State v. Zimmerman
| Decision Date | 17 April 2018 |
| Docket Number | DA 16-0687 |
| Citation | 391 Mont. 210,2018 MT 94,417 P.3d 289 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. David Michael ZIMMERMAN, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Greg Beebe, Beebe Law Firm, Helena, Montana
For Appellee: Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana, Leo J. Gallagher, Lewis and Clark County Attorney, Jeff Sealey, Deputy County Attorney, Helena, Montana
¶ 1 Defendant David Michael Zimmerman ("Zimmerman") appeals the denials of his motion to suppress and motion in limine and the grant of the State’s motion in limine by the First Judicial District Court, Lewis and Clark County. We address:
¶ 2 We affirm in part, reverse in part, and remand for further proceedings consistent with this Opinion.
¶ 3 At approximately 10:00 p.m. on June 16, 2015, while traveling northbound on North Montana Avenue in Helena, Montana, Highway Patrol Trooper Jeremy Lee ("Lee") clocked Zimmerman traveling southbound at 60 miles-per-hour where the speed limit changes from 50 to 35 miles per hour. Lee made a U-turn and stopped Zimmerman for speeding. Once Lee observed several indicators of intoxication after asking for Zimmerman’s license, registration, and proof of insurance, the traffic stop ripened into a DUI investigation. Lee’s report and testimony stated: Zimmerman’s breath smelled of alcohol; his eyes were "pie-eyed," bloodshot, and watery; his movement was slow and labored; and his speech was slurred. Lee asked Zimmerman to perform standardized field sobriety tests, which Lee concluded indicated that Zimmerman was intoxicated. Lee cited Zimmerman for speeding and arrested him on suspicion of DUI. Zimmerman refused a preliminary breath test at the scene, but he later consented to a blood test. The blood test indicated Zimmerman had a 0.088 blood alcohol content ("BAC").
¶ 4 On June 17, 2015, the State charged Zimmerman with DUI, fourth or subsequent offense, in violation of § 61-8-401(1)(a), MCA. On June 16, 2016, the State filed a Second Amended Information, charging Zimmerman with: Count I—Aggravated DUI, a felony, in violation of § 61-8-465(1)(e), MCA ; or, in the alternative, Count II—Aggravated DUI per se (0.08 or higher BAC), a felony, in violation of § 61-8-465(1)(e), MCA.
¶ 5 On November 17, 2015, Zimmerman moved for discovery of Lee’s other police reports, and the District Court ordered the State to make available Lee’s reports that involved DUI arrests and investigations for six months before and six months after Zimmerman’s June 15, 2015 arrest.
¶ 6 On December 23, 2015, Zimmerman filed a motion to suppress field sobriety tests based on newly discovered evidence in twenty-nine DUI reports generated by Lee between January 18, 2015, and December 5, 2015. Zimmerman argued that Lee’s reports, which provided the basis for particularized suspicion for all his DUI investigations, contained nearly identical language, including the same typographical errors. Zimmerman asserted these indistinguishable reports called into question whether Lee made accurate individualized reports of his traffic stops and whether he possessed sufficient particularized suspicion to investigate Zimmerman for DUI in this case.
¶ 7 At the suppression hearing on February 9, 2016, Lee explained his report-writing process in which he cuts and pastes previous reports and amends the reports while reviewing the video of the stop, deleting irrelevant information, and adding observations cued from the video and his memory. Lee testified his reports contain nearly identical language because DUI investigations themselves are similar in both indications of DUI and the process of the stop. He denied fabricating any observations, insisted the report regarding Zimmerman was accurate, and stated that his cut-and-paste report-writing technique saves time. Lee acknowledged making a mistake in a previous DUI report in which he reported the suspect’s Vertical Gaze Nystagmus ("VGN") test indicated the suspect was intoxicated, but video evidence showed Lee did not even administer the VGN test.
¶ 8 The District Court denied Zimmerman’s motions to suppress. Addressing Zimmerman’s assertion that Lee’s cut-and-paste method of preparing reports indicated he falsely created the report regarding Zimmerman, the District Court reasoned that "to accept Zimmerman’s argument, the Court must conclude that Lee is not credible." The District Court concluded that Lee had sufficient particularized suspicion to investigate Zimmerman for DUI.
