State v. Briner , 49 State Rptr. 402 ( 1992 )

No. 91-091
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DONALD E. BRINER,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard J. Carstensen, Billings, Montana
For Respondent :
Hon. Marc Racicot, Attorney General, Helena, Montana
Elizabeth L. Griffing, Assistant Attorney General
Dennis Paxinos, County Attorney; Terence M. Swift,
Deputy County Attorney, Billings, Montana
Submitted on Briefs: April 3, 1992
Decided: May 5, 1992
Y Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Donald Briner appeals his conviction on two counts of felony
sale of dangerous drugs after a jury trial in the Thirteenth
Judicial District Court, Yellowstone County. We affirm.
The issues are:
1. Did the District Court err in refusing to allow the
defense to inspect Turner's statement to the police at the pretrial
hearing?
2. Did the court err in denying Brinerts request for a
continuance when witness Turner was granted immunity?
3. Were the two packets of methamphetamine improperly
admitted into evidence because there was no proof of chain of
custody?
4. Did the court err in instructing the jury on the mental
states of "knowingly" and "purposely"?
5. Does outrageous government misconduct bar this conviction?
6. Was the methamphetamine here involved properly designated
a Schedule I1 dangerous drug?
In December 1988, Hal Turner, who described himself as having
previously led a "life of crime" and who had been on parole since
1987, offered to become a confidential informant for law enforce-
ment in Yellowstone County, Montana. Turner became an informant
because he "wanted to change [his] life and [he] figured that was
the best way to do it, doing something good finally."
Turner began working as an informant for Yellowstone County
law enforcement in January 1989 and continued through September or
October 1989. He also began working for the federal Drug Enforce-
ment Administration at approximately the same time. The major drug
bust operation in which Turner was involved was dubbed "Operation
Snowball." Approximately seventy drug cases were involved in
Operation Snowball, and Turner was involved in as many as forty to
fifty of them. He was considered an extremely reliable informant.
Prior to working as an informant, Turner made a statement to
the Drug Enforcement Division of Yellowstone County describing his
acquaintances, the people from whom he had purchased drugs, and the
people from whom he could purchase drugs in the future. Donald
Briner was mentioned in this statement.
On July 28, 1989, the police initiated a drug purchase from
Donald Briner. Two Yellowstone County deputy sheriffs met
informant Turner at a parking lot in Billings. They searched
Turner and his car for contraband, put a transmitter on him, and
gave him some silver coins with which to make the purchase.
Turner was instructed to go to a local bar to attempt to make
contact with Briner. He went to the bar but did not find Briner
there. He then left the bar and drove by the deputy sheriffs, who
told him to go to Briner's residence, a trailer located at the Big
Sky Campground.
Turner went to Briner's trailer, knocked on the door, and
entered the trailer. Inside, Briner sold Turner three and one-half
grams of "crank," or methamphetamine. These activities were
monitored by the deputies, who were listening to the transmitter
about 300 yards from the trailer. Turner left the Briner resi-
dence, met the deputies at a prearranged location, and turned over
the methamphetamine. The deputies then searched Turner and his
vehicle again. A field test of the substance Turner purchased from
Briner confirmed that it was methamphetamine. Testing at the State
Crime Lab also showed that the substance was methamphetamine.
On July 31, 1989, a similar transaction took place. Two
deputy sheriffs met Turner, searched him and his car, wired him
with a transmitter, and gave him some silver. While being moni-
tored, Turner went to Briner's trailer and purchased from Briner
about two grams of a substance later identified both in a field
test and by the State Crime Lab as methamphetamine. After leaving
Briner's trailer, Turner went directly to a predesignated location
where he gave the deputies the methamphetamine and where both he
and his car were searched again.
Based upon the above evidence, the jury found Briner guilty of
two counts of sale of dangerous drugs.
I
Did the District Court err in refusing to allow the defense to
inspect Turner's statement to the police at the pretrial hearing?
The District Court held a pretrial hearing to consider a
number of motions then before it. These included defense motions
to dismiss the charges against Briner on grounds of entrapment and
prosecutorial misconduct and to allow the defense access to a
seventy-page statement Turner had given to the police. The
principal ground argued for several of the motions was Turner's
criminal activities during the time he was acting as an informant.
Turner admitted to drug use, theft, trading drugs for sex, and
violations of the terms of his parole, among other crimes, during
the months he was acting as an informant for federal and state
authorities.
The day before he testified at the pretrial hearing, Turner
refreshed his memory by reading the seventy-page statement he had
previously made to authorities. During his testimony he acknowl-
edged that he had so used the statement. The defense requested
that the statement be produced. After eliciting Turner's testimony
that he had never before reviewed or signed the seventy-page
statement, the court denied the motion to produce.
Briner's argument is based on Rule 612, M.R.Evid., which
provides in part:
If a witness uses a writing to refresh memory for the
purpose of testifying, either
(1) while testifying, or
(2) before testifying, if the Court in its discretion
determines it is necessary in the interests of justice,
an adverse party is entitled to have the writing produced
at the hearing, to inspect it, to cross-examine the
witness thereon, and to introduce into evidence those
portions which relate to the testimony of the witness
Briner claims that, in order to properly cross-examine Turner for
purposes of the pretrial motions, he should have been allowed to
examine Turner's seventy-page statement.
At the pretrial hearing, one issue before the court was
whether the defense should be given access to Turner's statement.
It would have been nonsensical to allow the defense access to the
statement at the same hearing at which defense access to the
statement was an issue before the court.
Under Rule 612, M.R.Evid., it is within the discretion of the
district court whether, in the interest of justice, an adverse
party should have access to a statement used by a witness to
refresh memory. Briner has not specified anything in Turner's
statement which would have aided his already extensive cross-
examination of Turner at the pretrial hearing. Also, as a result
of the pretrial hearing, the court granted Briner's motion for
discovery of the seventy-page statement by Turner. After the
hearing, and well before the trial in this matter, the defense was
provided with a copy of the statement.
We hold that the District Court did not err in refusing to
allow Briner's counsel to inspect Turner's statement at the
pretrial hearing.
II
Did the court err in denying Briner's request for a continu-
ance when witness Turner was granted immunity?
On the third day of Briner's trial, the Yellowstone County
Attorney's Office gave Turner a written immunity agreement in
exchange for his testimony at the trial. The United States
Attorney's Office likewise gave Turner a written immunity agree-
ment. The defense asked the court to continue the case to give it
time to prepare for "this new evidence that has just happened and
has just been disclosed and changes completely . . . the thrust of
the whole case." The court denied the motion.
Briner argues that his defense was based primarily on the
cross-examination of Turner as to his credibility, because of the
crimes Turner committed while he was working as an undercover agent
and his claims that he had received no promises of help or immunity
therefor. However, as the State points out, after Turner was
granted immunity from prosecution, Briner's counsel was able to
cross-examine Turner fully on his criminal activities. If
anything, the grant of immunity aided the defense by allowing it to
proceed with a thorough cross-examination of Turner.
Briner also argues that the court prejudiced him by refusing
to grant a continuance to allow his counsel to prepare for cross-
examination of Turner when Turner was granted immunity. The court
did allow a pause in the proceedings so that Briner's counsel could
examine the agreements.
The immunity agreements were entered into evidence and Turner
was cross-examined in general as to their terms. Turner testified
that his attorney, not he, negotiated the specifics of the agree-
ments. Briner does not explain what he would have gained from
added cross-examination of Turner concerning the agreements.
We hold that the District Court did not err in denying
Briner's request for a continuance when Turner was given immunity.
Were the two packets of methamphetamine improperly admitted
into evidence because there was no proof of chain of custody?
Briner contends that there were several fatal gaps in the
chain of custody of the packets of methamphetamine he allegedly
sold to Turner. The State did not offer testimony from the person
who mailed the packets from the sheriff's office to the State Crime
Lab in Missoula, the person who received them at the Crime Lab and
mailed them back to the sheriff's office, or the person at the
sheriff's office who received the packets from the Crime Lab and
returned them to the evidence locker.
Briner cites State v. Carney (1986), 219 Mont. 412, 714 P.2d
532. In Carney, the evidence, a blood sample, was left in the open
at a dispatcher's desk for some twelve hours before it was in
official custody. The District Court exercised its discretionary
authority in ruling that a proper foundation had not been laid for
introduction of the sample into evidence. The correctness of that
ruling was not one of the issues considered on appeal.
In the present case, the time periods in question were after
the methamphetamine was in official custody. The officer who
received the methamphetamine from Turner testified that he marked
and sealed the packets into which he placed it. A forensic
scientist from the Crime Lab testified that she later broke those
seals, tested the methamphetamine, and resealed the packets. At
trial, the packets remained under the seals she had placed on them.
Briner has not shown any evidence to overcome the resulting
presumption that there was no tampering with the methamphetamine.
State v. Armstrong (1980), 189 Mont. 407, 431, 616 P.2d 341, 355.
We hold that the District Court did not abuse its discretion
in admitting the packets of methamphetamine into evidence.
IV
Did the court err in instructing the jury on the mental states
of "knowingly" and "purposely"?
Briner argues that the definitions of "knowingly" and
"purposely" as set forth in Montana statutes and in Jury Instruc-
tion No. 10 do not pass constitutional muster for definitions of
intent sufficient to convict a person of a criminal offense. He
recognizes that this issue has previously been presented to this
Court and that the Court has consistently upheld the constitu-
tionality of the statutory definitions of "kn~wingly'~ Irpurpose-
and
1 . See State v. Sharbono (1977), 175 Mont. 373, 563 P.2d 61;
State v. Beach (1985), 217 Mont. 132, 705 P.2d 94.
Briner states that this issue is raised for purposes of
preservation for possible use in federal court. Inasmuch as no
argument has been made that this Court should overturn its previous
holdings, we affirm the District Court on this issue.
v
Does outrageous government misconduct bar this conviction?
Briner argues that Turner's conduct, including drug use and
other criminal acts during the months he acted as an informant,
should preclude this conviction, which was based in large part upon
Turner's testimony. He asserts that the government's failure to
monitor and control Turner violates a sense of justice. Briner
cites the doctrine of outrageous government conduct as recognized
in various courts.
The doctrine of outrageous government conduct, as its name
suggests, focuses on conduct of the sovernment. See, e q ,United
..
States v. Stenberg (9th Cir. l986), 803 F.2d 422, 429. It is a
"most narrow" defense. United States v. Ryan (9th Cir. 1976), 548
F.2d 782, 789, cert. denied, 429 U.S. 939. The government is not
held accountable for unrelated criminal activity of an informant,
especially when law enforcement was unaware of such activity.
United States v. Simpson (9th Cir. 1987), 813 F.2d 1462, 1470,
cert. denied, 484 U.S. 898, appeal after remand, 927 F.2d 1088.
In this case, there was no evidence that government agents
participated in Turner's criminal activity while he was acting as
an informant. Nor was there any evidence that Yellowstone County
authorities were aware of his illegal activities, other than two
incidents of smoking marijuana which he reported to his probation
officer. It is not claimed on appeal that Briner was entrapped or
that the government engaged in brutality to or coercion of Turner
to convince him to become an informant, or that Turner's illegal
activities were related to his purchases of drugs from Briner while
he was wired and closely monitored by officers. The audio tapes of
those purchases were introduced into evidence.
Turner's illegal activities during the time he acted as an
informant first came to light in December 1989 when he was no
longer working as an informant and when he testified at a federal
drug prosecution. The record does not support any connection
between local law enforcement and Turner's illegal activities.
In no way do we condone Turner's illegal activities while he
was acting as an informant. We hold, however, that this conviction
is not barred under the doctrine of outrageous government conduct.
VI
Was the methamphetamine here involved properly designated a
Schedule I1 dangerous drug?
Briner contends that possession of methamphetamine has been
decriminalized in Montana because, following changes in federal
law, the Board of Pharmacists did not reschedule methamphetamine
under 3 50-32-203, MCA. A similar contention was firmly rejected
by this Court in State v. Meader (1979), 184 Mont. 32, 36-37, 601
While it is true that the schedules were not annually
revised or republished, we cannot accept the argument
that this failure to republish and revise resulted in
decriminalization of marijuana and methamphetamine. ..
[Tlhe Dangerous Drug Act does not indicate that the
legislature intended the Board of Pharmacists to have the
power, by inaction, to decriminalize the possession of
all types of drugs and substances. Rather, we find that
the legislature intended the original five schedules to
be effective until such time as the Board and the
Department took steps to carry out their statutory duties
to revise and republish.
We hold that, under the same reasoning as in Meader, the
absence of a timely revision of the schedules of dangerous drugs
did not negate the status of methamphetamine as a Schedule I1
dangerous drug.
A £ firmed.
W e concur: