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State v. Briggs

Supreme Court of Montana

October 23, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
KEVIN ANTHONY BRIGGS, Defendant and Appellant.

          Submitted on Briefs: October 3, 2018

          APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC 14-71ax Honorable Mike Salvagni, Presiding Judge

          For Appellant: Nick K. Brooke, Smith & Stephens, P.C., Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana

          Martin D. Lambert, Gallatin County Attorney, Bozeman, Montana

          OPINION

          INGRID GUSTAFSON JUSTICE

         ¶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 jury trial Kevin Briggs (Briggs) was found guilty of Aggravated Assault; Sexual Assault;[1] Assault on a Peace Officer; Escape; and Criminal Possession of Dangerous Drugs. Briggs appeals asserting: 1) the District Court erred in denying his motion to dismiss for violation of his right to speedy trial; 2) his counsel was ineffective for failing to object or otherwise correct mischaracterization of the meaning of text messages and the result of DNA analysis; 3) the District Court erred when it failed to impose sanctions or suppression for the State's failure to preserve the victim's cell phone; and 4) the District Court erred when it failed to turn over Officer Bachich's personnel file. We affirm.

         ¶3 On February 1, 2014, Briggs was detained as a suspect in an aggravated assault and a sexual offense involving knives. Briggs walked away from the detention facility in belly chains and shackles. He was arrested in Oregon on February 21, 2014, and returned to Montana on March 10, 2014. On March 24, 2014, Briggs was charged with and arraigned on the charges of Aggravated Assault, Attempted Sexual Intercourse without Consent, Assault on a Peace Officer, Escape, and Failure to Register as a Sex Offender. On April 14, 2014, Defense counsel appeared at the omnibus hearing and requested continuance which was granted to May 12, 2014, at which time Briggs requested another continuance which was granted and the District Court reset the omnibus hearing to June 9, 2014. Following receipt of substantial discovery, Briggs sought another continuance and the court rescheduled the omnibus hearing to July 14, 2014.

         ¶4 On July 7, 2014, the State filed an Amended Information adding the offense of Criminal Possession of Dangerous Drugs (felony). Briggs sought another continuance of the omnibus hearing and it was reset to August 11, 2014. Following receipt of additional discovery, Briggs sought yet another continuance and the omnibus hearing was rescheduled for September 8, 2014. At the omnibus hearing on September 8, 2014, the court scheduled jury trial for February 17, 2015. Briggs received additional discovery October 20, 2014; November 20, 2014; December 5, 2014; and January 6, 2015. On January 21, 2015, the parties filed a notice agreeing the State had furnished Briggs all discovery.

         ¶5 On December 5, 2014, Briggs filed a motion to produce the arresting officer's personnel file asserting his history of use of force was material to his defense. Thereafter, the court conducted an in-camera inspection of the officer's personnel records and based thereon concluded due process did not require disclosure of these confidential records.

         ¶6 Also on December 5, 2014, Briggs filed a motion for dismissal or, alternatively, evidence suppression for the State's failure to preserve the victim's cell phone. Following hearing on this motion, the District Court denied the motion.

         ¶7 On January 15, 2015, defense counsel filed an ex parte motion to withdraw. The next day Briggs sought testing of the knives for DNA and fingerprints. The State responded it did not believe either DNA or fingerprint analysis could be conducted without delaying trial (which was then set for February 17, 2015). Also on January 16, 2015, Briggs filed a motion to dismiss asserting violation of his right to a speedy trial. Counsel's motion to withdraw was referred to Judge Brown (a non-presiding judge) who, following a January 26, 2015, hearing on the matter, recommended granting the motion.

         ¶8 On January 26, 2015, the court accepted Judge Brown's recommendation and appointed Briggs new counsel who, at the status hearing February 4, 2015, requested continuance of the trial because she had a homicide trial scheduled on the trial date. The court vacated the trial date, scheduled an omnibus hearing for March 11, 2015, and reset trial for July 27, 2015. On April 16, 2015, Briggs filed another motion to dismiss based on violation of his right to speedy trial. Following full briefing and a hearing, on July 1, 2015, the court denied both the original and second speedy trial motions. ...


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