No. 88-610 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsWINIFRED P. "JERRY" HALTER, 

Defendant and Respondent. 

APPEAL FROM: ~istrict Court of the Twelfth Judicial ~istrict, 

In and for the County of Chouteau, 

The Honorable Chan Ettien, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Marc ~acicot, Attorney General, Helena, Montana 

Betsy Brandborg, Asst. Atty. General, Helena 

Thomas J. Sheehy, County Attorney, Fort Benton, 

Montana 

For Respondent : 

- Robert D. Morrison; Morrison, Young, Melcher and 

C'J Brown, Havre, Montana 

Submitted on ~riefs: May 11, 1989 
Mr. Justice John C. Sheehy delivered the opinion of the 

Court. 

The State of Montana appeals from an order of the 

District Court, Twelfth ~udicial ~istrict, Chouteau County, 

dismissing with prejudice an information charging the 

defendant, ~infred P. "Jerry" Halter with two felonies upon 

the grounds that the State had allowed exculpatory evidence 

to be destroyed to the prejudice of the defendant. 

We affirm the District Court. 

The information filed March 16, 1988, charged the 

defendant in two counts, (1) felony theft, committed between 

September, 1986, and February 23, 1988, and (2) illegal 

branding, committed between May, 1987, and February 23, 1988. 

The subject of the branding was a red Limousin bull that on 

February 22, 1988 was found in the cow herd of Earl Sluggett 

on his ranch southeast of ~ig Sandy, Montana. Subsequent 

investigation revealed that the bull was owned by Ruth Owens 

and her daughter, Betty Donner, and that the bull had been 

missing since May 22, 1987. They resided on a ranch on the 

south side of the ~issouri ~iver and in reporting the bull 

missing, stated that they believed that the bull had crossed 

the Missouri River to the north side and might be found in 

the general area where the defendant's ranch is located. 

Earl Sluggett informed the inspectors that the bull had 

been in his herd on a previous occasion and at that time did 

not have the brand belonging to the defendant. his was 

probably in May, 1987. Sluggett also stated that on another 

occasion, the same bull had been on a ranch owned by Larry 

Jappe, who resides in the same area. 

When Sluggett reported the discovery of the bull on his 

ranch on February 27, 1988, the bull carried two brands. The 
brand on the bull's right hip was identified as belonging to 

Merritt Pride, from whom the bull had been purchased by Ruth 

Owens' husband, the late Cecil Owens. The brand on the left 

hip of the bull appeared to be that of the defendant Halter. 

Halter was arrested and entered a plea of not guilty to 

the charges. Thereafter, an omnibus hearing was held in the 

District Court at which counsel for the defendant moved for 

and was granted discovery of all of the State's written or 

recorded statements, names of the State's witnesses, copies 

of any statements, inspection of all physical and documentary 

evidence in the State's possession and discovery of all 

special or additional information coming thereafter into the 

State's possession. At the same hearing, the State indicated 

that it would call expert witnesses whose names would be 

supplied to the defendant, as well as copies of reports of 

any scientific tests and experiments which the State might 

conduct. 

On July 6, 1988, the defendant moved the court for an 

order allowing the inspection of the red Limousin bull for 

the purpose of utilizing an expert of defendant's choice to 

inspect the brands. The motion indicated that the county 

attorney had told the defendant's counsel that the bull had 

been sold. The motion requested that the State take whatever 

action was necessary to locate the bull and allow the 

inspection. 

On July 25, 1988, the county attorney moved the court to 

set a trial date. On July 26, 1988, defendant filed a 

written objection to the motion for trial date stating that 

the State had not responded to defendant's motion for 

inspection of the bull and indicating that the county 

attorney had advised the defendant by letter that the bull 

"may have been slaughtered. " On August 1, 1988, the county 

attorney filed a reply to the motion for inspection stating 
that the bull had been sold at auction on May 20, 1988, and 

thereafter, the bull had been slaughtered. In the reply, the 

county attorney advised that the defendant had had an 

opportunity to examine the animal and that photographs of the 

bull were taken by the defendant. 

The District Court set the cause for trial on September 

21, 1988. The defendant moved to vacate the trial setting on 

the grounds that the bull had been slaughtered, that the 

animal was unavailable for inspection by the defendant's 

expert and that the expert's testimony was critical to 

support the defendant's contemplated motion to dismiss by 

reason of destruction of exculpatory evidence. 

On October 7, 1988, defendant's counsel filed a motion 

to dismiss the charges against Halter because of the State's 

failure to preserve exculpatory evidence in the possession 

and control of the State's agents. Counsel for the defendant 

also filed an affidavit from Dr. Anthony Stannard, a doctor 

of veterinary medicine of the University of California, and a 

Ph.D. in veterinary pathology. His affidavit related that he 

had, at the request of attorneys for Halter, reviewed nine 

skin samples obtained from the branded pelts of nine head of 

cattle taken by a Havre veterinarian, conducted experiments 

on the same, and determined the ages of the brands, to which 

he could certify within 60 days. The affidavit stated that 

evidence from Halter would show that defendant was not in 

possession of the red Limousin bull from at least November 1, 

1987, through February 25, 1988, and from the early spring of 

1987 through June, 1987. The affidavit related that if Dr. 

Stannard could have inspected a skin sample from the red 

~imousin bull prior to its destruction, he could have 

determined if the brand in question was placed on the bull 

during the time periods set forth. 
The contentions of the defendant's counsel at the time 

of the motion to dismiss charges against Halter were that the 

slaughter of the bull prevented defendant from establishing 

that it was branded at a time when it was in the possession 

of others; that inspection would reveal the type of branding 

iron used which could be compared to those used by the 

defendant; that the slaughter prevented a direct comparison 

of defendant's branding irons with the brand on the bull; and 

that the defendant was denied a comparison of the weight of 

the bull in question with the weight of the bulls previously 

owned by defendant. 

In objecting to the motion to dismiss, the State 

contended before the District Court that the motion to 

dismiss did not meet the necessary legal standards for 

dismissal, that defendant had let three to four months elapse 

before demanding inspection of the bull, that an evidentiary 

hearing was necessary to determine whether the evidence was 

in fact exculpatory, and that otherwise, without an 

evidentiary hearing, the defendant's motion should be denied. 

On November 28, 1988, the ~istrict Court filed its order 

dismissing the charges against Halter with prejudice. In its 

findings, the court noted that at the omnibus hearing on May 

2, 1988, when the court ordered all physical evidence in the 

possession of the State to be made available for inspection 

by defendant, the State also informed the court that it was 

going to use expert witnesses and scientific tests and 

experiments and comparisons, which indicated to the court 

that the State intended to preserve the red Limousin bull. 

The court agreed that the slaughter of the bull made it 

impossible for defendant's experts to determine the age of 

the brand on the bull, and for making comparisons of the 

defendant's branding irons with the brand that appeared on 

the bull. The court found defendant was also prevented from 
making comparisons of the weight and physical characteristics 

between the red Limousin bull, and red Saler bulls which 

defendant also owned. The court found a duty in the State to 

preserve the primary physical evidence of the case and that 

the destruction of the bull constituted destruction of 

exculpatory evidence which was prejudicial to an effective 

defense. The court further found that an evidentiary hearing 

was not necessary in that it would not assist the court and 

that the arguments of the State for an evidentiary hearing 

merely went to the weight of the evidence. The court stated, 

"The defendant, having wrongfully been denied an opportunity 

to inspect the bull, is unable to develop the evidence which 

counsel for the state indicates he is able to rebut through 

cross-examination or contradictory testimony." 

On appeal, the State points to the case of united States 

v. Agurs (1976), 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342, 

in which the United States Supreme Court said that the "mere 

possibility" that an item of undisclosed information might 

help the defense or affect the outcome of the trial does not 

establish "materiality" in the constitutional sense. 

Thereafter, in ~alifornia v. Trombetta (1984), 467 U.S. 479, 

104 S.Ct. 2528, 81 L.Ed.2d 413, 422, the Supreme Court said: 

Whatever the duty the constitution imposes on the 

state to preserve evidence, that duty must be 

limited to those that might be expected to play a 

significant role in the suspect's defense. To meet 

this standard of constitutional materiality, see 

united States v. Agurs, 427 U.S. at 109, 110, 49 

L.Ed. 342, 96 S.Ct. 2392, evidence must both 

possess an exculpatory value that was apparent 

before the evidence was destroyed, and be of such a 

nature that the defendant would be unable to obtain 

comparable evidence by other reasonably available 

means. 

In State v. Ronald Lee Craig (1976), 169 Mont. 150, 545 

P.2d 649, this Court held that when the State, due to 
negligence, loss, replacement or destruction, is unable to 

produce certain physical evidence in the prosecution of the 

case, reversal of a conviction is not necessary where the 

actual objects were not vital to the defense, were not 

exculpatory in nature, and the result would not have been 

affected by their introduction. 

The essential issue raised by the State on appeal is 

that the District Court should have held an evidentiary 

hearing in order to determine the materiality of the ability 

of the defendant and his agents to inspect the bull. It is 

true, however, as the District Court noted, that the 

evidentiary hearing after the slaughter would have been of 

little value because the slaughter prevented defendant from 

establishing, through his experts, the age of the brand, its 

comparison with defendant's branding irons and the weight and 

physical characteristics of the red ~imousin bull. Dr. 

Stannard's affidavit establishes that he would have been able 

to establish, within 60 days, the age of the brand. In other 

words, as Dr. Stannard noted, if he found the brand were six 

months old, his certainty was sufficient to fix the brand 

anywhere from five months of age to seven months of age. In 

view of the fact that this bull, after its departure from 

its owner's ranch, was not always on the defendant's lands, 

but was present twice on Sluggett's lands and once on Larry 

Jappe's, the age of the brand was critical evidence for the 

defendant. In addition, destruction of the pelt meant that 

no comparison could be made by experts between the brand 

itself and the branding irons owned by the defendant. 

It appears from the file therefore that (1) the 

evidence destroyed had an exculpatory value to the defendant, 

(2) the exculpatory value of the evidence was apparent 

before the destruction of the evidence because the State 

itself indicated it would conduct experiments and use experts 
with respect to the brands, (3) comparable evidence is not 

now within the defendant's ability to obtain by other 

reasonably available means, and (4) there was an expectation 

that the lost evidence would play a significant role in the 

defense of the defendant. 

We determine here that the slaughter of the bull was not 

the intentional or deliberate purpose of the State but rather 

that the State was negligent in preserving necessary evidence 

in the cause. In view of the circumstances here, the long 

periods when the bull was not on Halter's lands, and was in 

fact finally discovered in Sluggett's cow herd, the 

preservation of the bull was as critical to the State's case 

to obtain a conviction as it was to the defendant to obtain 

an acquittal. This factor distinguishes this case from State 

v. Craig, supra; State v. Heth (Mont. 1988), 750 P.2d 103, 45 

St.Rep. 194; State v. Palmer (1983), 207 Mont. 152, 673 P.2d 

1234; and State v. Amaya (Mont. 1987), 739 P.2d 955, 44 

St.Rep. 1173, all of which are relied on by the State. In 

the circumstances here, the ~istrict Court was correct in 

determining that an evidentiary hearing is not necessary 

because that which could develop from an actual inspection of 

the bull by experts was never developed because of the 

slaughter. At that point the State had nothing to rebut in 

an evidentiary hearing. 

We therefore affirm the District Court. 

// Justice 
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