No. 90-338
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF
-v-
DAVID VAN VOAST,
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:
James A. Manley; Manley Law Offices; Polson, Montana
For Respondent:
Marc Racicot, Attorney General; Kathy Seeley, Asst.
Atty. General; Helena, Montana
Larry Nistler, Lake County Attorney, Robert S.
Anderson, Lake County Dep. Atty.;Polson, Montana
Submitted on Briefs: January 3, 1991
Decided: February 12, 1991
Filed: (.
Justice Fred J. Weber delivered the Opinion of the Court.
Defendant, David Van Voast, was convicted of the offense of
criminal possession of dangerous drugs, a felony pursuant to 5 4 5 -
9-101, following a non-jury trial in the District Court for the
Twentieth Judicial District, Lake County. Defendant appeals. We
affirm.
The issues are:
1. Was there substantial, credible evidence that defendant
knowingly possessed dangerous drugs?
2. Was the defendant denied his right to a speedy trial?
3. Did the ~istrictCourt err in granting the State's motion
to add a witness twenty-four days before trial?
4. Did the District Court err when it denied defendant's
motion to suppress evidence seized during search and seizure?
5. Did the District Court err when it denied the defendant's
motion to reopen the suppression hearing?
On May 26, 1989, five officers of the Lake County drug task
force executed a search warrant authorizing the search of
defendant's residence, outbuildings and nearby vehicles for a large
caliber single action Colt-type revolver and other evidence and
fruits of the crime of Intimidation, a felony. One of the officers
found a loaded handgun in the side pocket of a recliner located in
the living room of defendant's residence. Lying on top of the
weapon was a plastic baggie containing a green leafy substance,
believed to be marijuana. Because of the discovery of the
marijuana, a second warrant was issued authorizing seizure of
2
marijuana and other evidence and fruits of the crime of Criminal
Possession of Dangerous Drugs from the defendant's residence,
outbuildings, and nearby vehicles. During the second search, a
camping trailer located approximately 130 feet from the defendant's
residence was found to be locked and secured. The camper belonged
to the defendant. The key to the camper was discovered on a rack
of keys above the telephone in defendant's residence. Using the
key, the officers unlocked the camper and discovered two plastic
bags containing approximately 173 grams of marijuana inside a black
bag stowed in a seat compartment.
I
Was there substantial, credible evidence that defendant
knowingly possessed dangerous drugs?
The test applied by this Court to determine whether the
evidence is sufficient to support the verdict is whether, after
viewing the evidence in light most favorable to the prosecution,
any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. State v. Krum (1989), 238
Mont. 359, 362, 777 P.2d 889, 891.
Defendant argues that while the State may have shown
constructive possession of marijuana because defendant owned the
camper where the marijuana was found, there was no evidence offered
that he 'lknowinglyl'possessed the substance. Therefore the
essential element of the mental state of "knowing posse~sion~~
was
not satisfied.
Defendant makes an invalid distinction between l'constructive
possessionv' and "knowing possessionn. Possession of dangerous
drugs may be either llactuall' llconstructive". State v. Meader
or
(1979), 184 Mont. 32, 42, 601 P.2d 386, 392. Actual possession
means that the drugs are in the personal custody of the person
charged with possession; whereas constructive possession means that
the drugs are not in actual physical possession but that the person
charged with possession has dominion and control over the drugs.
Meader, 184 Mont. at 42, 601 P.2d at 392. In order to find either
actual or constructive possession, the fact finder must find that
there was "knowingw possession. flPossessionll defined as 'Ithe
is
knowing control of anything for a sufficient time to be able to
terminate control.tt 1 45-2-101(52), MCA. The mental state of
'Iknowingly1' is therefore included as part of the definition of
'lpossessionw,
whether it be actual or constructive. A mental state
may be inferred from the acts of the accused and the facts and
circumstances connected with the offense. 5 45-2-103(3), MCA;
Krum, 238 Mont. at 361, 777 P.2d at 890.
In this case there was adequate evidence presented to support
a conclusion that defendant "knowinglyu'possessed the marijuana.
The first baggie of marijuana was found in defendant Is living room
in the side pocket of defendant's chair on top of his handgun. The
large bags of marijuana were found in a locked camping trailer
which belonged to the defendant. The camper was parked within 130
feet of defendant's residence. The key to the camper was found
hanging above the telephone in defendant's residence. Defendant's
girlfriend denied that she had keys to the camper. These
circumstances support the conclusion that defendant had knowing
control and possession of the marijuana. We affirm the holding of
the District Court that defendant was in knowing possession of
dangerous drugs.
Was the defendant denied his right to a speedy trial?
Any person accused of a crime is guaranteed a speedy trial by
the Sixth Amendment to the United States Constitution, which is
made applicable to the states by the Fourteenth Amendment. Klopfer
v. North Carolina (1967), 386 U.S. 213. The test used to determine
whether the constitutional right to a speedy trial has been
violated was set forth in Barker v. Wingo (1972), 407 U.S. 514, and
was adopted by this Court in Briceno v. District Court
Mont. 516, 518, 568 P.2d 162, 163-64:
These cases involve a sensitive balancing of four
factors, in which the conduct of the prosecution and
defendant are weighed in determining whether there has
been a denial of the right to a speedy trial. The four
factors to be evaluated and balanced are:
(1) Length of delay;
(2) Reason for delay;
(3) Assertion of the right by defendant; and
(4) Prejudice to the defendant.
No single factor is determative. Each facet of the analysis
is weighed in light of the surrounding facts and circumstances.
State v. Morris (1988), 230 Mont. 311, 317, 749 P.2d 1379, 1382.
The right to speedy trial attaches at the moment a defendant
is accused, and that may occur at the time of arrest, at the time
of the filing of a complaint or information, or at the time of
indictment. Morris, 230 Mont. at 315, 749 P.2d at 1381. In this
case there were 225 days between the defendant's arrest and his
trial. This delay is long enough to trigger the speedy trial
inquiry. State v. Chavez (1984), 213 Mont. 434, 441, 691 P.2d
1365, 1370. The State now has the burden of providing a reasonable
explanation for the delay and showing that the defendant was not
prejudiced by the delay. State v. Curtis (1990), 241 Mont. 288,
301, 787 P.2d 306, 313. The 225 day delay in this case was
institutional delay and is chargable to the State. However
institutional delay weighs less heavily than other kinds of delays
in the balancing process. Curtis, 241 Mont. at 301, 787 P.2d at
315.
In considering whether the defendant was prejudiced, the court
must look to the interests protected by the right to speedy trial:
(1) to prevent oppressive pretrial incarceration, (2) to minimize
the defendant's anxiety and concern, and (3) to limit the
impairment of the defense. Barker, 407 U.S. at 532; Curtis, 241
Mont. at 303, 787 P.2d at 315.
The defendant was out on bond during the entire period from
arrest until trial and so the first interest was protected.
As to the second interest, defendant testified that stress was
causing him to drink ''heavier than I want to1' and that he had
trouble sleeping at night. The anxiety and concern alleged by the
defendant are not excessive for one charged with a felony and are
not sufficient to violate the right to speedy trial. A certain
amount of anxiety and concern is inherent in being accused of a
crime. Curtis, 241 Mont. at 303, 787 P.2d at 316.
The crucial factor in a prejudice determination is whether the
defense has been impaired. State v. Waters (1987), 228 Mont. 490,
494, 743 P.2d 617, 620. No evidence was presented that the defense
was impaired by the delay. The defendant testified at the hearing
on the speedy trial motion that the potential defense witnesses
were available to testify, had not forgotten what had happened and
had no memory loss.
In sum, the delay in this case was institutional. The
defendant suffered little more anxiety than would normally be
expected. Most importantly, the defense was not impaired by the
delay. We affirm the District Court's holding that the State did
not violate the defendant's right to a speedy trial.
Did the District Court err in granting the State's motion to
add a witness twenty-four days before trial?
Section 46-15-322, MCA, requires the State to show good cause
for adding a witness after arraignment. In this case the State
made a motion to the District Court to add a witness from the State
Crime Lab. The information charging the defendant listed as
witnesses "Lori Moffatt, State Crime Lab and Unknown, State Crime
Lab". Twenty-four days prior to trial, the State filed a motion
to replace I1Unknown, State Crime Lab", with the name of ItAlice
Ammen, Division of Forensic Sciencett. The motion stated that Ms.
Ammen's report and resume had been previously provided to the
defendant and that counsel for the defendant had no objection to
the addition of the witness. Defense counsel filed a brief in
opposition to the State's motion to add Ms. Ammen, stating that
there had been a misunderstanding and defense did object.
Section 46-15-329, MCA, gives district courts the flexibility
to impose sanctions commensurate with a failure to comply with
discovery orders. The statute does not mandate automatic exclusion
for noncompliance. Waters, 228 Mont. at 495, 743 P.2d at 621. By
its terms, 5 46-15-329, MCA, provides that Itthe court may impose
any sanction that it finds just under the circumstances . . .I1
Imposition of sanction is a matter best left to the sound
discretion of the District Court. Such discretion allows the court
to consider the reason why disclosure was not made, whether the
noncompliance was willful, the amount of prejudice to the opposing
party, and any other relevant circumstances. Absent a clear abuse
of discretion, the decision of the District Court must be upheld.
Waters, 228 Mont. at 495, 743 P.2d at 621.
In this case the reason disclosure was not made earlier was
the lack of knowledge of which forensic scientist from the State
Crime Lab would be testifying. There is no indication of willful
noncompliance with the discovery statutes. Defendant knew Ms.
Ammen's identity 24 days before trial and can claim no surprise.
The District Court did not err when it granted the State's motion
to add this witness.
IV
Did the District Court err when it denied defendant's motion
to suppress evidence seized during search and seizure?
Two search warrants were executed on defendant's residence and
surrounding area. Defendant attacks both searches based on
probable cause and claims the evidence should be suppressed.
The test for determining probable cause for issuance of a
search warrant is the "totality of the circumstances1' test set
forth in Illinois v. Gates (1983), 462 U.S. 213. State v. Sundberg
(1988), 235 Mont. 115, 119, 765 P.2d 736, 739. An affidavit
supporting a search warrant is to be interpreted by the magistrate
and examined by the reviewing court in a common-sense, realistic
fashion. State v. O'Neill (1984), 208 Mont. 386, 393, 679 P.2d
760, 764. The issuing magistrate must only determine that there
is a probability, not a prima facie showing of criminal activity.
OINeill, 208 Mont. at 393, 679 P.2d at 764. The review of the
sufficiency of an affidavit is not a de novo review and the
magistrate's determination should be paid great deference by
reviewing courts. Sundberq, 235 Mont. at 122-23, 765 P.2d at 741.
In this case, the totality of the circumstances provided
probable cause to issue both search warrants. The first warrant
was issued on the probability that evidence of the crime of
intimidation would be found in the defendant's residence,
outbuildings, or nearby vehicles. An informant who was working for
the drug team had gone to the defendant's home in order to
investigate the defendant's involvment in drug-related activities.
The defendant pulled a handgun, pointed it at him, and threatened
to kill him if he were a police agent. The informant had provided
reliable information on prior occasions. The officer's affidavit
supporting the first warrant contained sufficient details to
establish probable cause.
Defendant claims that the drug team had targeted him for
prosecution and that the intimidation charge was only a pretext to
gain access to defendant's residence to search for drugs.
Defendant also attacks the credibility of the affiant and claims
that the application was based on false information. The evidence
does not substantiate these claims. We conclude that the first
warrant was supported by a sufficient showing of probable cause.
We affirm the District Court's refusal to suppress the evidence
discovered in the first search.
Defendant asserts that the second warrant was based on an
illegal search during execution of the first warrant. Defendant's
girlfriend testified that the officers found the marijuana in the
side pocket of the defendant's chair only after they had removed
the gun and then used a backscratcher to dig down deeper into the
pocket. Based on the testimony of the officers involved in the
first search, the District Court held that the marijuana was in
plain view when the officer who found the gun pulled open the
pocket to retrieve the gun. We conclude that the second warrant
was supported by a sufficient showing of probable cause based on
the plain view doctrine.
The defendant also attempts to attack the second warrant on
the basis that there was false information in the application.
There was no showing of false information affecting the validity
of the warrant application. The District Court correctly refused
to suppress the evidence that was discovered during execution of
the second warrant.
v
Did the District Court err when it denied the defendant's
motion to reopen the suppression hearing?
The defendant filed a motion for leave to reopen the
suppression hearing based on new evidence. The officer seeking the
first search warrant had testified in a trial of a nonrelated case.
Defendant alleged that the officer had perjured himself because his
testimony in the nonrelated trial had contradicted testimony he had
given in this defendant's suppression hearing. Defendant argues
this perjury proves that the officer was not credible and therefore
the first search warrant was based on misinformation.
When a search warrant is issued, the determination of probable
cause must be made from the four corners of the search warrant
application. State v. Isom (1982), 196 Mont. 330, 341, 641 P.2d
417, 423. The alleged perjured testimony was not related to the
facts asserted in the officer's affidavit and has no bearing on the
validity of the search warrant. Defendant has not established that
the statements made in the search warrant application were false.
We affirm the District Court's refusal to reopen the suppression
hearing.
Affirmed.
We Concur: