State v. Belgarde

• Decision Date: 16 June 1998
• Docket Number: No. 96-124,96-124
• Citation: 962 P.2d 571,289 Mont. 287
• Parties: STATE of Montana, Plaintiff and Respondent, v. Myron James BELGARDE, Defendant and Appellant.
• Court: Montana Supreme Court

Page 571

962 P.2d 571

1998 MT 152

STATE of Montana, Plaintiff and Respondent, v. Myron James BELGARDE, Defendant and Appellant.

No. 96-124.

Supreme Court of Montana.

Submitted on Briefs Sept. 11, 1997.

Decided June 16, 1998.

Jack H. Morris, Whitehall, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Valerie Wilson, Jefferson County Attorney, Boulder, for Plaintiff and Respondent.

NELSON, Justice.

¶1 Defendant Myron Belgarde (Belgarde) appeals from the sentence and judgment of the Fifth Judicial District Court, Jefferson County, entered after a jury convicted him of driving while under the influence of alcohol, as well as from the District Court's denial of both his motion to dismiss and motion to suppress. We affirm.

¶2 We restate the following issues on appeal:

¶3 1. Did the District Court err in denying Belgarde's motion to dismiss for the State's failure to preserve exculpatory evidence in the form of a videotape made at the time of his arrest?

¶4 2. Did the District Court err by denying Belgarde's motion to suppress statements he made at the time of his arrest and prior to being given his Miranda warnings?

¶5 3. Is Belgarde entitled to a new trial due to the State's alleged failure to disclose a document contained in the court record?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 On May 29, 1995, Officer Mitch Tuttle, a Montana Highway Patrol Officer, was on patrol in Jefferson County, near Boulder, Montana. At approximately 2:45 a.m., Officer Tuttle was traveling south on Interstate 15 towards Boulder when he observed Belgarde traveling north at a high rate of speed. Officer Tuttle activated his radar unit and obtained a speed of 82 miles per hour. In response, Officer Tuttle drove through the median, activated his overhead lights and pursued Belgarde for almost four miles; however, Belgarde did not slow down or stop. After Officer Tuttle activated his siren, Belgarde stopped and pulled his vehicle over to the side of the road at an angle so that the vehicle's left rear corner failed to clear the fog line and remained in the lane of traffic.

¶7 Upon approaching Belgarde, Officer Tuttle noticed the smell of alcohol. Concerned that Belgarde was driving while under the influence of alcohol, Officer Tuttle asked Belgarde to come back to the patrol car. Belgarde took a seat in the front of the patrol car where Officer Tuttle further noticed that Belgarde had bloodshot eyes and slurred speech. Officer Tuttle administered the Horizontal Gaze Nystagmus test (HGN test) which Belgarde failed. After completing the HGN test, Officer Tuttle arrested Belgarde and transported him to the Jefferson County Sheriff's Department.

¶8 Upon arrival at the Jefferson County Sheriff's Department, Officer Tuttle drove the patrol car into the "sally port," or garage, and the door shut behind him. Officer Tuttle exited the patrol car, retrieved Belgarde from the passenger side and escorted him to the entrance of the jail facility. In the booking area, Belgarde failed to perform the walk-and-turn test and refused to perform the one-legged stand test. After reading to Belgarde Montana's implied consent advisory form, Officer Tuttle asked Belgarde to take a breath test, which Belgarde refused to do. Subsequently, Officer Tuttle read Belgarde his Miranda rights which Belgarde refused to waive, responding that he wished to have an attorney present.

¶9 The Jefferson County Sheriff's Department has video cameras to record activities occurring in both the sally port and the booking area. A video camera is activated when a patrol car enters the sally port and records when someone exits the patrol car and proceeds to the door of the booking area. After leaving the sally port area, a second camera, located in the booking area, is to be activated by a Sheriff's Department employee. Here, the sally port videotape of Belgarde, which showed him exiting Officer Tuttle's patrol car and walking behind the car into the booking area, was erased except for a one or two-second recording of the patrol car in the sally port. Furthermore, the video camera in the booking area was never activated, and, consequently, Belgarde was not videotaped during the booking process.

¶10 Belgarde was charged in Justice Court with driving a motor vehicle while under the influence of alcohol (DUI) in violation of § 61-8-401, MCA; driving with a suspended license in violation of § 61-5-212, MCA; and operating a motor vehicle without current liability insurance in violation of § 61-6-301, MCA. Represented by counsel, Belgarde entered pleas of not guilty to all charges and requested a jury trial. Thereafter, Belgarde filed various motions including a motion to dismiss his DUI charge because the State failed to preserve exculpatory evidence in the form of a videotape made during the booking process and a motion to suppress any statements made prior to being advised of his Miranda rights. Additionally, Belgarde changed his plea to guilty for the charges of driving with a suspended license and driving without liability insurance. Subsequently, the Justice Court granted Belgarde's motion to dismiss his DUI charge because he was denied exculpatory evidence.

¶11 The State appealed the Justice Court's order dismissing Belgarde's DUI charge to the Fifth Judicial District Court, Jefferson County, where Belgarde requested a jury trial and renewed his motion to dismiss and his motion to suppress. On January 29, 1996, following briefing and a hearing, the District Court denied a number of pretrial motions including Belgarde's motion to dismiss and his motion to suppress. Subsequently, a jury trial was held on January 31, 1996, and Belgarde was found guilty of DUI, in violation of § 61-8-401, MCA. Thereafter, the District Court sentenced Belgarde to six months imprisonment in the Jefferson County Jail, with all but thirty days suspended, imposed numerous fees and conditions, and stayed imposition of his sentence pending appeal. From the District Court's sentence and judgment as well as the court's denial of both his motion to dismiss and motion to suppress, Belgarde appeals.

DISCUSSION

¶12 1. Did the District Court err in denying Belgarde's motion to dismiss for the State's failure to preserve exculpatory evidence in the form of a videotape made at the time of his arrest?

¶13 The District Court denied Belgarde's motion to dismiss his DUI charge holding that the State was under no duty to make a videotape in the booking room, and, further, that Belgarde failed to show what, if any, exculpatory evidence had been destroyed. A district court's grant or denial of a motion to dismiss in a criminal case is a question of law which we review de novo. State v. Brander (1996), 280 Mont. 148, 151, 930 P.2d 31, 33.

¶14 Citing State v. Swanson (1986), 222 Mont. 357, 722 P.2d 1155, Belgarde argues that the District Court erred by denying his motion to dismiss his DUI charge. Belgarde concedes that the State had no duty to assist him in obtaining exculpatory evidence. Nonetheless, Belgarde asserts that, just as in State v. Halter (1989), 238 Mont. 408, 777 P.2d 1313, the court should have granted his motion because the State violated his due process rights by failing to preserve videotaped evidence of his demeanor during the booking process.

¶15 The State responds that the State had no duty to videotape Belgarde's booking process, and, therefore, the failure to do so did not violate Belgarde's due process rights. The State further responds that Belgarde does not assert and no evidence exists that the erasure of the videotape of Belgarde in the sally port of the Sheriff's Department was done deliberately; that the videotape was material; or that he was prejudiced by the erasure. Therefore, the State argues that the District Court properly denied Belgarde's motion to dismiss. We agree.

¶16 A criminal defendant has a constitutional right to obtain exculpatory evidence and denial of this right is a violation of due process. State v. Sadowski (1991), 247 Mont. 63, 79, 805 P.2d 537, 546. Nevertheless, this right is only a personal right, and, therefore, police officers are not required to take initiative or even assist the defendant with procuring evidence on his own behalf. Sadowski, 247 Mont. at 79, 805 P.2d at 546. However, while the police do not have an affirmative duty to gather exculpatory evidence, the police may not frustrate or hamper an accused's right to obtain exculpatory evidence. State v. Heth (1988), 230 Mont. 268, 272, 750 P.2d 103, 105. We further explained in Heth:

Only a deliberate or intentional suppression of exculpatory evidence is a per se violation of due process. To amount to a denial of due process, negligently suppressed evidence must be vital to the defense. It must be more than a mere suppression, in that the defense must show the evidence was material and of substantial use. Finally, the evidence must be exculpatory meaning it "[w]ould have tended to clear the accused of guilt, to vitiate a conviction." Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; State v. Patterson (1983), 203 Mont. 509, 512-13, 662 P.2d 291, 293.

Heth, 230 Mont. at 272, 750 P.2d at 105.

¶17 Here, the sally port videotape of Belgarde, which showed him exiting Officer Tuttle's patrol car and walking behind the car into the booking area, was erased except for a one or two-second recording of the patrol car in the sally port. Furthermore, the video camera in the booking area was never activated, and, consequently, Belgarde was not videotaped in the booking room. Therefore, the issue in the case at bar involves both the State's failure to "preserve" evidence as well as the State's failure to "gather" evidence. That is, police officers at the Sheriff's Department failed to "preserve" evidence when they erased the videotaped recording of Belgarde in the sally port, and, furthermore, they failed to "gat...