State v


                                                  State v. Stueck
                                               Decided Jan. 22, 1998
                                        (NOT TO BE CITED AS AUTHORITY)

                                                               No. 97-279

                       IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              1998 MT 9N

                                                    STATE OF MONTANA,

                                                    Plaintiff and Respondent,

                                                                      v.

                                                GREGORY SCOTT STUECK,

                                                    Defendant and Appellant.

                    APPEAL FROM: District Court of the Eighteenth Judicial District,

                                              In and for the County of Gallatin,

                                 The Honorable Thomas A. Olson, Judge presiding.

                                                   COUNSEL OF RECORD:

                                                            For Appellant:

                                  Karl P. Seel, Attorney at Law, Bozeman, Montana

                                                           For Respondent:

                                Hon. Joseph P. Mazurek, Attorney General; C. Mark

                               Fowler, Assistant Attorney General, Helena, Montana

                                    Marty Lambert, Gallatin County Attorney; Jane



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                                Mersen, Deputy Gallatin County Attorney, Bozeman,

                                                                  Montana

                                           Submitted on Briefs: December 4, 1997

                                                   Decided: January 22, 1998

                            JUSTICE LEAPHART delivered the Opinion of the Court.


¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1996 Internal Operating Rules, the following decision shall not be
cited as precedent but shall be filed as a public document with the
Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter
Publishing Company and to West Group in the quarterly table of
noncitable cases issued by this Court.


¶2 Gregory Scott Stueck (Stueck) appeals from the decision of the
Eighteenth Judicial District Court, Gallatin County, denying
several motions to suppress and motions to dismiss, and convicting
him of three misdemeanor offenses: failure to stop at the scene of
an accident in violation of Sec. 61-7-103, MCA; failure to give
immediate notice of accident in violation of Sec. 61-7-108, MCA;
and negligent vehicular assault in violation of Sec. 45-5-205, MCA.
We affirm.
Factual and Procedural Background


¶3 This Court previously reviewed this matter when the State of
Montana (State) appealed from the decision of the District Court
granting Stueck's motion to suppress evidence of Stueck's blood
alcohol concentration (BAC). See State v. Stueck (1996), 280 Mont.
38, 929 P.2d 829 (hereinafter Stueck I). In Stueck I, this Court
held that because Stueck was charged with negligent vehicular
assault, which statutorily encompasses the offense of driving under
the influence, the State's failure to inform Stueck of his rights
under the implied consent law resulted in an illegally obtained

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blood sample which should be suppressed at trial. Thereafter, the
matter proceeded to trial and the jury found Stueck guilty of the
three charged misdemeanor offenses. Stueck appeals the District
Court's decision denying his motion to suppress evidence resulting
from his arrest, denying his motion to dismiss for lack of speedy
trial, denying the defense of primary proof of a confession by
Kristi Stueck (Kristi), allowing the State to present new evidence
during rebuttal argument, denying Stueck's motion for directed
verdict, denying Stueck's motion to dismiss based on destruction of
the evidence, allowing the State to improperly impeach a witness
with the Justice Court transcript, and cumulative error. We set
forth a thorough recitation of the facts at Stueck I; however, we
review the facts in the context of Stueck's current appeal.


¶4 Slightly before midnight on January 19, 1995, Eric Troth
(Troth) was driving west on Interstate 90 from Bozeman to Belgrade.
He was traveling at approximately 55 mph when, about one mile short
of the Belgrade exit, he was rear-ended by another vehicle.
Testimony at trial indicated that Troth smashed the rear window of
his truck with the back of his head and suffered other minor
injuries when his truck spun on the highway and rolled into the
median.


¶5 At about the same time, Highway Patrol Officer Joseph Campbell
(Officer Campbell) was proceeding east on Interstate 90 toward
Bozeman. Officer Campbell testified that it was a cold, clear
night and he had just passed the Belgrade interchange when he saw
a big white cloud covering both lanes of traffic in the distance.
As he approached, Officer Campbell noticed headlights coming toward
him and could see that the vehicle, an older model pickup, was
emitting a cloud of steam or smoke. As the big cloud dissipated,
Officer Campbell noticed faint taillights in the median. When he
got closer, he could see Troth's small truck in the median and
debris covering the highway. He stopped at the accident scene and
saw Troth who was stumbling and appeared disoriented as he
approached Officer Campbell's patrol car. After talking with Troth
for a few minutes, Officer Campbell realized that Troth's vehicle
must have been hit by the pickup he had seen driving toward

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Belgrade. Officer Campbell told Troth to get in the patrol car and
they began following what appeared to be a fluid trail left by the
pickup. The trail led to the Belgrade interchange, made a left
turn at Jackrabbit Lane, and a right turn onto Amsterdam Road, then
started to fade. Officer Campbell drove around the area for a
short time, but decided to return to the accident scene to clean
the debris from the highway and begin his investigation. At this
time, Officer Dennis DeLaittre (Officer DeLaittre) radioed that he
was in the area and headed toward the accident scene.


¶6 In an attempt to find the driver of the pickup, Officer
DeLaittre followed the fluid trail while Officer Campbell cleared
the highway and investigated the scene of the accident. Officer
DeLaittre was able to follow the trail on Amsterdam Road, then onto
Thorpe Road and eventually to Stueck's home on Thorpe Road where a
light blue pickup truck sat in the driveway. By shining his
spotlight on the area, Officer DeLaittre could see the license
plate on the truck and front-end damage which appeared to be fresh
compared to other dirt on the vehicle. Officer DeLaittre radioed
Officer Campbell to meet him at Stueck's home and radioed the
station to get information on the registration of the pickup. A
search of the registration revealed that Don Stueck was the
registered owner of the pickup. The dispatch operator called Don
Stueck who indicated that his son Greg had borrowed the pickup.
Officers Campbell and DeLaittre requested that the dispatch
operator call Stueck's home and awaken the occupants for
questioning.


¶7 At approximately 1:00 a.m., Kristi answered the phone and was
informed that highway patrol officers were waiting outside. Kristi
went to the door and the officers informed her that they were
investigating a hit-and-run accident and wanted to talk to the
driver of the pickup. Kristi appeared surprised and concerned
about the "hit" driver who had been injured and indicated that her
husband had been driving earlier when he went to work out. The
officers then asked to speak to Stueck. Kristi made two attempts
to wake Stueck. The officers indicated that if she was not able to
wake him, they would return with a warrant.

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¶8 The officers were waiting near their patrol cars when Stueck
finally appeared at the door. Both officers testified that Stueck
waved to them to come toward the door. Kristi and Stueck claim
that they did not invite the officers in, but both officers recall
that Stueck motioned for them to enter the house. While standing
in the foyer of the Stuecks' home, the officers asked Stueck who
had been driving that night. Stueck indicated that his friend
"Bill" was driving, but that he did not know Bill's last name or
where Bill lived. The officers asked if the pickup was registered
and insured, Stueck indicated that it was and began putting his
shoes on in an attempt to go to the truck to retrieve the
registration and proof of insurance.


¶9 The officers testified that Stueck appeared intoxicated, had
a great deal of trouble putting his shoes on, slurred his words and
had a short attention span. The officers further testified that as
they were asking questions, Stueck succeeded in putting his shoes
on, then suddenly bolted out the door toward the pickup. Officer
Campbell caught up with Stueck as he reached the driver's side of
the pickup. Upon further questioning by Officer Campbell about who
was driving the pickup, Stueck admitted that he was driving,
explained that he must have fallen asleep on the highway and that
he woke up upon feeling the impact of the accident. He further
explained that he panicked so he did not stop, but just continued
home. Officer Campbell was placing Stueck under arrest as Officer
DeLaittre approached. At this time, Kristi was in the house
finding an inhaler for Stueck. When she returned, Stueck was under
arrest. Stueck was given Miranda warnings and asserted his right
to an attorney. Officer Campbell transported Stueck to the
hospital where a blood sample was forcibly drawn, then to the
police station for booking. Officer DeLaittre stayed behind with
the pickup which was impounded that night.


¶10 The next morning Officers Campbell and DeLaittre applied for
and received a warrant to search the pickup. They conducted the
search at the impound lot. They found that the truck was full of

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gear to the point that there was only room for one individual in
the cab of the pickup. They also found remnants of blue plastic
attached to the front bumper of the pickup, the remnants matched
blue plastic bag that Troth had in the back of his truck.


¶11 Stueck was charged with three misdemeanor offenses: failure
to stop at the scene of an accident in violation of Sec. 61-7-103,
MCA; failure to give immediate notice of accident in violation of
Sec. 61-7-108, MCA; and negligent vehicular assault in violation of
Sec. 45-5-205, MCA.


¶12 On February 14, 1996, Kristi wrote a letter to the State
indicating that she was driving the pickup on the evening of the
accident. The State subpoenaed Kristi for questioning but she
asserted her Fifth Amendment right against self-incrimination. The
State continued to pursue its charges against Stueck.


¶13 At the Justice Court level, Stueck moved to suppress certain
evidence including the BAC evidence. The Justice Court held a
hearing on May 17, 1995 and subsequently granted the motion. The
State appealed the decision to the District Court and Stueck
cross-appealed. The District Court held a hearing on November 22,
1995 and granted the motion to suppress the BAC evidence. The
State appealed the decision of the District Court to this Court.
We affirmed at Stueck I. The case finally proceeded to trial on
March 24-25, 1997 (over two years after Stueck's arrest) and the
jury found Stueck guilty of the three misdemeanor offenses. Stueck
presents eight issues for appeal; we restate them as follows:


¶14 1) Did the District Court err in denying Stueck's motion to
suppress evidence resulting from: a) an illegal nighttime arrest in
violation of Sec. 46-6-105, MCA, the Fourth Amendment of the United
States Constitution and Article II, Section 10 of the Montana
Constitution; b) the officers' warrantless entry onto Stueck's
property; and c) violation of Stueck's Miranda rights?



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¶15 2) Did the District Court err in denying Stueck's motion to
dismiss based on denial of a speedy trial in violation of Sec.
46-13-401(2), MCA, and Article II, Section 24 of the Montana
Constitution?


¶16 3) Did the District Court abuse its discretion by preventing
the jury from reviewing Kristi's confession letter during
deliberations?


¶17 4) Did the District Court err in allowing the State to offer
new evidence during its rebuttal argument?


¶18 5) Did the District Court err in denying Stueck's motion for
directed verdict?


¶19 6) Did the District Court err in denying Stueck's motion to
dismiss based on destruction of the evidence?


¶20 7) Did the District Court err in allowing the State to impeach
Kristi with the use of the Justice Court transcript?


¶21 8) Did the cumulative errors in this case prevent Stueck from
obtaining a fair trial?
Discussion
Issue 1


¶22 1) Did the District Court err in denying Stueck's motion to
suppress evidence resulting from: a) an illegal nighttime arrest in
violation of Sec. 46-6-105, MCA, the Fourth Amendment of the United
States Constitution and Article II, Section 10 of the Montana
Constitution; b) the officers' warrantless entry into Stueck's
property; and c) violation of Stueck's Miranda rights?

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¶23 The standard of review of a district court's denial of a
motion to suppress is whether the court's findings of fact were
clearly erroneous, and whether those findings were correctly
applied as a matter of law. State v. Williams (1995), 273 Mont.
459, 462, 904 P.2d 1019, 1021. Stueck asserts that the District
Court erred in denying his motion to suppress evidence on three
grounds. His first argument is that the State, in violation of
Sec. 46-6-105, MCA, and his constitutional right of privacy,
arrested him at night for misdemeanor offenses that occurred at
another time and place.


¶24 Section 46-6-105, MCA, provides in pertinent part that "[a]n
arrest may be made at any time of the day or night, except that a
person may not be arrested in the person's home or private dwelling
place at night for a misdemeanor committed at some other time and
place unless upon the direction of a judge endorsed upon an arrest
warrant." The State argues that because the actual taking into
custody of Stueck occurred in his driveway, the actions of the
officers did not violate Stueck's right of privacy and did not
violate the statute. We disagree.


¶25 In another case involving an alleged violation of Sec.
46-6-105, MCA, State v. Ellinger (1986), 223 Mont. 349, 725 P.2d
1201, Undersheriff Fisher was investigating a citizen report that
a truck was being driven in a reckless manner and that the driver
appeared intoxicated. The eyewitness provided a description of the
vehicle and the license plate number. Undersheriff Fisher went to
Ellinger's house and found the truck parked in the driveway.
Ellinger then stepped out of his house and leaned against the
doorway. Undersheriff Fisher asked Ellinger to perform two field
sobriety tests. Ellinger failed the tests and Undersheriff Fisher
arrested Ellinger on the walkway for driving under the influence.
Ellinger claimed he was arrested in violation of Sec. 46-6-105,
MCA. We compared Ellinger's facts to those presented in Welsh v.
Wisconsin (1984), 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732, and
focused on three key points: "First, Undersheriff Fisher never

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entered defendant's house. . . . Second, . . . the time of arrest
was . . . 7:34 p.m. . . . [which] [w]hen viewed in a light most
favorable to defendant . . . might be considered twilight, but
certainly not 'night.' . . . Third, . . . defendant Ellinger was
arrested for the criminal offense of driving while under the
influence of alcohol." Ellinger, 725 P.2d at 1203-04. In
evaluating the totality of the circumstances, we concluded that
because Ellinger's arrest for a criminal offense did not occur in
his house or at night, Sec. 46-6-105, MCA, and Ellinger's
corresponding expectation of privacy were not violated. Ellinger,
725 P.2d at 1204.


¶26 Despite the fact that Stueck's actual arrest occurred in his
driveway, we conclude that the totality of the circumstances
surrounding his arrest violated Sec. 46-6-105, MCA, and Stueck's
corresponding right of privacy. The investigative techniques
employed by Officers Campbell and DeLaittre violate Montana
statutory prohibitions and do not withstand constitutional muster.
The prohibitory language of Sec. 46-6-105, MCA, restricting
officers from arresting persons in their homes at night, was meant
to prevent the interrogation of individuals in the privacy of their
homes that occurred in this case. See Commission Comments to Sec.
46-6-105, MCA (stating that "[t]his restriction was imposed to
prevent the police from harassing a person or searching his home on
the pretext of arresting him for a misdemeanor committed at some
other time and place. Allowing the police to arrest for a
misdemeanor at night can be an effective law enforcement tool
provided it is not used as a sham to torment a citizen in his
home").


