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City of Helena v. Kortum10/21/2003
ver of a motor vehicle with a blood alcohol content of .10 is unlawful. So according to this pamphlet - - The City then objected on grounds the statement violated the pretrial order. At that juncture, the court warned defense counsel not to get into the details of the pamphlet and not to talk any more about the pamphlet. Despite this admonition, defense counsel again referred to the pamphlet, arguing that, according to the pamphlet, Kortum was not impaired:
DEFENSE COUNSEL: Ladies and gentlemen of the jury, you get to read the pamphlet. The pamphlet is going to go into the jury room. We don't get to take bits and pieces out for your satisfaction. You get to read the entire pamphlet. Do so when you go into the jury room. According to this pamphlet, George Kortum was not impaired. On appeal, Kortum alleges the District Court's restriction of his counsel's use of the BAC and You pamphlet destroyed his ability to argue his theory of the case, ultimately denying him a fair trial.
Under Rule 104(a), M.R.Evid., "the admissibility of evidence shall be determined by the court." See also In re Marriage of Njos (1995), 270 Mont. 54, 61, 889 P.2d 1192, 1196 (the determination of the admissibility of evidence is within the discretion of the trial court; the court is not guided by fixed rules, but must consider the nature of the evidence and the circumstances of a particular case). In Robertson, the Court explained the discretion of the district court in accepting or rejecting "admissible" evidence in a DUI trial:
' dmissible,' under § 61-8-404(2) means in its ordinary sense that such evidence may be admitted. Rule 402, M.R.Evid., broadly states that ' ll relevant evidence is admissible, except as otherwise provided by constitution, statute, these rules, or other rules applicable in the courts of this state.' Thus, 'admissible' evidence may be excluded for any number of reasons . . . . Robertson , 55.
Here, the District Court, in its pretrial order, ruled the pamphlet would be admissible, not for the truth or accuracy of the statements therein, but simply as a publication of the DOT. Further, the parties' stipulation did not provide a basis for arguing the pamphlet as substantive evidence regarding intoxication. At the close of the City's case, the District Court reiterated that defense counsel was not at liberty to draw a conclusion as to whether Kortum was intoxicated based upon the chart in the pamphlet. However, defense counsel's closing argument clearly attempted to draw such a conclusion, even after the admonition by the District Court to refrain from any further discussion of the pamphlet.
The District Court's prohibition of the further use of the pamphlet cannot be characterized as a reversal of its previous ruling admitting the pamphlet, but rather an underscoring of its pretrial ruling. Defense counsel's attempts to argue the substantive text of the pamphlet and draw the conclusion that, based upon the statistics in the chart, Kortum could not have been intoxicated, clearly exceeded the original intent and parameters set by the District Court. It is well-established that admitting or refusing evidence lies within the sound discretion of the trial judge. State v. Little (1993), 260 Mont. 460, 475, 861 P.2d 154, 164. We hold the District Court did not abuse its discretion in limiting the use of the pamphlet.
We affirm.
JIM RICE
We concur:
KARLA M. GRAY
JAMES C. NELSON
W. WILLIAM LEAPHART
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