State v. French

393 Mont. 364

431 P.3d 332

2018 MT 289

STATE of Montana, Plaintiff and Appellee,

v.Mark T. FRENCH, Defendant and Appellant.

DA 17-0468

Supreme Court of Montana.

Submitted on Briefs: October 17, 2018

Decided: November 27, 2018

Rehearing Denied: December 27, 2018

For Appellant: Mark T. French, Self-Represented, Plains, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana, Robert L. Zimmerman, Sanders County Attorney, Thompson Falls, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶ 1 Mark French appeals his conviction for speeding in violation of § 61-8-303(1)(b), MCA, following a trial de novo in the Twentieth Judicial District Court, Sanders County. We restate the dispositive issues as follows:

1. Did the District Court err when it did not dismiss the case for lack of particularized suspicion and for lack of corroborating evidence?

2. Does the State’s comment to the jury that French already had been convicted of the charge in the Justice Court require reversal?

3. Did the District Court abuse its discretion when it did not allow French to argue that two or more witnesses must testify against a defendant in a criminal prosecution?

¶ 2 We affirm on issues one and three and reverse and remand to the District Court on issue two for a new trial.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 On March 8, 2016, Montana Highway Patrol Trooper Zachary Rehbein cited French for exceeding the maximum speed limit by travelling eighty miles per hour in a sixty-five-miles-per-hour, night-limit zone, in violation of § 61-8-303(1)(b), MCA. Representing himself, French challenged the citation in Sanders County Justice Court. The jury found him guilty, and he appealed to the Twentieth Judicial District Court, Sanders County. French also appeared on his own behalf in the District Court.

¶ 4 Prior to trial, French filed a "Motion to Dismiss Due to Lack of Particularized Suspicion," arguing in part that: (1) he was not speeding, and Trooper Rehbein may not be credible; (2) there was no particularized suspicion for the stop because it was based solely on Trooper Rehbein’s uncorroborated account of what happened; and (3) the state and federal constitutions require two witnesses to testify for a conviction. French filed multiple briefs in support of his theories of law, arguing in part that the Bible, the Montana Constitution, and the United States Constitution require more than one witness to testify against a defendant.¹ The District Court denied the motion to dismiss, reasoning that: (1) as the trier of fact, the jury would weigh the credibility of Trooper Rehbein’s testimony and decide whether French was speeding; (2) the evidence supported particularized suspicion for the stop; and (3) neither the Montana Constitution nor the United States Constitution required the testimony of multiple witnesses to convict a person.

¶ 5 The District Court subsequently granted the State’s motion in limine to preclude French from calling any witnesses or attempting to elicit testimony regarding his theories of what the law is or mention his theories of law in front of the jury panel. The District Court denied French’s request for reconsideration based on the historical references in the Bible and Roman law of the requirement of two or more witnesses for criminal prosecution, and held that French could not to argue this theory to the jury.

¶ 6 Trooper Rehbein was the only witness at French’s trial. He was patrolling in Sanders County on March 8, 2006, at approximately ten o’clock p.m., when he observed a vehicle that appeared to be speeding. Trooper Rehbein activated his radar and "checked their speed at 80 miles an hour." The speed limit was sixty-five miles per hour. He stopped the vehicle and asked the driver for his license, proof of insurance, and registration. The driver, French, provided his vehicle registration to Trooper Rehbein, but he did not have a driver’s license or proof of insurance in his possession. Trooper Rehbein issued French a citation for speeding. Trooper Rehbein testified that the radar was functioning properly and that the Highway Patrol does not have the capability to connect the radar to his dash-camera system. He further testified that, customary with his practice, after completing the stop he ran his radar through a self-test to ensure it was working properly and created a "speed device log." The radar machine Trooper Rehbein used could not produce any type of printout of the clocked speed.

¶ 7 The jury found French guilty of speeding in violation of § 61-8-303(1)(b), MCA.

STANDARDS OF REVIEW

¶ 8 We may review claimed errors not objected to at trial that implicate an accused’s fundamental rights, where failing to review the claimed error may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial proceedings, or may compromise the integrity of the judicial process. State v. Clemans , 2018 MT 187, ¶ 20, 392 Mont. 214, 422 P.3d 1210. We exercise plain error review on a case-by-case basis. Clemans , ¶ 20.

¶ 9 We review de novo a ruling on a motion to dismiss in a criminal proceeding. State v. Burns , 2011 MT 167, ¶ 17, 361 Mont. 191, 256 P.3d 944. We review a trial court’s factual findings of particularized suspicion for clear error and its application of those facts to the law for correctness. City of Missoula v. Sharp , 2015 MT 289, ¶ 5, 381 Mont. 225, 358 P.3d 204.

¶ 10 We review the other challenged rulings for an abuse of discretion: whether the district court fully and fairly instructed the jury, Ammondson v. Nw. Corp. , 2009 MT 331, ¶ 30, 353 Mont. 28, 220 P.3d 1, and the admissibility of evidence, State v. Passmore , 2010 MT 34, ¶ 51, 355 Mont. 187, 225 P.3d 1229. A court abuses its discretion if it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. Passmore , ¶ 51.

DISCUSSION

¶ 11 1. Did the District Court err when it did not dismiss the case for lack of particularized suspicion and for lack of corroborating evidence?

¶ 12 French first argues that the District Court erred when it denied his pretrial motion to dismiss for lack of particularized suspicion. French maintains that in addition to witness testimony, particularized suspicion must be supported by independent corroborating evidence.

¶ 13 A police officer may stop a vehicle that "is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense." Section 46-5-401(1), MCA. To satisfy the requirement of particularized suspicion, the State must show that the officer had "(1) objective data and articulable facts from which an experienced officer can make certain inferences, and (2) a resulting suspicion that the occupant of [the] vehicle is or has been engaged in wrongdoing." Sharp , ¶ 7 (internal citation omitted). Objective data means facts that are observable and articulable and an awareness of the circumstances of an individual’s conduct. See Sharp , ¶ 10. If an officer observes a vehicle speeding, he has particularized suspicion to perform an investigatory stop. Sharp , ¶ 9.

¶ 14 Trooper Rehbein articulated that he stopped French based on his visual observation and on the radar confirmation. Contrary to French’s contention that there is no "objective criteria" because Trooper Rehbein’s testimony is uncorroborated, Trooper Rehbein articulated objective facts—his experienced observation of a speeding vehicle and radar confirmation of the vehicle’s speed. A review of the full record supports the court’s finding of particularized suspicion. See Sharp , ¶ 9. The District Court thus correctly denied French’s motion to dismiss for lack of particularized suspicion.

¶ 15 Although he made no motion at trial, French argues further that the District Court should have dismissed the case sua sponte after Trooper Rehbein testified because his testimony was uncorroborated. French maintains that for a conviction, Trooper Rehbein’s testimony must be corroborated by "objective data," such as a print-out from the radar or video of the speed shown on the radar.

¶ 16 The testimony of a single witness the jury finds credible "is sufficient for proof of any fact, except perjury and treason." Section 26-1-301, MCA ; State v. Bowen , 2015 MT 246, ¶ 30, 380 Mont. 433, 356 P.3d 449. A witness is presumed to speak the truth, and the jury is the "exclusive judge" of a witness’s credibility. Section 26-1-302, MCA. The jury "has a prerogative to accept or reject testimony" and to determine what evidence to believe. State v. Sanchez , 2017 MT 192, ¶¶ 18-19, 388 Mont. 262, 399 P.3d 886 (quoting State v. Benson , 1999 MT 324, ¶ 14, 297 Mont. 321, 992 P.2d 831 ).

¶ 17 French has cited no legal authority, and we have found none, that requires an instruction to the jury that "before they can convict, they need corroborating evidence that [French] was indeed speeding." To find French guilty of violating § 61-8-303(1)(b), MCA, the jury needed to find that French was traveling eighty miles per hour in a sixty-five miles-per-hour, night-limit zone. The District Court properly submitted the case to the jury based on Trooper Rehbein’s testimony, and it did not err by failing to dismiss sua sponte for lack of corroborating evidence.

¶ 18 2. Does the State’s comment to the jury that French already had been convicted of the charge in the Justice Court require reversal?

¶ 19 French told the jury in his closing argument that "the State thinks this issue is important. We’ve had two trials. This is the second trial over this issue." He stated, "If there’s a mistrial, it goes back into the hands of the State, and then the State will decide whether to have a third trial. Or just drop it." The prosecutor argued in rebuttal, "Oh, the State will try me three times. Yeah, we tried him once, we convicted him, and...