97-114
No. 97-114
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 75
STATE OF MONTANA,
Plaintiff and Respondent,
v.
BENJAMIN JOSEPH GRIFFING,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John W. Larson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Bruce L. Hussey, Attorney at Law, Missoula, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders,
Assistant Attorney General, Helena, Montana
Robert L. Deschamps, III, Missoula County Attorney, Missoula
Montana
Submitted on Briefs: December 18, 1997
Decided: April 7, 1998
Filed:
__________________________________________
Clerk
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-114%20Opinion.htm (1 of 5)4/25/2007 4:33:49 PM
97-114
Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Benjamin Joseph Griffing (Griffing) appeals from the judgment entered by the
Fourth
Judicial District Court, Missoula County, on a jury verdict convicting him of
negligent
homicide and, specifically, from the District Court's denial of his motion to
suppress
evidence obtained during the investigation of a one-vehicle traffic accident. We
affirm.
¶2 The sole issue on appeal is whether the District Court erred in
denying Griffing's mid-trial motion to suppress.
BACKGROUND
¶3 At 2:50 a.m. on March 30, 1996, Deputy Sheriff Howard Reed (Deputy Reed)
received a call that an accident had occurred on Highway 12 near Lolo, Montana.
Griffing's
truck had left the highway, broken two fenceposts and landed upside down. One of the
fenceposts pierced the windshield, passed through the steering wheel, and struck the
passenger, Gordon Wylie (Wylie). Deputy Reed found Griffing at the scene of the
accident.
Griffing told Deputy Reed that he was afraid he had killed his best friend and,
indeed, Wylie
was dead by the time Deputy Reed arrived.
¶4 Highway Patrol Officer Iva May Johnston (Officer Johnston) arrived at the scene
about an hour after Deputy Reed. She talked with Griffing briefly and asked him to
sit in the
front seat of her vehicle while she observed the accident scene. She returned to
her vehicle
several times and, noting the smell of alcohol, asked Griffing if he had been
drinking.
Griffing responded that he had been drinking and, upon request, described how the
accident
occurred. Officer Johnston inquired how much Griffing had to drink and whether he
would
take a breathalyzer test. Griffing consented to the test and Officer Johnston drove
Griffing
to the Missoula City Police Department (the Department) for the test. Griffing was
not under
arrest at the time and Officer Johnston did not ask him any additional questions
until they
reached the Department.
¶5 At the Department, Officer Johnston informed Griffing that she was turning on
the
videotape and read the implied consent form to him. Griffing signed the implied
consent
form and verbally agreed to take a breathalyzer test. Another officer administered
the test
and, upon receiving the results, Griffing requested a blood alcohol test. Officer
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-114%20Opinion.htm (2 of 5)4/25/2007 4:33:49 PM
97-114
Johnston
then read Griffing the Miranda warnings and began asking Griffing questions and
administering the field sobriety tests. When Officer Johnston later offered to drive
Griffing
to the hospital for the blood alcohol test he had requested, Griffing chose not to
have the test
performed.
¶6 The State of Montana (State) charged Griffing by information with one count of
negligent homicide as a result of Wylie's death in the accident. Prior to trial,
Griffing moved
to suppress the results of the breathalyzer test on the basis that his consent to
the test had
been coerced. The District Court denied the motion. During trial, Griffing orally
moved to
exclude and suppress all evidence obtained after he was asked to sit in Officer
Johnston's
vehicle, on the basis that it violated his Fourth Amendment rights, and for a
mistrial. The
District Court denied Griffing's motions, the trial continued and the jury found
Griffing
guilty of negligent homicide. The District Court entered its judgment and sentence
and
Griffing appeals from the denial of his mid-trial motion to suppress.
STANDARD OF REVIEW
¶7 We review a district court's denial of a motion to suppress to determine
whether the
"findings of fact are clearly erroneous, and whether those findings were correctly
applied as
a matter of law." State v. Greywater (1997), 282 Mont. 28, 36, 939 P.2d 975, 980
(citation
omitted). The district court's determination that a motion to suppress is untimely
is a
conclusion of law. See Greywater, 939 P.2d at 980. We review a district court's
conclusions
of law to determine whether they are correct. Greywater, 939 P.2d at 980 (citation
omitted).
DISCUSSION
¶8 Did the District Court err in denying Griffing's mid-trial motion to suppress?
¶9 Griffing's motion to suppress all of the evidence was premised on his
contentions that
he was subjected to a custodial interrogation by Officer Johnston prior to being
advised of
his Miranda rights and that all subsequent evidence was fruit of the poisonous
tree. The
State argued that the motion was untimely and, in any event, not well taken as a
matter of
law. The District Court accepted the State's arguments--apparently including the
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-114%20Opinion.htm (3 of 5)4/25/2007 4:33:49 PM
97-114
timeliness
argument--and, in addition, observed that some of the reasons in its earlier order
denying
Griffing's motion to suppress applied and that it was unaware of any authority
requiring
officers to give Miranda warnings during the investigation of a traffic accident.
Griffing
contends that the District Court erred. He does not address the timeliness of his
motion to
suppress, however, and we conclude that his motion was untimely and, therefore,
waived.
¶10 Section 46-13-101(1), MCA, generally requires that "any defense, objection, or
request that is capable of determination without trial of the general issue must be
raised at
or before the omnibus hearing unless otherwise provided by Title 46." Motions to
suppress
expressly are among those pretrial matters which must be raised at or before the
omnibus
hearing. Section 46-13-110(3)(i), MCA; Greywater, 939 P.2d at 980. A party's
failure to
raise matters which are capable of determination without trial and required to be
raised at or
before the omnibus hearing constitutes a waiver. Section 46-13-101(2), MCA.
¶11 Moreover, we consistently have affirmed a district court's denial of an untimely
motion to suppress under both current and predecessor statutes setting time
requirements for
such motions. See, e.g., Greywater, 939 P.2d at 980; State v. Hart (1982), 200
Mont. 185,
191, 650 P.2d 768, 772; State v. Briner (1977), 173 Mont. 185, 190, 567 P.2d 35, 38.
Indeed, we recently held in Greywater that the defendant's motion, filed five days
prior to
trial, was untimely and upheld the district court's refusal to consider the motion.
Greywater,
939 P.2d at 980.
¶12 Here, the omnibus hearing memorandum was filed June 4, 1996. It specifically
indicated that Griffing would file motions to suppress his confession or admissions
and
physical evidence pursuant to §§ 46-13-301 and 46-13-302, MCA, respectively, by July
1,
1996. He filed only the motion to suppress the breathalyzer test result, discussed
above, on
the basis that his consent to the test was coerced. He did not move to suppress his
statements
to Officer Johnston and all evidence obtained thereafter. That motion was made
during the
course of trial. As a result, it was untimely and, pursuant to § 46-13-101(2), MCA,
waived.
We hold, therefore, that the District Court did not err in denying Griffing's mid-
trial motion
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-114%20Opinion.htm (4 of 5)4/25/2007 4:33:49 PM
97-114
to suppress.
¶13 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ TERRY N. TRIEWEILER
/S/ WILLIAM E. HUNT, SR.
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-114%20Opinion.htm (5 of 5)4/25/2007 4:33:49 PM