State v. Sol
| Decision Date | 20 March 1997 |
| Docket Number | No. 96-219,96-219 |
| Citation | 282 Mont. 69,936 P.2d 307 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Kim Michael SOL, Defendant and Appellant. |
| Court | Montana Supreme Court |
Gary W. Wolfe, Sol & Wolfe, Missoula, for Defendant and Appellant.
Joseph P. Mazurek, Attorney General; Michael L. Fanning, Assistant Attorney General, Helena, Robert L. Deschamps III, County Attorney, Missoula, for Plaintiff and Respondent.
Kim Michael Sol appeals from two orders of the Fourth Judicial District Court, Missoula County, denying his motions to dismiss a charge of driving under the influence of alcohol and/or drugs. We affirm.
The issues are:
1. Did the District Court err when it refused to grant Sol's motion to dismiss because the Justice Court clerk transmitted the record of the case to the District Court thirty-one days after Sol filed his notice of appeal, instead of within thirty days as required by § 46-17-311(3), MCA?
2. Did the District Court err when it refused to grant Sol's motion to dismiss based on the State's failure to supply a witness and exhibit list?
Sol was arrested on June 5, 1994, by Missoula County Deputy Sheriff Phil Tillman and was charged with driving under the influence of alcohol in violation of § 61-8-401, MCA. At booking, he submitted to a breath test. The Intoxilyzer 5000 indicated that Sol's breath alcohol concentration was .184.
Sol pleaded not guilty to an amended complaint charging him with driving under the influence of alcohol and/or drugs. The complaint was amended because there was evidence that Sol had inhaled Primatene Mist, in addition to having consumed alcohol, on the evening of his arrest.
Sol initiated discovery regarding the testimony of the State's proposed expert witness, Phil Lively, of the State Crime Lab. In response to Sol's discovery motions, the Justice Court ordered the State to make Lively available regarding his knowledge of cases in which the Intoxilyzer 5000 had been shown to be unreliable.
On April 25, 1995, in response to an April 24 letter from Sol's attorney, Gary Wolfe, asking the State if it maintained that Primatene Mist had no effect on the intoxilyzer, the State's intern prosecutor, Kirsten LaCroix, informed Wolfe that Sol should obtain his discovery from Lively. The letter stated:
Last fall ... Mr. Sol requested that the State provide him with all tests done on the Intoxilyzer 5000 since its purchase. The Court directed Mr. Sol to contact Phil Lively to inquire about relevant testing done. To my knowledge, Mr. Sol has declined to do this. Regardless, Phil will be available after May 8, 1995, to answer the questions that you pose.
Please call Mr. Lively after May 8, to discuss the experiments, as well as the citation to the journal you are interested in. His telephone number is....
Sol was convicted in Justice Court of driving under the influence of alcohol and/or drugs. On June 22, 1995, he appealed to the District Court for a trial de novo. The Justice Court clerk transmitted the record on July 25, 1995, one day after the thirty-day deadline required by § 46-17-311(3), MCA. 1 After receiving the record, the District Court ordered both parties to submit discovery in compliance with § 46-15-322, MCA.
On August 15, 1995, Sol moved to dismiss the DUI charge, based on the Justice Court clerk's one-day delay in transmitting the record. He subsequently filed a second motion to dismiss and a motion in limine to prevent the State from calling witnesses or introducing evidence. Sol based this motion on the State's failure to file notice of witnesses and exhibits, and to disclose witness statements and exculpatory evidence, as directed by the court's discovery order. The State did not file a witness and exhibit list in District Court because it planned to use the same evidence as in Justice Court.
The court denied Sol's first motion to dismiss and resolved his second motion at two hearings and during trial. At the first hearing, the State confirmed that all of the evidence it was going to present was the same evidence used in Justice Court. The District Court denied Sol's second motion to dismiss, but limited the State's case to the evidence presented in Justice Court or disclosed in preparation for the Justice Court trial.
At a hearing held on October 10, 1995, Sol attempted to bar evidence concerning tests that Lively performed regarding bronchial dilators on the Intoxilyzer 5000. Sol claimed that the Justice Court had barred similar evidence because the State failed to disclose an expert witness statement and to supply a summary of the tests. The court questioned intern prosecutor Dylan Jackson to determine whether Sol knew about the Primatene Mist tests. The intern explained that the tests had been disclosed, and that LaCroix's notes indicated that she had written Sol's attorney on April 25, 1995, explaining how he could obtain information about them. The court granted Sol's motion to exclude the tests because they were not properly disclosed.
Sol's case proceeded to trial on October 10, 1995. During the State's direct examination of Lively, Sol objected, arguing that the State's questions were barred by the court's earlier ruling. The court ruled that the State could offer evidence which had been disclosed to Sol through direct discovery or during the course of the Justice Court trial.
The court then asked Sol if he was aware of tests Lively had conducted involving Primatene Mist. Sol responded that he was unaware of the tests, their results, or how they were conducted. The court then directed the intern to summarize Lively's proposed testimony and ordered Sol to raise his hand if he heard something new. Sol did not raise his hand. He eventually admitted that the State had supplied him with the publication about which Lively would testify. He also admitted knowledge of the tests I heard--Well, the part about a bunch of tests way in the past that he doesn't have any results on, I don't recall that at all. I recall him specifically saying, I did a test with four people a couple of months ago, that was in the May trial.
Sol then argued that the State was required to supply him with its exculpatory evidence in writing. The court concluded that the State had made the reports available for examination and reproduction. It determined that Sol knew there was a test, and that if he went to the Crime Lab and saw there was a written report, he could have obtained a copy. Based on this discussion, the court ruled that the State could question Lively about the Primatene Mist tests because Sol had adequate notice. The court received as exhibits a letter from Sol's attorney to the State, dated April 24, 1995, and LaCroix's reply letter of April 25, 1995.
On October 12, 1995, a jury convicted Sol of driving under the influence of alcohol. Sol appeals from the District Court's denial of his motions to dismiss.
1. Did the District Court err when it refused to grant Sol's motion to dismiss because the Justice Court clerk transmitted the record of the case to the District Court thirty-one days after Sol filed his notice of appeal, instead of within thirty days as required by § 46-17-311(3), MCA?
Sol argues that the District Court erred when it denied his motion to dismiss based on the Justice Court clerk's one-day delay in transmitting the record. The District Court ruled that the transmittal of the record is a statutory obligation imposed on the Justice Court, and that the one-day delay did not prejudice Sol's speedy trial rights.
The grant or denial of a motion to dismiss in a criminal case is a question of law. City of Helena v. Danichek (1996), 277 Mont. 461, 463, 922 P.2d 1170, 1172. The standard of review of a district court's conclusion of law is plenary, and we review it to determine whether the conclusion of law is correct. Danichek, 922 P.2d at 1172.
Section 46-17-311(3), MCA, provides:
Within 30 days of filing the notice of appeal, the court shall transfer the entire record of the court of limited jurisdiction to the district court.
This Court has consistently held that strict compliance with § 46-17-311, MCA, is necessary to perfect an appeal. State v. Speith (1990), 244 Mont. 392, 394, 797 P.2d 221, 222. Perfecting an appeal is the duty of the appellant, Speith, 797 P.2d at 222, while physically transmitting the record is the responsibility of the Justice Court. State v. Dubray (1982), 201 Mont. 327, 329-30, 654 P.2d 970, 971-72.
Under § 46-17-311(3), MCA (1989), an appellant was charged with the duty of perfecting the appeal and the consequences for failing to do so. Unlike § 46-17-311(3), MCA (1989), the justice court, not the appellant, now transfers the record to the district court. See § 46-17-311(3), MCA; Cf. § 46-17-311(3), MCA (1989). Under § 46-17-311(3), MCA, an appellant perfects an appeal by filing written notice of appeal within ten days of judgment.
Sol cites cases involving appeals initiated by defendants, such as Speith, 797 P.2d at 221; State v. Hartford (1987), 228 Mont. 254, 741 P.2d 1337; and State v. Main (1981), 191 Mont. 304, 623 P.2d 1382, which lead him to assume that § 46-17-311, MCA (1989), has only been strictly construed against defendants. This is incorrect. Based on this assumption, Sol argues that the Justice Court clerk's failure to comply with § 46-17-311, MCA, should be strictly construed against the State. We disagree.
We have strictly construed § 46-17-311, MCA, against the State when it failed to perfect an appeal. See State v. Province (1987), 226 Mont. 425, 426, 735 P.2d 1128, 1129. The plain language of § 46-17-311, MCA, requires the justice court to transfer the entire record of the court of limited jurisdiction to the district court. The statute does not impose a duty on the prosecution to transmit the record nor does it penalize the prosecution for failing to do so.
Dubray, 654 P.2d at 970, addressed the...
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