State v

State v. Stueck

Decided Jan. 22, 1998

(NOT TO BE CITED AS AUTHORITY)

No. 97-279

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 9N

STATE OF MONTANA,

Plaintiff and Respondent,

v.

GREGORY SCOTT STUECK,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Karl P. Seel, Attorney at Law, Bozeman, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; C. Mark

Fowler, Assistant Attorney General, Helena, Montana

Marty Lambert, Gallatin County Attorney; Jane

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Mersen, Deputy Gallatin County Attorney, Bozeman,

Montana

Submitted on Briefs: December 4, 1997

Decided: January 22, 1998

JUSTICE LEAPHART delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1996 Internal Operating Rules, the following decision shall not be

cited as precedent but shall be filed as a public document with the

Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number, and result to the State Reporter

Publishing Company and to West Group in the quarterly table of

noncitable cases issued by this Court.

¶2 Gregory Scott Stueck (Stueck) appeals from the decision of the

Eighteenth Judicial District Court, Gallatin County, denying

several motions to suppress and motions to dismiss, and convicting

him of three misdemeanor offenses: failure to stop at the scene of

an accident in violation of Sec. 61-7-103, MCA; failure to give

immediate notice of accident in violation of Sec. 61-7-108, MCA;

and negligent vehicular assault in violation of Sec. 45-5-205, MCA. 

We affirm.

Factual and Procedural Background

¶3 This Court previously reviewed this matter when the State of

Montana (State) appealed from the decision of the District Court

granting Stueck's motion to suppress evidence of Stueck's blood

alcohol concentration (BAC). See State v. Stueck (1996), 280 Mont.

38, 929 P.2d 829 (hereinafter Stueck I). In Stueck I, this Court

held that because Stueck was charged with negligent vehicular

assault, which statutorily encompasses the offense of driving under

the influence, the State's failure to inform Stueck of his rights

under the implied consent law resulted in an illegally obtained

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blood sample which should be suppressed at trial. Thereafter, the

matter proceeded to trial and the jury found Stueck guilty of the

three charged misdemeanor offenses. Stueck appeals the District

Court's decision denying his motion to suppress evidence resulting

from his arrest, denying his motion to dismiss for lack of speedy

trial, denying the defense of primary proof of a confession by

Kristi Stueck (Kristi), allowing the State to present new evidence

during rebuttal argument, denying Stueck's motion for directed

verdict, denying Stueck's motion to dismiss based on destruction of

the evidence, allowing the State to improperly impeach a witness

with the Justice Court transcript, and cumulative error. We set

forth a thorough recitation of the facts at Stueck I; however, we

review the facts in the context of Stueck's current appeal.

¶4 Slightly before midnight on January 19, 1995, Eric Troth

(Troth) was driving west on Interstate 90 from Bozeman to Belgrade. 

He was traveling at approximately 55 mph when, about one mile short

of the Belgrade exit, he was rear-ended by another vehicle. 

Testimony at trial indicated that Troth smashed the rear window of

his truck with the back of his head and suffered other minor

injuries when his truck spun on the highway and rolled into the

median.

¶5 At about the same time, Highway Patrol Officer Joseph Campbell

(Officer Campbell) was proceeding east on Interstate 90 toward

Bozeman. Officer Campbell testified that it was a cold, clear

night and he had just passed the Belgrade interchange when he saw

a big white cloud covering both lanes of traffic in the distance. 

As he approached, Officer Campbell noticed headlights coming toward

him and could see that the vehicle, an older model pickup, was

emitting a cloud of steam or smoke. As the big cloud dissipated,

Officer Campbell noticed faint taillights in the median. When he

got closer, he could see Troth's small truck in the median and

debris covering the highway. He stopped at the accident scene and

saw Troth who was stumbling and appeared disoriented as he

approached Officer Campbell's patrol car. After talking with Troth

for a few minutes, Officer Campbell realized that Troth's vehicle

must have been hit by the pickup he had seen driving toward

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Belgrade. Officer Campbell told Troth to get in the patrol car and

they began following what appeared to be a fluid trail left by the

pickup. The trail led to the Belgrade interchange, made a left

turn at Jackrabbit Lane, and a right turn onto Amsterdam Road, then

started to fade. Officer Campbell drove around the area for a

short time, but decided to return to the accident scene to clean

the debris from the highway and begin his investigation. At this

time, Officer Dennis DeLaittre (Officer DeLaittre) radioed that he

was in the area and headed toward the accident scene. 

 

¶6 In an attempt to find the driver of the pickup, Officer

DeLaittre followed the fluid trail while Officer Campbell cleared

the highway and investigated the scene of the accident. Officer

DeLaittre was able to follow the trail on Amsterdam Road, then onto

Thorpe Road and eventually to Stueck's home on Thorpe Road where a

light blue pickup truck sat in the driveway. By shining his

spotlight on the area, Officer DeLaittre could see the license

plate on the truck and front-end damage which appeared to be fresh

compared to other dirt on the vehicle. Officer DeLaittre radioed

Officer Campbell to meet him at Stueck's home and radioed the

station to get information on the registration of the pickup. A

search of the registration revealed that Don Stueck was the

registered owner of the pickup. The dispatch operator called Don

Stueck who indicated that his son Greg had borrowed the pickup. 

Officers Campbell and DeLaittre requested that the dispatch

operator call Stueck's home and awaken the occupants for

questioning.

¶7 At approximately 1:00 a.m., Kristi answered the phone and was

informed that highway patrol officers were waiting outside. Kristi

went to the door and the officers informed her that they were

investigating a hit-and-run accident and wanted to talk to the

driver of the pickup. Kristi appeared surprised and concerned

about the "hit" driver who had been injured and indicated that her

husband had been driving earlier when he went to work out. The

officers then asked to speak to Stueck. Kristi made two attempts

to wake Stueck. The officers indicated that if she was not able to

wake him, they would return with a warrant.

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¶8 The officers were waiting near their patrol cars when Stueck

finally appeared at the door. Both officers testified that Stueck

waved to them to come toward the door. Kristi and Stueck claim

that they did not invite the officers in, but both officers recall

that Stueck motioned for them to enter the house. While standing

in the foyer of the Stuecks' home, the officers asked Stueck who

had been driving that night. Stueck indicated that his friend

"Bill" was driving, but that he did not know Bill's last name or

where Bill lived. The officers asked if the pickup was registered

and insured, Stueck indicated that it was and began putting his

shoes on in an attempt to go to the truck to retrieve the

registration and proof of insurance. 

¶9 The officers testified that Stueck appeared intoxicated, had

a great deal of trouble putting his shoes on, slurred his words and

had a short attention span. The officers further testified that as

they were asking questions, Stueck succeeded in putting his shoes

on, then suddenly bolted out the door toward the pickup. Officer

Campbell caught up with Stueck as he reached the driver's side of

the pickup. Upon further questioning by Officer Campbell about who

was driving the pickup, Stueck admitted that he was driving,

explained that he must have fallen asleep on the highway and that

he woke up upon feeling the impact of the accident. He further

explained that he panicked so he did not stop, but just continued

home. Officer Campbell was placing Stueck under arrest as Officer

DeLaittre approached. At this time, Kristi was in the house

finding an inhaler for Stueck. When she returned, Stueck was under

arrest. Stueck was given Miranda warnings and asserted his right

to an attorney. Officer Campbell transported Stueck to the

hospital where a blood sample was forcibly drawn, then to the

police station for booking. Officer DeLaittre stayed behind with

the pickup which was impounded that night.

¶10 The next morning Officers Campbell and DeLaittre applied for

and received a warrant to search the pickup. They conducted the

search at the impound lot. They found that the truck was full of

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gear to the point that there was only room for one individual in

the cab of the pickup. They also found remnants of blue plastic

attached to the front bumper of the pickup, the remnants matched

blue plastic bag that Troth had in the back of his truck.

¶11 Stueck was charged with three misdemeanor offenses: failure

to stop at the scene of an accident in violation of Sec. 61-7-103,

MCA; failure to give immediate notice of accident in violation of

Sec. 61-7-108, MCA; and negligent vehicular assault in violation of

Sec. 45-5-205, MCA. 

¶12 On February 14, 1996, Kristi wrote a letter to the State

indicating that she was driving the pickup on the evening of the

accident. The State subpoenaed Kristi for questioning but she

asserted her Fifth Amendment right against self-incrimination. The

State continued to pursue its charges against Stueck.

¶13 At the Justice Court level, Stueck moved to suppress certain

evidence including the BAC evidence. The Justice Court held a

hearing on May 17, 1995 and subsequently granted the motion. The

State appealed the decision to the District Court and Stueck

cross-appealed. The District Court held a hearing on November 22,

1995 and granted the motion to suppress the BAC evidence. The

State appealed the decision of the District Court to this Court. 

We affirmed at Stueck I. The case finally proceeded to trial on

March 24-25, 1997 (over two years after Stueck's arrest) and the

jury found Stueck guilty of the three misdemeanor offenses. Stueck

presents eight issues for appeal; we restate them as follows:

¶14 1) Did the District Court err in denying Stueck's motion to

suppress evidence resulting from: a) an illegal nighttime arrest in

violation of Sec. 46-6-105, MCA, the Fourth Amendment of the United

States Constitution and Article II, Section 10 of the Montana

Constitution; b) the officers' warrantless entry onto Stueck's

property; and c) violation of Stueck's Miranda rights?

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¶15 2) Did the District Court err in denying Stueck's motion to

dismiss based on denial of a speedy trial in violation of Sec.

46-13-401(2), MCA, and Article II, Section 24 of the Montana

Constitution?

¶16 3) Did the District Court abuse its discretion by preventing

the jury from reviewing Kristi's confession letter during

deliberations?

¶17 4) Did the District Court err in allowing the State to offer

new evidence during its rebuttal argument?

¶18 5) Did the District Court err in denying Stueck's motion for

directed verdict?

¶19 6) Did the District Court err in denying Stueck's motion to

dismiss based on destruction of the evidence?

¶20 7) Did the District Court err in allowing the State to impeach

Kristi with the use of the Justice Court transcript?

¶21 8) Did the cumulative errors in this case prevent Stueck from

obtaining a fair trial?

Discussion

Issue 1

¶22 1) Did the District Court err in denying Stueck's motion to

suppress evidence resulting from: a) an illegal nighttime arrest in

violation of Sec. 46-6-105, MCA, the Fourth Amendment of the United

States Constitution and Article II, Section 10 of the Montana

Constitution; b) the officers' warrantless entry into Stueck's

property; and c) violation of Stueck's Miranda rights?

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¶23 The standard of review of a district court's denial of a

motion to suppress is whether the court's findings of fact were

clearly erroneous, and whether those findings were correctly

applied as a matter of law. State v. Williams (1995), 273 Mont.

459, 462, 904 P.2d 1019, 1021. Stueck asserts that the District

Court erred in denying his motion to suppress evidence on three

grounds. His first argument is that the State, in violation of

Sec. 46-6-105, MCA, and his constitutional right of privacy,

arrested him at night for misdemeanor offenses that occurred at

another time and place.

¶24 Section 46-6-105, MCA, provides in pertinent part that "[a]n

arrest may be made at any time of the day or night, except that a

person may not be arrested in the person's home or private dwelling

place at night for a misdemeanor committed at some other time and

place unless upon the direction of a judge endorsed upon an arrest

warrant." The State argues that because the actual taking into

custody of Stueck occurred in his driveway, the actions of the

officers did not violate Stueck's right of privacy and did not

violate the statute. We disagree. 

¶25 In another case involving an alleged violation of Sec.

46-6-105, MCA, State v. Ellinger (1986), 223 Mont. 349, 725 P.2d

1201, Undersheriff Fisher was investigating a citizen report that

a truck was being driven in a reckless manner and that the driver

appeared intoxicated. The eyewitness provided a description of the

vehicle and the license plate number. Undersheriff Fisher went to

Ellinger's house and found the truck parked in the driveway. 

Ellinger then stepped out of his house and leaned against the

doorway. Undersheriff Fisher asked Ellinger to perform two field

sobriety tests. Ellinger failed the tests and Undersheriff Fisher

arrested Ellinger on the walkway for driving under the influence. 

Ellinger claimed he was arrested in violation of Sec. 46-6-105,

MCA. We compared Ellinger's facts to those presented in Welsh v.

Wisconsin (1984), 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732, and

focused on three key points: "First, Undersheriff Fisher never

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entered defendant's house. . . . Second, . . . the time of arrest

was . . . 7:34 p.m. . . . [which] [w]hen viewed in a light most

favorable to defendant . . . might be considered twilight, but

certainly not 'night.' . . . Third, . . . defendant Ellinger was

arrested for the criminal offense of driving while under the

influence of alcohol." Ellinger, 725 P.2d at 1203-04. In

evaluating the totality of the circumstances, we concluded that

because Ellinger's arrest for a criminal offense did not occur in

his house or at night, Sec. 46-6-105, MCA, and Ellinger's

corresponding expectation of privacy were not violated. Ellinger,

725 P.2d at 1204.

¶26 Despite the fact that Stueck's actual arrest occurred in his

driveway, we conclude that the totality of the circumstances

surrounding his arrest violated Sec. 46-6-105, MCA, and Stueck's

corresponding right of privacy. The investigative techniques

employed by Officers Campbell and DeLaittre violate Montana

statutory prohibitions and do not withstand constitutional muster. 

The prohibitory language of Sec. 46-6-105, MCA, restricting

officers from arresting persons in their homes at night, was meant

to prevent the interrogation of individuals in the privacy of their

homes that occurred in this case. See Commission Comments to Sec.

46-6-105, MCA (stating that "[t]his restriction was imposed to

prevent the police from harassing a person or searching his home on

the pretext of arresting him for a misdemeanor committed at some

other time and place. Allowing the police to arrest for a

misdemeanor at night can be an effective law enforcement tool

provided it is not used as a sham to torment a citizen in his

home").

¶27 Officers Campbell and DeLaittre stated that they did not, at

any time, intend to charge Stueck with an offense other than the

misdemeanors of which he was eventually found guilty. Moreover, it

is not disputed that 1:00 a.m. is nighttime, or that the officers

were pursuing Stueck for an offense committed earlier that night

and at another location. Therefore, the officers' actions of

requesting that the dispatch operator call and awaken the occupants

of the home at 1:00 a.m. in order to speak with the officers

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waiting in the driveway went beyond permissible investigatory

techniques. Furthermore, the officers' insisting that Kristi awaken

Stueck and eventually threatening to get a warrant in order to gain

access to the Stueck home could be characterized as harassing. 

Finally, the officers' luring of Stueck into the driveway by

requesting the vehicle registration and proof of insurance violates

the spirit of Sec. 46-6-105, MCA.

¶28 Despite the unlawful nature of the officers' arrest of Stueck

at his home at night for the misdemeanor offenses which were

committed at some other time and place, the relief which Stueck

requests, suppression of evidence, does not fit the facts of this

case. In City of Billings v. Whalen (1990), 242 Mont. 293, 790 P.2d

471, we determined that the arrest of Whalen while straddling the

threshold of his home for the misdemeanor offense of cutting the

corner on a left-hand turn, which upon further investigation led to

a DUI charge, was an illegal arrest in violation of Sec. 46-6-105,

MCA. We held that all evidence seized as a result of the illegal

arrest should be suppressed. Whalen, 790 P.2d at 475. However, in

the present case there are no "fruits of the poisonous tree" to

suppress. The relevant evidence that the State used to convict

Stueck at trial, including his admission to the crime, was obtained

prior to the illegal arrest or obtained later with a warrant. In

addition, the information used to obtain the warrant was

information known to the officers prior to placing Stueck under

arrest. Therefore, while the District Court erred in finding that

the officers did not violate Sec. 46-6-105, MCA, and Stueck's

corresponding right of privacy, we conclude that the District Court

reached the proper result by denying the motion to suppress. "We

affirm district court decisions which are correct regardless of the

court's reasoning in reaching the decision." Clark v. Eagle

Systems (1996), 279 Mont. 279, 286, 927 P.2d 995, 999.

¶29 Stueck next claims that the District Court erred in denying

his motion to suppress unspecified physical evidence seized by the

officers and statements made by Stueck and Kristi as a result of

the officers' warrantless entry onto Stueck's private property. In

support of his claim that the officers illegally entered his

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property, Stueck asserts that his home is surrounded by a fence,

and a stop sign appears at the entry to his driveway. Stueck

claims that by taking these additional measures he intended to

protect his privacy much like the individuals in State v. Bullock

(1995), 272 Mont. 361, 901 P.2d 61. The State contends that in

contrast to Bullock, "here the residents of the Stueck house took

no steps to protect the area in front of their home, including the

driveway area and the front door area of the house, from

observation by passersby." Testimony at trial revealed that the

driveway was not gated and that the officers did not notice a stop

sign at the entry. Although Kristi testified that by hanging the

stop sign the Stuecks intended to stop trespassers, most

individuals faced with a stop sign would not interpret the sign as

prohibiting trespassing. We conclude that the Bullock decision is

distinguishable from this case and that the officers did not

violate Stueck's right of privacy by entering the driveway. 

Furthermore, Stueck fails to specify any illegally obtained

evidence that should be suppressed as a result of the officers'

warrantless entry. Therefore, the District Court did not err in

denying Stueck's motion to suppress based on the officers'

warrantless entry onto the Stuecks' property. 

¶30 Third, Stueck claims that the officers violated his Miranda

rights and any evidence obtained as a result, including his

confession, should be suppressed. This Court has adopted the

United States Supreme Court's rule in Miranda v. Arizona (1966),

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, "that states may not

use confessions or admissions resulting from a 'custodial

interrogation' unless the proper Miranda warnings have been given." 

State v. Rushton (1994), 264 Mont. 248, 255, 870 P.2d 1355, 1359

(citing Miranda, 384 U.S. at 444). Custodial interrogation is

defined as " 'questioning initiated by law enforcement officers

after a person has been taken into custody or otherwise deprived of

his freedom of action in any significant way.' " Rushton, 870 P.2d

at 1359 (quoting Miranda, 384 U.S. at 444). In addition, "[t]his

Court has established guidelines for determining when a 'custodial

interrogation' occurs. If a person has no free right to leave,

either from the express or implied conduct of police officers, then

the interrogation is custodial in nature." Rushton, 870 P.2d at

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1360 (citing Ellinger, 725 P.2d at 1204). 

¶31 Stueck claims that, considering the circumstances of his

confession, "the only possible conclusion is that a person in Mr.

Stueck's position would reasonably believe that his freedom was

restricted." We disagree. In fact, as the State points out,

Stueck did not answer many of the questions asked as he was

concentrating too hard on putting his shoes on. When he finally

got the shoes on, he suddenly bolted out the door in search of the

registration and proof of insurance requested by the officers. 

Therefore, we conclude that the questioning of Stueck that

eventually led to his confession was not custodial in nature and

thus, Stueck's Miranda rights were not violated. 

¶32 As a corollary matter to this first issue, Stueck's reply

brief invited this Court to adopt a new standard of review for

"warrantless activity." Stueck suggests that this Court should

review the issues de novo. This argument is in response to the

State's brief which asserts that this Court cannot review issues

which involve credibility of witnesses or weight of the evidence in

determining whether the district court properly denied a motion to

suppress. The State has thus moved to strike Stueck's argument

claiming that it violates Rule 23(c), M.R.App.P., by raising new

matters beyond the issues raised in the State's answer brief. 

After allowing supplemental briefing by the State on this matter,

we determine that the State's motion to strike should be denied. 

We have reviewed the standard of review argument submitted by both

parties and determine that Ornelas v. United States (1996), 517

U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911, cited by Stueck, is not

controlling in this case. The Ornelas decision sets a standard of

review for determining probable cause or reasonable suspicion and

allows the Supreme Court to review those determinations de novo. 

Ornelas does not set forth the standard of review for determining

whether or not the district court erred in denying a motion to

suppress, the issue raised in this appeal. As set forth above,

this Court reviews a district court's denial of a motion to

suppress by determining whether the court's findings of fact were

clearly erroneous, and whether those findings were correctly

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applied as a matter of law. Williams, 904 P.2d at 1021. 

Issue 2

¶33 2) Did the District Court err in denying Stueck's motion to

dismiss based on denial of a speedy trial in violation of Sec.

46-13-401(2), MCA, and Article II, Section 24 of the Montana

Constitution?

¶34 Stueck argues that the State's unsuccessful appeals prevented

him from receiving a speedy trial and thus denied his statutory and

constitutional rights. Stueck relies on Article II, Section 24 of

the Montana Constitution and Sec. 46-13-401(2), MCA, to support his

claim. Section 46-13-401(2), MCA, states: "After the entry of a

plea upon a misdemeanor charge, the court, unless good cause to the

contrary is shown, shall order the prosecution to be dismissed,

with prejudice, if a defendant whose trial has not been postponed

upon the defendant's motion is not brought to trial within six

months." Both the State and Stueck agree that the trial did not

begin until 794 days had passed after Stueck's arrest. Stueck

argues simply that the period expired and requests that the charges

against him be dismissed. However, the State asserts that Stueck

cannot establish that the delay in bringing him to trial was the

State's fault. 

¶35 The standard of review of a district court's denial of a

motion to dismiss on speedy trial grounds is whether the court's

interpretation of the law is correct. State v. Foshee (Mont.

1997), 938 P.2d 601, 604. The State

argues, first, that Sec. 46-13-401(2), MCA, does not apply because

the Justice Court action was exhausted within the prescribed

six-month period. In so arguing, the State relies on Bullock. In

Bullock, this Court held that so long as the justice court

jurisdiction is exhausted by some action authorizing an appeal de

novo to district court, the six-month requirement of Sec.

46-13-104(2), MCA, has been satisfied. Bullock, 901 P.2d at 67. 

The State further asserts that once the State takes an appeal to

the district court, this Court analyzes a speedy trial claim under

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the four-part test set forth in Barker v. Wingo (1972), 407 U.S.

514, 92 S.Ct. 2182, 33 L.Ed.2d 101, adopted by this Court in State

ex rel. Briceno v. District Court (1977), 173 Mont. 516, 568 P.2d

162; see also Bullock, 901 P.2d at 67. In determining whether a

defendant has been denied a speedy trial, this Court considers: 1)

length of delay; 2) reason for delay; 3) assertion of the right by

defendant; and 4) prejudice to the defendant. Briceno, 568 P.2d at

164. While no single factor is determinative, the court weighs

each facet of the analysis in light of the surrounding facts and

circumstances. State v. VanVoast (1991), 247 Mont. 194, 200, 805

P.2d 1380, 1384.

¶36 As a preliminary matter, the State concedes that the first

Barker factor weighs in favor of Stueck's claim because the length

of delay in this case, 794 days, is presumptively prejudicial. 

Thus, the State has the burden of providing a reasonable

explanation for the delay and showing that the defendant was not

prejudiced by the delay. VanVoast, 805 P.2d at 1384. The State,

however, argues that the remaining factors of the Barker test

weigh in its favor. Much of the delay was caused by the State's

interlocutory appeal to this Court regarding the District Court's

suppression of the BAC evidence and is considered institutional

delay. In State v. Moore (1994), 268 Mont. 20, 885 P.2d 457,

overruled on other grounds by State v. Gollehon (1993), 262 Mont.

293, 864 P.2d 1257, this Court reviewed a similar situation. In

Moore, the delay was one year and ten months (692 days) and was the

result of the State's appeal to this Court. We reasoned that:

If the issues raised by the government's interlocutory appeal

 were "clearly tangential or frivolous," the delay should

 be weighed heavily against the government. However, when

 the government's conduct is reasonable, and there has

 been no showing of bad faith or dilatory purpose on the

 part of the government, delays occasioned by the

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 government's interlocutory appeals should not weigh in

 favor of a defendant's speedy trial claim.

Moore, 885 P.2d at 487 (citations omitted). The State in this case

appealed the district court's suppression of the BAC evidence. The

evidence was important to the State's case because the offense of

negligent vehicular assault requires that the State show that

Stueck was driving under the influence. Moreover, the

interlocutory appeal resulted in a new rule of law requiring that

the implied consent statute be applied to Sec. 45-5-205, MCA. 

Since the State's appeal was not made in bad faith or for a

dilatory purpose, the resulting delay should not weigh heavily

against the State.

¶37 Next, the State claims that Stueck showed a lack of interest

in his speedy trial claim by waiting to file his motion to dismiss

until three days before trial. In Briceno, we stated that " '[t]he

"appropriate motion" is a motion to dismiss for denial of a speedy

trial. The proper time to assert the right to a speedy trial is

prior to the actual commencement of the trial, usually at the time

the trial date is set, or the time the case is called to trial.' " 

Briceno, 568 P.2d at 165 (quoting State v. Steward (1975), 168

Mont. 385, 390, 543 P.2d 178, 182). However, since Briceno, this

Court has set forth stricter standards for asserting a speedy trial

claim. For example, the State directs the Court to its decision in

State v. Williams-Rusch (1996), 279 Mont. 437, 451, 928 P.2d 169,

178. In Williams-Rusch, we held that by filing her motion to

dismiss only one week prior to the commencement of trial,

Williams-Rusch showed a lack of interest in her speedy trial

rights. Additionally, in State v. Thompson, we concluded that when

the defendant failed to object at the omnibus hearing, and did not

request a speedier trial setting, the defendant's claim of prompt

assertion of his speedy trial right was questionable and weak. 

State v. Thompson (1993), 263 Mont. 17, 32-33, 865 P.2d 1125, 1135. 

¶38 The State claims that Stueck had several opportunities to

object but did nothing until three days before trial. A review of

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the record reveals that at the omnibus hearing held September 12,

1995, Stueck asserted his intention to make a formal written motion

to dismiss for delay in prosecution. The record, however, is

devoid of such a motion. In addition, Stueck filed a cross-appeal

to each appeal filed by the State, did not object to the State's

motion for continuance, and, in fact, Stueck filed his own motion

for continuance on January 16, 1996. As a result, we conclude that

the third-prong of the Barker test does not weigh in favor of

Stueck's speedy trial claim.

¶39 Under the fourth Barker factor, the Court must determine the

prejudice to Stueck as a result of the delay of prosecution. The

Court analyzes three factors in determining prejudice from lack of

speedy trial: 1) prevent oppressive pretrial incarceration; 2)

minimize anxiety and concern of the accused; and 3) limit the

possibility that the defense will be impaired. Barker, 407 U.S. at

532. First, the State asserts that Stueck was arrested on January

20, 1995, he was taken to Gallatin County Detention Center where he

was booked and taken before the court the same day. The court

released Stueck on bond. Therefore, Stueck has not suffered

oppressive pretrial incarceration. 

¶40 Next, this Court has recognized that "[a] certain amount of

anxiety and concern is inherent in being accused of a criminal

offense." State v. Marquardt (1990), 243 Mont. 133, 137, 793 P.2d

799, 801. Stueck, however, has not alleged suffering any anxiety

and concern, let alone any unusual anxiety and concern that would

evidence prejudice.

¶41 Finally, the crucial factor used in determining if the

defendant has been prejudiced by the delay is whether the defense

has been impaired. VanVoast, 805 P.2d at 1385. In determining

whether the defense has been impaired, we consider whether

witnesses essential to the defense have died, are not available to

testify or have suffered memory loss, or whether other evidence

essential to the defense has been lost. See VanVoast, 805 P.2d at

1385; Moore, 885 P.2d at 488. Stueck has made no allegations that

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witnesses died or were otherwise not available. Kristi Stueck

testified at trial that she could not recall all the events of the

night of the accident nor could she recall her prior testimony at

the Justice Court evidentiary hearing; however, review of the

record does not reveal that the defense was impaired by Kristi's

inability to recall some of the events. As to lost evidence,

although, as will be discussed more thoroughly in regards to issue

six, the physical evidence in this case was misplaced when the

highway patrol office relocated, no evidence essential to the

defense was lost, nor have any allegations to that effect been made

in support of Stueck's speedy trial claim. 

¶42 Having balanced the four Barker factors, we conclude that

Stueck was not deprived of his constitutional right to a speedy

trial and that the District Court did not err in denying Stueck's

motion to dismiss for lack of speedy trial. 

Issue 3

¶43 3) Did the District Court abuse its discretion by preventing

the jury from reviewing Kristi's confession letter during

deliberations?

¶44 Stueck's defense at trial was that Kristi was the driver of

the pickup on the night of the accident. Kristi wrote a confession

letter to the State to that effect. The letter was admitted into

evidence as Exhibit 14 and at the conclusion of trial, Stueck

sought to have the letter given to the jurors to review during

deliberations. The District Court denied Stueck's request. Stueck

claims on appeal that denying the jury of the hard copy of the

letter to review during deliberations "underemphasize[d] this

critical defense evidence."

¶45 Section 46-16-504, MCA, controls what items may be taken into

the jury room. That section provides: "Upon retiring for

deliberation, the jurors may take with them the written jury

instructions read by the court, notes of the proceedings taken by

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themselves, and all exhibits that have been received as evidence in

the cause that in the opinion of the court will be necessary." 

Section 46-16-504, MCA (1995) (emphasis added). Thus, the district

court has discretion to determine what exhibits will be necessary. 

This Court will not overturn a district court decision regarding

the availability of evidence during deliberations absent an abuse

of discretion by the district court. State v. Hage (1993), 258

Mont. 498, 503, 853 P.2d 1251, 1253; State v. Christenson (1991),

250 Mont. 351, 361, 820 P.2d 1303, 1309-10. The District Court

concluded that allowing the jury to take the confession letter by

Kristi "would over emphasize written word over the testimonial

word." The record reveals that the confession letter was admitted

into evidence and was discussed throughout Kristi's testimony. In

addition, both parties mentioned the letter during closing

arguments. The jury heard sufficient evidence regarding the

confession letter and had ample opportunity to weigh that evidence

in light of the other available evidence. Therefore, we hold that

the District Court did not abuse its discretion in ruling that the

confession letter would not be given to the jury during

deliberations.

Issue 4

¶46 4) Did the District Court err in allowing the State to offer

new evidence during its rebuttal argument?

¶47 Evidence presented at trial indicated that Kristi was at a bar

with Stueck the evening of the accident, and Stueck argued in his

defense that Kristi was driving when the accident occurred. In

response, the State raised the following query during its rebuttal

argument:

Where's the babysitter? You heard [Kristi] say she didn't want

 the officers in the house because she had a two and a

 three-year old there. You heard the officers testify

 that there were no other adults in the house that they

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 saw. . . . [Kristi] [d]idn't say anything about taking a

 babysitter home. Were the two and three-year old there

 all by themselves? No. She was there with them. That's

 more evidence that you have that shows her statement is

 highly incredible.

¶48 Stueck argues that the District Court erred in allowing the

State to mention the absence of a babysitter during its rebuttal

argument and further erred in failing to instruct the jury not to

consider that portion of the State's rebuttal argument. However,

throughout this line of argument by the State, Stueck did not

object. The issue was only raised when the jury began its

deliberations and inquired of the court: "Can anyone explain the

absence of the babysitter, presumably Mrs. Stueck did come home

with her husband. If there were no other tracks in the roadway,

explain how he or she got home!" Stueck argues that the court

should have instructed the jury that any reference to a babysitter

in rebuttal should not have been considered. Instead, the court

brought the jurors back to the courtroom and instructed them that

the question would not be answered because the record was closed,

and the case must be decided on the state of the record. In

addition, the court called attention to the instruction which

states that the jury is governed by the evidence introduced at

trial and to the instruction that defines direct and circumstantial

evidence.

¶49 The State's counter argument is two-fold. It argues, first,

that this Court should not consider Stueck's argument based on his

failure to cite any legal authority in support of his argument. In

addition, the State argues that Stueck's failure to make a timely

objection at trial precludes this Court from considering the

alleged error. In support, the State cites Sec. 46-20-104, MCA,

which provides in part that "[f]ailure to make a timely objection

during trial constitutes a waiver of the objection . . . ." This

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Court has held under the contemporaneous objection rule, Sec.

46-20-104, MCA, that it is precluded from considering an alleged

error unless a timely objection was made at trial. State v.

Rodgers (1993), 257 Mont. 413, 417-18 849 P.2d 1028, 1031. Stueck

asserts that the State's argument regarding the babysitter should

not have been considered by the jury; however, he failed to make a

timely objection during the State's closing argument and waited

until the issue was raised by the jury. Therefore, we conclude

that Stueck's failure to object constitutes a waiver of his claim

under Sec. 46-20-104, MCA, and hold that the District Court did not

err in instructing the jury to decide the case on the state of the

record.

Issue 5

¶50 5) Did the District Court err in denying Stueck's motion for

directed verdict?

¶51 The standard of review of a district court's denial of a

motion for a directed verdict on the ground of insufficiency of the

evidence is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt. State v. Johnson (1996), 276 Mont. 447, 450, 918 P.2d 293,

294. The crux of Stueck's argument is that Stueck's confession was

obtained in violation of Miranda and, without the confession, the

State presented insufficient evidence to withstand a motion for

directed verdict. We disagree for two reasons. First, as

discussed above, Stueck's confession was not obtained in violation

of Miranda because Stueck was not in custody when he confessed. 

Second, in addition to Stueck's confession, the State presented

sufficient evidence, when viewed in a light most favorable to the

prosecution, to support a jury's finding the essential elements of

the crime beyond a reasonable doubt. Therefore, we hold that the

District Court did not err in denying Stueck's motion for directed

verdict. 

Issue 6

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¶52 6) Did the District Court err in denying Stueck's motion to

dismiss based on destruction of the evidence?

¶53 The morning of trial, the State revealed that physical

evidence, which was seized during the search conducted pursuant to

the search warrant and items found at the scene of the accident,

was misplaced during the relocation of the highway patrol office. 

Stueck moved to dismiss the charges against him claiming that he

would not be able to cross- examine regarding the physical

evidence, and that the State could not prove corpus delicti without

the physical evidence. The court ruled that the State could proceed

with photographs taken by the officers of relevant evidence such as

pieces of blue plastic attached to the bumper of Stueck's pickup,

a blue paint transfer from Stueck's pickup onto Troth's truck, and

pieces of Troth's taillight found on Stueck's bumper. A proper

foundation was laid for admitting the photos into evidence. 

¶54 Stueck argues on appeal that the lack of physical evidence in

this case "strengthens the defense motions to suppress and

dismiss." In addition, Stueck claims that admission of the

photographic evidence was error. However, Stueck fails to

illustrate how he was prejudiced or denied any rights by the

State's misplacement of the physical evidence. 

¶55 In State v. Close (1994), 267 Mont. 44, 49-50, 881 P.2d 1312,

1315-16, Close argued that the State violated his due process

rights by failing to preserve evidence. We concluded that Close

failed to show that the evidence would be of substantial use or

would have tended to clear him from guilt. Close, 881 P.2d at

1316. As a result, we held that the district court did not err in

denying Close's motion to dismiss for failure to preserve evidence. 

Close, 881 P.2d at 1316. Likewise, Stueck has failed to show any

prejudice or damage to his defense resulting from the misplacement

of the physical evidence in this case. Therefore, we conclude that

the District Court did not err in denying Stueck's motion to

dismiss based on destruction of the evidence. 

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Issue 7

¶56 7) Did the District Court err in allowing the State to impeach

Kristi with the use of the Justice Court transcript?

¶57 During examination of Kristi, the State asked questions

pertaining to testimony Kristi gave at an evidentiary hearing in

Justice Court. The hearing had been tape recorded, and a court

reporter produced a written transcript of the tape. Stueck

objected to the use of the transcript from the Justice Court

claiming it was not an official record. The District Court, after

hearing foundational testimony from the court reporter, allowed the

State to question Kristi about her previous testimony in the

Justice Court. On appeal, Stueck asserts that there was no

foundation laid at the Justice Court or by the court reporter that

verified the authenticity or history of the tape. 

¶58 The standard of review for evidentiary rulings is whether the

district court abused its discretion. State v. Gollehon (1993),

262 Mont. 293, 301, 864 P.2d 1257, 1263. The court has broad

discretion to determine whether or not evidence is relevant and

admissible, and absent a showing of an abuse of discretion, the

trial court's determination will not be overturned. Gollehon, 864

P.2d at 1263. Rule 613(b), M.R.Evid., provides that "[e]xtrinsic

evidence of a prior inconsistent statement by a witness is not

admissible unless the witness is afforded an opportunity to explain

or deny the same and the opposite party is afforded an opportunity

to interrogate the witness thereon, or the interests of justice

otherwise require." The District Court's ruling that the State

could use the Justice Court transcript to impeach Kristi was not

error because the court complied with the Montana Rules of

Evidence. First, the State laid a foundation for admission of the

transcript through the testimony of the court reporter in

compliance with the authentication requirements of Rule 901(a),

M.R.Evid. Second, at trial the State afforded Kristi an

opportunity to explain her prior testimony. Finally, Stueck was

afforded an opportunity to interrogate Kristi regarding the

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testimony from the Justice Court. Therefore, we hold that the

District Court did not abuse its discretion in allowing the State

to impeach Kristi with the Justice Court testimony. 

Issue 8

¶59 8) Did the cumulative errors in this case prevent Stueck from

obtaining a fair trial?

¶60 Finally, Stueck asserts that the cumulative errors in this

case prevented him from obtaining a fair trial. In support of his

claim, Stueck cites State v. McKenzie (1978), 177 Mont. 280, 581

P.2d 1205. In McKenzie, we explained that "cumulative error"

refers to a number of errors which prejudice defendant's right to

a fair trial. McKenzie, 581 P.2d at 1226. We held that since no

substantial errors were committed, the doctrine of cumulative error

did not apply. McKenzie, 581 P.2d at 1226. Likewise, Stueck has

failed to establish cumulative errors prejudicing his rights. 

Therefore, we hold that the doctrine of cumulative error does not

apply, and that Stueck was not prevented from obtaining a fair

trial. Affirmed. 

 /S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

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