State v. W. Hesse ( 2022 )

10/25/2022
DA 21-0015
Case Number: DA 21-0015
IN THE SUPREME COURT OF THE STATE OF MONTANA
2022 MT 212STATE OF MONTANA,
Plaintiff and Appellee,
v.
WILLIAM LOWREY HESSE,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DC-2019-246
Honorable Jason Marks, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellant Defender, Haley Connell Jackson, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Bree Gee, Assistant
Attorney General, Helena, Montana
Steven N. Eschenbacher, Lake County Attorney, Brendan McQuillan,
Deputy County Attorney, Polson, Montana
Submitted on Briefs: August 31, 2022
Decided: October 25, 2022
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 William Hesse appeals his criminal convictions in the Twentieth Judicial District
Court, Lake County, for Deliberate Homicide and Tampering with or Fabricating Physical
Evidence. Hesse argues that the State’s 391-day delay in bringing his case to trial violated
his right to a speedy trial and the charges should be dismissed. In the alternative, he seeks
a new trial with a properly selected jury panel after the District Court authorized the Clerk
of Court to excuse prospective jurors without the court’s approval of each excuse. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 On August 31, 2019, William Hesse attacked and killed his roommate, Gyme Kelly,
at the Mission Meadows Camping and RV Park near Ronan, Montana. Lake County
Sheriff’s Deputy Ross Holcomb, along with several other law enforcement officers,
responded to the incident and arrested Hesse. Lake County charged Hesse with two
felonies, Deliberate Homicide and Tampering with or Fabricating Physical Evidence.
Hesse’s original trial date was set for March 30, 2020. He was not brought to trial,
however, until September 25, 2020—391 days after his arrest.
¶3 Hesse filed two motions to dismiss for lack of speedy trial while he awaited trial.
He filed the first motion on April 21, 2020; the District Court denied it eleven weeks later
in a twenty-five-page written order. Hesse renewed the motion on September 1, 2020. The
District Court orally denied the renewed motion on September 28, 2020, at the beginning
of the second day of trial.
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¶4 In preparation for Hesse’s trial, the District Court directed the Clerk of Court, Lyn
Fricker, to summon a larger-than-usual number of prospective jurors in anticipation of an
increased excusal rate due to the COVID-19 pandemic. Fricker accordingly sent
summonses to a computer-generated, representative list of 150 prospective jurors. The
District Court, relying on this Court’s April 27, 2020 Directive asking trial courts to excuse
jurors at high risk for contracting COVID-19 or who had other appropriate reasons not to
report for jury duty, instructed Fricker to excuse all jurors who requested it. Fricker did
so, excusing 59 jurors. Hesse moved to strike the jury panel and impanel a new jury on the
basis that Fricker excused prospective jurors without individual court approval and thus
violated Montana law. The District Court heard testimony from Fricker before trial and
denied Hesse’s motion.
¶5 At the conclusion of a seven-day trial, the jury convicted Hesse of both charges.
The District Court sentenced him to concurrent prison terms of eighty and ten years on the
respective counts and awarded credit for time served.
STANDARDS OF REVIEW
¶6 We review for clear error the factual findings underlying a district court’s speedy
trial ruling. State v. Houghton, 2010 MT 145, ¶ 13, 357 Mont. 9, 234 P.3d 904. We review
de novo a district court’s conclusions of law about a speedy trial violation. Houghton, ¶ 13.
Finally, we review for correctness a district court’s denial of a motion to strike the jury
panel. State v. LaMere, 2000 MT 45, ¶ 14, 298 Mont. 358, 2 P.3d 204.
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DISCUSSION
¶7 On March 12, 2020, then-Governor Steve Bullock declared a state of emergency in
Montana due to the outbreak of the COVID-19 pandemic. By March 20, Governor Bullock
had closed schools and businesses and suspended nursing home visits. On March 27, 2020,
this Court ordered trial courts across the state to suspend all criminal jury trials until after
April 10, 2020, in order to slow the spread of the virus. We explained that, because “the
serious danger posed by COVID-19 is good cause to continue criminal jury trials, and
constitutes an unavoidable circumstance, the time between the date of this order and the
date of the next scheduled trial date are considered institutional delay when calculating
time for trial.” On April 27, 2020, we directed trial courts to comply with several
precautionary public health measures and renewed these requirements on May 22, 2020.
Hesse’s original trial date, March 30, 2020, landed squarely in this period of closures and
upheaval.
¶8 1. Did the State’s delay in prosecuting William Hesse violate his right to a speedy
trial?
