No. 8 8 - 6 3
I N THE SUPREME COURT O F THE STATE O F M N A A
O T N
1988
STATE O F MONTANA,
P l a - i n t i f f and R e s p o n d e n t ,
-vs-
KELLY SATJOTS,
Defendant and A p p e l l a n t .
APPEATJ FROM: D i s t r i c t Court of t h e Twentieth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f L a k e ,
The H o n o r a b l e C . R . M c N e i l , J u d g e p r e s i d i n q .
COUNSE?., O RECORD :
F
For Appellant:
Benjamin R . A n c i a u x , P o l s o n , Montana
For Respondent :
F- Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , Helena, Montana
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D o r o t h y McCarter, A s s t . A t t y . G e n e r a l , H e l e n a
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L a r r p J . N i s t l e r , County A t t o r n e y , P o l s o n , Montana
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4 , , Mark S t e r m i t z , Deputy County A t t v . , P o l s o n , Montana
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- S u b m i t t e d on B r i e f s : Dec. 2, I988
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December 3 0 , 1988
Filed:
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Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Defendant Kelly Salois appeals from a jury verdict in
the Twentieth Judicial District, Lake County, Montana.
Salois was convicted of criminal possession of dangerous
drugs and criminal possession of drug paraphernalia, both
misdemeanors. We affirm.
In June, 1987, Lake County Sheriffs' officers made a
lawful search of the residence of Phillip Shourds. When the
officers entered Shourds' house, they detected the strong
arouma of marijuana smoke. Salois was present in the house,
along with seven or eight other people. The officers allowed
five of these people to leave, including Salois. The
officers then proceeded to search the house.
The officers discovered marijuana or drug paraphernalia
in nearly every room of Shourds' house. In the master
bedroom, 71 hags of marijuana, totaling nearly 275 grams,
were found on the floor between the bed and wall. In the
master bedroom closet, officers found a 423 gram "block" of
marijuana. In the living room, officers found marijuana,
stems, seeds, cigarette butts (roaches), and rolling papers.
In the kitchen, officers found rolling papers, "roach clips,"
and marijuana literature.
Of importance to this appeal are the items discovered
in the house which connected Salois to the contraband. In a
rear bedroom of the house, officers found small amounts of
marijuana on the top of a highboy and more marijuana on the
floor in a plastic bag. Also in that bedroom, officers found
on the window sill a plastic bag containing rolling papers, a
used "pot" pipe, and a check stub bearing Salois' name.
Additionally, officers found in this bedroom seven documents,
(e.q., envel-opes, identification card, check voucher, etc. )
with Salois' name on them. Officers found four such
documents with Salois' name on them in the kitchen, and six
more in the livingroom. Finally, another "pot" pipe was
found inside Salois' car which was parked in front of
Shourds' house.
Salois was arrested June 12, 1987, and charged with
criminal possession of dangerous drugs, a felony, and
criminal possession of drug paraphernalia, a misdemeanor.
Salois pleaded not guilty and trial was held on November 16
and 17, 1987. The jury convicted Salois of misdemeanor
possession of marijuana, not the felony charqe sought bv the
State, and misdemeanor possession of drug paraphernalia.
Salois raises three issues for review:
1. Was it error for the District Court to deny Salois'
motion for directed verdict or dismissal of the felony
possession of dangerous drugs charge?
2. Was there insufficient evidence to support the
convictions since the State failed to scientifically test the
contraband in the rear bedroom?
3. Was there jury misconduct which required the
District Court to declare a mistrial?
Issue No. 1.
Was the failure of the District Court to either grant a
directed verdict or dismiss the felony charge reversible
error because it "effected [sic] the jury's deliberations and
perceptions of the case against Salois?"
It is undisputed that the decision whether to grant a
motion to dismiss or for a directed verdict lies within the
sound discretion of the district judge. That decision will
not be disturbed on appeal unless an abuse of discretion is
shown. Furthermore, we have stated that a directed verdict
should only be granted where there is no evidence upon which
a j u r y could base a verdict. State v. Matson IMont. 1987),
736 P.2d 971, 44 St.Rep. 874; State v. White Water (Mont.
1981), 634 P . 2 d 636, 38 St.Rep. 1664.
