State v. Gommenginger

No. 89-400

IN THE SUPREME COURT OF THE STATE OF MONTANA
1990

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DAVID GREGORY GOMMENGINGER,
Defendant and Appellant.

APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert Keller, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Stephen J. Nardi; Sherlock & Nardi, Kalispell,
Montana
' -
t3
C'.J . For Respondent:
- I Hon. Marc Racicot, Attorney General, Helena, Montana
Patricia Schaeffer, Asst. Atty. General, Helena
I- I J Scott B. Spencer, County Attorney, Libby, Montana
; 2

--J
-I f - l

C-,
.. .
r- ., < - Submitted on Briefs: Jan. 25, 1990
1 i
. .-
-.
( I

* .. :--Decided: Mar. 29, 1990
Filed:

Clerk
Justice R. C. McDonough delivered the Opinion of the Court.

Defendant David G. Gomrnenginger appeals the judgment of
the Nineteenth Judicial District, Lincoln County, Montana,
convicting him of three counts of criminal sale of dangerous
drugs in violation of § 45-9-101, MCA. We reverse and remand
the case for a new trial.
The Defendant raises the following issues on appeal:
(1) Did the District Court err in admitting evidence
allegedly regarding the Defendant's character in the State's
case-in-chief?
(2) Did the District Court err in limiting the scope of
the cross-examination of the State's chief witness?
(3) Was there sufficient evidence to support the con-
victions of criminal sale of dangerous drugs on Counts I11
and IV?
During the summer of 1988, the Lincoln County Sheriff's
Department conducted an undercover drug investigation of
various persons in the area around Libby, Montana. Detective
Don Bernall hired an undercover agent, Mike Hewson (the
informant), to facilitate the investigation. The informant
worked from June 7 to August 28, 1988 under the supervision
of Bernall and Officer Clint Gassett. Officer Bernall testi-
fied that the informant's salary was not contingent upon
obtaining arrests and convictions; he was paid a flat rate
for his services and was provided with expense money, in-
cluding money to buy drugs.
In the State's case-in-chief, Rernall testified that
the informant was given a list of potential people to infil-
trate that were drug dealers in the community and that the
Defendant's name was on that list. The informant also testi-
fied in the State's case-in-chief that he WLS supplied with a
list of potential drug dealers, which included the Defendant.
The informant then began his investigation by circulating in
the bars. He first dealt with a man named Baldwin who then
referred him to a woman named Mandy Curtiss as a source for
narcotics. Curtiss allegedly became the go between in a
series of deals where the informant allegedly bought marijua-
na, "crank," and cocaine from the Defendant and other persons
under investigation.
As a result of the investigation, an information was
filed in the District Court on September 15, 1988 charging
the Defendant with the following offenses: (1) count I,
criminal sale of dangerous druqs, a felony, on July 9, 1988;
(2) count 11, criminal sale of dangerous drugs, a felony, or

in the alternative, conspiracy to commit or accountability
for the criminal sale of dangerous drugs, a felony, on July
10, 1988; ( 3 ) count 111, criminal sale of dangerous drugs, a
felony, on July 16, 1988; (4) count IV, criminal sale of
dangerous drugs, a felony, or in the alternative,
accountability for the criminal sale of dangerous drugs, a
felony, on August 3, 1988, all alleged to have been committed
in Lincoln County, Montana.
One of Defendant's theories in defense of the charges
was that the informant was a drug dependent individual who
was double dealing with the Lincoln County Sheriff's Depart-
ment. Defendant alleges that the informant had his own
extensive drug habit that he was supporting while employed by
the Sheriff's Department and that he supplied drugs to the
Sheriff's office and alleged that they were from the Defen-
dant, whereas in reality he was supplying the drugs himself.
This enabled the informant to sustain his habit and avoid the
risk of criminal prosecution.
The State offered testimony tending to establish the
necessity of narcotic use by an informant in such clandestine
operations as means of maintaining an effective cover. In
his testimony, the informant stated that he used drugs as
part of his cover. In a pretrial statement, Officer Rernall
also stated that the informant showed signs of drug depen-
dence, and that he "used a druqger to catch a drugger. " On
one occasion, the informant's testimony indicates that he
supplied and used cocaine with Curtiss, for the alleged
purpose of maintaining his cover. On this occasion, the
informant took out two hypodermic needles, allegedly in his
possession as part of his cover, and directly injected
cocaine intravenously with Curtiss.
Rased on such evidence, the Defendant sought to prove
that the informant's need for drugs to support his habit was
the motivation to use his cover as a law enforcement agent to
sell and use drugs and still portray himself as an effective
informant. The Defendant also sought to introduce evidence
of the informant's drug use in the investigations of other
suspects in the Libby area and his drug use prior to being
employed as an agent. However, the State's motion in limine
to exclude evidence of the informant's involvement with drugs
and drug dependency was granted as to any instances beyond
the scope of the res gestae of the charges against this par-
ticular defendant.
At trial the jury found the Defendant guilty of criminal
sale of dangerous drugs on counts I, 111, and IV of the
information and not guilty on count 11. His wife later plead
guilty to the criminal sale of dangerous drugs that occurred
under count IV. Defendant maintains that her testimony
absolves the Defendant of any responsibility for that trans-
action. Defendant has no prior felony convictions or
criminal record except for traffic violations. The Defendant
was sentenced to 13 years imprisonment in the Montana State
Prison and fined $2500.00. His subsequent motion for new
trial was denied, and he now appeals the denial of that
motion and the sufficiency of the evidence as to counts III
and IV, raising the issues enumerated earlier.

Defendant maintains that the trial court erred in admit-
ting evidence of the Defendant's bad character during the
State's case-in-chief. On direct examination Officer
Bernall testified that the informant was provided with a list
of "known" drug dealers in the Libby community to infiltrate
and that the Defendant was on that list. On redirect exami-
nation Bernall further testified:
(by Mr. Spencer): Partly, what are you also
relying on?
(by Officer Bernall) : My personal knowledge.
Of what?
Mr. Gommenginger.
And where did you get that personal knowledge
from?
From confidential informants and other
officers.
And what is the information?
- - - he is a cocaine dealer.
That -

The trial court ruled, and the State maintains, that defense
counsel opened up the door for the admission of this testimo-
ny with the following statement made during opening:
To begin with, we have an informant who is
initially before he begins working told by the
detective here, Mr. Bernall, that Greg is someone
in whom they are interested in getting a conviction
for a drug sale.
So the informant immediately has incentive to
pursue my client. ...
 We disagree. Rule 405(a), M.R.Evid. provides that proof
of the Defendant's character may be made by testimony as to
reputation or in the form of an opinion. Thus, not only is
Officer Rernall's testimony hearsay, it contains elements of
both opinion and reputation evidence of the Defendant's bad
character as relating to his disposition to commit the crime
with which he was charged. - State v. Alberts (1969), 80
See
N.M. 472, 457 P.2d 991, 993; State v. Ramirez Enriquez
(1987), 153 Ariz. 433, 737 P.2d 407, 408. Rule 404(a) ( I ) ,
M.R.Evid., only allows the prosecution to introduce such
evidence of an accused's bad character as proof that he acted
in conformity therewith to rebut defense evidence of the
accused's good character offered to prove the same. Here,
defense counsel's opening statement merely stated that law
enforcement told the informant that they were interested in
getting a conviction against the Defendant for a drug sale.
The opening statement did not even deny that the Defendant
was a drug dealer. This statement did not put the Defen-
dant's good character or reputation in the community into
issue so as to open the door to allow the State to present
character evidence in its case-in-chief. -- State v.
See e.g.
Atlas (1986), 224 Mont. 92, 728 P.2d 421 (allowing the State
to introduce videotaped evidence in its case-in-chief of
Defendant's former lover to refute Defendant's opening state-
ment that portrayed him as a loving husband devastated by the
death of his wife.)
The testimony of Officer Bernall amounted to evidence of
the Defendant's bad character as a drug dealer that would
invite the jury to infer the Defendant's guilt based on his
alleged reputation as a drug dealer in the Libby community.
The Defendant did not put his character into issue, and
admission of such evidence constitutes reversible error. -
See
Michelson v. United States (1948), 335 U.S. 469, 69 Sect.

