text:
    STATE OF MONTANA, Plaintiff and Respondent, v. PAUL MYRHOW, Defendant and Appellant.
    No. 93-006.
    Submitted on Briefs July 1, 1993.
    Rehearing Denied Jan. 6, 1994.
    Decided December 6, 1993.
    50 St.Rep. 1528.
    262 Mont. 229.
    865 P.2d 231.

      For Defendant and Appellant: Gregory A. Jackson, Jackson & Rice, Helena.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Paul D. Johnson, Assistant Attorney General, and Joseph E. Thaggard, Special Deputy Jefferson County Attorney, Helena.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Fifth Judicial District, Jefferson County, the Honorable Frank M. Davis presiding. Defendant Paul Myrhow (Myrhow) appeals the denial of his motion to dismiss for failure to state an offense. Myrhow contends that the State of Montana (State) granted him immunity from prosecution for deviate sexual conduct in exchange for his cooperation in the investigation of another sex offender. We affirm.

The issues are:

1. What was the scope of the agreement not to prosecute between the State and Myrhow?

2. Did the State grant Myrhow statutory immunity from prosecution for providing information which was used to convict a sex offender?

3. Did the District Court err by ruling that Myrhow could be convicted for deviate sexual conduct occurring prior to June 28,1989?

During his school days in Boulder, Montana, Myrhow was one of several sexual abuse victims of Douglas Marks, a Boulder school teacher. In 1984, Myrhow, then 18, complained to Jefferson County Deputy Sheriff, D.D. Craft, about Marks’ deviate sexual conduct with Myrhow and other adolescents. Later in 1984 or 1985, Myrhow approached Jefferson County Sheriff, Tom Dawson, with the same complaint.

By June 1989, Marks had not been charged with any crimes. At that time, Myrhow met with Dr. Phillip Pallister, a family friend, revealing that Marks had molested him for years. He wanted to stop Marks from molesting other juveniles. On June 23, 1989, Pallister and Myrhow met with Allen LeMieux, the former Jefferson County Attorney and another of Myrhow’s friends. After discussing Marks, they arranged a June 26th meeting with Rick Moe, the superintendent of schools. The meeting with the superintendent prompted a meeting with Jefferson County Attorney, Richard Llewellyn, on June 28, 1989. Attending that meeting were Myrhow, Pallister, LeMieux and Llewellyn.

What occurred during the June 28, 1989, meeting is in dispute. It is clear from the record that Myrhow, Pallister and Lemieux informed Llewellyn of their frustration with the progress of the Marks investigation. According to Pallister and Lemieux, tempers flared. Myrhow wanted Marks’ deviate sexual activities stopped. He revealed his involvement with Marks and agreed to cooperate in the Marks investigation. However, Myrhow never revealed that he, too, was an offender.

Myrhow agreed to furnish Llewellyn with a list of twenty to twenty-five other victims, provided that he first secured the victims’ permission and provided that he be granted immunity. Llewellyn denies that Myrhow ever mentioned the word “immunity” at the meeting; however, Pallister, Lemieux and Myrhow testified that Myrhow asked for immunity and Llewellyn granted the request. Although the grant was not reduced to writing, Llewellyn informed Myrhow that Myrhow would not be excused for serious offenses, such as bank robberies or murders.

In exchange for furnishing the fist of names, Llewellyn agreed not to prosecute Myrhow for certain activities which Llewellyn doubted were even offenses. Those activities were: 1) Myrhow’s deviate sexual conduct with Marks; 2) Myrhow’s voyeurism — covertly watching Marks perform deviate sexual acts with another adolescent; 3) Myrhow’s conspiring to kill Marks by blowing him up with dynamite; 4) Myrhow’s threatening Marks with a pistol; and 5) Myrhow’s breaking into the elementary school and placing a tape recorder in the nurses’ quarters to record conversations between Marks and other children.

At that meeting, Pallister voiced his concern that the Jefferson County Sheriff had not vigorously investigated Marks in the past. Therefore, Llewellyn suggested the investigation be turned over to the Montana Attorney General’s office. At no point during that meeting or at any other time did Myrhow ever mention that he, too, had committed sexual offenses against adolescent males.

Llewellyn next contacted Sheriff Dawson, who arranged a meeting between Myrhow and Dan Skuletich of the Montana Department of Justice Criminal Investigation Bureau. Myrhow provided Skuletich with a list of about twenty names of persons who may have been sexually involved with Marks, most of whom were now adults. Myrhow never mentioned to Skuletich that he was, at that time, sexually abusing adolescent males or that he had been granted any type of immunity.

According to Skuletich, the investigation was progressing “very slowly” in August 1989. Dawson and Skuletich were interviewing people from Myrhow’s list, but most were now adults and the statute of limitations on them had passed. Therefore, they narrowed the focus of their investigation to younger persons on the list. In so doing, Dawson developed a “profile” for younger persons. He created an independent list of potential victims of Marks. To derive this list, Dawson perused school yearbooks and coordinated with the Departments of Family Services and Social and Rehabilitation Services.

While investigating Marks, Dawson received a phone call from Wanda Stout of the Department of Social and Rehabilitation Services. She provided Dawson with J.P.’s name, which Dawson added to his profile. Also on Dawson’s independent list were C.G., J.G. and L.G. Myrhow did not provide Dawson with any of these names.

On October 17, 1989, Dawson and Skuletich interviewed J.P., who related his belief that L.G. had been sexually involved with Myrhow. This was the first time that the investigators had reason to suspect that Myrhow himself may have been offending. J.P. indicated that J.G. and C.G. might also be sexually involved with Myrhow. Skuletich then interviewed L.G., who confirmed that Myrhow paid him to have sex at Myrhow’s residence in 1988. According to L.G., J.G. was also in the house at that time. Before speaking with J.P. and L.G., Skuletich had never heard of J.G. or C.G., from Myrhow or anyone else.

Later that day, Skuletich and Dawson met with Myrhow at the sheriff’s office. Skuletich advised Myrhow of the allegations against him. Myrhow abruptly departed. Because neither J.P. nor L.G. were molested by Marks, Skuletich and Dawson decided to separate the Marks investigation from the allegations against Myrhow. Neither Skuletich nor Dawson ever interviewed J.G. or C.G.

Myrhow contacted Dawson in February 1990 to express his disappointment at the slow pace of the Marks investigation. At that time, Myrhow mentioned that he “could have” had sexual relations with adolescent males. Dawson asked if Myrhow wanted to discuss the subject, to which Myrhow replied, “I’m not sure if I have immunity.” Dawson suggested that Myrhow get an attorney, and never again discussed immunity with Myrhow.

Ray Mills, J.G.’s grandfather, approached Myrhow in Helena, Montana, asking Myrhow to meet with him to discuss some personal matters involving J.G. Mr. Mills met with Myrhow and Dr. Pallister on December 1, 1989. At that time, Mr. Mills learned that Myrhow had molested J.G. Mr. Mills told Myrhow and Dr. Pallister about J.G.’s legal problems. Myrhow responded by writing a letter to the Fifth Judicial District Court on J.G.’s behalf, in which he accepted partial blame for J.G.’s conduct and admitted that he had sexually victimized J.G.

Mr. Mills contacted Donna Hale of Lewis and Clark Human Services in December 1990, telling her that Myrhow had sexually molested J.G. She relayed this information to Jefferson County Under-sheriff Tim Campbell. Dawson then informed Campbell of the allegations concerning Myrhow, which Dawson and Skuletich had separated from the Marks investigation. Prior to this time, no investigation was focused on Myrhow.

Campbell interviewed J.G. and C.G. They related when and how Myrhow molested them. C.G. testified that Myrhow began molesting him in 1988, when he was in the eighth grade, through May 1990. C.G. recalled having oral sex with Myrhow after February 19,1990, the day on which Marks was arrested. It was stipulated that J.G. would testify that his sexual activity with Myrhow ended by the late fall of 1989, although he was uncertain of the exact termination date.

The State charged Myrhow by amended information with eight counts of deviate sexual conduct without consent. See § 45-5-505, MCA. Each count involved Myrhow’s sexual contact with males under sixteen years of age. Counts I through V involved J.G. Counts VI through VIII involved C.G.

The five counts involving J.G. occurred on the following dates: Count I, May 20, 1989; Count II, early August 1989; Count III, early October 1989; Count TV, October 1989; and Count V, between December 15 and December 24,1989. The remaining three counts involving C.G. occurred on the following dates: Count VI, between July 1 and August 31,1989; Count VII, between December 1,1989, and January 31,1990; and Count VIII, between May 1 and May 27,1990.

Myrhow moved to dismiss all charges. He alleged that the prosecution granted him immunity and agreed not to prosecute him in exchange for providing information in the Marks investigation. The District Court held an evidentiary hearing on November 27 and 29, 1991. On March 18, 1992, the District Court entered its findings of fact and conclusions of law, and an order denying Myrhow’s motion to dismiss.

On May 22,1992, Myrhow pled guilty to all charges pursuant to a plea bargain, the terms of which are not stated in the record. The District Court rejected the plea bargain and granted Myrhow’s motion to withdraw his guilty pleas. On October 28, 1992, Myrhow withdrew his motion and his guilty pleas were reinstated. Myrhow received a deferred sentence of six years, implementation of which is stayed during this appeal.

I

What was the scope of the agreement not to prosecute between the State and Myrhow?

Myrhow and the State recognize that Llewellyn contractually agreed not to prosecute Myrhow for the criminal acts which Myrhow communicated to Llewellyn during the June 28th meeting. An agreement not to prosecute is generally enforceable and is governed by principles of contract law. United States v. Irvine (9th Cir. 1985), 756 F.2d 708. The agreement may be express or implied. Section 28-2-103, MCA. Additionally, as here, the contract may be oral. See § 28-2-901, MCA. The language of the agreement must be read as a whole and given a reasonable interpretation. Irvine, 756 F.2d at 710-11.

Notwithstanding the statutory immunity issue, there is no dispute that a contractual agreement not to prosecute did, in fact, exist. The substantive issue before us is the scope of that agreement.

Testimony concerning the terms of the agreement was contradictory. Myrhow claims that Llewellyn granted Myrhow immunity for matters related directly and indirectly to the Marks investigation. Lemieux, present at the June 28th meeting, testified that he thought that all sexual offenses committed by Myrhow were covered by the immunity.

However, the State argues that Llewellyn could not grant immunity for offenses of which he had no knowledge. At no point during the June 28th meeting; during meetings with Llewellyn, Skuletich, Dawson or Campbell; or when interacting with his friends — such as Pallister and Lemieux — did Myrhow mention that he, too, had committed sexual offenses against adolescent males. Only after being confronted with the allegations did Myrhow admit to sexually molesting adolescents. Even then, as late as February 1990, Myrhow admitted to Dawson, “I’m not sure if I have immunity.” A careful review of the record reveals that Llewellyn did not extend immunity to sexual offenses committed by Myrhow.

The District Court found that Myrhow never revealed to Llewellyn or his friends at the June 28,1989, meeting or at any other time the fact that he had victimized juveniles. Moreover, the court found that Llewellyn did not grant Myrhow immunity for criminal acts committed by him against others after June 28,1989. These determinations are well supported by the record, are not clearly erroneous and must, therefore, be upheld. See Montana Dep’t of State Lands v. Armstrong (1992), 251 Mont. 235, 824 P.2d 255.

The District Court correctly found that Llewellyn granted Myrhow de facto immunity from prosecution for the following acts: a) the sexual relationship with Marks; b) the confessed voyeurism; c) the alleged burglary of the Boulder School; d) the alleged attempt to kill Marks with a gun or explosives; e) violation of Marks’right to privacy; and f) act of intimidation of Marks. We note that the “immunity” to which the District Court refers is a limited, contractual, transactional immunity arising solely from the agreement not to prosecute — not from Montana’s immunity statute.

II

Did the State grant Myrhow statutory immunity from prosecution for providing information which was used to convict a sex offender?

Myrhow contends he was granted immunity from prosecution for providing information used to convict Douglas Marks. According to Myrhow, immunity extended to his sexual offenses against adolescent males. Myrhow argues that his belief concerning the grant of immunity was manifested in his conduct. For example, he told several people he had been granted immunity, he discussed his offending with various people, and he wrote a letter to the court admitting his offending.

The statute on which Myrhow relies, § 46-15-331, MCA, provides in pertinent part:

(1) Before or during trial in any judicial proceeding, a judge of the district or municipal court, upon request by the prosecutor or defense counsel, may require a person to answer any question or produce any evidence, even though personally incriminating, following a grant of immunity.
(2) If a person is required to give testimony or produce evidence in accordance with this section in any investigation or proceeding, compelled testimony or evidence and any information directly or indirectly derived from such testimony or evidence may not be used against the witness in any criminal prosecution.
(3) Nothing in this section prohibits a prosecutor from granting immunity from prosecution for or on account of any transaction, matter, or thing concerning which a witness is compelled to testify if in the prosecutor’s sole discretion it is determined that the ends of justice would be served.

Two types of immunity are referenced in this statute: use or derivative use immunity (in subsection 2) and transactional immunity (in subsection 3). Section 46-15-331, MCA, provides that immunity is only granted when a witness is compelled to testify by court order (emphasis added). In this case, Myrhow voluntarily appeared before Llewellyn at the June 28, 1989, meeting. Myrhow was later subpoenaed to testify as a potential rebuttal witness at Marks’ sentencing hearing; however, he was never compelled to testify because he was not called as a witness at that hearing.

Myrhow and Llewellyn met at Llewellyn’s office to discuss Myrhow’s potential rebuttal testimony on November 6,1990, the day before Marks’ sentencing hearing. Because he believed he had no choice but to answer Llewellyn’s questions, Myrhow argues he was compelled to tell Llewellyn that he was molesting adolescent males. However, Llewellyn neither summoned Myrhow for that meeting nor raised the issue of Myrhow’s offending. Rather, Myrhow visited Llewellyn’s office and raised the subject of his sexual abuse of the juveniles.

We determine that no compelled testimony resulted from the issuance of the subpoena. No controlling authority requires a different result. See Kastigar v. United States (1972), 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (analyzing statutory immunity in relation to 18 U.S.C. § 6002, a federal statute similar to § 46-15-331, MCA); United States v. North (D.C. Cir. 1990), 910 F.2d 843 (which, like Kastigar, focuses on compelled testimony). We hold that the State did not grant statutory immunity to Myrhow.

Ill

Did the District Court err by ruling that Myrhow could be convicted for deviate sexual conduct occurring prior to June 28,1989?

The State correctly characterizes the District Court’s decision regarding Count I of the information as “somewhat obscure.” The court ultimately concluded that no immunity was granted for any counts in the amended information. However, Count I of the information alleged deviate sexual conduct by Myrhow against J.G. on or about May 20, 1989. Count I was the only count of the information alleging conduct which occurred before June 28,1989.

District Court Finding No. 13 reads as follows:

The Court finds that all of the offenses alleged in the amended Information were committed subsequent to the June 1989 meeting. While Defendant denies this, it is at the very least an issue of fact on this point. These acts are not covered by any grant of immunity, actual, de facto, or otherwise. The State did not learn of one of the offenses until late 1990, and this from a therapist at the Department of Family Services. It had no relationship to the Marks investigation whatsoever. Moreover, the Court finds that the Defendant concealed the identity of some of his victims ([John] Does 1-4) from the investigators, and [John] Does 1 and 2 advised the authorities on their own that they had been abused by the Defendant. Thus, as to at least two of the victims, the Defendant would be subject to prosecution even if he had been granted the immunity he claims.

The District Court later concluded:

The Defendant is immune from prosecution for all alleged criminal offenses, sexual or otherwise committed by him prior to June 28th, 1989, insofar as such offenses may have been related to the investigation by the State in State v. Marks, Cause No. 1288.

Although the District Court concluded that no immunity was granted for offenses occurring after June 28, 1989, it also found (Finding No. 13) that Myrhow was granted immunity for all criminal offenses occurring prior to June 28, 1989. The District Court erred, in part, in Finding No. 13. The District Court incorrectly found that “all of the offenses alleged in the amended Information were committed subsequent to the June 1989 meeting.” In fact, Count I was alleged to have been committed on or about May 20,1989. Therefore, Finding No. 13 is clearly erroneous with regard to that count. See Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

The question remains whether this is reversible error. We determine that the error does not affect the substantial rights of Myrhow. See Dahlin v. Holmquist (1988), 235 Mont. 17, 21, 766 P.2d 239, 241. The error is not reversible because Count I alternatively withstands challenge under the “independently derived evidence” doctrine. Unquestionable support for this position is found in the District Court’s rationale:

The State acquired this information [about the victims designated in this information] from independent sources... [t]his information had nothing whatever to do with the Marks investigation ... all of the proposed evidence against this Defendant was derived independently of the massive Marks investigation.

The State correctly contends that the District Court recognized a basis for sustaining Count I: a defendant is not protected from the use of evidence “derived from a source independent of the immunized testimony.” United States v. Crowson (9th Cir. 1987), 828 F.2d 1427, 1428-29. The State argues, and the record shows, that Myrhow’s offenses against J.G. and C.G. came to light independently of the Marks investigation and independently of any immunized evidence Myrhow provided through his agreement with Llewellyn.

Conversely, Myrhow contends that the State failed to meet its “heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources.” See Kastigar, 406 U.S. at 461-62, 92 S.Ct. at 1665. Myrhow argues that because his investigation followed the Marks investigation, one must have necessarily led to the other. He contends that the information was not independently derived because Myrhow revealed his offenses against J.G. to Mr. Mills, which prompted Mr. Mills to contact Ms. Hale at the Department of Rehabilitation Services, who in turn contacted Under-sheriff Campbell.

However, Myrhow never revealed to Llewellyn or investigators that he was a sexual offender or that he had sexually molested J.G. and C.G. That information arose from Dawson’s and Skuletich’s independent investigation. The mere chronological order of the investigations does not, in itself, provide any logical “use nexus” from the Marks investigation to the Myrhow investigation.

There is no evidence in the record to support the proposition that the State used information provided by Myrhow under the cooperation agreement to obtain the report from Ms. Hale. Moreover, Myrhow’s communications with Mr. Mills were neither immunized by the agreement with Llewellyn nor presented to Llewellyn as the result of the use of any immunized evidence.

We hold that the evidence used to formulate Count I against Myrhow was derived independently of the Marks investigation and independently of any immunized evidence Myrhow provided through his agreement with Llewellyn. The District Court correctly convicted Myrhow for deviate sexual conduct occurring before June 28,1989.

Affirmed.

JUSTICES GRAY, TRIEWEILER, NELSON and HUNT concur.


source: Caselaw Access Project

author: JUSTICE HUNT JUSTICE NELSON

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. BOBBY K. CRAIG, Defendant and Respondent.
    No. 93-158
    Submitted on Briefs September 16, 1993.
    Decided December 6, 1993.
    50 St.Rep. 1533.
    262 Mont. 240.
    864 P.2d 1240.
    For Plaintiff and Appellant: Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena; Patrick L. Paul, Cascade County Attorney, Great Falls.
    For Defendant and Respondent: John Keith, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

The State of Montana appeals from a decision of the Eighth Judicial District Court, Cascade County, granting defendant’s motion to suppress his confession made following a post-polygraph interview.

We affirm.

The State raises the following issue:

Did the District Court err in granting defendant’s motion to suppress a statement given by defendant following a polygraph examination?

Defendant is accused of sexually assaulting his 11-year-old step-granddaughter on July 12,1992, while on a family fishing excursion in Great Falls. Defendant does not have an existing criminal record.

Defendant was first questioned concerning the allegations on August 7, 1992, by Detective Bellusci. At that time, the detective advised defendant of his rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. The detective again spoke with defendant on August 26, 1992, to schedule a time for a polygraph examination.

On August 28, 1992, defendant went to the Great Falls Police Station at the request of Detective Bellusci. However, defendant contends he did not know at that time that he would be subjected to a polygraph examination. Detective Bellusci explained to defendant that the results of the polygraph were not admissible as evidence. Prior to the interview and polygraph examination, Officer Theisen, a certified polygraph examiner, gave defendant a Miranda warning and defendant signed a waiver and consent form. Officer Theisen conducted a background interview prior to the polygraph examination. The background interview revealed that defendant had six and a one-half hours of sleep before taking the polygraph, although at the time of the hearing, defendant contended that he had only one hour of sleep. The exam lasted for two hours and fifteen minutes.

At the conclusion of the polygraph examination, Officer Theisen told the defendant the polygraph indicated he had lied, and then began questioning him. Officer Theisen then called in Detective Bellusci, who also confronted defendant and told him that he was lying. The officers told defendant that the machine was proof that he lied. After approximately 15 to 20 minutes of questioning, defendant confessed to the offense.

On September 8,1992, the Cascade County Attorney’s Office filed an information charging defendant with one count of felony sexual assault in violation of § 45-2-502, MCA. At his arraignment on October 13,1992, defendant pled not guilty. On January 15,1993, defendant filed a motion to suppress his statement given after the polygraph examination. On February 3, 1993, the District Court held a hearing on the motion, ruling from the bench that the motion was granted. On February 4, 1993, the court entered a written order granting the motion. The State appeals from that order.

The State argues that the police used appropriate tactics in this case; that State v. Mayes (1992), 251 Mont. 358, 825 P.2d 1196, is not controlling in this instance; and that the District Court’s suppression of the evidence is in error. Defendant does not contend that he was in custody at the time he admitted to touching the victim. Instead, defendant argues that the tactic used by the police when telling him that he was lying because of the results of the polygraph in order to induce a confession is improper.

To determine whether a confession is voluntaiy “is a factual question which must take into account the totality of the circumstances.” Mayes, 825 P.2d at 1208 (citing State v. Allies (1979), 186 Mont. 99, 606 P.2d 1043). “[W]hen a defendant raises the question of voluntariness, the State must prove by a preponderance of the evidence that the confession or admission obtained was voluntarily obtained.” Mayes, 825 P.2d at 1208 (citing § 46-13-301(2), MCA).

Mayes involved a defendant found guilty of incest who confessed after a polygraph interrogation that he had inappropriately touched his daughter one year earlier while living in Washington. This Court suppressed the confession because at the time of the confession, the defendant had been awake for more than 30 hours, had been questioned continually, had been separated from his children, and had been lied to about the evidence against him. Mayes, 825 P.2d at 1208. The polygraph examination indicated the defendant was not telling the truth, and the examiner used that information to obtain a confession. Mayes, 825 P.2d at 1207.

Here, we do not have the same facts as were present in Mayes. Before Officer Theisen initiated the polygraph exam, defendant indicated that he had slept for six and one-half hours prior to the exam. The police officers did not fabricate evidence, or tell defendant that they had evidence that did not exist.

Even so, we strongly condemn the tactics used by the officers in this case to coerce defendant’s confession. Prior to this charge, defendant had no criminal record and did not have experience with police interrogation. The officers mislead defendant into believing that the results of the test were legitimate and admissible in order to induce a confession. The State maintains that the officers’ conduct in this case is an acceptable tactic, and that the use of a polygraph test is an effective tool for investigative purposes.

Regardless of its acceptability among the police, it is not acceptable to this Court for the police to use the results of a polygraph examination to tell a defendant that he lied in order to extract a confession. Nor can we say that the polygraph was used for investigative purposes in this case. Officer Theisen testified that the purpose of telling defendant that he lied was to elicit a statement.

