City of Billings v. Nolan

385 Mont. 190

383 P.3d 219

2016 MT 266

City of Billings, Plaintiff and Appellee,

v.Donnie Derrell Nolan, Defendant and Appellant.

DA 15-0009

Supreme Court of Montana.

Submitted on Briefs: August 10, 2016

Decided: October 25, 2016

For Appellant: Chad M. Wright, Chief Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Brent Brooks, Billings City Attorney, Melanie S. Jack, Deputy City Attorney, Billings, Montana.

Justice Laurie McKinnon delivered the Opinion of the Court.

¶ 1 Donnie Derrell Nolan (Nolan) was convicted, following a jury trial in the Billings Municipal Court, of reckless driving (in violation of § 61–8–301(1)(a), MCA ) and failing to yield to an emergency vehicle (in violation of § 61–8–346(1), MCA ). Nolan appealed to the Thirteenth Judicial District Court, Yellowstone County, arguing that the victim's in-court identification was impermissibly suggestive and unreliable. Nolan also argued that Officer Boeckel's testimony regarding vehicle registration information received from dispatch was hearsay and inadmissible.¹ The District Court, confining its review to the record and questions of law, denied Nolan's appeal. Nolan appeals the District Court's order and reinstatement of his sentence. We affirm.

¶ 2 Nolan presents the following issues for review:

1. Whether the trial court erred in allowing the victim's in-court identification of Nolan at trial.

2. Whether the trial court abused its discretion when it admitted testimony concerning vehicle registration information received from police dispatch.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On June 20, 2013, Beth Jones was driving west on Rimrock Road in Billings in her red Dodge Charger. Her daughter, Emily, was in the passenger seat. As they turned left onto Rimrock Road, a white car was turning right and honked at them. Beth saw the car take a sudden U-turn and begin traveling in the same direction as she was. Using the center turn lane, the white car sped up to the Jones' vehicle. The white car then pulled even with the Jones' vehicle and the driver yelled at Beth, “You're a dead bitch.” The driver yelled this twice. Beth and Emily identified the white car as a four door Cadillac.

¶ 4 Beth attempted to flee from the Cadillac by speeding up and slowing down erratically. The driver of the Cadillac cut her off and nearly hit Beth's vehicle several times with his vehicle. Beth honked at other drivers to alert them that she needed help. Beth drove between fifty and seventy miles per hour trying to get away from the Cadillac. Finally, Beth was able to lose the Cadillac by taking a sharp right turn onto a side street. Beth and Emily testified that they were terrified of the driver and thought he was coming after them to hijack their car, hurt them, or both.

¶ 5 Once they had escaped, Emily called 911 and reported the incident. They described the driver of the white Cadillac as a black male, with short hair, no facial hair, and wearing a white tank-top. During the 911 call Emily and Beth can be heard responding to the emergency operator's questions. Neither Emily nor Beth was able to get the license plate number of the white Cadillac. Emily estimated the age of the driver to be late twenties or early thirties. Beth interjected that, “He was young.” As Beth and Emily were parked and speaking to the operator, Beth said the Cadillac just drove by heading east on Rimrock Road.

¶ 6 Jason Jessen (Jessen) was also driving westbound on Rimrock Road and in his rearview mirror he observed a woman driving a red Charger approaching him at a high rate of speed. Jessen noticed the woman honking and waving and saw she was being chased by a man driving a white Cadillac. Jessen pulled to the side of the road to allow the Charger to pass. He observed that the Cadillac was causing on-coming traffic to pull over to avoid a collision. Jessen stated the Cadillac was driving erratically and swerving intentionally to hit the red Charger. Jessen called 911 and reported what he had seen.

¶ 7 Officer Jeremy Boeckel (Officer Boeckel) of the Billings Police Department heard dispatch report that two cars, a red Charger and a white Cadillac, were racing down Rimrock Road. While driving westbound on Rimrock Road, Officer Boeckel saw a white, four-door Cadillac traveling eastbound. Officer Boeckel, who was able to observe the driver as the Cadillac passed, described the driver as a black male wearing a white tank-top, with short black hair. Officer Boeckel confirmed the description of the vehicle and driver with dispatch as the vehicle involved in the 911 call. Officer Boeckel turned around and activated his lights and siren. For thirteen blocks, the driver continued to drive leisurely, ignoring the sirens, lights, and the addition of other patrol vehicles. During the pursuit dispatch relayed to Officer Boeckel that the Cadillac's plates came back registered to Sherry Nolan. Officer Boeckel eventually suspended his pursuit upon instructions from his supervising officer and Billings Police Department Policy that officers are not allowed to pursue offenders for traffic offenses.

¶ 8 Officer Boeckel continued his investigation that day by taking statements from Beth and Emily Jones, Jessen, and talking to other Billing Police Department Officers. After speaking with other officers, Officer Boeckel learned that Nolan frequently drove a white Cadillac.

Officer Boeckel viewed a photograph of Nolan and confirmed that the photograph was of the same person that Officer Boeckel had observed driving the Cadillac during the pursuit. Officer Boeckel did not ask Beth or Emily to do a photo lineup, because he was confident of his identification of Nolan based on his own observations.

¶ 9 Nolan was subsequently charged with reckless driving and failing to yield to an emergency vehicle. On March 20, 2014, Nolan's jury trial began in Municipal Court. On the morning of trial, Nolan notified the Municipal Court of his hearsay objection to Officer Boeckel's expected testimony regarding information from dispatch as to whom the Cadillac was registered. The court reserved its ruling for trial. Nolan also raised objections that he would be the only black male in the courtroom and that he would be seated next to defense counsel at the table for the defendant. The judge replied, “[T]here's nothing I can do about it. What do you want me to do? Get three more defendants in here ... that are black?” Although Nolan said he did not want any more persons who were black to be brought into the courtroom, he continued to maintain his objection that any identification would be impermissibly suggestive and unreliable.

¶ 10 The State called four witnesses at trial: Emily and Beth Jones, Jessen, and Officer Boeckel. Neither Jessen nor Emily identified the driver of the Cadillac during their testimony. When Beth identified Nolan at trial, she testified as follows:

CITY: [When the Cadillac made the U-turn], did you get a look at the driver?

BETH: I got a brief look at him.

CITY: And what did he look like?

BETH: He looked like a black male in his maybe late 20's, mid-30s, somewhere around there.

...

CITY: After the initial time that you'd seen him, um, turn right as you were exiting MSU–B, um, did you ever get the opportunity to see his face while this chase was going on?

BETH: Every time he'd pull up next to me and blocked me in ...

CITY: Okay.

BETH: ... I would see his face.

CITY: Okay, and do you have any way to identify him?

BETH: He was a black male that looked like the gentleman sitting over there in the tie and the maroon shirt.

CITY: Okay, and why do you say it looks like him?

BETH: Because that's what he looked like.

DEFENSE: Your honor, I would object to [this in-court identification]....

COURT: Overruled.

CITY: Does he look any different today than the way you recalled him from back in June?

BETH: Mmm, other than his clothing, no.

¶ 11 Beth admitted that she could not tell, at the time of the incident, whether the driver was clean shaven or not. When she was questioned about her use of the word “young” to describe the driver during the 911 call she explained, “I just meant he was younger than me.” However, later when asked what she thought “young” meant, Beth said it meant a teenager.

¶ 12 Officer Boeckel testified that the Cadillac he observed Nolan driving was registered to Sherry Nolan and explained that he had received the registration information from dispatch in response to the license plate information he had supplied. Defense Counsel objected and the court overruled the objection.²

¶ 13 The jury convicted Nolan of both offences. Nolan appealed his conviction to the District Court on the basis that the in-court identification by Beth was impermissibly suggestive and unreliable, and that the testimony regarding information received from dispatch was hearsay. The District Court denied both claims. Nolan appeals.

STANDARD OF REVIEW

¶ 14 On Nolan's appeal from the Municipal Court, the District Court functioned as an intermediate appellate court. See §§ 3–5–303 and 3–6–110, MCA. On Nolan's appeal to this Court, we review the case as if the appeal originally had been filed in this Court. City of Bozeman v. Cantu , 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461 ; State v. Ellison , 2012 MT 50, ¶ 8, 364 Mont. 276, 272 P.3d 646 (citing Stanley v. Lemire , 2006 MT 304, ¶ 26, 334 Mont. 489, 148 P.3d 643 ). We examine the record independently of the district court's decision, applying the appropriate standard of review. Ellison , ¶ 8.

¶ 15 We treat a motion to exclude an eyewitness' identification as a motion to suppress.

State v. Baldwin , 2003 MT 346, ¶ 11, 318 Mont. 489, 81 P.3d 488. Our standard of review for a district court's denial of a motion to suppress is whether the court's findings of fact are clearly erroneous, and whether those findings are correctly applied as a matter of law. Baldwin , ¶ 11.

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