96-219

No. 96-219

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

STATE OF MONTANA,

Plaintiff and Respondent,

v.

KIM MICHAEL SOL,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Douglas G. Harkin, Judge Presiding.

COUNSEL OF RECORD:

For Appellant:

Gary W. Wolfe, Sol & Wolfe, Missoula, Montana

For Respondent:

Honorable Joseph P. Mazurek, Attorney General;

Michael L. Fanning, Assistant Attorney General,

Helena, Montana

Robert L. Deschamps III, County Attorney, Missoula

Montana

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Submitted on Briefs: February 20, 1997

Decided: March 20, 1997

Filed:

__________________________________________

Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court.

 Kim Michael Sol appeals from two orders of the Fourth Judicial

District Court, Missoula County, denying his motions to dismiss a

charge of driving under the influence of alcohol and/or drugs. We

affirm.

 The issues are:

 1. Did the District Court err when it refused to grant Solþs

motion to dismiss because the Justice Court clerk transmitted the

record of the case to the District Court thirty-one days after Sol

filed his notice of appeal, instead of within thirty days as

required by 46-17-311(3), MCA? 

 2. Did the District Court err when it refused to grant Solþs

motion to dismiss based on the Stateþs failure to supply a witness

and exhibit list?

BACKGROUND

 Sol was arrested on June 5, 1994, by Missoula County Deputy

Sheriff Phil Tillman and was charged with driving under the

influence of alcohol in violation of 61-8-401, MCA. At booking,

he submitted to a breath test. The Intoxilyzer 5000 indicated that

Sol's breath alcohol concentration was .184. 

 Sol pleaded not guilty to an amended complaint charging him

with driving under the influence of alcohol and/or drugs. The

complaint was amended because there was evidence that Sol had

inhaled Primatene Mist, in addition to having consumed alcohol, on

the evening of his arrest. 

 Sol initiated discovery regarding the testimony of the Stateþs

proposed expert witness, Phil Lively, of the State Crime Lab. In

response to Solþs discovery motions, the Justice Court ordered the

State to make Lively available regarding his knowledge of cases in

which the Intoxilyzer 5000 had been shown to be unreliable. 

 On April 25, 1995, in response to an April 24 letter from

Solþs attorney, Gary Wolfe, asking the State if it maintained that

Primatene Mist had no effect on the intoxilyzer, the Stateþs intern

prosecutor, Kirsten LaCroix, informed Wolfe that Sol should obtain

his discovery from Lively. The letter stated:

Last fall . . . Mr. Sol requested that the State provide

him with all tests done on the Intoxilyzer 5000 since its

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purchase. The Court directed Mr. Sol to contact Phil

Lively to inquire about relevant testing done. To my

knowledge, Mr. Sol has declined to do this. Regardless,

Phil will be available after May 8, 1995, to answer the

questions that you pose.

Please call Mr. Lively after May 8, to discuss the

experiments, as well as the citation to the journal you

are interested in. His telephone number is . . . .

 Sol was convicted in Justice Court of driving under the

influence of alcohol and/or drugs. On June 22, 1995, he appealed

to the District Court for a trial de novo. The Justice Court clerk

transmitted the record on July 25, 1995, one day after the thirtyday deadline required by 46-17-311(3), MCA. After receiving the

record, the District Court ordered both parties to submit discovery

in compliance with 46-15-322, MCA. 

 On August 15, 1995, Sol moved to dismiss the DUI charge, based

on the Justice Court clerkþs one-day delay in transmitting the

record. He subsequently filed a second motion to dismiss and a

motion in limine to prevent the State from calling witnesses or

introducing evidence. Sol based this motion on the Stateþs failure

to file notice of witnesses and exhibits, and to disclose witness

statements and exculpatory evidence, as directed by the court's

discovery order. The State did not file a witness and exhibit list

in District Court because it planned to use the same evidence as in

Justice Court. 

 The court denied Sol's first motion to dismiss and resolved

his second motion at two hearings and during trial. At the first

hearing, the State confirmed that all of the evidence it was going

to present was the same evidence used in Justice Court. The

District Court denied Sol's second motion to dismiss, but limited

the State's case to the evidence presented in Justice Court or

disclosed in preparation for the Justice Court trial. 

 At a hearing held on October 10, 1995, Sol attempted to bar

evidence concerning tests that Lively performed regarding bronchial

dilators on the Intoxilyzer 5000. Sol claimed that the Justice

Court had barred similar evidence because the State failed to

disclose an expert witness statement and to supply a summary of the

tests. The court questioned intern prosecutor Dylan Jackson to

determine whether Sol knew about the Primatene Mist tests. The

intern explained that the tests had been disclosed, and that

LaCroix's notes indicated that she had written Sol's attorney on

April 25, 1995, explaining how he could obtain information about

them. The court granted Sol's motion to exclude the tests because

they were not properly disclosed.

 Sol's case proceeded to trial on October 10, 1995. During the

Stateþs direct examination of Lively, Sol objected, arguing that

the State's questions were barred by the courtþs earlier ruling. 

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The court ruled that the State could offer evidence which had been

disclosed to Sol through direct discovery or during the course of

the Justice Court trial. 

 The court then asked Sol if he was aware of tests Lively had

conducted involving Primatene Mist. Sol responded that he was

unaware of the tests, their results, or how they were conducted. 

The court then directed the intern to summarize Lively's proposed

testimony and ordered Sol to raise his hand if he heard something

new. Sol did not raise his hand. He eventually admitted that the

State had supplied him with the publication about which Lively

would testify. He also admitted knowledge of the tests:

I heard--Well, the part about a bunch of tests way in the

past that he doesn't have any results on, I don't recall

that at all. I recall him specifically saying, I did a

test with four people a couple of months ago, that was in

the May trial.

 Sol then argued that the State was required to supply him with

its exculpatory evidence in writing. The court concluded that the

State had made the reports available for examination and

reproduction. It determined that Sol knew there was a test, and

that if he went to the Crime Lab and saw there was a written

report, he could have obtained a copy. Based on this discussion,

the court ruled that the State could question Lively about the

Primatene Mist tests because Sol had adequate notice. The court

received as exhibits a letter from Sol's attorney to the State,

dated April 24, 1995, and LaCroix's reply letter of April 25, 1995.

 On October 12, 1995, a jury convicted Sol of driving under the

influence of alcohol. Sol appeals from the District Court's denial

of his motions to dismiss. 

 1. Did the District Court err when it refused to grant Sol's

motion to dismiss because the Justice Court clerk transmitted the

record of the case to the District Court thirty-one days after Sol

filed his notice of appeal, instead of within thirty days as

required by 46-17-311(3), MCA?

 Sol argues that the District Court erred when it denied his

motion to dismiss based on the Justice Court clerkþs one-day delay

in transmitting the record. The District Court ruled that the

transmittal of the record is a statutory obligation imposed on the

Justice Court, and that the one-day delay did not prejudice Sol's

speedy trial rights.

 The grant or denial of a motion to dismiss in a criminal case

is a question of law. City of Helena v. Danichek (Mont. 1996), 922

P.2d 1170, 1172, 53 St.Rep. 767, 768. The standard of review of a

district courtþs conclusion of law is plenary, and we review it to

determine whether the conclusion of law is correct. Danichek, 922

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P.2d at 1172. 

 Section 46-17-311(3), MCA, provides:

Within 30 days of filing the notice of appeal, the court

shall transfer the entire record of the court of limited

jurisdiction to the district court.

 This Court has consistently held that strict compliance with

 46-17-311, MCA, is necessary to perfect an appeal. State v.

Speith (1990), 244 Mont. 392, 394, 797 P.2d 221, 222. Perfecting

an appeal is the duty of the appellant, Speith, 797 P.2d at 222,

while physically transmitting the record is the responsibility of

the Justice Court. State v. Dubray (1982), 201 Mont. 327, 329-30,

654 P.2d 970, 971-72. 

 Under 46-17-311(3), MCA (1989), an appellant was charged

with the duty of perfecting the appeal and the consequences for

failing to do so. Unlike 46-17-311(3), MCA (1989), the justice

court, not the appellant, now transfers the record to the district

court. See 46-17-311(3), MCA; Cf. 46-17-311(3), MCA (1989). 

Under 46-17-311(3), MCA, an appellant perfects an appeal by

filing written notice of appeal within ten days of judgment. 

 Sol cites cases involving appeals initiated by defendants,

such as Speith, 797 P.2d at 221; State v. Hartford (1987), 228

Mont. 254, 741 P.2d 1337; and State v. Main (1981), 191 Mont. 304,

623 P.2d 1382, which lead him to assume that 46-17-311, MCA

(1989), has only been strictly construed against defendants. This

is incorrect. Based on this assumption, Sol argues that the

Justice Court clerk's failure to comply with 46-17-311, MCA,

should be strictly construed against the State. We disagree. 

 We have strictly construed 46-17-311, MCA, against the State

when it failed to perfect an appeal. See State v. Province (1987),

226 Mont. 425, 426, 735 P.2d 1128, 1129. The plain language of 

 46-17-311, MCA, requires the justice court to transfer the entire

record of the court of limited jurisdiction to the district court. 