¶27 Officers Campbell and DeLaittre stated that they did not, at
any time, intend to charge Stueck with an offense other than the
misdemeanors of which he was eventually found guilty. Moreover, it
is not disputed that 1:00 a.m. is nighttime, or that the officers
were pursuing Stueck for an offense committed earlier that night
and at another location. Therefore, the officers' actions of
requesting that the dispatch operator call and awaken the occupants
of the home at 1:00 a.m. in order to speak with the officers

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waiting in the driveway went beyond permissible investigatory
techniques. Furthermore, the officers' insisting that Kristi awaken
Stueck and eventually threatening to get a warrant in order to gain
access to the Stueck home could be characterized as harassing.
Finally, the officers' luring of Stueck into the driveway by
requesting the vehicle registration and proof of insurance violates
the spirit of Sec. 46-6-105, MCA.


¶28 Despite the unlawful nature of the officers' arrest of Stueck
at his home at night for the misdemeanor offenses which were
committed at some other time and place, the relief which Stueck
requests, suppression of evidence, does not fit the facts of this
case. In City of Billings v. Whalen (1990), 242 Mont. 293, 790 P.2d
471, we determined that the arrest of Whalen while straddling the
threshold of his home for the misdemeanor offense of cutting the
corner on a left-hand turn, which upon further investigation led to
a DUI charge, was an illegal arrest in violation of Sec. 46-6-105,
MCA. We held that all evidence seized as a result of the illegal
arrest should be suppressed. Whalen, 790 P.2d at 475. However, in
the present case there are no "fruits of the poisonous tree" to
suppress. The relevant evidence that the State used to convict
Stueck at trial, including his admission to the crime, was obtained
prior to the illegal arrest or obtained later with a warrant. In
addition, the information used to obtain the warrant was
information known to the officers prior to placing Stueck under
arrest. Therefore, while the District Court erred in finding that
the officers did not violate Sec. 46-6-105, MCA, and Stueck's
corresponding right of privacy, we conclude that the District Court
reached the proper result by denying the motion to suppress. "We
affirm district court decisions which are correct regardless of the
court's reasoning in reaching the decision." Clark v. Eagle
Systems (1996), 279 Mont. 279, 286, 927 P.2d 995, 999.


¶29 Stueck next claims that the District Court erred in denying
his motion to suppress unspecified physical evidence seized by the
officers and statements made by Stueck and Kristi as a result of
the officers' warrantless entry onto Stueck's private property. In
support of his claim that the officers illegally entered his

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property, Stueck asserts that his home is surrounded by a fence,
and a stop sign appears at the entry to his driveway. Stueck
claims that by taking these additional measures he intended to
protect his privacy much like the individuals in State v. Bullock
(1995), 272 Mont. 361, 901 P.2d 61. The State contends that in
contrast to Bullock, "here the residents of the Stueck house took
no steps to protect the area in front of their home, including the
driveway area and the front door area of the house, from
observation by passersby." Testimony at trial revealed that the
driveway was not gated and that the officers did not notice a stop
sign at the entry. Although Kristi testified that by hanging the
stop sign the Stuecks intended to stop trespassers, most
individuals faced with a stop sign would not interpret the sign as
prohibiting trespassing. We conclude that the Bullock decision is
distinguishable from this case and that the officers did not
violate Stueck's right of privacy by entering the driveway.
Furthermore, Stueck fails to specify any illegally obtained
evidence that should be suppressed as a result of the officers'
warrantless entry. Therefore, the District Court did not err in
denying Stueck's motion to suppress based on the officers'
warrantless entry onto the Stuecks' property.


¶30 Third, Stueck claims that the officers violated his Miranda
rights and any evidence obtained as a result, including his
confession, should be suppressed. This Court has adopted the
United States Supreme Court's rule in Miranda v. Arizona (1966),
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, "that states may not
use confessions or admissions resulting from a 'custodial
interrogation' unless the proper Miranda warnings have been given."
State v. Rushton (1994), 264 Mont. 248, 255, 870 P.2d 1355, 1359
(citing Miranda, 384 U.S. at 444). Custodial interrogation is
defined as " 'questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way.' " Rushton, 870 P.2d
at 1359 (quoting Miranda, 384 U.S. at 444). In addition, "[t]his
Court has established guidelines for determining when a 'custodial
interrogation' occurs. If a person has no free right to leave,
either from the express or implied conduct of police officers, then
the interrogation is custodial in nature." Rushton, 870 P.2d at

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1360 (citing Ellinger, 725 P.2d at 1204).


¶31 Stueck claims that, considering the circumstances of his
confession, "the only possible conclusion is that a person in Mr.
Stueck's position would reasonably believe that his freedom was
restricted." We disagree. In fact, as the State points out,
Stueck did not answer many of the questions asked as he was
concentrating too hard on putting his shoes on. When he finally
got the shoes on, he suddenly bolted out the door in search of the
registration and proof of insurance requested by the officers.
Therefore, we conclude that the questioning of Stueck that
eventually led to his confession was not custodial in nature and
thus, Stueck's Miranda rights were not violated.


