State Of Mont. v. Scheffer

• Decision Date: 13 April 2010
• Docket Number: No. DA 08-0332.,DA 08-0332.
• Citation: 230 P.3d 462,355 Mont. 523,2010 MT 73
• Parties: STATE of Montana, Plaintiff and Appellee,v.Thomas SCHEFFER, Defendant and Appellant.
• Court: Montana Supreme Court

355 Mont. 523

230 P.3d 462

2010 MT 73

STATE of Montana, Plaintiff and Appellee,v.Thomas SCHEFFER, Defendant and Appellant.

No. DA 08-0332.

Supreme Court of Montana.

Submitted on Briefs June 5, 2009.

Decided April 13, 2010.

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For Appellant: Milton Datsopoulos, Peter Lacny, Datsopoulos, MacDonald & Lind, P.C., Missoula, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General, Sheri K. Sprigg, Assistant Attorney General, Helena, Montana, Fred Van Valkenburg, Missoula County Attorney, Jennifer Clark, Andrew Paul, Deputy County Attorneys, Missoula, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Thomas Eugene Scheffer appeals from his conviction of attempted tampering with or fabricating physical evidence, a felony, following a jury trial in the Fourth Judicial District Court, Missoula County. We affirm.

ISSUES

¶ 2 Scheffer raises three issues on appeal:

1. Did the District Court err in denying Scheffer's motion to suppress?

2. Did the District Court abuse its discretion in denying Scheffer's motion to dismiss the Amended Information?

3. Must Scheffer's conviction of attempted tampering with or fabricating physical evidence be vacated as “irrationally inconsistent” with his acquittal of sexual intercourse without consent?

GENERAL BACKGROUND

¶ 3 Shortly after midnight on August 25, 2007, Missoula County 9-1-1 received a report that Scheffer had attempted to rape a woman (whom we refer to herein as “H.K.”) earlier that evening outside Larry's Six Mile tavern in Huson, Montana.¹ Officers from the Missoula County Sheriff's Department responded to H.K.'s location to interview her and other individuals who had observed H.K.'s demeanor following the incident. H.K. told the officers that she had gone to Larry's Six Mile at around 10:00 that evening and, while there, had gotten into a conversation with Scheffer about Corvettes. According to H.K., Scheffer invited her outside to look at his Corvette Stingray and, at some point while they were outside, tried to kiss her. H.K. pulled away but Scheffer grabbed one of her arms. This caused her to fall to the ground with Scheffer on top of her. H.K. stated that he tried to pull up her shirt, but she resisted. Scheffer then moved one of his hands down the front of her pants and inside her underwear and inserted one or more of his fingers inside her vagina. H.K. said she then kicked Scheffer in order to get away.

¶ 4 After interviewing H.K., a deputy transported her to First Step in Missoula for a medical examination while two other officers attempted to locate Scheffer. They found him sitting in his Corvette with an unidentified female in the parking lot of Larry's Six Mile just after closing. The officers approached the car and asked Scheffer if he would speak with them. Scheffer agreed, and they walked over to Deputy Jon Gunter's patrol car. Initially, Scheffer was very cooperative, but he soon became defensive. When Gunter stated that he wanted to ask Scheffer about H.K., Scheffer preemptively exclaimed, “I didn't touch her.” Sergeant Anthony Rio then read Scheffer his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Scheffer stated that he would speak with Rio and answer questions. Scheffer explained that the reason H.K. was upset and “freaked out” was because she had lost her purse. Scheffer stated that he had helped her find it. Rio noted that Scheffer's speech was slurred, his breath smelled of alcohol, and he rambled quite a bit during the interview, which took place over the course of 10 to 20 minutes.

¶ 5 Meanwhile, roughly 30 people were milling about in the parking lot, some jeering at the officers and others coming over to listen to the interview with Scheffer. These distractions were making it difficult to have a conversation, so Sergeant Rio suggested that Scheffer come down to the sheriff's office and give his statement there. Scheffer agreed; however, due to his intoxicated condition and the fact that he was a suspect, the officers patted him down, handcuffed him, and put him in the back of the patrol car.

¶ 6 At the sheriff's office, the officers removed the handcuffs and put Scheffer in an interrogation room, where he was questioned by Detective T.J. McDermott. McDermott observed that Scheffer appeared to be under the influence of alcohol but nevertheless was coherent and able to answer questions throughout the interview, which lasted roughly an hour. The video recording of the interview is contained in the record on appeal. Portions of it were played to the jury at trial.

¶ 7 Scheffer told McDermott that he and H.K. had been at Scheffer's shop (which is located adjacent to Larry's Six Mile tavern) earlier in the evening and that he had kissed H.K. several times there while the two of them were sitting on a couch. He claimed that H.K. had “begged” him to have sex with her but he had refused because of his friendship with H.K.'s fiancé. Scheffer emphatically denied touching H.K. (except for kissing her), and he likewise denied putting his hand down her pants and his fingers in her vagina. He suggested a number of times that McDermott bring H.K. and certain other individuals down to the stationhouse in order to clear everything up right then and there.

¶ 8 In light of H.K.'s allegation of digital penetration, McDermott told Scheffer that he wanted to swab Scheffer's fingers to test for the presence of H.K.'s DNA and thereby corroborate Scheffer's story (assuming the test showed that her DNA was not present). Scheffer consented to this procedure. However, while McDermott was out of the room obtaining the swabbing materials, Scheffer quickly stuck three fingers of his right hand (the index, middle, and ring fingers) entirely in his mouth, moved them back and forth, took them out, rubbed his hands together, and then wiped his fingers on his jeans (all within the span of about six seconds). McDermott and Sergeant Rio observed these actions on a monitor in the hallway. Twenty seconds later Scheffer briefly chewed on his right-hand fingernails.² After McDermott swabbed Scheffer's fingers, he confronted Scheffer about sticking his fingers in his mouth. Scheffer flatly denied doing so.

¶ 9 At the conclusion of the interview, McDermott placed Scheffer under arrest. The State subsequently charged him on September 11, 2007, with sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA (Count I); tampering with or fabricating physical evidence, a felony, in violation of § 45-7-207, MCA (Count II); and unlawful restraint, a misdemeanor, in violation of § 45-5-301, MCA (Count III). Scheffer pleaded not guilty to these charges and subsequently filed a motion to suppress his statements and the evidence obtained during the interview with McDermott. He argued that he had requested the presence of counsel but that McDermott had continued to question Scheffer despite this request. The District Court reviewed the video recording and thereafter denied Scheffer's motion, concluding that he had not actually invoked his right to counsel.

¶ 10 On May 21, 2008 (seven days before trial), the State requested leave to file an Amended Information under § 46-11-205, MCA. The prosecutor explained that when the original Information was filed, the crime lab had not yet completed testing of the swabs of Scheffer's fingers; however, the testing had since been completed, and it revealed the presence of both Scheffer's DNA and H.K.'s DNA. The prosecutor thus asserted that Scheffer had “attempted to destroy the evidence, but was not successful,” and she sought to amend Count II to allege attempted tampering with or fabricating physical evidence, a felony, in violation of §§ 45-4-103 and 45-7-207, MCA. The District Court granted the motion over Scheffer's objections that the amendment was untimely and the supporting affidavit was invalid. Scheffer entered a plea of not guilty to the amended charge.

¶ 11 A four-day jury trial commenced on May 28, 2008. Scheffer testified in his own defense. Contrary to what he had told Detective McDermott, Scheffer stated that when he and H.K. were on the couch in his shop, he put his hand in her pants and she put her hand in his pants. He further admitted that he put his fingers into her vagina, but he claimed that he did so with H.K.'s consent.

¶ 12 The jury ultimately found Scheffer not guilty of sexual intercourse without consent and unlawful restraint, but found him guilty of attempted tampering with or fabricating physical evidence. The District Court deferred imposition of sentence for a period of three years and imposed a $1,000 fine. Scheffer now appeals.

DISCUSSION

¶ 13 Issue 1. Did the District Court err in denying Scheffer's motion to suppress?

I. Standard of Review

¶ 14 In reviewing a district court's ruling on a motion to suppress evidence or statements, we determine whether the court's underlying findings of fact are clearly erroneous and whether the court's interpretation and application of the law are correct. State v. Munson, 2007 MT 222, ¶ 18, 339 Mont. 68, 169 P.3d 364; State v. Clark, 2008 MT 419, ¶ 12, 347 Mont. 354, 198 P.3d 809. The court's findings are clearly erroneous if they are not supported by substantial evidence, if the court has misapprehended the effect of the evidence, or if this Court's review of the record leaves us with a definite or firm conviction that a mistake has been made. Munson, ¶ 18.

II. Legal Basis of Scheffer's Right-to-Counsel Claim

¶ 15 As noted, Scheffer filed a motion to suppress his statements and the evidence obtained during the interview with McDermott on the ground that he had been denied his right to counsel. According to Scheffer, he made an unambiguous request for counsel, at which point all questioning should have stopped, and because it did not, any evidence obtained from the interrogation should have been suppressed. On appeal, the parties disagree...