State v. Nelson, 01-008.
Decision Date | 30 November 2001 |
Docket Number | No. 01-008.,01-008. |
Citation | 36 P.3d 405,2001 MT 236,307 Mont. 34 |
Parties | STATE of Montana, Plaintiff and Respondent, v. Michael NELSON, Defendant and Appellant. |
Court | Montana Supreme Court |
For Appellant: Lucas J. Foust, Foust Law Office, Bozeman, MT.
For Respondent: Hon. Mike McGrath, Attorney General; Mark W. Mattioli, Assistant Attorney General, Helena, MT, Marty Lambert, Gallatin County Attorney; Todd Whipple, Deputy County Attorney, Bozeman, MT.
¶ 1 On September 28, 2000, a jury found Michael Nelson guilty of Driving or Being in Actual Physical Custody of a Motor Vehicle while under the influence of alcohol. Nelson appeals.
¶ 2 The following issue is dispositive:
¶ 3 Whether the District Court erred by failing to instruct the jury as to the defense of necessity?
¶ 4 Early in the morning of March 7, 2000, Michael Nelson was drinking at the Beaumont Club in Belgrade, Montana. The bartender, Mayrien French, testified that she served Nelson approximately four shots in about an hour and a half. Nelson's own testimony indicated that he had three or four drinks and may have been drunk. He stated that,
¶ 5 Shortly before closing time, around 1:45 a.m., French asked Nelson to leave the bar. A little while later, another bartender suggested to French that French called the police and asked them to drive by the Beaumont Club.
¶ 6 Belgrade Police Officers Chuck Sprague and Mark Stoico responded to French's call. When they arrived at the Beaumont Club, the officers found Nelson in the parking lot, slumped behind the wheel of his pickup truck. The vehicle's door was slightly ajar, its engine was running and music was blaring from its stereo. There was no evidence that Nelson had driven the truck before Officers Sprague and Stoico's arrival. The officers rapped on the door of his vehicle, but were unable to stir Nelson. Officer Sprague then opened the vehicle's door and aimed the beam of his flashlight in Nelson's face but was still unable to wake him. Officer Sprague testified that, as he opened the door, the strong odor of alcoholic beverages struck him. Only after turning down the music and repeatedly tapping Nelson on the arm was Officer Sprague able to rouse Nelson.
¶ 7 Upon waking, Nelson's eyes were bloodshot and glassy, his speech was slurred, and he was confused and difficult to understand. When the officers explained to him that the bartender was afraid to leave the bar while he was in the parking lot, Nelson responded, "What bartender?" He told the officers that he had not had anything to drink.
¶ 8 The officers asked Nelson to exit the vehicle so that they could perform a field sobriety test. Nelson got out of the truck but refused to undergo the test. He also declined to give blood or breath samples. The officers then arrested Nelson for driving under the influence of alcohol in violation of § 61-8-401, MCA.
¶ 9 On June 20, 2000, the Honorable Thomas Olson presided over Nelson's initial trial. Judge Olson instructed the jury that "actual physical control ... does not include the use of a vehicle solely for a place of shelter or habitation." The jury in that trial was unable to reach a verdict. The matter was then retried before the Honorable Nels Swandal on September 28, 2000. Judge Swandal refused to include an instruction similar to Judge Olson's, "especially under the facts here." This time, the jury found Nelson guilty of Driving or Being in Actual Physical Control of a Motor Vehicle While Under the Influence of Alcohol. Nelson appeals.
¶ 10 We review a district court's jury instructions in a criminal case to see whether the instructions, as a whole, fully and fairly instructed the jury on the law applicable to the case and whether the court abused its discretion. State v. Baker, 2000 MT 307, ¶ 26, 302 Mont. 408, ¶ 26, 15 P.3d 379, ¶ 26. A district court has broad discretion when it instructs the jury. State v. Johnson, 1998 MT 289, ¶ 28, 291 Mont. 501, ¶ 28, 969 P.2d 925, ¶ 28.
¶ 11 Whether the District Court erred by failing to instruct the jury as to the defense of necessity?
¶ 12 Nelson argues that he was merely waiting for his brother and wife to pick him up at the bar, and that the cold night required him to do so in his vehicle. Therefore, he asserts that the District Court erred in not instructing the jury as to the defense of necessity. In support of his claim, Nelson relies on four non-Montana jurisdictions that have recognized affirmative defenses to allegations of driving while under the influence of alcohol.
¶ 13 Although Nelson urges this court to adopt the defense of necessity, this court has repeatedly stated that the statutory defense of compulsion merges with the common law defenses of necessity, justification, compulsion, duress and "choice of two evils." See State v. Cox (1994), 266 Mont. 110, 117, 879 P.2d 662, 666
; but see State v. Ottwell (1989), 240 Mont. 376, 381, 784 P.2d 402, 405 ( ). The defense of compulsion applies when a defendant "reasonably believes that death or serious bodily harm will be inflicted upon him if he does not perform such conduct." Section 45-2-212, MCA. Neither party asserts that the defense of compulsion is applicable to this case.
¶ 14 Instead, Nelson directs this Court to four non-Montana cases that recognize the defense of necessity, or similar defenses, and asks this Court to follow them. The cases are State v. Olson (1986), 79 Or.App. 302, 719 P.2d 55, State v. Knowles (Me.1985), 495 A.2d 335, State v. Fee (1985), 126 N.H. 78, 489 A.2d 606 and State v. Shotton (1983), 142 Vt. 558, 458 A.2d 1105. Three of these cases, however, involve codified affirmative defenses. See Olson, 719 P.2d at 56-57
( ); Knowles, 495 A.2d at 337 ( ); Fee, 489 A.2d at 607 ( ). Because Montana has no comparable statute, we find these cases unpersuasive.
¶ 16 While Shotton involved driving under the influence of alcohol, the circumstances were much different from the ones before us. In Shotton, a state trooper noticed the defendant driving irregularly on a public highway. Id. at 1105. After following her for a couple of miles, he pulled her over and asked her to exit the vehicle. Id. at 1105-06. He then took her to the police station, where she told him and another officer that her husband had assaulted her and pushed her down a flight of stairs. Id. at 1106. She also told them that the reason she had been driving was to get to the hospital. Id. The officers then took her to the emergency room, where they discovered that she had multiple rib fractures and would require a five-day...
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