02/02/2021
DA 19-0042 Case Number: DA 19-0042
IN THE SUPREME COURT OF THE STATE OF MONTANA 2021 MT 24
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CLINTON SCOTT KRAUSE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDC 17-586 Honorable John W. Parker, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Kristina L. Neal, Assistant Appellate Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana
Joshua A. Racki, Cascade County Attorney, Jennifer L. Quick, Deputy County Attorney, Great Falls, Montana
Submitted on Briefs: December 9, 2020
Decided: February 2, 2021
Filed:
cir-641.—if __________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Appellant, Clinton Scott Krause, appeals his conviction entered in the Eighth
Judicial District Court, Cascade County. A jury convicted Krause of Driving Under the
Influence of Alcohol (DUI), 4th or subsequent offense, after the District Court denied
Krause’s motion to dismiss and motion for mistrial. We affirm and address the following
issues on appeal:
1. Whether the District Court abused its discretion when it denied Krause’s motion to dismiss for insufficient evidence.
2. Whether the District Court abused its discretion when it denied Krause’s motion for mistrial.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 On September 27, 2017, at about 9:40 p.m., Officer Meek of the Great Falls Police
Department was dispatched to the area of 6th Avenue South and Chowen Springs Loop in
Great Falls, Montana, based on a report that there was a male slouched over the steering
wheel of a vehicle. Officer Meek located a 2009 silver Nissan Ultima near the location
dispatch provided. The location was west of the intersection of Chowen Springs Loop and
6th Avenue South near Parkdale. Parkdale is public housing that the Great Falls Housing
Authority owns and rents to income-eligible members of the public.
¶3 When Officer Meek reached the vehicle, he observed a male sitting in the driver’s
seat of the vehicle, leaned back, with his head falling over his chest. The male was not
moving and did not respond to Officer Meek shining a flashlight on his face. Officer Meek
later identified the male as Krause. Officer Meek opened the car door and asked Krause if
2 he was okay. When he opened the door, Officer Meek smelled a strong odor of alcohol
and observed that Krause’s face and eyes were droopy and his eyes were watery. Officer
Meek asked Krause where he had come from and Krause responded, “The Ho.” Officer
Meek confirmed that Krause meant the Hi-Ho Tavern on 26th Street South and 10th
Avenue South in Great Falls. Krause’s speech was heavily slurred, and the odor of alcohol
was stronger when Krause spoke.
¶4 Officer Meek observed that the Nissan Ultima was a push-to-start vehicle, meaning
it did not need a key in the ignition to start. Rather, for the vehicle to start, a key fob or
“smart key” needed to be inside the car or within close proximity when the push starter
was activated. Officer Meek asked Krause if he had a key to start the vehicle. Krause
responded that he did not. Krause indicated that the key fob for the vehicle was in an
apartment about 150 feet away. The vehicle was registered in Krause’s name, and the
address listed on the registration matched the Parkdale apartment 150 feet away. Officer
Meek asked Krause to push the starter to verify it would not start. Krause lightly rubbed
the ignition button twice, but Officer Meek could see that he was not actually pushing it.
Officer Meek, again, requested that Krause push the ignition button. When Krause finally
applied some force, the vehicle started. Officer Meek asked Krause to turn the vehicle
back off and to step outside so he could investigate whether Krause was impaired. When
Krause stepped out of the vehicle, the key fob was on the driver’s seat. Officer Meek had
Krause perform field sobriety tests. Krause displayed several indicators of impairment and
was ultimately arrested for DUI. Officer Meek asked Krause to provide a blood sample to
determine his blood alcohol content and Krause refused. Officer Meek obtained a search
3 warrant for a blood sample and took Krause to the hospital for the blood draw. Krause’s
blood alcohol content measured 0.162. Krause was subsequently charged with DUI, 4th or
subsequent offense, in violation of § 61-8-401, MCA; Driving Without a Valid Driver’s
License, in violation of § 61-5-102, MCA; and Failure to Carry Proof of Liability
Insurance, in violation of § 61-6-302, MCA. The matter proceeded to a jury trial.
¶5 At trial, Sarah Cole testified that, on the night in question, she was living at the
apartment listed on the vehicle’s registration. Cole and Krause have four children together,
but Cole testified that Krause was not living with her on September 27, 2017. Cole
maintained that Krause lived with his mother somewhere near Albertsons. Cole explained
that she drove the Nissan Ultima but was not the registered owner of the vehicle. Cole said
Krause bought the vehicle for her and their children and she was the only one who drove
the vehicle. When Officer Meek found Krause, the vehicle was parked in a permitted
parking spot near Cole’s apartment. Cole had a sticker on the vehicle authorizing her to
park in one of the parking spots at Parkdale, however, she was not assigned a specific
parking spot. A sign is placed at the parking stall, which informs the public the parking
stall is for tenants only and violators will be towed at their own expense. Anyone without
a permit is not supposed to park in the parking spaces. Guests visiting Parkdale can park
on the nearby street.
¶6 Cole testified that between 4:30 and 5:00 p.m. on the night in question, she was
making dinner for her kids when Krause knocked on her apartment door. Krause was
visibly intoxicated so she would not let him inside but told Krause he could go to the car
and sleep it off because his residence was so far away. Cole maintained that she unlocked
4 the car with her key fob from inside her apartment, she saw the headlights flash, and
watched Krause get into the car. Cole testified that Krause did not have a key fob for the
car. She maintained, however, that she had two key fobs and would sometimes leave one
in the car console. During Cole’s direct examination, Cole stated that her car would not
sound an alarm if she left a key fob in the car and that she had done so before. During
Cole’s cross-examination, the following exchange occurred between the prosecutor and
Cole:
Q. And you said that you could see the lights flash when you unlocked the car? A. Yes.
Q. And you visibly observed that? A. Yes.
Q. Okay. And so, that would mean that it would have been locked previously. A. Yes.
Q. And so—can I see your fob? A. Yeah.
Q. I don’t need to touch it, I just want to look at it. And that’s a Nissan Ultima? A. Yes.
Q. Is that correct? A. Yes.
Q. A 2009. Is that correct? A. Yes.
Q. And you stated that you can leave a fob in the Nissan and still lock the vehicle? A. Yes.
5 Q. Okay. Do you understand what the penalties are for perjury? A. Yes.
Q. Okay. And I’m just looking at Nissan’s website and it says that the bonus—
¶7 Defense counsel objected on hearsay grounds. The District Court asked the State
what its intention was, and the prosecutor responded she intended to use the Nissan website
to impeach Cole regarding Cole’s statement that she could lock the vehicle with a key fob
while another key fob was inside the vehicle. The court asked the prosecutor the grounds
for which the State was seeking to introduce the website information, and the prosecutor
responded, “To show that she’s given a materially false statement regarding the capabilities
of a Nissan Ultima.” The District Court excused the jury. Outside the presence of the jury,
defense counsel questioned Cole, who maintained that she could leave one key fob in the
car without the car sounding an alarm. She stated, “maybe it wasn’t locking . . . [b]ut when
you unlock it, it’s always going to flash those lights whether it’s locked or not.” Cole stated
she was willing to demonstrate this for the jury but explained that only one key fob was
working. The court sustained defense counsel’s objection and ruled that any questioning
that referenced the Nissan website would be based upon inadmissible hearsay. When the
jury returned, the following exchange occurred during cross-examination:
Q. Ms. Cole, regarding the key fob that was left in your vehicle and the key fob that you said you unlocked the car with from the house about 150 feet away, isn’t it true that there’s a lockout feature on your vehicle? Are you aware of that? A. I was not aware that there was, no.
6 Cole stood by her testimony and stated that she would show the jury that her key fob would
allow her to lock another key fob in the car, however only one of her key fobs was currently
working.
¶8 Before closing arguments, defense counsel moved to dismiss the DUI charge for
insufficient evidence, arguing that the State had failed to meet its burden of proving that
Krause was on a “way of this state open to the public.”1 Defense Counsel argued the
parking stalls were private parking spots for Parkdale residents only and not fitted for the
public because a permit was required, and violators would be towed at the owner’s expense.
The court considered Krause’s argument but specifically found that the parking stall was
not “segregated by a gate or otherwise inaccessible from a physical standpoint.” The court
concluded that, based on jurisprudence established by this Court, the parking space in
question was a “way of this state open to the public.” The court denied the motion to
dismiss.
¶9 Defense counsel also moved the court to declare a mistrial based on prosecutorial
misconduct. Defense counsel described Cole’s and the jury’s reactions to the prosecutor’s
question to Cole about whether she understood the penalties of perjury: “I saw a reaction
on Sarah Cole’s face. It looked to me like she became a shrinking violet. And I also saw
something of a reaction on the . . . jury’s faces.” Defense counsel argued the question
regarding perjury was intended to, and did, intimidate Cole and the question went beyond
1 Krause also moved to dismiss the charges of driving without a valid license or proof of insurance, arguing there was insufficient evidence that Krause had been driving. The court denied Krause’s motion to dismiss. However, the jury acquitted Krause of these offenses.
7 legitimately attacking the credibility of a witness. Defense counsel further argued that the
prosecutor knew the information from the Nissan website was inadmissible hearsay and,
nevertheless, attempted to use the information to impeach Cole. The court acknowledged
the prosecutor’s line of questioning was “toward the outer edge of zealous advocacy,” but
nonetheless denied Krause’s motion for mistrial. The court noted that a more proper
manner for handling the line of questioning would have been to simply remind the witness
that she was under oath. The court ordered the State to refrain from referencing any
discussion of possible perjury in its closing argument.
¶10 The jury found Krause guilty of DUI and not guilty of Driving Without a Valid
Driver’s License and Failure to Carry Proof of Liability Insurance. The District Court
sentenced Krause to the Department of Corrections for 13 months, with placement in the
WATCH Program, followed by a suspended five-year commitment to the Department of
Corrections. Krause timely appeals the District Court’s denial of his motion to dismiss and
denial of his motion for mistrial.
STANDARDS OF REVIEW
¶11 This Court reviews a district court’s denial of a motion to dismiss for insufficient
evidence de novo. State v. Swann, 2007 MT 126, ¶ 19, 337 Mont. 326, 160 P.3d 511. A
district court’s conclusion that a road, drive, or parking space is a “way of th[is] state open
to the public” is a conclusion of law over which this Court exercises plenary review.
State v. Sirles, 2010 MT 88, ¶ 15, 356 Mont. 133, 231 P.3d 1089. We review a district
court’s denial of a motion for mistrial for abuse of discretion. State v. Pierce,
2016 MT 308, ¶ 17, 385 Mont. 439, 384 P.3d 1042. This Court applies a deferential
8 standard to the district court because the trial judge is in the best position to decide on the
motion. Pierce, ¶ 17. When considering a defendant’s motion for mistrial, a district court
must determine whether the defendant has been denied a fair and impartial trial.
State v. Partin, 287 Mont. 12, 16, 951 P.2d 1002, 1004 (1997).
DISCUSSION
¶12 1. Whether the District Court abused its discretion when it denied Krause’s motion to dismiss for insufficient evidence.
¶13 To establish the offense of DUI, the State must prove beyond a reasonable doubt
that the defendant, while under the influence of alcohol, drove or was in actual physical
control of a vehicle “upon the ways of this state open to the public.” State v. Schwein,
2000 MT, 371, ¶ 10, 303 Mont. 450, 16 P.3d 373 (quoting § 61-8-401(1)(a), MCA). On
appeal, Krause does not contest he was in actual physical control of the vehicle, nor does
he contest he was under the influence of alcohol. He argues, however, that the State failed
to prove he was operating or controlling a vehicle “upon the ways of this state open to the
public” because Officer Meek found him in a parking space that Krause maintains was
intended only for Parkdale residents and required a permit. We note, however, that Krause
was neither a Parkdale resident nor the person to whom the permit was issued.
¶14 The Montana Legislature has provided that “ways of this state open to the public”
means “any highway, road, alley, lane, parking area, or other public or private place
adapted and fitted for public travel that is in common use by the public.”
Section 61-8-101(1), MCA. We examined this statute in City of Billings v. Peete,
224 Mont. 158, 729 P.2d 1268 (1986). In Peete, we held that the parking garage of the
9 Northern Hotel in Billings was a “way of this state open to the public” within the statutory
definition of § 61-8-101(1), MCA, notwithstanding that patrons could obtain access only
via one ramp and only upon obtaining a ticket from a ticket booth attendant.
Peete, 224 Mont. at 162, 729 P.2d at 1271. Upon exiting the parking garage, patrons were
required to stop at the ticket booth, show the attendant his or her ticket, and pay the
appropriate fee. Peete, 224 Mont. at 159, 729 P.2d at 1269. We concluded that the paved
hotel parking garage was covered by §§ 61-8-101(1) and 61-8-401(1)(a), MCA, because
the facility had a history of use by the public, the public was encouraged to use the facility,
and the garage was fitted for public travel and in common use by the public.
Peete, 224 Mont. at 162, 159, 729 P.2d at 1270-71.
