State v. Derbyshire

February 3 2009

DA 08-0107

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 27

STATE OF MONTANA,

Plaintiff and Appellee,

v.

JAMES DERBYSHIRE,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. BDC-2007-158
Honorable Julie Macek, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender, Joslyn Hunt, Assistant
Appellate Defender, Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General, Jonathan M. Krauss,
Assistant Attorney General, Helena, Montana

Brant Light, Cascade County Attorney, Joel Thompson, Deputy County
Attorney, Great Falls, Montana

Submitted on Briefs: December 3, 2008

Decided: February 3, 2009

Filed:

__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1 James Derbyshire was convicted in the Eighth Judicial District Court, Cascade

County, of one count of criminal possession of dangerous drugs (marijuana) with intent

to distribute, a felony, in violation of § 45-9-103, MCA (2005). He appeals, arguing that

the District Court erred in denying his pretrial motion to exclude evidence of his status as

a probationer. We agree with Derbyshire and further conclude that the State has not

demonstrated the error was harmless. We accordingly reverse Derbyshire’s conviction,

vacate the District Court’s judgment, and remand this case for a new trial.

BACKGROUND

¶2 As alleged in the State’s probable-cause affidavit, federal and state officers

executed a search of Derbyshire’s residence and vehicle on March 7, 2007. Derbyshire

was present during the search. The officers found three baggies of marijuana and a

digital scale in his pickup and two baggies of marijuana in his jacket (which he was not

wearing at the time). They also found some marijuana hidden in a bedroom ceiling tile.

In sum, the officers allegedly found 639.46 grams of marijuana. The State further alleged

that Derbyshire admitted he had been dealing marijuana since January 2007.

¶3 The case proceeded to trial on December 6, 2007. At a conference held that

morning, the prosecutor informed the court that he would be calling a federal probation

officer and a state probation officer as witnesses. Both officers had been involved in the

search of Derbyshire’s residence and vehicle. The prosecutor noted that he had instructed

the officers not to discuss the reasons why Derbyshire was on probation, but he

acknowledged that “certainly the fact that they are probation officers is going to get the

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jury’s ear.” Thus, he stated he would not have a problem with the court’s giving a

cautionary instruction concerning evidence of prior bad acts.

¶4 Defense counsel objected, arguing that there should be “no reference at all to my

client being on probation.” Counsel pointed out that Derbyshire was not contesting the

legality of the search, and he suggested that the witnesses could identify themselves as

“officers” or “agents” of the State. But the prosecutor contended that it was impossible

for the officers to testify without mentioning that they were “probation” officers. He

explained that he intended to ask questions about their experience and their ability to

identify the marijuana found during the search. Defense counsel replied that “they can do

that without identifying that they’re probation officers.” Counsel suggested the officers

could testify “that they work for the State, that they do searches all the time, that they’re

aware and been trained in what marijuana is, they know its smell, its appearance. I think

that can all be done without going into the fact they are probation officers.” Counsel also

pointed out that identifying them as a federal probation officer and a state probation

officer would imply that Derbyshire had been convicted of not just one, but two felonies.

¶5 The District Court ruled that the officers could identify themselves as “probation

officers.” The court reasoned that “the general rule is that if there is part of a transaction

that involves probation officers that -- in which that is certainly the situation here then the

State’s not required to excise their evidence in order to put their case on trial.” The court

granted defense counsel’s request for a continuing objection to such testimony.

¶6 After the jury was selected and preliminary instructions were given, but prior to

the prosecutor’s opening statement, the District Court (outside the jury’s presence)

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revisited the issue of “probation” references. The court inquired whether the prosecutor

could present the State’s evidence “without making reference to the fact that it was a

probation search.” The court also inquired whether the officers could testify simply “that

they are, in fact, law enforcement officers, and that they conducted this search in that

regard.” The court suggested that redacting the references to Derbyshire’s status as a

probationer might be prudent so as to avoid “a legitimate issue of appeal.”

¶7 The prosecutor, however, responded that “I’m perfectly comfortable with this

going up on appeal as to the prejudice.” He argued that it was necessary to identify the

officers as “probation officers” in order to explain why and on what basis they searched

Derbyshire’s residence and vehicle, what steps they took in executing the search, how

they determined that the substance they found was marijuana, and how they knew that

Derbyshire was the only person living in the residence. He noted that he intended in his

opening statement to tell the jury not to decide the case based on Derbyshire’s status as a

probationer, but he maintained that the fact the officers were “probation” officers

conducting a “probation” search was admissible under the transaction rule (discussed

below) because this evidence was inextricably linked to and explanatory of the search.

¶8 The District Court agreed, reasoning that “the involvement of the probation officer

was part of the transaction of the whole investigation here.” The court also reasoned that

the officers’ status as “probation officers” would be “relevant as to why they had certain

knowledge” and “why they did certain things the way that they did.” Thus, the court

denied Derbyshire’s motion to exclude “probation” references, though the court again

granted defense counsel’s request for a continuing objection to any such references. In

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addition, recognizing that there was “an inherent prejudice” in identifying the witnesses

as “probation officers” and Derbyshire as a “probationer,” the court indicated that it

would give the jury a cautionary instruction. In this regard, the prosecutor suggested that

“a modification of the regular 404(b) instruction” would be sufficient (a reference to the

jury instruction typically given when evidence is admitted under M. R. Evid. 404(b)).

¶9 The District Court then recalled the jury, and the prosecutor gave his opening

statement. At the outset, he told the jury:

On March 7, 2007, Great Falls Police Detective Rob Lopez, a
narcotics investigator, was asked to assist in conducting a search of the
residence of James Derbyshire, the defendant here today. Derbyshire at the
time -- the reason for the search was that information had been received that
Derbyshire was possibly involved in drugs. Derbyshire at the time was a
probationer, and as such his residence was subjected to search on
reasonable suspicion, less of a -- less of a requirement than those of us.
And let me just be clear on something from the get-go. The State,
the defense, and the Court are asking you to weigh this case based only on
the evidence presented, and, in fact, you must do so, and not based in any
way on this defendant’s status as a probationer. I just want to make that
very clear, and she’ll instruct you on that as well.
With that said I’ll continue. . . .

The prosecutor then recounted the search of Derbyshire’s residence and vehicle as well as

the statements Derbyshire made to Detective Lopez. The prosecutor mentioned two of

the probation officers (Jim Brills and Kevin Heiferman) a number of times, referring to

them alternatively as “probation officers,” “police officers,” or simply “Officer Brills”

and “Officer Heiferman.”

¶10 The State called Detective Lopez as its first witness. Among other things, Lopez

testified to the following. He was aware on the day of the search that Derbyshire was a

“probationer.” He discussed with “probation officers” whether Derbyshire was possibly

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engaged in drug activity. He and “the probation office” agreed on how to proceed. They

did not need a warrant to search Derbyshire’s residence because he was a “probationer.”

The “probation officers” involved in the search “were two federal probation officers,

Officer Antonson and Officer Heiferman and two state probation officers which would

have been Officer Brills and Officer Hydes.” Upon their arrival, Derbyshire came out of

the residence because one of the “probation officers” had called him and asked him to

come down to “the probation office” for a meeting. The “probation officers” conducted

the search of the residence. The “probation officers” found an illegal substance. The

“probation officers” gave Lopez the items they had found. While Lopez was

interviewing Derbyshire, the “probation officers” were still at the residence conducting

the search. When Lopez returned to the residence, the “probation officers” turned over

additional drugs. It is pretty common for the police to assist with “probation searches.”

¶11 Over the course of Lopez’s testimony on direct examination (spanning 37 pages of

a double-spaced transcript), “probation” appears 18 times. Notably, the word does not

appear during his testimony on cross-examination. In addition, it is noteworthy that the

prosecutor used the word far more often than Lopez. Indeed, Lopez generally referred to

Antonson, Heiferman, Brills, and Hydes as “officers,” not “probation officers.”

¶12 At the conclusion of Lopez’s testimony, the court gave the following instruction:

The State has presented evidence that the Defendant was on
probation at the time of the search, and this evidence has been submitted for
the sole purpose of explaining the facts surrounding this search. The jury is
prohibited from using this information to assume that somehow the
Defendant is more likely to be guilty of this offense because he was on
probation. He’s to be judged on this offense based only upon the evidence
that is submitted to you regarding this offense and that alone.

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¶13 The State next called Officer Brills. Brills testified that in his “work as a

probation and parole officer, we do a lot of searches and end up finding a lot of

paraphernalia and drugs.” He further testified that in conducting “probation searches,” he

had come across marijuana multiple times and, thus, was familiar with the odor and sight

of the drug. Turning to the search of Derbyshire’s residence, Brills stated that he arrived

with “state probation and parole officer Tim Hydes, federal probation and parole officer

Ray Antonson and federal probation officer Kevin Heiferman, and Detective Rob Lopez,

Great Falls PD.” Brills then described his search of the residence.

¶14 Over the course of Brills’ testimony on direct and redirect examinations (spanning

15 pages), “probation” appears 16 times, almost exclusively in Brills’ answers (as

opposed to the prosecutor’s questions). It even seems that Brills went out of his way to

use the word, as illustrated here:

Q. And did [Derbyshire] exit the residence?
A. He did.
Q. And what happened when he did?
A. He was detained by Officer -- federal probation and parole
officer Heiferman and federal probation and parole officer Antonson as
well as Detective Rob Lopez. Probation and parole officer Hydes and
myself came across the street. We parked across the street.

Similarly, on redirect, Brills testified:

Q. Mr. Brills, was that dropped ceiling throughout the house, or
was it only in the defendant’s bedroom?
A. No, it was also a drop ceiling in the living room and I believe
Officer Hydes and -- probation officer Hydes and federal probation officer
Antonson were looking in the ceiling tile above the ceiling tile in the living
room.

Brills also used “probation” twice during cross-examination.

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¶15 Officer Heiferman’s testimony is not quite as saturated with the word “probation,”

though it does appear eight times in the first two pages of the direct examination where

Heiferman discusses his occupation and prior experience and identifies “[m]yself,

another federal probation officer, Ray Antonson, state probation officers Jim Brills and

Tim Hydes” as the persons who were present at the search of Derbyshire’s residence. All

in all, the prosecutor and the State’s three witnesses used the term “probation” (or some

form of the word, such as “probationer”) 44 times.

¶16 The State and the defense both rested on the first day of trial. The following

morning, prior to closing arguments, the District Court read the jury a number of

instructions, including Instruction No. 10, which stated as follows:

The State has presented evidence that the Defendant was on
probation at the time of the search. This evidence was introduced for the
sole purpose to explain the facts surrounding the search. The jury is
prohibited from using this information to assume that the Defendant is
more likely to be guilty of this offense. He is to be judged on this offense
based only on the evidence regarding this offense alone.

¶17 The jury returned a verdict of guilty. Thereafter, the District Court sentenced

Derbyshire to the Montana State Prison for a term of 20 years, with no time suspended.

Derbyshire now appeals.

ISSUES

¶18 We address two issues on appeal:

1. Did the District Court err in denying Derbyshire’s motion to exclude evidence

of his status as a probationer?

2. If so, has the State demonstrated that the error was harmless?

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 STANDARD OF REVIEW

¶19 A trial court has broad discretion in determining the relevance and admissibility of

evidence. State v. Hicks, 2006 MT 71, ¶ 19, 331 Mont. 471, 133 P.3d 206. Thus, as a

general rule, we review a trial court’s evidentiary rulings for abuse of discretion. State v.

McOmber, 2007 MT 340, ¶ 10, 340 Mont. 262, 173 P.3d 690. A court abuses its

discretion if it acts arbitrarily without the employment of conscientious judgment or

exceeds the bounds of reason, resulting in substantial injustice. McOmber, ¶ 10. In

exercising its discretion, however, the trial court is bound by the Rules of Evidence or

applicable statutes. Thus, to the extent the court’s ruling is based on an interpretation of

an evidentiary rule or statute, our review is de novo. See State v. Mizenko, 2006 MT 11,

¶ 8, 330 Mont. 299, 127 P.3d 458 (“We review a district court’s conclusions of law and

interpretations of the Constitution or the rules of evidence, de novo.”); State v. Incashola,

1998 MT 184, ¶ 9, 289 Mont. 399, 961 P.2d 745 (“Where, as here, a discretionary ruling

is based on a conclusion of law, we review that conclusion to determine whether the court

correctly interpreted the law.”); State v. Weaver, 2008 MT 86, ¶ 10, 342 Mont. 196, 179

P.3d 534 (“The interpretation and construction of a statute is a matter of law, which we

review de novo.”).

DISCUSSION

¶20 Issue 1. Did the District Court err in denying Derbyshire’s motion to exclude
evidence of his status as a probationer?

¶21 We begin with the undisputed proposition that evidence of Derbyshire’s status as a

probationer constitutes evidence that he has committed other crimes, which is generally

9
inadmissible. See State v. Bain, 176 Mont. 23, 29, 575 P.2d 919, 923 (1978) (“As a

general rule, evidence of a separate or collateral crime is not admissible.”); State v.

Tiedemann, 139 Mont. 237, 242, 362 P.2d 529, 531 (1961) (“Proof that [the] accused

committed other crimes, even if they were of like nature to that charged, is not admissible

to show his depravity or criminal propensities, or the resultant likelihood of his

committing the offense charged; nor may such evidence be offered if it only tends to

create a prejudice against the accused in the minds of the jury.”); Michelson v. United

States, 335 U.S. 469, 475, 69 S. Ct. 213, 218 (1948) (“The State may not show

defendant’s prior trouble with the law, specific criminal acts, or ill name among his

neighbors, even though such facts might logically be persuasive that he is by propensity a

probable perpetrator of the crime.”); cf. State v. West, 245 Mont. 298, 301-02, 800 P.2d

1047, 1049-50 (1990).

¶22 One of the dangers in admitting such evidence is that the jury will “ ‘prejudge one

with a bad general record and deny him a fair opportunity to defend against a particular

charge.’ ” State v. Gowan, 2000 MT 277, ¶ 19, 302 Mont. 127, 13 P.3d 376 (quoting

Michelson, 335 U.S. at 476, 69 S. Ct. at 218). A defendant must not be convicted

“merely because he is an unsavory person,” Gowan, ¶ 19, or on the rationale that because

he committed a crime in the past, he has a defect of character that makes him more likely

than people generally to have committed the charged offense, see State v. Medina, 245

Mont. 25, 28, 798 P.2d 1032, 1034 (1990), overruled in part on other grounds, State v.

Olson, 286 Mont. 364, 373, 951 P.2d 571, 577 (1997). Accordingly, we have said that

the general rule barring proof of other crimes “should be strictly enforced in all cases

10
where applicable, because of the prejudicial effect and injustice of such evidence, and

should not be departed from except under conditions which clearly justify such a

departure. The exceptions should be carefully limited, and their number and scope not

increased.” Tiedemann, 139 Mont. at 242-43, 362 P.2d at 531.

Rule 404(b)

¶23 In this connection, M. R. Evid. 404(b) states that while evidence of other crimes,

wrongs, or acts “is not admissible to prove the character of a person in order to show

action in conformity therewith,” it “may . . . be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” The admission of evidence under Rule 404(b), however, requires

compliance with four substantive and three procedural criteria first announced in State v.

Just, 184 Mont. 262, 269, 274, 602 P.2d 957, 961, 963-64 (1979), and subsequently

modified in State v. Matt, 249 Mont. 136, 142-43, 814 P.2d 52, 56 (1991). These criteria

are known as the Modified Just Rule. See Matt, 249 Mont. at 142, 814 P.2d at 56.

¶24 Derbyshire contends that evidence of his status as a probationer does not meet the

substantive criteria of the Modified Just Rule. We need not address that issue, however,

because Derbyshire also points out, correctly, that the State did not comply with all of the

procedural criteria of the Rule. Specifically, evidence of other crimes, wrongs or acts

“may not be received unless there has been written notice to the defendant that such

evidence is to be introduced.” Matt, 249 Mont. at 142, 814 P.2d at 56. The notice must

“specify the evidence of other crimes, wrongs or acts to be admitted, and the specific

Rule 404(b) purpose or purposes for which it is to be admitted.” Matt, 249 Mont. at

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142-43, 814 P.2d at 56; see also § 46-13-109, MCA. In the present case, the State did not

provide such notice. Thus, evidence of Derbyshire’s status as a probationer was not

admissible under Rule 404(b) and Matt.

Section 26-1-103, MCA

¶25 Instead, as discussed above, the State invoked the transaction rule as grounds for

allowing its witnesses to identify themselves as “probation” officers conducting a

“probation” search of the home and vehicle of a “probationer.” Under the transaction

rule, “[w]here the declaration, act, or omission forms part of a transaction which is itself

the fact in dispute or evidence of that fact, such declaration, act, or omission is evidence

as part of the transaction.” Section 26-1-103, MCA. The admission of evidence under

the transaction rule is not subject to the substantive and procedural requirements of the

Modified Just Rule. See State v. Buck, 2006 MT 81, ¶¶ 75-76, 331 Mont. 517, 134 P.3d

53. We thus have characterized the transaction rule as an “exception” to the Modified

Just Rule. See e.g. Buck, ¶ 75; State v. Marshall, 2007 MT 198, ¶ 16, 338 Mont. 395,

165 P.3d 1129; State v. Gittens, 2008 MT 55, ¶ 36, 341 Mont. 450, 178 P.3d 91.

¶26 The District Court agreed with the State’s theory, reasoning that “the involvement

of the probation officer was part of the transaction of the whole investigation here” and

that the officers’ status as “probation officers” would be “relevant as to why they had

certain knowledge” and “why they did certain things the way that they did.” Derbyshire,

however, contends that the District Court erred in this respect. He argues that the “fact in

dispute” at his trial was whether he possessed a dangerous drug with intent to distribute.

See § 45-9-103(1), MCA. He suggests that evidence of this fact would include whether

12
he possessed a dangerous drug and whether he had intent to distribute it. But the specific

roles and titles of the officers who gathered evidence, Derbyshire asserts, had no

consequence on the ultimate issue of whether he possessed a dangerous drug with intent

to distribute.

¶27 The State responds that it “needed to explain how police came to understand

certain facts—i.e., that Derbyshire ‘was possibly engaged in drug activity’ . . . and that

Derbyshire lived alone.” Moreover, the State claims it “was necessary for the officers

who conducted the probation search to establish their knowledge and ability to recognize

marijuana,” it also “was necessary to explain to the jury why the police and probation

officers were there and why they were allowed to be there,” and there was “a need to

differentiate” the roles of the probation officers from the role of Detective Lopez. The

State contends that the only way to accomplish these purposes was to have the officers

identify themselves as “probation officers” and testify that Derbyshire was “on probation

and under their supervision in their capacities as probation officers.” According to the

State, such testimony was admissible under the transaction rule. We disagree.

¶28 First, there is an undertone in the State’s arguments, both here and in the District

Court, that the “probation” references were properly allowed because they were “needed”

and “necessary.” The criterion, however, is “admissibility,” not “need” or “necessity,”

and evidence which is otherwise inadmissible in a criminal trial does not become

admissible merely by showing that the evidence is “needed” or “necessary.” Rather, the

State (or the defendant, as the case may be) must cite and comply with authority—e.g., a

statute or rule of evidence—which allows the evidence in question to be admitted.

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¶29 That being said, the transaction rule, as noted, states that “[w]here the declaration,

act, or omission forms part of a transaction which is itself the fact in dispute or evidence

of that fact, such declaration, act, or omission is evidence as part of the transaction.”

Section 26-1-103, MCA. “Admissibility under the transaction rule is predicated on the

jury’s right to hear what transgressed immediately prior and subsequent to the

commission of the offense charged, so that they may evaluate the evidence in the context

in which the criminal act occurred.” State v. Detonancour, 2001 MT 213, ¶ 29, 306

Mont. 389, 34 P.3d 487 (internal quotation marks omitted). Here, the fact in dispute was

whether Derbyshire possessed a dangerous drug (marijuana) with intent to distribute.

Section 45-9-103(1), MCA. The officers’ status as “probation” officers and Derbyshire’s

status as a “probationer” are neither part of nor evidence of this disputed fact. Nor are

they evidence of what transgressed immediately prior and subsequent to the commission

of the offense charged.

¶30 Indeed, the prosecutor did not offer the officers’ status as “probation” officers and

Derbyshire’s status as a “probationer” in order to prove specifically that Derbyshire

possessed marijuana with intent to distribute. Rather, he candidly offered this evidence

to establish the circumstances surrounding the search. Accordingly, at the conclusion of

Lopez’s testimony, the District Court instructed the jury: “The State has presented

evidence that the Defendant was on probation at the time of the search, and this evidence

has been submitted for the sole purpose of explaining the facts surrounding this search.”

(Instruction No. 10 was to the same effect.) The search, however, was not a fact in

dispute. Consequently, § 26-1-103, MCA, was not a ground for admitting this evidence.

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 “Inextricably Linked To and Explanatory Of”

¶31 The State does not contend that the “probation” references were “part of a

transaction which is itself the fact in dispute or evidence of that fact.” Section 26-1-103,

MCA. Rather, the State identifies in our caselaw several alternative standards of varying

stringency for admitting evidence under the transaction rule. In State v. Wing, 264 Mont.

215, 870 P.2d 1368 (1994), for example, we stated that evidence which “tends to explain

circumstances surrounding the charged offense” is relevant, probative, and competent,

and we associated this standard with § 26-1-103, MCA. See Wing, 264 Mont. at 224-25,

870 P.2d at 1374. In State v. Lozon, 2004 MT 34, 320 Mont. 26, 85 P.3d 753, we stated

that evidence is admissible under the transaction rule if it is “inextricably linked to, and

explanatory of, the charged offense,” and we again associated this standard with

§ 26-1-103, MCA. See Lozon, ¶¶ 11-12. Notably, we also used the phrases “inseparably

related to the alleged criminal act” and “not wholly independent or unrelated to the

charged offense.” Lozon, ¶ 12. The former requires that the evidence fall within narrow

parameters (be “inseparably related”), while the latter requires that the evidence not fall

outside broad parameters (not be “wholly independent or unrelated”). In any event,

based on these standards, the State suggests that evidence of a defendant’s probationary

status is admissible under the transaction rule if it is “inextricably linked to the

circumstances surrounding the crimes charged.” The State observes that we agreed with

this contention on the facts of State v. Bauer, 2002 MT 7, 308 Mont. 99, 39 P.3d 689.

¶32 In considering the State’s argument, we first note that the standards discussed in

the preceding paragraph evolved from this Court’s jurisprudence under the doctrines of

15
corpus delicti and res gestae. See e.g. State v. Hayworth, 1998 MT 158, ¶ 31, 289 Mont.

433, 964 P.2d 1 (“Under the concept of corpus delicti, ‘[e]vidence of acts which are

inextricably or inseparably linked with the crime charged is admissible without regard to

the rules governing “other crimes” evidence.’ ” (brackets in Hayworth)); Wing, 264

Mont. at 224, 870 P.2d at 1374 (“The concepts embraced by the term res gestae are

included within the codification of that common law doctrine in § 26-1-103, MCA, also

referred to as the ‘transaction’ rule.”); State v. Moore, 254 Mont. 241, 245, 836 P.2d 604,

607 (1992) (“The alleged acts of the defendant occurring after the alleged crime was

committed are also inseparably related to the alleged criminal act, as part of the res gestae

or corpus delicti of the crime, and therefore are not subject to the restriction of ‘other

crimes’ evidence.”). Tracing the standards back even further, it appears they originated

in this Court’s pre-Rule 404(b) “other crimes” jurisprudence. See e.g. State v. Riley, 199

Mont. 413, 425-26, 649 P.2d 1273, 1279 (1982); State v. Jackson, 180 Mont. 195,

201-02, 589 P.2d 1009, 1014 (1979); State v. Frates, 160 Mont. 431, 436-37, 503 P.2d

47, 50 (1972); State v. Jensen, 153 Mont. 233, 238, 455 P.2d 631, 633-34 (1969); State v.

Merritt, 138 Mont. 546, 548-49, 357 P.2d 683, 684 (1960).

¶33 In State v. Hansen, 1999 MT 253, 296 Mont. 282, 989 P.2d 338, however, we

rejected the notion that evidence of matters closely related to and explanatory of the

charged offense is part of the corpus delicti of the crime. See Hansen, ¶¶ 27-69. We also

abandoned the doctrine of res gestae. See Hansen, ¶¶ 72-84. We stated that we will,

“instead, use the specific rule of evidence or statute that applies to the particular factual

situation presented” to determine the admissibility of the evidence at issue. Hansen, ¶ 81.

16
In the present case, the specific rule of evidence or statute that applies to the particular

factual situation presented is § 26-1-103, MCA. Yet, in spite of our decision in Hansen,

we have not addressed whether the standards previously recognized under the doctrines

of corpus delicti and res gestae and associated with the transaction rule in Wing, Lozon,

Hayworth, and other cases are correct interpretations of § 26-1-103, MCA. Nevertheless,

while it may be necessary to resolve this question in a future case, we need not do so

here. For the reasons which follow, we reject the State’s argument that evidence of the

officers’ status as “probation” officers and Derbyshire’s status as a “probationer” was

“inextricably linked to the circumstances surrounding the crime charged.” As noted, the

State identifies several purposes for such evidence. We address each one in turn.

¶34 First, the State contends that it “needed to explain how police came to understand

. . . that Derbyshire ‘was possibly engaged in drug activity’ indicating a reasonable basis

to search his home.” Along these same lines, the State contends that it had “to present

evidence that the officers were authorized to search Derbyshire, his house, and his truck

without a warrant” because “it was necessary to explain to the jury why the police and

probation officers were there and why they were allowed to be there.” Yet, the

lawfulness of the search is not an element of the crime charged, and the officers’

authority to conduct the search is not inextricably linked to Derbyshire’s alleged

possession of marijuana with intent to distribute. Notably, as the State acknowledges,

Derbyshire never challenged the legality of the search. But even if he had, that was not a

matter for the jury to decide. Finally, even assuming, arguendo, that the State needed to

establish the legality of the search, Derbyshire points out that the officers could have

17
testified they had reason to believe he possessed marijuana based on information they had

received from reliable sources. The jury did not need to know that the officers learned

this information because Derbyshire was on probation and under their supervision. For

that matter, the prosecutor could have requested an instruction from the court that the

lawfulness of the search was not at issue, and the officers could have testified simply that

they found marijuana in Derbyshire’s residence and pickup.

¶35 Second, the State contends that it needed to establish that Derbyshire lived alone

in order to “cement[ ] the allegation that Derbyshire, and not someone else, possessed the

marijuana found in his house.” Yet, the officers did not have to identify themselves as

“probation officers” in order to establish that Derbyshire lived alone. Indeed, the

prosecutor’s questioning of Officer Brills illustrates this point:

Q. And just lastly, did you find any indications in the
defendant’s house that he was -- that anybody else was living there?
A. No indication whatsoever.
Q. No personal property of anybody else, no mail of anybody
else, no clothes of anybody else?
[DEFENSE COUNSEL]: I think it’s beyond the scope of
cross-examination, Judge.
THE COURT: Overruled. Go ahead.
THE WITNESS: There was no indication that anyone else
lived there.
[PROSECUTOR]: All right. Thank you, sir.

Similarly, the prosecutor questioned Officer Heiferman as follows:

Q. Mr. Heiferman, was there any indication from the room that
that room was occupied by anyone else besides the Defendant?
A. No, no other indication.
Q. Was there any indication in the rest of the room that you
observed that anybody else was living there?
A. No.
[THE PROSECUTOR]: No more questions. Thank you, sir.

18
¶36 Third, the State contends that “it was necessary for the officers who conducted the

probation search to establish their knowledge and ability to recognize marijuana.” The

State fails to explain, however, why it was necessary in this connection to identify the

officers specifically as “probation officers.” The State asserts that the officers gained

their knowledge and ability to recognize marijuana through training and experience. Yet,

the State offers no reason why they could not have testified to that effect (i.e., that they

are federal/state officers who have been trained to recognize marijuana or have the ability

to do so through prior experience) without identifying themselves as “probation officers.”

This point aside, the State’s argument fails on a more fundamental ground. As the State

proposes to use the evidence, the officers’ status as “probation officers” is explanatory of

their knowledge and ability to recognize marijuana. That, however, is not the purpose of

the transaction rule. To be admissible, the evidence must be explanatory of the charged

offense (i.e., of Derbyshire’s alleged possession of the drug with intent to distribute).

¶37 Fourth, the State contends that “in the context of a probation search supported by

law enforcement, there is a need to differentiate the roles of the probation officers—to

conduct the search—and the roles of the police—to secure the suspect, premises, and any

evidence seized.” For the reasons discussed above, however, the individual roles played

by the officers conducting the search are not inextricably linked to Derbyshire’s alleged

possession of marijuana with intent to distribute. Nor is it necessary to identify the

officers’ job titles in order to explain what they did during the search of his residence and

vehicle—the legality of which is not an issue, in any event.

19
¶38 Lastly, we address the State’s reliance on State v. Bauer, 2002 MT 7, 308 Mont.

99, 39 P.3d 689. In that case, the defendant (Bauer) was charged with two counts of

incest and one count of unlawful transactions with children. Bauer, ¶ 13. The district

court ruled that the fact of Bauer’s lengthy prior prison internment and his status as a

probationer when he visited the victim (Amanda) in Anaconda were admissible as part of

the transaction. Bauer, ¶ 20. In reviewing this ruling, we observed that in order for the

jury to understand the context of the alleged incest, Amanda needed to explain that she

had not seen or known Bauer because he had been incarcerated since she was a small

child. Moreover, we noted that Bauer had used his prison sentence to silence Amanda by

telling her that he would be returned to prison and either die or commit suicide there if

she spoke about the incest. Finally, Bauer was required, as a condition of probation, to

apply for permission to travel, and the travel permits were presented at trial to show that

Bauer had falsified the forms to conceal his intention to stay with Amanda when visiting

Anaconda. See Bauer, ¶ 23. On these facts, we agreed with the State that Bauer’s history

of imprisonment and his probationary status when he visited Amanda in Anaconda were

inextricably linked to the circumstances surrounding the crimes charged. Bauer, ¶ 22;

see also State v. Brasda, 2003 MT 374, ¶¶ 23-24, 319 Mont. 146, 82 P.3d 922.

¶39 Analogizing to Bauer, the State asserts that the jury needed “to understand the

context of Derbyshire’s possession of marijuana with intent to distribute.” The State does

not explain why this is so, but regardless of that fact, we conclude that the State’s analogy

is unavailing. The officers here could have testified, without identifying themselves as

“probation officers,” that they found marijuana in Derbyshire’s pickup, bedroom ceiling

20
tile, and jacket. Such testimony would have established the “context” of his possession.

Thus, whereas Bauer’s probationary status was inextricably linked to the context of his

visits with Amanda, Derbyshire’s probationary status was not inextricably linked to the

context of his alleged possession of marijuana.

¶40 Based on the foregoing discussion, and in light of the State’s arguments in this

Court and in the District Court, it appears that the prosecution simply wanted the jury to

know that Derbyshire was on state and federal probation when he committed the charged

offense. Derbyshire, however, may not be convicted based on the inference that because

he committed crimes in the past, he is more likely to have committed the one charged

here. Gowan, ¶ 19; Medina, 245 Mont. at 28, 798 P.2d at 1034; Tiedemann, 139 Mont. at

242, 362 P.2d at 531.

Conclusion

¶41 The District Court admitted the evidence in question “for the sole purpose of

explaining the facts surrounding this search.” The transaction rule, however, allows the

admission of evidence of “the fact in dispute” under § 26-1-103, MCA, or evidence of

matters that are inextricably linked to and explanatory of “the charged offense” under the

alternative standards set forth in our caselaw. The search was neither a fact in dispute nor

an element of the charged offense. Thus, the transaction rule was not a basis for allowing

the officers to identify themselves as “probation officers” and to testify that Derbyshire

was “on probation.” We hold that the District Court erred in denying Derbyshire’s

motion to exclude evidence of his status as a probationer. Given this conclusion, we now

consider whether the State has demonstrated that the error was harmless.

21
¶42 Issue 2. Has the State demonstrated that the error was harmless?

¶43 A cause may not be reversed by reason of any error committed by the trial court

against the convicted person unless the record shows that the error was prejudicial.

Section 46-20-701(1), MCA. In State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d

735, we articulated the analytical framework for determining whether an error prejudiced

the convicted person’s right to a fair trial and is, therefore, reversible. Van Kirk, ¶ 37.

Step One

¶44 The first step in the Van Kirk analysis is to determine whether the error is

structural error or trial error. Van Kirk, ¶ 37. Structural error is the type of error that

affects the framework within which the trial proceeds. Van Kirk, ¶ 38. It typically is of

constitutional dimensions, precedes the trial, and undermines the fairness of the entire

trial proceeding. Van Kirk, ¶ 38. Given its nature, structural error cannot be qualitatively

weighed against the admissible evidence introduced at trial. Van Kirk, ¶ 38. As a result,

structural error is not subject to harmless error review. Van Kirk, ¶ 38. Rather, it is

automatically reversible, and no additional analysis or review is required. Van Kirk, ¶ 39.

Trial error, by contrast, is the type of error that typically occurs during the presentation of

a case to the jury. Van Kirk, ¶ 40. Trial error can be reviewed qualitatively for prejudice

relative to other evidence introduced at trial. Van Kirk, ¶ 40. Thus, trial error is not

presumptively prejudicial, is not automatically reversible, and is subject to harmless error

review. Van Kirk, ¶ 40.

¶45 Derbyshire contends that the error here was structural because it “undermined the

entire trial framework, given that it set the stage for what the officers could say time and

22
time again.” He further argues that the error “did not occur during the presentation of the

case. Rather, it established how the case would be presented.” Yet, under this reasoning,

every erroneous ruling on a motion in limine would constitute structural error because the

ruling would “set the stage” for what happens at trial. This approach would dramatically

expand the concept of “structural error.”

¶46 Structural errors are defects in the constitution of the trial mechanism which infect

and contaminate the framework within which the trial proceeds. See State v. Matt, 2008

MT 444, ¶ 32, 347 Mont. 530, ___ P.3d ___. Examples include lack of an impartial trial

judge, total deprivation of the right to counsel, conflict of interest in representation

throughout the entire proceeding, the right to self-representation at trial, the right to a

public trial, unlawful exclusion of grand jurors of the defendant’s race, and an erroneous

reasonable-doubt instruction to the jury. See Matt, ¶ 31; Van Kirk, ¶ 39; State v. LaMere,

2000 MT 45, ¶ 23, 298 Mont. 358, 2 P.3d 204. We cannot agree with Derbyshire that the

error here contaminated the trial mechanism along the lines that a biased judge, lack of

counsel, or a jury-selection error would. Although the District Court made its ruling prior

to trial, the errors ultimately occurred during the presentation of the case each time the

court (despite Derbyshire’s pretrial motion and his continuing objection) allowed the

officers to testify that they were “probation officers” and that Derbyshire was “on

probation.” We conclude, therefore, that the error was trial error.

Step Two

¶47 The second step in the Van Kirk analysis is to determine under the cumulative

evidence test whether the trial error was harmless. Van Kirk, ¶¶ 41, 43; State v. Peplow,

23
2001 MT 253, ¶¶ 46-47, 307 Mont. 172, 36 P.3d 922. The first question under this test is

whether the tainted evidence was admitted to prove an element of the offense. See

Peplow, ¶ 49. Next, if the tainted evidence was admitted to prove an element of the

offense, then the State must direct us to admissible evidence that proves the same facts as

the tainted evidence and demonstrate that the quality of the tainted evidence was such

that there was no reasonable possibility it might have contributed to the conviction.

Peplow, ¶ 49; Van Kirk, ¶¶ 44-45. But if the tainted evidence was not admitted to prove

an element of the offense, then the admission of the evidence will be deemed harmless

only if the State demonstrates that the quality of the tainted evidence was such that there

was no reasonable possibility it might have contributed to the conviction. Peplow,

¶¶ 49, 51; Van Kirk, ¶¶ 46, 47; accord State v. McOmber, 2007 MT 340, ¶ 26, 340 Mont.

262, 173 P.3d 690.

¶48 Applying this test, we first observe that “a person commits the offense of criminal

possession with intent to distribute if the person possesses with intent to distribute any

dangerous drug as defined in 50-32-101.” Section 45-9-103(1), MCA (2005). Marijuana

is a dangerous drug. See §§ 50-32-101(6), -222(4)(t), MCA. The facts that the officers

were “probation officers” and that Derbyshire was “on probation” are not elements of this

offense. Accordingly, the tainted evidence was not admitted to prove an element of the

offense. Thus, the admission of the evidence will be deemed harmless only if the State

demonstrates that the quality of the tainted evidence was such that there was no

reasonable possibility it might have contributed to Derbyshire’s conviction.

24
¶49 The State contends that Derbyshire has objected to only “the officers’ titles as

federal and state probation officers” and not the “substantive probation search evidence.”

Thus, according to the State, the error here was harmless because other evidence, to

which Derbyshire purportedly did not object, proved the same fact as did the tainted

evidence (namely, that he was on probation). This argument is without merit. Defense

counsel asserted that there should be “no reference at all to my client being on probation”

(emphasis added), and Derbyshire has maintained that position on appeal.

¶50 Alternatively, citing State v. Long, 2005 MT 130, ¶ 27, 327 Mont. 238, 113 P.3d

290, the State argues that “the inherent prejudice in mentioning Derbyshire’s probation

and identifying witnesses as his probation officers” was cured by the District Court’s two

cautionary instructions and the prosecutor’s command during his opening statement that

“you [must] weigh this case based only on the evidence presented . . . and not based in

any way on this defendant’s status as a probationer.” We are not persuaded.

¶51 For one thing, we explained in State v. Croteau, 248 Mont. 403, 407, 812 P.2d

1251, 1253 (1991), and again in State v. Ray, 267 Mont. 128, 133-34, 882 P.2d 1013,

1016 (1994), that evidence of other crimes, wrongs, or acts must, as a general rule, be

excluded because “prior acts or crimes are highly prejudicial to the defendant, and

usually irrelevant for purposes of the charged crime.” Evidence of a defendant’s prior

acts or uncharged misconduct creates the risk that the jury will penalize him simply for

his past bad character, Croteau, 248 Mont. at 407-08, 812 P.2d at 1253; Ray, 267 Mont.

at 134, 882 P.2d at 1016, or prejudge him and deny him a fair opportunity to defend

against the particular crime charged, State v. Gowan, 2000 MT 277, ¶ 19, 302 Mont. 127,

25
13 P.3d 376. Therefore, in terms of quality, the tainted evidence here was highly

prejudicial.

¶52 To make matters worse, the prosecutor and the State’s three witnesses managed to

incorporate this highly prejudicial evidence into their respective questions and answers

44 times. Long, therefore, is clearly distinguishable. That case involved a single,

unsolicited statement by a witness to which there was a contemporaneous objection

followed by a curative instruction. See Long, ¶¶ 16-27. By contrast, the present case

involves numerous (and apparently deliberate) uses of the word “probation” which, by

virtue of its repetition, is one of the most conspicuous aspects of the trial transcript.

¶53 We hold that there is a reasonable possibility the admission of the tainted evidence

might have contributed to Derbyshire’s conviction and that the State, therefore, has not

demonstrated that the error was harmless.

¶54 The Dissent asserts that our analysis “goes astray.” Dissent, ¶ 58. The Dissent

does not dispute that the admission of the “probation” references was error. Rather, the

Dissent argues that the error was harmless because the State presented “truly

overwhelming” and “unassailable” evidence of Derbyshire’s guilt. Dissent, ¶¶ 58, 62, 63.

In Van Kirk, however, we categorically rejected this “overwhelming evidence” approach,

under which a court simply tallies the admissible evidence of guilt to determine whether,

quantitatively, it is sufficiently “overwhelming.” We stated that the quality of the tainted

evidence (more specifically, the qualitative impact the tainted evidence might have had

on the fact-finder), not the quantity of the admissible evidence, is the proper focus when

determining whether trial error was harmless. See Van Kirk, ¶¶ 34-36, 43. To that end,

26
the State must show that, qualitatively, there is no reasonable possibility the tainted

evidence might have contributed to the defendant’s conviction. See Van Kirk, ¶¶ 44, 46.

And for the reasons discussed above, we conclude that the State has not made this

showing in the present case.

CONCLUSION

¶55 Testimony by the State’s witnesses that they were “probation officers” and that

Derbyshire was “on probation” was not admissible under Rule 404(b) or the transaction

rule. Thus, the District Court erred in denying Derbyshire’s motion to exclude evidence

of his status as a probationer. The State has not demonstrated that this error was

harmless. We accordingly reverse Derbyshire’s conviction, vacate the District Court’s

judgment, and remand this case for a new trial.

¶56 Reversed and remanded for a new trial.

/S/ JAMES C. NELSON

We Concur:

/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS

Justice John Warner dissents.

¶57 I dissent. I agree with the Court that it would have been better to grant

Derbyshire’s motion to exclude the fact that he was on probation. Derbyshire made no

challenge to the search of his person or his residence, and the State had ample evidence

27
that he lived alone. Thus, the fact that it was probation officers who authorized and

conducted the search did not tend to prove that a fact of consequence was more or less

probable. Thus, the “probation” designation is irrelevant. M. R. Evid. 401. However,

any error was clearly harmless.

¶58 Citing Peplow and VanKirk, the Court notes at ¶ 47 that the erroneous admission

of evidence is harmless if the State demonstrates that the quality of the tainted evidence

does not raise the reasonable possibility that such evidence contributed to the defendant’s

conviction. VanKirk was decided in 2001. In later cases, the Court has specifically

considered the strength of the evidence against the defendant, as well as the prejudicial

effect of the testimony and whether a cautionary jury instruction could cure any

prejudice, in making its determination whether a particular error was harmless. State v.

Long, 2005 MT 130, ¶ 24, 327 Mont. 238, 113 P.3d 290; State v. White, 2008 MT 129,

¶ 15, 343 Mont. 66, 184 P.3d 1008. In this case, the Court should, but does not, consider

that the evidence against Derbyshire is truly overwhelming. See White, ¶ 15. This, in my

opinion, is where the Court goes astray.

¶59 The charge is criminal possession of drugs with the intent to distribute. As was

noted by the District Court, the allegations are straightforward. There was a probation

search. A digital scale and 639.46 grams of marijuana were found on Derbyshire’s

person and in his home. Derbyshire made admissions to the officers that he was in

possession of the marijuana. There was no evidence indicating that the marijuana was for

Derbyshire’s personal use.

28
¶60 Prior to trial, Derbyshire advised the District Court that what he wanted was a plea

bargain, but the State’s offer was for too much prison time. So, no agreement had been

reached and he decided to go to trial.

¶61 At the beginning of his opening statement the prosecutor told the jury that

Derbyshire was on probation and immediately commanded the jury not to take this fact

into account in determining his guilt. Then, four witnesses testified that Derbyshire had

possession of a digital scale, marijuana on his person and a large supply of marijuana in

his residence where he lived alone. Derbyshire waived his opportunity to make an

opening statement and presented no witnesses. The District Court twice instructed the

jury that it was not to consider the fact that he was on probation.

¶62 The State’s evidence was simple, straightforward, and clearly showed Derbyshire

was guilty as charged. In his closing argument, defense counsel admitted to the jury that

none of the evidence was controverted and that the State had proven that Derbyshire was

in possession of at least 60 grams of marijuana. The only defense argument offered was

that since all of the evidence seized had not been tested by the state crime laboratory, the

State had not proved that it was all marijuana, and thus asked for a misdemeanor

conviction. However, all of the leafy plant material in evidence, part of which was

admittedly marijuana, was before the jury to look at, smell and compare with that part of

the evidence which had been tested. In short, the jury was presented with unassailable

evidence that Derbyshire had been caught red-handed in possession of a very large

amount of contraband, he admitted such possession, he had a scale to weigh it for sale,

29
there was no evidence that the marijuana was for his personal use, and he presented no

viable argument that he was not guilty as charged.

¶63 I conclude that considering the overwhelming evidence of guilt, along with the

admonition of the prosecutor and the cautionary instructions of the District Court, there is

no reasonable possibility that the admission of the irrelevant fact that Derbyshire was on

probation had anything at all to do with his conviction. I dissent.

/S/ JOHN WARNER

30