State v. Schaff

February 15 2011

DA 10-0197

IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 19

STATE OF MONTANA,

Plaintiff and Appellee,

v.

SUSAN M. SCHAFF,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 08-533
Honorable G. Todd Baugh, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joslyn Hunt, Chief Appellate Defender; Koan Mercer, Assistant
Appellate Defender, Helena, Montana

For Appellee:

Steve Bullock, Montana Attorney General; John Paulson, Assistant
Attorney General, Helena, Montana

Dennis Paxinos, Yellowstone County Attorney, Ingrid Rosenquist,
Deputy County Attorney, Billings, Montana

Submitted on Briefs: January 20, 2011

Decided: February 15, 2011

Filed:

__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Susan Schaff appeals from her conviction after jury trial of felony DUI. We

affirm.

BACKGROUND

¶2 On the night of September 12, 2008, BNSF railroad personnel called the

Yellowstone County Sheriff to report a suspicious vehicle parked on a rough muddy road

in an unmaintained and remote area near railroad property on the west side of Billings.

Deputies Tanna Skillen and Duane Weston responded and located the vehicle. They

found Schaff in the driver’s seat, slumped over to her right and with her pants partially

removed. Skillen woke Schaff and when she opened the vehicle door noted that Schaff

smelled of alcohol, had glassy bloodshot eyes, and was confused. The vehicle keys were

in a cup holder in the center console.

¶3 Skillen asked Schaff why she was parked there and Schaff responded that she was

trying to get some rest and that she was in Laurel. Schaff said that she had gotten out of

the vehicle to urinate and had gotten back in without pulling up her pants. Schaff was

disoriented and unsteady on her feet. Skillen did not locate any alcoholic beverage

containers in or near Schaff’s vehicle. The terrain was too rough and uneven to allow

standard field sobriety tests, and Schaff refused a preliminary breath test. Skillen arrested

Schaff for DUI and took her to the Yellowstone County Detention Facility.

¶4 Schaff refused to do any physical sobriety tests at the jail and refused to provide a

breath or blood sample. Skillen then read a Miranda warning to Schaff, who said she

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wanted an attorney. At trial the prosecution offered and the District Court admitted a

videotape of the DUI processing. The tape depicts Schaff from the side, seated at a table

listening to a female voice off camera reading various advisories about the consequences

of a DUI charge. Schaff speaks only to decline the breath test and the physical sobriety

test, and to state after the Miranda advisory that she wished to speak to an attorney. The

tape ends at that point. The prosecution offered the tape based upon the belief that it

showed Schaff to be confused and intoxicated.

¶5 Schaff testified at trial that on the day of the incident she had been in Billings, and

that she drove to the remote location where she was found instead of returning to her

home near Columbus because she was being stalked by a man named Slyder. She

testified that he had assaulted and raped her two years earlier and that she had seen him

that day in Billings. She also said that she had gotten a phone call from a law

enforcement investigator about charges against Slyder as well as a threatening call from

Slyder. She further said that she had nothing to drink before she got to the railroad

property and that she parked and drank a bottle of wine that was in the vehicle. She

testified she was asleep when Deputy Skillen woke her.

¶6 Schaff’s primary contentions at trial were that she did not drink before parking,

that she was not in actual physical control of the vehicle when officers arrived, and that

the place she parked was not a public way. She did not deny that she was intoxicated.

After a two-day trial the jury convicted Schaff of felony DUI. The District Court

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sentenced her as a persistent felony offender to a term of 12 years in prison with 4 years

suspended.

STANDARD OF REVIEW

¶7 Whether a defendant’s right to due process has been violated is a question of

constitutional law over which this Court exercises plenary review. State v. Lally, 2008

MT 452, ¶ 13, 348 Mont. 59, 199 P.3d 818.

DISCUSSION

¶8 On appeal Schaff contends that the State repeatedly used her post-Miranda silence

to create an inference of guilt in violation of her right to due process.

¶9 The trial in this case took place over two days. The State’s case was brief,

consisting of testimony from the two officers who responded to the scene and arrested

Schaff. Schaff offered testimony about the nature of the area where she was found and

about her emotional state on the day of the incident. Schaff’s emotional state evidence

was, in summary, that she drank alcohol that night because she had experienced “several

days of extreme anxiety, fear, and stress” because of the alleged stalking, telephone calls

from the stalker and a State investigator, and the prospect of reopening the prosecution

against the stalker. The prosecution first heard this story during the opening argument of

Schaff’s attorney at trial and then during Schaff’s testimony.

¶10 The District Court ultimately concluded that evidence of why Schaff drank was

irrelevant to the case. Schaff conceded at trial that she had been drinking and was in her

vehicle when the officers arrived. However, after Schaff testified about her mental state

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in some detail without objection, the District Court determined that it was by then “part

of this case.” The State nonetheless attacked this evidence by showing that Schaff never

mentioned anything about being in fear and fleeing from a stalker when the officers

arrived to check on her. Instead, she said that she had come out to the remote area to “get

some rest” and thought she was in Laurel.

¶11 Deputy Skillen testified and described her interaction with Schaff, which included

talking with her at the scene, transporting her to the Detention Center, and reading her

several DUI advisories, and ultimately a Miranda advisory. Skillen testified that after

Schaff refused to provide a breath sample or to participate in physical sobriety tests, and

asked to speak to an attorney, the “active investigation” of the case ceased. There was no

evidence at trial that Skillen or any other officer had any contact with Schaff after she

asked for an attorney.

¶12 Deputy Skillen testified describing what she observed, and the prosecutor asked

the following:

Q. At any time did she—other than saying she was out there to get some
rest, did she say anything else to you?
A. No. That was the only comment she made about why she was there.
Q. Did she ever say that she was scared that somebody from her past was
coming after her?
A. No.
Q. So what is the only explanation the defendant gave you for being out
there that evening?
A. She was getting some rest.

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Deputy Weston, who also responded to the scene, testified to describe his observations.

He did not converse directly with Schaff and only observed Skillen’s interactions with

her, mostly out of hearing range. Weston’s involvement with Schaff ended that evening.

¶13 Schaff testified about being stalked and being upset the evening she was arrested.

On cross-examination she gave the following testimony:

Q. Now, when the officers got there, did you mention this Steven Slyder to
them? Did you ever say, “Oh thank God you’re here. I had this guy
following me”?
A. No.
O. Did you ever say, you know, “Be on the lookout. There’s a crazy man
who is out to get me. He might sneak up on us while we’re out here”?
A. No. I was asleep.
Q. You were asleep?
A. And out of it.
Q. So at any time did you mention this story about Mr. Slyder to the law
enforcement officers that evening?
A. No I did not.
Q. At any time did you mention the bottle of wine to the law enforcement
officers and say, “I was drinking here”?
A. No I didn’t.

¶14 The prosecutor noted some of these same issues in closing argument:

When the police get there they find the defendant in the driver’s seat with
the keys in the center console, alone. None of that is controverted in this
case. There’s no one outside of the vehicle, and they don’t see any bottles
of alcohol in the car or off to the side.
Never mentions that she drank there. Just stated that she was resting. It
comes down to whether you believe the defendant’s story or not.

. . .

I submit to you that at no time did she mention this bottle of wine on that
evening. She just said that she thought she was in Laurel, and she was
trying to get some rest. She never mentioned being terrified or being under
distress to the officers that day. Never asked for their help.

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 . . .

I’d ask how intoxicated would you have to be to believe that you were in
Laurel when you were actually in West Billings? And why not mention to
the officer that you drank there?

¶15 Schaff contends on appeal that the prosecutor’s questions and argument were an

impermissible comment upon her exercise of her right to remain silent after receiving the

Miranda advisory. Under Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240 (1976) it is a

violation of a defendant’s right to due process to allow the prosecution to use the

defendant’s post-Miranda silence to impeach the defendant’s exculpatory explanation of

events offered at trial. State v. Tadewaldt, 2010 MT 177, ¶ 21, 357 Mont. 208, 237 P.3d

1273. Doyle does not preclude impeaching a testifying defendant using inconsistent pre-

Miranda statements or omissions, or from arguing the significance of a defendant’s

inconsistent voluntary statements. Tadewaldt ¶ 21; State v. Clausell, 2001 MT 62, ¶ 62,

305 Mont. 1, 22 P.3d 1111.

¶16 Schaff’s precise argument is that the phrasing of the prosecutor’s questions and

argument make them a comment on post-Miranda silence. Since the prosecutor used

words like “ever” or “at any time” Schaff contends that the questions and argument

focused on both pre- and post-Miranda time frames without differentiation, and that this

was a violation of Doyle. We disagree.

¶17 While the prosecutor could have framed her questions and arguments more

precisely, it is clear in context that they referred exclusively to the time beginning with

the officers’ arrival at her vehicle and ending at the station when Schaff said she wanted

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an attorney. While the prosecutor used the terms “ever” and “at any time,” she also

narrowed the context by specifying that she was asking about “when the officers got

there” or by asking what Schaff had said “that evening.” The questions and argument

were about what Schaff told the officers who responded to the scene. The testimony

firmly established that the investigation ceased at that point and there is no evidence of

any other interaction between Schaff and the police.

¶18 Schaff acknowledges on appeal that it is not a violation of Doyle for the

prosecution to inquire or argue about her pre-Miranda statements. In this case that would

include anything that she said between the time the officers arrived at the scene and the

end of the DUI inquiry when she asked for an attorney. Like the defendant in Tadewaldt,

Schaff was not silent during this period. She told Deputy Skillen that she had parked her

vehicle where it was found to get some rest; that she thought she was in Laurel, and that

she had gotten out of the vehicle once to urinate and got back in without pulling up her

pants. She told the officers those things, but only those things. It was the inconsistency

between those statements and the elaborate stalking victim story she later told at trial that

was the subject of the inquiry and argument.

¶19 When a defendant testifies at trial the State can properly use pre-Miranda

statements to try to expose what it believes to be false testimony. State v. Graves, 272

Mont. 451, 460-61, 901 P.2d 549, 555 (1995) overruled in part on other grounds, State

v. Herman, 2008 MT 187, 343 Mont. 494, 188 P.3d 978. The prosecutor’s emphasis here

was on Schaff’s story, not her silence after the Miranda advisory. State v. Godfrey, 2004

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MT 197, ¶ 37, 322 Mont. 254, 95 P.3d 166. It is “entirely proper” for the prosecutor to

cross-examine a testifying defendant about inconsistencies between an initial account

given to law enforcement officers and a different account given at trial. Tadewaldt, ¶ 22.

Here the jury could not have been confused about the context of the prosecutor’s

questions or argument. The prosecutor did not comment upon Schaff’s post-Miranda

silence or seek to take advantage of that silence to create an inference of guilt.

¶20 Affirmed.

/S/ MIKE McGRATH

We concur:

/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE

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