State v. Petko

No. 13887
IN THE SUPREME COURT OF THE STATE OF MONTANA

1978

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
TERRANCE ALAN PETKO,
Defendant and Appellant.

Appeal from: District Court of the Third Judicial District,
Honorable Edward Dussault, Judge presiding.
Counsel of Record:
For Appellant:
Edward Yelsa argued, Anaconda, Montana
For Respondent :

Hon. Mike Greeley, Attorney General, Helena, Montana
Charles R. Anderson, argued, Assistant Attorney General,
Helena, Montana
John Radonich, County Attorney, Anaconda, Montana

Submitted: June 5, 1978

Filed: 3ui3 1373

Clerk
M r . J u s t i c e Gene B . Daly d e l i v e r e d the Opinion of t h e Court:

O January 6 , 1977 defendant Terrance Alan Petko was
n

a r r e s t e d and subsequently charged i n t h e D i s t r i c t Court, Deer

Lodge County, with two counts: Felony possession of marijuana

and possession with i n t e n t t o s e l l . The second count was sub-

sequently dropped during t r i a l . The case was t r i e d t o a j u r y ,

defendant was found g u i l t y and given a d e f e r r e d imposition of

sentence under t h e condition t h a t he pay $500 within s i x months.

From t h i s sentence defendant appeals and a l l e g e s s i x s p e c i f i c a -

t i o n s of e r r o r :

1. Whether t h e w a r r a n t l e s s a r r e s t of defendant was lawful?

2. Whether t h e conviction should be reversed because

evidence which was viewed by t h e jury and commented on by witnesses

was subsequently suppressed by the t r i a l judge?

3. Whether t h e f a c t t h a t defendant never e n t e r e d a formal

plea of n o t g u i l t y i s a j u r i s d i c t i o n a l d e f e c t warranting a new

trial?

4. Whether t h e s t a t e ' s expert could properly t e s t i f y t h a t

t h e evidence seized was marijuana?

5. Whether i t was e r r o r f o r t h e D i s t r i c t Court t o r e f u s e

t o give defendant's proposed i n s t r u c t i o n s 7 and 19?

6. Whether a f i n e of $500 payable w i t h i n s i x months i s a

proper condition pursuant t o a deferred imposition of sentence?

The events leading t o t h e w a r r a n t l e s s a r r e s t of defendant

Petko, were:

O f f i c e r s Bernard May and Kichard Ivankovich were d r i v i n g

south on Maple S t r e e t i n Anaconda a t approximately 11:30 p.m.,

Jaunuary 6 , 1977. Maple S t r e e t was w e l l lit by s t r e e t l i g h t s . The

o f f i c e r s were t r a v e l i n g a t approximately 10 t o 15 miles per hour.
I n f r o n t of 508 Maple t h e o f f i c e r s observed two persons approaching

a blue Rambler automobile. One person was t a l l , s l e n d e r , had

shoulder l e n g t h h a i r and was wearing a dark b l u e c o a t . The o t h e r

person was s h o r t e r and wore a l i g h t e r colored c o a t . The s h o r t e r

of the i n d i v i d u a l s was c a r r y i n g a l a r g e grocery sack and a c t e d

nervous and p e c u l i a r a t t h e o f f i c e r s drove by. The o f f i c e r s con-

tinued t o observe t h e two and saw t h e s h o r t e r man place t h e grocery

sack i n t h e s t r e e t behind t h e s h e e l of a t r u c k parked on Maple

Street. Then both i n d i v i d u a l s h u r r i e d l y g o t i n t o a Rambler auto-

mobile and l e f t i n a n o r t h e r l y d i r e c t i o n a t a high r a t e of speed.

The o f f i c e r s r e t r i e v e d t h e abandoned sack. I n s i d e t h e sack

they found 21 cellophane bags containing a substance which appeared

t o be marijuana and a metric s c a l e . The o f f i c e r s then attempted t o

f i n d t h e Rambler automobile b u t were unsuccessful. A f t e r radioing

t h e c i t y p o l i c e and t h e highway p a t r o l f o r a s s i s t a n c e t h e o f f i c e r s

returned t o t h e v i c i n i t y of 508 Maple and parked near t h e a l l e y

between Maple and E l m . Approximately f i f t e e n o r twenty minutes

a f t e r t h e i n i t i a l encounter with t h e two i n d i v i d u a l s , t h e o f f i c e r s

observed defendant coming down the a l l e y behind 508 Maple c a r r y i n g

a l a r g e grocery sack. Defendant was t a l l , had a s l e n d e r b u i l d

and was wearing the same c o l o r coat a s t h e person seen i n f r o n t of

508 Maple. The o f f i c e r s believed him t o be t h e same person they had

seen when the. f i r s t sack of marijuana was abandoned on Maple S t r e e t .

When t h e o f f i c e r s entered t h e a l l e y defendant s t a r t e d t o

run, jumped a fence and ran a c r o s s E l m S t r e e t . A s the o f f i c e r s

pursued they i d e n t i f i e d themselves and O f f i c e r Ivankovich f i r e d

a warning s h o t i n t h e a i r . Defendant s l i p p e d , f e l l t o t h e ground

and was apprehended by O f f i c e r May. The sack found i n t h e possession

of defendant a t the time of h i s a r r e s t revealed 24 cellophane bags

and one l a r g e p l a s t i c sack which contained a substance t h a t appeared

t o be marijuana.
 Chemical a n a l y s i s subsequently d i s c l o s e d t h e f i r s t

grocery sack contained 530 grams of marijuana and t h e second

grocery sack found i n possession of defendant contained 858

grans of marijuana.

A search was conducted of defendant's c a r and h i s house

a t 508 Maple b u t t h e evidence seized t h e r e i n was suppressed on

motion of defendant.

Defendant was charged with two counts:

1. Felony possession of dangerous drugs under s e c t i o n

54-133, R.C.M. 1947.

2. Criminal possession of dangerous drugs with i n t e n t

t o s e l l pursuant t o s e c t i o n 54-133.1, R.C.M. 1947.

Following t h e D i s t r i c t Court's suppression of t h e

marijuana contained i n t h e f i r s t grocery sack found i n t h e s t r e e t

t h e proseuction dismissed t h e second count s i n c e s e c t i o n 54-133.1

r e q u i r e s one kilogram o r more. T h e r e a f t e r t h e jury was admonished

t o d i s r e g a r d t h e f i r s t grocery sack of marijuana and t o consider

only t h e f i r s t count of felony possession, based upon t h e second

grocery sack of marijuana found i n t h e possession of defendant.

Defendant's conviction f o r possession of t h e second grocery

sack containing 858 grams of marijuana which was taken from de-

fendant's possession a t t h e time of h i s a r r e s t i s t h e s u b j e c t

of t h i s appeal.

I n I s s u e No. 1 defendant contends t h e a r r e s t was i l l e g a l

and t h e r e f o r e t h e search and s e i z u r e i n c i d e n t t o t h e a r r e s t was

a l s o i l l e g a l and t h e admission of t h e f r u i t s of t h e search a t t r i a l

constituted reversible error.

The c r i t e r i a f o r t e s t i n g t h e s u f f i c i e n c y of a w a r r a n t l e s s

a r r e s t , a s i n t h i s c a s e , was r e c e n t l y s t a t e d by t h i s Court i n S t a t e
v. Lenon, (1977), Mont . , 570 P.2d 901, 34 St.Rep. 1153,

1156, quoting from S t a t e v. H i l l , (1976), Mont .
-
9 550 P.2d

390, 33 S t . Rep. 496:

"'Probable cause t o a r r e s t without a warrant e x i s t s
where t h e f a c t s and circumstances w i t h i n t h e o f f i c e r ' s
knowledge and of which he had reasonably trustworthy
information a r e s u f f i c i e n t i n themselves t o warrant a
man of reasonable caution i n t h e b e l i e f t h a t an o f f e n s e
has been o r i s being committed."'

The f a c t s and circumstances w i t h i n t h e o f f i c e r s ' personal

knowledge a t t h e time of defendant's a r r e s t were:

a) Two i n d i v i d u a l s were seen emerging from 508 Maple

S t r e e t a t 11:30 p.m.;

b) Maple S t r e e t was illuminated by s t r e e t l i g h t s ;

c) The two i n d i v i d u a l s were one t a l l man, with a s l e n d e r

b u i l d , shoulder length h a i r and a dark blue c o a t , and a s h o r t e r

man with a l i g h t colored c o a t ;

d) The two men a c t e d nervous and suspicious when t h e

o f f i c e r s drove by, and t h e s h o r t e r man h u r r i e d l y placed a grocery

bag which he was c a r r y i n g behind the wheel of a Datsun pickup,

and both men jumped i n t o a Rambler automobile and l e f t a t a high

r a t e of speed;

e) The o f f i c e r s r e t r i e v e d t h e abandoned grocery bag and

found 21 cellophane bags containing a substance believed t o be

marijuana and a metric s c a l e ;

f) Both o f f i c e r s were experienced and t r a i n e d i n t h e

d e t e c t i o n of marijuana;

g) A f t e r an unsuccessful search f o r t h e Rambler automobile

t h e o f f i c e r s returned t o t h e v i c i n i t y of 508 Maple and f i f t e e n o r

twenty minutes a f t e r t h e i r f i r s t encounter, they saw defendant

walking down t h e a l l e y behind 508 Maple, c a r r y i n g a grocery bag

s i m i l a r t o t h e one previously abandoned on Maple S t r e e t ;
 h) Defendant met t h e d e s c r i p t i o n of t h e t a l l e r of t h e two

i n d i v i d u a l s who abandoned t h e marijuana found on Maple S t r e e t . He

appeared t o the o f f i c e r s t o be t h e same i n d i v i d u a l ; and

i) Upon seeing t h e o f f i c e r s defendant attempted t o escape,

and continued t o do so even though t h e o f f i c e r s ' i d e n t i f i e d them-

s e l v e s t o him.

These f a c t s and circumstances would j u s t i f y a man of

reasonable caution t o b e l i e v e t h a t an offense has been o r was

being committed and t h e r e was s u f f i c i e n t probable cause t o a r r e s t

defendant.

Defendant's a r r e s t was based upon probable cause and

t h e r e f o r e a lawful a r r e s t . The s e i z u r e of t h e grocery sack i n

h i s possession and i n p l a i n view was made pursuant t o a v a l i d

lawful a r r e s t . The D i s t r i c t Court properly denied t h e motion t o

suppress t h i s evidence.

Regarding I s s u e No. 2 , t h e t r i a l c o u r t reversed i t s r u l i n g

on t h e s t a t e ' s e x h i b i t s which consisted of t h e c o n t e n t s of t h e

f i r s t grocery bag abandoned on Maple S t r e e t and t h i s evidence was

shown t o t h e jury and commented upon by witnesses p r i o r t o i t s

exclusion. During t h e time t h e c o u r t delayed r u l i n g upon t h e

a d m i s s i b i l i t y of t h e e x h i b i t s , t h e bags of marijuana and t h e metric

s c a l e were displayed before t h e jury and commented upon by O f f i c e r

May, O f f i c e r Ivankovich and t h e f o r e n s i c chemist, Arnold Melnikoff .
O f f i c e r Ivankovich t e s t i f i e d a t length on t h e finding of t h e evidence,

t h e c o n t e n t s of the bag, and how t h e s c a l e was used t o weigh f i n e

weights. The s c a l e was a t t r i b u t e d a s having come out of t h e house

of Terrance Petko a t 508 Maple S t r e e t . The question was asked

O f f i c e r Ivankovich - " ~ o u l dt h i s be something t h a t would be used by

somebody who would be packaging i n t h e form of l i d s ? " Officer

Ivankovich answered "Yes".
 530 grams of marijuana and a weight s c a l e , s i m i l a r t o ones

t y p i c a l l y used f o r weighing marijuana f o r s a l e was displayed t o

t h e jury and commented on by s t a t e witnesses. When t h e t r i a l judge

decided t o suppress t h e above evidence he admonished t h e jury t o

d i s r e g a r d t h e f i r s t grocery sack of marijuana and t o consider only

t h e f i r s t count, felony possession of marijuana based upon t h e

second grocery sack of marijuana found i n defendant's possession.

It i s apparent t h e t r i a l c o u r t committed e r r o r by allowing

t h e jury t o view t h e evidence and permit t h e witnesses t o comment

upon i t . However, we must examine a l l of t h e circumstances

surrounding t h e e r r o r and determine i f t h e defendant's r i g h t t o a

f a i r t r i a l was s u b s t a n t i a l l y prejudiced and t h e r e f o r e e n t i t l e him

t o a new t r i a l .

The D i s t r i c t Court d i d reserve i t s r u l i n g on t h e s t a t e ' s

e x h i b i t s which c o n s i s t e d of t h e contents of t h e f i r s t grocery bag

abandoned on Maple S t r e e t . This evidence was shown t o t h e jury

and commented upon by witnesses p r i o r t o i t s exclusion.

Defendant was o r i g i n a l l y charged with two counts : felony

possession and possession with i n t e n t t o s e l l . When t h e D i s t r i c t

Court suppressed t h e marijuana contained i n t h e f i r s t grocery bag

found by t h e o f f i c e r s on Maple S t r e e t , t h e possession with i n t e n t

t o s e l l was dismissed. The conviction on appeal i s felony posses-

s i o n , which r e s u l t s from t h e possession of marijuana i n excess of

60 grams. The second grocery bag, which was i n t h e defendant's pos-

s e s s i o n a t t h e time of h i s a r r e s t , contained 858 grams of marijuana!

C e r t a i n l y t h e jury could n o t ignore t h i s evidence r e g a r d l e s s of

viewing t h e o r i g i n a l grocery bag and i t s contents. I f t h i s was

a b o r d e r l i n e case a s t o t h e amount possessed o r a s t o possession,

then defendant may have a l e g i t i m a t e argument. But i n l i g h t of t h e

abundance of evidence presented a g a i n s t him on t h e felony possession
charge, t h e r e i s l i t t l e persuasion i n t h e argument t h a t defendant

i s e n t i t l e d t o a new t r i a l . S t a t e v. Bradford, (1978), Mont .
35 S t . Rep.

I s s u e 3. I t appears t h a t t h e formal e n t r y of a plea by t h e

defendant was never completed. Defendant contends t h i s o v e r s i g h t

on t h e p a r t of t h e D i s t r i c t Court r e q u i r e s a r e v e r s a l of h i s con-

v i c t i o n even though defendant was represented by counset a t a l l

times, was informed of t h e charges a g a i n s t him and t r i e d by a jury

of h i s peers.

This contention i s answered by s e c t i o n 95-1608, R.C.M.

1947, which provides:

''No i r r e g u l a r i t y i n t h e arraignment which does n o t
a f f e c t t h e s u b s t a n t i a l r i g h t s of t h e defendant s h a l l
a f f e c t t h e v a l i d i t y of any proceeding i n t h e cause i f
t h e defendant pleads t o t h e charge o r proceeds t o t r i a l
without o b j e c t i n g t o such i r r e g u l a r i t y . " (Emphasis
supplied. )

The Revised Commission Comment t o s e c t i o n 95-1608 s t a t e s :

"The r e a l question i n a l l c r i m i n a l cases on appeal
i s whether t h e s u b s t a n t i a l r i g h t s of t h e defendant
have been adversely a f f e c t e d . The purpose of t h i s
s e c t i o n i s t o prevent r e v e r s a l where t h e c o u r t has
s t r a y e d from t h e procedure s e t f o r t h , b u t t h e f a i l u r e
has n o t hindered t h e defense.

"The burden i s upon t h e defendant t o o b j e c t , i f any
i r r e g u l a r i t y i n connection with t h e arraignment
i s going t o a f f e c t h i s defense. This does n o t
override any of t h e defendant's s u b s t a n t i a l c o n s t i -
t u t i o n a l r i g h t s even though n o t objected to."

The defendant d i d n o t o b j e c t t o any i r r e g u l a r i t y before

proceeding t o t r i a l and we f i n d no p r e j u d i c e a r i s i n g from t h i s -

irregularity.

Issue 4 . Defendant argues t h e c o u r t e r r e d i n allowing

e x p e r t testimony a s t o t h e substance found i n t h e grocery bags

being marijuana. He argues t h i s testimony embraced an u l t i m a t e

i s s u e t o be decided by t h e jury. There i s no d i s p u t e t h a t M r .

Melnikoff was q u a l i f i e d a s an expert i n h i s f i e l d of f o r e n s i c
chemistry and was t e s t i f y i n g a s an e x p e r t witness when he s t a t e d

t h a t i n h i s mind he had no doubt t h e evidence seized was marijuana.

This was h i s opinion based on t h e t e s t s he ran on t h e substance

seized and such testimony was properly received.

Rule 704, Montana Rules of Evidence, s p e c i f i c a l l y s t a t e s :

"Testimony i n t h e form of an opinion o r inference
otherwise admissible i s n o t objectionable because
i t embraces an u l t i m a t e i s s u e t o be decided by t h e
t r i e r of f a c t .'I

Though t h e Montana Rules of Evidence were n o t i n e f f e c t a t t h e time

of t h i s t r i a l Rule 704 i s merely a restatement of and i s not

intended t o change e x i s t i n g Montana law. A s Commission Comment t o

Rule 704 s t a t e s :

"* * * Its a f f e c t i s t o specifically abolish the
r u l e a g a i n s t opinions on u l t i m a t e i s s u e s of f a c t ,
n o t c u r r e n t l y followed i n Montana. Therefore,
t h i s r u l e i s c o n s i s t e n t with e x i s t i n g Montana
law. Kelly v. John R. Daily Co., 56 Mont. 63,79,
181 P. 326 (1919); S t a t e v. Shannon, 95 Mont.
280, 286, 26 P.2d 360 (1933); S t a t e v. Campbell,
146 Mont. 251, 258, 405 P.2d 978 (1965); Rude
v. Neal, 165 Mont. 520, 525, 530 P.2d 428 (1974);
and McGuire v. Nelson, 167 Mont. 188, 536 P.2d 768,
(1975) .'I

A s t h i s Court s t a t e d i n McGuire v. Nelson, (1975), 167 Mont. 188,

200, 536 P.2d 768, i n r e j e c t i n g t h e t e s t of whether t h e opinion

invades t h e province of t h e jury:

"The t r u e t e s t would seem t o be whether t h e s u b j e c t
i s s u f f i c i e n t l y complex so a s t o be s u s c e p t i b l e t o
opinion _evidence, and whether t h e witness i s properly
q u a l i f i e d t o give h i s opinion."

Here t h e proper i d e n t i f i c a t i o n of marijuana r e q u i r e s

chemical t e s t i n g conducted by a q u a l i f i e d person, and Arnold Melni-

koff was properly q u a l i f i e d t o give such an opinion.

I s s u e 5. Defendant contends t h e c o u r t e r r e d i n n o t giving

h i s proposed i n s t r u c t i o n s , number 7 and number 19.

Defendant's proposed i n s t r u c t i o n number 7 reads:
 "You may not find the defendant guilty as charged
unless you have first found that, in addition to the
other elements of the crime charged, that said marijuana
admitted in evidence herein would produce a hallucin-
ogenic effect on a person, and this must be concluded
by you beyond a reasonable doubt."
~efendant's proposed instruction number 19 reads:

"The term Dangerous Drug means any depressant,
stimulant, hallucinogenic, or narcotic drug.

"A hallucinogenic drug is a drug which produces
hallucinations, that is sensory perceptions not
founded upon subjective reality."

Defendant was convicted of felony possession of dangerous
drugs pursuant to section 54-133, R.C.M. 1947. Section 54-133
prohibits the possession of any dangerous drug, as defined in

action 54-301, R.C.M. 1947. Section 54-301(5) defines "Dangerous

drug1' as any drug substance, or immediate precursor in Schedules

I through V. Schedule I, found in section 54-305, lists marijuana

as a dangerous drug.

Marijuana is grouped with hallucinogenic drugs, but this

does not call for the trier of fact to make a specific finding

as to its hallucinogenic capabilities. The legislature has made
that determination.

The determination for the trier of fact is whether the

substance introduced at trial is in fact marijuana, as defined
by section 54-301(16), which states:
"Marijuana (marihuana) means all plant material from
the genus cannabis containing tetrahydrocannabinal
(THC) or seeds of the genus capable of germination."
The presence of THC is essential and this the reason for and the
necessity of chemical analysis. The jury is not required to find

that marijuana admitted into evidence is hallucinogenic but only
that it meets the definition of section 54-301(16). The District

Court's Instruction No. 8 fully explained the elements of this

offense.
 Therefore, t h e D i s t r i c t Court properly denied t h e

defendant's proposed i n s t r u c t i o n s r e q u i r i n g t h e jury t o f i n d

t h a t t h e marijuana would produce an hallucinogenic e f f e c t and

d e f i n i n g t h e term hallucinogenic.

Issue 6 . Whether t h e D i s t r i c t Court committed e r r o r i n

imposing a f i n e of $500, payable within s i x months a f t e r May 31,

1977, a f t e r defendant was found g u i l t y of c r i m i n a l possession of

dangerous drugs and t h e c o u r t deferred t h e imposition of sentence.

W hold t h e imposition of a $500 f i n e o r payment a s a
e

condition of probation a f t e r deferred imposition of sentence t o

be a n u l l i t y and of no f o r c e o r e f f e c t and t h a t t h e same be vacated

and s e t a s i d e t o conform with t h i s C o u r t ' s Opinion i n S t a t e v.

Merlin Babbit , (1978), Mont .
-9 574 P.2d 998, 35 St.Rep.

154.

The judgment of t h e D i s t r i c t Court i n a l l o t h e r r e s p e c t s i s

af firmed.

Justice

W Concur:
e

Chief J u s t i c e