No. 14210
I N THE SUPREME CCUR!I' O THE! S A E O MONTANA
F T T F
1978
S A E O !rnANA,
T T F
P l a i n t i f f and Respondent,
-VS-
J M S DOELAS
A E KIRKALDIE,
Defendant and Appellant.
A p p l f m : D i s t r i c t C o u r t of the Fourth Judicial D i s t r i c t ,
Honorable Edward T. Dussault, Judge presiding.
Counsel of Record:
For Appellant:
&bralest Volinkaty and H a r r , Missoula, Montana
Julio mrales argued and Arthur B. H a r r argued, Missoula, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, &bntana
Mike m a t h argued, Assistant Attorney General, Helena, Pbntana
mbert L. Deschamps, I11 argued, County Attorney, Missoula, Montana
Sulxnitted: September 1 2 , 1978
Decided : ";
N f 3 ' 1978
L.
. -
Filed: - - - , si@
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the
Court.
Defendant appeals from his conviction of negligent homi-
cide following a jury trial in the District Court of Missoula
County.
Defendant is James Douglas Kirkaldie, the driver of a
1972 Buick Skylark in which a passenger, 15 year old Douglas
Schaffer, was killed. The accident occurred on April 24, 1977,
between midnight and 1:00 a.m. on Interstate 90 approximately
one and one-half miles west of the Reserve Street exit near
Missoula, Montana. Defendant's automobile left the pavement,
went onto the median, and rolled over several times, throwing
defendant, the deceased, and another passenger, 15 year old Jay
Bush, out of the car. They were taken by ambulance to St. Patrick's
Hospital where Douglas Schaffer died about 1:25 a.m.
Following a coroner's inquest, defendant was charged with
negligent homicide and entered a plea of not guilty. A jury
trial was held in the District Court of Missoula County commenc-
ing on November 10, 1977, which resulted in a verdict of guilty.
Defendant was sentenced to a term of 10 years in the State Prison
which he is presently serving.
The uncontradicted testimony indicates that during the
evening defendant and the two 15 year old boys, Schaffer and
Bush, were at a party at another's trailer home at the Skyline
Trailer Court west of Missoula. Defendant admits drinking a
half pint of vodka and 2 or 3 beers there. Defendant and the
two boys left about 11:OO p.m. in defendant's car to go to Lolo,
Montana to pay a $5.00 debt defendant owed Joe Mandala who ran
a restaurant there.
From this point on, two sharply differing versions of
the facts emerged at the trial. According to Jay Bush, defen-
dant drove erratically to the Midi Mart store where defendant
purchased a six pack of beer. Defendant started to drive the
car again but at the insistence of Doug Schaffer, defendant
allowed Schaffer to drive to Lolo. Bush testified that he and
Schaffer each had one can of beer while defendant consumed the
other four cans.
According to Bush, when defendant went in and came
out of Mandala's restaurant in Lolo, he was staggering. Defen-
dant would not let Schaffer drive, and defendant's driving was
erratic on the return trip. After arriving in Missoula, they
proceeded along Reserve Street and onto the freeway. They
passed another car on the on-ramp, entered the freeway and pro-
ceeded west.
About a mile and a half down the freeway on a slight
curve, defendant's car drifted off the pavement, into the gravel
on the shoulder, and onto the median. According to the highway
patrolman, the car was travelling at a speed of at least 80 miles
an hour, rolled over five times, and travelled over 200 yards
from the point it left the pavement to where it started to roll.
Defendant denied stopping at the Midi Mart for beer on
the way to Lolo. He denied drinking anything after they left
the trailer house at 11:OO p.m. He denied that Schaffer drove
from the Midi Mart to Lolo. Both he and the Mandalas denied that
he was intoxicated or staggering at the latter's restaurant in
Lolo.
On the return trip, defendant admitted passing a car on
the ramp to Interstate 90. He testified that when he got on the
freeway he was travelling about 60 miles an hour. As he was
approaching the scene of the accident, he started to pass a
pickup truck. It began moving over into the passing lane and in
an attempt to avoid it, his wheels hit the gravel shoulder pull-
ing him onto the median and causing him to loose control of his
car. Defendant consistently maintained he was not drunk.
When the highway patrolman arrived at the scene of the
accident, he could smell alcohol on defendant's breath. He ad-
vised defendant of his constitutional rights. Although the
officer felt defendant was intoxicated, he did not place him
under arrest. The officer asked defendant to submit to a blood
alcohol test. Defendant refused.
At the hospital, the officer again asked defendant to
submit to a blood alcohol test. Defendant again refused. The
deputy coroner made a similar request which defendant refused.
The deputy coroner called the sheriff who was a neighbor and
friend of defendant; he could not remember what the sheriff said
to defendant, but did remember that the sheriff was concerned
about defendant's condition. The deputy coroner also called the
county attorney who advised him to get a blood sample. The dep-
uty coroner again requested defendant to give a blood sample.
Defendant again refused, explaining he was a diabetic and could
not give blood.
The deputy coroner then talked to the attending physician
in the emergency room at the hospital who advised him that defen-
dant's diabetes would not interfere with his giving a blood sample.
The coroner requested the doctor's help in obtaining a blood
sample. The doctor talked to defendant about submitting to a
blood test. The defendant then consented. A blood sample was
drawn that revealed a blood alcohol level of 0.28. Defendant had
not been arrested, a search warrant had not been obtained, and
defendant had not signed a written consent form.
Prior to trial defendant moved to suppress the results of
the blood alcohol test and for a change of venue. At the sup-
pression hearing defendant contended his consent to having blood
drawn was to check his blood sugar level of his diabetes, not for
a blood alcohol test. Defendant also sought a change in the place
of trial because of two newspaper articles in the Missoulian
which he claimed deprived him of a fair trial in Missoula
County. The District Court denied both motion.
Defendant advances four specifications of error in this
appeal :
(1) Failure to suppress the results of the blood alcohol
test.
(2) Denial of a change of venue.
(3) Error in jury instructions.
(4) Insufficient evidence to support his conviction.
The principle issue in this appeal is the trial court's
refusal to suppress the results of the blood alcohol test. De-
fendant argues that his consent to the test was not voluntary
but was the product of psychological coercion by the State. He
contends that the drawing of the blood from his body amounted to
an unlawful search and seizure prohibited by the State and Fed-
eral Constitutions.
At the outset, we observe that the admissibility of the
results of the blood alcohol test in this test is not based on
implied consent to the withdrawal of defendant's blood under the
implied consent law of this state. Section 32-2142.1, R.C.M.
1947. Instead, it is bottomed on the actual consent of the
defendant which he admits. The issue turns on whether defendant's
consent was voluntary of was coerced by psychological means.
The taking of a blood sample for a blood alcohol test
is a search and seizure subject to the protection of the Fourth
Amendment to the United States Constitution. Schmerber v. Cali-
fornia (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L Ed 2d 908. How-
ever, a search and seizure with the consent of defendant is not
prohibited. State v. Williams (1969), 153 Mont. 262, 455 P.2d
634.
In this state, evidence concerning the taking, analysis
and result of a blood sample taken from defendant with his con-
sent is admissible in evidence. State v. Haley (1957), 132
Mont. 366, 318 P.2d 1084. The consent must be voluntary with
voluntariness determined by an examination of all of the circum-
stances surrounding the consent. Schneckloth v. Bustamonte
8; .';
(1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L Ed 2d 5 8 4 .
According to defendant, the reason he refused the earlier
requests of the highway patrolman and the deputy coroner for a
blood sample was because he was a diabetic and could not give
blood. He maintains that he was never told by the doctor that
the blood sample to which he ultimately consented was to be used
for legal purposes or that he could refuse to give a blood sample.
Defendant testified that when the doctor asked for a blood sample,
he simply "assumed" it was for a blood sugar test. He admits
that the doctor discussed with him the legal ramifications of
refusing a blood alcohol test.
The doctor testified to a different version of his con-
versation with defendant. The doctor, repeatedly testified that
he informed the defendant that the blood sample was not for
medical treatment. He testified that he told defendant about
the legal ramifications of refusing a blood alcohol test, informed
defendant that refusal to submit to a blood alcohol test was
tantamount to an admission of intoxication under state law, and
that it was in his best interests to have this done. The doc-
tor testified that he made it clear to defendant that he did
not have to give blood, but did not recall specifically and ex-
plicitly discussing that under state law, defendant was not
required to give a blood sample.
The credibility of the witnesses at a suppression hear-
ing is properly determined by the trial court that heard testimony
and observed the witnesses. United States v. Owens (8th Cir. 1973),
472 F.2d 780, cert.den. 412 U.S. 951, 93 S.Ct. 3019, 37 L Ed 2d
1004. In a suppression hearing, the trial court sits as a finder
of fact with power to resolve conflicts in the evidence. People
v. Hill (1974), 117 Cal.Rptr. 393, 528 P.2d 1. Here the trial
court resolved those conflicts against the defendant.
The trial court simply did not believe that defendant
had not been advised that the blood was to be used for a blood
alcohol test or that he could refuse to give a blood sample.
Defendant admitted that the doctor did not tell him the blood
was to be used for a blood sugar test or for medical purposes, but
he simply "assumed" this. The doctor testified and defendant
admitted that the doctor discussed the legal ramifications of
refusing a blood alcohol test.
The fact that defendant first refused consent is not
controlling. Davis v. United States, (1946), 328 U.S. 582, 66
S.Ct. 1526, 90 L.Ed. 1453. It is simply a circumstance to be
considered along with all other circumstances in determining the
voluntary or involuntary character of the consent. A consent to
search is not subject to the strict standard that is applied
to fair trial rights or confessions under Miranda v. Arizona
(1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L Ed 2d 694. The United
States Supreme Court has expressed this distinction in this
language :
"Almost without exception, the requirement of a
knowing and intelligent waiver has been applied
only to those rights which the Constitution guar-
antees to a criminal defendant in order to preserve
a fair trial.
"The protections of the Fourth Amendment are of a
wholly different order, and have nothing whatever
to do with promoting the fair ascertainment of truth
at a criminal trial. ... [Tlhe Fourth Amendment
protects the 'security of one's privacy against
arbitrary intrusion by the police . .
..I II
Schneckloth v. Bustamonte, supra.
There is substantial evidence that defendant was not
psychologically coerced, tricked, or fraudulently influenced
to give a blood sample for the purpose of a blood alcohol test.
There is substantial evidence that his consent was free and
voluntary. The trial court committed no error in denying de-
fendant's motion to suppress the results of the blood alcohol
test.
Defendant next contends that denial of his motion for
a change of venue constituted reversible error. He claims
that news items in the Missoulian amounted to prejudicial pre-
trial publicity and denied him a fair trial. The objectionable
features of the news items according to defendant were the report
that defendant's blood alcohol tested three times greater than
the statutory presumption that a person is under the influence
of alcohol where his blood alcohol level tests 0.10; that the
coroner's jury unanimously found that defendant was driving in
a grossly reckless and culpable manner at the time of the acci-
dent; and that the county attorney's office indicated that per-
jury charges might be filed against defendant. The news items
were attacked by an affidavit of one of defendant's attorneys
that he believed defendant had been prejudiced by these news re-
ports and would be unable to receive a fair trial in Missoula
County.
Denial of a motion for change of venue is not reversible
error in the absence of an abuse of discretion by the trial
court. State v. Logan (1970), 156 Mont. 48, 573 P.2d 833; State
v. Warrick (1968), 152 Mont. 94, 446 P.2d 916. Affidavits stat-
ing opinions and not facts do not constitute a showing of an
abuse of discretion. State v. Barick (1964), 143 Mont. 273, 389
P.2d 170; State ex rel. Hanrahan v. Dist. Ct. (1965), 145 Mont.
501, 401 P.2d 770.
Here the news articles were published approximately six
months prior to trial. There is nothing to indicate that any of
the jurors had even read the articles. There is no showing that
any juror was tainted or predisposed by the appearance of these
articles. Under such circumstances, the trial court did not
abuse its discretion in denying a change of place of trial.
