No. 92-236
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent, SE@ 1.. j$j@
-vs-
JOHN MICHAEL SHAW,
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert S. Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
S. Charles Sprinkle, Douglas & Sprinkle, Libby,
Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Jennifer
Anders, Assistant Attorney General, Helena, Montana
Scott Spencer, Lincoln County Attorney, Libby,
Montana
Submitted on Briefs: October 8, 1992
Decided: December 1, 1992
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from the District Court of the Nineteenth
Judicial District, Lincoln County, the Honorable Robert S. Keller
presiding. Appellant John Michael Shaw (Shaw) appeals from a
judgment entered on a jury verdict finding him guilty of conspiracy
to sell dangerous drugs, a felony, in violation of § 45-4-102, MCA.
We reverse and remand.
The issues are:
1. Did the District Court err in allowing rebuttal testimony
over defense counsel's objections that the testimony violated the
notice requirements of State v. Just (1979), 184 Mont. 262, 602
P.2d 957, as modified in State v. Matt (1991), 249 Mont. 136, 814
P.2d 52 (the Modified Just Rule), and that the testimony exceeded
the scope of cross-examination?
2. Did the District Court err in refusing Shawls Proposed Jury
Instruction No. 21?
The Lincoln County Sheriff's Office conducted an undercover
drug investigation from September 1990 to May 1991. Klint Gassett
served as the primary detective in the investigation and Hal Turner
served as the undercover agent. During the course of that
investigation, the sheriff's office obtained sufficient evidence to
charge Rodney Reynolds (Reynolds). In order to further the
investigation, Gassett offered Reynolds a deal in which Reynolds
would work as an agent for the sheriff's office in return for a
recommended suspended sentence and a fine. Reynolds agreed.
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The officers provided Reynolds with the names of people,
including Shaw and Brian Kair, from whom they wanted Reynolds to
try to purchase drugs. Reynolds and Shaw had known each other for
a number of years. Reynolds did not know Kair well enough to
approach him directly, so he decided to go through Shaw as a means
of introduction because Shaw and Kair knew each other well.
Reynolds approached Shaw at the Libby softball fields after
practice on May 2, 1991, and asked Shaw if he could get him a pound
of marijuana or some cocaine. Reynolds testified at trial, "He
[Shawl said he'd check it out." Shaw testified as follows:
I told him that the whole team was going to go down to
the Mint and I was sure that there was somebody down
there that would sell drugs, and that I could probably
line him up with somebody that I knew on the team, or
whatever.
After practice, Shaw went to the Mint with other team members
because the Mint sponsored his softball team. Reynolds also went
to the Mint later that day. When he entered the bar, he approached
Shaw and the two of them went into the restroom for privacy. Shaw
then left the restroom to get Kair. Up to that point Shaw had made
no effort to contact anyone about the drugs. When Shaw and Kair
returned to the restroom, Shaw told Kair that Reynolds wanted to
buy some drugs. Reynolds and Kair then discussed drugs for ten to
fifteen minutes. Although Shaw listened to the conversation, he
did not take part in it. Reynolds and Kair agreed to meet at the
Legion Bar two days later. Shaw did not make further contacts or
participate in the deal after making the introduction.
Reynolds and Kair met at the Legion Bar on Saturday as they
had planned. Kair did not have the drugs at that time, but set
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Sunday or Monday as a follow-up date. Reynolds then called Kair on
Sunday to see if he could get a sample of the marijuana. Later
that day he went to Xair's residence where he gave Kair's wife,
Jenny, $400 as payment for a four ounce sample of marijuana. The
marijuana was supposed to be delivered on Monday. This is the last
time Reynolds had contact with any of the people involved.
On May 7, 1991, the Lincoln County Attorney filed a complaint
charging Shaw with conspiracy to sell dangerous drugs, a felony, in
violation of § 45-4-102, MCA. A jury found Shaw guilty of the
crime charged.
Did the District Court err in allowing rebuttal testimony over
defense counsel's objections that the testimony violated the
notice requirements of State v. Just (1979), 184 Mont. 262, 602
P.2d 957, as modified in State v. Matt (1991), 249 Mont. 136, 814
P.2d 52 (the Modified Just Rule), and that the testimony exceeded
the scope of cross-examination?
During the trial, the State recalled Detective Gassett.
During that portion of his testimony, Detective Gassett stated that
a search warrant had been issued for the Kair residence. On cross-
examination, defense counsel, Mr. Sprinkle, brought out the fact
that a search warrant was not issued on Shaw's residence.
Q. [By Mr. Sprinkle] And you never executed a search
warrant on John's house and recovered any drugs or
paraphernalia, did you?
A. We didn't have any reason to do the search warrants
on John's house.
On redirect examination, the county attorney, Mr. Spencer, then
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elicited the following testimony from Detective Gassett.
Q. You were asked on cross some question about searching
Shawls house. Did you hear that?
A. Yes.
Q. What was that question again?
A. Did we do a search warrant on Shaw's residence, or
why didn't we do a search warrant.
Q. Looking for paraphernalia or something?
A. Yeah.
Q. And you did not, did you?
A. No, we did not.
Q. Does that mean you did not have reason to believe
that, other than what Rodney Reynolds said, that Brian
Shaw was involved in drugs?
A. John Shaw?
Q. John Shaw. I'm having a terrible time with these
names. Dyslexia, I guess.
A. Just because we didn't do a search warrant doesn't
mean anything.
Q. Did you in fact have other evidence that tends to
show that John Shaw was involved in drugs?
At this point, Mr. Sprinkle objected to the question as, among
other things, beyond the scope of cross-examination and
prejudicial. In conference, Mr. Sprinkle argued that his line of
questions to Detective Gassett went to show the jury that no
evidence existed, other than the events of May 2, 1991, on which to
charge Shaw with conspiracy. The State argued, and the court
agreed, that Mr. Sprinkle had opened the door with his question
about the search warrant.
When the questioning continued, the following exchange
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occurred:
Q. [By Mr. Spencer] NOW, Klint, when we broke we were
talking about -- I'm not sure what we were talking about,
but talking about the search warrant, and is that the
only basis you had, or whatever. You recall that
question?
A. Yes, sir.
Q. Now -- and that is yes or no. Do you have other
basis for your determinations that we're talking about
here with John Shaw?
A. Yes.
Q. Are those based on -- is that based on information
provided to you as part of this undercover operation by
Hal Turner?
A. Yes.
Q. Is Hal Turner the undercover agent that was hired?
A. Yes, from September to May of '91.
Q. Right. I'm not sure if I ever asked that.
At this point Mr. Sprinkle objected to the testimony on the
basis of lack of notice as required by Just. (We point out that
the proper authority would have been u.) The District Court
overruled this objection and Mr. Spencer continued.
Q. One additional question. Is this also based on
documented information you have of several years ago?
A. Yes.
Q. Point of fact, eight years ago?
A. Yes.
We disagree with the District Court's rulings on this matter.
We find that this testimony exceeded the scope of cross-examination
and was allowed in violation of the notice requirements of the
Modified Just Rule.
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Rule 611(d), M.R.Evid., governs the scope of redirect
examination. It provides:
Re-examination and recall. A witness may be re-examined
as to the same matters to which the witness testified
only in the discretion of the court, but without
exception the witness may be re-examined as to any new
matter brought out during cross-examination. . . .
The trial court "has wide discretion in determining the scope and
extent of re-examination as to the new matters brought out on
cross-examination." Cline v. Durden (1990), 246 Mont. 154, 161,
803 P.2d 1077, 1081; State v. Heaston (1939), 109 Mont. 303, 316,
97 P.2d 330, 336. We therefore look to whether the District Court
abused its discretion by allowing the above testimony from
Detective Gassett.
On cross-examination, Mr. Sprinkle asked a series of questions
intended to show that no evidence existed, other than the
introduction and conversation of May 2, 1991, to establish that
Shaw was involved in this conspiracy to sell drugs. In doing so
he merely asked Detective Gassett whether a search warrant had been
issued for Shawls residence. Throughout the trial, he had not
denied that Shaw was ever involved in drugs. However, the court
determined that this line of questioning was intended to imply that
Shawls involvement in this matter was purely coincidental. The
court then ruled that Mr. Sprinkle opened the door to testimony
about Shawls prior acts or wrongs of eight years ago.
The State relies on State v. Simtob (1975), 168 Mont. 495, 544
P.2d 1210, and State v. Mix (1989), 239 Mont. 351, 781 P.2d 751, in
arguing that Mr. Sprinkle opened the door to this testimony. In
Simtob, the defendant's witness testified that the defendant did
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not use or traffic in drugs. On cross-examination the State was
allowed to bring out the fact that the defendant had been in
prison, and on rebuttal the State was allowed to present evidence
that the defendant had a reputation as a major drug dealer in
Montana. This Court upheld the District Court's ruling that
defense counsel had brought the defendant's character and
reputation in issue and that cross-examination and rebuttal
testimony were proper.
In Mix, the defendant testified as to his general character as
a peace loving man. This Court upheld the District Court's ruling
which allowed the State to present rebuttal testimony concerning
the defendant's priorattacks on the victim because the defendant
had opened the door to evidence regarding his peaceful character.
We do not find Simtob or Mix to be controlling.
We do not find that this single question regarding a search
warrant can be construed as a suggestion that Shaw was innocent of
all drug related activity or that it brought his character into
issue. Therefore, the evidence was inadmissible under Rule
404(a)(l), M.R.Evid., which allows the State to rebut a defendant's
character evidence with its own evidence. As we hold that the
State could not introduce character evidence on these facts, the
rule noted in Mix, whereby evidence of other crimes, wrongs, or
acts may be introduced under Rule 404(a)(l) without meeting the
Just notice requirements, does not apply.
The State further argues that the requirements of Just (more
accurately Matt) do not apply because Detective Gassett's testimony
did not constitute "other crimes" evidence under Rule 404(b),
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M.R .Evid. That rule provides:
Other crimes, wrongs, acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity
therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of
mistake or accident.
The State relies on State v. Sorensen (1990), 243 Mont. 321,
792 P.2d 363, where this Court rejected the defendant's argument
that a photograph of a person standing in a marijuana patch
constituted other crimes evidence. The officer in that case
testified that he thought the man in the picture was the defendant.
In that case we noted that it is not a crime to stand in what
appears to be a marijuana patch, the defendant took full advantage
of his opportunity to argue to the jury that the man in the picture
was not him, and the photo's prejudicial effect was questionable in
relation to all the other evidence presented at trial. In
contrast, in the present case Detective Gassett was allowed to
testify directly that he had documented evidence tending to show
that Shaw was involved in drugs. This is more than a "mere
suggestion of illegal or improper conduct" as argued by the State.
It is an affirmative statement that the authorities had documented
evidence of Shawls prior drug related activity. As such, Shaw was
entitled to notice that the information would be brought out at
trial.
We hold that the District Court abused its discretion by
allowing the State to introduce this evidence.
II
Did the District Court err in refusing Shawls Proposed Jury
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Instruction No. 21?
Shaw was charged with violating the conspiracy statute. That
statute provides:
45-4-102. Conspiracy. (1) A person commits the offense
of conspiracy when, with the purpose that an offense be
committed, he agrees with another to the commission of
that offense. No person may be convicted of conspiracy
to commit an offense unless an act in furtherance of such
agreement has been committed by him or by a
coconspirator.
. . .
Shaw sought to have the following instruction given to the
jury:
There can be no conspiracy between a defendant and one
who only feigns acquiescence in a crime: however, if an
undercover agent acts in conjunction with more than one
person to violate a law, his participation will not
preclude a conviction of the others for a conspiracy
among themselves.
During the settling of instructions, the State argued, and the
court agreed, that "[y]ou can have a conspiracy between two people,
one of which is an undercover agent who has no intention of
breaking the law. That's settled case law." However, the State
admits to the contrary in its brief, and cites extensive case law
on the matter. It is well established that:
"There is neither a true agreement nor a meeting of the
minds when an individual 'conspires' to violate the law
with only one other person and that person is a
government agent." . . . An individual must conspire with
at least one bona fide co-conspirator to meet the formal
requirements of a conspiracy.
United States v. Schmidt (9th Cir. 1991), 947 F.2d 362, 367
(citation omitted); United States v. Kelly (11th Cir. 1989) 888
F.2d 732 (it is legally impossible to conspire with a government
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agent); United States v. Giry (1st Cir. 1987), 818 F.Zd 120 (it
takes two to conspire and a government informer is not a true
conspirator), cert. denied, 484 U.S. 855 (1987).
The State argues that the proposed instruction is only
relevant in cases involving one defendant, and that it was not
relevant in this case where there were two individuals other than
the government agent involved--Shaw and Kair. We disagree given
that the State argued on numerous occasions during its closing
argument that a conspiracy could have arisen between Shaw and
Reynolds. That is not the law. Shaw was entitled to an
instruction that limited the jury to finding a conspiracy between
Shaw and Kair; in fact, the instruction was necessary given the
State's argument to the jury. The first part of this instruction
serves that purpose. Furthermore, contrary to the State's
argument, the proposed instruction does encompass the situation
where more than one individual and a government agent are involved.
The second part of the instruction covers that situation.
We hold that the District Court erred in refusing to give
Shawls Proposed Jury Instruction No. 21.
We reverse and remand for a new trial in conformity with the
foregoing.
We concur: ,
/ '
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