NO. 88-445
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
STATE OF MONTANA,
plaintiff and Respondent,
-vs-
WALLIS J. THOMPSON,
Defendant and Appellant.
APPEAL FROM: District Court of the ~hirteenth~udicial~istrict,
In and for the County of Stillwater,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Moses Law Firm; Charles F. Moses, ~illings,Montana
For Respondent:
Marc Racicot, Attorney General, Helena, Montana
Clay R. Smith, Asst. Atty. General, Helena
C. Ed Laws, Stillwater County Attorney, Columbus,
Montana
--- -
Submitted on Briefs: March 31, 1989
Decided: May 17, 1989
Mr. Justice John Conway Harrison delivered the Opinion o f the
Court.
This case comes to us on appeal from a jurv verdict in
the Thirteenth Judicial District, Stillwater County, the
Honorable Diane G. Rarz presiding, finding the appellant,
Wallis J. Thompson, guilty of the offense of Driving Under
the Influence of Alcohol, a violation of § 61-8-401, MCA. We
affirm.
On January 7, 1987, Deputy Clifford Rr0ph.y arrested
appell-ant for the offense of driving under the influence of
alcohol. After his arrest., Offi.cer Brophy drove appellant to
the sheriff's office in Columbus, Montana. At trial, the
parties stipulated that during the drive to Columbus, Officer
Brophy informed appellant of his rights under Miranda v.
Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
Once at the sheriff's office, Officer Brophy advised
appellant of his rights under Montana's Implied Consent Law,
pursuant to S 61-8-402, MCA. Appellant refused to take a.
blood, breath or urine test. Next, appellant performed a
series of field sobriety tests, including reciting the
alphabet, walking a straight line and holding his foot six
inches off the floor for approximately thirty seconds. Upon
completion of the sobriety tests, Officer Rrophy again
advised appellant of his Miranda rights. Appellant signed a
waiver of his Miranda guarantees. Thereafter, Officer Brophy
questioned appellant in d-etail regarding the incident. An
audio-video tape recorded appellant's comments and actions
while in the sheriff's office, including those made during
the sobriety tests, the reading of Miranda warnings, his
waiver of rights, and questioning by Officer Brophy.
On March 4, 1987, appellant was found guilty of Driving
Under the Influence of Alcohol by a justice court jury.
Appellant appealed to the District Court. On April 21, 1988,
a District Court jury also found appellant guilty of the
offense of Driving Under the Influence of Alcohol. The
District Court sentenced appellant to 60 days in jail with
all but one suspended, issued a $300 fine, required
attendance in an Assessment Course and Treatment School (ACT)
and ordered payment of court costs totaling $421.57.
Appellant raises the following issues on appeal.
1. Did the District Court err when it allowed the
audio-video tape into evidence?
2. Did the District Court err when it limited the
evidentiary purpose of appel-lant's Exhibits A and B ?
The Fifth Amendment to the United States Constitution
and Art. TI, sec. 25 of the Montana Constitution, provides
that no person be compelled to testify against himself in
a crimjnaI proceeding. However, we distinguish compellins
"communications" or "testimony" from real or oh jective
evidence taken from the accused. Schmerber v. Califor~ia
(19661, 384 U.S. 7'57, 86 S.Ct. 1826, 16 L.Ed.2d 908; State v.
Jackson (1983), 306 Yont. 338, 672 P.2d 255; State 17.
Arrnfie1.d (1984), 214 Mont. 239, 693 P.2d 1226. In these
instances, we have consistent!_y stated that the privi leae
against self-incrimination does not extend to real or
ob!ec+ive evidence. State v. Finley 11977), 173 Mont. 163,
566 P.2d 1119.
Appellant contends the video tape should have b e e n
excluded as a denial of his constitutional rights, arguincr
that the actions and verbal comments made during the field
sobriety tests were testimonial in nature. Further, because
he was in the custody of the police, appellant argues his
comments made during the taping were a result of custodial
interrogation and therefore, required Miranda warnings.
The crucial inquiry in this case--whether the
audio-video tape of the comments and actions of the appellant
ronstitute6 constitut.ionally prohibited testimonia!
compulsion or merely real, physical, or objective
evidence--is similar to the inquiry presented in Finley. In
that case, we held that the video tape was objective evidence
and, therefore, outside the protection of the Fifth Amendment
to the United States Constitution and Art. 11, sec. 25 of the
Montana Constitution. Finley, 566 P.2d at 1121. The video
tape demonstrated defendant ' s performance of sobriety tests
and his manner of speaking:
[TIhe audio-video tape was introduced
into evidence not for the incriminating
content of the words uttered by
defendant, but as evidence helpful to the
jury in understanding the testimony of
the police officers and employees who
observed defendant's unsteady walk and
slurred speech in the police station.
Finley, 566 P.2d at 1121. See also, State v. Johnson (Mont.
1986), 719 P.2d 1248, 43 St.Rep. 913; Armfield. We conclude
the audio-video tape in the present case is objective
evidence and not entitled to Fifth Amendment protection.
Appellant attempts to distinguish Finley by stating
that Finley was advised of his Miranda rights prior to the
taping and appellant Thompson was not so advised. While we
find. appellant ' s assertion questionable in light of the
stipulation entered into between the parties before trial,
our earlier holding eliminates the need for discussion of
this issue.
Because we hold the audio-video tape of
defendant in the police station was
objective evidence, unprotected by
defendant's constitutionaL privilege
against self-incrimination, the holding
in Miranda is inapplicable to the fact-s
of this case.
Finley, 566 P.2d at 1122. Therefore, we do not determine
whether the Miranda warning, stipulated by the parties as
given +o appellant in the police car, woul-ci have sufficed to
sustain any incriminating testimoni.al statements.
Further, we reject appellant's charge of custodial
interrogation. Officer Rrophy merely requested appellant
perform a series of sobriety tests. At trial, Judge Barz
viewed the audio-video tape and concluded that defendant's
spoken words did not include any testimonial information. We
agree. Our reading of the transcribed audio-video tape
reveals that the officer did not interrogate appellant prior
to advising him of his Miranda rights, nor question appellant
while he performed the sobriety tests. Though appellant
chose to make voluntary comments during the tests, these
comments were not the result of interrogation. Voluntary
statements are not entitled to constitutional protection
under Miranda. Miranda, 384 IJ.S. at 478, 86 S.Gt. at 1630,
16 J~.Ed.2d at 726.
The second issue raised on appeal is whether the
District Court erred in limiting the purpose for which
appellant's Exhibits A and R were admitted into evidence.
Exhihits A and 3 are pamphlets published by the Montana
Highway Traffic Safety Division of the Department of Justice
containing information regarding alcohol consumption. The
District Court admitted the pamphlets for the limited purpose
that they were publications of the Department of Justice of
the State of Montana, and admonished the jury that the
pamphlets were not admitted for their truth or accuracy.
Appellant argues that under Rule 902(5), M.R.Evid., the
pamphlets are authentic and an exception to hearsay
prohibitions under the public records or reports exception,
Rule 803(8), M.R.Evid. While we agree that the pamphlets are
self-authenticating, they do not fall ~7i.t.hin the public
records exception.
Rule 803(8), M.R.Evid., provides in part:
The following are not excluded by the
hearsay rule, even though the declarant
is available as a witness:
(8) Public records and reports. To the
extent not otherwise provided in this
paragraph, records, reports, statements,
or data compilations in any form of a
public office or agency setting forth its
regularly conducted and regularly
recorded activities, or matters observed
pursuant to duty imposed by law and as to
which there was a duty to report, or
factual findings resulting from an
investigation made pursuant to authority
granted by law. The following are not
within this exception to the hearsay
rule: (i) investigative reports by
police and other law enforcement
personnel; (ii) investigative reports
prepared by or for a government, a public
office, or an agency when offered by it
in a. case in which it is a
party; (iii) factual findings offered
by the government in criminal
cases; (iv) factual findings resul-ting
from special investigation of a
particular complaint, case, or incident;
and (v) any matter as to which the
sources of information or other
circumstances indicate lack of
trustworthiness.
Appellant's argument relies upon a federal decision
addressing the public records exception. Ye note, however,
that the commission rejected the Federal Rule, and instead
adopted the Uniform Rule because "[ilt was clearer than the
Federal Rule and because it expressed better policy with
certain reports in requiring the official to testify rather
than admitting his report as a hearsay exception." Rule
803(8), M.R.Evid., Commission Comment, reprinted in 3 MCA
Annotations at 354 ( 1 9 8 8 ) . Appellant's reliance is therefore
inappropriate.
To meet this exception, appellant must demonstrate the
pamphlets were either derived from the public office or
aaency's regularly conducted and recorded activities,
published as a result 01 a duty imposed by law upon the
public office or agency, or resulted from an investigation
made pursuant to authoritv granted by law. Rule 803 ( 8 ) ,
M.R.Evid. Appellant failed to lay a proper foundation to
demonstrate that the informat!onal pamphlets fit within one
of these three categories.
We find the DTstrict Court properly admitted the
exhibits for the limited purpose that they are publications
o f the Department of Justice of the State of Montana.
.
Af f i rmed
We concur:
Mr. Justice ~ i l l i a mE. Hunt, Sr., dissenting:
I dissent. The statements made by Thompson during the
videotaping are not objective evidence. Therefore, the
statements are protected under the ~ i f t hAmendment.