State v. W. Cunningham

05/30/2023
DA 21-0174
Case Number: DA 21-0174
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 101NSTATE OF MONTANA,
Plaintiff and Appellee,
v.
WILLIAM EARL CUNNINGHAM,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC-2014-640
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Haley Connell Jackson, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Michael P. Dougherty,
Assistant Attorney General, Helena, Montana
Scott D. Twito, Yellowstone County Attorney, Julie Mees, Deputy County
Attorney, Billings, Montana
Submitted on Briefs: April 19, 2023
Decided: May 30, 2023
Filed:
__________________________________________
Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Following trial in March 2017, William E. Cunningham (Cunningham) was
convicted of deliberate homicide committed with a dangerous weapon. There were
multiple objections and evidentiary rulings throughout the trial. Cunningham appealed.
Upon appeal, this Court concluded the District Court erred by excluding statements the
victim made to Cunningham as hearsay and erred by prohibiting even a limited inquiry into
the credibility of the State’s medical expert, Dr. Bennett, based on his misconduct of
providing false testimony in unrelated cases and the State’s termination of his employment.
We determined these errors denied Cunningham of his right to a fair trial, reversed his
conviction, and remanded the matter back to the District Court for a new trial. State v.
Cunningham, 2018 MT 56, 390 Mont. 408, 414 P.3d 289.
¶3 Following remand, Cunningham appeared before the District Court on April 6,
2018. Bond was set, but not posted, and Cunningham remained incarcerated through trial.
The parties agree that between Cunningham’s initial appearance—on April 6, 2018—after
the remand for new trial and Cunningham’s second trial, 861 days passed.
¶4 The District Court first set trial for October 9, 2018. Cunningham sought a
continuance, acknowledging he “cannot claim that [the time between his acknowledgement
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and the re-set trial date] as time that is a violation of his right to speedy trial.” Trial was
re-set for April 1, 2019. On February 20, 2019, Cunningham again sought continuance of
trial, asserting “[d]efense counsel needs more time to prepare, consult with experts,
interview witnesses and conduct discovery.” Cunningham acknowledged “the time period
from the date of issuance of the Order granting the continuance of the jury trial setting
dates to the date of the new trial set for November 4, 2019[,] will count against him in a
speedy trial analysis.” Trial was re-set for November 4, 2019. On September 27, 2019,
Cunningham again sought continuance of the trial asserting the State had over 3,000 pages
of undisclosed discovery related to Dr. Bennett1 and based upon the defense’s continuing
investigation. The State responded that although it did not object to the continuance, it did
oppose any delay associated therewith being charged to the State. The State advised that
the defense “already had any materials regarding Dr. Bennett in the possession of the State
(i.e. anything available to the prosecution and the investigating law enforcement
agency)[,]” had no intention of presenting the victim as having been in the military, had
not impeded the defense’s access to witnesses, and had disclosed details of any alleged
burglary investigation.2 Trial was re-set for February 21, 2020. On January 21, 2020,
Cunningham filed another motion to continue the trial, asserting “[d]efense counsel needs
1
Upon remand for a new trial, the State determined it would not use Dr. Bennett as its medical
expert and instead identified Dr. Robert Kurtzman, a forensic pathologist, and Dr. Toby Wolson,
a bloodstain analyst. Both of these experts reviewed Dr. Bennett’s autopsy report in their
respective reviews of the case and in forming their expert opinions.
2
This was in response to various additional assertions made in the affidavit and brief
accompanying Cunningham’s motion to continue trial.
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more time to prepare, consult with experts, interview witnesses and in particular conduct
discovery” and that “Defendant will file an Acknowledgment of Delay for Speedy Trial
Purposes upon issuance of the [c]ourt’s Order continuing trial.” Trial was re-set for
August 14, 2020. On May 26, 2020, Cunningham filed a Motion to Dismiss for Denial of
Right to Speedy Trial. On June 5, 2020, the State filed its response resisting the motion.
On July 29, 2020, the District Court issued its Order Denying Defendant’s Motion to
Dismiss for Lack of Speedy Trial. Upon retrial commencing August 14, 2020,
Cunningham was found guilty of deliberate homicide. Cunningham appeals the July 29,
2020 Order Denying Defendant’s Motion to Dismiss for Lack of Speedy Trial issued by
the Thirteenth Judicial District Court, Yellowstone County. We affirm.
¶5 A speedy trial violation presents a question of constitutional law that this Court
reviews de novo to determine whether the district court correctly interpreted and applied
the law. State v. Ariegwe, 2007 MT 204, ¶ 119, 338 Mont 442, 167 P.3d 815. This Court
reviews a district court’s findings of fact underlying a speedy trial claim for clear error.
