                                                                                            May 13 2009


                                          DA 08-0254

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2009 MT 165N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

MICHAEL JACKO,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourteenth Judicial District,
                        In and For the County of Musselshell, Cause No. DC-2007-028
                        Honorable Randal I. Spaulding, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Michael Jacko (Self-Represented), Roundup, Montana

                For Appellee:

                        Steve Bullock, Montana Attorney General, Tammy Plubell, Assistant
                        Attorney General, Helena, Montana

                        Kent M. Sipe, Musselshell County Attorney, Roundup, Montana



                                                    Submitted on Briefs: April 29, 2009

                                                               Decided: May 13, 2009


Filed:

                        __________________________________________
                                          Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court's quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2    This is an appeal by Michael Jacko from the Pre-Trial Order entered by the

District Court for the Fourteenth Judicial District, Musselshell County, allowing the State

to use previous testimony of a witness at trial, and from the District Court’s Judgment

finding him guilty of the offense of Driving Under the Influence, first offense, a

misdemeanor, in violation of § 61-8-401, MCA. We affirm.

¶3    On March 24, 2007, Deputy Wendy Shores of the Musselshell County Sheriff’s

Office was on patrol when she received information from another deputy about a possible

drunk driver. A concerned citizen had reported that there was an intoxicated individual

in a motor vehicle on Main Street in Roundup whom the citizen feared was getting ready

to drive off. After obtaining a description, Deputy Shores drove to Main Street to look

for the vehicle. She found the green Ford Explorer parked on the side of the street.

¶4    As Deputy Shores approached the vehicle, she noticed that the engine was running

and that a man was slumped over the steering wheel. Deputy Shores knocked repeatedly

on the vehicle’s window to get the man’s attention. The man, who was later identified as

Jacko, finally acknowledged Deputy Shores and either rolled down his window or opened


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the door. Deputy Shores observed that Jacko’s eyes were glassy and bloodshot, and there

was a strong odor of alcohol coming from inside the vehicle. In addition, when she asked

for Jacko’s drivers’ license, Deputy Shores noticed that he had difficulty with dexterity.

¶5     Jacko repeatedly informed Deputy Shores that he did not intend to drive

anywhere. However, Deputy Shores explained to him that he was in actual physical

control of the vehicle because he was the only person in it, he was sitting in the driver’s

seat, and the engine was running.

¶6     Deputy Shores requested that Jacko exit the vehicle to perform some field sobriety

tests, however, she was only able to conduct one test. When she proceeded to the walk-

and-turn test, Jacko’s balance was so poor that he staggered toward oncoming traffic.

Deputy Shores transported Jacko to the Musselshell County Sheriff’s Office where she

administered the sobriety tests. She also requested that Jacko submit to a breath test, but

he refused.

¶7     A Justice Court jury convicted Jacko of DUI on August 2, 2007. Jacko appealed

to the District Court. At the March 4, 2008 pretrial conference, Jacko informed the court

that he waived his right to a trial by jury in favor of a bench trial.

¶8     Prior to trial, the State filed a “Notice of Intent to Introduce Transcript of Wendy

Shores Testimony” wherein the State expressed its intent to introduce a transcript of

Deputy Shores’ testimony from the hearing on the revocation of Jacko’s license. At a

hearing on the matter, the State explained that Deputy Shores was employed as a civilian

contractor in Iraq and was not subject to the court’s subpoena power, thus she was

unavailable to testify. Jacko objected arguing that if he was not allowed to cross-examine


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Deputy Shores at the bench trial, his right to confront witnesses would be violated. He

maintained that the purpose of the license revocation proceeding was too removed from

the purpose of the bench trial to allow the transcribed testimony. Jacko further argued

that the State could have taken Deputy Shores’ deposition before she moved to Iraq, but

failed to do so.

¶9     The District Court determined that Deputy Shores was unavailable and that the

requirements of M. R. Evid. 804(b)(1) had been met since Deputy Shores was under oath

and subject to cross-examination by the defense when she testified at Jacko’s license

revocation hearing. Thus, the court admitted the transcript of Deputy Shores’ former

testimony. After the court’s ruling, Jacko entered a no-contest plea to the DUI charge,

reserving his right to appeal the court’s ruling on the admissibility of Shores’ testimony.

The court sentenced him to six months in jail with all but one day suspended, and

imposed a fine of $600 along with court costs and fees. Jacko appealed.

¶10    Having reviewed the record, the District Court’s decision and the parties’

arguments on appeal, we have determined to decide this case pursuant to Section I,

Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2003, which

provides for memorandum opinions.

¶11    Former testimony is a recognized exception to the hearsay rule. City of Hamilton

v. Mavros, 284 Mont. 46, 50, 943 P.2d 963, 966 (1997) (citing M. R. Evid. 804(b)(1)).

“The rationale behind the exception is that there is a guarantee of trustworthiness at the

time the testimony is given, namely, the witness is under oath and subject to cross-




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examination.” Hamilton, 284 Mont. at 50, 943 P.2d at 966 (citing State v. Bouldin, 153

Mont. 276, 282, 456 P.2d 830, 833 (1969)).

¶12    Here, Jacko conceded that Deputy Shores was unavailable to testify. However, he

has offered no legitimate reason why his questioning of Deputy Shores at the license

revocation proceeding was inadequate for the purposes of his DUI bench trial. As the

State points out in its brief on appeal, if Deputy Shores were available to testify at trial,

she would have relayed the very same facts to the court as she did in the license

revocation proceeding, including the information she received about Jacko’s vehicle

description, what she did with the information, what happened when she approached

Jacko’s vehicle, her observations of Jacko’s condition, Jacko’s responses, Jacko’s

performance on the field sobriety tests, and her decision to arrest him.

¶13    It is manifest on the face of the briefs and the record before us that this appeal is

without merit because the findings of fact are supported by substantial evidence, the legal

issues are clearly controlled by settled Montana law which the District Court correctly

interpreted, and the record supports the District Court’s conclusion that Deputy Shores’

former testimony was admissible in Jacko’s DUI trial pursuant to M. R. Evid. 804(b)(1).

¶14    Affirmed.

                                                         /S/ JAMES C. NELSON


We Concur:

/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ JIM RICE
/S/ BRIAN MORRIS


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