No. 83-92
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
GEORGE CHAP-Wil,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver BOW,
The Eonorable Arnold Olsen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Brad L. Belke argued, Butte, Montana
For Respondent :
Ilon. Mike Greely , Attorney General, Iielena, Plontana
Mark Murphy argued, Asst. Atty. General, Helena
Robert N. McCarthy, County Attorney, Butte, Montana
Christopher Miller argued, Deputy County Atty, Butte
Submitted: September 14, 1983
Decided: March 30, 1984
Mr. Justice Daniel J. Shea delivered the Opinion of .the
Court.
Defendant, George Chapman, appeals from a S i l v e r Bow
County District Court judgment entered on a jury verdict
f i n d i n g him g u i l t y o f c r i m i n a l s a l e of dangerous d r u g s . The
c h a r g e s stem from an a l l e g e d s a l e o f d r u g s t o an u n d e r c o v e r
police agent in Butte, Montana. Defendant raises three
issues, a l l r e l a t i n g t o h i s c l a i m t h a t h e was entrapped. by
t h e paid informant. W e r e v e r s e and o r d e r a new t r i a l .
For a p e r i o d o f a p p r o x i m a t e l y a month and a ha1.f b e f o r e
t h e a.lleged s a l e , a n und.ercover, p a i d S t a t e i n f o r m a n t made
repeated contacts with the defendant, asking defendant t o
obtain drugs for the informant. Out of this contact
d e f e n d a n t r e l i e d on two d e f e n s e s . First, defendant claimed
he c o u l d n o t be c o n v i c t e d b e c a u s e , under t h e t h e o r y s e t f o r t h
i n Adams v . United. S t a t e s ( 1 9 5 5 ) , 220 F.2d 297, he was merely
a messenger for the State. Second, t h a t because of State
a c t i v i t y i n s o l - i c i t i n g him t o buy d r u g s , h e was e n t r a p p e d .
Defendant claims that both these defenses entitle him to
d i s m i s s a l o f t h e c h a r g e s a s a m a t t e r o f law.
The t h i r d , fourth, and f i f t h i s s u e s concern h i s c l a i m
t h a t h e was d e n i e d h i s r i g h t t o f u l l y p r e s e n t h i s e n t r a p m e n t
defense. Defendant c l a i m s t h a t h e was d e n i e d t h e r i g h t t o
obtain the name and address of the informant; defendant.
c l a i m s t h a t h e was d e n i e d t h e r i g h t t o have a key w i t n e s s
t e s t i f y b e c a u s e t h e t r i a l c o u r t abused i t s d i s c r e t i o n i n n o t
g r a n t i n g immunity t o t h e w i t n e s s b e f o r e t h a t w i t n e s s would
t e s t i f y ; and d e f e n d a n t c l a i m s t h a t he was d e n i e d t h e r i g h t t o
p r e s e n t t e s t i m o n y from a n o t h e r w i t n e s s who c o u l d t e s t i f y t h a t
the i n f o r m a n t used s i m i l a r and h a r a s s i n g t e c h n i q u e s on h e r
family to wear down their resistance to obtain drugs on
behalf of the informant. The manner in which the issues were
raised at trial follows.
At the pre-trial omnibus hearing, defendant moved that
the informant's identity and whereabouts be disclosed so that
defendant could call him as a witness. The State resisted
and the trial court denied the motion. Before trial began,
defendant again renewed his motion to compel disclosure of
informant's name and address, but the court again denied this
motion. Alternatively, in the event the trial court denied
this motion, defendant asked through a motion in limine that
the undercover agent be instructed not to mention any
conversation he had with the informant because the defendant
had no opportunity to test those conversations. This motion
was also denied.
To further establish his entrapment d.efense, defendant
attempted to present testimony of a witness who was with the
informant in most of his contacts with the defendant, and
who, according to defendant, could establish that the
informant used persistent and harassing techniques to wear
down the defendant's repistance to sell drugs. Defendant
attempted to present this testimony at trial, but the trial
court refused to grant immunity to the witness, and so denied
defendant the opportunity to present testimony on the methods
used by the informant in setting up the drug purchases to
facilitate a prosecution for sale of drugs.
And to also present his entrapment defense, defendant
attempted to present the testimony of a witness who,
according to the defendant, experienced or witnessed the same
kind of harassment by the informant that defendant
experienced. At the pre-trial hearing, the court sustained
the State's objection and refused to allow the witness to
testify. At trial the defendant again attempted to present
this testimony, but the trial court sustained the State's
objection, ruling that the testimony was irrelevant.
Eecause defendant was left with only his own testimony
and that of his wife to establish his entrapment defense,
defendant contends in essence that he was effectively
stripped of his right to present a meaningful defense.
Although we do not agree that defendant established
entrapment as a matter of law based on the trial record, we
do agree that he was effectively denied his riqht to present
his entrapment defense. Therefore, a new trial is required.
Defendant was arrested on March 3, 1982, and charged
with criminal sale of dangerous drugs. The arrest was based
on events of March 1, 1982, when defendant allegedly sold
amphetamines to an undercover agent, who made the contact
with defendant through efforts of the informant.
The Montana Attorney General's office contacted the
Butte-Silver Bow Sheriff's Department in January 1982, two
months before the arrest, and asked if the sheriff could use
an undercover informant in the Butte area. The sheriff
believed there would be a use for an informant. In late
January 1982, the Attorney General's office sanctioned and
approved placement of an informant known as "JR" in Butte.
Informant and his wife met with the Butte Sheriff's
Department, and he was instructed to go "underground" and
gain information about illegal drug activity in Butte.
Informant was given a vehicle, a room, money for drug
purchases, limited pay, as well as a list of suspected drug
dealers. The informant was to infiltrate the illegal drug
circles, and prepare for the entry of an undercover agent,
Tom Adamo. Adamo would then participate in a purchase of
drugs, upon which a prosecution would be based.
In February 1982, the informant became acquainted with
William Worley, who had been living with defendant and his
wife since December 1981. Worley became one of the
informant ' s contacts with the Butte drug community.
Informant saw Worley at defendant's home frequently. Each
time informant came to defendant's house, he either brought
drugs with him, or would go with Worley to buy drugs.
Usually, informant and Worley returned to defendant's house,
and used drugs in the presence of defendant and his wife.
Defendant and his wife testified that each time informant was
at their house, he asked defendant to buy drugs for him.
Worley left Butte during the last week of February,
1982. After this, informant continued to phone defendant's
house for Worley. The informant also frequently stopped by
defendant's house, looking for Worley, and repeatedly asked
defendant to sell him drugs. Defendant told the informant
that Worley left town, and that he, the defendant, was not
part of the drug scene, and did not have drugs to sell.
On March 1, 1982, defendant was at a bar in Butte. The
informant and his wife were there, and both approached
defendant. The informant asked the defendant to sell him
drugs, but the defendant said he had no drugs to sell. The
informant then to1.d defendant that his "brother" (who was
Adamo, the undercover agent) was coming to town, and would
need drugs because he was an addict. The informant asked if
defendant knew of anyone who sold drugs. Defendant denied
any knowledge of current drug activity and left the bar.
Later that same evening, the informant, his wife and the
undercover agent arrived uninvited at defendant's house. The
undercover agent, Adamo, was introduced as the informant's
brother.
The undercover agent testified that when he and the
informant were at the defendant's residence, the defendant
showed no reluctance to buy drugs for them. The undercover
agent also testified that he did not have any alcohol with
him when he entered defendant's residence. In contrast, both
defendant and his wife testified that the informant and
undercover agent were in their house a half hour and
repeated.1~ asked defendant to purchase drugs for them.
Defendant and his wife testified that the undercover agent
acted very nervous and shaky, and they interpreted his
behavior as drug withdrawal. Defendant's wife also testified
that the undercover agent offered her 17 month old child a
sip of beer from the can she claims he was holding. She
testified that at this point she asked defendant to do
anything necessary to get the informant, his wife, and
undercover agent out of the house.
The remaining facts are not in dispute. Defendant went
with the informant, informant's wife and the undercover agent
to a house on Evans Street in Butte. Defendant testified he
purchased drugs from the occupant of the house when he was an
addict, but not recently. Defendant went into the house to
d-etermine if any amphetamines were available. He came back
to the car and told the informant and the undercover agent
they could buy a half gram of amphetamines for $50. The
undercover agent gave the defendant $50, and the defendant
returned to the car and gave the drugs to the undercover
agent. The group returned to defendant's residence.
Outside of his house, defendant indicated the informant
and the undercover agent could come in and use the
amphetamines. Defendant testified he made this offer because
he was becoming suspicious, and wanted to know that all the
drugs were used. He testified he made it clear he would not
use the amphetamines himself. The undercover agent
testified, however, that he believed defendant made the offer
because defendant wanted some drugs as his payment for
obtaining the amphetamines for the undercover agent. The
informant and the undercover agent refused to go in and left
defendant at his house. Defendant received neither money nor
drugs as payment for finding a drug source for the undercover
agent. Two days later defendant was arrested and charged
under section 45-9-101, MCA, with the felony sale of
dangerous drugs for the act of giving the drugs to the
undercover agent.
Based on Adams v. United States, supra, defendant argues
that his conviction for sale cannot stand. He contends that
he was merely a messenger -- he had no drugs in his
possession, he never had control of the drugs, and he
received no compensation. He contends he merely carried the
money from the car to the house, and the drugs from the house
to the car, and that he was at all times acting only as a
messenger of the State agent. However, we decided in State
v. Davis (Mont. 1980), 620 P.2d 1209, 37 St.Rep. 1958, that
we would broadly interpret our statute to include the
transfer of drugs to an undercover agent as sufficient to
constitute the offense of sale of dangerous drugs. We
recognized in Davis, relying on authority from New Hampshire
and Kansas, that a defendant need not possess "title" to the
drugs nor need he receive valuable consideration to
constitute the offense of criminal sale of dangerous drugs.
Davis, supra, 620 P.2d at 1215, 37 St.Rep. at 1964. We
recognized that delivery was an integral part of the sale of
drugs and therefore that a sale did not end with the payment
of money.
Here Chapman made the arrangements for the undercover
agent to purchase the drugs, and though Chapman had no title
or possession of the drugs other than to carry the drugs to
the car for delivery to the agent, his participation in the
delivery of the drugs made him, under the Davis rationale,
more than a mere messenger of the State. Therefore, Chapman
could properly be charged with the sale of dangerous drugs
under section 45-9-101, MCA. However, the question of
whether Chapman was entrapped is yet another question that
only another jury trial can determine.
Defendant next claims he established entrapment as a
matter of law, and that the charges should have been
dismissed. At the pre-trial hearing on entrapment and at the
trial, defendant attempted to present testimony of two
witnesses to prove that he was induced tc sell drugs to the
undercover agent. The trial court refused to allow the
testimony, ruling that it was irrelevant. Because the trial
record reveals conf1-icting testimony regarding the
defendant's intent and predisposition to commit the crime,
the question of entrapment was for the jury to determine.
However, as we discuss below, we have no doubt that defendant
was deprived of his right to present testimony of the
informant a-nd the two witnesses whose testimony was vital to
the establishment of the entrapment defense.
Defendant next contends the court erred in refusing to
require disclosure of the informant's identity and address.
Montana has recognized the rule of privilege for the identity
of an informer and codified it in Rule 502, Mont.R.Evid.,
adopted in 1977. This rule allows the government to refuse
to disclose the identity of an informant, subject to certain
exceptions. The exception applicable in this case provides
that if an informant can give testimony relevant to any issue
in a criminal case, and the government claims the privilege,
the trial court must determine if the defendant's right to
prepare his defense will be impinged by the government's
interest in protecting the flow of information by informants.
If the trial court determines that the defendant's rights
will be violated if the informant is not identified, and the
government refuses to identify the informant, the court must
dismiss the charges against the defendant. Even before this
rule was adopted, Montana followed the same balancing test,
which was set forth by the United. States Supreme Court in
Roviaro v. United States (1959), 353 U.S. 53, 77 S.Ct. 623,
11 L.Ed.2d 639.
In Roviaro, defendant delivered heroin to an informant
and was charged with knowingly possessing and transporting
unlawfully imported heroin. Roviaro's pre-trial motions for
disclosure of informant's identity were denied. The motions
were not based on a defense of entrapment, but that informant
was the only other one actually taking part in the
transaction. The United States Supreme Court held that when,
in the interests of fundamental fairness, disclosure of an
informant's identity is relevant and helpful to the
defendant's defense, or essential to a fair determination of
the case, the privilege must fall.
This Court in Offerdahl v. District Court (1971), 156
Mont. 432, 481 P.2d 338, quoted with approval the United
States Supreme Court's balancing test that requires a
balancing of the defendant's interest in preparing his
defense, and the government's interest in protecting the flow
of informant information. The test requires the trial court
to consider the circumstances of each case, the crime charged
and any possible defenses, and the possible significance of
the informant's testimony. In Offerdahl, the defendant was
charged with selling drugs to "John Doe", an informant.
Defendant's pre-trial motion to compel disclosure of
informant's identity was denied. This Court held that the
informant's identity must be disclosed because only the
informant knew whether defenc?ant was the one who made the
drug sale or who received the marked money; the informant's
testimony would determine the defendant's guilt or innocence
of the crime of selling drugs.
We recently considered the question of disclosing an
informant's identity in State v . Sykes (Mont. 1983), 663 P.2d
691, 40 St.Rep. 690, in which a search warrant was issued
based on an unnamed informant's report that defendant had
one-half pound of Columbian-type marijuana in his trailer
home. In that case, this Court did not require disclosure of
the informant's identity. Although we recognized the
necessity of anonymous informants as part of police
operations, Sykes does not apply here. In Sykes, claimant
merely alleged that the evidence acquired by informant may
have been obtained by an invasion of his privacy, and
possibly violated his due process rights. Rut here, the
informant played a continuous, active, and primary role in
the alleged crime. However, the informant was not available
as a witness because sometime after defendant's arrest,
informant and his wife left town. Defendant does not know
the whereabouts or the true identity of informant. Without
the informant's testimony, the jury had only the testimony of
defendant and his wife to counter the testimony of undercover
agent Adamo, and to establish the defense of entrapment.
We hold that in the interest of fund.amenta1 fairness,
the informant's identity should have been disclosed. The
informant's testimony is relevant to the issue of entrapment,
and the balancing test, in this case, weighs heavily in
defendant's favor.
To further establish his defense of entrapment,
defendant wanted to present the testimony of William Worley
and Diane Surman. Defendant claimed he would show through
Worley's testimony that whenever informant was at defendant's
house, the informant persisted in asking defendant to get
drugs for him. Worley introduced the informant to defendant,
and was informant's contact with the Butte drug scene. In
addition, defendant argued he would show through Diane
Surman's testimony that the informant's method of operation
was to persist in his requests for drugs, and to wear down
one's resistance to sell drugs. Diane Surman's husband was
arrested on the same day as defendant for the sale of
dangerous drugs to the undercover agent and the informant,
based on a transaction that occurred one week earlier.
At trial, defendant attempted to prove through Worley's
testimony that the informant continuously contacted and
harassed defendant, asking for drugs. Long before trial, the
State was notified that defendant was calling Worley as a
witness. Defendant was unable to locate Worley until one
week before trial, and Worley was promptly subpoenaed. The
State had not questioned Worley, and wanted to do so before
he testified. However, defense counsel indicated to the
court he only briefly talked with Worley, and he knew Worley
would be an unfriendly witness who would not testify unless
granted immunity.
Questioning was held outside the hearing of the jury to
determine if immunity should be granted. While being
questioned, Worley claimed his Fifth Amendment riqht against
self-incrimination and refused to answer questions relating
to his connection with the informant. Defendant requested
immunity for Worley, pursuant to section 4 6 - 1 5 - 3 1 1 , MCA, so
Worley's testimony could be heard. Defendant explained that
Worley would be admitting to possession, use and sale of
dangerous drugs. Montana law provides that a person may be
required to give testimony that may incriminate him, and if
testimony is required, prosecution based on that testimony is
barred. Section 4 6 - 1 5 - 3 1 1 , MCA. The trial court, however,
refused to grant immunity to Worley, and also ruled that
Worley's testimony was irrelevant and immaterial.
Defendant twice attempted to use Diane Surman's
testimony to prove that the informant methodically used
persistent contact and harassing techniques to wear down
one's resistance to sell drugs. First, at the pre-trial
hearing, the court ruled that Diane Surman's testimony was
immaterial and had no bearing on the contact between the
informant and defendant. The court ruled that Diane Surman
could not testify to the informant's methods of setting up
drug buys.
At the trial, defendant again attempted to question
Diane Surman to establish that informant's method of
operation was to persist in his requests for drugs and to
wear down one's resistance to sell drugs. The court again
denied defendant the opportunity to question the witness, and
again ruled that her testimony was irrelevant and immaterial
to defendant's defense of entrapment.
We believe the trial court should have permitted
defendant to present evidence of informant's methods in
setting up drug sales, even though the sales were with people
other than defendant. We analogize to Rule 404,
Mont.R.Evid., which, in certain circumstances, allows the
State to introduce evidence of other crimes committed by a
defendant to prove, among other things, plan, motive or
intent of the defendant. The principle behind the rule must
be equally available to a defendant who, as a part of his
defense, seeks to show a plan or method of operation of the
State's informant. The trial court, therefore, should have
permitted defendant a chance to prove through the testimony
of a witness, that the informant used harassing techniques as
part of his method of operation in setting up drug buys.
Fundamental fairness requires this result.
In summary, all excluded testimony was relevant and
material to defendant's defense of entrapment. The
informant's testimony would allegedly establish that
defendant at first resisted but finally gave in to the
informant's persistent and hara-ssing techniques to set up a
drug buy. William Worley's testimony is relevant to
defendant's entrapment defense because Worley allegedly
witnessed the contact between the informant and defendant for
a five week period. Worley's testimony allegedly would show
that defendant was subjected to persistent and harassing
requests for drugs. Finally, Diane Surman's testimony
allegedly would shoh7 that the informant used persistent and
harassing contacts as his method to set up drug buys.
Because Diane Surman personally experienced the informant's
methods, and witnessed the effect on her husband, her
t e s t i m o n y t h e n c o u l d c o r r o b o r a t e t h e t e s t i m o n y of d e f e n d a n t
and h i s wife. Based on t h e n e c e s s i t y f o r t h e s e w i t n e s s e s ,
defendant was denied the right t o present his entrapment
defense. Defendant was c l e a r l y d e n i e d h i s r i g h t t o p r e s e n t a
f u l l and meaningful d e f e n s e .
F o r t h e s e r e a s o n s , t h e judgment of t h e D i s t r i c t C o u r t i s
vacated, and t h e c a s e remanded f o r a new t r i a l , consistent
w i t h t h e views e x p r e s s e d i n t h i s o p i n i o n .
W Concur:
e
7 3 4 \ pi!*- .
'
Chief J u s t i c e
D i s t r i c t Judge,
s i t t i n g i n p l a c e of
M r . J u s t i c e Frank B. M o r r i s o n , J r .