State v. Thornton

• Court: Montana Supreme Court
• Decided: July 23, 1997
• Docket: 96-332
• Status: Published

Opinion

No. 96-332

IN THE SUPREME COURT OF THE STATE OF MONTANA

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?

2 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

3 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.

4 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.

5 We concur: