                                           No. 14661

                  mTHESUP~COUIiToFTHF,sr~OFMXJTANA

                                              1979




                         P l a i n t i f f and Respondent,




                         Defendant and Appellant.



Appeal f m :   D i s t r i c t Court of the Thirteenth Judicial D i s t r i c t ,
               Honorable Charles Luedke, Judge presiding.

Counsel of Record:

     For Appllant:

          John L. Adarns argued, Billings, lbntana

     For Respondent:

          Hon. Mike Greely, Attomey General, Helena, bbntana
          C h r i s Tweeten argued, Assistant Attorney General, Helena, mntana
          Harold Hanser, County Attomey, Billings, Montana
          James Whalen argued, Deputy County Attomey, Billings, mntana

                                                     -   --




                                                     S*tted:          June 1 , 1979
                                                                            1

                                                          Decided :   Nov z 8 1979
Filed:   gov 2.   14is
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.

     Defendant appeals his conviction in the Yellowstone
County District Court for the crime of deviate sexual conduct.
He raises three issues:     double jeopardy, denial of a speedy
trial, and inadmissibility of his confession.
     The double jeopardy claim and speedy trial claim arise
out of an unusual, if not unique, set of circumstances.    Defendant
was initially convicted on May 23, 1978 of the crime, but was
prevented from taking a meaningful appeal because the court
reporter lost the notes of the first trial, thus preventing
the preparation of a verbatim transcript.     For this reason,
the trial court granted a new trial to defendant, and defendant
accepted this new trial order without objection.    Defendant was
again convicted, and he was sentenced to twenty years in prison,
the same sentence he had received after the first conviction.
     Defendant now contends that the second trial resulted
in double jeopardy, and furthermore, that the time lapse between
his arrest and the second trial, approximately ten months,
denied him a speedy trial.    He also claims that a confession
he had given to police immediately before he was arrested, was
inadmissible because it was obtained against his will.
     The underlying facts to defendant's prosecution and
conviction for deviate sexual conduct occurred while defendant
was babysitting a four-year old male child.    The parents were
in California on a four day trip.    When the parents returned
home on the evening of December 22, 1977, the child informed
his mother that his buttocks hurt, and stated that "Tom stuck
his peep in it.   . ."   Later that evening, Dr. Stephen Elliott,
M.D., discovered a bruise in the boy's rectal area which in
his opinion was caused by a penetrating object.    The police
                              -2-
were then notified, and three officers were sent to defendant's
home.
        They arrived at approximately 10:OO p.m. that evening,
and defendant was in bed.    Defendant invited the officers into
his home.     They informed defendant that they were investigating
the sexual assault of the boy and asked if the defendant was
willing to go downtown for questioning.    Defendant agreed,
and he changed clothes and accompanied the police to the station-
house.    After being advised of his rights, defendant admitted
that he had sexually assalted the boy and signed a written
confession to that effect.     Shortly thereafter he was arrested
and placed in the county jail.
        Before the first trial, defendant moved to suppress his
confession.    He testified at the hearing that he voluntarily
gave his confession.    He did not contend then that he had been
arrested before he made his confession.    He also testified that
the police requested rather than demanded that he accompany
them to the police station for questioning.    He agreed that the
police were courteous to him at all times and that he was not
frightened by being in their presence.    The evidence is clear,
moreover, that defendant was not restrained at the police
station and that he was free to leave at anytime.    Defendant
was placed under arrest only after he had confessed.    The trial
court denied the motion to suppress, and trial started and was
concluded on May 23, 1978.
        Defendant was later given a 20 year prison sentence.   While
in the process of preparing for an appeal, it was discovered
that the court reporter had lost his notes of the first trial,
thus preventing the preparation of a verbatim record of the
trial testimony.    For this reason, in an effort to protect the
rights of the defendant, on September 27, 1978, the District
                                 -3-
Court granted a new trial to defendant.    In the same order,
the court set a new trial date of October 24, 1978.
     Defendant did not object to this order granting a new
trial; nor did he object to the new trial date setting.   When
defendant's confession was admitted, defendant simply objected
for the reason that it had been taken against his will--that
is, that he had actually been under arrest at the time he gave
his confession.    After all the evidence was presented from both
sides, defendant moved to dismiss the case based on his claim
of double jeopardy, which motion was denied.   Defendant was
again convicted, and sentenced to 20 years in prison.
     Defendant now contends that his claim of double jeopardy
stood as a bar to a valid second trial and conviction.    He also
claims that since his confession was taken against his will, it
should have been excluded, and absent such confession, he was
entitled to a dismissal because there was insufficient evidence
to go to a jury.    He did not raise the speedy trial issue before
District Court, but contends before this Court that the ten
month time lapse between his arrest and the second trial denied
him his right to a speedy trial.
     At no time did defendant oppose the order of the District
Court granting him a new trial because of the lost trial notes.
If he felt at that time that a retrial, rather than appeal from
the first conviction, was against his interest, he had available
to him procedures under section 46-20-304(1), MCA, albeit not
totally sufficient, to appeal without benefit of an actual
verbatim transcript.    But he chose not to use this procedure
and instead to gamble that upon a second trial he would be
acquitted.   We see no valid double jeopardy claim under these
circumstances.
     A defendant who obtains a new trial after appealing
the original judgment cannot complain of double jeopardy.
State v. Holliday (1979),        Mont   .      , 598 P.2d 1132, 36
St.Rep. 1535; United States v. Starling (5th Cir. 1978), 571
F.2d 934.    There is no difference when the trial court grants
a new trial to the defendant.    State v. Thompson (1891), 10
Mont. 549, 552, 27 P. 349.
     Here, the trial court ordered a new trial        after it had
been concluded.    Other than granting a new trial, the only
reasonable alternative available to the trial court, was to
order an appeal through the use of a bystander's bill as permitted
by section 46-20-304(1), MCA, supra.        The trial court did not
consider a bystander's bill as a meaningful alternative, and
neither did the defendant, for he accepted instead, the benefits
of an order for a new trial.    Defendant never did contend that
he should be permitted to reconstruct the testimony of the
first trial and present his appeal based upon this reconstructed
record.
     The order for a new trial was solely for defendant's
benefit.    As stated in Houp v. State of Nebraska (8th Cir.
1970), 427 F.2d 254; and Crawford v. United States (D.C. Cir.
1960), 285 F.2d 661, even after the jury has entered its
verdict, the trial court has discretion to determine that the
burden placed upon a defendant by a second trial must be sub-
ordinated to the public's interest in a just judgment.       There
could be no just judgment here without permitting the defendant
to have an adequate trial record upon which to conduct an appeal,
and that is why the trial court granted the new trial.       The
trial court averted a potential injustice to defendant by not
compelling him to undertake an appeal upon an incomplete and
inadequate trial record.    This was the just and proper action

to take.
     The defendant's claim that he was denied a speedy
trial under these circumstances, is specious, to say the
least.    Although ten months passed between defendant's arrest
and the beginning of the second trial, the State cannot be
charged with any significant time lapses.    Upon defendant's
request, the court ordered a psychiatric exam, and defendant
did not file the results of his examination until three and a
half months later on May 2, 1978.    The intervening time period
after the first conviction and the new trial order of September
27, 1978, was not, of course, time that can be charged to
defendant.    But defendant cannot attach any meaningful speedy
trial significance to this period, for he had already been
tried.    The court and parties were primarily concerned during
this period as to what action to take because of the negligence
of the court reporter in losing the trial notes.
    On September 27, 1978, the trial court concluded that in
all justice to defendaht, a new trial must be ordered.    Defendant
accepted the benefits of this new trial order and makes no
specific complaint as to the time lapse between September 27,
1978 and the start of his second trial, on October 24, 1978,
less than a month.    Defendant has shown us no prejudice what-
soever, and we see none.
    We have already discussed the evidence concerning defendant's
contention that his confession was the product of an illegal
arrest.     Defendant himself, however, has admitted that he was
not first arrested, and that the confession was not taken against
his will.    We find no violation of his constitutional rights
under these facts.
     Based upon the defendant's confession and the testimony
corroborating the complaint of the small boy, the State met its
substantial evidence burden to sustain the conviction.
We Concur:




      Chief Justice
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