State v. Bailey

489 P.3d 889

2021 MT 157

STATE of Montana, Plaintiff and Appellee,

v.Brandon Michael BAILEY, Defendant and Appellant.

DA 20-0188

Supreme Court of Montana.

Submitted on Briefs: June 16, 2021

Decided: June 29, 2021

For Appellant: Jeremy S. Yellin, Attorney at Law, Havre, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Michael P. Dougherty, Assistant Attorney General, Helena, Montana Leo Gallagher, Lewis and Clark County Attorney, Josh Nemeth, Deputy County Attorney, Helena, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 Brandon Michael Bailey appeals a First Judicial District Court order affirming his jury conviction for driving with a blood alcohol concentration exceeding the legal limit. Bailey argues that the Justice Court should have suppressed evidence stemming from the stop of his vehicle because the Montana Highway Patrol trooper unlawfully seized him, subjected him to a custodial interrogation without first issuing a Miranda warning, and lacked particularized suspicion to investigate whether Bailey was driving under the influence of alcohol ("DUI"). He also argues that the Justice Court improperly allowed a State witness to appear by two-way video at trial. We affirm the denial of Bailey's motion to suppress but reverse his conviction because Bailey was denied his confrontation rights. As we remand for a new trial, we do not reach Bailey's additional argument regarding jury selection.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 At approximately 6:16 p.m. on December 1, 2018, Montana Highway Patrol Trooper Griffin Sutherland responded to a reported single-vehicle rollover crash on Mountain Meadows Road near Helena. The person reporting the crash stated the vehicle had rolled over on its side and there were several cans of beer on the ground near the vehicle.

¶3 Trooper Sutherland drove to the scene, traveling eastbound on Mountain Meadows Road. He testified that the weather was cold with a slight breeze and that it was dark. The road was remote, did not appear to be heavily trafficked, and was not well-maintained. He noted that the road was covered with ice and snow and had several ruts, which he believed were caused by ice thawing and freezing over, but that the overall terrain was fairly level and he did not notice any steep ditches in the area.

¶4 When he neared the reported crash site, Trooper Sutherland observed a Toyota 4Runner driving toward him from the opposite direction. The vehicle matched the informant's description, and he observed fresh damage to the driver's side, including the mirror hanging down from the car, damage to the front fender near the driver's side door, and damage to the driver's side door itself. Trooper Sutherland suspected that the vehicle had been involved in the crash. He activated his lights, the vehicle stopped, and the driver, Bailey, got out. Bailey told Trooper Sutherland that he had been driving near the shoulder of the road at around two miles per hour to avoid the ruts and potholes in the road when his vehicle got "sucked into" the shoulder and tipped over on its side.

¶5 Trooper Sutherland believed, based on the dynamics of the crash, that Bailey had been traveling westbound in the eastbound lane in order to avoid the ruts and potholes in the road. Trooper Sutherland was suspicious of Bailey's explanation of the accident because, based on his experience investigating crashes and his observations of the conditions, he did not believe a vehicle could have tipped over while moving two miles per hour. He stated, "it would have taken a good attempt to try to roll a vehicle onto its side like that, without having any really extensive drop off next to the roadway." Trooper Sutherland was concerned that Bailey may have been impaired based on the reported beer cans near the crashed vehicle and Bailey's having left the scene of the crash before being released by law enforcement. He testified that he was still investigating at this point whether a traffic violation had occurred, such as reckless or careless driving.

¶6 Trooper Sutherland asked Bailey to sit in the back of his patrol vehicle. He did not handcuff Bailey or tell Bailey he was under arrest. Trooper Sutherland testified that he asked Bailey to sit in the patrol vehicle because: (1) he was still investigating the crash and needed to ask Bailey questions for the crash investigation report, which he could more conveniently do within the patrol vehicle where there was a computer system in which he could directly type out Bailey's answers; (2) it was cold and he did not want either Bailey or himself sitting outside while he asked questions about the crash; and (3) he was concerned that Bailey may be impaired, and having him sit in the backseat of the patrol vehicle would make it easier to detect any odor of alcohol. Regarding the third reason, however, Trooper Sutherland testified that, "[g]iven the timing of that, given the location, the weather conditions, I still would have asked [Bailey] to sit in the backseat of the car. I'm from Florida, so when the temperature gets low I get cold." Trooper Sutherland explained that he knew his questioning of Bailey regarding the crash investigation would take longer than normal because the car had been removed from the crash site, requiring him to rely on Bailey's answers rather than on his own observations; and, consistent with his training, he was not wearing his jacket at this point of the encounter in order to have easy access to his belt. His concern about the cold thus was for his own health and safety in addition to Bailey's.

¶7 While in the patrol vehicle, Bailey told Trooper Sutherland that, after the accident, he called his wife right away, he received a ride to his brother-in-law's house from a passer-by, and his brother-in-law drove him back to his car and helped him flip his vehicle back over. Trooper Sutherland inquired why Bailey did not attempt to contact law enforcement before leaving the accident; Bailey responded that he did not have cell service. Trooper Sutherland reminded Bailey that he said he had called his wife right away; Bailey responded that he actually had called his wife after he arrived at his brother-in-law's house. Trooper Sutherland testified that he repeatedly told Bailey that he was trying to get Bailey on his way as soon as possible.

¶8 Trooper Sutherland detected the odor of alcohol coming from Bailey's breath during this conversation. He also observed that Bailey's eyes were "bloodshot" and "watery." He asked Bailey if he had consumed alcohol that night. Bailey replied that he had consumed two beers earlier in the evening. Trooper Sutherland then told Bailey, "[t]he reason why I'm asking is because I'm catching a whiff of alcohol coming through your gum whenever I talk to you. The reason why I put you in the backseat is so I can have the opportunity to smell it as you were talking to me." Trooper Sutherland asked Bailey about a sweatshirt he saw in the vehicle that was covering something. Bailey replied that there were "alcoholic beverage containers" under it. Bailey was in the backseat of the patrol vehicle for about fourteen minutes.

¶9 After another officer arrived and Trooper Sutherland had completed most of his crash report, he switched the focus of his inquiry to a DUI investigation. Trooper Sutherland had Bailey perform two field sobriety tests: the one-leg stand test and the horizontal gaze nystagmus ("HGN") test.¹ Trooper Sutherland observed one out of four indicators of impairment on the one-leg stand test and four out of six indicators of impairment during the HGN test. Trooper Sutherland then requested that Bailey provide a preliminary breath sample. The breath sample tested positive for the presence of alcohol. Trooper Sutherland then placed Bailey under arrest for DUI and requested that he submit to a blood test.² About two hours after the initial encounter with Trooper Sutherland, Bailey provided a blood sample showing a blood alcohol concentration ("BAC") of approximately 0.112 GM/100 ML.

¶10 Later that day, the State charged Bailey in the Justice Court with DUI in violation of § 61-8-401(1)(a), MCA, or, in the alternative, operating a noncommercial vehicle with an alcohol concentration of 0.08 percent or greater in violation of § 61-8-406(1)(a), MCA. On January 4, 2019, Bailey filed a motion to suppress and dismiss. He argued that Trooper Sutherland unlawfully seized him, subjected him to a custodial interrogation without first advising him of his Miranda³ rights, and did not have sufficient particularized suspicion to expand the crash investigation into a DUI investigation. After a hearing, the Justice Court denied the motion.

¶11 The State moved the Justice Court to allow Eric Miller—the State Crime Lab toxicologist who conducted the BAC toxicology tests on Bailey's blood and prepared the toxicology report—to testify at trial via Skype audio/video conferencing. The State acknowledged that Miller's testimony was material but argued that requiring him to travel from Missoula to Helena for brief testimony would be impracticable due to distance, expense, and timing. It also argued that Miller's trip would be impracticable given the backlog of work facing the Crime Lab. Bailey objected, arguing that it would violate his constitutional right to confront testimonial witnesses under Article II, Section 24, of the Montana Constitution and the Sixth Amendment to the United States Constitution. The court granted the State's motion, explaining that it regularly allows State toxicologists to testify by video to aid the Crime Lab and hasten adjudication of the cases before it.

¶12 The court held a jury trial on May 23, 2019. Montana Highway Patrol Trooper Brian Inman testified as a Drug Recognition Expert. He testified to the effects of alcohol on a person's body and a person's ability to operate a motor vehicle safely, and he described in detail the three standardized field sobriety tests. Trooper Inman said that he had...