No. 14210 INTHESUPREME CCUR!I' OFTHE!STATEOFMONTANA 1978

STATEOF !rnANA, Plaintiff and Respondent,

-VSJAMES DOELAS

### KIRKALDIE, DefendantandAppellant.

Applfm: DistrictCourtof theFourthJudicialDistrict, HonorableEdward T. Dussault, Judgepresiding. Counselof Record: For Appellant: &bralest Volinkatyand Harr, Missoula, Montana Juliomrales arguedandArthur B. Harrargued,Missoula, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, &bntana Mike mathargued, AssistantAttorney General, Helena, Pbntana 

### mbert L. Deschamps, I11argued,CountyAttorney, Missoula, Montana

Sulxnitted: September 12, 1978 Decided: 

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L.

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# si@Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Defendant appeals from his convictionof negligent homicide following a jury trial in the District Court of Missoula County. Defendant is JamesDouglas Kirkaldie, the driver of a 1972 Buick Skylark inwhich a passenger, 15year old Douglas Schaffer, was killed. The accident occurred onApril 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 Schafferdied about 1:25 a.m. Following a coroner's inquest, defendantwas charged with negligent homicide and entered a plea of not guilty. A jury trialwas held in the District Court of Missoula County commencing on November 10, 1977,which resulted in a verdict of guilty. Defendantwas sentenced to a term of 10years 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 ofMissoula. 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 JoeMandala who ran a restaurant there. From this point on, two sharply differing versions of the facts emerged at the trial. According to Jay Bush,defendant drove erratically to the Midi Mart store where defendantpurchased a sixpack 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. Defendantwould 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 proceeded west. About a mile and a half down the freewayon a slight curve,defendant's car drifted off the pavement, into the gravel

on the shoulder,and onto themedian. According to the highway patrolman, the car was travelling at a speed of at least 80miles

an hour, rolled over five times,and travelled over 200 yards from the point it left the pavement to where it started to roll. Defendantdenied 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 Schafferdrove 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 60miles an hour. As he was approaching the scene of the accident,he started to pass a pickup truck. Itbegan moving over into thepassing lane and in

an attempt to avoid it,his wheels hit the gravel shoulder pulling him onto the median and causing him to loose control of his

car. Defendant consistentlymaintained he was not drunk.When the highway patrolman arrived at the scene of the accident, he could smell alcohol on defendant's breath. He advised defendantof his constitutional rights. Although the officer feltdefendantwas intoxicated, he did not place him under arrest. The officer asked defendant to submit to a blood alcohol test. Defendantrefused. At the hospital, the officer again asked defendant to submit to a blood alcohol test. Defendant again refused. The deputy coroner made a similar requestwhich defendant refused. The deputy coroner called the sheriffwho was a neighbor and friend of defendant; he could not remember what the sheriff said to defendant,but did remember that the sheriffwas concerned about defendant's condition. The deputy coroner also called the county attorneywho advised him to get a blood sample. The deputy coroner again requested defendant to give a blood sample. Defendant again refused,explaininghe 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 defendant's diabetes would not interferewith 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 samplewas drawn that revealed a blood alcohol level of 0.28. Defendanthad not been arrested,a search warrant had not been obtained, and defendant had not signed a written consent form. Prior to trial defendantmoved to suppress the results of the blood alcohol test and for a change of venue. At the suppression hearing defendant contended his consent to having blood drawnwas 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 twonewspaper articles in theMissoulianwhich he claimed deprived him of a fair trial inMissoula County. The District Court denied both motion. Defendant advances four specificationsof 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. Theprinciple issue in this appeal is the trial court's refusal to suppress the results of the blood alcohol test. Defendant argues that his consent to the testwas 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 seizureprohibited by the State and Federal 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 defendantwhich he admits. The issue turns on whether defendant's consent was voluntary of was coerced by psychologicalmeans. 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. Schmerberv. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L Ed 2d 908. However, a search and seizurewith the consent of defendant is not prohibited. Statev. Williams (1969), 153Mont. 262, 455 P.2d 634. In this state,evidence concerning the taking, analysis and result of a blood sample taken from defendantwith his con-sent is admissible in evidence. Statev. Haley (1957),132 Mont. 366, 318 P.2d 1084. The consentmust be voluntary with voluntarinessdetermined by an examination of all of the circumstances surrounding the consent. Schnecklothv. Bustamonte 8;.;' (1973),412 U.S. 218, 93 S.Ct. 2041, 36 L Ed 2d 584. 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. Hemaintains that he was never told by the doctor that the blood sample to which he ultimately consented was to be used for legalpurposes or that he could refuse to give a blood sample. Defendant testified that when the doctor asked for a blood sample, he simply "assumed" itwas for a blood sugar test. He admits that the doctor discussed with him the legal ramificationsof refusing a blood alcohol test. The doctor testified to a different version of his conversation 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 ramificationsof 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 itwas in his best interests to have this done. The doctor testified that he made it clear to defendant that he did not have to give blood, but did not recall specifically and explicitly discussing that under state law,defendantwas not required to give a blood sample. The credibility of the witnesses at a suppression hearing is properly determined by the trial court that heard testimony and observed the witnesses. United Statesv. Owens (8thCir. 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 finderof 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. Davisv. 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: "Almostwithout exception, the requirement of a knowing and intelligent waiver has been applied only to those rightswhich the Constitution guarantees to a criminal defendant in order to preserve a fair trial.

"Theprotections of the FourthAmendment are of a wholly different order, and have nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial. 

# ... [TlheFourthAmendment protects the 'security of one's privacy against arbitrary intrusion by the police 

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# ...I II Schnecklothv. Bustamonte, supra.

There is substantial evidence that defendantwas 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 defendant'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 theMissoulian amounted to prejudicialpretrialpublicity 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 statutorypresumption 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 accident; and that the county attorney's office indicated that perjury 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 reports and would be unable to receive a fair trial inMissoula 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. Statev. Logan (1970), 156 Mont. 48, 573 P.2d 833; State

v. Warrick (1968), 152Mont. 94, 446 P.2d 916. Affidavits stating opinions and not factsdo not constitute a showing of an abuse of discretion. Statev. Barick (1964),143Mont. 273, 389 P.2d 170; State ex rel. Hanrahanv. Dist. Ct. (1965),145Mont. 501, 401P.2d 770. Here the news articleswere published approximately six months prior to trial. There isnothing to indicate that any of the jurors had even read the articles. There is no showing that any jurorwas tainted or predisposed by the appearance of thesearticles. 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 aremainly that three of his proposed instructions that he argues should have been given are instructionsNos. 7, 8 and 9. Proposed instructionNo. 

### 7 is on involuntary intoxication. It reads: "An intoxicated person is criminally responsible for his conduct unless his intoxicated condition is involuntarilyproduced and deprives him of his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law." The State objected to this instruction because defendanthad not presented any evidence showing that his intoxicationwas "involuntarilyproduced". 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 presented at trial. Statev. Miner (1976),169Mont. 260, 546 P.2d 252. Here therewas none, so the proposed instructionwas properly refused.Proposed instructionNo. 8 also dealt with intoxication. It reads: "An intoxicated conditionmay be taken into consideration 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 defendant's state of mind was not an issue in this case. The defendant was chargedwith negligent homicide. Section 94-5-104,R.C.M. 1947,definesnegligent homicide as criminal homicide which is committed negligently. Unlike deliberate homicide, which requires that the offense be committed purposelyor knowingly,negligent homicide does not require suchpurpose

or knowledge. Negligent homicide only requires a gross deviation from a reasonable standard of care. Criminal negligence can arise as a result of intoxication. Defendant's mental state at the time he was driving his

carwas not in issue. Issuewaswhether 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 instructionNo. 9 dealt with proximate cause. It stated: "Youare 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 pavement by another vehicle then you shall return a verdict of not guilty." This instructiondealt 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 reasonabledoubt and the elements of the offense charged. Under the given instructions, if the jury believed defendant's account of the accident, they could have found in his favor. However, itwas 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. Statev. Lewis (1976), 169Mont. 290, 546 P.2d 518. Where the jury is adequately instructed,no error occurs in refusing a proposed instructionwhich is already covered. Here the jurywas fully instructed and defendant's attorney had a full opportunity to argue the merits of his defense. See State

v. Smith (1975),168Mont. 93, 541 P.2d 351. We find no error here.The final issue concerns the sufficiency of the evidence to sustain his conviction. The jury is the fact-finding body and its decision is controlling. Statev. Fitzpatrick (1973),163Mont. 220, 516 P.2d 605. Given the required legalminimum of evidence,we will not substituteour determination of the facts for that of the jury. Statev. Merseal (1974,167Mont. 412, 538 P.2d 1366. If substantial evidence is found to support the verdict, it will stand. State v. McKenzie (1978), Mont

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## , 35 St.Rep. 759; Statev. 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.