NO. 93-408
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
-v-
THOMAS 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:
William F. Hooks, State Appellate Defender, Helena,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, John
Pa~lson, Assistant Attorney General, Helena,
Montana; Larry J. Nistler, Lake County Attorney,
Polson, Montana
Submitted on Briefs: September 1, 1994
Decided: December 21, 1994
Filed:
Justice James C. Nelson delivered the Opinion of the Court
Appellant Thomas Haskins (Haskins) appeals from his November
27, 1989 conviction by a Twentieth Judicial District Court, Lake
County jury of four counts of criminal sale of dangerous drugs. We
affirm.
BACKGROUND
The factual background and a portion of the procedural
background of this case is set forth in State v . Haskins (1992),
255 Mont. 202, 841 P.2d 542, (Haskins I) and will not be repeated
in any detail here except as necessary to address the issues
raised. Suffice it to say that Haskins is a non-Indian; that the
State criminal offenses of which he was convicted were committed
entirely within the exterior boundaries of the Flathead Indian
Reservation in Lake County, Montana; that he was arrested for those
offenses by law enforcement authorities of the State of Montana;
that he was prosecuted and sentenced for those offenses by the
State of Montana in district court in Lake County; that the
evidence utilized by the State in Haskins' conviction was obtained
as a result of an undercover investigation and controlled drug buys
conducted by police officers employed by the Confederated Salish
and Kootenai Tribes for the Flathead Tribal Police Department, the
evidence being then turned over to the State authorities by those
officers; and that two of the State's witnesses were Indian tribal
police officers.
HaskinsT raised thirteen issues in his first appeal. We
determined that; only eight of those issues had been properly
2
preserved for appeal, and as to those issues, we affirmed. Haskins
I,841 P.2 d 545, 548. On August 18, 1 9 9 3 , Haskins filed a petition
for postconviction relief in this Court alleging ineffective
assistance of counsel, based on his counsel's failure to preserve
the five defaulted issues for appeal. In January 1994, we issued
an order permitting Haskins to go forward with the appeal on those
five issues and authorized the filing of supplemental briefs.
Subsequently, we also granted leave to the Confederated Salish and
Kootenai Tribes to appear amicus curiae.
The five remaining issues which we consider on this appeal
are :
1. Whether the District Court abused its discretion in
not allowing Haskins to call Martin Cramer as an expert
witness?
2. Whether undercover officer Robert Nelson was
competent to testify?
3. Whether Haskins ' conviction should be reversed
because it was based solely upon the testimony of an
undercover officer who was accountable for the same
conduct for which Haskins was convicted?
4. Whether the Confederated Salish and Kootenai Tribes
exceeded its jurisdiction in the investigation of Haskins
by using undercover officer Nelson?
5. Whether cumulative error warrants a new trial?
DISCUSSION
1. Whether the District Court abused its discretion in
not allowing Haskins to call Martin Cramer as an expert
witness?
On the opening day of trial, the prosecution filed a motion in
limine to prohibit Haskins from calling Martin Cramer (Cramer) as
an expert witness. Cramer, a private investigator, had, pursuant
to a court order, investigated undercover officer Nelson in another
case. Following argument, the District Court granted the State's
motion in limine in part and precluded Haskins from calling Cramer
to offer expert opinion testimony on whether Nelson's conduct
deviated from what Cramer considered to be proper training or
instructions for an undercover drug operation. Haskins was,
however, allowed to call Cramer to testify about his (Crarner's)own
background and training as to proper procedure. The defendant did
not call Cramer as a witness and did not raise the District Courtls
order in his motions for new trial.
The State's motion in limine was premised on its allegation
that the prosecutor had first received notice of Haskinsl intent to
call Cramer on the day of trial and on its contention that the
defendant had not complied with the court s pretrial order granting
the State's discovery motion under § 46-25-323, MCA.
Under § 46-15-323 (4)(b), MCA (l987), the defendant was
required to provide the prosecution written notice of certain
defenses within 30 days after arraignment and, simultaneously, to
make available to the State the names and addresses of experts whom
he intended to call at trial together with, among other things,
copies of reports and statements generated by those experts in
connection with the case. The prosecutor argued that the late
notice of Haskins' intention to call Cramer and the failure to
provide any written report or resume from Cramer, precluded the
State from effectively meeting the proposed expert testimony.
The District Court apparently agreed with the State and, in
prohibiting Cramer from offering opinion evidence as an expert, it
imposed one of the sanctions authorized under § 46-15-329(4), MCA
(19891, that is, flprecluding a party from calling a witness,
offering evidence, or raising a defense not disclosed."
We hold that the District Court did not err in granting the
State's motion in limine in part. In the first place, it is well
established that whether a witness is an expert and whether his or
her testimony is admissible is largely within the discretion of the
trial court and that we will not overturn the trial court's
decision on such matters absent an abuse of discretion. State v.
Baker (1991), 249 Mont. 156, 160, 815 P.2d 587, 589. Moreover, in
State v. Clark (19841, 209 Mont. 473, 682 P.2d 1339, we determined
that, under Rule 702, M.R.Evid., a private investigator could not
testify as an expert as to the results of his investigation as such
testimony would not involve l'scientific, technical or other
specialized knowledge." Clark, 682 P.2d at 1345. Accordingly, the
District Court was well within its discretion to preclude Cramer
from offering expert opinion testimony on the results of his
investigation of officer Nelson.
Secondly, we conclude that the court properly sanctioned
Haskins for failing to comply with the discovery order and the
disclosure requirements of § 46-25-323 (4)(b), MCA (1987). In State
v. Waters (1987)~
228 Mont. 490, 743 P.2d 617, we observed that,
consistent with the discovery goals of enhancing the search for
truth, 5 46-15-329, MCA, endows a district court with the
discretion and flexibility to impose sanctions commensurate with
the failure to comply with discovery orders and that, absent a
clear abuse of discretion, we will not interfere with the trial
court's decision. Waters, 743 P.2d at 621. See, also, State v.
Van Voast (l99l), 247 Mont. 194, 202, 805 P.2d 1380, 1385; and
State v. Kaczmarek (1990), 243 Mont. 456, 462, 795 P.2d 439, 443.
Under the circumstances, where Haskins failed to comply with
the disclosure requirements of the court's discovery order and §
46-15-323(4)(b), MCA (1987), and where the offered expert opinion
testimony was not within the requirements of Rule 702, M.R.Evid.,
we hold that the District Court did not abuse its discretion in
granting the State's motion in limine in part, and in sanctioning
Haskins by prohibiting Cramer from offering expert opinion
testimony on the results of his investigation of undercover officer
Nelson.
2. Whether undercover officer Nelson was competent to
testify?
Haskins contends that undercover officer Nelson was not
competent to testify as a witness and that the trial court should
have so ruled as a matter of law. According to Haskins, "Nelson's
inability to tell the truth even though he was under oath is clear
evidence of his inability to understand the duty of a witness to
tell the truth." In support of his position Haskins cites changes
in Nelson's testimony, the witness' apparent disregard of the law,
Rule 601, M.R.Evid., and State v. Phelps (1985), 215 Mont. 217, 696
P.2d 447. We conclude that Haskins' arguments are without merit.
Rule 601, M.R.Evid., provides that every person is competent
to be a witness unless disqualified on the basis of a judicial
6
finding that the witness is incapable of expression concerning the
matter so as to be understood by the judge and jury or incapable of
understanding the duty of a witness to tell the truth. The record
fails to disclose any judicial finding that Nelson was disqualified
under either requirement. Haskins cites no authority that would
require the trial court to disqualify the witness, sua sponte,
after the witness has testified, simply because of inconsistencies
in the witness' testimony. Indeed, were that the rule, the
testimony of very few witnesses would survive disqualification.
Nor does State v. Phelps, support Haskins' position. In that
case we affirmed the district court's finding that a five year old
witness was competent to testify, noting that competence of the
witness is unaffected by inconsistencies in perception but rather
is determined by capacity of expression and appreciation of the
duty to tell the truth. Phelps, 696 P.2d at 453. Moreover, it is
axiomatic that inconsistencies in a witness' testimony go to the
matter of credibility, not competence to testify. State v . Newman
(1990), 242 Mont. 315, 321, 790 P.2d 971, 974.
Finally, Nelson's appreciation of his duty to tell the truth
is not necessarily diminished by prior violations of the law. See,
Commission Comments to Rule 609, M.R.Evid., "[tlhe Commission does
not accept as valid the theory that a person's willingness to break
the law can automatically be translated into willingness to give
false testimony."
Accordingly, we hold that Haskins has not demonstrated
reversible error in his claim that undercover officer Nelson was
incompetent to testify as a witness
3. Whether Haskins' conviction should be reversed
because it was based solely upon the testimony of an
undercover officer who was accountable for the same
conduct for which Haskins was convicted?
Haskins contends that undercover officer Nelson, as the
purchaser of dangerous drugs during the controlled buys, was
legally accountable for the defendant's conduct as an accomplice
and that, accordingly, Nelson's testimony was required to be
corroborated by other evidence tending to connect the defendant
with the commission of the offenses. Haskins cites §§ 45-2-301,
45-2-302 and 46-16-213,MCA.
Aside from the fact that Haskins did not raise this issue
before the trial court--that failure being fatal, without more, to
his raising this issue for the first time on appeal, ( 5 5 46-20-104
and 46-20-701, MCA)--our prior case law does not support his
position, in any event. In State v. Godsey (1982), 202 Mont. 100,
108, 656 P.2d 811, 815, we rejected the argument that a person who
was offered marijuana by the accused and who subsequently testified
under a grant immunity from prosecution was rendered an accomplice
and was legally accountable for defendant's possession of
marijuana. Likewise, we reject Haskins' claim of error on this
issue, and we hold that undercover officer Nelson was not legally
accountable for defendant's sales of dangerous drugs.
4. Whether the Confederated Salish and Kootenai Tribes
exceeded its jurisdiction in the investigation of Haskins
by using undercover officer Nelson?
Haskins contends that the Indian tribal police officers who,
as a result of their extended investigation, gathered the evidence
8
ultimately used in his conviction exceeded their authority.
Haskins maintains that where the Indian tribe lacks criminal
jurisdiction to prosecute a person for a criminal offense committed
within the exterior boundaries of the reservation, the tribal
police officers only have the power to detain and to promptly eject
the offender and do not have the power to undertake a lengthy
criminal investigation. We disagree.
As the United States Supreme Court pointed out in Duro v.
Reina (1990), 495 U.S. 676, 680-81 n.1, 110 S.Ct. 2053, 2057, 109
L.Ed.2d 693, 700-01, jurisdiction in "Indian country" is controlled
"by a complex patchwork of federal, state and tribal law."
However, there is little question that, under the law as it
presently stands, Indian tribes do not have criminal jurisdiction
to prosecute nowIndians for crimes committed in Indian country.
Oliphant v. Suquamish Indian Tribe (1978), 435 U.S. 191, 195, 98
S.Ct. loll, 55 L.Ed.2d 209.
Moreover, with respect to crimes committed by non-Indians in
Indian country, it is also clear that the prosecution of such
offenses must be accomplished either by the federal government,
(see 18 U.S.C. §§ 1152, 1153) or by the state. A state's ability
to prosecute crimes committed by non-Indians in Indian country is
limited, however. Basically, the State of Montana may not
prosecute a criminal offense committed by a non-Indian in Indian
country where the victim of the offense is an Indian or where
Indian property is the subject of the offense. However, the State
may prosecute a criminal offense committed by a non-Indian in
Indian country where the victim of the offense is a non-Indian or
where the offense involves a "victimless" crime. See, State v.
Greenwalt (1983), 204 Mont. 196, 663 P.2d 1178; Solem v. Bartlett
(1984), 465 U.S. 463, 465, n.2, 104 S.Ct. 1161, 79 L.Ed.2d 443;
State v. Thomas (1988), 233 Mont. 451, 760 P.2d 96; State v.
Schaefer (l989), 239 Mont. 437, 781 P.2d 264; State ex rel. Poll v.
Mont. 9th Jud. Dist. (l993), 257 Mont. 512, 851 P.2d 405; and
LaPier v. McCormick (9th Cir. 1993), 986 F.2d 303.
Furthermore, the State may assume criminal jurisdiction over
crimes committed in Indian country with the consent of the affected
tribe under Public Law No. 83-280, Act of August 15, 1953, 67 Stat.
588 (l953), (PL 280). In Montana, the State has assumed PL 280
criminal jurisdiction on the Flathead Reservation. See, State ex
,
rel. McDonald v. District Ct. of Fourth J.D. (1972) 159 Mont. 156,
496 P.2d 78; 5 5 2-1-301, et seq. MCA; and Campbell v. Crist (D.
Mont. 1980), 491 F.SUpp. 586.
In this case, the State of Montana's jurisdiction to prosecute
Haskins, a non-Indian, for his drug sales offenses committed within
the exterior boundaries of the Flathead Reservation derives from
the Tribe's inability to prosecute (Oliphant and Poll) and from the
State's authority to prosecute, not only under PL 280 and §§ 2-1-
301, et seq., MCA, but also since the offenses, sales of dangerous
drugs through controlled undercover buys, were victimless crimes.
Accordingly, there is no question that the State had
jurisdiction to prosecute Haskins for the criminal offenses which
he committed within the exterior boundaries of the Flathead
Reservation. Contrary to the defendant's position, however, it
does not then follow that since the State had criminal jurisdiction
to prosecute Haskins, the tribal police officers were thereby
precluded from investigating and gathering evidence of his offenses
and then turning that evidence over to the proper jurisdiction with
authority to prosecute his crimes.
Indian tribes have authority to enact ordinances regulating
the conduct of their members and to employ law enforcement officers
to enforce such ordinances and to maintain the peace. See,
generally, Williams v. Lee (1959), 358 U.S. 217, 79 S.Ct. 269, 3
L.Ed.2d 251. See also, United States v. Wheeler (1978), 435 U.S.
313, 98 S.Ct. 1079, 55 L.Ed.2d 305; Montana v. United States
(1981), 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493. Moreover,
tribal police officers have the power to restrain non-Indians who
commit offenses within the exterior boundaries of the reservation
and to eject them by turning such offenders over to the proper
authority with jurisdiction to prosecute. m, 495 U.S. at 697,
110 S.Ct. at 2065-66, 109 L.Ed.2d at 711; State v. Horseman (1993),
263 Mont. 87, 96, 866 P.2d 1110, 1116.
Incident to those powers of the tribe, tribal police also have
authority to investigate violations of state and federal law.
Ortiz-Barraza v. United States (9th Cir. 1975), 512 F.2d 1176. As
stated by the Court, " [tlhe power of the Papago to exclude non-
Indian state and federal law violators from the reservation would
be meaningless were the tribal police not empowered to investigate
such violations. Obviously, tribal police must have such power."
Ortiz-Barraza, 512 F.2d at 1180.
The Washington Supreme Court addressed a similar issue as that
raised by Haskins, in State v. Schmuck (Wash.1993), 850 P.2d 1332,
cert. denied, - U.S.-, 114 S.Ct. 343, 126 L.Ed.2d 308. In
Schmuck, the Washington Court addressed the authority of tribal
authorities to stop a nowIndian who was driving a vehicle on a
public road within the Suquamish Reservation. The court held that
a tribal officer had authority to investigate a violation of state
law prior to delivery of the offender to state law enforcement.
Similarly, in State v. Ryder (N.M.App.1982), 649 P.2d 756, a
tribal officer's detention and search of a non-Indian suspected of
illegal drug possession pending arrival of a state police officer
was upheld as a valid tribal power.
Finally, in State v. Zackuse (1992), 253 Mont. 305, 833 P.2d
143, we upheld the conviction of a non-Indian in a state court
prosecution that was based on evidence gathered by a tribal police
officer. That case involved a non-Indian defendant whose illegal
drug sales activity on the Flathead Reservation was investigated by
tribal officers. As here, a tribal police officer testified
against the defendant in state district court trial which resulted
in the defendant's conviction of criminal sale of dangerous drugs.
Zackuse argued that the iflvestigation of his illegal drug
activities by tribal police exceeded the tribe's jurisdiction and
authority; violated unspecified federal and state constitutional
rights; and subjected him, a non-Indian, to tribal law. Zackuse
833 P.2d at 309. We disagreed and, while not analyzing that issue
in any depth, we noted that " [tlhe fact that this criminal
investigation was conducted by a tribal law enforcement officer has
no relevance in determining the jurisdiction of this case."
Haskins distinguishes this line of cases by arguing that
tribal authorities only have jurisdiction to detain the non-Indian
offender for as long as is necessary to turn him over to state
authorities. Here, according to Haskins, the tribal officers
failed to detain and promptly eject him and failed to turn the
evidence of his unlawful drug activity over to the State
authorities after the first drug sale. Instead, argues Haskins,
the tribal police officers exceeded their authority by engaging in
an extended and ongoing investigation and in gathering evidence of
subsequent drug sales.
Haskins draws a distinction that we are simply not willing to
accept. We are not cited to any authority that so limits the
authority of tribal law enforcement to investigate and gather
evidence of criminal activities on the reservation. While tribal
authorities have jurisdiction to detain and eject a nowIndian
offender, it does not follow that the non-Indian offender has a
"right" to immediate detention and ejectment. Since tribal police
officers have authority to investigate unlawful criminal activity
on the reservation, then it is reasonable that they would also have
authority to conduct a proper and thorough investigation, to gather
the evidence necessary for a successful prosecution and then, in
due course, to turn that evidence over to the proper jurisdiction
with authority to prosecute any non-Indians involved.
Haskins fails to point to any authority directly supporting
his position or to any State or federal constitutional right that
was violated by the manner in which the tribal officers proceeded
in this case. Haskins was not detained, arrested, prosecuted or
sentenced by any tribal authorities; none of his constitutional
rights concerning detention, search and seizure, arrest or
prosecution were implicated by the conduct of the tribal officers
involved in this case. The evidence used against Haskins at trial
was admissible evidence. The fact that admissible evidence was
gathered by peace officers employed by a jurisdiction without
authority to prosecute does not render the evidence per se
inadmissible for use by a jurisdiction with such authority. Under
the circumstances here, we conclude that Haskins has not
demonstrated reversible error as to this issue, and we hold that
the Confederated Salish and Kootenai Tribe did not exceed its
jurisdiction in this case.
5. Whether cumulative error warrants a new trial?
Having found no reversible error in any of the above issues
raised by Haskins, nor in the issues raised in Haskins I, any
consideration of his claim of cumulative error is moot.
Accordingly, Haskins' conviction is, in all respects, and the
District Court's denial of his
We Concur:
14
December 21, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
William F. Hooks
State Appellate Defender
P. 0. Box 200145, Capitol Station
Helena, MT 59620-0145
Hon. Joseph P. Mazurek, Attorney General
John Paulson, Assistant
215 N. Sanders, Justice Building
Helena, MT 59620
Larry J. Nistler,
County Attorney
106 4th Avenue E.
Polson, MT 59860
John B. Carter and Daniel Belcourt
Tribal Legal Department
Confederated Salish and Kootenai Tribes
P.O. Box 278
Pablo, MT 59855
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY:
Deputy ' / U'