State v. McAdam ( 2020 )

08/11/2020
DA 19-0733
Case Number: DA 19-0733
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 206N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
TOBY CARL McADAM,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and For the County of Park, Cause No. DC 19-98
Honorable Brenda R. Gilbert, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Toby McAdam, Self-Represented, Livingston, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Damon Martin, Assistant
Attorney General, Helena, Montana
Bruce E. Becker, Attorney at Law, Livingston, Montana
Courtney Lawellin, Livingston City Attorney, Livingston, Montana
Submitted on Briefs: July 15, 2020
Decided: August 11, 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 Toby Carl McAdam (McAdam) appeals from his conviction after a bench trial in
Livingston City Court, of failure to yield the right of way, in violation of § 61-8-339, MCA,
and operating a motor vehicle upon a public way without liability insurance, in violation
of § 61-6-301, MCA. The City Court, Honorable Holly Happe, presiding, entered written
findings of fact and conclusions of law. Upon McAdam’s appeal from the City Court, a
court of record, the Sixth Judicial District Court, Park County, affirmed the conviction.
¶3 On March 21, 2019, McAdam was involved in a vehicle collision. Prior to the
accident, McAdam was travelling south on 7th Street in Livingston, Montana. The other
driver, Shirley Payne (Payne), was driving east on Clark Street. At the intersection of
7th and Clark, the vehicles collided. Montana Highway Patrol Officer Jason Gunderson
(Officer Gunderson) responded, and determined McAdam was at fault and did not have
insurance. Officer Gunderson cited McAdam for failure to yield to the vehicle on the right
and operating a vehicle without liability insurance.
¶4 McAdam pled not guilty, and the case proceeded to a bench trial, at which McAdam
represented himself. The City Attorney called one witness, Officer Gunderson, who
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explained he cited McAdam for the right of way violation based on the damage to both
vehicles, the locations of both vehicles, the markings on the road, and the statements given
to him by Payne and other witnesses. McAdam testified on his own behalf, but did not call
any other witnesses. The City Court, as the fact finder, found Officer Gunderson’s
testimony to be credible, and convicted McAdam of both offenses.
¶5 On appeal to the District Court, McAdam argued he was deprived of his
constitutional rights at trial because Payne and the other accident witnesses referenced in
the police report did not testify. The District Court stated, “it is clear to this Court, from
the record, that testimony from other potential witnesses would have only been duplicative.
It was up to the [City] to determine which witnesses presented testimony before the Court,
and, had the Defendant wished to have other witnesses present, it was his responsibility to
issue subpoenas for their presence and testimony.” The District Court concluded the record
supported the City Court’s determination that McAdam had committed the offenses, and
affirmed the convictions.
¶6 Upon McAdam’s appeal from City Court, the District Court functioned as an
intermediate appellate court. See §§ 3-5-303 and 3-11-110, MCA. “When district courts
function as intermediate appellate courts for appeals from lower courts of record, we
review the appeal de novo as though it were originally filed in this Court. We examine the
record independently of the district court’s decision, reviewing the lower court’s findings
of fact under the clearly erroneous standard, its discretionary rulings for abuse of discretion,
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and its legal conclusions for correctness.” City of Missoula v. Metz, 2019 MT 264, ¶ 11,
397 Mont. 467, 451 P.3d 350 (citations omitted).
¶7 As he did before the District Court, McAdam argues in this appeal that the
convictions should be overturned because the trial violated his constitutional right to
confront the witnesses against him, as the State did not call Payne and the other listed
accident witnesses to testify. While McAdam is correct that a criminal defendant has the
right to confront witnesses against them, see Sixth Amendment of the United States
Constitution and Article II, Section 24, of the Montana Constitution, that does not mean
the prosecution has a duty to call every witness to testify. Rather, the prosecution may
decide what witnesses to call to carry its burden of proof against the defendant, and the
defendant has the right to confront any of the witnesses whose testimony is used against
him or her. In other words, if a witness is not called to testify, then the right to confront
that witness does not arise. As the Sixth Amendment states, “In all criminal proseuctions,
the accused shall enjoy the right . . . to be confronted with the witnesess against him.”
(Emphasis added). The prosecution may decide to call only one witness, and forego other
witnesses, at the risk of not carrying its burden, as the City did here. If the prosecution
chooses to do so, the defendant has no inherent right to confront those witnesses whose
testimony was not presented. We conclude McAdam’s constitutional right to confront
witnesses was not violated.
¶8 McAdam also argues the City Court improperly credited the testimony of
Officer Gunderson, while rejecting McAdam’s testimony. “[B]ecause an assessment of
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testimony is best made upon observation of the witness’s demeanor and consideration of
other intangibles that are only evident during live testimony, the fact-finder is uniquely in
the best position to judge the credibility of witnesses[.]” Ditton v. DOJ Motor Vehicle Div.,
2014 MT 54, ¶ 33, 374 Mont. 122, 319 P.3d 1268 (citing State v. Worrall, 1999 MT 55,
¶ 50, 293 Mont. 439, 976 P.2d 968) (internal citation omitted). Therefore, on an appeal
from a bench trial, this Court generally “defer[s] to the trial court regarding the credibility
of witnesses and the weight to be accorded to their testimony.” Ditton, ¶ 33 (citing
State v. Lally, 2008 MT 452, ¶ 24, 348 Mont. 59, 199 P.3d 818). Here, the City Court was
the fact-finder, and therefore, was in the best position to assess the credibility of the witness
testimony. Regarding accident fault, we find no reason upon a review of the record to
believe the City Court erred by crediting Officer Gunderson’s testimony. Although
Officer Gunderson stated he relied on the statements of other individuals when deciding
whether to ticket McAdam, McAdam does not argue, nor it is apparent from the record,
that Officer Gunderson offered hearsay testimony. As the City Court stated,
Officer Gunderson’s conclusion that McAdam was at fault for the accident was also based
on the damage to both vehicles, the locations of both vehicles, and the markings on the
road, about which Officer Gunderson provided photographs to enhance his testimony. Nor
was the City Court’s apparent lack of acceptance of McAdam’s testimony regarding why
he did not have insurance clearly erroneous. The City Court acknowledged McAdam’s
proffered excuse in its order, but applied § 61-6-301, MCA, which provides “[i]t is
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unlawful for a person to operate a motor vehicle upon ways of this state . . . without a valid
policy of liability insurance in effect[.]”
¶9 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.
¶10 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
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