No. 85-268 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

STATE OFMONTANA, Plaintiff andRespondent,

-vsRICHARD DUANE JOHNSON, DefendantandAppellant.

APPEAL FROM: DistrictCourtof theFourth JudicialDistrict, Inand for the Countyof Missoula, TheHonorableJack L. Green, Judge presiding.

COUNSEL OF RECORD:

For Appellant: StewartA. Pearce, 11, Missoula, Montana

For Respondent: Hon. Mike Greely, AttorneyGeneral, Helena, Montana Joe R. Roberts, Asst. Atty. General, Helena RobertDeschamps, 111, CountyAttorney, Missoula, Montana; BettyWing, Deputy CountyAttorney

Submittedon Briefs: May 1, 1986 Decided: June 6, 1936

Filed: 

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ClerkMr. 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. Defendantwas found by aMissoula 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 toperform each test. Defendantwas then arrested. Thereafter, Officer Peterson took defendant to the patrol car and told defendant thathewould 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 ifhe had the right to "addresssomebody." The following conversationensued: 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: Iunderstand 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,Thursdaymorning, okay? MR. JOHNSON: You have an advantage because my hand.sare 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 Ioff 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 Iwas in the ditch. (longpause) MR. JOHNSON: You know I am going to sue you bastards sobad because I wasn't driving that car. It is going to be fun (Pause)

## -- You have somuch fun hauling guys in. Isn't that fun?.

(Pause) DEPUTY PETERSON: Who was driving the car Richard? MR. JOHNSON: Iwas driving the car. DEPUTY PETERSON: Youwere driving the car? MR. JOHNSON: Yeah. Iwas driving the car. DEPUTY PETERSON: How did it get in the ditch? MR. JOHNSON: Somebody grabbed thewheel. DEPUTYPETERSON: Who grabbed thewheel 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: Doyou know who it was? MR. JOHNSON: No, Idon't know. Doyou know who he was? DEPUTY PETERSON: No, I don't. I didn't see him.MR. JOHNSON: He is about 6'1". Grabbed thewheel when I went intheditchthere. (Pause)You should have driven up and down the street there aways there. DEPUTY PETERSON: Why isthat? MR. JOHNSON: Well, you tellme 

## -- you didn't see theguy. Really? DEPUTY PETERSON: No, I didn't see anybody. MR. JOHNSON: Well, that's your problem. That's notmine. Go back and look forhim. MR. JOHNSON: So what do I dowith thesehandcuffs? DEPUTY PETERSON: Well I am going totake them off you here injust a minute Richard. MR. JOHNSON: Can I go home? DEPUTY PETERSON: Well soon as I, soon as I'mdone with everything we need todo then maybe you can. MR. JOHNSON: This isa lotof funbeinghandcuffed you know. DEPUTY PETERSON: Okay, the time is now 2:08 a.m. on December 8, 1983. I am going toturn the tape off. A videotape of defendant attempting toperform several physical maneuvers at the request of Officer Peterson was taken upon arrivalatthepolice station. Between maneuvers, defendant asked if he could call his attorney. After the

maneuvers werecompleted and an implied consent formwas 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, adviseddefendant of hisrightsand asked ifdefendantwanted toanswer some questions. Defendant replied, "I'd be obliged to, yes.

### " This portion of the videotape was suppressed by thetrialjudge because of defendant's earlierrequest foran attorney. Defendant was incarcerated overnight. On December 19, 1983, an information was filed in Missoula County DistrictCourt 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 trialwas held February 25, 1985. Attrial, 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 atthe Heidelhaus inMissoula, 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, realizinghe was nearly outof gas and had no money, defendant contends he drove toa bar inEast Missoula called "The Cabin" tocash 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 ina "go cup" at"The Cabin" todrinkwith hiswifeupon returninghome. According to defendant's testimony, as he was entering thewest-bound laneof 1-90 from theon-ramp, the steeringin his car locked. It was snowing heavily and the roads were icy. The carheaded forthe 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 hisofferof a ridebut asked theman tophone defendant's wife and a towing service. Thereafter, defendant claims he decided todrink the double shot. Then, remembering some blackberry brandy leftinthe car from theprevious 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.fterdrinking the double shot. Approximately an hour and a half after the car left the road,Officer Petersonappeared. A tow truck arrived shortly thereafter. Defendant's wife allegedlyarrived 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 ofburned rubber were emitting from thatarea. 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. Thepictures were entered into evidence through Officer Peterson to show the location and angle ofdefendant's car. Finally, during rebuttal, Officer Peterson was questioned,based on his experience and training in automobile mechanics, as towhat, in his opinion,happenswhen thepower steering on a vehicle fails. This testimonywas elicited in response to testimony of defendant with respect to the alleged failure of his power steeringmechanism and the performance of his car at that moment. Defendant had been qualified as an expert in the area because ofhis 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 "untilhe receives a probationary driver's license and then only for driving to and fromwork 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 takenby Officer Petersonat 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 thepower steering system in an automobile? 4. Whether the trial judge erred in refusing to grant defendant's motion for a mistrial after the defendant hadbeen 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. THEMOTION TO SUPPRESS

On August 30, 1984, defendant moved to suppress his tape-recorded statement,the videotape ofhis actions and the results of his breathalyzer test. The State's motion in oppositionwas filed September 20, 1984. Then,on October 5, 1984,defendant filed amotion to hold the suppressionhearing 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 individualarrested

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,towalk, or tomake aparticular 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 Schmerberv. California (1966)

## , 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908, 916. Thus,defendant's breathalyzer test resultsare 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; Statev. Purdie

(Mont. 1984), 680P.2d 576,578, 41 St.Rep. 754,756. However, defendant'stape-recorded statement is testimonial and thuspotential-ly self-incriminating. Wemust 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 juvenilewas taken into custody for suspicion of murder. After a police officer fully advised the juvenileofhisMiranda rights,the juvenile asked to see his probation officer. The police denied his request. Thereafter,the juvenilegave a statement implicatinghimself 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 determiningthevoluntarinessof a subsequent waiver of one'srights. Fare, 442 U.S. at 722-725, 99 S.Ct. at 2570-2572, 61L.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 lawdecisions issuedby this Court. Under the Fifth Amendment to the United States Constitution, and under the substantially identically worded Art. 11, Section 25, 1972 Montana Constitution, nopersonmay be compelled to testify against himself in a criminal proceeding. This Court has held theMontana constitutional guarantee of theprivilege 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 inMontana. State v. Finley (1977)

## , 173 Mont. 162, 164-165, 566 P.2d 1119, 1120-1121. See also, State v. Jackson (Mont. 1983)I 672P.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)

## , 672P.2d 255, 40 St.Rep. 1798,a divided courtheld 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 ofprivacy.State v. Solis (Mont. 1984), 693 P.2d 518, 521, 41 St.Rep.

However,we have forged ahead independentof 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 StateConstitution provides in part that "[nlo person shall be denied the equal protection of the laws." Art. 11, S 4, 1972Mont. Const. That provision of our State Constitution, though similar in wording to the last clauseof the Fourteenth Amendment of the Federal Constitution provides a separate ground on which rights of personswithin this statemay 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 federalclause. 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 stateconstitutions. City and County of Denverv. Nielson (1977), 194 Colo. 407, 572-~.2d 484. Federal rights are considered minimal and a state constitutionmay be more demanding than the equivalent federal constitutional provision. Washakie Co. Sch. Dist. No. One v. Herschler (Wyo. 1980), 

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## --- 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. Derasv. 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 rightsunder 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 thismatter. 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

## - ConstitutionalTheory and State Courts, 18Ga.L.Rev. 165, 178 (1984). The proper sequence is to analyze the state's law, including its constitutionallaw,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. (Citationsomitted.) Sterlingv. 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 tocounsel is not and should not he a right easily abridged. The implication of asking to speak to "someone" immediately after the reading ofone'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 thevoluntary 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 initiatedby thedeputy. The entire taped conversation lasted only sevenminutes. Under these facts,we cannot find that defendant

## 's comments constituted a knowing and voluntarywaiver ofhis 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 steeringwheel, forcingthe 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 storydifferent than that uponwhich he previously relied, defendant "opened the door" to the admissibilityof 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 410makes inadmissiblepleas 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 forperjury 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,asa 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. (Citationsomitted.) 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 photographsand thedissimilaritieswere 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 Petersonwas not qualified as an expert witness, his opinion was properly received under Rule 701, M.R.Evid. That rule states: Opinion testimonyby laywitnesses. If the witness is not testifying as an expert,his testimony in the form of opinions or inferences is limited to those opinions or inferenceswhich are (a) rationally based on the perception of the witness and (b)helpful to a clearunderstanding of his testimony or the determination of a fact in issue. Officer Peterson testified solely with respect towhat, on the basis ofhis own experience, happens to avehiclewhen itspower 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 happenswhen 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 steeringproblems severaltimes. We findno 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 inthe lineof duty near the time of trial, resulted ina sympathetic bias on the part of the jury toward the State. The reference occurred while the statewas laying a foundation forthe 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 afterhis car became stuck, the inventory sheetwas relevant evidence. The difficulty of admitting the exhibit without referring to Officer Kimery was obvious and foreseeable. Defendant's remedy was to filea motion in limine prior tothe startof trial. Defendant failedtodo so. We findno 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 injail. In support of his contention, defendant submitted a letter from Dr. James E. Gouaux which states inapplicablepart: I believe hismain health problem related tobeing in jail relates tohis claustrophobia which appa.rently has been going on for fortyor so years and, if it is aggravated by being ina jail cell, might constitute "cruelpunishment." However, defendant offered no evidence in support of his claim that he does indeed suffer from claustrophobia. Dr. Gouaux makes no such diagnosis inhis 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 littleevidence to support defendant's claim that he suffers fromclaustrophobia. 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 trialjudge failed to set forthhis reasons for choosing toincarcerate defendant for 15days. The sentencing judge is required to state his reasons for imposing incarceration on a defendant, even ifthe sentence iswithin the statutory limits for the offense. State v. Stumpf (1980), 187Mont. 225, 609 P.2d 298. The trialjudge hasmet thisrequirement. 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 sufficient to inform a reviewing court and the Sentence Review Board astowhy the sentencewas imposed. Stumpf, 187Mont. at 226, 227, 609 P.2d at 299. No more is required. The sentence isaffirmed. Affirmed

concur: counts.



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Justices