97-441
No. 97-441
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 61
STATE OF MONTANA,
Plaintiff and Respondent,
v.
ALOYSIUS BIG HAIR,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Big Horn,
Honorable Robert W. Holmstrom, Judge Presiding.
COUNSEL OF RECORD:
For Appellant:
James L. Vogel, Hardin, Montana
For Respondents:
Honorable Joseph P. Mazurek, Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana
Christine A. Cooke, County Attorney; Curtis Bevolden, Deputy
County Attorney, Hardin, Montana
Submitted on Briefs: December 18, 1997
Decided: March 20, 1998
Filed:
__________________________________________
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Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
¶1 Aloysius Big Hair appeals his conviction of driving while under the influence of
alcohol (DUI), fourth offense, in the Thirteenth Judicial District Court, Big Horn
County.
We affirm.
¶2 The issues are whether the District Court erred in denying Big Hair's motions to
continue trial due to the unavailability of a witness and to quash reference to his
previous
DUI convictions on grounds that he had not been properly advised of his right to
counsel in
relation to those convictions.
¶3 On April 5, 1996, Big Hair was arrested in Hardin, Montana, on a DUI charge. He
was charged under § 61-8-401, MCA (1985), with DUI, fourth offense, based on his
previous DUI convictions in 1987, 1988, and 1989.
¶4 At the jury trial on the April 1996 charge, Big Hair and his wife testified
that their
pickup had disappeared from their home south of Crow Agency, Montana, during a party
some time the night before his arrest. They both testified that they had caught a
ride to
Hardin on the morning of April 5 to look for the truck. Mrs. Big Hair testified
that she
waited for her husband with friends in a bar while he searched for the truck. Big
Hair
testified that he walked around Hardin looking for the truck, periodically returning
to the bar
where his wife waited for him, and finally found the truck parked in the downtown
area. Just
as he found the truck and reached in through the window to retrieve the keys, a
highway
patrol officer approached him and arrested him for DUI.
¶5 The highway patrol officer testified that he had received a radio transmission
concerning a possible DUI driver in a pickup truck at about 6:00 p.m. on April 5,
1996. The
report included a description of the truck and its license plate number, and
information that
it had three occupants. The officer did not find the truck at the reported location.
¶6 A few minutes later, the officer received a second radio transmission
concerning the
location of the pickup. He made a U-turn and found the truck parked with three
occupants
in a spot where it had not been minutes before. Big Hair was seated behind the
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steering
wheel. The officer testified that as he approached the truck, Big Hair got out and
began
walking across the street. The officer stated that Big Hair admitted that he had
been driving
and that he had had "a couple beers." After administering field sobriety tests, the
officer
arrested Big Hair and took him to the local police station, where his blood alcohol
concentration was measured at .337.
¶7 The jury convicted Big Hair of DUI. The District Court denied Big Hair's post-
trial
motions to quash reference to his prior DUI's and for new trial based on denial of
his pretrial
motion for a continuance.
Issue 1
¶8 Did the District Court err in denying Big Hair's motion to continue trial due
to the
unavailability of a witness?
¶9 Section 46-13-202, MCA, gives a district court discretion in considering a
motion to
continue trial. At subsection (3), the statute provides that it is to be construed
"to the end
that criminal cases are tried with due diligence consonant with the rights of the
defendant and
the prosecution to a speedy trial." When reviewing the denial of a motion for
continuance,
this Court determines whether the district court abused its discretion. State v.
Haskins
(1992), 255 Mont. 202, 207, 841 P.2d 542, 545.
¶10 Big Hair moved for a continuance on the day before trial. His motion stated
that an
eyewitness to the alleged offense, an alleged passenger in his truck who had
previously stated
his willingness to come to court, could not be located. The defense alleged that
this witness
would testify to Big Hair's level of intoxication and, the defense believed, that
Big Hair was
not driving the pickup. The defense contended that "because of the relatively short
trial
setting in this matter, [the witness] was not able to be informed thereof."
¶11 In oral argument on this motion just before voir dire of the jury, the State
responded
that the evidence would speak for itself--the State would offer the results of the
breath test
as to Big Hair's level of intoxication, and the testimony of the arresting officer
as to whether
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Big Hair was driving the truck. The State objected to a continuance on grounds that
the
arresting officer had accepted a job in Oregon and would be leaving Montana,
resulting in
the potential expense of having him come back to Montana to testify if the
continuance were
granted.
