                                                                                             November 3 2008


                                         DA 06-0441

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2008 MT 365



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

WAYNE ALLEN HIXON,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Nineteenth Judicial District,
                      In and For the County of Lincoln, Cause No. DC 2005-029
                      Honorable Michael C. Prezeau, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Jim Wheelis, Chief Appellate Defender, Lisa S. Korchinski, Assistant
                      Appellate Defender, Helena, Montana

               For Appellee:

                      Hon. Mike McGrath, Montana Attorney General, Ilka Becker, Assistant
                      Attorney General, Helena, Montana

                      Bernie Cassidy, Lincoln County Attorney, Robert Slomski, Deputy
                      County Attorney, Libby, Montana



                                                   Submitted on Briefs: October 3, 2007

                                                              Decided: November 3, 2008


Filed:

                      __________________________________________
                                        Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Wayne Allen Hixon (Hixon) was charged with deliberate homicide and tampering

with evidence on May 13, 2005 in the Nineteenth Judicial District, Lincoln County.

Hixon moved to suppress evidence obtained from his vehicle on the grounds that the

seizure of his truck was illegal. After a hearing on the matter, the District Court denied

the motion to suppress. The first trial ended in a mistrial. The second trial resulted in the

jury finding Hixon guilty and he was sentenced. Hixon appeals. We affirm.

¶2     Hixon raises the following issues on appeal:

¶3     Issue 1: Did the District Court err when it denied Hixon’s motion to suppress all

the evidence obtained subsequent to the warrantless seizure of the vehicle?

¶4     Issue 2: Did the District Court err when it denied Hixon’s motion for mistrial due

to the court’s criticism in the jury’s presence during defense counsel’s cross-

examination?

                 PROCEDURAL AND FACTUAL BACKGROUND

¶5     On April 30, 2005, Eureka Police Officer Ian Jeffcock (Jeffcock) heard dispatch

request fellow officer County Sherriff Deputy Mark Gray (Gray) to call them. Jeffcock

called Gray to see what the situation was. Gray reported he was investigating a report of

gunshots near the Rooseville border crossing for the Montana-Canada border,

approximately eight miles north of Eureka. Jeffcock gave Gray some information about

the area, as Jeffcock was somewhat familiar with the roads. Later, as Jeffcock was

monitoring traffic on Highway 93 on the south side of Eureka, he overheard a radio




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transmission from Gray to dispatch. Gray advised he had found the dead body of a “male

resident” with a gunshot wound to the head.

¶6     Almost simultaneously, Jeffcock observed a vehicle he believed to be speeding

and activated his radar. He clocked the vehicle traveling 51 mph in a 35 mph zone and

initiated a traffic stop. The vehicle eventually pulled over and stopped off the highway

outside the fog line. Jeffcock approached the vehicle and asked the driver, Hixon, for his

driver’s license and proof of insurance. The window to Hixon’s vehicle did not work, so

he opened his door to speak with Jeffcock. At this time Jeffcock noticed Hixon was not

wearing shoes and he also detected a slight odor of alcohol. Jeffcock returned to his car

to verify the registration and write out a speeding citation. While writing out the ticket,

Jeffcock overheard another radio transmission from Gray in which he announced there

was no weapon found by the body.

¶7     Jeffcock returned to the vehicle to give Hixon his ticket with the intention of

leaving to assist Gray, as they were the only law enforcement officers on duty at the time.

As Hixon engaged Jeffcock in a conversation about the ticket, he noticed the odor of

alcohol again and became concerned about his level of intoxication. Jeffcock asked

Hixon if he had been drinking, and Hixon responded in the affirmative. Around this time

Hixon also informed Jeffcock the reason his shoes were off was because his feet stank.

During their conversation Jeffcock ascertained that Hixon had recently left his house

which was located at 140 Border View Drive. As it turned out, this house was in the area

where the dead body had been discovered. Jeffcock later testified it was around this time

he began to entertain the possibility that the Hixon DUI and the incident Gray was

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working on may have been related, but he nonetheless continued on with his standard

DUI investigation.

¶8    Jeffcock proceeded to perform the standard field sobriety tests on Hixon and

determined he was intoxicated. At that point he had him take a portable breath test which

resulted in a blood alcohol content of .262. Jeffcock then advised Hixon he was under

arrest and placed him in the back seat of his patrol car. Jeffcock asked Hixon if he would

like his shoes and Hixon replied no, he did not. Jeffcock informed Hixon that he was

calling a tow truck to remove the vehicle from the side of the road, per standard

department policy.

¶9    Jeffcock requested Hixon’s permission to search the vehicle, which was granted.

During the suppression hearing Jeffcock testified he routinely does some sort of a search

during his DUI investigations to help bolster his case by finding open or empty alcohol

containers. As he was beginning his search, Jeffcock received a call from Gray regarding

his shooting investigation. Gray mentioned there was a distinct shoe pattern in the

ground around the body. During the conversation Jeffcock continued his search and

found Hixon’s shoes in the back seat. He did not touch the shoes. He informed Gray of

his discovery and told him he had Hixon detained for DUI and also was having his truck

towed because of the DUI policy. Jeffcock then went back to his vehicle to re-position

the handcuffs on Hixon for his comfort, at which time he also Mirandized him because

Hixon was volunteering random information.

¶10   While waiting for the tow truck to arrive, Fish and Game Officer Jim Roberts

(Roberts) arrived on the scene. Roberts was on his way to help Gray and stopped by to

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see what Jeffcock was doing. (This area of Montana has very few law enforcement

officers and an unspoken agreement of helping across agency lines exists).            After

ascertaining who Jeffcock had pulled over, Roberts informed him that earlier that day he

was called to an incident involving Hixon and his neighbor Bob Mast (Mast). Roberts

left soon after to report to Gray’s location and subsequently ascertained that the victim

was in fact Mast.

¶11      The tow truck arrived shortly after Roberts left and Jeffcock assisted the operator

in securing the vehicle. Jeffcock then followed the truck to the owner’s business and

waited there for another officer to arrive to preserve the chain of evidence as his

suspicion of the connection had now grown. Jeffcock then transported Hixon to the

police department.

¶12      On May 3, 2005, Detective Darren Short (Short) of the Lincoln County Sheriff’s

Department applied for a search warrant to search Hixon’s vehicle which had been

hauled to the Sherriff’s impound lot. The search warrant application included a copy of

Jeffcock’s report of the events surrounding his traffic stop, which described his consent

search of Hixon’s truck and his observation of a pair of New Balance tennis shoes behind

the passenger seat. Short also noted in his application that he personally looked through

the window of the truck and saw the tennis shoes. The report also included notations

from the crime scene that footprints near the body were consistent with New Balance

shoes.     Also contained in the application was information from Roberts about his

interaction with Hixon and Mast, the victim, from earlier on the day of the shooting.

Short’s application for the search warrant was granted and a search ensued. As a result of

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the search, Hixon’s tennis shoes were seized from the vehicle, the shoeprints at the crime

scene matched the shoes, and Hixon was charged with deliberate homicide.

¶13    On September 27, 2005 Hixon filed a motion to suppress the evidence obtained

from the seizure and search of his truck on the grounds the seizure was illegal. Hixon

does not directly challenge the search on appeal; rather, his arguments are addressed

solely to the seizure of his vehicle. At the hearing on the motion to suppress, Jeffcock

testified he called a tow truck for several reasons: department policy; liability reasons; no

option of a sober driver to take the vehicle; position of the vehicle close to the fog line;

and its location near where the speed limit turned to 70 mph. He also testified he had

been in trouble before for not towing a vehicle. Jeffcock testified that at the time he

called for a tow truck to move the vehicle, he had not decided the two incidents were

connected. By the time the truck arrived he believed they possibly were. However, he

maintained he was not towing the truck to have it secured for the county officers involved

in the homicide case. The court denied the motion to suppress, concluding that the

seizure of the truck was lawful and that the shoes would have been inevitably discovered

in any event, pursuant to the consent search and the ensuing valid search warrant.

¶14    Nearing the end of the second day of trial at the beginning of cross-examination,

Hixon asked the court for a little leeway on time with respect to the examination of

Border Patrol Officer Carol Schindele. The following conversation occurred:

       The Court:           What do you mean leeway? I’m not going to keep the
                            jury here any longer.

       Defense Counsel:     Well, I don’t want the jury going home without my
                            opportunity to cross examine her.

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       The Court:           Well, you guys waste time. Why should this jury
                            suffer because you guys ask the same questions eight
                            times? I mean, it’s five o’clock. It’s been a long day.

       The State:           Your Honor, she . . .

       Defense Counsel:     I have no questions of the witness, Your Honor.

       The Court:           I mean, we can bring her back tomorrow and you can
                            cross examine her.

       Defense Counsel:     I have no questions of the witness.

       The Court:           That’s what I’m offering. Now what about the
                            situation you talked about last night about not
                            releasing her?

       Defense Counsel:     As far as I’m concerned she can be released.

       The Court:           Thank you ma’am. You may step down. . . . Thank
                            you. Okay. It’s exactly 5:00 and we are going to
                            break for the evening.

¶15    After the jury was dismissed for the day Hixon moved for a mistrial. Defense

counsel stated due to federal bureaucracy he was unable to interview the witness prior to

the trial and complained he was scolded in front of the jury. He felt the court made him

look as if he was wasting the jury’s time before he even had the chance to question the

witness. In regards to the issue of interviewing the witness, the court explained he should

not have waited until mid-trial to bring up the issue. The court then explained its reasons

for the comments, blaming the slow pace of the trial on the State. The trial judged noted

“I specifically did not direct my unhappiness at (the prosecutor), but I think it’s pretty

clear that he’s the one who is asking every question three, or four, or five times.” The

court further indicated it did not mean to cast aspersions on the defense and he was

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worried about keeping the jury late. The court was concerned when the prosecution

called a new witness so close to five o’clock and reprimanded the State for its slow pace.

The court then denied the motion.

¶16   The next day in the presence of the jury the court stated:

      Yesterday I ended the day blowing up a little bit and I felt bad about that all
      night. I am kind of protective of the jury because I feel like when you have
      jury selection, and the lawyers always ask how many people have been on a
      jury, and a few people raise their hand. Most people say I enjoyed the
      experience. And I want you to all go away from this trial, or any trial, I
      don’t know if enjoyment is the word, but finding that it was a satisfying
      experience, and feeling like you were appreciated while you were here. I
      know that you don’t get paid anything and you have to kind of put your
      work and your families aside for these days. And I just don’t like to send
      you out the door at 6:00 and expect you to get home at 7:30, and that sort of
      thing. So I try to start on time, take breaks, finish on time. And I get
      frustrated some times when I feel like we are moving a little slowly. But it
      seems like sometimes I don’t always get mad at the right people, or I don’t
      get mad at the right time, or I don’t bite my tongue when I should. I do feel
      bad about that.

¶17   The trial continued and Hixon was found guilty of the charges against him. This

timely appeal follows.

                          STANDARDS OF REVIEW

¶18   We review a district court’s decision to grant or deny a motion to suppress to

determine whether the court’s underlying findings of fact are clearly erroneous and

whether the court correctly interpreted and applied the law to those findings. State v.

Lewis, 2007 MT 295, ¶ 17, 340 Mont. 10, ¶ 17, 171 P.3d 731, ¶ 17. A trial court’s

findings are clearly erroneous if they are not supported by substantial credible evidence,

if the court has misapprehended the effect of the evidence, or if our review of the record

leaves us with a definite and firm conviction that a mistake has been made. Lewis, ¶ 17.

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¶19    This Court reviews a district court’s ruling on a motion for mistrial for an abuse of

discretion. When a defendant moves for a mistrial, the court bases its decision on

whether the defendant has received a fair and impartial trial. State v. Partin, 287 Mont.

12, 15-18, 951 P.2d 1002, 1004-05 (1997).

                                      DISCUSSION

¶20    Issue 1: Did the District Court err when it denied Hixon’s motion to suppress
       all the evidence obtained subsequent to the warrantless seizure of the vehicle?

¶21    Hixon maintains on appeal that the evidence obtained as a result of the seizure of

his pickup truck—including the tennis shoes that were matched to the scene of the

crime—should have been suppressed in light of the illegal seizure of his truck. In

response, the State maintains that the truck was lawfully seized pursuant to Eureka Police

Department policy, and that, in any event, the shoes were discovered following a consent

search of the vehicle and the ensuing issuance of a valid search warrant.

¶22    At the time the vehicle was seized, it was the policy of the Eureka Police

Department to tow vehicles from the scene of a DUI in the event there was no sober

driver available to drive the vehicle away. This policy had been implemented to avoid

the potential liability to the City which might arise if the vehicle left at the roadside was

damaged by other persons, or created a traffic hazard resulting in an accident. Hixon’s

vehicle was stopped near the fog line on the roadway in an area where the speed limit

changed from 45 mph to 70 mph. Jeffcock claims he was merely following the normal

DUI procedure in seizing the vehicle.       In fact, he testified he had been previously

reprimanded for failing to tow a vehicle under similar circumstances.



                                              9
¶23    Hixon argues that the seizure of his truck was unlawful, because it was not based

upon probable cause. He maintains that the timing of the seizure suggests that the truck

was seized not based upon policy, but rather based upon suspicion that Hixon was

connected to the murder then being investigated. However, Hixon offers no more than

speculation for this theory. Moreover, it is unnecessary for us to resolve this question

because it is undisputed that before the tow truck arrived, Hixon consented to Jeffcock’s

request to take a look inside his vehicle, that Jeffcock then observed the shoes, and that

the officers subsequently obtained a search warrant for the vehicle—the validity of which

is not in dispute—before seizing the tennis shoes.      Accordingly, it is reasonable to

assume, as did the District Court, that the shoes would have been inevitably discovered in

any event, notwithstanding the alleged constitutional violations. See State v. Allies, 186

Mont. 99, 118, 606 P.2d 1043, 1053 (1979), overruled on other grounds, State v. Bower,

254 Mont. 1, 7, 833 P.2d 1106, 1110 (1992).

¶24    Based upon the foregoing, we conclude the District Court did not err in denying

Hixon’s motion to suppress all evidence obtained subsequent to the warrantless seizure of

his truck.

¶25    Issue 2: Did the District Court err when it denied Hixon’s motion for mistrial
       due to the court’s criticism in the jury’s presence during defense counsel’s
       cross-examination?

¶26    The right to a fair trial is guaranteed by the Sixth Amendment to the U.S.

Constitution and in the Montana Constitution at Article II, Section 24. Hixon asserts that

the judge’s comments on “wasting time” deprived him of his right to a fair trial. Hixon




                                              10
contends the judge’s assertion that his statements were directed toward the State and his

general apology the next day did not rectify the wrong done.

¶27    Hixon cites numerous cases in support of his argument; however these cases

address a judge’s comments on the evidence. Foley v. Harrison Ave. Motor Co., 267

Mont. 200, 203-04, 883 P.2d 100, 102 (1994); State v. Dickens, 198 Mont. 482, 486, 647

P.2d 338, 341 (1982); State v. Cassill, 70 Mont. 433, 452, 227 P.49, 57 (1924); State v.

Fuller, 34 Mont. 12, 26, 85 P.369, 374 (1906). These cases are not analogous, as the

Court here made no comment on the evidence. Another case Hixon cites addresses

improper statements given by witnesses; this too is not analogous. Partin, 287 Mont. at

18, 951 P.2d at 1005. At issue here is a statement made by the judge about the pace of

the trial, not about the evidence or any testimony given at trial.

¶28    Section 46-20-701(1), MCA, provides:

       Whenever the record on appeal contains any order, ruling, or proceeding of
       the trial court against the convicted person affecting the convicted person’s
       substantial rights on the appeal of the cause, together with any required
       objection of the convicted person, the supreme court on that appeal shall
       consider the orders, rulings, or proceedings and the objections thereto and
       shall reverse or affirm the cause on the appeal according to the substantial
       rights of the respective parties, as shown upon the record. A cause may not
       be reversed by reason of any error committed by the trial court against the
       convicted person unless the record shows that the error was prejudicial.

¶29    In reviewing the record it is clear the substantial rights of Hixon were not violated.

Outside the presence of the jury the judged explained to counsel that his comments were

directed towards the prosecution, given that the State had moved at an extremely slow

pace. The next day the judge apologized to the jury for his comments and instructed the

jury that no comment he made was intended in any way to express his opinion about the

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facts of the case or the verdict they should reach. We have held “where the trial judge

strikes improper statements from the record with an accompanying cautionary instruction

to the jury, any error committed by its introduction is presumed cured.” State v. Dubois,

2006 MT 89, ¶ 60, 332 Mont. 44, ¶ 60, 134 P.3d 82, ¶ 60. We conclude that under these

circumstances, there has been no showing that Hixon was prejudiced by the court’s

remarks.

¶30    As the authority offered by Hixon is not analogous or persuasive and his right to a

fair trial was not impeded by the comment made by the court, we conclude the District

Court did not abuse its discretion in denying the motion for mistrial.

¶31    Affirmed.


                                                        /S/ PATRICIA COTTER


We concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ JIM RICE




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