STATE v. COUTURE

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e/state-v-billman-5346 Mont. 118, 194 P.3d 58.

¶ 47 We apply two standards when reviewing a district court's ruling on a speedy trial motion. First, we review the factual findings underlying the court's ruling to determine whether those findings are clearly erroneous. Ariegwe, ¶ 119. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the court has misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been made. Ariegwe, ¶ 119. Second, whether the defendant has been denied the right to a speedy trial presents a question of constitutional law, which we review de novo to determine whether the district court correctly interpreted and applied the law. Ariegwe, ¶ 119; Billman, 18 .

The State acknowledges these two standards but contends that this Court "accords trial courts deference when reviewing the speedy trial factors." This is incorrect. It is true that we will not disturb a factual finding unless it is clearly erroneous. Billman, ¶ 8. However, "whether the factual circumstances, when evaluated pursuant to the four-factor balancing test, amount to a speedy trial violation" is a question of law, Ariegwe, ¶ 119, and "[o]n questions of law, the parties are entitled to full review by the appellate court without special deference to the views of the trial court, " Johnson v. Costco Wholesale, 2007 MT 43, ¶ 18, 336 Mont. 105, 152 P.3d 727. Our observations in ¶ 17 and 23 of State v. Hardaway, 2009 MT 249, 351 Mont. 488, 213 P.3d 776, cited by the State here, do not support a third "deference" standard in speedy trial analysis. Rather, they reflect our conclusion that the district court in that case reached the correct result, although there were errors in the court's approach that did not ultimately affect the outcome of the case.

DISCUSSION

¶ 48 None of the four speedy trial factors "is either a necessary or a sufficient condition to the legal conclusion that the accused has been deprived of the right to a speedy trial. Rather, the factors must be considered together with such other circumstances as may be relevant. " Ariegwe, ¶ 102. In the present case, however, we note that Factor Two (the reasons for the delay) entails a more lengthy and involved analysis, given the number of continuances and delays. Indeed, the parties have dedicated more of their briefing to this factor than the other three, and there correspondingly are more issues requiring resolution under this factor. For these reasons, after addressing Factor One, we will address Factors Three and Four and then return to Factor Two.

I. Factor One: The Length of the Delay

¶ 49 The period between accusation and trial in this case was 924 days. Given that this is 724 days beyond the 200-day trigger date for speedy trial analysis, the District Court correctly concluded that the State carries "a heavy burden" to justify the delay (Factor Two). See Ariegwe, ¶ 62, 123. Moreover, the presumption of prejudice is substantially increased; and the court correctly concluded that the State, therefore, must make "a very persuasive showing" that Couture was not prejudiced (Factor Four). See Ariegwe, ¶¶ 56-58, 123; Billman, ¶ 18; State v. Morrisey, 2009 MT 201, ¶ 53, 351 Mont. 144, 214 P.3d 708; State v. Hendershot, 2009 MT 292, ¶ 10, 352 Mont. 271, 216 P.3d 754.

II. Factor Three: The Accused's Responses to the Delay

¶ 50 Under the third speedy trial factor, we evaluate the accused's responses to the delay, i.e., his or her acquiescence in and objections to pretrial delays. Ariegwe, ¶ 110. The issue is not simply the number of times the accused acquiesced or objected; rather, the focus is on the surrounding circumstances, such as the timeliness, persistence, and sincerity of the objections, the reasons for the acquiescence, whether the accused was represented by counsel, the accused's pretrial conduct (as that conduct bears on the speedy trial right), and so forth. See Ariegwe, ¶ 76-77, 80-82, 110. The totality of the accused's responses to the delay is indicative of whether he or she actually wanted a speedy trial. Billman, ¶ 31; Ariegwe, ¶ 79. In addition, the accused's responses provide guidance for balancing the other factors. See Ariegwe, ¶ 78, 110.

¶ 51 Analyzing Couture's responses to the delays, the District Court observed that, on one hand, he "occasionally expressed reluctance to acquiesce in delay despite the advice of counsel." For example, he resisted Nistler's request for a second mental health evaluation, he turned down a plea offer and asked to go to trial, he was reluctant to agree to Anciaux's request for a continuance of the February 2006 trial date, he stated at the October 26, 2006 hearing that he was "stressed out because this has gone on for two and a half years," and he sent a grievance to the court on November 16, 2006, stating that if Putikka was not ready for trial on November 27, he wanted new counsel. On the other hand, however, the court observed that Couture had signed three speedy trial waivers (on January 3, June 14, and September 8, 2005). In addition, the court noted that when it raised the issue of speedy trial with Couture at the July 21, 2006 status conference, he affirmed that he wished to continue the August 7 trial date. Furthermore, Couture sent the court a letter in October 2006 seeking to sever all contact with defense counsel, even though the court advised him that this would delay his trial. Thus, taking these circumstances together, the District Court concluded that Couture's responses to the pretrial delays were "inconsistent."

¶ 52 In Ariegwe, we accorded little weight to Factor Three in the overall balancing because the defendant there had been operating under the mandates of our old speedy trial test. See Ariegwe, ¶ 138. Under the old test, a defendant satisfied this factor simply by invoking his right to a speedy trial at any time prior to the commencement of trial. See Ariegwe, ¶ 137; City of Billings v. Bruce, 1998 MT 186, ¶ 57, 290 Mont. 148, 965 P.2d 866. Here, because Couture was likewise operating under Bruce, the District Court accorded little weight to Factor Three, stating that it weighed only "lightly" in his favor.

¶ 53 On appeal, Couture argues that he in fact "[c]learly" wanted to go to trial. He points out that on multiple occasions he refused to consider a plea and instead insisted on going to trial. He also contends that the waivers he filed were actually consistent with his desire to stand trial. He explains that he only agreed to waivers so that Nistler could complete his investigation (January 3 waiver), so that Dupuis could get up to speed after replacing Nistler (June 14 waiver), and so that Dupuis could litigate the suppression issue (September 8 waiver). Couture observes that, in contrast, when it appeared to him that Putikka was taking too much time to get the case to trial, he objected to the delay.

¶ 54 None of these facts, however, undermine the District Court's assessment that Couture's responses to the delays were "inconsistent," and the record supports this characterization given Couture's expressed desire, at times, to go to trial, coupled with his willingness, at other times, to delay the trial. Ultimately, though, even if Couture harbored a strong desire throughout the pretrial period to be brought to trial as promptly as possible, the evidentiary support for this in the record is simply not compelling enough to tip the balancing heavily in his favor. Rather, we agree with the District Court that Factor Three weighs "lightly" in his favor.

III. Factor Four: Prejudice to the Accused

¶ 55 Under Factor Four, we consider whether the pretrial delay prejudiced the accused in light of the interests that the speedy trial right protects: (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. Ariegwe, ¶ 111. As noted, the State bears a heavy burden to show that Couture was not prejudiced. See ¶ 49, supra.

i. Prevent Oppressive Pretrial Incarceration

¶ 56 Whether an accused's pretrial incarceration was "oppressive" depends on the particular circumstances of that incarceration. Ariegwe, ¶ 90. We consider the duration of the incarceration, the complexity of the 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. See Ariegwe, ¶¶ 90-93.

¶ 57 Couture was incarcerated for the entire 924-day period between arrest and trial, which the District Court stated would normally support a finding of prejudice but for three considerations: Couture never asked the court to set bond or otherwise consider releasing him before trial; Couture was responsible for the vast majority of the delay; and the conditions of his incarceration were not oppressive. While Couture challenges this analysis on several grounds, we conclude that the court's ultimate determination is supported by the record.

¶ 58 First, regarding the duration of the incarceration, 924 days (roughly two and a half years) is an extremely long time to be incarcerated on unproven charges. Indeed, the District Court repeatedly expressed concern during the pretrial period about the fact that Couture was incarcerated. The duration of Couture's incarceration, therefore, supports a finding of oppressiveness.

¶ 59 On the other hand, however, we have said that the length of pretrial incarceration that is "oppressive" is less for a relatively simple offense than it is for a complex charge. Ariegwe, ¶ 91. Thus, in Billman, we held that the "lengthy" incarceration of 278 days, coupled with the relatively simple charges (felony DUI and two misdemeanor driving offenses), established that the pretrial delay had prejudiced the defendant. Billman, ¶ 41. But here, as the State points out, the charges of deliberate homicide and tampering with evidence were more complex, as evidenced by the extensive defense investigations. Couture also obtained multiple mental health evaluations; and at the January 27, 2005 hearing, he agreed with Nistler, on the record, that obtaining a private psychiatrist to assist in his defense was "in [his] best interest," even though he would remain in custody for a longer period of time. The complexity of the charged offenses and the need to explore plausible defenses to those charges justified a longer period in which to prepare for trial, a correspondingly longer period of pretrial delay, and therefore a longer period of pretrial incarceration, given that Couture was not out on bail.

¶ 60 In this connection, we agree with Couture that his failure to seek bail is not particularly significant. The reason he did not do so was because he did not have sufficient resources to meet any bail obligation imposed on a deliberate homicide charge. Nevertheless, we have previously indicated that bail and the defendant's inability to post it may be a relevant circumstance to consider under this prong of the analysis-though it is by no means a tipping point. There are various factors which go into the determination of bail. Among other things, the bail amount must be "commensurate with the nature of the offense charged" and "sufficient to ensure the presence of the defendant in a pending criminal proceeding." Section 46-9-301(1), (5), MCA. Thus, in State v. Keyes, 2000 MT 337, ¶ 18, 303 Mont. 147, 15 P.3d 443, we held that "[a]s to any prejudicial effects of Keyes' lengthy pretrial incarceration, there can be no doubt in this case that a high bail and resulting incarceration were necessary in light of the very serious offenses with which Keyes was charged and his demonstrated ability and willingness to abscond from justice." In other words, the fact that the accused remained incarcerated due to a high bail is less likely to be deemed "oppressive" when the record establishes that the high bail was necessitated by the nature of the offense charged or the accused's status as a high flight risk. In the present case, had Couture requested bail, he concedes that it would have been quite high, given the charge of deliberate homicide. Hence, his resulting incarceration, due to the serious nature of the offense with which he had been charged, weighs against a finding of oppressiveness.

¶ 61 Lastly, if the duration of a defendant's incarceration pending trial was due in part to a deliberate attempt by the prosecution to delay the trial, this fact would weigh in favor of the conclusion that the incarceration was unduly prolonged and, thus, was oppressive. Couture in fact makes this point on appeal, contending that his stay of roughly nine months in solitary confinement was oppressively lengthy due to the delays in getting his case to trial, which he contends were attributable to the State. We conclude below under Factor Two, however, that the majority of the pretrial delay-and, correspondingly, the majority of Couture's pretrial incarceration-is attributable to the defense, not the State. This fact weighs against a finding of oppressiveness.

¶ 62 Aside from the duration of and the reasons for the incarceration, the other primary consideration here is the conditions of the incarceration. "When analyzing the conditions of the incarceration to assess oppressiveness, we focus on the condition of the facilities and how they impact the accused, rather than solely on the condition of the accused." Billman, ¶ 41. As noted, Couture complains of his stay in solitary confinement. Yet, his placement in solitary was at his own request because he "couldn't handle" being around the other inmates in the general population. Moreover, he conceded at the speedy trial hearing that he had access to a recreation room, received three meals a day, and was provided hot water, showers, light, and other necessities, including medical treatment. Likewise, Michael Sargeant (Lake County Undersheriff during Couture's incarceration) testified at the hearing that the jail adhered to special dietary guidelines and provided bathing, laundry, television, board games, and recreational opportunities-all of which weighs against a finding of oppressiveness.

¶ 63 For the foregoing reasons, we conclude that while Couture's incarceration was quite lengthy, the circumstances of the incarceration were not oppressive. Therefore, this factor provides little support for a finding of prejudice resulting from the pretrial delay.

ii. Minimize the Accused's Anxiety and Concern

¶ 64 In evaluating anxiety and concern, the focus is on the ways in which the presence of unresolved criminal charges disrupted the accused's life. A certain amount of anxiety and concern is inherent in being accused of a crime. Also, the speedy trial guarantee is designed to shorten the disruption of the accused's life, not to eliminate it altogether. Thus, the critical question is whether the delay in bringing the accused to trial "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.

¶ 65 Here, the District Court found that Couture's anxiety and stress appeared to rise beyond the level one would expect from anyone facing such serious charges. Although he suffered from anxiety and depression prior to incarceration, the court observed that his feelings of anxiety, stress, and depression worsened as his case was delayed. The court noted that on one occasion, Couture suffered a panic attack and believed he was going to die. He required medication and was twice hospitalized. In addition, he spent more than 275 days of his pretrial incarceration in solitary confinement. For these reasons, the court weighed this factor in Couture's favor, but only "lightly" in his favor. The court reasoned that the intensity of Couture's anxiety and concern "was largely of his own making" because he had asked to be placed in solitary confinement and because most of the pretrial delay was attributable to him.

¶ 66 On appeal, Couture argues that this factor should have weighed "much more strongly" in his favor, while the State argues that, "[i]f anything, this factor should have weighed in favor of the State." Neither party, however, has demonstrated that the District Court's findings are clearly erroneous. And on the record before us, we agree with the court that this factor weighs lightly in Couture's favor on the question of prejudice.

iii. Limit the Possibility that the Defense Will Be Impaired

¶ 67 Under the third interest, we consider issues of evidence, witness reliability, and the accused's ability to present an effective defense. Ariegwe, ¶ 98. This is the most difficult form of speedy trial prejudice to prove because time's erosion of exculpatory evidence and testimony can rarely be shown. Ariegwe, ¶ 99. Thus, the accused's failure to submit affirmative proof of prejudice is not fatal to a speedy trial claim; and, in the absence of affirmative proof of impairment, we focus on the other speedy trial factors to assess whether the pretrial delay has prejudiced the accused's defense. Billman, ¶ 47.

¶ 68 The District Court reasoned that the pretrial delay in this case did not prejudice Couture's defense, but rather benefitted it. The basis for this determination was that the loss of the May 17, 2004 search warrant and application resulted in the suppression of incriminating statements and other evidence. Thus, the court weighed this factor heavily in favor of the State. We agree with Couture, however, that the court ascribed too much weight to the suppression issue. For one thing, the reason the evidence was suppressed was not because of the lengthy pretrial delay. Rather, it was because the State failed to produce the documents when discovery was first requested in May 2004 and then lost the search warrant and application in February 2005. Moreover, while the District Court initially suppressed all the evidence obtained as a result of the May 17 search warrant, including Couture's statements and the evidence obtained from the May 18 search warrants, it later ruled that all of the evidence obtained from the May 18 search warrants was admissible. Finally, while it is true that Couture fortuitously benefitted from the fact that defense counsel did not press for the May 17 search warrant and application until five months after these documents had been lost, this benefit simply cannot be attributed to the entire 924-day delay as the court did here.

¶ 69 On the other hand, the State directs our attention to State v. Morrisey, 2009 MT 201, ¶ 71, 351 Mont. 144, 214 P.3d 708, where we reasoned that

a substantial portion of the delay was requested by Morrisey for the express purpose of conducting investigations, having evidence tested, locating and interviewing potential witnesses, and preparing his defense to the charges. If anything, therefore, the record suggests that Morrisey's ability to prepare his defense was benefited, not prejudiced, by the continuances in his trial.

The State argues, and we agree, that the same reasoning applies here. Couture requested multiple continuances for the express purpose of conducting investigations, interviewing witnesses, obtaining mental health evaluations, and otherwise preparing his defense. His defense presumably benefited from having the time to accomplish these objectives. The State also points out that one of its witnesses (the lead detective) died during the pretrial period. Cf. Barker v. Wingo, 407 U.S. 514, 521, 92 S. Ct. 2182, 2187 (1972) ("As the time between the commission of the crime and trial lengthens, witnesses may become unavailable or their memories may fade. If the witnesses support the prosecution, its case will be weakened, sometimes seriously so."). For these reasons, we are not persuaded that Couture's ability to mount a defense was impaired significantly (if at all) by the delay in bringing him to trial.

iv. Summary

¶ 70 We conclude that the State has overcome the presumption of prejudice in this case. Couture's pretrial incarceration was unquestionably lengthy, and his anxiety and concern were aggravated by the delay. But the incarceration was not oppressive, and he has not demonstrated an impaired ability to present an effective defense as a consequence of the delay. In fact, many of the continuances were sought, and granted, for purposes of defense preparations. Accordingly, Factor Four weighs in favor of the State.

IV. Factor Two: The Reasons for the Delay

¶ 71 We now consider the reasons for the delay in this case. To do so, we must identify each period of 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. Ariegwe, ¶ 63-67; Billman, ¶ 20. Because the question is one of "delay," we are not concerned with actions or events that did not result in a delay of the trial. See Ariegwe, ¶ 63. Thus, for example, a request for additional time to file a brief is not counted against the party unless it results in a postponement of the trial.

¶ 72 With respect to delays that are attributed to the prosecution, any that were caused in bad faith-such as a deliberate attempt to hamper the defense-weigh heavily against the State. Ariegwe, ¶ 67. Delay caused by negligence or lack of diligence occupies a middle ground, but still "`falls on the wrong side of the divide between 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)); see also e.g. State v. Lacey, 2010 MT 6, ¶ 16-19, 355 Mont. 31, 224 P.3d 1247. Institutional delay-i.e., delay 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-is attributable to the State, but weighs less heavily against it than delay caused by bad faith, negligence, or lack of diligence. Ariegwe, ¶ 68; Billman, ¶ 20. Finally, "valid reasons" for delay, such as a missing witness, are weighed least heavily against the State. Ariegwe, ¶ 70; but see Billman, ¶ 24-27. Delays attributed to the defense are classified under a similar approach. Thus, delay caused by the accused to avoid being brought to trial or for tactical reasons weighs more heavily against him than does delay caused by a missing witness. Ariegwe, ¶ 71.

¶ 73 At the outset, we observe that our task in conducting this analysis in the present case is substantially more difficult due to the fact that no trial date was set for the first 528 days of the 924-day pretrial period. There were numerous continuances during those 528 days, yet it is virtually impossible to determine whether a given continuance granted for purposes of filing a brief or conducting further investigations actually caused a delay in the trial, since no trial date existed. Likewise, in a case such as this, where there were multiple delaying forces at work-such as the court's plea agreement policy, defense investigations, the State's loss of the May 17, 2004 search warrant and application, and multiple replacements of defense counsel-it is difficult to evaluate a particular delaying force's precise impact on the case when, again, no trial date had been set.

¶ 74 For these reasons, it is essential that a firm trial date be set at the defendant's arraignment and that a firm trial date be maintained all the way to trial. Doing so serves several critical purposes. For one thing, as just noted, it facilitates an analysis of which actions and events in the course of trial preparations actually resulted in delays of the trial and who was responsible for them. It also gives the parties a firm goal they must work toward-a deadline by which preparations are to be completed. In this regard, a firm trial date enables testing facilities, such as the State Crime Lab, to prioritize which items of evidence need to be tested first. Likewise, it gives retained experts notice of when their reports need to be completed. In short, a firm trial date provides the impetus for the parties to prepare their cases diligently for trial and enables the trial court and this Court to gauge whether the parties are holding to their obligations. In addition, given the reality of crowded court dockets, trials often must be scheduled for a date weeks or months in the future. Here, for example, the District Court observed at the July 21, 2006 status conference that it had a trial date available on August 28 and that the next available date after that would probably be in November. Maintaining a trial date at all times allows this "docket delay" of a few weeks or several months to pass simultaneously with the time the parties spend conducting investigations and research, filing briefs, obtaining evaluations, waiting on test results, and otherwise preparing their cases. Indeed, the notion that a trial date should not be set until certain pretrial events have occurred (such as the omnibus hearing) or until all test results have been received is a fallacy not only because, in the absence of a firm deadline, the parties are left to complete their preparations at an arbitrary-and often protracted-pace, but also because, ultimately, not everything gets done and more time is always needed. Thus, as stated, it is essential that a firm trial date be maintained from arraignment to trial.

This approach is not exclusive to the Twentieth Judicial District. See e.g. State v. Rose, 2009 MT 4, 348 Mont. 291, 202 P.3d 749.

¶ 75 Also hindering our analysis under Factor Two is the lack of proper support for many of the requested continuances in this case. A motion for a postponement must disclose the basis therefor, or it is presumed to be unjustified and is weighed heavily against the proponent (unless evidence elsewhere in the record establishes otherwise). Ariegwe, ¶ 129. Moreover, there must be a proper showing that the postponement is, in fact, justified. Simply stating in a motion or at a status conference (as occurred here on multiple occasions) that "additional time is needed" for something, such as interviewing witnesses, conducting investigations, filing a brief, or reviewing the evidence, is utterly insufficient. If time has already been given for these purposes, it is necessary that a justification be provided for why "additional" time is needed. Again, we are concerned here with the fundamental right to a speedy trial, and trial courts should deny any request for a continuance that is not supported by a concrete showing of good cause for the delay. Unfortunately, that was not done in this case, and thus the record does not establish whether the defense's various requests for "additional time" were justified because, for example, a witness needing to be interviewed was out of state, or were not justified because, for example, defense counsel had not been diligent in his or her duties.

¶ 76 In this regard, three of Couture's attorneys requested continuances or extensions based specifically on the fact that they were busy with other cases. And on appeal, Couture makes a point of noting that Nistler had "between 100 and 120 open files" during the period he represented Couture, Anciaux had "between 80 and 100 felonies in his case load" when he was appointed to represent Couture, and Putikka "had a private practice in Thompson Falls, Montana, some 97 miles from Poison, and had other homicide cases pending." None of these facts, however, constituted "good cause" for delaying Couture's trial. "Defense counsel should not carry a workload that, by reason of its excessive size, interferes with the rendering of quality representation, endangers the client's interest in the speedy disposition of charges, or may lead to the breach of professional obligations." ABA Standards for Criminal Justice: Prosecution Function and Defense Function, Standard 4-1.3(e) (3d ed., ABA 1993). "Good cause" is a factual circumstance or event that occurs notwithstanding counsel's diligent efforts to prepare the defense for trial. For example, the fact that a critical witness has been called away on military duty would be good cause for granting a promptly filed motion for a continuance. Cf. Billman, ¶ 27. The actual showings of good cause in this case are few.

Al though we have not adopted the ABA Standards for Criminal Justice outright, we do agree with Standard 4-1.3(e), as well as Standard 4-1.3(a) ("Defense counsel should act with reasonable diligence and promptness in representing a client.") and Standard 4-1.3(b) ("Defense counsel should avoid unnecessary delay in the disposition of cases. Defense counsel should be punctual in attendance upon court and in the submission of all motions, briefs, and other papers. . . .").

¶ 77 As a final preliminary matter, we note that at various points throughout the pretrial period, the court, defense counsel, and the prosecutor all acknowledged that Couture had the right to conduct investigations and otherwise prepare a defense to the charges, which is a corollary to the fundamental right to defend. Mont. Const., art. II, § 24; see also State v. Knowles, 2010 MT 186, ¶ 49, 357 Mont. 272, 239 P.3d 129; State v. Egelhoff, 272 Mont. 114, 123, 900 P.2d 260, 265 (1995), rev'd on other grounds, Montana v. Egelhoff, 518 U.S. 37, 116 S. Ct. 2013 (1996); Taylor v. Illinois, 484 U.S. 400, 408-09, 108 S. Ct. 646, 652-53 (1988). In fact, Putikka noted at the October 26, 2006 hearing that Couture had not only the right to a speedy trial, but also the right to a fair trial. This is correct, and the District Court certainly was justified, in light of Anciaux's withdrawal from the case, in granting Putikka time to familiarize himself with those parts of the defense that Anciaux had handled. But, as stated above, defense counsel has a duty to conduct defense preparations diligently and to ensure that the defendant's right to a speedy trial is honored; and neither the defense nor the prosecution can be permitted to hijack the pretrial proceedings to accommodate a lack of sedulity or for other improper purposes.

¶ 78 Whether that is in fact what occurred in the present case we cannot say on the record before us. What is clear, though, is that the District Court accommodated repeated requests to postpone hearings, extend deadlines, and continue the trial based on vague assertions about more time being needed. The record reflects that the court was concerned about Couture's right to prepare a defense, but also about the ramifications the delays were having on his right to a speedy trial. And we commend the court for trying to make the best of a difficult situation in which it had to replace defense counsel three times and, in so doing, had to give new counsel time and leeway to get up to speed on the case. But it must be remembered that "`the primary burden' to assure that cases are brought to trial is `on the courts and the prosecutors. `" Ariegwe, ¶ 72 (quoting Barker v. Wingo, 407 U.S. 514, 529, 92 S. Ct. 2182, 2191 (1972)). Furthermore, "society has a particular interest in bringing swift prosecutions, and society's representatives are the ones who should protect that interest." Barker, 407 U.S. at 527, 92 S. Ct. at 2190. Thus, the trial court has an affirmative constitutional obligation to bring the defendant to trial in a timely manner. Ariegwe, ¶ 65. And to that end, it is entirely appropriate for the court to set deadlines and to hold the parties strictly to those deadlines unless a continuance is justified by a concrete showing of good cause for the delay. Cf. United States v. Mitchell, 744 F.2d 701, 704 (9th Cir. 1984) ("Denial [of a motion for a continuance] amounts to a constitutional violation only if there is an unreasoning and arbitrary `insistence upon expeditiousness in the face of a justifiable request for delay. `"(quoting Morris v. Slappy, 461 U.S. 1, 11-12, 103 S. Ct. 1610, 1616 (1983))). The trial judge is the captain of the ship; and it goes without saying that the ship will go in circles if the crew is running around the deck with no firm marching orders.

In the present case, the District Court was willing to grant certain continuances on the condition that Couture file a speedy trial waiver. We disagree with this approach for three reasons. First, a defendant cannot be allowed to delay trial through the mere expedient of filing speedy trial waivers. Rather, he must show good cause for a requested continuance. Second, waivers are somewhat inapt in any event given our approach under Factor Two, which is to analyze the specific cause and motive for each period of delay. Ariegwe, ¶ 63-67, 72. If the defendant caused a particular delay, it will attributed to him regardless of whether he signed a waiver for that period. Third, if the defendant establishes good cause for a continuance, he cannot be required to waive his right to a speedy trial in order to obtain the continuance any more than he can be required to waive his right to counsel or his privilege against self-incrimination to obtain the continuance. Of course, the defendant may acknowledge on the record that a specific period of delay will be attributable to him for speedy trial purposes. But the court cannot force him to waive his right to be brought to trial promptly in order to exercise his right to prepare a defense. See State v. Bailey, 201 Mont. 473, 480, 655 P.2d 494, 498 (1982); Simmons v. United States, 390 U.S. 377, 394, 88 S. Ct. 967, 976 (1968); see also Doyle v. O'Fallon, 2010 U.S. Dist. LEXIS 23897 at *19 (D. Mont. Feb. 5, 2010) ("A defendant cannot be forced to abandon his right to a fair trial to realize his right to a speedy one."), adopted, 2010 U.S. Dist. LEXIS 23894 at *2 (D. Mont. Mar. 15, 2010).

¶ 79 With the foregoing points in mind, we now turn to the specific delays in this case.

1. Arrest (May 17, 2004) to First Trial Setting (Jan. 9, 2006): 602 Days

¶ 80 Due to the unique procedural history of this case-in particular, the lack of a firm trial setting for more than half the pretrial period-it is necessary for purposes of this section to determine what actions and events delayed the setting of the first trial date. Initially, there is no question that the 10 days between Couture's May 17 arrest and the first scheduled arraignment (May 27) is institutional delay attributable to the State.

¶ 81 Couture continued his arraignment six times from May 27 to September 9, a total of 105 days, in order to obtain a mental health evaluation through the State Hospital. We agree with the District Court that this delay was attributable to Couture. Couture argues, however, that the 105 days were attributable to the State as "built-in delays inherent in [the] criminal justice system." He points out that a defendant is entitled to "a reasonable time" to enter his plea (§ 46-12-203, MCA), and he maintains that he required additional time before entering his plea to obtain the mental health evaluation, since a person who is not competent to proceed may not be tried (§ 46-14-103, MCA). Yet, the fact that the defendant must be competent to proceed does not make the delay for obtaining a mental health evaluation institutional delay. A defendant must also be given reasonable time to prepare a defense to the charges, which could be considered a "built-in delay inherent in the criminal justice system," but this does not mean that delay for defense investigations is institutional delay. Institutional delays are caused by crowded court dockets and other systemic circumstances beyond the control of the prosecutor and the accused, such as a backlog at the State Crime Lab. See Ariegwe, ¶ 68, 130. Of course, had the State Hospital not been diligent in conducting Couture's evaluation, then such delay would have been attributable to the State. But there is no showing of a lack of diligence here.

¶ 82 Couture also argues that the postponements of his arraignment should not have been counted against him since they did not cause any corresponding postponements of a trial date. However, setting aside the Twentieth Judicial District Court's particular trial setting procedures, we do not expect district courts in general to set a firm trial date prior to the defendant's entry of a not guilty plea. Thus, it is reasonable to conclude that when a defendant postpones the entry of his plea, as he is statutorily authorized to do, he concomitantly delays the first trial date. We therefore are not persuaded that Couture's continuances of his arraignment did not result in a delay of his trial.

Citing State v. Rose, 2009 MT 4, "¶ 49, 348 Mont. 291, 202 P.3d 749, the State contends that "this Court allocates delay from continuances even if no trial date has been set." Obviously, this is only true if the continuance somehow results in a "delay" of the trial, such as a continuance of the arraignment, which was the situation addressed in ¶ 49 of also and is the situation addressed here. But under Factor Two, we do not consider actions or events that did not result in a delay of the trial. See Ariegwe, ¶ 63. To the extent Rose indicates otherwise, we disagree, and so clarify.

¶ 83 Next, the District Court correctly attributed the 28 days from the September 9 arraignment to the first scheduled omnibus hearing (October 7) to the State as institutional delay. Nobody disputes this attribution.

¶ 84 The next logical period is from October 7, 2004, to January 27, 2005, the date on which Nistler announced that the plea proposal process had been exhausted and the defense embarked on a new defense theory (a mental state or mitigation defense). During this period of 112 days, Couture repeatedly continued the omnibus hearing in order to conduct investigations and explore the possibility of a plea agreement. The District Court attributed this delay to Couture, but we agree with Couture that the delay is attributable to the court's plea agreement policy. In fact, Nistler specifically cited that policy and the need to exhaust the plea proposal process before proceeding to omnibus as the reason for seeking the continuances. As explained above, the court's plea agreement policy results in seriatim requests for continuances of the omnibus hearing, which the court routinely grants and which, in turn, result in de facto continuances of the trial date. See ¶ 6-8, supra. In this case, the omnibus hearing was held 413 days after Couture entered his not guilty pleas. This approach conflicts with statutory procedures, which state that the court "shall" hold an omnibus hearing " whithin a reasonable time following the entry of a not guilty plea but not less than 30 days before trial." Section 46-13-110(1), MCA (emphasis added). It is also inconsistent with the court's affirmative constitutional obligation to move the case along toward trial in an expeditious manner. The State points out that Couture filed a speedy trial waiver (at the court's insistence) on January 3. But this does not alter the fact that the court's plea agreement policy, together with its policy of not setting a firm trial date until the omnibus hearing, is what caused this built-in, systemic delay in the first place. We therefore attribute the 112 days to the State, though we will weigh that delay the same as we do institutional delay.

¶ 85 The next segment of delay occurred between January 27 and May 19, 2005, a total of 112 days. During this period, Couture arranged for a second mental health evaluation in order to determine whether a mental state or mitigation defense was plausible, and he acknowledged on the record at the January 27 hearing that this delay could not be held against the State for speedy trial purposes. We agree with the District Court that the delay is attributable to Couture. Couture argues, however, that the court's plea agreement policy "dictated" Nistler's actions in seeking continuances of the omnibus hearing during this period, but the record establishes otherwise. On January 27, Nistler reported that "[w]e have exhausted the plea proposal process at this point." On March 17, Nistler stated that Couture "has rejected any plea proposals, and it appears that the probability is great that it's headed to trial." And on April 14, Nistler noted that Couture "did not wish to accept the plea proposals from the State and wanted this matter to proceed to trial," where "the primary defense would be a mental defense." Hence, there is no merit to the contention that the omnibus hearing needed to be continued in order to exhaust the possibility of a plea agreement. We also are not persuaded by Nistler's insistence at the April 14 hearing that Couture could not go through omnibus until they received Dr. Stratford's report. In fact, the parties could have proceeded with the omnibus hearing on January 27, at which time Couture could have given notice that he was investigating his fitness to proceed and a mental state defense, and that he would file proper notice upon receiving the report from Dr. Stratford. See §§ 46-13-110(3)(f), 46-15-323(3), MCA. Simply waiting to receive that report was not good cause for delaying the omnibus hearing, particularly since delaying the omnibus hearing meant delaying the setting of the first trial date. We therefore weigh the 112 days heavily against Couture.

It should be noted here that delay caused by defense counsel is generally charged against the defendant. See State v. Morrisey, 2009 MT 201, ¶ 55 n. 10, 351 Mont. 144, 214 P.3d 708 (citing Vermont v. Brillon, 129 S. Ct. 1283, 1290-91 (2009)).

¶ 86 The next delay of 84 days from May 19, 2005, to August 11, 2005, was caused by Couture's request for different counsel and the appointment of Dupuis to replace Nistler. The District Court correctly attributed this delay to Couture.

¶ 87 Beginning on August 11, 2005, and running through October 16, 2006, there were numerous continuances of the omnibus hearing and, later, the trial date as a result of the discovery/suppression issue. Recall that the State failed to file the return on the May 17, 2004 search warrant (§ 46-5-301(1), MCA), failed to produce the search warrant and application in response to Nistler's May 20, 2004 discovery request (§ 46-15-322, MCA), and thereafter lost both documents. While it appears from the record that these omissions were not due to bad faith, but rather were the inadvertent result of the lead detective's illness, the fault still lies with the State. Act I of the ensuing discovery/suppression saga began August 11 and ended October 26, when the District Court issued its first order suppressing all evidence obtained from the May 17 search warrant. Act II ran from October 26 to July 17, when the court issued its second order clarifying that any evidence which was discovered from an independent source or which would have been inevitably discovered would not be suppressed. Finally, Act III ran from July 17 to October 16, when the court issued its third order clarifying that all evidence seized under the May 18 search warrants would not be suppressed. Having created this situation in the first place, the State bears a measure of responsibility for the resulting delays. However, as detailed below, the defense is also responsible for a substantial portion of them.

¶ 88 Turning to the 77 days from August 11, 2005, when the omnibus hearing was first continued because of the discovery/suppression issue, to October 27, 2005, when the omnibus hearing was finally held, the District Court assigned 27 days to the State for lack of diligence and 50 days to Couture based on his September 8 speedy trial waiver. Couture argues, and we agree, that all 77 days are attributable to the State. First, as just noted, the delay associated with the discovery/suppression litigation-especially the initial period leading up to the court's first suppression ruling on October 26-was created by the State's failure to comply promptly and fully with its obligations under the search-and-seizure and discovery statutes. Second, we disagree with the District Court's premise that "we can't get to omnibus until we can get a resolution of the motion to suppress on this matter." Suppression issues do not have to be resolved before omnibus, see § 46-13-110(3)(i), MCA, and they certainly do not have to be resolved before a trial date can be set. Thus, there was no basis for requiring a waiver from Couture in this instance. For that matter, Couture could not be required to waive his right to a speedy trial in order to exercise his rights to discovery and against unreasonable searches and seizures. See State v. Bailey, 201 Mont. 473, 480, 655 P.2d 494, 498 (1982). Lastly, the continuance of the September 8 hearing to September 22 was sought by Couture and the prosecution "to submit briefs and prepare for the hearing." The prosecutor then filed his initial brief on September 21 at 4:07 p.m., which left Couture without adequate time to file his response; and as a result, the hearing had to be continued to October 27. Clearly, Couture did not intend to waive delay caused by the prosecution. As we have previously held, "delay requested by a particular party may be attributable to the other party." Ariegwe, ¶ 66; see also e.g. State v. Hardaway, 2009 MT 249, ¶ 20, 351 Mont. 488, 213 P.3d 776 (although Hardaway moved for a continuance, the delay was attributable to the State due to its failure to provide the CI's identity); State v. Keyes, 2000 MT 337, ¶ 13-14, 303 Mont. 147, 15 P.3d 443 (the time associated with Keyes' application for a writ of supervisory control was attributable to the State, given that the necessity of the application and the resulting delay were due to the confusing nature of the charges under which the State sought to prosecute Keyes). Here, the 77-day delay was directly the result of the State's lack of diligence regarding the May 17, 2004 search warrant.

¶ 89 Next, the period of 74 days from the October 27, 2005 omnibus hearing to the first trial setting (January 9, 2006) began with the prosecutor's motion for clarification of the suppression ruling. The District Court assigned the first 7 days of this delay to the State as institutional delay. Then, in early November, the court had to replace Dupuis and give Anciaux and Putikka some time to get up to speed, which was delayed when Dupuis did not promptly turn over her file on Couture. Since Couture neither caused the delay of 67 days nor had control over the situation, the District Court attributed it to the State as institutional delay. We conclude, however, that the particular circumstances surrounding Dupuis' removal as Couture's counsel require a different approach for purposes of this case only. Dupuis was removed after the District Court learned that she had engaged in unlawful conduct in an unrelated matter, which in turn led to the filing of criminal charges against her as well as her suspension and, ultimately, disbarment from the practice of law in Montana. The court then promptly took steps to minimize the impact of Dupuis' removal by appointing two attorneys to take over Couture's defense. Under these unique, fact-specific circumstances, we conclude that the delay of 67 days should not weigh against the State or Couture.

2. First Trial Setting (Jan. 9, 2006) to Sixth Trial Setting (Oct. 30, 2006): 294 Days

¶ 90 On December 8, 2005, Anciaux advised the court that he now had the complete file from Dupuis but that the January 9 trial date was unfeasible because he and Putikka needed time to review the file and prepare for trial, and because the State's motion for clarification of the suppression ruling needed to be resolved before trial. The court thus reset the trial for February 27, a postponement of 49 days. In its speedy trial analysis, the District Court attributed 10 of those days to institutional delay and 39 of the days to Couture. We agree with Couture, however, that having to continue the trial date from January 9 to February 27 was the direct consequence of having to replace Dupuis and her delay in turning over her file on Couture. As such, given the unique, fact-specific circumstances of Dupuis' removal (noted above), we will not weigh the 49 days against the State or Couture in the Factor Two analysis.

¶ 91 Regarding the subsequent continuances from February 27 to April 24 to June 12 to August 7 (161 days), all of those were at the behest of the defense. As for the reasons for those continuances, Putikka explained that he had another murder trial in March and would be at training in June. As already noted, however, the fact that defense counsel has a hectic schedule does not in itself constitute good cause for delaying a trial. See ¶ 76, supra. Anciaux and Putikka also explained that more time was needed to conduct further investigations, interview additional witnesses, research additional motions, and otherwise prepare the defense. Yet, for the most part, none of these assertions was backed up with a concrete showing of why the additional time was needed, which was especially important here given that Nistler and Dupuis had already incurred significant delay for the same purposes (investigations, interviews, etc.) and since the court had appointed two attorneys to take Dupuis' place for the express purpose of moving the case quickly to trial. Thus, the 161 days weigh against Couture.

¶ 92 Couture contends, however, that these continuances can be traced to the State's motion for clarification and, even further back, to the State's loss of the May 17, 2004 search warrant and application. Yet, he was given reasonable time to investigate, research, and address the motion for clarification and the suppression issue. As just noted, no concrete showings of good cause were made for spending an additional five months on the matter.

¶ 93 Lastly, the delay from the August 7 trial date to the October 30 trial date (84 days) was due to the court's second suppression ruling, which clarified that any evidence which was discovered from an independent source or would have been inevitably discovered would not be suppressed. According to Anciaux, this ruling "changed the focus of the defense" and time was needed "to prepare for what we believe the true defense in this is now." Likewise, the prosecutor wanted more time to evaluate the ruling, and to this end he filed another motion for clarification. These 84 days, therefore, are attributable to both the State and the defense as legitimate delay necessary to modify their cases in light of the court's new ruling on the suppression issue.

3. Sixth Trial Setting (Oct. 30, 2006) to Eighth Trial Setting (Nov. 27, 2006): 28 days

¶ 94 Trial had to be postponed from October 30 to November 13 (14 days) as a result of the prosecution's Notice of Additional Witnesses. The addition of Emmanual Little Wolf to the prosecution's list of witnesses led Anciaux to withdraw as defense counsel due to a conflict of interest. The District Court correctly attributed this delay to the State as lack of diligence for the following reasons: the court suppressed Couture's statements in its July 17, 2006 suppression ruling, and thus the prosecutor knew as of that date that it might need to call Little Wolf, yet it did not give notice of this fact until October 11 (86 days later, and 19 days before trial); and the prosecution knew or should have known that calling Little Wolf would create a conflict of interest for Anciaux. The State does not dispute this attribution.

¶ 95 The final trial postponement from November 13 to November 27 (14 days) was necessary because two of the State's witnesses were going to be out of state during the week of November 13. The District Court lumped these 14 days together with the State's lack of diligence in not promptly filing notice of Little Wolf, and the State inexplicably does not dispute this attribution on appeal. Nevertheless, our task here is to determine the specific cause and motive for each period of delay, Ariegwe, ¶ 67, and delay caused by a missing witness is a valid reason for delay, Ariegwe, ¶ 70. Thus, we attribute these last 14 days to the State as valid reasons for delay.

4. Summary

¶ 96 In sum, the State is responsible for 262 days of pretrial delay, which are attributed as follows: 14 days for valid reasons, 91 days for lack of diligence, and 157 days weighted as institutional delay. Couture is responsible for 462 days of delay, which are attributed as follows: 105 days for the first mental health evaluation, 112 days for the second mental health evaluation, 84 days to replace Nistler, and 161 days for further defense preparations. The State and Couture jointly incurred 84 days of valid delay. And lastly, the delay which resulted from having to replace Dupuis (116 days) is not being weighed against either party due to the unique, fact-specific circumstances of her removal and the District Court's efforts to minimize that delay ( see ¶ 89, supra).

¶ 97 The only delay weighing significantly against the State is the 91-day delay caused by its lack of diligence. The rest of the State's delay was institutional in nature or was for valid reasons. All of Couture's delay was incurred for purposes of defense preparations. Of that delay, we are not persuaded that it was necessary to postpone the omnibus hearing 112 days in order to obtain the second mental health evaluation. Likewise, Couture failed to establish good cause for the 161 days of delay which resulted from continuing the second, third, and fourth trial settings. We therefore conclude that Factor Two weighs strongly against the conclusion that his right to a speedy trial was violated.

V. Balancing

¶ 98 We last determine whether the defendant was deprived of his right to a speedy trial in light of the unique facts and circumstances of the case and the weight assigned to each of the four factors discussed above. State v. Morrisey, 2009 MT 201, ¶ 73, 351 Mont. 144, 214 P.3d 708. Here, the pretrial delay of 924 days was substantial, and Couture was incarcerated that entire period. Moreover, his anxiety and concern were aggravated by the delay, and his responses to the delays (Factor Three) weigh lightly in his favor. On the other hand, the conditions of his incarceration were not oppressive, and he requested much of the delay so that he could conduct investigations, interview witnesses, and otherwise prepare his defense. While some of the delay is clearly attributable to the District Court's plea agreement policy and to lack of diligence by the State, we are not persuaded by Couture's attempts to pin most of the delay on these two sources. The record reflects that half the delay in this case was attributable to Couture alone, and a substantial portion of that weighs heavily against him in that it was not supported by concrete showings of good cause. Taking these circumstances together, we hold that Couture's right to a speedy trial was not violated.

CONCLUSION

¶ 99 This case demonstrates, unfortunately, what happens when each participant in the criminal justice system fails to meet his or her respective obligations. Cases drag on endlessly from continuance to continuance; evidence and documents are lost; witnesses cannot be located; the accused sits in jail "deteriorating" and becoming increasingly frustrated with counsel; and the prosecution and the defense adopt a "stream of consciousness" approach, raising one issue and resolving that, then raising another and resolving that, followed by another, and then another. Meanwhile, the right to a speedy trial swings aimlessly in the breeze.

¶ 100 We reiterate that the right to a speedy trial is a fundamental right under the Sixth and Fourteenth Amendments to the United States Constitution and Article II, Section 24 of the Montana Constitution. Ariegwe, ¶ 20; Barker, 407 U.S. at 515, 92 S. Ct. at 2184. Accordingly, criminal prosecutions must move at a deliberate pace and with orderly expedition. See Ariegwe, ¶ 91; Barker, 407 U.S. at 521, 92 S. Ct. at 2187. It is the obligation of the prosecutor and the court to try the accused in a timely manner, and this duty requires a good-faith, diligent effort to bring him to trial quickly. Ariegwe, ¶ 65. It is the obligation of defense counsel to defend the accused, to hold the State to its burden of proof, and to protect the accused's statutory and constitutional rights-including the right to a speedy trial. It is the obligation of the prosecution and the defense to hold each other to the performance of their respective statutory duties in a timely manner. And, most importantly, it is the obligation of the trial court to ensure that the prosecution and the defense fulfill their respective obligations. As the trial judge noted here, it is amazing what counsel can accomplish when the court keeps counsel's back to the wall-and their feet to the fire.

¶ 101 Based on the foregoing analysis, and on the record before us, we conclude that the District Court did not err in denying Couture's motion to dismiss for violation of his right to a speedy trial.

Couture notes that while he is asserting his right to a speedy trial under the Montana Constitution, he is asserting his right to a speedy trial under the United States Constitution as well. This Court must guarantee the minimum rights established by the United States Constitution. See Slate v. Martinez, 2003 MT 65, ¶ 51, 314 Mont. 434, 67 P.3d 207. And while our speedy trial test is modeled on the balancing approach set forth by the Supreme Court under the Sixth and Fourteenth Amendments in Barker, 407 U.S. 514, 92 S. Ct. 2182, we expressly grounded it in Article II, Section 24 of the Montana Constitution. See Ariegwe, ¶ 34-35. Nevertheless, Couture has not shown how the analysis would be any different under Barker and the United States Constitution.

¶ 102 Affirmed.

CHIEF JUSTICE McGRATH, JUSTICES MORRIS, COTTER and RICE concur.