State v. Michaud

• Decision Date: 18 March 2008
• Docket Number: No. DA 06-0553.,DA 06-0553.
• Citation: State v. Michaud, 2008 MT 88, 180 P.3d 636, 342 Mont. 244 (Mont. 2008)
• Parties: STATE of Montana, Plaintiff and Appellee, v. Gerrad MICHAUD, Defendant and Appellant.
• Court: Montana Supreme Court

180 P.3d 636

2008 MT 88

342 Mont. 244

STATE of Montana, Plaintiff and Appellee, v. Gerrad MICHAUD, Defendant and Appellant.

No. DA 06-0553.

Supreme Court of Montana.

Submitted on Briefs July 25, 2007.

Decided March 18, 2008.

For Appellant: Richard R. Buley, Tipp & Buley, Missoula, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, Carol E. Schmidt, Assistant Attorney General, Helena, Montana, Fred Van Valkenburg, Missoula County Attorney, Suzy Boylan-Moore, Deputy County Attorney, Missoula, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 In April 2006 a jury in the Fourth Judicial District Court, Missoula County, convicted Gerrad Michaud of the misdemeanor offense of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs. He appealed his conviction on several grounds. We affirm in part and reverse and remand in part.

ISSUES

¶ 2 A restatement of the issues on appeal is:

¶ 3 Did the District Court abuse its discretion when it limited counsels' voir dire time to fifteen minutes?

¶ 4 Did the District Court abuse its discretion by allowing police officer testimony pertaining to the Horizontal Gaze Nystagmus (HGN) test?

¶ 5 Does the inference contained in § 61-8-404(2), MCA, whereby a jury may infer that a defendant was driving under the influence of alcohol from his refusal to take a sobriety test, violate a defendant's due process rights?

¶ 6 Does the inference contained in § 61-8-404(2), MCA, deny a defendant his right to counsel at a critical stage of the prosecution or violate a defendant's right not to be compelled to give testimony against himself?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 On August 20, 2005, a motorist observed a truck being driven erratically along Highway 200 near Missoula, Montana. After following the truck for some distance, the motorist called 911 to notify authorities. Officer Johnson responded to the call and upon seeing a vehicle that matched the description given by the motorist began to follow the vehicle. According to the Officer's report, he saw the truck cross the white fog line repeatedly and noticed that the license plate was blocked and the truck was missing a driver side mirror. Before Johnson executed a stop, the truck, subsequently determined to be driven by Michaud, pulled off the road and into a parking lot. At that time, Johnson activated his vehicle's overhead emergency lights and pulled in behind Michaud.

¶ 8 At trial, Johnson explained that he approached the vehicle and when speaking to Michaud, noticed the truck smelled of alcohol. Johnson's incident report also indicated that he smelled alcohol on Michaud's breath. When Michaud opened the door to get in the back of the truck for his wallet, the officer saw a beer can in the truck cab. Johnson testified that Michaud had difficulty maintaining his balance when he got out of the truck and needed to use his truck to stabilize himself. Michaud volunteered that there was an outstanding warrant on him but denied drinking when Johnson asked him. Shortly thereafter, however, he confessed that he had been drinking earlier in the day while tubing on a river. Johnson asked Michaud to perform three field sobriety tests-the HGN, the walk and turn, and the one-legged stand. Michaud did not perform well on any of these tests. After informing Michaud of the consequences of refusing to take a breath test, Johnson asked Michaud to take a portable breath test. Michaud refused.

¶ 9 Johnson arrested Michaud on the outstanding warrant and for driving while under the influence of alcohol and transported him to the Missoula County jail. Upon arrival Johnson had Michaud take the three field sobriety tests again and again Michaud failed these tests. Johnson also asked Michaud to take the breath test and again Michaud refused. Michaud was charged with driving under the influence of alcohol or drugs.

¶ 10 Michaud was convicted in Justice Court in November 2005 for second offense misdemeanor driving under the influence. He appealed this conviction immediately to the Fourth Judicial District Court in Missoula County where a jury trial was held on April 28, 2006. At the commencement of proceedings, the District Court judge informed the attorneys that each attorney would have fifteen minutes to voir dire the jury. He also indicated that it was his practice to ask a standard set of questions during voir dire as well. Michaud objected to the fifteen-minute limitation but the District Court overruled the objection. At the conclusion of the trial, the jury convicted Michaud of misdemeanor driving under the influence.

¶ 11 Michaud filed a timely appeal.

¶ 12 Additional facts will be presented as needed for our analysis.

STANDARDS OF REVIEW

¶ 13 It is well established that "[a]bsent an abuse of discretion ... the trial judge has great latitude in controlling voir dire." State v. LaMere, 190 Mont. 332, 339, 621 P.2d 462, 466 (1980). We therefore review the District Court's imposition of a time limit on voir dire to determine whether this limitation constitutes an abuse of discretion.

¶ 14 We review rulings on the admissibility of evidence, including oral testimony, under an abuse of discretion standard. We leave the determination of the relevancy and admissibility of evidence to the sound discretion of the trial judge and we will not overturn it absent a showing of abuse of discretion. State v. Damon, 2005 MT 218, ¶ 12, 328 Mont. 276, ¶ 12, 119 P.3d 1194, ¶ 12 (citations omitted).

¶ 15 Statutes enjoy a presumption of constitutionality; therefore the party making the constitutional challenge bears the burden of proving, beyond a reasonable doubt, that the statute is unconstitutional, and any doubt must be resolved in favor of the statute. When reviewing a question of constitutional law, including the issue of whether a defendant's due process rights were violated, we review the district court's conclusion to determine whether its interpretation of the law was correct. Shammel v. Canyon Resources Corp., 2007 MT 206, ¶ 7, 338 Mont. 541, ¶ 7, 167 P.3d 886, ¶ 7; City of Great Falls v. Morris, 2006 MT 93, ¶ 12, 332 Mont. 85, ¶ 12, 134 P.3d 692, ¶ 12 (citations omitted).

¶ 16 Lastly, we review jury instructions in a criminal case to determine whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. Further, we recognize that a district court has broad discretion when it instructs a jury, and we therefore review a district court's decision regarding jury instructions to determine whether the court abused that discretion. State v. Swann, 2007 MT 126, ¶ 32, 337 Mont. 326, ¶ 32, 160 P.3d 511, ¶ 32 (citation omitted).

DISCUSSION

¶ 17 Did the District Court abuse its discretion when it limited counsels' voir dire time to fifteen minutes?

¶ 18 Michaud argues that the District Court denied him a fair trial before an impartial jury by limiting his right to voir dire the jury to fifteen minutes. He asserts that the limited time made it impossible for him "to examine a 12 person jury panel for possible bias and prejudice," to determine if jurors should be excused for cause, and to exercise peremptory challenges "intelligently." He argues that § 46-16-114(2), MCA, allows a trial court to limit voir dire only "if the examination is improper." He opines that because the court imposed a time limit before questioning began, there was no opportunity for such impropriety to occur, and therefore the court abused its discretion. Michaud further maintains that the court limited the time for voir dire for purely expeditious reasons, which is contrary to this Court's observation in State v. Nichols, 225 Mont. 438, 734 P.2d 170 (1987).¹

¶ 19 The State counters that the court offered adequate time for voir dire, in light of the court's examination of prospective jurors. It points to extra-jurisdictional cases holding that courts have the discretion to set reasonable limits and that Michaud was not deprived of his constitutional right. It proposes that we adopt a four-prong test used by the Oregon Supreme Court in determining whether a trial court had abused its discretion by placing time limits on voir dire. Under the circumstances of this case, we need not adopt this test to reach a resolution.

¶ 20 As a six-person jury was required to hear this misdemeanor case, twelve prospective jurors were seated initially for voir dire. The District Court indicated, prior to voir dire and outside the presence of potential jurors, that each side would have fifteen minutes to conduct voir dire after the court had conducted its voir dire. The judge noted that, prior to trial, he had invited each side to offer written voir dire questions but that neither counsel had accepted the invitation. The court explained that the time spent on a "for cause" challenge would not be counted nor would time spent with individual prospective jurors discussing relevant "privacy" issues be counted against the fifteen-minute limit.

¶ 21 At this time, Michaud's counsel objected to the time limit based on Nichols and the amount of publicity generally given to "drinking and driving" concerns. The court remarked that it was unaware of any specific publicity surrounding this case but that it would pursue that concern in its voir dire. The judge indicated multiple times that he would "remain flexible throughout the [voir dire] process" but believed it was necessary that they were "cognizant of the amount of time that jurors spend in these cases and the need to keep cases moving." He agreed to ask additional questions presented by counsel so that counsel could preserve their fifteen minutes for other questions. Neither Michaud's lawyer nor the State's attorney presented questions for the judge to ask.

¶ 22 The court asked the prospective jurors questions pertaining to the following matters: (1) whether all were Missoula County residents; (2) had any been convicted of malfeasance in...