State v. Campbell, 79-04
| Decision Date | 05 August 1980 |
| Docket Number | No. 79-04,79-04 |
| Citation | 615 P.2d 190,189 Mont. 107,37 St.Rep. 1337 |
| Court | Montana Supreme Court |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Arthur Eldon CAMPBELL, Defendant and Appellant. |
Ralph T. Randono, argued, Great Falls, for defendant and appellant.
Mike Greely, Atty. Gen., Helena, Richard A. Larson, argued, Asst. Atty. Gen., Helena, Ronald Smith, County Atty., Havre, for plaintiff and respondent.
The State initiated this action by filing an information charging appellant Arthur Campbell with one count of driving under the influence of alcohol, sixth offense, and one count of operating a motor vehicle while adjudged an habitual offender. The information was filed in the Twelfth Judicial District Court, Hill County, the Honorable B. W. Thomas presiding. Approximately two months after the filing of the initial charges against Campbell, the District Court granted the State's motion to file an amended information adding a third count to the charges. The added count charged Campbell with negligent homicide.
Campbell entered pleas of not guilty to all three counts charged in the amended information. He also filed a motion to suppress testimony regarding certain identification testimony and the results of a blood test. Subsequent to a hearing on the motion to suppress, the trial court ruled that the identification evidence was admissible but that the blood test results should not be admitted. The State moved to reopen the suppression hearing for the presentation of further evidence. The District Court granted the motion and conducted another hearing into the matter of the admission of a blood test. After the hearing, the court entered a supplemental order denying Campbell's motion to suppress the blood test results.
Prior to trial on the charges, Campbell moved to sever Count II of the information relating to the habitual traffic offender charge. The District Court denied the motion.
Campbell came to trial on the charges in the amended information on May 14, 1979. The jury found him guilty of all charges. Campbell moved for a new trial or a judgment notwithstanding the verdict. The motions were denied, and this appeal followed.
Appellant Campbell began the day of June 6, 1978, by drinking a beer. After drinking somewhere between ten and twelve beers, Campbell and his two companions, Vincent and Manuel Moreno, borrowed a Plymouth automobile to drive to Fresno Reservoir to go swimming.
Gus Keller observed the Plymouth heading west from Havre on Highway 2 toward Fresno. Keller was also headed west on Highway 2. The Plymouth passed his truck. Keller testified that the Plymouth "tapped" his truck twice as it passed. Keller also observed a highway patrol car approaching from the west with its lights flashing. Seconds later, Keller saw what appeared to be a puff of dust along the road ahead.
The highway patrol car Keller observed in the distance was being driven by Patrolman Gordon Hage. Patrolman Hage was proceeding east on Highway 2 to the scene of an accident. He was driving approximately 90 miles per hour with his lights flashing and siren on. The puff of dust Keller saw was caused by the collision of the Plymouth that Campbell was driving and Hage's patrol car. The collision occurred in the patrolman's lane near the edge of the highway. The Plymouth had turned across the highway in front of the oncoming patrol car. Patrolman Hage applied his brakes and veered to the right but was unable to avoid the collision. There was no indication that the driver of the Plymouth attempted to stop his vehicle before the collision.
There were no witnesses to the collision other than the occupants of the vehicles. None of them remember the collision itself. Witnesses who arrived on the scene shortly after the collision found Officer Hage still inside his vehicle. They helped him from the car just as it burst into flames. Vincent and Manuel Moreno were discovered lying on the ground some distance from the Plymouth. Campbell was discovered in the front seat of the vehicle with his right foot wedged under the car's brake pedal and his body angled so that his head was resting on the seat near the passenger door.
All the parties involved in the accident were severely injured. They were taken immediately to the hospital in Havre and treated for injuries. An attempt was made to question Campbell while he was being treated. Patrolman Seyfert of the Highway Patrol attempted to talk with Campbell but was told by a nurse that it would be best if he did not do so. Patrolman Walston and Deputy Sheriff Glover did talk to Campbell. They were unable to get any coherent answers from him. Campbell did respond to some questions about the location of his pain and once spelled his name in the absence of the officers. Generally, however, Campbell showed confusion and incoherence.
After these attempts to question Campbell, Patrolman Seyfert requested that blood samples be taken from the occupants of the Plymouth. A blood sample was subsequently taken from Campbell. The District Court found that Campbell was not placed under arrest prior to the taking of the blood sample, that he was not advised of the purpose for the taking of the blood sample, and that he did not consent to the taking of the sample.
Campbell and Manuel Moreno ultimately recovered from their injuries. Patrolman Hage remains paralyzed as a result of injuries he suffered in the accident. Vincent Moreno did not recover from the injuries he suffered. He died July 14, 1978.
At trial the State introduced the results of the blood alcohol test administered to Campbell shortly after the accident. The test showed Campbell's blood alcohol content was .20 percent. The State also introduced evidence tending to show Campbell was driving the Plymouth when the accident occurred. Patrolman Harold Wood was called as an expert witness. Patrolman Wood testified that his examination of the evidence at the accident scene led him to conclude that Campbell had been driving when the Plymouth collided with the patrol car. Sandy Bryant, a respiratory therapy technician who treated Campbell during his recovery from injuries suffered in the accident, testified about a conversation she overheard between Campbell and Manuel Moreno. Ms. Bryant stated Moreno asked Campbell, "Why did you do that?" to which Campbell replied, "You told me to see if I couldn't hit him." Ms. Bryant said the conversation took place about a week after the accident and that she thought the men were talking about the accident.
Campbell introduced evidence at trial indicating that he was not driving when the cars collided. Dr. Mark Jacobson, a physicist, testified that his analysis of the accident led him to believe the driver of the Plymouth would have been thrown from the car on impact. This testimony implied Campbell was not driving since he was not thrown from the car. Further, Manuel Moreno and Campbell both testified that Vincent Moreno was driving at the time of the accident. However, in a statement made shortly after the accident and before Vincent Moreno died, Manuel Moreno said Campbell had been driving when the accident occurred.
Campbell raises the following issues on appeal:
1. Did the District Court err in admitting the results of Campbell's blood test taken shortly after the accident into evidence?
2. Did the District Court have jurisdiction to hear the charge of driving while under the influence of alcohol?
3. Did the District Court err in refusing to sever Count II of the amended information from the other two counts?
4. Is the jury's verdict supported by sufficient evidence?
The first issue Campbell raises presents three questions for consideration. The first question presented is whether Campbell was unconscious or otherwise in a condition rendering him incapable of refusing to consent to the taking of the blood sample. This question arises because Campbell was not placed under arrest before the taking of the blood test. An arrest is a prerequisite to the taking of a blood sample if a defendant is conscious and capable of refusing to consent to the test. State v. Mangels (1975), 166 Mont. 190, 193, 531 P.2d 1313. Since Campbell was not arrested, the test results would be inadmissible here if Campbell was conscious and capable of refusing consent.
The State does not contend that Campbell was unconscious when the blood test was administered. The question, therefore, is whether Campbell was in a condition rendering him incapable of refusing to consent to the taking of the sample. The standard for determining whether a party is in a condition rendering the party incapable of refusing consent is set out in Mangels where we said, ". . . we only require that the incapacity be determined on the basis of the best evidence which is reasonably available to the officer . . ." 166 Mont. at 194, 531 P.2d at 1315. Applying that standard in Mangels, we found that a highway patrolman improperly determined that Mangels was incapable of refusing consent to the test where Mangels appeared confused, was suffering from abrasions after an accident, and where the patrolman did not talk to Mangels at any time before the taking of the blood sample. 166 Mont. at 192, 194, 531 P.2d at 1313, 1314.
The District Court in this case applied the Mangels test and determined that the best evidence reasonably available to the officers here indicated Campbell was in a condition rendering him incapable of refusing to consent to a blood test. The following evidence was introduced at the suppression hearing to support this determination by the District Court. Patrolman Seyfert testified that when he arrived on the accident scene he found Campbell lying on the front seat of the Plymouth. Seyfert stated Campbell's face was covered with blood and that Campbell was moaning and groaning. Seyfert said Campbell did not respond to the questions he asked him. Patrolman Seyfert further...
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