State v. Bingman, 02-013.

• Citation: 2002 MT 350,61 P.3d 153,313 Mont. 376
• Decision Date: 30 December 2002
• Docket Number: No. 02-013.,02-013.
• Parties: STATE of Montana, Plaintiff and Respondent, v. James Dean BINGMAN, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

61 P.3d 153

2002 MT 350

313 Mont. 376

STATE of Montana, Plaintiff and Respondent, v. James Dean BINGMAN, Defendant and Appellant.

No. 02-013.

Supreme Court of Montana.

Submitted on Briefs June 13, 2002.

Decided December 30, 2002.

R. Stan Peeler, Peeler Law Office, Bozeman, Montana, For Appellant.

Mike McGrath, Attorney General; Pamela D. Bucy, Assistant Attorney General, Helena, Montana, Marty Lambert, Gallatin County Attorney, Bozeman, Montana, For Respondent.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 Appellant James Dean Bingman was convicted of a fourth or subsequent offense of driving under the influence of alcohol in the Eighteenth Judicial District Court, Gallatin County. As the case progressed, Bingman filed several pre-trial and post-trial motions, all of which were denied by the District Court. Bingman was sentenced to thirteen months in the custody of the Department of Corrections for driving under the influence of alcohol, followed by four years of probation. The District Court also designated Bingman a persistent felony offender, sentencing him to twenty years in the Montana State Prison, with ten years suspended, the sentences to run consecutively. Bingman appeals his sentence, as well as the District Court's denial of both his pre-trial and post-trial motions. We affirm the judgment of the District Court.

¶ 2 We restate the issues on appeal as follows:

¶ 3 1. Did the District Court err in denying Bingman's motion to exclude witnesses Saylor, Earnest and Lewis from testifying against him at trial?

¶ 4 2. Did the District Court err in admitting evidence of Bingman's prior convictions of driving under the influence of alcohol?

¶ 5 3. Was there sufficient evidence to support Bingman's conviction of driving under the influence of alcohol?

¶ 6 4. Did the District Court err in sentencing Bingman as a persistent felony offender?

BACKGROUND

¶ 7 At approximately 5:00 p.m. on September 1, 2000, Officer William Rash received a dispatch concerning a "hit and run" accident in the parking lot of Roskie Hall at Montana State University (MSU) in Bozeman, Montana. Officer Rash responded to the dispatch and encountered several witnesses to the incident, including Sissy Thompson Fears, her daughter Krystal Saylor, and Saylor's friends Tara Earnest and Amber Kappel. Officer Rash interviewed the witnesses and learned that a silver sedan had struck the passenger side of Saylor's vehicle. Saylor's vehicle was parked at the time of the accident, and Saylor was seated in the passenger seat, Earnest was in the driver's seat, Kappel was in the rear seat, and Fears was standing in the parking lot nearby.

¶ 8 Immediately after the accident, Saylor got out of her vehicle and attempted to speak with the other driver. Saylor's efforts were unsuccessful, however, as the driver was disoriented and unresponsive to her questions. Saylor described the driver as a Mexican or Native American man with dark hair, scraggly facial hair, and several tattoos on his left arm. Saylor also observed that the driver appeared to be missing some teeth. Finally, Saylor noted that the other car's window was rolled down, giving her a clear view of the driver.

¶ 9 Saylor provided Officer Rash with a description of the driver and his vehicle. Saylor also gave Officer Rash the vehicle's license plate number. When questioned, Earnest, Kappel, and Fears supplied Officer Rash with very similar accounts of the entire exchange. All four women were adamant that the driver was disoriented, and seemed unaware that he had struck Saylor's vehicle. The women also observed that there was a second man in the passenger seat of the other car. Officer Rash ran a registration check on the license plate number provided by Saylor and determined that the vehicle was registered to James Dean Bingman and Cassie Standish. Officer Rash then put out an "attempt to locate" call to other law enforcement units in the Bozeman area.

¶ 10 Moments after the incident at MSU, Peggy Lewis was driving north on Fowler Lane in Gallatin County, Montana. Lewis noticed that a light-colored car was attempting to run down some pheasants that had wandered into the road. The car swerved into Lewis's lane of traffic at least twice, causing Lewis to veer into the other lane to avoid an accident. The car eventually passed Lewis, and because both her car's window and the other car's window were rolled down, Lewis got an unobstructed view of the other driver. Lewis described the driver as short, with dark hair, a mustache, and a dark complexion. Lewis also noted the car's license plate number, which was identical to the number which Saylor had provided to Officer Rash. Lewis returned home and telephoned the police, informing them of the incident on Fowler Lane.

¶ 11 At approximately 6:00 p.m., police officers located and stopped the vehicle which matched the license plate number given by both Saylor and Lewis. At the time of the stop, the driver of the car was Kelly McLean. James Dean Bingman was seated in the passenger seat of the car. Both men appeared to be intoxicated, and McLean was arrested for driving under the influence of alcohol. Lewis learned of the stop on her scanner and went to the area of the stop. Lewis informed the officers that the man she observed driving on Fowler Lane was seated in the passenger seat of the car, referring to Bingman. Lewis then left the area of the stop.

¶ 12 Officer Patrick McLaughlin arrived at the stop and recognized Bingman from previous encounters. Officer McLaughlin, who had spoken with Officer Rash, transported Bingman to MSU, as Bingman matched the description of the driver in the MSU incident. As Officer McLaughlin drove past Lewis's home, Lewis came out to speak with him. Lewis informed Officer McLaughlin that his passenger was the man driving the car during the incident on Fowler Lane, again referring to Bingman.

¶ 13 Upon his arrival at the MSU police department, Bingman was advised of his Miranda rights, which he waived. Bingman then gave a taped statement to Officer Rash. In his statement, Bingman admitted that he had been drinking, but denied having driven during either the MSU or Fowler Lane incidents. Officer Rash noted that Bingman had bloodshot eyes, slurred speech, and smelled strongly of alcohol. At Officer Rash's request, Saylor and Earnest were waiting at the police department at MSU. After viewing Bingman through a two-way glass window, both Saylor and Earnest immediately identified Bingman as the man that had been driving during the MSU incident.

¶ 14 On September 19, 2000, the Respondent, State of Montana, filed an information charging Bingman with driving under the influence of alcohol, fourth or subsequent offense, a felony, in violation of § 61-8-401, MCA (1999). Bingman pled not guilty to the charge on February 14, 2001. On February 20, 2001, the State filed notice of its intent to seek treatment of Bingman as a persistent felony offender. Bingman filed two pro se motions to dismiss on March 8, 2001, and March 28, 2001, and a pro se motion to dismiss witness testimony on March 27, 2001. Bingman also filed a pro se motion to dismiss for lack of evidence on April 10, 2001. On April 30, 2001, Bingman's newly-assigned counsel filed a motion to exclude witnesses Saylor, Earnest and Lewis from testifying against Bingman at trial.

¶ 15 The District Court conducted hearings on Bingman's pre-trial motions on May 11, 2001, and May 14, 2001. The District Court denied Bingman's motions on August 22, 2001. The case proceeded to jury trial on August 27, 2001. On August 28, 2001, the jury returned a verdict of guilty. Bingman filed a sentencing memorandum on September 12, 2001, urging the District Court to sentence him as a non-violent felony offender. On October 23, 2001, Bingman was sentenced to thirteen months in the custody of the Department of Corrections, followed by four years of probation. The District Court also designated Bingman a persistent felony offender, sentencing him to twenty years in the Montana State Prison, with ten years suspended, the sentences to run consecutively.

¶ 16 Bingman filed a notice of appeal on October 25, 2001. On October 25, 2001, Bingman also filed a motion in the District Court for stay of execution of sentence pending appeal. On November 9, 2001, Bingman filed a motion with the District Court for reconsideration of his sentence. The District Court denied Bingman's post-trial motions on November 16, 2001. Bingman filed an amended notice of appeal on December 21, 2001, in which he appealed his sentence, as well as the District Court's denial of both his pre-trial and post-trial motions.

STANDARD OF REVIEW

¶ 17 This Opinion addresses multiple issues, and as such, the appropriate standard of review for each issue will be set forth immediately preceding discussion of that issue.

DISCUSSION

ISSUE 1

¶ 18 Did the District Court err in denying Bingman's motion to exclude witnesses Saylor, Earnest and Lewis from testifying against him at trial?

¶ 19 We treat a district court's denial of a motion to suppress the testimony of a witness as a ruling on the admissibility of evidence. State v. Scarborough, 2000 MT 301, ¶ 62, 302 Mont. 350, ¶ 62, 14 P.3d 1202, ¶ 62. Our standard of review for a district court's evidentiary rulings is abuse of discretion. Absent a showing of such abuse we will not overturn the district court's decision. Scarborough, ¶ 62.

¶ 20 Bingman contends that the District Court improperly admitted witness testimony from Saylor, Earnest and Lewis at trial. Specifically, Bingman asserts that Saylor and Earnest's observation of him though a two-way window at the MSU police department was impermissibly suggestive, resulting in an unreliable identification. Bingman also alleges that Lewis's observation of him in Officer McLaughlin's vehicle was impermissibly suggestive, resulting in an unreliable identification. The State counters that the certainty of the...