No. 89-332
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DAVID STEVEN FARNSWORTH,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas McKittrick, Judge presidinq.
COUNSEL OF RECORD:
For Appellant:
John Keith, Great Falls, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Elizabeth S. Baker, Asst. Atty. General, Helena
Patrick L. Paul, County Attorney; Steve Hudspeth, Deputy,
Great Falls, Montana
Submitted on Briefs: Nov. 21, 1989
Decided: December 2 0 , 1989
Filed:
Justice John Conway Harrison delivered the Opinion of the
Court.
Appellant appeals his conviction in the Eighth Judicial
District, Cascade County, Montana, of one count of criminal
sale of dangerous drugs and two counts of criminal possession
of dangerous drugs. The District Court sentenced appellant
to twenty years for the criminal sale conviction and six
months each on the criminal possession convictions which were
to be served concurrently with the criminal sale sentence.
The District Court also sentenced appellant to an additional
five years as a persistent felony offender to be served
consecutively with the other sentences. We affirm.
Appellant raises the following issues for review:
1. Did the District Court properly instruct the jury
as to the defense of entrapment?
2. Were appellant's substantial rights violated when
he did not receive a preliminary hearing because he was
charged by an information?
Was appellant denied his right to counsel because
3.
counsel was not appointed until after the information was
filed?
4. Did the District Court err in denyinq appellant's
motion to hire an investigator?
5. Did the District Court improperly deny appel.lantls
challenge to the statute designating marijuana as a dangerous
drug?
6. Did the District Court err when it sentenced
appellant as a persistent felony offender?
On October 17, 1988, Great Fal-ls police officers
testified that the Great Falls Police Department received a
tip from an individual identifyinq himself as Ray Armstreet
regarding illegal drug activity in his apartment building.
Two detectives met with Armstreet who informed them that a
tenant in his apartment building had asked him to find people
interested in buying marijuana. After questioning Mr.
Armstreet regarding his information, the detectives decided
to attempt a "buy-bust" marijuana purchase with one of the
detectives posing as the buyer.
As soon as the "buy-bust" operation was in place, the
undercover detective directed Mr. Armstreet to enter the
apartment building and advise the target individual that he
had an interested buyer waiting in a car outside. A short
time later the defendant came out and sold the detective $40
worth of marijuana and gave the detective an additional four
"joints." After completing the deal, the appellant left the
car and walked back toward the apartment building where he
was arrested by other officers. The officers searched
appellant and found marijuana on his person. After obtaining
a search warrant for appellant's room, the officers also
found marijuana in his room.
On October 18, 1988, appellant had his initial
appearance before a justice of the peace who set bail and set
a date for a preliminary hearing. However, on October 26,
1988, the county attorney was granted leave to file an
information charging appellant with one count of sale of
dangerous drugs and two counts of possession of dangerous
drugs. Counsel was appointed for appellant on October 31,
1988. Appellant was arraigned on November 7, 1988.
At trial appellant raised the defense of entrapment.
He testified that Armstreet, who appellant knew as "Gary,"
initially sold him the marijuana and then induced him to sell
the marijuana to the undercover officer. Appell ant alleged
that Armstreet was an aaent of the police.
Did the District Court properly instruct the jury as to
the defense of entrapment?
The District Court gave the following instruction
regarding entrapment:
The elements of the defense of
entrapment: (1) Criminal intent or design
originating in the mind of the police
officer or informer; (2) absence of
criminal intent or design oriqinating in
the mind of the accused; and (3) luring
or inducing the accused into committing a
crime he had no intention of committing.
Appellant contends that this instruction is error because it
is unnecessarily complex and misleading and not required b y
Montana's Entrapment Statute, S 45-2-213, MCA. Appellant
also argues that a due process instruction based on
outrageous government conduct should have been given. We
reject both appellant's contentions.
The instruction at issue, while not a model, expresses
the law adopted by this Court and approved in numerous cases.
See, State v. Kamrud (1980), 188 Mont. LOO, 105, 611 P.2d
188, 191; State v. Kelly (19831, 205 Mont. 417, 441, 668 P.2d
1032, 1045; State v. Canon (1984), 212 Mont. 157, 167, 687
P.2d 705, 710; and State v. Walker (1987), 225 Mont. 415,
422, 733 P.2d 352, 357. Appellant provides absolutely no
rationale for his contention that the instruction is
unnecessarily complex and misleading to the jury. Further,
although appellant argues that a due process instruction
should have been given, appellant did not submit such an
instruction for consideration by the District Court. Section
46-16-401 (4)(a), MCA, provides that:
When the evidence is concluded, if either
party desires special instruction to be
given to the jury, such instructions
shall be reduced to writing, numbered,
signed by the party or his attorney, and
delivered to the court.
"We have held this statutory language to be mandatory.
(Citation omitted.)" Walker, 733 P.2d at 357. Because
appellant failed to offer a proposed due process instruction
he has waived this claim. We hold that the District Court
properly instructed the jury regardinq the entrapment
defense.
Were appellant's substantial rights violated when he
did not receive a preliminary hearing because he was charged
by an information?
Appellant contends that his substantial rights were
violated because he was neither given a preliminary hearing
nor any opportunity to challenge the State's assertion of
probable cause. These contentions lack any credibility
whatsoever.
Section 46-7-103, MCA, requires that a preliminary
hearing be held within a reasonahle time following the
initial appearance unless the district court grants leave to
file an information. Before a district court can grant leave
to file an information, it must have independently determined
that probable cause exists to believe the defendant committed
an offense. Section 46-11-201, MCA. The defendant has no
vested right to a preliminary hearing but rather has a right
to an independent judicial finding of probable cause. State
v. Higley (1980), 190 Mont. 412, 419, 621 P.2d 1043, 1048,
citinq Gerstein v. Pugh ( 1 9 7 5 1 , 420 U.S. 103, 95 S.Ct. 854,
43 L.Ed.2d 54.
In the instant case, although the justice of the peace
scheduled a preliminary hearing, the District Court upon a
finding of probable cause, granted leave to file an
information prior to the preliminary hearing. The appellant
received an independent judicial determination of probable
cause within a reasonable time. See, Higley, 621 P.2d at
1048 (ten-day delay in determining probable cause not
unreasonable) .
The apparent reason that appellant remained in jail
until his arraignment was his inability to post the bail that
was set at his initial hearing. The record does not reflect
that appellant ever challenged the amount of bail. Nor does
the record reflect that appellant ever moved the District
Court to dismiss the information for lack of probable cause.
We hold that appellant was not entitled to a preliminary
hearing.
Was appel-lant denied his right to counsel because
counsel was not appointed until after the information was
filed?
Appellant's contention that his right to counsel was
violated because counsel was not appointed until after the
information was filed is untenable. Montana law is well
settled that a defendant is not entitled to the assistance of
counsel at the initial appearance because "[tlhe initial
appearance is not a 'critical stage1 of the prosecution in
Montana." State v. Dieziger (1982), 200 Mont. 267, 270, 650
P.2d 800, 802. Contrary to appellant's assertion, the United
States Supreme Court in Coleman v. Alabama (1970), 399 U.S.
1, 90 S.Ct. 1999, 26 L.Ed.2d 387, did not designate the
setting of bail as a critical stage thus entitling the
defendant to assistance of counsel. Coleman held that a
preliminary hearing was a critical stage because a defendant
could be substantially prejudiced without counsel. Coleman,
399 U.S. at 9-10. Further, appellant has not argued to this
Court how his failure to obtain counsel before he did
prejudiced him. We hold that appellant's right to counsel
was not violated by counsel not being appointed until after
the information was filed.
IV.
Did the District Court err in denying appellant's
motion to hire an investigator?
Appellant provides this Court with no argument on this
issue beyond the bare assertion that the District Court's
ruling placed appellant at a "potential disadvantage. " We
reject appellant's contention.
Did the District Court err in denying appellant's
challenge to the statute designating mariiuana as a dangerous
drug?
Sections 45-9-101, 50-32-101 and 50-32-222, MCA, are
the statutes wherein the legislature has declared marijuana a
dangerous drug and designated as a crime the sale of
dangerous drugs. Essentially appellant argues that at trial
the State should have had to prove that marijuana is a
dangerous drug and that it is a hallucinogenic substance. We
specifically rejected this contention in State v. Petko
(1978), 177 Mont. 229, 581 P.2d 425, where we stated:
Marijuana is grouped with hallucinogenic
drugs, hut this does not call for the
trier of fact to make a specific finding
as to its hallucinogenic capabilities.
The legislature has made that
determination.
Petko, 581 P.2d at 430. The State is only required to prove
that the substance appellant sold was marijuana which it did.
We reject appell-ant contentions.
's
Did the District Court err when it sentenced appellant
as a persistent felony offender?
Appellant contends that the District Court improperly
sentenced him to an additional five years as a persistent
felony offender. Appellant argues that the persistent
offender statute constitutes double jeopardy. Further
appellant asserts that the District Court's decision that he
was a persistent felony offender was based on evidence
improperly before the District Court. We disagree.
This Court has soundly rejected the double jeopardy
argument appellant raises to the persistent offender statute.
See, State v. Maldenado (1978), 176 Mont. 322, 328-329, 578
P.2d 296, 300. Appellant provides this Court with no
authority to the contrary. The persistent felony statute
which authorizes enhanced sentences for recidivists does not
constitute double jeopardy.
Similarly, appellant's evidentiary objections are
without merit. The Montana Rules of Evidence do not apply to
sentencing proceedings. Rule 101 (c)(3), M.R.Evid. The
persistent felony offender determination is part of the
sentencing proceeding. State v. Smith (Mont. 1988), 755 P.2d
569, 571-72, 45 St.Rep. 955, 958; State v. LaMere (1983), 202
Mont. 313, 321, 658 P.2d 376, 380. The District Court relied
on competent evidence, certified copies of court documents
from Utah and expert testimony regarding appellant's
fingerprints, to establish the requirements of the persistent
felony offender statute.
Further, contrary to appellant's claim the State is not
required to prove that the prior conviction offered for
purposes of the persistent felony offender determination is
constitutionally valid. See State v. Campbell (1985), 219
Mont. 194, 711 P.2d 1357, cert. denied, 475 U.S. 1127 (1986).
Of course, a constitutionally infirm conviction cannot be
used to support a determination of a persistent felony
offender. Lewis v. State (1969), 153 Mont. 460, 457 P.2d
765. Contrary to the facts in Lewis, upon which appellant
relies, in the instant case the appellant has not challenged
the constitutional validity of the prior conviction in Utah.
We hold that the District Court properly sentenced appellant
as a persistent felony offender.
Affirmed.
*yhv
Ju tice
We concur:
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