State v. Thornton ( 1997 )

No. 96-332
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DELLIVAN THORNTON,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of
Flathead, the Honorable Ted 0. Lympus, Judge Presiding.
COUNSEL OF RECORD:
For Appellant:
Dellivan Thornton (pro se), Lakeside, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana
Glen Neier, City Attorney, Kalispell, Montana
Submitted on Briefs: June 19, 1997
Decided: July 23, 1997
Filed:
IClerk
Chief Justice J. A. Tumage delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal
Operating Rules, the following decisionshallnot be cited asprecedentand shall be published
by its filing as a public documentwith the Clerk of the SupremeCourt and by a report of its
result to State Reporter and West Publishing Companies.
Dellivan Thornton, pro se, appealsfrom the judgment and sentenceof the Eleventh
Judicial District Court, FlatheadCounty, where a jury found him guilty of driving under the
influence of alcohol (DUI). We affirm.
Thornton raises the following issueson appeal:
1. Did the City of Kalispell interfere with Thornton’s right to obtain exculpatory
evidencewhen it required him to obtain a physician’sreferral before he would be transported
to the hospital for an independentblood test?
2. Did the District Court improperly sentenceThornton and deny him a court-
appointed attorney and stay of sentence?
3. Did the District Court err when it refused to consider Thornton’s motion to
disqualify?
4. Should the DUI charge be dismissed becauseof lost evidence and missing
court papers?
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BACKGROUND
Thornton has not provided this Court with a trial transcript as required by Rule 9(a),
M.R.App.P. Therefore, we base our decision on the District Court file and trial exhibits.
Thesedocumentsindicate that Thornton was arrested for DUI by the Kalispell City Police.
At booking, Thornton agreed to take a breath test which indicated a breath alcohol
concentration of ,176. Thornton requestedan independentblood test. A Kalispell police
officer called the hospital and was informed that Thornton neededa doctor’s authorization
for the test. The police allowed Thornton approximately thirty minutes to locate a physician,
but Thornton was unsuccessfuland ultimately did not obtain a blood test.
Thornton was convicted of DUI in Kalispell City Court. He appealed, pro se, to
District Court for a trial de novo. Thornton moved to disqualify the District Judge, but the
motion was returned with an explanation that it was untimely and that it failed to comply
with § 3-l-805, MCA. Thornton was convicted of DUI by a jury in District Court.
Thornton appeals.
DISCUSSION
1. Did the City of Kalispell interfere with Thornton’s right to obtain exculpatory
evidencewhen it required him to obtain a physician’s referral before he would be transported
to the hospital for an independentblood test?
This Court doesnot review issueswhich were not properly preservedfor appealin the
court below. Statev. Swoboda(1996), 276 Mont. 479,481,918 P.2d 296,298. A criminal
defendantwaives an issueon appealwhen he fails to raise the issueat the district court level
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where he appearedpro se. City of Billings v. Skurdal(1986), 224 Mont. 84, 88, 730 P.2d
371.373.
Thornton arguesthat the police impededhis right to obtain an independentblood test
by requiring a physician’s referral before transporting him to the hospital for the test. Based
on the record before this Court, Thornton failed to preserve for appellate review any issue
regarding his request for an independentblood test becausehe did not raise the issue in the
lower court proceedings. This Court’s review of allegations on direct appealis confined to
the record. Section 46-20-70 1, MCA. We decline to further addressIssue 1.
2. Did the District Court improperly sentenceThornton and deny him a court-
appointed attorney and a stay of sentence?
Thornton maintains that he was improperly sentencedwhile he was away from the
courtroom, and that he was denied a court-appointed attorney and a stay of sentence. A
review of the record demonstratesthat Thornton did not presentthis argument to the District
Court. We decline to further addressIssue 2 on appeal.
3. Did the District Court err when it refused to consider Thornton’s motion to
disqualify?
Thornton claims that the District Judgeshould have been disqualified becauseof his
bias and prior contacts with Thornton and his family. Except for Thornton’s untimely
motion to disqualify the District Judge, there is no record that Thornton complied with
Montana’s statutory requirements for disqualification of judges contained at 5 3-l-805,
MCA. The District Court file contains a minute entry setting trial for April 29, 1996.
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Thornton tiled an untimely document entitled “Motion to Disqualify” on April 17, 1996,
seeking to disqualify the District Judge.
The District Court refused Thornton’s motion for disqualification, finding that it was
untimely and did not meet the statutory requirements of 3 3-l-805, MCA. The statute
requires an affidavit for disqualification to be filed more than thirty days before trial and to
be accompaniedby an affidavit showing personalbias or prejudice.
This Court will uphold a district court’s refusal of a motion to disqualify when the
motion doesnot meet statutory requirements. State v. Langford (1994), 267 Mont. 95, 882
P.2d 490. Thornton presents no argument or authority to explain how the District Court
erred. We conclude the District Court did not err when it refused to consider Thornton’s
motion to disqualify.
4. Should the DUI charge be dismissed becauseof lost evidence and missing
court papers?
The record doesnot support Thornton’s remaining contentionsregarding requestsfor
other counsel, judicial prejudice, lost evidence, or missing pleadings. This Court is not
obligated to refute bald assertionsabsent specific argument or authority. State v. Smith
(1986), 220 Mont. 364,382,715 P.2d 1301,1312.
Affirmed.
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We concur: