No. 90-163
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
CURTIS ALAN PAULSON, Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kenneth R. Olson argued; Attorney at Law, Great
Falls, Montana.
For Respondent:
Marc Racicot, Attorney General, Helena, Montana;
George Schunk argued, Assistant Attorney General,
Helena Montana; Patrick L. Paul, County Attorney,
Great Falls, Montana; Stephen E. Hagerman, Deputy
County Attorney, Great Falls, Montana.
Heard: March 6, 1991
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Submitted: April 4, 1991
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],-i Decided: September 13, 1991
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
Defendant, Curtis Alan Paulson, was convicted of the offense
of criminal possession of dangerous drugs with the intent to sell,
a felony pursuant to 5 45-9-103, MCA, following a jury trial in the
District Court for the Eighth Judicial District, Cascade County.
Defendant appeals. We affirm.
The issues as restated are:
1. Must accomplice testimony as to other crimes, wrongs or
acts be corroborated before it is admissible?
2. Should this Court adopt a sufficiency of the evidence
standard of proof which must be met before evidence of other
crimes, wrongs or acts is admissible?
3. Did the District Court err when it admitted testimony of
other crimes, wrongs or acts of the defendant?
4. Was the defendant denied his right to effective assistance
of counsel under the Sixth Amendment to the United States
Constitution?
5. Was the evidence sufficient to support a verdict of guilty
on the charge of criminal possession of dangerous drugs with intent
to sell?
6. Does the sentence imposed constitute an excessive sanction
in violation of the defendant's rights under the Eighth Amendment
to the United States Constitution and Art. 11, 5 22 of the Montana
Constitution?
As background information, we summarize the evidence as
submitted by the State. Where necessary, we will set forth
2
additional information. The defendant, Curtis Paulson, ran a
marijuana importing and distribution business in Great Falls,
Montana for a period of at least ten years. This evidence showed
the following general pattern of operation. Paulson imported the
marijuana from a grower in Hawaii. The marijuana was delivered by
UPS to various addresses in Great Falls. Each package weighed from
15 to 40 pounds and consisted of compressed bales of marijuana.
The smell of the marijuana was suppressed through the use of
multiple layers of plastic wrapping, duct tape, and baking soda to
avoid detection by drug-sniffing dogs at airports.
Paulson arranged to have the marijuana packages shipped to
different addresses using incorrect first names for the recipients.
Each recipient accepted the package from UPS and then marked the
package "Return to Sender1'. The package was allowed to sit for a
few days. This precaution was intended to create an alibi if law
enforcement personnel traced the packages, obtained a search
warrant, and seized the boxes. The recipient could claim the boxes
did not belong to him because the name was incorrect and were
waiting to be picked up by UPS. After the cautionary waiting
period, Paulson either picked up the marijuana from the recipient
or left the boxes with the recipient for storage until needed for
sale. Paulson and the recipient broke up the marijuana as needed
for sale, and weighed the marijuana and placed marketable
quantities in plastic ziplock baggies.
In November, 1988,the Great Falls Police Department's drug
investigation led to a confidential informant who made several
controlled buys of marijuana from Doug Smith at his home. A search
of Doug Smith's home resulted in seizure of approximately four and
one-half pounds of marijuana, a scale, cash, plastic baggies, and
other paraphernalia typically used in sale operations. Doug Smith
gave a detailed statement to the police and identified Curtis
Paulson as his source of the marijuana. This information confirmed
other sources that had over the past several years identified to
authorities that Curtis Paulson was a major drug dealer in Great
Falls.
The State Identification Bureau tested the items seized from
Doug Smith's home and found Curtis Paulsonls fingerprints on one
of the bags of marijuana and on one of the baggies found with the
scale. Paulson presented evidence to explain his fingerprints on
the baggies found in Doug Smith's home through testimony of a
witness who had observed Paulson and Doug Smith cleaning game birds
in Doug Smith's back yard and placing the birds into baggies for
freezing.
A search of Curtis Paulsonlsresidence resulted in the seizure
of 1,000-watt grow lamps, a hood, a timer, tubing, planters, a
carbon dioxide dispenser, transformers, shipping boxes and labels,
false picture identification cards, financial and banking records,
and cash. No marijuana was found during the search.
I
Must accomplice testimony as to other crimes, wrongs or acts
be corroborated before it is admissible?
Over objections of defense counsel, the State presented
testimony from two admitted Great Falls drug dealers that detailed
Curtis Paulson's importation and distribution scheme in Great Falls
spanning at least ten years. Jar1 Garber and Dale Davidson both
had previously received UPS shipments of marijuana from Hawaii for
Paulson in a manner similar to that described by Doug Smith. The
testimony indicated that Paulson only used a recipient two or three
times and then arranged delivery to a different recipient. Both
Garber and Davidson were previous recipients of marijuana shipments
for Paulson. Neither Garber nor Davidson were involved in any
manner in the drug shipments for which Paulson was charged.
Paulson argues that 5 46-16-213, MCA, requires corroboration
of Smith's accomplice testimony to convict Paulson and therefore
the same standard should apply to the accomplice testimony of
Garber and Davidson as to other crimes, wrongs or acts. Section
46-16-213, MCA, states:
A conviction cannot be had on the testimony of one
responsible or leqallv accountable for the same offense,
as defined in 45-2-301, unless the testimony is
corroborated by other evidence which in itself and
without the aid of the testimony of the one responsible
or legally accountable for the same offense tends to
connect the defendant with the commission of the offense.
The corroboration is not sufficient if it merely shows
the commission of the offense or the circumstances
thereof. (Emphasis supplied.)
Section 46-16-213, MCA, prohibits a conviction on the
testimony of a person legally accountable for the same offense
unless that testimony is corroborated by other evidence. Neither
Garber nor Davidson were chargeable with the crimes for which
Paulson was convicted. We conclude there is no basis for applying
S 46-16-213, MCA, to the testimony of Garber and Paulson.
We hold that as to crimes, wrongs or acts other than those
upon which the defendant is charged, accomplice testimony need not
be corroborated before it is admissible.
I1
Should this Court adopt a sufficiency of the evidence standard
of proof which must be met before evidence of other crimes, wrongs
or acts is admissible?
Defendant also argues that this Court should adopt a rule that
before admitting the testimony the District Court must determine
that the sufficiency of the evidence would support a finding by a
jury that the defendant committed the other crimes, wrongs or acts.
Huddleston v. United States (1988), 485 U.S. 681. Huddleston
addressed the issue of the rule or standard to be applied in
federal courts in determining the admissibility of other crimes,
wrongs or acts evidence under Rule 404(b), Fed.R.Evid.
In Montana, the Modified Just Rule determines the
admissibility of other crimes, wrongs or acts under Rule 404(b),
M.R.Evid. State v. Matt (Mont. 1991), - P.2d -, I 48
St.Rep. 614, 616. Neither the old Just Rule under State v. Just
(1979), 184 Mont. 262, 602 P.2d 957, nor the new Modified Just Rule
in Matt incorporate a sufficiency of the evidence standard. While
developing the Modified Just Rule in Matt, this Court considered
imposing a standard of review in addition to the Modified Just Rule
and concluded that the incorporation of Rules 404(b) and 403,
M.R.Evid., into the Modified Just Rule was adequate protection
against improper admissibility of Rule 404 (b) evidence. This Court
concluded that a separate standard of review was neither necessary
nor compatible with the Modified Just Rule. Upon reconsideration
in this case we decline to impose such a standard of review to be
used in addition to the Modified Just Rule in determining the
admissibility of Rule 404(b) evidence.
Did the District Court err when it admitted testimony of other
crimes, wrongs or acts of the defendant?
The defendant objected to two aspects of other crimes
evidence. The first was the testimony by Garber and Davidson with
regard to the shipment of drugs. The second was the objection to
the testimony of Detective Lockerby that the 1,000-watt grow lamps,
hood, timer, tubing, planters, carbon dioxide dispenser, and
transformers were also evidence of a marijuana operation and
admissible as other crimes evidence. Defendant asserts the other
crimes testimony was highly prejudicial and improperly admitted
under the Just Rule. Just, 184 Mont. 262, 602 P.2d 957.
We will analyze the contentions on the part of the defendant
under the Modified Just Rule as adopted in State v. Matt. The
Modified Just Rule states:
(1) The other crimes, wrongs or acts must be similar.
( 2 ) The other crimes, wrongs or acts must not be remote
in time.
( 3 ) The evidence of other crimes, wrongs or acts is not
admissible to prove the character of a person in order
to show that he acted in conformity with such character;
but may be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
(4) Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, misleading
of the jury, considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
Element (1) of the Modified Just Rule requires that the other
crimes, wrongs or acts be similar. With regard to the testimony
of Garber and Davidson, such evidence related to Paulson's
involvement in the distribution and sale of marijuana. Such
testimony described methods of shipping marijuana from Hawaii to
the witnesses in Great Falls, in a manner directly comparable to
the method used in connection with the charged crimes as testified
to by Smith. We conclude that element (1) has been met so far as
the Garber and Davidson testimony is concerned.
Defendant argues that the evidence of the possession of grow
equipment is not similar to the charged offense. Detective
Lockerby testified the equipment included 1,000-watt bulbs and
transformers used to change voltage from 110 volts to about 400
volts as needed, because of the amount of energy required by the
light; and that grow equipment of this type and size is
circumstantial evidence of an operation consistent with the
cultivation of marijuana with intent to sell. We point out that
the evidence was admissible as a part of the corpus delicti of the
charged offenses. With regard to element (1) of the Modified Just
Rule, the method by which Paulson had the grow equipment shipped
was similar to the method by which Paulson had the marijuana
shipped from Hawaii. Detective Lockerby testified that the
shipping label on the package used for the shipping of the grow
equipment was addressed to ItJimGarber,It at a Great Falls address.
He further testified that the person who lived at that address was
"Jarel Garber.It This allowed recipient Garber to retain the
package for several days so that he could contend it was not
addressed to him should police authorities investigate. We
conclude that the admission of the grow equipment has met the
requirements of element (1) of the Modified Just Rule.
Under element (2) of the Modified Just Rule, defendant argues
that the testimony on the part of Garber and Davidson established
offenses too remote in time. Garber testified he had received a
marijuana shipment two and one-half years before trial. Davidson
testified that the defendant had been shipping marijuana from
Hawaii for at least ten years. The District Court concluded that
the testimonies showed a continuous pattern of conduct by the
defendant and were therefore admissible.
In State v. Tecca (1986), 220 Mont. 168, 172, 714 P.2d 136,
139, this Court quoted from State v. Doll (1985), 214 Mont. 390,
692 P.2d 473, stating:
Whether evidence of prior crimes is too remote is
directed to the discretion of the district court and is
a matter that goes to the credibility of the evidence
rather than its admissibility, unless the remoteness is
so great that the proffered evidence has no value.
We agree that an isolated incident from nine years ago
is too remote; however, where there is a continuing
pattern of similar conduct, the remoteness problem is
alleviated. . ..
The testimony of Garber and Davidson demonstrated that the
defendant's conduct had occurred in a consistent manner over a
period of close to ten years. We affirm the conclusion of the
District Court that the Garber and Davidson testimony was not too
remote in time under element (2) of the Modified Just Rule.
So far as the evidence on grow equipment shipment is
concerned, this evidence clearly was not remote in time. It
occurred during the course of the commission of the acts charged.
We conclude that the grow equipment evidence was not too remote in
time under element (2) of the Modified Just Rule.
The State introduced the testimony of Garber and Davidson for
the purpose of showing a common scheme, plan or system. This is
a permissible purpose under element (3) of the Modified Just Rule.
Matt, 4 8 St.Rep. at 616. We conclude that the Garber and Davidson
testimony tended to establish a plan and was properly admissible
under element (3) of the Modified Just Rule.
With regard to the grow equipment evidence, we have previously
pointed out that the method of shipment was directly comparable to
the method of shipment used with regard to marijuana. In addition,
the grow equipment of the type and size found at Paulsonls
residence is circumstantial evidence of an operation consistent
with the cultivation of marijuana with intent to sell. We conclude
that the grow equipment testimony was admissible under element (3)
of the Modified Just Rule.
With regard to element (4) of the Modified Just Rule, the
defendant argues that the probative value of the other crimes
evidence was substantially outweighed by the unfair prejudice of
its admission so the evidence should not have been admitted. We
conclude that as to the testimony of Garber and Davidson, and the
evidence of the grow equipment, because the first three elements
of the Modified Just Rule have been met, the probative value of the
evidence has been established. See State v. Ramstad (1990), 243
Mont. 162, 168, 793 P.2d 802, 806. We must next determine if
unfair prejudice under element (4) of the Modified Just Rule is
sufficient to outweigh the established probative value. In Matt,
by the adoption of the Modified Just Rule, we clarified the
procedural protections that are required under that Rule to
protect against unfair prejudice. These procedures include:
(1) Evidence of other crimes, wrongs or acts may not be
received unless there has been written notice to the
defendant that such evidence is to be introduced. The
notice to the defendant shall specify the evidence of
other crimes, wrongs or acts to be admitted, and the
specific Rule 404(b) purpose or purposes for which it is
to be admitted.
(2) At the time of the introduction of such evidence,
the trial court shall explain to the jury the purpose of
such evidence and shall admonish it to weigh the evidence
only for such purposes.
(3) In its final charge, the court shall instruct the
jury in unequivocal terms that such evidence was received
only for the limited purposes earlier stated and that the
defendant is not being tried and may not be convicted for
any offense except that charged, warning them that to
convict for other offenses may result in unjust double
punishment.
Matt, 48 St.Rep. at 616.
Defendant challenges the adequacy of the Just notices. The
State served several Just notices. The initial Just notice
generally stated that the State intended to introduce other crimes
evidence to show motive, opportunity, intent, preparation, plan,
knowledge, identity or absence of mistake or accident. Such
notices do not meet the specificity required in a Modified Just
notice. See State v. Croteau (Mont. 1991), - P.2d -, -1 48
However, subsequent Just notices did meet the requirements
of the Modified Just Rule. Two of such subsequent notices
qualified the general statement by pointing out that the State
intended to present other crimes evidence to show:
[Aldditional evidence of drug dealing which corroborates
Doug Smith's testimony to-wit: showing a common pattern
and scheme of Defendant to ship narcotics to individuals
other than himself using a different first name for that
individual; that the Defendant shipped drug paraphernalia
to [name of witness] in the same manner as shipments of
narcotics were made to other people, which ultimately
would go to Defendant. (Emphasis supplied.)
Two other notices followed the general statement with:
[Tlhe drug dealings of Curtis Paulson and his
relationship with Doug Smith, who is the State's witness
in this case, including prior shipments of marijuana sent
to Smith and other information dealing with drugs between
them. The specific actions are found in the statement
of Doug Smith taken by Detectives Larry Renman and Bryan
Lockerby on May 2, 1989, a copy of which has been
supplied to defense counsel.
Those Just notices did adequately advise the defendant as to the
matters to be included in the testimony of the other crimes
witnesses. We conclude that the first procedural requirement under
the Modified Just Rule was met in this case as to both the
testimony of Garber and Davidson, and the evidence with regard to
the shipment of grow equipment.
The District Court clearly satisfied the second procedural
requirement of the Modified Just Rule which requires the trial
court to explain to the jury the purposes of the evidence and to
admonish the jury to weigh the evidence only for such purposes.
The required admonition was given to the jury by the District
Court at all critical points and on four different occasions.. We
conclude that the second procedural requirement of the Modified
Just Rule was met.
The third procedural requirement is that the court instruct
the jury in unequivocal terms. Here, Instruction No. 16, given at
the conclusion of the trial is identical to the instruction this
Court has approved as meeting such third procedural requirement.
Tecca, 220 Mont. at 174, 714 P.2d at 140. We conclude that the
third procedural requirement of the Modified Just Rule was met.
We conclude that the procedural protections contained in the three
elements of the Modified Just Rule were met in this case.
This leaves for evaluation whether or not unfair prejudice to
the defendant outweighed the established probative value as
described in element (4) of the Modified Just Rule. 10 James Wm.
Moore, Moore's Federal Practice 5 403.10, contains an excellent
description of the nature of the unfair prejudice which is required
under element (4) of the Modified Just Rule:
To guide courts in balancing the laprobative valuew
and the Itunfair prejudicettof evidence, the Committee
states that the latter term means evidence which has Itan
undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one."
