No. 87-46
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
THE STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
RICHARD McLEOD ,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Manley, Smith & Dupuis; James A. Manley, St. Ignatius,
Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Clay R. Smith, Asst. Atty. General, Helena
Larry Nistler, County Attorney, Polson, Montana
Submitted: May 14, 1987
~ecided: July 28, 1987
Filed: JUL 2 8 1987
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Defendant Richard McLeod was found guilty by a jury of
one count of criminal sale of dangerous drugs (marijuana).
The District Court for the Twentieth Judicial District, Lake
County, sentenced him to 40 years in the Montana State Pris-
on, with 10 years suspended. He appeals. We reverse and
remand for new trial.
Mr. McLeod has raised three issues on appeal. Because
we return this case for new trial, we will not address the
issue of whether the prison sentence given constitutes an
abuse of discretion. The issues we consider are:
1. Was the conduct of the county attorney prejudicial
to Mr. McLeod, thereby denying him a fair trial?
2. Did the District Court err in denying Mr. McLeodls
discovery motion for disclosure of the identity of a confi-
dential informant?
In April 1986 Mr. McLeod was charged with two counts of
criminal sale of dangerous drugs, stemming from alleged sales
to undercover agents in November and December of 1985. His
arrest was part of an areawide drug dragnet. Twenty-two
arrests were made in all. The charge arising out of the
November sale was dismissed before trial. On the remaining
charge, Mr. McLeod was offered a plea bargain of 10 years in
prison with all but 90 days suspended. The sentence would be
served in the Lake County jail. Mr. McLeod refused to accept
the plea bargain, and was the first of the dragnet defendants
to go to trial.
The trial involved the sale, in Mr. McLeodls home, of
approximately 9 grams of marijuana to an undercover agent.
The undercover agent testified at trial that a confidential
informant had arranged the transaction and accompanied him to
Mr. McLeodls residence, observing the sale. The identity of
the confidential informant was never disclosed to the de-
fense, despite its efforts to discover the informant's
identity.
Pursuant to a motion in limine, the dismissed charge
regarding the November sale was not to be discussed at trial.
Nevertheless, the county attorney asked Mr. McLeod several
questions about that event. Defense counsel objected to
these questions and the District Court sustained the objec-
tions. The county attorney also questioned Mr. McLeod about
whether he paid income taxes and about his past experience
with and knowledge of drugs.
Mr. McLeod was convicted of felony sale of dangerous
drugs. He was sentenced to 40 years in prison with 10 years
suspended.
Was the conduct of the county attorney prejudicial to
Mr. McLeod, thereby denying him a fair trial?
Mr. McLeod made a motion in limine prior to trial, to
prohibit the county attorney from mentioning or offering into
evidence any criminal or wrongful acts other than the act
which was the subject of this trial. In granting the motion,
the court stated:
The defendant's motion in limine concerning other
wrongful acts is granted. That includes any refer-
ence to any general statements of this particular
defendant with respect to whether he was or was not
known to be a drug dealer. That simply is not
relevant. This defendant is prepared to go to
trial on the single and sole issue of Count I1 of
the Information, which is whether he did or did not
on December 19, 1985 purposely or knowingly sale
[sic] marijuana to an undercover agent.
And to be consistent with the Court's ruling
with respect to dismissing Count 11, the motion in
limine precluding the State's introduction of any
evidence relating to the alleged prior act of
November 6th is granted. The motion in limine is
granted so the State is precluded from, in any
manner, introducing any evidence with respect to
the alleged sale of November 6, 1985 by Gwen Davis
or any other person.
Mr. McLeod's testimony on direct examination was very
brief. He denied that he had seen the undercover agent prior
to the initiation of these proceedings and denied that he had
made the drug sale. Cross-examination, on the other hand,
was extensive and lengthy. One of the first questions was,
"Do you recall selling marijuana to a female person on Novem-
ber 6th of 1 9 8 5 ? " This brought an immediate objection based
on the motion in limine, followed by extensive in-chambers
discussion between the attorneys and the court. The court
told the county attorney several times that he could not go
into questions on Mr. McLeod's past drug dealings. The
county attorney continued to argue the position that Mr.
McLeod was lying and that he should be allowed to ask ques-
tions on previous drug dealings to test Mr. McLeod's credi-
bility. The court correctly concluded that no general
statement by Mr. McLeod had opened the issues of his credi-
bility or character. The court specifically told the county
attorney that he could not ask Mr. McLeod if he had ever sold
drugs before.
Back in open court, the county attorney asked Mr. McLeod
several questions about his employment and friends, then
asked, "Have you ever handled or touched a bag of marijuana
in the last five years?" An objection was sustained.
The county attorney asked a series of questions about
Mr. McLeod's income as shown on his income tax, the sole
purpose of which appears to be a suggestion that he was
illegally earning his income through drug dealings. Two such
questions were: "Was a major source of your income selling
drugs?", and "Was that [selling drugs] not your source of
income in November of ' 8 5 ? "
The county attorney continued his questioning, asking a
few pages later in the transcript, "Have juveniles come to
you are [sic] house to purchase drugs?" The defense's objec-
tion was sustained. The county attorney next asked, "Would
you do anything like that [sell drugs to juveniles and oth-
ers]?" The defense's objection was sustained. Finally, the
county attorney asked, "So what you're telling me, you're
not the kind of person that would engage in that activity
[selling drugs]; is that right?" At this point, defense
counsel objected to the question and moved for a mistrial,
stating:
[tlhe basis for my objection is that the county
attorney is repeatedly and apparently deliberately
acting in contradiction of this Court's order which
has been argued extensively. And I'm going to have
no choice but to request a mistrial because of the
innuendos and the suggestions and the unfair impli-
cations that are inherent in each of the approxi-
mately a half dozen questions that the county
attorney has asked, all of which have been objected
to, all of which have been sustained.
The court sustained the objection, but denied the motion for
mistrial without further comment.
"This Court has recognized that evidence of the same
kind as that previously ruled incompetent should not be
repeatedly offered within the hearing of the jury, and if so
offered, even though rejected, may be grounds for reversal. "
(Citations omitted.) State v. Bain (1978), 176 Mont. 23, 28,
575 P.2d 919, 922. Mr. McLeod argues that by repeatedly
forcing his counsel to object to questions about his knowl-
edge and use of drugs, the county attorney led the jury to
believe that he had much to hide, denying him a fair trial.
After reading the transcript, we must agree. We conclude
that the county attorney's repeated questions on other wrong-
ful acts by Mr. McLeod violate the rule stated in Bain. We
therefore reverse the conviction and remand for a new trial.
Did the District Court err in denying Mr. McLeod's
discovery motion for disclosure of the identity of a confi-
dential informant?
We discuss this issue for the court and counsels' guid-
ance on retrial. The undercover agent testified that the
informant went with him to Mr. McLeod's house to consummate
the drug deal. Mr. McLeod argues that he had wished to rely
upon an entrapment defense at trial, but that the refusal to
allow him to speak to the informant crippled his ability to
present such a defense. The District Court denied the de-
fense's motion for disclosure of the identity of the infor-
mant, ruling that disclosure would result in "substantial
risk" to the operational effectiveness of the informant. Mr.
McLeod therefore dropped that defense prior to trial, and
relied on a defense that the events described by the under-
cover agent did not happen.
Rule 502, M.R.Evid., provides in relevant part:
(a) Rule of privilege. The United States or
a state or subdivision thereof has a privilege to
refuse to disclose the identity of a person who has
furnished information relating to or assisting in
an investigation of a possible violation of a law.
...
( c ) Exceptions and limitations.
...
(2) Testimony on relevant issue. If it
appears in the case that an informer may be able to
give testimony relevant to any issue in a criminal
case ... and the public entity invokes the privi-
lege, the court shall give the public entity an
opportunity to show facts relevant to determining
whether the informer can, in fact, supply that
testimony.
Section 46-15-324(3), MCA, provides:
(3) Disclosure of the existence of an infor-
mant or of the identity of an informant who will
not be called to testify is not required if:
(a) disclosure would result in substantial
risk to the informant or to his operational effec-
tiveness; and
(b) the failure to disclose will not infringe
the constitutional rights of the accused.
The United States Supreme Court has adopted a balancing
test for determining whether disclosure of an informant's
identity is constitutionally required. The balancing test
was described in Roviaro v. United States (1957), 353 U.S.
We believe that no fixed rule with respect to
disclosure is justifiable. The problem is one that
calls for balancing the public interest in protect-
ing the flow of information against the individu-
al's right to prepare his defense. Whether a
proper balance renders nondisclosure erroneous must
depend on the particular circumstances of each
case, taking into consideration the crime charged,
the possible defenses, the possible significance of
the informer's testimony, and other relevant
factors.
Several United States Courts of Appeals have interpreted this
rule in cases in which defendants wanted to know informants1
identities to support entrapment defenses. Illustrative of
the standard prescribed is that the defendant "must adduce
some evidence of entrapment before the government is called
upon to disclose to the defendant identity of an informant
.. .I1 United States v. Sharp (6th Cir. 1985), 778 F.2d 1182,
1187. The Eleventh Circuit ruled that " [m]ere conjecture or
supposition about the possible relevancy of the informant's
testimony is insufficient to warrant disclosure. . . The
defendant must show that the informant ' s testimony would
significantly aid in establishing an asserted defense".
United States v. Kerris (11th Cir. 1984), 748 F.2d 610, 614.
(Citations omitted.) We approve of these statements of the
standard.
The State's position that the unnamed informant was
present at the alleged drug sale by Mr. McLeod to the under-
cover agent presents the possibility that the informant would
be a material witness on an entrapment defense. However, Mr.
McLeod presented no affidavits or other evidence to support
his bald assertion that he needed to speak with the informant
to establish and support an entrapment defense. The State,
on the other hand, presented testimony by the head of the
Lake County Sheriff detective's office. He explained how
disclosure of the identity of the informant would interfere
with the informant's continued operational effectiveness. We
conclude that Mr. McLeod did not meet his burden of showing
that the informant would be a material witness whose testimo-
ny might result in exoneration, and that he did not show that
the failure to disclose the identity of the informant would
infringe his constitutional rights. We hold that the Dis-
trict Court's order permitting nondisclosure was correct.
Reversed and remanded for new trial.
/J F i c e
We Concur: Y'
Justices
Justices R.C. lJIcDonough and William E. Hunt concur in the
result but do not feel the second issue needed to be addressed
because of possible changes of circumstance on retrial.
IN THE SUPREME COURT OF T H E STATE OF MONTANA
No. 87-046
STATE OF MONTANA,
Plaintiff and Respondent,
1
v. 1 O R D E R
i
RICHARD L. McLEOD,
Defendant and Appellant.
It appearing to the Court that a modification of the
Opinion of this Court in this appeal, filed with the Clerk of
Court on July 28, 1987, is necessary,
IT IS HEREBY ORDERED that the last paragraph of Part I,
which begins on page 5 of the Court's Opinion, be amended to
read as follows:
"This Court has recognized that evidence
of the same kind as that previously
ruled incompetent should not be
repeatedly offered within the hearing of
the jury, and if so offered, even though
rejected, may be grounds for reversal."
(Citations omitted.) State v. Bain
(1978), 176 Mont. 23, 28, 575 P.2d 919,
922. Mr. McLeod argues that by
repeatedly forcing his counsel to object
to questions about his knowledge and use
of drugs, the county attorney led the
jury to believe that he had much to
hide, denying him a fair trial. After
reading the transcript, we must agree.
We conclude that the county attorney's
repeated questions on other \,r~~n~:fill
acts by Mr. McLeod violate the rule
stated in Bain. We therefore reverse
the conviction and remand for a new
trial. We point out that the county - -:-
.
attorney who prosecuted this case in ' -+a
District Court was the predecessor of
- -----
S T A T E OF iL3XTAfdbj
the respondent county attorney on the
appeal. A
A 33f;
DATED t h i s #@' day of d,
& 1987.
Mr. J u s t i c e John C. Sheehy j o i n s i n t h e f o r e g o i n g o r d e r .