¶12 Big Hair's trial was set six months in advance, in April 1996, for October 7,
1996.
On October 11, 1996, trial was rescheduled for October 17, 1996, apparently due to
the
court's crowded docket on October 7.
¶13 There is no record or claim that Big Hair objected to the rescheduled trial
date when
it was set. Nor did he present any basis for his stated belief that his witness
could be located
within a reasonable time if a continuance was granted. He provided only rather
vague oral
representations by his counsel regarding the nature of the proposed witness's
testimony.
¶14 The District Court denied Big Hair's October 16 motion for a continuance on
grounds
that it was belatedly filed. After reviewing the record, we hold that the District
Court did not
abuse its discretion in denying the motion for a continuance.
Issue 2
¶15 Did the court err in denying Big Hair's motion to quash reference to his
previous DUI
convictions on grounds that he had not been properly advised of his right to counsel
in
relation to those convictions?
¶16 In Montana, a rebuttable presumption of regularity attaches to a prior DUI
conviction
during a collateral attack such as the one Big Hair raises here. This presumption
must be
overcome by direct evidence of irregularity by the defendant; the burden then shifts
to the
State to prove by direct evidence that the prior conviction was not obtained in
violation of
the defendant's rights. State v. Okland (Mont. 1997), 941 P.2d 431, 436, 54 St.Rep.
467,
470-71.
¶17 At the hearing on the motion to quash, the District Court heard testimony from
Big
Hair and from Judge Snively, the justice of the peace who presided at Big Hair's
1987, 1988,
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and 1989 DUI convictions. In its written order denying the motion to quash, the
District
Court reasoned as follows:
[T]he records of the lower court for each of the Defendant's three convictions
and the testimony of Judge Snively established that the Defendant's right to
counsel was explained to him and that he knowingly and intelligently waived
his right prior to the entry of his plea of guilty. The Defendant did not
controvert this evidence, he merely testified that he did not recall whether his
rights had been explained and whether he understood them and waived them.
The Court concludes, under the facts of this case, that the lower court record
was not silent and that the State of Montana sustained its burden of proving
that the Defendant's Sixth Amendment right had been afforded to him during
each of his prior convictions.
Big Hair argues that there was insufficient evidence that he was properly advised of
and
waived his constitutional right to counsel in his 1987, 1988, and 1989 DUI
convictions.
¶18 Big Hair did not present any direct evidence in support of his claim that his
constitutional right to counsel was violated in the prior proceedings. He testified
only that
he could not recall whether he had been advised of his right to counsel and whether
he had
waived that right. We conclude that, like the defendants in State v. Perry (Mont.
1997), 938
P.2d 1325, 54 St.Rep. 478, and State v. Stubblefield (Mont. 1997), 940 P.2d 444, 54
St.Rep.
605, Big Hair has failed to rebut the presumption of regularity with any direct
evidence that
his constitutional right to counsel was violated. Therefore, we hold that the
District Court
did not err in denying his motion to quash.
¶19 Affirmed.
/S/ J. A. TURNAGE
We concur:
/S/ JAMES C. NELSON
/S/ KARLA M. GRAY
/S/ JIM REGNIER
Justice Terry N. Trieweiler specially concurring in part and dissenting in part.
¶20 I concur with the majority's conclusion that the defendant has failed to rebut
the
presumption of regularity of the proceedings which led to his prior DUI convictions.
¶21 I dissent from the majority's conclusion that the District Court did not abuse
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its
discretion when it denied the defendant's motion to continue the trial date so that
he could
locate and produce an eyewitness to the events which were the basis for the charges
against
him.
¶22 The majority points out that the District Court's primary basis for denying Big
Hair's
motion to continue was that it was belatedly filed. Under the circumstances of this
case, I
disagree. However, additional facts are necessary for an understanding of why Big
Hair's
motion to continue was first filed the day before trial.
¶23 This case was originally set for trial as Case No. 10 on October 7, 1996. On
appeal,
the defendant's attorney contends, and the State does not disagree, that he had been
advised
the case would not go to trial on October 7 because of the number of other cases
which were
set ahead of it. However, not until October 11 was the defendant advised by the
District
Court that this case would go to trial on October 17, four working days later.
According to
the defendant's attorney, he began his efforts to locate his eyewitness, Gilford
Sees The
Ground, as soon as he was notified of the new trial date, but by October 16,
realized that he
would probably be unsuccessful.
¶24 The transcript of the hearing on October 17 to consider Big Hair's motion to
continue
demonstrates just how unexpected the whole scheduling process had been. The
following
conversation occurred:
THE COURT: I looked through the file. I guess I can't tell from the it [sic]
how this thing ended up for today.
[DEFENDANT'S ATTORNEY]: I guess what I understand, Your Honor, if
I got the dates wrong, I understand the judge reset this for trial for today
from
last Thursday.
[STATE'S ATTORNEY]: It was last Friday. It was set -- This is actually a
case pending before Judge Colberg, and Judge Colberg was here in Hardin last
Friday for an eight o'clock hearing, and it was reset at that time, although no
written record or objection was entered.
[DEFENDANT'S ATTORNEY]: My understanding, we had a motion pending
to dismiss the charge. The judge ruled on that. I believe we got the ruling on
that motion last Wednesday.
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THE COURT: Judge Fagg did that?
[DEFENDANT'S ATTORNEY]: Yes. Essentially the matter then was
rescheduled. Since that time we have been trying to locate a witness. The
witness is Gilford Sees The Ground. We made quite an effort to locate him.
Talked to family members. Talked to others, and haven't been able to locate
him as of yet. We believe he is critical to the defense because he was present
at the scene and would testify as to the intoxication level of the defendant, as
well as, I believe, testifying that the defendant was not driving the pickup,
and
those are two of the three elements that have to be proven for this offense. He
is an eyewitness to that. We believe he is very important to the defense in
this
matter. He has indicated a willingness to testify, but he just doesn't know
about
it. We haven't had time to locate him. For that reason, we filed our motion to
continue. We believe, with additional time, we could locate him, and that he
would be important to the defense in this matter.
¶25 Not only was Big Hair's motion to continue as timely as possible under the
circumstances, the unavailable witness was critical to his defense. As pointed out
in the
majority opinion, Big Hair and his wife denied that he had ever operated his motor
vehicle
in the condition in which he was found. It was their testimony that the vehicle had
been
taken from his home the night before and that just prior to the time he was observed
by the
arresting officer, he had located the vehicle and removed the keys. He was not
observed
operating the vehicle by the arresting officer.
¶26 Obviously no affidavit could be produced from Sees The Ground prior to trial
because
he was unavailable. However, in an affidavit filed in support of the defendant's
motion for
a new trial, Sees The Ground made the following statements under oath:
2. That the undersigned recalls the events of April 5, and did
observe the arrest of Aloysius Big Hair when the highway patrol took him into
custody for an alleged DUI.
3. That the undersigned did observe Aloysius Big Hair immediately
before the arrest, and observed that he was not driving just prior to the time
the
officer did take him into custody.
4. That the undersigned did observe Aloysius Big Hair in the time
immediately prior to the arrest, and was aware that Aloysius Big Hair was
looking for his pickup, which was missing from his place of residence since
earlier that day.
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5. That immediately prior to his arrest, Aloysius Big Hair did find
his pickup, and had just retrieved the keys therefrom when the officer took him
into custody.
6. That the undersigned has been willing to testify on behalf of
Aloysius Big Hair regarding this matter, but was not available at the time this
matter was set for trial in October.
¶27 Based on the circumstances in which the defendant's attorney found himself at
the
time of the rescheduled trial, there was no legitimate basis for denying his motion
to continue
the trial. The State's only objection was that the investigating officer was
leaving the state
at the end of the month; however, the State also pointed out that he could return to
the state
for trial. At most, the disadvantage to the State was the travel expense of having
the
investigating officer return. That amount of additional expense was not a
significant factor
when balanced against the unavailability of an eyewitness who was willing to testify
on the
defendant's behalf.
¶28 I conclude that the defendant's motion to continue the trial date was not
belated. The
continuance was necessary in order to assure that the defendant receive a fair
trial, and when
the District Court denied the motion for a continuance based on its stated reason,
the District
Court abused its discretion.
¶29 For these reasons, I dissent from the majority opinion which affirms the
District
Court's denial of the defendant's motion for a continuance. I would reverse the
defendant's
conviction and remand to the District Court for a new trial.
/S/ TERRY N. TRIEWEILER
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