appellant Tammy Jane Smith (Smith) appeals from the Order
Denying Motion to Dismiss for Speedy Trial issued by the Yellowstone County Justice
Court on November 1, 2018, and the Order affirming such issued by the Thirteenth Judicial
District Court, Yellowstone County, on May 23, 2019. We reverse and remand for
dismissal.
¶3 Smith was involved in a single-vehicle accident on June 12, 2016. At that time, she
provided law enforcement with a statement and a blood sample.1 Results of her blood
sample were reported by the Montana State Crime Lab in a Toxicology Report of August
30, 2016. On November 14, 2016, over five months after the accident and two and a half
months after the toxicology report, the Billings City Attorney’s office filed a “draft”
complaint purporting to charge Smith with driving under the influence (DUI), a
misdemeanor. This Complaint, however, was never served on Smith and, due to a conflict,
the City Attorney’s Office referred the matter to the Yellowstone County Attorney’s Office
(YCAO) for prosecution. On May 4, 2017, nearly a year after the accident, YCAO filed a
1
She also admitted to law enforcement she had taken prescription medication prior to the accident.
2
complaint in the Yellowstone County Justice Court charging Smith with DUI (second
offense), a misdemeanor. An arrest warrant was issued the next day, May 5, 2017. The
warrant was not served on Smith until December 27, 2017—nearly 8 months after it was
issued.2
¶4 Smith made an initial appearance in Justice Court on December 28, 2017, and was
released from jail with conditions that included pretrial drug monitoring. The Justice Court
initially set bench trial for March 22, 2018, or jury trial for April 27, 2018, and an omnibus
hearing for February 8, 2018. Thereafter, a number of mishaps occurred which were not
Smith’s fault. First, the Justice Court, sua sponte, re-set the omnibus hearing from
February 8, 2018, to February 22, 2018. Smith did not appear for the omnibus hearing due
to delay in the public defender’s office (OPD) failing to provide her notice of counsel’s
appointment until after the February 22, 2018 hearing had passed. Next, because of her
non-appearance at the omnibus hearing, the Justice Court vacated the jury trial set for
April 27, 2018, but maintained the bench trial for March 22, 2018. Three days before the
scheduled bench trial, the State filed a motion requesting a continuance due to witness
unavailability. On March 22, 2018, Smith appeared with counsel to her originally-
scheduled bench trial date. At that time, Smith’s counsel explained the delay in notifying
Smith of counsel’s appointment and its resulting failure of her appearance at the
February 22, 2018 omnibus hearing. Smith’s counsel requested that if the court was
2
Although Smith resided at the same address throughout the pendency of the case, it appears she
had not updated her address with the DMV and her updated address was evidently not known to
law enforcement until her court appearance on December 28, 2017.
3
granting the State’s motion to continue the trial, it be re-set for a jury, rather than bench,
trial. The court granted the State’s motion for a continuance and re-set the matter for a jury
trial on April 20, 2018. As this jury trial date was one week sooner than it was originally
set for, it is clear no delay was caused by Smith requesting a jury trial.
¶5 Shortly before the trial date, the State again filed a motion requesting continuance
of the trial due to witness unavailability. Prior to any response by Smith, the court re-set
the jury trial to June 15, 2018. The parties appeared on June 15, 2018. At that time, Smith
related frustration at making numerous attempts to contact her counsel to prepare for trial,
but not being successful. Smith’s counsel confirmed that the OPD phone system had been
malfunctioning and asserted Smith should not be penalized for OPD’s communication
equipment problems. The State expressed it would have difficulty with witness availability
if trial was set in June or July. The court characterized the discussion as a “joint motion to
continue” the trial but, for speedy trial purposes, assessed the delay from June 15, 2018, to
July 20, 2018, the date to which it re-set the trial, against Smith.
¶6 Smith appeared ready for trial on July 20, 2018, when the next mishap occurred. A
substitute judge was presiding in Justice Court that day. The substitute judge sua sponte
continued the trial to August 31, 2018. This date was over two years after the initial
accident and 485 days after Smith was charged in Justice Court on the misdemeanor
charge—of which only 36 days of delay were attributable to Smith for speedy trial
purposes. 3
3
The parties dispute as to when the speedy trial clock began. Smith asserts the speedy trial clock
should commence on November 14, 2016, when the Billings City Attorney filed its “draft”
4
¶7 Smith again appeared ready for trial on August 31, 2018, and the Justice Court again
sua sponte continued the trial to September 14, 2018—499 days after Smith was charged
with the misdemeanor offense in Justice Court. This prompted Smith to raise the issue of
a violation of her right to speedy trial. At Smith’s request, the Justice Court vacated the
September 14, 2018 trial date and set a status hearing for September 13, 2018. On
September 12, 2018, Smith filed a written motion to dismiss asserting both her statutory
right under § 46-13-401(2), MCA, and constitutional right to a speedy trial were violated.
At the status hearing, the Justice Court set an evidentiary hearing on Smith’s speedy trial
motion for October 4, 2018, and re-set trial for November 16, 2018.
¶8 Following hearing on October 4, 2018, the Justice Court issued its written Order
Denying Motion to Dismiss for Speedy Trial on November 16, 2018. The November 16,
2018 trial date was 888 days after the date of the accident on June 12, 2016, and 562 days
from the date Smith was charged in Justice Court. In its Order, the Justice Court attributed
delay as follows:
1) 326 days pre-charge period—June 12, 2016 to May 4, 2017—not charged
as delay to either party.
complaint against Smith as that was the date she became “an accused.” State v. Longhorn, 2002
MT 135, ¶ 22,
310 Mont. 172,
49 P.3d 48 (concluding one becomes “accused” when a criminal
prosecution has begun), overruled, in part, on other grounds by Giambra v. Kelsey,
2007 MT 158,
¶ 27,
338 Mont. 19,
162 P.3d 134. The State contrarily asserts, consistent with the Justice Court’s
conclusion, the speedy trial clock commenced on May 4, 2017, the date the YCAO filed its
complaint in the Justice Court, as that was the date the prosecution formally began. We need not
analyze whether Smith became “an accused” earlier than May 4, 2017, as even if we assume she
did not become “an accused” until May 4, 2017, her right to a speedy trial was violated and adding
in another 172 days of delay attributable to the State does not alter that determination.
5
2) 238 days attributable to the State—May 5, 2017 (date warrant issued) to
December 28, 2017 (date of initial appearance)—as institutional delay.
3) 169 days attributable to the State—December 29, 2017 to June 15, 2018—
and weighing heavily against the State due to lack of diligence in correct
identification of its expert witness.
4) 154 days—June 15, 2018, to November 16, 2018—to Smith.4
¶9 After receiving the Justice Court’s order denying her speedy trial motion, Smith
pled guilty to the misdemeanor DUI on February 1, 2019, reserving her right to appeal the
speedy trial issue. Smith appealed to the District Court which affirmed the Justice Court
and adopted the Justice Court’s attribution of delay days between the State and Smith.
¶10 We review a district court’s review of a lower court decision as if the appeal had
originally been filed with this Court applying the appropriate standard of review. City of
Helena v. Heppner, 2015 MT 15, ¶ 9,
378 Mont. 68,
341 P.3d 640. Whether a defendant’s
right to speedy trial has been violated is a question of law, and we review the trial court’s
factual and legal decisions to determine if its findings of fact are clearly erroneous and
whether its legal conclusions were correct. Heppner, ¶ 10.
¶11 We turn first to the Justice Court’s factual findings to determine if they are clearly
erroneous. The Justice Court first attributed the delay between the State and Smith, then
4
In its Order, the Justice Court vacillates between including and not including the end date in its
calculations, resulting in one-day variations in its calculations of time. These one-day variations
are not material to our decision here. For consistency in this Opinion, we include the end date in
each of our calculations of time.
6
determined there was no evidence the prosecution used the considerable delay to gain a
tactical advantage, discounted Smith’s testimony regarding her lost work opportunities as
speculative, concluded there was no evidence her anxiety was exacerbated by the delay
versus merely facing a conviction, and denied Smith’s motion.
¶12 We agree the record supports the Justice Court’s characterization of delay from
May 5, 2017 to June 15, 2018—a total of 407 days, 169 of which are weighed heavily
against the State.5 The record, however, does not support the Justice Court’s
characterization of all delay after June 15, 2018, being attributable to Smith. Smith
appeared for trial on June 15, 2018. At that time, she advised the court she had been trying
to contact her attorney for some time but had been unable to get through on the OPD phone
lines. Smith had her cell phone available at the hearing to show the court. Smith’s counsel
confirmed Smith’s attempts at contact and that such had been unsuccessful through no fault
of Smith but rather due to malfunctioning of the OPD’s phone system. Based on the
discussion among the parties and the court on June 15, 2018, the Justice Court re-set trial
5
Although the State did not assert a counter-appeal contesting the Justice Court’s assessment and
characterization of delay, the State argues there is no evidence in the record to support the Justice
Court’s finding the State misidentified the expert witness from the crime lab such that continuances
for lack of availability of its expert were possibly not necessary. The State asserts it did not
misidentify its expert and the delay occasioned by its two continuation requests should be charged
to the State as institutional delay that has little to no weight against the State. Review of the record
shows that in this uncomplicated, straightforward misdemeanor DUI case where Smith did not
object to the crime lab witness appearing via video, the State failed to assure timely availability of
its crime lab expert requiring two continuances. As such, the Justice Court’s finding of negligence
weighing heavily against the State for the delay occasioned by the continuances it requested was
not clearly erroneous.
7
for July 20, 2018, specifying that it continued trial as a result of a “joint motion to
continue.” Despite this, the Justice Court then attributed the 36-day delay to Smith.6
¶13 Smith appeared ready for trial on July 20, 2018, at which time a substitute justice
court judge sua sponte continued trial to August 31, 2018. This 43-day delay is clearly
attributable to the State as institutional delay, and it was clearly erroneous for the Justice
Court to conclude otherwise. The State concedes this. Smith again appeared on August 31,
2018, ready for trial and again it is unrefuted that the Justice Court sua sponte continued
trial to September 14, 2018. This additional 14-day delay is clearly attributable to the State
as institutional delay, and it was clearly erroneous for the Justice Court to conclude
otherwise. The State likewise concedes this. We agree with the Justice Court that the
record does not support that the prosecution utilized the delay to gain tactical advantage
and Smith does not assert that. Nevertheless, at a minimum, the State is responsible for
463 of the 499 days from May 4, 2017, the date Smith was charged, to the September 14,
2018 trial date with 169 days of the delay attributable to the State weighing heavily against
it.7
6
Although arguably this 36-day delay could be attributed to the State as institutional delay as
overall operation of OPD is a governmental function of the State of Montana, we cannot conclude
that the Justice Court’s finding in this regard is clearly erroneous, and we attribute this 36-day
delay to Smith for speedy trial purposes.
7
While there is no need for us to specifically consider the 63 additional days of delay from
September 15, 2018, to November 16, 2018 (the last trial date set) or the additional days from
November 16, 2018, to February 1, 2019 (the date Smith entered her guilty plea) as the unnecessary
delay preceding September 14, 2018, in itself, warrants dismissal of the charge against Smith.
8
¶14 Smith asserts the Justice Court’s findings regarding the impact of her anxiety and
lost work opportunities were erroneous. We agree. Smith presented unrefuted testimony
of experiencing ongoing anxiety and frustration throughout the entire pendency of her case,
was seeing a physician and taking medications to address the anxiety, experienced financial
hardship for some time when she was required to pay for drug testing as a condition of her
release, and that she lost two work promotions due to the pending charge. While some
degree of anxiety, stress, and life interruption are reasonably expected when facing a
criminal charge, the proper analysis is the degree to which delay of trial aggravated them.
City of Billings v. Peterson, 2004 MT 232, ¶ 36,
322 Mont. 444,
97 P.3d 532. Here, the
Justice Court failed to consider the length of anxiety and life interruption experienced by
Smith as compared to that occurring in a typical misdemeanor charge resolvable within six
months, or at least in less than 200 days, to determine whether the delay unduly prolonged
the disruption of her life or aggravated the anxiety inherent in being an accused. The sheer
length of time Smith was on bail with restrictions on liberty and living under the shadow
of anxiety and suspicion combined with her lost work opportunities evidence a significant
degree of aggravation of anxiety and life interruption, warranting a heavy presumption of
prejudice. See State v. Ariegwe,
2007 MT 204, ¶ 96-97,
338 Mont. 442,
167 P.3d 815;
State v. Llamas,
2017 MT 155, ¶ 16,
338 Mont. 53,
402 P.3d 611 (“The longer the delay
after 200 days the stronger is the presumption of prejudice to the defendant and the heavier
is the State’s burden to justify the delay.”). The Justice Court’s finding that “no evidence
exists that [Smith’s] anxiety was aggravated or exacerbated due to the delay versus the
nature of facing a conviction for DUI in general” was clearly erroneous.
