Gratzer v. State, 02-455.

• Citation: 2003 MT 169,71 P.3d 1221
• Decision Date: 19 June 2003
• Docket Number: No. 02-455.,02-455.
• Parties: Steven Kurt GRATZER, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.
• Court: United States State Supreme Court of Montana

71 P.3d 1221
2003 MT 169

Steven Kurt GRATZER, Petitioner and Appellant,
v.
STATE of Montana, Respondent and Respondent

No. 02-455.

Supreme Court of Montana.

Submitted on Briefs June 19, 2003.

Decided June 19, 2003.

71 P.3d 1222

Mark E. Jones, Missoula, Montana, For Appellant

Honorable Mike McGrath, Attorney General; Ilka Becker, Assistant Attorney General, Helena, Montana, Fred Van Valkenburg, County Attorney; Susan Boylan, Deputy County Attorney, Missoula, Montana, For Respondent.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Steven Kurt Gratzer (Gratzer) appeals the District Court's denial of his petition for postconviction relief. We affirm.

¶ 2 The sole issue for consideration is: Whether the District Court erred in denying Gratzer's petition for postconviction relief.

Factual and Procedural Background

¶ 3 On the night of July 22, 2000, Missoula Police Officer Richard Eggett (Officer Eggett) witnessed a 1978 Chevrolet Caprice, in the oncoming lane of traffic, run a stop sign. As Officer Eggett made a U-turn, he observed the vehicle backing up into a motel parking space on the corner of Adams and Broadway. The officer then observed the driver get out of the vehicle and "fiddle" with the door. The driver then sat down in a lawn chair alongside of the City Center Motel. Officer Eggett testified that he had an

71 P.3d 1223

unobstructed view of the vehicle as it pulled into the parking lot space and as the driver exited the vehicle. He also testified that there was only one person in the vehicle and that he had not seen anyone else in the area. Officer Eggett testified that he was certain that Gratzer was the driver of the vehicle and that, after his initial sighting of the Chevrolet Caprice, he maintained a full and unobstructed view of the suspect vehicle and its driver

¶ 4 Officer Eggett then approached Gratzer who appeared intoxicated and was slurring his words. Gratzer denied knowing anything about the Caprice; however, following the officer's registration check of the vehicle, Gratzer admitted that the car belonged to his mother. The officer searched Gratzer following his arrest, but did not find any keys on his person or in the vicinity. At the time of his arrest, Gratzer repeatedly stated that he had not been driving the vehicle. Gratzer was arrested and was charged with felony DUI. At trial, Gratzer's defense was that he had not been in actual physical control of, or driving, the vehicle. Officer Eggett was the sole witness to testify that Gratzer had been in actual control of the vehicle.

¶ 5 At trial, Mike Church (Church), an acquaintance of Gratzer, testified that he, not Gratzer, had actually been driving the car that night and that Gratzer had been a passenger. Church testified that he left the scene after parking the car at the motel. According to Gratzer, he was so intoxicated that he did not remember Church driving the vehicle. Also, at trial, Gratzer argued that he could not have been in actual physical control of the vehicle because he did not have an ignition key to it. During cross-examination of Officer Eggett, the following exchange occurred:

Q: Did you ever locate a key an ignition key or any sort of key for the vehicle?

A: No.

Q: Okay. Did you ever enter into the vehicle?

A: Yes, I did.

Q: And how did you do that?

A: When the tow truck arrived, I had the tow truck driver unlock the door for me so that I could get in the glove box and get the registration out to fill out some paperwork.

Q: Did you ever make any physical search for the key, an ignition key, or any set of keys or anything of that nature even after you couldn't find the keys on Mr. Gratzer?

A: In the vehicle you mean?

Q: In the vehicle or around in the surrounding area.

A: I did not search in the vehicle. I did search the surrounding area where Mr. Gratzer was sitting in a lawn chair. This was right next to some stairs, which had some empty space underneath them which was used for storage. And I did look in through there and around the lawn chair and could not locate any keys.

Q: But as you testified before, you did not see him toss anything or get rid of anything, at any rate?

A: Correct.

Q: If he didn't have the keys on his person, then, in fact he did not have the ability to control that vehicle or to drive that vehicle, isn't that correct?

A: I wouldn't know.

Q: Don't you need to have a key in order to operate that vehicle?

A: I've owned a Chevy Caprice that did not require a key. And I've owned one other car that did not require a key....

¶ 6 A jury convicted Gratzer of felony DUI. Gratzer was sentenced to thirteen months in prison followed by four years of supervised probation. Gratzer filed an appeal with this Court; however, we dismissed his appeal, at his request, and Gratzer instead filed a petition for postconviction relief with the District Court. In his petition, Gratzer alleged that Officer Eggett fabricated testimony in order to secure Gratzer's conviction, thereby violating

71 P.3d 1224

his right to due process of law. The District Court held a hearing on the matter. At the hearing, Officer Eggett acknowledged that he had not actually owned a Chevrolet Caprice, but rather he had been issued a 1993 or 1994 model by the Sheriff's Department and came to think of it as his. He also testified that "after having [the Chevy Caprice] for a couple of years, the ignition wore out to the point that the key could come out of the ignition and you could turn the car on and off without the key." He never reported this to his supervisor because he did not consider it a problem. Officer Eggett reiterated that he had seen numerous vehicles that operate without keys

¶ 7 Officer Willis Hintz also testified at the postconviction relief hearing. Officer Hintz had been a patrol street supervisor for 11 years and was familiar with Chevy Caprices owned by the Sheriff's Department, like the one issued to Officer Eggett. Officer Hintz testified that he was familiar with the Caprices that started without a key. He explained that with the 1993 and 1994 models one could "put the key in, turn it just one notch, pull out the key, and [ ] actually start the car without the key." He also stated that he had been present for Officer Eggett's testimony and that he had not been surprised to hear Officer Eggett's testimony that he could operate his car without a key.

¶ 8 On cross examination, the following exchange between Gratzer's counsel and Officer Hintz occurred:

Q: So what you're saying is I want to make sure I'm clear you can take these Chevrolet Caprices and turn them one notch, and then take the key out and you could run them without a key?

A: Yes.

Q: But what you're telling the Court is you really couldn't run you have to have the key to turn it that notch?

A: That depends on how you shut it off. Okay. There's there's four different positions on the ignition. Okay? You've got the position where the steering wheel is locked and the car is off. Correct? We agree on that? The next position you can turn it and it will click and the car will be off, won't run, nothing's on. The next position is where the car you have the car on; and if you turn it just a little bit further, where the spring is, it actually starts. The key comes back into that position and the car runs. So it depends on where you turn the key off. Now, that particular episode, on whether the car will start or not

Q: Well, let's just assume that the car has been properly turned off, like any human being would probably turn the car off and put it in a locked position and pull the key, would you make that assumption?

A: If you want to make that assumption.

Q: Okay. What you're testifying to is then under those circumstances, that car is not going anywhere unless you put a key in the ignition and click it once, correct?

A: Correct.

¶ 9 Following the hearing, the District Court denied Gratzer's petition. In...