NO. 93-278

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

STATE OF MONTANA,

Plaintiff and Respondent,

-vRAY LICHT,

Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District,

In and for the County of Hill,

The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William Hooks, Appellate Defender, Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, George

Schunk, Assistant Attorney General; David Rice, Hill

County Attorney

Filed:

Submitted on Briefs: June 24, 1994

Decided: August 11, 1994
Justice James C. Nelson delivered the Opinion of the Court.

The Defendant, Ray Licht, was charged by amended information

with two counts of criminal sale of dangerous drugs, both felonies,

in violation of 5 45-y-101, MCA. After a jury trial held in the

Twelfth Judicial District Court, Hill County, Licht was found

guilty of both charges on December 4, 1992. Licht appeals from

those convictions. We reverse in part and remand for further

proceedings consistent with this opinion, and we affirm in part.

Licht raises two issues on appeal:

1 . Did the District Court err in refusing to grant a

mistrial or a new trial, when it was discovered during

trial that the State had failed to reveal a prior

electronically monitored meeting in which the informer

approached Licht?

2 . Did the District Court err in denying Licht's motion

to dismiss Count II because the State failed to prove

with sufficient evidence that Licht sold, bartered,

exchanged, or gave away marijuana to Ernest LaMere?

On May 4, 1992, members of the Tri-Agency Drug Task Force

(Task Force) arranged to have a confidential informant, Alex Doney,

attempt to purchase drugs from Licht in a controlled buy. The

members of the Task Force participating in the purchase attempt

were Monte Reichelt, the Chief Deputy of the Hill County Sheriff's

Office, and James Brewer, a Deputy Sheriff of the Blaine County

Sheriff's office. The officers fitted Doney with an electronic

transmitter, commonly known as a body wire, so that they could keep

track of Doney and monitor any conversation between Doney and

Licht. The officers also gave Doney marked money with the purpose

of retrieving it from Licht after the transaction.

2
The Task Force officers drove Doney to the motel where Licht

was staying and dropped him off. Doney approached Licht, who was

working on his vehicle, and asked if he had any marijuana for sale.

Licht responded that he had some and that it was "twenty dollars a

piece." Licht and Doney then got into Licht's vehicle and drove to

a discount store's parking lot where Doney gave Licht $40.00 of the

marked money and received two grams of marijuana in return. After

the transaction took place, Doney got out of the car, and Licht

drove away. The Task Force officers immediately picked up Doney

who turned over the two gram bags of marijuana to Deputy Reichelt.

After dropping Doney off at a motel, the Task Force officers

contacted Jerry Smith, a probation and parole officer, and Steve

Marden, a deputy with the Hill County Sheriff's office, to assist

them in arresting Licht and in searching his residence, person and

vehicle. Licht, however, was not home.

The officers drove around Havre searching for Licht, and

spotted his vehicle parked near the Corner Bar. The officers

observed Licht get out of his vehicle and enter the tavern.

Approximately one minute later Licht and another man, Ernest

LaMere, exited the tavern and walked to the back of the building.

Deputy Marden and Smith then witnessed an exchange take place

between LaMere and Licht. Although neither Marden nor Smith

observed what the two men exchanged, Deputy Marden testified at

trial that he saw LaMere put the object he received from Licht into

his right front pants' pocket. Marden also testified that the two

men were acting suspiciously and were looking around as if scanning

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the area.

Shortly after the transaction, Licht drove away, leaving

LaMere at the Corner Bar. Officer Brewer testified that after

LaMere left Licht's vehicle, he (LeMere) got into a brown colored

Wagoneer that another individual was driving and left the Corner

Bar. All four officers followed Licht to a convenience store where

he was arrested. Licht had in his possession one of the marked

twenty dollar bills the Task Force officers had given to Doney to

purchase the drugs.

Officers Marden and Reichelt returned to the Corner Bar and

observed LaMere standing by the driver's door of a parked Wagoneer,

talking to the driver. The officers approached LaMere and noticed

a bulge in his right front pants' pocket. After a pat-down search,

the officers determined LaMere had a plastic baggy in his right

front pants' pocket and asked him to remove it. LaMere refused the

officers' requests to remove the object, therefore, the officers

placed him under arrest and removed a plastic bag containing

marijuana from LaMere's right front pants' pocket.

Licht was charged with two counts of criminal sale of

dangerous drugs, both felonies. An omnibus hearing was held, and

an Omnibus Hearing Order was entered granting Licht "complete

discovery." A jury trial was held December 3 and 4, 1992. At

trial, the State called LaMere as a witness. LaMere testified that

he aid not buy the marijuana from Licht, but had found it in the

mens' room of the Corner Bar. LaMere also testified that on the

day he was arrested, he was intoxicated and taking pain medication

4
for a recent stab wound, and therefore had trouble remembering the

events clearly. Deputies Reich&t and Marden testified that LaMere

did not appear to be intoxicated when they arrested him. Licht

never admitted selling marijuana to LaMere or Doney.

During trial, the State asked deputy Reichelt how he

recognized LichtPs voice over the body wire. Reichelt testified

that he recognized Licht's voice because approximately two weeks to

one month earlier, the Task Force had Doney attempt to purchase

drugs from Licht. Doney wore a body wire during this earlier

attempt, and Reichelt testified he heard Licht over the body wire

at that time.

Reichelt testified that he could not remember whether records

had been kept of this earlier meeting or, if any had been prepared,

whether they had been turned over to the State. The testimony at

trial was the first time defense counsel had notice that law

enforcement had previously attempted to purchase drugs from Licht.

As a result of the testimony concerning the earlier contact,

defense counsel aoved for a mistrial and asked for a new trial

following the State's case-in-chief. Defense counsel argued that

the prosecution withheld evidence which would have allowed the

defense to present an entrapment defense. The court denied the

motion for a mistrial, but apparently was concerned over the lack

of documentation and the fact that, if any documentation did exist,

the State should have turned it over to defense counsel. The court

therefore ordered the Task Force to search their files for any

documentation relating to the earlier contact, and to return any

5
such documentation to the court within the hour. The court

reserved any further rulings on the matter.

Defense counsel then moved for a directed verdict of acquittal

on Count II, for lack of sufficient evidence. The court denied

this motion and allowed the jury to deliberate on both counts. The

jury found Licht guilty of both charges on December 4, 1992.

Licht was sentenced to four years imprisonment on both counts on

December 9, 1992.

On December 16, 1992, Licht filed a post-trial motion for a

new trial alleging that new evidence establishing entrapment was

presented at trial. The court held a hearing on the motion on

March 15, 1993. Although the defense did not argue the "new

evidence" issue at this hearing, the State at this time revealed

that the Task Force had previously used Doney in an attempt to

purchase drugs from Licht on April 23, 1992.

The State also admitted that the Task Force had a written

report of the April 23rd meeting, which allegedly was inadvertently

not turned over to defense counsel prior to trial. The State

alleged the written report had been turned over to defense counsel

at "the end of the day," pursuant to the court's order directing

the Task Force to search their files. The "end of the day"

apparently references some time during the last day of the trial.

The report itself was never offered into evidence, and no testimony

was offered to support or refute the motion for new trial.

Therefore, the court denied the motion without hearing any

testimony concerning the report, or having it admitted into

6
evidence, and entered a written order to that effect on March 22,

1993. Licht subsequently appealed his convictions to this Court on

April 20, 1993.

I . FAILURE TO DISCLOSE

The first issue Licht raises on appeal is whether the District

Court erred when it denied his motion for a mistrial, or in the

alternative, whether the District Court erred when it denied his

motion for a new trial. The grounds for both motions are the same,

and raise the issue of whether Licht was prejudiced by the State's

failure to disclose, pre-trial, evidence of the prior electronic

surveillance.

Section 46-15-322, MCA (1991), sets forth the State's

statutory obligation of disclosure in a criminal case. Subsections

(1) and (2) of that statute provide:

(1) Upon request, the prosecutor shall make

available t o the defendant for examination and

reproduction the following material and information

within the prosecutor's possession or control:

(a) the names, addresses, and statements of all

persons whom the prosecutor may call as witnesses in the

case-in-chief;

(b) all written or oral statements of the defendant

and of any person who will be tried with the defendant:

(c) all written reports or statements of experts who

have personally examined the defendant or any evidence in

the particular case, together with the results of

physical examinations, scientific tests, experiments, or

comparisons;

(d) all papers, documents, photographs, or tangible

objects that the prosecutor may use at trial or that were

obtained from or purportedly belong to the defendant: and

(e) all material or information that tends to

mitigate or negate the defendant's guilt as to the

offense charged or that would tend to reduce the

defendant's potential sentence.

(2) At the same time, the prosecutor shall inform

the defendant of, and make available to the defendant for

examination and reproduction, any written or recorded

7
material or information within the prosecutor's control

regarding:

(a) whether there has been any electronic

surveillance of any conversations to which the defendant

was a party;

(b) whether an investigative subpoena has been

executed in connection with the case; and

(c) whether the case has involved an informant and,

if so, the informant's identity if the defendant is

entitled to know either or both of these facts under Rule

502 of the Montana Rules of Evidence.

