State v. Devlin

• Citation: 294 Mont. 215,980 P.2d 1037,1999 MT 90
• Decision Date: 28 April 1999
• Docket Number: No. 98-143,98-143
• Parties: STATE of Montana, Plaintiff and Appellant, v. Michael James DEVLIN, Defendant and Respondent.
• Court: United States State Supreme Court of Montana

Page 1037

980 P.2d 1037

1999 MT 90

STATE of Montana, Plaintiff and Appellant, v. Michael James DEVLIN, Defendant and Respondent.

No. 98-143.

Supreme Court of Montana.

Argued Feb. 23, 1999.

Submitted March 11, 1999.

Decided April 28, 1999.

Rehearing Denied June 10, 1999.

Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General, Helena, Montana, George H. Corn, County Attorney; Geoffrey T. Mahar (argued), Deputy County Attorney Hamilton, Montana, For Appellant.

Paul Neal Cooley (argued), Skelton & Cooley, Missoula, Montana, For Respondent.

Chief Justice J.A. TURNAGE delivered the Opinion of the Court.

¶1 In this DUI case, the Twenty-first Judicial District Court, Ravalli County, suppressed evidence of Michael James Devlin's responses to an officer's requests that he recite the alphabet and count in sequence. The State of Montana appeals. We reverse and remand for further proceedings consistent with this Opinion.

¶2 The issue is whether the District Court erred in granting Devlin's motion to suppress evidence of his responses to the officer's requests, made after Devlin was arrested for DUI but before he was advised of his Miranda rights, that he recite the alphabet starting with the letter "K" and count aloud from 46 to 72.

¶3 At about 11:00 p.m. on April 25, 1997, Ravalli County Deputy Sheriff Greg Stewart saw Devlin driving north on Highway 93 at erratic speeds and weaving across both the center line and the fog line at the edge of the road. When Stewart pulled Devlin over, he smelled alcohol on Devlin's breath and Devlin's speech was slurred and slow. Devlin failed several field sobriety tests and was placed under arrest and taken to the Ravalli County Sheriff's Office. There, Stewart again asked Devlin to perform field sobriety tests, videotaping the results. The tests included recitation of the alphabet starting with the letter "K" and counting out loud from 46 to 72. When these tests were administered, Devlin had not yet been read his Miranda rights.

¶4 Devlin was initially prosecuted in Ravalli County Justice Court, where he moved to suppress evidence of "all statements made by him not preceded by a Miranda warning" and "all [of his] testimonial answers in field sobriety tests." The State opposed that motion. After briefing, the court denied the motion to suppress. Devlin was convicted of DUI and sentenced to two days in jail. His sentence was stayed pending his appeal to District Court.

¶5 In the District Court, Devlin renewed his motion to suppress. After reviewing the parties' briefs, the court entered an order and opinion suppressing the results of the alphabet and the number recitation tests. The State appeals.

Discussion

¶6 Did the District Court err in granting Devlin's motion to suppress evidence of his responses to the arresting officer's requests made after Devlin was arrested for DUI but before he was advised of his Miranda rights, that he recite the alphabet starting with the letter "K" and count aloud from 46 to 72?

¶7 Our standard of review of a ruling on a motion to suppress where the facts are not in dispute is to determine whether the district court's conclusions of law are correct as a matter of law. This Court's review is plenary as to whether the district court correctly interpreted and applied the law. State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021.

¶8 The issue here presented implicates the right guaranteed under the Fifth Amendment to the United States Constitution not to be compelled to be a witness against oneself in a criminal case. The Fifth Amendment privilege was designed to protect against the "cruel trilemma" of having to choose among answering truthfully, answering falsely, or remaining silent. See Pennsylvania v. Muniz (1990), 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528. Like the United States Constitution, Montana's Constitution guarantees, at Article II, Section 25, that "[n]o person shall be compelled to testify against himself in a criminal proceeding."

¶9 At the outset, we note the representation made at oral argument that before asking Devlin to perform those field sobriety tests, the arresting officer obtained Devlin's assent that he was familiar with the alphabet and with counting. We make no determination as to the constitutionality of using as evidence the response of a person unfamiliar with the alphabet when asked to recite its letters or a person unable to count when asked to recite numbers in sequence.

¶10 In State v. Thompson (1989), 237 Mont. 384, 773 P.2d 722, this Court upheld the use as evidence of a videotape of a DUI defendant's response to field sobriety tests including a request that he recite the alphabet. We agreed with the trial judge's conclusion that the defendant's spoken words on the videotape did not include any testimonial information. Thompson, 237 Mont. at 387, 773 P.2d at 724. Devlin and the District Court take the position that the United States Supreme Court's opinion in Muniz effectively overrules Thompson.

¶11 Muniz was arrested for DUI on a Pennsylvania highway and taken to a booking center where he was told that his actions and voice would be videotaped. Muniz then answered questions about his name, address, height, weight, eye color, date of birth, and age. He was also asked, but was unable to give, the date of his sixth birthday. He refused to take a breathalyzer test and was then advised of his Miranda rights.

¶12 Over Muniz's objection, the videotape from the booking center was introduced into evidence at his trial, and he was convicted of DUI. On appeal, the Pennsylvania Superior Court reversed on grounds that the videotape was inadmissible as evidence because it violated Muniz's right against self-incrimination. Commonwealth v. Muniz (1988), 377 Pa.Super. 382, 547 A.2d 419. The Commonwealth of Pennsylvania appealed that decision, but the Pennsylvania Supreme Court denied the application for review. At the next level of appeal, however, the United States Supreme Court granted certiorari.

¶13 The United States Supreme Court ruled that Muniz's answers to questions about his name, address, height, weight, eye color, date of birth, and age were admissible into evidence under an exception to the Miranda requirements for routine booking questions. Muniz, 496 U.S. at 601, 110 S.Ct. 2638. The Court determined, however, that the sixth birthday question was not a routine booking question, that it "required a testimonial response," and that, as a result, Muniz's response should have been suppressed as a violation of the privilege against self-incrimination. Muniz, 496 U.S. at 598-600, 110 S.Ct. 2638. It is important to note that the Muniz Court specifically reserved decision on whether counting as part of the field sobriety tests would be testimonial within the meaning of the privilege against self-incrimination. Muniz, 496 U.S. at 604, n. 17, 110 S.Ct. 2638.

¶14 The Court has defined a testimonial response as one in which the accused explicitly or implicitly relates a factual assertion or discloses information. Doe v. United States (1988), 487 U.S. 201, 210, 108 S.Ct. 2341, 2347, 101 L.Ed.2d 184, 197. The need for use of the human voice does not automatically make an answer testimonial. United States v. Wade (1967), 388 U.S. 218, 222-23, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149, 1155. The physical inability to articulate words because of lack of muscle coordination of the tongue and mouth is not in itself testimonial. Muniz, 496 U.S. at 590-91, 110 S.Ct. 2638.

¶15 Requiring a criminal suspect's presence and speech at a lineup does not require the person to disclose any knowledge he might have and does not violate the Fifth Amendment. Wade, 388 U.S. at 222-23, 87 S.Ct. 1926. Such a requirement is not testimonial even though it requires a verbal response and is not a routine booking question. Similarly, a grand jury witness may be compelled to read a transcript in order to provide an example of his or her voice if the voice example is to be used only to measure the physical properties of the witness's voice and not for the testimonial or communicative content of what is said. United States v. Dionisio (1973), 410 U.S. 1, 7, 93 S.Ct. 764, 768, 35 L.Ed.2d 67, 75.

¶16 Devlin argues that asking him to recite the alphabet and to count is a request to disclose information beyond possible slurred speech; that incorrect recitation of the alphabet or numbers would constitute incriminating evidence from his own mouth. The same could have been said in Wade regarding required speech at a lineup and Dionisio regarding the required reading of a transcript to provide a voice example.

¶17 Devlin cites cases from Florida and Oregon, whose courts have held that under their respective states' constitutions recitation of the alphabet or counting is testimonial in nature and is therefore protected under the Fifth Amendment. In Allred v. State (Fla.1993), 622 So.2d 984, the Supreme Court of Florida reasoned that the content of a response to a request to recite part of the alphabet "is incriminating evidence out of the suspect's own mouth. The incriminating inference is drawn from the testimonial act--answering the question incorrectly, not from physical evidence--slurred speech." Allred, 622 So.2d at 987.

¶18 In the second state case cited by Devlin, State v. Fish (1995), 321 Or. 48, 893 P.2d 1023, the Supreme Court of Oregon ruled that under Oregon's state constitution, all field sobriety tests must be preceded by a Miranda warning. This ruling extended not only to requests for verbal recitation of the alphabet or numbers, but also to the horizontal gaze nystagmus test, the walk-and-turn test, the one-leg stand, and balance test and finger-to-nose test. The court reasoned that if any aspect of the field sobriety tests involves testimonial evidence, then the request that a person perform such tests is a request for testimonial evidence. The court lumped counting and alphabet recitation...