*1 MONTANA, OF STATE Respondent, Plaintiff DITTON, MICHAEL H. Appellant.
Defendant
No. 04-434.
August
on Briefs
2006.
Submitted
September
2006.
Decided
Rehearing
Denied October
2006.
MT
235.
For McGrath, General; Attorney Honorable Mike Respondent: For Wordal, General, Helena; Susan L. Wheelis, Attorney Jim Assistant Prosecutor, Bozeman. City Assistant of the Court. Opinion delivered
JUSTICE WARNER (Ditton), se, from an appearing pro appeals Michael H. Ditton County, Gallatin Eighteenth Judicial District order of the (DUI) in under the influence affirming driving his conviction for affirm. Bozeman Court. We following appeal: address the issues We restate and against Ditton be dismissed because complaint 1. Must that there timely Court did not determine charge?
cause to file Court’s 2. Did the District Court err during regarding pretrial decisions the exclusion of evidence obtained incarceration, Ditton was not and not to dismiss the because information possession all of the State? provided with government conduct? outrageous 3. Was Ditton the victim of affirming Municipal Did the District Court err in Court’s 4. refusal to dismiss the case because Ditton’s driver’s license was reinstated? affirming Municipal Did the District Court err in 5. judicial
denial of Ditton’s motion to take notice of the Americans with *3 of insulin- concerning symptoms Disabilities Act and scientific facts dependent diabetes? affirming Municipal Did the District Court err in Court’s 6.
¶8 rulings the admission of evidence? on affirming Municipal Court’s 7. Did the District Court err
denial of Ditton’s motion to dismiss? Municipal 8. Did the District Court err
rulings jury instructions?
BACKGROUND evening 20,2002, of Ditton was involved in a car On the December (Dahle) Darcy Dahle and Officer Sergeant accident in Bozeman. Police (Munter) investigated Munter the accident. Both officers Travis Munter beverage person. an alcoholic about Ditton’s breath or smelled speech and his slurred. Munter eyes observed that his were bloodshot unsatisfactory of performance and Dahle testified to Ditton’s both screening A alcohol test sobriety preliminary field tests. standardized Officer Munter percent. detected his blood alcohol content as .230 gave MCA.Munter arrested Ditton for DUI in violation of § him charging signed Appear Complaint Ditton a Notice to him violation. Neither officer asked whether he was diabetic or took insulin. A camera in a law enforcement vehicle recorded the video investigation. breathalyzer Ditton refused to take a test after his arrest, in 61-8- leading provided to seizure of his driver’s license as § 402(4), MCA. County Munter Detention Center. took Ditton Gallatin (Wick) belligerent,
Officer Mike Wick testified that he was rude and gave problems injuries. no indication of medical Wick did not repeatedly recall that Ditton demanded his release or asked to make contrary, Ditton that he demanded phone call. To the testified his repeatedly bring immediate release and asked to call his son to him supplies. following morning. medical Ditton was released on bail the 23,2002, arraignment pled guilty. At his on December not Municipal Judge Kyle Bozeman Court Patricia Carlson at that time 17,2003. signed setting an order his case for trial on June Munter signed January Cause and it on completed Affidavit Probable 2003. return of petitioned the District Court for the his driver’s attend, did not resulting hearing,
license. At the which Ditton return of his driver’s license without State said it would consent 3,2003, Court admitting any petition. facts in the On June the District that, object, grant petition did not it would ordered since the State making any findings of fact. without he neither nor otherwise restrained though imprisoned Even 46-22-101(1), MCA, Ditton liberty, required by petitioned § Corpus Court for a Writ of Habeas while the case was before
District argued Court. He that the writ should issue because Municipal cause. The Court had made no determination County No. petition District Court considered this in Gallatin Cause Judge testimony Court heard from DV-03-208. District determination was concerning whether a Carlson testimony, the District Court found: properly Following made. following the was issued Although explicit the order which dismiss], did Municipal Judge Carlson filing [Ditton’s motion to there was Probable Cause for the testify she had concluded writing, not in compliant. Although of the 46-11-110 necessary determination -under Judge did make the *4 MCA that there was cause fact that specific finding on this The District based necessary determination of Municipal Court made the 487 on corpus for habeas petition denied Ditton’s complaint, to file the 16, 2003, closed DV-03-208. June Municipal Court. motions pre-trial Ditton made numerous motions to 2003, granted Court his 16, Municipal
On June immediately to and after his prior he made the statements suppress screening test. alcohol arrest, preliminary as the results of well suppress videotape Court denied his motion Municipal The The jury. heard portion his arrest ordered the audio be but all suppress denied motion to derivative Municipal Court his again ruled that there was sufficient Municipal evidence. The Court his arrest. The Court denied support cause to judicial estoppel and refused to Ditton’s motion to dismiss based twenty-three1 Medical judicial “Indisputable take notice of a list of Facts” he submitted. 17, against Ditton on June jury A Court heard case Ditton, himself, car caused the representing argued
2003. that another accident, on the poor performance and that his diabetes caused his sobriety disagreed regarding proper jury field tests. He and the State DUI, appealed Ditton of and he instructions. convicted appeal District Court. The District Court considered the as its Cause By April the District Court Number DC-03-204. order are appeal affirmed Ditton’s conviction. This followed. Additional facts necessary. set out as OF
STANDARD REVIEW municipal A district court’s of a court’s orders and review the record and of law. judgment questions is limited to review of MCA; Clark, 169, 8, State v. 2005 MT & 327 Mont. Section 474, 8, 208, a district court’s & 115 P.3d & 8. This Court reviews they if erroneous. State v. findings of fact to determine are 9, 462, 1, 9. This Workman, 2005 MT 326 Mont. 107 P.3d ¶ ¶ ¶ to determine court’s conclusions of law Court reviews a district 13, 10, Polaski, 2005 MT & they are correct. State v. whether 10. a trial court’s Mont. & 106 P.3d & We review Knutson, Payne of discretion. v. evidentiary rulings for abuse Questions & 20. 271, & & Webb, subject plenary are review. State constitutional law Facts, Indisputable Although Medical filed Ditton’s Motion for Judicial Notice of “facts,” only 29,2003, May are 23 as there numbers 24 there with the is no “fact” #2. *5 317, 9, 521, A court’s 5, 9, & 106 P.3d & 9. district MT & 325 Mont. law is a involving question an issue a of constitutional resolution of Mallak, 2005 for correctness. State v. conclusion of law that we review 165, 14, 209, “The denial of 49, 14, & 109 P.3d & 14. MT & 326 Mont. of the is within the sound discretion a motion for a directed verdict Clausell, 62, 28, Mont. & 22 v. 2001 MT & 305 trial court.” State 44, 18, 1111, Blackcrow, 1999 MT & 293 (quoting & 28 State v. P.3d 18). 1253, great 374, 18, give & We trial courts Mont. & 975 P.2d jury, overturn a instruction leeway instructing will Payne, an of discretion. & 14. only in the case of abuse
DISCUSSION ISSUE ONE against Ditton be dismissed because complaint Must timely determine that there Municipal Court did not charge? file the probable cause to Court made no argues Municipal that because the nearly until six months after probable cause charge, and the this case must be dismissed.
arrest 46-11-110, MCA, provides: Section charging person to a court complaint presented When a offense, the sworn the court shall examine the commission of affidavits, filed, determine whether if complaint or fifing charge. of a cause exists to allow the of the specific, timely the lack of a order that dismissal of the requires cause finding probable order does not contain a written DUI The record in DC-03-204 cause to file the Court found stating However, Ditton’s 16, attached to to June 2003. complaint prior District Court’s order of consideration is the brief for our appellate 15, is a 2003, DV-03-208, referred to above at which ¶ June the District fact, presented to finding of based on evidence specific did indeed make Judge Carlson that charge to file the DUI there was cause determination that by was initiated MCA. DV-03-208 required by that is § which Ditton charge and the same issue It concerns the same Ditton. Ditton, consider to do so we have been invited appeals. now As we appeal. in this Court’s order in DV-03-208 the District unless it is of fact will not be reversed finding A Court’s District Leitheiser, 2006 MT clearly ¶ erroneous. State shown to be burden, as 13. Ditton bears ¶ ¶ Vogel decision. error in the District Court’s to establish appellant, MT 131, 15, 332 Inc., Mont. Body, Truck ¶ v.Intercontinental Court’s attention to the 15, 137 573, 15. Ditton has called this ¶ ¶ cause necessary probable finding of fact District However, Court. he has by Municipal made determination was Municipal Judge Carson transcript hearing ofthe at which provided 9(b), testified, P. or other record which required by App. M. R. determination is erroneous. indicates that the District Court’s Indeed, readily the inference drawn from the District Court’s “necessary determination” of Municipal Judge Carlson made the 46-11-110, MCA, is that pursuant is, timely made, that at the time determination of cause was This with the District Court’s was filed. is also consistent *6 that followed and also properly determination statute was Municipal Judge setting consistent with Carlson’s action Ditton’s case trial, necessary not have been which would without As Ditton has not that determination of cause. established 46-11-110, MCA, finding requirements the District Court’s that the of§ erroneous, were met is we will not reverse the District Court. Municipal Judge District Court further noted that Carlson’s However, in writing. determination of cause was not made 46-11-110, MCA, made, only requires finding be that it be not matter, in writing. practical made As a a written indication that the municipal judge complaint has reviewed the or affidavit and cause, perhaps determined the existence of on the order trial, setting helpful appellate a case for would be on review. We invite Legislature clarify governing to review and the statutes Otherwise, here, may process. municipal judge as occurred be testimony concerning or her determination of upon give called to his cause, busy judges hardly need. disruption municipal court However, upon the record now before the and based that required District Court’s of fact made, timely cause was which has not shown to have been error, Court. we affirm the District
ISSUE TWO Did the District Court err the exclusion of evidence obtained regarding Court’s decisions incarceration, and not to dismiss diming pretrial information provided Ditton was not with all because possession of the State? during that the failure to exclude evidence obtained argues Ditton error, gather not incarceration was as he could evidence pretrial
his failed to him provide time. He also that the State during this photographs him certain requested discovery by providing all not evening of the incident. taken the any State collected evidence The record does not indicate that the following investigation initial of the accident on
against Ditton its 20, notes that the State made a evening of December 2002. Ditton However, argues, initial arrest. he neither nor does diagram after the diagram any that this included evidence collected suggest, the record investigation. after the initial Dahle, handed her trial, cross-examining officer At while if had taken He asked her she envelope containing photographs. replied and she the affirmative. While photographs,
more he makes no photographs, that he had not seen all of the complains may not have seen were either showing any photographs he any might that he have made. or even relevant to defense exculpatory certain transcripts the State withheld alleges Ditton also regarding the traffic accident dispatch to the Bozeman officer calls exculpatory explain arrest. He does not what preceded which his contained, simply asserts that the State transcripts these but evidence exculpatory him evidence. required provide any material he claims to have Ditton fails to show that to establish violation exculpatory. He thus fails received would be him material. State v. obligation provide with such of the State’s 497, 15, 1096, & 15, Johnson, 2005 MT & 329 Mont. & State, 296 Mont. & 986 P.2d 15; & Gollehon v. (1963). 15; 373 U.S. 83 S.Ct. Brady Maryland, & *7 ISSUE THREE government conduct? outrageous the victim of Was Ditton ¶31 by claims cause determination that the lack of ¶32 exculpatory him provide failure to with judge and the State’s conduct. As outrageous government made him a victim of evidence groundless. claims are explained, these two previously government outrageous claims that he suffered Ditton also ¶33 him incommunicado incarcerated and held the State conduct when care. denying him medical while conduct is limited outrageous government The defense of essentially manufactured government cases in which the
extreme criminal pressing sake of merely crimes for the generated or new crime Williams-Rusch, 279 Mont. defendant. State v. charges against (overruled (1996) 169, 174 grounds in on other 437, 445, 928 part 148, 965 P.2d Bruce, MT 290 Mont. by City Billings v. 866). a “most government conduct is Also, outrageous the defense of Williams-Rusch, at 174. Mont. at 928 P.2d defense. narrow” conduct allegations outrageous government Ditton’s bare that the State hours of his incarceration fail to show during the few charge, generated DUI or concerning manufactured evidence charge crimes which to him. He thus fails evidence of new high establishing meet the standard for provide sufficient evidence to in outrageous government adopted conduct Williams-Rusch.
ISSUE FOUR Court err in Did the District to dismiss the case because Ditton’s driver’s Court’s refusal license was reinstated? arrest, breathalyzer leading to take a test after his Ditton refused 61-8-402(4), as MCA. He provided
to seizure of his driver’s license § the District Court for return of his driver’s license as petitioned then by petition allowed MCA.The State did not contest the by granted petition order of June the District Court findings of fact. Ditton claims that the District Court order without charge He effectively decided the DUI his favor. judicata estoppel require
doctrines and collateral both dismissal of res case. previously judicata This Court defined the doctrine of res follows: judicata judgment of res states that a final doctrine jurisdiction is conclusive as to competent
merits a court of thereby litigated, parties as to the causes of action or issues judicial other their in all other actions the same privies, jurisdiction. tribunal of concurrent Irr. Dist. v. Judicial Dist.
Harlem (1995).
943, 944-45 to reinstate Ditton’s driver’s license was The District Court’s order guilty he of DUI. a determination on the merits of whether an issue in the determination of whether The DUI was not Section 61-8- entitled to have his driver’s license restored. Ditton was applicable. is not 403(4)(a), judicata The doctrine of res MCA. “bars the judicata a form of res which estoppel Collateral has cause of action that been of an issue in a second reopening *8 Employment in a suit.” Auto Parts v. litigated prior and determined Div., & 23 P.3d & 2001 MT & 305 Mont. Relations in the determination of Since the DUI was not an issue 29. license, entitled to retrieve his driver’s collateral whether he was estoppel apply. does not
ISSUE FIVE affirming Municipal Did District Court err judicial Ditton’s motion to take notice of the Court’s denial of concerning Act and scientific facts Americans with Disabilities diabetes? symptoms insulin-dependent of required Court was to take argues Municipal that the (ADA)pursuant Act judicial notice of the Americans with Disabilities 202(d)(1). Court argues Municipal He also that the to M. R. Evid. concerning a list of 23 “facts” required judicial to take notice of indisputable. he claims are symptoms insulin-dependent diabetes notice his judicial prejudiced that these failures to take He contends his DUI conviction. require defense and a reversal of sought DUI. Ditton charged In this case the State Ditton with matters, but failed to establish the relevance to raise ADA-related always confined to those the ADAto the DUI Judicial notice is Anderson, at hand. State v. matters are relevant to the issues which (1984). 193, 202 did 272, 288, 686 Municipal The Court judicial to take notice of the ADA. refusing not error in facts, 201(d), must be Concerning judicial notice of M. R. Evid. 201(b), provides: conjunction with M. R. Evid. which read noticed must be one not judicially Kinds of facts. A fact to be (1) generally it is either dispute in that subject to reasonable (2) of the trial court or jurisdiction the territorial known within ready resort to sources of accurate and capable reasonably questioned. cannot be accuracy whose in M. R. Evid. either element set forth Ditton failed to establish 201(b) concerning symptoms of insulin- regard to the “facts” The Municipal Court. presented that he dependent diabetes reasonably supplied could be accuracy the information Ditton either the could not ascertain The Court questioned. he the sources of information completeness of correctness or the foundation, proper Admission required ofthis information presented. did not Court therefore provide. Municipal which Ditton failed concerning of “facts” notice of the list refusing judicial to take err by Ditton. presented diabetes insulin-dependent symptoms SIX ISSUE err in Did the District Court on admission of evidence? rulings refusing erred in to admit *9 area, the accident diagram a scale he created of into evidence He also claims that the sheet about diabetes. excluding an information his refusal to take a admitting erred in into evidence Municipal Court alcohol, admitting videotape into evidence the test for breath stop his and arrest. he sought portray theory to Ditton’s diagram proposed of DUI that an
did not cause the car accident. It is not an element if the cause of the accident relevant to the accident result. Even was charge, prejudice no from the Court’s refusal Ditton suffered diagram He to the diagram to admit the into evidence. showed during explained theory the trial and his ofhow the accident occurred. fault, theory, the accident not his and his alcohol Under this was did not contribute to it. consumption proposed, sheet he Ditton claims that the information which diabetes, into evidence
containing facts about was admissible based However, which exception hearsay specify to the rules. he does “multiple hearsay exception apply. merely should He references exception” such as medical texts and a catch-all and cites exceptions 801-804, appears likely Rules M. R. It most that he generally to Evid. 803(18), learned argument bases his on M. R. Evid. which deals with no to the offered exhibit as a qualify treatises. He offered foundation treatise, learned nor did he offer a sufficient foundation to admit hearsay There no error in any exception list under to the rules. excluding this exhibit. test objected to the admission of his breath alcohol expunged by the District Court’s claiming
refusal
it was somehow
entered
returning
order
his driver’s license. The District Court’s order
61-8-403, MCA,
require
did
separate
action under §
to
all references to a refusal to
Department of Motor Vehicles
remove
record,
driving
and to vacate
take a breath alcohol test from his
However,
in a
to
refusal.
that order entered
action related
such
DUI trial. Montana allows the
had no effect on the
separate proceeding
prosecuting
test refusal when
State to introduce evidence of an alcohol
MCA;
Kortum,
MT
61-8-404(2),
City Helena v.
2003
DUI. Section
77, & 78 P.3d
& 23.
& 318 Mont.
allowing
Court erred
arrest,
it
videotape of his
because
admit into evidence the
State to
argument
In
of this
Ditton cites
right
privacy.
support
violated his
to
920;
Lynch, 292 Mont.
969 P.2d
State v.
State v.
Pizzichiello,
123, 294
436, 983
888;
Siegal,
State v.
1999MT
Mont.
(1997);
Solis,
and State v.
214 Mont.
(1984).
however,
inapposite,
four cases are
because
ISSUE SEVEN Municipal affirming Court err iu Did the District of Ditton’s motion to dismiss? Court’s denial denying in his Municipal that the Court erred argues Ditton He claims that his prosecution motion dismiss after the rested.2 to tests, and sobriety on the field poor performance diabetes caused his evidence to establish again he claims there was insufficient thus citing Bush supports argument him. He this cause to 22, 359, Justice, 1998 MT Dept. ¶ ¶ v. Montana implied Court reversed the consent where this ¶ the state lacked driver’s license because suspension of the defendant’s arrest. probable cause for his Bush, case. In readily distinguishable present from the Bush is was not person the defendant’s beverage an alcoholic about
the odor of signs visible of intoxication strong, and there were no other Bush, indicia 19. Given such weak speech. ¶ defendant’s movements any failure to conduct arresting deputy’s and the ofalcohol intoxication could not tests, arresting deputy that the sobriety we concluded field incorrectly this as a motion to strike. describes that he had consumed explanation wholly disregard the defendant’s case, Bush, Munter present & 19. In the after the accident. beer beverage of an alcoholic they could smell the order Dahle testified both Munter observed Additionally, or person. Ditton’s breath on or about Munter and speech. and slurred his eyes Ditton had bloodshot tests, sobriety him and his three field perform Dahle also had Finally, the alcohol suggested preliminary intoxication. performance percent. content as .230 screening test detected his blood alcohol Bush, consumption to there sufficient indicia of alcohol Unlike were to arrest Ditton for DUI. support required prove to argues Ditton also that the State was alcohol, diabetes, ability safely his to rather than his diminished vehicle, carry and that the State failed to such burden operate a motor for this assertion. The State need proof. provides authority He no as defined under a criminal only prove the elements of offense Kaske, & 309 statute to obtain a conviction. State ' 61-8- charged & 47 P.3d & 26. Ditton was under Mont. 401, MCA, presented and the State sufficient evidence to sustain condition caused him to allegations His that his diabetic allegations intoxicated were a matter of defense. These were appear jury. The presented jury, rejected Municipal err it denied Ditton’s motion to dismiss. Section 46-16- did not when 403, MCA; Clausell, & 28.
ISSUE EIGHT Did the District Court err jury instructions? rulings to refusing Court erred Ditton also Having the ADA. determined jury concerning instruct the the effect of case, to issue in this we decline that the ADA is not relevant argument. further consider Court’s Instruction No. 3. assigns error to the instruct the that in order refusing
He claims the cotut erred in him him to be of DUI it must find that alcohol caused to convict slightest degree.” impaired “more than to *11 that, Montana, jury not be concluded need previously We slightest impaired that a driver must be more than to instructed Polaski, 351, & 106 2005 MT & 325 Mont. degree. State v. P.3d & 21. argues regarding opinions that Instruction No. Ditton next witnesses, that Munter and by was incorrect. He expert
offered 496
Dahle, the cause of the opinions concerning who testified to their condition, distinguish between expertise accident and his lacked symptoms and alcohol intoxication. a diabetic’s laid, foundation has been this Court has proper When testify expert regarding allowed a law enforcement officer to driving had under cause of an accident and whether the driver been 4-7, Gregoroff, the influence of alcohol. State v. (1997). testimony 580-82 We allow such because of the officer’s 4-7, training experience. Gregoroff, and 287 Mont. at extensive case, the State laid a foundation that present P.2d at 580-82. In training experience in DUI both Munter and Dahle had extensive training had in accident investigation experience and Dahle Thus, allowed them to investigation. properly question, of the accident in express opinions concerning their the influence of alcohol. and whether Ditton drove under qualified Munter and Dahle Ditton’s contention that were they distinguish could not between give opinion their because matter for symptoms medical and alcohol intoxication is a diabetic’s attacking weight testimony. of their Instruction cross-examination give the circumstances and No. 7 instructed the to consider proper. Giving it found Instruction No. opinions such credence as was not error.
CONCLUSION Eighteenth of the affirm the order of the District Court We District, County, April Gallatin dated Judicial Court. Ditton’s conviction LEAPHART, concur. MORRIS and RICE JUSTICES JUSTICE NELSON dissents. I reverse and remand Opinion. I from the Court’s would dissent dismissed with charge against that Ditton be
with instructions reasons. following I do so for the prejudice. would
INTRODUCTION of the in this case is the timeliness dispositive The issue cause existed to allow Court’s determination is against Ditton. The issue the influence driving of the under cause determination-it actually made a not whether the court make that determination. the court did indeed -undisputed sequence pursuant the court did so question is whether 46-11-110, MCA. mandated
497 from the District “infer[s]” question, this answering In by made was cause determination finding probable that a doing, In so timely. was that the determination Municipal Court1 Indeed, not there. simply are into the record facts which Court reads any support whatsoever findings factual are without the Court’s of law of fact or conclusion any finding record and are not based Court. by made the District timeliness fact-finding respect to the sponte sua This Court’s In very in recent decisions. in the face of what we said two
issue flies 212, 333 323, 142P.3d Jacobsen, MT Mont. Marriage In re 2006 “ for findings and conclusions are essential ‘[ajdequate we stated that reasons for the speculate is forced to as to the without them this Court healthy for a situation is not a basis [lower court’s] decision. Such ” Jacobsen, Jones, (quoting 19 Jones v. 190 Mont. review.’ ¶ (1980) point this In re citing as illustrative of 620 P.2d 852 Converse, 67, 71-72, 937, 939-40 252 Mont. 826 P.2d Marriage of 462, 467, 689 P.2d (1992), Marriage Keating, re 212 Mont. and In (1984)). 249, 252 John, 175, 333 16, 140 Mont. Similarly, Snavely v. St. failure to make we reversed the district court because of its stated that adequate findings injunction proceeding. of fact an We job findings it “not our to make of fact or conclusions of law in the Snavely, 19. face of the trial court’s failure to do so.” ¶ principled no Notwithstanding, Opinion the Court’s articulates authority job supporting or that allows us to do the trial court’s basis to making findings jurisprudence-referred of fact where our settled Moreover, that we would do so on above-prohibits precisely that. absolutely that is legal question in the face of a record dispositive is The Court has turned contrary findings to those inexcusable. appellate function on its head.
DISCUSSION 46-11-110, MCA, provides: Section a court complaint presented a is to Filing complaint. When offense, an the court charging person with the commission of affidavits, filed, if any the sworn complaint shall examine (that clarification, determination was made cause For Court) 03-208, corpus proceeding initiated a habeas the by District Court from was entered DV (to contrast, 03-204, appeal us, by appeal DC Ditton’s is from Ditton. before Court) driving under the Bozeman of his conviction the influence of alcohol. filing
determine whether cause exists to allow the of a unambiguously requires This statute cause determination be made the charge is filed. See State v. before (1996) (“Montana Johnson, law provides against can brought criminal be before made, probable person individual or an arrest cause to believe that the added) has committed the crime required.” (emphasis (citing 46- §§ MCA)). 46-6-201, statutory 11-110 and It is a duty court’s to examine complaint “to determine whether cause exists allow added). charge.” of a In (emphasis Section MCA other words, determination, until a court makes *13 charge may not be filed. Here, the record establishes that the Court’s Municipal probable support charge
determination that there was cause to the against nearly charge Ditton was not made until six months the after (which the a of Specifically, tape-recording was filed. record includes Court) appearance Ditton’s initial in the reflects the arrested; following: evening on the of December Ditton was evening, “charged” driving later that he was with under the influence by way and called this a to to answer court for offense “Notice Appear Complaint”; arraigned appearance and he was at his initial on 23,2002, and pled guilty; during appearance, December the initial Municipal Judge requests the declined to rule on Ditton’s for a probable charge cause determination but nevertheless “filed” the date; him and a trial the against arresting completed set officer 28,2003; and, probable January cause affidavit over a month later on trial, finally, day on June the Ditton’s the before the Municipal Judge charge ruled that there was cause to file the actual alleged Appear Complaint. in the Notice to and This is bound. record which this Court is facts, statutory sequence prescribed by Given these 46-11- (1) (2) court;
110, MCA-namely, complaint presented filed; and, complaint court examines the sworn and affidavits (3) court, examination, lastly, from its determines whether charge-was completely to allow the probable cause exists ignored in this case. noted, charged on already As the record reflects that was by way Appear Complaint.” of a “Notice to
December jurat the officer to swear out the This place This form has a judge notary Complaint presented that the was to provides Allum, true. See State charge that the the officer swore that 37-38, 37-38, ¶¶ ¶¶ ¶¶ 46-11-401(3), MCA, the 46-11-110 and (stating that under §§ 37-38 was). Here, sworn, long as the officer did not need be Complaint Indeed, the record establishes completed. however, jurat was never cause to believe that there was the officer did not swear that 28, 2003, in later, January until a month was true filed on Affidavit was then Cause. This an Affidavit of Probable to Ditton’s Motion to January 31, response the State’s get did not around judge, part, for her Dismiss. The nearly until five months making the cause determination is the actual record before us. Again, after that. this City acknowledged Prosecutor Significantly, the Bozeman January 31, to Ditton’s Motion to Dismiss response State’s determination, fact, had cause been delayed: case, delay in the determination is two-fold.
In this released .... being first the Defendant was State, delay is that the because of the absence The second problem: of one Undersigned, specifically was not aware Cause]. The State first [Affidavit lack of a filed Probable case, granted, an extension to review this which was requested ultimately determined this flaw reviewing and then in this case inadvertently had not been filed. That and obtained what Response]. [to attached document is now explanation only This further establishes long charge against made until determination was not after 23,2002, statutory sequence and that the had been filed on December *14 therefore, 46-11-110, MCA, not followed. by was prescribed § as the crux of Opinion correctly recognizes timeliness the by asking, identifies the issue “Must the matter here. The Court Court against Ditton be dismissed because the complaint cause to file the timely probable did determine that there was not added). Yet, the Cotut answering question, in charge?” (emphasis by stating the record a error: it mischaracterizes makes critical (in “finding made a corpus proceeding) the District Court the habeas timely required probable of fact that the determination of cause was added).2 (emphasis made” only findings on this issue are follows: The District Court’s as had
Municipal Judge Carlson occasion to review Affidavit response the to Petitioner’s Probable Cause filed with State’s Although explicit Motion to Dismiss. the order which was motion, following filing Municipal Judge issued of that testify Carlson did she had concluded there was Probable Cause filing complaint. Although writing, for the of the not in Judge necessary Court did make the determination filing MCA that there cause for probable under was §46-11-110 charge. findings in these does the District Court state when Nowhere made, determination Judge was let alone probable Carlson’s state, timely it made in a fashion. Nor does the court as whether was asserts, Rather, that the statute followed.” “properly this Court merely Municipal Judge the District Court found that Carlson “had Cause-though occasion” to review the officer’s Affidavit of Probable stated, after the happened when she did so is not but it (on 23, 2002), against given Ditton was filed December (with January filed on Affidavit of Probable Cause was Dismiss). State’s to Ditton’s Motion to The court further response (at time) Judge point found that Carlson some concluded there was probable filing complaint Judge cause for the of the and that Carlson time) by (again, point required at some made the determination 46-11-110, MCA, charge. filing that there was cause for § at all-not even But the issue of timeliness is not addressed Granted, according to the District implication, as this Court asserts. “necessary determination” judge made 46-11-110, MCA, filing cause for under “that there was § above, 46-11-110, MCA, However, required charge.” explained “necessary determination” at a Municipal Court to make that of the Section 46-11- particular time-namely, before (“[T]he examine complaint the sworn MCA court shall affidavits, filed, to allow if to determine whether cause exists added)). charge.” (emphasis Accordingly, post-filing filing “timely” Incidentally, required cause was whether the determination law, here are when the not a of fact. The relevant “facts” made is a conclusion of charge against Ditton was cause was made and when the probable cause apply facts to ascertain whether the filed. We then the statute those the statute-a conclusion of law. determination was made in conformance with *15 after-the-fact) for probable there was cause (i.e., determination that here-directly to be the case the record shows filing charge-which the statutory mandate. the contravenes then, demonstrably wrong in fact, this Court is As a matter of Judge Carlson’s the Court found that
stating that District does the actual record “timely” was made. Nowhere determination probable made a cause Judge that Carlson before us demonstrate Rather, “finding” the that the filing determination before alone, “timely made” this Court’s determination was is probable cause ignoring cloth and the actual record unfortunately created from whole contrary. that is to Indeed, merely is an “inference finding this Court’s of timeliness finding that “the
readily drawn” from the District Court’s necessary did make the determination under Judge §46-11-110 Court charge.” Specifically, cause for probable MCA that there was of cause was made “at probable the Court infers that the determination However, aside from the fact that we charge the time the was filed.” “infer[ring]” dispositive legal should not be answers us, questions before the Court’s inference is unsustainable. (at 23) augmented thing, For one the Court has rewritten and ¶ finding does-specifically,
the District Court’s to state more than it noted, properly already “that the statute was followed.” As the District Moreover, hardly made determination. one can infer-let Court no such “readily”-that “necessary made Judge alone infer Carlson cause “at the time the was filed” probable determination” opposite. particular, the record establishes In precisely when ignores charge against the facts that the Ditton was filed on 23, 2002, during appearance; December his initial Judge during proceeding requests declined that to rule on Ditton’s determination; jurat a that on the “Notice to arresting Appear Complaint” completed; was never a after the officer’s cause affidavit was filed over month that, filed; “delay,” City due this as the Bozeman charges were it, determination of put Judge Prosecutor Carlson made belated contrary readily- cause on June 2003-all to this Court’s drawn inference. challenging criticizes Ditton for not the District The Court cause was
“finding required of fact that the challenge “finding” Ditton cannot this timely surprisingly, made.” Not discussed, Rather, just Court never made it. because the District Thus, wrong to fault by this Court. the Court is finding “infer[red]” was hearing ... or other providing] transcript Ditton for “not [finding indicates that the District Court’s record which timely clearly made] cause was required determination need not show that erroneous.” Ditton *16 finding made. erroneous3 because no such was ever 46-11-110, mistaken rely The is also on the fact that “§ MCA, made, in only requires that the be not that it be made explicitly does not writing.” require While it is true that this statute determination writing, be memorialized in probable that wholly fact is irrelevant to the case before us because the sole issue determination, it was in here is the timeliness of whether writing. Again, by appeal. we are bound the actual record on This record statutory by Legislature scheme enacted
demonstrates above, 46-11-110, MCA,requires that was violated. As noted § charge determined filing cause for the of a criminal be before Here, that there charge arresting is filed. officer did not swear was the arrest until over a month was probable cause for after arraigned. And the Court did not filed and Ditton was filing charge against that cause existed for determine nearly Ditton until five months later. Having determined that Court violated the MCA, must, 46-11-110, necessarily, I turn to the issue of
mandate of § remedy employed should here. what be See, e.g., in some circumstances. presumes prejudice This Court 115, 25, Lamere, 2005 MT State v. ¶ ¶ (structural errors, which are defects the framework 25¶ proceeds, presumptively prejudicial a trial are because within which weighed against or they qualitatively quantitatively cannot be trial). 46-11-110, of introduced at violation § admissible evidence critical, MCA, I this conclusion on is one such circumstance. base overlooked, in the administration plays role that this statute but often in Montana. justice of criminal by actually Contrary we are of review articulated to the standard 46-11-110, MCA, fact-i.e., presented question § whether a mixed of law and established, Thus, apply a de novo light facts. we must of the record-based
violated applies clearly erroneous standard with the Court rather than the standard of review 10, 120 State, 10. Bud Duffy ¶ ¶ Mont. ¶ here. Judge standard, any finding by clearly the District Court that under the erroneous even Carlson made a determination charge [against probable cause “at the time the of us. on the actual record before Ditton] was filed” is erroneous MCA, of enactment Legislature’s § Thanks to the time them to the government put cannot are assured that citizens charges criminal unless defending against of expense course, exists Of this assurance charges. those cause exists duty under § the lower courts do their only to the extent enforces this statute 46-11-110, MCA, and to the extent that this Court appeal. on 46-11-110, MCA, allegations to screen out obligates courts Section Thus, that courts requires cause. this statute
which lack act do not prosecutors, ensuring prosecutors as a check on serve Obviously, this leveling charges against citizens. without restraint where, here and in tens of thousands important check is even more Montana, officers, instead of year police of cases each across attorneys, charges. level the prosecuting cause is a vital The assessment power of the enormous wielded
judicial function because govemment-a power places great arm of which burden prosecutorial (some ultimately acquitted) put are and can them citizens whom Const, “life, II, deprivation liberty, property,” at risk of Mont. art. fact, 46-11-110, MCA, 17. In the function of is reflective of one § *17 justice system: our criminal “our sense of the “fundamental values” of play by requiring fair which dictates ‘a fair state-individual balance good alone until is shown government to leave individual cause him disturbing by requiring government in its contest with ” Murphy the individual to shoulder the entire load.’ v. Waterfront (1964). Comm’n, 378 U.S. 84 S.Ct. 1596-97 Indeed, criminaljustice system certainly our would be an ominous the minimal filing charges mechanism if it allowed for without charges are akin to a “sword of showing cause. Criminal person a citizen’s head until the has had his hanging Damocles” over have to suffer that sword day person or her court. No should before filing judge support determines that cause exists to against charges criminal charges. Forcing an individual to defend charges place to file the in the first when no cause existed system. justice in our criminal injustices possible one of the worst determination timely probable fails to make the cause When a court MCA, facilitating such 46-11-110, it creates the risk of mandated § injustice. 8m cause Thus, vitally nature of a given important that a charges, I would hold to allow the
determination MCA, inherently substantially is so violation of § II, process guarantee it violates the due of Article prejudicial Constitution, requiring Section of the Montana thus dismissal of charges filed in each instance.
CONCLUSION cannot agree I the Court’s decision here. The Court creates findings dispositive from whole cloth critical on the timeliness issue record, contrary findings. the face of the actual which is to those Our jurisprudence permit approach; does not basic fairness approach; process defendant does not allow this and constitutional due certainly not license this Court here. most does what does undisputedly Because on the record here the 46-11-110, MCA, by making a violated charge filed driving under influence before Ditton, reverse, remand, against I would and order that the I dissent from our failure against prejudice. Ditton be dismissed with to do so. join in JUSTICE
CHIEF JUSTICE GRAYand JUSTICE COTTER NELSON’S dissent.