In State v. Staat (1991), 248 Mont. 291, 292, 811 P.2d 1261, 1262, we stated our position that we have “long abhorred the use of lie detector evidence.” (quoting State v. McPherson (1989), 236 Mont. 484, 491, 771 P.2d 120, 124). We restate for the bench and bar of Montana that:

In light of the lack of trustworthiness of the results of polygraph tests, we conclude that application of the above statute [§ 37-62-302, MCA] should not be limited to those court proceedings in which the rules of evidence govern, but should extend to every proceeding in Montana coruts of law. ...
Polygraph evidence shall not be allowed in any proceeding in a court of law in Montana. The only acceptable lie detection methods in Montana corut proceedings reside with the court in bench trials, the jury injury trials, and the skill of counsel in cross-examination in all trials. [Emphasis added].

Staat, 811 P.2d at 1262.

We also condemn the use of the results of polygraph examinations to elicit or coerce a confession from defendants. We hold that the District Court did not err in suppressing the statement made by defendant following a polygraph examination where the police officers used the results of the polygraph to tell the defendant he had lied so as to elicit a statement or confession.

We affirm the decision of the District Court.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, TRIEWEILER and WEBER concur.

JUSTICE NELSON

dissents:

Here, the defendant confessed to the crime of sexually assaulting a minor after being informed by a police officer that his polygraph examination indicated that he was lying about the alleged assault.

Without specifically so stating, this Court apparently concludes that the voluntariness of the defendant’s confession is at issue because of impermissible police tactics. That being the case it is, then, incumbent that we at least apply to that issue the test which the law requires.

A confession is to be suppressed only if it is determined that it was not given voluntarily. Section 46-13-301(1), MCA. It is well settled in this State that “[a]n analysis of the voluntariness of a confession is a factual question which must take into account the totality of the circumstances,” State v. Mayes (1992), 251 Mont. 358, 376, 825 P.2d 1196, 1208; State v. Allies (1979), 186 Mont. 99, 111, 606 P.2d 1043, 1050; with each case being analyzed on its facts and no single fact being dispositive. State v. Lenon (1977), 174 Mont. 264, 271, 570 P.2d 901, 906. (Emphasis added.)

In the present case, applying the totality of the circumstances test, it is clear that the defendant voluntarily confessed.

While this Court focuses on the statement made by the polygraph examiner after the test, to the effect that the results of the polygraph test indicated untruthfulness on the part of the defendant, that was but one fact to be considered in conjunction with all other facts in determining whether the defendant’s confession was voluntarily given. People v. Hutton (Colo. 1992), 831 P.2d 486, 489. Even assuming that the examiner’s comment was improper, a conclusion with which I do not agree, the balance of factors here indicate that the defendant’s confession was voluntarily given.

The defendant is a 59 year old man with a ninth grade education employed as a custodian. There is no evidence that he had difficulty communicating in or understanding English. He agreed to further discuss the case at the police station after having been questioned earlier by Officer Bellusci and having been given the Miranda warnings on that prior occasion. He traveled to the police station by himself. The defendant slept for more than six hours before he arrived at the station for the polygraph examination. He was advised by Officer Bellusci before the exam that the results of the exam were not admissible. The defendant was advised of his Miranda rights before the exam. Tim Theisen, the polygraph examiner, discussed the nature of the exam and the polygraph with the defendant and gave him a consent form to be signed before the exam commenced. The form stated that he was taking the test voluntarily and that he had not been coerced or forced to consent under duress or because of a promise of reward. The consent form also stated that he had been advised of his Miranda rights. The entire period of examination lasted about two hours and 15 minutes and was given at a time agreeable to the defendant.

Defendant’s confession came 15 or 20 minutes into post-examination questioning and after he was informed that the polygraph exam indicated he had lied.

At no time did the police make any false statements to the defendant in order to induce a confession. The police never made any promises of benefits or rewards to him if he would confess to the crime. They were not unduly confrontational. There is no evidence that the defendant was not free to leave if he wished; he was not under arrest, and, thus, this was not a custodial interrogation. There are no specific allegations of coercive conduct. There are no allegations that he was deprived of sleep, water, food, contact with the outside world or that he was detained too long. See State v. Blakney (1982), 197 Mont. 131, 141, 641 P.2d 1045, 1051. In short, as the Court acknowledges in its opinion, there were none of the impermissible police tactics which we condemned in Mayes present here.

Simply put, when the confession is reviewed under the totality of the circumstances, one is led inescapably to the conclusion that the confession was voluntarily given. See State v. Waugh (Kan. 1986), 712 P.2d 1243; Hutton, 831 P.2d at 489; People v. Knighton (1983), 458 N.Y.S.2d 320; People v. Ray (Mich. 1988), 430 N.W.2d 626.

This Court, nevertheless, and without analyzing the confession under the appropriate totality of circumstances test, condemns the tactics used by the officers in obtaining the defendant’s confession. The opinion states that “[t]he officers mislead defendant into believing that the results of the test were legitimate and admissible in order to induce a confession.” That conclusion, of course, flies in the face of the fact that Officer Bellusci advised the defendant prior to the exam that the results were not admissible — a point acknowledged by the Court.

Furthermore, unless this case now stands for the opposite rule, there is no requirement that the police administer new Miranda warnings after the exam and before post-examination questioning. Wyrick v. Fields (1982), 459 U.S. 42, 47, 103 S.Ct. 394, 396, 74 L.Ed.2d 214.

In summary, there is simply no factual basis in the record for the conclusion, nor is there any discussion in the Court’s opinion of how, exactly, the police here “mislead” the defendant or unlawfully coerced his confession. They did nothing of the sort, and a proper totality of circumstances analysis would clearly reveal that.

The Court goes on to state that “...it is not acceptable to this Court for the police to use the results of a polygraph examination to tell the defendant that he lied in order to extract a confession.” That begs the question of, for what, then, can the police use the results of a polygraph examination? If the police are not free to tell a defendant that they believe he is lying, then there is really no point in giving him the examination in the first place.

The polygraph, while its use has been severely restricted, is still considered an effective tool for investigative purposes, even if the test results themselves may lack trustworthiness.

The fact that a test has not been deemed sufficiently reliable to authorize admission of the results in evidence does not support a logical inference that the defendant’s statements made during or following the test are not reliable. The premise cannot support the defendant’s conclusion because the statements made by an examinee during a polygraph examination can be disassociated from the underlying test.

Ray, 430 N.W.2d at 628. Moreover:

[t]he general rule in other jurisdictions is that statements are not inadmissible merely because they were made during the course of a polygraph examination. In general, a defendant will be unsuccessful in challenging the admissibility of an alleged polygraph-induced confession unless specific coercive conduct or a denial of constitutional rights can be shown, as opposed to a mere allegation that the polygraph examination improperly influenced the defendant’s confession of the crime.

Ray, 430 N.W.2d at 628. (Citation omitted.)

At least up until now, we have held to the rule that voluntary statements made by a defendant following a polygraph examination may be admitted into evidence even though the results of the exam itself would be inadmissible. State v. Smith (1986), 220 Mont. 364, 380, 715 P.2d 1301, 1310. While the Court reiterates its “abhor[rence] [for] the use of lie detector evidence,” citing State v. Staat (1991), 248 Mont. 291, 292, 811 P.2d 1261, 1261, the fact is that no “lie detector evidence” was used here. We are dealing, instead, with a confession given after a polygraph exam where the totality of circumstances clearly supports the conclusion that the incriminating statement was voluntary and not the result of police misconduct.

If we are now advancing our abhorrence for “lie detector evidence” to the point where incriminating, voluntary statements given after such an exam are per se inadmissible, as they now apparently are, then we should simply so hold and save law enforcement authorities in this State the future frustration and wasted effort of attempting to use, within recognized parameters, the exam as a legitimate investigative tool to obtain truthful statements from defendants.

In failing to properly examine the defendant’s incriminating statement in the context of the totality of the circumstances in which it was given, the District Court, and now this Court, have ignored and have implicitly overruled existing precedent; have fashioned an unjustified restriction on legitimate police interrogation; and have put the final nail in the coffin of the use of the polygraph examination as an investigative tool in Montana.

In that I cannot agree. I would reverse, and, accordingly, I respectfully dissent from this Court’s opinion.

JUSTICE GRAY joins in the foregoing dissent.


author: JUSTICE NELSON JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROSIE DENNY, Defendant and Appellant.
    No. 92-517.
    Submitted on Briefs September 2, 1993.
    Decided December 6, 1993.
    50 St.Rep. 1537.
    262 Mont. 248.
    865 P.2d 226.

      For Defendant and Appellant: William Hooks, Office of the Appellate Defender, Helena.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; and David G. Rice, Hill County Attorney, Havre.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a Twelfth Judicial District Court, Hill County, judgment on a motion for a new trial, which was filed after a jury found Rosie Denny guilty of conspiracy to sell dangerous drugs. We affirm.

We restate the issues on appeal:

1. Was Ms. Denny denied effective assistance of counsel?

2. Did the District Court abuse its discretion in denying Denny’s motion for a new trial upon the grounds of ineffective assistance of counsel?

On November 14,1991, Patrolman George Tate and Blaine County Deputy Sheriff William Brewer (Brewer) traveled to Medicine Hat, Alberta, Canada, to meet with Ramona Daychild (Daychild). Both officers worked as undercover officers for the Tri-Agency Drug Task Force. Their purpose in meeting Daychild was to arrange for the purchase of cocaine. The two traveled with Daychild to Havre to meet with Lester Azure (Azure) who was supposed to make a “connection” with a drug supplier for the purchase. When they went to Havre, Brewer and Daychild met with Azure at the Comer Bar. The two returned to the Duck Inn, where the officers were staying, returned Daychild to the tavern and then went to the Tri-Agency Task Force office to prepare for the purchase of the drugs. At that time, Brewer was fitted with a “body wire,” which concealed a transmitter attached to his person, which monitored conversations he had with suspects.

When Daychild and Brewer first met with Azure, they were told that Azure’s connection did not get off work until 4:30. At 5:00 that evening, Brewer and Daychild were j oined by Azure and Terry Ceynar (Ceynar) at the Buttress store. Brewer was told that Ceynar was going to find his connection so that Brewer could purchase cocaine. The group then left Buttress and went to the Atrium Mall, with Ceynar as a passenger in Brewer’s car.

Ceynar departed the car and went into the Atrium Mall. He emerged a few minutes later with a woman and they then proceeded to her car. The woman with Ceynar was Rosie Denny (Denny), whom Brewer recognized and Ceynar later referred to as “Rosie...the gal I got it from.” Ceynar was in Denny’s car for a few moments, then returned to Brewer’s car, and told Brewer that his connection had eight or nine grams of cocaine. Brewer gave him $800 and Ceynar returned to Denny’s car. A few minutes later, Ceynar returned to Brewer’s car again, this time handing Brewer a small plastic bag containing a number of small square bindles. They then left the parking lot and drove toward Ceynar’s house.

Brewer testified that as soon as he dropped Ceynar off, he met with the other undercover police officers who were working on the case and had been surveiling him. Brewer gave Officer Reichelt the plastic bag with the bindles, which Reichelt promptly marked as evidence. Officer Reichelt sent the bindles and plastic bag to the State Crime Lab but no fingerprints matched Denny’s or Ceynar’s fingerprints. An information was filed on March 9, 1992 and a warrant of arrest was served on March 30,1992. Denny’s case came to trial on July 23,1992 and a jury found her guilty on July 24,1992.

We review a denial of a motion for a new trial under § 46-16-702, MCA, which states that “[flollowing a verdict or finding of guilty, the court may grant the defendant a new trial if required in the interest of justice.” “The granting and denying of a new trial rests within the sound discretion of the district court and this Court will not overturn that decision unless the district court abuses its discretion.” State v. Haskins (1992), 255 Mont. 202, 210-211, 841 P.2d 542, 547. (Citation omitted.)

Denny argues that her trial counsel was ineffective because he failed to investigate and interview witnesses in her case. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, provides the two-part test for determining whether counsel was ineffective:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. See also; State v. Hurlbert (1988), 232 Mont. 115, 756 P.2d 1110; State v. Coates (1990), 241 Mont. 331, 786 P.2d 1182.

The first prong of the Strickland test considers whether counsel’s performance was deficient. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Lawrence v. Armontrout (8th Cir. 1990), 900 F.2d 127, 129. (Citation omitted.)

In the instant case, Denny’s counsel used a defense of innocence. Her position was that she was at the Atrium Mall for one purpose only — to purchase a washing machine. Thus, the critical issue in the case was her credibility. Counsel thought that Denny would not make a good witness and that “[s]he would have needed help” yet he did not interview possible witnesses who could have supported her testimony. Denny’s brother met her at the Atrium Mall to help her load the washing machine. There were also two adolescents who helped her brother move the washing machine. The employee who sold the washing machine to her was another possible witness as well as her employer who paid her on that day so she could purchase the washing machine. Denny’s counsel said he never thought of calling the employer but he did think of calling the brother, the two young people with him and the man who sold her the washing machine. Trial counsel testified that he had the impression Denny did not want her brother to testify because her brother did not wish to be involved. He thought the testimony of the salesperson at the Third-Hand Store would be irrelevant.

It is difficult to determine whether the salesperson or any of the other potential witnesses would testify as to irrelevant matters when they were not even interviewed. It is not difficult, however, to determine whether counsel should have at least interviewed the witnesses before rejecting the possibility of using their testimony at trial.

We adopt the reasoning of the Fifth Circuit in this regard.

To determine the reasonableness of [counsel’s] conduct in this situation, we must take into account two different, and potentially antithetical, considerations. First is the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Because of the danger of over-zealous post-trial inquiry into an attorney’s decisions made during the litigation, “a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.”
A substantial body of Fifth Circuit case law insists, however, “that ‘effective counsel conduct a reasonable amount of pretrial investigation.’ ” Although the scope of the required investigation is a function of the “number of issues in the case, the relative complexity of those issues, the strength of the government’s case and the overall strategy of trial counsel,” this circuit has recognized that, at a minimum, counsel has the duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case. This duty is reflected in the American Bar Association Standards for Criminal Justice, a proper guide for determining what is reasonable under the circumstances. These specific obligations inherent in counsel's duty to investigate must temper the amount of deference we give [counsel's] on-the-spot actions in evaluating his performance. (Emphasis added.)

Nealy v. Cabana (5th Cir. 1985), 764 F.2d 1173, 1177-1178.

The opinion that counsel, in providing effective assistance of counsel, must at least interview potential witnesses, is echoed in other circuit courts. For example, the D.C. Circuit has stated:

Counsel’s failure to interview the proposed witnesses is troublesome. Had trial counsel interviewed the witnesses, his decision not to call them might be protected from an ineffective assistance claim as a tactical litigation decision. The complete failure to investigate potentially corroborating witnesses, however, can hardly be considered a tactical decision. As the Supreme Court noted in Strickland, “[C]ounsel has a duty to make reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary.” [466 U.S. at 691], 104 S. Ct. at 2066. (Emphasis added.)

United States v. Debango (D.C. Cir. 1986), 780 F.2d 81, 85.

It is apparent that counsel in the instant action should have interviewed the potential witnesses to at least determine what they had to report. They might possibly have seen or overheard something which was relevant to the case. Their testimony may have supported Denny’s defense. Trial counsel had a duty to investigate and interview witnesses who may have possessed knowledge about Denny’s innocence. Lawrence, 900 F.2d at 130. By not interviewing the potential witnesses and investigating the case, “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. We conclude that Denny has successfully satisfied the first prong of the Strickland test.

As stated above, the Strickland test is a two-prong test; both prongs must be satisfied in order to successfully establish ineffective assistance of counsel. The second prong of the Strickland test is established if Denny can demonstrate that counsel’s deficient performance so prejudiced her as to deprive her of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Because counsel did not investigate and interview the potential -witnesses, it is impossible to tell whether this omission prejudiced the defendant to such a degree as to deprive her of a fair trial. U.S. ex rel. McCall v. O’Grady (7th Cir. 1990), 908 F.2d 170,173. Since we do not know what the potential witnesses would have testified, we also cannot determine whether such testimony would possibly have produced a different result. McCall, 908 F.2d at 173.

The Seventh and Eighth Circuits, faced with similar situations in post conviction proceedings, have required that the defendant be afforded an evidentiary hearing at which time the defendant can make “a comprehensive showing as to what the investigation would have produced.” U.S. ex rel. Cross v. DeRobertis (7th Cir. 1987), 811 F.2d 1008, 1016.

We adopt the following test and procedure enunciated by the Seventh Circuit:

The focus of the inquiry must be on what information would have been obtained from such an investigation and whether such information, assuming its admissibility in court, would have produced a different result. Under usual circumstances, we would expect that such information would be presented to the habeas court through the testimony of the potential witnesses. “Complaints of uncalled witnesses are not favored in federal habeas review.” Therefore, if the potential witnesses are not called, it is incumbent on the petitioner to explain their absence and to demonstrate, with some precision, the content of the testimony they would have given at trial. The district court simply cannot fulfill its obligation under Strickland to assess prejudice until the petitioner has met his burden of supplying sufficiently precise information. (Citations omitted.) (Emphasis added.)

Cross, 811 F.2d at 1016. In the instant case, Denny had a hearing on her motion for new trial. However, a different counsel appointed to represent her at that proceeding did not call any of the potential witnesses either. In this regard, Denny contends that the latter counsel was also ineffective because he too, failed to secure the testimony of the potential witnesses for her hearing on the motion for a new trial. As stated above, without these witnesses or an opportunity for the defendant to explain “with some precision, the content of the testimony they would have given at trial,” Denny could not have met her burden of satisfying the second prong of the Strickland test. Cross, 811 F.2d at 1016. Under similar circumstances, the Eighth Circuit Court stated:

A petitioner seeking relief based on ineffective assistance of counsel must “affirmatively prove prejudice.” To affirmatively prove prejudice, a petitioner ordinarily must show not only that the testimony of uncalled witnesses would have been favorable, but also that those witnesses would have testified at trial. Moreover, if potential trial witnesses are not called to testify at a post-conviction review hearing, the petitioner ordinarily should explain their absence and “demonstrate, with some precision, the content of the testimony they would have given at trial.” In view of these requirements, we believe that [petitioner’s] postconviction counsel also failed to exercise the skill and diligence expected of a reasonably competent attorney under similar circumstances. (Citations omitted.)

Lawrence, 900 F.2d at 130. We conclude also that Denny’s counsel at the hearing on her motion for new trial should have presented the testimony of the potential witnesses or at least presented sufficient precise information about their prospective testimony so as to allow the District Court to assess prejudice by determining what “information would have been obtained from such an investigation and whether such information, assuming its admissibility in court, would have produced a different result.” Cross, 811 F.2d at 1016.

We conclude that the failure of Denny’s second counsel to present the testimony of Denny’s potential witnesses further frustrated her attempt to satisfy the second prong of the Strickland test.

Having discussed the law applicable to the ineffective assistance of counsel claims at issue in this case, it remains incumbent upon this Court to, nevertheless, dispose of the case based upon the procedural posture in which it comes to us on appeal.

Denny has raised her claims of ineffective assistance of counsel on appeal from the District Court’s denial of her motion for a new trial. Based upon the lack of evidence presented to the District Court at the hearing on Denny’s motion, the Court had little option but to deny the motion. By reason of the failure of her second counsel, Denny simply did not present any evidence from which the District Court could have assessed prejudice by determining what information would have been obtained had trial counsel interviewed potential witnesses and whether such information, assuming its admissibility in court, would have produced a different result. Denny, thus, failed in her burden to prove prejudice, as required under Strickland. Under such circumstances, it would not have been proper for the trial court to presume prejudice on the basis of the inadequate record before it. Neither will this Court. We cannot conclude that the District Court abused its discretion in denying Denny’s motion for new trial based upon the record here. Accordingly, we affirm the District Court’s denial of Denny’s motion for new trial.

In doing so, however, we are not ruling on the merits of Denny’s claim of prejudice — the second prong of the Strickland test — occasioned by the ineffective assistance of counsel described above. The failure of her second counsel has prevented Denny from effectively raising the merits of that issue in the District Court and in this appeal. As in the Fifth, Seventh and Eighth Circuit cases above cited, we leave the further development of that issue under the test and procedure set forth above, to Denny in postconviction proceedings under Title 46, Chapter 21, MCA, should she so choose.

AFFIRMED.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY and WEBER concur.

JUSTICE TRIEWEILER

specially concurring.

I concur in the result of the majority opinion. However, I do not agree with all that is said therein.

Specifically, I would not encourage defendant to believe that her claim of ineffective assistance of counsel has any merit which should be pursued by petition for post-conviction relief. Even if we assume that the witnesses whom she claims her attorney failed to call would have testified in the manner she now says they would have testified, their testimony would not have helped her case. Therefore, defendant cannot satisfy the second prong of the test for ineffective assistance of counsel which was set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Defendant was convicted based on the testimony of an undercover agent that she sold him illegal drugs. Where she might have been at some other time of day, or what she might have done in some other location, was simply not relevant and would have done nothing to rebut the direct evidence of her involvement in the drug transaction.

If defendant’s presence at the mall at an earlier time was significant, would it also have been significant that she stopped to get gas earlier that morning? If she had testified to that effect and her attorney had failed to call the gas station attendant to corroborate her presence at the gas station, could that conceivably have satisfied the Strickland test for ineffective assistance of counsel? Clearly not. Neither can the circumstances in this case.

For these reasons, I concur with the majority’s decision to affirm the District Court. However, I do not concur with its suggestion that further time, expense, or effort should be wasted to determine whether or not witnesses could actually have corroborated defendant’s testimony that she was at the Atrium Mall earlier in the day.

JUSTICE HUNT concurs in the foregoing concurrence.


author: JUSTICE WEBER JUSTICE TRIEWEILER

text:
    WILLIAM J. MONTANYE, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Respondent.
    No. 92-561.
    Submitted on Briefs July 1, 1993.
    Rehearing Denied Jan. 20, 1994.
    Decided December 6, 1993.
    50 St.Rep. 1541.
    262 Mont. 258.
    864 P.2d 1234.

      For Petitioner and Appellant: Gregory A. Jackson, Jackson & Rice, Helena.
    For Respondent and Respondent: Joseph P. Mazurek, Attorney General, and Peter Funk, Assistant Attorney General, Helena.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a judgment of the First Judicial District Court, Lewis and Clark County, revoking petitioner’s driving license and finding that the New York law of Driving While Ability Impaired by Alcohol is substantially similar to the Montana law of Driving Under the Influence of Alcohol. We affirm.

The only question on appeal is whether the District Court erred in determining that the New York law is substantially similar to the Montana law so that petitioner’s driving license was properly revoked under Montana law?

William J. Montanye (Montanye) is a Montana resident who was cited in the state of New York on February 29,1992, for driving while intoxicated. Montanye was convicted on March 6, 1992, of driving while ability impaired, which is a charge of lesser degree than the New York charge of driving while intoxicated. Montanye was assessed a $350 fine and $250 cost, and his license was suspended for 90 days.

On April 9,1992, New York authorities notified the Motor Vehicle Division of the Montana Department of Justice of Montanye’s conviction. This action was taken pursuant to the Uniform Driver License Compact which both New York and Montana have adopted. See § 61-5-401, MCA, which sets forth the Compact in Articles I through IX and which is cited as “Driver License Compact.” The Driver License Compact requires that states are to report convictions of charges occurring in their states to the home state of a violator.

Following notification, the Montana Department of Justice, Motor Vehicles Division, suspended Montanye’s Montana’s driver’s license as of April 9, 1992, for a period of six months. On May 1, Montanye initiated this action in District Court seeking review of the driver’s license suspension action. Montanye also sought a stay of the suspension which was granted on May 6,1992.

The District Court, in an order filed October 9, 1992, determined that, under the Driver License Compact, the New York offense of Driving While Ability Impaired is substantially similar to the Montana offense of Driving Under the Influence of Alcohol (DUI). Further, the court determined that Montana should properly suspend Montanye’s license for six months, less the 90 days for which Montanye had his driving privileges suspended in New York.

Because of the substantive changes made in the statute by amendments, we set forth § 61-8-401, MCA (1991), as follows:

61-8-401. Persons under the influence of alcohol or drugs. (1) It is unlawful and punishable as provided in 61-8-714 and 61-8-723 for any person who is under the influence of:
(a) alcohol to drive or be in actual physical control of a vehicle upon the ways of this state open to the public,
(d) alcohol and any dangerous or other drug to drive or be in actual physical control of a vehicle within this state.
(2) The fact that any person charged with a violation of subsection (1) is or has been entitled to use alcohol or such a drug under the laws of this state does not constitute a defense against any charge of violating subsection (1).
(3) “Under the influence” means that as a result of taking into the body alcohol, drugs, or any combination thereof, a person’s ability to safely operate a motor vehicle has been diminished.
(4) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person driving or in actual physical control of a vehicle while under the influence of alcohol, the concentration of alcohol in the person at the time alleged, as shown by analysis of the person’s blood, mine, or breath, shall give rise to the following inferences:
(a) If there was at that time an alcohol concentration of 0.05 or less, it may be inferred that the person was not under the influence of alcohol.
(b) If there was at that time an alcohol concentration in excess of 0.05 but less than 0.10, that fact shall not give rise to any inference that the person was or was not under the influence of alcohol but such fact may be considered with other competent evidence in determining the guilt or innocence of the person.
(c) If there was at that time an alcohol concentration of 0.10 or more, it may be inferred that the person was under the influence of alcohol. The inference is rebuttable.
(5) The provisions of subsection (4) do not limit the introduction of any other competent evidence bearing upon the issue of whether the person was under the influence of alcohol, drugs, or a combination of the two. (Emphasis supplied.)

As emphasized, § 61-8-401(3), MCA, defines a person under the influence of alcohol as one whose ability to safely operate a motor vehicle has been diminished. In comparison, N.Y. Veh. and Traf. Law § 1192 subd. 1, provides:

Driving while ability impaired. No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.

Separate from the Driver License Compact provisions, Montana § 61-5-204, MCA, allows suspension of a resident’s license upon conviction in another state, stating in pertinent part:

Suspending resident’s license upon conviction in another state. The department is authorized to suspend or revoke the driver’s license ... of any resident of this state ... to drive a motor vehicle in this state upon receiving notice of the conviction of the person in another jurisdiction of an offense in that jurisdiction which, if committed in this state, would be grounds for the suspension or revocation of the driver’s license ...

Montana law provides that conviction of a DUI carries with it a fine, imprisonment, and possible revocation or suspension of license. Montanye was convicted in New York of driving while impaired by alcohol which carries with it a potential punishment of a fine, imprisonment or suspension of license.

Both laws deal with the driver’s diminished ability to drive while under the influence of alcohol. Both states provide for suspension of driver’s license as a punishment. The suspension is 90 days in New York and six months in Montana. See § 61-5-208, MCA. Montanye contends that the two sets of laws are totally dissimilar and that he should not have his license suspended here.

The declaration of policy in the Driver License Compact adopted by both states provides a guide to the policy behind the Compact, providing in § 61-5-401(l)(c), MCA:

the continuance in force of a license to drive is predicated upon compliance with laws and ordinances relating to the operation of motor vehicles in whichever jurisdiction the vehicle is operated.

The law in New York prohibits a driver from driving when alcohol impairs his or her ability to drive. The Montana law prohibits a driver from operating a car when his or her ability to drive safely is diminished.

As pointed out by the District Court, while the New York statute does not define impaired or intoxicated, in the case of People v. Miller (1975), 373 N.Y.S.2d 312, 314, the New York court defined intoxication:

Therefore, this court finds that it was the intention of the Legislature that a person be convicted of driving while intoxicated when it is established that he has consumed enough alcohol so that his physical and mental control are markedly diminished-, or putting it another way, that his judgment and ability to operate a motor vehicle are adversely affected to a substantial degree. (Emphasis added.)

If driving while intoxicated is defined as having one’s physical and mental abilities “markedly’ diminished, driving while alcohol impaired indicates that the degree of impairment is somewhat less than markedly diminished.

The District Court here compared the similarities and differences between the Montana and New York law and concluded that while there were a few differences, the offenses are substantially similar. The District Court emphasized that the conviction of either offense could result in fine, imprisonment and loss of driving privileges. It also emphasized that under New York law, a Montana DUI conviction would be deemed driving while impaired and therefore would come within the Driver License Compact provisions. The District Court further concluded that the fact that the Montana violation is a misdemeanor and the New York violation is a traffic offense is not a significant difference. It pointed out that Montana law requires finding that the driver has a diminished capacity to operate his vehicle safely. New York law requires that impairment be found when as a result of the ingestion of alcohol, a driver’s control of a vehicle is less than would be expected by a reasonably prudent driver. The court concluded that a reasonably prudent driver also would be a safe driver. The District Court therefore concluded that the New York offense of driving while impaired is similar to Montana’s driving under the influence laws.

Under the Driver License Compact Montana is required to determine if the offenses described in New York are of a “substantially similar nature.” Driver License Compact, Article IV, (3), § 61-5-401, MCA. We affirm the District Court’s conclusion that the New York offense of driving while impaired is substantially similar in nature to the Montana law of driving under the influence.

The dissent contends that since conviction in New York while “impaired” requires a lesser degree of intoxication than Montana, the offenses are not substantially similar. The dissent seems to contend that under City of Helena v. Davis (1986), 222 Mont. 492, 723 P.2d 224, the only way in which a conviction can be obtained is to spell out the alcoholic concentrations as set forth in the present § 61-8-401(4), MCA. That analysis ignores the changes subsequently made to our statute after Dav is was decided.

As noted, the 1991 § 61-8-401(4), MCA, provides for various inferences which are to be applied to alcohol concentrations at various levels. Apparently the dissent is suggesting that if these elements are not presented within jury instructions, then under Dae is there cannot be impairment which is different than the state of New York. We disagree with that analysis.

As a result the 1987 amendment to § 61-8-401, MCA, Montana is no longer limited to proof of alcohol concentration in a person’s blood, urine or breath. While previous subsections of § 61-8-401, MCA, contain the cut-off levels of blood alcohol content, the 1987 amendment has added a definition by which “under the influence” can be defined not by a chemical analysis of the blood, but by the observation that a “person’s ability to safely operate a motor vehicle has been diminished.”

This 1987 amendment undermines any controlling affect of the Davis decision. In Davis, we determined that the instruction given to the jury which attempted to define “under the influence” was not correct because such an evaluation had become more precise. In 1987, the definition of “under the influence” underwent another change, this time it grew to include a definition which considered the driver’s ability to drive and not just his blood alcohol content.

The Davis reasoning concerns an outdated 1955 instruction erroneously given to the jury in the 1986 case. That instruction did not take into consideration the assumptions raised when blood alcohol content was measured. Subsequent to 1955, the legislature added assumptions as to ability to drive based upon the alcoholic content of a person’s blood. The law had been changed to reflect those specific levels of alcoholic content in the blood. Thus, the Davis Court was correct in reversing because the jury instruction did not reflect the current assumptions contained in the law.

In 1987, the legislature determined that “under the influence” is not exclusively determined by the blood’s alcoholic content. Such content levels create inferences. Now, “under the influence” is defined by the diminution of a person’s ability to drive a vehicle.

This is exactly what the New York law concerning “impairment” was meant to do. It was meant to give police a tool to determine when a person’s ability to drive was diminished, despite the lack of breath analysis at the scene. People v. Cruz (1979), 423 N.Y.S.2d 625, 628. We conclude that the additions to the Montana statutes are comparable to the additions to the New York statutes.

The Driver License Compact makes it reciprocal for states adopting the uniform law to comply with the traffic laws in sister adopting states. Montanye had not complied with New York’s traffic laws. He was convicted of driving while impaired because of alcohol and had his driving privileges revoked for 90 days. This is half the time required by Montana law for a suspended license. The District Court concluded that Montanye’s driver’s license could not be suspended for more than a total of six months and therefore subtracted from the Montana suspension the New York revocation of 90 days. The State of Montana has not cross-appealed the issue of length of time for license revocation and we will not, therefore, consider this issue on appeal. In order to preserve an issue not raised by appellant, respondent must file notice of cross appeal. Rules 5(a), 14, M.R.App.R; Neumann v. Rogstad (1988), 232 Mont. 24, 757 P.2d 761.

We hold that the District Court did not err in determining that the New York law is substantially similar to the Montana law so that petitioner’s driving license was properly revoked under Montana law.

Affirmed.

CHIEF JUSTICE, TURNAGE, JUSTICES HARRISON and NELSON concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority’s opinion in this case.

The majority’s opinion has not cited New York’s statute in its entirety. In its entirety, it provides for three separate offenses which relate to operating motor vehicles under the influence of alcohol. They are the following:

1. Driving while ability impaired. No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.
2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has a .10 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, mine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this Article.
3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.

N.Y. Veh. & Traf. Law § 1192.

Paragraphs 2 and 3 of New York’s statute are substantially similar to §§ 61-8-406 and -401, MCA, respectively. However, defendant was convicted of subparagraph 1 of the New York law. There is no counterpart in Montana for that paragraph.

The New York statute does not define the degree to which a person must be under the influence of alcohol before he or she is, as a matter of law, “impaired.” The majority cites People v. Miller (1975), 373 N.Y.S.2d 312, 314, for the principle that “intoxicated” means that a driver’s ability to operate a vehicle is “adversely affected to a substantial degree.” However, in a more recent decision, which was controlling at the time of this defendant’s conviction, the highest court of the State of New York held that the requirement for “impairment” is satisfied by a much lesser degree of influence. In People v. Cruz (1979), 423 N.Y.S.2d 625, 628, 399 N.E.2d 513, 516, the New York Court of Appeals held that:

On its face, however, the statute does not speak of degrees of impairment; it simply prohibits the driving of a motor vehicle when the driver’s “ability to operate such vehicle is impaired.” (Vehicle & Traffic Law, s. 1192, subd. 1). Thus driving a motor vehicle while there is any alcoholic impairment of the driver’s “ability to operate such vehicle” would constitute a violation.
... It is evident from the statutory language and scheme that the question in each case is whether, by voluntarily consuming alcohol, this particular defendant has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver. [Emphasis added].

We have specifically held in Montana that the degree of impairment which the New York court found sufficient to convict under subsection 1 of its impairment law, is not sufficient to convict under Montana’s statute which prohibits operating a motor vehicle while under the influence of alcohol.

In City of Helena v. Davis (1986), 222 Mont. 492, 723 P.2d 224, we held that it was error to instruct a jury that a person could be convicted of operating a vehicle under the influence of alcohol in violation of § 61-8-401, MCA, if the jury simply found “any alcoholic impairment.” In that case, the defendant was charged with operating a motor vehicle under the influence of alcohol or drugs in violation of § 61-8-401, MCA. The jury was instructed, over defense counsel’s objection, that “[i]f the ability of the driver of an automobile has been lessened in the slightest degree by the use of alcohol, then the driver is deemed to be under the influence of alcohol.” Davis, 723 P.2d at 225. On appeal, the defendant contended that he could not violate § 61-8-401, MCA, unless his driving ability was impaired “to a degree that [rendered] him incapable of safely driving a [motor] vehicle.” Davis, 723 P.2d at 225 (underlining added). The defendant’s position was as follows:

Davis asserts, the statute he was charged and convicted of violating does contain a clear legislative directive as to the extent of influence of the intoxicants. The offense charged in this case does not say the law is broken if one drives while impaired to the “slightest degree;” rather, the law states an offense is committed if one’s driving ability is impaired “to a degree that renders him incapable of safely driving a [motor] vehicle.”

Davis, 723 P.2d at 226.

This Court agreed with the defendant and held that the instruction given in the district court in that case:

[N]o longer [was] a proper statement of the law in this State and the instruction must either be revised or abandoned to conform with the provisions of § 61-8-401. As noted above, we find the legislature today had specifically spelled out in § 61-8-401 the extent of the influence of intoxicants necessary to be convicted of driving under the influence of alcohol or drugs. As applied to the instant case, Davis is entitled to a new trial with the jury being instructed as to proper criteria set out in § 61-8-401 which is applicable to a charge of driving under the influence of alcohol and/or drugs.

Davis, 723 P.2d at 227.

In its reference to the dissent, the majority opinion totally misses the point. The point is that under New York’s offense of driving while impaired, any degree of impairment is sufficient. Under Montana’s offense of driving while intoxicated, any degree of impairment is not sufficient. The fact that Montana’s statute sets out inferences based on various levels of alcoholic concentrations merely confirms that distinction.

The majority opinion states that “[ajpparently the dissent is suggesting that if these elements are not presented within jury instructions, then under Davis there cannot be impairment which is different than the state of New York. We disagree with that analysis.”

The dissent has nothing to do with jury instructions. The dissent is based upon very clear distinctions between the New York statute for which defendant was convicted, and the Montana statute for which his license is being revoked. The difference, based upon prior decisions from that state and this state, is the degree of impairment necessary for conviction.

The majority opinion states that:

As a result of the 1987 addition to § 61-8-401, MCA, Montana is no longer limited to proof of alcohol concentration in a person’s blood, urine or breath. While previous subsections of § 61-8-401, MCA, contain the cut-off levels of blood alcohol content, the newly added subsection (3) has added a definition by which “under the influence” can be defined not by a chemical analysis of the blood, but by the observation that a “person’s ability to safely operate a motor vehicle has been diminished.”

Subsection (3) of § 61-8-401, MCA, does not have anything to do with the method by which intoxication is proven and says nothing about observation of an accused’s physical or mental capacities. It simply defines “under the influence” to mean that as a result of alcoholic consumption, “a person’s ability to safely operate a motor vehicle has been diminished.” (Emphasis added).

For some reason which escapes me, the majority concludes that based upon the addition of this definition in the 1987 amendment to § 61-8-401, MCA, the Davis decision has no precedential significance. However, that makes no sense. In Davis, we held that it was error to instruct a jury that “[i]f the ability of the driver of an automobile has been lessened in the slightest degree by the use of alcohol, then the driver is deemed to be under the influence of alcohol.” Davis, 723 P.2d at 225. We arrived at that conclusion because of statutory presumptions based upon blood alcohol content. We did not do so because of the absence of the definition which was added by amendment in 1987. In fact, according to the defendant in Davis, the definitional addition relied on by the majority was already present since the statute under which he was charged provided that:

(1) It is unlawful and punishable as provided in 61-8-714 for any person who is under the influence of
(d) alcohol and any drug to a degree that renders him incapable of safely driving a vehicle to drive or be in actual physical control of a vehicle within this state.

Therefore, there was no change to Montana’s DUI statute in 1987 which has any bearing on our holding in Davis. We simply held that any diminution in the ability to drive, no matter how slight, did not constitute a violation of our DUI statute. If anything, the amendment referred to in the majority opinion makes that conclusion even more inescapable today.

Since conviction of driving while “impaired” in New York requires a lesser degree of intoxication than driving “under the influence” in Montana, the offenses are not substantially similar as a matter of law. Indeed, if they were substantially similar, New York would not find it necessary to establish two separate offenses which differ only with regard to the degree of impairment an individual suffers from the influence of alcohol.

For these reasons, I dissent from the majority opinion. I would reverse the judgment of the District Court.

JUSTICES GRAY and HUNT join in the foregoing dissent.