No. 85-268 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsRICHARD DUANE JOHNSON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Stewart A. Pearce, 11, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Joe R. Roberts, Asst. Atty. General, Helena 

Robert Deschamps, 111, County Attorney, Missoula, 

Montana; Betty Wing, Deputy County Attorney 

Submitted on Briefs: May 1, 1986 

Decided: June 6, 1936 

Filed: 

.'UN 6 - 1388 

& *, 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Richard Duane Johnson (defendant) appeals the jury 

verdict and April 30, 1985, judgment of the Fourth Judicial 

District Court, County of Missoula, finding defendant guilty 

of driving or being in actual physical control of a motor 

vehicle upon the public wa.ys of Montana while under the 

influence of alcohol. Johnson also appeals the sentence 

imposed. We affirm. 

Defendant was found by a Missoula County Deputy Sheriff, 

Officer Peterson, at approximately 1:40 a.m., December 8, 

1983, in a disabled car on Interstate 90 near East Missoula. 

Officer Peterson, while discussing the predicament with 

defendant, noted that defendant appeared to be intoxicated. 

Officer Peterson requested that defendant perform severalfield sobriety tests. Defendant either refused or was unable 

to perform each test. Defendant was then arrested. 

Thereafter, Officer Peterson took defendant to the 

patrol car and told defendant that he would be tape recording 

defendant's statements. After obtaining defendant's name, 

Officer Peterson advised defendant of his Miranda rights. 

Defendant acknowledged that he understood those rights, then 

asked if he had the right to "address somebody." The following conversation ensued: 

MR. JOHNSON: Yes I understand. Do I have the 

right to address somebody? 

DEPUTY PETERSON: Yeah. In just a second, okay. I 

have got a tape recorder on. Everything you say 

from this time 

MR. JOHNSON: I understand that. 

DEPUTY PETERSON: is going to be tape recorded. 

Okay. 

MR. JOHNSON: I would like to talk to somebody. 
DEPUTY PETERSON: It is 2:01 a.m. on December 8, 

1983, Thursday morning, okay? 

MR. JOHNSON: You have an advantage because my 

hand.s are handcuffed and I would like to talk to 

somebody. 

DEPUTY PETERSON: You would like to -- who do you 

want to talk to? 

MR. JOHNSON: I am not, I haven't decided yet. 

DEPUTY PETERSON: Okay. 

MR. JOHNSON: This is dirty pool you guys. God 

Almighty. Hey, am I off the record here? 

DEPUTY PETERSON: No, you are on the record. You 

are on tape Richard. 

(Pause) 

MR. JOHNSON: Oops. (unintelligible) I knew that 

sucker. (Pause) You have to realize right now 

that you are not getting me for DWI because I was 

in the ditch. (long pause) 

MR. JOHNSON: You know I am going to sue you bastards so bad because I wasn't driving that car. It 

is going to be fun (Pause) -- You have so much fun 

hauling guys in. Isn't that fun?. 

(Pause) 

DEPUTY PETERSON: Who was driving the car Richard? 

MR. JOHNSON: I was driving the car. 

DEPUTY PETERSON: You were driving the car? 

MR. JOHNSON: Yeah. I was driving the car. 

DEPUTY PETERSON: How did it get in the ditch? 

MR. JOHNSON: Somebody grabbed the wheel. 

DEPUTY PETERSON: Who grabbed the wheel then? 

MR. JOHNSON: The person I picked up on the way 

home. 

DEPUTY PETERSON: Where did that man go? 

MR. JOHNSON: Well you look that guy up. I don't 

know. No, he was a nice guy. He would 

DEPUTY PETERSON: Do you know who it was? 

MR. JOHNSON: No, I don't know. Do you know who he 

was? 

DEPUTY PETERSON: No, I don't. I didn't see him. 
MR. JOHNSON: He is about 6' 1". Grabbed the wheel 

when I went in the ditch there. (Pause) You should 

have driven up and down the street there aways 

there. 

DEPUTY PETERSON: Why is that? 

MR. JOHNSON: Well, you tell me -- you didn't see 

the guy. Really? 

DEPUTY PETERSON: No, I didn't see anybody. 

MR. JOHNSON: Well, that's your problem. That's 

not mine. Go back and look for him. 

MR. JOHNSON: So what do I do with these handcuffs? 

DEPUTY PETERSON: Well I am going to take them off 

you here in just a minute Richard. 

MR. JOHNSON: Can I go home? 

DEPUTY PETERSON: Well soon as I, soon as I'm done 

with everything we need to do then maybe you can. 

MR. JOHNSON: This is a lot of fun being handcuffed 

you know. 

DEPUTY PETERSON: Okay, the time is now 2:08 a.m. 

on December 8, 1983. I am going to turn the tape 

off. 

A videotape of defendant attempting to perform several 

physical maneuvers at the request of Officer Peterson was 

taken upon arrival at the police station. Between maneuvers, 

defendant asked if he could call his attorney. After the 

maneuvers were completed and an implied consent form was read 

to defendant, defendant agreed to submit to a breathalyzer 

test. The result showed a blood-alcohol concentration of 

Next, Officer Peterson again turned on the videotape, 

advised defendant of his rights and asked if defendant wanted 

to answer some questions. Defendant replied, "I'd be obliged 

to, yes. " This portion of the videotape was suppressed by 

the trial judge because of defendant's earlier request for an 

attorney. 

Defendant was incarcerated overnight. On December 19, 

1983, an information was filed in Missoula County District 
Court charging a third offense DUI (Count I) and failure to 

have current registration (Count 11). Count I1 was subsequently dismissed. After several delays and waivers by 

defendant of his right to a speedy trial, a jury trial was 

held February 25, 1985. 

At trial, defendant provided a detailed account of his 

actions on the night of December 7 and the early morning 

hours of December 8, 1983. Defendant testified that he and 

his wife ate dinner at the Heidelhaus in Missoula, Montana. 

After dinner, defendant took his wife home and proceeded to 

The Edgewater for a night cap. Defendant claimed that he 

drank two, maybe three, drinks at The Edgewater with a 

friend. Then, realizing he was nearly out of gas and had no 

money, defendant contends he drove to a bar in East Missoula 

called "The Cabin" to cash a check. Apparently defendant had 

attempted to cash checks at The Edgewater before, to no 

avail. Defendant further testified that he purchased a 

double shot drink in a "go cup" at "The Cabin" to drink with 

his wife upon returning home. 

According to defendant's testimony, as he was entering 

the west-bound lane of 1-90 from the on-ramp, the steering in 

his car locked. It was snowing heavily and the roads were 

icy. The car headed for the ditch, became high-centered on a 

snowbank and was thereby rendered immobile. After a short 

time, a passing motorist allegedly stopped to assist. Because of the motorist's intoxicated condition, defendant 

refused his offer of a ride but asked the man to phone defendant's wife and a towing service. Thereafter, defendant 

claims he decided to drink the double shot. Then, remembering some blackberry brandy left in the car from the previous 

hunting season, defendant alleges he drank approximately 

three-quarters of a pint bottle to try to keep warm. 
Defendant further claims not to have started or attempted to 

move the car a.fter drinking the double shot. 

Approximately an hour and a half after the car left the 

road, Officer Peterson appeared. A tow truck arrived shortly 

thereafter. Defendant's wife allegedly arrived at the scene, 

but after her husband had been transported to the police 

station. 

The essence of defendant's story at trial was that he 

may have been intoxicated at the time Officer Peterson discovered him, but that he had not been "under the influence" 

at the time the car became stuck on the side of the road. 

Rather, his intoxication allegedly resulted from the alcohol 

consumed after the car left the road. 

Officer Peterson also testified at trial. He stated 

that upon first approaching defendant ' s vehicle, the left 

front tire was in contact with the pavement; steam or smoke 

and a smell of burned rubber were emitting from that area. A 

search of defendant's car and the surrounding area uncovered 

no discarded beverage containers or brandy bottles. In 

addition, the inventory sheet signed and prepared by Sergeant 

A1 Kimery, now deceased, failed to indicate the discovery of 

any alcohol container. 

During a break in the trial, Officer Peterson returned 

to the location where defendant's vehicle was discovered, 

placed two sheriff's vehicles in the positions previously 

occupied by defendant's and Peterson's vehicles and took five 

photographs of the vehicles. The pictures were entered into 

evidence through Officer Peterson to show the location and 

angle of defendant's car. 

Finally, during rebuttal, Officer Peterson was 

questioned, based on his experience and training in automobile mechanics, as to what, in his opinion, happens when the 
power steering on a vehicle fails. This testimony was elicited in response to testimony of defendant with respect to 

the alleged failure of his power steering mechanism and the 

performance of his car at that moment. Defendant had been 

qualified as an expert in the area because of his experience 

with power-steering failure in front and rear-wheel drive 

vehicles. 

Following presentation of the evidence, the jury convicted defendant of driving or being in control of a motor 

vehicle on the public ways of Montana while under the influence of alcohol in violation of S 61-8-401(1), MCA. He was 

sentenced to one year in the Missoula County Jail with all 

but fifteen days suspended, ordered to contribute $1,000 to 

the Missoula City/County Health Department's Drinking and 

Driving Prevention program and had his driver's license 

suspended "until he receives a probationary driver's license 

and then only for driving to and from work and on the job." 

On appeal, defendant raises the following issues: 

1. Whether the trial judge erred in refusing to grant 

defendant's motion to suppress his tape-recorded statement, 

the videotape of his actions and the results of his 

breathalyzer test? 

2. Whether the trial judge erred in admitting into 

evidence the five photographs of the scene of the incident 

taken by Officer Peterson at the time of trial? 

3. Whether the trial judge erred in permitting the 

State to elicit "expert" testimony from Officer Peterson with 

respect to the events following failure of the power steering 

system in an automobile? 

4. Whether the trial judge erred in refusing to grant 

defendant's motion for a mistrial after the defendant had 
been unduly prejudiced by the State's reference to a deputy 

sheriff killed in the line of duty? 

5. Whether the trial judge abused his discretion in 

sentencing defendant, who suffers from claustrophobia, to 15 

days in jail? 

6. Whether the trial judge illegally sentenced defendant to a term of incarceration by failing to state any 

reason for the imposition of that condition? 

I. 

THE MOTION TO SUPPRESS 

On August 30, 1984, defendant moved to suppress his 

tape-recorded statement, the videotape of his actions and the 

results of his breathalyzer test. The State's motion in 

opposition was filed September 20, 1984. Then, on October 5, 

1984, defendant filed a motion to hold the suppression hearing in abeyance until this Court reached a decision in State 

v. Armfield (Mont. 1984), 693 P.2d 1226, 41 St.Rep. 2430. 

Armfield was rendered on December 28, 1984, and a third 

omnibus hearing was held January 9, 1984. The trial judge 

issued an order February 19, 1985, holding that our decision 

in Armfield dispensed with defendant's entire motion to 

suppress. We disagree. 

In Armfield, supra, we held that an individual arrested 

on a charge of driving while under the influence of alcohol 

has no constitutional right to the advice of legal counsel 

prior to deciding whether to submit to a breathalyzer test. 

We found the breathalyzer test to be analogous to requirements that an accused "submit to fingerprinting, 

photographing, or measurements, to write or speak for 

identification, to appear in court, to stand, to assume a 

stance, to walk, or to make a particular gesture." Armfield, 
693 P.2d at 1230, 41 St.Rep. at 2434, citing U. S. v. Wade 

(1967), 388 U.S. 218, 223, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 

1149, 1155. Which quotes Schmerber v. California (1966) , 384 

U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908, 916. 

Thus, defendant's breathalyzer test results are admissible in 

evidence. 

Likewise, the videotape of defendant's attempts to 

perform specific sobriety tests at the police station is 

admissible as the performance of the physical maneuvers is 

not testimonial in nature. Armfield, supra; State v. Purdie 

(Mont. 1984), 680 P.2d 576, 578, 41 St.Rep. 754, 756. 

However, defendant's tape-recorded statement is testimonial and thus potential-ly self-incriminating. We must therefore determine whether the right to counsel was invoked by 

defendant. 

The United States Supreme Court has held that only a 

specific request for counsel invokes a defendant's constitutional right of counsel per se. All other requests become 

part of the "totality of the circumstances" to which the 

Court refers when determining whether the right to counsel 

has been invoked. 

In Fare v. Michael C. (1979), 442 U.S. 707, 99 S.Ct. 

2560, 61 L.Ed.2d 197, a juvenile was taken into custody for 

suspicion of murder. After a police officer fully advised 

the juvenile of his Miranda rights, the juvenile asked to see 

his probation officer. The police denied his request. 

Thereafter, the juvenile gave a statement implicating himself 

in the murder. The United States Supreme Court held that a 

request to see one's probation officer is not analogous to a 

request for counsel. Rather, it is but one factor to be 

considered under the "totality of the circumstances" when 

determining the voluntariness of a subsequent waiver of one's 
rights. Fare, 442 U.S. at 722-725, 99 S.Ct. at 2570-2572, 

61 L.Ed.2d at 210-212. 

Although Fare would be analogous to the situation currently before this Court, we refuse to "march lock-step" with 

the United States Supreme Court where constitutional issues 

are concerned, even if the applicable State Constitution 

provisions are identical or nearly identical to those of the 

United States Constitution. 

We recognize that this pronouncement is contrary to 

previous criminal law decisions issued by this Court. 

Under the Fifth Amendment to the United States 

Constitution, and under the substantially identically worded Art. 11, Section 25, 1972 Montana 

Constitution, no person may be compelled to testify 

against himself in a criminal proceeding. This 

Court has held the Montana constitutional guarantee 

of the privilege against self-incrimination affords 

no broader protection to an accused than does the 

Fifth Amendment. State v. Armstrong, [I70 Mont. 

256,] 552 P.2d 616. heo opinions of the United 

States Supreme Court, therefore, delineate the 

maximum breadth of the privilege against self-incrimination in Montana. 

State v. Finley (1977) , 173 Mont. 162, 164-165, 566 P.2d 

1119, 1120-1121. See also, State v. Jackson (Mont. 1983) I 

672 P.2d 255, 260, 40 St.Rep. 1698, 1704. And, 

This Court is not bound by decisions of the United 

States Supreme Court where independent grounds 

exist for reaching a contrary result. (Citations 

omitted) . . . 

Much has been written about whether a state court 

should grant greater rights than the United States 

Supreme Court where the State Constitutional 

language is identical to that in the Federal 

Constitution. In State v. Jaclcson (Mont. 1983) , 672 P.2d 255, 40 St.Rep. 1798, a divided court held 

that the Montana Constitutional guarantee against 

self-incrimination does not afford greater 

protection than that afforded under the Federal 

Constitution. However, in that instance the 

language in the Montana Constitution does not 

af ford a basis for distinguishing 

self-incrimination rights from those articulated in 

the Federal Constitution. This Court has afforded 

greater rights in search and seizure cases because 

the Montana Constitution specifically recognizes 

the importance of the right of privacy. 
State v. Solis (Mont. 1984), 693 P.2d 518, 521, 41 St.Rep. 

However, we have forged ahead independent of the United 

State Supreme Court in civil matters which involve constitutional issues, even where our Constitutional provisions are 

identical or nearly identical to those of the United States 

Constitution. 

Art. 11, S 4, of our State Constitution provides in 

part that "[nlo person shall be denied the equal 

protection of the laws." Art. 11, S 4, 1972 Mont. 

Const. That provision of our State Constitution, 

though similar in wording to the last clause of the 

Fourteenth Amendment of the Federal Constitution 

provides a separate ground on which rights of 

persons within this state may be founded, and under 

accepted principles of constitutional law such 

rights must be at least the same as and may be 

greater than rights founded on the federal clause. 

Thus, states may interpret their own constitutions 

to afford greater protections than the Supreme 

Court of the United States has recognized in its 

interpretations of the federal counterparts to 

state constitutions. City and County of Denver v. 

Nielson (1977), 194 Colo. 407, 572-~.2d 484. 

Federal rights are considered minimal and a state 

constitution may be more demanding than the equivalent federal constitutional provision. Washakie 

-- Co. Sch. Dist. --- No. One v. Herschler (Wyo. 1980), 

606 P.2d 310, cert. den. 449 U.S. 824, 101 S.Ct. 

86, 66 L.Ed.2d 28. This is true even though our 

state constitutional language is substantially 

similar to the language of the Federal Constitution. Deras v. Myers (1975), 272 Or. 47, 535 P.2d 

541, 549 n.17. 

Pfost v. State (Mont. 1985), 713 P.2d 495, 500-501, 42 

And, 

This Court need not b1indl.y follow the United 

States Supreme Court when deciding whether a 

Montana statute is constitutional pursuant to the 

Montana Constitution . . . 

We will not be bound by decisions of the United 

States Supreme Court where independent state 

grounds exist for developing heightened and expanded rights under our state constitution. 

Butte Community Union v. Lewis (Mont. 1986), 712 ~.2d 1309, 
Likewise, we see no reason not to pursue our own 

resolution of constitutional matters in criminal cases. 

Adequate and independent state grounds exist in our own 

Constitution and statutes to resolve this matter. We choose 

to rely solely on these adequate and independent grounds. 

"[A] state court always is responsible for the law of its 

state before deciding whether the state falls short of a 

national standard, so that no federal issue is properly 

reached when the state's law protects the claimed right." 

Linde, - E. Pluribus - Constitutional Theory and State Courts, 

18 Ga.L.Rev. 165, 178 (1984). 

The proper sequence is to analyze the state's law, 

including its constitutional law, before reaching a 

federal constitutional claim. This is required, 

not for the sake either of parochialism or style, 

but because the state does not deny any right 

claimed under the federal Constitution when the 

claim before the court in fact is fully met by 

state law. (Citations omitted.) 

Sterling v. Cupp (Or. 19811, 625 P.2d 123, 126. 

This Court has previously recognized this principle. 

These state constitutional provisions, identical or 

nearly identical with like language in the United 

States Constitution and certainly identical in 

concept, each constitute separate and enforceable 

constitutional rights insofar as the jurisdiction 

of the State of Montana extends. Where state and 

federal constitutional provisions are identical, 

each is enforceable in its own respective sphere 

where those principles attach. See, Department of 

Mental Hygiene v. Kirchner (1965) , 62 Cal. 2d 586, 

43 Cal.Rptr. 329, 400 P.2d 321; Emery v. State of 

Montana (1978), [I77 Mont. 731, 580 P.2d 445.1 

Madison v. Yunker (1978), 180 Mont. 54, 60, 589 P.2d 126, 

Thus, relying on our own Constitution and applicable 

law, we hold first that when defendant asked, immediately 

after having been read his rights, if he had the right to 

address somebody and subsequently stated that he would like 

to talk to somebody, he invoked his right to counsel under 

Art. 11, S 24 of the Montana Constitution. This right to 
counsel is not and should not he a right easily abridged. 

The implication of asking to speak to "someone" immediately 

after the reading of one's rights is that "~omeone'~ refers to 

a legal advisor. Lay people are not learned in 

constitutional principle nor legal nicety. To require 

precise words be uttered would elevate form over substance. 

Defendant's subsequent conversation with Deputy Peterson 

did not result in the voluntary waiver of his right to counsel. Although defendant initiated that portion of the conversation wherein Peterson asked defendant who was driving 

the car, defendant's comments were all part of one taped 

interview initiated by the deputy. The entire taped conversation lasted only seven minutes. Under these facts, we cannot 

find that defendant ' s comments constituted a knowing and 

voluntary waiver of his right to counsel. 

The taped conversation should not have been admitted 

during the State's case-in-chief. However, because that 

conversation could have been used by the State to impeach 

defendant's testimony at trial, we find the error in admitting the tape to be harmless. In the taped conversation, 

defendant stated that another individual riding in the car 

with him grabbed the steering wheel, forcing the car off the 

road. At trial, defendant testified that the car left the 

road because of a failure in the power steering. Although 

defendant has every right to take the stand and testify in 

his own defense, Art. 11, S 24, Mont. Const. (1972), once 

defendant testified to a story different than that upon which 

he previously relied, defendant "opened the door" to the 

admissibility of the illegally-obtained evidence for impeachment purposes. W. LaFave and J. Israel, Criminal Procedure 

S 9.6 (1984). 
The situation is analogous to that discussed in Rule 

410, M.R.Evid. Rule 410 makes inadmissible pleas of guilty, 

later withdrawn, except for the purposes of impeachment. 

This rul-e shall not apply to the introduction of 

voluntary and reliable statements made in court on 

the record in connection with any of the foregoing 

pleas or offers where offered for impeachment 

purposes or in a subsequent prosecution of the 

declarant for perjury or false statement. 

We therefore find harmless any error to defendant arising out of the admission of defendant's taped conversation 

during State's case-in-chief. 

ADMISSIBILITY OF THE PHOTOGRAPHS 

Trial courts have wide discretion in admitting photographs. State v. Warnick (1982), 202 Mont. 120, 127, 656 

[Plhotographs stand on the same footing as diagrams, maps, plans, and the like, and, as a general 

rule, whenever relevant to describe a person, 

place, or thing, they are admissible for the purpose of explaining and applying the evidence and 

assisting the court and jury in understanding the 

case. (Citations omitted. ) 

Fulton v. Choteau County Farmers' Co. (1934) , 98 Mont. 48, 

Here, the photographs were received solely for the 

purpose of describing the position of defendant's vehicle. 

A.lthough the pictures were taken under conditions substantially dissimilar to the conditions on December 8, 1983, the 

conditions are basically irrelevant to the purpose of the 

photographs and the dissimilarities were adequately explained 

to the jury. There was no abuse of discretion by the trial 

judge . 
ADMISSIBILITY OF OFFICER PETERSON'S TESTIMONY 

WITH RESPECT TO POWER STEERING FAILURE 

Appellant contends the trial judge erred in qualifying 

Officer Peterson as an expert and in allowing him to testify 

with respect to how a car reacts when its power steering 

mechanism fails. Officer Peterson was not qualified as an 

expert in auto mechanics pursuant to Rule 702, M.R.Evid. 

Rather, the trial judge referred to him as a "semi-expert." 

(Tr. p. 363, 1. 18-20) The law of evidence does not recognize a "semi-expert." 

Although Officer Peterson was not qualified as an expert 

witness, his opinion was properly received under Rule 701, 

M.R.Evid. That rule states: 

Opinion testimony by lay witnesses. 

If the witness is not testifying as an expert, his 

testimony in the form of opinions or inferences is 

limited to those opinions or inferences which are 

(a) rationally based on the perception of the 

witness and (b) helpful to a clear understanding of 

his testimony or the determination of a fact in 

issue. 

Officer Peterson testified solely with respect to what, 

on the basis of his own experience, happens to a vehicle when 

its power steering fails. He did not offer an opinion as to 

what specifically happened to defendant's vehicle. The 

testimony served primarily to clarify in the minds of the 

jurors, who might not have experienced a similar failure, 

what exactly happens when the power steering system of a car 

fails. The evidence certainly established that Officer 

Peterson was qualified to offer his lay opinion. He had 

worked on vehicles of all kinds for over ten years and had 

experienced power steering problems several times. 

We find no error in the admission of Peterson's opinion. 
IV. 

REFERENCE TO THE DECEASED DEPUTY SHERIFF 

Appellant contends the State's reference to Sergeant A1 

Kimery, a deputy sheriff killed in the line of duty near the 

time of trial, resulted in a sympathetic bias on the part of 

the jury toward the State. The reference occurred while the 

state was laying a foundation for the inventory sheet. 

Officer Kimery conducted the inventory of defenda-nt's 

car prior to its impoundment. Because of the nature of 

defendant's defense, that he became drunk only after his car 

became stuck, the inventory sheet was relevant evidence. The 

difficulty of admitting the exhibit without referring to 

Officer Kimery was obvious and foreseeable. Defendant' s 

remedy was to file a motion in limine prior to the start of 

trial. Defendant failed to do so. We find no error. 

CLAUSTROPHOBIA 

Defendant contends that he suffers from claustrophobia 

and that his sentence is therefore cruel and unusual punishment because it requires that he spend 15 days in jail. In 

support of his contention, defendant submitted a letter from 

Dr. James E. Gouaux which states in applicable part: 

I believe his main health problem related to being 

in jail relates to his claustrophobia which appa.rently has been going on for forty or so years and, 

if it is aggravated by being in a jail cell, might 

constitute "cruel punishment." 

However, defendant offered no evidence in support of his 

claim that he does indeed suffer from claustrophobia. 

Dr. Gouaux makes no such diagnosis in his letter. In fact, 

he states only that the claustrophobia has "apparently" been 

going on for more than forty years. No other evidence was 

submitted by the defendant. Therefore, we find little evidence to support defendant's claim that he suffers from 
claustrophobia. Further, even if defendant so suffered, it 

would be but a factor to consider and would not foreclose 

incarceration. The sentence does not constitute cruel and 

unusual punishment. 

VI. 

ADEQUACY OF THE REASONS FOR THE SENTENCE 

Finally, appellant contends his sentence is illegal 

because the trial judge failed to set forth his reasons for 

choosing to incarcerate defendant for 15 days. The sentencing judge is required to state his reasons for imposing 

incarceration on a defendant, even if the sentence is within 

the statutory limits for the offense. State v. Stumpf 

(1980), 187 Mont. 225, 609 P.2d 298. The trial judge has met 

this requirement. 

The following rationale was provided for the sentence: 

"Defendant's history of alcohol and driving offenses." This 

statement, especially when coupled with the presentence 

report provided by defendant's probation officer, is suf ficient to inform a reviewing court and the Sentence Review 

Board as to why the sentence was imposed. Stumpf, 187 Mont. 

at 226, 227, 609 P.2d at 299. No more is required. The 

sentence is affirmed. 

Affirmed 

concur: 

counts. 

Justices 

~e ,ha