No. 85-268
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1986
STATE O F MONTANA,
P l a i n t i f f and Respondent,
-vs-
RICHARD DUANE JOHNSON,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e F o u r t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of M i s s o u l a ,
T h e H o n o r a b l e J a c k L . G r e e n , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
S t e w a r t A. Pearce, 11, M i s s o u l a , M o n t a n a
For R e s p o n d e n t :
Hon. Mike Greely, Attorney General, Helena, Montana
Joe R. R o b e r t s , A s s t . A t t y . G e n e r a l , H e l e n a
R o b e r t D e s c h a m p s , 111, C o u n t y A t t o r n e y , M i s s o u l a ,
Montana; B e t t y Wing, Deputy County A t t o r n e y
S u b m i t t e d on B r i e f s : M a y 1, 1 9 8 6
Decided: June 6 , 1 9 3 6
.UN 6 - 1388
'
Filed:
& *,
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Richard Duane Johnson (defendant) appeals the jury
verdict and April 30, 1985, judgment of the Fourth Judicial
District Court, County of Missoula, finding defendant guilty
of driving or being in actual physical control of a motor
vehicle upon the public wa.ys of Montana while under the
influence of alcohol. Johnson also appeals the sentence
imposed. We affirm.
Defendant was found by a Missoula County Deputy Sheriff,
Officer Peterson, at approximately 1:40 a.m., December 8,
1983, in a disabled car on Interstate 90 near East Missoula.
Officer Peterson, while discussing the predicament with
defendant, noted that defendant appeared to be intoxicated.
Officer Peterson requested that defendant perform several-
field sobriety tests. Defendant either refused or was unable
to perform each test. Defendant was then arrested.
Thereafter, Officer Peterson took defendant to the
patrol car and told defendant that he would be tape recording
defendant's statements. After obtaining defendant's name,
Officer Peterson advised defendant of his Miranda rights.
Defendant acknowledged that he understood those rights, then
asked if he had the right to "address somebody." The follow-
ing conversation ensued:
MR. JOHNSON: Yes I understand. Do I have the
right to address somebody?
DEPUTY PETERSON: Yeah. In just a second, okay. I
have got a tape recorder on. Everything you say
from this time
MR. JOHNSON: I understand that.
DEPUTY PETERSON: is going to be tape recorded.
Okay.
MR. JOHNSON: I would like to talk to somebody.
DEPUTY PETERSON: It is 2:01 a.m. on December 8,
1983, Thursday morning, okay?
MR. JOHNSON: You have an advantage because my
hand.s are handcuffed and I would like to talk to
somebody.
DEPUTY PETERSON: You would like to -- who do you
want to talk to?
MR. JOHNSON: I am not, I haven't decided yet.
DEPUTY PETERSON: Okay.
MR. JOHNSON: This is dirty pool you guys. God
Almighty. Hey, am I off the record here?
DEPUTY PETERSON: No, you are on the record. You
are on tape Richard.
(Pause)
MR. JOHNSON: Oops. (unintelligible) I knew that
sucker. (Pause) You have to realize right now
that you are not getting me for DWI because I was
in the ditch. (long pause)
MR. JOHNSON: You know I am going to sue you bas-
tards so bad because I wasn't driving that car. It
is going to be fun (Pause) -- You have so much fun
hauling guys in. Isn't that fun?.
(Pause)
DEPUTY PETERSON: Who was driving the car Richard?
MR. JOHNSON: I was driving the car.
DEPUTY PETERSON: You were driving the car?
MR. JOHNSON: Yeah. I was driving the car.
DEPUTY PETERSON: How did it get in the ditch?
MR. JOHNSON: Somebody grabbed the wheel.
DEPUTY PETERSON: Who grabbed the wheel then?
MR. JOHNSON: The person I picked up on the way
home.
DEPUTY PETERSON: Where did that man go?
MR. JOHNSON: Well you look that guy up. I don't
know. No, he was a nice guy. He would
DEPUTY PETERSON: Do you know who it was?
MR. JOHNSON: No, I don't know. Do you know who he
was?
DEPUTY PETERSON: No, I don't. I didn't see him.
MR. JOHNSON: He i s a b o u t 6 ' 1". Grabbed t h e wheel
when I went i n t h e d i t c h t h e r e . ( P a u s e ) You s h o u l d
have d r i v e n up and down t h e s t r e e t t h e r e aways
there.
DEPUTY PETERSON: Why i s t h a t ?
MR. JOHNSON: W e l l , you t e l l me -- you d i d n ' t see
t h e guy. Really?
DEPUTY PETERSON: No, I d i d n ' t s e e anybody.
MR. JOHNSON: Well, t h a t ' s your problem. That's
n o t mine. Go back and look f o r him.
MR. JOHNSON: So what do I do w i t h t h e s e h a n d c u f f s ?
DEPUTY PETERSON: W e l l I am g o i n g t o t a k e them o f f
you h e r e i n j u s t a minute R i c h a r d .
MR. JOHNSON: Can I go home?
DEPUTY PETERSON: Well soon a s I , soon a s I ' m done
w i t h e v e r y t h i n g we need t o do t h e n maybe you c a n .
MR. JOHNSON: This i s a l o t of fun being handcuffed
you know.
DEPUTY PETERSON: Okay, t h e t i m e i s now 2:08 a.m.
on December 8 , 1983. I am g o i n g t o t u r n t h e t a p e
off.
A videotape of defendant attempting t o perform s e v e r a l
p h y s i c a l maneuvers a t the request of O f f i c e r P e t e r s o n was
t a k e n upon a r r i v a l a t t h e p o l i c e s t a t i o n . Between maneuvers,
d e f e n d a n t asked i f he c o u l d c a l l h i s a t t o r n e y . After the
maneuvers w e r e completed and an i m p l i e d c o n s e n t form was r e a d
t o defendant, d e f e n d a n t a g r e e d t o submit t o a b r e a t h a l y z e r
test. The r e s u l t showed a blood-alcohol concentration of
Next, O f f i c e r P e t e r s o n a g a i n t u r n e d on t h e v i d e o t a p e ,
a d v i s e d d e f e n d a n t of h i s r i g h t s and asked i f d e f e n d a n t wanted
t o answer some q u e s t i o n s . Defendant r e p l i e d , " I ' d b e o b l i g e d
to, yes. " T h i s p o r t i o n o f t h e v i d e o t a p e was s u p p r e s s e d by
t h e t r i a l judge b e c a u s e o f d e f e n d a n t ' s e a r l i e r r e q u e s t f o r an
attorney.
Defendant was i n c a r c e r a t e d o v e r n i g h t . O December 1 9 ,
n
1983, a n i n f o r m a t i o n was f i l e d i n Missoula County D i s t r i c t
Court charging a t h i r d o f f e n s e D U I (Count I ) and f a i l u r e t o
have c u r r e n t r e g i s t r a t i o n (Count 11). Count I1 was s u b s e -
quently dismissed. After several delays and waivers by
d e f e n d a n t o f h i s r i g h t t o a speedy t r i a l , a j u r y t r i a l was
h e l d F e b r u a r y 2 5 , 1985.
At trial, defendant provided a d e t a i l e d account of h i s
a c t i o n s on t h e night of December 7 and t h e e a r l y morning
h o u r s o f December 8 , 1983. Defendant t e s t i f i e d t h a t h e and
h i s w i f e a t e d i n n e r a t t h e H e i d e l h a u s i n M i s s o u l a , Montana.
A f t e r d i n n e r , d e f e n d a n t t o o k h i s w i f e home and proceeded t o
The Edgewater f o r a n i g h t cap. Defendant c l a i m e d t h a t he
drank two, maybe three, drinks at The Edgewater with a
friend. Then, r e a l i z i n g he was n e a r l y o u t o f g a s and had no
money, d e f e n d a n t c o n t e n d s h e d r o v e t o a b a r i n E a s t M i s s o u l a
c a l l e d "The Cabin" t o c a s h a check. A p p a r e n t l y d e f e n d a n t had
attempted to cash checks at The Edgewater before, to no
avail. Defendant further testified that he purchased a
d o u b l e s h o t d r i n k i n a "go cup" a t "The Cabin" t o d r i n k w i t h
h i s w i f e upon r e t u r n i n g home.
According t o d e f e n d a n t ' s t e s t i m o n y , a s h e was e n t e r i n g
t h e west-bound l a n e o f 1-90 from t h e on-ramp, the steering i n
h i s c a r locked. I t was snowing h e a v i l y and t h e r o a d s were
icy. The c a r headed f o r t h e d i t c h , became h i g h - c e n t e r e d on a
snowbank and was t h e r e b y r e n d e r e d immobile. After a short
time, a passing m o t o r i s t a l l e g e d l y stopped t o a s s i s t . Be-
cause of the motorist's intoxicated condition, defendant
r e f u s e d h i s o f f e r o f a r i d e b u t asked t h e man t o phone d e f e n -
dant's wife and a towing service. Thereafter, defendant
c l a i m s he d e c i d e d t o d r i n k t h e d o u b l e s h o t . Then, remember-
i n g some b l a c k b e r r y brandy l e f t i n t h e c a r from t h e p r e v i o u s
hunting season, defendant alleges he drank approximately
three-quarters of a pint bottle to try to keep warm.
Defendant further claims not to have started or attempted to
move the car a.fter drinking the double shot.
Approximately an hour and a half after the car left the
road, Officer Peterson appeared. A tow truck arrived shortly
thereafter. Defendant's wife allegedly arrived at the scene,
but after her husband had been transported to the police
station.
The essence of defendant's story at trial was that he
may have been intoxicated at the time Officer Peterson dis-
covered him, but that he had not been "under the influence"
at the time the car became stuck on the side of the road.
Rather, his intoxication allegedly resulted from the alcohol
consumed after the car left the road.
Officer Peterson also testified at trial. He stated
that upon first approaching defendant ' s vehicle, the left
front tire was in contact with the pavement; steam or smoke
and a smell of burned rubber were emitting from that area. A
search of defendant's car and the surrounding area uncovered
no discarded beverage containers or brandy bottles. In
addition, the inventory sheet signed and prepared by Sergeant
A1 Kimery, now deceased, failed to indicate the discovery of
any alcohol container.
During a break in the trial, Officer Peterson returned
to the location where defendant's vehicle was discovered,
placed two sheriff's vehicles in the positions previously
occupied by defendant's and Peterson's vehicles and took five
photographs of the vehicles. The pictures were entered into
evidence through Officer Peterson to show the location and
angle of defendant's car.
Finally, during rebuttal, Officer Peterson was
questioned, based on his experience and training in automo-
bile mechanics, as to what, in his opinion, happens when the
power steering on a vehicle fails. This testimony was elic-
ited in response to testimony of defendant with respect to
the alleged failure of his power steering mechanism and the
performance of his car at that moment. Defendant had been
qualified as an expert in the area because of his experience
with power-steering failure in front and rear-wheel drive
vehicles.
Following presentation of the evidence, the jury con-
victed defendant of driving or being in control of a motor
vehicle on the public ways of Montana while under the influ-
ence of alcohol in violation of S 61-8-401(1), MCA. He was
sentenced to one year in the Missoula County Jail with all
but fifteen days suspended, ordered to contribute $1,000 to
the Missoula City/County Health Department's Drinking and
Driving Prevention program and had his driver's license
suspended "until he receives a probationary driver's license
and then only for driving to and from work and on the job."
On appeal, defendant raises the following issues:
1. Whether the trial judge erred in refusing to grant
defendant's motion to suppress his tape-recorded statement,
the videotape of his actions and the results of his
breathalyzer test?
2. Whether the trial judge erred in admitting into
evidence the five photographs of the scene of the incident
taken by Officer Peterson at the time of trial?
3. Whether the trial judge erred in permitting the
State to elicit "expert" testimony from Officer Peterson with
respect to the events following failure of the power steering
system in an automobile?
4. Whether the trial judge erred in refusing to grant
defendant's motion for a mistrial after the defendant had
been unduly prejudiced by the State's reference to a deputy
sheriff killed in the line of duty?
5. Whether the trial judge abused his discretion in
sentencing defendant, who suffers from claustrophobia, to 15
days in jail?
6. Whether the trial judge illegally sentenced defen-
dant to a term of incarceration by failing to state any
reason for the imposition of that condition?
I.
THE MOTION TO SUPPRESS
On August 30, 1984, defendant moved to suppress his
tape-recorded statement, the videotape of his actions and the
results of his breathalyzer test. The State's motion in
opposition was filed September 20, 1984. Then, on October 5,
1984, defendant filed a motion to hold the suppression hear-
ing in abeyance until this Court reached a decision in State
v. Armfield (Mont. 1984), 693 P.2d 1226, 41 St.Rep. 2430.
Armfield was rendered on December 28, 1984, and a third
omnibus hearing was held January 9, 1984. The trial judge
issued an order February 19, 1985, holding that our decision
in Armfield dispensed with defendant's entire motion to
suppress. We disagree.
In Armfield, supra, we held that an individual arrested
on a charge of driving while under the influence of alcohol
has no constitutional right to the advice of legal counsel
prior to deciding whether to submit to a breathalyzer test.
We found the breathalyzer test to be analogous to require-
ments that an accused "submit to fingerprinting,
photographing, or measurements, to write or speak for
identification, to appear in court, to stand, to assume a
stance, to walk, or to make a particular gesture." Armfield,
693 P.2d at 1230, 41 St.Rep. at 2434, citing U. S. v. Wade
(1967), 388 U.S. 218, 223, 87 S.Ct. 1926, 1930, 18 L.Ed.2d
1149, 1155. Which quotes Schmerber v. California (1966), 384
U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908, 916.
Thus, defendant's breathalyzer test results are admissible in
evidence.
Likewise, the videotape of defendant's attempts to
perform specific sobriety tests at the police station is
admissible as the performance of the physical maneuvers is
not testimonial in nature. Armfield, supra; State v. Purdie
(Mont. 1984), 680 P.2d 576, 578, 41 St.Rep. 754, 756.
However, defendant's tape-recorded statement is testimo-
nial and thus potential-lyself-incriminating. We must there-
fore determine whether the right to counsel was invoked by
defendant.
The United States Supreme Court has held that only a
specific request for counsel invokes a defendant's constitu-
tional right of counsel per se. All other requests become
part of the "totality of the circumstances" to which the
Court refers when determining whether the right to counsel
has been invoked.
In Fare v. Michael C. (1979), 442 U.S. 707, 99 S.Ct.
2560, 61 L.Ed.2d 197, a juvenile was taken into custody for
suspicion of murder. After a police officer fully advised
the juvenile of his Miranda rights, the juvenile asked to see
his probation officer. The police denied his request.
Thereafter, the juvenile gave a statement implicating himself
in the murder. The United States Supreme Court held that a
request to see one's probation officer is not analogous to a
request for counsel. Rather, it is but one factor to be
considered under the "totality of the circumstances" when
determining the voluntariness of a subsequent waiver of one's
rights. Fare, 442 U.S. at 722-725, 99 S.Ct. at 2570-2572,
61 L.Ed.2d at 210-212.
Although Fare would be analogous to the situation cur-
rently before this Court, we refuse to "march lock-step" with
the United States Supreme Court where constitutional issues
are concerned, even if the applicable State Constitution
provisions are identical or nearly identical to those of the
United States Constitution.
We recognize that this pronouncement is contrary to
previous criminal law decisions issued by this Court.
Under the Fifth Amendment to the United States
Constitution, and under the substantially identi-
cally worded Art. 11, Section 25, 1972 Montana
Constitution, no person may be compelled to testify
against himself in a criminal proceeding. This
Court has held the Montana constitutional guarantee
of the privilege against self-incrimination affords
no broader protection to an accused than does the
Fifth Amendment. State v. Armstrong, [I70 Mont.
256,] 552 P.2d 616. heo opinions of the United
States Supreme Court, therefore, delineate the
maximum breadth of the privilege against self-in-
crimination in Montana.
State v. Finley (1977), 173 Mont. 162, 164-165, 566 P.2d
1119, 1120-1121. See also, State v. Jackson (Mont. 1983) I
672 P.2d 255, 260, 40 St.Rep. 1698, 1704. And,
This Court is not bound by decisions of the United
States Supreme Court where independent grounds
exist for reaching a contrary result. (Citations
omitted) ...
Much has been written about whether a state court
should grant greater rights than the United States
Supreme Court where the State Constitutional
language is identical to that in the Federal
Constitution. In State v. Jaclcson (Mont. 1983) ,
672 P.2d 255, 40 St.Rep. 1798, a divided court held
that the Montana Constitutional guarantee against
self-incrimination does not afford greater
protection than that afforded under the Federal
Constitution. However, in that instance the
language in the Montana Constitution does not
afford a basis for distinguishing
self-incrimination rights from those articulated in
the Federal Constitution. This Court has afforded
greater rights in search and seizure cases because
the Montana Constitution specifically recognizes
the importance of the right of privacy.