We conclude the District Judge did not abuse his
discretion. A genuine factual issue existed whether Salois
possessed a felony amount of marijuana. His personal
belongings were found in most parts of the house, which could
lead one to reasonably believe Salois had constructive
possession of the marijuana in the master bedroom and was
guilty of felony drug possession. Merely because the jury
concluded Salois did not possess a felony amount of marijuana
does not mean - evidence existed upon which a felony
no
conviction could be based. In any case, the argument is
without merit. Salois was found not guilty of the felony
charge. His allegations of some residual. prejudicial effect,
while novel, are purely conclusory and without basis in fact
or law.
Issue No. 2.
Was there insufficient evidence to support the
convictions because the state failed to scientifically test
all of the evidence?
The Lake County Sheriff's office sent to the State
Crime Laboratory, for chemical analysis, some of the evidence
seized in the search. Tested were the large block found in
the closet, the 71 bags containing a leafy substance found
between the bed and the wall in the master bedroom (which
also included the leafy substance found in the Living room)
and the substance which was seized from a van parked in front
of the house at the time of the search.
The sheriff's department did not send the evidence
found in the rear bedroom to the crime lab for scientific
analysis. Because of this, Salois argues the evidence was
insufficient to support the conviction. We disagree.
Although we have previously stated that it is preferable to
have suspected drug substances tested by the state crime lab,
failure to do so does not always render the evidence
insufficient to convict a defendant beyond a reasonable
doubt. State v. Ostwald (1979), 180 Mont. 530, 591 P.2d 646;
State v. Paulson (1975), 167 Mont. 310, 538 P.2d 339.
Detective Bruce Phillips, who executed the search,
testified that he was a sergeant in the detective division
and worked all undercover drug operations in Lake County.
Phillips originally received his law enforcement training in
1969, and has been continually employed as a law enforcement
officer in Lake County since 1980. Phillips testified that
he was trained and experienced in drug investigations and
drug identification. Based on this knowledge and experience,
it was his opinion the evidence found in the plastic bag on
the window sill of the rear bedroom was marijuana and that
the pipe had been used to smoke marijuana. Under examination
at trial, Phillips explained what led him to believe the
substance in the rear bedroom was marijuana.
Direct examination by County Attorney Mr. Stermitz:
Q. Detective Phillips, I'm handing you
what has been previously marked State's
Exhibit 7. What does that items [sic]
appear to you to be?
A. It's a plastic baggy containing what
appears to be marijuana stems, seed, and
a small amount of mariiuana leaf.
Q. Do you know where that item came
fram?
A. Yes.
Q. Where?
A. It was some of the residue and so
forth that I collected out of the bedroom
in the northwest corner o f the Shourds'
residence.
Q. Why did you seize that particular
item?
A. It was apparent to me that it was
contraband and to show that there was
[sicl drugs also in that bedroom.
Q. Did you notice anything about it that
led you to believe that was contraband?
A. The structure and color of the seeds,
the type of stem and so forth, the
consistency and color of the leaves is
[sic] all consi-stent with what 1 know to
be marijuana.
Alice Ammen, a forensic scientist with the M.ontana
State Crime Laboratory also testified. A m e n stated that in
the past she had tested marijuana about 2,000 times, and
continued to analyse marijuana samples weekly at the crime
lab. She also testified that the evidence sent to her by the
Lake County Sheriff's office had been tested positive for
THC, the chemical substance found in marijuana. At trial she
was asked by the county attorney to examine the evidence
found in the rear bedroom.
Direct examination by Mr. Stermitz:
Q. I realize you have not seen these
items [State's Exhibits 1, 7, a.nd 211
before but I wonder from your experience
at the Crime Lab and all the examinations
you've performed, if you could describe
for the jury what any of these items show
to you.
A. Well, in State's Exhibit 21 it
appears that there are some roaches,
which are burnt butt ends of a hand-
rolled cigarette. And there looks like
mariiuana seeds and a small amount of
green, leafy material and stems, which I
would strongly suspect to contain THC.
Cross-examination by defense counsel Mr. Anciaux:
Q. So would you give us your opinion as
to whether you think State's Exhibit 7 is
marijuana or not.
A. I would say, yes, it probably is.
Q. Can you tell us in your opinion if
that [State's Exhibit 81 is marijuana?
A. I would give it a 99 percent chance
of being marijuana.
In reviewing a jury's verdict in a criminal case where
it is alleged the evidence is insufficient to support the
verdict, our task is to determine if the verdict is supported
by substantial evidence. A verdict based on substantial
evidence will not be disturbed on appeal. State v. Price
(Mont. 1988), 762 P.2d 232, 234, 45 St.Rep. 1798, 1800; State
v. Pepperling (1974), 166 Mont. 293, 300, 533 P.2d 283, 287;
State v. Bouldin (1969), 153 Mont. 276, 284, 456 P . 2 d 830,
834-35.
We have previously examined this issue in Ostwald,
supra, where we held there was sufficient credible evidence
the suspected substance was marijuana.
Defendant moved for a directed
verdict of acquittal on that charge on
the grounds that the "valtox kit" test
used to identify the suspected substance
is not specific for marijuana and
therefore not conclusive. He contends
that because the substance was never sent
to the crime lab for positive
identification, the State has not met its
burden of proving beyond a reasonable
doubt that it was in fact marijuana. The
State concedes that the "valtox kit" test
is not specific for marijuana but argues
that when the test results are considered
together with the testimony of the
officer who performed the test, a prima
facia showing was made that the substance
was marijuana. The officer testified
that his identification of the substance
was based not only on the test results,
hut also on the characteristic odor of
marijuana with which he was familiar from
past experience in possession cases.
[ N l umerous cases hold that
marijuana is not difficult to
characterize without chemical analysis
and that testimony of officers who have
had experience searching for and
identifying marijuana is sufficient. Cf.
Cory v. State ( 1 9 7 5 ) , Okl.Cr., 543 P.2d
565; State v. Maupin (1975), 42 Ohio
St.2d 473, 330 N.W.2d 708.
Ostwald, 591 P.2d at 652.
F e find the State has presented sufficient evidence
7
from which the jury could find the substance found in the
rear bedroom was marijuana. Not only did experts identify
the substance as marijuana , but evidence of the contraband,
and associated paraphernalia, was found in nearly every room
in the house. Additionally, officers executing the search
warrant testified that the house smelled of burning
marijuana.
Issue No. 3.
Was there jury misconduct which required the District
Court to declare a mistrial?
Salois claims two jurors were overheard making
statements hefore the case was submitted for the jury's
deliberations which expressed prejudice and require a
mistrial:
One Juror: I'm glad I'm not associated
with those people, that I don't have to
associate with those people.
Second Juror: Well, I guess we're on
the jury.
We have held that the standard of review for
overturning a district court's ruling on a motion for
mistrial requires clear and convincing evidence that the
trial court's ruling was error. State v. Hedrick (Mont.
1987), 745 P.2d 355, 357, 44 St.Rep. 1849, 1851; State IT.
Murray (Mont. 1987), 741 P.2d 759, 762, 44 St.Rep. 1394,
1397; State v. Counts (1984), 209 Mont. 242, 247-48, 679 P.2d
1245, 1248; Schmoyer v. Bourdeau (1966), 148 Mont. 340, 343,
420 P.2d 316, 317-18. Additionally, we held that if jury
misconduct is shown tending to injure the defendant,
prejudice will be rebuttably presumed:
In this state, - -
if jury misconduct
- -.
is shown tendina - iniure the defendant.
to 2
prejudice to defendant is presumed.
However, the presumption is not absolute
and may be rebutted by testimony of the
juror showing facts which prove that
prejudice or injury did not occur.
(Emphasis added; citation omitted.)
Murray, 741 P.2d at 762, citing Counts, 679 P.2d at 1248.
We conclude there was no initial showing of prejudice
against Salois. The District Court had only the bare
statement of Salois that these statements were made. No
juror affidavits were presented to the court to support his
claim. Yet even if the jurors had been overheard making
these comments, it is not evident that the statements were
directed at Salois or his witnesses. The statements, if
made, were brief and do not support the claim that they
injured the defense. The United States Supreme Court in
Turner v. Louisiana (1965), 379 U.S. 466, 85 S.Ct. 546, 13
L.Ed. 2d 424, recognized the distinction between a "brief
encounter" and an "intimate association" as it pertains
either to the relationship amongst jurors or between jurors
and witnesses, and the extent to which prejudice to the
defendant is shown. We accepted this reasoning in State v.
Dickens ( 1 9 8 2 ) , 1 9 8 Mont. 4 8 2 , 4 8 8 , 6 4 7 P.2d 3 3 8 , 3 4 1 - 4 2 .
The comments claimed to have been made here do not reflect on
intimate association; but are merely indicative of a brief
encounter. We conclude that Salois has not presented
evidence sufficient to require a mistrial.
Affirmed.
We concur: