NO. 88-445

IN THE SUPREME COURTOF THE STATE OF MONTANA
1989

STATE OF MONTANA, plaintiff and Respondent,-vsWALLIS J. THOMPSON,
DefendantandAppellant.

APPEAL FROM: District Court of the ~hirteenth ~udicial ~istrict, In and for the County of Stillwater, The Honorable DianeG. Barz,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant:

Moses LawFirm;Charles F. Moses, ~illings, Montana

For Respondent:

Marc Racicot,Attorney General, Helena,Montana Clay R. Smith,Asst. Atty. General,Helena C. Ed Laws, Stillwater CountyAttorney, Columbus, Montana

--- - Submittedon Briefs: March 31, 1989 Decided: May 17, 1989Mr. JusticeJohn Conway Harrison delivered the Opinion of 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 InfluenceofAlcohol, aviolation of § 61-8-401,MCA. We affirm. On January 7, 1987, Deputy Clifford Rr0ph.y arrested appell-antfor the offense of driving under the influence of alcohol. After his arrest., Offi.cerBrophy 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 ofhis 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 ofhis Miranda guarantees. Thereafter,Officer Brophy questioned appellant in d-etailregarding 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 questioningby Officer Brophy. OnMarch 

### 4, 1987,appellantwas found guilty of Driving Under the Influence of Alcohol 

### by a justice court jury. Appellant appealed to the District Court. OnApril 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 inanAssessment Course and Treatment School (ACT) and ordered payment of court costs totaling $421.57. Appellant raises the following issueson appeal. 1. Did the District Court err when it allowed the audio-videotape into evidence? 2. Did the District Court err when it limited the evidentiary purpose of appel-lant'sExhibits 

### A and B? The Fifth Amendment to the United States Constitution and Art. TI, sec. 25 of the Montana Constitution, provides that noperson be compelled to testify against himself in

a crimjnaI proceeding. However, we distinguish compellins "communications" or "testimony" from real or ohjective evidence taken from the accused. Schmerber v. Califor~ia

(19661,384U.S. 7'57, 86 S.Ct. 1826, 16 L.Ed.2d 908;Statev. 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 privileae 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 been 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 interrogationand therefore,requiredMiranda 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 tapewas objective evidence and,therefore, outside the protection of the Fifth Amendment to the United StatesConstitution 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 evidencehelpful 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, Statev. 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 Finleyby 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 ofthis case. Finley, 566 P.2d at 1122. Therefore, we do not determine whether the Miranda warning, stipulated by the parties as given 

### +oappellant in the police car,woul-cihave 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 spokenwordsdid not include any testimonial information. We agree. Our reading of the transcribed audio-video tape reveals that the officer did not interrogate appellantprior to advisinghim ofhisMiranda 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.2dat 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 thepamphlets for the limitedpurpose 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 thatunder 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. Whilewe agree that thepamphlets are self-authenticating, they do not fall ~7i.t.hinthe public recordsexception. 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 awitness:

### (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 imposedby 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 fora government,apublic 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 "[iltwas 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 (1988). 

### 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 of the DepartmentofJustice of the State ofMontana. Affi rmed

# .

We concur:

### Mr. Justice ~illiam E. Hunt, Sr., dissenting:

I dissent. The statements made by Thompson during the videotaping are not objective evidence. Therefore, the statements are protected under the ~ifth Amendment.