¶9 The fundamental right to a speedy trial is guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution and by Article II, § 24, of the Montana
Constitution. State v. Ariegwe, 2007 MT 204, ¶ 20, 338 Mont. 442, 167 P.3d 815. Courts
use the four-factor Ariegwe balancing test to determine if a criminal defendant’s right to a
speedy trial has been violated. They consider the length of delay, the reasons for delay,
the accused’s responses to the delay, and prejudice to the accused. Ariegwe, ¶ 113.
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Factor One: Length of Delay
¶10 Courts engage a speedy trial analysis if the interval between a criminal accusation
and trial is at least 200 days. Ariegwe, ¶ 107. Hesse’s trial began 391 days after his arrest,
so the District Court’s analysis properly continued.1
¶11 Courts next consider the extent to which the delay stretches beyond the 200-day
trigger date. Ariegwe, ¶ 107. The presumption that pretrial delay has prejudiced the
accused intensifies over time, and the State’s burden to justify the delay becomes heavier
the longer the delay. Ariegwe, ¶ 107. Here the District Court correctly determined that the
delay stretched 191 days beyond the 200-day trigger date.
Factor Two: Reasons for Delay
¶12 Courts next identify and attribute to the appropriate party each period of delay.
Ariegwe, ¶ 108. Any delay not caused by the defendant is attributed to the State by default.
Ariegwe, ¶ 108. Courts also assign weight based on the reason for the delay. Ariegwe,
¶ 108. Institutional delays, such as overcrowded court dockets, weigh less heavily against
the State than do deliberate or negligent delays. Ariegwe, ¶ 108. Delays for valid reasons,
such as particularly complex charges or missing witnesses, serve to justify appropriate
1
The District Court did not enter a written order when it denied Hesse’s renewed motion, which
included new argument about the final period of delay stretching from July to September 2020.
We reviewed the record and conclude that, considering the analysis in its first speedy trial order,
the District Court impliedly found when it orally denied the renewed motion that Hesse had not
made an additional showing of a speedy trial violation due to the ensuing three-month period.
See State v. Gable, 2015 MT 200, ¶ 18, 380 Mont. 101, 354 P.3d 566 (describing our doctrine of
implied findings for purposes of reviewing findings of fact).
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delay and are weighed least heavily against the State. Ariegwe, ¶ 70 (citing Barker v.
Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972)).
¶13 We agree with the District Court that all five periods of delay in prosecuting Hesse’s
case should be attributed to the State. The State first caused a brief six-day delay by filing
the case in Lake County Justice Court rather than directly in the District Court. The second
delay occurred when the District Court initially set Hesse’s trial for March 30, 2020 (a
delay of 207 days). The District Court had a busy docket in the interim; the delay thus was
institutional and properly weighed less heavily against the State. Next, the District Court
continued the trial to July 6, 2020, due to the COVID-19 pandemic (a delay of 99 days).
The District Court reasoned that it would be irresponsible at that time to gather a large
number of people for a trial and acted in accordance with our March 27, 2020 Order to
suspend jury trials. Fourth, the District Court caused a 21-day delay when it continued
Hesse’s trial to July 27, 2020, because of its backlogged docket after resuming trials. Fifth
and finally, the District Court caused a 67-day delay when it continued the trial to
September 25, 2020, due to a significant increase in COVID-19 cases in Lake County and
concerns that the shelter-in-place order issued by the Confederated Salish and Kootenai
Tribes would prevent a proper cross-section of the community for Hesse’s jury panel. The
District Court properly concluded that the delays related to COVID-19 in this case were
institutional delays and thus weighed only minimally against the State.2
2
Hesse includes in his briefing the fact that on March 6, 2020, the State requested a continuance
to secure a blood spatter expert. The District Court, however, never ruled on this request; the court
continued the trial due to the pandemic. As such, we decline to include the State’s request for
continuance in our speedy trial analysis.
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Factor Three: Accused’s Responses to Delay
¶14 Courts next evaluate the accused’s responses to the delay to determine whether the
accused “actually wanted a speedy trial, which in turn informs the inquiry into whether
there has been a deprivation of the right.” Ariegwe, ¶ 110. Hesse twice asserted his right
to a speedy trial, once in April 2020 and again four months later. He thus clearly evidenced
his desire for a speedy trial, and this factor weighs against the State.
Factor Four: Prejudice to the Accused
¶15 For the final factor, courts assess whether a defendant was prejudiced by the delay
in light of three interests: (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.
i. Preventing oppressive pretrial incarceration
¶16 Courts consider whether pretrial incarceration was oppressive in light of all of the
circumstances of the incarceration. Ariegwe, ¶ 111. Lengthy pretrial incarceration is
considered less oppressive when a defendant faces complex charges, rather than simple
ones. Ariegwe, ¶ 91. Conditions of incarceration, such as overcrowding, lack of health
care, or limited legal research capabilities, make it more likely that pretrial incarceration
was oppressive. Ariegwe, ¶ 93. Courts must “focus on the condition of the facilities and
how they impact the accused, rather than solely on the condition of the accused.” State v.
Velasquez, 2016 MT 216, ¶ 28, 384 Mont. 447, 377 P.3d 1235 (quoting State v. Couture,
2010 MT 201, ¶ 62, 357 Mont. 398, 240 P.3d 987).
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¶17 Hesse describes several concerning conditions of his pretrial incarceration. He
lacked private communication with counsel at the Lake County Jail, and for three months
at the beginning of the pandemic he was limited to phone communication with counsel.
Hesse asserts that the State withheld DNA and serology evidence, slowing his defense
efforts. He asserts that the pretrial delay aggravated his mental health issues and that he
was denied proper mental health care and medication. Another person incarcerated in the
Lake County Jail attempted suicide in the cell next to Hesse’s, which caused Hesse mental
anguish. Finally, Hesse lived “in constant fear of contracting and dying from the virus.”
¶18 The District Court concluded that Hesse’s pretrial incarceration did not rise to the
level of oppression. First, Hesse’s charges were complex. We concluded in Couture that
a 924-day period of pretrial incarceration was justified due to the complexity of the charged
offenses of deliberate homicide and tampering with evidence. Couture, ¶ 59. The State
was prosecuting Hesse for the same serious charges, and the law tolerated a longer delay.
Important here, the District Court explicitly remedied two of Hesse’s complaints when it
ordered Lake County Jail to provide private communication with counsel and ordered the
State to disclose the DNA and serology evidence. The District Court also attempted to
ameliorate conditions by ordering Hesse’s transfer to the Missoula County Detention
Facility. Hesse has not shown clear error in the District Court’s findings that Hesse was
not denied adequate medical care when he was prescribed his bipolar medication, though
not Adderall, and that the Lake County Jail took reasonable precautions to prevent the
spread of COVID-19. Reviewing all of the circumstances, we agree with the District Court
that Hesse’s pretrial incarceration was not oppressive.
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ii. Minimizing anxiety and concern caused by the presence of unresolved
criminal charges
¶19 The District Court determined that the delay in bringing Hesse to trial did not unduly
prolong the disruption of his life or aggravate the anxiety and concern that are inherent in
being accused of a crime. Ariegwe, ¶ 111.
¶20 Hesse’s briefing fails to connect his feelings of anxiety to his unresolved charges.
As the District Court noted, Hesse’s cited anxiety appears to have been associated with
contracting COVID-19, more than it was derived from the presence of unresolved charges.
Hesse provides no evidence that being publicly accused of two serious felonies and his trial
occurring six months later than originally scheduled prolonged the disruption in his life
beyond the inherent disruption that results from being accused of a crime and held in jail.
We agree with the District Court that the disruption to Hesse was not unduly prolonged.
iii. Limiting the possibility that the accused’s ability to present an effective
defense will be impaired
¶21 The District Court was required to consider whether the delay weakened Hesse’s
ability to “raise specific defenses, elicit specific testimony, or produce specific items of
evidence.” Ariegwe, ¶ 111. Impairment of the defense is the most important factor in our
prejudice analysis. State v. Steigelman, 2013 MT 153, ¶ 29, 370 Mont. 352, 302 P.3d 396.
¶22 Hesse argued that the deaths of two witnesses prior to his trial—Deputy Holcomb
and Reserve Officer Van Meter (a Lake County Sheriff’s Department Reserve Officer who
had, with a team of others, catalogued evidence from the crime scene)—impaired his
defense. The District Court concluded that their deaths did not impair Hesse’s defense
because both officers were accompanied by other officers who were able to testify at trial
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about their observations. The District Court observed that the loss of Deputy Holcomb as
a witness arguably helped Hesse’s case because Hesse had made an inculpatory statement
to Holcomb that Hesse could have challenged as lacking foundation after Holcomb’s death.
¶23 We conclude, as did the District Court, that the fourth factor, addressed in the three
subsections above, does not demonstrate prejudice to Hesse and thus weighs in favor of
the State.
Balancing the Factors
¶24 When balancing the four factors, the court must consider them together and “with
such other circumstances as may be relevant.” Ariegwe, ¶ 112. We agree with Hesse that
the outbreak of the COVID-19 pandemic and this Court’s precautionary directives did not
confer a free pass to the government to ignore speedy trial protections. But we examine
all speedy trial claims on a case-specific basis. Here, where Hesse was brought to trial six
months after his original trial date, where the delay was primarily institutional under the
specific conditions presented at that time by the unprecedented COVID-19 pandemic, and
where Hesse failed to demonstrate prejudice to his defense, we conclude that Hesse was
not denied his right to a speedy trial.
¶25 2. Did the District Court err in denying Hesse’s motion to strike the jury panel?
¶26 Montana law allows potential jurors to be excused from jury service if jury service
would entail undue hardship. Section 3-15-313(1), MCA, provides in pertinent part, “The
court or the jury commissioner with the approval of the court shall excuse a person from
jury service upon finding that jury service would entail undue hardship for the person, a
dependent of the person, or the public served by the person.” Subsection (2) allows the
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court “or the jury commissioner with the approval of the court” to excuse a prospective
juror upon affidavit of undue hardship. Section 3-15-313(2), MCA. The clerk of court
serves as the jury commissioner. Section 3-15-404(1), MCA. Courts and jury
commissioners must substantially comply with jury-selection procedures because the
procedures are rooted in the constitutional right to a trial by an impartial jury. LaMere,
¶ 32. The purpose of the statutes is to eliminate arbitrariness in the jury-selection process
and thus to ensure a fair cross-section of the community. LaMere, ¶ 38.
¶27 Hesse argues that Fricker violated § 3-15-313, MCA, when she excused potential
jurors without receiving individualized approval from the court. Hesse cites as support our
conclusion in State v. Highpine that a clerk failed to substantially comply with
jury-selection procedures when she did not follow up with personal service of notice upon
those who failed to respond to their summonses. 2000 MT 368, ¶¶ 39-41, 303 Mont. 422,
15 P.3d 938. The clerk in Highpine instead contacted non-responding jurors by telephone
and did not attempt any contact with those who had listed no phone number. Highpine,
¶ 39. Highpine presented evidence that nearly one-third of all Native American households
had no telephone and therefore were disproportionately excluded by phone notification of
jurors for Highpine’s trial. Highpine, ¶ 40. Hesse contends that Fricker’s actions here
likewise resulted in Native Americans, as well as seniors, being excluded from his jury.
¶28 Under the circumstances of this case, we conclude that the District Court did not err
when it denied Hesse’s motion to strike the jury panel. Fricker acted at the direction of the
District Court to gather a larger-than-usual pool of jurors and to excuse all jurors who
requested it, given the public health dangers posed by the pandemic. In doing so, both the
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District Court and Fricker operated under this Court’s April 27, 2020 Directive (which had
been reinforced by our May 22, 2020 Directive). Along with other precautionary practices,
those directives asked courts to excuse “jurors in advance who may be at high-risk or have
other appropriate reasons to not report (lack of childcare, caring for a high-risk person,
etc.).” Although Fricker excused some jurors for reasons not apparently related to the
pandemic (e.g., being out of town), she excused jurors mostly for pandemic-related
reasons—experiencing fatigue or headache, being at high risk of contracting the virus,
lacking childcare, or caring for a high-risk or sick person. Her excusals thus constituted
substantial compliance with Montana’s jury-selection requirements.
¶29 Finally, the record does not demonstrate that Hesse’s jury panel was an improper
cross-section of the community. Fricker drew the 150-person panel randomly. It included
both Native Americans and seniors. Highpine is inapposite because in that case the Clerk’s
departure from statutory procedures affected the random nature of the jury-selection
process. See Highpine, ¶ 40. Here, the conditions existing at the time justified broad
leeway in relieving prospective jurors from their summonses, and Fricker—under the
District Court’s instruction—followed appropriate public health guidance as directed by
this Court in excusing individual members from the panel. Hesse did not have a right to
have any particular persons on his jury, but a right to jury panel that represented a fair
cross-section of the community, which he received. LaMere, ¶ 37.
¶30 The jury-selection statute demands “substantial” compliance with its terms.
LaMere, ¶ 32 (quoting State v. Landry, 29 Mont. 218, 223-24,74 P. 418, 420 (1903)). Such
compliance secures “a just and impartial administration of the jury system.” LaMere, ¶ 32
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(quoting State v. Diedtman, 58 Mont. 13, 18, 190 P. 117, 118-19 (1920)). In the face of
grave public health dangers at the time in question, this Court’s express directives, and the
Clerk’s testimony that she excused jurors based on those guidelines, we hold that the
District Court correctly concluded that Hesse’s jury panel was “drawn in substantial
conformity with the requirements of the statute.” LaMere, ¶ 32 (quoting Landry, 29 Mont.
at 223-24, 74 P. at 420).
CONCLUSION
¶31 The District Court correctly denied both of Hesse’s motions to dismiss for lack of
speedy trial and his motion to strike the jury panel. His convictions are affirmed.
/S/ BETH BAKER
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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