No. 91-091 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

STATE OF MONTANA, Plaintiff and Respondent,

### -vsDONALD E. BRINER, Defendant and Appellant.

APPEAL FROM: DistrictCourt of theThirteenthJudicialDistrict, 

### In and for the County of Yellowstone, The HonorableWilliam J. Speare,Judgepresiding.

COUNSEL OF RECORD: For Appellant: Richard J. Carstensen, Billings, Montana For Respondent: Hon. MarcRacicot, AttorneyGeneral, Helena,Montana Elizabeth L. Griffing,Assistant Attorney General Dennis Paxinos, County Attorney; TerenceM. Swift, Deputy County Attorney, Billings, Montana

Submitted on Briefs: April 3, 1992 Decided: May 5, 1992

Y ClerkChief JusticeJ.

### 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 inspectTurner's statementtothepolice at thepretrial hearing? 2. Did the court err in denying Brinertsrequest 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. Doesoutrageous government misconduct barthisconviction? 6. Was themethamphetaminehere involved properly designated

a Schedule I1 dangerous drug? InDecember 1988, Hal Turner, who described himself ashaving previously led a "life of crime" and who had been on parole since 1987, offered to become a confidential informant for law enforcement 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 Enforcement Administrationatapproximately the same time. Themajor 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 asmany as forty to fiftyof them. Hewas considered an extremely reliable informant. Prior to working as an informant,Turnermade a statement to the Drug Enforcement Division of YellowstoneCounty describinghis acquaintances,thepeople from whom hehad 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 tomake contact with Briner. He went to the bar but did not find Briner there. He then left thebar and droveby 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 thetrailer. Inside,Briner soldTurner threeand 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 residence, met the deputies at a prearranged location, and turned over the methamphetamine. The deputies then searched Turner and his vehicleagain. A field test of the substanceTurnerpurchased from Briner confirmed that itwasmethamphetamine. Testing at theState Crime Lab also showed that the substancewas 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 monitored, 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 asmethamphetamine. After leaving Briner's trailer, Turnerwent directly to a predesignated location where he gave the deputies the methamphetamine and where both he and his car were searched again. Based upon theabove evidence, the jury found Briner guilty of two counts of sale of dangerous drugs. I Did theDistrict Court err in refusing toallowthedefenseto 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 activitiesduring the time hewas 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 hismemory by reading the seventy-page statement he had previously made to authorities. During his 

### testimony he acknowledged that he had so used the statement. The defense requested that

### the statementbeproduced. After elicitingTurner's testimony that 

### he had never before reviewed or signed the seventy-page statement, the court denied themotion 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 isentitled to havethewritingproduced 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. Itwould have been nonsensical to allow the defense access to the statement at the same hearing at which defense access to the statementwas an issue before the court. Under Rule 612,

### M.R.Evid., it iswithin 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 crossexamination 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 thismatter, 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 continuance 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 agreement. Thedefense asked the court to continue the case to give it time to prepare for "this new evidence that has just happened and has justbeen 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 crimesTurnercommittedwhilehewasworking asan undercover agent and his claims thathehad received no promises ofhelp 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,thegrant of immunityaided thedefenseby 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 crossexamination of Turnerwhen Turner was granted immunity. The courtdid allow a pause in theproceedings so thatBriner's counsel could examine the agreements. The immunity agreementswere 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 agreements. 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 Statedid not offer testimony from theperson whomailed thepackets from the sheriff's office tothe StateCrime Lab inMissoula, thepersonwho 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 Statev. Carney (1986), 219 Mont. 412, 714 P.2d 532. InCarney, 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 discretionaryauthority 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 questionwere after the methamphetamine was in official custody. The officer who received themethamphetamine 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,thepackets remained under the sealsshehad placed onthem. Briner has not shown any evidence to overcome the resulting presumption that there was no tampering with the methamphetamine. Statev. 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 themental states of "knowingly" and "purposely"? Briner argues that the definitions of "knowingly" and "purposely" as set forth in Montana statutes and in Jury Instruction 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-tionalityof thestatutory definitions of "kn~wingly'~ and Irpurpose1. See State v. Sharbono (1977), 175 Mont. 373, 563 P.2d 61; Statev. 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 argumenthasbeen made that thisCourt should overturn itsprevious 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, shouldpreclude this conviction,whichwasbased in largepart 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 "mostnarrow" defense. United Statesv. Ryan (9thCir. 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, 484U.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 smokingmarijuana which he reported tohis 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 activitieswere related tohis purchasesofdrugs from Brinerwhile hewaswired and closelymonitored by officers. Theaudio 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. Wehold,however, that this conviction is notbarred under thedoctrine 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 Statev. Meader (1979), 184Mont. 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 legislatureintendedtheBoard of Pharmaciststohave 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 Departmenttook stepstocarryouttheir statutoryduties 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.We 

### concur: