August 13 2008
DA 07-0479
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 290N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
KEITH WARREN SMITH,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Mineral, Cause No. DV 2007-011
Honorable Edward P. McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Keith Warren Smith (Pro Se), Roundup, Montana
For Appellee:
Hon. Mike McGrath, Montana Attorney General, C. Mark Fowler,
Assistant Attorney General, Helena, Montana
M. Shaun Donovan, Mineral County Attorney, Superior, Montana
Submitted on Briefs: June 4, 2008
Decided: August 13, 2008
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 Keith Warren Smith (Smith), a self-represented litigant, appeals from his
conviction in the Fourth Judicial District Court, Mineral County, for failing to adequately
secure a load of cargo he was transporting on a commercial vehicle. We affirm.
¶3 On May 25, 2006, Officer Josh Coleman (Coleman), a Motor Carrier Services
Officer employed by the Montana Department of Transportation, was weighing Smith’s
load at the Port of Entry at Haugen, Montana, when he directed Smith to pull his tractor-
trailer over to the side. Coleman noticed eight pieces of structural steel had shifted
backwards and were in danger of falling from the load. Coleman lifted up some of the
loose pieces of steel and determined the cargo strap was not securing them. Coleman
issued Smith a citation for violating § 61-10-154, MCA, Admin. R. M. 18.8.1502 (2006)
and § 49 C.F.R. 393.1 for transporting an inadequately secured load.
¶4 Smith pled not guilty on June 26, 2006. In exchange for a continuance, Smith
filed a waiver of speedy trial. Smith also moved to dismiss the charges based on several
arguments, including that he had been denied his right to a speedy trial under
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§ 46-13-401(2), MCA. The justice of the peace denied all of Smith’s motions and he was
convicted in justice court on January 18, 2007.
¶5 Smith appealed his conviction to District Court for a trial de novo, and moved for
dismissal on a number of grounds which we rephrase as follows: 1) there was
insufficient evidence and no scientific data to convict him; 2) the State violated his
Fourth Amendment right because it lacked a search warrant to inspect his cargo; 3) he
was not given a Miranda warning and statements he made at the time he was given the
citation were used against him; 4) the State was granted a continuance based on an
verbal, ex parte request; 5) his waiver of speedy trial was involuntary; and 6) he was
denied equal rights when he was required to sign a waiver of speedy trial to secure a
continuance, but the State was not required to waive prosecution to have the omnibus
hearing rescheduled. Following oral argument, the District Court denied all of Smith’s
motions. The case was then tried de novo in District Court on July 10, 2007, and Smith
was convicted upon a jury verdict.
¶6 Smith advances 16 issues on appeal. We decline to address those issues cured by
trial de novo in district court. Generally, a trial de novo in a court of record provides a
competent remedy which is sufficient to cure any error by the justice court. City of Three
Forks. v. Schillinger, 2007 MT 331, ¶ 20, 340 Mont. 211, ¶ 20, 173 P.3d 681, ¶ 20.
Further, we will not address those issues raised for the first time in this appeal.
¶7 We review de novo the grant or denial of a motion to dismiss in a criminal
proceeding as such presents a question of law, and our review is plenary. State v. Pyette,
2007 MT 119, ¶ 11, 337 Mont. 265, ¶ 11, 159 P.3d 232, ¶ 11, citing State v. McKee, 2006
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MT 5, ¶ 16, 330 Mont. 249, ¶ 16, 127 P.3d 445, ¶ 16. We conclude the District Court did
not err in denying Smith’s pretrial motions.
¶8 As to his claim that the lack of a search warrant was fatal to the State’s case, Smith
waived his Fourth Amendment right regarding search of his tractor-trailer by driving a
commercial vehicle subject to the Code of Federal Regulations, which authorizes
inspections without a warrant. (See e.g., 49 C.F.R. §§ 396.9 & 396.17 (2005)).
Moreover, because Smith was not in custody when he was cited for infractions, he had no
cognizable entitlement to Miranda rights.
¶9 Next, Smith contends that § 61-10-154, MCA, is void because the State lacks a
device to measure the force securing a load. Statutes are cloaked with a strong
presumption of constitutionality. Smith failed to prove beyond a reasonable doubt that
the statute is unconstitutional. State v. Michaud, 2008 MT 88, ¶ 15, 342 Mont. 244, ¶ 15,
180 P.3d 636, ¶ 15.
¶10 Smith further contends that he was a victim of selective enforcement and thereby
entitled to dismissal of the charges. This claim, however, does not rise to constitutional
proportions and Smith’s argument fails.
¶11 Section § 46-13-401(2), MCA, requires that after a not guilty plea to a
misdemeanor is entered, a defendant must be brought to trial in justice court within six
months. Dismissal is mandated unless the defendant has asked for a continuance and the
State fails to show good cause for the delay. State v. Bertolino, 2003 MT 266, ¶ 13, 317
Mont. 453, ¶ 13, 77 P.3d 543, ¶ 13. In this instance, not only did Smith waive his right to
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a speedy trial, but he also requested and received a continuance. Finding Smith suffered
no prejudice, the District Court did not err in denying Smith’s motion to dismiss.
¶12 Smith next contends that he was entitled to a mistrial because during voir dire, the
prosecutor showed the jury a photograph Coleman took of Smith’s cargo which had not
been admitted into evidence. Smith objected and the court sustained the objection;
however, the photograph was later admitted into evidence. Because the photograph was
ultimately admitted into evidence, a mistrial was not warranted.
¶13 Next, Smith contends the District Court abused its discretion by failing to allow
him to be sworn and provide testimony in the pretrial hearing. In that hearing, Smith
failed to unequivocally assert that he wanted to testify and instead argued his position to
the court, rather than augmenting the record. It is not the province of the trial court to
develop Smith’s legal defense strategy for him. See State v. Clausell, 2001 MT 62, ¶ 48,
305 Mont. 1, ¶ 48, 22 P.3d 1111, ¶ 48.
¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions. It is manifest on the face of the briefs and the record before us
this appeal is without merit. These issues are controlled by settled Montana law that the
District Court correctly interpreted.
¶15 Affirmed.
/S/ PATRICIA COTTER
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We concur:
/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ W. WILLIAM LEAPHART
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