State v. Reynolds, 2017 MT 25, ¶ 13, 386 Mont. 267, 389 P.3d 243. 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;
Reynolds, ¶ 13.
¶6 A defendant is guaranteed the right to a speedy trial by the Sixth and Fourteenth
Amendments of the United States Constitution and by Article II, Section 24, of the
Montana Constitution. Ariegwe, ¶ 20. Asserted speedy trial violations are analyzed by
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balancing four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the
accused’s responses to the delay; and (4) the prejudice to the accused as a result of the
delay. Ariegwe, ¶ 113.
¶7 Here, in its 19-page Order, the District Court thoroughly and conscientiously
considered and balanced the four Ariegwe factors and appropriately concluded
Cunningham’s right to speedy trial was not violated.
¶8 For the first Ariegwe factor the District Court concluded the length of delay—861
days between April 6, 2018, when Cunningham was initially detained and trial on
August 14, 2020—well exceeded the 200-day threshold such that balancing the Ariegwe
factors was required.
¶9 Next, the court considered the second Ariegwe factor, the reasons for delay. The
District Court correctly found the first period of delay—the 186 days from April 6, 2018,
to the first trial setting on October 9, 2018—was due to the court’s docket and not subject
to the control of either the prosecutor or the defense and was thus institutional delay.
¶10 The District Court found the second period of delay—the 174 days from October 9,
2018, to April 1, 2019—was attributable to Cunningham. From our review of the record,
we find no error with this conclusion. Cunningham requested the continuance and
acknowledged he could not claim this time is a violation of his right to speedy trial.
¶11 The District Court found the third period of delay—the 217 days from April 1, 2019,
to November 4, 2019—was attributable to Cunningham. From our review of the record,
we find no error with this conclusion. Cunningham requested the continuance and again
acknowledged he could not claim this time is a violation of his right to speedy trial.
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¶12 The District Court found the fourth period of delay—the 109 days from
November 4, 2019, to February 21, 2020—was attributable to Cunningham. From our
review of the record, we find no error with this conclusion. Although in his request to
continue trial Cunningham asserts late disclosure of discovery by the State, he failed to
fully describe the context within which he made these allegations. The purported late
disclosure by the State primarily involved documents related to Dr. Bennett’s prior
misconduct in other unrelated matters.3 Despite Cunningham having notice of
Dr. Bennett’s prior misconduct before his initial appearance after remand, Cunningham
waited until September 20, 2019 (45 days prior to the November 4, 2019 trial date and 533
days after his initial appearance) to request this information directly from the Department
of Justice.4 Although the prosecution did not possess this information, it facilitated its
discovery and requested an in camera review by the District Court prior to its release to
Cunningham. Given the totality of the situation, it was not error for the District Court to
attribute this period of delay to Cunningham.
¶13 The District Court found the fifth period of delay—the 175 days from February 21,
2020, to August 14, 2020—was attributable to Cunningham. Cunningham requested trial
be continued as “[d]efense counsel needs more time to prepare, consult with experts,
3
In his first appeal Cunningham asserted the District Court committed reversible error, and this
Court agreed, for not permitting him to have even limited inquiry of Dr. Bennett’s credibility on
cross-examination relating to his purportedly false testimony in other matters.
4
As previously indicated, the prosecution and the investigating law enforcement agency had
already provided Cunningham all information in their possession regarding Dr. Bennett and did
not have the information sought by Cunningham.
6
interview witnesses and in particular conduct discovery” and indicated “Defendant will file
an Acknowledgment of Delay for Speedy Trial Purposes upon issuance of the [c]ourt’s
Order continuing trial.” Although Cunningham now, and in his motion to dismiss for
speedy trial violation, asserts this delay was attributable to the State due to the State’s late
disclosure of Dr. Wolson’s report,5 Cunningham did not assert any issue as to
non-disclosure of discovery or other issue with the State at the time he sought continuance
of the trial date. In its order denying Cunningham’s speedy trial motion, the District Court
thoroughly explained the procedural history and timeline, the lack of merit to
Cunningham’s asserted discovery violations, and the court’s prior conclusions “that
[Cunningham’s] claims were unsupported by the facts.” The District Court concluded
“Defense Counsel’s claims are supported by nothing more than innuendo.” From our
review of the record, even had the State disclosed its expert reports earlier, Cunningham
was not prepared to go to trial on February 21, 2020, as he was still conducting
investigation and forming a theory of defense. While the State was not as timely as it
5 Specifically, Cunningham contends he requested additional time to retain an expert witness
because the State failed to disclose Dr. Wolson’s report until November 25, 2019. In July 2019,
the State emailed Cunningham’s counsel to confirm counsel had received Dr. Wolson’s report.
Cunningham’s counsel failed to respond to this email. Upon learning in an October 2019 hearing
that Cunningham’s counsel did not yet have Dr. Wolson’s report, the State indicated it would
promptly provide it but did not do so until November 25, 2019. At a motions hearing on
February 10, 2020, Cunningham’s counsel argued the case was complex and he needed additional
time to prepare for trial by interviewing witnesses, reviewing discovery, investigating the
purported burglary of Cunningham’s house, and gathering more evidence—which continued as
late as May 2020 when Cunningham was still investigating the victim and making record requests
from Glacier County. At the time of the hearing, although Cunningham had retained an expert a
few days earlier, that expert recused himself and Cunningham filed a notice on March 30, 2020,
that he had retained a different expert.
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should have been in providing its expert reports, we find no error with the District Court
assigning this period of delay to Cunningham.
¶14 Throughout the case the State did not seek delay or engage in ongoing tactics which
might create delay. In sum, the District Court properly determined of the 861 days of delay,
675 of those days were attributable to Cunningham and 186 to institutional delay. Pursuant
to Ariegwe, the District Court appropriately weighed this institutional delay less heavily
against the State.
¶15 For the third Ariegwe factor, the District Court concluded Cunningham “directly
acknowledged responsibility for two periods of delay[,]” made “untimely requests for
discovery[,]” and failed to timely respond to the State as indicators that Cunningham did
not show any genuine interest in his speedy trial right until he filed his motion—777 days
after his initial appearance. While it is accurate that with each of his requests for
continuance of trial, he indicated he did not want continuances way off in the future, it is
not accurate that most of the continuances he requested were due to the State’s conduct.
The District Court accurately outlined the procedural history of the continuances as well
as the State and Cunningham’s actions throughout the litigation. We find no error in the
District Court’s analysis of Cunningham’s response to the delay.
¶16 For the fourth Ariegwe factor, Cunningham asserts there is a strong presumption of
prejudice which the District Court ignored. We do not agree. The District Court
considered whether the substantial delay prejudiced Cunningham in terms of oppressive
pretrial incarceration, his anxiety and concern, and possible impairment of his defense by
loss of witness recall or loss of exculpatory evidence. The District Court thoroughly
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discussed the complex nature of the charges; the extensive discovery; and that Cunningham
provided no particular fact to support his characterization that the State treated him unfairly
while he was incarcerated pretrial. Although he asserts the State used the pretrial delay
period to gather evidence against from his communications with others, his
communications with others about his case over recorded phone lines from the detention
facility were entirely within his control. “Lengthy pretrial incarceration is considered less
oppressive when a defendant faces complex charges, rather than simple ones.” State v.
Hesse, 2022 MT 212, ¶ 16, 410 Mont. 373, 519 P.3d 462 (citing Ariegwe, ¶ 91). Here,
Cunningham does not, other than the sheer length of the pretrial incarceration, demonstrate
any condition of incarceration to be oppressive. Although he experiences some chronic
medical conditions, he was not denied medical treatment and failed to show any
inadequacy of medical treatment.6 Compared to other individuals facing a deliberate
homicide charge, Cunningham failed to show he was treated unfairly or oppressively in his
pretrial incarceration.
¶17 Cunningham was charged with deliberate homicide, a very significant offense,
which by its nature no doubt produces significant anxiety and stress. Cunningham,
however, has not established the anxiety and stress he experienced was of a greater degree
or severity as compared to others facing similar charges.
¶18 Finally, with regard to the most important prejudice factor—impairment of
defense—the District Court found Cunningham presented no evidence of loss of witnesses
6
In fact, while incarcerated he received a new pacemaker.
9
or evidence and no impairment of his defense. Cunningham has not noted any particular
piece of evidence lost, or unavailability of any particular witness. Further, the District
Court noted that Cunningham’s counsel had advised the court on more than one occasion
that the continuances permitted him to obtain new evidence that would have otherwise been
unavailable. Although the significant 861-day delay weighed in Cunningham’s favor, the
complex nature of the case, the lack of intentional delay on the part of the State, and
Cunningham’s responsibility for most of the delay outweighed the prejudice presumed with
such a length of delay.
¶19 In sum, Cunningham has failed to demonstrate error on the part of the District Court
in denying his motion to dismiss based on his asserted claim of violation of his right to a
speedy trial. The District Court’s findings are supported by the record, and it correctly
interpreted and applied the law.
¶20 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶21 Affirmed.
/S/ INGRID GUSTAFSON
We concur:
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
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