NO. 92-074
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
THE STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
BRUCE PAUL CAMERON,
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:
James A. Manley,.Attorney at Law, Polson, Montana
For Respondent:
Scott Spencer, Lincoln County Attorney, Libby,
Montana
- D
OCT 6 1992
-
Submitted on Briefs: July 23, 1992
Decided: October 6, 1992
Filed:6 '3 m ACOURT
2
OF
CLERK SUPREME
STATE OF MONTANA
t ."<".$.&L
I
' Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
A jury trial was held in the District Court for the Nineteenth
Judicial District, Lincoln County. Defendant, Bruce Paul Cameron,
was found guilty of criminal sale of dangerous drugs in violation
of 5 45-9-101, MCA. Defendant appeals. We reverse.
The issues for our consideration are:
1. Did the District Court properly allow the State to
introduce evidence of a prior bad act as rebuttal evidence?
2. Did the District Court properly allow the State to
introduce evidence of another drug sale which took place the day
prior to the offense charged in the information as part of the
corpus delicti?
From September of 1990 to May of 1991, the Lincoln County
Sheriff's Department conducted an extensive undercover drug
operation in the Libby area. Rodney Reynolds (Reynolds) was
arrested for illegal drug activities and subsequently agreed to
participate in the undercover operation in exchange for a suspended
sentence.
On May 3, 1991, Reynolds telephoned an acquaintance, Pat
Grotjohn (Grotjohn) . Grotjohn told him that he knew where he could
obtain some cocaine and Reynolds drove to Grotjohn's residence.
Reynolds was wearing a transmitter which was monitored by the
Sheriff's deputies. Reynolds testified that he told Grotjohn that
he wanted to buy an "eight ballN, which is the street term for
three and one-half grams of cocaine. Grotjohn told him it would
cost $240.
2
The two men drove away in Reynold's car. Grotjohn dropped off
Reynolds at a drive-in restaurant and drove off alone in Reynold's
car to obtain the cocaine. The Sheriff's deputies lost sight of
the Grotjohn vehicle. When Grotjohn returned to pick up Reynolds,
he completed the sale of the cocaine to Reynolds for the agreed
price.
The next day, on May 4, 1991, Reynolds went to Grotjohn's
residence to buy cocaine, again wearing a transmitter. This time
a deputy followed Grotjohn. The deputy testified he saw Grotjohn
turn off the main road and drive up near defendant's house.
However, he further testified that because his vision was blocked
by trees and shrubs, he could not see more. The deputy drove
slowly past the turnoff, and as he did, he saw Grotjohn get out of
the car. Because he did not want to be spotted, the deputy drove
by, then stopped, but could not see where Grotjohn went. Grotjohn
remained in the area for about one hour between noon and one p.m.
Grotjohn was ultimately arrested for the two sales to
Reynolds. However, he agreed to testify against defendant in
return for one felony charge of sale of dangerous drugs being
dropped.
At trial, Grotjohn testified that defendant sold him cocaine
inside defendant's residence both on May 3rd and May 4th. Grotjohn
testified that defendant's vehicle was at the residence on both
occasions. There was no audio or visual surveillance of the
alleged transactions between Grotjohn and defendant. Grotjohn was
the only witness who testified that defendant sold him the drugs
which he eventually resold to Reynolds.
Defendant was charged with one count of criminal sale of
dangerous drugs based on the May 4th transaction. However, over
objection, the State was allowed to present the Grotjohn testimony
on the alleged transaction of May 3rd.
At trial defendant testified that he and a friend went "four-
wheeling" on May 4th. He testified that they were gone from about
9:30 a.m. to 5:00 p.m. Defendant's friend testified and
corroborated defendant's story. Defendant's neighbors testified
that they saw him leave his residence that morning and did not see
him return until late afternoon.
At the beginning of the trial, the defense moved in limine to
exclude evidence of a gun threat that allegedly occurred months
before the alleged drug transaction which is the subject of this
appeal. The District Court granted the motion in limine and ruled
that the gun threat testimony could be introduced only if
Grotjohn's credibility was attacked.
In rebuttal, the State was allowed to recall Grotjohn. The
State argued that Grotjohn's credibility had been attacked, and
therefore, to bolster Grotjohn's credibility, Grotjohn was allowed
to testify that defendant had threatened Grotjohn with a rifle two
or three months before the alleged drug transaction took place.
The defense objected prior to the testimony and moved for a
mistrial after the testimony was allowed. The motion for mistrial
was denied. The jury returned a verdict of guilty. Defendant
appeals.
I
Did the District Court properly allow the State to introduce
evidence of a prior bad act as rebuttal evidence?
Defendant maintains that the District Court committed
reversible error by allowing testimony regarding the alleged gun
threat into evidence. Defendant contends the testimony violated
both Rule 404, M.R.Evid., and the Just rule. We agree.
The State emphasized that the defense presented two witnesses
who testified that when Grotjohn came to the Cameron residence on
May 4, he was acting in a furtive and suspicious manner and
contradicted Grotjohn1s testimony that he got out of his vehicle at
the Cameron residence. The primary argument by the State was that
the evidence of the threat with the rifle was corroborative of
Grotjohn's credibility because it explained his manner of
testifying and demonstrated why he had been unsure on some points
because he was fearful.
The State contended that Grotjohn would testify to his fear of
the defendant as a result of the threat with a rifle and that such
testimony would explain his nervous behavior. However, Grotjohn's
testimony did not support the State's contentions.
Grotjohn testified that he was visiting the defendant at the
defendant's home when the gun threat took place. He testified that
he was "uneasy with the [defendant]," but stayed at defendant's
home the rest of the evening. On cross-examination Grotjohn
testified that he did not feel threatened by the defendant after
that, and that the defendant and Grotjohn remained friends. Last,
he testified that the threat had no effect on his conduct even a
week later. Grotjohn's testimony effectively eliminated the
State's contention that the evidence of the gun threat demonstrated
Grotjohn's fear of the defendant. Grotjohn's testimony is not
admissible to demonstrate that fear on his part caused him to
testify in a particular manner.
The State argues by reference to various Montana cases
involving the credibility of the accused. Such cases are not
authority for consideration of the credibility of witness Grotjohn.
If it was the credibility of Grotjohn that was in question, then
the State cannot offer evidence of the defendant's bad character to
bolster Grotjohn's credibility. Rule 404, M.R.Evid.
With regard to character of a witness Rule 404, M.R.Evid.,
refers to Rule 608. That rule provides that the credibility of a
witness may be supported by evidence in the form of an opinion or
reputation but is subject to the limitations that the evidence may
refer onlyto character for truthfulness or untruthfulness and that
evidence of truthful character is admissible only after the
character of the witness for truthfulness has been attacked by
opinion or reputation evidence. The record does not demonstrate
such an attack by opinion or reputation evidence. We conclude that
the evidence of the prior bad act was not admissible under the
Montana Rules of Evidence.
The gun threat by the defendant against Grotjohn constitutes
evidence of other crimes, wrongs or acts, and it is necessary to
analyze the same under the Modified Just Rule as provided in State
v. Matt (1991), 249 Mont. 136, 814 P.2d 52. State v. Matt modified
the Just Rule. The Modified Just Rule provides that in order to
introduce evidence of other crimes, wrongs or acts as referred to
and described in Rules 404(b) and 403, M.R.Evid:
The other crimes, wrongs or acts must be
similar.
The other crimes, wrongs or acts must not be
remote in time.
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.
Although relevant, evidence may be excluded if
its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, misleading the jury,
considerations of undue delay, waste of time,
or needless presentation of cumulative
evidence.
State v. Matt, 814 P. 2d at 56. Furthermore, the Modified Just Rule
specifically includes the following procedural protections:
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,
wronas or acts to be admitted, and the
specific Rule 404(bf ourpose or purposes for
which it is to be admitted. (Emphasis added).
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.
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.