Defendant next argues that the jury was not properly
instructed. His objections are mainly that three of his pro-
posed instructions that he argues should have been given are
instructions Nos. 7, 8 and 9.
Proposed instruction No. 7 is on involuntary intoxi-
cation. It reads:
"An intoxicated person is criminally responsible
for his conduct unless his intoxicated condition
is involuntarily produced and deprives him of
his capacity to appreciate the criminality of his
conduct or to conform his conduct to the require-
ments of law."
The State objected to this instruction because defendant had
not presented any evidence showing that his intoxication was
"involuntarily produced". The court denied the instruction on
this ground.
The trial court correctly refused this instruction. The
record discloses no evidence of involuntary intoxication. No
instruction may be given which is not supported either by some
direct evidence or some logical inference from evidence present-
ed at trial. State v. Miner (1976), 169 Mont. 260, 546 P.2d 252.
Here there was none, so the proposed instruction was properly
refused.
Proposed instruction No. 8 also dealt with intoxication.
It reads:
"An intoxicated condition may be taken into con-
sideration in determining the existence of a
mental state which is an element of the offense."
The State objected to this instruction on the ground that de-
fendant's state of mind was not an issue in this case.
The defendant was charged with negligent homicide. Sec-
tion 94-5-104, R.C.M. 1947, defines negligent homicide as crim-
inal homicide which is committed negligently. Unlike deliberate
homicide, which requires that the offense be committed purposely
or knowingly, negligent homicide does not require such purpose
or knowledge. Negligent homicide only requires a gross devia-
tion from a reasonable standard of care.
Criminal negligence can arise as a result of intoxica-
tion. Defendant's mental state at the time he was driving his
car was not in issue. Issue was whether the driving of a car
while intoxicated was a gross deviation from the standard of
reasonable care. We find no error in the trial court's refusal
of this proposed instruction.
Proposed instruction No. 9 dealt with proximate cause.
It stated:
"You are instructed that even if you believe the
Defendant to have been driving at an excessive
rate of speed and while intoxicated, nevertheless
if you also find that the accident was caused by
the Defendant's vehicle being forced off the pave-
ment by another vehicle then you shall return a
verdict of not guilty."
This instruction dealt with defendant's theory of how the accident
happened. The State objected to this instruction on the ground
the other instructions given the jury adequately covered the
issues raised in this instruction.
The jury was adequately instructed on reasonable doubt
and the elements of the offense charged. Under the given instruc-
tions, if the jury believed defendant's account of the accident,
they could have found in his favor. However, it was the jury's
duty to determine which account of the accident, the State's or
defendant's, they believed to be more credible and worthy of
belief. State v. Lewis (1976), 169 Mont. 2 9 0 , 546 P.2d 518.
Where the jury is adequately instructed, no error occurs in re-
fusing a proposed instruction which is already covered. Here
the jury was fully instructed and defendant's attorney had a
full opportunity to argue the merits of his defense. See State
v. Smith (1975), 168 Mont. 93, 541 P.2d 351. We find no error
here.
The final issue concerns the sufficiency of the evi-
dence to sustain his conviction.
The jury is the fact-finding body and its decision is
controlling. State v. Fitzpatrick (1973), 163 Mont. 220, 516
P.2d 605. Given the required legal minimum of evidence, we
will not substitute our determination of the facts for that of
the jury. State v. Merseal (1974, 167 Mont. 412, 538 P.2d
1366. If substantial evidence is found to support the verdict,
it will stand. State v. McKenzie (1978), Mont .
- I -
P. 2d , 35 St.Rep. 759; State v. White (1965), 146 Mont. 226,
405 P.2d 761. In this case, the evidence shows that defendant
was driving his car while intoxicated and it was because of his
intoxication that the accident occurred resulting in the death
of Douglas Schaffer. This constitutes substantial evidence
supporting defendant's conviction.
We have examined all arguments and authorities advanced
by defendant. None would change the result of this appeal. We
find it unnecessary to comment on each in this opinion.
Affirmed.
Chief Justice
Mr. Justice Daniel J. Shea dissents and will file a written
dissent later.