State v. Snell, 2004 MT 258 (MT 9/14/2004)

• Decision Date: 14 September 2004
• Docket Number: No. 03-109,03-109
• Parties: STATE OF MONTANA, Plaintiff and Respondent, v. KENNETH SNELL, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1

2004 MT 258

STATE OF MONTANA, Plaintiff and Respondent, v. KENNETH SNELL, Defendant and Appellant.

No. 03-109

Supreme Court of Montana.

Submitted on Briefs: January 24, 2004

Decided: September 14, 2004

Appeal from: District Court of the Fourth Judicial District, In and for the County of Missoula, Cause No. DC-99-13969, The Honorable Douglas G. Harkin, Judge presiding.

For Appellant: Jeffrey T. Renz; Jeanine Blaner, Intern; School of Law, University of Montana, Missoula, Montana.

For Respondent: Hon. Mike McGrath, Attorney General; Pamela D. Bucy, Assistant Attorney General, Helena, Montana Fred Van Valkenburg, Missoula County Attorney; Karen S. Townsend, Deputy County Attorney, Missoula, Montana.

Justice JIM REGNIER delivered the Opinion of the Court.

¶1 On October 28, 1999, an Information charged Kenneth Snell with operating a motor vehicle while under the influence of alcohol or drugs, fourth offense, and driving while license suspended or revoked, a misdemeanor. A Missoula County jury returned a guilty verdict on both charges. The Fourth Judicial District Court sentenced Snell and entered judgment on September 19, 2002. Snell appeals and we affirm. We restate the following issues on appeal:

¶2 1. Whether the courts of limited jurisdiction committed reversible error when they did not expressly advise Snell regarding his right to counsel and did not obtain an express waiver of this right?

¶3 2. Whether the District Court properly admitted the PAST evidence?

¶4 3. Whether the District Court properly allowed a law enforcement officer to offer testimony regarding Snell's intoxication level even though the officer was not listed as an expert witness prior to trial?

BACKGROUND

¶5 After leaving the Rock Creek Testicle Festival in the early morning hours of September 19, 1999, Kenneth Snell drove west on Interstate 90 between Turah and East Missoula with his wife, mother-in-law and another passenger. As he traveled eastbound on Interstate 90, Montana Highway Patrol Officer Danny Pat Harrison observed Snell traveling too close behind another car and noticed that he failed to dim his bright lights for oncoming traffic. Officer Harrison turned to follow Snell's car and watched it noticeably weave within the traffic lane, cross the fog line and drive on the center line.

¶6 Officer Harrison stopped Snell, detected the odor of alcohol and noted that Snell had slurred speech and bloodshot eyes. Snell told Officer Harrison he did not have a driver's license because it was revoked and that he had been drinking beer. Snell consented to a preliminary alcohol screening test (PAST) and provided a breath sample on a preliminary alcohol screening device (an Alco-Sensor III) which scored above the legal limit of .10. However, Snell refused to perform the other field sobriety tests. Officer Harrison arrested Snell and transported him to the police station for further processing. While there, he provided another breath sample, again on a preliminary alcohol screening device, that scored above .10. The District Court later excluded this second test because the law only authorizes one preliminary breath sample to be taken.

¶7 On October 28, 1999, the State charged Snell with driving while license suspended, a misdemeanor. Based upon three prior DUI convictions, the State also charged Snell with his fourth offense of driving under the influence (DUI), a felony. Snell pled not guilty to both charges.

¶8 Snell filed a motion in limine to exclude the PAST results. The District Court denied Snell's motion and permitted the State to introduce the PAST evidence. In admitting the evidence, the court stated that any variables in the testing go to the weight, not the admissibility, of the evidence.

¶9 A jury trial held in District Court on October 10-11, 2001, resulted in two guilty verdicts, one for felony DUI and one for misdemeanor driving while license suspended. At trial, Snell objected to opinion testimony offered by Officer Harrison that Snell was under the influence of alcohol based on the assertion that the State had not identified Officer Harrison as an expert. The court allowed the testimony.

¶10 Subsequent to the jury verdict but prior to sentencing, Snell filed a motion to dismiss for lack of jurisdiction claiming that two of his three previous DUI convictions used to enhance punishment were constitutionally infirm. Snell claimed that his DUI convictions from 1988 and 1990 were constitutionally infirm because the court did not provide him with court-appointed counsel in those cases. Notably, he stated in his affidavit that the same justice of the peace (JP) heard each conviction, but upon investigation, it was determined that, in fact, two separate JPs heard each case. He pled guilty to the charges in both cases without consulting an attorney.

¶11 On May 2, 2002, the District Court held a second evidentiary hearing to address Snell's motion to dismiss. Snell testified that on both occasions the JP only asked him how he pled without explaining his rights, specifically that he was entitled to legal representation. On cross examination, Snell was questioned at length about the colloquies that took place between himself and the JP prior to entering his pleas in the 1988 and 1990 convictions. Snell testified that he was as positive of all his testimony as he was that he only appeared before one judge. Contrary to Snell's memory, two different justices of the peace presided over his 1988 and 1990 cases.

¶12 Judge Carol Chagnon, the JP who presided over Snell's 1990 guilty plea, testified about her regular practice of advising all defendants of their rights, including specifically stating that they have the right to be represented by an attorney. In concluding that defendants waived their rights, she would first ask them if they understood their rights and if they needed more time to seek legal counsel to understand their rights. She testified that she recalled going through a lengthy procedure to ensure that defendants knew that by entering a guilty plea, as Snell did here, they were waiving their right to an attorney.

¶13 Judge Evelyn Donahue, the JP who presided over Snell's 1988 DUI proceeding, died in 1989, therefore Judge Chagnon testified as to JP Donahue's practices. Judge Chagnon testified that JP Donahue went through the same particular pains to ensure that she advised each defendant of his rights, fully understood his rights and comprehended the effect of entering a guilty plea as waiving constitutional rights. The District Court determined that the routine and practice of the convicting courts regarding administering advice and obtaining a waiver of rights supported an inference that the JPs advised Snell of his right to counsel on both occasions and that he waived this right.

¶14 Attorneys Daniel Boucher and Robert Peterson also testified at the hearing on behalf of Snell. Both appeared before JP Donahue just prior to her retirement and prior to her death. They testified about JP Donahue's practices and custom of not fully or completely advising defendants of their right to counsel.

¶15 The District Court denied Snell's motion to dismiss and found that the two DUI convictions were constitutionally valid, thus the State could use them to enhance his punishment in this case. The District Court sentenced Snell on August 13, 2002, and September 10, 2002, entering judgment on September 19, 2002. Snell appeals the denials of his motions to dismiss and in limine and the admission of Officer Harrison's opinion testimony.

STANDARD OF REVIEW

¶16 "A court's resolution of an issue involving a question of constitutional law is a conclusion of law which we review to determine whether the conclusion is correct." City of Missoula v. Robertson, 2000 MT 52, ¶ 14, 298 Mont. 419, ¶ 14, 998 P.2d 144, ¶ 14.

¶17 This Court's standard of review of rulings on the admissibility of evidence, including oral testimony, is whether the district court abused its discretion. See State v. Castle, 1999 MT 141, ¶ 11, 295 Mont. 1, ¶ 11, 982 P.2d 1035, ¶ 11. The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial judge and will not be overturned absent a showing of abuse of discretion. State v. Monaco (1996), 277 Mont. 221, 225, 921 P.2d 863, 866.

¶18 The grant or denial of a motion to dismiss in a criminal case is a question of law which we review de novo on appeal. Our standard of review is plenary, and we determine whether a district court's conclusion is correct. State v. Weldele, 2003 MT 117, ¶ 13, 315 Mont. 452, ¶ 13, 69 P.3d 1162, ¶ 13.

DISCUSSION

ISSUE ONE

¶19 Whether the courts of limited jurisdiction committed reversible error when they did not expressly advise Snell regarding his right to counsel and did not obtain an express waiver of this right?

¶20 Snell relies upon State v. Howard, 2002 MT 276, 312 Mont. 359, 59 P.3d 1075, to contend that his 1988 and 1990 DUI convictions were constitutionally infirm. Additionally, he suggests that the District Court allegedly relied upon pre-hearing affidavits as opposed to hearing testimony, thus it erred when it concluded that Snell's two DUI convictions were constitutionally valid. Snell argues that because Howard requires an express waiver by an unrepresented defendant as a condition precedent to a DUI guilty plea, see Howard, ¶ 18, his convictions were unconstitutional because he never expressly waived his right to counsel.

¶21 Furthermore, Snell contends that the court erred when it applied Rule 406, M.R.Evid., and allowed habit evidence in regards to Judge Donahue's practices when her health failed significantly in 1988, affecting her ability to perform her duties as a JP. Finally, Snell asserts that before he can waive his right to counsel, the court is required to admonish him of the dangers and disadvantages of self-representation and the District Court made no finding on this question, therefore it erred.

¶22 ...