State v. Canon

110. 83-321

IN THE SUPREME COURT OF THE STATE OF MOIJTANA

1984

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
HENRY CALVIN CANON,
Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Charles Luedke, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
1.loses Law Firm, Billings, Montana

For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Harold F. Hanser, County Attorney, Billings, Montana

Submitted on Briefs: March 8, 1984
Decided: August 30, 1984

Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Defendant Calvin Henry Canon (Canon) was arrested on
December 9, 1981 with approximately thirty pounds of
marijuana in his possession. On December 15, 1981, Canon was
charged in Yellowstone County District Court with criminal
possession of dangerous drugs with intent to sell, a felony.
Canon's arrest was the result of an undercover drug operation
in which the Yellowstone County authorities were assisted by
Canon's accomplice, Lois Ruland (Ruland). On February 8,
1983, defendant was found guilty of criminal posession with
intent to sell. On April 19, 1983, Canon was fined $15,000
and sentenced to 15 years in prison. We affirm his
conviction.
The issues on appeal are:
1. Were the Kentucky telephone tapes properly admitted
in evidence?
2. Was certain testimony of Detective Hirschi
improperly admitted hearsay evidence?
3. Was evidence of other crimes improperly admitted?
4. Was accomplice Ruland's testimony adequately
corroborated?
5. Was entrapment established as a defense?
6. Was the jury properly instructed on unanimous jury
verdict and specific intent?
7. Was a new trial warranted because of accomplice
Ruland's letter?
8. Were Canon's automobile keys illegally seized and
admitted into evidence?
Canon is 51, married and h.as three grown children. He
and Lois Ruland had a 3 year relationship during which they
talked of his divorce and marriage to Ruland, but that
relationship was terminated. Ruland threatened to get ever1
with him.
In November of 1981, Detective Hirschi of the
Yellowstone County Criminal Investigation Division (CID)
contacted Ruland at a bar in Billings. Hirschi advised
Ruland that he had information she was involved with the
Billings drug traffic and asked her to assist in gathering
evidence against the leaders of the drug organization in
return for immunity from prosecution. Ruland agreed.
Ruland kept Hirschi informed of plans for her next trip
to Lexington, Kentucky to pick up marijuana. This was the
site chosen by the people involved in the drug organization.
Neither Hirschi nor any other member of the CID made the
plans for the drug purchase and sale. The plans were made
and completed by Ruland, defendant Canon, and those with whom
they were working. The CID took pictures of the two
suitcases which Ruland took to Kentucky for use in
transporting the marijuana. Hirschi accompanied Ruland to
Kentucky and asked Kentucky police for assistance. Ruland
testified that defendant was involved with the plans for the
December 7, 1981 trip to Kentucky and provided money needed
to obtain the marijuana and to cover Ruland's expenses.
Ruland testified that prior to the trip to Kentucky, she
set aside $13,000 of the $17,400 payment she was to make for
the drugs in Kentucky. She intended to take the money and
her children and "disappear" from the defendant, the drug
organization, and the CID as well.
Problems arose in Kentucky because Ruland did not have
the necessary $17,400. A number of telephone calls were made
between Ruland in Kentucky and Canon in Montana, which were
recorded by Hirschi and the Kentucky police. Finally the
necessary funds were obtained and the transaction was
completed.
Ruland and Hirschi returned to Billings via Denver,
Colorado on December 8, 1981. The airline failed to transfer
Ruland's bags which contained the marijuana. When Ruland
picked up the two bags containing marijuana at the Billings
airport, on December 9, 1981, she was followed by defendant
Canon, who stopped her and had her follow him to a parking
lot in Billings. The testimony of CID officers and Ruland
established that Canon there demanded one of the suitcases
containing marijuana and left the scene. Canon was arrested
a short time later with the suitcase and approximately 30
pounds of marijuana in his possession.
Defendant testified that he knew none of the people
involved in the drug transactions in Florida, Kentucky or
Montana. He specifically denied that he had been in any way
involved in the sale of drugs or any other type of drug
transaction with Ruland. Other pertinent facts will be
presented in our discussion of the issues.
I