¶ 9 On June 22, 2016, Zimmerman filed a motion in limine pursuant to M. R. Evid. 403, requesting exclusion of his prior DUI convictions, which were the predicate offenses to the charge of Aggravated DUI. On the first day of trial the parties argued the motion in limine and jury instructions related to the prior DUI evidence. Zimmerman argued that if the jury heard evidence of his prior DUI convictions, the prejudice would be insurmountable. Zimmerman offered to stipulate to and requested the District Court take judicial notice of the prior DUI convictions to mitigate this prejudice.
¶ 10 The State argued that Zimmerman’s prior DUI convictions were admissible because the convictions were an element of Aggravated DUI pursuant to § 61-8-465(1), MCA, which the State was required to prove beyond a reasonable doubt.
¶ 11 The District Court denied Zimmerman’s motion in limine and allowed the State to use evidence of Zimmerman’s prior DUI convictions, stating: The District Court read the jury a limiting instruction that stated, in part: "That evidence [of prior DUI convictions] was not admitted to prove the character of [the Defendant] or to show he acted in conformity with that character." The jury returned a guilty verdict.
¶ 12 The District Court sentenced Zimmerman to the Montana Department of Corrections ("DOC") for thirteen months followed by a four-year DOC-suspended sentence with conditions. Zimmerman timely appeals.
¶ 13 We review a district court’s evidentiary rulings for an abuse of discretion. State v. Meyer , 2017 MT 124, ¶ 12, 387 Mont. 422, 396 P.3d 1265 (citing State v. Jenkins , 2011 MT 287, ¶ 4, 362 Mont. 481, 265 P.3d 643 ). An abuse of discretion occurs when the district court acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. State v. Price , 2006 MT 79, ¶ 17, 331 Mont. 502, 134 P.3d 45. Although a district court possesses broad discretion to determine the admissibility of evidence, judicial discretion must be guided by the Rules of Evidence, applicable statutes, and principles of law. Maier v. Wilson , 2017 MT 316, ¶ 17, 390 Mont. 43, 409 P.3d 878 (citing Price , ¶ 17 ). To the extent that a discretionary ruling is based on a conclusion of law, our review is plenary. Maier , ¶ 17. Further, we determine whether the court’s underlying findings of fact are clearly erroneous, which occurs if they are not supported by substantial credible evidence, the court has misapprehended the effect of the evidence, or if our review of the record leaves us with a definite and firm conviction that a mistake has been committed. State v. Murray , 2011 MT 10, ¶ 11, 359 Mont. 123, 247 P.3d 721. An erroneous evidentiary ruling constitutes reversible error when a substantial right of the party is affected. M. R. Evid. 103.
¶ 14 Issue One: Whether the District Court erred by denying Zimmerman’s motion to suppress the standard field sobriety test results on the basis that the arresting officer lacked particularized suspicion to administer them.
¶ 15 The Fourth Amendment to the U.S. Constitution and Article II, Section 11 of the Montana Constitution protect a person against unreasonable searches and seizures, which includes brief investigatory stops such as traffic stops and DUI investigations. State v. Elison , 2000 MT 288, ¶ 15, 302 Mont. 228, 14 P.3d 456. An officer may stop any person "that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense." Section 46-5-401, MCA. "A statutory violation alone is sufficient to establish particularized suspicion for an officer to make a traffic stop." Kummerfeldt v. State , 2015 MT 109, ¶ 11, 378 Mont. 522, 347 P.3d 1233.
¶ 16 The particularized suspicion necessary to justify an initial investigatory stop may, but does not automatically, extend to the particularized suspicion required for an alternative investigation into another offense. Hulse v. Dep’t of Justice, Motor Vehicle Div. , 1998 MT 108, ¶¶ 39–42, 289 Mont. 1, 961 P.2d 75. Therefore, before an officer may investigate DUI after a traffic stop and administer field sobriety tests or breath tests for BAC, the officer must have a separate "particularized suspicion that the person was driving or in actual physical control of a vehicle upon ways of this state open to the...
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