No. 13330
I N THE SUPREME C U T O THE STATE OF MONTANA
OR F
1976
THE STATE OF M N A A
O T N ,
P l a i n t i f f and Respondent,
LOUIS A T U ANDERSON,
RH R
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
Honorable E. Gardner Brownlee, Judge p r e s i d i n g .
Counsel of Record:
For A p p e l l a n t :
D. R. Matthews argued, Missoula, Montana
For Respondent:
Hon. Robert L. Woodahl, A t t o r n e y General, Helena,
Montana
Douglas G. Harkin argued, County A t t o r n e y , Hamilton,
Montana
Submitted: October 22, 1976
Decided : DEC 1 3 1976
Filed: j ~ li;3 lm
M r . J u s t i c e Gene B . Daly d e l i v e r e d t h e Opinion of t h e Court.
Defendant Louis Arthur Anderson appeals from a f i n a l
judgment of conviction f o r t h e crime of operating a motor v e h i c l e
upon a public highway while under t h e i n f l u e n c e of i n t o x i c a t i n g
l i q u o r following a jury t r i a l i n t h e d i s t r i c t c o u r t , R a v a l l i
County.
On t h e evening of December 18, 1974 defendant was stopped
by Montana Highway P a t r o l O f f i c e r S t o t t s when defendant f a i l e d
t o dim h i s b r i g h t h e a d l i g h t beams f o r oncoming t r a f f i c . Upon
observing defendant's speech and behavior, O f f i c e r S t o t t s and
O f f i c e r Buck, t h e o t h e r i n v e s t i g a t i n g o f f i c e r , concluded defendant
was i n t o x i c a t e d . O f f i c e r S t o t t s c i t e d defendant f o r d r i v i n g a
motor v e h i c l e upon a public highway while under t h e i n f l u e n c e
of i n t o x i c a t i n g l i q u o r .
Defendant appeared before t h e R a v a l l i County j u s t i c e c o u r t
on January 30, 1975 and a s i x man j u r y found defendant g u i l t y a s
charged. The d e c i s i o n of t h e j u s t i c e c o u r t was appealed by
defendant t o t h e d i s t r i c t c o u r t , R a v a l l i County.
O December 2, 1975, a twelve man j u r y returned a v e r d i c t
n
finding defendant g u i l t y . Defendant appeals and p r e s e n t s t h r e e
i s s u e s f o r t h i s Court's review:
1. Did t h e d i s t r i c t court e r r when t h e c o u r t refused
defendant' s proposed i n s t r u c t i o n No. 3?
2. Did t h e d i s t r i c t c o u r t e r r when i t permitted t h e
a r r e s t i n g highway patrolman t o demonstrate t o t h e j u r y t h e manner
i n which t h e defendant walked a t t h e scene of t h e a r r e s t ?
3. Did t h e d i s t r i c t c o u r t e r r when t h e c o u r t denied
defendant's motion f o r an order allowing defendant t o appeal h i s
conviction with a p a r t i a l t r a n s c r i p t containing only t h e
a r r e s t i n g highway patrolman's testimony?
Defendant's f i r s t i s s u e concerns r e f u s a l of h i s proposed
j u r y instructLon No. 3, which i n e f f e c t defined d r i v i n g while
under t h e i n f l u e n c e of i n t o x i c a t i n g l i q u o r a s t h e lessening of
t h e a b i l i t y of t h e d r i v e r of an automobile t o c o n t r o l t h e v e h i c l e .
The record d i s c l o s e s defendant was n o t stopped on t h e evening
of December 18, 1974, f o r f a i l i n g t o e x e r c i s e reasonable c o n t r o l
over t h e movement of defendant's v e h i c l e on t h e road, r a t h e r
defendant was stopped by O f f i c e r S t o t t s because he f a i l e d t o dim
h i s b r i g h t h e a d l i g h t beams f o r oncoming t r a f f i c . ~efendant's
proposed i n s t r u c t i o n No. 3 was i n a p p l i c a b l e under t h e s e p a r t i c u l a r
facts. I f given, t h e j u r y might be misled t o b e l i e v e t h a t i n
o r d e r t o show t h a t defendant v i o l a t e d s e c t i o n 32-2142, R.C.M.
1947,.the s t a t e must prove t h a t defendant was under t h e influence
of i n t o x i c a t i n g l i q u o r , t h a t defendant was d r i v i n g a motor
v e h i c l e on t h e highways of Montana and t h a t being under t h e
influence of i n t o x i c a t i n g l i q u o r a f f e c t e d defendant's d r i v i n g
ability. This would be an i n c o r r e c t statement of t h e a p p l i c a b l e
law.
Where jury i n s t r u c t i o n s a s a whole c o r r e c t l y s t a t e t h e
law p r e j u d i c e i s not c r e a t e d because of a r e f u s a i of a proposed
instruction. S t a t e v. Bosch, 125 Mont. 566, 242 P.2d 477; S t a t e
v. Lukus, 149 Mont. 45, 423 P.2d 49.
Upon examining a l l of t h e i n s t r u c t i o n s presented t o t h e
j u r y by t h e d i s t r i c t c o u r t , we conclude t h e j u r y was properly
i n s t r u c t e d a s t o t h e a p p l i c a b l e law i n defendant's c a s e and
defendant incurred no prejudice through t h e exclusion of proposed
i n s t r u c t i o n No. 3.
- 3 -
Defendant's second allegation of error involves the dis-
trict courti-permitting Officer Stotts to demonstrate to the
jury the manner in which the defendant walked at the scene of
the arrest on the evening of December 18, 1974.
The particular question of whether a witness may demon-
strate the physical mannerisms of a defendant before a jury
in a criminal matter would appear to be a matter of first im-
pression in the state of Montana. Other jurisdictions acknow-
ledge that a witness may give testimony showing that the accused,
at the time of his arrest, appeared intoxicated. Millican v.
State, 143 Tex. Crim. 115, 157 S,'W.2d 357; Green Lake County
v. Domes, 247 Wis. 90, 18 N.W.2d 348. There is also recognized
authority that a skilled or expert witness may use his own body,
or a member of his body, or an article to illustrate or explain
the evidence. State v. Atwood, 250 N.C. 141, 108 S.E.2d 219.
Defendant objected to the demonstration of Officer Stotts
on the grounds there was no adequate foundation for admission
of the demonstration and the demonstration would not be on the
record for appellate purposes.
Whether the proper foundation for admission of the
demonstration was presented and whether defendant would be
substantially prejudiced by the admission of the demonstration
is a preliminary question addressed to the discretion of the
district court. As statedin State v. Medicine Bull, Jr., 152
Mont. 34, 45, 445 P.2d 916:
"* * * the solution of the question of admissibility
of the evidence must in every case be left largely
to the sound legal discretion of the trial court,
subject to review only in case of manifest abuse."
Defendant's contention there was inadequate foundation
for allowing the demonstration by Officer Stotts would appear to
be without merit. The record discloses Officer Stotts had
ample opportunity to observe the defendant walking at the time
of the arrest and at the time of the trial Officer Stotts
had good recollection of the manner in which defendant walked on
the evening in question. Defendant was allowed the opportunity
to cross-examine Officer Stotts prior to the demonstration.
Defendant's objection that the demonstration would not
be adequately represented in the trial record is without merit.
Officer Stott's demonstration was accorded the same formalities
of recordation as any other introduction of non-verbal evidence.
We find no abuse of discretion in the admission of this demon-
stration.
Defendant' s final allegation of error concerns the
district court'. denial of defendant's request to use a partial
transcript for purposes of appeal. Defendant cites section
93-8018, R.C.M. 1947, in his appellate brief as authority for
the use of partial or abbreviated records on appeal.
Section 93-8018 (superseded by appropriate rules in
Montana Rules of Appellate Civil Procedure), was applicable to
abbrevia,tedrecords on appeal in civil actions.
Defendant's motion for a partial transcript for purposes
of appeal would be appropriately made under section 95-2408(b),
R.C.M. 1947, which provides in pertinent part:
"Unless the entire transcript is to be included,
the appellant shall, within the time above provided,
file and serve on the respondent a description of
the parts of the transcript which he intends to in-
clude in the record and a statement of the issues
which he intends to present on the appeal."
Defendant ' s motion f o r p a r t i a l t r a n s c r i p t , dated
February 25, 1976, i s d e f e c t i v e s i n c e it does not s e t f o r t h
those i s s u e s which defendant intended t o present on t h e appeal.
The purpose f o r s e t t i n g out t h e i s s u e s on appeal i n t h e motion
f o r p a r t i a l t r a n s c r i p t i s t o n o t i f y t h e c o u r t and opposing p a r t i e s
a s t o what a r e a s of t h e record w i l l be needed t o argue t h e
i s s u e s on appeal.
Even i f defendant's motion f o r p a r t i a l t r a n s c r i p t was
n o t found t o be f a t a l l y d e f e c t i v e , i t was w i t h i n t h e sound
d i s c r e t i o n of t h e d i s t r i c t c o u r t t o determine t h a t only by
t h e examination of a complete record could i t be determined
whether o r n o t a miscarriage of j u s t i c e occurred. S t a t e v.
Hay, 120 Mont. 573, 194 P.2d 232. W f i n d no abuse of d i s -
e
cretion.
The judgment i s affirmed.
W Concur:
e
Y k Z ;Lstles.
s tting for ~ u s t i c e