State v. Pol

October 21 2008

DA 07-0106

IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 352

STATE OF MONTANA,

Plaintiff and Appellee,

v.

JOSHUA WAYNE POL,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 06-375
Honorable Edward P. McLean, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Scott B. Spencer, Public Defender; Missoula, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General; John A. Paulson,
Assistant Attorney General; Helena, Montana

Fred R. VanValkenburg, Missoula County Attorney; Missoula,
Montana

Submitted on Briefs: February 27, 2008

Decided: October 21, 2008

Filed:

__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1 A jury in the Fourth Judicial District Court, Missoula County, found Joshua

Wayne Pol guilty of negligent vehicular assault and vehicular homicide while under the

influence of alcohol, and the District Court sentenced him and entered judgment. Pol

appeals. We Affirm.

¶2 We address the following issues:

¶3 1. Did the District Court err in admitting Intoxilyzer evidence over lack of

adequate foundation objections?

¶4 2. Did the District Court err in refusing to instruct the jury on the difference

between civil and criminal negligence?

¶5 3. Did the District Court err in admitting testimony about the extent of the

victims’ injuries?

BACKGROUND

¶6 On the evening of August 1, 2006, Pol was driving his pickup truck on a city street

in Missoula, Montana. His truck struck a motorcycle carrying two riders, Bernard Kuhns

and his wife, Teresa Kuhns. Teresa Kuhns was killed and Bernard Kuhns was injured.

Pol drove away without stopping.

¶7 Based on eyewitness statements, the Montana Highway Patrol advised law

enforcement officers in Western Montana to be on the alert for a red Ford four-door

pickup with out-of-state license plates and damage to its right rear quarter panel. An hour

or so later, Mineral County Deputy Sheriff Bill Pandis stopped Pol on an interstate

highway about 50 miles from Missoula. Pol initially denied any involvement in the

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Missoula collision. Pandis noticed, however, that the right rear quarter panel of Pol’s

truck was damaged, Pol smelled of an alcoholic beverage and Pol’s eyes were glassy, red

and watery. Montana Highway Patrol Officer Roman Zylawy arrived at the stop, arrested

Pol for driving under the influence (DUI) and took him to the Mineral County booking

area.

¶8 At the booking area, Pol submitted to a breath test and field sobriety tests. He

later gave a blood sample at the Missoula Police Department. Pol eventually admitted his

involvement in the collision, and the State of Montana filed an Information charging him

with negligent vehicular assault and vehicular homicide while under the influence of

alcohol.

¶9 A jury found Pol guilty of both charges and the District Court entered judgment.

Pol appeals.

ISSUE 1

¶10 Did the District Court err in admitting Intoxilyzer evidence over lack of
adequate foundation objections?

¶11 The determination of whether an adequate foundation exists for the admission of

evidence lies within the sound discretion of the district court. Therefore, we review such

determinations for an abuse of discretion. See Town of Columbus v. Harrington, 2001

MT 258, ¶ 39, 307 Mont. 215, ¶ 39, 36 P.3d 937, ¶ 39.

¶12 To sustain a conviction, the State must prove each element of a charged criminal

offense beyond a reasonable doubt. State v. Price, 2002 MT 284, ¶ 33, 312 Mont. 458, ¶

33, 59 P.3d 1122, ¶ 33 (citation omitted). One element of the charge of vehicular

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homicide while under the influence of alcohol is that the defendant was driving under the

influence in violation of § 61-8-401 or 406, MCA. See § 45-5-106(1), MCA. Because

DUI is a strict liability offense, a test that reveals the defendant’s breath alcohol

concentration often is the critical proof establishing the defendant was driving under the

influence of alcohol. State v. Frickey, 2006 MT 122, ¶ 18, 332 Mont. 255, ¶ 18, 136 P.3d

558, ¶ 18.

¶13 In the instant case, the State offered evidence of the results of Pol’s breath alcohol

test taken on a breath analysis instrument known as the Intoxilyzer 5000. Initially, the

prosecutor simply asked Zylawy about the results of the test. Pol’s counsel objected, and

the District Court instructed the State to lay a foundation for the results. The prosecutor

then questioned Zylawy about how a breath test measures alcohol in a person’s blood

and, after Zylawy answered, again asked Zylawy the results of Pol’s breath test. Pol’s

counsel again objected on lack of foundation grounds. Following that objection, the

prosecutor elicited Zylawy’s testimony about calibration of the Intoxilyzer 5000 during

the breath test and how the breath readings are displayed on the machine, and again asked

Zylawy for the results of Pol’s breath test. Pol’s counsel objected for lack of foundation.

At that point, the District Court intervened and inquired whether Zylawy had received

training on the breathalyzer and whether he was certified to administer breath tests.

Zylawy said he was, and the court overruled Pol’s objection. Zylawy then testified that

Pol’s breath alcohol reading was .16, or twice the legal limit.

¶14 Pol argues on appeal that Zylawy’s testimony was insufficient on a stand-alone

basis to meet the foundational requirements for admission of the Intoxilyzer 5000 results

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because Zylawy did not present evidence of either the calibration or the laboratory

certification. He relies on Admin. R. M. 23.4.213(1), 23.4.214(1) and Frickey, ¶ 16, for

the requirement that breath analysis instruments must be field certified once every 7 days

and laboratory certified once every 365 days. Pol also relies on State v. Incashola to

support his argument that where the State does not lay proper foundation for the breath

test analysis, the results of the analysis are inadmissible. 1998 MT 18, ¶ 8, 289 Mont.

399, ¶ 8, 961 P.2d 745, ¶ 8.

¶15 In response, the State raises a threshold argument that Pol’s lack-of-foundation

objections to the breath test results did not alert the District Court to the argument now

presented on appeal. The State points out that Pol did not challenge the sufficiency of the

foundation for admission of the breath test result prior to trial and advances State v.

Ferguson, 2005 MT 343, ¶ 63, 330 Mont. 103, ¶ 63, 126 P.3d 463, ¶ 63, in support of its

contention that Pol’s “broad general objections” did not preserve this issue for appeal.

¶16 We agree that Pol’s “broad general objections” did not adequately preserve this

issue for appeal. We have repeatedly held that issues presented for the first time on

appeal are untimely and we will not consider them. State v. LaFreniere, 2008 MT 99,

¶ 11, 342 Mont. 309, ¶ 11, 180 P.3d 1161, ¶ 11 (citation omitted). Furthermore, an

“objection must be specific in order to preserve the issue for appeal.” LaFreniere, ¶ 12.

Although Pol’s counsel objected three times for lack of foundation, at no time, either in

his pretrial memorandum or in his trial objections, did he make a specific objection to the

fact that the Intoxilyzer 5000 had not been certified within a one-year period.

¶17 Pol’s reliance on Frickey is misplaced. In Frickey, 2006 MT 122, 332 Mont. 255,

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136 P.3d 558, the defendant challenged the admissibility of the breath test results by

filing a pretrial motion to suppress on the specific grounds that the instrument was not

properly certified. The defendant’s motion permitted the District Court to examine the

laboratory certification and allowed this Court to determine that the administrative

requirement for annual certification had not been established.

¶18 Pol also relies on State v. Incashola, 1990 MT 18, 289 Mont. 399, 961 P.3d 745,

but this reliance is also inaccurate. In Incashola, the defendant filed a pretrial motion in

limine, arguing the breath test results were inadmissible because the State could not lay a

proper foundation for the field certification of the Intoxilyzer. Accordingly, both the

District Court and this Court were in a position to examine the certification process and

apply the relevant law. The point to be gleaned from Frickey and Incashola is not that

they objected prior to trial, but that they complied with Mont. R. Evid. 103(a)(1) by

“stating the specific ground of objection, if the specific ground was not apparent from the

context[.]”

