97-627
No. 97-627
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 137
STATE OF MONTANA,
Plaintiff and Respondent,
v.
ROY JEAN COUTURE,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Rebecca T. DuPuis and C. Edward Hayes, Attorneys at Law,
Polson, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders,
Assistant Attorney General, Helena, Montana
Deborah Kim Christopher, Lake County Attorney; Mitchell A.
Young,Deputy Lake County Attorney, Polson, Montana
Submitted on Briefs: May 7, 1998
Decided: June 2, 1998
Filed:
__________________________________________
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Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Roy Jean Couture (Couture) appeals from the decision of the Twentieth
Judicial District Court, Lake County, denying his motion to dismiss a charge
for driving under the influence (DUI), 6th offense, and his motion to preclude
use of three prior DUI convictions in sentencing. We affirm.
Factual and Procedural Background
¶2 On December 8, 1996, Couture was involved in a minor traffic accident
within the exterior boundaries of the Flathead Indian Reservation. Polson City
Police Officer Ronald Boyce (Boyce) responded to the scene and determined
that Couture was a member of the Confederated Salish and Kootenai Tribes.
Boyce observed that Couture appeared to be extremely intoxicated. Couture
was unable to show proof of insurance, and Boyce learned that Couture's
driver's license had been suspended/revoked.
¶3 Boyce called a Tribal officer to the scene to issue citations to Couture
for driving with a suspended license and driving without liability insurance.
Boyce then arrested Couture for DUI and transported him to the Lake County
Sheriff's Office. Couture refused to take a breath test and passed out several
times during DUI processing.
¶4 On December 9, 1996, a complaint was filed in Justice Court charging
Couture with DUI. However, on December 12, 1996, the County Attorney
was granted leave to file an information in the District Court charging Couture
with felony DUI, 6th offense. Couture pled guilty in the Tribal Court to
driving with a suspended or revoked license and operating a motor vehicle
without valid liability insurance, both misdemeanors. Subsequently, Couture
moved the District Court to dismiss the DUI, claiming it violated 46-11-504,
MCA, Montana's double jeopardy statute. Couture also moved to preclude use
of three of his prior DUI convictions in sentencing. The District Court denied
the motions. Couture pled guilty to felony DUI, reserving the right to appeal
the denial of his motions. Couture presents two issues on appeal:
¶5 1) Did the District Court err in denying Couture's motion to dismiss the
felony DUI charge after he pled guilty to two misdemeanor traffic offenses in
the Tribal Court?
¶6 2) Did the District Court err in relying on Couture's prior DUI
convictions in sentencing?
Discussion
I
¶7 1) Did the District Court err in denying Couture's motion to dismiss the
felony DUI charge after he pled guilty to two misdemeanor traffic offenses in
the Tribal Court?
¶8 The District Court concluded that Couture's subsequent prosecution for
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DUI in district court was not barred by § 46-11-504, MCA, as a matter of law.
This Court reviews a district court's conclusions of law to determine whether
the court's interpretation of the law is correct. State v. Gould (1995), 273
Mont. 207, 219, 902 P.2d 532, 540.
¶9 Montana statutory law provides criminal defendants with greater
protection against double jeopardy than the traditional double jeopardy
"elements" test set forth by the United States Supreme Court in Blockburger
v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. State v.
Tadewaldt (1996), 277 Mont. 261, 268, 922 P.2d 463, 467.
Section 46-11-504, MCA (1995), provides:
When conduct constitutes an offense within the concurrent
jurisdiction of this state and of the United States or another state
or of two courts of separate, overlapping, or concurrent
jurisdiction in this state, a prosecution in any other jurisdiction
is a bar to a subsequent prosecution in this state under the same
circumstances barring further prosecution in this state if . . . the
first prosecution resulted in an acquittal or in a conviction and
the subsequent prosecution is based on an offense arising out of
the same transaction . . . .
Thus, double jeopardy under the Montana Code prevents multiple prosecutions
for conduct arising out of the same transaction. This Court, in State v. Sword
(1987), 229 Mont. 370, 747 P.2d 206, developed a test for determining
whether a subsequent prosecution violates double jeopardy pursuant to § 46-11-504,
MCA: (1) defendant's conduct constitutes an offense within the
jurisdiction of both courts; (2) the first prosecution results in an acquittal or a
conviction; and (3) the subsequent prosecution is based on an offense arising
out of the same transaction. We have further explained that because § 46-11-504,
MCA,
is written in the conjunctive, all three factors must be met before
a subsequent prosecution is barred. Tadewaldt, 922 P.2d at 466. The District
Court determined that Couture's offenses of driving with a suspended license,
operating a motor vehicle without valid liability insurance, and driving under
the influence of alcohol did not "arise out of the same transaction" as
contemplated by § 46-11-504, MCA, and thus the subsequent prosecution in
District Court for DUI was not barred.
¶10 Couture, however, argues that the facts of this case satisfy the three-factor
test.
Couture asserts, first, that a felony DUI committed on the
reservation is an offense over which both the Tribal Court and District Court
have concurrent jurisdiction. Second, Couture states that he was convicted of
the misdemeanor offenses in Tribal Court. Finally, Couture maintains that the
two misdemeanor traffic offenses and the felony DUI arose out of the same
transaction. In support of his argument, Couture contends that driving with a
suspended license and without liability insurance are incidental to DUI
because, had he not been detained for DUI, the police officer would have had
no particularized suspicion on which to base a stop for the misdemeanor
offenses.
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¶11 We reject Couture's argument regarding the third factor, i.e., that his
offenses arose out of the same transaction. Section 46-1-202(22), MCA,
defines "same transaction" as "conduct consisting of a series of acts or
omissions that are motivated by . . . a purpose to accomplish a criminal
objective and that are necessary or incidental to the accomplishment of that
objective. . . ." This Court has interpreted the statutory definition of "same
transaction" as it applies to § 46-11-504, MCA. For example, in Tadewaldt,
the defendant pled guilty to misdemeanor DUI in municipal court and was
subsequently charged with felony possession of drugs in the district court.
Despite the fact that Tadewaldt's offenses resulted from the same arrest, we
held that the offenses did not arise out of the same transaction for purposes of
double jeopardy. We explained that, because the drugs forming the basis of
the criminal possession charge had not been ingested and did not contribute to
Tadewaldt's impairment, the conduct underlying Tadewaldt's "criminal
objective" of DUI was unrelated to his possession of dangerous drugs. More
specifically we determined that "Tadewaldt's conduct in possessing the
dangerous drugs was not motivated by a purpose to accomplish the 'criminal
objective' of DUI, nor was it necessary or incidental to that 'objective.' "
Tadewaldt, 922 P.2d at 466. Thus, we held that Tadewaldt's conduct did not
meet the definition of "same transaction" as set forth in § 46-1-202(22), MCA.
¶12 Likewise, Couture pled guilty in Tribal Court to misdemeanor driving
without a license and proof of insurance and was subsequently charged with
felony DUI in the District Court. This was not a subsequent prosecution
arising out of the same transaction for double jeopardy purposes. Couture's
driving without a license and without proof of insurance was unrelated to his
criminal objective of DUI--ingesting alcohol and driving a vehicle while under
the influence of alcohol. We determine that the District Court correctly
interpreted the statutory prohibition against double jeopardy as set forth in §
46-11-504, MCA, by holding that Couture's offenses did not arise out of the
same transaction.
II
¶13 2) Did the District Court err in relying on Couture's prior DUI
convictions in sentencing?
¶14 Couture argues that he was denied his right to an attorney in three
former DUI convictions in August 1994, April 1992, and August 1990. Thus,
Couture asserts that the District Court erred in considering those DUI
convictions during sentencing.
¶15 A rebuttable presumption of regularity attaches to a prior DUI
conviction during a collateral attack such as the one presented by Couture.
The defendant may overcome this presumption by direct evidence of
irregularity. State v. Big Hair, 1998 MT 61, ___ P.2d ___, ¶16, 55 St.Rep.
257, ¶16; State v. Olson (1997), 283 Mont. 27, 32, 938 P.2d 1321, 1324. In
this case, Couture presented two affidavits in support of his motion, his own
and his wife's. Both affidavits state that Couture was not advised of his right
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to counsel in the prior DUI proceedings. Couture alleges that the judge simply
marked an "X" in front of the lines on the acknowledgment of rights form
which he was expected to sign. Couture and his wife both state that in 1990
and 1992, the court accepted his guilty plea without advising him of his rights.
The State concedes that the affidavits constitute direct evidence to rebut the
presumption of regularity.
¶16 Therefore, the burden shifted to the State to prove by direct evidence
that the prior conviction was not obtained in violation of the defendant's rights.
The State submitted the acknowledgment of rights forms from each prior
conviction to the District Court. The forms indicate that Couture was advised
of his right to counsel and waived that right in each proceeding. The State
argues that the District Court was entitled to give more weight to these forms
than to the affidavits of Couture and his wife.
¶17 This Court was presented with a similar situation in Olson. In that case,
we recognized that, when determining whether the defendant knowingly and
voluntarily waived his right to counsel, the district court is required to consider
the evidence and weigh it against the defendant's representations before
deciding whether the State has satisfied its burden of proof. Olson, 938 P.2d
at 1325. Moreover, we held that the weight of the evidence and the credibility
of the witnesses are exclusively within the province of the district court and
when the evidence conflicts, the district court is in the best position to make
the necessary inferences and determine which evidence is more persuasive.
Olson, 938 P.2d at 1325.
¶18 Likewise, in this case, the District Court was presented with Couture's
affidavits on the one hand and with the State's proof on the other. The District
Court was in the best position to weigh that evidence and make a
determination as to which should prevail. This Court will not disturb that
decision. The District Court did not err in relying on Couture's prior DUI
convictions in sentencing. Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ KARLA M. GRAY
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