Opinion

State v. Gommenginger

242 Mont. 265
790 P.2d 455
1990 Mont. LEXIS 107

Court: Montana Supreme Court
Filed: Mar 29, 1990
Status: Published
Author: McDONOUGH
On the bench: McDonough, Turnage, Harrison, Sheehy, Hunt, Barz, Weber
Cited by: 37 cases
Authority: More cited than 93.2%

noting that extrinsic evidence of bias/motive to testify falsely was pertinent to a witness’s credibility for truthfulness but not subject to the extrinsic evidence bar of Rule 608 because offered as impeachment evidence directly probative of guilt rather than as propensity 23 evidence regarding witness’s character for untruthfulness

How later courts described this case

noting that extrinsic evidence of bias/motive to testify falsely was pertinent to a witness’s credibility for truthfulness but not subject to the extrinsic evidence bar of Rule 608 because offered as impeachment evidence directly probative of guilt rather than as propensity 23 evidence regarding witness’s character for untruthfulness
“not all substantive evidence is of equal probative value”

Written by the judges who cited it.

The opinion

No. 89-400

IN THE SUPREME COURT OF THE STATE OF MONTANA

1990

STATE OF MONTANA,

Plaintiff and Respondent,

-vs-

DAVID GREGORY GOMMENGINGER,

Defendant and Appellant.

APPEAL FROM: District Court of the Nineteenth Judicial District,

In and for the County of Lincoln,

The Honorable Robert Keller, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Stephen J. Nardi; Sherlock & Nardi, Kalispell,

Montana

' -

C'.J . For Respondent:

- I Hon. Marc Racicot, Attorney General, Helena, Montana

Patricia Schaeffer, Asst. Atty. General, Helena

I- I J Scott B. Spencer, County Attorney, Libby, Montana

; 2

--J

-I f - l

C-,

.. .

r- ., < - Submitted on Briefs: Jan. 25, 1990

1 i

. .-

( I

* .. :--Decided: Mar. 29, 1990

Filed:

Clerk

Justice R. C. McDonough delivered the Opinion of the Court.

Defendant David G. Gomrnenginger appeals the judgment of

the Nineteenth Judicial District, Lincoln County, Montana,

convicting him of three counts of criminal sale of dangerous

drugs in violation of § 45-9-101, MCA. We reverse and remand

the case for a new trial.

The Defendant raises the following issues on appeal:

(1) Did the District Court err in admitting evidence

allegedly regarding the Defendant's character in the State's

case-in-chief?

(2) Did the District Court err in limiting the scope of

the cross-examination of the State's chief witness?

(3) Was there sufficient evidence to support the con-

victions of criminal sale of dangerous drugs on Counts I11

and IV?

During the summer of 1988, the Lincoln County Sheriff's

Department conducted an undercover drug investigation of

various persons in the area around Libby, Montana. Detective

Don Bernall hired an undercover agent, Mike Hewson (the

informant), to facilitate the investigation. The informant

worked from June 7 to August 28, 1988 under the supervision

of Bernall and Officer Clint Gassett. Officer Bernall testi-

fied that the informant's salary was not contingent upon

obtaining arrests and convictions; he was paid a flat rate

for his services and was provided with expense money, in-

cluding money to buy drugs.

In the State's case-in-chief, Rernall testified that

the informant was given a list of potential people to infil-

trate that were drug dealers in the community and that the

Defendant's name was on that list. The informant also testi-

fied in the State's case-in-chief that he WLS supplied with a

list of potential drug dealers, which included the Defendant.

The informant then began his investigation by circulating in

the bars. He first dealt with a man named Baldwin who then

referred him to a woman named Mandy Curtiss as a source for

narcotics. Curtiss allegedly became the go between in a

series of deals where the informant allegedly bought marijua-

na, "crank," and cocaine from the Defendant and other persons

under investigation.

As a result of the investigation, an information was

filed in the District Court on September 15, 1988 charging

the Defendant with the following offenses: (1) count I,

criminal sale of dangerous druqs, a felony, on July 9, 1988;

(2) count 11, criminal sale of dangerous drugs, a felony, or

in the alternative, conspiracy to commit or accountability

for the criminal sale of dangerous drugs, a felony, on July

10, 1988; ( 3 ) count 111, criminal sale of dangerous drugs, a

felony, on July 16, 1988; (4) count IV, criminal sale of

dangerous drugs, a felony, or in the alternative,

accountability for the criminal sale of dangerous drugs, a

felony, on August 3, 1988, all alleged to have been committed

in Lincoln County, Montana.

One of Defendant's theories in defense of the charges

was that the informant was a drug dependent individual who

was double dealing with the Lincoln County Sheriff's Depart-

ment. Defendant alleges that the informant had his own

extensive drug habit that he was supporting while employed by

the Sheriff's Department and that he supplied drugs to the

Sheriff's office and alleged that they were from the Defen-

dant, whereas in reality he was supplying the drugs himself.

This enabled the informant to sustain his habit and avoid the

risk of criminal prosecution.

The State offered testimony tending to establish the

necessity of narcotic use by an informant in such clandestine

operations as means of maintaining an effective cover. In

his testimony, the informant stated that he used drugs as

part of his cover. In a pretrial statement, Officer Rernall

also stated that the informant showed signs of drug depen-

dence, and that he "used a druqger to catch a drugger. " On

one occasion, the informant's testimony indicates that he

supplied and used cocaine with Curtiss, for the alleged

purpose of maintaining his cover. On this occasion, the

informant took out two hypodermic needles, allegedly in his

possession as part of his cover, and directly injected

cocaine intravenously with Curtiss.

Rased on such evidence, the Defendant sought to prove

that the informant's need for drugs to support his habit was

the motivation to use his cover as a law enforcement agent to

sell and use drugs and still portray himself as an effective

informant. The Defendant also sought to introduce evidence

of the informant's drug use in the investigations of other

suspects in the Libby area and his drug use prior to being

employed as an agent. However, the State's motion in limine

to exclude evidence of the informant's involvement with drugs

and drug dependency was granted as to any instances beyond

the scope of the res gestae of the charges against this par-

ticular defendant.

At trial the jury found the Defendant guilty of criminal

sale of dangerous drugs on counts I, 111, and IV of the

information and not guilty on count 11. His wife later plead

guilty to the criminal sale of dangerous drugs that occurred

under count IV. Defendant maintains that her testimony

absolves the Defendant of any responsibility for that trans-

action. Defendant has no prior felony convictions or

criminal record except for traffic violations. The Defendant

was sentenced to 13 years imprisonment in the Montana State

Prison and fined $2500.00. His subsequent motion for new

trial was denied, and he now appeals the denial of that

motion and the sufficiency of the evidence as to counts III

and IV, raising the issues enumerated earlier.

Defendant maintains that the trial court erred in admit-

ting evidence of the Defendant's bad character during the

State's case-in-chief. On direct examination Officer

Bernall testified that the informant was provided with a list

of "known" drug dealers in the Libby community to infiltrate

and that the Defendant was on that list. On redirect exami-

nation Bernall further testified:

(by Mr. Spencer): Partly, what are you also

relying on?

(by Officer Bernall) : My personal knowledge.

Of what?

Mr. Gommenginger.

And where did you get that personal knowledge

from?

From confidential informants and other

officers.

And what is the information?

- - - he is a cocaine dealer.

That -

The trial court ruled, and the State maintains, that defense

counsel opened up the door for the admission of this testimo-

ny with the following statement made during opening:

To begin with, we have an informant who is

initially before he begins working told by the

detective here, Mr. Bernall, that Greg is someone

in whom they are interested in getting a conviction

for a drug sale.

So the informant immediately has incentive to

pursue my client. ...

We disagree. Rule 405(a), M.R.Evid. provides that proof

of the Defendant's character may be made by testimony as to

reputation or in the form of an opinion. Thus, not only is

Officer Rernall's testimony hearsay, it contains elements of

both opinion and reputation evidence of the Defendant's bad

character as relating to his disposition to commit the crime

with which he was charged. - State v. Alberts (1969), 80

See

N.M. 472, 457 P.2d 991, 993; State v. Ramirez Enriquez

(1987), 153 Ariz. 433, 737 P.2d 407, 408. Rule 404(a) ( I ) ,

M.R.Evid., only allows the prosecution to introduce such

evidence of an accused's bad character as proof that he acted

in conformity therewith to rebut defense evidence of the

accused's good character offered to prove the same. Here,

defense counsel's opening statement merely stated that law

enforcement told the informant that they were interested in

getting a conviction against the Defendant for a drug sale.

The opening statement did not even deny that the Defendant

was a drug dealer. This statement did not put the Defen-

dant's good character or reputation in the community into

issue so as to open the door to allow the State to present

character evidence in its case-in-chief. -- State v.

See e.g.

Atlas (1986), 224 Mont. 92, 728 P.2d 421 (allowing the State

to introduce videotaped evidence in its case-in-chief of

Defendant's former lover to refute Defendant's opening state-

ment that portrayed him as a loving husband devastated by the

death of his wife.)

The testimony of Officer Bernall amounted to evidence of

the Defendant's bad character as a drug dealer that would

invite the jury to infer the Defendant's guilt based on his

alleged reputation as a drug dealer in the Libby community.

The Defendant did not put his character into issue, and

admission of such evidence constitutes reversible error. -

See

Michelson v. United States (1948), 335 U.S. 469, 69 Sect.

The Defendant also argues that the District Court erred

in granting the State's motion in limine restricting the

cross-examination of the State's chief witness concerning the

informant's drug use to the res gestae of the crimes charged.

The Defendant argues that this effectively denied him his

fundamental right of confrontation guaranteed by the Sixth

Amendment of the United States Constitution.

The State contends that cross-examination was properly

limited pursuant to their motion in limine and Rule 608,

M.R.Evid. The Rule, which is nearly identical to its federal

counterpart, provides in pertinent part:

Rule 608. Evidence of character and conduct of

witness.

...

(b) Specific instances of conduct. Specific

instances of the conduct of a witness, for the

purpose of attacking or supporting his credibility,

may not be proved by extrinsic evidence. They may,

however, in the discretion of the court, if proba-

tive of truthfulness or untruthfulness, be inquired

into on cross-examination of the witness (1) con-

cerning his character for truthfulness or untruth-

fulness. . ..

Rule 608, M.R.Evid. Under Rule 608, reference to specific

instances of conduct for the purpose of proving a witness's

character for truthfulness or untruthfulness is never permit-

ted on direct examination of another witness. State v.

McLean (1978) 179 Mont. 178, 185, 587 P.2d 20, 25. Specific

instances of conduct may, however, be introduced through

cross-examination if the trial court in its discretion deter-

mines that the evidence is probative of the witness's credi-

bility. Rule 608, M.R.Evid., McLean, supra.

Rule 608 (b) is intended to regulate only the use of

specific instances of conduct offered to prove that the

witness is generally an untruthful person unworthy of belief.

On the other hand, bias or motive of a witness to testify

falsely is not a collateral issue because it bears directly

on the issue of the defendant's guilt; thus, extrinsic evi-

dence is admissible to prove that the witness has a motive to

testify falsely. United States v. James (2d Cir. 1979), 609

F.2d 36, 46; Johnson v. Brewer (8th Cir. 1975), 521 F.2d 556;

United States v. Kinnard (D.C.Cir. 1972), 465 ~ . 2 d 566,

573-574; IJnited States v. Barrett (D.Me. 19841, 598 F.Supp.

469, 475, aff'd (1st Cir. 1985), 766 F.2d 609, 615. See,

also, e.g.

- - State v. Dougherty (1924), 71 Mont. 265, 229 P.

735; State v. Carns (1959), 136 Mont. 126, 345 P.2d 735-

Furthermore, an accused's right to demonstrate the bias

or motive of prosecution witnesses is guaranteed by the Sixth

Amendment right to confront witnesses. Alford 77. United

States (1931), 282 U.S. 687, 75 L.Ed. 624, 51 S.Ct. 218;

Greene v. McElroy, (1959), 360 U.S. 474, 79 S.Ct. 1400, 3

L.Ed.2d 1377; Davis v. Alaska (1974), 415 U.S. 308, 94

S.Ct. 1105, 39 L.Ed.2d 347. In -

Alford, the Supreme Court

held that it was an abuse of discretion and prejudicial error

to "cut off - limine all inquiry on a subject with respect

to which the defense was entitled to a reasonable cross

examination." 282 U.S. at 694, 51 S.Ct. at 220, 75 L.Ed. at

629. In Davis, the trial court improperly restricted the

Defendant's attempt to demonstrate bias or motive of the

State's witness through cross-examination:

. . . [wlhile counsel was permitted to ask Green

whether he was biased, counsel was unable to make a

record from which to argue why Green might have

been biased or otherwise lacked that degree of

impartiality expected of a witness at trial. On

the basis of the limited cross-examination that was

permitted, the jury might well have thought that

defense counsel was engaged in a speculative and

baseless line of attack on the credibility of an

apparently blameless witness. ...

94 S.Ct. at 1111. Here, limitation of cross-examination

could also result in the jury viewing the credibility of the

informant in a vacuum.

Courts have long recognized that the testimony of infor-

mants 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." Fletcher v.

United States (D.C.Cir. 1946), 158 F.2d 321, 322. Such

scrutiny is particularly important in narcotics cases involv-

ing informant's that are habitual drug users:

Law enforcement officials are open about their use

of informants, but there is less discussion about

why their informer's perform.

...

. . .the addict is only valuable if he pro-

duces fruitful tips or arranges sales which lead to

prosecutions. The addict-turned-informer may

therefore be desperate not only to produce results

for the police, hut also to avoid retribution from

powerful figures in the drug trade. This despera-

tion may well lead him to lie, and increases the

danger that he will misrepresent the involvement of

those whom he fingers.

...

. . . The Government's use of infiltrator's

and informants to combat the drug trade may well be

a necessity, and it is not unconstitutional - -

per se.

It has been established that their testimony may he

used to obtain convictions, even if it is

uncorroborated. But when they do testify at trial,

the court must exercise special care to protect the

defendant's right to the "established safeguards of

the AngloArnerican legal systemn-- cross-examination

and proper instructions to the jury.

Kinnard, 465 F.2d at 571-572 [citations omitted]. In

Kinnard, the informant's testimony implicating the defendants

was uncorroborated. Defense counsel attempted to establish

the informant's addiction through extrinsic evidence of the

needle marks on the informant's arms as relevant to the

frequency of his drug use. The Circuit Court of Appeals held

that the trial court erred in refusing to allow this

evidence.

Here, the informant's testimony is uncorraborated as to

counts I and 111, and uncorraborated as to the charge of

direct sale under count IV. And while defense counsel was

permitted to inquire about the informant's needle marks in

this case, this inquiry was abruptly terminated at the point

that such evidence could indicate drug usage beyond the res

gestae, that is beyond the incident of intraveneous drug use

with Curtiss that was allegedly part of his cover. All other

inquiry into the informant's alleged drug habits was also

limited to the res qestae pursuant to the State's motion,

thus the prosecution was able to maintain or allude that all

of the informant's drug use was merely part of his cover.

Because of this limitation, the defense was effectively

precluded from inquiring into whether the informant was drug

dependent or addicted and whether such dependence gave him a

motive to testify falsely.

Generally, it is within the district court's discretion

to exercise reasonable control over the mode and order of

interrogating witnesses and presenting evidence so as to (1)

make the interrogation and presentation effective for the

ascertainment of the truth, (2) avoid needless consumption of

time, and (3) protect witnesses from harrassment or undue

embarrassment. Rule 611(a), M.R.~vid. Also, evidence that

is relevant may nevertheless be excluded by the district

court if its probative value is substantially outweighed by

the danqer of unfair prejudice, confusion of the issues,

misleading the jury, or considerations of undue delay, waste

of time, or needless presentation of cumulative evidence.

Rule 403, M.R.Evid. However, the trial court's discretion in

exercising control and excluding evidence of a witness's bias

or motive to testify falsely becomes operative only after the

constitutionally required threshold level of inquiry has been

afforded the Defendant. United States v. Tracey (1st Cir.

1982), 675 F.2d 433, 437. Therefore, upon remand for new

trial, the Defendant should be afforded latitude in cross-ex-

amination, and be allowed to introduce extrinsic evidence

regarding the informant's alleged habitual drug use as rele-

vant to his motive to testify falsely, if denied by the

informant subject to the usual limitations of Rules 403 and

As his final issue, the Defendant argues that the evi-

dence was insufficient to support a conviction on counts 111.

and IV. The standard of review of sufficiency of the

evidence is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt. State v. Krum,(Mont. 1989), 777 P.2d 889,

891, 46 St.Rep. 1334, 1336; State v. Kutnyak (1984), 211

Mont. 155, 174, 685 P.2d 901, 910.

With respect to the charges under count IV for direct

sale and accountability for sale of dangerous drugs, the

State's evidence tended to establish the following facts: On

August 3, 1988, Curtiss went to the informant's house and

asked him if he wanted to buy some "crank," a form of metham-

phetamine. She attempted to set up a deal through the Defen-

dant's wife. The Defendant's wife was unable to get any

"crank," hut she told the informant that she could get him

some cocaine. After some further arrangements, the informant

gave the Defendant's wife $100.00 and arranged for a delivery

of cocaine at his house. The informant testified that during

these arrangements he saw the Defendant's wife talking with

the Defendant.

Later, that day, as the informant was talking with

Officer Bernall over the phone, he saw the Defendant and his

wife drive up in front of the informant's home. Officers

Bernall and Gassett later observed the Defendant's vehicle

parked in the informant's driveway. The Defendant and his

wife came in, sat on the couch, and the Defendant's wife

handed the informant a gram of cocaine which he placed on the

coffee table. She then asked if she could have some for

setting up the deal. The informant agreed and gave her a

mirror and a razor blade with which she cut three lines of

cocaine. The informant testified that the Defendant and his

wife then each snorted a line but he did not. Officer

Bernall testified that through the informant's body wire he

heard the informant tell the others that he wasn't going to

snort a line because he didn't do it that way. The Defendant

and his wife left and the informant delivered the remaining

cocaine to officer Bernall.

The informant's testimony constitutes direct evidence

that the Defendant aided or abetted his wife in the commis-

sion of the sale. - S 45-2-302 (3), MCA (~ccountability)

See ;

s 45-9-101, MCA (Criminal sale of dangerous drugs.) The

Defendant drove his wife to the informant's house and was

present during the transaction. At no point did he attempt

to terminate his efforts to facilitate the sale. - S

See

45-2-302(3) (b), MCA. The evidence on count IV is at least

sufficient for a rational trier of fact to find the essential

elements of the crime of accountability for the criminal sale

of dangerous drugs beyond a reasonable doubt. Sections

45-2-302, 45-9-101, MCA; Krum, 777 P.2d at 891; Kutnyak, 685

With respect to count 111, alleging criminal sale of

dangerous drugs, the informant's testimony was offered to

establish the following facts: On July 16th, 1988, the

informant met with Curtiss in order to set up a cocaine buy.

No police surveillance was used. The informant and Curtiss,

along with a friend of Curtiss, eventually went to Harold's

Tavern, the Defendant's place of business, where they saw a

vehicle, supplied by Defendant's employer and generally used

by the Defendant, parked outside. Curtiss and friend went

into the bar and returned approximately fifteen minutes later

with a "bindle" (approximately one gram) of cocaine which

they gave to the informant. The informant testified that

Curtiss stated the cocaine was from the Defendant. He also

testified that he gave Curtiss $100.00, which she then took

into the bar, after taking out some cocaine for setting up

the deal. The informant then went home and delivered the

cocaine to the Sheriff's Department about two and one-half

hours after the transaction.

Curtiss' testimony regarding the essential elements of

the offense charged under count 111 wholly contradicts the

testimony of the informant. She testified that during this

incident the informant had several bindles of cocaine in his

possession and that she and a friend entered the bar at his

request looking for someone to purchase cocaine from the

informant. She testified that the informant suggested that

they see if the Defendant was interested in making a pur-

chase. When she failed to find any prospective purchasers,

she then went back outside the bar, returned the cocaine to

the informant, took a small amount for her efforts, and

returned to the bar.

The only uncontradicted evidence offered through the

informant's testimony is that the vehicle the Defendant

usually drove was parked outside the tavern. The informant

did not observe the alleged sale or the Defendant's presence

at the tavern, nor did he have any contact with the Defendant

on that day. The only evidence implicating the Defendant is

the statement of Curtiss allegedly made to the informant

that the Defendant was the source of the cocaine the infor-

mant alleges she had just delivered.

The Defendant contends that the alleged statement of

Curtiss as testified to by the Defendant was inadmissible due

to lack of foundation for introduction of a co-conspirator's

statement, under Rule 801 (d)(2)( E ) , M.R.Evid. The State

argues that the necessary foundation establishing the exis-

tence of a conspiracy was laid and therefore the out of court

statement of Curtiss fits under the coconspirator exclusion

to the hearsay rule. - Rule 801(d) (2)(E), M.R.Evid.; State

See

v. Stever (1987), 225 Mont. 336, 732 P.2d 853.

To qualify for a hearsay exclusion under Stever, the

statement must have been made in the course of and in

furtherance of the conspiracy by a coconspirator of the

defendant. Rule 801(d) (2)(E), M.R.Evid., 732 P.2d at 857.

Furthermore, a separate confrontation clause analysis must

be satisfied in order to guarantee the reliability of the

challenged coconspirator statements. Stever, 732 P.2d at 859.

Relevant criteria to be considered are (1) the declarant's

knowledge of the identity and role of the defendant in the

crime; (2) the possibility that the declarant was relying

upon faulty recollection; and (3) the circumstances under

which the statements were made, possibly indicating that the

declarant might be lying about the defendant's involvement in

the conspiracy; and (4) whether the testimony is so "crucial"

to the prosecution or "devastating" to the defense as to

require reversal of the conviction. Stever, 732 P.2d at 859;

State v. Fitzpatrick (1977), 174 Mont. 186, 569 P.2d 383,

392; United States v. Snow (9th Cir. 1975), 521 F.2d 730,

However, we need not determine if the statement is

excluded from hearsay under the co-conspirator rule in this

case, for even if properly admitted, the statement is not

sufficient to support the conviction on count 111. It is the

same type of statement admitted upon a proper foundation

under Rule 801 (d)(1)(A), M. R. Evid. , which provides:

(d) Statements which are not hearsay. A

statement is not hearsay if:

(1 Prior statement by witness. The

declarant testifies - -

- - at the trial or hearing and is

subject to cross-examination concerninq the state-

ment, and the statement is (A) inconsistent with

his testimony. ...

Rule 801 (d)(1)(A), M.R.Evid. -- State v. Fitzpatrick

See e.g.,

(1980), 186 Mont. 187, 196, 606 P.2d 1343, 1348; - -