¶19 Here, in response to Pol’s general “lack of foundation” objections, the trial court

received testimony about qualifications of the officer, the procedures undertaken to

administer the test to Pol, and the calibration of the Intoxilyzer 5000. In the absence of

any further specificity from defense counsel, the court was not required to divine any

additional basis for Pol’s foundation objection.

¶20 We hold the District Court did not err in admitting Intoxilyzer evidence.

ISSUE 2

¶21 Did the District Court err in refusing to instruct the jury on the difference

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between civil and criminal negligence?

¶22 We review claims of instructional error in a criminal case to determine whether

the jury instructions, as a whole, fully and fairly instruct the jury on the law applicable to

the case. State v. Swann, 2007 MT 126, ¶ 32, 337 Mont. 326, ¶ 32, 160 P.3d 511, ¶ 32

(citation omitted).

¶23 This issue relates to the negligent vehicular assault offense. Using an instruction

based on Montana Criminal Jury Instruction 2-105, the District Court instructed the jury

on the definition of negligence as follows:

A person acts negligently when an act is done with a conscious disregard of
the risk, or when the person should be aware of the risk. The risk must be
of a nature and degree that to disregard it involves a gross deviation from
the standard of conduct that a reasonable person would observe in the
actor’s situation. “Gross deviation” means a deviation that is considerably
greater than lack of ordinary care.

Pol’s counsel proposed an additional instruction on the difference between civil

negligence and criminal negligence. The District Court refused the instruction.

¶24 On appeal, Pol claims that, in light of his argument that he was guilty, at most, of

ordinary civil negligence and not criminal negligence, it also was necessary for the court

to instruct the jury on the difference between the degree of negligence necessary to

support a civil action and the degree of negligence necessary to support a criminal

conviction. He does not contend, however, that the instruction given by the District

Court inaccurately states the applicable law, nor does he advance any authority to support

his claim that a criminal defendant is entitled to an instruction on civil negligence.

¶25 Criminal negligence is statutorily defined in § 45-2-101(43), MCA. The

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instruction given in the present case is substantially similar to the statutory definition, and

both the statute and the instruction given state “[t]he risk must be of a nature and degree

that to disregard it involves a gross deviation from the standard of conduct that a

reasonable person would observe in the actor’s situation.” Thus, in the instruction given

it is clear criminal negligence is not the same as ordinary lack of care. Consequently, we

conclude the jury instructions, as a whole, fully and fairly instructed the jury on the law

applicable to the case.

¶26 We hold the District Court did not err in refusing to instruct the jury on the

difference between civil and criminal negligence.

ISSUE 3

¶27 Did the District Court err in admitting testimony about the extent of the
victims’ injuries?

¶28 District courts have broad discretion in determining the relevance and

admissibility of evidence, and we will overturn evidentiary rulings only upon a showing

of abuse of that discretion. State v. Hicks, 2006 MT 71, ¶ 19, 331 Mont. 471, ¶ 19, 133

P.3d 206, ¶ 19.

¶29 Pol contends the court erred in admitting testimony about both victims’ injuries, in

light of the stipulation as to Bernie Kuhns’ injuries. At the beginning of trial, the District

Court read preliminary instructions to the jury, and then read the parties’ stipulation to

certain facts regarding the collision. The stipulation included that Bernard Kuhns

suffered serious bodily injury, as a result of the collision, in that he suffered a broken

clavicle. Based on that stipulation, Pol claims on appeal that Kuhns should not have been

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allowed to testify about his injuries. We first recap the portions of Kuhns’ testimony at

issue here.

