State v. Cybulski

• Decision Date: 10 March 2009
• Docket Number: No. DA 07-0733.,DA 07-0733.
• Parties: STATE of Montana, Plaintiff and Appellee, v. Beverly Sampson CYBULSKI, Defendant and Appellant.
• Court: Montana Supreme Court

204 P.3d 7

2009 MT 70

STATE of Montana, Plaintiff and Appellee, v. Beverly Sampson CYBULSKI, Defendant and Appellant.

No. DA 07-0733.

Supreme Court of Montana.

Submitted on Briefs February 4, 2009.

Decided March 10, 2009.

For Appellant: A. Lance Tonn, Lucas and Tonn, Miles City, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General, Sheri K. Sprigg, Assistant Attorney General, Helena, Montana, Wyatt A. Glade, Custer County Attorney, Miles City, Montana.

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

¶ 1 Beverly Cybulski appeals her conviction in the District Court for the Sixteenth Judicial District, Custer County, on the charges of Criminal Endangerment and Driving Under the Influence of Alcohol (DUI). We affirm.

¶ 2 Cybulski raised ten issues on appeal which we have restated as follows:

¶ 3 1. Whether the District Court erred in denying Cybulski's motion to suppress evidence based on an allegedly illegal arrest.

¶ 4 2. Whether the District Court erred in denying Cybulski's motion to dismiss the DUI charge on speedy trial grounds.

¶ 5 3. Whether the District Court abused it discretion in instructing the jury on the definition of Criminal Endangerment.

¶ 6 4. Whether the District Court erred in denying Cybulski's motion to dismiss the Criminal Endangerment charge for insufficient evidence at the close of the State's case-in-chief.

¶ 7 5. Whether the District Court erred in granting the State's motion for joinder of the DUI and Criminal Endangerment charges.

¶ 8 6. Whether the District Court erred in denying Cybulski's motion to dismiss the Criminal Endangerment charge based on alleged prosecutorial misconduct.

¶ 9 7. Whether the District Court abused its discretion in admitting the patrol car video taken by the officer who stopped Cybulski and removed her from her vehicle.

¶ 10 8. Whether the District Court abused its discretion in admitting the transcript of the 911 calls.

¶ 11 9. Whether the District Court abused its discretion in admitting the video of Cybulski undergoing sobriety testing at the detention center, with a portion of the video muted.

¶ 12 10. Whether the District Court erred in denying Cybulski's motion to dismiss the Criminal Endangerment charge on double jeopardy grounds.

¶ 13 M.R.App. P. 12(1)f. requires that parties cite to relevant authorities and statutes in support of their arguments on appeal. In this case, Cybulski failed to cite to any statutes or caselaw in support of her arguments regarding joinder, prosecutorial misconduct or double jeopardy (Issues 5, 6 and 10). We have repeatedly held that it is not this Court's obligation to conduct legal research on behalf of a party or to develop legal analysis that might support a party's position. State v. Torgerson, 2008 MT 303, ¶ 36, 345 Mont. 532, 192 P.3d 695.

¶ 14 In addition, instead of setting forth her legal arguments in her brief on appeal regarding her joinder and double jeopardy claims (Issues 5 and 10), Cybulski noted that she intended to rely upon the arguments on these issues made in her briefs before the District Court. This is entirely improper. "The mere reference to arguments and authorities presented in district court proceedings is no substitute for developing and presenting appellate arguments." State v. Ferguson, 2005 MT 343, ¶ 41, 330 Mont. 103, 126 P.3d 463. And, as the State points out, allowing Cybulski to incorporate trial arguments into appellate briefs by reference seriously undermines the word and page limitations in M.R.App. P. 11(4).

¶ 15 Consequently, because of Cybulski's inadequate briefing on Issues 5, 6 and 10, we decline to consider her arguments on those issues.

Factual and Procedural Background

¶ 16 The basic facts of this case were set forth in another matter before this Court pertaining to Cybulski's petition for reinstatement of her driver's license. See In re License Suspension of Cybulski, 2008 MT 128, 343 Mont. 56, 183 P.3d 39 (Cybulski I). The facts detailed in Cybulski I that are pertinent to the instant appeal include:

At about 11:25 p.m. on August 21, 2006, Dispatcher Lyne Anderson of Miles City received a 911 call from a driver on I-94 east who reported that he had just passed a red Camaro or Firebird near mile marker 188 going the wrong way on the highway. This citizen tip was confirmed a short time later by Undersheriff Roos, who passed the red Camaro near mile marker 168. Roos contacted Dispatcher Anderson to report that the vehicle was traveling westbound in the eastbound lane of I-94, in excess of 100 miles per hour. Deputy Hayter was present at the dispatch center that evening, and overheard the calls come in. When it became clear that the Camaro was approaching his jurisdiction, he left the dispatch center to respond to the call.

Deputy Hayter parked his patrol car on the cross-over near exit 146 to intercept the Camaro. He requested the assistance of other peace officers in stopping the Camaro. In the meantime, 911 calls from drivers on I-94 continued to pour in.

Close to 11:53 p.m., Deputy Hayter got a visual on the red Camaro traveling west in the eastbound lane of I-94. According to Hayter's radar, the car was traveling at 75 miles per hour. He activated his lights and sirens, and began pursuit of the vehicle. The Camaro failed to respond. Several miles later, with Deputy Hayter still in pursuit, the Camaro passed Sergeant Davis. Davis was staked out near exit 141, waiting to intercept the errant Camaro. Davis activated his emergency lights and sirens, and joined the pursuit.

After driving on the wrong side of the divided highway for nearly fifty miles, passing multiple vehicles traveling in the opposite direction, and being pursued for more than six miles by police officers with emergency lights and sirens activated, the red Camaro finally slowed to a stop near mile marker 139. Sergeant Davis reached the car first, and gave some commands to the driver, a woman later identified as ... Cybulski.... Cybulski did not respond to Davis's instructions, so he forcibly removed her from the vehicle, and placed her facedown on the ground. Deputy Hayter assisted Sergeant Davis in restraining Cybulski. Both officers noticed a strong odor of alcohol on her person, though the record contains conflicting evidence as to whether they noticed this before or after handcuffing her.

After Sergeant Davis read Cybulski her Miranda rights, Cybulski admitted that she had been drinking. Both officers noticed that Cybulski seemed disoriented and confused. Davis handed custody of Cybulski over to Deputy Hayter, who took her to the Custer County Detention Center for further processing and DUI testing.

At the detention center, Deputy Hayter administered several sobriety tests to Cybulski. Cybulski indicated that due to a prior injury or surgery, she could not perform any tests which involved walking or standing on one leg. Deputy Hayter asked Cybulski to recite the alphabet. Midway through the alphabet, she paused, and then asked if she could continue. Deputy Hayter indicated that she could, and she then finished the recitation. In Hayter's judgment, Cybulski failed the alphabet test.

Next, Hayter administered the HGN test. He was trained to administer the test; however, this was the first time he had actually given one. Deputy Hayter noticed that Cybulski's eyes were red and bloodshot, and after observing her involuntary eye movements, concluded that she failed the HGN test. He then asked her to perform a breathalyzer test, and explained the consequences of refusing under Montana's informed consent law. Cybulski refused; Deputy Hayter read her her Miranda rights again, and turned her over to the detention staff.

Cybulski I, ¶¶ 4-10.

¶ 17 Cybulski was charged with DUI in violation of § 61-8-401, MCA; Driving on the Wrong Side of a Divided Highway in violation of § 61-8-330, MCA; and Reckless Driving in violation of § 61-8-301, MCA. On November 1, 2006, she pled guilty in Justice Court to the charge of Driving on the Wrong Side of a Divided Highway, and she was fined $85. Trial for the two remaining charges was set for February 14, 2007.

¶ 18 On February 1, 2007, the Justice of the Peace granted Cybulski's motion to suppress much of the State's evidence based on the legality of her arrest. The following day, the State appealed to the District Court for a trial de novo. Consequently, the Justice Court trial was vacated and the file was transmitted to the District Court. Thereafter, the State moved to dismiss the misdemeanor Reckless Driving charge and to file an Information charging Cybulski with felony Criminal Endangerment. The District Court granted the State's motions after a hearing and Cybulski was arraigned on the Criminal Endangerment charge. The DUI charge and the Criminal Endangerment charge were joined for trial at the State's request.

¶ 19 Following a four-day jury trial beginning August 28, 2007, Cybulski was convicted of misdemeanor DUI and felony Criminal Endangerment. She was sentenced to one day in jail on the DUI charge and her driver's license was suspended for six months. Cybulski received a five-year deferred imposition of sentence on the Criminal Endangerment charge to run concurrently with the DUI sentence. She was also fined $1000 on each charge.

¶ 20 Cybulski appeals the District Court's Judgment.

Issue 1.

¶ 21 Whether the District Court erred in denying Cybulski's motion to suppress evidence based on an allegedly illegal arrest.

¶ 22 Prior to trial, Cybulski moved to suppress all of the evidence collected during and after her arrest on the grounds that her arrest was illegal. The District Court denied the motion concluding that at the time Sergeant Davis removed Cybulski from her vehicle, Sergeant Davis "clearly had a right to suspect that she was under the influence of alcohol or drugs, although some other mental impairment was also possible."

¶ 23 Although the record indicates that both Sergeant Davis and Deputy...