Reaffirming Montana’s Ariegwe Speedy‑Trial Framework: Defendant‑Caused Continuances Control the Balance; Evidence‑Anchored “Guilt” Statements in Closing Are Not Plain Error

Introduction

This commentary analyzes the Montana Supreme Court’s memorandum decision in State v. Lowry, 2025 MT 222N, affirming the denial of a motion to dismiss for lack of speedy trial and declining plain error review of a prosecutorial closing remark. Although issued as a noncitable memorandum opinion under Section I, Paragraph 3(c) of the Court’s Internal Operating Rules, the decision provides a clear, disciplined application of Montana’s established speedy-trial doctrine, primarily as articulated in State v. Ariegwe. It also addresses prosecutorial argument boundaries in closing, contrasting permissible evidence-based exhortations from impermissible personal vouching.

The case involves Bobby Francis Lowry, charged with Partner or Family Member Assault (PFMA) under § 45‑5‑206(1)(a), MCA, arising from an October 6, 2020 assault disclosed more than a year later. From Lowry’s initial appearance on March 7, 2022, through his final trial date on August 28, 2023, 539 days elapsed. Lowry sought dismissal for a speedy-trial violation and alternatively sought a new trial based on alleged prosecutorial misconduct in rebuttal closing. The Court affirmed the conviction and sentence.

Summary of the Opinion

The Court held that:

Speedy-trial analysis was triggered because the time between accusation and trial exceeded the 200-day threshold (Ariegwe).
Of the total 539-day period, 203 days were attributable to the State as institutional delay (weighed less heavily), while 336 days were attributable to Lowry (stemming from his continuances and waiver).
Lowry’s late assertion and express waiver of speedy trial indicated acquiescence, weighing against his claim.
Lowry failed to prove prejudice: he did not show oppressive pretrial incarceration attributable to the PFMA case, anxiety beyond the inherent stress of being charged, or an impairment of his defense linked to post-accusation delay; pre-indictment delay is not part of a speedy-trial analysis.
Balancing the Ariegwe factors, no speedy-trial violation occurred.
On the alleged prosecutorial misconduct, the Court declined plain error review. In context, the prosecutor’s remark—“[Lowry] is guilty, in the State’s eyes”—was an evidence-anchored exhortation akin to previously approved closing rhetoric (e.g., Lacey and Campbell), and not a personal, unsupported assurance of guilt.

Accordingly, the Court affirmed Lowry’s conviction and sentence.

Factual and Procedural Background (Concise Timeline)

October 6, 2020: Assault occurs; victim discloses over a year later.
March 25, 2022: PFMA charge filed.
March 7, 2022: Initial appearance (speedy-trial clock begins).
March 29, 2022: Lowry fails to appear for arraignment.
September 26, 2022: First trial date set (203–204 days after initial appearance; 1-day computation variance deemed immaterial).
July 28, 2022: Public defender withdraws due to conflict; August 31, 2022: new counsel appointed; trial continued to March 13, 2023.
February 22, 2023: Court resets trial for March 13, 2023.
March 6, 2023: Lowry files a speedy-trial waiver; soon thereafter moves to continue the March setting to obtain more discovery and consult with counsel; court resets for August 28, 2023.
August 9, 2023: Lowry moves to dismiss for lack of speedy trial (about three weeks before trial).
August 28–29, 2023: Two-day jury trial; State’s rebuttal closing includes the challenged statement; jury convicts; court sentences Lowry to five years at MSP.

Detailed Analysis

Precedents Cited and Their Influence

State v. Ariegwe, 2007 MT 204: Cornerstone of Montana’s speedy-trial analysis. It establishes:
- A 200-day “trigger” for analysis from accusation to trial (¶ 113), with a presumption of prejudice escalating as delay grows (¶¶ 56, 113).
- A four-factor balancing test: length of delay, reasons for delay, defendant’s response, and prejudice (¶¶ 108–113).
- Standards of review: legal conclusions de novo; factual findings for clear error (¶ 119).
Lowry’s Court meticulously implements Ariegwe, emphasizing the need to calculate the full period from accusation to trial and to disentangle “length” from “reasons.”
State v. Zimmerman, 2014 MT 173: Reaffirms the four-factor balancing and underscores that no single factor is dispositive. The Court draws on Zimmerman to weigh Lowry’s late assertion and waiver against him.
State v. Flynn, 2024 MT 236: Notes that long delays weigh heavily against the State absent a showing of no prejudice, but still require factor-by-factor attribution (citing Ariegwe). Lowry’s institutional delay is thus weighed less heavily against the State.
State v. Kirn, 2023 MT 98 and State v. Heath, 2018 MT 318: Delays caused by the defendant are attributed to the defendant. This principle anchors the attribution of Lowry’s two 168-day continuances to him.
State v. Stops, 2013 MT 131 and State v. Couture, 2010 MT 201: A defendant’s waiver does not insulate defendant-caused delay; such time still counts against the defendant. Lowry’s waiver buttresses this attribution.
State v. Burnett, 2022 MT 10: Non-institutional delays carry more weight against the party to whom they are attributed. This elevates the weight of Lowry’s continuances relative to the State’s institutional delay.
State v. Betterman, 2015 MT 39 (citing United States v. Lovasco, 431 U.S. 783 (1977)): The constitutional speedy-trial right does not extend to pre-indictment delay. Lowry’s complaint about pre-charge lost video is outside the speedy-trial framework.
Doggett v. United States, 505 U.S. 647 (1992): While very long delays can create a presumption of prejudice, claims typically fail absent government negligence or lack of diligence and some prejudice. The institutional-only delay here, coupled with Lowry’s own continuances and waiver, undercuts reliance on Doggett.
State v. LaGree, 2007 MT 65 and State v. Blair, 2004 MT 356: Impairment of defense is the hardest prejudice to prove; time’s erosion is rarely demonstrable. Lowry’s generalized assertions did not meet this burden.
State v. Highpine, 2000 MT 368 and Smith v. Hooey, 393 U.S. 374 (1969): Pretrial incarceration may be oppressive even if for another matter, but it is not dispositive. Lowry did not establish oppressive incarceration attributable to this case.
State v. Rose, 2009 MT 4 (abrogated on other grounds): Incarceration does not preclude evidence collection where counsel is available; defendants can direct investigations. The Court analogizes to reject Lowry’s claim of impaired defense.
Plain error/prosecutorial misconduct line:
- State v. Palafox, 2023 MT 26 and State v. Aker, 2013 MT 253: Absent objection, the Court ordinarily does not review alleged misconduct; plain error is discretionary and sparingly applied where fundamental rights are implicated.
- State v. Lacey, 2012 MT 52 and State v. Campbell, 241 Mont. 323 (1990): Prosecutors may urge conviction based on the evidence; robust rhetoric is permissible if grounded in the evidentiary record.
- State v. Green, 2009 MT 114: Prosecutors may not inject personal opinions on credibility; commentary must reflect the record.
- State v. Roubideaux, 2005 MT 324 and State v. Makarchuk, 2009 MT 82: No presumption of prejudice; closing arguments are assessed in context.
- State v. Lackman, 2017 MT 127: Plain error is case-specific and rare.
- State v. Musgrove, 178 Mont. 162 (1978) and State v. Stringer, 271 Mont. 367 (1995): Examples of improper personal vouching or assertion untethered to evidence—distinguished here.

Legal Reasoning

The Court conducts a textbook Ariegwe four-factor analysis, correcting the District Court’s initial misstep of truncating the “length” calculation at the first trial date and conflating “length” with “reasons.”

Factor 1: Length of the Delay

Trigger met: 539 total days elapsed from accusation (initial appearance on March 7, 2022) to the final trial date (August 28, 2023)—339 days beyond the 200-day trigger.
Result: Presumption of prejudice arises and intensifies with time, requiring full balancing with the other factors.

Factor 2: Reasons for Delay (Attribution)

Period 1 (203 days): March 7, 2022 → September 26, 2022 (first trial setting). Attributed to the State as institutional delay (court calendar, discovery, pretrial motion cadence). Weighed less heavily against the State.
Period 2 (168 days): September 26, 2022 → March 13, 2023 (second trial setting). Attributed to Lowry, tied to a defense continuance after counsel withdrawal and reassignment. Non-institutional; weighed more heavily against Lowry.
Period 3 (168 days): March 13, 2023 → August 28, 2023 (final trial). Attributed to Lowry, based on his motion to continue and an express speedy-trial waiver. The Court expressly refuses to “split” attribution merely because the District Court granted more time than Lowry requested; the entire period counts against Lowry.
Totals: 336 days to Lowry; 203 days to the State (the latter weighted lightly). This factor favors the State.

Factor 3: Defendant’s Responses to Delay

Lowry filed his speedy-trial motion on August 9, 2023—approximately 502 days after being charged and just three weeks before trial—and had filed a speedy-trial waiver on March 6, 2023, after receiving the March trial date.
Under Ariegwe and Zimmerman, delayed assertion and acquiescence weigh against the claim and may reduce the weight accorded to the presumption of prejudice from length alone. This factor favors the State.

Factor 4: Prejudice

Oppressive incarceration: Lowry did not show oppressive pretrial incarceration attributable to this case; he was initially released on his own recognizance and later detained on other matters.
Anxiety and concern: Generalized anxiety (“this whole stuff is stressful”) is insufficient—some anxiety is inherent in criminal accusation.
Impairment of defense: Lowry cited lost video evidence and asserted difficulty gathering exculpatory material while incarcerated. The Court rejects pre-indictment loss as irrelevant to speedy-trial analysis (Betterman/Lovasco) and notes that, like in Rose, incarceration did not bar him from directing counsel to obtain evidence. No specific post-accusation impairment was shown.
Result: No concrete prejudice established; this factor favors the State.

Balancing: Although the length of delay triggers a presumption of prejudice, the reasons (dominantly defendant-caused continuances), Lowry’s waiver and late assertion, and the absence of demonstrated prejudice collectively defeat the speedy-trial claim. The District Court’s denial is affirmed.

Prosecutorial Misconduct and Plain Error

Standard: No contemporaneous objection; plain error review is discretionary and rare, reserved for errors affecting fundamental rights (Palafox; Lackman). Statements are evaluated in the context of the entire argument (Aker; Makarchuk).
Permissible scope: Prosecutors may argue inferences from the evidence and urge conviction (Lacey; Campbell), but may not assert personal belief or vouch for credibility (Green).
Application: The prosecutor said: “The State has given you the puzzle pieces to see that picture… [Lowry] is guilty, in the State’s eyes, of partner/family member assault. Please find him guilty.”
Holding: In context, the “puzzle pieces” exhortation signaled an evidence-based invitation to convict, aligning with Lacey and Campbell. The “in the State’s eyes” phrasing did not cross into impermissible personal vouching when read with the evidence-based frame. The Court distinguishes Musgrove and Stringer, where the prosecutors’ assertions were untethered to the record. No plain error review is exercised.

Impact and Practice Guidance

While noncitable, the decision is instructive on several recurring issues:

Compute the entire period and keep factors distinct: Trial courts must measure from accusation to trial and avoid conflating “length” with “reasons.” Appellate correction occurred here, but it did not change the outcome.
Defendant-caused continuances are decisive: Delays arising from defense continuances—including those following counsel withdrawal or to obtain additional discovery—will be attributed to the defendant and weighed more heavily than institutional delay.
No “splitting” when courts extend beyond the requested continuance: If the court grants a longer continuance than requested, the time still may be attributed to the defendant absent a record basis to reassign responsibility. Counsel should object or clarify attribution contemporaneously if seeking to later argue that the excess time is State-caused.
Waiver and late assertion matter: Filing a speedy-trial waiver, and waiting until the eve of trial to move to dismiss, undermines the claim by evidencing acquiescence.
Prejudice requires specifics:
- Pre-indictment delay is outside speedy-trial analysis; lost evidence from that period does not count.
- General stress is inadequate; concrete, case-specific anxiety or harm is needed.
- Impairment must be tied to post-accusation delay, with particularized showings (e.g., identified witnesses lost, precise records unavailable, and why diligence could not overcome the loss).
Closing argument boundaries: Prosecutors can vigorously argue that “the evidence shows” guilt and may urge the jury to convict. Avoid literal personal vouching (“I believe,” “I’m convinced”) and tie assertions to record evidence. Defense counsel should contemporaneously object to preserve claims and shape the context if language skirts the line.

Complex Concepts Simplified

200-day trigger: In Montana, once 200 days pass from when a defendant is accused to the trial date, courts must conduct a full speedy-trial analysis and presume prejudice—though the presumption can be overcome in the balance.
Institutional delay: Routine scheduling realities (busy court calendars, discovery timelines) attributed to the State but weighed less heavily than strategic or negligent State delays.
Attribution of delay: Each segment of time is assigned to the State or defendant. Defense continuances, even if accompanied by a “speedy-trial waiver,” are still counted against the defendant.
Acquiescence vs. assertion: Timely, persistent assertion of the speedy-trial right strengthens the claim; waivers and late motions weaken it.
Prejudice: Three interests are protected: avoiding oppressive incarceration, reducing anxiety from unresolved charges, and preventing impairment of the defense. Specific, demonstrable prejudice—especially to the defense—is crucial.
Plain error review: A safety valve allowing appellate review without objection at trial, but used sparingly and only for errors that seriously affect fundamental rights or the integrity of the proceedings.
Personal vouching vs. evidence-based argument: Prosecutors cannot inject personal beliefs about guilt or credibility; they can, however, draw forceful conclusions from admitted evidence and ask juries to convict on that basis.

Conclusion

State v. Lowry reinforces Montana’s Ariegwe framework in a practical, outcome-determinative way: when defendant-driven continuances dominate the pretrial timeline, and the State’s only attributable delay is institutional, a speedy-trial claim will ordinarily fail absent timely assertion and concrete prejudice. The Court also provides a measured response to contested closing-argument rhetoric, underscoring that context and evidentiary mooring determine whether a remark crosses into impermissible personal vouching. Although nonprecedential, the opinion is an instructive roadmap for litigants and trial courts on computing and attributing delay, assessing prejudice, and maintaining closing-argument boundaries tied to the evidentiary record.

Disposition: Affirmed. The conviction and sentence stand; no speedy-trial violation; no plain error review of the closing argument.

Note on precedential status: This is a memorandum opinion under Section I, Paragraph 3(c) of the Montana Supreme Court’s Internal Operating Rules; it is noncitable and does not serve as precedent. Its case title, cause number (DA 23‑0725), and disposition will appear in the Court’s quarterly list of noncitable cases.