No. 83-92 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsGEORGE CHAP-Wil , 

Defendant and Appellant. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver BOW, 

The Eonorable Arnold Olsen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Brad L. Belke argued, Butte, Montana 

For Respondent : 

Ilon. Mike Greely , Attorney General, Iielena, Plontana 

Mark Murphy argued, Asst. Atty. General, Helena 

Robert N. McCarthy, County Attorney, Butte, Montana 

Christopher Miller argued, Deputy County Atty, Butte 

Submitted: September 14, 1983 

Decided: March 30, 1984 
Mr. Justice Daniel J. Shea delivered the Opinion of .the 

Court. 

Defendant, George Chapman, appeals from a Silver Bow 

County District Court judgment entered on a jury verdict 

finding him guilty of criminal sale of dangerous drugs. The 

charges stem from an alleged sale of drugs to an undercover 

police agent in Butte, Montana. Defendant raises three 

issues, all relating to his claim that he was entrapped. by 

the paid informant. We reverse and order a new trial. 

For a period of approximately a month and a ha1.f before 

the a.lleged sale, an und.ercover, paid State informant made 

repeated contacts with the defendant, asking defendant to 

obtain drugs for the informant. Out of this contact 

defendant relied on two defenses. First, defendant claimed 

he could not be convicted because, under the theory set forth 

in Adams v. United. States (1955), 220 F.2d 297, he was merely 

a messenger for the State. Second, that because of State 

activity in sol-iciting him to buy drugs, he was entrapped. 

Defendant claims that both these defenses entitle him to 

dismissal of the charges as a matter of law. 

The third, fourth, and fifth issues concern his claim 

that he was denied his right to fully present his entrapment 

defense. Defendant claims that he was denied the right to 

obtain the name and address of the informant; defendant. 

claims that he was denied the right to have a key witness 

testify because the trial court abused its discretion in not 

granting immunity to the witness before that witness would 

testify; and defendant claims that he was denied the right to 

present testimony from another witness who could testify that 

the informant used similar and harassing techniques on her 

family to wear down their resistance to obtain drugs on 
behalf of the informant. The manner in which the issues were 

raised at trial follows. 

At the pre-trial omnibus hearing, defendant moved that 

the informant's identity and whereabouts be disclosed so that 

defendant could call him as a witness. The State resisted 

and the trial court denied the motion. Before trial began, 

defendant again renewed his motion to compel disclosure of 

informant's name and address, but the court again denied this 

motion. Alternatively, in the event the trial court denied 

this motion, defendant asked through a motion in limine that 

the undercover agent be instructed not to mention any 

conversation he had with the informant because the defendant 

had no opportunity to test those conversations. This motion 

was also denied. 

To further establish his entrapment d.efense, defendant 

attempted to present testimony of a witness who was with the 

informant in most of his contacts with the defendant, and 

who, according to defendant, could establish that the 

informant used persistent and harassing techniques to wear 

down the defendant's repistance to sell drugs. Defendant 

attempted to present this testimony at trial, but the trial 

court refused to grant immunity to the witness, and so denied 

defendant the opportunity to present testimony on the methods 

used by the informant in setting up the drug purchases to 

facilitate a prosecution for sale of drugs. 

And to also present his entrapment defense, defendant 

attempted to present the testimony of a witness who, 

according to the defendant, experienced or witnessed the same 

kind of harassment by the informant that defendant 

experienced. At the pre-trial hearing, the court sustained 

the State's objection and refused to allow the witness to 
testify. At trial the defendant again attempted to present 

this testimony, but the trial court sustained the State's 

objection, ruling that the testimony was irrelevant. 

Eecause defendant was left with only his own testimony 

and that of his wife to establish his entrapment defense, 

defendant contends in essence that he was effectively 

stripped of his right to present a meaningful defense. 

Although we do not agree that defendant established 

entrapment as a matter of law based on the trial record, we 

do agree that he was effectively denied his riqht to present 

his entrapment defense. Therefore, a new trial is required. 

Defendant was arrested on March 3, 1982, and charged 

with criminal sale of dangerous drugs. The arrest was based 

on events of March 1, 1982, when defendant allegedly sold 

amphetamines to an undercover agent, who made the contact 

with defendant through efforts of the informant. 

The Montana Attorney General's office contacted the 

Butte-Silver Bow Sheriff's Department in January 1982, two 

months before the arrest, and asked if the sheriff could use 

an undercover informant in the Butte area. The sheriff 

believed there would be a use for an informant. In late 

January 1982, the Attorney General's office sanctioned and 

approved placement of an informant known as "JR" in Butte. 

Informant and his wife met with the Butte Sheriff's 

Department, and he was instructed to go "underground" and 

gain information about illegal drug activity in Butte. 

Informant was given a vehicle, a room, money for drug 

purchases, limited pay, as well as a list of suspected drug 

dealers. The informant was to infiltrate the illegal drug 

circles, and prepare for the entry of an undercover agent, 
Tom Adamo. Adamo would then participate in a purchase of 

drugs, upon which a prosecution would be based. 

In February 1982, the informant became acquainted with 

William Worley, who had been living with defendant and his 

wife since December 1981. Worley became one of the 

informant ' s contacts with the Butte drug community. 

Informant saw Worley at defendant's home frequently. Each 

time informant came to defendant's house, he either brought 

drugs with him, or would go with Worley to buy drugs. 

Usually, informant and Worley returned to defendant's house, 

and used drugs in the presence of defendant and his wife. 

Defendant and his wife testified that each time informant was 

at their house, he asked defendant to buy drugs for him. 

Worley left Butte during the last week of February, 

1982. After this, informant continued to phone defendant's 

house for Worley. The informant also frequently stopped by 

defendant's house, looking for Worley, and repeatedly asked 

defendant to sell him drugs. Defendant told the informant 

that Worley left town, and that he, the defendant, was not 

part of the drug scene, and did not have drugs to sell. 

On March 1, 1982, defendant was at a bar in Butte. The 

informant and his wife were there, and both approached 

defendant. The informant asked the defendant to sell him 

drugs, but the defendant said he had no drugs to sell. The 

informant then to1.d defendant that his "brother" (who was 

Adamo, the undercover agent) was coming to town, and would 

need drugs because he was an addict. The informant asked if 

defendant knew of anyone who sold drugs. Defendant denied 

any knowledge of current drug activity and left the bar. 

Later that same evening, the informant, his wife and the 

undercover agent arrived uninvited at defendant's house. The 
undercover agent, Adamo, was introduced as the informant's 

brother. 

The undercover agent testified that when he and the 

informant were at the defendant's residence, the defendant 

showed no reluctance to buy drugs for them. The undercover 

agent also testified that he did not have any alcohol with 

him when he entered defendant's residence. In contrast, both 

defendant and his wife testified that the informant and 

undercover agent were in their house a half hour and 

repeated.1~ asked defendant to purchase drugs for them. 

Defendant and his wife testified that the undercover agent 

acted very nervous and shaky, and they interpreted his 

behavior as drug withdrawal. Defendant's wife also testified 

that the undercover agent offered her 17 month old child a 

sip of beer from the can she claims he was holding. She 

testified that at this point she asked defendant to do 

anything necessary to get the informant, his wife, and 

undercover agent out of the house. 

The remaining facts are not in dispute. Defendant went 

with the informant, informant's wife and the undercover agent 

to a house on Evans Street in Butte. Defendant testified he 

purchased drugs from the occupant of the house when he was an 

addict, but not recently. Defendant went into the house to 

d-etermine if any amphetamines were available. He came back 

to the car and told the informant and the undercover agent 

they could buy a half gram of amphetamines for $50. The 

undercover agent gave the defendant $50, and the defendant 

returned to the car and gave the drugs to the undercover 

agent. The group returned to defendant's residence. 

Outside of his house, defendant indicated the informant 

and the undercover agent could come in and use the 
amphetamines. Defendant testified he made this offer because 

he was becoming suspicious, and wanted to know that all the 

drugs were used. He testified he made it clear he would not 

use the amphetamines himself. The undercover agent 

testified, however, that he believed defendant made the offer 

because defendant wanted some drugs as his payment for 

obtaining the amphetamines for the undercover agent. The 

informant and the undercover agent refused to go in and left 

defendant at his house. Defendant received neither money nor 

drugs as payment for finding a drug source for the undercover 

agent. Two days later defendant was arrested and charged 

under section 45-9-101, MCA, with the felony sale of 

dangerous drugs for the act of giving the drugs to the 

undercover agent. 

Based on Adams v. United States, supra, defendant argues 

that his conviction for sale cannot stand. He contends that 

he was merely a messenger -- he had no drugs in his 

possession, he never had control of the drugs, and he 

received no compensation. He contends he merely carried the 

money from the car to the house, and the drugs from the house 

to the car, and that he was at all times acting only as a 

messenger of the State agent. However, we decided in State 

v. Davis (Mont. 1980), 620 P.2d 1209, 37 St.Rep. 1958, that 

we would broadly interpret our statute to include the 

transfer of drugs to an undercover agent as sufficient to 

constitute the offense of sale of dangerous drugs. We 

recognized in Davis, relying on authority from New Hampshire 

and Kansas, that a defendant need not possess "title" to the 

drugs nor need he receive valuable consideration to 

constitute the offense of criminal sale of dangerous drugs. 

Davis, supra, 620 P.2d at 1215, 37 St.Rep. at 1964. We 
recognized that delivery was an integral part of the sale of 

drugs and therefore that a sale did not end with the payment 

of money. 

Here Chapman made the arrangements for the undercover 

agent to purchase the drugs, and though Chapman had no title 

or possession of the drugs other than to carry the drugs to 

the car for delivery to the agent, his participation in the 

delivery of the drugs made him, under the Davis rationale, 

more than a mere messenger of the State. Therefore, Chapman 

could properly be charged with the sale of dangerous drugs 

under section 45-9-101, MCA. However, the question of 

whether Chapman was entrapped is yet another question that 

only another jury trial can determine. 

Defendant next claims he established entrapment as a 

matter of law, and that the charges should have been 

dismissed. At the pre-trial hearing on entrapment and at the 

trial, defendant attempted to present testimony of two 

witnesses to prove that he was induced tc sell drugs to the 

undercover agent. The trial court refused to allow the 

testimony, ruling that it was irrelevant. Because the trial 

record reveals conf 1-icting testimony regarding the 

defendant's intent and predisposition to commit the crime, 

the question of entrapment was for the jury to determine. 

However, as we discuss below, we have no doubt that defendant 

was deprived of his right to present testimony of the 

informant a-nd the two witnesses whose testimony was vital to 

the establishment of the entrapment defense. 

Defendant next contends the court erred in refusing to 

require disclosure of the informant's identity and address. 

Montana has recognized the rule of privilege for the identity 

of an informer and codified it in Rule 502, Mont.R.Evid., 
adopted in 1977. This rule allows the government to refuse 

to disclose the identity of an informant, subject to certain 

exceptions. The exception applicable in this case provides 

that if an informant can give testimony relevant to any issue 

in a criminal case, and the government claims the privilege, 

the trial court must determine if the defendant's right to 

prepare his defense will be impinged by the government's 

interest in protecting the flow of information by informants. 

If the trial court determines that the defendant's rights 

will be violated if the informant is not identified, and the 

government refuses to identify the informant, the court must 

dismiss the charges against the defendant. Even before this 

rule was adopted, Montana followed the same balancing test, 

which was set forth by the United. States Supreme Court in 

Roviaro v. United States (1959), 353 U.S. 53, 77 S.Ct. 623, 

11 L.Ed.2d 639. 

In Roviaro, defendant delivered heroin to an informant 

and was charged with knowingly possessing and transporting 

unlawfully imported heroin. Roviaro's pre-trial motions for 

disclosure of informant's identity were denied. The motions 

were not based on a defense of entrapment, but that informant 

was the only other one actually taking part in the 

transaction. The United States Supreme Court held that when, 

in the interests of fundamental fairness, disclosure of an 

informant's identity is relevant and helpful to the 

defendant's defense, or essential to a fair determination of 

the case, the privilege must fall. 

This Court in Offerdahl v. District Court (1971), 156 

Mont. 432, 481 P.2d 338, quoted with approval the United 

States Supreme Court's balancing test that requires a 

balancing of the defendant's interest in preparing his 
defense, and the government's interest in protecting the flow 

of informant information. The test requires the trial court 

to consider the circumstances of each case, the crime charged 

and any possible defenses, and the possible significance of 

the informant's testimony. In Offerdahl, the defendant was 

charged with selling drugs to "John Doe", an informant. 

Defendant's pre-trial motion to compel disclosure of 

informant's identity was denied. This Court held that the 

informant's identity must be disclosed because only the 

informant knew whether defenc?ant was the one who made the 

drug sale or who received the marked money; the informant's 

testimony would determine the defendant's guilt or innocence 

of the crime of selling drugs. 

We recently considered the question of disclosing an 

informant's identity in State v. Sykes (Mont. 1983), 663 P.2d 

691, 40 St.Rep. 690, in which a search warrant was issued 

based on an unnamed informant's report that defendant had 

one-half pound of Columbian-type marijuana in his trailer 

home. In that case, this Court did not require disclosure of 

the informant's identity. Although we recognized the 

necessity of anonymous informants as part of police 

operations, Sykes does not apply here. In Sykes, claimant 

merely alleged that the evidence acquired by informant may 

have been obtained by an invasion of his privacy, and 

possibly violated his due process rights. Rut here, the 

informant played a continuous, active, and primary role in 

the alleged crime. However, the informant was not available 

as a witness because sometime after defendant's arrest, 

informant and his wife left town. Defendant does not know 

the whereabouts or the true identity of informant. Without 

the informant's testimony, the jury had only the testimony of 
defendant and his wife to counter the testimony of undercover 

agent Adamo, and to establish the defense of entrapment. 

