NO. 95-273
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
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,
Cregg Coughlin, Assistant Attorney General,
Helena, Montana
Kim Christopher, Lake County Attorney,
Mitchell Young, Deputy County Attorney,
Poison, Montana
Submitted on Briefs: November 2, 1995
Decided: December 5, 1995
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.
Defendant Bethany Lee Long appeals the judgment of the
Twentieth Judicial District Court, Lake County, convicting her of
three felony counts of criminal sale of dangerous drugs in
violation of 5 45-g-101, MCA (1991). We affirm in part and reverse
in part.
The issues on appeal are as follows:
1. Did the District Court err in refusing Long's proposed
jury instruction regarding the credibility of informant testimony?
2. Did the District Court err in sentencing Long without
insuring that evidence offered in mitigation was properly made a
part of the record?
3. Did the District Court err in reserving its determination
of Long's status as a dangerous or nondangerous offender?
FACTS
The Mission Mountain Drug Task Force based in Ronan employed
Troy Stevens as an undercover informant. Stevens had previously
been charged with criminal possession of marijuana and, as a result
of that charge, agreed to act as an informant if the authorities
would take the charge off his record. Stevens worked off his fine
as a part-time informant and later became a full-time informant for
the Mission Mountain Drug Task Force. The task force paid Stevens'
rent and paid him for each drug buy.
On April 28, 1993, Stevens met an individual he later
identified as Bethany Long at the Club Bar in Ronan. Long told him
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that she had some "smoke" if he was looking to buy some. Stevens
left the bar and contacted agents of the task force who searched
him, attached a body wire, and provided him with money to buy the
drugs. Stevens returned to the bar, met Long, and purchased a
quarter-ounce bag of marijuana. After the drug purchase, Stevens
met again with agents of the task force. On May 7, 1993, Stevens
and Long met at the Midnight Market in Ronan, where Stevens
purchased marijuana under task force supervision. On June 2, 1993,
Stevens called Long at her home to arrange a third marijuana
purchase which was made in Long's vehicle later that day. A task
force agent observed and recorded this third and final transaction
between Long and Stevens, though the agent only had a profile view
of the driver of the car.
The material purchased by Stevens was analyzed by the State
Crime Lab and determined to be marijuana. Long was subsequently
charged with three felony counts of criminal sale of dangerous
drugs in violation of § 45-9-101(l), MCA (1991). Following a jury
trial in January 1995, Long was convicted on all three counts. On
March 10, 1995, the District Court sentenced Long to a term of
twenty years in the Women's Correctional Facility, with thirteen
years suspended. This appeal follows.
ISSUE 1
Did the District Court err in refusing Long's proposed jury
instruction regarding the credibility of informant testimony?
3
We review jury instructions in criminal cases to determine
whether the instructions as a whole fully and fairly instruct the
jury on the law applicable to the case. State v. Claric (Mont.
1995), 894 P.2d 946, 949, 52 St. Rep. 377, 378 (citing State v.
Brandon (19941, 264 Mont. 231, 237, 870 P.2d 734, 737; State v.
Lundblade (1981), 191 Mont. 526, 529-30, 625 P.2d 545, 548).
Long's defense at trial was one of general denial and mistaken
identity. Stevens was the only individual who positively
identified her as the individual who sold him marijuana and Long
argues that the issue of Stevens' credibility is crucial to her
case. Long proposed the following jury instruction to the District
Court:
You have heard testimony that Troy Stevens, a
witness, has received compensation and favored treatment
from the state in connection with this case. You should
examine this testimony with greater caution than that of
ordinary witnesses. In evaluating this testimony, you
should consider the extent to which it may have been
influenced by the receipts of compensation and favored
treatment from the state.
The District Court refused Long's proposed instruction and instead
gave the following general instruction regarding witness
credibility:
You are the sole judges of the credibility, that is
the believability, of all the witnesses testifying in
this case, and of the weight, that is the importance, to
be given their testimony. In judging the effect of
evidence you must be fair and impartial and not
arbitrary. While you have discretion in judging the
effect of evidence, you must exercise that discretion in
accordance with these instructions.
4
The evidence presented by one witness whom you
believe is sufficient for the proof of any fact in this
case.
You are not bound to decide any fact based upon the
testimony of a larger number of witnesses whose testimony
does not convince you against the testimony of a smaller
number of witnesses or against a presumption, or other
evidence which does convince you.
In determining what the facts are in the case, it
may be necessary for you to determine what weight should
be given to the testimony of each witness. To do this
you should carefully consider all the testimony given,
the circumstances under which each witness has testified,
and every matter in evidence which tends to indicate
whether a witness is worthy of belief. You may consider:
1. The appearance of each witness on the stand,
his manner of testifying, his apparent candor or lack of
candor, his apparent fairness or lack of fairness, his
apparent intelligence or lack of intelligence, his
knowledge and means of knowledge on the subject upon
which he testifies.
2. Whether the witness has an interest in the
outcome of the case or any motive, bias or prejudice.
3. The extent to which each witness is either
supported or contradicted by other evidence in the case.
4. The capacity of the witness to perceive and
communicate.
5. Proof that the witness has a bad character for
truthfulness.
If you believe that any witness willfully testifies
falsely as to any material matter in the case, you must
reject such of his testimony as you believe to be false
and you have the right to view the rest of his testimony
with distrust and in your discretion disregard it,
unless, after examination of all the evidence, you find
such testimony worthy of belief. You need not find a
witness's testimony false if he or she while testifying:
unintentionally commits an error in his or her
testimony, or is unintentionally mistaken as
to some matters or facts about which he or she
testifies, or gives evidence concerning
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matters not material in this case without
intention of deceiving the Court or jury.
Long claims that her proposed instruction goes to the essence
of her defense and that denial of the instruction violated her
substantial rights, constituting reversible error. The State
maintains that viewed as a whole the instruction given was proper
and that Long had the opportunity at trial to present the issue of
Stevens' credibility as a paid informant.
District courts are given broad discretion in instructing the
jury and while the defendant is entitled to have instructions on
her theory of the case, she is not entitled to an instruction
concerning every nuance of her argument. State v. Ross (1995), 269
Mont. 347, 358, 889 P.2d 161, 167. If the instructions, as a
whole, fully and fairly present the applicable law, they will be
deemed to be sufficient. State v. Goodwin (1991) 249 Mont. 1, 13,
813 P.2d 953, 961. To constitute reversible error, the district
court's actions must affect substantial rights of the party. State
v. Bradley (1995), 269 Mont. 392, 395, 889 P.2d 1167, 1168.
We have stated that the "testimony of informants should be
scrutinized closely to determine 'whether it is colored in such a
way as to place guilt upon a defendant in furtherance of the
witness's own interests.'" State v. Gommenginger (1990), 242 Mont.
265, 273, 790 P.2d 455, 460 (citing Fletcher v. United States
(D.C. Cir. 1946), 158 F.2d 321, 322). In Gommensinser, however,
the issue was the scope of cross-examination rather than the
sufficiency of jury instructions. We determined that limiting
6
cross-examination of an informant's background could result in the
jury viewing the credibility of the informant in a vacuum. We
stated that the defendant should be afforded latitude in
cross-examining drug informants and should be allowed to introduce
evidence regarding informants' drug use relevant to their motive to
testify falsely. Gommensinser, 790 P.2d at 461. Our review of the
record indicates that Stevens was cross-examined in regard to his
background and status as a paid informant which allowed Long to
establish a possible motive for unreliable testimony.
We directly addressed the issue of jury instructions related
to informant credibility in State v. Webb (1992), 252 Mont. 248,
828 P.2d 1351. Webb proposed two instructions on informant
testimony and credibility which were similar to Long's proposed
instruction. We affirmed the district court's refusal of Webb's
proposed instructions and held that the instructions given by the
court accurately reflected the applicable law. --....-, 828 P.2d at
Webb
1354. One of the instructions given in Webb did specifically
address "paid informants," but our approval of that instruction
does not mean that other general instructions would not have
sufficed. The instruction given by the District Court in this
case adequately addresses witness motive, bias or prejudice, and
bad character for truthfulness. Where the proposed instruction is
adequately covered by a given instruction, it is not error for the
trial court to refuse the proposed instruction. State v. Floyd
(1990), 243 Mont. 269, 275, 790 P.2d 475, 479.
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We therefore conclude that the jury instructions as a whole
accurately reflect the applicable law, and therefore, are
sufficient. In refusing the proposed instruction, the District
Court did not abuse its discretion or affect Long's substantial
rights. We hold that the District Court properly instructed the
jury and affirm the lower court on this issue.
ISSUE 2
Did the District Court err in sentencing Long without insuring
that evidence offered in mitigation was properly made a part of the
record?
Letters on behalf of Long were submitted to the District Court
for purposes of mitigation prior to sentencing. The following
exchange between defense counsel and the District Court regarding
the letters took place at the sentencing hearing.
DEFENSE COUNSEL: Your Honor, I believe the Court has
received some letters from relatives; is that correct?
THE COURT: Yes, the Court has. And they've been placed
in the court file.
The letters were never formally offered into evidence and they do
not appear in the record on appeal. Long argues that the District
Court "may" not have considered the letters as mitigating evidence
since they are not in the record and requests us to remand for a
new sentencing hearing. We do not find Long's argument persuasive.
We addressed the issue of pre-sentence information in State v.
McPherson (1989), 236 Mont. 484, 771 P.2d 120. In McPherson, we
held that "a defendant is entitled to have his sentence predicated
8
on substantially correct information." McPherson, 771 P.2d at
123-24 (citing State v. Baldwin (1981), 192 Mont. 521, 524, 629
P.2d 222, 224; State v. Olsen (1980), 189 Mont. 43, 48, 614 P.2d
1061, 1064; State v. Knapp (1977), 174 Mont. 373, 379, 570 P.2d
1138, 1141).
The defendant has an affirmative duty to present evidence
showing inaccuracies in the sentencing information. State v.
Trangsrud (1982), 200 Mont. 303, 308, 651 P.2d 37, 40 (citing State
v. Radi (1979), 185 Mont. 38, 41, 604 P.2d 318, 320). If Long had
wanted to ensure the letters were made part of the record, the
defense counsel needed to do more than merely ask the District
Court if it had received them. Section 46-18-115, MCA (1991),
states that at the sentencing hearing the court shall give the
defendant the opportunity to make a statement and "to present any
information in mitigation of punishment or reason why the defendant
should not be sentenced." Long did not attach the letters to her
sentencing memorandum nor did she move their admission into
evidence. Since the letters were never offered by Long as evidence
there can be no error based on their absence from the record.
Long also argues that the District Court 'I may 'I not have
considered the letters. In McPherson, we stated that this Court
"will not strain at worst-case assumptions in order to find a
mistake and we presume the District Court to be correct."
McPherson, 771 P.2d at 124 (citing State v. Herrera (1982), 197
Mont. 462, 643 P.2d 588). There is nothing in the record which
9
supports Long's speculation that the letters were not considered
and we cannot conclude that her sentence was based on inaccurate or
incomplete information. The District Court did not err on this
issue.
ISSUE 3
Did the District Court err in reserving its determination of
Long's status as a dangerous or nondangerous offender?
The District Court sentenced Long to confinement in the
Women's Correctional Facility for a term of ten years with three
years suspended on Count I; for a term of five years with all
suspended on Count II; and for a term of five years with all
suspended on Count III. The imposed sentences ran consecutively
for a total sentence of twenty years, with thirteen years
suspended. The District Court also reserved the right pursuant to
5 46-18-404(4), MCA (1991), to make the determination of whether
Long is a dangerous or nondangerous offender at the time of a
revocation of the suspended sentence.
The District Court's decision to reserve Long's dangerous/
nondangerous designation is a question of law. We review questions
of law to determine if the district court's interpretation is
correct. Farmers Plant Aid, Inc. v. Huggans (1994), 266 Mont. 249,
252, 879 P.2d 1173, 1175.
When the District Court sentenced Long, § 46-18-404(4), MCA
(1991), provided as follows:
If an offender is given a probationary sentence that
is subsequently revoked, the court may make the
10
determination of whether the offender is a dangerous or
nondangerous offender at the time of the revocation
proceeding.
"Probation" is defined in § 46-l-202(21), MCA (19911, as "release
by the court without imprisonment of a defendant found guilty of a
crime. The release is subject to the supervision of the department
of corrections and human services upon direction of the court."
Long contends that the plain language of § 46-18-404(4), MCA
(1991), permits the District Court to "reserve" a dangerous/
nondangerous determination only when the defendant has been given
a probationary sentence and the probationary sentence is later
revoked. Since "probation" is defined as "release by the court
without imprisonment," and since Long was sent to prison, she
argues that the District Court had no authority to reserve the
designation for some future point in time.
The State claims Long's interpretation of the statute is
unreasonable and argues that the suspended portion of Long's
sentence is a probationary period, notwithstanding the fact that
the sentence also includes a term of imprisonment. The State
maintains that in order to determine the true intent of the
Legislature, we must construe § 46-18-404(4), MCA (1991), in
conjunction with other statutory provisions to "attain its evident
object or purpose." Long maintains there is no reason to go beyond
the plain language of the statute but that, nevertheless,
legislative history would support her position that the intent of
11
the Legislature was to address "probationary" sentences which do
not include a term of imprisonment.
Where the language of a statute is clear and unambiguous, we
look no further than to the plain meaning of the statute for its
interpretation. Howell v. State (1994), 263 Mont. 275, 284, 868
P.2d 568, 573. It is only when the intent of the Legislature
cannot be determined from the language of the statute that this
Court will examine legislative history. United States v. Brooks
(19951, 270 Mont. 136, 139, 890 P.2d 759, 761. We conclude that
the language of 5 46-18-404(4), MCA (1991), is clear and
unambiguous.
Under 5 46-18-404(4), MCA (1991), the district court may
reserve making a dangerous/nondangerous determination only if an
offender initially has been given a probationary sentence. Under
5 46-l-202(21), MCA (1991), a probationary sentence does not
include imprisonment. Since Long was sentenced to a term of seven
years in the Women's Correctional Facility, she was not given a
probationary sentence and § 46-18-404(4), MCA (1991), is
inapplicable.
A district court has no power to impose a sentence in the
absence of specific statutory authority. State v. Hatfield (19931,
256 Mont. 340, 346, 846 P.2d 1025, 1029. We conclude that the
District Court did not have statutory authority to reserve its
designation of Long as a dangerous or nondangerous offender and we
reverse the District Court on this issue.
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Pursuant to our holding on this issue, we order stricken from
the District Court's March 10, 1995, Judgment and Commitment the
language which reserves the right to make a dangerous/nondangerous
determination. Furthermore, our review of the record indicates
that Long satisfies the criteria of § 46-18-404(l), MCA (1991),
necessary to be designated as a nondangerous offender. Therefore,
we designate Long as a nondangerous offender for purposes of parole
eligibility.
Justice
We concur:
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December 5, 1995
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 Appellant Defender
P.O. Box 200145
Helena. MT 59620
Deborah Kim Christopher
Lake County Attorney
106 4th Avenue, East
Poison, MT 59860
Joseph P. Mazurek, Attorney General
Cregg Coughlin, Assistant Attorney General
Justice Bldg.
Helena, MT 59620
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY:
Deputy