State v. Solis (Mont. 1984), 693 P.2d 518, 521, 41 St.Rep.
However, we have forged ahead independent of the United
State Supreme Court in civil matters which involve constitu-
tional issues, even where our Constitutional provisions are
identical or nearly identical to those of the United States
Constitution.
Art. 11, S 4, of our State Constitution provides in
part that "[nlo person shall be denied the equal
protection of the laws." Art. 11, S 4, 1972 Mont.
Const. That provision of our State Constitution,
though similar in wording to the last clause of the
Fourteenth Amendment of the Federal Constitution
provides a separate ground on which rights of
persons within this state may be founded, and under
accepted principles of constitutional law such
rights must be at least the same as and may be
greater than rights founded on the federal clause.
Thus, states may interpret their own constitutions
to afford greater protections than the Supreme
Court of the United States has recognized in its
interpretations of the federal counterparts to
state constitutions. City and County of Denver v.
Nielson (1977), 194 Colo. 407, 572-~.2d 484.
Federal rights are considered minimal and a state
constitution may be more demanding than the equiva-
lent federal constitutional provision. Washakie
Co. - Dist. - - -v. Herschler (Wyo. 1980),
- Sch. No. One
606 P.2d 310, cert. den. 449 U.S. 824, 101 S.Ct.
86, 66 L.Ed.2d 28. This is true even though our
state constitutional language is substantially
similar to the language of the Federal Constitu-
tion. Deras v. Myers (1975), 272 Or. 47, 535 P.2d
541, 549 n7..
1
Pfost v. State (Mont. 1985), 713 P.2d 495, 500-501, 42
And,
This Court need not b1indl.y follow the United
States Supreme Court when deciding whether a
Montana statute is constitutional pursuant to the
Montana Constitution ...
We will not be bound by decisions of the United
States Supreme Court where independent state
grounds exist for developing heightened and expand-
ed rights under our state constitution.
Butte Community Union v. Lewis (Mont. 1986), 712 ~ . 2 d1309,
Likewise, we see no reason not to pursue our own
resolution of constitutional matters in criminal cases.
Adequate and independent state grounds exist in our own
Constitution and statutes to resolve this matter. We choose
to rely solely on these adequate and independent grounds.
"[A] state court always is responsible for the law of its
state before deciding whether the state falls short of a
national standard, so that no federal issue is properly
reached when the state's law protects the claimed right."
Linde, - Pluribus
E. - Constitutional Theory and State Courts,
18 Ga.L.Rev. 165, 178 (1984).
The proper sequence is to analyze the state's law,
including its constitutional law, before reaching a
federal constitutional claim. This is required,
not for the sake either of parochialism or style,
but because the state does not deny any right
claimed under the federal Constitution when the
claim before the court in fact is fully met by
state law. (Citations omitted.)
Sterling v. Cupp (Or. 19811, 625 P.2d 123, 126.
This Court has previously recognized this principle.
These state constitutional provisions, identical or
nearly identical with like language in the United
States Constitution and certainly identical in
concept, each constitute separate and enforceable
constitutional rights insofar as the jurisdiction
of the State of Montana extends. Where state and
federal constitutional provisions are identical,
each is enforceable in its own respective sphere
where those principles attach. See, Department of
Mental Hygiene v. Kirchner (1965), 62 Cal. 2d 586,
43 Cal.Rptr. 329, 400 P.2d 321; Emery v. State of
Montana (1978), [I77 Mont. 731, 580 P.2d 445.1
Madison v. Yunker (1978), 180 Mont. 54, 60, 589 P.2d 126,
Thus, relying on our own Constitution and applicable
law, we hold first that when defendant asked, immediately
after having been read his rights, if he had the right to
address somebody and subsequently stated that he would like
to talk to somebody, he invoked his right to counsel under
Art. 11, S 24 of the Montana Constitution. This right to
counsel is not and should not he a right easily abridged.
The implication of asking to speak to "someone" immediately
after the reading of one's rights is that "~omeone'~
refers to
a legal advisor. Lay people are not learned in
constitutional principle nor legal nicety. To require
precise words be uttered would elevate form over substance.
Defendant's subsequent conversation with Deputy Peterson
did not result in the voluntary waiver of his right to coun-
sel. Although defendant initiated that portion of the con-
versation wherein Peterson asked defendant who was driving
the car, defendant's comments were all part of one taped
interview initiated by the deputy. The entire taped conversa-
tion lasted only seven minutes. Under these facts, we cannot
find that defendant ' s comments constituted a knowing and
voluntary waiver of his right to counsel.
The taped conversation should not have been admitted
during the State's case-in-chief. However, because that
conversation could have been used by the State to impeach
defendant's testimony at trial, we find the error in admit-
ting the tape to be harmless. In the taped conversation,
defendant stated that another individual riding in the car
with him grabbed the steering wheel, forcing the car off the
road. At trial, defendant testified that the car left the
road because of a failure in the power steering. Although
defendant has every right to take the stand and testify in
his own defense, Art. 11, S 24, Mont. Const. (1972), once
defendant testified to a story different than that upon which
he previously relied, defendant "opened the door" to the
admissibility of the illegally-obtained evidence for impeach-
ment purposes. W. LaFave and J. Israel, Criminal Procedure
S 9.6 (1984).
The situation is analogous to that discussed in Rule
410, M.R.Evid. Rule 410 makes inadmissible pleas of guilty,
later withdrawn, except for the purposes of impeachment.
This rul-e shall not apply to the introduction of
voluntary and reliable statements made in court on
the record in connection with any of the foregoing
pleas or offers where offered for impeachment
purposes or in a subsequent prosecution of the
declarant for perjury or false statement.
We therefore find harmless any error to defendant aris-
ing out of the admission of defendant's taped conversation
during State's case-in-chief.
ADMISSIBILITY OF THE PHOTOGRAPHS
Trial courts have wide discretion in admitting photo-
graphs. State v. Warnick (1982), 202 Mont. 120, 127, 656
[Plhotographs stand on the same footing as dia-
grams, maps, plans, and the like, and, as a general
rule, whenever relevant to describe a person,
place, or thing, they are admissible for the pur-
pose of explaining and applying the evidence and
assisting the court and jury in understanding the
case. (Citations omitted. )
Fulton v. Choteau County Farmers' Co. (1934), 98 Mont. 48,
Here, the photographs were received solely for the
purpose of describing the position of defendant's vehicle.
A.lthough the pictures were taken under conditions substan-
tially dissimilar to the conditions on December 8, 1983, the
conditions are basically irrelevant to the purpose of the
photographs and the dissimilarities were adequately explained
to the jury. There was no abuse of discretion by the trial
judge .
ADMISSIBILITY OF OFFICER PETERSON'S TESTIMONY
WITH RESPECT TO POWER STEERING FAILURE
Appellant contends the trial judge erred in qualifying
Officer Peterson as an expert and in allowing him to testify
with respect to how a car reacts when its power steering
mechanism fails. Officer Peterson was not qualified as an
expert in auto mechanics pursuant to Rule 702, M.R.Evid.
Rather, the trial judge referred to him as a "semi-expert."
(Tr. p. 363, 1. 18-20) The law of evidence does not recog-
nize a "semi-expert."
Although Officer Peterson was not qualified as an expert
witness, his opinion was properly received under Rule 701,
M.R.Evid. That rule states:
Opinion testimony by lay witnesses.
If the witness is not testifying as an expert, his
testimony in the form of opinions or inferences is
limited to those opinions or inferences which are
(a) rationally based on the perception of the
witness and (b) helpful to a clear understanding of
his testimony or the determination of a fact in
issue.
Officer Peterson testified solely with respect to what,
on the basis of his own experience, happens to a vehicle when
its power steering fails. He did not offer an opinion as to
what specifically happened to defendant's vehicle. The
testimony served primarily to clarify in the minds of the
jurors, who might not have experienced a similar failure,
what exactly happens when the power steering system of a car
fails. The evidence certainly established that Officer
Peterson was qualified to offer his lay opinion. He had
worked on vehicles of all kinds for over ten years and had
experienced power steering problems several times.
We find no error in the admission of Peterson's opinion.
IV.
REFERENCE TO THE DECEASED DEPUTY SHERIFF
Appellant contends t h e S t a t e ' s reference t o Sergeant A 1
Kimery, a d e p u t y s h e r i f f k i l l e d i n t h e l i n e o f d u t y n e a r t h e
t i m e o f t r i a l , r e s u l t e d i n a s y m p a t h e t i c b i a s on t h e p a r t of
t h e j u r y toward t h e S t a t e . The r e f e r e n c e o c c u r r e d w h i l e t h e
s t a t e was l a y i n g a f o u n d a t i o n f o r t h e i n v e n t o r y s h e e t .
O f f i c e r Kimery conducted the inventory of defenda-nt's
car prior to its impoundment. Because of the nature of
d e f e n d a n t ' s d e f e n s e , t h a t h e became drunk o n l y a f t e r h i s c a r
became s t u c k , t h e i n v e n t o r y s h e e t was r e l e v a n t e v i d e n c e . The
difficulty of admitting the exhibit without referring to
Officer Kimery was obvious and foreseeable. Defendant' s
remedy was t o f i l e a motion i n l i m i n e p r i o r t o t h e s t a r t o f
trial. Defendant f a i l e d t o do s o . W e f i n d no e r r o r .
CLAUSTROPHOBIA
Defendant c o n t e n d s t h a t h e s u f f e r s from c l a u s t r o p h o b i a
and t h a t h i s s e n t e n c e i s t h e r e f o r e c r u e l and u n u s u a l p u n i s h -
ment b e c a u s e it r e q u i r e s t h a t he spend 15 days i n j a i l . In
support of h i s contention, d e f e n d a n t s u b m i t t e d a l e t t e r from
Dr. James E. Gouaux which s t a t e s i n a p p l i c a b l e p a r t :
I b e l i e v e h i s main h e a l t h problem r e l a t e d t o b e i n g
i n j a i l r e l a t e s t o h i s c l a u s t r o p h o b i a which appa.r-
e n t l y h a s been g o i n g on f o r f o r t y o r s o y e a r s a n d ,
i f it i s a g g r a v a t e d by b e i n g i n a j a i l c e l l , might
c o n s t i t u t e " c r u e l punishment."
However, defendant offered no evidence in support of his
claim that he does indeed suffer from claustrophobia.
Dr. Gouaux makes no such d i a g n o s i s i n h i s l e t t e r . In fact,
he s t a t e s o n l y t h a t t h e c l a u s t r o p h o b i a h a s " a p p a r e n t l y " been
going on f o r more t h a n f o r t y y e a r s . No o t h e r e v i d e n c e was
s u b m i t t e d by t h e d e f e n d a n t . Therefore, w e find l i t t l e evi-
dence to support defendant's claim that he suffers from
claustrophobia. Further, even i f d e f e n d a n t s o s u f f e r e d , it
would b e b u t a factor t o c o n s i d e r a n d would n o t foreclose
incarceration. The s e n t e n c e d o e s n o t c o n s t i t u t e c r u e l and
u n u s u a l punishment.
VI.
ADEQUACY O THE REASONS FOR THE SENTENCE
F
Finally, appellant contends his sentence is illegal
because t h e t r i a l judge f a i l e d t o set f o r t h h i s reasons f o r
choosing t o i n c a r c e r a t e defendant f o r 15 days. The s e n t e n c -
ing judge is required to state his reasons for imposing
i n c a r c e r a t i o n on a d e f e n d a n t , e v e n i f t h e s e n t e n c e i s w i t h i n
the statutory limits for the offense. State v. Stumpf
( 1 9 8 0 ) , 187 Mont. 225, 609 P.2d 298. The t r i a l j u d g e h a s m e t
t h i s requirement.
The f o l l o w i n g r a t i o n a l e was p r o v i d e d f o r t h e s e n t e n c e :
" D e f e n d a n t ' s h i s t o r y o f a l c o h o l and d r i v i n g o f f e n s e s . " This
statement, especially when coupled with the presentence
r e p o r t p r o v i d e d by d e f e n d a n t ' s p r o b a t i o n o f f i c e r , i s suf f i -
cient to inform a reviewing c o u r t and t h e Sentence R e v i e w
Board a s t o why t h e s e n t e n c e was imposed. Stumpf, 187 Mont.
a t 226, 227, 609 P.2d a t 299. No more i s r e q u i r e d . The
sentence is affirmed.
Affirmed counts.
concur:
~e,ha
Justices