No. 89-491
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
v.
ROBERT A. SORENSEN,
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David W. Harman, Libby, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena Montana
Scott B. Spencer, Lincoln County Attorney, Libby,
Montana
Submitted on Briefs: March 22, 1990
e
Decided: May 3, 1990
Filed:
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
A jury in the District Court for the Nineteenth Judicial
District, Lincoln County, found Robert A. Sorensen guilty of
multiple counts of criminal possession, possession with intent to
sell, conspiracy to sell, and sale of marijuana. He appeals. We
affirm.
The issues are:
1. Did the District Court err in denying Sorensentspretrial
motions to suppress evidence on grounds of illegal arrest and
search and violation of Sorensents right of privacy?
2. Did the court err in allowing Wayne Wagner to testify?
3. Did the court err in allowing into evidence the photograph
of a person in a marijuana patch?
4. Did the court err in denying Sorensent severance motion?
s
5. Did the court err in denying Sorensentsmotion to dismiss
for insufficient evidence?
6. Was Sorensen denied his right to speedy trial?
7. Was Sorensen denied his right to a fair trial because of
cumulative error?
During the summer of 1988, the Lincoln County Sheriff s Office
received information from a confidential informant that marijuana
was growing in a field in a remote area near Troy, Montana. Upon
investigating, officers found other marijuana patches in the same
area. The marijuana plants were growing in a mixture of peat and
potting soil. The smaller plants were in Grodan brand starter
cubes. Nursery stakes, styrofoam cups, plastic five-gallon
buckets, chicken wire, and "twisty tiestt (used to secure garbage
bags) were found in the fields. All of the marijuana patches were
located on United States Forest Service land, and United States
Forest Service and United States Fish and Wildlife agents joined
in the investigation. Surveillance cameras were set up in several
of the marijuana patches.
Later that summer, an informant told Officer Bernall of the
Lincoln County Sheriff's Office that defendant Sorensen was growing
the marijuana on the Forest Service property and storing it at his
land, and that Sorensen was a ''major dealer1' in marijuana.
Sorensen owned and lived on one of eight twenty-acre parcels in a
subdivision near the marijuana patches. Law enforcement personnel
began watching Sorensenls property. They observed a padlocked
bunker with ventilation vents, several other out-buildings, and two
gardens in which nothing was planted. Photographs from the
surveillance cameras in the marijuana patches showed two people
believed to be tending the marijuana, a man, believed to be
Sorensen, and a woman.
On the afternoon of August 17, 1988, Wayne Wagner was observed
entering Sorensenls house. When he left the house, he carried a
duffel bag which appeared to be full. The same afternoon, Sorensen
discovered one of the officers doing surveillance on his property.
Afterward, other officers doing surveillance saw Sorensen jump onto
his motorcycle, go to where Wagner was camping on nearby Forest
Service land, yell and whistle for Wagner, and engage in an
animated conversation with Wagner. Sorensen and Wagner then
returned to Sorensen's house. The officers immediately initiated
proceedings to obtain a search warrant and, about an hour later,
arrested Sorensen.
When the search warrant arrived, the officers searched
Sorensen's property. Among the items discovered were loaded
weapons and books on growing marijuana. One book described in
detail how to grow wild marijuana without getting caught. The
officers also found plastic five-gallon buckets, 251 styrofoam
cups, 141 Grodan starter cubes, peat, chicken wire, 47 bags of
potting soil, and "twisty ties." A plastic bucket found in one of
Sorensen's vehicles was the same bucket on which, days before, an
officer had scratched his initials in one of the marijuana patches.
The officers also found notebooks which contained what they
believed were coded watering schedules for the marijuana patches.
Wagner's duffel bag was seized from his camp. It contained a
waterproof bag of marijuana.
Also seized from Sorensen's house was a power bill from a home
he owned in Spokane, Washington. The officers felt that the amount
of the bill was suspiciously high. Pursuant to a Washington search
warrant, the home was searched. Grow lights, Grodan starter cubes,
drying racks, many marijuana plants, and packaged marijuana were
found .
The information filed against Sorensen in Montana District
Court included nine counts of felony possession of dangerous drugs
with intent to sell, one count for each of nine marijuana patches.
Sorensen was also charged with one count of sale of a dangerous
drug to Wayne Wagner and one count of conspiring with Wagner to
commit the sale of dangerous drugs. After a five-day jury trial,
Sorensen was convicted of three misdemeanor counts of possession
of marijuana, six counts of felony possession with intent to sell,
and the counts of felony sale and conspiracy. He appeals.
I
Did the District Court err in denying Sorensenls pretrial
motions to suppress evidence on grounds of illegal arrest and
search and violation of Sorensenls right of privacy?
Montana's constitution provides, at Article 11, Section 10,
that I1[t]he right of individual privacy is essential to the well-
being of a free society and shall not be infringed without the
showing of a compelling state interest. Sorensen contends that
this provision protected him from trespass on his property by law
enforcement officers. While the officers have not acknowledged
that they trespassed on his property, Sorensen maintains that they
must have, in order to see his buildings in the detail in which
they were described in the search warrant.
The protection afforded under Montana's constitutional right
of privacy is broader than the right of privacy guaranteed under
the United States Constitution. State v. Sierra (1985), 214 Mont.
472, 692 P.2d 1273. However, it is not boundless. The ''open
fields1'doctrine, providing that the right of privacy in one's home
does not extend to open fields within the view of the public, has
been recognized under Montana's right of privacy. State v. Charvat
(1978), 175 Mont. 267, 269, 573 P.2d 660, 661. Sorensen argues
that because his property is heavily wooded, the open fields
doctrine does not apply. But we hold that Sorensen did not have
a legitimate expectation of privacy which would prevent law
enforcement officers from observing the buildings on his unfenced
twenty acres of land.
Sorensen further contends that he was illegally arrested at
his home at night without a warrant. Section 46-6-401, MCA, sets
forth the circumstances under which a police officer may make an
arrest. Sorensen argues that none of the listed circumstances were
present in this case.
We disagree. Subsection (l)(d) of 3 46-6-401, MCA, provides
that an officer may make an arrest without a warrant if "he
believes on reasonable grounds that the person is committing an
offense or that the person has committed an offense and the
existing circumstances require his immediate arrest." At the time
Sorensen was arrested, officers knew that someone was growing
marijuana on federal land, and they believed that it was Sorensen.
Sorensen was now aware that he was under surveillance, and a
summer-long investigation was in jeopardy. Given the opportunity,
Sorensen would have every reason to destroy evidence on his
property connecting him to the marijuana patches. We conclude that
the exigent circumstances required Sorensenls immediate arrest to
prevent destruction of evidence on his property.
Sorensen also claims that the application for the search
warrant for his property was inadequate because it did not
establish probable cause and contained material falsehoods. The
District Court considered the application for the warrant as though
it did not contain four paragraphs which Sorensen successfully
argued were in error. Even in the absence of those paragraphs, the
court held that the application set forth probable cause for the
issuance of a search warrant.
Without the paragraphs which were in error, the application
alleged that the affiant (Officer Bernall) had been told and shown
by a citizen informant that marijuana was growing in a certain
field in the Troy area. It stated that a confidential, credible,
and reliable informant had told the affiant that Sorensen was
involved in marijuana and grew "acresI1 of it; that nine other
fields of marijuana had been discovered on Forest Service land to
the northeast, west, and south of Sorensenls property; that the
marijuana plants were cultivated and were set in a peat moss and
potting soil mixture; that Forest Service employees had observed
a peat moss bed on Sorensen's property; and that the informant had
said that Sorensen stored marijuana in a bunker on his property and
a bunker had been observed on Sorensenfs property. It also stated
that two years earlier, marijuana fields which had been observed
in the same general area were destroyed and that the parents of two
juveniles reported to police that Sorensen had threatened bodily
injury to the juveniles, who he believed had destroyed the fields.
We hold, as did the District Court, that the application
contained sufficient information to provide probable cause to issue
the search warrant for Sorensenfs property.
I1
Did the court err in allowing Wayne Wagner to testify?
Wayne Wagner was called by the prosecution to testify as an
accomplice and co-conspirator. He testified that he obtained the
marijuana found in his duffel bag from unnamed persons in Bonnerls
Ferry, Montana. The prosecution impeached him with his previous
statement (to one of the officers who arrested him) that he got the
marijuana from Sorensen and that he had established a regular
clientele to whom he sold marijuana. Sorensen argues that the
State should not have been allowed to call Wagner as a witness
because its only purpose in calling him was to impeach his
testimony with his earlier statement implicating Sorensen.
Sorensen cites federal case law holding that where the primary
purpose of calling a witness is to impeach that witness with a
previous statement, the rule against hearsay precludes the
testimony and overrides the right to impeach the witness's
credibility. E.g., United States v. Hogan (5th Cir. 1985), 763
F.2d 697. Those holdings are premised on Rule 607, Fed.R.Evid.
Montana has not adopted that interpretation of the comparable
Montana rule.
Rule 801 (d) (1), M.R. Evid., provides that if a declarant
testifies at trial and is subject to cross-examination on a prior
inconsistent statement, the prior statement is not hearsay. We
conclude that, in this instance, sufficient indicia of reliability
were provided by the defense's right to cross-examine Wagner on the
prior statement and the jury's concomitant opportunity to determine
whether the prior statement or Wagner's testimony at trial was more
worthy of belief. We hold that the District Court did not err in
allowing Wagner's testimony.
Did the court err in allowing into evidence the photograph of
a person in a marijuana patch?
The State introduced into evidence a photograph from a
marijuana-growing magazine seized from Sorensen's house. The photo
showed a man standing in what appeared to be a marijuana patch.
Officer Bernall testified that he believed the person in the photo
was Sorensen. Sorensen contends that the person in the photo did
not look like him and that it was an abuse of the court's discre-
tion to allow the photo into evidence. He contends that the
prejudicial effect of the photo outweighed its probative value.
He also claims that the photo should not have been admitted without
notice of other crimes evidence as required by this Court's opinion
in State v. Just (1979), 184 Mont. 262, 602 P.2d 957.
It is not a crime to stand in what appears to be a marijuana
field. There was no need for Just notice before the photo could
be introduced into evidence. Further, Sorensen took full advan-
tage of his opportunity at trial to argue to the jury that the man
in the picture was not him. And, in relation to all of the
evidence against Sorensen presented at trial, the photo's prejudi-
cial effect is questionable. We conclude that Sorensen has not
shown that the District Court abused its discretion in admitting
the photo into evidence.
IV
Did the court err in denying Sorensenls severance motion?
Sorensen argues that trial of the conspiracy and sale counts
should have been severed from trial on the other counts charged
against him because the evidence on these two counts was so weak.
He claims that the District Court's failure to grant his motion to
sever was an abuse of discretion warranting reversal.
Sorensen makes only a general allegation of prejudice from
"the sheer overwhelming number of counts1'with I1onlycircumstantial
evidence for proof." On the other hand, several reasons support
joinder of trial on all counts. All of the offenses were committed
in the summer of 1988. As the State presented its case, they were
all part of a common scheme to gain financial benefit from the sale
of marijuana. Proof and witnesses overlapped on the charges. We
conclude that the charges brought against Sorensen in this action
were, in the words of 5 46-11-404, MCA, I1connected together in
their cornmi~sion.~~
Sorensen has not made a sufficient showing that
he was prejudiced by the joinder to warrant overruling the District
Court's discretion in denying the motion to sever.
v
Did the court err in denying Sorensen's motion to dismiss for
insufficient evidence?
At the conclusion of the State's case, Sorensen moved to
dismiss the possession counts against him on the grounds of
insufficient evidence. The District Court denied the motion.
Sorensen argued, and again argues here, that the State did not
adequately tie him personally to the marijuana fields.
The District Court's standard of review on the motion to
dismiss, like our standard of review on appeal, was whether any
rational trier of fact could have convicted Sorensen of the
offenses with which he was charged. See State v. Rodriguez (Mont.
1981), 628 P.2d 280, 283, 38 St.Rep. 578F, 5781.
The evidence tying Sorensen personally to the marijuana
patches included: pictures of a person believed to be Sorensen on
an ATV (all-terrain vehicle) near the marijuana fields and
Sorensen's similar ATV, found in the search of his property; the
proximity of the marijuana patches to Sorensen's property; the
bucket with the officer's initials scratched on its bottom, found
in Sorensen's vehicle; the books on growing wild marijuana; the
drying racks, peat, potting soil, plastic buckets, and other
gardening supplies found in Sorensen's house; and the notebooks
containing what appeared to be watering codes. We hold that there
was sufficient evidence that a rational trier of fact could have
found Sorensen guilty of the charges in Counts I through IX.
Sorensen also argues that Wagner's testimony alone is
insufficient to convict him on the sale and conspiracy counts.
However, Wagner's testimony was not the only evidence relating to
those charges. Other evidence presented by the State as to the
counts of sale of marijuana and conspiracy to sell marijuana
included the following: the marijuana from Wagner's duffel bag and
the officers1 testimony about when it got there; the sheer amount
of both the marijuana crop and the gardening equipment on Soren-
sen's property; the evidence from Sorensen's Spokane house,
including marijuana packaged for sale; weapons and ammunition which
linked Sorensenls Spokane house with his house outside Troy; and
the contrast between Sorensenlssmall claimed income and his large
apparent expenditures. We conclude that based on the evidence
presented at trial a rational trier of fact could have found
Sorensen guilty of the charges of sale and conspiracy to sell
marijuana.
VI
Was Sorensen denied his right to speedy trial?
Four factors are considered in evaluating a claim of denial
of the right to speedy trial: the length of the delay, the reason
for the delay, the defendant's assertion of the right to speedy
trial, and prejudice to the defendant resulting from the delay.
State v. Curtis (Mont. 1990), 787 P.2d 306, 313, 47 St.Rep. 277,
283. The first factor, length of the delay, serves as a trigger
to a speedy trial inquiry. Curtis, 787 P.2d at 313.
A period of 250 days elapsed between Sorensen's arrest and his
trial. That period is sufficient to trigger a speedy trial
inquiry. State v. Waters (1987), 228 Mont. 490, 493, 743 P.2d 617,
619.
Sorensen claims that the entire 250-day delay is attributable
to the State and that he was denied his right to speedy trial by
this delay. A chronology of relevant events includes:
August 17, 1988 - Sorensen arrested
August 30, 1988 - Sorensen released on bail
September 15, 1988 - Information filed
September 22, 1988 - Sorensen moved for a substitution
of district judge
October 6, 1988 - Judge Wheelis assumed jurisdiction
November 14, 1988 - Arraignment; Sorensen filed motions
to sever and to suppress evidence
November 21, 1988 - Judge Wheelis recused himself
November 30, 1988 - Judge Harkin assumed jurisdiction
March 23, 1989 - Trial set for April 26, 1989
April 7, 1989 - Pretrial motions heard; Sorensen's
motions to suppress were denied
April 14, 1989 - Sorensen moved to dismiss for lack
of speedy trial
April 24, 1989 - Speedy trial motion denied
April 26, 1989 - Trial commenced
Sorensen argues that he was forced to move for a substitution of
district judge because Judge Keller, who was originally assigned
the case, was the judge who had authorized the search warrant for
Sorensenls house. Sorensen did not want the judge who had
originally determined that there was probable cause for the search
to preside at the suppression hearing on the same issue.
Any delay caused by the defendant's assertion of procedural
rights will not weigh against the State. State v. Kelly (1983),
203 Mont. 159, 160-61, 661 P.2d 26, 27. Sorensenls motion for
substitution of district judge was an assertion of a procedural
right, and there is no indication that the State purposely I1forced"
this occurrence. We hold that the time between September 22, 1988,
and October 6, 1988, is not chargeable to the State. The time
during which Sorensen's motions to suppress were pending, from
November 14, 1988, to April 7, 1989, is not totally chargeable to
either party. Some of that delay resulted from Judge Wheelis
recusing himself and some resulted from the heavy caseload of the
deputy county attorney, as stated in his affidavit before the
District Court. That leaves only sixty-six days. That time
includes institutional delays inherent in calendaring the case and
as a result of Judge Wheelis's retirement.
Sorensen asserted his right to speedy trial in a timely manner
by moving to dismiss for lack of speedy trial on April 14, 1989.
That motion was denied. As to the prejudice caused by the delay,
this Court looks to three interests: preventing oppressive pre-
trial incarceration, minimizing the defendant's anxiety and
concern, and limiting the impairment of the defense. Curtis, 787
P.2d at 315. Because Sorensen was out on bail, the first interest
has no weight. He has not shown anxiety and concern greater than
that inherent in being accused of a crime. He has not shown
prejudice to the defense of his case resulting from the delay. He
does argues that he was deprived of his livelihood from his coin
shop during the delay because his inventory of coins was seized in
the search of his house.
To summarize, while the total delay in this case was long
enough to trigger a speedy trial inquiry, the portion of the delay
attributable to the State can largely be explained as time
institutionally necessary in scheduling a trial. While Sorensen
raised his right to speedy trial in a timely manner, he has not
demonstrated significant prejudice fromthe delay. After consider-
ing the four speedy trial factors collectively, we hold that the
State did not violate Sorensenls right to a speedy trial.
VII
Was Sorensen denied his right to a fair trial because of
cumulative error?
Sorensen argues that he was denied his right to a fair trial
because of the cumulative effect of improperly admitted evidence
of prior acts without notice to the defense, the improper use of
Wagner's testimony, the introduction of irrelevant exhibits, and
the court's failure to sever the conspiracy and sale counts.
We have discussed most of these issues individually and have
concluded that Sorensen has not shown error. Application of the
doctrine of cumulative error requires a finding of prejudicial
error affecting the substantial rights of the defendant. State v.
Close (Mont. 1981), 623 P.2d 940, 948, 38 St.Rep. 177, 187-88. We
h o l d t h a t Sorensen h a s shown no p r e j u d i c i a l e r r o r which d e p r i v e d
him of h i s r i g h t t o a f a i r t r i a l .
Affirmed.
We c o n c u r :
f Chief J u s t i c e
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