NO. 88-445 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

plaintiff and Respondent, 

-vsWALLIS J. THOMPSON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the ~hirteenth ~udicial ~istrict, 

In and for the County of Stillwater, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Moses Law Firm; Charles F. Moses, ~illings, Montana 

For Respondent: 

Marc Racicot, Attorney General, Helena, Montana 

Clay R. Smith, Asst. Atty. General, Helena 

C. Ed Laws, Stillwater County Attorney, Columbus, 

Montana 

-- - - 

Submitted on Briefs: March 31, 1989 

Decided: May 17, 1989 
Mr. Justice John 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 Influence of Alcohol, a violation of § 61-8-401, MCA. We 

affirm. 

On January 7, 1987, Deputy Clifford Rr0ph.y arrested 

appell-ant for the offense of driving under the influence of 

alcohol. After his arrest., Off i.cer Brophy 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 of his 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 of his Miranda guarantees. Thereafter, Officer Brophy 

questioned appellant in d-etail regarding 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 questioning by Officer Brophy. 

On March 4, 1987, appellant was found guilty of Driving 

Under the Influence of Alcohol by a justice court jury. 

Appellant appealed to the District Court. On April 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 in an Assessment Course and Treatment School (ACT) 

and ordered payment of court costs totaling $421.57. 

Appellant raises the following issues on appeal. 

1. Did the District Court err when it allowed the 

audio-video tape into evidence? 

2. Did the District Court err when it limited the 

evidentiary purpose of appel-lant's Exhibits A and B? 

The Fifth Amendment to the United States Constitution 

and Art. TI, sec. 25 of the Montana Constitution, provides 

that no person be compelled to testify against himself in 

a crimjnaI proceeding. However, we distinguish compellins 

"communications" or "testimony" from real or oh jective 

evidence taken from the accused. Schmerber v. Califor~ia 

(19661, 384 U.S. 7'57, 86 S.Ct. 1826, 16 L.Ed.2d 908; State v. 

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 privi leae 

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 

interrogation and therefore, required Miranda 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 tape was objective evidence 

and, therefore, outside the protection of the Fifth Amendment 

to the United States Constitution 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: 

[TI he audio-video tape was introduced 

into evidence not for the incriminating 

content of the words uttered by 

defendant, but as evidence helpful 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, State v. 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 Finley by 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 

of this case. 

Finley, 566 P.2d at 1122. Therefore, we do not determine 

whether the Miranda warning, stipulated by the parties as 

given +o appellant in the police car, woul-ci have 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 

spoken words did not include any testimonial information. We 

agree. Our reading of the transcribed audio-video tape 

reveals that the officer did not interrogate appellant prior 

to advising him of his Miranda 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.2d at 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 the pamphlets for the limited purpose 

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 that under 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. While we agree that the pamphlets are 

self-authenticating, they do not fall ~7i.t.hin the public 

records exception. 

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 a witness: 
(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 imposed by 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 for a government, a public 

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 "[ilt was 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 Department of Justice of the State of Montana. 

Af fi 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.