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: 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 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 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 residence, 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 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 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 acknowledged 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 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 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. 
I I 

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. 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 crossexamination 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 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 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 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- 
tionality of the statutory definitions of "kn~wingly'~ and Irpurpose1. 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£ f irmed. 
We concur: