December 16 2008
DA 07-0148
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 419
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CODY CLARK,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Jefferson, Cause No. DC-04-1957
Honorable Loren Tucker, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jack H. Morris; Jardine, Morris & Tranel, PLC; Whitehall, Montana
For Appellee:
Hon. Mike McGrath, Montana Attorney General; Jonathan M. Krauss,
Assistant Attorney General; Helena, Montana
Matthew C. Johnson, Jefferson County Attorney; Boulder, Montana
Submitted on Briefs: May 21, 2008
Decided: December 16, 2008
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Appellant Cody Clark (Clark) was convicted of criminal possession of dangerous
drugs, a felony, driving with a suspended/revoked license, a misdemeanor, and failure to
carry liability insurance, a misdemeanor, after a jury trial in the Fifth Judicial District
Court, Jefferson County. Clark appeals the District Court’s order denying his motion to
suppress evidence and the resulting jury verdict. We affirm.
¶2 We address the following issues on appeal:
¶3 1. Did the District Court err by denying Clark’s motion to suppress evidence
obtained following law enforcement’s stop of Clark’s motor vehicle and his consent to
search the vehicle, for one of the following reasons?
a. No particularized suspicion justified the stop;
b. Clark was not given Miranda warnings;
c. The interrogation and search exceeded the scope of the stop;
d. Clark’s consent to the search was inadequate;
e. Clark requested but was denied counsel.
¶4 2. Did the District Court abuse its discretion by excluding evidence of Clark’s
negative urinalysis test obtained six days after his arrest?
¶5 3. Did sufficient evidence support the jury’s verdict convicting Clark of criminal
possession of dangerous drugs?
¶6 4. Did the District Court abuse its discretion by admitting the testimony of a
pharmacist, Tammy Cox, without conducting a Daubert hearing?
2
FACTUAL AND PROCEDURAL BACKGROUND
¶7 Clark was driving a 1991 green Ford Explorer on the night of August 9, 2004,
when he was pulled over by Montana Highway Patrol Trooper David Gleich (Trooper
Gleich). Trooper Gleich pulled Clark over after receiving a cell phone call from his
brother, Deputy Sheriff Robert Gleich (Deputy Gleich), notifying him that a domestic
disturbance had been reported in Basin, Montana, between Clark and the passenger in his
vehicle, Robin Wing, and that they were believed to be traveling north on Interstate 15,
south of Helena. Deputy Gleich also notified Trooper Gleich that neither Clark nor Wing
had a valid driver’s license, having interacted with both individuals two weeks prior, and
that Clark might be in possession of a firearm. Upon pulling Clark over, Trooper Gleich
established that Clark’s driver’s license was in fact suspended and the vehicle was not
insured. Trooper Gleich asked Clark to exit the vehicle, then handcuffed Clark and
placed him in the back of the patrol car in order to separate Clark from Wing and better
investigate the alleged disturbance. Clark had a cut and dried blood on his hand. As he
was being led to Trooper Gleich’s patrol car, Clark yelled to Wing, “Call the attorney
now. This is harassment.”
¶8 When Trooper Gleich returned to Clark’s vehicle and questioned Wing about the
alleged disturbance, she was upset that she and Clark had been pulled over and denied
that there was any disturbance. She assured Trooper Gleich she was unharmed. She and
Clark both maintained that the cut on Clark’s hand was from cleaning up broken glass.
Deputy Gleich arrived shortly thereafter, and also checked with Wing to make sure she
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was okay before questioning Clark about the alleged disturbance. Deputy Gleich also
asked whether there was a weapon in the vehicle. Clark responded that there was and
gave Deputy Gleich permission to locate a .45 caliber handgun, which he did. Upon
returning to the patrol car, Deputy Gleich asked Clark for permission to search the rest of
the vehicle and Clark consented. Deputy Gleich and Trooper Gleich then located five
prescription drug pills (one brand name Oxycontin, three generic Darvocet, one generic
Vicodin) in bindles in the backseat of the vehicle, for which Clark admitted that he did
not have prescriptions. The phrase “Stay High” was written on one of the bindles along
with a picture of a balloon. Clark was arrested for driving with a suspended license and
failure to carry proof of insurance. He was later charged with possession of dangerous
drugs.
¶9 The green Ford Explorer Clark was driving did not belong to him, but rather had
been loaned to him for the summer by his employer, Teresa Hecker (Hecker). Clark
worked for Hecker’s fire suppression company and was given Hecker’s vehicle so that he
could get to fires quickly when he was needed. However, Clark treated and used the
vehicle as h i s own and let others borrow the vehicle throughout the summer.
Unbeknownst to Hecker, for example, Clark had loaned Hecker’s vehicle to another
individual, Judy Piper (Piper), for over a month of the summer, trading it for Piper’s 2003
Chevy Trailblazer to prevent the Trailblazer from being repossessed. Piper was a retired
military veteran and had prescriptions for Oxycontin, Darvocet, and Vicodin. A few days
prior to being pulled over, Wing and Clark had also helped Piper move from Basin to
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Butte using Hecker’s vehicle. After helping Piper move, Clark once again had
possession of the Ford Explorer for the remainder of the summer, although some of
Piper’s possessions may have remained in the back seat.
¶10 Prior to trial, Clark moved to suppress the evidence seized and statements made to
law enforcement after he was stopped. The District Court denied Clark’s motion to
suppress, concluding that particularized suspicion justified the investigative stop and that
Clark had validly consented to a search of the vehicle. At the request of the State, the
District Court excluded evidence of a negative drug urinalysis test Clark took six days
after his arrest. The District Court concluded that such evidence was not probative of
whether Clark possessed dangerous drugs on the day of his arrest. Finally, the District
Court denied Clark’s request for a Daubert hearing on the testimony of the State’s
pharmaceutical expert, Tammy Cox (Cox), regarding identification of the prescription
pills found in Clark’s vehicle. According to Clark, identification of prescription pills
only by visual reference to numbers printed on the pills, and not by chemical analysis of
their contents, was “novel scientific evidence.” The District Court apparently did not rule
on the motion but allowed Cox to testify at trial.
¶11 A jury found Clark guilty of criminal possession of dangerous drugs, driving with
a suspended license, and failure to carry liability insurance. Clark appeals.
STANDARD OF REVIEW
¶12 We review a district court’s denial of a motion to suppress to determine whether
its findings of fact were clearly erroneous and whether it correctly applied those findings
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as a matter of law. State v. Graham, 2007 MT 358, ¶ 10, 340 Mont. 366, ¶ 10, 175 P.3d
885, ¶ 10. “Findings of fact are clearly erroneous when they are not supported by
substantial credible evidence, the district court has misapprehended the effect of the
evidence, or a review of the record leaves this Court with the conviction that a mistake
has been committed.” Graham, ¶ 10.
¶13 We review a district court’s evidentiary rulings for an abuse of discretion. State v.
Ayers, 2003 MT 114. ¶ 24, 315 Mont. 395, ¶ 24, 68 P.3d 768, ¶ 24. A district court is
vested with great latitude in ruling on the admissibility of expert testimony. Ayers, ¶ 35.
¶14 The standard of review of sufficiency of the evidence on appeal is whether, upon
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. State v.
Rennaker, 2007 MT 10, ¶ 16, 335 Mont. 274, ¶ 16, 150 P.3d 960, ¶ 16. The trier of fact
is in the best position to determine the credibility of witnesses and the weight to be given
to their testimony, and its determination with regard to disputed questions of fact and
credibility will not be disturbed on appeal. Rennaker, ¶ 16.
DISCUSSION
¶15 1. Did the District Court err by denying Clark’s motion to suppress evidence
obtained following law enforcement’s stop of Clark’s motor vehicle and his consent
to search the vehicle?
a. Particularized Suspicion
¶16 Clark argues that Trooper Gleich did not have a sufficient particularized suspicion
to pull over Clark’s vehicle for an investigative stop. According to Clark, neither
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Trooper Gleich nor Deputy Gleich was justified in stopping Clark’s vehicle because the
domestic violence reported to police was alleged to have occurred in Basin, Montana,
forty miles from where Trooper Gleich ultimately stopped Clark’s vehicle. In addition,
Clark argues Trooper Gleich was simply responding to his brother’s phone call, not to
specific vehicle information provided by dispatch, and therefore Trooper Gleich did not
have sufficient information to justify stopping Clark’s vehicle.
¶17 “To justify an investigative stop, an officer must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.” State v. Martinez, 2003 MT 65, ¶ 21, 314 Mont. 434,
¶ 21, 67 P.3d 207, ¶ 21 (citations omitted). Thus, to prove the existence of a
particularized suspicion justifying an investigative stop of a vehicle, the State must show:
(1) objective data from which an experienced police officer can make certain inferences;
and (2) a resulting suspicion that the occupant of the vehicle is or has been engaged in
wrongdoing or was a witness to criminal activity. Martinez, ¶ 22 (citing State v. Gopher,
193 Mont. 189, 194, 631 P.2d 293, 296 (1981)). This standard is codified at § 46-5-
401(1), MCA, and reads:
In order to obtain or verify an account of the person’s presence or conduct
or to determine whether to arrest the person, a peace officer may stop any
person or vehicle that is observed in circumstances that create a
particularized suspicion that the person or occupant of the vehicle has
committed, is committing, or is about to commit an offense.
7
“Whether particularized suspicion supports an investigative stop is a question of fact that
is analyzed in the context of the totality of the circumstances.” Martinez, ¶ 23 (citations
omitted).
¶18 We agree with the District Court that a particularized suspicion supported Trooper
Gleich’s investigative stop of Clark’s vehicle. Deputy Gleich received information that a
domestic disturbance had been reported in Basin, Montana, involving two identified
individuals. Deputy Gleich was informed that the two individuals had left Basin in a
specific vehicle and in a specific direction. This information was initially provided to
police by a known citizen informant, and was apparently accompanied by the sound of
screaming, yelling, and breaking glass in the background of the call to police. From a
previous and recent interaction with both identified individuals, Deputy Gleich knew that
neither Clark nor Wing had a valid driver’s license, yet one of them was apparently
driving the vehicle. Deputy Gleich then informed Trooper Gleich of the vehicle’s
description, expected location, and license plate number.
¶19 As the District Court concluded, “the quantity of information and the quality of the
information that was provided was both specific, and articulable, and provided
particularized suspicion for experienced officers to draw rational inferences, resulting in
suspicion of wrongdoing.” Given that a domestic disturbance had been reported between
Clark and Wing, Trooper Gleich was justified in stopping the green Ford Explorer in
which Clark and Wing were traveling and separating the two individuals to investigate
8
the reported disturbance. The fact that Trooper Gleich knew neither Clark nor Wing had
a valid driver’s license further justified stopping their vehicle.
b. Miranda Warnings
¶20 Clark argues he was not given Miranda warnings before he was placed in custody
and consented to a search of his vehicle, and therefore all evidence seized in the search
was illegally obtained in violation of his Fifth Amendment right to counsel and right
against self-incrimination. The State contends that Clark was given Miranda warnings
before Deputy Gleich asked for his consent to search the vehicle, and regardless,
Miranda is not implicated by a Fourth Amendment search and seizure. The District
Court agreed with the State, observing that “a request to search need not be preceded by
Miranda warnings.” We agree.
¶21 The Fifth Amendment to the United States Constitution and Article II, Section 25
of the Montana Constitution protect a person against self-incrimination. We explained
this privilege against self-incrimination in State v. Olson, 2003 MT 61, 314 Mont. 402,
66 P.3d 297:
[T]he prosecution may not use statements that stem from a custodial
interrogation of a defendant unless the defendant is warned, prior to
questioning, that he has a right to remain silent, that any statement he does
make may be used as evidence against him, and that he has a right to the
presence of an attorney. [Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct.
1602, 1612 (1966).] These “warnings” are often referred to as Miranda
warnings.
9
Olson, ¶ 13; accord State v. Reavley, 2003 MT 298, ¶ 17, 318 Mont. 150, ¶ 17, 79 P.3d
270, ¶ 17; State v. Wrzesinski, 2006 MT 263, ¶ 29, 334 Mont. 157, ¶ 29, 145 P.3d 985, ¶
29; State v. Munson, 2007 MT 222, ¶ 20, 339 Mont. 68, ¶ 20, 169 P.3d 364, ¶ 20.
¶22 In contrast, the Fourth and Fourteenth Amendments to the United States
Constitution and Article II, Section 11 of the Montana Constitution protect against
unreasonable searches and seizures. “[W]arrantless searches and seizures are per se
unreasonable subject only to a few carefully drawn exceptions.” State v. Bieber, 2007
MT 262, ¶ 29, 339 Mont. 309, ¶ 29, 170 P.3d 444, ¶ 29 (citations omitted). One such
exception “arises when a citizen has knowledgeably and voluntarily consented to a
search.” Bieber, ¶ 29 (citation omitted). Although one factor in the totality of the
circumstances of whether consent has been voluntarily given is whether the accused was
advised of his or her Miranda rights, Bieber, ¶ 31, there is no requirement that Miranda
warnings be given prior to a request for consent to search. See e.g. U.S. v. Patane, 542
U.S. 630, 644 n. 6, 124 S. Ct. 2620, 2630 n. 6 (2004) (“While Fourth Amendment
protections extend to ‘persons, houses, papers, and effects,’ the Self-Incrimination Clause
prohibits only compelling a defendant to be ‘a witness against himself,’ Amdt. 5.”).
¶23 Because Clark does not argue that his consent was involuntary, Deputy Gleich’s
alleged failure to give Clark Miranda warnings does not invalidate Clark’s consent to a
search of his vehicle or the evidence seized therefrom. While Miranda warnings would
have been necessary before any custodial interrogation of Clark, they were not necessary
before Deputy Gleich asked to search Clark’s vehicle. Consent to a search does not
10
constitute an incriminating statement, so Clark’s Fifth Amendment rights were not
violated by the search of Clark’s vehicle.
c. Scope of the Stop
¶24 Clark argues that once Deputy Gleich and Trooper Gleich ascertained that Wing
was safe and unharmed, searching Clark’s vehicle was unnecessary and exceeded the
scope of the investigative stop. According to Clark, “[a]ll evidence seized in the ensuing
search, which had nothing to do with checking on Robin Wing’s welfare, must be
suppressed.”
¶25 We held in Martinez that an investigative stop is temporary and “may not last
longer than is necessary to effectuate the purpose of the stop.” Martinez, ¶ 27 (quoting
§ 46-5-403, MCA). However, while it is true that the officers’ investigation of the
domestic disturbance was complete after they determined Wing’s well-being was not in
jeopardy, that did not preclude the officers from thereafter requesting Clark’s consent to
search the vehicle. Indeed, by that time the scope of the stop had already been expanded,
as Clark had been detained for driving with a suspended license and without proof of
insurance. Once a stop has been made pursuant to a particularized suspicion, Montana
law does not require additional justification for requesting consent. State v. Snell, 2004
MT 269, ¶ 17, 323 Mont. 157, ¶ 17, 99 P.3d 191, ¶ 17. Once Clark voluntarily consented
to a search of his vehicle, the original purpose of the investigative stop was validly
expanded once again. Even though searching Clark’s vehicle was unrelated to Wing’s
11
well-being, Clark authorized the search by giving his consent, and the District Court did
not err in denying the motion to suppress the evidence discovered during the search.
d. Adequacy of Consent
¶26 Clark argues that his consent to search the Ford Explorer was invalid because he
was not the owner of the vehicle. To support his argument, Clark relies on our holding in
State v. Hill, 2004 MT 184, 322 Mont. 165, 94 P.3d 752, wherein we held that an
unauthorized driver of a rental car does not have a reasonable expectation of privacy in
the contents of the car. Hill, ¶ 32. In that case, police contacted the rental agency for
consent to search the car after the unauthorized driver exited the car and took his
belongings with him. We held that “where the police, at the [vehicle] owner’s request,
take possession of a vehicle after allowing the unauthorized driver to retrieve his
possessions from it, the vehicle’s owner is the only party remaining to consent to a search
of the contents.” Hill, ¶ 35. From that statement, Clark extrapolates the rule that “the
only party that is able to effectively grant a valid consent to search a car is the car’s
owner.” Clark’s argument is incorrect.
¶27 First, it cannot be deduced from Hill that the title-holder of a vehicle is the only
party who will ever be authorized to consent to a search of that vehicle. The inquiry is
dependent upon the totality of the circumstances, and the statements made in Hill
reflected the facts of that case. Indeed, it is possible that, under certain circumstances,
even the owner of property will not have authority to consent to a search. See State v.
12
McLees, 2000 MT 6, ¶ 17, 298 Mont. 15, ¶ 17, 994 P.2d 683, ¶ 17. Thus, while property
ownership is an important factor, it is not an exclusive factor.
¶28 Second, the facts of the present case indicate that Clark had possession and control
of Hecker’s Ford Explorer—including all of the items inside the vehicle—indefinitely, as
a summer firefighter for Hecker. Clark made personal use of the vehicle, keeping his
personal effects in the vehicle and loaning the vehicle to other individuals without
consulting Hecker. Clark even went so far as to “trade” Hecker’s vehicle with Piper for
over a month so that the bank could not repossess Piper’s vehicle. Clark also used the
vehicle to help Piper move from Basin to Butte. In other words, Clark’s use of the
vehicle was not solely for purposes of his employment or in service to the vehicle’s
owner. Rather, Clark chose where to drive the vehicle and controlled what was kept
inside it. Clearly, Clark had common authority to use and exert control over the Ford
Explorer during the summer. As such, he also had authority to consent to a search of the
vehicle. See State v. DeWitt, 2004 MT 317, ¶¶ 30-31, 324 Mont. 39, ¶¶ 30-31, 101 P.3d
277, ¶¶ 30-31.
e. Request for Counsel
¶29 Clark argues that his remark to Wing to “call the attorney now” as he was led to
Trooper Gleich’s patrol car amounted to an “unambiguous and unequivocal” request for a
lawyer after which “all further questioning should have ceased.” The State responds that
even if Clark was subject to a custodial interrogation, which he was not, Clark never told
13
law enforcement that he wanted an attorney present, and as such he never invoked his
Fifth Amendment right to counsel.
¶30 Clark again seems to conflate and confuse his Fifth Amendment right to counsel
and right against self-incrimination with his Fourth Amendment right against
unreasonable searches and seizures. As we noted earlier, law enforcement’s request for
consent to conduct a search is not a custodial interrogation protected by the Fifth
Amendment, and the giving of consent to search is not an incriminating statement.
Moreover, while the invocation of the right to counsel “does not depend on the use of any
particular words” and “must be construed broadly,” State v. Buck, 2006 MT 81, ¶ 48, 331
Mont. 517, ¶ 48, 134 P.3d 53, ¶ 48, it is clear that in this case Clark never requested an
attorney from law enforcement. Clark’s statement to Wing is distinguishable from that in
State v. Spang, 2002 MT 120, ¶ 18, 310 Mont. 52, ¶ 18, 48 P.3d 727, ¶ 18, overruled in
part, Buck, ¶ 48, in which we held that the defendant’s statement to police, “Shit, I need a
lawyer, man” was sufficient to invoke the right to counsel, and State v. Johnson, 221
Mont. 503, 719 P.2d 1248 (1986), in which we held the statement to police, “I would like
to talk to somebody” also invoked the right to counsel. Spang, ¶ 25; Johnson, 221 Mont.
at 514, 719 P.2d at 1255. At best, Clark simply asked Wing to call an attorney for him.
The statement was not directed to Trooper Gleich and did not invoke Clark’s right to
counsel, regardless of whether the subsequent request for Clark’s consent to search his
vehicle constituted a custodial interrogation. The District Court properly denied Clark’s
motion to suppress.
14
¶31 2. Did the District Court abuse its discretion by excluding evidence of Clark’s
negative urinalysis results obtained six days after his arrest?
¶32 Clark argues the jury should have been presented with evidence of a “clean” drug
test Clark took six days after he was arrested. Clark argues that “[w]hile such evidence
may not have completely exonerated Clark, it nevertheless was exculpatory, relevant, and
within the scope of the jury’s ability to consider and weigh all variables tending to make
his guilt . . . more or less probable.” According to Clark, he was entitled to a “reverse
presumption” from our holding in In re R.L.H., 2005 MT 177, ¶ 23, 327 Mont. 520, ¶ 23,
116 P.3d 791, ¶23, wherein we held that “the presence of an illegal substance in the body
constitutes circumstantial evidence of prior possession of that substance.” Apparently,
Clark believes that the absence of an illegal substance in the body should constitute
circumstantial evidence against prior possession of that substance. We disagree.
¶33 Relevant evidence is “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” M. R. Evid. 401. “Evidence is relevant
if i t will have any value, as determined by logic and experience, in proving the
proposition for which it is offered.” State v. Hamilton, 2002 MT 263, ¶ 20, 312 Mont.
249, ¶ 20, 59 P.3d 387, ¶ 20 (citing State v. Duffy, 2000 MT 186, ¶ 43, 300 Mont. 381, ¶
43, 6 P.3d 453, ¶ 43). Clark was charged with criminal possession of dangerous drugs
based on the discovery of five pills found in his vehicle, not based on the use or ingestion
of those or any other drug.
15
¶34 There is no logical connection between Clark’s physical control over—and thus
his possession of—dangerous drugs on August 9, 2004, and the absence of evidence six
days later that he had actually ingested any drugs. See Rodriguez v. Weber, 617 N.W.2d
132, 140 (S.D. 2000) (concluding that “negative test result would not have created a
reasonable doubt on knowledge of the presence of marijuana in the [vehicle]. One need
not be a drug user to be a drug courier.”). Clark was not accused of using dangerous
drugs, only of possessing them, so the absence of any evidence of use does not make his
possession of such drugs any more or less probable. Clark’s negative urinalysis results
were not relevant to the question of whether he was in possession of dangerous drugs on
August 9, 2004.
¶35 3. Did sufficient evidence support the jury’s verdict convicting Clark of
criminal possession of dangerous drugs?
¶36 Clark argues the State failed to provide sufficient evidence that he knowingly
possessed dangerous drugs. Clark relies on the fact that Piper had prescriptions for the
three drugs found in his vehicle, and had recently been using the vehicle to move her
belongings from Basin to Butte, to argue that the pills found in Clark’s backseat belonged
to Piper. According to Clark, he did not know the pills were in his vehicle, and it was
unreasonable to charge him with possession of those pills “without anything more than
his presence in the vehicle Piper had used to move with.”
¶37 The offense of criminal possession of dangerous drugs is defined in § 45-9-102,
MCA (2003), and states: “A person commits the offense of criminal possession of
dangerous drugs if the person possesses any dangerous drug, as defined in 50-32-101.”
16
Possession is defined as “the knowing control of anything for a sufficient time to be able
to terminate control.” Section 45-2-101(58), MCA (2003). Possession can be either
actual or constructive. State v. Neely, 261 Mont. 369, 374, 862 P.2d 1109, 1112 (1993).
We have explained:
Constructive possession occurs when the accused maintains control or a
right to control the contraband; possession may be imputed when the
contraband is found in a place which is immediately and exclusively
accessible to the accused and subject to his dominion and control, or to the
joint dominion and control of the accused and another person.
Neely, 261 Mont. at 374, 862 P.2d at 1112 (quoting State v. Meader, 184 Mont. 32, 43,
601 P.2d 386, 392 (1979)). “[I]n order to prove constructive possession, the State must
prove (1) knowing (2) control of a (3) dangerous drug for sufficient time to be able to
terminate control.” Neely, 261 Mont. at 374, 862 P.2d at 1112 (citation omitted). For
example, we held in Neely that the defendant was in constructive possession of dangerous
drugs after drugs were found in her bedroom, she “was present when drugs were sold and
used in her residence,” and she “could have terminated control of the drugs at any time . .
. by having them taken off the premises,” but failed to do so. Neely, 261 Mont. at 374,
862 P.2d at 1112.
¶38 The jury was presented with evidence that Clark was driving the Ford Explorer
when he was stopped by Trooper Gleich on August 9, 2004, and that the vehicle, for all
intents and purposes, was his personal vehicle throughout the summer. Thus, the jury
could conclude that the vehicle and everything inside it was subject to his immediate
access, dominion, and control. Although Clark had lent the vehicle to Piper for over a
17
month, it was returned to him two days before he was stopped. Thus, a jury could
conclude that Clark could have terminated his control over the pills—which were kept in
small bindles, one of which had the phrase “Stay High” and a picture of a balloon—at
any time after the vehicle was back in his possession, but that he failed to do so. See
Neely, 261 Mont. at 374, 862 P.2d at 1112.
¶39 Upon viewing the evidence in the light most favorable to the prosecution, a
rational trier of fact could have found that Clark possessed dangerous drugs. Rennaker,
¶ 16. Sufficient evidence supported the jury’s verdict.
¶40 4. Did the District Court abuse its discretion by admitting the testimony of a
pharmacist, Tammy Cox, without conducting a Daubert hearing?
¶41 Clark argues that the State’s expert witness, Cox, should have been subjected to a
Daubert hearing “to determine whether expert testimony was admissible on the novel
issue of whether prescription medicine can be identified by visual reference only.”
According to Clark, the State should have completed a chemical analysis of the drugs
found in Clark’s backseat to identify the drugs. Instead, Cox simply identified the drugs
as brand name OxyContin and generic Vicodin and Darvocet by comparing the unique
imprint code on each pill, along with the color, make, and shape of the pills, with two
national peer-reviewed computer databases. Clark argues that Cox’s analysis of the
drugs by visual reference only was “sub-par.”
¶42 The admissibility of expert testimony is governed by M. R. Evid. 702: “If
scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
18
by knowledge, skill, experience, training, or education may testify thereto in the form of
an opinion or otherwise.” In Barmeyer v. Mont. Power Co., we explained that “it is
better to admit relevant scientific evidence in the same manner as other expert testimony
and allow its weight to be attacked by cross-examination and refutation.” 202 Mont. 185,
193-94, 657 P.2d 594, 598 (1983) (overruled on other grounds, Martel v. Mont. Power
Co., 231 Mont. 96, 103, 752 P.2d 140, 145 (1988)) (quoting U.S. v. Baller, 519 F.2d 463,
466 (4th Cir. 1975)). We have adopted the various factors set forth by the United States
Supreme Court in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94, 113
S. Ct. 2786, 2796-97 (1993), for assessing the reliability of proffered expert testimony,
but we limit Daubert’s application to only novel scientific evidence. State v. Damon,
2005 MT 218, ¶ 18, 328 Mont. 276, ¶ 18, 119 P.3d 1194, ¶ 18. We assess novelty from a
very narrow perspective. Damon, ¶ 18.
¶43 Cox’s testimony regarding the identification of prescription drugs by reference to
their unique imprint code and national pharmaceutical databases is not novel scientific
evidence requiring a Daubert hearing. Aside from conclusory statements that Cox’s
testimony was “novel” and an admission elicited from Cox that the only way to be 100
percent certain of the drugs’ content is to do a chemical analysis, Clark has presented no
evidence that Cox’s manner of identifying the pills was “novel” or unreliable. Cox
testified at trial that she was confident in her determination that the pills found in Clark’s
vehicle were OxyContin and generic Vicodin and Darvocet. A Daubert hearing was not
required.
19
¶44 Affirmed.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
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State v. Cody Clark
Court: Montana Supreme Court
Date filed: 2008-12-16
Citations: 2008 MT 419, 347 Mont. 354
Copy Citations