*1
STATE OF MONTANA,
Respondent,
Plaintiff and
STEVEN
ELY,
WILLIAM
Appellant.
Defendant
No. 02-339.
1,May
Submitted on Briefs
May
Decided
For Hon. Mike John Paulson, Attorney General, Helena; Long, Assistant Robert J. Lake County Attorney, Poison. Opinion
CHIEF JUSTICE GRAY delivered Court. Ely (Ely) appeals from the Steven William County, Judicial District on the verdict Twentieth finding guilty him
We affirm. The issue on is whether the District Court abused its
discretion *2 sample voluntarily.
BACKGROUND 2001, February 15, County Sheriffs Office Detective On (Cannon), along deputies, Cannon with several sheriffs Andrew search-pursuant to a warrant-of the trailer house in executed which search, Ely During cigar Cannon discovered a metal tube lived. containing powdery a white substance believed-and later methamphetamine. Ely during arrived at the trailer established-to be following day, requested Ely The Cannon the search and was arrested. Ely voluntarily provide sample testing. a urine for refused. Cannon warrant, sample Ely the urine acquired then obtained a search Laboratory. sample it to the Montana State Crime The urine sent tested positive methamphetamine. (State) Ely by subsequently charged The Montana State of possession the offenses of criminal
information with possession drug dangerous drugs and misdemeanor prior offense was dismissed to trial. paraphernalia. The misdemeanor 22, jury January A held on State trial was examination, During Cannon Cannon as a witness. direct called Ely provide the urine testified the facts that had refused to a search required and Cannon was to obtain sample testimony, objected the admission of this acquire Ely warrant it. ultimately objection, overruled the the District Court The court Ely guilty found of criminal and sentence. on the conviction sentenced Ely appeals. OF REVIEW
STANDARD is and admissible evidence relevant The determination whether and we will discretion of the trial court is within the sound State showing of discretion. of abuse overturn that decision absent 983, 131, 9, P.3d Rodarte, 317, 9, 313 Mont. 60 ¶ 2002 MT ¶ ¶ 171
DISCUSSION Did its discretion in the District Court abuse regarding Ely’s sample voluntarily? a urine Ely argues that the District Court its discretion in abused testify regarding provide voluntary Cannon to his refusal to acquisition He asserts that of a urine constitutes a search and that both the Montana and United States guarantee Constitutions him the to refuse to consent to that search. He further asserts that it impermissible for the State to use fact that he exercised his constitutional to refuse to consent to a search as evidence at guilt. response, trial establish his argues State raising barred from these theories because they are not the objected basis on which he at trial. It appellant may change legal is well-established that an theories on or raise issues which were not raised the trial See, e.g., 26, 44, court. State v. Hoffman, 155, 2003 MT 314 Mont. ¶ ¶ 44, 1013, 44; Courville, 64 P.3d 330, 5, State v. 2002 MT ¶ 313 Mont. ¶ 218, 5, 749, 5; Stewart, 61 379, 30, P.3d State v. MT ¶ ¶ ¶ 507, 30, 391, Mont. 30; Chesarek, 15, 16 P.3d ¶ State v. 1998 MT ¶ ¶ 14, 287 215, 14, Mont. 953 P.2d 14. The rationale for this rule is that it is unfair to fault trial court on an issue it given was never the opportunity Courville, to address. ¶.5. *3 trial, Ely objected At testimony to Cannon’s
¶10 on the basis that its probative outweighed by value would be its prejudicial Ely’s effect. counsel also Ely’s made a brief reference right to to refuse to voluntarily provide potentially incriminating Ely’s evidence. counsel refer, however, did not Ely’s to right constitutional to refuse consent search; to a warrantless argue nor did he that admission of the testimony impermissibly would penalize Ely having asserted a right. constitutional record, On this Ely’s objection we conclude that to admission testimony
Cannon’s at trial premised was on different bases than he and, result, now appeal asserts on as a has changed legal his theory argument and appeal. Consequently, on we decline to address theory. this new Ely having objections abandoned on made at
we hold he has failed to establish that the District Court abused its discretion in admitting testimony regarding his refusal to a urine voluntarily. Affirmed. NELSON,
JUSTICES and REGNIER RICE concur. dissents.
JUSTICE COTTER Ely’s failing counsel for to refer "... to the Court faults Ely’s right refuse consent to a warrantless search.” constitutional to view, Ely’s rights, constitutional my Ely’s counsel made reference although language Specifically, not in the Court would like. precise the court for a short recess when he knew Officer Ely’s counsel asked testify voluntarily give that refused to Cannon was about to jury, Ely’s counsel presence While out of the of the authority “I a refusal stated: don’t believe the State has over defendant, defendant, give voluntarily what especially a custodial colloquy Later in the with the potentially incriminatory evidence.” court, voluntarily “The has a to not offer urine he said: defendant bodily Thus, samples any type sample.” or or other samples blood twice, counsel, unartfully, Ely’s perhaps while made reference bodily voluntarily give up refuse to his fluids to defendant’s attorney Granted, did not police request. officer on his the defendant’s to a specific Ely’s “right terms of to refuse consent speak in the was, judgment, specific search,” objection my his in warrantless but enough the issue. to raise Second, Ely’s argue counsel failed to that says the Court Ely for impermissibly penalize would
admission of agree I having right. Ely, again, 10. While asserted a constitutional testimony would specifically state that "... the that he did impact of the impermissibly penalize Ely potential prejudicial ...” the record he objection for his testimony was the whole basis surely “penalize.” akin to clearly argued prejudice, which made. He objections his as may for the defendant not have stated Counsel like, view, my question there is no succinctly as the Court would but appeal. for review on objection adequately his preserved that he Ely’s objection, finely language parsed far too think we have among less articulate competent well for the but which does bode us. theory argument Ely changed legal his I would not find that merits, and I would Ely’s objection on the appeal.
on I would address of the State’s having been forewarned conclude that the District give intention to introduce evidence anyway objection it over sample, *4 I dissent therefore reverse. defendant, abused its discretion. would our refusal to do so.