The statute does not impose a duty on the prosecution to transmit

the record nor does it penalize the prosecution for failing to do

so.

 Dubray, 654 P.2d at 970, addressed the remedy under 46-17-

311, MCA, for a defendant who filed a timely notice of appeal from

justice court and instructed the clerk to transmit the record to

district court, but the clerk failed to do so. The district court

dismissed the defendantþs appeal as untimely. This Court

reinstated the appeal, reasoning that the "justice court has

complete control over the record of a proceeding in its court and

should be responsible for any physical transmittal of the record." 

Dubray, 654 P.2d at 971. Appeal statutes should not be a trap for

the unwary but should be a device to assure timely review of a

lower court judgment. Dubray, 654 P.2d at 972. 

 The same reasoning applies here. The Justice Court clerk had

complete control over the record in this case, and neither the

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prosecution nor Sol was responsible for its transmittal. We

decline to attribute the Justice Court clerk's failure to strictly

comply with 46-17-311, MCA, to the prosecution.

 Sol claims that the District Court lacked jurisdiction to hear

his trial de novo because the record was transmitted one day late. 

Sol provides no legal authority for his jurisdictional argument. 

An appellant carries the burden of establishing error by the trial

court. Moreover, Rule 23, M.R.App.P., requires the appellant to

cite to authority which supports the position being advanced on

appeal. Because Sol has failed to do so, we decline to address his

jurisdictional argument.

 Sol also asserts that under the Fourteenth Amendment and

Article II, Section 24, of the Montana Constitution, he has a right

to a speedy trial. In his arguments, Sol entwines speedy trial and

due process rights. Because he appears to be arguing that the oneday transmittal delay violated both his right to a speedy trial and

to due process, we address both issues. 

 A. Speedy trial.

 A criminal defendantþs right to a speedy trial is guaranteed

by the Sixth Amendment to the United States Constitution and

Article II, Section 24, of the Montana Constitution. State v.

Matthews (1995), 271 Mont. 24, 27, 894 P.2d 285, 287. Once either

party appeals a criminal action from a justice court to a district

court, speedy trial issues are analyzed under the four-part test

established in Barker v. Wingo (1972), 407 U.S. 514, 523, 92 S.Ct.

2182, 2188, 33 L.Ed.2d 101, 112-13. State v. Bullock (1995), 272

Mont. 361, 368-69, 901 P.2d 61, 66-67.

 Whether a defendantþs right to a speedy trial has been

violated requires a balancing of four factors: 1) length of the

delay; 2) reason for the delay; 3) assertion of the right by the

defendant; and 4) prejudice to the defendant. Matthews, 894 P.2d

at 287. When considering the first factor, the time for

calculating the length of delay commences on the date that the

defendant files his notice of appeal to district court. See State

v. Nelson (1991), 251 Mont. 139, 142, 822 P.2d 1086, 1088. Sol

filed his notice of appeal from Justice Court on June 22, 1995. 

The District Court scheduled the case for trial on October 10,

1995--110 days later. 

 The first factor, the length of the delay, must be

presumptively prejudicial before the remaining three factors will

be analyzed. Matthews, 894 P.2d at 287. A delay of less than six

months is not presumptively prejudicial. Bullock, 901 P.2d at 67. 

We hold that the Justice Court clerkþs one-day delay, which most

likely resulted in Sol's trial being scheduled 110 days later,

rather than 109, is not presumptively prejudicial. Therefore, we

do not address the other Barker criteria. 

 Sol's constitutional right to a speedy trial was not violated

when the Justice Court clerk transmitted the record of the case in

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thirty-one, rather than thirty days. The District Court properly 

concluded that Solþs speedy trial rights were not prejudiced. 

 B. Due process.

 Sol cites Province, 735 P.2d at 1128, for his proposition that

 46-17-311, MCA, is a procedural due process statute. In

Province, the State failed to provide the defendant with its notice

of appeal from justice court. The State argued that 46-17-311,

MCA, meant no more than giving the justice court written notice. 

We disagreed and held "giving written notice of an intention to

appeal" under 46-17-311, MCA, requires that the defendant receive

notice. Province, 735 P.2d at 1129. 

 That is not the situation here. Procedural due process

requires notice and the opportunity to be heard. See State v.

Kingery (1989), 239 Mont. 160, 166, 779 P.2d 495, 499. Sol, as

appellant, had adequate notice of his own appeal and received

numerous opportunities to be heard--at two trials and several

evidentiary hearings. Again, we note that Sol suffered no

prejudice as a result of the one-day delay in the transmittal of

his record. Sol's procedural due process rights were not violated

when the Justice Court clerk transmitted the record of his case to

the District Court in thirty-one, rather than thirty days. 

 We conclude that the District Court did not err when it

refused to grant Sol's motion to dismiss based on the Justice Court

clerk's one-day delay in transmitting the record of the case. We

affirm the District Court's denial of Sol's first motion to

dismiss. 

 2. Did the District Court err when it refused to grant Sol's

motion to dismiss based on the State's failure to supply a witness

and exhibit list?

 Sol argues that the State violated Brady v. Maryland (1963),

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and 46-15-322(1)(e),

MCA, when it failed to disclose exculpatory evidence about Lively's

Primatene Mist tests. He cites State v. Dist. Court, Thirteenth

Dist. (1990), 245 Mont. 88, 799 P.2d 1056, where we upheld contempt

proceedings against an attorney who refused to disclose discovery. 

He also cites State v. Licht (1994), 266 Mont. 123, 879 P.2d 670,

where this Court explained the mandatory duty imposed by 46-15-

322(1)(e), MCA, on the prosecution to disclose exculpatory

information. Sol argues that these cases require the State to

disclose information about the Primatene Mist tests. 

 Sol's argument fails because the State disclosed to Sol that

he could discuss the test results with Lively at the Crime Lab. A

letter from intern prosecutor LaCroix to Sol's attorney

demonstrates that on April 24 and 25, 1995, Sol had actual notice

that the State's expert witness had conducted tests concerning the

effect of Primatene Mist on the Intoxilyzer 5000. Sol knew whom to

talk to, where to find him, his phone number, and when he could be

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contacted. Sol had only to go to the Crime Lab and request copies

of the tests that Lively had conducted. 

 Based on the April 1995 letters, the District Court determined

that Sol was on notice of the existence of the challenged evidence. 

At trial, Sol admitted that the State had supplied him with a

publication about which Lively would testify and agreed that Lively

could testify about it. He also admitted that he knew about the

tests. 

 Sol had actual notice, as early as April 25, 1995, of the

evidence that the State planned to use against him. He cannot

claim that on October 10, 1995, six months later, he was surprised

by the evidence or that it was wrongfully withheld. We conclude

that the State did not withhold exculpatory evidence against Sol.

 Sol next argues that the State violated 46-15-322(5), MCA,

and the District Court's omnibus order, by failing to disclose

witnesses, identify experts, and provide summaries of their

testimony. He cites the court's omnibus order, claiming that it

states:

I. The State shall immediately, and on a continuing

basis: (a) Disclose the names of the State's

witnesses (including experts), their statements, or a

short summary of their anticipated testimony if no

statement exists. [Emphasis added]. 

 

Sol misquotes the order. It states:

1. In compliance with MCA 46-15-322, the State shall

immediately and on a continuing basis:

(a) Disclose the names, addresses and statements of the

State's witnesses (including experts) that the State may

call as witnesses in their case-in-chief.

 When the language of a statute is clear and unambiguous, we

look no further than to the plain meaning of the statute for its

interpretation. State v. Long (1995), 274 Mont. 228, 237, 907 P.2d

945, 950. We conclude that the language of 46-15-322(5), MCA, is

clear and unambiguous. 

 Section 46-15-322(5), MCA, does not require a prosecutor to

prepare or disclose summaries of witness testimony. On the day of

trial, the District Court read Sol a portion of 46-15-322(5),

MCA, and explained to him that the State was not obligated to

disclose summaries of witness testimony. We hold that based on the

plain meaning of 46-15-322(5), MCA, that the State was not

obligated to provide Sol with summaries of witness testimony. 

 Sol has been unable to demonstrate that he suffered prejudice

or surprise as a result of the State's alleged discovery

violations. The District Court received testimony at two hearings

to determine whether Sol knew about Lively's testimony concerning

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the effect of Primatene Mist on the Intoxilyzer 5000. It concluded

that Sol was aware of the tests and that the State had made the

results of the tests "available for examination and reproduction." 

 After Sol admitted that he knew of the tests, he claimed that

the State was obligated to deliver the results to him. The court

offered a reasonable solution by telling Sol that all he had to do

was go over and get the reports. We agree. 

 We find equally unconvincing Solþs argument that the State's

expert testimony and reports resulted in surprise or prejudice. An

appellant is required to order those portions of the transcript

that he "deems necessary" for his appeal. Rule 9(b), M.R.App.P. 

Because Sol did not order a transcript of the District Court trial,

we do not have a record of whether the disputed evidence was

offered at trial, and if it was, whether it resulted in surprise or

prejudice.

 We hold that the District Court did not err when it refused to

grant Sol's second motion to dismiss based on the State's failure

to supply a witness and exhibit list. 

 Affirmed.

 /S/ J. A. TURNAGE

We concur:

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

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