No. 90-265
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
v.
TOM HASKINS,
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:
Benjamin R. Anciaux, Attorney at Law,
Polson, Montana
For Respondent:
The Honorable Marc Racicot, Attorney General,
John Paulson, Assistant Attorney General, Helena,
Montana; Larry J. Nistler, Lake County Attorney
Submitted on Briefs: May 7, 1992
Decided: November 12,
Fil
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Tom Haskins was convicted by a jury on four counts
of criminal sale of dangerous drugs on November 27, 1989, in the
Twentieth Judicial District Court, Lake County. He appeals from
those convictions.
We affirm.
Appellant raises the following issues on appeal:
1. Did the District Court abuse its discretion by not
granting a trial continuance?
2. Did the outrageous conduct of undercover officer Nelson
require a reversal of the convictions?
3. Did the District Court abuse its discretion by denying
appellant's motion for a directed verdict?
4. Did the District Court abuse its discretion by not
granting appellant's motion for a new trial?
5. Did the District Court abuse its discretion in not
granting immunity to appellant's witnesses?
6. Did the District Court abuse its discretion in limiting
appellant's scope of cross-examination of Nelson?
7. Did the District Court abuse its discretion in not
allowing appellant to call Martin Cramer as an expert witness?
8. Was undercover officer Nelson competent to testify?
9. Did the State knowingly use perjured testimony?
10. Should appellant's conviction be reversed because his
conviction was based solely upon the testimony of an undercover
officer who was accountable for the same conduct for which
appellant was convicted?
11. Did the State fail to provide appellant with exculpatory
evidence?
12. Did the Confederated Salish and Kootenai Tribes exceed
its jurisdiction in the investigation and prosecution of appellant
and its employment of undercover officer Nelson?
13. Does cumulative error by the District Court warrant a new
trial?
In September 1988, Robert Nelson was hired by the Confederated
Salish and Kootenai Tribes ("the Tribew) as an undercover officer
for the Flathead Tribal Police Department. He was to infiltrate
the drug scene in Lake County and the Flathead Reservation, gain
the confidence of drug users, make purchases of illegal drugs, and
gather information on major drug dealers.
Nelson assumed the identity and alias of "Biker Miker1Harris,
a rough, crude drifter who drove a motorcycle, wore black leather
clothing, and spent his time "hanging out1# bars.
at While in this
role, Nelson made three separate drug buys from appellant.
The first "buy1I occurred on December 6, 1988. Nelson was at
the Smokehouse Bar in Polson when appellant approached him and
asked if he wanted to buy an eighth of an ounce of marijuana for
$25. Nelson bought the bag of marijuana from appellant, left the
bar, marked and secured the evidence, and delivered the marijuana
later that evening to Dave Morigeau, a criminal investigator for
the Flathead Tribal Police Department who was Nelson's contact
officer.
Another "buy" transpired on December 10, 1988, at the
Smokehouse Bar when appellant offered to sell Nelson three tablets
of Valium for a dollar. Nelson purchased the drugs from appellant
and again delivered them the next evening to Detective Morigeau.
The third llbuyll
occurred once again at the Smokehouse Bar on
December 13, 1988. Nelson agreed to purchase another eighth of an
ounce of marijuana from appellant. Appellant stated that he did
not have any marijuana with him, but that his wife Sherry would
bring the drug with her when she came to the bar later in the
evening. Nelson witnessed the appellant's wife enter the bar and
give something to appellant. Appellant then approached Nelson and
gave him some marijuana. Nelson delivered the substance to
Detective Morigeau on December 15, 1988.
The last transaction occurred on January 22, 1989. Appellant
had borrowed $10 from Nelson two days earlier and agreed to pay
Nelson back with some Darvon and Darvocet pills. This occurred in
downtown Polson. Nelson delivered the pills to Detective Morigeau
later in the evening. Apparently, a few weeks later, Nelson's
cover was llblownlv his effectiveness as an undercover agent in
and
the drug community ceased.
On April 11, 1989, the Lake County Attorney filed an
information charging appellant with four counts of criminal sale of
dangerous drugs. After several continuances, trial commenced on
November 20, 1989, and on November 27, 1989, the jury found
appellant guilty on all four counts. On December 20, 1989,
appellant was sentenced to four consecutive prison terms of 20
years, with 15 years suspended for each term. The court entered
its written judgment and sentence on December 21, 1989.
On December 27, 1989, appellant filed a motion for a new trial
which was denied by the District Court on February 8, 1990. On
March 7, 1990, appellant filed his notice of appeal. On
February 7, 1991, this Court ordered that the appeal be stayed and
the case remanded to the District Court for its consideration of a
second motion for a new trial based on newly discovered evidence
which was filed by appellant while the appeal was pending. An
evidentiary hearing was held on April 29, 1991, and on June 12,
1991, the court denied the motion. Appellant appeals from this
order.
At the outset, the State contends that several issues raised
by appellant are not properly before this Court because appellant
failed to file a timely appeal pursuant to Rule 5(b), M.R.App.P.
The State acknowledges that appellant's appeal was timely with
respect to the District Court's denial of his first motion for a
new trial, entered on February 8, 1990. However, the notice is not
timely with respect to the judgment. We have stated that this
Court is without jurisdiction to hear an appeal where notice of an
appeal is filed more than 60 days following the entry of judgment.
State ex rel. Graveley v. District Court (1978), 178 Mont. 1, 582
P.2d 775. We conclude that the proper focus of this appeal should
be limited to the District Court's denial of appellant's motions
for new trial, and that we will only discuss the issues raised in
those motions. Therefore, this Court will not discuss issues 7, 8,
10, 12, and 13.
I.
Did the District Court abuse its discretion by not granting a
trial continuance?
When reviewing a denial of a motion for continuance, this
Court determines whether the district court abused its discretion.
State v. LaPier (1990), 242 Mont. 335, 790 P.2d 983. Motions for
continuances are to be addressed at the discretion of the district
court and are to be considered in light of the diligence shown by
the movant. Section 46-13-202 (3) , MCA.
In this case, appellant requested a third trial continuance on
the grounds that the transcripts of the suppression hearings in a
related criminal case, and the report of the private investigator,
had not been provided to him and would not be available in time to
review and conduct any meaningful investigation into the conduct of
undercover officer Nelson.
Defense counsel had approximately five months between the time
of appointment and the time of trial to prepare a defense. The
District Court had granted two previous continuances on behalf of
the defense. Appellant has not shown that even with due diligence
he would not have been able to obtain the information in the
special investigation report prior to trial by either
reinterviewing Nelson or interviewing the private investigator.
Nor did the appellant file an affidavit showing the materiality of
the evidence expected to be obtained duringthe continuance. State
v. French (1988), 233 Mont. 364, 760 P.2d 86. We hold that the
District Court did not abuse its discretion in denying appellant a
third trial continuance.
11.
Did the outrageous conduct of undercover officer Nelson
require a reversal of the convictions?
Appellant raises two subissues under this argument. First,
appellant contends that Nelson engaged in various illegal
activities while working as an undercover agent, and as a result,
appellant's conviction should be overturned. Second, appellant
contends that as a result of Nelson's felony conviction in the
state of Washington approximately 20 years ago, Nelson was
ineligible to be hired by the Tribe and Lake County as a law
enforcement officer.
The United States Supreme Court has recognized that there may
come a day when:
[Tlhe conduct of law enforcement agents is so outrageous
that due process principles would absolutely bar the
government from invoking judicial processes to obtain a
conviction.
United States v. Russell (1973), 411 U.S. 423, 431-32.
The existence of police misconduct as a violation of due
process is a question of law for the court to decide. United
States v. Ramirez (4th Cir. 1983), 710 F.2d 535, 539. As a
defense, it is a close relative to entrapment and is usually
invoked where involvement of undercover agents and informers in
contraband offenses reaches a point as to completely prevent a
conviction of a predisposed defendant as a matter of due process.
Ramirez, 710 F.2d at 539. Although the due process defense is
potentially broad, it is limited. Ramirez, 710 F.2d at 539. The
protection of the Due Process Clause of the Fifth Amendment comes
into play only "when the Government activity in question violates
some protected right of the defendant." Hampton v. United States
(1976), 425 U.S. 484, 490. The Hampton court concluded that:
If the police engage in illegal activity in concert with
a defendant beyond the scope of their duties the remedy
lies, not in freeing the equally culpable defendant, but
in prosecuting the police under the applicable provision
of state or federal law.
Ham~ton,425 U.S. at 490.
In this instance, appellant has failed to show how Nelson's
alleged illegal activities violated appellant's constitutional
rights relating to the crimes charged. Appellant was not involved
in any of the incidents during which Nelson may have violated the
law. The Lake County Attorney properly filed misdemeanor
complaints against Nelson for shooting from or across a road or
highway right-of-way and knowingly purchasing alcohol for a person
under 21 years of age. Appellant also contends that Nelson's prior
felony conviction constitutes outrageous conduct.
In 1974, Nelson pled guilty to a charge of grand larceny in
the state of Washington. He later petitioned and received an order
of dismissal. The order of dismissal states that Nelson was
permitted to withdraw his guilty plea, that the plea of guilty was
not entered, and that the cause was dismissed. The order also
provides that Nelson was released from all penalties and
disabilities resulting from the filing of the charge. In 1983,
standard background criminal investigations for hiring conducted by
the Montana Department of Justice revealed no criminal record.
Subsequent checks in 1989 and 1991 also showed no criminal history
for Nelson. Nelson had worked for the Washington police and the
Drug Enforcement Agency. Lake County and the Tribe were fully
justified in relying upon the absence of any criminal record in
hiring Nelson.
In addition, appellant knew of the felony conviction before
trial commenced. The State filed a motion in limine to preclude
any evidence of Nelson's criminal history. In his brief, appellant
cites to various federal statutes and regulations regarding hiring.
They are not applicable. Nelson was hired by the Tribe and paid
from tribal funds. As a federal judicially recognized sovereign
nation, the Tribe has its own inherent hiring authority and Nelson
was properly represented to the jury as a tribal officer. We hold
that the conduct of undercover officer Nelson does not warrant a
reversal of the conviction.
Did the District Court abuse its discretion by denying
appellant's motion to dismiss?
At the close of the State's case, appellant moved for a
directed verdict which the District Court denied. Section
46-16-403, MCA (1989), provides that a district court may dismiss
an action against a defendant when:
[A]t the close of the state's evidence or at the close of
all the evidence, the evidence is insufficient to support
a finding or verdict of guilty, the court may, on its own
motion or on the motion of the defendant, dismiss the
action and discharge the defendant.
We have construed this statute to mean that "a verdict of acquittal
may be directed in favor of the defendant on+ if no evidence exists
upon which to base a guilty verdict." State v. Christofferson
(1989), 238 Mont. 9, 11, 775 P.2d 690, 692. A directed verdict is
warranted if reasonable men could not conclude from the evidence
taken in light most favorable to the prosecution that guilt has
been proven beyond a reasonable doubt. State v. Laverdure (1990),
241 Mont. 135, 138, 785 P.2d 718, 721. The decision to direct a
verdict lies within the sound discretion of the district court and
we will not overturn such a decision unless an abuse of discretion
is shown. Christofferson, 775 P.2d at 692. Appellant argues that
Nelson's testimony was so inherently incredible that no reasonable
person ought to accept it as true. Appellant also argues that his
alibi witnesses established that he was not at the alleged crime
scene on January 22, as Nelson testified, but was judging a pool
tournament. We point out that if evidence conflicts it is well
within the province of the jury to resolve the dispute.
In this instance, Nelson's testimony relating to appellant's
involvement in the crimes charged was consistent. The jury chose
to believe Nelson, not appellant's alibi witnesses. We hold that
the District Court did not abuse its discretion in denying
appellant's motion for a directed verdict.
IV.
Did the District Court abuse its discretion by not granting
appellant's motion for a new trial?
To determine whether a new trial is warranted on the basis of
newly discovered evidence, this Court established three criteria
which must be met:
1. The evidence must have come to the knowledge of
the applicant since the trial;
2. That it is not through want of diligence that
it was not discovered earlier;
3. That it is so material that it would probably
produce a different result upon another trial.
State v. DeMers (1988), 234 Mont. 273, 278, 762 P.2d 860, 863-64.
The granting and denying of a new trial rests within the sound
discretion of the district court and this Court will not overturn
that decision unless the district court abuses its discretion.
DeMers, 762 P.2d at 864. In this instance, appellant claimed that
upon receiving the investigator's report after the trial, he only
then discovered that Nelson had a prior felony conviction affecting
his officer status. However, the record reveals that appellant
knew of the felony conviction as early as August 9, 1989. In
addition, the prior felony conviction became the subject of a
pretrial motion in limine. By exercising due diligence through
interviewing Nelson for a second time, or through interviewing the
investigator, appellant could have discovered Nelson's felony
conviction. Moreover, the discovery of the conviction was not
material to the case and would not have affected the outcome. We
hold that the ~istrict Court did not abuse its discretion in
denying appellant's motion for a new trial.
v.
Did the District Court abuse its discretion in not granting
immunity to appellant's witnesses?
Section 46-15-331, MCA (1989), states that the district court,
upon the request of the prosecution or defense counsel, Itmay
require a person to answer any question or produce any evidence
that may incriminate him." It is at the discretion of the district
court to grant immunity to counsellswitnesses.
In this instance, appellant requested that the District Court
grant immunity to 16 witnesses. The court denied the motion, but
stated that it would not compel incriminating testimony. Appellant
offered no proof concerning the testimony he expected to elicit
from the witnesses. He only explained to the court that "a lot of
witnessesttwould testify about incriminating matters and would
refuse to testify without immunity concerning Nelson's activities
during the undercover investigation. The record shows that the
court was given almost no information regarding the testimony of
appellant's witnesses. Even with the denial, eight of appellant's
witnesses testified concerning Nelson's, as well as their own, use
of marijuana during the investigation. We hold that the District
Court did not abuse its discretion in denying immunity to
appellant's witnesses.
VI .
Did the District Court abuse its discretion in limiting
appellant's scope of cross-examination of Nelson?
In its order on the motion in limine, the District Court ruled
that appellant was prohibited from introducing Nelson's criminal
history or record, specifically including the 1974 felony
conviction in Washington. The District Court permitted appellant
to introduce evidence of Nelson's alleged criminal activities and
wrongful conduct during the time period relevant to the charges
against appellant. Appellant contends that he was denied his right
to confront and cross-examine witnesses. ~pecifically,he argues
that he was not allowed to question Nelson on his prior criminal
conviction, on Nelson's relationship with appellant's wife, and
Nelson's criminal acts outside the time frame established by the
court.
Rule 609, M.R.Evid. (1989), states that "[flor the purpose of
attacking the credibility of a witness, evidence that he has been
convicted of a crime is not admissible." We have upheld this
prohibition because of the inherent prejudicial effect of a
witness's criminal history on the jury's deliberative process and
its low probative value regarding the credibility of a witness.
Sloan v. State (1989), 236 Mont. 100, 104-05, 768 P.2d 1365,
1367-68.
Appellant also contends that the court overly restricted his
cross-examination relating to Nelson's relationship with
appellant's wife as a possible motive for Nelson's accusations
against appellant. At trial, defense counsel did ask Nelson
whether he had "hit onft propositioned appellant's wife.
or Nelson
stated that he had not. The State objected on relevancy grounds to
appellant's next question concerning the proposition, and the
objection was sustained by the court.
The District Court afforded appellant a threshold level of
inquiry in his effort to present evidence of bias or motive to
testify falsely. State v. Gommenginer (1990), 242 Mont. 265, 790
P.2d 455. With the exception of one witness's reference that
Nelson would be cute or fresh to women, nothing in the record
indicates that this line of questioning was based upon fact.
Defense counsel did not even question appellant's wife, Sherry
Haskins, about the alleged proposition when she testified for the
defense. Rule 402, M.R.Evid., allows the district court to exclude
irrelevant evidence, and in this instance the District Court
properly limited defense counsel's speculative inquiry into this
area.
Finally, appellant argues that the District Court did not
permit him to question Nelson about his use of pills or the extent
of Nelson's efforts to stay in character and protect his cover.
These questions were asked during recross-examination. The State
objected on the basis that the questions went beyond the scope of
redirect, and the District Court sustained the objection.
Rule 611, M.R.Evid. (1989), grants the district court discretion to
limit questions on recross-examination to those new matters brought
out during redirect. We hold that the District Court was well
within its discretion to limit appellant's scope of
cross-examination of Nelson.
As a result of our holding above, we conclude that the State
did not knowingly use perjured testimony from Nelson, or that it
withheld exculpatory evidence.
We affirm.
1
Justice
We concur: