                                                                                                 07/25/2017


                                           DA 15-0460
                                                                                             Case Number: DA 15-0460

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 182



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

RUSSELL WAYNE BULLOCK,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eighteenth Judicial District,
                        In and For the County of Gallatin, Cause No. DC 13-186B
                        Honorable Mike Salvagni, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, Koan Mercer, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                        Attorney General, Helena, Montana

                        Marty Lambert, Gallatin County Attorney, Eric N. Kitzmiller, Chief
                        Deputy County Attorney, Bozeman, Montana



                                                     Submitted on Briefs: May 3, 2017

                                                                Decided: July 25, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1    Russell Wayne Bullock (Bullock) appeals from his jury conviction for sexual

intercourse without consent and burglary entered in the Eighteenth Judicial District

Court, Gallatin County. With the exception of an incorrectly imposed user surcharge, we

affirm Bullock’s conviction. Bullock raises the following issues for review:

      1. Whether Bullock was denied his right to speedy trial.

      2. Whether the court erred when it allowed officers to read out loud from a
      transcript of Bullock’s statements to refresh the witnesses’ recollection.

      3. Whether the jury instruction for burglary, which did not define the elements of
      theft, should be reviewed under the plain error doctrine.

      4. Whether the court erred in imposing more than one user surcharge.

             FACTUAL AND PROCEDURAL BACKGROUND

¶2    On July 18, 2013, Bullock, who was in his mid-forties, met a group of young men

and agreed to purchase alcohol for them. While they were driving, Bullock tickled one of

the men, which made the men feel “creep[y].” When Bullock was in the liquor store, the

young men concocted a plan to take Bullock out of town and abandon him. Bullock got

back in the vehicle and the group drove south of town. There were several versions of

what happened next. Bullock contends the young men beat him and left him in a ditch.

The young men contend they convinced Bullock to help them look for a rope swing, but

denied ever hitting Bullock. Regardless, the group left Bullock.

¶3    Bullock, very intoxicated and disoriented, walked to a nearby house where Amy

W. (Amy) lived with her family, including her son, Alex, and eight-year-old daughter,

A.W. Amy and her family had been to the county fair that evening and A.W. fell asleep


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in the car on their drive home. Amy allowed A.W. to continue to sleep in the back seat of

the car while parked in the garage. Amy left the lights on in the garage and the door open

to the house for A.W. The rest of the family went inside to bed. Amy thought she had

closed the overhead garage door, but the door had not closed due to a container being in

the way.

¶4    Alex was downstairs and heard A.W. screaming and saying “Ouch” and “stop it.”

He woke up Amy who told him to go check on A.W. Alex opened the door to the garage

and saw a man wearing a shirt by the front of the car, but who was not wearing pants or

underwear. The man appeared startled. A.W. came inside with a blanket wrapped

around her and Alex locked the door to the garage behind them.

¶5    A.W. was catatonic. She stared blankly at walls, did not pay attention to Alex or

Amy, and was unable to say where she was. She was covered in vomit. She had a blood

spot in her right eye and was no longer wearing her shorts or underwear. Her clothing

was later located on the garage floor. A.W. said little of what happened in the garage.

She responded that someone had hurt her and that the man had covered her mouth when

she screamed for help. The man told her that the people in the house were asleep and

could not help her. During her interview with law enforcement, A.W. offered little

information. At trial, A.W. again was unable to give much information. She declined to

answer a question about what had happened in the garage, explaining it brought back bad

memories and she did not want to talk about it. She affirmed a man she did not know

was there, Alex had come to the door, and she went into the house with Alex.




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¶6     Officers arrived at Amy’s house and located Bullock passed out near a trailer in

some tall grass. Officers arrested Bullock. Bullock maintained he did not know where

he was and that he had been dumped there after being hit in the head with a bottle.

Bullock was taken to the hospital and later that night released to Detective Tom Pallach

(Detective Pallach). Detective Pallach interviewed Bullock after he was transported to

the sheriff’s department. During the interview, Bullock, who was on blood thinners at

the time, began vomiting blood which prompted law enforcement to take him back to the

hospital.

¶7     While at the hospital, Bullock told Detective Pallach that he went into the garage

to take the vehicle and that he encountered a female in the garage. He said he had

touched her vagina with his hand and he had taken off her clothes. He stated he did not

penetrate her or have sex with her. Bullock said he “freaked out” when A.W. told him

she was eight years old and he left the garage when someone opened the door to the

house. He said that he was hiding out when officers located him.