Were the Kentucky telephone tapes properly admitted in
evidence?
Defendant Canon's motion to suppress tape recordings of
telephone conversations in Kentucky was denied by the
District Court. Detective Hirschi testified that the
telephone conversations between Ruland and Canon were
recorded with Ruland's consent by a cassette tape recorder
with a suction-type plug, which was attached to the receiver
of the telephone used by Ruland.
Defendant Canon's contention is that the State should
have applied for and obtained court permission to
electronically survey and tape the conversations between
Canon and Ruland, and that such court permission should have
been sought in Montana under the requirements of Montana
cases. Ca-non cites a number of Montana cases which establish
that tape recordings and transcriptions obtained through the
use of an unauthorized electronic monitoring device may
properly be suppressed on constitutional grounds. State v.
Hanley (1980), 186 Mont. 410, 608 ~ . 2 d 104; State v.
Brackman (1978), 178 Mont. 105, 582 P.2d 1216.
Defendant does not discuss the taping of a telephone
conversation where one party to the conversation has
consented to the taping. Here Detective Hirschi testified
that Ruland had consented to the monitoring and tape
recording of the telephone calls. That testimony was not
challenged in any manner on cross-examination or otherwise.
Ruland testified at length and was extensively
cross-examined. She specifically testified that she had
consented to the recording. She also testified that she was
not coerced or pressured in any way into allowing the
recordings to be made. We note that the tapes contain
damaging evidence in that they tend to prove defendant's
involvement in drug transactions, of which he denied having
any knowledge.
This issue has been settled in Montana. As this Court
stated in Sta.te v. Coleman (Mont. 1980), 616 P.2d 1090, 1096,
37 St. Rep. 1664, 1668:
"The answer to (defendant) Case's contention here
is again found in Hanley, supra, where we held that
interception of telephone conversations by police
officers is legal if one of the parties to the
conversation consents, even an informer. This
Court has never held that a court order is
necessary to monitor a telephone conversation,
where one of the parties to the telephone
conversation consents. . ..
Neither party to a
telephone conversation can ordinarily see the
other. Neither has any way of knowing whether or
not the conversation on the telephone is being
overheard by other parties. Neither the Montana
 nor the federal constitution prohibits such
monitoring where one of the participants consents.
See 18 U.S.C. S 2511 (2)(c).I1
We hold that the Kentucky telephone tapes were properly
admitted in evidence.

Was certain testimony of Detective Hirschi improperly
admitted hearsay evidence?
Detective Hirschi testified on the first da.y of trial.
At that time, Lois Ruland was not available. Neither the
State nor the defendant knew whether or not she would be
present to testify. Detective Hirschi testified on the
question of the consent of Lois Ruland in order to meet the
standard that a telephone conversation can be monitored where
one of the parties consents. Coleman, 616 P.2d at 1096, 37
St.Rep. at 1668. In substance defendant contends that there
was no way to prove the consent of Lois Ruland through
Officer Hirschi, except by proving the truth of her
statements, which are clearly hearsay and therefore
inadmissible.
The key points are contained in the questions and
answers between the Court and Officer Hirschi prior to the
playing of the questioned tapes of the telephone
conversations:
"The Court: Preliminary, Mr. Hirschi, I want to
ask you, were you present at the time both of these
tapes were taken?
"A. Yes, I was.
"The Court: And was Lois Ruland aware that the
conversations were being taped?
"A. Yes, she was.
"The Court: And it was done with her agreement?
"A. That's correct.
"The Court: And her consent.
 "A. Yes, sure."
Our initial inquiry is whether or not the foregoing
statements by Hirschi constitute hearsay testimony.
Hearsay is defined in Rule 801 (c), M.R.Evid. :
"Hearsay is a statement, other than one made by the
'aeclarant while testifying at the trial or hearing,
offe?ed in evidence to prove the truth of the
matter asserted."
The declarant is the person who makes the statement. Rule
801 (b), M.R.Evid. Here, Lois Ruland was the declarant. The
essence of the challenged testimony of Detective Hirschi is
that Ruland was aware the conversations were being taped and
that the taping was done with her consent. This testimony
established the fact of an agreement between Hirschi and
Ruland. It is important to note that Hirschi did not testify
as to any statement made by Ruland. We conclude that by
definition, the testimony to which objection is made was not
hearsay.
Even if we accepted the defendant's contentions that the
testimony constituted. hearsay, no reversible error was
committed. Several days later, Lois Ruland did testify and
was cross-examined at length by defense counsel. Her
testimony established that she consented to the taping and
that there was no coercion in that consent. As a result, the
defendant had all of the necessary opportunity to protect
himself by cross-examination of Ruland. No prejudice has
been demonstrated by the defendant.
We hold that the testimony of Detective Hirschi was
properly admitted.

