State v. W. Dale

03/31/2020
DA 18-0302
Case Number: DA 18-0302
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 75N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
WILLIAM DALE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC 17-01A
Honorable Holly Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Haley Connell Jackson, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney, Bozeman, Montana
Submitted on Briefs: February 12, 2020
Decided: March 31, 2020
Filed:
cir-641.—if
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 William Nathaniel Dale (Dale) appeals his conviction upon jury trial of driving
under the influence of alcohol, a felony, challenging evidentiary rulings made by the
Eighteenth Judicial District Court, Gallatin County.
¶3 Around midnight on December 23, 2016, Julie and her roommate heard sounds of a
revving engine close to their apartment. They had not heard anything unusual prior to
hearing the revving sounds. Looking out the window, they saw a truck about twenty feet
away, on the lawn in front of their apartment building. It appeared the driver of the truck
was attempting to drive from the lawn onto the nearby road, but the truck was stuck. Julie
watched through the window for about 30 minutes. The driver, who was the only occupant
of the truck, got out of the truck and tried to dig out snow from the tires, and then tried to
drive the truck again. Julie saw no other persons in the truck or attempting to free the truck.
The driver appeared to notice that Julie and her roommate were watching and knocked on
their door. However, they did not open the door. Julie believed the driver was drunk. She
called law enforcement to make a report of a possible drunk driver.
¶4 Police responded to the scene and observed a male sitting in the driver’s seat of the
truck, lying with his head pointed toward the passenger side of the vehicle. The male was
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asleep or passed out. There was an open beer container behind the driver’s seat and several
opened alcohol containers in the bed of the truck. Police attempted to make contact with
the person in the driver’s seat by knocking on the window, yelling, and pounding on the
roof of the truck, but they could not arouse him. They then opened the truck door and
shook the male, who woke up, but was lethargic. The individual was Dale, and the truck
was his. Dale’s speech was heavily slurred, his eyes were red and watery, and he acted as
if disoriented. Dale said he was waiting for a friend to come, and that his friend, David
Taylor (Taylor), had been driving the truck. Officers noted there was only one set of
footprints in the snow around the truck, other than their own. It appeared from the
footprints that the person had walked back and forth along the truck, and that dirt and snow
had been thrown around the yard. Officers noted nothing to indicate another person had
been with Dale or around the vehicle. Dale agreed to undergo field sobriety testing and
performed poorly on the tests. Officers noted mud on Dale’s pants. Dale refused to provide
a breath sample, so officers obtained a search warrant for a blood draw, which yielded a
blood-alcohol result of 0.182. The State filed an Information charging Dale with felony
driving under the influence of alcohol.
¶5 At trial, Dale testified he was uncertain about the events of the evening because “I
was highly intoxicated,” but maintained he had not driven after drinking heavily at his
group’s Christmas party that night. He first testified he was not certain which friend had
driven his truck, adding, “I attempted to get my truck unstuck, that was in the yard, by
digging out around the tires and doing that sort of thing, wondering who was going to be
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coming back . . . .” However, later in the trial, Dale testified affirmatively that his friend,
David Taylor, had driven the vehicle.
¶6 During the investigation by police, Dale had provided Sergeant Toresdahl of the
Bozeman Police Department with the name of Desmond Donnelon, who Dale also
suggested was driving the truck that evening. At trial, Toresdahl testified that he had talked
to Donnelon by telephone, at which point defense counsel objected to the testimony as
hearsay. The District Court ruled that, while Toresdahl could not “tell us what he told you,
[] you can tell us what you understood after the phone call.” Toresdahl proceeded to testify
that “I learned that—I determined that [Donnelon] has not been in the state of Montana.”
A similar exchange occurred when Toresdahl testified about speaking by telephone with
Taylor, and, over defense counsel’s objection, Toresdahl was permitted to testify that he
determined from this conversation that Taylor “had not been at the scene when Mr. Dale’s
truck was stuck[.]” During cross-examination, defense counsel questioned Toresdahl
about an audio recording of telephone conversations between Dale and Taylor, asking
whether Dale had maintained he was not the driver, to which Toresdahl responded
affirmatively. Then, on re-direct, Toresdahl stated, over objection, that he had also learned
from that recorded conversation Taylor had been in Minnesota on the night in question.
¶7 On appeal, Dale challenges the District Court’s rulings on his evidentiary objections
to the testimony offered by Toresdahl. “We review rulings on the admissibility of evidence
to determine if the district court abused its broad discretion.” State v. Payne, 2011 MT 35,
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¶ 15, 359 Mont. 270, 248 P.3d 842 (citing Clark v. Bell, 2009 MT 390, ¶ 16, 353 Mont.
331, 220 P.3d 650).1
¶8 Dale argues the District Court erred in permitting Toresdahl to testify concerning
what he had “determined” from his telephone conversations with Donnelon and Taylor, so
long as Toresdahl did not repeat specifically what they had said. The State does not contest
that Toresdahl was permitted to offer inadmissible hearsay testimony, but argues the
evidence was not reversible error.
¶9 Toresdahl’s explanatory testimony about what he “determined” from his telephone
conversations with Donnelon and Taylor was inadmissible hearsay, as was the similar
hearsay testimony this Court concluded was inadmissible in Payne. See State v. Payne,
¶ 29 (“While [the testifying officer] did not repeat the declarant’s words verbatim on the
witness stand, the fact remains that the statement of the [declarant] during the inquiry—
that Payne was not in compliance with Connecticut registration requirements . . . [was]
presented at trial for the truth of the matter asserted[,]” and was “testimonial hearsay”).
However, also as in Payne, we conclude the admission of these brief statements was not
reversible error under the analysis in State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32
P.3d 735. See Payne, ¶ 40. Under Van Kirk, this was a trial error that is reviewed for
harmless error. Van Kirk, ¶ 40. As Dale acknowledges, the sole contested issue in the case
was whether Dale was driving prior to his truck coming to rest in the front lawn of the
1
In his opening brief, Dale also challenged the District Court’s application of the 2015 persistent
felony offender statute, but withdrew the issue in his reply brief in light of this Court’s decision in
State v. Thomas, 2019 MT 155, 396 Mont. 284, 445 P.3d 777, which was decided after the filing
of Dale’s opening brief.
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apartment building. His identity was an element of the offense. However, beyond the
inadmissible statements, there was other significant evidence that Dale was driving the
truck, including all of the evidence set forth above. While circumstantial in nature, it was
nonetheless proper evidence from which a clear inference could be drawn that Dale was
the driver that night, by which the State can demonstrate, and has demonstrated that,
qualitatively, “there is no reasonable possibility that [the] inadmissible hearsay evidence
might have contributed to the defendant’s conviction.” Van Kirk, ¶¶ 44, 47.
¶10 Finally, although Dale also objects to Toresdahl’s reference on redirect to the audio
recording of his conversation with Taylor, it was defense counsel who first raised the
recording during cross examination of Toresdahl, by asking about Dale’s profession of
innocence on the recording. After the defense had opened the door, it was not an abuse of
discretion for the District Court to permit the State to inquire on redirect about other
information Toresdahl heard on the same recording.
¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. This appeal presents
no constitutional issues, no issues of first impression, and does not establish new precedent
or modify existing precedent. In the opinion of the Court, the case presents a question
controlled by settled law or by the clear application of applicable standards of review.
¶12 Affirmed.
/S/ JIM RICE
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We concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
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