State v. Snell
| Decision Date | 23 November 2004 |
| Docket Number | No. 03-109,03-109 |
| Citation | 2004 MT 334,103 P.3d 503 |
| Parties | STATE OF MONTANA, Plaintiff and Respondent, v. KENNETH SNELL, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Jeffrey T. Renz; Jeanine Blaner, Intern; Colin M. Stephens, 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.
¶1 This Court issued its original Opinion in this case on September 14, 2004. See State v. Snell, 2004 MT 258, 323 Mont. 84, ___ P.3d ___ (Snell I). Snell filed a Petition for Rehearing on September 24, 2004. The State filed its Objections to the Petition for Rehearing on September 30, 2004. Snell raised two issues in his Petition. First, he maintained this Court overlooked his affidavit wherein he made affirmative statements that constitute the necessary direct evidence of the constitutional infirmity of his prior Driving Under the Influence (DUI) convictions. Second, he argued this Court erroneously applied harmless error analysis in direct conflict with this Court's decision in State v. Crawford, 2003 MT 118, 315 Mont. 480, 68 P.3d 848. On November 4, 2004, we granted Snell's Petition for Rehearing and withdrew Snell I. We now replace Snell I with this superceding Opinion.
¶2 On October 28, 1999, an Information charged Kenneth Snell (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. We affirm in part and reverse in part. We restate the following issues on appeal:
¶3 1. Whether the District Court erred when it denied Snell's motion to dismiss.
¶4 2. Whether the District Court properly admitted the preliminary alcohol screening test (PAST) evidence.
¶5 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.
¶6 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 (Officer Harrison) observed Snell traveling too close behind another car and noticed 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. As a result of his observations of the traffic violations and weaving, Officer Harrison stopped Snell, and while questioning him in the patrol car, noted Snell smelled of alcohol and had bloodshot eyes. Snell told the officer he had been drinking beer. Officer Harrison read Snell the required PAST implied consent warning and Snell provided a breath sample on an Alco-Sensor III, also known as a PAST. A PAST is also referred to as a preliminary breath test, or PBT. He scored a .168, above the legal limit of .10. However, Snell refused to perform the field sobriety tests. Officer Harrison arrested Snell and transported him to the Missoula County jail for further processing.
¶7 Upon arrival at the detention center, Officer Harrison discovered there were five officers ahead of him waiting to process DUI drivers, which included the use of an in-station Intoxilyzer 5000. Officer Harrison estimated the wait to be at least an hour and a half, so they returned to the patrol car where Officer Harrison again read Snell the implied consent advisory and asked him to submit to another PAST on the Alco-Sensor III. Snell consented and scored a .148. The District Court later excluded this second test because the breath sample was seized unlawfully as only one PAST is allowed to be taken. Officer Harrison issued Snell two tickets and drove him home.
¶8 On October 28, 1999, the State charged Snell with Driving While License Suspended or Revoked, a misdemeanor. Based upon three prior DUI convictions, the State also charged Snell with his fourth offense of DUI, a felony. Snell pled not guilty to both charges. On January 27, 2000, he filed a motion in limine to exclude the PAST results. The District Court held an evidentiary hearing on the admissibility of the results where it heard testimony from two experts concerning the Alco-Sensor III. 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.
¶10 Subsequent to the jury verdict but prior to sentencing, Snell filed a motion to dismiss for lack of jurisdiction claiming two of his three previous DUI convictions used to enhance punishment were constitutionally infirm. Snell claimed 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 an evidentiary hearing to address Snell's motion to dismiss. Snell testified that on both occasions the JP only asked him how he wished to plead 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 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 JPs 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. When concluding that defendants did waive 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 defendants knew that by entering a guilty plea, as Snell did, 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 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 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 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 practice 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 the two prior DUI convictions 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 certain opinion testimony offered by Officer Harrison.
¶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. A district court's ruling on a motion in limine is an evidentiary ruling and the court has broad discretion in determining whether evidence is relevant and admissible, and as such, we will not overturn a district court's determination absent an abuse of that discretion. Crawford, ¶ 7.
¶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. State v. Weldele, 2003 MT 117, ¶ 13, 315 Mont. 452, ¶ 13, 69 P.3d 1162, ¶ 13. Our standard of review is plenary, and we determine whether a district court's conclusion is correct. Weldele, ¶ 13.
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