No. 14205
I N THE CCUKT O THE STATE O
F F MONTANA
1978
STATE OF m m ,
P l a i n t i f f and Respordent,
-VS-
RAYMOND NELSON,
Defendant and Appellant.
Appeal f r m : D i s t r i c t Court of the Third Judicial D i s t r i c t ,
Homrable mbert Boyd, Judge presiding.
Counsel of Record:
For Appellant:
Greg Skakles, Anacorda, Wntana
For Respondent:
Mike Greely, Attorney General, Helena, Wntana
John Radonich, County Attorney, Anaconda, Wntana
S u b i t t e d on briefs: August 3, 1978
Filed:
sEP 7 - 'S7p
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
Defendant Raymond Nelson appeals from final judgment
and conviction for driving while intoxicated rendered August
31, 1977, following a jury trial in the District Court of
the Third Judicial District, County of Deer Lodge.
This case comes to us under Class #2 of the Internal
Operating Rules of this Court, and as such is being decided
without oral argument.
Defendant was involved in an automobile accident at
approximately 12:30 a.m. on Saturday, November 6, 1976, when
the car he was driving crossed the center line of Highway
10-A, west of Anaconda, Montana, and struck an oncoming car
driven by Linda Boyer of Anaconda. Only minor injuries
resulted. Following the accident, sheriff's deputies, after
investigating the accident, took defendant to Community
Hospital where a blood sample was drawn. The deputies then
took the sample to the county jail where it was left to be
mailed to Helena for analysis the following day. Defendant
was subsequently charged in District Court by information
with "Driving While Under the Influence of Intoxicating
Liquor (3rd offense)", to which he pleaded not guilty on
January 3, 1977. On July 11, 1977, defendant unsuccessfully
moved to dismiss for failure of the State to bring the case
to trial within the statutory six month time limit. At
trial on August 30, 1977, the State did not present any
evidence of defendant's prior convictions. The jury re-
turned a guilty verdict on August 31 and on October 26 the
court gave defendant a deferred one-year sentence and
ordered him to pay a $750 fine.
Defendant presents four issues for review which we have
rephrased and regrouped for purposes of this opinion:
1. Was the information deficient in stating sufficient
facts to establish the jurisdiction of the District Court?
2. Did the failure of the State to present evidence
during the trial of defendant's prior convictions for driving
while intoxicated entitle him to a directed verdict on the
ground that the jurisdiction of the District Court was not
established?
3. Was defendant denied a speedy trial by the failure
of the State to bring the case to trial within six months of
his plea?
4. Was evidence of defendant's blood test erroneously
admitted despite a break in the chain of its custody?
While certain aspects of each of these issues are
troubling, we find none of them, either singly or in com-
bination, sufficient to warrant reversal and therefore
affirm the judgment of the District Court. We will discuss
each issue in turn.
In Issue 1, defendant questions the sufficiency of the
information to establish jurisdiction of the District Court.
Defendant was charged by information with "the crime of
riving While Under the Influence of Intoxicating Liquor
(3rd offense)". Defendant argues strenuously at length that
"offense" and "conviction" are not the same thing and there-
fore the information fails to state facts sufficient to give
the District Court jurisdiction of what is normally a jus-
tice court offense. State v. Heine (1975), 169 Mont, 25,
30, 544 P.2d 1212, 1214. We feel defendant's semantic
argument is a distinction without a difference under the
facts of this case.
In Montana, the criminal jurisdiction of justice courts
generally extends to all misdemeanors punishable by a fine
not exceeding $500 or imprisonment not exceeding six months,
or both such fine and imprisonment. Section 95-302, R.C.M.
1947. Criminal jurisdiction of the District Courts then
extends to all public offenses not otherwise provided for.
Section 95-301, R.C.M. 1947. Under Montana's driving while
intoxicated statute, it is only upon the third conviction
that the maximum sentence may be increased to one year and a
fine of $1,000. Section 31-2142(d), R.C.M. 1947, (as codi-
fied at the time of the incident). Only at that time do
District Courts become vested with jurisdiction over the
matter. State v. Heine, supra.
Defendant's argument is that by stating in the informa-
tion that this was his "3rd offense" instead of that he had
two prior convictions, the State failed to establish the
jurisdiction of the court. There is no basis for defen-
dant's argument. First, the information itself clearly
states the increased penalty to which defendant, having two
prior convictions, is subject. This penalty is applicable
only to one having two prior convictions. Section 31-
2142 (d), R.C.M. 1947.
Second, the affidavit filed in support of the informa-
tion clearly states that a review of defendant's driving
record indicates "two previous driving while intoxicated
convictions". Reference to the affidavit filed is clearly
permissible. State v. Dunn (1970), 155 Mont. 319, 324, 472
P.2d 288, 292.
The information as to defendant's prior convictions, in
combination with the supporting affidavit, is sufficient to
give jurisdiction to the District Court.
I s s u e 2 c h a l l e n g e s t h e S t a t e ' s f a i l u r e t o produce
e v i d e n c e of t h e p r i o r c o n v i c t i o n s a t d e f e n d a n t ' s t r i a l .
Defendant a r g u e s t h a t s i n c e no e v i d e n c e was p r e s e n t e d a t
t r i a l of h i s p r i o r c o n v i c t i o n s f o r d r i v i n g w h i l e i n t o x i -
c a t e d , t h e S t a t e f a i l e d t o e s t a b l i s h t h e j u r i s d i c t i o n of
the court.
I n s e c t i o n 31-2142, R.C.M. 1947, t h e s t a t u t e d e f e n d a n t
i s a c c u s e d of v i o l a t i n g , t h e e l e m e n t of p r i o r c o n v i c t i o n s i s
n o t c o n t a i n e d i n t h e s t a t u t o r y d e f i n i t i o n of t h e c r i m e b u t
i s contained only i n t h e s e p a r a t e penalty provisions. For a
p r i o r c o n v i c t i o n t o be a n e c e s s a r y e l e m e n t of a crime, t h e
f a c t of p r i o r c o n v i c t i o n s must be c o n t a i n e d i n t h e s t a t u t o r y
d e f i n i t i o n of t h e crime r a t h e r than i n t h e s e p a r a t e penalty
p r o v i s i o n s . S t a t e v . Loudermilk ( 1 9 7 6 ) , 221 Kan. 1 5 7 , 557
P.2d 1229, 1232. The S t a t e , upon t r i a l , h a s o n l y t o p r o v e
t h e p r e s e n t o f f e n s e . I f t h e y s u c c e e d , t h e n t h e m a t t e r of t h e
p r i o r convictions i s considered i n s e t t i n g t h e sentence.
Loudermilk, 557 P.2d a t 1233. A s s e n t e n c i n g i s t o be i m -
posed s o l e l y by t h e judge, s e c t i o n 95-2212, R.C.M. 1947,
o n l y h e need be informed a s t o t h e p r i o r c o n v i c t i o n s .
An a n a l o g o u s p r o c e d u r e i s used i n s e n t e n c i n g r e p e a t
felony offenders:
" ( b ) The n o t i c e and t h e c h a r g e s of p r i o r
c o n v i c t i o n s c o n t a i n e d t h e r e i n s h a l l n o t be made
p u b l i c nor i n any manner be made known t o t h e
j u r y b e f o r e t h e j u r y ' s v e r d i c t i s r e t u r n e d upon
t h e felony charge provided t h a t i f t h e defendant
s h a l l t e s t i f y i n h i s own b e h a l f he s h a l l never-
t h e l e s s be s u b j e c t t o impeachment as p r o v i d e d
i n s e c t i o n 93-1901-11, R.C.M. 1947, as amended.
" ( c ) I f t h e a c c u s e d i s c o n v i c t e d upon t h e
felony charge, t h e n o t i c e , together with proper
proof o f t i m e l y s e r v i c e , s h a l l be f i l e d w i t h t h e
c o u r t b e f o r e t h e t i m e f i x e d f o r s e n t e n c e . The
c o u r t s h a l l then f i x a t i m e f o r hearing with a t
l e a s t t h r e e (3) days' n o t i c e t o t h e accused.
" ( d ) The h e a r i n g s h a l l be h e l d b e f o r e t h e
c o u r t alone. I f t h e c o u r t f i n d s any of t h e a l l e -
g a t i o n s of p r i o r c o n v i c t i o n t r u e , t h e accused
s h a l l b e s e n t e n c e d under t h e p r o v i s i o n s of s e c -
t i o n 94-4713." S e c t i o n 95-1506, R.C.M. 1947.
See a l s o S t a t e v. Cooper ( 1 9 7 1 ) , 158 Mont. 1 0 2 , 1 0 9 , 489
While t h e f e l o n y p r o v i s i o n above d o e s n o t d e a l w i t h t h e
j u r i s d i c t i o n of t h e c o u r t , i t d o e s i n d i c a t e a l e g i s l a t i v e
c o n c e r n t h a t e v i d e n c e of p r i o r c o n v i c t i o n s may p r e j u d i c e t h e
defendant i n h i s present t r i a l . See Rule 4 0 4 ( b ) , 3Iont.R.
Evid. The same c o n c e r n i s a p p l i c a b l e i n d r i v i n g w h i l e
i n t o x i c a t e d c a s e s and was s h a r e d by d e f e n d a n t h e r e who asked
t h a t t h e r e f e r e n c e t o " 3 r d o f f e n s e " be b l o c k e d o u t b e f o r e
t h e i n f o r m a t i o n was g i v e n t o t h e j u r y .
Defendant r e f e r s u s t o S t a t e v . J o n e s ( 1 9 7 0 ) , 2 0 4 Kan.
719, 466 P.2d 283, 288, where t h e Kansas Supreme C o u r t h e l d
t h a t t h e venue of a n o f f e n s e i s j u r i s d i c t i o n a l and must be
proved t o e s t a b l i s h t h e j u r i s d i c t i o n of t h e c o u r t . The c a s e
is distinguishable.
The j u r i s d i c t i o n of which t h e Kansas c o u r t i s s p e a k i n g
i s g e o g r a p h i c a l , t h a t i s , where t h e c r i m e t o o k p l a c e . Thus,
i n p r o v i n g t h e c r i m e i t s e l f , t h e S t a t e must p r o v e i t o c c u r r e d
w i t h i n t h e g e o g r a p h i c a l j u r i s d i c t i o n of t h e c o u r t . The same
i s t r u e i n Montana as t o g e o g r a p h i c a l j u r i s d i c t i o n . State
v . Smith ( 1 9 2 0 ) , 57 Mont. 563, 588, 190 P . 1 0 7 , 116.
The j u r i s d i c t i o n of t h e c o u r t i n t h e p r e s e n t c a s e ,
however, i s dependent on t h e maximum s e n t e n c e which c a n be
made. S e c t i o n s 95-301, 95-302, R.C.M. 1947. Proof of
jurisdiction, t h e r e f o r e , i s p r o p e r any t i m e up u n t i l sen-
tencing.
Defendant c h a l l e n g e s t h e S t a t e ' s f a i l u r e t o b r i n g him
t o t r i a l w i t h i n s t a t u t o r y t i m e l i m i t s i n I s s u e 3.
On January 3, 1977, defendant pleaded not guilty to the
charge filed against him. On August 30, 1977, nearly eight
months later, his trial commenced. Defendant argues this
contravenes section 95-1703(2), R.C.M. 1947, requiring
dismissal of any misdemeanor not brought to trial within six
months after entry of plea. Neither the facts nor the
statute support this contention.
Section 95-1703(2), R.C.M. 1947, states:
"(2) The court, unless good cause - -
to the
contrary is shown, must order the prosecution
to be dismissed in the following cases:
"If a defendant, after entry of plea upon
a complaint, information, or indictment charging
a misdemeanor, whose trial has - - post-
- not been
--
poned upon his application, is not brought to
trial within six months." (Emphasis added.)
Between January 3 and August 30, the following events
transpired:
January 3, 1977 Defendant enters plea.
Trial set for January 13,
1977
January 6, 1977 Defendant moved to substi-
tute Judge Olsen
January 18, 1977 Judge Boyd called in Judge
Lessley
January 19, 1977 Judge Lessley assumed juris-
diction
January 20, 1977 Defendant moved to dismiss
for lack of jurisdiction
February 2, 1977 Judge Lessley denied de-
fendant's motion
February 15, 1977 Defendant moved to suppress
the results of the blood test;
a hearing scheduled for Febru-
ary 24, 1977 was never held.
(Prosecution contended defen-
dant failed to schedule it,
defense offered no reasons)
Date Unavailable Parties stipulated that Judge
Boyd could assume jurisdiction
July 13, 1977 Defendant moved to dismiss for
failure to be brought timely
to trial under section 95-
1703 (2), R.C.M. 1947. Results
of hearing are unavailable
In addition, for an unspecified period of time the pre-
siding judge was ill. In view of this record, we cannot say
that there was not good cause for the delay or that defen-
dant's trial was not postponed upon his application. Full
consideration of defendant's motions, as well as the several
substitutions of presiding judges, often at defendant's
request, provide ample good cause for the delay occurring in
this case.
Defendant's final issue challenges the admissibility of
the blood test in evidence because of a break in the chain
of custody.
Following the accident in the early morning hours of
Saturday, November 6, defendant was taken to Community
Hospital in Anaconda where a blood sample was taken for
purposes of a blood alcohol test. This sample, placed in a
container with the seal number noted as "1629", was given to
the investigating sheriff's deputy who returned with it to
the Deer Lodge County sheriff's department where he left it
"on the desk in the office" to be mailed by the day shift
the next morning. The specimen reached Helena on Tuesday,
November 9, where the Department of Health analyst, in
examining the seal prior to opening it, made a notation that
the actual seal number was "1628" not "1629". The analysis,
showing .24 percent blood alcohol, was returned under this
number.
Defendant argues this evidence is inadmissible for two
reasons: (1) The originally noted seal number at the time
of the drawing of the sample and the subsequently noted seal
number under which the analysis was returned were not the
same; and (2) the three day delay between the taking of the
sample and its arrival in Helena, especially the lack of
testimony as to the period while the sample was left on the
desk in the sheriff's office, was an impermissible break in
the chain of evidence. We feel both contentions were ade-
quately answered at trial.
First, as noted, upon receipt of the sample in the
mail, the analyst employed by the State Department of Health
examined the seal number and determined that it was errone-
ously noted as "1629" instead of "1628". He made a notation
to this effect on the Specimen Collection-Laboratory Analysis
form sent with the blood sample. During his testimony at
trial, it was brought out that the lower left vertical line
of the "8" on the stamped metal seal was very light so that
to a cursory glance the last digit on the seal appeared to
be a "9". The jury heard this testimony. Their conclusion
that the discrepancy was adequately explained is entitled to
great weight. We will not disturb it on the showing here.
As to defendant's second contention, we find the evi-
dently casual handling of the blood sample by the sheriff's
deputies troubling, but in view of the other identification
methods for the sample available, not cause enough for
reversal.
Defendant conjectures that between the time the sample
was drawn early Saturday morning in Anaconda and its arrival
Tuesday in the mail in Helena, it could have been tampered
with. Nevertheless, the sample did arrive in Helena with
its seal intact. The delay of three days is explained in
part by the fact that the postal service does not operate on
Sunday.
Defendant correctly states:
"It is rudimentary that a specimen taken from
a human body for the purpose of analysis must
be identified before such specimen or any analy-
sis made for it attains standing as evidence of
the condition of the person whose conduct is
questioned. Without identification, there is
no connection between the two ... ."McGowan v.
City of Los Angeles (1950), 100 Cal.App.2d 386,
223 P.2d 862, 21 ALR2d 1206, 1212.
The State equally accurately replies:
"It was not incumbent upon the state to prove
that it could not have been tampered with. It
was not necessary that all possibility of its
having been tampered with should be excluded by
affirmative testimony. [Citation omitted.] It was
only necessary to identify the package and to make
a prima facie showing that there has been no
substantial change in it to warrant its introduc-
tion into evidence." State v. Wong Fong (1925),
75 Mont. 81, 87, 241 P. 1072, 1074.
In State v. Frates (1972), 160 Mont. 431, 434-35, 503
P.2d 47, 49, the defendant challenged an almost identical
procedure as was used here for collecting and transmitting
evidence to a laboratory for analysis. After describing the
chain of possession, we rejected the challenge:
"The evidence establishes a chain of possession
of the LSD tablets from defendant to the arresting
officers; from there to tagging, marking and
storing in the evidence vault at the Billings
police department; the packaging and addressing
of four of the tablets to the Bureau of Narcotics
and Dangerous Drugs in San Francisco; the receipt
of the four pills by this agency; their examina-
tion testing, and identification by chemist Chan
of that agency; and, the return of the plastic
container, the mailing box, and the mailing wrap-
per, bearing the handwriting of one of the Billings
officers, to the Billings police department. Under
such circumstances, the absence - - direct of the
testimony - - person who actually mailed them
of the
- - Francisco is immaterial - - - sense
to San and in no
breaks the chain of possession, precluding their
-
a d m i s s i b i l i t y inevidence." (Emphasis added.)
This decision controls here but with a caveat: the
leaving of the sample "on the desk in the office" is far
less acceptable than the "storing in the evidence vault" in
Frates and increases the possibility of tampering. When
combined with errors in evidence identification such as the
misread seal number here, the possibility of a successful
challenge to its admission likewise increases. Here, only
the existence of an alternative means of identification, the
seal number, saves the evidence from exclusion.
Having examined each of the arguments of defendant, we
find no basis for reversal. The judgment of the District
Court is affirmed.
Bd Justice
We Concur:
Chief Justice
Justices