Was evidence of other crimes improperly admitted?
Defendant contends there were many instances where
evidence of other crimes was presented to the jury. Without
discussing specifics, he makes many transcript references and
then notes, as an example of the improper evidence, the
following testimony on the part of Lois Ruland:
''(2. Lois, who was at the top of the Yellowstone
County organization on December 9, 1981?
"A. Cal Canon."
Defendant argues that he was not charged with being the head
of the entire Yellowstone County drug organization and that
the testimony was therefore prejudicial.
In summary, the various references to the transcript
were to testimony by Ruland of Ruland's other trips carrying
drugs, of other drug deals in which the defendant was
involved with Ruland, of the tie-in between defendant and
various members of the Florida drug organization, and of
defendant's threats of bodily injury to Ruland and others if
she left the drug organization. Defendant argues that there
was a failure on the part of the State to meet the procedures
mandated by State v. Just (19791, 184 Mont. 262, 602 P.2d

The testimony clearly falls within the corpus delicti
rule stated in State v. Gillham (Mont. 1983), 670 P.2d 544,

"This Court has recognized that the State is
entitled to 'present the entire corpus delecti
[sic] of the charged offense including matters
closely related to the offense and explanatory of
it ... This rule overrides the requirements of
Just. State v. Riley (1982), Mont. 649 P.2d 1273,
1279, 39 St.Rep. 1491, 1499."
The rationale supporting admissibility of this testimony
as part of the corpus del-icti is directly comparable to
that stated in State v. Frates (1972), 160 Mont. 431, 437,

"The evidence of the two prior sales of LSD to the
informer in the instant case is part of the corpus
delicti of the crime with which the defendant is
charged. It is a part of the totality of events
 and occurrences leading to and culminating in the
sale of 900 LSD tablets to the undercover police
officer ...It tends to explain the circumstances
leading to the commission of the crime charged,
establishes defendant's intent to commit the crime
charged, and negatives the defense of entrapment.
As such, it is clearly relevant, probative and
competent evidence tending to prove the crime
charged. "
We hold that the evidence in question was properly
admitted as relative, probative and competent evidence
tending to prove the crime with which defendant was charged.

Was accomplice Ruland ' s testimony adequately
corroborated?
Defendant argues that there was insufficient
corroboration of accomplice Ruland's testimony, as required
under section 46-16-213, MCA. We find it difficult to view
this contention seriously.
The tape recordings in and of themselves constitute
sufficient evidence to corroborate the testimony of Ruland.
In addition, the evidence showed that defendant was arrested
with approximately 30 poun.ds of marijuana in his possession;
that the defendant's key ring contained keys which opened the
suitcase containing the marijuana; that phone records
verified thirteen long-distance calls cha-rged to defendant's
home during the drug transaction, five of which were made to
Florida and corroborated Ruland's explanation of the drug
transaction.
We hold there is more than sufficient corroborative
evidence to meet the standards of section 46-16-213, MCA.

Was entrapment established as a defense?
Defendant argues that the evidence established
entrapment as a matter of law in that Ruland acted as an
agent of the State to induce the defendant to commit the
offense. He claims that the behavior of the officers was a
violation of due process of a magnitude that shocks the
conscience and therefore has reached constitutional
proportions. We do not agree.
Section 45-2-213, MCA provides:
"Entrapment. A person is not guilty of an offense
if his conduct is incited or induced by a public
servant or his agent for the purpose of obtaining
evidence for the prosecution of such person.
However, this section is inapplicable if a public
servant or his agent merely affords to such person
the opportunity ...
for committing an offense in
furtherance of criminal purpose which such person
has originated."
In State v. Kamrud (Mont. 1980), 611 P.2d 188, 191, 37
St.Rep. 933, 937, we stated:
"'This statute is consonant with earlier decisions
of this Court which set forth the following
elements of entrapment: (1) Criminal intent or
design originating in the mind of the police
officer or informer; (2) absence of criminal
intent or design originating in the mind of the
accused; and (3) luring or inducing the accused
into committing a crime he had no intention of
committing. [citations omitted] ' State -v.
Grenfell, supra, 564 P.2d at 173."

"This Court has on previous occasions discussed in
detail the matters to be considered in determining
whether or not the entrapment defense has been
established:
'Entrapment occurs only when the criminal
intent or design originates in the mind of the
police officer or informer and not with the
-
accused, and the accused is lured or induced
into committing a crime he had no intention of
committing. . . . In short, there is a
controlling distinction between inducing a
person to do an unlawful act and setting a
trap to catch him in the execution of a
criminal design of his own conception ...
State v. Karathanos (1972), 158 Mont. 461, 493
P.2d 326, 331."
No evidence was presented showing that the criminal
intent or design in this case originated in the mind of a
police officer or informer. There is extensive evidence
connecting defendant to the drug transaction, but none shows
that the intent or design originated with the police officer
or informer. The officers at most afforded to the defendant
the opportunity to commit a crime. This by definition makes
the entrapment statute (section 45-2-213, MCA) inapplicable.
The evidence also fails to show an absence of criminal intent
originating in the mind of the defendant. Lastly, there is
no evidence of any luring or inducing the defendant into
committing a crime which he had no intention of committing.
The facts do not substantiate the defendant ' s contention of
entrapment.
At trial the defendant denied any knowledge of the
contents of the suitcases or involvement in the drug
transaction. That defense is actually inconsistent with the
theory of entrapment, which he now argues. Notwithstanding
that inconsistency, defendant was given the benefit of
instructions on entrapment in a manner similar to that in
Kamrud .
In Kamrud, we also stated that the entrapment defense is
not a constitutional- defense, citing the United States
Supreme Court's conclusion in United States v. Russell
(1973), 411 U.S. 423, 433, 93 S.Ct. 1637, 1643, 36 L.Ed.2d
366. Defendant attempts to argue that the behavior of the
officers was of such a magnitude as to shock the conscience
and obtain constitutional proportions. The evidence fails to
support that contention.
We conclude that there is no constitutional issue of
entrapment, and that the defense of entrapment was not
established by the evidence.
VI

Were the jury instructions on unanimous jury verdict and
specific intent proper?
 Defendant argues that the jury should have been given an
instruction requiring a unanimous verdict on the alternative
mental states of "purposely" and "knowingly." He asserts he
is entitled to a specific verdict on the theory under which
he was convicted.
This Court has on three recent occasions rejected such
arguments. The same contentions made here by the defendant
were rejected in State v. Warnick (Mont. 1982), 656 P.2d 190,
194, 39 St.Rep. 2369, 2374-75. We will not restate the
contentions and holdings which are adequately set forth in
that opinion. See also McKenzie v. Osborne (1981), 195 Mont.
26, 43-44, 640 P.2d 368, 378-79 and Fitzpatrick v. State
(Mont. 1981), 638 P.2d 1002, 1011-12, 38 St.Rep. 1448,
1457-58.
We hold that adequate instructions were given and that
defendant was not entitled to any additional instruction
regarding a unanimous jury verdict on alternative mental
states.
Defendant also argues that the refusal of proposed
instructions on required mental state was improper. We
disagree. Defendant's proposed instructions No. 18 and 20
were adequately covered by other instructions in the case.
Defendant contends that three additional instructions
covering deliberate intent and specific intent should have
been given. An extensive discussion of intent is contained
in this Court's opinion in State v. Starr (Mont. 1983) , 664
P.2d 893, 897-98, 40 St.Rep. 796, 801-02. Under the law as
stated in that opinion, the instructions on specific intent
and deliberate intent were not appropriate. We hold that the
instructions as given by the District Court properly
described intent.
 VII
Was a new trial warranted because of the Ruland letter?
Defendant contends that a new trial should have been
granted based upon a letter sent by Ruland to the trial court
and an affidavit which she executed, together with her
testimony at a hearing on the motion for a new trial. In,
substance, defendant argues that the jury should have heard
Ruland's testimony which indicates that the CID officers
allowed her to sell marijuana in order to finance her trip to
Lexington, Kentucky. Defendant argues that this evidence
affects the credibility of Rula.nd and also the CID
investigator.
The newly discovered evidence must meet the requirements
set forth in State v. Greeno (1959), 135 Mont. 580, 342 P.2d
1052. Because we find that the evidence clearly does not
meet the tests set forth in Greeno, we will not discuss it at
length.
The affidavit, letters and testimony only bring
additional evidence contradictory in nature so far as Ruland
is concerned. In a portion of that evidence, she indicates
knowledge on the part of Detective Hirschi. In the course of
her oral testimony, she contradicted that writing and stated
that the officers could not have known of the sale. In
substance, it appears that the "new" evidence contains
additional contradictions. The trial transcript discloses
that there were contradictions in Ruland's testimony which
were adequately brought out on both direct and
cross-examination. With the exception of the one element
contained in her letter, her entire trial testimony would
have been the same.
The "new" evidence only presents an additional
inconsistency for consideration by the jury. This evidence
is actually not material as an element of the offense under
the rule of Greeno.
We hold that a new trial was not warranted because of
the Ruland letter.
VIII
Were Canon's automobile keys illegally seized and
admitted into evidence?
Defendant was properly arrested by Deputy Jensen. After
the arrest, Jensen took possession of the defendant's
automobile, which defendant had been driving immediately
prior to arrest. Jensen drove the automobile to the basement
of the Yellowstone County Courthouse and turned the car keys
over to the property officer for Yellowstone County CID. A
search warrant was then obtained for the search of the
automobile. In the course of executing that warrant,
defendant's keys were used first to unlock the trunk of his
automobile and second to unlock the suitcase, which was in
the trunk and contained approximately 30 pounds of marijuana.
Defendant asserts that without a valid search warrant
describing the keys, there was no authority for the State to
seize the keys and admit them into evidence.
Defendant cites only general cases with regard to
searches and seizures. He does not cite any case having a
comparable fact situation.
Section 46-5-101, MCA, sets forth the general standard
for a search incident to arrest:
"Searches and Seizures - When Authorized. A search
of a person, object, or place may be made and
instruments, articles, or things may be seized in
accordance with the provisions of this chapter when
the search is made:
" (1) as an incident to a lawful arrest; . . ."
The facts demonstrate that the keys were actually in the
ignition at the time of arrest. The officer correctly took
possession of the defendant ' s automobile following the
arrest. The car keys were properly turned over to the
property officer. Up to that point, it is clear that the car
keys came into the possession of the authorities as an
incident to a lawful arrest. No search was necessary.
The keys themselves merely provided the State with
access to the interior of the trunk and to the interior of
the suitcase. Only after their use did it become apparent
that the keys were significant as evidence because one of
defendant's keys opened the suitcase containing the drugs.
We hold that the seizure of the keys was properly made
as an incident to a lawful arrest, and that, having been
lawfully seized, such keys were admissible as evidence in any
prosecution. See State v. Armstrong (Mont. 1 9 8 0 ) , 616 P.2d
341, 349, 37 St.Rep. 1563, 1570.
The conviction of defend

We concur:

% 4 4 %@+
Chief Justice