                                                                                              08/30/2016


                                          DA 14-0770
                                                                                         Case Number: DA 14-0770

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2016 MT 216



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

HILARIO MARTIN VELASQUEZ,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Fifteenth Judicial District,
                       In and For the County of Roosevelt, Cause No. DC 13-37
                       Honorable David Cybulski, 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, Pamela P. Collins, Assistant
                       Attorney General, Helena, Montana

                       Ralph J. Patch, Roosevelt County Attorney, Jordan W. Knudsen, Deputy
                       County Attorney, Wolf Point, Montana



                                                   Submitted on Briefs: July 27, 2016

                                                              Decided: August 30, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     Hilario Martin Velasquez was arrested for possession of drugs and drug

paraphernalia in September 2013.      He was jailed in Roosevelt County for over ten

months while he awaited testing results from the State Crime Lab. Finally, at the end of

July 2014, a Roosevelt County jury convicted Velasquez of both charges. The trial court

rejected Velasquez’s argument that he was denied a speedy trial. We reverse and remand

for dismissal of the charges.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶2     Velasquez was riding in the back seat of a car that was stopped on September 25,

2013, when a law enforcement officer suspected the driver of being under the influence

of alcohol or drugs. The arresting officer found crystals in a cigarette pack located on the

dashboard between the driver and the front-seat passenger. The crystals field-tested

positive for methamphetamine. Velasquez had a methamphetamine pipe in his pocket

and admitted to smoking methamphetamine earlier that evening. The driver of the car

also was arrested; the front-seat passenger, however, was not. Velasquez was charged

with felony possession of a dangerous drug with intent to distribute, in violation of

§ 45-9-103, MCA, and with misdemeanor criminal possession of drug paraphernalia, in

violation of § 45-10-103, MCA.

¶3     The District Court set trial for January 2014. Several weeks before trial, the State

moved to continue the trial because the drug testing results were not yet complete and the

State Crime Lab estimated nine months of backlog for drug analysis. Three days later,


                                         2
the District Court ordered the continuance.     Velasquez objected to the continuance,

asserting his speedy trial right.

¶4     Trial was re-set for March 2014. The State moved for continuance on the same

basis as before and the District Court granted its request. The court granted the State’s

third motion to continue in May 2014. About two weeks before the July 31 trial date,

Velasquez moved to dismiss the case for lack of a speedy trial. Velasquez was unable

post the $5,000 bail and remained in the Roosevelt County jail until trial. By then, he had

been incarcerated for 309 days.

¶5     At the hearing on Velasquez’s motion to dismiss, the court analyzed the alleged

speedy trial violation under the factors articulated in State v. Ariegwe, 2007 MT 204,

¶¶ 106-12, 338 Mont. 442, 167 P.3d 815. The court concluded that the entire delay was

institutional delay attributable to the State and that Velasquez had timely asserted his

speedy trial right. The court determined, however, that although the question of prejudice

was “close,” it did not tip the balance in Velasquez’s favor. The court orally denied

Velasquez’s motion and the case proceeded to trial. The jury found Velasquez guilty of

both charges.

                                STANDARD OF REVIEW

¶6     A speedy trial violation presents a question of constitutional law that we review de

novo to determine whether the court correctly interpreted and applied the law. State v.

Zimmerman, 2014 MT 173, ¶ 11, 375 Mont. 374, 328 P.3d 1132. We review the court’s

underlying factual findings for clear error. Zimmerman, ¶ 11. A finding is clearly

erroneous “if it is not supported by substantial evidence, if the court misapprehended the
                                         3
effect of the evidence, or if our review of the record convinces us that the court made a

mistake.” State v. Brave, 2016 MT 178, ¶ 6, 384 Mont. 169, ___ P.3d ___.

                                       DISCUSSION

¶7    Did the District Court err in denying Velasquez’s motion to dismiss for lack of a
speedy trial?

¶8     A criminal defendant has a constitutional right to speedy trial under the Sixth and

Fourteenth Amendments to the United States Constitution and Article II, Section 24 of

the Montana Constitution. Ariegwe, ¶ 20. When an accused claims that right has been

violated, 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.

Zimmerman, ¶ 14. We balance these factors to determine whether the right to a speedy

trial has been violated. State v. Stops, 2013 MT 131, ¶ 19, 370 Mont. 226, 301 P.3d 811.

No single factor is dispositive; the factors are related and must be considered together

with any other relevant circumstances. Ariegwe, ¶ 112. “[E]ach factor’s significance will

vary from case to case.” Ariegwe, ¶ 105.

(1) Length of the Delay

¶9     We determine initially whether the length of the delay is at least 200 days, “which

is the trigger date for conducting the four-factor balancing test.” Zimmerman, ¶ 13. In

this case, the District Court determined—and the parties agree—that the total length of

the delay was 307 days, 107 days beyond the trigger date.1 The longer the delay stretches

beyond the 200-day trigger date, “the stronger the presumption is under Factor Four that

1
 By our calculation, the length of the delay totaled 309 days, 109 days beyond the trigger date.
We use that calculation in this Opinion.
                                           4
the accused has been prejudiced by the delay, and the heavier the state’s burden is under

Factor Two to provide valid justifications for the delay.” Zimmerman, ¶ 14 (citing

Ariegwe, ¶¶ 49, 61).

¶10   In Zimmerman, we concluded that an 89-day delay beyond the trigger date did not

substantially increase the State’s burden or the presumption of prejudice. Zimmerman,

¶ 14; accord State v. Charlie, 2010 MT 195, ¶¶ 50, 59, 357 Mont. 355, 239 P.3d 934

(holding that a 70-day delay beyond the trigger date was not enough to “show a

particularly compelling justification for the delay”). But see State v. Billman, 2008 MT

326, ¶ 18, 346 Mont. 118, 194 P.3d 58 (concluding that a 78-day delay beyond the trigger

date “presents a considerable amount of delay, and we conclude that the State’s

justifications for the delay must be compelling and that it must make a persuasive

showing that the delay did not prejudice Billman”). In Ariegwe, a 208-day delay beyond

the trigger date required the State to “provide particularly compelling justifications for

the delay under Factor Two; and under Factor Four, the State must make a highly

persuasive showing that Ariegwe was not prejudiced by the delay, while the quantum of

proof that may be expected of Ariegwe under this factor is correspondingly lower.”

Ariegwe, ¶ 123; accord State v. Rose, 2009 MT 4, ¶ 46, 348 Mont. 291, 202 P.3d 749

(holding that a 307-day delay beyond the trigger date “substantially” increased the State’s

burden under Factor Two, “the presumption that pretrial delay prejudiced Rose is

increased, and the quantum of poof expected of Rose under Factor Four is substantially

decreased”).


                                         5
¶11    The District Court did not address whether the extent of the delay increased the

presumption of prejudice or the State’s burden to justify the delay.          Relying on

Zimmerman, the State argues that the time elapsed days beyond the trigger date “is not

particularly long” and therefore the State’s burden and the presumption of prejudice are

“relatively low.” Velasquez contends that presumption of prejudice “is intensified” by

the delay of more than 100 days beyond the trigger date.

¶12    Based on our case law we conclude that a 109-day delay beyond the trigger date

occupies a middle ground between Zimmerman and Ariegwe. In other words, in this

case, it increases the State’s burden under Factor Two and Factor Four slightly more than

it did in Zimmerman, but less than it did in Ariegwe. Accordingly, the State’s burden to

provide justifications for the delay in this case is higher, and the State must make a more

persuasive showing that Velasquez was not prejudiced by the delay, “while the quantum

of proof that may be expected of [Velasquez] under this factor is correspondingly lower.”

Ariegwe, ¶ 123.

(2) Reasons for the Delay

¶13    In considering the reasons for the delay, “we must identify each period of the

delay, attribute the delay to the responsible party, and then assign weight to each period

based on the specific cause and motive for the delay.” State v. Couture, 2010 MT 201,

¶ 71, 357 Mont. 398, 240 P.3d 987. “The prosecution bears the burden of explaining

pretrial delays.”   Zimmerman, ¶ 15.     Delay caused by the State’s bad faith weighs

“heavily” against it. Ariegwe, ¶ 67. Delay caused by negligence or lack of diligence

occupies a middle ground, but it still “‘falls on the wrong side of the divide between
                                         6
acceptable and unacceptable reasons for delaying a criminal prosecution once it has

begun.’” Ariegwe, ¶ 69 (quoting Doggett v. United States, 505 U.S. 647, 657, 112 S. Ct.

2686, 2693 (1992)). “[T]he more delay in bringing the accused to trial that is due to lack

of diligence or other ‘unacceptable’ reasons, the more likely the accused’s speedy trial

right has been violated.” Ariegwe, ¶ 72. Institutional delays are delays “inherent in the

criminal justice system and caused by circumstances largely beyond the control of the

prosecutor and the accused, such as overcrowded court dockets.”                Couture, ¶ 72.

Institutional delay is attributable to the State, “but weighs less heavily against it than

delay caused by bad faith, negligence, or lack of diligence.” Couture, ¶ 72.

