No. 87-382

INTHE SUPREME COURTOF THE STATEOF MONTANA
1988

STATE OF MONTANA,CITY OF BOZEMAN, Plaintiffand Respondent,-vsCLIFTON DUANEHETH, Defendantand Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, TheHonorable ThomasOlson,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Jerry Bechhold, Bozeman,Montana
For Respondent:

Hon. Mike Greely,Attorney General, Helena,Montana John Paulson,Asst. Atty. General,Helena Bruce Becker, CityAttorney, 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 isan appeal from the Eighteenth Judicial District Court, Gallatin County. Defendant/appellant, Clifton Duane Heth (Heth)was found guiltyby the District Court ofdriving 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 rulingHeth 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, Hethwas arrested for driving under the influencepursuant 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 thereforewewill 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 DistrictCourthearing but no transcriptwas submitted

on this appeal. According to one of the waitresses Hethwas "[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 Hethwas intoxicated according to the findings of fact of the DistrictCourt. OfficersKerry 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 4Bsparking 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 testingwere again tapedby Bickle. Hethwas arrested for DUI,read his Miranda rights,and taken to the GallatinCounty 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 avideotape machine to film Heth's activities but failed to turn on the volume and therefore no soundwas 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 Hethwas seen driving his vehicle after leaving the 4Rs. The State offered the audio cassette recordedby Bickle which was admitted by the court over defense counsel's obiection. The State also offered the video but it wasrefused 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 

### "[plolicehave a responsibility to properly administer exculpatory evidencewhen theyhave an opportunity todo so." Heth's counsel argues thatHethwas 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 thevideo, theAppellantwould have had sound to said video and thus allowed him to present avalid 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 inwhich 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 recordingof the sobriety tests,Heth could not count from 90 to 100 and back to 87 correctly. He alsohad 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 completea 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 adefendant'sblood sample that was leftunrefrigerated 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 apeace 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 

### - not stand for the proposition that police officers have to assist in the gathering of such evidence. Heth argues that police officers have a responsibility toproperly administer exculpatory evidence when theyhave an opportunity to do so. However,there is adifference between "gathering" and "preserving" such evidence. State v. Hayes (Idaho1985), 700 P.2d 959, 964. The officers in Swanson failed to properlypreserve the blood sample taken from the accused. [Olncethe samplewas taken from Swanson, the police had a duty to see to its safekeeping

# . .. [The1 carelesshandling of the sampledeprived Swansonofhis due process right to gather possible exculpatory evidence. Swanson, 722P.2d at 1158. Heth contends the police in essence were required to gather evidence showing that he was not intoxicated byengaging the audio on the video tape. There is no question that police officers must allow a defendant to obtain a separate and independentblood test. But Swanson is limited to the actualblood 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 goalby 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, 722P.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 evidencemustbe vital to the defense. Itmust be more than a
mere suppression, in that the defensemust show the evidence

was material and of substantial use. Finally, the evidence must be exculpatory meaning it 

### "[wlouldhave 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;State v. Patterson (1983), 203 Mont. 509, 512-513, 662 P.2d 291, 293. Heth has not shown that the video sound was vital to his defense especially in light of the audio tape that Bickle recorded. The tape made by Bickle does not provide Heth with any exculpating evidence. Although the video's audiomay have been substantiallyused by defense counsel, we cannot agreethatitwould have been exculpatory. The administration of a video and audio test, just as in Hayes, supra, falls into the category of gathering evidence. Police officersdonot have an affirmative duty to search out favorable evidence for the defendant asthe State has appropriately pointed out. State v. Ames (1daho 19851, 707 P.2d 484, 486; People v. Moore (Colo. 1985), 701 P.2d

The defendant was not denied dueprocessunder Brady or 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' express statutorymandate. 4 /' Affirmed

# .

Justice 1

We concur: n

Justices