9
¶15 Finally, Smith asserts the Justice Court’s finding that she “provided no evidence
that the delay caused any impairment of the defense at trial” was clearly erroneous. We
agree. Smith provided unrefuted testimony that she planned to call Dr. Kirkland, her
treating physician of over 11 years, to establish the legitimacy of the medication identified
by the Toxicology Report to be in her blood. Dr. Kirkland had moved out of state during
the pendency of Smith’s case and was no longer available as a witness. In light of this
unrefuted testimony, it was clearly erroneous for the Justice Court to find Smith presented
“no evidence” of impairment to her defense.
¶16 The Sixth and Fourteenth Amendments of the U.S. Constitution and Article II,
Section 24, of the Montana Constitution guarantee defendants a right to a speedy trial.
Ariegwe, ¶ 20. In Montana, defendants charged with a misdemeanor offense have a
separate and distinct statutory right to be brought to trial within six months of entry of plea
pursuant to § 46-13-401(2), MCA. Analysis of the misdemeanor statutory speedy-trial
right is conducted separately from a constitutional speedy-trial analysis and is an entirely
different analysis. Heppner, ¶ 13. Generally, it is unnecessary to apply the constitutional
analysis in misdemeanor cases as the statutory protection is more restrictive than the
constitutional standard. State v. Hodge, 2014 MT 308, ¶ 14,
377 Mont. 123,
339 P.3d 8.
¶17 Although Smith asserted violation of both her statutory and constitutional rights to
a speedy trial below, 8 on appeal Smith asserts only violation of her constitutional right to
a speedy trial. As such, we limit our analysis to that issue.
8
With regard to her statutory right, Smith argued that as her trial date of September 14, 2018, was
80 days past the statutory deadline of six months for misdemeanors as provided in § 46-13-401(2),
10
¶18 The constitutional right to a speedy trial is necessarily relative and depends upon
the circumstances of the case. Ariegwe, ¶ 104. 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, ¶¶ 106-11. These factors
must be balanced to determine whether the accused has been deprived of her right. State
v. Zimmerman, 2014 MT 173, ¶ 12,
375 Mont. 374,
328 P.3d 1132. 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.
¶19 The speedy trial clock begins to run when the defendant becomes an accused.
Ariegwe, ¶ 42. Although Smith asserts that occurred on November 14, 2016, when the
draft complaint was filed in Billings Municipal Court, we determine Smith became an
accused when the complaint was filed on May 4, 2017, in the Justice Court. Between the
filing of the complaint on May 4, 2017, to trial on September 14, 2018, the last trial date
before Smith filed her speedy trial motion on September 12, 2018, 499 days elapsed, of
which only 36 days (June 15, 2018 to July 20, 2018) is attributable to Smith for speedy
MCA, the prosecution must be dismissed unless the State could show good cause for the delay.
The State agreed but asserted good cause for the delay: “While [Smith] may prevail on the first
prong of the statutory right to a speedy trial analysis, the State has good cause to satisfy the second
prong.” The State argued its “good cause” was related to various warrants and proceedings
involving violations of Smith’s release order, which it now concedes caused no trial delay.
11
trial purposes.9 Of the 463 days attributable to the State as of September 14, 2018, 169
days weighed heavily against it with the remaining 294 days of institutional delay weighing
less heavily against it.
¶20 Smith acquiesced to the 36-day delay from June 15, 2018, to July 20, 2018,
occasioned by OPD’s telephone system malfunction resulting in her not being ready to
proceed to trial on June 15, 2018. Acceptance of this delay, however, does not support a
finding that Smith did not want to proceed to trial. Indeed, she appeared on two subsequent
trial dates, ready for trial, only to have the Justice Court sua sponte continue her trial on its
own motion. It was not until after the second unilateral continuance by the Justice Court,
485 days after becoming an accused, when Smith sought to enforce her speedy trial right.
¶21 Once the 200-day threshold passes, a presumption of prejudice of the accused arises.
Ariegwe, ¶ 143. The longer the delay after 200 days, the stronger the presumption of
prejudice, resulting in an increasingly heavier burden on the State to justify the delay.
Llamas, ¶ 16. Smith provided unrefuted testimony as to suffering a variety of prejudices
resulting from the excessive delay. She described anxiety from the prolonged period of
accusation and frustration and concern over the continued delays of her case. She testified
she had been passed over for promotion two times such that she remained a part-time sales
clerk rather than holding a full-time managerial position at her employment. She incurred
9
We note that the delay associated with Smith’s pursuit of enforcement of her speedy trial rights—
at least from September 15, 2018, to the November 16, 2018 trial date or to her entry of plea on
February 1, 2019—does not weigh heavily against her and we need not consider that time as the
delay prior to the trial date of September 14, 2018, alone constitutes a violation of Smith’s
constitutional right to speedy trial warranting dismissal.
12
significant expense for pretrial drug testing, including a $300 initial fee followed by a $77
per week fee for monitoring services. While she eventually qualified for a subsidy to pay
the ongoing monitoring fees, she was not reimbursed the funds she expended prior to the
subsidy and the drug testing limited her freedom and required she miss work to attend these
appointments. Finally, Smith provided unrefuted testimony that she planned to call
Dr. Kirkland, her treating physician of over 11 years, to establish the legitimacy of the
medication identified by the Toxicology Report to be in her blood and its effects.
Dr. Kirkland, though, had moved out of state during the pendency of Smith’s case and was
no longer available as a witness.
¶22 Given the clearly erroneous findings discussed above and the simplistic,
straightforward nature of the offense charged and the limited investigation needed, we
conclude the record does not support the Justice Court’s balancing of the Ariegwe factors.
While an accused will reasonably experience some anxiety, concern, and disruption of life
inherent with being charged with an offense, we must focus on the extent to which pretrial
delay unduly prolonged such. Ariegwe, ¶ 97. The record shows this was a simple,
straightforward misdemeanor DUI. It did not require extensive investigation—the
investigation was basically complete on the day of the accident—or pre-trial discovery.
Smith was cooperative with the investigation providing a statement and admitting she had
taken prescription medication prior to the accident. Smith also provided a blood sample
near the time of the accident on June 12, 2016, and the results of the blood test were
summarized in a Toxicology Report from the Montana State Crime Lab on August 30,
2016—over eight months before the State filed its complaint against Smith on May 4, 2017.
13
Although much was made by the Justice Court regarding the various pre-trial release
violations asserted by the State and warrants issued throughout the pendency of the case,
the record does not support that any of the pre-trial release proceedings delayed trial in any
way. The State concedes this is accurate.10
¶23 The uncomplicated nature of the case and investigation did not warrant the
excessive delay and attendant anxiety, financial burden, or prejudice to defense Smith
experienced.11 While Smith was responsible for only 36 days of the delay, this delay is not
weighed heavily against her as it was resultant from OPD’s malfunctioning communication
equipment, not her conduct. Despite only being incarcerated one day, Smith experienced
prolonged anxiety and frustration with financial and employment prejudice lasting well
over twice the length one would reasonably be expected to experience when accused of a
simple misdemeanor DUI. Additionally, her defense was prejudiced as a result of the delay
with the loss of her primary witness, Dr. Kirkland. The State failed to meet its burden to
justify the delay. Reversal with remand to dismiss the DUI charge against Smith is
appropriate.
10
In the Justice Court, the State asserted good cause for the delay because at various times
throughout the pendency of the case, the court had issued warrants for Smith’s arrest for asserted
violations of release conditions. Upon review of the record, it is clear that the warrants and
revocation proceedings occurring during the pendency of the case did not delay trial. The State
now concedes this: “Although Smith was subject to revocation proceedings multiple times during
the course of the case due to alleged violations of her release order, the record does not indicate
that these revocation proceedings directly caused her trial to be delayed or continued.
Consequently, the State agrees with Smith that this period should be attributable to the State as
institutional delay.”
11
The State provided no reason the case should not have been able to be tried within the statutory
six-month time period for misdemeanor offenses, let alone the 200-day threshold period under our
constitutional speedy trial test.
14
¶24 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶25 Reversed and remanded for dismissal.
/S/ INGRID GUSTAFSON
We concur:
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
15
