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State v. French

Supreme Court of Montana

November 27, 2018

STATE OF MONTANA, Plaintiff and Appellee,
MARK T. FRENCH, Defendant and Appellant.

          Submitted on Briefs: October 17, 2018

          APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Sanders, Cause No. DC-16-75 Honorable Robert L. Deschamps, III, Presiding Judge

          For Appellant: Mark T. French, Self-Represented, Plains, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana Robert L. Zimmerman, Sanders County Attorney, Thompson Falls, Montana



         ¶1 Mark French appeals his conviction for speeding in violation of § 61-8-303(1)(b), MCA, following a trial de novo in the Twentieth Judicial District Court, Sanders County. We restate the dispositive issues as follows:

1. Did the District Court err when it did not dismiss the case for lack of particularized suspicion and for lack of corroborating evidence?
2. Does the State's comment to the jury that French already had been convicted of the charge in the Justice Court require reversal?
3. Did the District Court abuse its discretion when it did not allow French to argue that two or more witnesses must testify against a defendant in a criminal prosecution?

         ¶2 We affirm on issues one and three and reverse and remand to the District Court on issue two for a new trial.


         ¶3 On March 8, 2016, Montana Highway Patrol Trooper Zachary Rehbein cited French for exceeding the maximum speed limit by travelling eighty miles per hour in a sixty-five-miles-per-hour, night-limit zone, in violation of § 61-8-303(1)(b), MCA. Representing himself, French challenged the citation in Sanders County Justice Court. The jury found him guilty, and he appealed to the Twentieth Judicial District Court, Sanders County. French also appeared on his own behalf in the District Court.

         ¶4 Prior to trial, French filed a "Motion to Dismiss Due to Lack of Particularized Suspicion," arguing in part that: (1) he was not speeding, and Trooper Rehbein may not be credible; (2) there was no particularized suspicion for the stop because it was based solely on Trooper Rehbein's uncorroborated account of what happened; and (3) the state and federal constitutions require two witnesses to testify for a conviction. French filed multiple briefs in support of his theories of law, arguing in part that the Bible, the Montana Constitution, and the United States Constitution require more than one witness to testify against a defendant.[1] The District Court denied the motion to dismiss, reasoning that: (1) as the trier of fact, the jury would weigh the credibility of Trooper Rehbein's testimony and decide whether French was speeding; (2) the evidence supported particularized suspicion for the stop; and (3) neither the Montana Constitution nor the United States Constitution required the testimony of multiple witnesses to convict a person.

         ¶5 The District Court subsequently granted the State's motion in limine to preclude French from calling any witnesses or attempting to elicit testimony regarding his theories of what the law is or mention his theories of law in front of the jury panel. The District Court denied French's request for reconsideration based on the historical references in the Bible and Roman law of the requirement of two or more witnesses for criminal prosecution, and held that French could not to argue this theory to the jury.

         ¶6 Trooper Rehbein was the only witness at French's trial. He was patrolling in Sanders County on March 8, 2006, at approximately ten o'clock p.m., when he observed a vehicle that appeared to be speeding. Trooper Rehbein activated his radar and "checked their speed at 80 miles an hour." The speed limit was sixty-five miles per hour. He stopped the vehicle and asked the driver for his license, proof of insurance, and registration. The driver, French, provided his vehicle registration to Trooper Rehbein, but he did not have a driver's license or proof of insurance in his possession. Trooper Rehbein issued French a citation for speeding. Trooper Rehbein testified that the radar was functioning properly and that the Highway Patrol does not have the capability to connect the radar to his dash-camera system. He further testified that, customary with his practice, after completing the stop he ran his radar through a self-test to ensure it was working properly and created a "speed device log." The radar machine Trooper Rehbein used could not produce any type of printout of the clocked speed.

         ¶7 The jury found French guilty of speeding in violation of § 61-8-303(1)(b), MCA.


         ¶8 We may review claimed errors not objected to at trial that implicate an accused's fundamental rights, where failing to review the claimed error may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial proceedings, or may compromise the integrity of the judicial process. State v. Clemans, 2018 MT 187, ¶ 20, 392 Mont. 214, 422 P.3d 1210. We exercise plain error review on a case-by-case basis. Clemans, ¶ 20.

         ¶9 We review de novo a ruling on a motion to dismiss in a criminal proceeding. Statev. Burns, 2011 MT 167, ¶ 17, 361 Mont. 191, 256 P.3d 944. We review a trial court's factual findings of particularized suspicion for clear error and its application of those facts to the law for ...

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