                                                                                           August 4 2015


                                          DA 14-0280
                                                                                         Case Number: DA 14-0280

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 221



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

TIFFANY LYNN JOHNSON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 12-674
                        Honorable George W. Huss, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender, Haley W. Connell, Assistant
                        Appellate Defender; Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
                        Assistant Attorney General; Helena, Montana

                        Scott Twito, Yellowstone County Attorney, Christopher Morris, Deputy
                        County Attorney; Billings, Montana



                                                    Submitted on Briefs: June 17, 2015
                                                               Decided: August 4, 2015


Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1    Tiffany Lynn Johnson appeals the order of the Thirteenth Judicial District Court,

Yellowstone County, denying her motion to dismiss her fourth-offense charge of driving

under the influence (DUI), a felony, or, alternatively, to amend the charge to a

misdemeanor. We affirm.

¶2    We restate the issue on appeal as follows:

Whether Johnson was entitled to have the District Court consider her affidavit yet still
refuse to testify regarding the contents of the affidavit.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3    On November 2, 2012, the State filed an affidavit and motion for leave to file

information, alleging that Johnson had committed the offenses of DUI and criminal

endangerment. The State’s motion asserted that Johnson had three prior convictions: (1)

DUI in June 20031 in Park County (Livingston City Court); (2) operating a motor vehicle

with a blood-alcohol content of 0.08% or higher (DUI per se) in April 2009 in Carbon

County; and (3) DUI in February 2010 in Carbon County. Because of Johnson’s three

prior DUI convictions, her current DUI charge was a fourth-offense felony pursuant to

§ 61-8-731, MCA. On November 5, 2012, Johnson was charged by information with one

count of fourth-offense DUI, a felony, and one count of criminal endangerment, a felony.

The information was later amended to include an alternate charge of DUI per se. The

District Court granted the State’s motion to dismiss the charge of criminal endangerment



1
  The State’s motion erroneously identified Johnson’s Livingston City Court conviction as
occurring in 2006. The date of the conviction is not relevant to our disposition.
                                                2
and held a bench trial on August 19, 2013. On August 21, 2013, the District Court found

Johnson guilty of DUI per se, fourth-offense, a felony.

¶4     Prior to sentencing, Johnson filed a motion to dismiss the felony DUI charge, or

alternatively, to amend the charge to a misdemeanor. Johnson’s motion and supporting

affidavit asserted that her 2003 DUI conviction in Livingston City Court was

constitutionally infirm because she was not told during these proceedings that she had a

right to an attorney if she could not afford one. Therefore, Johnson argued that the 2003

DUI could not be used to enhance her current DUI charge to a felony.

¶5     On February 27, 2014, the District Court held an evidentiary hearing on Johnson’s

motion. The only evidence Johnson presented in support of her motion was her affidavit,

which was admitted without objection, and she called no witnesses to testify on her

behalf. The State then called Johnson to testify. Johnson’s counsel objected, arguing that

Johnson had a right to remain silent. Johnson’s counsel stated: “I did not advise her that

she was going to be subject to being cross-examined today.”            The District Court

overruled the objection, holding that the State had a right to cross-examine Johnson

because she submitted an affidavit in support of her motion, which was effectively

testimony. The District Court limited the State’s cross-examination to the contents of

Johnson’s affidavit.

¶6     When asked about the 2003 proceeding in Livingston City Court, Johnson testified

at the hearing: “I went up in front of a judge, normal proceeding, just like, you know, you

do in every courtroom, and I pled guilty to it. I do not recall being read my rights or

being offered any legal representation at that point.” Johnson was unable to provide
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other specifics of the proceeding, other than recalling that she told the judge about the

events which led to her 2003 DUI charge and that she pled guilty to DUI.

¶7    The State presented court records from the 2003 DUI proceedings in Livingston

City Court and called retired Livingston City Court Judge and Justice of the Peace

Deanna Egeland to testify. Judge Egeland clerked for Judge Travis, the judge who

presided over Johnson’s 2003 DUI case, and she was present for Johnson’s appearance in

Livingston City Court. In the “Court Minutes–Sentencing Order,” a check was next to

the line “Defendant Orally Waived Counsel.” Although Judge Travis did not sign the

bottom of the Minutes, Egeland testified that she recognized Judge Travis’ handwriting

on the form. The bottom of the “Notice to Appear and Complaint” for the DUI charge

included Judge Travis’ signature, and a record of Johnson’s guilty plea.

¶8    The District Court denied Johnson’s motion to dismiss the felony or amend the

charge to a misdemeanor DUI. On March 20, 2014, the District Court issued a judgment

stating that Johnson was guilty of DUI per se, a felony. Johnson was sentenced to a

13-month commitment to the Department of Corrections (DOC), a three-year suspended

DOC commitment to run consecutively with the first commitment, and a $1,000 fine.

¶9    Johnson appeals the denial of her motion to dismiss or amend.

                             STANDARDS OF REVIEW

¶10   For questions regarding constitutional law, our review is plenary. State v. Rogers,

2013 MT 221, ¶ 23, 371 Mont. 239, 306 P.3d 348. “Whether a prior conviction may be

used for sentence enhancement is generally a question of law, for which our review is de

novo.” State v. Maine, 2011 MT 90, ¶ 12, 360 Mont. 182, 255 P.3d 64. We will not
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disturb findings of fact used to determine whether a prior conviction is invalid unless

such findings are clearly erroneous. Maine, ¶ 12. “A trial court’s findings are clearly

erroneous if they are not supported by substantial evidence, if the court has

misapprehended the effect of that evidence, or if a review of the record leaves this Court

with a definite and firm conviction that a mistake has been made.” State v. Walker,

2008 MT 244, ¶ 9, 344 Mont. 477, 188 P.3d 1069.

                                       DISCUSSION

¶11 Whether Johnson was entitled to have the District Court consider her affidavit yet
still refuse to testify regarding the contents of the affidavit.

¶12    Johnson argues that submitting an affidavit to the court did not waive her right to

remain silent because an affidavit is distinguishable from actively testifying in court for

purposes of maintaining her right to remain silent.2 Johnson argues that, by definition, an

affidavit is different from oral testimony, noting that the statutory definition of “affidavit”

is, “a written declaration under oath, made without notice to the adverse party.”

Section 26-1-1001, MCA.        Johnson notes that the Ninth Circuit has observed that

“[t]estimony presented by affidavit is different from testimony orally delivered, because

the affiant is not subject to cross-examination.” U.S. v. Dibble, 429 F.2d 598, 602

(9th Cir. 1970).

¶13    We have not previously addressed whether a criminal defendant’s submission of

an affidavit constitutes a waiver of the right to remain silent. We have previously held,

2
  Johnson cites both Article II, Section 25 of the Montana Constitution and the Fifth Amendment
of the United States Constitution. For purposes of deciding the issue before us, our analysis is
the same under both provisions.

                                               5
however, that a defendant “could not take the stand to testify in her own behalf and also

claim the right to be free from cross-examination on matters raised by her own testimony

on direct examination.”    State v. Wilson, 193 Mont. 318, 325, 631 P.2d 1273, 1277

(1981) (quoting Brown v. U.S., 356 U.S. 148, 156, 78 S. Ct. 622, 627 (1958)). We later

extended this premise to submission of testimony via an expert witness: “A defendant

cannot put before the jury his version of events through expert psychological testimony

and refuse to answer questions from the State’s expert regarding those same events.”

Park v. Mont. Sixth Judicial Dist. Court, 1998 MT 164, ¶ 38, 289 Mont. 367,

961 P.2d 1267. The State argues that there is no functional distinction between sworn

statements submitted to the court by affidavit and sworn statements given by oral

testimony. As it pertains to the circumstances of the case before us, we agree.

¶14    Johnson was called to testify at an evidentiary hearing at which she had both the

burden of production and the burden of persuasion to establish the constitutional infirmity

of her 2003 DUI conviction. Maine, ¶ 34. Johnson was required to provide direct

evidence in support of her motion. Walker, ¶ 13. The only evidence she submitted was

her affidavit attesting to her recollection of the proceedings in the 2003 DUI conviction.

Johnson’s statements in her affidavit were not to some ancillary matter; they provided the

very basis for her motion. The purpose of the hearing was to assess the merits of

Johnson’s motion.    That purpose is defeated if the District Court was to consider

Johnson’s substantive statements regarding the dispositive issue of the motion and then

deny the State the opportunity to challenge these statements by cross-examination. In

Wilson, we expressly disallowed the defendant’s attempt to “take the stand to testify in
                                            6
her own behalf and also claim the right to be free from cross-examination on matters

raised by her own testimony on direct examination.” Wilson, 193 Mont. at 325, 631 P.2d

at 1277. It makes no sense to allow a defendant to accomplish this same objective simply

by submitting an affidavit in lieu of direct testimony.

¶15      Johnson argues that the District Court’s forced testimony prejudiced her because

“[i]t is clear from the district court’s Findings of Fact, Conclusions of Law, and Order

that Ms. Johnson’s testimony was the basis for the court’s denial of her Motion to

Amend.” Johnson notes that once she was ordered to testify, the District Court “found

that her testimony undermined her credibility.” Johnson argues, therefore, that we should

remand this matter to the District Court to issue new findings of fact, conclusions of law,

and an order, giving no consideration to her oral testimony. This argument is without

merit.

¶16      The District Court correctly concluded that Johnson could not submit an affidavit

without being subject to cross-examination as to the affidavit’s contents. When Johnson

then attempted to invoke her right to remain silent after submitting her affidavit, the

District Court was faced with one of two options: (1) compel Johnson to testify, or (2)

strike her affidavit.    The District Court compelled Johnson’s testimony, found it

undermined her credibility, and denied her motion. If, instead, the District Court struck

Johnson’s affidavit, her motion would still have been denied, since her affidavit was the

only evidence she presented in support of her motion. Since Johnson’s motion would

have been denied in either situation, she suffered no prejudice from the District Court

compelling her to testify.
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                                     CONCLUSION

¶17    The District Court correctly concluded that Johnson could not submit an affidavit

regarding the circumstances of her previous DUI conviction without being subject to

cross-examination as to the contents of the affidavit. Johnson was not prejudiced by the

District Court compelling her to testify regarding her statements made in the affidavit.

The Order of the District Court is affirmed.


                                                   /S/ JAMES JEREMIAH SHEA


We Concur:

/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT


Justice Jim Rice, concurring.

¶18    I concur with the Court’s decision, but would reach the decision by way of a

different analysis. Johnson’s challenge to her 2003 DUI conviction is not a criminal

proceeding. Rather, it is a postconviction collateral attack. See Maine, ¶¶ 29, 31, 33. As

such, Johnson’s challenge is a civil proceeding. State v. Bromgard, 285 Mont. 170, 175,

948 P.2d 182, 185 (1997) (“A post-conviction relief procedure is civil in nature . . . .”).

Johnson bore the burden of proof in the proceeding. Maine, ¶ 34 (“as the moving party,

the ultimate burden of proof—which includes both the burden of production and the

burden of persuasion—shall be on the defendant, who must prove by a preponderance of

the evidence that the conviction is invalid”). Johnson’s challenge to the prior conviction

                                               8
required that she be subject to examination about her civil claim as a litigant and witness,

without regard to protections afforded a defendant in a criminal proceeding.



                                                 /S/ JIM RICE




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