The Defendant also argues that the District Court erred
in granting the State's motion in limine restricting the
cross-examination of the State's chief witness concerning the
informant's drug use to the res gestae of the crimes charged.
The Defendant argues that this effectively denied him his
fundamental right of confrontation guaranteed by the Sixth
Amendment of the United States Constitution.
The State contends that cross-examination was properly
limited pursuant to their motion in limine and Rule 608,
M.R.Evid. The Rule, which is nearly identical to its federal
counterpart, provides in pertinent part:
Rule 608. Evidence of character and conduct of
witness.
...
(b) Specific instances of conduct. Specific
instances of the conduct of a witness, for the
 purpose of attacking or supporting his credibility,
may not be proved by extrinsic evidence. They may,
however, in the discretion of the court, if proba-
tive of truthfulness or untruthfulness, be inquired
into on cross-examination of the witness (1) con-
cerning his character for truthfulness or untruth-
fulness. . ..
Rule 608, M.R.Evid. Under Rule 608, reference to specific
instances of conduct for the purpose of proving a witness's
character for truthfulness or untruthfulness is never permit-
ted on direct examination of another witness. State v.
McLean (1978) 179 Mont. 178, 185, 587 P.2d 20, 25. Specific
instances of conduct may, however, be introduced through
cross-examination if the trial court in its discretion deter-
mines that the evidence is probative of the witness's credi-
bility. Rule 608, M.R.Evid., McLean, supra.
Rule 608 (b) is intended to regulate only the use of
specific instances of conduct offered to prove that the
witness is generally an untruthful person unworthy of belief.
On the other hand, bias or motive of a witness to testify
falsely is not a collateral issue because it bears directly
on the issue of the defendant's guilt; thus, extrinsic evi-
dence is admissible to prove that the witness has a motive to
testify falsely. United States v. James (2d Cir. 1979), 609
F.2d 36, 46; Johnson v. Brewer (8th Cir. 1975), 521 F.2d 556;
United States v. Kinnard (D.C.Cir. 1972), 465 ~ . 2 d 566,
573-574; IJnited States v. Barrett (D.Me. 19841, 598 F.Supp.
469, 475, aff'd (1st Cir. 1985), 766 F.2d 609, 615. See,
also, e.g.
- - State v. Dougherty (1924), 71 Mont. 265, 229 P.
735; State v. Carns (1959), 136 Mont. 126, 345 P.2d 735-
Furthermore, an accused's right to demonstrate the bias
or motive of prosecution witnesses is guaranteed by the Sixth
Amendment right to confront witnesses. Alford 77. United
States (1931), 282 U.S. 687, 75 L.Ed. 624, 51 S.Ct. 218;
Greene v. McElroy, (1959), 360 U.S. 474, 79 S.Ct. 1400, 3
L.Ed.2d 1377; Davis v. Alaska (1974), 415 U.S. 308, 94
S.Ct. 1105, 39 L.Ed.2d 347. In -
Alford, the Supreme Court
-
held that it was an abuse of discretion and prejudicial error
to "cut off - limine all inquiry on a subject with respect
in
to which the defense was entitled to a reasonable cross
examination." 282 U.S. at 694, 51 S.Ct. at 220, 75 L.Ed. at
629. In Davis, the trial court improperly restricted the
Defendant's attempt to demonstrate bias or motive of the
State's witness through cross-examination:
. . . [wlhile counsel was permitted to ask Green
whether he was biased, counsel was unable to make a
record from which to argue why Green might have
been biased or otherwise lacked that degree of
impartiality expected of a witness at trial. On
the basis of the limited cross-examination that was
permitted, the jury might well have thought that
defense counsel was engaged in a speculative and
baseless line of attack on the credibility of an
apparently blameless witness. ...
94 S.Ct. at 1111. Here, limitation of cross-examination
could also result in the jury viewing the credibility of the
informant in a vacuum.
 Courts have long recognized that the testimony of infor-
mants should be scrutinized closely to determine "whether it
is colored in such a way as to place guilt upon a defendant
in furtherance of the witness's own interests." Fletcher v.
United States (D.C.Cir. 1946), 158 F.2d 321, 322. Such
scrutiny is particularly important in narcotics cases involv-
ing informant's that are habitual drug users:
Law enforcement officials are open about their use
of informants, but there is less discussion about
why their informer's perform.
...
. . .the addict is only valuable if he pro-
duces fruitful tips or arranges sales which lead to
prosecutions. The addict-turned-informer may
therefore be desperate not only to produce results
for the police, hut also to avoid retribution from
powerful figures in the drug trade. This despera-
tion may well lead him to lie, and increases the
danger that he will misrepresent the involvement of
those whom he fingers.
...
. . . The Government's use of infiltrator's
and informants to combat the drug trade may well be
a necessity, and it is not unconstitutional - -
per se.
It has been established that their testimony may he
used to obtain convictions, even if it is
uncorroborated. But when they do testify at trial,
the court must exercise special care to protect the
defendant's right to the "established safeguards of
the AngloArnerican legal systemn-- cross-examination
and proper instructions to the jury.
Kinnard, 465 F.2d at 571-572 [citations omitted]. In
Kinnard, the informant's testimony implicating the defendants
was uncorroborated. Defense counsel attempted to establish
the informant's addiction through extrinsic evidence of the
needle marks on the informant's arms as relevant to the
frequency of his drug use. The Circuit Court of Appeals held
that the trial court erred in refusing to allow this
evidence.
Here, the informant's testimony is uncorraborated as to
counts I and 111, and uncorraborated as to the charge of
direct sale under count IV. And while defense counsel was
permitted to inquire about the informant's needle marks in
this case, this inquiry was abruptly terminated at the point
that such evidence could indicate drug usage beyond the res
gestae, that is beyond the incident of intraveneous drug use
with Curtiss that was allegedly part of his cover. All other
inquiry into the informant's alleged drug habits was also
limited to the res qestae pursuant to the State's motion,
thus the prosecution was able to maintain or allude that all
of the informant's drug use was merely part of his cover.
Because of this limitation, the defense was effectively
precluded from inquiring into whether the informant was drug
dependent or addicted and whether such dependence gave him a
motive to testify falsely.
Generally, it is within the district court's discretion
to exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to (1)
make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of
time, and (3) protect witnesses from harrassment or undue
embarrassment. Rule 611(a), M.R.~vid. Also, evidence that
is relevant may nevertheless be excluded by the district
court if its probative value is substantially outweighed by
the danqer of unfair prejudice, confusion of the issues,
misleading the jury, or considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.
Rule 403, M.R.Evid. However, the trial court's discretion in
exercising control and excluding evidence of a witness's bias
or motive to testify falsely becomes operative only after the
constitutionally required threshold level of inquiry has been
afforded the Defendant. United States v. Tracey (1st Cir.
1982), 675 F.2d 433, 437. Therefore, upon remand for new
trial, the Defendant should be afforded latitude in cross-ex-
amination, and be allowed to introduce extrinsic evidence
regarding the informant's alleged habitual drug use as rele-
vant to his motive to testify falsely, if denied by the
informant subject to the usual limitations of Rules 403 and

As his final issue, the Defendant argues that the evi-
dence was insufficient to support a conviction on counts 111.
and IV. The standard of review of sufficiency of the
evidence is whether, after viewing the evidence in the 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. Krum,(Mont. 1989), 777 P.2d 889,
891, 46 St.Rep. 1334, 1336; State v. Kutnyak (1984), 211
Mont. 155, 174, 685 P.2d 901, 910.
With respect to the charges under count IV for direct
sale and accountability for sale of dangerous drugs, the
State's evidence tended to establish the following facts: On
August 3, 1988, Curtiss went to the informant's house and
asked him if he wanted to buy some "crank," a form of metham-
phetamine. She attempted to set up a deal through the Defen-
dant's wife. The Defendant's wife was unable to get any
"crank," hut she told the informant that she could get him
some cocaine. After some further arrangements, the informant
gave the Defendant's wife $100.00 and arranged for a delivery
of cocaine at his house. The informant testified that during
these arrangements he saw the Defendant's wife talking with
the Defendant.
Later, that day, as the informant was talking with
Officer Bernall over the phone, he saw the Defendant and his
wife drive up in front of the informant's home. Officers
Bernall and Gassett later observed the Defendant's vehicle
parked in the informant's driveway. The Defendant and his
wife came in, sat on the couch, and the Defendant's wife
handed the informant a gram of cocaine which he placed on the
coffee table. She then asked if she could have some for
setting up the deal. The informant agreed and gave her a
mirror and a razor blade with which she cut three lines of
cocaine. The informant testified that the Defendant and his
wife then each snorted a line but he did not. Officer
Bernall testified that through the informant's body wire he
heard the informant tell the others that he wasn't going to
snort a line because he didn't do it that way. The Defendant
and his wife left and the informant delivered the remaining
cocaine to officer Bernall.
The informant's testimony constitutes direct evidence
that the Defendant aided or abetted his wife in the commis-
sion of the sale. - S 45-2-302 (3), MCA (~ccountability)
See ;