¶8     The following day, Bullock, still incarcerated, asked to speak to Detective Pallach.

Detective Pallach was not working so his supervisor Detective Paul Lewis (Detective

Lewis) spoke with Bullock. Bullock asked Detective Lewis about his property and made

an unsolicited statement. Bullock told Detective Lewis that he had gone into the garage

to see if there were keys for the vehicle and that he was going to drive it to the end of the

road. He admitted to touching A.W, but claimed that was all he did. Bullock suggested

that his charges should be reduced because he did not penetrate or have sex with A.W.




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¶9     A.W. was examined by a doctor the night of the incident. The doctor observed

broken blood vessels on multiple parts of A.W’s body; redness and swelling in A.W.’s

urinary area, in addition to dried blood; and significant redness and an abrasion to A.W.’s

hymen.    The doctor explained that the findings were not consistent with a healthy

prepubescent girl. DNA samples were taken from Bullock and A.W. A partial DNA

profile that was consistent with A.W. was developed from Bullock’s penis.

¶10    Bullock was arrested on July 19, 2013, and remained incarcerated until trial on

February 10, 2015. The State filed an Information in District Court on August 15, 2013,

charging Bullock with sexual intercourse without consent and burglary. The District

Court scheduled an omnibus hearing for September 9, 2013. Bullock moved to continue

the omnibus hearing four times. The omnibus hearing was eventually set for January 13,

2014. At the hearing, the District Court set a motions deadline and scheduled trial for

July 8, 2014.

¶11    On April 4, 2014, Bullock requested a continuance of the motions deadline for two

weeks, explaining that a conflict had occurred which necessitated a change in counsel.

Bullock filed a motion to substitute counsel on April 8, 2014.         The District Court

subsequently vacated the briefing schedule, but confirmed the trial would remain

scheduled for July 8, 2014.

¶12    Bullock then filed a motion to continue the trial date, explaining he needed more

time to work with experts. Bullock also indicated that he was anticipating filing a motion

to suppress his statements. The court granted the motion to continue and set trial for

October 6, 2014. On August 25, 2014, Bullock filed motions to suppress his statements,


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to exclude prior bad act evidence, and to depose a potential witness, Kevin Briggs

(Briggs).   The District Court held a hearing September 19, 2014, and ordered that

Bullock could depose Briggs. At the hearing, Bullock indicated that the October 2014

trial date might not be realistic.

¶13    On October 6, 2014, Bullock filed a motion to continue the trial scheduled for

October 28, 2014. Bullock argued he needed time because he did not receive information

from the crime lab until August, and also because he had not received material regarding

five State’s witnesses until September 2, 2014. Apparently, the material pertaining to the

State’s witnesses had been sent to one of Bullock’s previous attorneys and not his current

counsel.1 Bullock was not willing to waive his right to speedy trial. The District Court

granted the motion and scheduled a new omnibus hearing. At the omnibus hearing, the

District Court scheduled the trial for February 10, 2015.

¶14    Bullock filed consolidated motions on December 12, 2014, including a motion to

dismiss on the ground his right to a speedy trial had been violated. The District Court

held a hearing December 31, 2014, on the speedy trial motion. At the time of the

hearing, Bullock still had not interviewed any of the five individuals that were identified

in the discovery provided to him almost four months earlier. The District Court denied

Bullock’s speedy trial motion.




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   A compact disc which included the identity and police interviews of the five witnesses was
provided to Bullock’s counsel in April 2014. However, due to a clerical error the State sent the
disc to Bullock’s previous counsel. The error was not rectified until September 2014.


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                               STANDARDS OF REVIEW

¶15    We review the district court’s factual findings on a speedy trial motion to

determine whether they are clearly erroneous. We review the court’s balancing of the

four speedy trial factors de novo to determine whether there has been a violation of the

defendant’s constitutional right. State v. Ariegwe, 2007 MT 204, ¶ 119, 338 Mont. 442,

167 P.3d 815. We review evidentiary rulings for an abuse of discretion; however, where

the trial court’s ruling is based upon an interpretation of an evidentiary rule, this Court’s

review is de novo. State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P. 3d 811.

Finally, we have consistently held that we will not consider issues raised for the first time

on appeal. State v. Taylor, 2010 MT 94, ¶ 12, 356 Mont. 167, 231 P.3d 79. However,

the Court may review an unpreserved claim alleging a violation of a fundamental

constitutional right under the plain error doctrine where the defendant establishes that

failing to review the claimed error may result in a manifest miscarriage of justice, may

leave unsettled the question of the fundamental fairness of the trial or proceedings, or

may compromise the integrity of the judicial process. Taylor, ¶¶ 12-13. An error is plain

only if it leaves one “firmly convinced” that some aspect of the trial, if not addressed,

would result in a manifest miscarriage of justice, call into question the fairness of the trial

or proceeding, or compromise the integrity of the judicial process. Taylor, ¶ 17.

                                      DISSCUSSION

¶16    1. Whether Bullock was denied his right to speedy trial.

¶17    We consider four factors in a speedy trial analysis: (1) the length of the delay, (2)

the reasons for the delay, (3) the accused’s response to the delay, and (4) prejudice to the


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accused as a result of the delay. Ariegwe, ¶ 13. We then balance the factors to determine

if a speedy trial violation has occurred. Ariegwe, ¶ 101. All factors must be considered

together with any other relevant factors; no single factor is dispositive. Ariegwe, ¶ 112.

The significance of each factor will vary from case to case. Ariegwe, ¶ 105.

¶18    It is uncontested that the total length of delay was 571 days, which is 371 days

past the initial 200-day threshold. The further the delay stretches past the 200-day

threshold, the stronger the presumption of prejudice. Ariegwe, ¶¶ 49, 61. Here, the

length of the delay stretches well beyond the 200-day threshold, creating a presumption

of prejudice which intensifies as the delay continues.

¶19    Under the second factor we attribute each period of the delay to the appropriate

party and assign weight to the period based on the reason for the delay. Ariegwe, ¶ 108.

The State is assigned the delay unless the delay was caused by the accused. Ariegwe,

¶ 108. Delay caused by the State’s bad faith weighs heavily against it. Ariegwe, ¶ 67.

Institutional delay and valid reasons for delay weigh less heavily against the State than

lack of diligence in bringing the accused to trial. Ariegwe, ¶ 108.

¶20    Bullock was arrested July 19, 2013. At Bullock’s initial appearance on August 19,

2013, an omnibus hearing was scheduled for September 9, 2013. The interval from

Bullock’s arrest on July 19, 2013, to September 9, 2013 (52 days), is attributable to the

State as institutional delay. At the omnibus hearing on September 9, 2013, Bullock

moved to continue the hearing, as well as the next four omnibus hearings. As a direct

result of Bullock’s motions to continue the omnibus hearings, no trial date was scheduled

until January 13, 2014, at which time the first jury trial setting available was July 8, 2014.


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The delay from September 9, 2013, to January 13, 2014 (126 days), is attributable to

Bullock to accommodate his requests to continue the omnibus hearings. The delay from

January 13, 2014, to July 8, 2014 (176 days), is a result of the busy docket of the court

and constitutes institutional delay.

¶21    On June 12, 2014, Bullock moved to continue the July 8, 2014 jury trial date and a

second jury trial setting was scheduled for October 28, 2014. The delay from the first

jury trial setting on July 8, 2014, to the second jury trial setting on October 28, 2014 (112

days), is a result of a number of factors. On April 8, 2014, there was a change of counsel

for Bullock and new counsel needed additional time to become familiar with the case. In

Bullock’s motion requesting a continuance, Bullock’s counsel represented that he would

be requesting additional discovery from the State Crime Lab regarding DNA collection

and processing, which he did on July 28, 2014. The information from the State Crime

Lab was provided to Bullock on August 15, 2014. There is no testimony or evidence that

the State delayed providing discovery to gain an advantage in this case. The jury trial

was continued at the request of Bullock’s counsel. This type of delay was addressed in

Ariegwe as delay that is inherent in the criminal justice system due to reciprocal

discovery and pretrial motions. Ariegwe, ¶ 125. The circumstances surrounding this

delay demonstrate that it is institutional in nature.

¶22    On October 6, 2014, Bullock requested another continuance of trial, which was

scheduled for October 28, 2014, which was then rescheduled for February 10, 2015. This

resulted in a delay of 105 days and arose out of the discovery issues surrounding the five

witnesses. The District Court observed that although all the information concerning the


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whereabouts of the witnesses was not known, Bullock had not yet interviewed any of

them as of December 31, 2014. The District Court found, and we agree, that there was

no evidence the State failed to provide discovery, nor did the State intentionally withhold

information from Bullock. The State’s efforts were more than adequate, and the District

Court’s finding the delay was institutional was not clearly erroneous.

¶23    Under the third factor, we consider the totality of the accused’s responses to

ascertain whether the accused actually wanted a speedy trial. Ariegwe, ¶ 74. As long as

the defendant has asserted his or her right by motion to dismiss on speedy trial grounds

prior to trial, we will find that the defendant has satisfied the third prong. Ariegwe, ¶ 137.

Here, Bullock asserted his right to speedy trial on December 21, 2014. The District Court

concluded that Bullock satisfied the third prong of the speedy trial analysis. We agree.

¶24    Under factor four, we consider whether the delay prejudiced the accused in light of

the interests the speedy trial right was designed to protect:         (i) oppressive pretrial

incarceration, (ii) the accused’s anxiety and concern, and (iii) impairment of the defense.

Ariegwe, ¶ 88. Bullock argues that he suffered from each. Bullock maintains his pretrial

incarceration was oppressive due to his medical conditions. Bullock has a plethora of

medical issues. He requires pulmonary medication, sleep medication, pain medication,

and he suffers from sleep apnea. Bullock maintains that he was denied the use of medical

equipment for his sleep apnea, as well as his medication. At the hearing, however, Nurse

Stephanie Catron (Nurse Catron), who provided Bullock’s care during his incarceration,

testified Bullock was provided all of his current medications and that he also received all

the medication he requested, with the exception of sleep medication which cannot be


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dispensed for safety reasons. She further testified that Bullock did not appear stressed or

anxious, nor did he complain about the level of care he was receiving. Based upon Nurse

Catron’s testimony, we cannot find the District Court’s conclusion that Bullock’s pretrial

incarceration was not oppressive to be clearly erroneous.

¶25    A certain amount of anxiety and concern is inherent in being accused of a crime;

the speedy trial guarantee is designed to shorten the disruption of the accused's life, not to

eliminate it altogether. Ariegwe, ¶ 97. Bullock is a single father of two young girls.

While incarcerated he was unable to parent his children. Bullock’s 13-year career in auto

sales was also disrupted. While we do consider loss of employment and interruption of

family associations as a factor when determining the accused’s anxiety and concern, we

cannot find that Bullock’s disruption to his career or loss of opportunity to parent caused

his anxiety or concern to rise above what is to be expected of a normal detainment for a

felony sexual offense. The District Court’s finding the pretrial delay was not unduly

prolonged or disruptive is not clearly erroneous.

¶26    The most important interest when conducting the prejudice analysis is whether

there was impairment to the defense. Areigwe, ¶ 98. Bullock does not point to any

specific aspects of his defense that were compromised, although he is nonetheless entitled

to a presumption of increasing prejudice as the delay intensifies. Bullock cites the issues

regarding DNA evidence and locating the five witnesses as causing injury to his defense.

However, any delays from these circumstances arose as a result of Bullock’s requests for

continuances in order to prepare for his defense. Examples supporting impairment to the

defense include missing exculpatory witnesses, loss of memory, and loss of evidence.


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Ariegwe, ¶ 98. The record supports that Bullock’s counsel would not have been prepared

for trial any sooner. The District Court’s conclusion that there was no impairment to the

defense is not clearly erroneous.

¶27    Finally, we conclude the District Court did not err in balancing these four factors.

The charges in this case were serious and involved a number of witnesses, complex DNA

evidence, and multiple substitutions of counsel. Given the complexity of the case and the

reasons for the delay, the District Court balanced the factors and correctly determined

that Bullock’s right to speedy trial was not violated.

¶28 2. Whether the court erred when it allowed officers to read out loud from a
transcript of Bullock’s statements to refresh the witnesses’ recollection.

¶29    Bullock argues that Detectives Lewis and Pallach were improperly allowed to read

portions of the transcript of Bullock’s statements to the jury. Bullock argues that the

witnesses should not have read from the transcript to the jury and that the procedure for

refreshing the witnesses’ recollection allowed the jury to hear inadmissible evidence.

Bullock also argues that the transcripts were inadmissible hearsay because they were the

statements of the transcriptionist, rather than of Bullock.

¶30    First, Bullock’s statements evidenced by the transcripts were admissions of a party

opponent and are not hearsay pursuant to M. R. Evid. 801(d)(2). Additionally, Bullock

has provided no support for his contention that the statements in the transcript were not

an accurate representation of what Bullock said. The statements were produced from

recordings of Bullock’s interviews. We observe that Bullock’s trial counsel also relied

on the transcripts and did not contend the transcripts were inaccurate. Both witnesses



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testified they recalled their interviews with Bullock and that their memories were, in fact,

refreshed. We conclude that the District Court correctly overruled Bullock’s hearsay

objection.

¶31    We also conclude that because the statements were admissible as admissions of a

party opponent pursuant to M. R. Evid. 801(d)(2), that the court did not abuse its

discretion in allowing the witnesses to read from the transcript to the jury. We recognize

that while M. R. Evid. 612 provides that a witness may use a writing to refresh his or her

memory while testifying, the Rule does not provide that the writing itself may be

admitted, through testimony or otherwise. M. R. Evid. 612 allows for “a witness [to]

use[] a writing to refresh memory for the purposes of testifying . . . .” The Commission

Comments to M. R. Evid. 612 explain:

       A writing used to refresh memory is one that is meant to help a witness
       who has a memory of the subject of his testimony, but who needs a
       stimulus in order that his memory be revived. The witness can testify
       independently of the writing, and it is his memory or recollection which is
       used as evidence and not the writing.

Accordingly, the writing is only to be used as a tool to refresh the witness’s recollection

about a particular event. If the witness’s recollection is not refreshed, then he or she has

no personal knowledge from which to testify.

¶32    Bullock is correct that the verbatim recitation of the transcript to the jury was not

an appropriate method of refreshing the witnesses’ testimony under M. R. Evid. 612.

Although the adverse party is entitled to introduce relevant portions of the writing into

evidence to impeach the witnesses’ testimony, the rule does not allow the proponent of

the evidence to have the refreshed witness read verbatim to the jury the contents of the


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writing. However, once again, we find that to the extent there may have been error in

allowing the witness to read the transcript out loud, the error is not grounds for reversal.

The statements Bullock made to the officers were otherwise admissible as admissions by

a party opponent. Additionally, the record does not establish that the witnesses were not

testifying from their refreshed recollections. See § 46-20-701, MCA (“Any error, defect,

irregularity, or variance that does not affect substantial rights must be disregarded. . . . ”).

¶33 3. Whether the jury instruction for burglary, which did not define the elements of
theft, should be reviewed under the plain error doctrine.

¶34    The District Court instructed the jury on the elements of burglary; specifically,

that the State had to prove Bullock intended on committing a theft (taking the vehicle)

when he broke in and entered the garage of Amy’s home. The District Court did not

instruct the jury on the elements of theft.

¶35    We have consistently held that we will not consider issues raised for the first time

on appeal. Taylor, ¶ 12. Bullock did not object to the jury instructions given at trial, nor

did he propose his own alternative jury instructions. Bullock’s own statements were that

he planned to borrow the vehicle to drive it to the end of the road and leave it. In order to

address the alleged error, we would have to exercise plain error review. Under the facts

of this case, the court’s failure to instruct the jury on the elements of theft does not

warrant plain error review. Here, we conclude that failing to address the alleged error

would not result in a manifest miscarriage of justice, leave unsettled the question of the

fundamental fairness of the trial, or compromise the integrity of the judicial process. We




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therefore decline to address the alleged error because it was not properly preserved for

review.

¶36   4. Whether the court erred in imposing more than one user surcharge.

¶37   The State concedes the imposition of the court information technology user

surcharge per count and not per user is illegal under § 3-1-317(a), MCA. The statute

authorizes all courts to impose “on a defendant in criminal cases, a $10 user surcharge

upon conviction for any conduct made criminal by state statute . . . .”         Section

3-1-317(1)(a), MCA (emphasis added). We recently held “the surcharge is authorized

per user upon conviction, and not per conviction of that user.” State v. Pope, 2017 MT

12, ¶ 32, 386 Mont. 194, 387 P.3d 870. The District Court erred when it imposed the

court technology fees on a per count basis.

                                    CONCLUSION

¶38   We affirm Bullock’s convictions for sexual intercourse without consent and

burglary. We remand to the District Court with instructions to strike the user surcharge

and impose only one $10 user surcharge.


                                               /S/ LAURIE McKINNON

We Concur:

/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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