Application of this thought and the ultimate
determination of admissibility are matters left to the
discretion of the trial court and will necessarily be
decided on a case by case basis. However, by
restrictins the rule to evidence which will cause "unfair
prejudicettthe draftsmen meant to caution courts that
-
mere prejudicial effect is not a sufficient reason to
refuse admission. Probative evidence will freauentlv be
prejudicial to a party, but that does not mean that it
will cause the fact finder to qround a decision on an
emotional basis. Thus, evidence which tends to horrify,
evoke sympathy or increase a desire to punish due to a
prior act of a ~ a r t vand whose probative value is slisht
may be ~ r o ~ e r l v
excluded. (Emphasis added.) (Citations
omitted.)
After our review of the cases cited in support of the foregoing
quote from Moore's Federal Practice, we conclude that it is an
appropriate definition of unfair prejudice. We therefore adopt the
foregoing as the holding of this Court in defining unfair prejudice
under element (4) of the Modified Just Rule.
In the present case, the testimony of Garber and Davidson, and
the testimony with regard to the grow equipment was clearly
prejudicial, but because it meets other aspects of the Modified
Just Rule, that prejudice alone is not a sufficient reason to
refuse admission. We conclude that the evidence is not of the type
which would cause the jury to ground its decision on an emotional
basis. The evidence is not of the type which tends to horrify,
evoke sympathy or increase a desire to punish and whose probative
value is slight. Here both aspects of the evidence are clearly
significant to the issue of the commission by the defendant of the
charged crimes. We therefore hold that the probative value of the
Garber and Davidson testimony, and the evidence of the grow
equipment, is not substantially outweighed by the danger of unfair
prejudice or misleading of the jury under element (4) of the
Modified Just Rule.
Considering the Modified Just Rule as a whole, we conclude
that the four substantive elements of the Modified Just Rule, and
the procedural elements of the Modified Just Rule, have been
properly satisfied in this case. We hold that the testimony of
14
Garber and Davidson and the evidence as to the grow equipment was
properly admitted by the District Court as evidence of other
crimes, wrongs or acts under the Modified Just Rule.
Was the defendant denied his right to effective assistance of
counsel under the Sixth Amendment to the united States
Constitution?
Defendant presents the following examples for his argument
that he was ineffectively represented at trial: failure to
formulate a workable trial strategy, failure to present a
fingerprint expert, failure to adequately interview witnesses
before trial, failure to object to critical evidence, failure to
properly instruct the jury, and failure to present an effective
closing argument.
In State v. Kolberg (1990), 241 Mont. 105, 109, 785 P.2d 702,
704, we stated:
Ineffective assistance of counsel requires specific acts
or omissions which prejudice defendant s case and result
in the denial of a fair trial . . .
First the defendant
must show that counsellsperformance was deficient. This
requires showing that counsel made errors so serious that
counsel was not functioning as the counsel guaranteed the
defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the
defense. To show prejudice, a defendant must show that,
but for counsel's unprofessional errors, there was
reasonable probability that the result of the proceeding
would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the
outcome of the trial. (Citations omitted.)
In order for trial errors to rise to the level of ineffective
assistance of counsel, those errors must stem from neglect or
ignorance rather than from informed, professional deliberation.
State v. Morigeau (1982), 202 Mont. 36, 44, 656 P.2d 185, 189.
This Court will not second-guess counsel's trial tactics and
strategies and, where no prejudice is shown, counsel s professional
deliberations will not be questioned. State v. Stewart (1988), 235
Mont. 239, 242, 767 P.2d 296, 298. The record contains no factual
basis to support an argument that the alleged failures on the part
of defendant's trial counsel stemmed from neglect or ignorance.
Defendant fails to point to any evidence that proves his counsel's
actions were anything other than trial tactics and strategies, or
that his counsel's actions deprived him of a fair trial. We find
no merit in defendant's contention that he was deprived of his
right to effective assistance of counsel.
Was the evidence sufficient to support a verdict of guilty on
the charge of criminal possession of dangerous drugs with intent
to sell?
The defendant argues that his conviction for possession of
dangerous drugs with intent to sell was not supported by sufficient
evidence because the State failed to provide sufficient independent
corroborating evidence to support the testimony of the accomplice,
Doug Smith. In prior cases we have summarized the guidelines for
testing the sufficiency of corroborating evidence:
To be sufficient, corroborating evidence must show more
than that a crime was in fact committed or the
circumstances of its commission. It must raise more than
a suspicion of the defendant's involvement in, or
opportunity to commit, the crime charged. But
corroborative evidence need not be sufficient, by itself,
to support a defendant's conviction or even to make out
a prima facia case against him. Corroboratins evidence
may be circumstantial and may come from the defendant and
his witnesses ...
Corroborating testimony is viewed in a light most
favorable to the State. The corroborating evidence need
only tend to connect the defendant with the crime charged
and need not extend to every fact to which the accomplice
testifies. Thus, corroborating evidence is not
insufficient merely because it is circumstantial,
dis~uted,or ~ossiblyconsistent with innocent conduct;
it is the jury's duty to resolve such factual questions.
(Cites Omitted.) [Emphasis added.]
State v. Kaczmarek (1990), 243 Mont. 456, 459-60, 795 P.2d 439,
In the present case Doug Smith's testimony was corroborated
by circumstantial evidence. Two of defendant's fingerprints were
found on baggies found in Doug Smith's home that were used for
packaging and marketing the marijuana. One of these baggies
contained marijuana, the other baggie was found with other drug
paraphernalia. Telephone records of the defendant's residence
verified that six phones calls were made to the supplier in Hawaii
in the two week period prior to one of the shipments of marijuana
to Doug Smith's home.
UPS records verified Doug Smith's testimony as to the dates
of shipments and use of incorrect first names on shipping labels.
The UPS witness also testified that it takes exactly three business
days to receive a shipment from Hawaii. One of the shipments to
Doug Smith's home arrived exactly three business days following the
sixth phone call made from defendant's residence to the supplier
in Hawaii.
Doug Smith's testimony was also corroborated by the
testimonies of Garber and Davidson. Both of these witnesses gave
similar detailed accounts of the method used when they received
drug shipments from Hawaii for the defendant. Jar1 Garber
testified that he had also received a shipment of drug growing
equipment for Paulson. Shipping labels found with the growing
equipment at the residence of Paulson were addressed to ''Jimt1
Garber, 1305 5th Avenue Northwest, Great Falls, Montana.
Corroborative evidence must clearly (1) be independent, (2)
point toward the defendant's guilt, and (3) provide a legally
sufficient connection between the defendant and the offense.
Kaczmarek, 795 P.2d at 442. Here the evidence meets this three
part test, thus corroborating Smith's testimony and tending to
establish Paulson's guilt.
The proper standard of review for sufficiency of the evidence
in a criminal case is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. Kaczmarek, 795 P.2d at 442. Having determined
that Smith's testimony was sufficiently corroborated by the
physical evidence and by the corroborating testimonies of Garber
and Davidson, the essential elements of possession of dangerous
drugs with intent to sell have been met. Clearly, a rational jury
could have found the defendant guilty in this case. We hold that
the evidence was sufficient to support a verdict of guilty on the
charge of criminal possession of dangerous drugs with intent to
sell.
VI
Does the sentence imposed constitute an excessive sanction in
violation of the defendant's rights under the Eighth Amendment to
the United States Constitution and Art. 11, 5 22 of the Montana
Constitution?
Defendant received a twenty year sentence with five years
suspended. He will not be eligible for parole for five years. In
addition he was assessed a $30,000.00 fine and had his hunting
privileges suspended during the twenty year period.
Defendant's counsel prepared an affidavit containing
computations based on sentencing statistics prepared by the Montana
State Judicial Information Center outlining the sentences imposed
in 1988 and 1989 for offenses of possession of dangerous drugs with
intent to sell. Based on those statistics, defendant argues that
his sentence is especially harsh for a first time offender and
violates the United States and Montana Constitutions' prohibitions
against imposition of excessive sanctions.
Section 45-9-103(3), MCA, sets forth the sentence guidelines
for criminal possession with intent to sell. That provision
states:
A person convicted of criminal possession with intent to
sell . . . shall be imprisoned in the state prison for
a term of not more than 20 years or be fined an amount
not to exceed $50,000, or both.
The District Court stated its reasons for defendant's sentence as
follows:
1. Testimony during trial established that this was a
sophisticated operation wherein the Defendant attempted
to insulate his activities through the use of other
people. Testimony also revealed that the Defendant has
been involved in drug dealings for approximately twelve
years.
2. The Defendant had a large income which was not
explained to the Courtls satisfaction. There was
testimony at the Sentencing hearing that much of the
Defendant's income had not been reported for tax
purposes. There was further testimony that the Defendant
was engaged in money laundering.
3. The Court considered the harm to society.
4. The Court considered the recommendation contained in
the Pre-Sentence Report, but notes that the officer who
prepared the report was not present during the trial and
did not have the benefit of hearing all the testimony.
Furthermore, the officer did not have the benefit of the
testimony which the State presented during the sentencing
hearing.
5. This court heard testimony from Det. Renman, that the
total shipment containing some of the drugs introduced
at trial had a wholesale value of approximately
$27,000.00. The court is of the opinion that there
should be no profit from the illegal sale of drugs.
Furthermore, the Court feels that it is appropriate that
those dealing in drugs ought to pay for some of the costs
associated with the detection and prosecution of drug
offenders and for these reasons fined the Defendant
$30,000.00.
6. The Defendant is an admitted non-user of drugs, yet
he was convicted of possession of dangerous drugs with
intent to sell. The Defendant is not an addict dealing
to supply his own habit. The Defendant's motive is
simply money.
7. The Probation and Parole Officer recommended that the
Defendant was not to hunt with a gun during the suspended
portion of his sentence. This provision was made to
comply with Federal Laws prohibiting a convicted felon
from possessing a gun.
8. In declaring the Defendant ineligible for parole for
the first five years of his sentence it was the Courtls
intention that the Defendant serve more than a token few
months in the penitentiary. The facts and seriousness
of this case have caused this Court to be concerned. The
Defendant had a well planned operation which allowed him
to escape the law for many years. Grow lights were found
at the house of the Defendant. The State of Montana
characterized the Defendant as a "major drug dealer".
The Court cannot fix any mitigating factors other than
this is the first time the Defendant has been caught and
sentenced.
These reasons set forth by the District Court are well-reasoned and
supported by the evidence. The sentence itself is within the
guidelines set forth in 5 45-9-103(3), MCA. We hold that the
sentence imposed does not constitute an excessive sanction in
violation of the defendant's rights under the Eighth Amendment to
the United States Constitution and Art. 11, 5 22 of the Montana
Constitution.
Affirmed.
Gd~/ ustice
We Concur: 0
+?L*T~&Chief Justic
Justices
Justice Terry N. Trieweiler dissenting.
I dissent from the majority s conclusion that accomplice
testimony regarding past crimes, wrongs, or acts of the defendant,
other than those charged, need not be corroborated before it is
admissible. I conclude, based upon established precedent and
logic, that it does need to be corroborated; and since such
testimony was admitted in this case without corroboration, I would
reverse the conviction of the defendant. For that reason, I would
not reach the merits of the other issues raised by the defendant
on appeal.
In Huddleston v. U i e S a e (1988), 485 U.S. 681, 99 L.Ed.2d 771,
ntd tts
108 S.Ct. 1496, in discussing the circumstances under which
evidence of other acts could be admitted under Fed.R. Evid. 404 (b),
the United States Supreme Court stated that:
We conclude that such evidence should be admitted if
there is sufficient evidence to support a finding by the
jury that the defendant committed the similar act.
Huddleston, 485 U.S. at 685, 99 L.Ed.2d at 779-80, 108 S.Ct. at 1499.
Under Montana law, the testimony of a co-conspirator,
unsupported by independent corroborating evidence, is not
sufficient to convict a defendant of the criminal act with which
he is charged. The reasons are obvious.
Testimony of co-conspirators is among the most unreliable
forms of evidence available. Co-conspirators to a criminal act
are, by definition, dishonest people to begin with. Added to their
presumed character weaknesses there are invariably inducements for
their testimony, such as lenient or favorable treatment from the
State for their own criminal conduct.
For example, in this case all three of the co-conspirators who
testified that the defendant engaged in prior criminal acts had
been caught selling drugs and bargained with the State of Montana
for lenient treatment in exchange for their testimony against the
defendant. Smith was charged with the same crime for which the
defendant was convicted. The defendant was sentenced to 20 years
in prison with five years suspended and required to serve a minimum
of five years without parole. Smith was sentenced to five years
in prison with all five years suspended.
Dale Davidson was also charged with possession of drugs with
intent to sell, but was promised that in exchange for his testimony
the government would recommend a maximum sentence of 18 months, as
opposed to the five years to which he would be exposed without
favorable testimony.
Jar1 Garber was promised that in exchange for his testimony
he would be charged with only one attempt to sell cocaine, rather
than three. At the time of defendant's trial, that charge had
still not been filed. He gave the following testimony:
Q. And what did they say they would do for you?
A. Drop two counts of my sales.
Q. Sale of cocaine?
A. Correct.
Q. Are you generally aware of the penalty for
possession of cocaine?
A. I am.
A. Yeslitis.
Q. Have you been charged?
A. No, I have not.
Q. So they got ya. They got you right where they want
you?
A. (Nods head. )
If an attorney practicing civil law in the State of Montana
went to the lengths that the State regularly goes to in order to
induce testimony from co-conspirators he would be subject to
disciplinary proceedings for violation of Rule 3.4 of Montana's
Rules of Professional Conduct. Yet, such conduct is freely
permitted in the prosecution of criminal cases when inducing
testimony of witnesses as disreputable as those who testified
against the defendant in this case.
The majority seeks to distinguish testimony of co-conspirators
when used simply to prove uncharged prior crimes from testimony of
co-conspirators which is offered to prove the crime that has been
charged. However, the distinction is one of form rather than
substance. The fact is that the evidence of prior crimes was
offered in an effort to convict the defendant of the crime charged,
even though we have a stated public policy in 5 46-16-213, MCA,
that such evidence is unreliable without corroboration.
The majority has offered no authority for permitting
uncorroborated testimony of an accomplice to prove prior crimes,
when by statute, such testimony could not have been offered to
prove the crime charged. However, there is prior authority for
excluding this evidence.
Texas has a statute similar to 9 46-16-213, MCA. Article
38.14, Tex. Code Crim. Proc. Ann., dealing with Testimonv of
Accom~lice,states:
A conviction cannot be had upon the testimony of an
accomplice unless corroborated by other evidence tending
to connect the defendant with the offense committed; and
the corroboration is not sufficient if it merely shows
the commission of the offense.
.
The Texas Court of Appeals, in Bustamante v S a e (Tex.Ct App.
. tt
1982), 653 S.W.2d 846, 849, rev. d s i s d 702 S.W.2d 193 (Tex. Crim.
imse
App. 1985), concluded that based on that state's similar statute
the trial court erred when it admitted extraneous offenses based
solely upon uncorroborated testimony of an accomplice. The court
in Bustamante relied upon the 1931 case of Welh v. State (1931),
118 Tex. Crim. 355, 42 S.W.2d 607, which "held that it was
necessary to corroborate evidence of extraneous offenses in
reversing a conviction for possession of liquor for purposes of
sale.It Bustamante, 653 S.W.2d at 848-49. Furthermore, the court in
Bustamante stated:
We conclude that the intent of the legislature in
enacting Sec. 38.14 Tex. Code Crim. Pro. Ann. was to make
its terms applicable to extraneous offenses as well as
to primary offenses. Therefore, in the case before us
it was error to admit this uncorroborated evidence of
extraneous offenses and, having admitted it, to refuse
to give the jury a proper limiting charge.
It makes no sense to establish by statute a public policy to
the effect that people of Montana cannot be convicted of a criminal
charge based on the uncorroborated testimony of an alleged
co-conspirator, but then allow the State to circumvent that public
policy by convicting people with uncorroborated testimony of
co-conspirators regarding acts that are not even the subject of the
State's charges. Either the testimony is unreliable or it is not.
It cannot be unreliable if offered to directly convict the
defendant, and reliable if offered to indirectly convict the
defendant.
For these reasons I would reverse the judgment against the
defendant and remand this case to the District Court for retrial.
During retrial I would require that the testimony of the people who
claim to have been partners in the defendant's sale of drugs either
Tfi~&&
be corroborated or excluded.
1
Ju tice
I concur with the foregoing dissent of Justice Trieweiler.