No. 87-382
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA, CITY OF BOZEMAN,
Plaintiff and Respondent,
-vs-
CLIFTON DUANE HETH,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jerry Bechhold, Bozeman, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
John Paulson, Asst. Atty. General, Helena
Bruce Becker, City Attorney, Bozeman, Montana
Submitted on Briefs: Dec. 17, 1987
Decided: February 9, 1988
Filed: FEB9 1988'
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
This is an appeal from the Eighteenth Judicial District
Court, Gallatin County. Defendant/appellant, Clifton Duane
Heth (Heth) was found guilty by the District Court of driving
under the influence of intoxicants (DUI) as outlined in the
court's findings of fact and conclusions of law on May 29,
1987. From this ruling Heth appeals.
We affirm.
The only issue is as follows:
Did the District Court err in not granting Heth's
motion to dismiss based upon his argument that police
officers have a responsibility to obtain and preserve
exculpatory evidence if they have an opportunity to do so?
This appeal arose out of the conviction of Heth by the
District Court sitting without a jury. On October 30, 1986,
Heth was arrested for driving under the influence pursuant to
5 61-8-401, MCA, after being removed from the 4Bs Restaurant
(4Bs) in Bozeman, Montana. Appellant Heth incorporated the
findings of facts of the District Court on this appeal and
therefore we will accept that rendition of facts.
Three 4Bs waitresses saw Heth at the restaurant on the
night of October 30, 1986. They were subpoenaed to testify
at the District Court hearing but no transcript was submitted
on this appeal. According to one of the waitresses Heth was
"[ylelling in a loud manner and attracted attention to
himself." One of the waitresses knew Heth was not to be in
the restaurant due to previous misconduct and she telephoned
the police. This same waitress also believed Heth was
intoxicated because he slurred his words and had difficulty
maintaining his balance. All three waitresses believed Heth
was intoxicated according to the findings of fact of the
District Court.
Officers Kerry Bickle and David Krogstad requested that
Heth leave the 4Bs. At that point, Bickle began recording
Heth's conversation. After an argument with the police
officers, Heth left the 4Bs indicating he would walk home,
leaving his vehicle.
Officer Bickle returned to the 4Bs parking lot shortly
thereafter and noticed Heth's vehicle traveling north on 5th
Street. The officer noted that Heth's vehicle crossed the
center line of the street a number of times and at one
intersection, Heth failed to yield to an oncoming vehicle as
he made a left turn. The officer stopped Heth and requested
him to perform a number of field sobriety tests which Heth
completed in an unsatisfactory manner. Conversations during
this testing were again taped by Bickle.
Heth was arrested for DUI, read his Miranda rights, and
taken to the Gallatin County Detention Center for processing.
Heth, after reading the implied consent form, refused to take
a blood test to determine his blood alcohol content.
Thereafter, one of the officers activated a videotape machine
to film Heth's activities but failed to turn on the volume
and therefore no sound was recorded.
Heth claims he was denied due process because the tape
may have contained exculpatory evidence showing that he did
not have slurred speech. The District Court concluded that
Heth was guilty of DUI based on the testimony of the
waitresses and officers and because Heth was seen driving his
vehicle after leaving the 4Rs.
The State offered the audio cassette recorded by Bickle
which was admitted by the court over defense counsel's
obi ection. The State also offered the video but it was
refused by the District Court after objections by defense
counsel.
Heth's counsel relies on the case of State v. Swanson
(Mont. 1986), 722 P.2d 1155, 43 St.Rep. 1329, for the
proposition that " [plolice have a responsibility to properly
administer exculpatory evidence when they have an opportunity
to do so." Heth's counsel argues that Heth was denied use of
evidence which is generally available to both sides because
of the Bozeman Police Department's policy of using video
tapes. Heth claims:
But for the Police's failure to properly
administer the video, the Appellant would
have had sound to said video and thus
allowed him to present a valid defense to
the charge of drunk driving. With the
sound to the video, the Appellant could
have shown that he did not have slurred
speech. Further, the sound would have
tended to establish the Appellant's
sobriety and his anger with respect to
the way the Police were handling him.
The sound would have established the
rudeness in which the Police treated the
Appellant. Though Police rudeness is not
a defense in this case, the video would
show reasons for Appellant's response.
On the audio tape recording of the sobriety tests, Heth
could not count from 90 to 100 and back to 87 correctly. He
also had difficulty reciting the alphabet. The findings show
when requested to stand with his left foot in front of his
right, Heth stood with his right foot in front of his left.
Heth also had difficulty with the Rhomberg test (feet
together, head back, eyes closed, used to judge equilibrium)
and did not complete a one-legged stand test.
It is clear that Swanson, supra, does not support the
proposition which Heth's counsel asserts. Swanson involved
the negligent handling by the police officers of a
defendant's blood sample that was left unrefrigerated for two
days. Under Montana law, defendants have a statutory right
to request separate blood testing to obtain exculpatory
evidence.
The person tested may, at his own
expense, have a physician or registered
nurse of his own choosing administer a
test, in addition to any administered at
the direction of a peace officer, for the
purpose of determining the amount of
alcohol in his blood at the time alleged
as shown by chemical analysis of his
blood, breath, or urine.
Section 61-8-405 ( 2 ) , MCA.
There is no question that Swanson stands for the
proposition that an accused has a constitutional right to
attempt to obtain exculpatory evidence. Swanson, supra, 722
P.2d at 1157. However, the case does - stand for the
not
proposition that police officers have to assist in the
gathering of such evidence.
Heth argues that police officers have a responsibility
to properly administer exculpatory evidence when they have an
opportunity to do so. However, there is a difference between
"gathering" and "preserving" such evidence. State v. Hayes
(Idaho 1985), 700 P.2d 959, 964.
The officers in Swanson failed to properly preserve the
blood sample taken from the accused.
[Olnce the sample was taken from Swanson,
the police had a duty to see to its
safekeeping .. . [The1 careless handling
of the sample deprived Swanson of his due
process right to gather possible
exculpatory evidence.
Swanson, 722 P.2d at 1158.
Heth contends the police in essence were required to
gather evidence showing that he was not intoxicated by
engaging the audio on the video tape. There is no question
that police officers must allow a defendant to obtain a
separate and independent blood test. But Swanson is limited
to the actual blood test which is mandated by statute.
[Plolice officers are not required to
take the initiative or even to assist in
procuring any evidence on behalf of a
defendant which is deemed necessary to
his defense. [Citations omitted. ] But
in no event can duly constituted
authority hamper or interfere with
efforts on the part of an accused to
obtain a sampling of his blood, without
denying to him due process of law. We
are persuaded to such conclusion in any
instance where the conduct of the
authorities, whether through affirmative
action or by the imposition of their
rules and regulations, imposes any
material obstacle in the path of the
accused. Nor are we impressed that an
accused, as perhaps in the instant case,
might have reached his goal by pursuing a
different course. ..
While the police have no duty to assist
an accused in obtaining independent
evidence of sobriety, they cannot
frustrate such an effort through either
affirmative acts or their rules and
regulations.
Swanson, 722 P.2d 1157-1158.
Only a deliberate or intentional suppression of
exculpatory evidence is a per se violation of due process.
To amount to a denial of due process, negligently suppressed
evidence must be vital to the defense. It must be more than a
mere suppression, in that the defense must show the evidence
was material and of substantial use. Finally, the evidence
must be exculpatory meaning it " [wlould have tended to clear
the accused of guilt, to vitiate a conviction." Brady v.
Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215;
S t a t e v. Patterson ( 1 9 8 3 ) , 203 Mont. 509, 512-513, 662 P.2d
291, 293. Heth h a s n o t shown t h a t t h e v i d e o sound was v i t a l
t o h i s defense e s p e c i a l l y i n l i g h t of the audio t a p e t h a t
Bickle recorded. The t a p e made by B i c k l e d o e s n o t p r o v i d e
Heth w i t h any e x c u l p a t i n g evidence. Although the video's
a u d i o may have been s u b s t a n t i a l l y used by d e f e n s e c o u n s e l , we
c a n n o t a g r e e t h a t i t would have been e x c u l p a t o r y .
The a d m i n i s t r a t i o n o f a v i d e o and a u d i o t e s t , just a s
in Hayes, supra, falls into the category of gathering
evidence. P o l i c e o f f i c e r s d o n o t have an a f f i r m a t i v e d u t y t o
search o u t favorable evidence f o r t h e defendant a s t h e S t a t e
has appropriately pointed o u t . S t a t e v . Ames (1daho 19851,
707 P.2d 484, 486; People v. Moore (Colo. 1 9 8 5 ) , 701 P.2d
The d e f e n d a n t was n o t d e n i e d due p r o c e s s under Brady o r
Swanson. Police officers may not frustrate or hamper a
defendant's right to obtain exculpatory evidence but they
have no affirmative duty to gather such evidence absent
4
'
e x p r e s s s t a t u t o r y mandate. 4
Affirmed . /'
1
Justice
W concur:
e
n
Justices