¶30 The prosecution’s direct examination of Kuhns at trial began with questions about

Kuhns’ and his wife’s activities just before the collision and the facts of the collision,

culminating in Kuhns’ testimony that he saw Pol’s truck coming into his lane of traffic

from the front and then woke up on the ground. Kuhns then testified without objection

that, when he woke up, his leg, shoulder and head hurt. He testified he sustained a

broken clavicle and a contusion on his scalp. The prosecutor’s next question was “how

was your collarbone treated?” Pol’s counsel objected on relevance grounds, but the court

overruled the objection, and Kuhns testified he wore a sling for about five weeks and was

given pain and sleep medication. Kuhns then testified without objection that he was still

using sleep medication at the time of trial, because of pain and missing his wife. The

prosecutor next asked Kuhns whether he had to take time off work as a result of the

collision, and Pol’s counsel again objected on relevance grounds. The court overruled

the objection, and Kuhns testified he had missed about five weeks of work and still was

unable to perform all the tasks he normally performed in his job. Finally, the prosecutor

asked Kuhns whether his injuries had impaired his ability to take care of his children, and

Pol’s counsel objected that the question was irrelevant. The court overruled the objection

and Kuhns testified his mother had taken his youngest son back to West Virginia with her

because Kuhns was unable to lift the child.

¶31 Chad Ward, who witnessed the collision, testified that he stopped his car and went

over to the two people who were on the motorcycle. The Prosecutor asked Ward what he

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saw and Ward testified, without objection, that he got to the man first and saw that he had

a huge gash on his head. He stated he then looked at the woman who was lying ten or

twelve feet away on her stomach and a saw a pool of blood forming under her head, so

went and knelt over her to see if there was anything he could do. The Prosecutor asked,

“[a]nd what happened then?” Pol objected on grounds of relevance and Rule 403. The

court overruled the objection. Ward stated that the woman was bleeding from her nose

and the side of her head and that he yelled to someone to bring some towels. He stated

that the woman had a pulse but did not appear to be breathing and that she appeared to be

in very dire shape and he wasn’t comfortable doing anything else.

¶32 In support of his argument that Kuhns’ and Ward’s testimonies were inadmissible,

Pol advances cases addressing the admission of otherwise relevant photographs, in which

the issue was whether the probative value of the photographs was outweighed by their

prejudice to the defendant. See State v. Mayes, 251 Mont. 358, 371, 825 P.2d 1196, 1204

(1992); State v. Henry, 241 Mont. 524, 531, 788 P.2d 316, 320 (1990). In that regard, we

have long recognized the special visual capacity of photographs to arouse human feelings

of sympathy or prejudice. See e.g. State v. Bischert, 131 Mont. 152, 308 P.2d 969

(1957).

¶33 The special visual capacity of photographs is not at issue in the present case, and

Pol concedes he has not located Montana law directly on point in support of his

argument. The appellant bears the burden of establishing error. State v. Buck, 2006 MT

81, ¶ 31, 331 Mont. 517, ¶ 31, 134 P.3d 53, ¶ 31 (citation omitted). We hold that, while

the challenged responses were arguably cumulative to the stipulated facts, Pol has failed

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to establish that the court abused its discretion in allowing them.

CONCLUSION

¶34 We affirm Pol’s negligent vehicular assault conviction and vehicular homicide

while under the influence of alcohol conviction.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JIM RICE

Chief Justice Karla M. Gray, specially concurring.

¶35 Having signed the Court’s opinion, I write separately to make a point I believe is

of critical importance.

¶36 In this case, defense counsel made three objections to Zylawy’s testimony about

the test results. After the third objection, and without ruling on it, the District Court

intervened and inquired whether Zylawy was certified to administer breath tests; Zylawy

said he was, and the court overruled Pol’s objection.

¶37 It is my view that the District Court’s intervention in aid of the State’s efforts to

lay an adequate foundation was entirely inappropriate. Courts are obligated to be

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impartial and neutral. In situations such as presented here, the court’s sole job was to rule

on defense counsel’s objection. Instead, it weighed in on behalf of the prosecution and,

having done so, overruled the objection. In doing so, I believe the District Court violated

the most fundamental principles which separate judges from parties and which define our

system of justice.

/S/ KARLA M. GRAY

Justice James C. Nelson joins in the foregoing special concurrence of Chief Justice Gray.

/S/ JAMES C. NELSON

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