¶15 In Peete, we discussed the legislative history of § 61-8-101(1), MCA, and two
decisions of the Washington Supreme Court interpreting the Seattle city ordinance on
which § 61-8-101(1), MCA was modeled. See generally City of Seattle v. Wright,
433 P.2d 906 (Wash. 1967); City of Seattle v. Tolliver, 641 P.2d 719 (Wash. 1982). In
Wright, the Washington Supreme Court affirmed a trial court’s determination that a private,
paved thoroughfare was “adapted to and fitted for travel and was commonly used by the
public . . .” and therefore fit within the city ordinance definition of “way open to the
public.” Wright, 433 P.2d at 909. The thoroughfare’s surface was similar to nearby public
thoroughfares and the owner made no travel restrictions except a sign, reading,
“Private Thoroughfare – 10 m.p.h.,” posted at one of the four entries onto the two-block
road. The thoroughfare was regularly used by local residents and commercial vehicles for
parking and accessing homes. Wright, 433 P.2d at 909. In Tolliver, the court held the
10 ordinance definition included a private parking lot located at a major intersection because
of its easy access to adjoining streets and its history of use by bar patrons.
Tolliver, 641 P.2d at 721.
¶16 Since Peete, this Court has interpreted that private roads and parking lots satisfy the
statutory definition of “ways of this state open to the public” under § 61-8-101(1), MCA.
We held the American Bank parking lot in Livingston was a “way of this state open to the
public” because evidence demonstrated the lot, located in the middle of the active
Livingston business district, was commonly used by members of the public patronizing
nearby taverns. Santee v. State, Dept. of Justice, Motor Vehicle Div., 267 Mont. 304, 310,
883 P.2d 829, 833 (1994). Despite the fact that the lot was accessible only by an alley and
was posted with signs stating that it was private and that violators would be towed, this
Court concluded that the parking lot was fitted for public travel and in common use by the
public. Santee, 267 Mont. at 310, 883 P.2d at 833. We cited Tolliver as instructive. On
similar grounds, we have held that an unpaved business parking lot with a rough,
pothole-marked surface was a public way because the restaurant owned the parking lot,
any member of the public who patronized the restaurant could park there, and members of
the public have used the lot to sell flowers and Christmas trees, thus establishing common
use by the public. Hayes v. State, 2005 MT 148, ¶¶ 7, 20-21, 327 Mont. 346, 114 P.3d 261.
In State v. Weis, 285 Mont. 41, 945 P.2d 900 (1997), we held that a privately-owned,
non-serviced, one-lane gravel roadway connecting three residences was a “way of this state
open to the public” because it connected to a paved county road and members of the public
who were lost, simply curious about the area, or had a purpose in visiting the residences
11 served by the lane, used the roadway. We noted that “whether the residents served by
Boulder Lane consented to its use or not, the fact [was] that the lane, though private,
[was] adapted and fitted for public travel and [was] in common use by the public.”
Weis, 285 Mont. at 45, 945 P.2d at 903 (citing § 61-8-101(1), MCA). The Court further
held that “neither our statutes nor our interpretive case law require that a ‘way of this state
open to the public’ be defined so narrowly as to include only those ways or places for travel
which are legally dedicated to the public use.” Weis, 285 Mont. at 43, 945 P.2d at 902. To
that end, we determined the defendant in Schwein was on a “way of this state open to the
public when he was found in a parked vehicle in a parking lot between Moose Breath
Saloon and Magic City Welding in Billings, Montana. Schwein, ¶ 16. The defendant
owned Magic City Welding and contended that he was parked in front of his own business
in a parking space that he leased. Although the parking lot included privately leased spaces,
akin to the parking garage in Peete, we concluded it was adapted and fitted for public travel
and was in common use by the public and customers of adjoining businesses.
Schwein, ¶ 14. The District Court relied on Peete and Weis when it denied Krause’s motion
to dismiss.
¶17 Krause argues these cases are distinguishable because each of the structures,
roadways, and parking lots obviously fit within the statutory definition of “adapted” or
“fitted” for public travel and each had a history of public use and encouraged ongoing
public use. In contrast, Krause argues the parking space in question was a singular, private
parking space with no history of public use and was not intended for public use. Krause
contends that, unlike our prior cases, the facts here involve an active attempt by a private
12 property owner to keep the general public off its property, as evidenced by the Great Falls
Housing Authority posting the stall as private and warning that violators would be towed.
He maintains that the parking spot was no different than a private garage or a private
driveway because Cole’s private parking stall was not developed for widespread use, the
public was not encouraged to use the parking stall and its spaces, and only tenants could
park in the designated spaces.
¶18 We first address that in both Peete and Schwein, the facts involved privately leased
parking spots in privately owned parking lots. Here, Krause argues Cole’s parking space
was no different than a private garage or driveway, even though Cole testified that she did
not have a designated parking spot. Rather, she could park in any of the spots designated
for Parkdale tenant parking. Regardless, whether the space was private is not dispositive.
As evidenced by prior cases, a parking garage, lot, or space designated “private” does not
foreclose the conclusion that a space is “adapted and fitted” for public travel or that it is
“in common use by the public.” The plain language of the statute defining a “way of this
state open to the public” requires it be “adapted and fitted for public travel that is in
common use by the public.” We must, therefore, determine whether the parking space at
issue is “adapted and fitted for public travel” and whether it is “in common use by the
public.”
¶19 We draw on our initial discussion and precedent established in Peete to answer this
question. Peete adopted the rationale of the Washington Supreme Court’s decision in
Wright, which held that a place was “adapted and fit for public travel and in common use
by the public” when: (1) the thoroughfare was similar in surface to nearby public
13 thoroughfares; (2) the owner made no travel restrictions except a sign which read “Private
Thoroughfare – 10 m.p.h.”, posted at one of the four entries onto the thoroughfare; (3) the
thoroughfare was regularly used by local residents; and (4) commercial vehicles could park
and access the homes. These facts are identical to the facts present here. Additionally,
Peete drew on Tolliver, wherein the Washington Supreme Court concluded that the
location of the parking place near an intersection of public roads, which was easily
accessible to adjoining public streets, supported that the thoroughfare was adapted to and
fitted for travel and was commonly used by the public. Tolliver, 641 P.2d at 721-22. The
same facts present in Tolliver are present here as well.
¶20 Here, the parking space where Krause was parked is directly next to Chowen
Springs Loop, a public street, and that road’s intersection with 6th Avenue South. The
parking space in question is one of several near Chowen Springs Park, a public park. As
such, it is easily and readily accessible to the public. Indeed, Parkdale is a public housing
complex owned by the City, used by its residents, used by commercial vehicles for parking
and accessing the homes, and visitors drive on public roadways to get there. As the
District Court observed, nothing prevents the public from parking in the parking spaces
designated for Parkdale residents other than a warning that their vehicles could be towed
at their expense. Further, members of the public are free to visit Parkdale tenants or
Chowen Springs Park and can come and go as they please. Although Krause was inside a
vehicle that had a sticker authorizing the car to occupy a space designated as tenant parking,
Krause was not a Parkdale tenant but was living with his mother somewhere near
Albertsons. Thus, we conclude there was sufficient evidence for the jury to assess whether
14 the parking space at issue was adapted and fitted for public travel and in common use by
the public. Though this space may not be legally dedicated to public use, our statutes nor
our interpretive case law require such a narrow reading of “way of this state open to the
public”; whether the thoroughfare is privately or publicly owned is not dispositive of the
issue. Weis, 285 Mont. at 43, 945 P.2d at 902. When determining whether a roadway,
parking area, or any private or public area is “adapted and fitted for public travel” and “in
common use by the public,” we will look to all of the surrounding circumstances in each
case to determine whether it would be reasonable to expect a member of the public to be
using the drive and thereby entitled to the protections afforded by the State’s impaired
driving laws. We find that to be the case here.
¶21 Here, there was legally sufficient evidence for the jury to conclude that Krause was
in a vehicle “on a way of this state open to the public”; the parking place was accessed by
public roads; there was nothing physically preventing the public from using the space or
roads within the public housing complex; Krause was parked near a public park; Krause
was outside public housing, located within the City of Great Falls; and Krause himself, a
member of the public, was using the parking space. Viewing the evidence in the light most
favorable to the prosecution, the District Court did not abuse its discretion when it denied
Krause’s motion to dismiss for insufficient evidence.
15 ¶22 2. Whether the District Court abused its discretion when it denied Krause’s motion for mistrial.
¶23 Krause argues that the District Court abused its discretion when it denied his motion
to dismiss based on allegations of prosecutorial misconduct. Krause maintains the
prosecutor committed misconduct when she asked Cole whether Cole understood the
penalties of perjury, and again when the prosecutor attempted to impeach Cole with
inadmissible hearsay from the Nissan website. Krause argues the cumulative effect of this
misconduct deprived him of a fair and impartial trial as guaranteed by the
Sixth Amendment of the United States Constitution and Article II, Section 24 of the
Montana Constitution.
