STATE OF MONTANA, Plaintiff and Appellee, v. SCOTT KELLY WALSH, Defendant and Appellant.
DA 21-0453
IN THE SUPREME COURT OF THE STATE OF MONTANA
February 28, 2023
2023 MT 33
APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 20-269C, Honorable Heidi J. Ulbricht, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defendеr, Jeff N. Wilson, Assistant Appellate Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Bjorn Boyer, Assistant Attorney General, Helena, Montana
Travis Ahner, Flathead County Attorney, Stacy Boman, Amy L. Kenison, Deputy County Attorneys, Kalispell, Montana
Submitted on Briefs: February 1, 2023
Decided: February 28, 2023
Filed:
Clerk
¶1 Scott Kelly Walsh appeals his conviction after jury trial in the Eleventh Judicial District, Flathead County, of Driving Under the Influence (DUI). He raises the following issues:
- Did the District Court violate Walsh‘s right of confrontation under the United States and Montana Constitutions by granting the State‘s motion to permit a witness to testify in real time by two-way videoconferеncing?
- Did the District Court err by sentencing Walsh to the Montana State Prison (MSP) and by requiring him to pay a $100 statutory surcharge?
¶2 We conclude Walsh‘s right of confrontation was not violated, but that the District Court, as the State concedes, erred by sentencing Walsh to MSP and by requiring him to pay a $100 statutory surcharge. We reverse and remand for re-sentencing.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On August 13, 2020, a concerned citizen called 911 to report that a vehicle was driving erratically on Highway 93 near Whitefish, Montana. The caller reported the vehicle was swerving, accelerating then quickly decelerating, and causing other vehicles to pull off the road. Sergeant Rob Veneman of the Whitefish Police Department responded to the call and located a car matching the caller‘s description near the reported location. Veneman approached the car, identified the driver as Scott Walsh, and asked him if he had been drinking. Walsh answered, “[o]bviously, quite a bit,” and Venеman noted a strong odor of alcohol coming from Walsh‘s person, a watery look in his eyes, and slurred speech. When Walsh refused to perform a field sobriety test or a breathalyzer test, Veneman arrested him, obtained a warrant for a sample of Walsh‘s blood, and transported Walsh to the North Valley Hospital. At the hospital, Lily Schroeder, RN, conducted a bloоd draw pursuant to the warrant, and the sample was sent to the Montana State Crime Lab for analysis.
¶4 Walsh was charged with felony DUI for a sixth offense and the District Court set the trial for January 2021. The weеk before trial, the State moved for a continuance, explaining Schroeder was out of the country and unavailable to testify. The District Court granted the continuance over defеnse counsel‘s objection, and reset the trial for April 2021. Walsh thereafter moved to dismiss the charge on speedy trial grounds, which the District Court denied. Two weeks before the April trial, the State moved to allow Schroeder to testify remotely via Zoom, explaining that Schroeder was “now residing in Greece.” Walsh objected to the motion.
¶5 The District Court entered findings of fact, finding Sсhroeder‘s journey to testify would be “over 5800 miles each way and span nine time zones,” noting she would spend over 30 hours on an airplane roundtrip, plus “significant time in airports during multiple layovеrs.” The District Court found the Centers for Disease Control had advised that all travel to Greece should be avoided due to COVID-19, and the U.S. State Department had issued a Level 4: Do Not Travel advisory for Greece due to COVID-19. The U.S. Embassy in Greece had advised that all airline passengers from Greece to the United States ages two and older must provide a negative COVID-19 viral test takеn within three days of travel. The District Court found that obtaining Schroeder‘s physical presence in the courtroom would not only create an extraordinary expense for the County, “but, morе importantly, would create a tremendous burden
¶6 The trial occurred on April 28-29 of 2021, and the jury found Walsh guilty of DUI. The District Court sentenced Walsh to a five-year term at the MSP, and ordered Walsh pay a $100 statutory surcharge pursuant to
STANDARD OF REVIEW
¶7 This Cоurt exercises plenary review of constitutional questions and applies de novo review to a district court‘s constitutional interpretation of the Sixth Amendment of the United States Constitution and Article II, Section 24 of the Montana Constitution. State v. Mercier, 2021 MT 12, ¶ 11, 403 Mont. 34, 479 P.3d 967. Additionally, we review the legality of a criminal sentence de novo to determine whether the trial court adhered to the applicable sentencing statutes. State v. Hinshaw, 2018 MT 49, ¶ 7, 390 Mont. 372, 414 P.3d 271. We confine our review to “‘determining whether the sentencing court had statutory authority to impose the sentence, whether the sentence falls within the parаmeters set by the applicable sentencing statutes, and whether the court adhered to the affirmative mandates of the applicable sentencing statutes.‘” Hinshaw, ¶ 7 (quoting State v. Rosling, 2008 MT 62, ¶ 59, 342 Mont. 1, 180 P.3d 1102).
DISCUSSION
¶8 1. Did the District Court violate Walsh‘s right of confrontation under the United States and Montana Constitutions by granting the State‘s motion to permit a witness to testify in real time by two-way videoconferencing?
¶9 The Confrontation Clause of the Sixth Amendment of the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him.”
¶10 However, the Supreme Court has recognized that physical face-to-face confrontation, while preferred, is not an absolute requirement, and has approved alternative witness participation in certain circumstances. See Mercier, ¶ 17. In Craig, the Supreme Court affirmed a Maryland state statute that permitted the use of a one-way video stream in order to protect the interests of a child who had been sexually assaulted, where the State had presented evidence the child would sustain anxiety and fеar if required to physically appear before the defendant, and that the child‘s ability to testify would be compromised. The Supreme Court upheld the statute, noting the State had provided an important public policy for use of technology to present the testimony. This holding became the two-prong Craig standard, under which, first, there must be a case-specific finding made by the trial court that “denial of physical face-to-face confrontation is necessary to further an important public policy.” Mercier, ¶ 18. Secondly, the reliability of the testimony must be maintained by suсh hallmarks as the witness being placed under oath, testifying in the view of the jury, and being subject to cross-examination. Craig, 497 U.S. at 846-47. Walsh did not raise a challenge under the second prong.1
¶12 2. Did the District Court err by sentencing Walsh to MSP and by requiring him to pay a $100 statutory surcharge?
¶13 Walsh was sentenced undеr the 2019 DUI statute, the version in effect at the time of his DUI charge. Under
¶14 Further, pursuant to
¶15 Walsh‘s conviction is affirmed. We reverse his sentence and remand for resentencing. The District Court may conduct such additional proceedings for resentencing as it deems necessary, in its discretion.
/S/ JIM RICE
We concur:
/S/ MIKE MCGRATH
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE MCKINNON
/S/ INGRID GUSTAFSON