NO. 91-449
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JAMES ZACKUSE,
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, Poison,
Montana
For Respondent:
Hon. Marc Racicot, Attorney General, John Paulson,
Assistant Attorney General, Helena, Montana
Larry J. Nistler, County Attorney, Mitchell A.
Young, Deputy County Attorney, Polson, Montana
Submitted on Briefs: May 28, 1992
Decided: June 30, 1992
Filed:
Chief Justice J.A. Turnage delivered the Opinion of the Court.
James Zackuse (Zackuse) appeals his five convictions for
criminal sale of dangerous drugs following a jury trial in the
Twentieth Judicial District, Lake County. We affirm.
We rephrase the issues presented on appeal as follows:
1. Did the District Court err by admitting State's Exhibit
No. 4 as evidence of the receipt of the dangerous drugs from the
State Crime Lab?
2. Did the investigation of Zackuse's drug activities by
tribal police officers exceed the tribe's authority and violate
Zackuse's constitutional rights?
On November 21, 1990, Zackuse was charged by information with
five counts of criminal sale of dangerous drugs in violation of §
45-g-101, MCA. He was accused of selling marijuana and psilocybin
mushrooms to a confidential informant on five separate occasions
from December 26, 1989, to January 30, 1990. Zackuse pled not
guilty to all five counts on November 28, 1990.
On May 10, 1991, following a two-day trial, a jury found
Zackuse guilty of all five counts. On May 29, 1991, the District
Court sentenced him to five concurrent terms of forty years
imprisonment, with twenty years suspended on each count, and
ordered him to pay a $2,500 fine to the Lake County Drug Fund.
From these convictions, Zackuse now appeals.
1. Did the District Court err by admitting State's Exhibit
No. 4 as evidence of the receipt of the dangerous drugs from the
2
State Crime Lab?
Zackuse argues that State's Exhibit No. 4, a State Crime Lab
form, contained inadmissible hearsay evidence regarding the chain
of custody of the drug evidence between David Morigeau (Moriqeau),
the investigating officer, Lori Moffat (Moffat), a State Crime Lab
employee, and Judith Hoffman (Hoffman), a State Crime Lab analyst.
Zackuse further argues that State's Exhibit No. 4 is not excepted
under Montana Rule of Evidence 803(8), which excepts public records
and reports from the hearsay rule. In order to analyze Zackuse's
arguments, an examination of the pre-trial record as well as the
transcript of the trial is necessary.
On April 8, 1991, a deputy county attorney filed a notice of
the State's intention to introduce Hoffman's written report on her
analysis of the drug evidence in this case under Montana Rule of
Evidence 803(8). At a April 17, 1991 hearing, Zackuse's attorney
indicated that he would object to the introduction of this report.
The District Court ordered briefs on the matter.
On April 30, 1991, the deputy county attorney filed a motion
and supporting brief to admit Hoffman's report under Montana Rule
of Evidence 104(a). The supporting brief stated: 1) the evidence
in this case had been analyzed by Hoffman, 2) the deputy county
attorney had notified the State Crime Lab as soon as the May 9
trial date had been set, and 3) the State Crime Lab had advised the
deputy county attorney that Hoffman was on maternity leave and
would be unavailable to testify on May 9. The State's brief cited
Montana Rule of Evidence 803(8), which brings written reports from
the State Crime Lab within the public records exception to the
hearsay rule when the State has notified the District Court and
opposing parties in writing of its intention to offer such a report
as evidence at trial in sufficient time for an opposing party to
obtain pre-trial depositions or to subpoena the attendance of the
person responsible for compiling the report. Zackuse's counsel did
not obtain a pre-trial deposition of Hoffman, subpoena for
Hoffman's attendance, or file a response or a brief in opposition
to this motion. This motion was not discussed at the pre-trial
hearing on May 8, 1991.
At trial, the deputy county attorney attempted to introduce
Hoffman's report through the testimony of Morigeau. Morigeau
testified that at the completion of the investigation, he hand-
delivered all of the drug evidence to the State Crime Lab. He
testified that he had given the drug evidence to Moffat at the
State Crime Lab and that according to the chain of custody log, she
in turn gave it to Hoffman. Zackuse's counsel objected to this
testimony on the basis of hearsay. The District Court sustained
the objection.
Morigeau then testified that he had received Hoffman's report
from the State Crime Lab. The deputy county attorney then
attempted to introduce Hoffman's report into evidence. Zackuse's
counsel, however, objected on the basis that the chain of custody
had not been established. The District Court sustained the
objection.
The deputy county attorney laid further foundation for
4
admission of Hoffman's report by eliciting from Morigeau that he
had delivered five sealed envelopes inside a larger envelope to the
State Crime Lab containing drug evidence in this case and that he
had received the evidence back from Hoffman of the State Crime Lab,
along with a completed form, which included a chain of custody log
of the drug evidence listing the names of the persons at the State
Crime Lab who had handled the evidence. Morigeau testified that
this form had the same lab case number that the drug evidence had
been given at the time he delivered it to the State Crime Lab. The
deputy county attorney moved for the admission of the form, marked
as State's Exhibit No. 4. Zackuse's attorney objected to its
admission on the grounds that it did not fall within the hearsay
exception of Montana Rule of Evidence 803(8) and the State's notice
concerning its intention to introduce Hoffman's report into
evidence did not include the admission of this form. The District
Court overruled Zackuse's objection and allowed the admission of
State's Exhibit No. 4 into evidence. The District Court later
allowed the admission of Hoffman's report into evidence.
The determination of whether a proper foundation has been laid
for the introduction of an exhibit into evidence rests within the
discretion of the trial court. State v. Evans (1991), 247 Mont.
218, 227, 806 P.2d 512, 518 (citation omitted). In order to
establish the chain of possession of the drug evidence, it is not
necessary for the State to call as witnesses at trial each person
who had handled the evidence. The foundation for admission of the
drug evidence is sufficient if the State shows that the
5
investigating officer obtained the evidence, sent it to the crime
lab, received it back from the crime lab, and identified it as the
same evidence sent to the lab. State v. Snider (1975), 168 Mont.
220, 227-28, 541 P.2d 1204, 1209. Here, Morigeau testified that he
obtained the drug evidence during the investigation, hand-delivered
it to the State Crime Lab, received it back from the State Crime
Lab, and identified it as the same drug evidence he hand-delivered
to the lab. The District Court then allowed the admission of
State's Exhibit No. 4, which included the chain of custody log of
the drug evidence and lab case number. We hold that the District
Court did not abuse its discretion by admitting State's Exhibit No.
4 as it was evidence of Morigeau's receipt of the drug evidence
from the State Crime Lab and was the final link in the chain of
custody of the drugs.
2. Did the investigation of Zackuse's drug activities by
tribal police officers exceed the tribe's authority and violate
Zackuse's constitutional rights?
Zackuse argues that the investigation of criminal sale of
dangerous drugs is beyond the jurisdiction of tribal law and tribal
enforcement agencies. He argues that a tribe has no criminal
jurisdiction over non-tribal members, the actions of the tribal and
State authorities denied him unspecified state and federal
constitutional rights and subjected him, a non-tribal member, to
tribal law.
Zackuse's jurisdictional and constitutional arguments lack
merit. The fact that this criminal investigation was conducted by
a tribal law enforcement officer has no relevance in determining
the jurisdiction of this case. Additionally, Zackuse failed to
adequately brief his state and federal constitutional arguments.
We therefore decline to further discuss these arguments.
In conclusion, we affirm James Zackuse's five convictions for
criminal sale of dangerous drugs.
We concur:
June 30, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Benjamin R. Anciaux
Attorney at Law
107 Sixth Ave. E., P.O. Box 1670
Polson, MT 59860
Hon. Marc Racicot, Attorney General
John Paulson, Assistant
Justice Bldg.
Helena. MT 59620
Larry A. Nistler, County Attorney
Mitchell A. Young, Deputy
Lake County Courthouse
Polson, MT 59860
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA