State v. Webb ( 1992 )

No. 91-101
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
RICK WEBB,
a/k/a FREDRICK ROD WEBB,
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert S . Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James A. Manley; Manley Law Offices, PolSon,
Montana.
For Respondent:
Hon. Marc Racicot, Attorney General; Carol E.
Schmidt, Assistant Attorney General, Helena,
Montana
Scott B. Spencer, Lincoln County Attorney, Libby,
Montana
Submitted on Briefs: September 5, 1991
Decided: March 19, 1992
/Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
Defendant Frederick Rod Webb appeals the judgment of the
Nineteenth Judicial District, Lincoln County, Montana, convicting
him of criminal sale of dangerous drugs in violation of § 45-9-101,
MCA. This is Webb's second appeal to this Court. We reversed and
remanded the case on appeal from the first trial. State v. Webb
(1990), 243 Mont. 368, 792 P.2d 1097. Again, we reverse and
remand.
The dispositive issues on appeal, as restated by this Court,
are:
1.) Did the District Court err in admitting "other crimes or
acts" evidence?
2.) Did the District Court err in admitting certain
impeachment testimony of a defense witness?
3.) Did the District Court properly instruct the jury?
4.) Did the District Court err in admitting evidence of drug
transactions involving other individuals?
5.) Did the District Court err in admitting opinion testimony
regarding the credibility of an informant?
During the summer of 1988, the Lincoln County Sheriff's
Department conducted a drug investigation in the Libby area using
Mike Hewson as a temporary undercover agent. This case arises from
a drug transaction alleged by Hewson to have occurred on the night
of June 27, 1988, at the home of Vicki LaCoss. The State charged
Webb with selling Hewson methamphetamine (hereinafter, crank) that
evening,
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Hewson and Webb were both at the LaCoss home on June 27, 1988.
Webb, Hewson, and LaCoss all agree that Hewson arrived first and
that Webb and LaCoss played cribbage for awhile after his arrival.
They disagree as to what else happened.
Hewson claims Webb sold him crank, some of which he gave to
LaCoss for her participation in arranging the deal. LaCoss and
Webb contend that Webb did not sell the crank to Hewson, but that
Hewson did give some crank to LaCoss.
The second trial of this action was held October 16, 17, and
18, 1990. The jury found Webb guilty of the offense of criminal
sale of dangerous drugs. The District Court sentenced Webb on
October 22, 1990, and released him on bond. This appeal followed.
I.
Defendant maintains that the District Court erred in admitting
"other crimes or acts" evidence. Hewson testified, on direct
examination, that he passed Webb on his way into the site of an
earlier alleged drug sale and that a person in the house referred
to the drug contact who had just left. Webb argues that this
testimony constitutes "other crimes or acts" evidence for which no
Just notice was given. State v. Just (1979), 184 Mont. 262, 602
P.2d 957.
We have reviewed the record: it does not contain an objection
relating to other crimes or acts evidence under Just. Webb made a
motion in limine on February 14, 1989, which objected to "any
activity allegedly of the Defendant in this matter before June 27,
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1988. The motion objected to an alleged erroneous identification
of Webb as more prejudicial than probative; the motion did not
center on "other crimes or acts." Errors not raised at trial
cannot be raised on appeal for the first time. State v. Phelps
(1985), 215 Mont. 217, 696 P.2d 447; State v. Howie (1987), 228
Mont. 497, 744 P.2d 156.
11.
Defendant also argues that the District Court erred in
admitting certain impeachment testimony of a defense witness.
LaCoss was an important defense witness from whom the State
elicited testimony that she frequented a bar identified as a place
where drug dealers congregated, that she sold drugs to Hewson on
another occasion, that she associated with known drug dealers, that
she was involved in other drug transactions, and that she was an
addict at one time. Webb contends that this evidence violates
Rules 601-613, M.R.Evid., is irrelevant under Rule 402, M.R.Evid.,
and constitutes an improper attack on character or improper
evidence of other crimes or acts under Rule 404, M.R.Evid.
The trial transcript reveals that no objections were made
during the referenced portions of LaCoss' testimony. Therefore,
based upon the authority cited above, we will not address this
second issue.
111.
Defendant next maintains that the District Court improperly
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instructed the jury by refusing two of his proposed instructions:
Instruction #1: A drug addict informants' [sic]
testimony 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.
Instruction #2: The testimony of informants 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.
Webb contends that these instructions are correct statements of law
as set forth in State v. Gommenginger (1990), 242 Mont. 265, 790
P.2d 455, and that one of them should have been given.
The State argues that the court, county attorney and defense
counsel discussed these two instructions and the county attorney's
concern was that the instructions were too narrow to apply to
defense witness LaCoss. On the basis of the discussion, the court
gave the following instructions:
INSTRUCTION NO. 2
...
In determining what the facts are in the case, it
may be necessary for you to determine what weight should
be given to the testimony of each witness. To do this
you should carefully scrutinize all the testimony given,
the circumstances under which each witness has testified,
and every matter in evidence which tends to indicate
whether a witness is worthy of belief. You may consider:
. . .