¶24 In denying Krause’s motion for mistrial, the District Court relied on
State v. Arlington, 265 Mont. 127, 875 P.2d 307 (1994) and State v. Campbell,
241 Mont. 323, 787 P.2d 329 (1990), but noted the absence of specific case authority
addressing a perjury warning. Both Arlington and Campbell involved a prosecutor
explicitly characterizing a witness as a “liar.” In both cases, this Court reiterated its strong
disapproval of characterizing a witness’ testimony as lies or a witness as a liar. “It is highly
improper for a prosecutor to comment about the credibility of the defendant or in any way,
to invade the province of the jury.” Arlington, 265 Mont. at 157, 875 P.2d at 325.
¶25 We employ a two-step process to review the trial court’s denial of a motion for
mistrial. Pierce, ¶ 24. First, the Court considers whether the prosecutor’s conduct was
improper; if so, we consider whether the improper conduct prejudiced the defendant’s right
to a fair trial. Pierce, ¶ 24. As such, a prosecutor’s misconduct “may be grounds for
16 reversing a conviction and granting a new trial if the conduct deprives the defendant of a
fair and impartial trial.” State v. French, 2018 MT 289, ¶ 21, 393 Mont. 364, 431 P.3d 332
(citation omitted).
¶26 We have held that “[t]he prosecutor is the representative of the State at trial and
must be held to a standard commensurate with his or her position.” State v. Lawrence,
2016 MT 346, ¶ 20, 386 Mont. 86, 385 P.3d 968. Prosecutors should not bring to the
attention of the jury matters that the prosecutor knows to be inadmissible, “whether by
offering or displaying inadmissible evidence, asking legally objectionable questions, or
making impermissible comments or arguments.” American Bar Assoc. Standards for
Criminal Justice, Prosecution Function Standards 3-6.6(d) (4th ed. 2017). “[T]he United
States Supreme Court has rightly observed that a prosecutor’s improper suggestions and
assertions to a jury ‘are apt to carry much weight against the accused when they should
properly carry none.’” Lawrence, ¶ 20 (quoting Berger v. United States, 295 U.S. 78, 88,
55 S. Ct. 629, 633 (1935)).
¶27 Krause primarily relies upon four cases to demonstrate that the prosecutor’s
invocation of possible perjury during Cole’s cross-examination constituted
misconduct: State v. Stringer, 271 Mont. 367, 897 P.2d 1063 (1995); People v. Force,
251 Cal. Rptr. 3d 834 (Cal. Ct. App. 2019); United States v. Vavages, 151 F.3d 1185
(9th Cir. 1998); and State v. Halley, 637 N.E.2d 937 (Ohio Ct. App. 1994). We find the
circumstances in Stringer, Force, and Vavages distinguishable. In Stringer, among other
misconduct, the prosecutor explicitly characterized the alleged victims as liars during
closing argument. Stringer, 271 Mont. at 379, 897 P.2d at 1070. Force and Vavages, in
17 the courts’ estimations, both involved overt threats of a perjury charge if the defendant or
the defendant’s alibi witness testified. Force, 251 Cal. Rptr. at 846; Vavages,
151 F.3d at 1190-93. No such facts exist here. The circumstances in this case are more
similar to those in Halley. In Halley, a jury convicted Halley of kidnapping, rape, robbery,
and aggravated burglary. Halley, 637 N.E.2d at 938. At trial, Halley called his wife to
testify that they were together on the evening of the crimes and then left Halley’s apartment
together the next morning. Halley, 637 N.E.2d at 939-40. During cross-examination, the
prosecutor asked Halley’s wife if anyone had explained the charge of perjury to her.
Defense counsel objected. Halley, 637 N.E.2d at 940. After a side bar, Halley’s wife
testified that she understood the charge of perjury and the consequences of such a charge,
but she stood by her testimony. Halley, 637 N.E.2d at 942. During the state’s rebuttal
case, it provided a witness who said that Halley’s wife had told him she was willing to lie
for Halley about his location on the night of the crimes. Halley, 637 N.E.2d at 940.
¶28 The Ohio Court of Appeals concluded that the trial court erred by not sustaining the
defendant’s objection to the prosecutor’s query about perjury and should have issued a
curative instruction. Halley, 637 N.E.2d at 942-43. The court stated that it is improper for
a prosecutor to imply that the witness is a perjurer; “[s]uch statements function as
backhanded impeachment as well as attempted witness intimidation and express the
prosecutor’s personal belief or opinion as to the credibility of the witness, which is
improper.” Halley, 637 N.E.2d at 942 (citations omitted). Such a warning should instead
occur outside the presence of the jury. Halley, 637 N.E.2d at 942. The court explained,
however, that a warning will constitute reversible error only when it reaches the level of
18 intimidation and interferes with the defendant’s right to present witnesses.
Halley, 637 N.E.2d at 942. Because the prosecutor’s conduct had no effect on the alibi
witness’s testimony, the court concluded the error was not prejudicial.
Halley, 637 N.E.2d at 942.
¶29 Krause argues the prosecutor’s question to Cole about whether she understood the
penalties of perjury improperly insinuated Cole was lying and was intended to intimidate
Cole and mislead the jury. We disagree. The prosecutor’s question did not reach the level
of “intimidation” nor did it interfere with Krause’s right to present witnesses. While the
prosecution’s perjury warning was “toward the outer edge of zealous advocacy,” as the
District Court noted, we do not believe counsel invaded the province of the jury by
characterizing Cole as a liar. Stringer, 271 Mont. at 381, 897 P.2d at 1072 (holding
“we will reverse a case where counsel invades the province of the jury by characterizing a
party or a witness as a liar, or [her] testimony as lies.”). Moreover, the District Court
formally ordered the State not to reference any discussion of possible perjury in its closing
argument. Even assuming these questions constituted misconduct, the prosecutor’s
question had no effect on Cole’s testimony. Halley, 637 N.E.2d at 942. Even after the
prosecutor rephrased the question, Cole stood by her testimony and maintained that she
saw the headlights flash when she unlocked the vehicle for Krause.
¶30 Krause also argues that the prosecutor committed misconduct by attempting to
impeach Cole with inadmissible hearsay. Krause relies upon United State v. Sanchez,
176 F.3d 1214 (9th Cir. 1999), to support his claim of prosecutorial misconduct sufficient
to warrant a mistrial. There, Sanchez argued that the prosecutor committed misconduct
19 during his cross-examination of Sanchez by impeaching him with his wife’s statement she
made to the deputy marshals who investigated his criminal case. Sanchez,
176 F.3d at 1221-22. The prosecutor knew that he would not be able to call Sanchez’s wife
to establish what she had told the deputy marshals. During the questioning, the prosecutor
himself disclosed what Sanchez’s wife had told the marshals to impeach Sanchez on a
specific point. Sanchez’s wife’s statement was hearsay. Sanchez, 176 F.3d at 1221-22.
The Ninth Circuit rebuked the prosecutor and concluded the prosecutor’s use of the
defendant’s wife’s extrajudicial statement to impeach the defendant was misconduct.
Sanchez, 176 F.3d at 1222. The Court explained that it is improper ‘under the guise of
artful cross-examination to tell the jury the substance of inadmissible evidence.’”
Sanchez, 176 F.3d at 1222 (quoting United States v. Hall, 989 F.2d 711, 716 (4th Cir. 1993)
(“Protections against the use of privileged and inadmissible evidence would be of little
benefit if the prosecutor were allowed, under the guise of ‘artful cross-examination’ to tell
the jury the substance of inadmissible evidence.”)).
¶31 Here, the circumstances are distinguishable from those in Sanchez. When the
prosecutor initially referenced the Nissan website, defense counsel immediately objected.
The prosecutor did not disclose any information from the website to the jury. The
District Court sustained the objection outside the presence of the jury as inadmissible
hearsay and suggested the prosecutor reframe her question. The jury was called back into
the courtroom and the prosecutor reframed the question. Unlike in Sanchez, the jury did
not hear the substance of the inadmissible evidence. Because the prosecutor did not ask
20 the question containing inadmissible hearsay, we agree with the District Court that the
prosecutor did not commit misconduct.
¶32 Finally, Krause maintains that the cumulative effect of the prosecutor’s question and
attempted reliance on inadmissible hearsay deprived him of a fair and impartial trial
because Cole’s testimony was essential to his defense and she was visibly affected by the
prosecutor’s line of questioning. But even assuming this line of questioning constituted
misconduct, which we do not, Cole stood by her testimony. Thus, Krause’s defense was
not affected. Further, Cole’s testimony was offered as a defense against the actual physical
control element of the DUI—because she had control of the key fobs, there was no way for
Krause to start the car. But this defense failed because Krause did start the car for
Officer Meek and Officer Meek found a key fob on the driver’s seat of the vehicle where
Krause had been sitting. Whether the jury believed or disbelieved Cole did not prevent the
jury from concluding that Krause was in actual physical control of a motor vehicle because
it was undisputed that Krause had a key fob in the car and was able to start the vehicle.
This satisfied the element of actual physical control, regardless of Cole’s testimony about
the key fob or Krause’s intention to drive or not drive.
¶33 For the foregoing reasons, the District Court did not abuse its discretion in denying
Krause’s motion for a mistrial.
CONCLUSION
¶34 The District Court did not abuse its discretion in denying Krause’s motion to
dismiss. The District Court did not abuse its discretion in denying Krause’s motion for
mistrial.
21 ¶35 Affirmed.
/S/ LAURIE McKINNON
We concur:
/S/ MIKE McGRATH /S/ DIRK M. SANDEFUR /S/ INGRID GUSTAFSON
Justice Beth Baker, dissenting.
¶36 I would reverse Krause’s conviction on the face of the record presented. Though I
have no argument with the Court’s analysis of the DUI statutes and our precedent, the State
simply failed to meet its burden of proving by competent evidence beyond a reasonable
doubt all elements of the offense.
¶37 In de novo review of Krause’s claim, we must determine whether “after reviewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” State v. Polak,
2018 MT 174, ¶ 34, 392 Mont. 90, 422 P.3d 112. “[T]he test is whether the facts and
circumstances are of such a quality and quantity as to legally justify a jury in determining
guilt beyond a reasonable doubt[.]” Polak, ¶ 38 (quoting State v. Fitzpatrick,
163 Mont. 220, 225, 516 P.2d 605, 609 (1973)).
¶38 In accordance with § 61-8-101(1), MCA, the District Court instructed the jury that
the State must prove that Krause was in a place “adapted and fitted for public travel that is
in common use by the public.” The Court’s summary of the record accurately portrays the
22 evidence showing, when reviewed in a light most favorable to the prosecution, that the
parking lot in which Krause was found was adapted and fitted for public travel. It was
adjacent to a public street, it was not barred by gates, and it was readily accessible to
vehicles. Unlike other cases in which we have found other private places to be “ways of
this state open to the public,” however, there was zero evidence of “common use by the
public”—a separate requirement of the statute. See, e.g., Santee, 267 Mont. at 310,
883 P.2d at 833 (citing testimony that “the lot is commonly used by members of the
public”); Peete, 224 Mont. at 162, 729 P.2d at 1270-71 (noting evidence that parking lot
had “a history of use by the public [and] the public is encouraged to use the facility”);
Weis, 285 Mont. at 45, 945 P.2d at 903 (citing evidence that members of the public used
the roadway).
¶39 Sarah Cole testified that a person must have the requisite parking sticker visibly
displayed in the windshield to use the lot; signs posted throughout the lot said,
“tenant parking only,” and warned violators that they would be “towed away at their own
expense.” Officer Meek showed no awareness of the lot’s restrictions. The State offered
no evidence that the lot had through access to another street, that members of the public
drove through the lot or used it to access other businesses or a nearby park, or that the
parking restrictions were not adhered to or enforced. That Krause was found in a vehicle
there despite not residing in the apartment complex (Opinion, ¶ 20) does nothing to show
common use by members of the public; he was in a properly marked vehicle that was
parked legitimately in a designated space within the lot. Likewise, “whether it would be
reasonable to expect a member of the public to be using the drive” (Opinion, ¶ 20) is not
23 what the statute requires. It demands proof that the road or parking area “is in common
use by the public.” Section 61-8-101(1), MCA. When the trial court allowed the case to
go the jury, it too relied only on the lot being “a fairly public setting,” commenting, “there
has been no testimony that it’s gated or that it’s blocked.” These comments
misapprehended the statute, which requires no such proof. Speculation or “[b]are suspicion
from which inferences can be drawn is insufficient for a finding of beyond a reasonable
doubt.” Polak, ¶ 38.
¶40 Without a shred of evidence that the parking lot was commonly used by the public,
there was insufficient evidence to establish all elements of the charged DUI offense. If the
evidence is legally insufficient, “the proper remedy is a judgment of acquittal.” Polak, ¶ 35.
Without reaching Krause’s second contention, I would reverse and remand for entry of that
judgment.
/S/ BETH BAKER
Justice James Jeremiah Shea joins in the Dissent of Justice Baker.
/S/ JAMES JEREMIAH SHEA