¶14    The District Court concluded that there “was no basis at all for delay caused by the

defense” and that the entire delay was attributable to the State as institutional delay. The

court noted, “It’s the fact that the crime lab . . . is slow on getting things.” The court

observed also, “[W]hen I look at the way the crime lab is done, I think [the defense’s]

argument of negligence and lack of due diligence by the crime lab is a very good

argument, but I don’t know that it quite goes far enough for me to pull the trigger saying

it’s too far.”

¶15    The parties do not dispute that the period of time from Velasquez’s arrest to the

first trial is attributable to the State as institutional delay. The State argues that the period

of delay from the first originally scheduled trial date to the actual trial properly was

classified by the District Court as institutional delay. Relying on Ariegwe, the State

claims that a “delay from waiting for test results from the Crime Lab is institutional.”

Pointing out that the prosecution “had no control over when the Crime Lab would test the
                                            7
substance,” the State faults Velasquez for “wait[ing] until July 28, 2014, to suggest in the

district court that the State should inquire about the backlog at independent laboratories.”

¶16    Velasquez argues that the District Court erred in classifying all of the delay as

institutional delay. He contends that “the 196-day delay between the originally scheduled

trial date and the actual trial was caused by the State’s lack of diligence.” Velasquez

suggests that as soon as the State learned that the crime lab would take nine months to

conduct the drug testing, it should have pursued “alternative, timely testing,” and that its

failure “even to consider alternative testing sites” was negligent. “The State’s choice to

do nothing,” Velasquez contends, “was not a circumstance beyond the prosecutor’s

control and is not mere institutional delay.” Additionally, Velasquez argues that he had

no duty to suggest the use of independent labs because “it is well settled that a defendant

has no duty to advance his own prosecution.”

¶17    In this case, we identify two periods of delay: (1) the 113-day delay between

Velasquez’s arrest and the first scheduled trial date and (2) the 196-day delay between the

first scheduled trial date and the actual trial date. We agree with the parties that the first

period of delay was institutional delay attributable to the State.

¶18    With respect to the second period of delay, keeping in mind that the State bears a

higher burden to provide justifications for the delay, we conclude that the delay should be

attributed to the State for lack of diligence. The prosecutor’s constitutional obligation to

try the defendant in a timely manner “requires a good faith, diligent effort to bring him to

trial quickly.” Zimmerman, ¶ 18. In Ariegwe, 28-day and 56-day periods of delay were

the result of the defendant’s motion to continue on grounds that the parties were still
                                           8
waiting for test results from the crime lab. Ariegwe, ¶¶ 132-33. We concluded that such

a delay was institutional. Ariegwe, ¶¶ 132-33. Another period of delay in Ariegwe

resulted from the prosecution’s motion to continue, which revealed that the motion “was

necessitated by the State’s delay in delivering evidence for testing at the crime lab.”

Ariegwe, ¶ 129. That delay, we concluded, was attributable to the State due to lack of

diligence. Ariegwe, ¶ 129. We observed that the failure to provide discovery or send

evidence to a crime lab in a timely manner “reflects a significant lack of diligence.”

Ariegwe, ¶ 154.

¶19    In the present case the State’s inaction leads us to conclude that it was not diligent.

The State was aware of the nine-month backlog at the crime lab by December 2013,

when it first moved to continue Velasquez’s trial. In January 2014, Velasquez raised

concerns about how the testing delay might affect his speedy trial right.             At the

evidentiary hearing, a criminal investigator for the Roosevelt County Attorney’s Office

who had been working on Velasquez’s case testified that when she emailed the crime lab

to see if the drug testing had been initiated, she was “repeatedly told” that it would take

nine months. Despite the State’s awareness of the backlog and Velasquez’s concerns, the

record reveals no evidence that the State attempted to pursue any possible alternate

testing locations after learning of and “repeatedly” confirming the nine-month delay. To

be sure, the backlog at the State Crime Lab likely was “caused by circumstances largely

beyond the control of the prosecutor.” Couture, ¶ 72. But the failure to inquire into the

availability of independent labs was squarely in the State’s control. Mere allusion to

crime lab backlog is not sufficient justification where the State has not investigated any
                                          9
other options. See State v. Fife, 193 Mont. 486, 490, 632 P.2d 712, 715 (1981) (“Mere

allusion to good faith misunderstanding and crowded court calendars is not sufficient

justification where the State has not been diligent.”).

¶20    The State’s inaction in this case is similar to the State’s failure to “send[ ]

evidence to the crime lab in a timely manner.” Ariegwe, ¶ 154. By simply accepting the

nine-month delay and failing to potentially expedite the process by seeking out

independent labs, the State showed dilatory inaction in moving the case toward trial.

That Velasquez “wait[ed] until July 28, 2014, to suggest in the district court that the State

should inquire about the backlog at independent laboratories” is immaterial. “[T]he

accused is under no obligation to ensure diligent prosecution of the case against him, and

has no duty to bring himself to trial.” Zimmerman, ¶ 24 (internal citations omitted). The

State knew for more than seven months that waiting for the results would cause

significant delay in bringing Velasquez to trial.         Had the prosecution inquired and

determined that an alternate testing source was not reasonably available, the delay likely

would be considered merely institutional. But its failure to even inquire falls beneath an

acceptable threshold of diligence. We thus conclude that the 196-day delay between the

first scheduled trial date and the actual trial date is attributable to the State and “falls on

the wrong side of the divide between acceptable and unacceptable reasons for delaying a

criminal prosecution once it has begun.” Ariegwe, ¶ 69.

(3) The Accused’s Responses to the Delay

¶21    In evaluating the accused’s responses to the delay, we consider the “totality of the

accused’s responses” to ascertain whether the accused “actually wanted” a speedy trial.
                                          10
Zimmerman, ¶ 22. “[T]he issue is not simply the number of times the accused acquiesced

or objected[;] [r]ather, the focus is on the surrounding circumstances.” Zimmerman, ¶ 22.

       [T]here is no magical time for assertion of the right to a speedy trial which
       should be weighed more favorably to the defendant than some other time.
       So long as the defendant asserts his or her right to a speedy trial by a
       motion to dismiss on speedy trial grounds filed prior to the time of trial, we
       conclude that the defendant has satisfied the third-prong . . . and that further
       analysis of that prong is not only unnecessary, but inappropriate.

Ariegwe, ¶ 137 (citation omitted).       “The defendant’s assertion of his speedy trial

right . . . is entitled to strong evidentiary weight in determining whether the defendant is

being deprived of the right.” Ariegwe, ¶ 78 (citing Barker v. Wingo, 407 U.S. 514, 531-

32, 92 S. Ct. 2182, 2192-93 (1972)). It “serves as a gauge of the weights the court should

assign to the other three factors in the balancing.” Ariegwe, ¶ 110.

¶22    Although the District Court concluded that Velasquez had affirmatively asserted

his right to a speedy trial, Velasquez argues that the court “erred in not ascribing any

weight to this factor.” Velasquez emphasizes that he objected to the State’s motion to

continue in January, asserting his right to a speedy trial and “noting that he [had] already

been incarcerated for 104 days.” His objection, Velasquez contends, “put the State on

notice, nearly a hundred days before crossing the 200-day speedy trial trigger, that he

wanted a speedy trial and that the State’s delaying his trial for the Montana State Crime

Lab testing would violate his right to a speedy trial.” Velasquez points out that he “never

asked for a single continuance” and that “[n]one of the State’s three motions to continue

stated whether the State had contacted defense counsel concerning the motions or

whether the defense agreed or objected to the continuances.” Velasquez argues that his

                                          11
“timely insistence” on a speedy trial “weighs heavily” in his favor with respect to this

factor and “adds weight” in his favor to the other factors.

¶23    In its response to Velasquez’s motion to dismiss, the State conceded that

Velasquez had “timely asserted his right before the commencement of the trial, as

required in Ariegwe.”     For the first time on appeal, however, the State argues that

“[a]though he objected to a continuance early on, other circumstances indicate that

Velasquez did not actually want to be brought to trial promptly.”

¶24    It is well established that “a party may not raise new arguments or change its legal

theory on appeal because it is fundamentally unfair to fault the trial court for failing to

rule on an issue it was never given the opportunity to consider.” State v. Hendershot,

2009 MT 292, ¶ 31, 352 Mont. 271, 216 P.3d 754 (citations and internal quotations

omitted). Because the State conceded in the trial court that Velasquez had “timely

asserted his right” under Factor Three, we decline to address its arguments with respect to

this factor on appeal.

¶25    We conclude that the District Court determined correctly that Velasquez had

asserted his speedy trial right. He objected to the State’s first motion to continue and

moved to dismiss the charges against him for lack of a speedy trial before proceeding to

trial. That Velasquez did not object to the State’s other two motions to continue is not

surprising. The record reveals that both motions were filed on a Friday and granted the

following Monday. Based on the “totality of [Velasquez’s] responses,” it is clear that he

“actually wanted” a speedy trial. Zimmerman, ¶ 22.


                                         12
¶26    We agree with Velasquez, however, that the court erred in failing to assign any

weight to Factor Three. The District Court’s comments on Factor Three were frugal:

“As far as your assertion of your right, you guys asserted your right. I got no argument

with that one.” When balancing the factors the court did not consider Factor Three

“together with the other three factors of the balancing test” as required by Ariegwe.

Ariegwe, ¶ 79. The court referred only to Factors Two and Four: “[W]hen we get down,

right down to the balancing, you know, the institutional delay doesn’t get weighed very

heavily. I don’t know that the prejudices to the defendant outweigh that and make it so

that I need to dismiss for lack of a speedy trial, but, boy, it’s getting close.” That

Velasquez timely asserted his right, indicating that he actually wanted to be brought to

trial, weighs in his favor and “is entitled to strong evidentiary weight in determining

whether [he] is being deprived of the right [to a speedy trial].” Ariegwe, ¶ 78.

(4) Prejudice to the Accused

¶27    Under Factor Four, we consider whether the delay prejudiced the accused “in light

of the interests that the speedy trial right was designed to protect:        (i) preventing

oppressive pretrial incarceration, (ii) minimizing 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.” Zimmerman, ¶ 28.

The parties in this case dispute each of these interests.

       i. Oppressive Pretrial Incarceration

¶28    Whether pretrial incarceration is oppressive depends on the “particular

circumstances,” including “the duration of the incarceration, the complexity of the
                                          13
charged offense, any misconduct by the accused directly related to his incarceration, and

the conditions of the incarceration, such as overcrowding, recreational opportunities,

adequate food, climate control, proper medical care, cleanliness, and legal research

capabilities.”   Couture, ¶ 56.     “[T]he length of the pretrial incarceration that is

‘oppressive’ is less for a relatively simple offense than it is for a complex charge.”

Ariegwe, ¶ 91; accord Billman, ¶ 41 (holding that a 278-day incarceration, coupled with

the relatively simple charges of felony DUI and two misdemeanor driving offenses,

established that the pretrial delay had prejudiced the defendant); Couture, ¶ 59

(concluding that a longer period of pretrial incarceration was justified due to the

complexity of the charged offenses of deliberate homicide and tampering with evidence).

When analyzing the conditions of incarceration, “we focus on the condition of the

facilities and how they impact the accused, rather than solely on the condition of the

accused.” Couture, ¶ 62. “The question here is one of oppressiveness, not merely

occasional unpleasantness.” Ariegwe, ¶ 93.

¶29    The District Court concluded that Velasquez’s pretrial incarceration was not

oppressive because it was “clear” that he “would have been incarcerated otherwise [in

California]” before the current violation “ever came up.” Velasquez counters that it is

“entirely speculative” whether he would have been incarcerated in California. Although

his probation officer “may have been recommending incarceration,” Velasquez contends

that “there is no evidence in the record what sentence the California court would have

actually imposed.” Velasquez points out that he was “on the lowest level of supervision

in California, and the California system has drug treatment alternatives to incarceration.”
                                         14
¶30    Velasquez argues that his 309-day incarceration at the Roosevelt County jail was

in any event oppressive in both its duration and conditions. Velasquez emphasizes that

“[f]rom October 2013 to April 2014, [he] was not allowed to go outside even once.”

Velasquez contends further that he was charged excessive amounts to make phone calls

and had trouble sending mail from jail. The jail, Velasquez claims, contained “visible

mold and recirculated air that made [his] lungs hurt.” He claims also that the conditions

of his incarceration caused him to develop a skin infection.

¶31    The State argues that the District Court correctly concluded that Velasquez

otherwise would have been incarcerated in California for violations that occurred “a long

time before this case arose.” The State contends that while Velasquez’s allegations about

the jails may have been “[o]ccassionally disagreeable or unpleasant,” they were “not

sufficient to establish oppressive conditions.”      While the State acknowledges that

Velasquez “did not go outside in the winter,” it points out that Velasquez “went outside

several times a week when the weather was better.”          The State argues further that

Velasquez had “drinkable water from two sources,” and that after seeing a doctor,

Velasquez’s skin condition had gotten better.

¶32    Upon review of the record, we conclude that the District Court’s finding that

Velasquez would have been incarcerated in California is not supported by substantial

evidence. “Substantial evidence is evidence that a reasonable person might accept as

adequate to support a conclusion; it consists of more than a mere scintilla of evidence, but

may be somewhat less than a preponderance.” Brave, ¶ 6. At the hearing, Velsaquez

acknowledged that he had received a letter a couple of months before the hearing,
                                         15
notifying him of his alleged California probation violation and advising him of a future

hearing date. Velasquez testified that after receiving the letter, he asked one of the

guards at the jail to run a National Crime Information Center (NCIC) check and learned

that any warrants for him “weren’t extraditable.” When the State questioned Roosevelt

County criminal investigator Tierra Erwin, she testified that it was her “understanding”

that California “did want [Velasquez] back.” There was no indication, however, that

California sought to extradite Velasquez. The State did not introduce evidence of a

bench warrant for Velasquez, and Erwin admitted that to her knowledge there exists no

judgment from California against Velasquez.       Erwin acknowledged that when she

searched the NCIC database at the time of Velasquez’s arrest in September 2013, there

was no warrant or detainer on Velasquez. The California probation officer’s report of

Velasquez’s violation alleged that Velasquez had last reported to probation in

January 2012; the probation violation report was filed in California in March 2014, and

apparently was the first allegation of violation. The report showed that a March 2014

hearing date for the alleged probation violation had been extended to July 1, 2014—

nearly ten months after Velasquez’s arrest in Montana.        Although the California

probation officer recommended that Velasquez be “sentenced to the mid-term and it be

served in any penal institution,” Velasquez testified that he had never been actually

incarcerated in California but had served house arrest for 174 days. Velasquez testified

also that he believed there were other options besides incarceration available to him in

California such as rehab.


                                       16
¶33    We cannot conclude from our review of the evidence that there is more than a

“mere scintilla” to support the District Court’s finding. We conclude that a reasonable

mind could not accept such evidence as adequate to support a finding that Velasquez

would have been incarcerated in California even if he were not incarcerated in Montana.

The court’s factual finding with respect to this issue was clearly erroneous. And, even

assuming some likelihood of Velasquez’s imprisonment in California, “while the fact of

incarceration on a separate charge is relevant [to the issue of oppressiveness], it is not

dispositive.” Ariegwe, ¶ 92.

¶34    The hearing evidence showed that Velasquez, jailed for ten months on a

non-violent drug possession charge because he was unable to meet a $5,000 bail

condition, was not allowed during at least half that time—five months—to step foot

outdoors. He instead attempted to exercise within the confines of his jail cell but, with

visible black mold inside the jail, Velasquez’s “lungs hurt” when he tried to exercise.

Jailers, when not busy with other tasks, would bring water to the inmates instead of

requiring them to drink the water available in their cells, which Velasquez maintained

was “not drinkable.” Velasquez was unable to maintain consistent contact with his

family, either because he could not afford the one-dollar-per-minute phone charges or

because jailers had cut off all prisoner phone access when someone misbehaved. (There

is no evidence that Velasquez was responsible for any loss of phone privileges.) And

mail to his family, and even to his attorney, did not always get delivered.

¶35    We agree with Velasquez that the impact of the facility’s conditions was more

than “occasional unpleasantness.” Ariegwe, ¶ 93. We conclude that the duration of
                                         17
Velasquez’s incarceration relative to the offense for which he was charged, combined

with the conditions he endured at the Roosevelt County jail, support a finding that the

circumstances of his incarceration were oppressive.

¶36   Considering the evidence in light of the intensifying presumption of prejudice

created by the 309 days of delay, Velasquez has presented sufficient evidence of

oppressive incarceration to meet his lowered quantum of proof.

      ii. The Accused’s Anxiety and Concern

¶37   In assessing the accused’s anxiety and concern, this Court focuses on “the ways in

which the presence of unresolved charges disrupted the accused’s life,” keeping in mind

that “[a] certain amount of anxiety and concern is inherent in being accused of a crime.”

Couture, ¶ 64. “[T]he crucial question here is whether the delay in bringing the accused

to trial has unduly prolonged the disruption of his or her life or aggravated the anxiety

and concern that are inherent in being accused of a crime.” Ariegwe, ¶ 97.

¶38   In Zimmerman we concluded that a 289-day delay in bringing Zimmerman to trial

unduly prolonged the disruption of his life and aggravated his anxiety and concern.

Zimmerman, ¶ 34. We based our conclusion on the “clear causal connection between the

State’s failure to diligently prosecute the charges and Zimmerman’s worsening financial

situation, aggravated mental health issues, and increased stress in his family

relationships.” Zimmerman, ¶ 34.

¶39   The District Court found that most of Velasquez’s anxiety and concern related to

his absence from his family in California. In light of its finding that Child Protective

Services already had taken Velasquez’s son away and that Velasquez had failed to
                                        18
complete the required treatment plan to get his son back, the court concluded that there

could not be “that much anxiety and concern because [Velasquez] didn’t seem to care

enough to stay [in California] and get his treatment done.”

¶40    Echoing the District Court’s conclusion, the State emphasizes that Velasquez’s

son “was taken from him by Child Protective Services and [Velasquez] did not complete

his treatment plan when he left drug rehab early.” The State notes also that Velasquez

left his son in California “six months before he was arrested in this case.” The State

points out that Velasquez did not lose his job because he was incarcerated in this case but

that he had lost his job a month before he was arrested. The State relies on testimony

from Velasquez’s sentencing hearing to contend further that Velasquez’s incarceration

actually benefitted him.

¶41    Velasquez argues that the State’s delay in bringing him to trial “unduly prolonged

the disruption of his life or aggravated his anxiety and concern” because of “his inability

to address his many financial, legal, and family matters while incarcerated in Montana.”

At the hearing Velasquez testified that his time in jail has been “really stressful” and that

he had not been sleeping well. Velasquez explained that he was worried about “[a] lot of

things. My [three-and-a-half-year-old] son, my life, getting back on track, just—mainly,

my son.” Velasquez admitted that Child Protective Services had taken his son and that he

had not completed his treatment plan. He testified that before he left California, he had

seen his son every weekend, but that because of his incarceration he has only been able to

talk to his son “here and there” when he could afford a phone card. Velasquez takes issue

with the State’s reliance on sentencing hearing testimony to argue that his right to a
                                         19
speedy trial was not violated. Velasquez points out that the sentencing hearing “occurred

nearly two months after the evidentiary hearing” and therefore, the testimony was not

before the District Court when it analyzed the speedy trial violation.       Accordingly,

Velasquez argues that the sentencing testimony “is not properly part of the speedy trial

record” and should not be considered by this Court.

¶42    We agree with Velasquez that our review must be “confined to the record made

before the district court” at the time of the speedy trial hearing. Whitaker v. Farmhand,

Inc., 173 Mont. 345, 357, 567 P.2d 916, 923 (1977). As Velasquez correctly points out,

the sentencing hearing occurred well after the District Court had ruled on the speedy trial

motion. It was certainly not presented to or part of the record made before the District

Court. We therefore do not consider the State’s arguments with respect to testimony

presented at the sentencing hearing.

¶43    While we acknowledge that the pretrial delay may have caused Velasquez anxiety

and concern, based on the record before us, we do not conclude that it rose to a level

beyond that “inherent in being accused of a crime.”        Couture, ¶ 64.    Here, unlike

Zimmerman, the record does not reflect a “clear causal connection” between the State’s

failure to diligently prosecute the charges and Velasquez’s financial and family issues.

Zimmerman, ¶ 34. As the District Court noted, Velasquez had lost custody of his son and

failed to complete his treatment plan well before he left California and became

incarcerated in Montana. Likewise, Velasquez’s struggles in obtaining or maintaining

employment occurred before his arrest in this case. Velasquez testified that he had lost

his job before his arrest because of “money that [he] owed in California” and because he
                                        20
had a suspended driver’s license. After losing his job but prior to his arrest, Velasquez

testified that he had been looking for jobs “a little bit” but did not have a vehicle or

driver’s license in order to look for jobs.

¶44    We agree with the District Court that Velasquez did not present sufficient

evidence to establish that the delay in bringing him to trial in this case caused undue

prolonged disruption of his life or aggravated anxiety and concern beyond what any

person accused of a crime would suffer.

       iii. Impairment of the Defense

¶45    Impairment of the defense “constitutes the most important interest in the prejudice

analysis.” Zimmerman, ¶ 36. It evaluates issues of evidence, witness reliability, and the

accused’s ability to present an effective defense. Ariegwe, ¶ 98. “[T]ime may erode the

accuracy of witness testimony and exculpatory evidence,” State v. Jefferson, 2003 MT

90, ¶ 36, 315 Mont. 146, 69 P.3d 641, and “pretrial delay prejudices an accused if defense

witnesses are unable to accurately recall past events,” Billman, ¶ 47 (citation omitted).

Because “excessive delay presumptively compromises the reliability of trial in ways that

neither party can prove,” “consideration of prejudice is not limited to the specifically

demonstrable.” Ariegwe, ¶ 99 (quoting Doggett, 505 U.S. at 655, 112 S. Ct. at 2692-93)

(internal quotations omitted). “[I]n the absence of affirmative proof that the delay has

impaired the accused’s ability to present an effective defense, impairment must be

assessed based on other factors in the analysis.” Ariegwe, ¶ 100.

       A speedy trial claim likely would fail if the government had pursued the
       accused with reasonable diligence and the accused could not show specific
       prejudice to his or her defense as a result of the delay. Conversely, where
                                              21
         the government has been negligent in bringing the accused to trial, such
         negligence is not automatically tolerable simply because the accused cannot
         demonstrate exactly how it has prejudiced him.

Zimmerman, ¶ 36 (citations and quotations omitted).

¶46      The District Court noted that a missing witness—the front-seat passenger from the

vehicle in which Velasquez was arrested—had been located very close to the hearing

date. The court observed, however, that “nobody really ever said what [the witness]

would say or wouldn’t say to me that would make it seem that she was so important or

not so important. I have no clue what she would say from everything that I read.”

¶47      Although the front-seat passenger was subpoenaed close to his trial date,

Velasquez points out that the defense was not in touch with her at the time of the hearing

and that she was “missing or unwilling to appear by the time of trial.” “While the record

may not directly establish whether [the witness] would have been available at the original

trial date,” Velasquez argues that he has made “at least some showing of a missing,

exculpatory witness.” Velasquez refers to the defense investigator’s hearing testimony

that the front-seat passenger “had previously made allegations to police regarding [the

driver’s] actions in the vehicle.” Velasquez argues also that he presented evidence at the

evidentiary hearing that other witnesses had experienced diminished memories due to the

delay.    In any event, Velasquez argues that “affirmative proof of specific defense

impairment is not essential to every speedy trial claim.”

¶48      The State argues, “There was no evidence that Velasquez’s defense was impaired

by the delay” because “[n]o evidence was presented that if the trial were sooner, [the

front-seat passenger] would have been located and would have appeared,” and “no
                                         22
evidence or indication of what [the witness’s] testimony would be.” In addition, the State

claims that the District Court found that the delay “worked in Velasquez’s favor because

it allowed him more time to try to locate [the witness].”

¶49    We disagree that the delay “worked in Velasquez’s favor” and note that the

District Court did not draw such a conclusion. The court stated,

       As far as the limit the possibility the defense has, I kind of want to be a
       smart alec and say, it looks like now they’ve found the lost witnesses,
       you’re actually ahead by the delay as opposed to being behind. Although,
       it’s also [the State’s] witness they found, so I don’t know whether that’s a
       win or not.

(Emphasis added.) With respect to a showing of defense impairment, the record reflects

that Velasquez made some showing of prejudice at the evidentiary hearing.              The

investigator for the defense testified that a couple of the police officers who were

involved in the case had “some recollection difficulties” when he interviewed them. As

Velasquez points out, the investigator testified also that the front-seat passenger witness

had made “some specific allegations” against the driver of the vehicle. While such

evidence may not be “specifically demonstrable,” it is part of our consideration of

prejudice. Ariegwe, ¶ 99.

¶50    Finally, even “in the absence of affirmative proof that the delay has impaired

[Velasquez’s] ability to present an effective defense,” we look to other speedy trial

factors to inform our analysis. Ariegwe, ¶ 100. As we determined in Factor One, the

State must make a more persuasive showing that Velasquez was not prejudiced by the

delay, “while the quantum of proof that may be expected of [Velasquez] under this factor

is correspondingly lower.” Ariegwe, ¶ 123. In Factor Two, we determined that the
                                         23
196-day delay between the first scheduled trial date and the actual trial date is attributable

to the State’s lack of diligence in failing to consider alternative testing options. Such lack

of diligence “is not automatically tolerable simply because the accused cannot

demonstrate exactly how it has prejudiced him.” See Zimmerman, ¶ 36. In considering

the evidence of impairment in light of the other factors, we conclude that Velasquez was

prejudiced by the delay.

Balancing

¶51    In balancing the four factors in the analysis, we hold that the delay in this case

establishes a constitutional speedy trial violation. The length of the delay intensified the

presumption of prejudice to Velasquez and increased the State’s burden to prove valid

justifications for the delay.    The pretrial delay due to the State’s inaction toward

obtaining timely drug-testing was an unacceptable reason for postponing Velasquez’s

trial, making it “more likely [that his] speedy trial right has been violated.” Ariegwe,

¶ 72. Velasquez’s response to the delay in timely asserting his speedy trial right weighs

further in his favor and should have been considered in the balancing equation. Ariegwe,

¶ 110. The District Court found Factor Four to be a close call, but concluded that the

prejudice Velasquez suffered did not tip the scales sufficiently to demonstrate a violation

of his speedy trial right. But because the District Court gave no weight to Velasquez’s

assertion of his right, and because we have determined that the State bears a heavier

burden in this case to overcome the presumption of prejudice, we conclude that the scales

do tip in Velasquez’s favor.


                                          24
                                    CONCLUSION

¶52    In the final analysis, the guarantee of a “speedy” trial rings hollow when a person

too poor to afford bail sits in jail for nearly a year on a non-violent, straightforward,

relatively minor drug possession charge, confined for half that time without one minute

outside, and cut off in large measure from his distant family—all because the State did

not attempt to determine more quickly whether the car in which he was riding in fact

contained illegal drugs.

¶53    Velasquez did not receive protection of his constitutional right to a speedy trial.

We therefore reverse the District Court’s denial of his motion to dismiss and remand for

dismissal of the charges.



                                                /S/ BETH BAKER


We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON




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