s 45-9-101, MCA (Criminal sale of dangerous drugs.) The

Defendant drove his wife to the informant's house and was
present during the transaction. At no point did he attempt
to terminate his efforts to facilitate the sale. - S
See
45-2-302(3) (b), MCA. The evidence on count IV is at least
sufficient for a rational trier of fact to find the essential
elements of the crime of accountability for the criminal sale
of dangerous drugs beyond a reasonable doubt. Sections
45-2-302, 45-9-101, MCA; Krum, 777 P.2d at 891; Kutnyak, 685

With respect to count 111, alleging criminal sale of
dangerous drugs, the informant's testimony was offered to
establish the following facts: On July 16th, 1988, the
informant met with Curtiss in order to set up a cocaine buy.
No police surveillance was used. The informant and Curtiss,
along with a friend of Curtiss, eventually went to Harold's
Tavern, the Defendant's place of business, where they saw a
vehicle, supplied by Defendant's employer and generally used
by the Defendant, parked outside. Curtiss and friend went
into the bar and returned approximately fifteen minutes later
with a "bindle" (approximately one gram) of cocaine which
they gave to the informant. The informant testified that
Curtiss stated the cocaine was from the Defendant. He also
testified that he gave Curtiss $100.00, which she then took
into the bar, after taking out some cocaine for setting up
the deal. The informant then went home and delivered the
cocaine to the Sheriff's Department about two and one-half
hours after the transaction.
Curtiss' testimony regarding the essential elements of
the offense charged under count 111 wholly contradicts the
testimony of the informant. She testified that during this
incident the informant had several bindles of cocaine in his
possession and that she and a friend entered the bar at his
request looking for someone to purchase cocaine from the
informant. She testified that the informant suggested that
they see if the Defendant was interested in making a pur-
chase. When she failed to find any prospective purchasers,
she then went back outside the bar, returned the cocaine to
the informant, took a small amount for her efforts, and
returned to the bar.
The only uncontradicted evidence offered through the
informant's testimony is that the vehicle the Defendant
usually drove was parked outside the tavern. The informant
did not observe the alleged sale or the Defendant's presence
at the tavern, nor did he have any contact with the Defendant
on that day. The only evidence implicating the Defendant is
the statement of Curtiss allegedly made to the informant
that the Defendant was the source of the cocaine the infor-
mant alleges she had just delivered.
The Defendant contends that the alleged statement of
Curtiss as testified to by the Defendant was inadmissible due
to lack of foundation for introduction of a co-conspirator's
statement, under Rule 801 (d)(2)( E ) , M.R.Evid. The State
argues that the necessary foundation establishing the exis-
tence of a conspiracy was laid and therefore the out of court
statement of Curtiss fits under the coconspirator exclusion
to the hearsay rule. - Rule 801(d) (2)(E), M.R.Evid.; State
See
v. Stever (1987), 225 Mont. 336, 732 P.2d 853.
To qualify for a hearsay exclusion under Stever, the
statement must have been made in the course of and in
furtherance of the conspiracy by a coconspirator of the
defendant. Rule 801(d) (2)(E), M.R.Evid., 732 P.2d at 857.
Furthermore, a separate confrontation clause analysis must
be satisfied in order to guarantee the reliability of the
challenged coconspirator statements. Stever, 732 P.2d at 859.
Relevant criteria to be considered are (1) the declarant's
knowledge of the identity and role of the defendant in the
crime; (2) the possibility that the declarant was relying
upon faulty recollection; and (3) the circumstances under
which the statements were made, possibly indicating that the
declarant might be lying about the defendant's involvement in
the conspiracy; and (4) whether the testimony is so "crucial"
to the prosecution or "devastating" to the defense as to
require reversal of the conviction. Stever, 732 P.2d at 859;
State v. Fitzpatrick (1977), 174 Mont. 186, 569 P.2d 383,
392; United States v. Snow (9th Cir. 1975), 521 F.2d 730,

However, we need not determine if the statement is
excluded from hearsay under the co-conspirator rule in this
case, for even if properly admitted, the statement is not
sufficient to support the conviction on count 111. It is the
same type of statement admitted upon a proper foundation
under Rule 801 (d)(1)(A), M. R. Evid. , which provides:
(d) Statements which are not hearsay. A
statement is not hearsay if:
(1 Prior statement by witness. The
declarant testifies - -
- - at the trial or hearing and is
subject to cross-examination concerninq the state-
ment, and the statement is (A) inconsistent with
his testimony. ...
Rule 801 (d)(1)(A), M.R.Evid. -- State v. Fitzpatrick
See e.g.,
(1980), 186 Mont. 187, 196, 606 P.2d 1343, 1348; - -
see also
State v. Charlo (1987), 226 Mont. 213, 215, 735 ~ . 2 d278,
279.
Rule 801 (d)(1)(A), theoretically enables the State to
make out a prima facie case even if its only evidence is a
previous inconsistent statement of this type. However, if
the only evidence of some essential fact is such a previous
statement, the party's case fails. United States v. Orrico
(6th Cir. 1979), 599 F.2d 113, 118, citing 4 Weinstein's
Evidence 801-74. It is doubtful that in any but the most
unusual cases, a prior inconsistent statement alone will
suffice to support a conviction since it is unlikely that a
rational trier of fact could find the essential elements of
the crime charged beyond a reasonable doubt. Orrico, 599
F.2d at 118; - -
see also - 46 St.Rep. at 1336; Kutnyak, 685
Krum
P.2d at 910.
Here, the alleged extra-judicial statement of Curtiss
lacks any indicia of reliability, particularly since Curtiss
has also been charged for similar offenses arising out of the
same series of transactions. An unreliable prior
inconsistent statement should not be the sole, substantive
evidence upon which a jury should be allowed to base guilt.
State v. White Water (1981), 634 P.2d 636, 638-39. The
evidence is insufficient to sustain a conviction on count
111, and warranted a verdict directed in favor of the Defen-
dant on that count. White Water, 634 P.2d at 639; State v.
Perez (1952), 126 Mont. 15, 243 P.2d 309.
The charges under count I11 of the information are
hereby dismissed, the judgment of the District Court is
reversed and the cause is remanded for a new trial.
REVERSED and REMANDED for further proceedings consistent

with this opinion.

We Concur:
/7-