State v. Robertson

395 Mont. 370

440 P.3d 17

2019 MT 99

STATE of Montana, Plaintiff and Appellee,

v.Tyrell J. ROBERTSON, Defendant and Appellant.

DA 17-0717

Supreme Court of Montana.

Submitted on Briefs: February 27, 2019

Decided: April 30, 2019

For Appellant: William A. D'Alton, D’Alton Law Firm, P.C., Billings, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana, Dylan Jensen, Valley County Attorney, Glasgow, Montana

Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Appellant Tyrell J. Robertson appeals the Judgment of the Seventeenth Judicial District Court, Valley County, finding Robertson guilty of: (1) criminal possession of dangerous drugs, a misdemeanor, in violation of § 45-9-102, MCA ; (2) criminal possession of drug paraphernalia, a misdemeanor, in violation of § 45-10-103, MCA ; and (3) driving under the influence of alcohol or drugs (DUI), a misdemeanor, in violation of § 61-8-401, MCA. We address the following issues on appeal:

Issue One: Whether the District Court erred when it denied Robertson’s Motion in Limine to prevent the arresting officer from testifying at trial.

Issue Two: Whether the District Court erred when it denied Robertson’s Motion to Suppress evidence seized from his vehicle because no probable cause existed for the issuance of the search warrant.

Issue Three: Whether the District Court erred when it denied Robertson’s Motion to Dismiss the DUI charge due to the State’s failure to preserve video evidence.

¶2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 On the evening of February 15, 2017, Valley County Sheriff’s Deputy Alex Esteves was on patrol in Glasgow when he observed Robertson driving a truck away from a local bar at night. Esteves observed Robertson fail to signal a right-hand turn and then later fishtail into the other lane of traffic. Esteves followed Robertson onto U.S. Highway 2, activated his emergency lights, and initiated a traffic stop.

¶4 As Esteves approached the driver’s side window, he smelled a strong odor of marijuana emanating from the truck. Esteves identified himself to Robertson, explained the reason for the stop, and requested that Robertson hand him any marijuana that was in the truck. Robertson pulled a white prescription-style pill bottle filled with marijuana from the truck’s center console and handed it to Esteves. Esteves then asked if there was any drug paraphernalia in the truck. One of Robertson’s passengers handed Esteves a glass pipe packed with marijuana.

¶5 Based upon his observations of Robertson’s driving, Esteves suspected Robertson of DUI. Robertson informed Esteves that he and his passengers had just left the bar and admitted that he had consumed an alcoholic beverage while there. Esteves requested Robertson submit to standardized field sobriety tests, which Robertson agreed to. Based on Esteves’s observations, Robertson exhibited multiple indicators of impairment during his performance of the tests. Esteves then administered a preliminary breath test. The test indicated Robertson’s blood alcohol content (BAC) was 0.114—exceeding the legal limit of 0.08. Esteves arrested Robertson for DUI and informed him that his truck would be seized and a search warrant would be obtained.

¶6 At the Valley County Detention Center (Detention Center), Esteves processed Robertson for a DUI. Since the Intoxilyzer at the Detention Center was under maintenance, Esteves asked Robertson to submit to a blood draw, which Robertson declined. Esteves then applied and received a warrant for the blood draw. A blood sample from Robertson was obtained and sent to the State Crime Lab. Analysis of Robertson’s blood sample reflected a BAC of 0.112.

¶7 On February 17, 2017, Esteves applied for, and received, a search warrant for Robertson’s truck. The search revealed that Robertson’s truck contained various marijuana products and paraphernalia, all of which were seized. Robertson’s truck ultimately held a total of 111.2 grams of marijuana and marijuana-infused products.

¶8 On March 29, 2017, Robertson was charged by Information with felony criminal possession of dangerous drugs with intent to distribute, felony criminal possession of dangerous drugs, use or possession of property subject to criminal forfeiture, misdemeanor criminal possession of drug paraphernalia, and misdemeanor DUI.¹

¶9 On July 3, 2017, Robertson filed a Motion to Suppress and Dismiss. Robertson argued that the evidence seized from his truck should be suppressed because Esteves’s search warrant application did not establish probable cause warranting the search. Robertson additionally argued that the DUI charge should be dismissed because the State failed to produce the Detention Center video of his arrest. On September 11, 2017, Robertson filed a Motion in Limine . Robertson argued that Esteves should be prohibited from testifying until the State affirmatively proved that he satisfied the requirements of § 7-32-303(2), MCA, to be certified as a peace officer.

¶10 On September 13, 2017, the District Court held a hearing on Robertson’s Motions. Regarding the Detention Center video, Detention Center Supervisor Zebediah Shawver testified that a video is normally recorded once an individual is brought to the jail following an arrest for a DUI. However, unless a specific request to preserve the video on another format was made, the video would automatically be overwritten after one to two months. Though Shawver was given a specific request to preserve the video, Shawver testified that he was out of the office when the request was made and the video was overwritten before he could download it. Esteves testified that he could not recall the names of the doctors who completed his physical and psychological evaluations for his certification as a police officer. Following the hearing, the District Court ordered that the prosecutor submit Esteves’s physical and psychological evaluations for an in camera review.

¶11 On September 18, 2017, the State filed Esteves’s physical and psychological evaluation with the District Court. The State provided two documents to the District Court. The first document was Esteves’s "Final Candidate Rating" form, which reflected that he received a superior rating for his psychological profile. The second document was a wellness examination conducted by Dr. Kevin Ross in Glasgow. The District Court redacted and provided the documents to Robertson after conducting an in camera review.

¶12 After receiving the documents, Robertson filed a reply brief in support of his Motion in Limine arguing that Esteves’s physical examination to be certified as a peace officer was deficient under § 7-32-303(2)(g)(i), MCA. Robertson claimed that the physician who completed Esteves’s physical exam was his personal physician because Esteves’s wellness examination stated it was an "annual exam," Esteves’s insurance paid for the exam, and the State had failed to provide documentation showing that Dr. Ross was not Esteves’s personal doctor. Robertson argued that Esteves was not qualified to testify at trial because he was not properly certified as a peace officer.

¶13 On September 26, 2017, the District Court denied Robertson’s Motion to Suppress and Dismiss. The District Court determined that Esteves’s search warrant application established probable cause to search Robertson’s truck. The District Court further concluded that the Detention Center video was accidently overwritten, not intentionally suppressed or destroyed, and that Robertson had failed to show that the video was material, of substantial use, or exculpatory.

¶14 On September 28, 2017, the District Court denied Robertson’s Motion in Limine pertaining to Esteves’s ability to testify. The District Court held that Robertson’s assumption about Dr. Ross being Esteves’s personal physician was unfounded, and that regardless of whether he was Esteves’s personal physician, Robertson had failed to provide any authority that a peace officer who fails to meet the qualifications of § 7-32-303(2), MCA, may not testify at trial.

¶15 On October 31, 2017 through November 2, 2017, the District Court conducted Robertson’s jury trial. The jury found Robertson guilty of three offenses: misdemeanor DUI; misdemeanor criminal possession of dangerous drugs; and misdemeanor criminal possession of drug paraphernalia. On November 2, 2017, Robertson was sentenced to: (1) one year, with all but seven days suspended, on the DUI charge; (2) six months suspended on the criminal possession of dangerous drugs charge; and (3) six months deferred, on the criminal possession of drug paraphernalia charge.

STANDARD OF REVIEW

¶16 A district court has broad discretion when determining the relevance and admissibility of evidence. State v. Ellerbee , 2019 MT 37, ¶ 15, 394 Mont. 289, 434 P.3d 910 (citing State v. Kaarma , 2017 MT 24, ¶ 11, 386 Mont. 243, 390 P.3d 609 ; State v. Duffy , 2000 MT 186, ¶ 43, 300 Mont. 381, 6 P.3d 453 ). We review a district court’s grant or denial of motions to admit or exclude evidence, including motions in limine , for an abuse of discretion. State v. Polak , 2018 MT 174, ¶ 12, 392 Mont. 90, 422 P.3d 112 (citing Hulse v. DOJ, Motor Vehicle Div. , 1998 MT 108, ¶ 15, 289 Mont. 1, 961 P.2d 75 ). However, a district court is bound by the Rules of Evidence and applicable statutes in exercising its discretion. Polak , ¶ 12 (citing State v. Daniels , 2011 MT 278, ¶ 11, 362 Mont. 426, 265 P.3d 623 ). Accordingly, we review a district court’s ruling based on its interpretation of a Rule of Evidence or a statute de novo. Polak , ¶ 12 (citing State v. Lotter , 2013 MT 336, ¶ 13, 372 Mont. 445, 313 P.3d 148 ).

¶17 We review a district court’s denial of a motion to suppress to determine whether the district court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Baty , 2017 MT 89, ¶ 9, 387 Mont. 252, 393 P.3d 187 (citing State v. Olson , 2003 MT 61,...