No. 12395
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1973
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-VS -
DOMINIC D. LaCARIO,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t C o u r t of t h e S e v e n t e e n t h J u d i c i a l D i s t r i c t
Honorable Thomas Dignan, ~ u d g e r e s i d i n g .p
Counsel o f Record:
For Appellant :
Leonard H. Langen a r g u e d , Glasgow, Montana
F o r Respondent:
Hon. R o b e r t L. Woodahl, A t t o r n e y G e n e r a l , Helena,
Montana
J. C . W e i n g a r t n e r a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l ,
Helena ,Montana
Gordon T. White, County A t t o r n e y , a r g u e d , Glasgow,
Montana
- -
Submitted : September 25, 1973
Decided: ,.
,?R': ,? 13,ijo
PER CURIAM:
Defendant Dominic D. LaCario was convicted of two c o u n t s
of t h e unlawful s a l e of dangerous drugs i n t h e d i s t r i c t c o u r t of
Valley County. The two c o u n t s r e l a t e d t o s e l l i n g LSD t o Bradly and
Nendy Rasmussen on A p r i l 1 8 , 1972. One count concerned a s a l e made
a t t h e Clansman Lounge i n Glasgow, Montana, t h e o t h e r involved a
s a l e made a t t h e Rasmussen apartment, B-2 of t h e Lasar Apartments,
i n Glasgow.
Bradly Rasmussen age 21, was a n e n l i s t e d member of t h e
United S t a t e s Army and s t a t i o n e d i n V i e t Nam. His w i f e , Wendy
Rasmussen, age 19, r e s i d e d i n Glasgow, Montana a t apartment B-2 of
t h e Lasar Apartments. The couple had a t e n month o l d daughter.
Bradly Rasrnussen r e t u r n e d t o Glasgow on A p r i l 3 , 1972.
The following evening Wendy Rasmussen t o l d h e r husband t h a t she had
had s e x u a l r e l a t i o n s w i t h defendant LaCario and w i t h o t h e r men while
Bradly was o v e r s e a s . L a t e r t h a t evening Bradly was i n t r o d u c e d t o
defendant a t t h e Clansman Lounge i n Glasgow by Wendy. Bradly was
very f r i e n d l y toward defendant and i n v i t e d him t o t h e c o u p l e ' s
apartment f o r d i n n e r . Defendant t e s t i f i e d he accepted t h e i n v i t a -
t i o n and w h i l e a t t h e Rasmussen apartment Bradly t o l d defendant
he knew what had happened w i t h h i s w i f e and t h a t he b o r e defendant
no ill w i l l because of i t . The Rasmussens and defendant s o c i a l i z e d
on s e v e r a l occasions between t h e d a t e of ~ r a d l y ' sr e t u r n and de-
fendant's a r r e s t .
O A p r i l 1 6 , 1972, Bradly v i s i t e d t h e Glasgow p o l i c e de-
n
partment, twice a l o n e and once w i t h Wendy, and o f f e r e d t o c o o p e r a t e
w i t h t h e p o l i c e i n providing information concerning d e f e n d a n t ' s
involvement i n a b u r g l a r y o r i n drug s a l e s .
On A p r i l 1 8 , 1972, a t about 4 : 0 0 p.m. Bradly j o i n e d h i s
w i f e and defendant a t t h e Clansman Lounge. A f t e r g i v i n g Bradly
Rasnussen an LSD t a b l e t and a marijuana c i g a r e t t e , defendant t o l d
Bradly t h a t he could o b t a i n approximately 50 t a b l e t s of LSD and
would s e l l them t o Bradly.
The Rasmussens l e f t t h e Clansman Lounge and went t o t h e
police station. They showed t h e c h i e f of p o l i c e t h e LSD t a b l e t and
marijuana c i g a r e t t e and o f f e r e d t o c o o p e r a t e w i t h p o l i c e i n appre-
hending defendant w h i l e making a drug s a l e .
The p o l i c e accepted t h e o f f e r and about 9:15 p.m. three
o f f i c e r s came t o t h e Rasmussens' apartment. The Rasmussens were
given $60 i n marked b i l l s . One o f f i c e r concealed himself i n a
c l o s e t , and two o t h e r s waited i n an apartment a c r o s s t h e h a l l .
Bradly then went t o t h e Clansman Lounge and found defendant. When
t h e two r e t u r n e d t o t h e apartment, defendant took a package c o n t a i n i n g
50 LSD t a b l e t s from h i s pocket and placed i t on t h e t a b l e . Wendy
gave defendant t h e $ O provided by t h e p o l i c e .
G Defendant was
o f f e r e d a marijuana c i g a r e t t e and took a few p u f f s . Police o f f i c e r s
then e n t e r e d t h e room, a r r e s t e d defendant and s e i z e d t h e evidence.
A f t e r t h e a r r e s t a photo was taken of defendant and t h e Rasmussens
i n t h e apartment,
O t h e opening day of d e f e n d a n t ' s t r i a l t h e county a t t o r n e y
n
announced t h a t t h e testimony of p r o s e c u t i o n w i t n e s s e s Bradly and
Wendy Rasmussen would b e o f f e r e d i n t h e form of d e p o s i t i o n s "which
were taken under Court Rule and I hand t h e Court t h e A f f i d a v i t of
t h e County Attorney i n compliance w i t h t h e p r o v i s i o n s of Sec.
95-1802, paragraph ( e ) , showing t h a t t h e two w i t n e s s e s a r e i n f a c t
a b s e n t from t h e S t a t e of Montana, and t h a t t h e absence i s due t o
t h e assignment of t h e w i t n e s s Bradly I. Rasmussen i n t h e m i l i t a r y
s e r v i c e t o F o r t Bliss, Texas. II
Defense counsel o b j e c t e d contending i t was very p o s s i b l e
t h e s e two w i t n e s s e s would have v o l u n t a r i l y appeared i f r e q u e s t e d ,
and defendant was e n t i t l e d t o have t h e w i t n e s s e s p r e s e n t . The
c o u r t asked t h e county a t t o r n e y i f subpoenas had been i s s u e d f o r
these witnesses. He r e p l i e d t h a t he had n o t done s o and b e l i e v e d
under t h e terms of t h e s t a t u t e t h a t he was n o t r e q u i r e d t o do so.
The t r i a l c o u r t then allowed t h e d e p o s i t i o n s t o be read.
An a f f i d a v i t of t h e c l e r k of t h e d i s t r i c t c o u r t o f V a l l e y
County was included as a p a r t of t h e r e c o r d on a p p e a l by s t i p u l a t i o n
of the prosecution and defense. That affidavit states that on
July 18, 1972, six days subsequent to the conclusion of the trial,
Bradly and Wendy Rasmussen appeared in person in the district court
of Valley County to testify in a criminal cause entitled State of
Montana v. Joseph A. Stebleton, defendant.
Defendant here presents four issues on appeal:
1) Whether the district court erred in allowing the
testimony of the Rasmussens to be presented by deposition?
2) Whether a marijuana cigarette and a photograph of
defendant taken at the time of his arrest were properly admitted
into evidence?
3) Whether the district court erred in refusing to give
defendant's proposed instructions numbered 4 and 5 relating to
entrapment and proposed instruction number 9 relating to accomplice
testimony?
4 Whether the district court erred in denying defendant's
)
motions for a directed verdict and for a new trial?
Issue ( )
1. The state relies upon this court's decision
in State v. Zachmeier, 153 Mont. 64, 70, 453 P.2d 783, in support
of its contentions regarding this issue. A reading of Zachmeier
indicates the opposite:
"1n support of his contention that defendants have
a constitutional right to meet witnesses against him
face to face at trial so the jury can observe their
demeanor and pass upon their credibility while ob-
serving the witness on the stand, the defendant relies
primarily on the cases of State v. Storm, 127 Mont.
414, 265 P.2d 971 (1953) and State v. Piveral, 127
Mont. 427, 265 P.2d 969 (1953). It is not necessary
to hell on these authorities because this trial was
conducted under the new rules of criminal procedure.
Section 95-1802(e), R.C.M. 1947, provides:
"'At the trial or upon any hearing, a part or
all of a de osition, so far as otherwise admissible
under tIT+-- ru es of evidence, may be used if it appears:
e
That the witness is dead; or that the witness is out
of the state of Montana unless it appears that the
absence of the witness was procured by the party offering
the deposition; or that the witness is unable to attend - --
- - - -
or testify because of sickness or infirmitvr or t----- ~ tt h e
- - - - -- -- -
--
.
I 3 -- h ----
arty offering the deposition-has been unable to procure
!
h
e attendance of the witness by subpoena * **.I
I1
In our opinion what the United States Supreme
Court said in the above cited case [Mattox v.
United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.
Ed. 409 (1895)J with regard to deceased witnesses
should also apply with regard to any sworn testi-
mony where the defendant has been afforded an
oppbrtunity to cross-examine the witness and where
it has also been shown that after due diligence
the witness cannot be found, and his absence was
not procured by the party offering the testimony.
I1
Here, the uncontradicted evidence shows that
prior to the trial the witness had removed her-
self from the jurisdiction of the court, which
placed her beyond the reach of process of the court
and that after due diligence on the part of the
prosecution the residence of the witness could not
be ascertained.'"(Emphasis added)
In Zachmeier this Court clearly recognized that the exercise of
due diligence in attempting to procure personal attendance of a
prosecution witness is a prequisite to the introduction of the
witness's deposed testimony, even when the witness is out of the
state, as underlined in the above quotation.
This same issue was discussed by the Colorado Supreme
Court in Haynes v. People, 128 Colo. 565, 265 P.2d 995, 997, 44
"While depositionsare allowable in criminal cases,
the circumstances permitting their use must be
extraordinary. The necessity must be clearly estab-
lished, and the duty of showing that necessity is
the burden upon the prosecution. Reynolds v. Fitz-
patrick, 28 Mont. 170, 72 P. 510; Healy v. First
National Bank of Great Falls, 108 Mont. 180, 89 P.2d 555.
In Moormeister v. Golding, 84 Utah 324, 27 P.2d 447, 452,
the Supreme Court of that state, under a somewhat com-
parable statute, said: I It wauid therefore be error to
admit a deposition in the absence of a showing that the
person offering the deposition has used due diligence
to find him, that he could not be found, or that he was
not within the reach of process of the court."'
Montana has enacted the "Uniform Act to Secure the Atten-
dance of Witnesses from without a State in Criminal Proceedings".
Sections 94-9001 through 94-9007, R.C.M. 1947. The annotation
following section 94-9001 states that the act has also been adopted
by Texas.
The Sixth Amendment to the United States Constitution and
Art. 11, Section 24 of the Montana Constitution (Art. 111, Sec. 16,
1889 Montana Constitution), requires a greater exercise of diligence
in the attempt to procure personal attendance of a prosecution
witness than was demonstrated by the state in this case.
We find the-ning issues on appeal to be without merit
with the exception of the issue concerning denial of defense motions
and only insofar as this issue would relate to confrontation of
witnesses matter hereinabove discussed.
The marijuana cigarette, although unrelated to the charges
against defendant as an element of the offense, was so contempor-
aneous with the criminal acts for which he was charged as to be
admissible as part of the res geste, which under Montana law can
include acts as well as words. State v. Rollins, 149 Mont. 481,
428 P.2d 462; State v. Meidinger, 160 Mont. 310, 502 P.2d 58, 29
St.Rep. 861.
The photograph of defendant and the Rasmussens was relevant
and,had probative value to describe and identify the persons involved
in the criminal proceeding. State v. Harney, 160 Mont. 55, 499
P.2d 802, 29 St.Rep. 627. The fact that the persons in the photo-
graph were otherwise identified by evidence before the court makes
this photographic evidence cumulative; it is nonetheless relevant.
~efendant's offered instructions 4 and 5 relating to the
defense of entrapment were properly refused. Under Montana law
entrapment is an affirmative defense. State v. Parr, 129 Mont. 175,
283 P.2d 1086; State v. White, 153 Mont. 193, 456 P.2d 54. ~aCario's
only defense offered and relied upon throughout the trial was a
general denial of the acts charged.
Defendant's offered instruction 9 relating to accomplice
testimony was properly refused. It contained an incorrect statement
of the corroboration requirement for accomplice testimony provided
for in section 94-7220, R.C.M. 1947, and was repetitive of given
Instruction No. 7.
The judgment appealed from is reversed and this cause is
remanded for further proceedings consistent with this opinion.