2. Any relation which each witness may bear to the
State or to the Defendant, and the manner in which each
witness might be affected by the verdict.
INSTRUCTION NO. 3
You have already been instructed that you may
consider the manner in which each witness might be
affected by the verdict. The fact that a witness is a
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paid informant or that a witness is a drug addict are
factors to be considered by you in the context that the
witness might be affected by the verdict.
District courts have broad discretion in formulating jury
instructions. This Court reviews jury instructions as a whole.
State v. Azure (1979), 181 Mont. 47, 591 P.2d 1125. If the
instructions fully and fairly present the applicable law, they will
be deemed to be sufficient. State v. Goodwin (1991), 249 Mont. 1,
813 P.2d 953. The defense cannot insist that every nuance of its
theory of the case be given to the jury via instructions. State v.
Graves (1981), 191 Mont. 81, 622 P.2d 203.
We have reviewed the jury instructions. While they do not
contain all the nuances of defendant's proposed instructions, the
instructions given accurately reflect applicable law and are,
therefore, sufficient. We hold that the District Court properly
instructed the jury.
IV .
Defendant argues that the District Court erred in admitting
evidence of drug transactions involving other individuals and
locations. Hewson testified at some length regarding various other
drug dealers in the Libby area and their possible connections to
Webb. Hewson also testified that Webb frequented certain taverns
which were known to be drug hangouts and that Hewson passed Webb on
his way to another drug deal at which he was told that the drug
contact had just left. Hewson also testified that juveniles were
present at the aforementioned drug sale site. Defense counsel
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objected repeatedly to the relevancy of this line of testimony and
was repeatedly overruled. He was then granted a continuing
relevancy objection to the entire line of inquiry. Webb argues
that this line of testimony was irrelevant to any issue in the case
and prejudicial in allowing the jury to associate him with a drug-
selling ring and to find him guilty by association.
The State argues that the testimony was relevant to
establishing Vicki LaCoss as a drug user who set up drug deals with
drug sellers, to how Hewson met Webb, and to why Hewson was at the
LaCoss home on June 27, 1988, at the same time as Webb. The State
further argues that the probative value of this testimony is far
greater than any prejudice to Defendant, especially in light of the
court's instruction that "mere proximity to a drug, mere presence,
or mere association with the person who does sell the drug is
insufficient alone to support finding of sales." District courts
have broad discretion to determine whether evidence is relevant.
State v. Sadowski (1991), 247 Mont. 6 3 , 805 P.2d 537. Relevancy
determinations by the district court will be overturned by this
Court only where the district court has abused its discretion.
State v. Oman (1985), 218 Mont. 260, 707 P.2d 1117.
Relevant evidence is "evidence having any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence." Rule 401, M.R.Evid. Thus, the focal point
of relevancy determinations is whether the evidence relates to a
fact of consequence to a determination of the case. Evidence of
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matters not pertaining to those at issue is irrelevant and
inadmissible. Rule 402, M.R.Evid.
Webb was charged with ttcriminalsale of dangerous drugs" in
violation of 5 45-9-101, MCA. The facts that are "of consequence"
in the case at bar are whether Webb and Hewson were at the LaCoss
residence in Libby, Montana, on June 27, 1988, and whether Webb
sold Hewson crank at that time and place. Evidence having a
tendency to make the existence of any of these facts more or less
probable is relevant.
Hewson's testimony regarding Webb's associates and their drug
related activities, the presence of juveniles at a drug sale site
not at issue in this action, and places Webb may have spent time on
occasion does not relate to and is not probative of any "fact that
is of consequence" in this case. When a defendant is put on trial
for one offense, he should be convicted, if at all, by evidence
which shows that he is guilty of that offense alone. State v.
Jackson (1979), 180 Mont. 195, 589 P.2d 1009.
We conclude that the testimony objected to was irrelevant and
inadmissible under Rule 402, M.R.Evid. Further, given the
prejudicial nature of the evidence vis-a-vis the explosiveness of
the issue of drugs in today's society, the court's error was not
harmless. Therefore, we hold that the District Court abused its
discretion and committed reversible error in admitting Hewson's
testimony concerning other drug dealers, buyers, and transactions.
V.
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Defendant next maintains that the District Court erred in
admitting opinion testimony regarding the credibility of an
informant. Lincoln County Sheriff's Department Detective Donald H.
Bernall testified on behalf of the State during rebuttal. He was
asked:
Q: Okay. What is your opinion as to Mike
Hewson's truthfulness or what is your opinion
as to his truthfulness when he is discussing
the drug sales that he is undercover on?
A: That he was telling the truth.
Webb objects that this testimony violates numerous evidentiary
rules, including Rule 608(a), M.R.Evid., which reads:
Evidence of character and conduct of witness.
(a) Opinion and reputation evidence of character. The
credibility of a witness may be attacked or supported by
evidence in the form of opinion or reputation, but
subject to these limitations: (1) the evidence may refer
only to character for truthfulness or untruthfulness, and
(2) evidence of truthful character is admissible only
after the character of the witness for truthfulness has
been attacked by opinion or reputation evidence or
otherwise.
It is clear that Rule 608(a) allows opinion evidence in support of
the credibility of a witness only after the witness' character for
truthfulness has been attacked. Thus, the initial question is
whether Hewson's character was attacked by the defense before the
State rehabilitated him with opinion testimony on rebuttal.
Webb asserts that he did not attack Hewson's character for
truthfulness. Webb contends that it was the State which put
Hewson's character into evidence by having him admit, on direct
examination during the State's case-in-chief, that he was a drug
addict and by its cross-examination of Webb himself when it asked
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whether Webb's testimony essentially came down to Mike Hewson
lying, and Webb responded "That is correct."
The State contends that Hewson's character for truthfulness
was attacked on numerous occasions in testimony elicited by the
defense, not in the form of opinion or reputation, but "otherwise"
under Rule 608(a), M.R.Evid. These attacks included testimony by
LaCoss that Hewson had track marks on his arms and was acting in a
bizarre manner on the night of June 27, 1988, and Hewson's
responses on cross-examination regarding his drug of choice and
with whom he dealt when buying drugs. The State argues that any
testimony relating to Hewson's use of drugs constituted an attack
on his character for truthfulness.
A complete review of the record reveals that the defense did
not offer opinion or reputation evidence about Hewson's character
for truthfulness or "otherwise" attack his veracity as part of its
own case. It is true that defense witnesses disputed Hewson's
version of the events of June 27 and offered contradictory
testimony. But other courts have held that neither contradictory
evidence nor extensive cross-examination constitutes an attack upon
a witness' character for truth and veracity. State v. Deach
(Wash.Ct.App. 1985), 699 P.2d 811; United States v. Jackson (5th
Cir. 1979), 588 F.2d 1046, &. denied, 442 U.S. 941 (1979). We
agree: to conclude otherwise would result in admitting opinion
testimony regarding veracity in virtually every case. We are not
prepared to do so. Therefore, we conclude that the defense did not
attack Hewson's character for truthfulness.
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While the defense did not place Hewson's character for
truthfulness in issue, the State did so. Hewson testified
regarding his drug habit on direct examination by the prosecution.
During cross-examination of the defendant, the State asked Webb:
"In essence you are saying that Hewson is lying?" Webb answered:
"That is correct." Having put Hewson's truthfulness at issue
twice, the State then offered opinion testimony that he was
truthful. We recently ruled that the State cannot itself open the
door for opinion testimony regarding the truthfulness of its own
witness. In a child abuse case, an expert witness was permitted to
testify to the credibility of the alleged victim. We stated:
The State, however, had opened the door to this line of
questioning by bringing the matter up on direct. Because
Robby's credibility was not called into question by
defendant, the District Court committed reversible error
by allowing the psychotherapist to comment directly on
his trustworthiness.
State v. Harris (1991), 247 Mont. 405, 410, 808 P.2d 453, 456.
The State also argues that defense counsel asked Hewson
questions about his drug use during a rtslashingrf
cross-examination,
thus enabling the State to present evidence to rehabilitate its
witness. United States v. Lechoco (D.C. Cir. 1976), 542 F.2d 84;
Medical Therapy Sciences, Inc. (2d Cir. 1978), 583 F.2d 36. A
"slashing1' cross-examination includes questioning which carries
strong accusations of misconduct and bad character which a witness'
denial will not remove from the jury's mind. E. Cleary, 3
McCormick on Evidence, 549 (1984). In Medical TheraDv Sciences,
the court admitted rehabilitating character evidence because the
cross-examination of the witness included "sharp" and accusatory
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questioning about prior convictions which were predicated on
activities characterized as fraudulent.
A review of the record in the instant case reflects that
defense counsel asked Hewson three questions involving Hewson's
drug use and drug dealers with whom Hewson dealt. Hewson did not
deny the drug use. The total cross-examination preceding and
prefatory to the specific events of June 27, 1988, covers only one
and one-half pages. The questions were neither sharp nor
accusatory, and do not constitute a slashing cross-examination of
Hewson.
The State contends that Hewson's testimony on direct
examination concerning his drug use did not put his character for
truth at issue but was predicated on the State's right to
anticipate defense impeachment so that a jury would not surmise
that the State was attempting to hide information. Medical Therapv
Sciences, 583 F.2d at 39. The State is correct that it could
anticipate impeachment testimony. But here, the State takes an
approach that can only be characterized as of the "have its cake
and eat it too'' variety: it maintains that its questions regarding
Hewson's drug use did not call his truthfulness into issue while at
the same time contending that evidence regarding drug use elicited
by the defense inherently puts a person's character for
truthfulness at issue.
The State, having opened the door to Hewson's veracity, was
then allowed to put the full weight of Detective Bernall's drug
enforcement experience behind his opinion testimony regarding
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Hewson's credibility. Under the facts of this case and the
strictures of Rule 608(a), M.R.Evid., we hold that the District
Court erred in admitting this opinion testimony.
Reversed and remanded.
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