¶32 As a corollary matter to this first issue, Stueck's reply
brief invited this Court to adopt a new standard of review for
"warrantless activity." Stueck suggests that this Court should
review the issues de novo. This argument is in response to the
State's brief which asserts that this Court cannot review issues
which involve credibility of witnesses or weight of the evidence in
determining whether the district court properly denied a motion to
suppress. The State has thus moved to strike Stueck's argument
claiming that it violates Rule 23(c), M.R.App.P., by raising new
matters beyond the issues raised in the State's answer brief.
After allowing supplemental briefing by the State on this matter,
we determine that the State's motion to strike should be denied.
We have reviewed the standard of review argument submitted by both
parties and determine that Ornelas v. United States (1996), 517
U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911, cited by Stueck, is not
controlling in this case. The Ornelas decision sets a standard of
review for determining probable cause or reasonable suspicion and
allows the Supreme Court to review those determinations de novo.
Ornelas does not set forth the standard of review for determining
whether or not the district court erred in denying a motion to
suppress, the issue raised in this appeal. As set forth above,
this Court reviews a district court's denial of a motion to
suppress by determining whether the court's findings of fact were
clearly erroneous, and whether those findings were correctly

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applied as a matter of law. Williams, 904 P.2d at 1021.
Issue 2


¶33 2) Did the District Court err in denying Stueck's motion to
dismiss based on denial of a speedy trial in violation of Sec.
46-13-401(2), MCA, and Article II, Section 24 of the Montana
Constitution?


¶34 Stueck argues that the State's unsuccessful appeals prevented
him from receiving a speedy trial and thus denied his statutory and
constitutional rights. Stueck relies on Article II, Section 24 of
the Montana Constitution and Sec. 46-13-401(2), MCA, to support his
claim. Section 46-13-401(2), MCA, states: "After the entry of a
plea upon a misdemeanor charge, the court, unless good cause to the
contrary is shown, shall order the prosecution to be dismissed,
with prejudice, if a defendant whose trial has not been postponed
upon the defendant's motion is not brought to trial within six
months." Both the State and Stueck agree that the trial did not
begin until 794 days had passed after Stueck's arrest. Stueck
argues simply that the period expired and requests that the charges
against him be dismissed. However, the State asserts that Stueck
cannot establish that the delay in bringing him to trial was the
State's fault.


¶35 The standard of review of a district court's denial of a
motion to dismiss on speedy trial grounds is whether the court's
interpretation of the law is correct. State v. Foshee (Mont.
1997), 938 P.2d 601, 604. The State
argues, first, that Sec. 46-13-401(2), MCA, does not apply because
the Justice Court action was exhausted within the prescribed
six-month period. In so arguing, the State relies on Bullock. In
Bullock, this Court held that so long as the justice court
jurisdiction is exhausted by some action authorizing an appeal de
novo to district court, the six-month requirement of Sec.
46-13-104(2), MCA, has been satisfied. Bullock, 901 P.2d at 67.
The State further asserts that once the State takes an appeal to
the district court, this Court analyzes a speedy trial claim under

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the four-part test set forth in Barker v. Wingo (1972), 407 U.S.
514, 92 S.Ct. 2182, 33 L.Ed.2d 101, adopted by this Court in State
ex rel. Briceno v. District Court (1977), 173 Mont. 516, 568 P.2d
162; see also Bullock, 901 P.2d at 67. In determining whether a
defendant has been denied a speedy trial, this Court considers: 1)
length of delay; 2) reason for delay; 3) assertion of the right by
defendant; and 4) prejudice to the defendant. Briceno, 568 P.2d at
164. While no single factor is determinative, the court weighs
each facet of the analysis in light of the surrounding facts and
circumstances. State v. VanVoast (1991), 247 Mont. 194, 200, 805
P.2d 1380, 1384.


¶36 As a preliminary matter, the State concedes that the first
Barker factor weighs in favor of Stueck's claim because the length
of delay in this case, 794 days, is presumptively prejudicial.
Thus, the State has the burden of providing a reasonable
explanation for the delay and showing that the defendant was not
prejudiced by the delay. VanVoast, 805 P.2d at 1384. The State,
however, argues that the remaining factors of the Barker test
weigh in its favor. Much of the delay was caused by the State's
interlocutory appeal to this Court regarding the District Court's
suppression of the BAC evidence and is considered institutional
delay. In State v. Moore (1994), 268 Mont. 20, 885 P.2d 457,
overruled on other grounds by State v. Gollehon (1993), 262 Mont.
293, 864 P.2d 1257, this Court reviewed a similar situation. In
Moore, the delay was one year and ten months (692 days) and was the
result of the State's appeal to this Court. We reasoned that:
If the issues raised by the government's interlocutory appeal

    were "clearly tangential or frivolous," the delay should

    be weighed heavily against the government. However, when

    the government's conduct is reasonable, and there has

    been no showing of bad faith or dilatory purpose on the

    part of the government, delays occasioned by the



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    government's interlocutory appeals should not weigh in

    favor of a defendant's speedy trial claim.

Moore, 885 P.2d at 487 (citations omitted). The State in this case
appealed the district court's suppression of the BAC evidence. The
evidence was important to the State's case because the offense of
negligent vehicular assault requires that the State show that
Stueck was driving under the influence. Moreover, the
interlocutory appeal resulted in a new rule of law requiring that
the implied consent statute be applied to Sec. 45-5-205, MCA.
Since the State's appeal was not made in bad faith or for a
dilatory purpose, the resulting delay should not weigh heavily
against the State.


¶37 Next, the State claims that Stueck showed a lack of interest
in his speedy trial claim by waiting to file his motion to dismiss
until three days before trial. In Briceno, we stated that " '[t]he
"appropriate motion" is a motion to dismiss for denial of a speedy
trial. The proper time to assert the right to a speedy trial is
prior to the actual commencement of the trial, usually at the time
the trial date is set, or the time the case is called to trial.' "
Briceno, 568 P.2d at 165 (quoting State v. Steward (1975), 168
Mont. 385, 390, 543 P.2d 178, 182). However, since Briceno, this
Court has set forth stricter standards for asserting a speedy trial
claim. For example, the State directs the Court to its decision in
State v. Williams-Rusch (1996), 279 Mont. 437, 451, 928 P.2d 169,
178. In Williams-Rusch, we held that by filing her motion to
dismiss only one week prior to the commencement of trial,
Williams-Rusch showed a lack of interest in her speedy trial
rights. Additionally, in State v. Thompson, we concluded that when
the defendant failed to object at the omnibus hearing, and did not
request a speedier trial setting, the defendant's claim of prompt
assertion of his speedy trial right was questionable and weak.
State v. Thompson (1993), 263 Mont. 17, 32-33, 865 P.2d 1125, 1135.


¶38 The State claims that Stueck had several opportunities to
object but did nothing until three days before trial. A review of

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the record reveals that at the omnibus hearing held September 12,
1995, Stueck asserted his intention to make a formal written motion
to dismiss for delay in prosecution. The record, however, is
devoid of such a motion. In addition, Stueck filed a cross-appeal
to each appeal filed by the State, did not object to the State's
motion for continuance, and, in fact, Stueck filed his own motion
for continuance on January 16, 1996. As a result, we conclude that
the third-prong of the Barker test does not weigh in favor of
Stueck's speedy trial claim.


¶39 Under the fourth Barker factor, the Court must determine the
prejudice to Stueck as a result of the delay of prosecution. The
Court analyzes three factors in determining prejudice from lack of
speedy trial: 1) prevent oppressive pretrial incarceration; 2)
minimize anxiety and concern of the accused; and 3) limit the
possibility that the defense will be impaired. Barker, 407 U.S. at
532. First, the State asserts that Stueck was arrested on January
20, 1995, he was taken to Gallatin County Detention Center where he
was booked and taken before the court the same day. The court
released Stueck on bond. Therefore, Stueck has not suffered
oppressive pretrial incarceration.


¶40 Next, this Court has recognized that "[a] certain amount of
anxiety and concern is inherent in being accused of a criminal
offense." State v. Marquardt (1990), 243 Mont. 133, 137, 793 P.2d
799, 801. Stueck, however, has not alleged suffering any anxiety
and concern, let alone any unusual anxiety and concern that would
evidence prejudice.


¶41 Finally, the crucial factor used in determining if the
defendant has been prejudiced by the delay is whether the defense
has been impaired. VanVoast, 805 P.2d at 1385. In determining
whether the defense has been impaired, we consider whether
witnesses essential to the defense have died, are not available to
testify or have suffered memory loss, or whether other evidence
essential to the defense has been lost. See VanVoast, 805 P.2d at
1385; Moore, 885 P.2d at 488. Stueck has made no allegations that

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witnesses died or were otherwise not available. Kristi Stueck
testified at trial that she could not recall all the events of the
night of the accident nor could she recall her prior testimony at
the Justice Court evidentiary hearing; however, review of the
record does not reveal that the defense was impaired by Kristi's
inability to recall some of the events. As to lost evidence,
although, as will be discussed more thoroughly in regards to issue
six, the physical evidence in this case was misplaced when the
highway patrol office relocated, no evidence essential to the
defense was lost, nor have any allegations to that effect been made
in support of Stueck's speedy trial claim.


¶42 Having balanced the four Barker factors, we conclude that
Stueck was not deprived of his constitutional right to a speedy
trial and that the District Court did not err in denying Stueck's
motion to dismiss for lack of speedy trial.
Issue 3


¶43 3) Did the District Court abuse its discretion by preventing
the jury from reviewing Kristi's confession letter during
deliberations?


