State v. Hudon

• Decision Date: 05 February 2019
• Docket Number: DA 18-0270
• Citation: 394 Mont. 226,434 P.3d 273,2019 MT 31
• Parties: STATE of Montana, Plaintiff and Appellee, v. George HUDON, Defendant and Appellant.
• Court: Montana Supreme Court

394 Mont. 226

434 P.3d 273

2019 MT 31

STATE of Montana, Plaintiff and Appellee,

v.George HUDON, Defendant and Appellant.

DA 18-0270

Supreme Court of Montana.

Submitted on Briefs: January 3, 2019

Decided: February 5, 2019

For Appellant: Martin W. Judnich, Judnich Law Office, Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Mardell L. Ployhar, Assistant Attorney General, Helena, Montana, William E. Fulbright, Ravalli County Attorney, Angela Wetzsteon, Deputy County Attorney, Hamilton, Montana

Justice Jim Ricedelivered the Opinion of the Court.

¶1George Hudon(Hudon) appeals his conviction of driving under the influence of alcohol or drugs, in violation of § 61-8-401, MCA (DUI), after jury trial in the Twenty First Judicial District Court, Ravalli County.We affirm, and restate the issues as follows:

1.Did the District Court err by denying Hudon’s motion to exclude evidence because of an asserted discovery violation by the State?

2.Did the District Court err by granting the State’s motion in limine to prevent Hudon from arguing the State had not fulfilled its discovery obligations, and err by disallowing Hudon’s discussion of the subject of the motion in limine in his closing argument?

3.Did the District Court err by allowing the State to amend the information less than five days before trial?

4.Did the District Court err by admitting a State exhibit at trial when the redacted version of the exhibit was not provided to Hudon until the morning of the first day of trial?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On July 23, 2017, at approximately 12:30 a.m., Ravalli County Sheriff’s DeputiesJason Liechty(Liechty) and Robert McGarvan(McGarvan) were patrolling in the Florence area near One Horse Lane when they witnessed a vehicle swerve from its lane of travel into the oncoming lane, and back again.The deputies initiated a stop of the vehicle, whose driver was Hudon.

¶3 Upon making contact, McGarvan smelled alcohol on Hudon and noticed he had bloodshot eyes and would not make eye contact.McGarvan described Hudon as "very fidgety," and stated that he kept reaching between his legs and under his car seat.Hudon admitted he had been drinking and asked both to go home and go to jail, because "he knew he was in trouble."When Liechty asked Hudon how much he had to drink, Hudon responded, "Quite a bit."

¶4 The deputies conducted two tests to determine whether Hudon was under the influence of alcohol or drugs—the Horizontal Gaze Nystagmus (HGN) test and the walk and turn test.Hudon exhibited six out of six indicators of impairment on the HGN test.On the walk and turn test, Hudon demonstrated six out of eight indicators of impairment, including loss of balance, inability to walk heel to toe, stepping off the line, making an improper turn, and stopping in the middle of the test.Hudon refused to do the one-leg stand test.Hudon’s preliminary breath test yielded a result of 0.143 BAC.Hudon refused further testing.

¶5 Liechty arrested Hudon for DUI and was granted a telephonic search warrant for Hudon’s blood, which was drawn at Marcus Daly Memorial Hospital and sent to the Montana State Crime Laboratory(Crime Lab) for processing.Blood testing revealed that Hudon’s blood alcohol content was 0.284 BAC.Because Hudon had three prior DUI convictions, he was charged with felony DUI, for a fourth offense.

¶6 Hudon sought various items of discovery from the prosecution, including Crime Lab records and information related to Hudon’s charge in this case.¹The prosecutor, Angela Wetzsteon, forwarded Hudon’s discovery requests to the Crime Lab’s toxicologist who analyzed Hudon’s blood.By email, toxicologist Doug Lancon informed Wetzsteon that the Crime Lab’s quality control manager, Emily Wemlinger(Wemlinger), was responsible for handling discovery requests and provided her contact information.Administrator Scott Larson further advised that certain items requested by Hudon required a court order to obtain, and that at least one of Hudon’s attorneys was aware of this because he had requested this information in the past and knew the process.Wetzsteon then emailed Hudon’s attorneys, advising them "the information held by the [C]rime [L]ab is mutually available to the defense just as it is to the state," and that they needed to directly contact Wemlinger for the information sought.Wetzsteon provided Wemlinger’s email address and copied Wemlinger on the email so that she would have notice of Hudon’s pending request.Wemlinger then contacted Hudon’s counsel and informed him that he should contact her directly regarding his discovery requests.

¶7 Hudon’s counsel did not contact Wemlinger or otherwise request the information from the Crime Lab.Instead, Hudon’s attorneys responded to the prosecutor by email, stating they would not contact the Crime Lab, the prosecution was violating Hudon’s due process rights by not obtaining the information for Hudon, and that they would file a motion to exclude all the toxicology information in the case based on the prosecution’s failure to provide the information.Wemlinger again contacted Hudon’s counsel and advised that he should contact her regarding his discovery request, but Wemlinger received no further inquiry or response.

¶8 Hudon moved to exclude the Crime Lab records and information because the prosecution did not produce the information requested by Hudon.The prosecution responded, arguing it had fulfilled its discovery obligations by contacting the Crime Lab and instructing Hudon how to obtain the information, which was in the exclusive possession and control of the Crime Lab.The prosecution attached the relevant Crime Lab policies to its response.²Hudon filed a reply brief seeking sanctions under § 46-15-329, MCA, for the prosecution’s alleged noncompliance.

¶9 On December 6, 2017, the District Court issued an order denying Hudon’s motion to exclude the Crime Lab records and information, reasoning "Hudon’s argument that the State is required under § 46-15-322, MCA, to request and obtain the information he seeks from the Crime Lab and then deliver it to him is unpersuasive and unsupported by law."The court determined the prosecution satisfied its discovery obligations under § 46-15-322, MCA, by providing Hudon with the relevant Crime Lab employee contact information.

¶10 After the District Court issued its order, the prosecution learned that Hudon intended to use certain documents from the Crime Lab—unrelated to his case or to any of the Crime Lab personnel involved in his case—at trial in an effort to show the prosecution violated its discovery obligations.The prosecution moved in limine to exclude evidence or argument to the effect the prosecution had violated discovery, arguing these would violate the court’s order finding the prosecution had fulfilled its discovery obligation, were not relevant, and would unfairly prejudice the State.The District Court granted the motion, reasoning Hudon chose to "forego obtaining Crime Lab information he believes is relevant out of his continued belief that the State was required to obtain it for him."Accordingly, the court ruled Hudon was precluded from presenting evidence or argument "that accuses or suggeststhe State failed to provide Defendant with requested discovery or violated evidentiary or procedural rules."(emphasis added).

¶11 Hudon began his closing argument by stating that the evidence introduced by the prosecution was "incomplete."The prosecutor did not object, and moments later, Hudon added:

The blood test is probably the most incomplete, inconsistent piece of evidence that you received here yesterday.You received one piece of paper.One.You heard testimony from Ms. Everett [a toxicologist from the Crime Lab]....But you didn’t get to hold those reports in your hand.The [S]tate did not go through that result, the actual result in detail with Ms. Everett.Ask yourself why not.Why didn’t they go through that level of detail to prove this case?

The prosecution objected, stating Hudon’s argument was "the subject of a pretrial ruling," and the court sustained the objection.

¶12 On April 4, 2018, the same day the prosecution filed its motion in limine, it also moved to amend the information.The original information charged Hudon with DUI under § 61-8-401, MCA, while the amended information added the alternative charge of operation of a vehicle with an alcohol concentration of 0.08 BAC or more, a felony, under § 61-8-406, MCA (DUI per se).The District Court granted the motion the next day, and the amended information was filed later that day.On the morning of trial, Hudon moved for denial of the amendment as untimely.In response, the prosecution argued the timing of the amendment was irrelevant because it was not substantive, but only as to form, which could be done at any time before verdict.The court denied Hudon’s motion to denythe amendment, reasoning the DUI per se charge was closely related to the DUI charge, the two charges were based on the same facts, and no new charge was added because it was in the alternative.

¶13 At the final pre-trial conference on the morning of the first day of trial, the parties discussed a video of the officers’ DUI investigation of Hudon on the night of his arrest, which the prosecution intended to introduce.The prosecution previously provided a complete copy of the hour-long video to Hudon during discovery, but had redacted large portions after Hudon filed a motion to exclude evidence about the portable breath test, his prior DUI convictions, drugs or drug paraphernalia, and the HGN test, absent proper foundation.Hudon did not receive a copy of the redacted video until the final pretrial conference, at which point he objected to its admission because he had not received a copy in time to adequately prepare for trial and did not know what information had been redacted.In response, the prosecution offered to play the original video to the jury instead, fast-forwarding through...