No. 92-151
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert S. Xeller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David F. Ness, Attorney ena, M:ontana
For Respondent:
Hon. Marc Racicot, Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana
Scott B. Spencer, Lincoln County Attorney, Libby,
Montana
Submitted on Briefs: November 19, 1992
Decided: February 4, 1993
Filed:
'4
.
Clerk
Justice Karla M Gray delivered the Opinion of the Court.
.
Appellant Timothy Maguire Hatfield appeals his convictions of
the felony offenses of criminal sale of dangerous drugs and
conspiracy to sell dangerous drugs. We affirm in part, reverse in
part and remand for resentencing.
We address the following dispositive issues:
1. Did the District Court err in denying appellant's motion
to dismiss Count I1 of the Information, which charged him with
conspiracy to sell dangerous drugs?
2. Did the District Court improperly restrict appellant's
cross-examination of the State's chief witness?
3. Did the District Court err in denying appellant's motion
for a new trial without holding an evidentiary hearing?
4. Did the District Court err when it sentenced appellant to
up to 180 days in jail to be served at the discretion of the
supervising probation officer?
On May 29, 1991, Hatfield was charged by Information with one
count of criminal sale of dangerous drugs, in violation of 5 45-9-
101, MCA, and one count of conspiracy to sell dangerous drugs, in
violation of § 45-4-102, MCA. The charges against Hatfield arose
in the course of an undercover drug investigation conducted by the
Lincoln County Sheriff's Department from September 1990 to May
1991. Hal Turner was employed as an undercover agent and was
instructed to make purchases of dangerous drugs from anyone who
would sell them.
Prior to arraignment on June 10, 1991, Hatfield filed a motion
2
to dismiss the conspiracy count. The District Court denied the
motion.
Hatfield's jury trial Degan on January 29, 1992. The evidence
entered by the State and atf field presented two markedly different
versions of the facts to the jury. At the conclusion of the trial,
the jury found Hatfield guilty of both offenses with which he was
charged. Hatfield's subsequent pro se motion for a new trial was
denied. The District Court sentenced Hatfield to six years at the
Montana State Prison for each offense, suspended the entire
sentence, and placed him on probation with certain conditions.
This appeal followed.
1. Did the District Court err in denying appellant's motion
to dismiss Count I1 of the Information, which charged him with
conspiracy to sell dangerous drugs?
Appellant contends that, even viewing the evidence relating to
the conspiracy in a light most favorable to the prosecution, the
District Court erred as a matter of law in denying his motion to
dismiss the conspiracy charge against him. We agree.
We recently addressed the issue of whether a conspiracy can
exist between a government agent and only one other person in State
v. Shaw (Mont. 1992), - P.2d -I 49 St.Rep. 1012. Relying on
cases from three United States Circuit Courts of Appeal, we
concluded in m:
It is well established that: I8[t]here is neither a true
agreement nor a meeting of the minds when an individual
and that person is a government agent. . . .
'conspires' to violate the law with only one other person
An
individual must conspire with at least one bona fide co-
conspirator to meet the formal requirements of a
conspiracy."
- at 1015 (citations omitted).
Id.
Shaw controls here. The charge against Hatfield of conspiracy
to sell dangerous drugs in violation of § 45-4-102, MCA, is set
forth in Count I1 of the Information as follows:
The facts of the offense are that between January
31, 1991 and February 4, 1991, Defendant agreed to sell
marijuana to Hal Turner, an undercover agent for the
Lincoln County Sheriff's Department, and took $60.00 for
payment for the drug. The offense took place in Lincoln
County, Montana.
It is clear that only two people were involved in the charged
conspiracy: defendant/appellant Hatfield and Turner. The
Information itself also includes the fact that Turner was an
undercover agent.
Pursuant to m,we conclude as a matter of law that Hatfield
did not "conspire" with a bona fide coconspirator and that, as a
result, no conspiracy existed. The District Court erred in denying
appellant's motion to dismiss the conspiracy charge.
2. Did the District Court improperly restrict appellant's
cross-examination of the State's chief witness?
Undercover agent Turner testified at length during the State's
case-in-chief as to the occurrences which formed the basis of the
charges against Hatfield. During cross-examination of Turner by
defense counsel, the following exchange took place:
Q. And typically, I say you probably have the typical
background for an undercover agent, wouldn't you say?
You have been in prison?
A. Yes sir.
Q. And --
[County Attorney]: Objection, Your Honor. Ask--that is
not relevant, move that it be stricken and counsel be
told to quit that.
THE COURT: Sustained. And the answer is stricken.
Appellant argues that sustaining this objection prevented any
cross-examination to impeach Turner's credibility or to establish
his bias, motives and proclivity toward dishonesty. Hatfield
contends that this error by the District Court violated his
constitutional right to confront the witnesses against him.
The importance of the right to confront and cross-examine
under both the Sixth Amendment to the United States Constitution
and Article 11, Section 24 of the Montana Constitution hardly can
be overstated. Indeed, l'[c]ross-examination is the principal means
by which the believability of a witness and the truth of his
testimony are tested." Davis v. Alaska (1974), 415 U.S. 308, 316,
94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353. Counsel traditionally
are afforded wide latitude in the exercise of this right on behalf
of criminal defendants.
The importance of the right to confront and cross-examine,
however, does not reconstruct the record before us. That record is
devoid of support for appellant's argument that his right to
confrontation was violated.
As set forth above, the trial court sustained an objection on
relevancy grounds to the question of whether Turner had ever been
in prison. Trial counsel did not attempt to establish the
relevance of the question; nor did he ask other questions or
attempt to elicit any testimony as to matters in Turner's
5
background which might have related to credibility, bias or motive.
No other limitations or restrictions on counsel's ability to cross-
examine regarding these matters appear of record. Appellant's
characterization of the sustaining of one objection as a summary
termination of his right to confront and cross-examine is, at best,
overzealous.
We note that counsel on appeal includes many pages of "facts"
and exhibits not of record regarding Turner's background. We
remind counsel that parties on appeal are bound by the record and
may not add additional matters in briefs or appendices. State v.
Puzio (1979), 182 Mont. 163, 595 P.2d 1163.
We conclude that the District Court did not improperly
restrictHatfieldVscross-examination ofthe State's chief witness.
3. Did the District Court err in denying appellant's motion
for a new trial without holding an evidentiary hearing?
Appellant filed a pro se motion for a new trial on a number of
different grounds. The District Court heard, and denied, the
motion. Appellant argues that he was entitled to an evidentiary
hearing to determine whether extraneous sentencing information
induced the jury's guilty verdicts.
Citing Rule 606(b), M.R.Evid., and United States v Vasquez
.
(9th Cir. 1979), 597 F.2d 192, appellant contends that when a party
presents evidence that extraneous prejudicial information or
outside influence reached the jury, the trial court should hold an
evidentiary hearing to determine the precise nature of the
extraneous information and whether it could have affected the
verdict. In addition, he relies on United States v. Greer (9th
Cir. 1980), 620 F.2d 1383, for the proposition that courts have not
been hesitant to reverse when extraneous sentencing information has
been interjected into jury deliberations.
Neither Vasauez nor Greer is relevant here. It was undisputed
in Vasauez and Greer that extraneous information had reached the
jury during deliberations; evidentiary hearings were held after
that fact came to the trial court Is attention. Thus, the Ninth
Circuit did not address the very fundamental issue in the case
before us.
The issue here is whether atf field presented evidence
sufficient to trigger an evidentiary hearing on his motion for a
new trial. Our review of the record convinces us that he did not.
Hatfield's pro se motion presented the issue in an unintelligible
manner. In support of the motion, he offered only his spousels
affidavit recounting a post-trial conversation with juror John
Fenison during which, according to Ms. Hatfield, Fenison
that the jurors "were toldv1Hatfield would receive only probation
if convicted. No factual assertions whatsoever were made--either
by Ms. H a t f ield or via juror affidavit pursuant to Rule 606 (b),
M.R.Evid.--that extraneous sentencing information actually reached
the jury. Moreover, during the hearing on the motion, the District
Court made every effort to assist Hatfield in stating his position
clearly; the court explained that evidence as to extraneous
information or influences on the jury could be used to impugn the
verdict, while evidence of jurors1 own perceptions or conversations
during deliberations could not. Following the explanation,
H a t f i e l d did not a s s e r t t h a t extraneous sentencing information or
other influences reached the jury; nor did he request an
evidentiary hearing or pursue the issue further.
Under these circumstances, the District Court did not err
denying Hatfield's motion for a new trial without holding an
evidentiary hearing.
4. Did the District Court err when it sentenced appellant to
up to 180 days in jail to be served at the discretion of the
supervising probation officer?
The District Court sentenced Hatfield to six years in the
Montana State Prison for each offense, suspended the sentence,
fined him $500 to be paid to the Lincoln County Drug Fund, and
imposed various terms and conditions. One of the conditions was
that Hatfield serve 30 days in the Lincoln County jail. The
condition Hatfield asserts as error states in its entirety:
Defendant may be required to serve up to an additional
one hundred-eighty days in the Lincoln County Detention
Facility, at the discretion of the supervising Probation
Officer. This jail time is to be used in the event the
Defendant fails to comply with any rules imposed by this
Court, or by the probation Department. The Probation
Officer has the right to decide the amount of time to be
served for any infraction, up to the entire one hundred
eighty days. The Defendant shall have the right of
appeal of the determination of the Probation Officer that
Defendant spend time in jail. If Defendant appeals the
Probation Officer's determination the violations alleged
by t h e Probation Officer shall be t r e a t e d as a violation
of probation and handled by a Petition for Revocation.
As a threshold matter, we note that Hatfield did not object to
the sentence at the time it was entered and that we generally
decline to review matters not objected to at the trial court. We
have recognized an exception to this rule requiring preservation of
the right to appeal an issue, however, with regard to criminal
sentences. We concluded in State v. Lenihan (1979), 184 Mont. 338,
602 P.2d 997, that a criminal sentence may be reviewed on appeal if
it is alleged to be illegal or in excess of statutory mandates. It
is on this basis that we address the sentencing issue in this case.
We have long held that a district court has no power to impose
a sentence in the absence of specific statutory authority. State
v. Stone (1909), 40 Mont. 88, 105 P. 89; State v. Openshaw (1977),
172 Mont. 511, 565 P . Z ~ 319. The District Court had clear
statutory authority under 9 46-18-201 and 46-18-202, MCA, to
suspend Hatfield's sentence and impose statutorily enumerated
conditions and other conditions necessary to attain the objectives
of rehabilitation and the protection of society. State v. Rogers
(1989), 239 Mont. 327, 779 P.2d 927. Nothing in those statutes or
any other statute, however, authorizes the total jail sentence to
which appellant was sentenced or the manner in which the additional
jail time could be imposed.
Section 46-18-201, MCA, provides that jail time not exceeding
180 days is a reasonable condition during the period of a suspended
sentence. Thus, the maximum jail time to which appellant can be
sentenced pursuant to that statute is 180 days.
Furthermore, no statute specifically authorizes a district
court to delegate sentencing discretion to a probation officer.
The only arguable support for that portion of Hatfield's sentence
here is § 46-18-202, MCA, which permits a district court to impose
conditions it considers necessary for rehabilitation. While we
construed that statutory provision broadly in Dahlman v. District
Court (1985), 215 Mont. 470, 698 P.2d 423, we decline to expand it
to allow delegation of the actual and direct power and discretion
to incarcerate for extended periods of time from the court to a
probation officer.
We conclude that the District Court erred in imposing a
condition that could result in Hatfield being incarcerated for more
than 180 days. We further conclude that the District Court erred
in sentencing Hatfield to jail time to be served at the discretion
of his probation officer.
Affirmed in part, reversed in part and remanded for
resentencing.
We concur: fl
,
1 ' Chief Justice
February 4, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
David F. Ness
Attorney at Law
80 So. Warren
Helena, MT 59601
Hon. Marc Racicot, Attorney General
John Paulson, Assistant
Justice BIdg.
Helena, MT 59620
Scott B. Spencer
County Attorney
5 12 California Ave.
Libby, MT 59923
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
n A