State v. Wellknown

• Decision Date: 24 May 2022
• Docket Number: DA 20-0379
• Citation: 2022 MT 95
• Parties: STATE OF MONTANA, Plaintiff and Appellee, v. CLAYTON LEE WELLKNOWN, Defendant and Appellant.
• Court: Montana Supreme Court

2022 MT 95

STATE OF MONTANA, Plaintiff and Appellee, v. CLAYTON LEE WELLKNOWN, Defendant and Appellant.

No. DA 20-0379

Supreme Court of Montana

May 24, 2022

Submitted on Briefs: March 16, 2022

APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 19-1182 Honorable Donald L. Harris, Presiding Judge

For Appellant:

Chad Wright, Appellate Defender, Jeavon C. Lang, Assistant Appellate Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana

Scott D. Twito, Yellowstone County Attorney, Christopher A. Morris Deputy County Attorney, Billings, Montana

OPINION

JIM RICE, JUSTICE

¶1 Clayton Wellknown appeals a judgment and sentence entered by the Thirteenth Judicial District Court, Yellowstone County after a jury found him guilty of felony Driving a Motor Vehicle Under the Influence of Alcohol or Drugs in violation of § 61-8-401, MCA (2017) (DUI). Wellknown argues his right to equal protection was violated when the District Court allowed the State to peremptorily strike the only racial minority member of the venire, and that his right to a fair trial was violated by remarks made by the prosecutor during closing argument. He also argues the District Court relied on an unconstitutional prior DUI conviction for enhancement of this DUI conviction to a felony offense. We consider:

1. Did the District Court violate Wellknown's right to equal protection by denying his Batson objection to the State's peremptory challenge?

2. Did the State's remarks during closing argument violate Wellknown's right to a fair trial and necessitate plain error review?

3. Did the District Court err when it relied on a prior conviction to support enhancement of Wellknown's DUI conviction to a felony?

¶2 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On September 22, 2019, the Billings Police Department received 911 calls from multiple citizens regarding a car that was speeding and driving erratically. One of the 911 callers, Ryan Snyder, followed the car to a Double Tree hotel parking lot, and reported the driver's location and physical appearance to law enforcement. Officers found the driver as described, who was Wellknown, in the hotel lobby and arrested him. Wellknown had bloodshot eyes and officers detected the odor of alcohol emanating from him. Officers located an empty 40 oz. bottle of malt liquor on the driver's side floorboard of Wellknown's vehicle. Wellknown did not speak to police, even to identify himself, and by his silence refused to perform field sobriety tests or consent to blood alcohol content (BAC) testing. Police obtained a warrant for a blood draw, indicating Wellknown's BAC was 0.185, or more than twice the legal limit of 0.08, approximately one hour after his arrest. Wellknown was charged with DUI in violation of § 61-8-401, MCA, and, alternately, with a violation of § 61-8-406, MCA (2017) ("DUI per se").

¶4 During trial, after the conclusion of voir dire, the State used a peremptory strike to remove Shan Birdinground from the jury. Defense counsel objected, stating "[Birdinground] is the only minority on this jury panel."^[1] After this objection, the following exchange occurred:

The Court: Well, I could do an inquiry. . . . [W]hat are the reasons for you to exercise your peremptory against Mr. Birdinground?

The State: Your Honor, Mr. Birdinground was the victim in DC 18-0336. He was stabbed multiple times by his partner, [S. D.]. He refused to cooperate. He would never return our phone calls and was hostile to our office. Because of that, we believe he would be a partial juror towards the State [sic] because he was so hostile to us when he was a victim a year and a half ago. We ended up amending that charge from assault with a weapon to criminal endangerment because of his lack of cooperation.

The Court: All right. So the objection is overruled. And the State - The State: Judge, if I could add a second part. He also said he would need to - someone to be 100 percent before he would ever convict, which is not the standard.

Defense Counsel: Also, just to clarify the record, your Honor, there [were] several jurors that made the same comment 100 percent. The State [hasn't] exercised their peremptory on them at this point.

The Court: We haven't gotten there yet. They still have some peremptories, right?

Defense Counsel: For the purpose [of] perfecting the record.

The Court: All right. Thank you.

(Emphasis added.) The District Court then continued with the parties' exercise of peremptory challenges, allowing Mr. Birdinground to be struck from the jury. No further record was made on the issue.

¶5 Snyder and another eyewitness testified to Wellknown's silver Mitsubishi speeding and then crashing off the side of the road, resulting in a flat tire and damage to the vehicle. Despite the flat tire, Wellknown was able to maneuver his vehicle back onto the road and drive for several hundred meters before stopping in the parking lot of a Double Tree hotel. Snyder followed Wellknown in his own vehicle while remaining on the phone with law enforcement and testified that Wellknown got out of his vehicle and walked away, then quickly returned to the vehicle to retrieve a plastic bag and a hat. Wellknown left the hotel parking lot on foot and headed toward a nearby restaurant, while Snyder followed Wellknown in his vehicle. When Wellknown noticed Snyder's lime-green Jeep following him, he turned back to the hotel, entered the hotel lobby, and leaned up against a trash can. Snyder testified he lost sight of Wellknown for a few moments until he spotted Wellknown leaning against the trash can, and said he never observed Wellknown drinking. The responding police officer testified that he arrived at the hotel and found a man matching the description Snyder provided leaning on a trash can in the hotel lobby, and arrested him. Despite Wellknown's refusal to speak, he was identified by identification found on his person. A warrant was issued for a blood draw, which indicated Wellknown's 0.185 BAC.

¶6 Wellknown testified in his own defense, and stated that, after picking up a friend from her job at a fast-food restaurant, he noticed a black SUV behind him and thought he was being followed. He stated that in his attempt to drive away from this pursuer, the SUV swerved in front of him, causing him to overcorrect and crash on the side of the road, popping a tire. Wellknown testified he continued driving to reach an "open area" where he would be safe from his pursuer and, despite his passenger then jumping out of his moving vehicle, proceeded to "a safe spot" where there were "people around," that being the Double Tree parking lot. Wellknown said he left his vehicle but quickly returned to get prescription medication and a pint of liquor he kept in his vehicle. Wellknown stated that he still feared he was being followed, so he headed to a police station on foot, but turned back to the Double Tree when he got scared. He stated he entered the hotel through a side door and made his way toward the lobby, which took a few moments. In the time between entering the hotel and arriving in the lobby-the only time he was not observed by Snyder-Wellknown claimed he drank a "couple shots" of liquor and ingested the retrieved medication. He stated he drank a couple more shots, totaling half of the pint bottle, while standing by the trash can in the lobby. Wellknown stated he disposed of the liquor in the trash can as police approached, and was adamant that the only alcohol he drank that night was the half pint of liquor consumed after he entered the hotel.

¶7 A toxicologist for the State testified at length. The toxicologist discussed how BAC is determined from a blood sample, the accuracy of determining BAC from a blood sample, and the duration of alcohol in the blood. He estimated that a person would need to drink at least six shots of 40 percent alcohol by volume liquor, or about half a pint, all at once to reach a BAC of 0.185 within 45 minutes.

¶8 The jury convicted Wellknown of DUI in violation of § 61-8-401, MCA. Because this was Wellknown's fourth DUI conviction, it was enhanced to felony offense pursuant to § 61-8-731, MCA (2017). Prior to sentencing, Wellknown challenged a previous 2007 DUI conviction as unconstitutional, and thus ineligible for enhancement purposes. He claimed he did not know who his attorney was during the 2007 proceeding, was not given any documents regarding his case, lost a right to jury trial by a default bench trial designation, and was convicted in absentia. The District Court found that Wellknown presented "the barest evidence" of his conviction's invalidity, but that, based on court records, Wellknown was represented by counsel authorized to defend him and was voluntarily absent from the bench trial. The District Court concluded his 2007 conviction was lawful and sentenced him for felony DUI.

STANDARDS OF REVIEW

¶9 When considering a challenge based upon Batson v Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), i.e., a challenge claiming that a peremptory strike was used in a discriminatory manner, we "defer to the trial court's findings of fact unless they are clearly erroneous, and [] review the trial court's application of the law de novo." State v. Warren, 2019 MT 49, ¶ 16, 395 Mont. 15, 439 P.3d 357 (citing State v. Ford, 2001 MT 230, ¶ 7, 306 Mont. 517, 39 P.3d 108).

¶10 We review unpreserved issues alleging violations of fundamental constitutional rights under the plain error doctrine. State v. Valenzuela, 2021 MT 244, ¶ 7, 405 Mont. 409, 495 P.3d 1061 (citing State v Barrows, 2018 MT 204, ¶ 8, 392 Mont. 358, 424 P.3d 612). This doctrine is used ...