NO. 93-650
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
TIMOTHY MAGUIRE HATFIELD,
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:
Ann C. German, Libby, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, John
Paulson, Assistant Attorney General, Helena,
Montana; Scott B. Spencer, Lincoln County Attorney,
Libby, Montana
J
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Submitted on Briefs:
Decided:
October 20, 1994
January 18, 1995
Filed: JAN 1 8 1995
Justice James C. Nelson delivered the Opinion of the Court.
Appellant Timothy Maguire Hatfield appeals from an order of
the Nineteenth Judicial District Court, Lincoln County, denying his
motion for a new trial. We affirm.
The issues on appeal are:
1. Whether the District Court abused its discretion in
denying Hatfield's motion for a new trial.
2. Whether cumulative error warrants a new trial.
This case was previously before us in State v. Hatfield
(1993), 256 Mont. 340, 846 P.2d 1025 (Hatfield I), wherein Hatfield
appealed his convictions of the felony offenses of criminal sale of
dangerous drugs and conspiracy to sell dangerous drugs. In
Hatfield I, we upheld the conviction for the criminal sale of
dangerous drugs, and reversed the conviction for conspiracy to sell
dangerous drugs.
The facts giving rise to the conviction for criminal sale of
dangerous drugs are that Hatfield sold a small amount of marijuana
to Hal Turner. Turner had been hired by the Lincoln County
Sheriff's Department as an undercover agent to buy drugs from
anyone who would sell them. On the morning of December 30, 1990,
Hatfield and another individual, Robert Sprague, went to Turner's
apartment, where according to Turner, Hatfield sold him a small
amount of marijuana for $30. It is undisputed that, at the time
of the sale, the Lincoln County Sheriff's Off ice was unaware of the
transaction and was not supervising Turner; nor was Turner wearing
a body wire. After the sale, Turner contacted Detective Klint
Gassett, informed him of the transaction and turned the marijuana
over to him. Equipped with an electronic monitor, Turner went to
Hatfield's residence that evening in an effort to get a taped
conversation with Hatfield concerning the earlier drug transaction.
Hatf ield denies selling the marijuana to Turner, and testified
at trial that Sprague was the person who sold the marijuana to
Turner. Hatfield claimed that Turner gave the $30 to him, rather
than Sprague, because Sprague owed Hatfield money. On January 30,
1992, a jury found Hatfield guilty of one count of sale of criminal
sale of dangerous drugs, and one count of conspiracy to sell
dangerous drugs. Hatfield appealed his conviction to this Court
and as stated above, we affirmed the conviction for the criminal
sale of dangerous drugs, reversed the conspiracy conviction, and
remanded the case to the District Court for resentencing. Hatfield
I, 846 P.2d at 1025.
We issued the Remittitur on March 1, 1993. Thereafter, on
March 8, 1993, Hatfield filed a pro se motion for a new trial
alleging among other things, that the State failed to disclose the
employment contract between Turner and the Lincoln County Sheriff s
Office. Counsel was appointed for Hatfield on October 4, 1993, and
a hearing on his motion for a new trial was held on November 22,
1993. The parties stipulated to the following facts in a document
entitled "Stipulation Regarding Discovery of Contract of Undercover
Agency," which states:
Defendant has moved the court for an Order granting
to him a new trial due to newly discovered evidence,
discovered following his first trial, to wit, the written
contract of employment between the Lincoln County
Sheriff's Office and the undercover agent, Hal Turner.
It is stipulated that defendant's first attorney, Don
Shaffer, did not request the production of that contract
from the State when he was representing defendant. The
reason for not making that request was that, due to
previous rulings (in other cases in which Mr. Shaffer was
defending persons accused of selling drugs to undercover
agents working for LCSO) , Mr. Shaffer believed that such
a request would be futile.
At the hearing, the State argued that Turner's employment
contract was not "newly discovered evidenceu because the defense
knew Turner had an employment contract with the Lincoln County
Sheriff's Office, and in fact at trial defense counsel cross
examined Turner about the terms of the contract. After considering
the arguments of counsel, the District Court denied the motion for
a new trial at the conclusion of the hearing, and this appeal
followed.
DISCUSSION
1. NEW TRIAL
Hatfield raises three arguments in support of his motion for
a new trial. First, he maintains that the State's "suppression of
the employment contract" was a violation of its duty to disclose
exculpatory evidence, that the suppression prejudiced Hatfield, and
that he is therefore entitled to a new trial. Second, Hatfield
contends that Turner violated the terms of the contract, and the
State's knowledge of, and acquiescence in, this violation was
government conduct so outrageous that it violated his due process
rights. Third, he alleges that he did not discover the existence
of Turner's employment contract with the Lincoln County Sheriff's
Office until after trial, and therefore he is entitled to a new
trial based on this newly discovered evidence.
STANDARD OF REVIEW
A district court may grant a criminal defendant's motion for
a new trial "if required in the interest of justice." Section 46-
16-702, MCA. The decision whether to grant or deny a motion for a
new trial rests within the sound discretion of the trial court, and
will not be overturned on appeal unless an abuse of discretion is
shown. State v. Haskins (1992), 255 Mont. 202, 210-11, 841 P.2d
542, 547, citing State v. DeMers (1988), 234 Mont. 273, 278, 762
P.2d 860, 863-64.
A. EXCULPATORY EVIDENCE
Hatfield argues that the employment contract was exculpatory
evidence, and therefore, the State had an affirmative duty to
disclose the contract according to the rule set forth in Brady v.
Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and
according to the Statersstatutory disclosure obligations set forth
in § 46-15-322, MCA (1989).
According to Brady, "the suppression by the prosecution of
evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution."
Bradv, 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218. In
addition, §§ 46-15-322(1)(e), and 46-15-321(2),MCA (1989)~
provide
that the State has an affirmative duty to disclose, upon request,
Itallmaterial or information that tends to mitigate or negate the
accused's guilt as to the offense charged or that would tend to
reduce his punishment therefor."
Therefore, according to Brady, and §§ 46-15-322(1)(e), and
46-15-321(2), MCA (1989), the State would only have an affirmative
duty to disclose the contract if: (a) the defense requested the
information; Section 46-15-321(2), MCA (1989); and ( b ) if the
contract could be generically referred to Irexculpatoryevidence," -
- which we have previously defined as evidence which tends to clear
the accused of guilt and vitiate the conviction. State v.
Patterson (1983), 203 Mont. 509, 513, 662 P.2d 291, 293; State v.
Craig (1976), 169 Mont. 150, 153, 545 P.2d 649, 651.
Initially, we note that while the defense admitted in the
llStipulation
Regarding Discovery of Contract of Undercover AgencyIr1
that it did not request production of the employment contract, the
State affirmatively represented at the omnibus hearing that it had
provided Hatfield with everything which would tend to negate guilt,
or tend to reduce his punishment. Therefore, the issue of whether
Hatfield actually requested the contract is irrelevant.
Hatfield alleges the employment contract was exculpatory
evidence because it would have evidenced Turner's violation of the
contract's terms. According to Hatfield, if he had been able to
impeach Turner regarding his alleged violation of the contract, he
could have shown that Turner's account of the sale was "false or
susceptible to falsity," thereby supporting Hatfield's allegation
of innocence.
The employment contract provisions which Hatfield claims
Turner breached provide that Turner was "not to handle any drugs at
any time unless specifically directed to do so by the investigating
officer," and that he was "not to participate in any investigations
or any criminal activities unless the investigation is being
directly supervised by a member of the Lincoln County Sheriff's
Department." Therefore, according to Hatfield, Turner violated the
employment contract because the Lincoln County Sheriff's Office was
not supervising Turner at the time of the sale, and because Turner
possessed and used marijuana during the sale. Hatfield concludes
that if he had known of the contract's terms before the trial, he
could have presented evidence of Turner's alleged violation of the
contract.
However, the record does not support Hatfield's argument.
Turner had been directed to purchase drugs from any person who
would sell them to him. Turner testified that he was not under the
immediate supervision of the sheriff's office and was not wearing
a body wire at the time of the sale because Hatfield and Sprague
showed up unexpectedly at his apartment. Turner also testified he
contacted Detective Gassett after the sale, and arranged to turn
the marijuana over to him. Later that day, Turner went to
Hatfield's residence equipped with a body wire, to verify the sale.
In addition, Hatfield was allowed to present his version of events
concerning the sale, and the jury apparently believed the State's
account. Accordingly, we conclude that the employment contract
would not have tended to negate Hatfield's guilt or vitiated his
conviction. Therefore the State had no duty to affirmatively
disclose its existence under the Bradv rule or under § 46-15-
322 (1)(e), MCA (1989).
Finally, we note that the State had no obligation to disclose
the employment contract under the other provisions of § 46-15-322,
MCA (1989), according to our recent opinion in State v. Licht
(1994), 879 P.2d 670, 51 St.Rep. 686. Although Licht addressed §
46-15-322, MCA, according to its terms under the 1991 Montana Code
Annotated, and the 1989 statute applies in this case, the 1991
amendments to § 46-15-322, MCA, did not substantially change the
statute. Therefore, Lichtls reasoning is relevant here.
In Licht, we held that the State has the obligation to
disclose all evidence whether inculpatory or exculpatory if listed
in subsections (1)(a) through (d) and (2)(a) through (c), of that
statute, reasoning that it is not up to the State to determine
whether any such information is inculpatory or exculpatory. Licht,
879 P.2d at 673-74. Here the employment contract is not the type
of material or information listed in § 46-15-322, MCA, subsections
(1)(a) through (d) and (2)(a) through (c), and accordingly, there
was no affirmative duty on the part of the State to provide the
contract to the defense under those subsections.
B. OUTRAGEOUS GOVERNMENT CONDUCT
Hatfield also contends that the State's knowledge of, and
acquiescence in, Turner's alleged violation of the employment
contract, is outrageous government conduct which resulted in a
denial of Hatfield's due process rights. This Court has previously
recognized that illegal conduct of law enforcement may violate the
due process rights of a defendant. Haskins, 841 P.2d at 546.
However, having concluded that Turner did not violate the terms of
his employment contract, it can hardly be argued that he acted
illegally. Therefore, we conclude that this argument is without
merit.
C. NEWLY DISCOVERED EVIDENCE
Hatfield maintains that he did not know of the employment
contract's existence until after trial, and that if he had been
able to present evidence concerning its terms, and Turner1s alleged
violation of those terms, it would have affected the outcome of the
trial.
This Court analyzes motions for a new trial on the basis of
newly discovered evidence according to a six-part test set forth in
State v. Greeno (1959)' 135 Mont. 580, 586, 342 P.2d 1052, 1055,
and discussed more recently in Matter of J.R.T. (1993), 258 Mont.
520, 522, 853 P.2d 710, 711. We need to consider only the first
factor: the evidence must have come to the knowledge of the
applicant since the trial. We conclude that Hatfield was aware of
the employment contract prior to trial and therefore his argument
is without merit.
We base our conclusion primarily on the llStipulation
Regarding
Discovery of Contract of Undercover Agency," which stated that
Hatfield's first attorney, Donald Shaffer, did not request the
document because he thought it would be futile to do so. In
addition, it appears that Hatfield's counsel at the trial level,
David Harman, was also aware of the terms of the employment
contract, as he cross examined Turner concerning the compensation
terms of his employment, the fact that Turner used marijuana during
the investigation, and that Turner did not have an electronic
transmitter or body wire at the time Hatfield sold him the
marijuana .
Accordingly, it is apparent that Hatfield had knowledge of the
employment contract at the time of the trial, and therefore he
cannot now complain that it is newly discovered evidence. State v.
Morris (1988), 230 Mont. 311, 320-21, 749 P.2d 1379, 1384-85.
Having determined that Hatfield was aware of the employment
contract before trial, that the State had no affirmative duty to
disclose the contract, and that the contract was not exculpatory in
any event, we thereby hold that the District Court did not abuse
its discretion in denying Hatfield's motion for a new trial.
11. CUMULATIVE ERROR
Hatfield argues in passing, that cumulative error occurred
because the jury heard evidence of the conspiracy charge, and that
conviction was reversed in Hatfield I, and because the State failed
to disclose the employment contract. According to Hatfield, this
cumulative error entitles him to a new trial. However, given our
conclusion that the State had no affirmative duty to disclose the
employment contract, we are not persuaded by Hatfield's cursory
argument and hold that he is not entitled to a new trial on the
basis of cumulative error.
AFFIRMED.
W e Concur:
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p ~ h i e fJ u s t i c e