State v. Gittens

• Decision Date: 15 February 2008
• Docket Number: No. DA 06-0001.,DA 06-0001.
• Parties: STATE of Montana, Plaintiff and Appellee, v. Branden Dale GITTENS, Defendant and Appellant.
• Court: Montana Supreme Court

178 P.3d 91

2008 MT 55

341 Mont. 450

STATE of Montana, Plaintiff and Appellee, v. Branden Dale GITTENS, Defendant and Appellant.

No. DA 06-0001.

Supreme Court of Montana.

Submitted on Briefs November 9, 2006.

Decided February 15, 2008.

For Appellant: Matthew T. McKittrick, Cascade County Public Defender, Great Falls, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, Joslyn M. Hunt, Assistant Attorney General, Helena, Montana, Brant Light, Cascade County Attorney, Joel Thompson, Deputy County Attorney, Great Falls, Montana.

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

¶ 1 Branden Dale Gittens was convicted in the District Court for the Eighth Judicial District, Cascade County, of one felony count of criminal possession of dangerous drugs with intent to distribute and one misdemeanor count of criminal possession of drug paraphernalia. He appeals from these convictions and from the denial of his motion to suppress. We affirm.

¶ 2 The issues on appeal are as follows:

1. Did the District Court err in denying Gittens' motion to suppress statements, based on the State's alleged failure to show that Gittens was properly Mirandized?

2. Did the District Court err in admitting testimony that Gittens claimed was inadmissible evidence of other crimes, wrongs, or acts under M.R. Evid. 404(b)?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On September 24, 2004, Cascade County Sheriff's Deputy Thomas Dalton made a traffic stop in Black Eagle, Montana. Dalton requested backup and Deputy Engelberto Ruiz arrived on the scene. The driver stated that he was going to Gittens' house. Dalton was aware that Gittens had warrants issued for him in the past, so Dalton ran a warrant check. After discovering that Gittens had active county warrants for his arrest, Dalton and Ruiz allowed the driver to proceed, and they followed the vehicle to Gittens' residence. While Ruiz went to the front door of the house, Dalton made contact with Gittens outside the back door of the house. Dalton advised Gittens that there was a warrant out for his arrest, and Dalton then placed Gittens under arrest.

¶ 4 Dalton could smell the odor of burning marijuana coming from Gittens' person. Dalton requested and received permission from Gittens to search the house. Two other individuals, Richard Aguon and Alex Smithson, were also present in the house, although Smithson left soon after. Ruiz went to search the basement and discovered a 316.4-gram brick of marijuana encased in a cooler. Ruiz also located a number of bongs, marijuana pipes, plastic baggies, a scale, several issues of "High Times" magazine, and other assorted drug paraphernalia. Three of these items bore the words "B Dogg," which was Gittens' nickname. After discovering the brick of marijuana, Ruiz notified Dalton, and Dalton came down to the basement along with Gittens. Dalton observed that Gittens started to shake and appeared visibly upset after seeing what Ruiz had discovered. Upon searching the remainder of the house, Ruiz discovered additional drug paraphernalia in Gittens' bedroom and a "party hookah"¹ inside a box in the living room.

¶ 5 Dalton contacted the shift supervisor, Sergeant Scott Van Dyken, who arrived a short while later. Van Dyken recommended that Dalton bring Gittens out of the house to videotape Dalton's reading of Gittens' Miranda rights and to memorialize that Gittens had consented to the search of his house. Dalton then took Gittens outside to the patrol car to read him his rights. The patrol car had an on-board video camera with audio recording capabilities; however, as Dalton later explained, due to technical difficulties, the microphone did not pick up the conversation. In regard to the video, Gittens asserted in his motion to suppress that "the videotape does not adequately show the face of the person being questioned by the law enforcement officer." Dalton testified at the suppression hearing that Gittens agreed to talk to him and agreed to waive his rights. Dalton further testified that Gittens admitted to giving away and trading marijuana for "stuff." Van Dyken also testified as to the equipment's malfunction and that he was present when Dalton advised Gittens of his Miranda rights and began questioning him. Van Dyken later asked Gittens several questions and also testified that Gittens stated that he traded and gave marijuana to other people.

¶ 6 The State charged Gittens, by Information, with Count I—criminal possession of dangerous drugs with intent to distribute, a felony in violation of § 45-9-103, MCA, and Count II—criminal possession of drug paraphernalia, a misdemeanor in violation of § 45-10-103, MCA. Gittens pleaded not guilty to the charges. On December 27, 2004, Gittens filed a motion to suppress all the statements he made following his arrest on the ground that the State had failed to demonstrate that he was properly Mirandized. The State filed a response to Gittens' motion, and the District Court held a suppression hearing on February 8, 2005. After hearing testimony from Deputy Dalton, Deputy Ruiz, Sergeant Van Dyken, and Gittens, the District Court denied the motion to suppress.

¶ 7 On March 11, 2005, the State filed an Amended Information retaining the original two counts, but adding an alternative charge to Count I, namely, criminal possession of dangerous drugs, a felony, in violation of § 45-9-102, MCA. The matter went to trial on September 26, 2005, and lasted two days. Prior to voir dire, defense counsel made a motion in limine under M.R. Evid. 404(b) to prevent the State from introducing Gittens' statements to the officers that he sometimes traded marijuana for "stuff." The court denied Gittens' motion, and the jury heard testimony on this matter. The jury also heard testimony from Dalton, Ruiz, Van Dyken, Gittens' former roommate Aguon, and State Crime Lab chemist Bahne Klietz. The following day, the jury found Gittens guilty of one felony count of criminal possession of dangerous drugs with intent to distribute and one misdemeanor count of criminal possession of drug paraphernalia.

¶ 8 The District Court sentenced Gittens to ten years at the Montana State Prison with three years suspended on Count I, and six months in the Cascade County Detention Center on Count II, the two sentences to run concurrently. This appeal followed.

STANDARD OF REVIEW

¶ 9 We review a district court's decision to grant or deny a motion to suppress to determine whether the court's underlying findings of fact are clearly erroneous and whether the court correctly interpreted and applied the law to those findings. State v. Lewis, 2007 MT 295, ¶ 17, 340 Mont. 10, ¶ 17, 171 P.3d 731, ¶ 17. "A trial court's findings are clearly erroneous if they are not supported by substantial credible evidence, if the court has misapprehended the effect of the evidence, or if our review of the record leaves us with a definite and firm conviction that a mistake has been made." Lewis, ¶ 17.

¶ 10 We generally review a district court's evidentiary rulings for an abuse of discretion. State v. McOmber, 2007 MT 340, ¶ 10, 340 Mont. 262, ¶ 10, 173 P.3d 690, ¶ 10. A district court abuses its discretion if it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. McOmber, ¶ 10. "Notwithstanding this deferential standard, however, judicial discretion must be guided by the rules and principles of law; thus, our standard of review is plenary to the extent that a discretionary ruling is based on a conclusion of law. In such circumstance, we must determine whether the court correctly interpreted the law." McOmber, ¶ 10 (quoting State v. Price, 2006 MT 79, ¶ 17, 331 Mont. 502, ¶ 17, 134 P.3d 45, ¶ 17).

DISCUSSION

¶ 11 Issue One. Did the District Court err in denying Gittens' motion to suppress statements, based on the State's alleged failure to show that Gittens was properly Mirandized?

¶ 12 The Fifth Amendment to the United States Constitution and Article II, Section 25 of the Montana Constitution provide that people have the right not to incriminate themselves. In re Z.M., 2007 MT 122, ¶ 39, 337 Mont. 278, ¶ 39, 160 P.3d 490, ¶ 39. The Supreme Court addressed the right against self-incrimination in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Supreme Court stated that "the privilege is fulfilled only when the person is guaranteed the right `to remain silent unless he chooses to speak in the unfettered exercise of his own will.'" Miranda, 384 U.S. at 460, 86 S.Ct. at 1620 (quoting Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964)). "The Miranda Court held that the prosecution may not use statements that stem from a custodial interrogation of a defendant unless the defendant is warned, prior to questioning, that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney." State v. Olson, 2003 MT 61, ¶ 13, 314 Mont. 402, ¶ 13, 66 P.3d 297, ¶ 13 (citing Miranda, 384 U.S. at 444, 86 S.Ct. at 1612).

¶ 13 Section 46-6-107, MCA, which is a codification of the Supreme Court's holding in Miranda, states, in pertinent part:

Before interrogating a person who is in custody, a peace officer shall inform the person that the person has the right to remain silent, that anything the person says can be used against the person in a court of law, that the person has the right to speak to an attorney and to have an attorney present during any questioning, and that if the person cannot afford an attorney, one will be provided for the person at no cost to the person.

The Miranda warnings are required where the person is subject to a custodial interrogation. See State v. McKee, 2006 MT 5, ¶ 28, 330 Mont. 249, ¶ 28, 127 P.3d 445, ¶ 28; State v. Munson, 2007 MT 222, ¶ 20, 339 Mont. 68, ¶ 20, 169 P.3d 364, ¶ 20.

¶ 14 An individual may waive his or...