City of Billings v. Peterson

• Decision Date: 24 August 2004
• Docket Number: No. 03-805.,03-805.
• Citation: 2004 MT 232,97 P.3d 532,322 Mont. 444
• Parties: CITY OF BILLINGS, Plaintiff and Respondent, v. Rocky T. PETERSON, Defendant and Appellant.
• Court: Montana Supreme Court

97 P.3d 532

2004 MT 232

322 Mont. 444

CITY OF BILLINGS, Plaintiff and Respondent, v. Rocky T. PETERSON, Defendant and Appellant.

No. 03-805.

Supreme Court of Montana.

Submitted on Briefs April 7, 2004.

Decided August 24, 2004.

For Appellant: Jack E. Sands, Billings, Montana.

For Respondent: Mike McGrath, Attorney General; Robert Stutz, Assistant Attorney General, Helena, Montana, Brent Brooks, City Attorney; Moira Murphy D'Alton, Deputy, Billings, Montana.

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 A Billings Municipal Court jury convicted Rocky T. Peterson of the misdemeanor offenses of careless driving and driving under the influence of alcohol. After a number of interim procedural steps, the Thirteenth Judicial District Court, Yellowstone County, affirmed an earlier order upholding the Municipal Court's denial of certain pretrial motions. Peterson appeals and we affirm.

¶ 2 We restate the issues as follows:

¶ 3 1. Did the District Court err in affirming the Municipal Court's determination that an officer had particularized suspicion to stop Peterson when no recording of the hearing on Peterson's motion was available for review?

¶ 4 2. Did the District Court err in affirming the Municipal Court's denial of Peterson's motion to dismiss for unnecessary delay in his initial appearance?

¶ 5 3. Did the District Court err in affirming the Municipal Court's denial of Peterson's motion to dismiss for violation of his constitutional right to a speedy trial?

¶ 6 4. Did the District Court err in affirming the Municipal Court's denial of Peterson's discovery request to review an officer's personnel records?

BACKGROUND

¶ 7 On August 30, 2001, Billings Police Officer Shawn Finnegan issued Peterson a notice to appear October 2, 2001, in the Billings Municipal Court on charges of careless driving and driving under the influence of alcohol (DUI). Peterson appeared and pled not guilty.

¶ 8 Peterson moved to dismiss, alleging Finnegan lacked particularized suspicion to stop his vehicle. He also moved to suppress his breath test results, alleging improper administration of his breath alcohol tests. After a hearing, the Municipal Court orally denied the motion.

¶ 9 Peterson also moved for an order requiring the City to respond to discovery requests, one of which asked for "[t]he personnel records of the officers involved in defendant's arrest and in the operation of any tests given him." After a hearing, the Municipal Court denied the request for personnel records and granted Peterson's other discovery requests.

¶ 10 The Municipal Court originally scheduled trial for December 5, 2001. The City moved for continuances on November 27, December 11 and February 22. Peterson did not object to the first continuance, which was due to the prosecutor's illness. The Municipal Court granted the second and third motions, which were based on Finnegan's unavailability, over Peterson's objections. Peterson then moved to dismiss, asserting unnecessary delay in his initial appearance and violation of his constitutional right to a speedy trial. The Municipal Court denied the motion. On April 1, 2002, a jury convicted Peterson of both charged offenses.

¶ 11 Peterson appealed to the District Court, requesting preparation of a trial transcript and all recorded pretrial hearings. The Municipal Court transmitted the record, including a form identifying the tape of the pretrial hearing on Peterson's particularized suspicion motion as # 945. The tape was not transmitted, as Peterson's briefs to the District Court acknowledged.

¶ 12 The District Court affirmed in part, determining the Municipal Court correctly denied Peterson's pretrial motions, but reversed on other issues and remanded for retrial. On remand, Peterson pled guilty, reserving the right to appeal those portions of the District Court's earlier order affirming the Municipal Court. The District Court granted Peterson's request to reaffirm its earlier order for purposes of appeal to this Court. Peterson appeals.

STANDARDS OF REVIEW

¶ 13 The existence of particularized suspicion to justify an investigatory stop is a question of fact determined under the totality of the circumstances. State v. Eixenberger, 2004 MT 127, ¶ 16, 321 Mont. 298, ¶ 16, 90 P.3d 453, ¶ 16 (citation omitted). A court's finding of particularized suspicion is reviewed under the clearly erroneous test. See State v. Nelson, 2004 MT 13, ¶ 5, 319 Mont. 250,

¶ 5, 84 P.3d 25, ¶ 5 (citation omitted). Whether an initial appearance violated § 46-7-101(1), MCA, is a question of statutory construction, which we review for correctness. See City of Missoula v. Lesko, 2003 MT 177, ¶ 7, 316 Mont. 401, ¶ 7, 73 P.3d 166, ¶ 7 (citation omitted). Whether a defendant's right to a speedy trial was violated is a question of constitutional law, which we also review for correctness. See State v. Ray, 2003 MT 171, ¶ 12, 316 Mont. 354, ¶ 12, 71 P.3d 1247, ¶ 12 (citations omitted). Orders granting or denying discovery are reviewed for abuse of discretion. State v. DuBray, 2003 MT 255, ¶ 103, 317 Mont. 377, ¶ 103, 77 P.3d 247, ¶ 103 (citation omitted).

DISCUSSION

¶ 14 1. Did the District Court err in affirming the Municipal Court's determination that Finnegan had particularized suspicion to stop Peterson when no recording of the hearing on Peterson's motion was available for review?

¶ 15 In reviewing the Municipal Court's finding of particularized suspicion, the District Court noted the recording of the pretrial hearing was unavailable and stated it "reviewed the record before it...." The District Court relied on Finnegan's experience in DUI investigations, his observations of Peterson crossing a dividing line and making an improper turn, his identification of Peterson and Peterson's comment that he was possibly swerving.

¶ 16 Peterson contends the District Court could not affirm the Municipal Court in the absence of the pretrial hearing tape. He first relies on FIRS Holding Co., Inc. v. Lemley (1995), 272 Mont. 490, 901 P.2d 571. There, a judge amended a retired judge's findings of fact after a bench trial without reviewing a transcript. On appeal, we held the amending judge committed reversible error. FIRS Holding, 272 Mont. at 492, 901 P.2d at 573. In FIRS Holding, the amending judge essentially made new findings of fact. Here, the District Court merely reviewed the Municipal Court's oral decision. FIRS Holding is of no assistance to Peterson.

¶ 17 Peterson next argues the District Court had "nothing to review." In its order, the District Court listed several facts that did not appear in the documents of record. The record reflects the District Court did not have the tape of the particularized suspicion hearing, but did have one or more recordings of Peterson's proceedings. On these facts, we accept the District Court's repeated statements that it reviewed the record before it and that the record reflected the evidence on which the District Court relied. The propriety of doing so is further buttressed in this case by Peterson's total failure to argue, or even hint, that the pretrial hearing tape would have shown error in any part of the District Court's order on review.

¶ 18 Peterson next asserts the District Court violated "statutory mandates" by affirming based on an incomplete record. He points to §§ 3-6-101(1), -110(1), and -302, MCA, which provide that a municipal court must "be a court of record," an appeal to a district court is "confined to review of the record and questions of law," and a municipal court clerk is responsible for keeping records. Nothing in the statutes precludes a district court from affirming on an incomplete record, provided the record is sufficient for review. The District Court having determined it had a sufficient record, we conclude Peterson has not established a violation of the statutory mandates on which he relies.

¶ 19 Peterson next argues he cannot be held responsible for the municipal court clerk's failure to transmit a complete record. An appellant bears the burden of establishing error on appeal, however, and a trial court's decision is presumed correct. See State v. Aakre, 2002 MT 101, ¶ 43, 309 Mont. 403,

¶ 43, 46 P.3d 648, ¶ 43 (citation omitted). Peterson does not assert, let alone establish, error in the Municipal Court's finding of particularized suspicion. Nor, as just discussed, does he contend that a complete record would have established error by the District Court in reviewing that finding. Therefore, we conclude Peterson has not met his burden on appeal.

¶ 20 In this regard, however, the Court is increasingly alarmed about the number of cases currently on appeal to this Court which involve incomplete, unavailable and disorderly municipal court records. It is apparent that some municipal courts do not properly docket case documents or preserve recordings. When clerks of municipal courts fail to meet their statutory obligation to maintain and provide an appropriate record on appeal, the consequences to the parties, district courts, this Court and other litigants can be significant. In the present case, the District Court had a sufficient record for review purposes, but the amount of time and resources squandered by counsel and courts as a result of the clerk's failure to provide the entire record on appeal can never be recovered. Moreover, it is not unlikely that crucial evidence will be lost in some future case if municipal court clerks do not satisfy their statutory obligations. The people of Montana would not be amused to learn that misdemeanor criminal convictions may be in jeopardy because of sloppy record-keeping by their municipal employees.

¶ 21 Finally, we note the City's reference to Rule 9(e), U.M.C.R.App., which allows an appellant to prepare a statement of the evidence or proceedings "within 3 days from the hearing or trial or such time extended as the municipal court may for good cause shown permit" if a record is unavailable,...