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                                                                No. 98-253

                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                               1999 MT 79

                                                              294 Mont. 95




                                                      STATE OF MONTANA,

                                                      Plaintiff and Respondent,

                                                                      v.

                                                  MORRIS DUANE BUCKLES,

                                                      Defendant and Appellant.

                          APPEAL FROM: District Court of the Sixteenth Judicial District,

                                                In and for the County of Garfield,

                                        The Honorable Gary L. Day, Judge presiding.




                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                                Matthew J. Wald, Attorney at Law, Miles City, Montana

                                                            For Respondent:

                            Hon. Joseph P. Mazurek, Attorney General, Helena, Montana

                             Tammy K. Plubell, Ass't Attorney General, Helena, Montana


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                            Nickolas Murnion, Garfield County Attorney, Jordan, Montana




                                               Submitted on Briefs: March 11, 1999

                                                        Decided: April 20, 1999

                                                                     Filed:

                                    __________________________________________

                                                                     Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1. Morris Duane Buckles (Buckles) appeals from his conviction of Negligent
Homicide and Criminal Possession With Intent to Sell. Buckles filed a motion to
dismiss the charges based on his allegation that the State either intentionally or
negligently failed to preserve material evidence. When the District Court denied that
motion, Buckles entered into a plea agreement whereby he pled guilty to Negligent
Homicide and Criminal Possession With Intent to Sell and reserved his right to
appeal the District Court's order denying his motion to dismiss.

                                                             Issue Presented

¶2. Did the District Court properly deny Buckles' motion to dismiss which was based
upon his allegations that the State intentionally or negligently failed to preserve
material evidence?

                                                         Factual Background

¶3. Although the District Court held a hearing on Buckles' motion to dismiss, the
hearing was not evidentiary in nature; it consisted solely of argument by counsel.
Accordingly, the facts are taken from the Motion and Affidavit for Leave to File
Information and Leave to File and the investigative reports attached to the motion
and affidavit.

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¶4. On August 5, 1997 at about 3:10 p.m., a one-vehicle accident occurred on the
south side of the Big Dry Bridge on Highway 200 east of Jordan, Montana. The
vehicle was owned by Buckles, who was in the car along with Tammy Joy Atkinson.
Norman Kerr was the first person to arrive at the accident scene. Buckles' vehicle
was upside down and Kerr found Tammy Atkinson unconscious outside the
passenger side of the vehicle. A wooden bridge railing had entered the passenger
compartment. Kerr gave medical attention to Atkinson, who had suffered a severe
laceration to her left arm. According to Kerr, Buckles wandered around the area but
offered no assistance to Kerr's life-saving efforts.

¶5. When he arrived at the scene, Deputy Pierson observed that Buckles was wearing
only shorts and socks and had mud all over his feet, legs, hands, and arms. Pierson
noticed that there was a piece of turquoise luggage outside of the vehicle. The bag
was wet and muddy and its contents were on the ground. Pierson saw another bag
that was also outside the vehicle. This second bag was not wet or muddy and it did
not appear that the contents of the bag had been disturbed.

¶6. Having observed that Buckles was in his stockinged feet, Pierson attempted to
locate Buckles' shoes. Pierson found one of his shoes inside the vehicle; it was wedged
between the gas pedal and the brake pedal. While taking inventory of the accident
scene, Pierson saw fresh footprints along the creek bank. It appeared to him that
someone in stockinged feet had made the footprints because there was an impression
of fabric in the mud. About 12 inches from the footprints, he saw a spot where
someone had dug with their hands in the mud. Probing the mud with his hand,
Pierson found a bag that contained a green leafy substance, later identified as
marijuana.

¶7. Officer Breidenbach of the Montana Highway Patrol was in charge of the
investigation into the cause of the accident. After measuring and photographing the
scene of the accident, he went to the Garfield County Health Center. When he
learned that Atkinson had died from the wounds she suffered in the accident, he
approached Buckles and observed that he was wearing a muddy pair of red shorts,
white socks and no shirt. Buckles' socks were wet and muddy. His chest, stomach,
hands and knees were also muddy. Officer Breidenbach read Buckles his Miranda
rights which Buckles said he understood. Buckles agreed to submit to a blood
sample. The sample tested positive for THC, the active ingredient in marijuana.


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¶8. When asked by Officer Breidenbach what he remembered about the accident,
Buckles admitted that he had driven the vehicle and that he had consumed alcohol
from the evening prior to the accident until about 5 a.m. on the morning of the
accident. He also indicated that he had smoked two marijuana cigarettes. Officer
Breidenbach asked Buckles if there were any other drugs in the vehicle. Buckles
responded that the only drugs were Atkinson's prenatal vitamins.

¶9. The following day, Deputy Pierson returned to the scene of the accident, where he
found plastic baggies of marijuana in the mud, next to a nearby gate and beside a
railroad tie. In total, the deputies retrieved twenty-five separate bags each containing
1/4 ounce of marijuana.

                                                          Standard of Review

¶10. A denial of a motion to dismiss is a legal determination that we review to
determine whether the district court correctly interpreted the law. State v. Romero
(1996), 279 Mont. 58, 70, 926 P.2d 717, 725.

                                                                 Discussion

¶11. Buckles, relying upon Brady v. Maryland (1963), 373 U.S. 83, 87, 83 S.Ct. 1194,
1196-97, 10 L.Ed.2d 215, 218, contends that the suppression of evidence favorable to
an accused violates due process where the evidence is material either to guilt or to
punishment. To satisfy the materiality requirement, Buckles must prove "that there
is a reasonable probability that had the information been provided, the result would
have been different or, stated another way, is it a trial resulting in a 'verdict worthy
of confidence'?" Kills On Top v. State (1995), 273 Mont. 32, 42, 901 P.2d 1368, 1374-
75, cert denied, 516 U.S. 1177 (1996) (citing Kyles v. Whitley (1995), 514 U.S. 419, 115
S.Ct. 1555, 131 L.Ed.2d 490). "A 'reasonable probability' of a different result is
accordingly shown when the government's evidentiary suppression 'undermines
confidence in the outcome of the trial.' " Kyles, 514 U.S. at 434, 115 S.Ct. at 1566, 131
L.Ed.2d at 506 (citation omitted).

¶12. Buckles contended in District Court that the charge of negligent homicide
should have been dismissed due to the State's having released the vehicle from its
impoundment in a secure facility, thereby depriving him of the opportunity to have
an expert examine the inside of the vehicle for blood and body tissue. Buckles argued


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that had the car been properly secured, it is possible that an expert, if given the
opportunity to examine the vehicle, might have rendered an opinion that Buckles was
not the driver. Given that Buckles, after having been advised of his Miranda rights,
admitted to Officer Breidenbach that he was the driver of the car, we find no merit
to this contention. Further, the physical evidence was consistent with Buckles having
been the driver: Atkinson was found lying unconscious on the ground on the
passenger side of the vehicle and the scene suggested that the severe laceration to her
left arm was caused by the wooden bridge rail that entered the passenger side of the
vehicle. Also, one of Buckles' shoes was found wedged between the gas pedal and the
brake pedal. Buckles has been unable to point to any evidence that was destroyed or
compromised by exposing the vehicle to the elements. All evidence seized or
photographed by the State was available to Buckles, as was the car itself. We
conclude that there is no "reasonable probability" of a different result; that is, that if
the vehicle had been maintained in a secure facility, Buckles would have been able to
prove that he was not the driver.

¶13. Buckles also contends that the State deliberately suppressed material evidence
relevant to the charge of Criminal Possession With Intent to Sell when it released the
victim's personal effects to the victim's mother. Buckles' argument is premised upon
an assumption that, if he had had access to the victim's belongings before they were
released, he (through an expert) might have found traces of illegal drugs that would
suggest that the victim, rather than Buckles, possessed the marijuana found at the
scene. The District Court rejected this argument, reasoning as follows:

                   In regards to the personal property, Defendant claims that he should have been able
                   to go through the belongings of the deceased. He argues that if he could have gone
                   through the belongings he may have found traces of drugs or other evidence relating
                   to drug use by the deceased. However, even if a trace of drugs had been found in the
                   belongings of the deceased, that evidence would not have affected other evidence
                   showing that the drugs found were originally in Defendant's bag. See State v.
                   Gollehan, supra.

¶14. We agree with the District Court. Even assuming arguendo that Buckles had
found traces of illegal drugs on the victim's belongings, that would not vitiate the
other circumstances that point to Buckles' guilt. The bag that the victim's mother
identified as the victim's was the bag that was found undisturbed at the accident
scene. The other bag, which Buckles denies ownership of, was wet and muddy and its
contents had been disturbed. Deputy Pierson found footprints that appeared to have

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been made by someone in stockinged feet and led to a bag of marijuana partially
buried in the mud by the bed of the creek. Buckles was observed at the accident
scene, wet and muddy and in his stockinged feet. Further, rather than rendering
assistance to the victim, who was immobile and bleeding from her injuries, Buckles
was observed moving busily about the area of the accident scene. Deputy Pierson and
Sheriff Phipps ultimately found twenty-five individual bags of marijuana concealed
or partially concealed at various locations around the accident scene.

¶15. Clearly, even if there were a trace of illegal drugs found in the victim's
belongings, such evidence would not negate the very strong circumstantial facts
indicating that the drugs in question were hidden at the scene by Buckles and that
they were originally in Buckles' bag. Moreover, in releasing the items of personal
property to the victim's mother, the State did not deny Buckles the opportunity to
demonstrate which items were his and which belonged to Atkinson. All items taken
from the accident scene were documented and all items released to the victim's
mother were logged.

¶16. Had he so chosen, Buckles could have proceeded to trial and established
ownership of the items through his own testimony and that of the victim's mother.

¶17. We conclude that the District Court properly denied Buckles' motion to dismiss
the charges of Negligent Homicide and Criminal Possession With Intent to Sell.

¶18. Affirmed.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER




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