¶44 Stueck's defense at trial was that Kristi was the driver of
the pickup on the night of the accident. Kristi wrote a confession
letter to the State to that effect. The letter was admitted into
evidence as Exhibit 14 and at the conclusion of trial, Stueck
sought to have the letter given to the jurors to review during
deliberations. The District Court denied Stueck's request. Stueck
claims on appeal that denying the jury of the hard copy of the
letter to review during deliberations "underemphasize[d] this
critical defense evidence."


¶45 Section 46-16-504, MCA, controls what items may be taken into
the jury room. That section provides: "Upon retiring for
deliberation, the jurors may take with them the written jury
instructions read by the court, notes of the proceedings taken by

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themselves, and all exhibits that have been received as evidence in
the cause that in the opinion of the court will be necessary."
Section 46-16-504, MCA (1995) (emphasis added). Thus, the district
court has discretion to determine what exhibits will be necessary.
This Court will not overturn a district court decision regarding
the availability of evidence during deliberations absent an abuse
of discretion by the district court. State v. Hage (1993), 258
Mont. 498, 503, 853 P.2d 1251, 1253; State v. Christenson (1991),
250 Mont. 351, 361, 820 P.2d 1303, 1309-10. The District Court
concluded that allowing the jury to take the confession letter by
Kristi "would over emphasize written word over the testimonial
word." The record reveals that the confession letter was admitted
into evidence and was discussed throughout Kristi's testimony. In
addition, both parties mentioned the letter during closing
arguments. The jury heard sufficient evidence regarding the
confession letter and had ample opportunity to weigh that evidence
in light of the other available evidence. Therefore, we hold that
the District Court did not abuse its discretion in ruling that the
confession letter would not be given to the jury during
deliberations.
Issue 4


¶46 4) Did the District Court err in allowing the State to offer
new evidence during its rebuttal argument?


¶47 Evidence presented at trial indicated that Kristi was at a bar
with Stueck the evening of the accident, and Stueck argued in his
defense that Kristi was driving when the accident occurred. In
response, the State raised the following query during its rebuttal
argument:
Where's the babysitter? You heard [Kristi] say she didn't want

    the officers in the house because she had a two and a

    three-year old there. You heard the officers testify

    that there were no other adults in the house that they



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    saw. . . . [Kristi] [d]idn't say anything about taking a

    babysitter home. Were the two and three-year old there

    all by themselves? No. She was there with them. That's

    more evidence that you have that shows her statement is

    highly incredible.


¶48 Stueck argues that the District Court erred in allowing the
State to mention the absence of a babysitter during its rebuttal
argument and further erred in failing to instruct the jury not to
consider that portion of the State's rebuttal argument. However,
throughout this line of argument by the State, Stueck did not
object. The issue was only raised when the jury began its
deliberations and inquired of the court: "Can anyone explain the
absence of the babysitter, presumably Mrs. Stueck did come home
with her husband. If there were no other tracks in the roadway,
explain how he or she got home!" Stueck argues that the court
should have instructed the jury that any reference to a babysitter
in rebuttal should not have been considered. Instead, the court
brought the jurors back to the courtroom and instructed them that
the question would not be answered because the record was closed,
and the case must be decided on the state of the record. In
addition, the court called attention to the instruction which
states that the jury is governed by the evidence introduced at
trial and to the instruction that defines direct and circumstantial
evidence.


¶49 The State's counter argument is two-fold. It argues, first,
that this Court should not consider Stueck's argument based on his
failure to cite any legal authority in support of his argument. In
addition, the State argues that Stueck's failure to make a timely
objection at trial precludes this Court from considering the
alleged error. In support, the State cites Sec. 46-20-104, MCA,
which provides in part that "[f]ailure to make a timely objection
during trial constitutes a waiver of the objection . . . ." This

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Court has held under the contemporaneous objection rule, Sec.
46-20-104, MCA, that it is precluded from considering an alleged
error unless a timely objection was made at trial. State v.
Rodgers (1993), 257 Mont. 413, 417-18 849 P.2d 1028, 1031. Stueck
asserts that the State's argument regarding the babysitter should
not have been considered by the jury; however, he failed to make a
timely objection during the State's closing argument and waited
until the issue was raised by the jury. Therefore, we conclude
that Stueck's failure to object constitutes a waiver of his claim
under Sec. 46-20-104, MCA, and hold that the District Court did not
err in instructing the jury to decide the case on the state of the
record.

Issue 5


¶50 5) Did the District Court err in denying Stueck's motion for
directed verdict?


¶51 The standard of review of a district court's denial of a
motion for a directed verdict on the ground of insufficiency of the
evidence is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. State v. Johnson (1996), 276 Mont. 447, 450, 918 P.2d 293,
294. The crux of Stueck's argument is that Stueck's confession was
obtained in violation of Miranda and, without the confession, the
State presented insufficient evidence to withstand a motion for
directed verdict. We disagree for two reasons. First, as
discussed above, Stueck's confession was not obtained in violation
of Miranda because Stueck was not in custody when he confessed.
Second, in addition to Stueck's confession, the State presented
sufficient evidence, when viewed in a light most favorable to the
prosecution, to support a jury's finding the essential elements of
the crime beyond a reasonable doubt. Therefore, we hold that the
District Court did not err in denying Stueck's motion for directed
verdict.
Issue 6



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¶52 6) Did the District Court err in denying Stueck's motion to
dismiss based on destruction of the evidence?


¶53 The morning of trial, the State revealed that physical
evidence, which was seized during the search conducted pursuant to
the search warrant and items found at the scene of the accident,
was misplaced during the relocation of the highway patrol office.
Stueck moved to dismiss the charges against him claiming that he
would not be able to cross- examine regarding the physical
evidence, and that the State could not prove corpus delicti without
the physical evidence. The court ruled that the State could proceed
with photographs taken by the officers of relevant evidence such as
pieces of blue plastic attached to the bumper of Stueck's pickup,
a blue paint transfer from Stueck's pickup onto Troth's truck, and
pieces of Troth's taillight found on Stueck's bumper. A proper
foundation was laid for admitting the photos into evidence.


¶54 Stueck argues on appeal that the lack of physical evidence in
this case "strengthens the defense motions to suppress and
dismiss." In addition, Stueck claims that admission of the
photographic evidence was error. However, Stueck fails to
illustrate how he was prejudiced or denied any rights by the
State's misplacement of the physical evidence.


¶55 In State v. Close (1994), 267 Mont. 44, 49-50, 881 P.2d 1312,
1315-16, Close argued that the State violated his due process
rights by failing to preserve evidence. We concluded that Close
failed to show that the evidence would be of substantial use or
would have tended to clear him from guilt. Close, 881 P.2d at
1316. As a result, we held that the district court did not err in
denying Close's motion to dismiss for failure to preserve evidence.
Close, 881 P.2d at 1316. Likewise, Stueck has failed to show any
prejudice or damage to his defense resulting from the misplacement
of the physical evidence in this case. Therefore, we conclude that
the District Court did not err in denying Stueck's motion to
dismiss based on destruction of the evidence.

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Issue 7


¶56 7) Did the District Court err in allowing the State to impeach
Kristi with the use of the Justice Court transcript?


¶57 During examination of Kristi, the State asked questions
pertaining to testimony Kristi gave at an evidentiary hearing in
Justice Court. The hearing had been tape recorded, and a court
reporter produced a written transcript of the tape. Stueck
objected to the use of the transcript from the Justice Court
claiming it was not an official record. The District Court, after
hearing foundational testimony from the court reporter, allowed the
State to question Kristi about her previous testimony in the
Justice Court. On appeal, Stueck asserts that there was no
foundation laid at the Justice Court or by the court reporter that
verified the authenticity or history of the tape.


¶58 The standard of review for evidentiary rulings is whether the
district court abused its discretion. State v. Gollehon (1993),
262 Mont. 293, 301, 864 P.2d 1257, 1263. The court has broad
discretion to determine whether or not evidence is relevant and
admissible, and absent a showing of an abuse of discretion, the
trial court's determination will not be overturned. Gollehon, 864
P.2d at 1263. Rule 613(b), M.R.Evid., provides that "[e]xtrinsic
evidence of a prior inconsistent statement by a witness is not
admissible unless the witness is afforded an opportunity to explain
or deny the same and the opposite party is afforded an opportunity
to interrogate the witness thereon, or the interests of justice
otherwise require." The District Court's ruling that the State
could use the Justice Court transcript to impeach Kristi was not
error because the court complied with the Montana Rules of
Evidence. First, the State laid a foundation for admission of the
transcript through the testimony of the court reporter in
compliance with the authentication requirements of Rule 901(a),
M.R.Evid. Second, at trial the State afforded Kristi an
opportunity to explain her prior testimony. Finally, Stueck was
afforded an opportunity to interrogate Kristi regarding the

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testimony from the Justice Court. Therefore, we hold that the
District Court did not abuse its discretion in allowing the State
to impeach Kristi with the Justice Court testimony.
Issue 8


¶59 8) Did the cumulative errors in this case prevent Stueck from
obtaining a fair trial?


¶60 Finally, Stueck asserts that the cumulative errors in this
case prevented him from obtaining a fair trial. In support of his
claim, Stueck cites State v. McKenzie (1978), 177 Mont. 280, 581
P.2d 1205. In McKenzie, we explained that "cumulative error"
refers to a number of errors which prejudice defendant's right to
a fair trial. McKenzie, 581 P.2d at 1226. We held that since no
substantial errors were committed, the doctrine of cumulative error
did not apply. McKenzie, 581 P.2d at 1226. Likewise, Stueck has
failed to establish cumulative errors prejudicing his rights.
Therefore, we hold that the doctrine of cumulative error does not
apply, and that Stueck was not prevented from obtaining a fair
trial. 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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