State v. Gibbons
| Docket Number | DA 21-0413 |
| Decision Date | 20 March 2024 |
| Citation | 545 P.3d 686 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Robert Murray GIBBONS, Defendant and Appellant. |
| Court | Montana Supreme Court |
APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DC-19-119, Honorable Matthew J. Cuffe, Presiding Judge
For Appellant: Chad Wright, Appellate Defender, Deborah S. Smith, Assistant Appellate Defender, Helena, Montana
For Appellee: Austin Knudsen, Montana Attorney General, Cori Losing, Assistant Attorney General, Helena, Montana, Marcia Boris, Lincoln County Attorney, Libby, Montana
¶1 A jury found Robert Murray Gibbons (Gibbons) guilty of driving under the influence, fifth or subsequent offense on April 29, 2021. At sentencing, Gibbons received a five-year commitment to the Department of Corrections (DOC), and a $5,000 fíne pursuant to § 61-8-731(3), MCA (2019). Gibbons appeals his conviction, arguing that the District Court gave the jury an incorrect instruction defining actual physical control and prejudiced his substantial rights by allowing the State to argue on rebuttal that Gibbons could have introduced photographic evidence produced during discovery or, in the alternative, that his counsel was ineffective for failing to introduce the photographs. Additionally, Gibbons challenges the sentencing statute, which imposed a mandatory minimum $5,000 fíne, as facially unconstitutional.
¶2 We restate the issues as follows:
1. Whether the District Court properly instructed the jury to consider, as part of the totality of the circumstances, that Gibbons need not be conscious to be in actual physical control of his vehicle.
2. Whether the State’s rebuttal argument that Gibbons could have introduced photographic evidence equally available to him during discovery, and his counsel’s failure to introduce the photographs at trial, violated Gibbons’s substantive due process rights or his right to effective assistance of counsel.
3. Whether § 61-8-731(3), MCA (2019), which imposes a mandatory minimum $5,000 fine without regard to a defendant’s ability to pay, is facially unconstitutional.
We affirm Gibbons’s DUI conviction, but we reverse the $5,000 fine. We hold that § 61-8-731(3), MCA, is facially unconstitutional because it requires imposition of a mandatory fine in every case without a trial court first considering constitutionally required proportionality factors, such as the nature of the financial burden and the defendant’s ability to pay. A statutorily mandated minimum fine prevents the trial court from considering in every case constitutionally and statutorily required factors embodied in the prohibition against excessive fines and fees of the United States Constitution, the Montana Constitution, and in Montana statutes implemented to protect against such a constitutional violation. We remand this case to the District Court for recalculation of Gibbons’s fine consistent with this Opinion.
¶3 On June 19, 2019, Gibbons drove his truck into Troy, parked on Yaak Avenue, and walked into the Home Bar, where he drank four rum and cokes. Richard Starks (Starks), a retired law-enforcement officer, was having dinner and a beer at the Home Bar and watched Gibbons, who appeared intoxicated, leaving the bar. Starks then followed Gibbons and watched him get into the driver’s side of his truck. After Gibbons leaned over in the front seat, Starks called dispatch and reported a person was under the influence of alcohol and in his vehicle. Starks walked over to Gibbons’s truck and took two pictures of him, one of which showed the key in the ignition, turned to the "on" position. Gibbons’s feet rested in the driver’s side footwell, with his rear end in the driver’s seat and his body lying sideways along the bench seat, one arm folded under his head for support. The engine was not running.
¶4 Officer Travis Miller (Miller) responded to the call from dispatch and spoke briefly with Starks, who showed Miller the pictures on his phone. Miller then approached Gibbons’s vehicle and saw him lying sideways bn the bench seat with his head toward the passenger seat. Miller knocked on the window and woke him up. When Miller asked Gibbons if he was sleeping and if he had been drinking, Gibbons responded affirmatively. Gibbons told Miller, "I can’t drive." Miller administered several standard field sobriety tests, all of which indicated that Gibbons was impaired, and arrested Gibbons for driving under the influence. At the Lincoln County Detention Center, Gibbons agreed to take a breath alcohol test; it measured .136.
¶5 Gibbons’s first jury trial on February 13, 2020, ended in mistrial after defense counsel objected to the State’s questions during voir dire. At the second trial, Gibbons disputed he was in "actual physical control" of his vehicle, arguing that he never drove the vehicle and, as evidenced by his sleeping position in the cab, did not intend to drive it.
¶6 The State introduced into evidence the photographs Starks took of Gibbons in the front seat of the truck; Gibbons’s counsel cross-examined Starks about the photographs and suggested that Gibbons’s position in the vehicle evidenced his intention to sleep rather than drive, emphasizing that the picture showed Gibbons’s arm folded under his head "for a pillow." During cross-examination of Miller and discussion of whether Gibbons was in actual physical control, defense counsel asked that Starks’s photographs be published to the jury "so that any more questions can be maybe illuminated by them actually seeing the photos …." Throughout the second trial, both defense counsel and the State questioned witnesses as to the significance of Gibbons’s position on the seat and their opinion of whether this showed Gibbons was in actual physical control of the vehicle.
¶7 At the close of the trial, the District Court instructed the members of the jury that they "shall consider the following factors, including but not limited to … 5) that the Defendant need not be conscious to be in actual physical control." The jury became hopelessly deadlocked, and the District Court declared a mistrial.
¶8 At the third trial, defense counsel’s opening argument focused again on the concept of actual physical control and analogized Gibbons’s decision to sleep to the actions of a passenger. Counsel said during opening statements that the jury "should get a picture, actually, of exactly where [Gibbons] was, and I think that picture is going to show [the jury] that he’s laying across the front seat of his vehicle." The State called Starks as a witness, but it did not discuss or introduce the photographs Starks took of Gibbons. During cross-examination, counsel asked about the pictures and how they depicted Gibbons in the vehicle. Starks confirmed that he had taken two photographs of Gibbons lying in the cab of the pickup. When asked where Gibbons’s hands were located in the picture, Starks replied that he could not recall. Defense counsel could not find the photographs and was unable to introduce them into evidence during cross-examination. In a sidebar discussion regarding counsel’s mention of Starks’s prior testimony, defense counsel expressed surprise that the State decided not to introduce the pictures.
¶9 During Miller’s testimony, the State introduced a short segment of the officer’s body camera footage as a demonstrative exhibit of his initial contact with Gibbons. The recording showed Gibbons lying down in the truck and sitting up in the driver’s seat when he heard Miller knock. Miller also testified as to specific aspects of Gibbons’s position and confirmed that in the photograph, one of Gibbons’s hands was resting under his head like a pillow.
¶10 Before closing statements, the State moved to preclude argument about the photographs because it would suggest that the State improperly withheld evidence and encourage the jury to speculate about what the pictures might have shown. Defense counsel argued that preventing mention of the photographs would shift the burden of proof to Gibbons and that pointing out the State’s decision not to introduce photographs taken by its own witness was "absolutely fair game" to demonstrate that the State had not met its burden of proof. The District Court ruled that the parties could not describe what was in the pictures because they were not in evidence, but the defense could argue that the State did not introduce them and discuss the witnesses’ testimony about them. However, if the defense chose to do so, the State could respond that Gibbons also had access to the photographs and opportunity to present them.
¶11 During closing, Gibbons’s counsel argued that the facts of Gibbons’s case did not amount to actual physical control:
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