No. 83-92 INTHE SUPREME COURTOF THE STATE OF MONTANA 1984

STATE OF MONTANA, Plaintiffand Respondent,

-vsGEORGE CHAP-Wil 

### , Defendantand Appellant.

APPEAL FROM: District Court of the Second Judicial District, Inand for the County of SilverBOW, The EonorableArnold Olsen, Judgepresiding.

COUNSEL OF RECORD: ForAppellant:

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,CountyAttorney, Butte,Montana Christopher Miller argued,Deputy CountyAtty, Butte

Submitted: September 14, 1983 Decided:March 30, 1984Mr. 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 findinghim guilty of criminal saleof dangerous drugs. The charges stem from an alleged sale of drugs to an undercover police agent in Butte, Montana. Defendant raises three issues, allrelating to his claim that he was entrapped. by thepaid informant. Wereverseand 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 notbe convicted because, under the theory set forth inAdams v. United.States (1955), 220 F.2d 297, he was merely

a messenger for the State. Second, that because of State activity in sol-icitinghim tobuy drugs, he was entrapped. Defendant claims that both these defenses entitle him to dismissal of the charges asamatter of law. The third, fourth, and fifth issues concern his claim that he was denied hisright tofullypresent 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 trialcourt abused itsdiscretion innot granting immunity to the witness before that witness would testify; and defendant claims thathe was denied therightto present testimony from another witnesswho could testifythat the informant used similar and harassing techniques on her family to wear down their resistance to obtain drugs onbehalf of the informant. Themanner inwhich the issueswere raised at trial follows. At the pre-trial omnibus hearing, defendant moved that the informant'sidentity and whereaboutsbe disclosed so that defendant could call him as a witness. The State resisted and the trial court denied themotion. Before trial began, defendant again renewed his motion to compel disclosure of informant's name and address,but the court againdenied this motion. Alternatively, in the event the trial court denied this motion, defendant asked through amotion in limine that the undercover agent be instructed not to mention any conversationhe had with the informantbecause the defendant had no opportunity to test those conversations. Thismotion

was alsodenied. To further establish his entrapment d.efense,defendant attempted to present testimony of a witness whowas 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 courtrefused to grant immunity to thewitness,and sodenied defendant theopportunity topresent testimonyon themethods used by the informant in setting up the drug purchases to facilitateaprosecution for saleof drugs. And to also present his entrapment defense, defendant attempted to present the testimony of a witness who, according to thedefendant,experienced orwitnessed 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 totestify. At trial the defendant again attempted to present this testimony, but the trial court sustained the State's objection,ruling that the testimonywas 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 amatter 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 dangerousdrugs. The arrestwas based on events of March 1, 1982, when defendant allegedly sold amphetamines to an undercover agent, who made the contact with defendant through effortsof 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,uponwhich aprosecutionwouldbe 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. Defendantand hiswife testified that each time informantwas 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 thedrug scene,and did nothave drugs to sell. On March 1, 1982,defendantwas 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" (whowas Adamo, the undercover agent) was coming to town, and would need drugsbecause he was an addict. The informantasked 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 agentarrived uninvited atdefendant's house. Theundercover 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 himwhen he entered defendant's residence. Incontrast,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 asdrug withdrawal. Defendant'swife 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 undercoveragent outof the house. The remaining facts are not in dispute. Defendant went with the informant, informant'swife and the undercoveragent to a house on Evans Street in Butte. Defendant testifiedhe purchased drugs from the occupant of the house when he was an addict, but not recently. Defendantwent into the house to d-etermineif 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 todefendant's residence. Outside of his house, defendant indicated the informant and the undercover agent could come in and use theamphetamines. Defendant testifiedhemade thisoffer 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, thathebelieved 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 athis house. Defendant received neithermoney nor drugs aspayment for findingadrug 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 undercoveragent. Based onAdamsv. 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 contendshe merely carried the money from the car to thehouse,and the drugs fromthehouse 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 notpossess "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. Werecognized that deliverywas an integralpart of the sale of drugs and therefore that a saledid not end with the payment ofmoney. 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 amere 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 candetermine. Defendant next claims he established entrapment as a matter of law, and that the charges should have been dismissed. At thepre-trialhearing 

### on entrapmentand 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 conf1-icting testimony regarding the defendant's intent and predisposition to commit the crime, the question of entrapment was for the jury to determine. However, aswe discussbelow,wehave no doubt that defendant

was deprived of his right to present testimony of the informant a-ndthe twowitnesseswhose testimonywas vital to the establishment of the entrapmentdefense. 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 forthe 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 cangive testimony relevantto 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 inprotecting the flow of informationby 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 courtmust 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, 11L.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 identitywere denied. Themotions were notbased on a defense of entrapment, but that informant

was the only other one actually taking part in the transaction. TheUnited States SupremeCourtheld thatwhen, 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,theprivilege 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 hisdefense,and the government'sinterest inprotecting the flow of informant information. The test requires the trial court to consider the circumstancesof 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?antwas 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 sellingdrugs. We recently considered the question of disclosing an informant's identity in Statev. Sykes (Mont. 1983), 663P.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 Courtdid 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 informantwas 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 juryhad only the testimonyofdefendantand hiswife 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 informantwas atdefendant's house, the informant persisted in asking defendant to get drugs forhim. Worley introduced the informantto 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 throughWorley's testimony that the informant continuously contacted and harassed defendant,asking fordrugs. Longbefore 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 knewWorleywould 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. Defendantexplained 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 incriminatehim, and if testimony is required,prosecutionbased 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 testimonywas irrelevantand 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 drugbuys. 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 opportunitytoquestion the witness,andagain ruled that her testimony was irrelevantand immaterial to defendant'sdefense of entrapment. We believe the trial court should have permitted defendant to present evidence of informant's methods in settingup 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 principlebehind the rulemust 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 informantused harassing techniquesas 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-ssingtechniques 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 informantand defendant for

a five week period. Worley's testimony allegedlywould 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'smethods, 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. Defendantwas clearlydeniedhis righttopresent a fullandmeaningful defense. For thesereasons, thejudgment of theDistrictCourt is vacated, and the case remanded for a new trial, consistent with theviews expressed in thisopinion.

We Concur: 

# 734 \

# pi!*- Chief Justice 

## '.

DistrictJudge, sitting inplaceof Mr. JusticeFrank B. Morrison, Jr.