We hold that in the interest of fund.amenta1 fairness, 

the informant's identity should have been disclosed. The 

informant's testimony is relevant to the issue of entrapment, 

and the balancing test, in this case, weighs heavily in 

defendant's favor. 

To further establish his defense of entrapment, 

defendant wanted to present the testimony of William Worley 

and Diane Surman. Defendant claimed he would show through 

Worley's testimony that whenever informant was at defendant's 

house, the informant persisted in asking defendant to get 

drugs for him. Worley introduced the informant to defendant, 

and was informant's contact with the Butte drug scene. In 

addition, defendant argued he would show through Diane 

Surman's testimony that the informant's method of operation 

was to persist in his requests for drugs, and to wear down 

one's resistance to sell drugs. Diane Surman's husband was 

arrested on the same day as defendant for the sale of 

dangerous drugs to the undercover agent and the informant, 

based on a transaction that occurred one week earlier. 

At trial, defendant attempted to prove through Worley's 

testimony that the informant continuously contacted and 

harassed defendant, asking for drugs. Long before trial, the 

State was notified that defendant was calling Worley as a 

witness. Defendant was unable to locate Worley until one 

week before trial, and Worley was promptly subpoenaed. The 

State had not questioned Worley, and wanted to do so before 

he testified. However, defense counsel indicated to the 

court he only briefly talked with Worley, and he knew Worley 
would be an unfriendly witness who would not testify unless 

granted immunity. 

Questioning was held outside the hearing of the jury to 

determine if immunity should be granted. While being 

questioned, Worley claimed his Fifth Amendment riqht against 

self-incrimination and refused to answer questions relating 

to his connection with the informant. Defendant requested 

immunity for Worley, pursuant to section 46-15-311, MCA, so 

Worley's testimony could be heard. Defendant explained that 

Worley would be admitting to possession, use and sale of 

dangerous drugs. Montana law provides that a person may be 

required to give testimony that may incriminate him, and if 

testimony is required, prosecution based on that testimony is 

barred. Section 46-15-311, MCA. The trial court, however, 

refused to grant immunity to Worley, and also ruled that 

Worley's testimony was irrelevant and immaterial. 

Defendant twice attempted to use Diane Surman's 

testimony to prove that the informant methodically used 

persistent contact and harassing techniques to wear down 

one's resistance to sell drugs. First, at the pre-trial 

hearing, the court ruled that Diane Surman's testimony was 

immaterial and had no bearing on the contact between the 

informant and defendant. The court ruled that Diane Surman 

could not testify to the informant's methods of setting up 

drug buys. 

At the trial, defendant again attempted to question 

Diane Surman to establish that informant's method of 

operation was to persist in his requests for drugs and to 

wear down one's resistance to sell drugs. The court again 

denied defendant the opportunity to question the witness, and 
again ruled that her testimony was irrelevant and immaterial 

to defendant's defense of entrapment. 

We believe the trial court should have permitted 

defendant to present evidence of informant's methods in 

setting up drug sales, even though the sales were with people 

other than defendant. We analogize to Rule 404, 

Mont.R.Evid., which, in certain circumstances, allows the 

State to introduce evidence of other crimes committed by a 

defendant to prove, among other things, plan, motive or 

intent of the defendant. The principle behind the rule must 

be equally available to a defendant who, as a part of his 

defense, seeks to show a plan or method of operation of the 

State's informant. The trial court, therefore, should have 

permitted defendant a chance to prove through the testimony 

of a witness, that the informant used harassing techniques as 

part of his method of operation in setting up drug buys. 

Fundamental fairness requires this result. 

In summary, all excluded testimony was relevant and 

material to defendant's defense of entrapment. The 

informant's testimony would allegedly establish that 

defendant at first resisted but finally gave in to the 

informant's persistent and hara-ssing techniques to set up a 

drug buy. William Worley's testimony is relevant to 

defendant's entrapment defense because Worley allegedly 

witnessed the contact between the informant and defendant for 

a five week period. Worley's testimony allegedly would show 

that defendant was subjected to persistent and harassing 

requests for drugs. Finally, Diane Surman's testimony 

allegedly would shoh7 that the informant used persistent and 

harassing contacts as his method to set up drug buys. 

Because Diane Surman personally experienced the informant's 
methods, and witnessed the effect on her husband, her 

testimony then could corroborate the testimony of defendant 

and his wife. Based on the necessity for these witnesses, 

defendant was denied the right to present his entrapment 

defense. Defendant was clearly denied his right to present a 

full and meaningful defense. 

For these reasons, the judgment of the District Court is 

vacated, and the case remanded for a new trial, consistent 

with the views expressed in this opinion. 

We Concur: 

734 \ pi!*- 

Chief Justice '. 

District Judge, 

sitting in place of 

Mr. Justice Frank B. Morrison, Jr.