State v. Stever

No. 86-107

I N THE SUPREME C U T O THE STATE O MONTANA
O R F F

1987

STATE O MONTANA,
F

P l a i n t i f f and Respondent,
-vs-

RALPH STEVER,

Defendant and A p p e l l a n t .

APPEAL FROM: D i s t r i c t Court of t h e Nineteenth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f L i n c o l n ,
The Honorable R.D. M c P h i l l i p s , Judge p r e s i d i n g .

COUNSEL O RECORD:
F

For Appellant:

David W. Harman a r g u e d , Libby, Montana

F o r Respondent :

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Clay R . S m i t h , A s s t . A t t y . G e n e r a l ; Edward M. Dobson
a r g u e d , L e g a l I n t e r n , H e l e n a , Montana
William A. Douglas a r g u e d , L i n c o l n County A t t o r n e y ,
Libby, Montana

Submitted: J a n u a r y 2 2 , 1987
Decided: F e b r u a r y 1 3 , 1987
Mr. Justice William E. Hunt, Sr. delivered the Opinion of the
Court.

This is an appeal of a criminal conviction arising from
the Nineteenth Judicial District, in and for Lincoln County,
Montana. Defendant was convicted of the felonious sale of
dangerous drugs and now appeals. We affirm.
On appeal, defendant raises two issues. The first is
whether the District Court erred by allowing Paddy Calabrese
to testify about statements made by John Loomis implicating
defendant as the drug supplier. The second issue is whether
the District Court erred in its circumstantial evidence jury
instruction.
This case began with an undercover narcotics
investigation conducted in Lincoln County, Montana, in 1983.
County Attorney William Douglas hired Paddy Calabrese, a
private investigator from Spokane, Washington, to undertake
this investigation.
From the inception of the operation, the prime targets
of this investigation were John and Debbie Loomis, a married
couple living in or near Libby, Montana. Calabrese
accordingly contacted the Loomises, pretending to be a real
estate developer from Seattle. This relationship soon
blossomed to the point that Calabrese made a series of minor
narcotics purchases from the Loomises.
Calabrese then entered into an agreement with John
Loomis for Loomis to sell Calabrese two kilograms of cocaine
for $58,000 per kilo. During the course of these
negotiations, Calabrese came to believe that the cocaine
would be supplied by the defendant, Ralph Stever.
The sale of the first kilo was scheduled for August 5,
1983. Prior to this purchase, Lincoln County Sheriff's
Deputies gave Calabrese money for the purchase. The officers
had recorded the serial numbers of the bills, but had not
marked them with any tracing element.
According to his testimony at trial, Calabrese arrived
at the Loomis residence with the purchase money at
approximately 8:30 on the night of August 5. He showed
Loomis the purchase money in his briefcase and a brief
discussion followed. Approximately twenty minutes after
Calabrese's arrival, Loomis left his residence in a vehicle,
for a place unknown to Calabrese, to pick up the cocaine.
After approximately another twenty minutes, Loomis returned
and informed Calabrese that the price had increased to
$62,500 per kilo, and that half of that price was due in
advance. Calabrese gave Loomis $30,000 and Loomis again
left.
Loomis returned in approximately twenty-five minutes
and offered Calabrese two bags containing cocaine. Calabrese
accepted the bags and paid Loomis the balance of $32,500.
Calabrese then left the Loomis residence and signalled the
Sheriff's deputies. Again, during the sale, Calabrese came
to conclude that Stever supplied the cocaine.
Upon their arrest of Loomis, the Sheriff 's deputies
discovered that he did not have in his possession all of the
initial $30,000 advance money given him by Calabrese. When
asked the location of the missing money, Loomis named several
possible locations where it might be found. The first of
these locations which the deputies checked was the residence
of one Tom Hileman.
Approximately fifteen minutes after their arrival at
the Hileman residence, the police discovered Stever hiding in
the bushes at the side of the house and promptly placed him
under arrest. Officer Neil Bauer later testified at trial
that when he questioned Stever subsequent to his arrest,
Stever attempted to strike a bargain for his freedom in
return for disclosing the location of the missing purchase
money. Stever denied making these comments.
Roughly three hours after Stever's arrest, a deputy
searching the area found the missing money hidden beneath
some boards in the back yard of the Hileman residence.
Police also later found in a wood stove within the Hileman
residence a paper bag similar to the one into which Loomis
had placed the missing money.
At trial, the State introduced other evidence in its
attempt to establish that Loomis received the cocaine from
Stever. Jerry Johnston testified that he (Johnston) was
living in the Hileman residence at that time and returned to
the house around 9:00 p.m. on August 5. When he arrived,
Johnston saw John Loomis on the front porch of the house
talking with Stever.
Johnston further testified that Loomis remained at the
Hileman residence for roughly ten to twenty minutes and then
departed for fifteen to twenty minutes. Johnston stated that
Loomis returned, again conversed with Stever--this time for
five or ten minutes--and then departed. While he was able to
hear Loomis and Stever talking, Johnston stated that he could
not tell what they were talking about.
The State argued that Johnston's testimony fully
corroborated the time sequence of Calabrese's testimony. The
round trip driving time between the Loomis and Hileman
residences according to the testimony is approximately seven
and one-half minutes. At trial, Stever was found guilty of
sale of dangerous drugs.
The first issue we must decide is whether the District
Court erred by allowing Calabrese to testify about statements
made by John Loomis implicating Stever as the drug supplier.
 I
In i t s prosecution of t h e defendant t h e S t a t e r e l i e d
h e a v i l y upon t h e t e s t i m o n y o f C a l a b r e s e , who r e l a t e d s e v e r a l
s t a t e m e n t s made t o him by John Loomis which i m p l i c a t e d t h e
defendant a s t h e cocaine supplier. Under t h e t e r m s o f an
e a r l i e r p l e a b a r g a i n agreement, t h e S t a t e had a g r e e d n o t t o
c a l l Loomis t o t e s t i f y a t S t e v e r ' s t r i a l . Because o f t h a t
agreement, t h e S t a t e had t o i n t r o d u c e Loomis's i n c r i m i n a t i n g
testimony through Calabrese, over the objection of the
defendant t h a t t h e use of such t e s t i m o n y v i o l a t e d b o t h t h e
h e a r s a y r u l e and t h e C o n f r o n t a t i o n C l a u s e .

A. The Challenged Testimony.

C a l a b r e s e t e s t i f i e d a t t r i a l t h a t Loomis i m p l i c a t e d t h e
defendant in several statements throughout the course of
t h e i r dealings. The f i r s t two s t a t e m e n t s were a l l e g e d l y made
on July 20, 1983, when Calabrese and Loomis were stopped
s o u t h o f Libby by r o a d c o n s t r u c t i o n and t h e d e f e n d a n t was i n
t h e c a r immediately i n f r o n t of them. Loomis f i r s t s a i d t o
Calabrese:
Stay r i g h t here. I ' m g e t t i n g o u t of t h e
car. T h a t ' s o u r elbow man, m y toot
[ c o c a i n e ] man's r i g h t h e r e i n f r o n t of
us.

Loomis then rode with defendant for a while as
Calabrese followed. After Loomis returned t o Calabrese's
c a r , Calabrese t e s t i f i e d t h a t :
Mr. Loomis s a i d t o me t h a t he j u s t g o t
c o n f i r m a t i o n from Ralph t h a t h e c o u l d g e t
a s much c o c a i n e a s we wanted t o p u r c h a s e
and he r e f e r r e d t o him - " h e ' s l i k e J e s u s
Christ. "

The remaining statements were allegedly uttered on
August 5 , 1983, t h e d a t e o f t h e s a l e :
 Mr. Loomis stated to me that the price
was $62,500.00 for a kilo and I asked
him, I think we had a conversation the
next day that the kilo would be going
down in price and he stated to me he
would need $30,000.00 up front and he
would bring a kilo back. Because that's
the way Ralph wanted to do the deal.
When John Loomis gave me the kilo, he
turned around and said a couple of ounces
were missing out of it and he would have
it replaced with the other kilo through
Ralph tomorrow.
Q. How often was Ralph's name mentioned
by Mr. Loomis in these conversations?
A. Probably the last day it was
mentioned more than any other day. I
think three times the last day.
Q. And, was it made clear to you by Mr.
Loomis as to who was the supplier of this
cocaine - who he was going to be?
A. Yes it was.
Q. And, who was that person?
A. Ralph Stever.
The first issue is whether these statements were
properly admitted.

B. The Hearsay Rule.

A review of the record reveals that the District Court,
without explaining its decision, admitted this testimony
under the coconspirator exemption to the hearsay rule. This
exemption, Rule 801 (dl ( 2 ) ( E l , states:
A statement is not hearsay if ...
[tlhe
statement is offered against a party and
is . . . a statement by a coconspirator
of a party during the course and in
furtherance of the conspiracy.
 This Court has not previously had occasion to address
the elements necessary to establish the applicability of this
rule to an alleged coconspirator's statements. We now choose
to adopt guidelines for this issue. We note initially that
this provision is identical to that found in the Federal
Rules of Evidence, and federal decisional authority is
instructive. See Snell v. Montana-Dakota Utilities Co.
(1982), 198 Mont. 56, 62, 643 P.2d 841, 844 (when a state
statute is closely modeled after a federal provision,
"reference to federal case law is appropriate and useful").
We look to federal case law, however, solely for analytical
purposes.
Before a coconspirator's statement may be admitted
pursuant to Rule 801(d) (2)( E l , the State is required to
establish a proper foundation, showing that the requisite
elements of this rule have been satisfied. Specifically, we
require that the State show (1) that a conspiracy exists,
(2) membership of the declarant coconspirator and the
defendant in such conspiracy, and (3) that the declaration
was uttered in the course of and in furtherance of the
conspiracy. See e.g., United States v. Wamochil (8th Cir.
1985), 778 F.2d 1311, 1314; United States v. Perez (9th Cir.
19811, 658 F.2d 654, 658.
The District Court, pursuant to Rule 104, M.R.Evid., is
required to determine whether the requirements of Rule
801 (d)(2) (E) have been met. In reaching this determination,
we now require that before such testimony be admitted, the
District Court find that a conspiracy exist by a
preponderance of the independent evidence. Stated
differently, we require that the State show the existence of
the conspiracy by a preponderance of the evidence independent
and exclusive of the coconspirator's statement itself.
While we note that the order of proof is typically
within the discretion of the trial judge, we further require
that the District Court make this admissibility determination
prior to the introduction of the alleged coconspirator's
statement.
On appeal, defendant essentially challenges only the
District Court's ability to find the existence of a
conspiracy. Our review of the record, however, persuades us
that the State presented sufficient evidence to satisfy this
requirement. There exists sufficient evidence, independent
of Loomis's alleged statements, to find by a preponderance of
the evidence that a conspiracy existed.
The existence of a conspiracy can be shown by
circumstantial evidence. State v. Fitzpatrick (1977), 174
Mont. 174, 184, 569 P.2d 383, 391. To establish a conspiracy
it is not necessary to prove by direct evidence an agreement
to commit a crime. Fitzpatrick, 569 P.2d at 391; State v.
Alton (1961), 139 Mont. 479, 504, 365 P.2d 527, 539.
In this case, the State presented Calabrese's testimony
relating Loomis's two trips taken on the night of the sale to
pick up the cocaine. This testimony, read in conjunction
with the observations of Jerry Johnston at the Hileman
residence, provides strong circumstantial proof supporting
the State's argument.
Further, the State presented the defendant's arrest
while hiding in the bushes alongside the Hileman residence
and the later discovery of the drug transaction money in
Hileman's back yard. While these two events are not
necessarily related, their relationship can be confirmed by
the testimony of Officer Bauer who stated that the defendant
offered to show Bauer the location of the money in exchange
for the defendant's release.
We acknowledge that of these two factors offered by the
State to prove the existence of this conspiracy, each, if
considered alone, might be insufficient to satisfy the
preponderance burden. Considered together, however, we find
that the District Court could have found the existence of a
conspiracy under this standard. We therefore hold that the
District Court did not err in admitting this challenged
testimony under Rule 801 (d)(2)(E).
C. Confrontation Clause.

Defendant further asserts that admission of the
challenged testimony violated his right of confrontation
guaranteed by Article 11, $ 24 of the Montana Constitution
and the Sixth Amendment of the United States Constitution
held applicable to the states through the Fourteenth
Amendment in Pointer v. Texas (1965), 380 U.S. 400, 8 5 S.Ct.
1065, 13 L.Ed.2d 923.
Defendant initially argued that the right of
confrontation is an absolute right and that no out-of-court
statements may by admitted unless the declarant is available
to testify at trial. Contrary to defendant's summary of the
law, the right of confrontation has never been held to be an
absolute right. For example, it has long been accepted that
a defendant cannot complain of the absence of a witness when
the defendant has prevented the witness from attending the
trial. See Reynolds v. United States (1878), 98 U.S. 145,
158-60, 25 L.Ed. 244. More recently, courts have recognized
that extrajudicial statements of declarants who cannot be
produced for trial are admissible as long as the defendant's
confrontation rights are substantially protected, typically
in one of two ways--either the evidence is of a type deemed
to be inherently reliable or the defendant has had a prior
opportunity to challenge the declarant's testimony. See
e.g., Ohio v. Roberts (1980), 4 4 8 U.S. 56, 100 S.Ct. 2531, 65
L.Ed.2d 597; Dutton v. Evans (1970), 400 U.S. 74, 91 S.Ct.
210, 27 L.Ed.2d 213, (plurality opinion); California v. Green
(1970), 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489; Pointer
v. Texas, supra; Mattox v. United States (18951, 156 U.S.
237, 15 S.Ct. 337, 39 L.Ed. 409. The determinative question
under this issue becomes whether the challenged statements
are so inherently reliable as to protect defendant's
confrontation rights.
The United States Supreme Court, in Ohio v. Roberts,
supra, addressed the question of whether out-of-court
statements were sufficiently reliable so as to satisfy the
right of confrontation. At issue in Roberts was a
Confrontation Clause objection to the admissibility under a
state hearsay exception of an absent declarant's preliminary
hearing testimony. The Court adopted two requirements
necessary to satisfy the Confrontation Clause. First, the
prosecution is required to demonstrate the unavailability of
the declarant, and second, the prosecution must show that the
declarant's out-of-court statements bear "adequate 'indicia
of reliability.'" The Court added that "[rleliability can be
inferred without more in a case where the evidence falls
within a firmly rooted hearsay exception. In other cases,
the evidence must be excluded, at least absent a showing of
particularized guarantees of trustworthiness." Roberts, 448
U.S. at 65-66. (Emphasis added; footnote omitted.)
The Supreme Court, however, in United States v. Inadi
(19861, U.S. 106 S.Ct. 1121, 89 L.Ed.2d 390, held
that the Confrontation Clause does not require a showing of
unavailability as a condition to admission of the
out-of-court statements of a non-testifying coconspirator.
We, of course, are not bound by Inadi, as we may interpret
our state constitution to guarantee greater rights than those
guaranteed by the federal constitution. In this case,
however, we adopt the reasoning of Inadi. To hold otherwise
and require the State to show unavailability would impose a
significant burden upon the workaday world of the criminal
justice system. Not only would imposition of such a rule add
another avenue of appellate review in these cases, an
unavailability rule would further place a considerable
practical burden upon the State. Inadi, - U.S. at - 106 ,
S.Ct. at 1128. To satisfy a Confrontation Clause challenge,
we therefore hold that the State need not demonstrate the
declarant's unavailability before an out-of-court statement
made by a non-testifying coconspirator be admitted.
We cannot dismiss this point, however, before
expressing, in the clearest possible terms, our strong
disfavor of the prosecution's possible practice of rendering
a material witness unavailable though a plea bargain and then
attempting to introduce his testimony through an evidentiary
exception. We cannot discern if that happened in this case
for the record is unclear whether the State's plea bargain
rendered Loomis unavailable only for the State or effectively
denied defendant as well an opportunity to question Loomis.
Defense counsel could have resolved this uncertainty by
attempting to call Loomis to the stand, but chose not to do
so. We caution prosecutors, however, that any use of this
practice will be judged very critically.
As to the issue of the reliability of the challenged
statements, the State asks us to adopt the Supreme Court's
language in Roberts, and presume reliabilitv where challenged
statements fall within a "firmly rooted hearsay exception. "
We refuse to do so in this case. Coconspirator statements do
not fall within a hearsay exception, but rather, a hearsay
exemption. The rationale for admitting evidence under the
rules covering hearsay exceptions differs from the rationale
used to admit coconspirator statements. Evidence falling
within the hearsay exceptions is admissible because of its
perceived special trustworthiness. However, Rule 801(d)(2)
treats coconspirator statements as a category of party
admissions. It does so because of the legal fiction that
each coconspirator is an agent of the others and that the
statements of one can therefore be attributed to all.
Admissions are admitted not because of confidence in their
inherent reliability but because a party will not be heard to
object that he is unworthy of credence. As stated by the
Advisory Committee of the Federal Rules of Evidence:
Admissions by a party-opponent are
excluded from the category of hearsay on
the theory that their admissibility in
evidence is the result of the adversary
system rather than satisfaction of the
conditions of the hearsav rule .
~ . No
- .
guarantee of trustworthiness is requirer
in the case of an admission. (Emphasis
added. )
Fed.R.Evid. 801(d)(2) Notes of Advisory Committee on Proposed
Rules.
We therefore hold that satisfaction of the requirements
of Rule 801(d) (2)(E) does not ipso facto satisfy the right of
confrontation. Rather we require a separate confrontation
clause analysis designed to guarantee the reliability of the
challenged coconspirator statements.
For this analysis we turn to the Confrontation Clause
test adopted by this Court in Fitzpatrick, 569 P.2d at 392.
The relevant criteria to be considered are (1) the
declarant's knowledge of the identity and role of the
defendant in the crime; (2) the possibility that declarant
was relying upon faulty recollection; and (3) the
circumstances under which the statements were made, possibly
indicating that the declarant might be lying about the
defendant's involvement in the conspiracy.
The other two factors listed in Fitzwatrick are
inapplicable. The fourth factor -- the possibility defendant
could have shown by cross-examination the unreliability of
declarant's statement -- has been effectively vitiated by our
adoption of the Inadi holding. The fifth factor -- whether
the testimony is so crucial to the prosecution or devastating
to the defense -- is inapplicable in this case. It was a
significant consideration in Fitzpatrick only because it
related to the jury's ability to follow the cautionary
instruction that one defendant's confession could not be used
as evidence of a codefendant's guilt. In clear contrast, the
entire purpose of Rule 801 (d)(2) ( E ) is to allow coconspirator
declarations to be used as substantive evidence of a
defendant's criminal culpability.
Applying that standard to the facts of this case, we
find that (1) Loomis clearly had personal knowledge of the
defendant and any role defendant had in the crime; (2) there
is little chance that Loomis relied upon faulty recollection
given the contemporaneousness of the statements and his close
association with defendant; and (3) Loomis had little reason
to misrepresent defendant's criminal status at the time the
statements were made.
We therefore find no violation of defendant's right of
confrontation and accordingly hold that the District Court
did not err in admitting the challenged testimony.

I1
We now consider issue two: whether the District Court
erred in its circumstantial evidence jury instruction.
Citing State v. Sheriff (1980), 188 Mont. 26, 610 P.2d 1157,
defendant offered his proposed instruction stating that the
jury must acquit the defendant if the circumstantial evidence
gives rise to any reasonable interpretation which supports
the defendant's innocence. The instruction proposed by the
State, and given by the court, however, allowed the jury to
find guilt even if defendant's theory of the case is
reasonably supported by the circumstantial evidence.
We fail to find any error in this issue. Even were we
to accept defendant's statement of the law, his proposed
instruction is warranted only where the case of the State
rests substantially or entirely upon circumstantial evidence.
Here, the State had introduced Officer Bauer's direct
evidence of defendant's statement connecting him with the
money. Second, the State introduced the direct evidence of
Loomis's statements, admissible, as we have shown, under Rule
.
801 (d)(2) ( E ) Once admitted, they could be used to prove the
truth of the matter asserted. Defendant was not entitled to
his proffered instruction, given the direct evidence in this
case.
Affirmed.

We concur: