No. 02-339
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 140
STATE OF MONTANA,
Plaintiff and Respondent,
v.
STEVEN WILLIAM ELY,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake, Cause No. DC 2001-56
The Honorable Deborah Kim Christopher, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kristina Guest, Appellate Defender Office, Helena, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana
Robert J. Long, Lake County Attorney, Polson, Montana
Submitted on Briefs: May 1, 2003
Decided: May 13, 2003
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Steven William Ely (Ely) appeals from the judgment entered by the Twentieth
Judicial District Court, Lake County, on the jury verdict finding him guilty of felony
criminal possession of dangerous drugs. We affirm.
¶2 The issue on appeal is whether the District Court abused its discretion in admitting
testimony regarding Ely’s refusal to provide a urine sample voluntarily.
BACKGROUND
¶3 On February 15, 2001, Lake County Sheriff’s Office Detective Andrew Cannon
(Cannon), along with several sheriff’s deputies, executed a search--pursuant to a warrant--of
the trailer house in which Ely lived. During the search, Cannon discovered a metal cigar
tube containing a white powdery substance believed--and later established--to be
methamphetamine. Ely arrived at the trailer during the search and was arrested. The
following day, Cannon requested Ely voluntarily provide a urine sample for testing. Ely
refused. Cannon then obtained a search warrant, acquired the urine sample from Ely and
sent it to the Montana State Crime Laboratory. The urine sample tested positive for
methamphetamine.
¶4 The State of Montana (State) subsequently charged Ely by information with the
offenses of felony criminal possession of dangerous drugs and misdemeanor criminal
possession of drug paraphernalia. The misdemeanor offense was dismissed prior to trial.
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¶5 A jury trial was held on January 22, 2002. At trial, the State called Cannon as a
witness. During direct examination, Cannon testified regarding the facts that Ely had refused
to provide the urine sample voluntarily and Cannon was required to obtain a search warrant
to acquire it. Ely objected to the admission of this testimony, the District Court overruled
the objection, and the jury ultimately found Ely guilty of criminal possession of dangerous
drugs. The court sentenced Ely and entered judgment on the conviction and sentence. Ely
appeals.
STANDARD OF REVIEW
¶6 The determination of whether evidence is relevant and admissible is within the sound
discretion of the trial court and we will not overturn that decision absent a showing of abuse
of discretion. State v. Rodarte, 2002 MT 317, ¶ 9, 313 Mont. 131, ¶ 9, 60 P.3d 983, ¶ 9.
DISCUSSION
¶7 Did the District Court abuse its discretion in admitting testimony regarding Ely’s
refusal to provide a urine sample voluntarily?
¶8 Ely argues that the District Court abused its discretion in allowing Cannon to testify
regarding his refusal to provide a voluntary urine sample. He asserts that the acquisition of
a urine sample constitutes a search and that both the Montana and United States
Constitutions guarantee him the right to refuse to consent to that search. He further asserts
that it is impermissible for the State to use the fact that he exercised his constitutional right
to refuse to consent to a search as evidence at trial to establish his guilt. In response, the
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State argues that Ely is barred from raising these theories because they are not the basis on
which he objected to the testimony at trial.
¶9 It is well-established that an appellant may not change legal theories on appeal or
raise issues which were not raised in the trial court. See, e.g., State v. Hoffman, 2003 MT
26, ¶ 44, 314 Mont. 155, ¶ 44, 64 P.3d 1014, ¶ 44; State v. Courville, 2002 MT 330, ¶ 5, 313
Mont. 218, ¶ 5, 61 P.3d 749, ¶ 5; State v. Stewart, 2000 MT 379, ¶ 30, 303 Mont. 507, ¶ 30,
16 P.3d 391, ¶ 30; State v. Chesarek, 1998 MT 15, ¶ 14, 287 Mont. 215, ¶ 14, 953 P.2d 698,
¶ 14. The rationale for this rule is that it is unfair to fault the trial court on an issue it was
never given the opportunity to address. Courville, ¶ 5.
¶10 At trial, Ely objected to Cannon’s testimony on the basis that its probative value
would be outweighed by its prejudicial effect. Ely’s counsel also made a brief reference to
Ely’s right to refuse to voluntarily provide potentially incriminating evidence. Ely’s counsel
did not refer, however, to Ely’s constitutional right to refuse consent to a warrantless search;
nor did he argue that admission of the testimony would impermissibly penalize Ely for
having asserted a constitutional right.
¶11 On this record, we conclude that Ely’s objection to admission of Cannon’s testimony
at trial was premised on different bases than he now asserts on appeal and, as a result, Ely
has changed his legal theory and argument on appeal. Consequently, we decline to address
this new theory.
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¶12 Ely having abandoned on appeal the objections made at trial, we hold he has failed
to establish that the District Court abused its discretion in admitting testimony regarding his
refusal to provide a urine sample voluntarily.
¶13 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ JIM RICE
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¶14 Justice Patricia O. Cotter dissents.
¶15 At ¶ 10, the Court faults Ely’s counsel for failing to refer “ . . . to Ely’s constitutional
right to refuse consent to a warrantless search.” In my view, Ely’s counsel made reference
to Ely’s constitutional rights, although not in the precise language the Court would like.
Specifically, Ely’s counsel asked the court for a short recess when he knew Officer Cannon
was about to testify that Ely refused to voluntarily give a urine sample. While out of the
presence of the jury, Ely’s counsel stated: “I don’t believe the State has authority over a
refusal by the defendant, especially a custodial defendant, to give voluntarily what is
potentially incriminatory evidence.” Later in the colloquy with the court, he said: “The
defendant has a right to not voluntarily offer urine samples or blood samples or any other
type of bodily sample.” Thus, twice, Ely’s counsel, while perhaps unartfully, made
reference to the defendant’s right to refuse to voluntarily give up his bodily fluids to a police
officer on his request. Granted, the defendant’s attorney did not speak in the specific terms
of Ely’s “right to refuse consent to a warrantless search,” but his objection was, in my
judgment, specific enough to raise the issue.
¶16 Second, the Court says that Ely’s counsel failed to argue that admission of the
testimony would impermissibly penalize Ely for having asserted a constitutional right. Ely,
¶ 10. While again, I agree that he did not specifically state that “. . . the testimony would
impermissibly penalize Ely . . .” the potential prejudicial impact of the testimony was the
whole basis for his objection and the record he made. He clearly argued prejudice, which
is surely akin to “penalize.”
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¶17 Counsel for the defendant may not have stated his objections as succinctly as the
Court would like, but in my view, there is no question that he preserved his objection
adequately for review on appeal. I think we have far too finely parsed the language of Ely’s
objection, which does not bode well for the competent but less articulate among us.
¶18 I would not find that Ely changed his legal theory and argument on appeal. I would
address Ely’s objection on the merits, and I would conclude that the District Court, having
been forewarned of the State’s intention to introduce evidence of Ely’s refusal to voluntarily
give a urine sample, and allowing it anyway over the objection of the defendant, abused its
discretion. I would therefore reverse. I dissent from our refusal to do so.
/S/ PATRICIA COTTER
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