State v. Johnson, 85-268

Citation43 St.Rep. 1010,221 Mont. 503,719 P.2d 1248
Decision Date06 June 1986
Docket NumberNo. 85-268,85-268
Parties, 55 USLW 2051 STATE of Montana, Plaintiff and Respondent, v. Richard Duane JOHNSON, Defendant and Appellant.
CourtUnited States State Supreme Court of Montana

Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, Robert Deschamps, III, Co. Atty., Missoula, Betty Wing, Deputy Co. Atty., for plaintiff and respondent.

MORRISON, Justice.

Richard Duane Johnson (defendant) appeals the jury verdict and April 30, 1985, judgment of the Fourth Judicial District Court, County of Missoula, finding defendant guilty of driving or being in actual physical control of a motor vehicle upon the public ways of Montana while under the influence of alcohol. Johnson also appeals the sentence imposed. We affirm.

Defendant was found by a Missoula County Deputy Sheriff, Officer Peterson, at approximately 1:40 a.m., December 8, 1983, in a disabled car on Interstate 90 near East Missoula. Officer Peterson while discussing the predicament with defendant, noted that defendant appeared to be intoxicated. Officer Peterson requested that defendant perform several field sobriety tests. Defendant either refused or was unable to perform each test. Defendant was then arrested.

Thereafter, Officer Peterson took defendant to the patrol car and told defendant that he would be tape recording defendant's statements. After obtaining defendant's name, Officer Peterson advised defendant of his Miranda rights. Defendant acknowledged that he understood those rights, then asked if he had the right to "address somebody." The following conversation ensued:

MR. JOHNSON: Yes I understand. Do I have the right to address somebody?

DEPUTY PETERSON: Yeah. In just a second, okay. I have got a tape recorder on. Everything you say from this time

MR. JOHNSON: I understand that.

DEPUTY PETERSON: is going to be tape recorded. Okay.

MR. JOHNSON: I would like to talk to somebody.

DEPUTY PETERSON: It is 2:01 a.m. on December 8, 1983, Thursday morning, okay?

MR. JOHNSON: You have an advantage because my hands are handcuffed and I would like to talk to somebody.

DEPUTY PETERSON: You would like to--who do you want to talk to?

MR. JOHNSON: I am not, I haven't decided yet.

DEPUTY PETERSON: Okay.

MR. JOHNSON: This is dirty pool you guys. God Almighty. Hey, am I off the record here?

DEPUTY PETERSON: No, you are on the record. You are on tape Richard.

(Pause)

MR. JOHNSON: Oops. (unintelligible) I knew that sucker. (Pause) You have to realize right now that you are not getting me for DWI because I was in the ditch. (long pause)

MR. JOHNSON: You know I am going to sue you bastards so bad because I wasn't driving that car. It is going to be fun (Pause)--You have so much fun hauling guys in. Isn't that fun?.

(Pause)

DEPUTY PETERSON: Who was driving the car Richard?

MR. JOHNSON: I was driving the car.

DEPUTY PETERSON: You were driving the car?

MR. JOHNSON: Yeah. I was driving the car.

DEPUTY PETERSON: How did it get in the ditch?

MR. JOHNSON: Somebody grabbed the wheel.

DEPUTY PETERSON: Who grabbed the wheel then?

MR. JOHNSON: The person I picked up on the way home.

DEPUTY PETERSON: Where did that man go?

MR. JOHNSON: Well you look that guy up. I don't know. No, he was a nice guy. He would

DEPUTY PETERSON: Do you know who it was?

MR. JOHNSON: No, I don't know. Do you know who he was?

DEPUTY PETERSON: No, I don't. I didn't see him.

MR. JOHNSON: He is about 6'1". Grabbed the wheel when I went in the ditch there. (Pause) You should have driven up and down the street there aways there.

DEPUTY PETERSON: Why is that?

MR. JOHNSON: Well, you tell me--you didn't see the guy. Really?

DEPUTY PETERSON: No, I didn't see anybody.

MR. JOHNSON: Well, that's your problem. That's not mine. Go back and look for him.

MR. JOHNSON: So what do I do with these handcuffs?

DEPUTY PETERSON: Well I am going to take them off you here in just a minute Richard.

MR. JOHNSON: Can I go home?

DEPUTY PETERSON: Well soon as I, soon as I'm done with everything we need to do then maybe you can.

MR. JOHNSON: This is a lot of fun being handcuffed you know.

DEPUTY PETERSON: Okay, the time is now 2:08 a.m. on December 8, 1983. I am going to turn the tape off.

A videotape of defendant attempting to perform several physical maneuvers at the request of Officer Peterson was taken upon arrival at the police station. Between maneuvers, defendant asked if he could call his attorney. After the maneuvers were completed and an implied consent form was read to defendant, defendant agreed to submit to a breathalyzer test. The result showed a blood-alcohol concentration of .197.

Next, Officer Peterson again turned on the videotape, advised defendant of his rights and asked if defendant wanted to answer some questions. Defendant replied, "I'd be obliged to, yes." This portion of the videotape was suppressed by the trial judge because of defendant's earlier request for an attorney.

Defendant was incarcerated overnight. On December 19, 1983, an information was filed in Missoula County District Court charging a third offense DUI (Count I) and failure to have current registration (Count II). Count II was subsequently dismissed. After several delays and waivers by defendant At trial, defendant provided a detailed account of his actions on the night of December 7 and the early morning hours of December 8, 1983. Defendant testified that he and his wife ate dinner at the Heidelhaus in Missoula, Montana. After dinner, defendant took his wife home and proceeded to The Edgewater for a night cap. Defendant claimed that he drank two, maybe three, drinks at The Edgewater with a friend. Then, realizing he was nearly out of gas and had no money, defendant contends he drove to a bar in East Missoula called "The Cabin" to cash a check. Apparently defendant had attempted to cash checks at The Edgewater before, to no avail. Defendant further testified that he purchased a double shot drink in a "go cup" at "The Cabin" to drink with his wife upon returning home.

of his right to a speedy trial, a jury trial was held February 25, 1985.

According to defendant's testimony, as he was entering the west-bound lane of I-90 from the on-ramp, the steering in his car locked. It was snowing heavily and the roads were icy. The car headed for the ditch, became high-centered on a snowbank and was thereby rendered immobile. After a short time, a passing motorist allegedly stopped to assist. Because of the motorist's intoxicated condition, defendant refused his offer of a ride but asked the man to phone defendant's wife and a towing service. Thereafter, defendant claims he decided to drink the double shot. Then, remembering some blackberry brandy left in the car from the previous hunting season, defendant alleges he drank approximately three-quarters of a pint bottle to try to keep warm. Defendant further claims not to have started or attempted to move the car after drinking the double shot.

Approximately an hour and a half after the car left the road, Officer Peterson appeared. A tow truck arrived shortly thereafter. Defendant's wife allegedly arrived at the scene, but after her husband had been transported to the police station.

The essence of defendant's story at trial was that he may have been intoxicated at the time Officer Peterson discovered him, but that he had not been "under the influence" at the time the car became stuck on the side of the road. Rather, his intoxication allegedly resulted from the alcohol consumed after the car left the road.

Officer Peterson also testified at trial. He stated that upon first approaching defendant's vehicle, the left front tire was in contact with the pavement; steam or smoke and a smell of burned rubber were emitting from that area. A search of defendant's car and the surrounding area uncovered no discarded beverage containers or brandy bottles. In addition, the inventory sheet signed and prepared by Sergeant Al Kimery, now deceased, failed to indicate the discovery of any alcohol container.

During a break in the trial, Officer Peterson returned to the location where defendant's vehicle was discovered, placed two sheriff's vehicles in the positions previously occupied by defendant's and Peterson's vehicles and took five photographs of the vehicles. The pictures were entered into evidence through Officer Peterson to show the location and angle of defendant's car.

Finally, during rebuttal, Officer Peterson was questioned, based on his experience and training in automobile mechanics, as to what, in his opinion, happens when the power steering on a vehicle fails. This testimony was elicited in response to testimony of defendant with respect to the alleged failure of his power steering mechanism and the performance of his car at that moment. Defendant had been qualified as an expert in the area because of his experience with power-steering failure in front and rear-wheel drive vehicles.

Following presentation of the evidence, the jury convicted defendant of driving or being in control of a motor vehicle on the public ways of Montana while under the influence of alcohol in violation of Sec. 61-8-401(1), MCA. He was sentenced to one year in the Missoula County Jail with all but fifteen days suspended, ordered to contribute $1,000 to the Missoula City/County Health Department's Drinking and Driving Prevention program and had his driver's On appeal, defendant raises the following issues:

license suspended "until he receives a probationary driver's license and then only for driving to and from work and on the job."

1. Whether the trial judge erred in refusing to grant defendant's motion to suppress his tape-recorded statement, the videotape of his actions and the results of his breathalyzer test?

2. Whether the trial judge erred in admitting into evidence the five photographs of the scene of the incident taken by Officer Peterson at the time of...

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