We conclude that the threat evidence was not admissible for
several reasons under the Modified Just Rule. The State failed to
give written notice specifying the evidence to be admitted and the
specific Rule 404(b) purposes for which it was to be admitted, and
as a result failed to meet the initial procedural protection. In
addition, the gun threat evidence failed to meet the first element
of the Modified Just Rule because there is no similarity between
the alleged gun threat and the charged crime of criminal sale of
dangerous drugs. We conclude that the evidence of the prior bad
act was not admissible under the Modified Just Rule.
We hold that the District Court committed reversible error in
allowing the State to introduce evidence of a prior bad act as
rebuttal evidence.
Did the District Court properly allow the State to introduce
evidence of another drug sale which took place the day prior to the
offense charged in the information as part of the corpus delicti?
On the morning of trial, defense counsel presented the
District Court with a motion in limine to exclude evidence of the
alleged May 3rd drug transaction on the grounds that it was
unfairly prejudicial. The District Court allowed evidence of the
May 3rd transaction to be introduced as part of the corpus delicti
8
of the crime charged.
The State maintains the evidence was admissible as part of the
corpus delicti. It maintains that under State v. Frates (1972),
160 Mont. 431, 503 P.2d 47, evidence of the May 3rd sale was
admissible because the sales are so related that proof of one tends
to establish the other.
In Frates, defendant was convicted of the sale of 900 LSD
tablets to an undercover police officer on March 17, 1971. The
State was allowed to prove that on March 9, 1971, defendant came to
the Midway Bar and handed an informant a sack containing 100
capsules of LSD for which he was paid $150; and on March 14, 1971,
the same defendant returned to the Midway Bar and handed the
informant another sack containing 100 LSD capsules. The evidence
of these two transactions was the principal assignment of error.
In holding that the evidence was admissible, this Court stated:
The evidence of the two prior sales of LSD to the
informer in the instant case is part of the corpus
delicti of the crime with which the defendant is charged.
It is a part of the totality of events and occurrences
leading to and culminating in the sale of the 900 LSD
tablets to the undercover police officer of which
defendant was convicted. It tends to explain the
circumstances leading to the commission of the crime
charged, establishes defendant's intent to commit the
crime charged, and negatives the defense of entrapment.
As such, it is clearly relevant, probative and competent
evidence tending to prove the crime charged. . . .
Frates, 503 P.2d at 50. In order that there may be no
misunderstanding in future cases, we specifically overrule the
foregoing holding in Frates. Our explanation for the overruling
will appear in the subsequent discussion of cases which took place
after Frates was decided in 1972.
In State v. Trombley (l98O), 190 Mont. 218, 620 P.2d 367, this
Court referred to State v. Jackson (1979), 180 Mont. 195, 589 P.2d
1009, and pointed out that under that case the defendant objected
to the introduction of evidence, labeling it inadmissible other
crimes evidence. Referring to State v. Jackson this Court then
stated:
In our opinion affirming the District Court's admission
of this evidence, we recognized the distinction between
"other crimesu evidence and evidence of the defendant's
simultaneous misconduct inseparably related to the
alleged criminal act.
We recognize the general rule that when a defendant
is put on trial for one offense, he should be convicted,
if at all, by evidence which shows that he is guilty of
that offense alone. Evidence which in any manner shows,
or tends to show, he has committed another crime whollv
inde~endent, even though it is a crime of the same sort,
is irrelevant and inadmissible, . . .
In this case the prosecution did not introduce
evidence of other "unrelated1' or llwhollyindependentt1
crimes. The prosecution only sought to prove that
defendant was exercising unauthorized control over
various items . . . Defendant's possession of . . .
(this other property) was inextricably related to the
property referred to in the charging information. We are
not, therefore, involved with the introduction of
evidence of wholly independent or unrelated crimes. The
evidence was properly admitted.
The prosecution here is not required to meet the
Just requirements for the introduction of "other crimes"
evidence because evidence of defendant's possession and
use of the cards is not "wholly independent" or
"unrelated" other crimes evidence. (Citations omitted.)
Trombley, 620 P.2d at 368. As is apparent, the standard being
applied by this Court had markedly changed from Frates.
In State v. Romero (1986), 224 Mont. 431, 730 P.2d 1157, the
defendant asserted that testimony about his activities on the day
before he was arrested and about his sales of marijuana to the
undercover agent did not meet the requirements of State v. Just.
In response to that contention, in holding that the evidence was
properly admissible, this Court stated:
Evidence of acts which are inextricably or
inseparably linked with the crime charged is admissible
without regard to the rules governing "other crimes"
evidence. State v. Riley (1982), 199 Mont. 413, 649 P.2d
1273, 1279, 39 St.Rep. 1491, 1499. . .. We conclude
that these prior acts, which occurred a feu hours before
his arrest, are inextricably linked to the charged crime
of possession of marijuana with intent to sell.
Therefore, the Just and Jenson requirements do not apply
to the testimony about Mr. Romero's activities in
Columbus.
Romero. 730 P.2d at 1162. The clear holding was that evidence of
acts which are inextricably or inseparably linked with the crime
charged are admissible without regard to the other crimes evidence
rules under the Just Rule.
In State v. Ungaretti (l989), 239 Mont. 314, 779 P.2d 923,
this Court referred to the above quoted holding from Romero. In
concluding that the other crimes evidence was introduced merely as
a part of the corpus delicti, the Court stated:
We conclude there is no question but that the
activities of the appellant which resulted in her arrest
in Nevada were inseparable and formed much of the basis
of the crime charged here. . . .
In Gillham andm,. . . this Court held that the
State is entitled to Present the entire corpus delicti of
the charged offense including matters closely related to
the offense and explanatory of it. 'I The events which
took place in Nevada supported and explained the State's
position at trial: that appellant had constructive
possession of the marijuana while she was in Montana. .
. . We conclude that the "other crimes" evidence was
introduced merely as a part of the corpus delicti and
thus did not constitute reversible error.
Unqaretti, 779 P.2d at 926.
State v. Christensen (1990), 244 Mont. 312, 797 P.2d 893, is
a case somewhat more comparable to our present case. In that case
the defendant was charged in two separate counties with marijuana
growing operations and the possession and sale of marijuana. The
state argued that the evidence from Flathead County was not other
crimes evidence and was admissible as an inextricable and
inseparable part of the corpus delicti of the Glacier County
operation. The State attempted to contend that the defendant was
conducting a single growing operation in two different locations.
In response to that contention the Court stated:
We disagree with the State's argument. While the
Flathead and Glacier Counties operations were nearly
identical operations carried out by the same individuals,
the similarity of crimes is not the test of whether they
fall within the same corpus delicti. The issue is
whether the evidence of the Flathead County drug
operation is inextricably or inseparably linked to the
Glacier County operation. We hold that it is not. The
State has not shown that a jury could not fully
comprehend the crimes charged in Glacier County without
reference to the Flathead County evidence. (Emphasis
added. )
Christensen, 797 P.2d at 898. The facts in our present case are
similar to this aspect of Christensen. Here the only connection
between the sales of May 3 and May 4, is that the parties were the
same and that cocaine was sold in both instances. However, the
State has failed to demonstrate that the evidence of the May 3 sale
was in any manner inextricably or inseparably linked to the May 4
sale. Under that circumstance, the evidence is not admissible. As
pointed out in Christensen, the similarity of crimes is not the
test of whether they fall within the same corpus delicti. We
further point out that as stated in Uncfaretti, the evidence may be
admissible if it is closely related to the offense and "explanatory
of it." There is nothing presented in the facts of the present
case to demonstrate that the May 3 sale is explanatory of the May
4 sale.
We hold the District Court committed reversible error in
allowing the introduction of another drug sale which took place the
day prior to the offense charged.
We reverse the judgment of the District Court and remand for
further proceedings consistent with this opinion.
We Concur:
I
October 6, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
JAMES A. MANLEY
Attorney at Law
201 Fouth Ave. East
Polson, MT 59860
HON. MARC RACICOT, Attorney General
, Assistant
Justice Bldg.
Helena, MT 59620
SCOTT SPENCER, County Attorney
Lincoln County
512 California
Libby, MT 59923
ED SMITH
CLERK OF THE SUPREME COURT
STATEf,OF MQNTANA