No. 88-610
INTHE 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 theTwelfth Judicial~istrict, Inand fortheCounty 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, 1989Mr. 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 theprejudice of thedefendant. We affirm the DistrictCourt. The information filed March 16, 1988, charged the defendant in two counts, (1) felony theft, committedbetween September, 1986, and February 23, 1988, and (2) illegal branding, committedbetweenMay, 1987,and February 23, 1988. The subject of the branding was a red Limousin bull that on February 22, 1988was found in the cowherd of Earl Sluggett
on his ranch southeast of ~ig Sandy, Montana. Subsequent investigation revealed that the bullwas owned by Ruth Owens and her daughter, Betty Donner, and that the bull had been missing sinceMay 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 samearea. When Sluggett reported the discovery of the bull on his ranch onFebruary 27, 1988,thebull carried two brands. Thebrand on the bull's right hipwas identified as belonging to Merritt Pride, fromwhom the bull had been purchased by Ruth Owens' husband, the late Cecil Owens. The brand on the left hip of thebull appeared to be that of the defendantHalter. Halter was arrested and entered aplea of not guilty to the charges. Thereafter,an omnibushearing was held in the District Court at which counsel for the defendantmoved 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 allphysical 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 samehearing, 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 takewhatever 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 "mayhave been slaughtered.

### " On August 

### 1, 1988, the county attorney filed a reply to the motion for inspection statingthat the bull had been sold at auction on May 20, 1988, and thereafter,thebull had been slaughtered. Inthe reply,the county attorney advised that the defendant had had an opportunityto examine the animal and thatphotographs of the bullwere takenby thedefendant. The District Court set the cause for trial on September 21, 1988. The defendantmoved to vacate the trial settingon 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 ofdestruction 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 theUniversity ofCalifornia,and a Ph.D. inveterinary pathology. His affidavitrelated thathe 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 Limousinbull fromat leastNovember 1, 1987,through February 25, 1988,and fromthe early spring of 1987 through June, 1987. The affidavit related that if Dr. Stannard could have inspected a skin sample from the red ~imousinbull prior to its destruction, he could have determined if the brand in question was placed on the bull during the timeperiods set forth.The contentions of the defendant's counsel at the time of the motion to dismiss charges againstHalterwere that the slaughter of the bull prevented defendant from establishing that itwas branded at a time when itwas in the possession of others; that inspectionwould 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 thebrand 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,thatdefendanthad let three to fourmonths 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 evidentiaryhearing, thedefendant's motion shouldbe denied. OnNovember 28, 1988,the~istrict Court filed its order dismissing the charges againstHalter with prejudice. In its findings, the courtnoted that at the omnibushearing onMay 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 defendantwas also prevented frommaking comparisonsof theweight and physical characteristics between the red Limousin bull, and red Saler bulls which defendant also owned. The court found aduty 

### 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, isunable to develop the evidence which counsel for the state indicateshe is able to rebut through cross-examination or contradictory testimony." On appeal, the Statepoints to the case ofunited States


### v. Agurs (1976),427U.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 ~aliforniav. Trombetta (1984), 467U.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. Tomeet 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 evidencewas destroyed,and be of sucha nature that the defendantwould 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'sbranding irons and the weight and physical characteristics of the red ~imousinbull. Dr. Stannard's affidavit establishes thathewould havebeen able to establish, within 60

### days,the age of thebrand. In other words, as Dr. Stannard noted, if he found thebrand 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 itselfand thebranding ironsownedby thedefendant. It appears from the file therefore that (1) 

### the evidencedestroyed 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 itwould conduct experimentsand use expertswith respect to the brands, (3) comparable evidence is not
now within the defendant's ability to obtain by other reasonablyavailablemeans, and (4) therewas an expectation that the lost evidence would play a significant role in the defense of the defendant. We determinehere that the slaughterof thebullwasnot the intentional or deliberatepurpose of the State but rather that the Statewas negligent inpreserving 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 factordistinguishes this case fromState


### v. Craig, supra; State

### v. Heth (Mont. 1988), 750 P.2d 103, 45 St.Rep. 194; Statev. Palmer (1983),207Mont. 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 ~istrictCourt was correct in determining that an evidentiary hearing is not necessary because thatwhich could develop froman 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 DistrictCourt.



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