No. 94-504
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
RUDY STANKO,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Rudy Stanko, Pro Se, Laurel, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Kathy Seeley, Ass't Attorney General,
Helena, Montana
Dennis Paxinos, Yellowstone County Attorney,
Dale R. Mrkich, Deputy Yellowstone County Attorney,
Billings, Montana
Submitted on Briefs: October 26, 1995
Decided: November 14, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to Montana Law Week, State Reporter and West Publishing
Company.
Rudy Stank0 (Stanko) appeals from the judgment and sentence
entered by the Thirteenth Judicial District Court, Yellowstone
County, on his conviction for five offenses. We affirm.
We restate the issues on appeal as follows:
1. Does the filing of charges via complaints, followed by a
judicial determination that probable cause existed to file the
charges, comport with Montana's Constitution and statutes?
2. Did the District Court's failure to hold an omnibus
hearing deny Stanko's due process rights?
3. Did the District Court err in denying Stanko's motion for
appointment of counsel?
4. Is 5 45-7-302(l), MCA, unconstitutionally vague and
overbroad on its face, or as applied to Stanko, and did the two
counts of obstructing a peace officer, filed pursuant to that
statute, violate Stanko's right to remain silent?
5. Can the State of Montana (State) fine Stank0 for driving
a vehicle not registered in Montana under the facts of this case?
6. Did the District Court err in allowing the State to amend
a statutory reference in the complaint relating to an expired
registration?
7. Do 55 61-5-103 and 61-5-104(4), MCA, bar the State from
prosecuting Stank0 for driving without a valid driver's license in
violation of § 61-5-102, MCA?
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FACTS AND PROCEDURE
Stank0 was cited into Justice Court in Billings, Montana, on
five charges arising from Separate lawful traffic stops on May 28
and May 30, 1993, by Montana Highway Patrol (MHP) officers. Two
identical charges--obstructing a peace officer and operating a
vehicle without a valid driver's license--resulted from each of the
two traffic stops; the fifth charge, operating a vehicle without a
valid registration, stemmed from the May 28, 1993, stop.
Following proceedings and a jury trial in Justice Court,
during portions of which Stank0 was represented by a court-
appointed public defender, the jury found him guilty on all five
charges. Pursuant to 5 46-17-311, MCA, Stank0 appealed to the
District Court for a trial de novo.
A jury trial was held in the District Court and Stank0 was
again convicted of all the charged offenses. The District Court
entered judgment on October 5, 1994. Stank0 appeals.
DISCUSSION
1. Does the filing of charges via complaints, followed by a
judicial determination that probable cause existed to file the
charges, comport with Montana's Constitution and statutes?
Stank0 contends that commencing a prosecution by filing a
complaint violates both statute and the Constitution; his
fundamental premise seems to be that a grand jury indictment was
the mandatory method of initiating prosecution of the charges
against him. While Stanko's "argument" on this issue is relatively
lengthy, it largely consists of rhetorical questions rather than
legal citation and analysis and does not address or distinguish
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controlling authority.
Article II, Section 20, of the 1972 Montana Constitution
specifically provides that:
[clriminal offenses within the jurisdiction of any court
inferior to the district court shall be prosecuted by
complaint. All criminal actions in district court,
except those on appeal, shall be prosecuted either by
information, after examination and commitment by a
magistrate or after leave granted by the court . . . .
Stank0 does not address this constitutional authorization for the
procedure used by the State in this case or even suggest that the
constitutionally authorized procedure was not followed here.
Moreover, even absent specific constitutional authorization,
§ 46-11-201, MCA, statutorily authorizes a prosecutor to proceed in
district court via complaint or by information after leave of court
has been granted. Stanko does not assert that the statutory
requirements were not satisfied.
We have repeatedly and consistently held that criminal charges
brought by information, after a magistrate's hearing or by leave of
a district court, are authorized and permitted by both statute and
the Montana Constitution. See, e.q., State v. Corliss (1967), 150
Mont. 40, 43, 430 P.2d 632, 634, cert. denied, 390 U.S. 961,
(1968). With regard to the United States Constitution, the United
States Supreme Court has stated that "[elver since Hurtado v.
California, 110 U.S. 516 (1884), this Court has consistently held
that there is no federal constitutional impediment to dispensing
entirely with the grand jury in state prosecutions." Beck v.
Washington (1962), 369 U.S. 541, 545, 82 S.Ct. 955, 957, 8 L.Ed.2d
98, 104.
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Stanko presents no authority or analysis which attempts to
distinguish this body of authority, much less render it incorrect;
his argument on this issue is without merit. We conclude that the
filing of complaints, followed by a judicial determination that
probable cause existed to file the charges, comports with Montana
law and the Constitution.
2. Did the District Court's failure to hold an omnibus
hearing deny Stanko's due process rights?
It is undisputed that the District Court scheduled an omnibus
hearing in this case and that the hearing did not take place. It
also is undisputed that such a hearing is required by 5 46-13-110,
MCA, to expedite procedures leading up to the defendant's trial.
Stanko contends that the failure to hold an omnibus hearing
denied him due process. He presents no authority whatsoever for
his conclusory contention. Such authority is required in an
appellant's opening brief by Rule 23(a) (4), M.R.App.P. We
recognize that Stanko appears before us pro se and have made
reasonable accommodation for minor departures from the Montana
Rules of Appellate Procedure. Stanko is hardly unfamiliar with
judicial proceedings and procedures, however, and we will not
create an appellant's legal arguments for him or her.
In any event, as the State points out, this Court does not
reverse trial courts for error "unless the record shows that the
error was prejudicial[;l " we disregard any defect not affecting a
party's substantial rights. Section 46-20-701, MCA. Under the
statute, the party asserting the error clearly bears the burden of
establishing prejudice on the record. Stanko makes no reference to
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anything in the record establishing that he was prejudiced by the
District Court's failure to hold an omnibus hearing; indeed, his
argument on this issue begins and ends with the bare allegation
that the failure "denied defendant due process in this case."
We conclude that the District Court's error in failing to hold
an omnibus hearing was harmless and did not affect Stanko's
substantial rights.
3 . Did the District Court err in denying Stanko's motion for
appointment of counsel?
As noted above, the Justice Court appointed counsel for
Stanko. The court did so, notwithstanding Stanko's refusal to fill
out the application for court-appointed counsel, "in the best
interests and expedition of Justice. . . .I' Thereafter, Stank0
apparently discharged his counsel and the public defender's office
moved to withdraw from further representation. The Justice Court
permitted the withdrawal and required Stank0 to comply with § 46-8-
111(Z) , MCA, so that, in turn, it could make the required
"determination of indigence" pursuant to subsection (1) of that
statute. Stank0 refused, the court did not appoint counsel and
Stanko proceeded pro se.
On appeal to the District Court, Stank0 moved for appointment
of counsel. After Stank0 refused to provide the information
required by § 46-E-111(2), MCA, the District Court denied his
motion and Stank0 continued pro se except for limited assistance
from a purported member of the Iowa bar.
In essence, Stank0 concedes that he did not comply with the
statutory requirements, but argues that the constitutional right to
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counsel does not authorize or permit the State to decide not to
provide counsel to a criminal defendant absent a showing of
indigence. Stanko presents no authority under which the
constitutional right of criminal defendants to counsel has been
interpreted to mean that the State must provide counsel free of
charge to all criminal defendants or that every criminal defendant
who requests counsel at the State's expense is absolutely and
constitutionally entitled to appointment of such counsel.
No applicable authority being presented, we need not further
address this issue. We conclude that, in light of Stanko's refusal
to submit the sworn financial statement evidencing his inability to
obtain legal representation which is required by 5 46-S-111(2),
MCA, the District Court did not err in denying his motion for
appointed counsel.
4. IS § 45-7-302(l), MCA, unconstitutionally vague and
overbroad on its face, or as applied to Stanko, and did the two
counts of obstructing a peace officer, filed pursuant to that
statute, violate Stanko's right to remain silent?
Two charges of obstructing a peace officer were filed against
Stank0 pursuant to § 45-7-302(l), MCA, which states:
A person commits the offense of obstructing a peace
officer or public servant if he knowingly obstructs,
impairs, or hinders the enforcement of the criminal law,
the preservation of the peace, or the performance of a
governmental function.
The charges stemmed from Stanko's refusal to give the MHP officer
his name during the first traffic stop and giving the officer a
false name during the second stop. Presumably based largely on the
testimony of the officers involved, the jury found that the State
had proved each element of each of the two obstructing charges
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beyond a reasonable doubt and convicted Stanko on both charges.
Stanko does not assert that either of the traffic stops was
invalid or unlawful or that insufficient evidence existed upon
which the jury could find the elements of the offenses beyond a
reasonable doubt. He presents somewhat murky constitutional
arguments that the statute defining the offense is unconstitutional
for vagueness and overbreadth on its face, and as applied, and that
it violates his constitutional right to remain silent.
A statute duly enacted by the legislature is presumed to be
constitutional, and we will uphold the statute unless the party
challenging it establishes unconstitutionality beyond a reasonable
doubt. State v. Lilburn (1994), 265 Mont. 258, 262, 875 P.2d 1036,
1039, cert. denied, 115 S.Ct. 726 (1995).
Stanko's various positions regarding the unconstitutionality
of the statute, on its face and as applied, neither meet that
burden nor raise sufficient colorable argument to necessitate a
full constitutional analysis. Stank0 cites to no precedential or
even persuasive authority holding unconstitutional a statute
requiring a person lawfully stopped for traffic violations to
identify himself or herself to a peace officer.
Neither the "entrapment" cases nor the "contradictory
commands" cases Stank0 cites are applicable in any way to the facts
of this case. In addition, Stank0 does not support his bare
assertion that the statute at issue criminalizes either "being a
driver" or "mere conversation;" thus, the cases cited which relate
to statutes or situations of those kinds also are inapplicable.
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Stanko does argue the applicability of the underlying
principles contained in Miranda v. Arizona (1966), 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694, vis-a-vis his contention that charging
him with "obstructing" for refusing to identify himself on one
occasion and giving a false name on the second occasion violated
his Fifth Amendment freedom from compulsion to be a witness against
himself. However, he does not analyze how his decisions to refuse
to identify himself and to falsely identify himself constitute or
equate to violations by the State of the Fifth Amendment right he
characterizes as his "right to remain silent." Nor does he analyze
how and when the actual Miranda warning is required during a valid
traffic stop before a driver can be asked to identify himself.
We conclude that Stanko has not established the
unconstitutionality of § 45-7-302(l), MCA, beyond a reasonable
doubt and, further, has not established any infringement of his
Fifth Amendment rights.
5. Can the State fine Stanko for driving a vehicle not
registered in Montana under the facts of this case?
The entirety of Stanko's position regarding this issue is as
follows:
The State of Montana cannot constitutionally and
legally fine the defendant pursuant to 61-3-315 for
driving a foreign registered vehicle in the State of
Montana because it was not registered in Montana, when
the State does not have a reciprocity agreement with the
State of Washington pursuant to Part 7 of Chapter 3 of
Title 61.
No contentions, argument or legal authority in support of this
position are presented as required by Rule 23(a) (4), M.R.App.P.
Moreover, the record does not reflect that Stank0 raised this issue
9
via motion or otherwise in the District Court. Absent limited
exceptions not applicable here, defendants are barred from raising
issues on appeal which were not presented to the district court for
initial resolution. See, e.q., § 46-20-104(2), MCA; State v.
Arlington (1994), 265 Mont. 127, 151, 875 P.2d 307, 321. For these
reasons, we decline to address this issue
6. Did the District Court err in allowing the State to amend
a statutory reference in the complaint relating to an expired
registration?
The May 28, 1993, notice to appear and complaint charged
Stanko with driving a vehicle with an expired registration under
§ 61-3-315, MCA. The complaint described the relevant time and
place, and the vehicle Stanko was driving; it also included the
Washington license number, "with expired registrationL.1 " At the
time jury instructions were being settled, the District Court
allowed the State to amend the citation to allege a violation of §
61-3-301, MCA, the correct statutory reference. The court
determined that the variance between the two statutory references
was not material.
The entirety of Stanko's position on this issue is as follows:
The State of Montana cannot charge the defendant
with a different statute after the evidence was presented
to the jury, and the defendant was prepared to defend the
statute that the policeman had originally cited and
charged.
Again, as with the previous issue, no contentions, argument or
legal authority are presented as required by Rule 23(a) (4),
M.R.App.P. Therefore, we decline to address this issue.
7. Do 55 61-5-103 and 61-5-104(4), MCA, bar the State from
prosecuting Stanko for driving without a valid driver's license in
10
violation of 5 61-5-102, MCA?
The entirety of Stanko's position regarding this issue is as
follows :
The State of Montana cannot charge the defendant for
driving without a Montana license, when the defendant was
not in the State for at least 90 days pursuant to 61-5-
103 and 61-5-104(4).
As with the previous two issues, Stank0 presents no contentions,
argument or authority as required by Rule 23(a) (4), MCA. Nor does
he present any evidence of record regarding factual matters
supporting his position. Therefore, we decline to address this
issue.
Affirmed.
We concur:
Justices
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November 14, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Rudy Stank0
1315 Allendale Road
Laurel, MT 59044
HON. JOSEPH P. MAZUREK, Attorney General
Kathy Seeley, Assistant
Justice Bldg.
Helena, MT 59601
Dale R. Mrkich
Deputy County Attorney
P.O. Box 35025
Billings, MT 59107
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
State v. Stanko
Combined Opinion