State v. Belgarde

No

No. 96-124

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 152

STATE OF MONTANA,

Plaintiff and Respondent,

v.

MYRON JAMES BELGARDE

Defendant and Appellant.

APPEAL FROM: District Court of the Fifth Judicial District,

In and for the County of Jefferson,

The Honorable Robert J. Boyd, Judge presiding

COUNSEL OF RECORD:

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-124%20Opinion.htm (1 of 12)4/25/2007 9:29:05 AM
 No

For Appellant:

Jack H. Morris, Whitehall, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana;
Valerie Wilson, Jefferson County Attorney, Boulder, Montana

Submitted on Briefs: September 11, 1997

Decided: June 16, 1998

Filed:

__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1 Defendant Myron Belgarde (Belgarde) appeals from the sentence and judgment of
the Fifth Judicial District Court, Jefferson County, entered after a jury convicted
him of driving while under the influence of alcohol, as well as from the District
Court's denial of both his motion to dismiss and motion to suppress. We affirm.

¶2 We restate the following issues on appeal:

¶3 1. Did the District Court err in denying Belgarde's motion to dismiss for the

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-124%20Opinion.htm (2 of 12)4/25/2007 9:29:06 AM
 No

State's failure to preserve exculpatory evidence in the form of a videotape made at
the time of his arrest?

¶4 2. Did the District Court err by denying Belgarde's motion to suppress statements
he made at the time of his arrest and prior to being given his Miranda warnings?

¶5 3. Is Belgarde entitled to a new trial due to the State's alleged failure to disclose a
document contained in the court record?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 On May 29, 1995, Officer Mitch Tuttle, a Montana Highway Patrol Officer, was
on patrol in Jefferson County, near Boulder, Montana. At approximately 2:45 a.m.,
Officer Tuttle was traveling south on Interstate 15 towards Boulder when he
observed Belgarde traveling north at a high rate of speed. Officer Tuttle activated his
radar unit and obtained a speed of 82 miles per hour. In response, Officer Tuttle
drove through the median, activated his overhead lights and pursued Belgarde for
almost four miles; however, Belgarde did not slow down or stop. After Officer Tuttle
activated his siren, Belgarde stopped and pulled his vehicle over to the side of the
road at an angle so that the vehicle's left rear corner failed to clear the fog line and
remained in the lane of traffic.

¶7 Upon approaching Belgarde, Officer Tuttle noticed the smell of alcohol.
Concerned that Belgarde was driving while under the influence of alcohol, Officer
Tuttle asked Belgarde to come back to the patrol car. Belgarde took a seat in the
front of the patrol car where Officer Tuttle further noticed that Belgarde had
bloodshot eyes and slurred speech. Officer Tuttle administered the Horizontal Gaze
Nystagmus test (HGN test) which Belgarde failed. After completing the HGN test,
Officer Tuttle arrested Belgarde and transported him to the Jefferson County
Sheriff's Department.

¶8 Upon arrival at the Jefferson County Sheriff's Department, Officer Tuttle drove
the patrol car into the "sally port," or garage, and the door shut behind him. Officer
Tuttle exited the patrol car, retrieved Belgarde from the passenger side and escorted
him to the entrance of the jail facility. In the booking area, Belgarde failed to
perform the walk-and-turn test and refused to perform the one-legged stand test.
After reading to Belgarde Montana's implied consent advisory form, Officer Tuttle

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-124%20Opinion.htm (3 of 12)4/25/2007 9:29:06 AM
 No

asked Belgarde to take a breath test, which Belgarde refused to do. Subsequently,
Officer Tuttle read Belgarde his Miranda rights which Belgarde refused to waive,
responding that he wished to have an attorney present.

¶9 The Jefferson County Sheriff's Department has video cameras to record activities
occurring in both the sally port and the booking area. A video camera is activated
when a patrol car enters the sally port and records when someone exits the patrol car
and proceeds to the door of the booking area. After leaving the sally port area, a
second camera, located in the booking area, is to be activated by a Sheriff's
Department employee. Here, the sally port videotape of Belgarde, which showed him
exiting Officer Tuttle's patrol car and walking behind the car into the booking area,
was erased except for a one or two-second recording of the patrol car in the sally
port. Furthermore, the video camera in the booking area was never activated, and,
consequently, Belgarde was not videotaped during the booking process.

¶10 Belgarde was charged in Justice Court with driving a motor vehicle while under
the influence of alcohol (DUI) in violation of § 61-8-401, MCA; driving with a
suspended license in violation of § 61-5-212, MCA; and operating a motor vehicle
without current liability insurance in violation of § 61-6-301, MCA. Represented by
counsel, Belgarde entered pleas of not guilty to all charges and requested a jury trial.
Thereafter, Belgarde filed various motions including a motion to dismiss his DUI
charge because the State failed to preserve exculpatory evidence in the form of a
videotape made during the booking process and a motion to suppress any statements
made prior to being advised of his Miranda rights. Additionally, Belgarde changed
his plea to guilty for the charges of driving with a suspended license and driving
without liability insurance. Subsequently, the Justice Court granted Belgarde's
motion to dismiss his DUI charge because he was denied exculpatory evidence.

¶11 The State appealed the Justice Court's order dismissing Belgarde's DUI charge
to the Fifth Judicial District Court, Jefferson County, where Belgarde requested a
jury trial and renewed his motion to dismiss and his motion to suppress. On January
29, 1996, following briefing and a hearing, the District Court denied a number of
pretrial motions including Belgarde's motion to dismiss and his motion to suppress.
Subsequently, a jury trial was held on January 31, 1996, and Belgarde was found
guilty of DUI, in violation of § 61-8-401, MCA. Thereafter, the District Court
sentenced Belgarde to six months imprisonment in the Jefferson County Jail, with all
but thirty days suspended, imposed numerous fees and conditions, and stayed

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-124%20Opinion.htm (4 of 12)4/25/2007 9:29:06 AM
 No

imposition of his sentence pending appeal. From the District Court's sentence and
judgment as well as the court's denial of both his motion to dismiss and motion to
suppress, Belgarde appeals.

DISCUSSION

¶12 1. Did the District Court err in denying Belgarde's motion to
dismiss for the State's failure to preserve exculpatory evidence in
the form of a videotape made at the time of his arrest?

¶13 The District Court denied Belgarde's motion to dismiss his DUI charge holding
that the State was under no duty to make a videotape in the booking room, and,
further, that Belgarde failed to show what, if any, exculpatory evidence had been
destroyed. A district court's grant or denial of a motion to dismiss in a criminal case
is a question of law which we review de novo. State v. Brander (1996), 280 Mont. 148,
151, 930 P.2d 31, 33.

¶14 Citing State v. Swanson (1986), 222 Mont. 357, 722 P.2d 1155, Belgarde argues
that the District Court erred by denying his motion to dismiss his DUI charge.
Belgarde concedes that the State had no duty to assist him in obtaining exculpatory
evidence. Nonetheless, Belgarde asserts that, just as in State v. Halter (1989), 238
Mont. 408, 777 P.2d 1313, the court should have granted his motion because the State
violated his due process rights by failing to preserve videotaped evidence of his
demeanor during the booking process.

¶15 The State responds that the State had no duty to videotape Belgarde's booking
process, and, therefore, the failure to do so did not violate Belgarde's due process
rights. The State further responds that Belgarde does not assert and no evidence
exists that the erasure of the videotape of Belgarde in the sally port of the Sheriff's
Department was done deliberately; that the videotape was material; or that he was
prejudiced by the erasure. Therefore, the State argues that the District Court
properly denied Belgarde's motion to dismiss. We agree.

¶16 A criminal defendant has a constitutional right to obtain exculpatory evidence
and denial of this right is a violation of due process. State v. Sadowski (1991), 247
Mont. 63, 79, 805 P.2d 537, 546. Nevertheless, this right is only a personal right, and,
therefore, police officers are not required to take initiative or even assist the

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-124%20Opinion.htm (5 of 12)4/25/2007 9:29:06 AM
 No

defendant with procuring evidence on his own behalf. Sadowski, 247 Mont. at 79, 805
P.2d at 546. However, while the police do not have an affirmative duty to gather
exculpatory evidence, the police may not frustrate or hamper an accused's right to
obtain exculpatory evidence. State v. Heth (1988), 230 Mont. 268, 272, 750 P.2d 103,
105. We further explained in Heth:

Only a deliberate or intentional suppression of exculpatory evidence is a per
se violation of due process. To amount to a denial of due process, negligently
suppressed evidence must be vital to the defense. It must be more than a mere
suppression, in that the defense must show the evidence was material and of
substantial use. Finally, the evidence must be exculpatory meaning it "[w]ould
have tended to clear the accused of guilt, to vitiate a conviction." Brady v.
Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; State v.
Patterson (1983), 203 Mont. 509, 512-13, 662 P.2d 291, 293.

Heth, 230 Mont. at 272, 750 P.2d at 105.

¶17 Here, the sally port videotape of Belgarde, which showed him exiting Officer
Tuttle's patrol car and walking behind the car into the booking area, was erased
except for a one or two-second recording of the patrol car in the sally port.
Furthermore, the video camera in the booking area was never activated, and,
consequently, Belgarde was not videotaped in the booking room. Therefore, the issue
in the case at bar involves both the State's failure to "preserve" evidence as well as
the State's failure to "gather" evidence. That is, police officers at the Sheriff's
Department failed to "preserve" evidence when they erased the videotaped recording
of Belgarde in the sally port, and, furthermore, they failed to "gather" evidence
when they failed to activate the videotape camera in the booking room during
Belgarde's booking process. We explained the significance of this distinction in Heth.

¶18 Heth was arrested for drunk driving. During his booking process, police officers
activated a videotape camera but failed to turn on the volume. Heth, 230 Mont. at
269-70, 750 P.2d at 104. Relying on State v. Swanson (1986), 222 Mont. 357, 722 P.2d
1155, Heth argued that he was denied due process because the audio portion of the
tape may have contained exculpatory evidence providing him with a valid defense to
the charge of drunk driving, and, therefore, the District Court erred in denying his
motion to dismiss. Heth, 230 Mont. at 270, 750 P.2d at 104. In response, we explained
that while Swanson stood for the proposition that an accused has a constitutional

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-124%20Opinion.htm (6 of 12)4/25/2007 9:29:06 AM
 No

right to obtain exculpatory evidence, Swanson did not stand for the proposition that
police officers had a duty to assist in gathering exculpatory evidence for an accused.
Heth, 230 Mont. at 271, 750 P.2d at 104.

¶19 Pointing out that a difference existed between "gathering" and "preserving"
exculpatory evidence, we explained that the police officers in Swanson failed to
properly "preserve" the exculpatory evidence of Swanson's blood alcohol level that
he had procured through an independent blood test after his DUI arrest and thereby
denied Swanson due process. Heth, 230 Mont. at 271, 750 P.2d at 104-05. In contrast,
we explained that the police officers' administration of video and audio testing in
Heth constituted "gathering" evidence, and, therefore, because the police officers did
not have a duty to "gather" exculpatory evidence on Heth's behalf, they did not
violate Heth's right to due process by failing to turn on the volume. Heth, 230 Mont.
at 272, 750 P.2d at 105. Just as in Heth, the police officers at the Jefferson County
Sheriff's Department did not have a duty to gather exculpatory evidence for
Belgarde. See Heth, 230 Mont. at 271, 750 P.2d at 104-05. Therefore, their failure to
activate the video camera in the booking area to record Belgarde during his booking
process did not violate Belgarde's due process rights.

¶20 Furthermore, Belgarde's due process rights were not violated when the police
officers at the Jefferson County Sheriff's Department erased a videotaped recording
of Belgarde in the sally port. In this regard, Belgarde's reliance on Halter to support
his argument that the State violated his due process rights by failing to preserve
exculpatory evidence is misplaced. In Halter, the District Court dismissed with
prejudice charges against Halter of felony theft and illegal branding of a red
Limousine bull due to the State's failure to preserve exculpatory evidence when the
subject bull had been sold and slaughtered before Halter's expert witness could
inspect its brands. Halter, 238 Mont. at 411-12, 777 P.2d at 1315. In an affidavit filed
with Halter's motion to dismiss, Halter's expert witness stated that if he had
inspected a skin sample from the subject bull prior to its destruction, he could have
aged the brand and determined if the brand in question was placed on the bull
during time periods when Halter was not in possession of the bull. Halter, 238 Mont.
at 410-11, 777 P.2d at 1315.

¶21 On appeal, we explained:

"Whatever the duty the Constitution imposes on the States to preserve

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-124%20Opinion.htm (7 of 12)4/25/2007 9:29:06 AM
 No

evidence, that duty must be limited to [evidence] that might be expected to
play a significant role in the suspect's defense. To meet this standard of
constitutional materiality, [see United States v. Agurs (1976), 427 U.S. 97,
109-10, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342], evidence must both possess an
exculpatory value that was apparent before the evidence was destroyed, and
be of such a nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means."

Halter, 238 Mont. at 412, 777 P.2d at 1316 (quoting California v. Trombetta (1984), 467
U.S. 479, 488-89, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413, 422).

¶22 We affirmed the District Court's grant of Halter's motion to dismiss, concluding
that the evidence destroyed had exculpatory value which was apparent prior to
destruction of the evidence; that Halter could not obtain comparable evidence by
other reasonably available means; and that an expectation existed that the lost
evidence would play a significant role in Halter's defense. Halter, 238 Mont. at 413,
777 P.2d at 1316. Additionally, we concluded that the slaughter of the bull was not
the intentional or deliberate purpose of the State but that the State was negligent in
preserving evidence. Furthermore, given that the bull was not on Halter's land for
long periods of time and that the bull was finally discovered in another person's cow
herd, we also determined that "the preservation of the bull was as critical to the
State's case to obtain a conviction as it was to the defendant to obtain an acquittal[,]"
and, therefore, we distinguished the case from other cases such as Heth. Halter, 238
Mont. at 413, 777 P.2d at 1316.

¶23 Unlike in Halter, Belgarde has failed to show that the sally port videotape erased
by the Jefferson County Sheriff's Department was exculpatory. As the State
explained during the hearing on this motion, the videotape would only have shown
Belgarde exit Officer Tuttle's patrol car and walk to the booking area without
incident. Furthermore, Belgarde could obtain comparable evidence by other
reasonably available means. That is, Officer Tuttle was available as a witness to
testify concerning Belgarde's actions and demeanor in the sally port. Finally,
Belgarde has failed to show that this videotaped evidence of his actions and
demeanor in the sally port would play a significant role in his defense. Therefore,
although the State was negligent in failing to preserve the videotaped evidence of
Belgarde in the sally port, we conclude that Belgarde's due process rights were not
violated. Accordingly, we affirm the District Court's denial of Belgarde's motion to

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-124%20Opinion.htm (8 of 12)4/25/2007 9:29:06 AM
 No

dismiss.

¶24 2. Did the District Court err by denying Belgarde's motion to
suppress statements he made at the time of his arrest and prior to
being given his Miranda warnings?

¶25 The statements at issue in Belgarde's motion to suppress were referenced by
Officer Tuttle in his Arrest Report. After explaining that Belgarde failed the HGN
test, Officer Tuttle wrote:

I TOLD HIM THAT I THOUGHT HE WAS TO [sic] INTOXICATED TO
BE SAFELY OPERATING A MOTOR VEHICLE. I PLACED HIM UNDER
ARREST FOR DRIVING OR BEING IN ACTUAL PHYSICAL CONTROL
OF A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF
ALCOHOL. HE ADMITTED TO ME THAT HE WAS "TO [sic] DRUNK."
HE SAID HE WAS TRYING TO GET TO HIS DADS [sic] HOUSE IN
JEFFERSON CITY. HE SAID, "I DIDN'T THINK I COULD MAKE IT TO
WHITEHALL." I ASSUMED HE WAS REFERRING TO HIS
INTOXICATED STATE OF MIND. I TRANSPORTED MR. BELGARDE
TO THE JEFFERSON COUNTY SHERIFF'S OFFICE FOR D.U.I.
PROCESSING. THE ENTIRE WAY TO THE SHERIFF'S OFFICE MR.
BELGARDE ADMITTED THAT HE WAS TOO DRUNK TO DRIVE, BUT
HE WANTED ME TO CUT HIM SOME SLACK. I TOLD HIM SEVERAL
TIMES THAT I COULD NOT.

¶26 After briefing and hearing arguments concerning these statements, the District
Court denied Belgarde's motion to suppress. "We review a district court's denial of a
motion to suppress to determine whether the court's findings of fact are clearly
erroneous and whether those findings were correctly applied as a matter of law."
State v. Steinmetz, 1998 MT 114, ¶10, 55 St.Rep. 450, ¶10, ___ P.2d ___, ¶10 (citing
State v. Widenhofer (Mont. 1997), 950 P.2d 1383, 1386, 54 St.Rep. 1438, 1440). The
United States Supreme Court has ruled that, unless the proper Miranda warnings
have been given, the states may not use confessions or admissions resulting from a
"custodial interrogation" which the Court defined as "questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way." Miranda v. Arizona (1966),
384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-124%20Opinion.htm (9 of 12)4/25/2007 9:29:06 AM
 No

¶27 Relying on Miranda and Rhode Island v. Innis (1980), 446 U.S. 291, 100 S.Ct.
1682, 64 L.Ed.2d 297, Belgarde argues that the District Court erred by denying his
motion to suppress his statements to Officer Tuttle that he was "too drunk to drive"
which were made after his arrest but before he was read his Miranda rights. The
State responds that no "custodial interrogation" occurred, and, therefore, the
District Court properly denied Belgarde's motion to suppress.

¶28 Here, as the State concedes, Belgarde was in custody at the time he made the
statements at issue--Officer Tuttle had arrested him for DUI and was transporting
him to the Jefferson County Sheriff's Department. However, no evidence suggests
that Belgarde's statements were made in response to questions asked by Officer
Tuttle. Rather, Belgarde simply volunteered the information that he was too drunk
to drive in an attempt to request that Officer Tuttle "cut him some slack."
Consequently, we conclude that although Belgarde was in custody, no "custodial
interrogation" occurred, and, therefore, his right against self-incrimination under
the Fifth Amendment to the United States Constitution was not violated.

¶29 Furthermore, Belgarde relies on Innis to argue that his statements should be
suppressed because Officer Tuttle engaged in the "functional equivalent" of express
questioning. This argument is raised for the first time on appeal. "It is axiomatic that
a party may not change the theory on appeal from that advanced in the district
court." State v. Smith (1996), 276 Mont. 434, 442, 916 P.2d 773, 778 (quoting State v.
Henderson (1994), 265 Mont. 454, 458, 877 P.2d 1013, 1016). Therefore, we decline to
address this argument. Accordingly, we affirm the District Court's denial of
Belgarde's motion to suppress.

¶30 3. Is Belgarde entitled to a new trial due to the State's alleged
failure to disclose a document contained in the court record?

¶31 On appeal, Belgarde argues that he is entitled to a new trial based on "newly
discovered evidence" and that prior to this new trial, the District Court should hold a
hearing to determine an appropriate sanction under § 46-15-329, MCA, for the
State's alleged discovery violation. Belgarde asserts that the State failed to disclose
Officer Tuttle's affidavit of probable cause and his arrest report attached as an
exhibit thereto, both signed by Officer Tuttle on May 29, 1995, and contained within
the Justice and District Court record. Belgarde contends that these documents
contain "critical evidence" on the issue of whether sobriety tests were administered

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-124%20Opinion.htm (10 of 12)4/25/2007 9:29:06 AM
 No

to him.

¶32 We agree with the State that Belgarde is not entitled to a new trial. In State v.
Gollehon (1995), 274 Mont. 116, 906 P.2d 697, we explained that under § 46-16-702
(2), MCA, a motion for new trial must be filed within 30 days following a verdict or
finding of guilty and that no statutory extensions of time are provided. Gollehon, 274
Mont. at 118, 906 P.2d at 699. Here, Belgarde's guilty verdict was entered on
January 31, 1996. On May 14, 1996, 104 days after entry of the jury verdict,
Belgarde filed a motion with this Court to stay appeal and remand to the District
Court for further proceedings; however, he failed to file a motion for a new trial with
the District Court itself. We subsequently denied his motion on June 11, 1996.

¶32 Notwithstanding that his case was on appeal, Belgarde could have timely filed a
motion for a new trial in the District Court, the predicate for his relief, in addition to
filing a motion to stay appellate proceedings with this Court. However, Belgarde only
filed a motion to stay his appeal and to remand to the District Court for further
proceedings--104 days after the jury verdict was entered. This clearly was untimely
as well as procedurally incorrect. Furthermore, neither judicially created exception
to the 30-day filing requirement enunciated in State v. Barrack (1994), 267 Mont. 154,
882 P.2d 1028, and State v. Perry (1988), 232 Mont. 455, 758 P.2d 268, applies in this
case. Moreover, the "critical evidence" which Belgarde asserts he just now
discovered has been filed in the Justice Court and District Court record throughout
the proceedings. Therefore, this is not a situation where the State suppressed
evidence or failed to disclose evidence. Rather, Belgarde simply failed to look
through the public record.

¶33 We hold that Belgarde's motion for a new trial is time-barred. Furthermore,
because the State has not made any discovery violations, Belgarde's request that we
remand this case to the District Court for a hearing to determine appropriate
sanctions under § 46-15-329, MCA, is also denied.

¶34 Affirmed.

/S/ JAMES C. NELSON

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-124%20Opinion.htm (11 of 12)4/25/2007 9:29:06 AM
 No

We Concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIAM LEAPHART

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-124%20Opinion.htm (12 of 12)4/25/2007 9:29:06 AM