Submitted on Briefs: January 24, 2018
FROM: District Court of the First Judicial District, In and
For the County of Lewis and Clark, Cause No. ADC 2015-19
Honorable Mike Menahan, Presiding Judge
Appellant: Chad Wright, Appellate Defender, Kristina Neal,
Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana, Leo J.
Gallagher, Lewis and Clark County Attorney, Katie Jerstad,
Deputy County Attorney, Helena, Montana
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
A jury in the Lewis and Clark County Justice Court found
Mykel Thomas O'Malley guilty of driving under the
influence of alcohol (DUI) and failing to carry proof of
motor vehicle liability insurance. O'Malley appealed to
the First Judicial District Court, which affirmed his
conviction. O'Malley now appeals to this Court, claiming
that the Justice Court abused its discretion when it allowed
the testimony of Austin Roberts at trial after the State
filed notice only three days earlier that she would testify.
O'Malley and Roberts were the occupants of a car that
drove into a ditch on Green Meadow Road in the Helena Valley.
A witness discovered the car in the ditch and called 911. The
witness testified at O'Malley's trial that a female
had been in the driver's seat but took off on foot, and
that the male in the vehicle then drove out of the ditch and
away from the scene. O'Malley initially denied driving
the vehicle but later changed his story.
At his trial, O'Malley testified that he and Roberts each
had consumed two or three shots of vodka mixed with orange
juice prior to the wreck. He testified that, after the wreck,
he drove the car out of the ditch and then to a bar known as
the Liabation Station, where he chugged a bottle of vodka.
Officers who responded to the 911 call testified they found
him at the bar 10 minutes after they received the call.
O'Malley refused a breath test and field sobriety tests,
but officers obtained a warrant for a blood draw.
O'Malley's blood alcohol level measured 0.317.
All parties to this case believed Roberts would be
unavailable to testify at O'Malley's trial because
she planned to exercise her 5th Amendment right to
remain silent. Three days before trial, however, the State
submitted an amended notice of witnesses, disclosing that
Roberts may be called to testify. Over the defense's
objections that it had not been provided any statements made
by Roberts, she testified that she had been drinking with
O'Malley; they were having a fight while driving in his
car and ended up in the ditch; and he drove away.
On appeal, O'Malley argues that the "surprise"
testimony by Roberts deprived him of the ability to
effectively decide trial strategy. We affirm.
We will uphold a trial court's decision about admission
of evidence unless the court clearly abused its discretion.
State v. Strang, 2017 MT 217, ¶ 34, 388 Mont.
428, 401 P.3d 690. A trial court does not abuse its
discretion in admitting evidence when the State's failure
to disclose a witness was not willful and no prejudice
resulted. Strang, ¶ 34.
In this case, it was undisputed that Roberts was not expected
to testify at O'Malley's trial. The Justice Court
concluded that the defense nonetheless had sufficient
notice-from the time the car went into the ditch-of
Roberts's role as a witness. The District Court observed
that Roberts offered no trial testimony about
O'Malley's level of intoxication and that her
testimony about the accident and its aftermath was consistent
with that of O'Malley and the eyewitness. The court
concluded that any error in the admission of Roberts's
testimony was harmless because much of her testimony was
cumulative and it did not prejudice the defense. We agree.
O'Malley acknowledged drinking with Roberts before the
crash and admitted that he drove from the scene. Both
O'Malley and Roberts testified that they did not think
they were impaired at the time of the crash. Roberts did not
testify that O'Malley was impaired, and her testimony of
her own BAC did not amount to unfair prejudice.
We have determined to decide this case pursuant to Section I,
Paragraph 3(c) of our Internal Operating Rules, which
provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law
or by the clear application of applicable ...