City of Whitefish v. Zumwalt

553 P.3d 1

2024 MT 153

CITY OF WHITEFISH, Plaintiff and Appellee,

v.Joshua ZUMWALT, Defendant and Appellant.

DA 21-0500

Supreme Court of Montana.

Submitted on Briefs: November 15, 2023

Decided: July 23, 2024

APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 21-193A, Honorable Amy Eddy, Presiding Judge

For Appellant: Chad Wright, Appellate Defender, Joshua James Thornton, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Christine Hutchison, As- sistant Attorney General, Helena, Montana, Angela Jacobs, Whitefish City Attorney, Mary Barry, Deputy City Attorney, Whitefish, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶1 Joshua Thomas Zumwalt (Zumwalt) appeals the August 10, 2021 Order entered by the Eleventh Judicial District Court, Flat-head County, affirming his conviction for driving under the influence (DUI) in violation of § 61-8-401, MCA. He challenges the Municipal Court’s denial of his motion to suppress evidence obtained as a result of the search he contends was unlawful. The District Court affirmed the Municipal Court’s denial of the motion. Alternatively, Zumwalt argues a new trial is necessary because the prosecution elicited expert opinion testimony without laying a proper foundation.

¶2 We restate the issues as follows:

1. Whether the Municipal Court erred by denying Zumwalt’s motion to suppress?

2. Whether the Municipal Court abused its discretion by allowing officers to give opinion testimony about Zumwalt’s degree of intoxication relative to the alleged time he consumed alcohol and, if so, whether the error was harmless?

¶3 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 In the early morning hours of January 2, 2020, the Whitefish Police Department was alerted to a vehicle collision in the parking lot of an apartment complex in Whitefish, Montana. Dispatch conveyed to officers a citizen’s report advising that a track hit a parked vehicle, followed by the driver parking the truck, getting out, and staggering as he walked and entered one of the apartments. Officer Gamer, Officer Stahlberg, and Sargeant Veneman responded to the call.

¶5 Officer Stahlberg arrived at the apartment complex and spoke with Clint Slosson, who had witnessed the incident and placed the call to police. Slosson reported that he believed the suspect track had hit his girlfriend’s car that was also parked in the lot, and that the driver, who was known to Slosson, had difficulty maintaining his balance but reached and entered his apartment, Unit 9 of the complex. Officer Stahlberg examined the subject truck, noting it had scratches on it, while Slosson’s girlfriend’s vehicle had sustained significant damage on the front passenger side. The truck was parked with its rear tires up on a sidewalk and front tires in the lot. Officer Stahlberg ran a check on the truck’s license plate, which came back as registered to Zumwalt, and listed Unit 9 of the apartment complex as his address.

¶6 Officer Stahlberg began walking to Zumwalt’s apartment and was joined by the other two officers. They followed a sidewalk along the parking lot that extended the length of the apartment complex, including Zumwalt’s ground-level apartment. The sidewalk proceeded beyond his apartment and ended at the complex’s laundry facility near the rear of the building. An open, grassy common area lay in the back of the building, including along the backside of Zumwalt’s apartment. His apartment had a window that looked out into the grassy area, and was positioned roughly sixty feet away from the end of the sidewalk.

¶7 The officers initially approached Zumwalt’s front door, and Officer Garner knocked. No one answered. Officer Stahlberg then approached to about ten feet away from the front side of the apartment and looked toward a window, reporting that he thought he saw a shadow moving through the blinds. He later testified he thought it was a person who was standing right by the front door of the apartment. Officer Stahlberg and then Sargeant Veneman subsequently walked around to the back of the apartment for purposes of ensuring no one would attempt to leave the building. There were no posted signs in the common area indicating an intended use of the area, or any fences or barriers segmenting the open space among apartments. Sargeant Veneman looked in a window of Zumwalt’s apartment from about two feet away and could see through partially-drawn blinds that a person was inside the apartment and standing right by the front door. This information was relayed to Officer Stahlberg and Officer Garner.

¶8 Officer Garner continued to knock on the front door and stated that they were police officers. On his return to the front of the building, Officer Stahlberg observed again what he believed was a shadow passing by the front-side window, and Officer Garner asked through the front door for Zumwalt to "come to the door, please." The officers told Zumwalt they had seen him standing by the door. Zumwalt then opened the front door and responded, "Hello?" Zumwalt said he did not know anything about the vehicle damage in the parking lot, but agreed to come out and look with the officers. The officers then commenced a DUI investigation, which was continued at the detention center because the parking lot was icy, applied for a search warrant to draw blood, and arrested Zumwalt in connection with the crash in the parking lot.

¶9 Zumwalt was charged with DUI, failing to stop and provide identification after damaging an unattended vehicle, and failing to carry proof of insurance in his vehicle. His first trial ended in a mistrial due to a hung jury. Zumwalt’s primary defense was that he was intoxicated from alcohol he drank after arriving back to his apartment, not before he parked his truck.

¶10 Prior to his second trial, Zumwalt filed two motions to suppress. His first motion was not contested by the City of Whitefish (the City) and was granted, suppressing the "blood results and any evidence gathered by the City as a consequence of the Search Warrant [for his blood]." His second motion sought to suppress all evidence on the ground the officers had conducted an unlawful search by their actions at his apartment. The trial court denied that motion, reasoning that the officers did not violate Zumwalt’s reasonable expectation of privacy and therefore did not engage in an unlawful search.

¶11 At the second trial, the City submitted three videos taken by cameras at the apartment complex. The first clip showed a truck backed up at a sharp angle near the front of a car, later crashing into the car. The second clip showed the truck moving forward and backing up again. The third clip showed the truck fully backed into a parking spot, with part of the truck hanging over the edge of the sidewalk, as well as a bearded man getting out of the truck, bracing the truck for support, and approaching the sidewalk.

¶12 Slosson testified and explained that he was in his apartment playing video games around 12:30 in the morning when he heard what sounded like a snow plow. He looked outside and saw the vehicle backing up into the parking space. Slosson said he saw the driver get out of the truck and recognized him as his neighbor, though he did not then know his name. He further testified that the man appeared incoherent and possibly impaired, and that the truck seemed to be parked further back than the spot allowed. Slosson went outside to investigate and saw the damage to his girlfriend’s car, so he called the police about ten minutes later. He testified that the officers arrived in about 15 minutes. A few days after the incident, Slosson contacted Zumwalt for insurance information and gave him a copy of the surveillance footage. Zumwalt told Slosson he did not remember what had happened that night.

¶13 The responding officers testified about their actions that night and were also permitted to discuss their respective experiences dealing with impaired persons generally. Officer Stahlberg testified that he had completed two DUI investigation certification programs, including the Advanced Roadside Impaired Driving Enforcement (ARIDE) program, and had otherwise been involved in over 100 DUI investigations. Sargeant Veneman testified that he had spent approximately forty hours doing clinical impairment detection training and was formerly a drug recognition expert. Officer Garner testified that he had completed ARIDE training and that he had been involved in about 150 DUI investigations.

¶14 Officer Stahlberg testified that, after Zumwalt followed the officers outside of his apartment, he noticed an alcoholic odor from Zumwalt, in addition to slurred speech and an inability to follow basic instructions from the officers. However, the officers did not directly ask Zumwalt whether he had been drinking. On cross-examination, Officer Stahlberg said that, in his opinion, Zumwalt did not drink alcohol inside of his apartment after arriving there that evening. On redirect, the prosecutor asked Officer Stahlberg the basis for this belief. Officer Stahlberg stated it was Zumwalt’s "state of intoxication" and that he did not "believe [Zumwalt] would have consumed that much alcohol [in the apartment]." The defense objected based on speculation and the trial court sustained that objection, prompting the City to lay a foundation for the Officer’s testimony. The following exchange then occurred:

Prosecution: How many DUI investigations have you conducted?

Officer Stahlberg: Well over 100.

Prosecution: And how many in addition to those have you just assisted?

Officer Stahlberg: Probably equally the same.

Prosecution: Okay. Have you seen individuals at different states of intoxication?

Officer Stahlberg: Absolutely.

Prosecution: Have you been able to get breath samples or blood samples to see what their actual blood or breath alcohol levels are?

Officer Stahlberg: Yes.

Prosecution: Have you been...