Submitted on Briefs: October 3, 2018
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
Appellant: Nick K. Brooke, Smith & Stephens, P.C.,
Appellee: Timothy C. Fox, Montana Attorney General, Tammy K
Plubell, Assistant Attorney General, Helena, Montana
D. Lambert, Gallatin County Attorney, Bozeman, Montana
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
Following jury trial Kevin Briggs (Briggs) was found guilty
of Aggravated Assault; Sexual Assault; 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.
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.
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.
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.
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.
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.
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