State v. Webb

No. 89-413

IN THE SUPREME COURT OF THE STATE OF MONTANA
1990

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
FREDERICK ROD WEBB,
Defendant and Respondent.

APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert Keller, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Donald L. Shaffer, Attorney at Law, Libby, Montana
._
f
James A. Manley, Attorney at Law, Polson, Montana
c

LO
4 ;For Respondent:
Honorable Marc Racicot, Attorney General, Helena,
Montana
Patricia Schaeffer Jordan, Assistant Attorney
General, Helena, Montana
Scott B. Spencer, County Attorney, Lincoln County
Libby, Montana

Submitted on Briefs: April 5, 1990
Decided: May 24, 1990
Filed: *
Justice John Conway Harrison delivered the Opinion of the Court.

Defendant Frederick Webb was convicted of criminal sale of
dangerous drugs in the Nineteenth Judicial ~istrict, Lincoln
County. Defendant appeals, alleging several errors by the District
Court, including improper admission of expert opinion testimony.
We reverse and remand.
Defendant presents several issues for review. Only the
following issue will be addressed, however, since it is controlling
and we find the District Court erred:
Did the District Court improperly allow opinion testimony
by a deputy sheriff, as to the meaning and conclusions
to be drawn from a tape-recorded conversation?
This case arose out of an undercover drug investigation
conducted in Lincoln County, Montana during the summer of 1988,
which resulted in the prosecution of a number of persons for sale
of dangerous drugs. As part of the investigation the Lincoln
County Sheriff's Department hired Mike Hewson to purchase narcotics
as an undercover agent. The Sheriff's Department provided
surveillance for Hewson, who would set up a deal and then contact
either Detective Donald Bernall or Detective Klint Gassett of the
Sheriff's Department to obtain backup.
On the morning of June 27, 1988, Hewson went to the home of
Vicki LaCoss in Libby. Hewson had met with Detective Gassett who
gave Hewson five $20 bills for a drug buy and made sure Hewson was
wearing a transmitter wire. Gassett monitored the activity from
a vehicle parked some distance from LaCossfs home.
When he arrived at the LaCoss residence, Hewson, who had never
2
been there before, found Vicki LaCoss and her three-year-old
daughter watching television. A short while later the defendant
arrived, introductory pleasantries were exchanged, and defendant
and Vicki LaCoss began playing cribbage, continuing an on-going
competition. Hewson remained at the LaCoss residence for a short
time. During this time, the State alleges a drug transaction took
place where defendant sold Hewson a gram of methamphetamine
("crank1')for $90 and Hewson gratuitously shared some of the drug
with Vicki LaCoss for her part in setting up the deal. As he was
leaving the house, Hewson read the license plate number of
defendant's blue van into the surveillance transmitter and Officer
Gassett ran a check which revealed the van belonged to the
defendant. Hewson later met with Officer Bernall to give him the
drugs.
On September 14, 1988, defendant was arrested and charged by
information with two counts. The first count was dismissed, but
the second count, charging defendant with the sale of dangerous
drugs, was tried to a jury in Lincoln County on February 22-24,
1989. The State's version of what transpired on June 27, 1988
differs greatly from defendant's version. Hewson testified that
he had met LaCoss once before and had, by a telephone call, made
prior arrangements to complete a drug buy at LaCossls home on the
morning of June 27. LaCoss testified that she had not invited
Hewson to her home that morning nor had she made prior arrangements
for a drug transaction. LaCoss also stated she had not invited
defendant to her house on the morning of June 27. Defendant said
he had come to LaCossls home to inquire if she was still planning
a dinner party for that evening.
Hewson testified that he bought a "bindle'' containing one gram
of crank from defendant for $90 and that Hewson and LaCoss then
went to a back area of the house where he gave LaCoss some of the
drugs. Hewson also testified that there was some discussion
between him and the defendant regarding the sale of the crank.
LaCosslsversion of the transaction differs significantly from
Hewson's testimony. LaCoss testified that Hewson brought the drugs
to her house; that there was no conversation regarding a drug
transaction in defendant's presence; that defendant never saw or
was in any way involved in any drug transaction; and that she and
Hewson shared drugs in a back area of her house out of defendant's
presence.
Defendant testified there was no drug transaction nor was any
money exchanged in his presence. Defendant also testified he did
not see any drugs in the house nor was he aware that Hewson and
LaCoss shared drugs in another part of the house on June 27.
A tape, recorded by surveillance, of the activities at the
LaCoss home on June 27, 1988 was introduced into evidence and
played for the jury. Different versions of the recorded
conversation transcribed by the State and the defense were also
introduced. On rebuttal, the State called Officer Gassett who was
permitted, over defendant's objection, to give his opinion
regarding the meaning of certain parts of the conversation on the
tape.
 On February 24, 1989, the jury returned a verdict of guilty
from which defendant now appeals.
Did the District Court improperly allow opinion testimony
by a deputy sheriff, as to the meaning and conclusions
to be drawn from a tape-recorded conversation?
Much of the electronic surveillance tape recording was
unintelligible. Neither the State s nor the defendant s
transcribed version of the tape makes any mention of drugs or any
sort of drug transaction. The State, however, contended at trial
that parts of the conversation alluded to a drug transaction. In
an effort to support the contention the State offered the testimony
of Officer Gassett, the detective who monitored the June 27 events
at the LaCoss home by electronic surveillance.
Officer Gassett was allowed to give his opinion as to the
significance of certain parts of the recorded conversation between
Hewson, LaCoss, LaCossts three-year-old daughter, and the
defendant:
Q. And that is transcribed as Mike Hewson or
we waited for him, Vicki LaCoss?

Q. Then there is a thing by [the daughter].
Then Mike Hewson, are you waiting for him.
Vicki LaCoss, uh-huh.
Q. Okay. Does that sound to you like
conversations that would tie into a drug deal?
A. Yes, sir.
Q. And why is that?
A. Waiting for in my opinion, they are
waiting for delivery of the drug or whoever is
going to bring it over.
Q. And it says, Rick Webb says, yes, I kind
of thought that you would like that. Now, is
that consistent? Does that mean anything to
you or do you feel that has any significance?
A. I feel that it has significance.
Q. What is that?
A. In that they are talking about the price
and reference to crank; what he paid, $90.00,
comes out -- usually a lot of times, you pay
$100.00 for it.
Q. So you thought of that as being a
significant reference to price and in what
regard meaning what?
A. It is cheaper than expected.

Q. Okay. Now, when we listened to the tape
and listened to the tape, it appeared there
was people talking at that time?
A. Yes, sir.
Q. And were they talking loudly, softly or
what?
A. Softly.
Q. And is there any significance to people
talking real softly in relation to drug deals?
A. Yes, sir.
Q. What is that?
A. In that lots of times in most times that
I have been involved with drugs and when they
get down to actually talking about the drugs,
it doesn't matter where they are at, how may
people there are present, they tend to talk in
soft, low tones, not loud.
Q. Okay. And is there any significance to
people at the point of the transaction talking
softly and low tones of voice?
A. I think this is when, yes.
Q. And why is that?
A. I think this is where the drugs is being
exchanged.

Q. And then there is another thing at 55
[referring to tape recorder counter number]
then, [the daughter], and then 58 Mike Hewson,
thank you?
A. Yes, sir.
Q. Does that have any significance to you?
A. Yes, sir.
Q. What is that?
A. In that the crank, one gram of crank cost
$100.00. I had given Mike $100.00 in five
twenties and this part here relates that Rick
had given him $10.00 for $90.00 for the crank
after Mike paid a hundred dollars.
Q. Referring to anything in making the
statement saying thank you other than what we
are talking about here?
A. No, he would have been receiving the
$10.00 back from Mike in my opinion.

Q. They have transcribed as Rick Webb saying
that is a good one, Vicki and how did the
State transcribe that one?
A. From Mike Hewson and a good one, Rick.
Q. Okay. Now, the jury will have to
ultimately decide who is saying what. What is
your opinion as to what is being said?
A. A good one, Rick.
Q. By who?
 A. By Mike Hewson.
Q. Would that have any significance?
A. Yes.
Q. And what would that be?
A. That would be that at this point, he has
looked at his drugs or at the crank and the
bindle and in my opinion he is saying that it
is good.
Q. Is that consistent with what was going on
or should have been going on?
A. Yes.
Q. Is that consistent with what Mike Hewson
said went on?
A. Yes, sir.

Q. Now, first, there is a specific tone of
voice that everybody uses in this
conversation; is that correct?
A. Yes.
Q. You listened to the tape and everybody was
using a voice intonation; is that right?
A. Yes, sir.
Q. You know what I am talking about?
A. I believe so.

Q. Voices go up and down and change depending
on who they are responding to; is that right?
A. Yes.
Q. And these particular conversations
especially about Woodsy was, had a very
specific voice coloration; is that right?
A. Yes, sir.
The State does not maintain on appeal that Officer Gassett
testified as an expert witness in this matter, nor would his
testimony qualify under Rule 702 of the Montana Rules of ~vidence,
since no scientific, technical or other specialized knowledge was
necessary to assist the trier of fact in understanding the
evidence. The State does argue, however, that Officer Gassett's
testimony is admissible pursuant to Rule 701, M.R.Evid. The rule
sets forth two guidelines to be met in order for opinion testimony
to be given by lay witnesses:
If the witness is not testifying as an
expert, his testimony in the form of opinions
or inferences is limited to those opinions or
inferences which are (a) rationally based on
the perception of the witness and (b) helpful
to a clear understanding of his testimony or
the determination of a fact in issue.
Rule 701, M.R.Evid.
We find that the testimony of Officer Gassett regarding the
significance of certain parts of the tape recording fails
subsection (b) of Rule 701, M.R.Evid., in that his opinion
testimony is not "helpful to a clear understanding of his testimony
or the determination of a fact in issue." No language peculiar to
drugs or drug deals was used in the tape-recorded conversation.
The jury was capable of understanding the plain language of the
conversation without the aid of officer Gassett's opinion
testimony. Where terms are capable of being understood by the
layman, and where the jury is capable of interpreting the language
or slang involved, lay witness opinion testimony is improper, as
is the lay witness's conclusion or interpretation of the
conversation. See, United States v. Marzano (7th Cir. 1976), 537
F.2d 257; D e L o a c h v. U n i t e d S t a t e s ( D . C . Cir. 1962), 307 F.2d 653.

We reverse and r e m a n d .

y,l C h i e f Justice

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