State v. Wells

485 P.3d 1220

2021 MT 103

STATE of Montana, Plaintiff and Appellee,

v.Cliffton WELLS, Defendant and Appellant.

DA 19-0288

Supreme Court of Montana.

Submitted on Briefs: February 17, 2021

Decided: May 4, 2021

For Appellant: Gregory D. Birdsong, Birdsong Law Office, PC, Santa Fe, New Mexico

For Appellee: Austin Knudsen, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana Marty Lambert, Gallatin County Attorney, Bjorn Boyer, Deputy County Attorney, Bozeman, Montana

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Clifton Wade Wells appeals from his November 2, 2018 conviction by a jury of the offense driving under the influence of alcohol in violation of § 61-8-401, MCA. We affirm.

¶2 We address the following issues on appeal:

Issue One: Whether the District Court abused its discretion in declining to provide a specific unanimity jury instruction.

Issue Two: Whether the District Court abused its discretion in declining to instruct the jury that a witness is presumed to speak the truth.

Issue Three: Whether the prosecutor committed plain error in improperly commenting on witness credibility.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On January 7, 2018, Clifton Wade Wells (Wells) was drinking "quite a bit" at the Rhino Casino in Belgrade, where he ran into Peter House (House), whom he had known in high school. After some amount of time, Wells and House agreed to take Wells’ truck to get beer from Town Pump and then go hang out at Wells’ place. En route to Wells’ residence, the truck came to a stop in the middle of the road and would not start.

¶4 At 9:17 p.m., Officer Nicole Nelson (Nelson) was on patrol and saw Wells’ vehicle stopped in the middle of the road. Nelson saw Wells standing outside the vehicle next to the driver side door. Wells then entered the vehicle and closed the door. Nelson saw the rear brake lights illuminate and, surmising that Wells was attempting to start the vehicle, activated her overhead emergency lights.

¶5 Wells exited the truck and spoke with Nelson. Nelson observed open containers in the vehicle and that both Wells and House, who was sitting in the passenger seat, had slurred speech and red watery eyes. Nelson could smell alcohol coming from both Wells and the interior of the vehicle. House volunteered that he was "pretty liquored up." Officer Jesse Stovall (Stovall) arrived on the scene and the two officers began conducting field sobriety tests on Wells. House exited Wells’ vehicle and, when asked what he was doing, replied "Hey, I'm drunk, hey." As Stovall escorted House away from the roadway, House pointed to Wells and said: "Do not blow! Do not blow!"

¶6 Having apparently forgotten that the truck was inoperable, Wells repeatedly offered to drive the vehicle to move it off the road, which the officers informed him he could not do. Stovall observed that the truck appeared to be out of gas. Wells suggested using the gas can in the rear of the truck, but Stovall declined to do so because the nozzle didn't fit into the gas tank and he was concerned about spilling gasoline onto his uniform. Instead, the vehicle was pushed into a nearby parking lot. There was no discussion during the encounter regarding who had driven Wells’ truck to the point where it had apparently run out of gas. A subsequent blood test showed that Wells had a blood alcohol content of 0.334.

¶7 Wells was charged with driving under the influence of alcohol (fourth or subsequent offense) under § 61-8-401, MCA, alleging that Wells "drove or was in actual physical control of a vehicle" while under the influence of alcohol. About a month prior to Wells’ trial, House told the prosecutor that he did not remember driving the night of the arrest. At trial, however, both House, who had received immunity for his testimony and testified for the defense, and Wells testified that it was in fact House, not Wells, who drove Wells’ truck from the Rhino Casino that night. House testified that his new recollection at trial was due to having looked at his calendar to achieve "a little bit of memory jarring," despite acknowledging that he was not sure in which month the event had occurred.

¶8 House testified that as he was driving, the truck had come to a stop in the road, and he had moved into the passenger seat while Wells looked at the truck. House testified that he had concluded "Well, [we're] not going anywhere for awhile," and proceeded to consume vodka and two or three beers before the police arrived, at which point he continued drinking. House admitted to having multiple lapses in his memory of the event due to his alcohol consumption at the time. Wells testified that he had failed to tell the officers that he had not been driving because he did not want to "throw [House] under the bus" while House testified that he failed to mention it because he "didn't think about it at the time."

¶9 Defense proposed two additional jury instructions relevant here. The first sought to provide a specific unanimity instruction preventing the jury from finding Wells guilty "unless you all agree that the State has proved beyond a reasonable doubt that ... he was driving the vehicle, or you all agree that he was in actual physical control of the vehicle, while under the influence." The other was that "[a] witness is presumed to speak the truth." The District Court rejected these instructions, concluding that driving was already included within the definition of actual physical control and that the credibility of witnesses was sufficiently addressed in other instructions.

¶10 The State argued to the jury that Wells could be convicted either because he had driven the truck to the point where it ran out of gas, or because he was in "actual physical control" of the vehicle as he climbed into the driver seat when Nelson arrived. The prosecutor contended that, because there was a gas can in the back of the truck, the vehicle was not disabled, and Wells was therefore in a position to exert physical control over it.

¶11 In opening, the prosecutor asked the jury to view House's testimony "with a great deal of skepticism" and "find him not to be a credible witness," arguing House would attempt to "cover" for Wells. At closing, the prosecutor pointed to the high levels of intoxication by both Wells and House and noted evidence that such intoxication had caused significant gaps in their memories of the event. According to the prosecutor, House's account of how consulting his calendar before trial had reminded him that he had driven Well's truck from the Rhino Casino was "completely unbelievable" and that "given [House's] level of intoxication that night, the passage of time, the desire to do a solid for Mr. Wells, there's absolutely no credibility in his testimony that he was driving." As for Wells, the prosecutor went on to describe his testimony as not credible due to his alcohol-induced memory impairment. The prosecutor also proposed that Wells, in addition to having an impaired memory, had shown a willingness to lie, as evidenced by Wells’ statement to police, which he later admitted to be false, that he had had only one beer, and that he had come from McDonalds, rather than from the Rhino Casino and Town Pump. Defense did not object to these statements by the prosecution.

¶12 Wells was convicted of driving under the influence of alcohol. On appeal he challenges the District Court's rejection of his proposed jury instructions and argues that the prosecution's statements regarding witness credibility constituted prosecutorial misconduct.

STANDARD OF REVIEW

¶13 This Court reviews decisions regarding jury instructions for an abuse of discretion. State v. Williams , 2015 MT 247, ¶ 10, 380 Mont. 445, 358 P.3d 127 (citation omitted). The district court's discretion in formulating jury instructions is broad and will only be reversed when a mistake prejudicially affects a defendant's substantial rights. Williams , ¶ 10 (citation omitted). We generally do "not address issues of prosecutorial misconduct pertaining to a prosecutor's statements not objected to at trial." State v. Ugalde , 2013 MT 308, ¶ 27, 372 Mont. 234, 311 P.3d 772 (quotation omitted). However, we may choose to exercise discretionary plain error review where the alleged error may result in a manifest miscarriage of justice, leaves unsettled questions of fundamental fairness, or compromises the integrity of the judicial process. State v. Ritesman , 2018 MT 55, ¶ 21, 390 Mont. 399, 414 P.3d 261 (citation omitted); State v. Aker , 2013 MT 253, ¶ 21, 371 Mont. 491, 310 P.3d 506 (citation omitted).

DISCUSSION

¶14 Issue One: Whether the District Court abused its discretion in declining to provide a specific unanimity jury instruction.

¶15 Wells first raises the District Court's rejection of Wells’ proposed specific unanimity jury instruction. Jury instructions, as a whole, should fully and fairly instruct the jury on the applicable law. Williams , ¶ 10 (citation omitted). Under the Montana Constitution, criminal verdicts must be unanimous. Mont. Const. art. II, § 26. Wells points out that the charging statute, the charging document, the evidence presented, the prosecution's closing argument, and the jury instructions all could have allowed individual jurors to convict Wells by finding either that (a) Wells had driven the truck from the Rhino Casino or that (b) Wells was in "actual physical control" when he got behind the wheel of his truck as police arrived.

¶16 Wells’ arguments raise two distinct facets of the unanimity requirement that have often proven surprisingly challenging to disentangle: (1) whether, under a multi-part criminal statute, the jury could have been non-unanimous with respect to what crime the jurors believed the defendant to have committed, and (2) whether, when the State alleges multiple bad acts under a single count, the jury could have been non-unanimous with respect to its understanding of the material facts that support the conviction. See generally Brian M....