In interpreting § 46-15-322 and 5 46-15-327, MCA, (the latter

statute requiring continuing disclosure), this Court has stated

that while the prosecution is under an initial and continuing

obligation to disclose all pertinent information it may gather,

" . . . the statutes have no effect until the State actually develops

the knowledge of a specific act, fact, or information that

exculpates the defendant." State v. Shaver (1988), 233 Mont. 438,

447, 760 P.2d 1230, 1235.

The State admits that it failed to turn over the evidence of

the prior contact to the defense prior to trial and acknowledges

that this failure to disclose appears to be a violation of § 46-15-

322(2) (a), MCA. The State argues, however, that the police may

have been confused as to whether they had to turn over reports of

all electronic surveillance regardless of whether the evidence was

inculpatory or exculpatory. The State maintains that our holding

in Shaver indicates the State has no duty to disclose the types of

information set forth in § 46-15-322, MCA, until the State actually

develops exculpatory information. The State maintains that this

aspect of the prosecution's statutory disclosure obligation needs

clarification. We agree that clarification is necessary.

8
The statute at issue is clear in its requirements. While §

46-15-322(1)(e), MCA, imposes a mandatory duty on the prosecution

to disclose all material and information that might be generically

referred to as "exculpatory,11 subsections (l)(a) through (d) and

(2) (a) through i'c), of that statute contain no such limiting

language. We hold that, under the plain language of subsections

(l)(a) through (d) and (2)(a) through (c), the prosecution is

obligated to disclose u material and information listed whether

inculpatorv or exculpatorv. As to subsections (l)(a) through (d)

and (2)(a) through (c), § 46-15-322, MCA, contemplates full

disclosure of all of the material and information listed within the

prosecutor's possession and control. It is not up to the State or

its agents to determine whether any such material or information is

inculpatory or exculpatory; the legislature has left that decision

to the defendant. We therefore clarify Shaver and all other

decisions of this Court to the extent that any such cases indicate

a contrary rule.

In the instant case, the District Court denied Licht's motion

for a mistrial or new trial made at the end of the State's case-inchief without any evidence or information concerning the existence

or contents of the report. Following the verdict, the court again

denied the motion for a new trial. The court did so after only

hearing the representations made by the prosecution concerning the

contents of the report, as the defense did not pursue the failure

to disclose as a ground for a new trial at the March 15, 1993

hearing.

9
At this point in time we still do not know what is actually in

the report; it was not offered into evidence and no testimony was

presented concerning its contents. Moreover, we do not know why

the prosecution failed to disclose the report and prior contact --

whether such failure was negligent, intentional or by reason of

some misunderstanding of the disclosure requirements of the law.

Finally, Licht has failed to demonstrate how, if at all, his

defense was prejudiced by the prosecution's failure to disclose the

report and prior contact, except to argue that he might have been

able to use the report for an entrapment defense.

The law in Montana regarding the effect of the suppression of

or failure to disclose evidence by the prosecution is set forth in

State v. Craig (1976), 169 Mont. 150, 153, 545 P.2d 649, 651, and

is reiterated in State v. Patterson (1983), 203 Mont. 509, 512-13,

662 P.2d 291, 293. Suffice it to say that, notwithstanding the

statutory obligation of the State to disclose as set forth above,

not every suppression of evidence or failure to disclose will

necessarily mandate a new trial. While there may or may not have

been a violation of the defendant's due process rights by reason of

the State's failure to disclose the prior contact of Licht by the

Task Force, we cannot decide that issue nor will we presume

prejudice on the basis of the record before us.

At this juncture, we hold simply that the District Court erred

in denying the defendant's motions for mistrial and new trial

without having the actual report before it in evidence, without

reviewing the report, without testimony as to why the report was

10
not disclosed at the outset, and without finding, on the basis of

that evidence and record, that no due process right or defense of

the defendant was prejudiced by the State's failure to disclose the

report and the prior contact by the Task Force.

Accordingly, we reverse the District Court's denial of Licht's

motions for new trial and remand this case for a new hearing,

consistent with this opinion, on those motions.

II. SUFFICIENCY OF EVIDENCE

The second issue Licht raises on appeal concerns whether the

District Court erred in denying his motion to dismiss Count II

because, according to Licht, the State failed to prove with

sufficient evidence that he sold, bartered, exchanged, or gave away

marijuana to LaMere. Licht correctly states in his brief that the

State has the burden of proving each element of a crime beyond a

reasonable doubt. State v. Starr (1983), 204 Mont. 210, 214, 664

P.2d 893, 895. Licht contends that the facts presented at trial do

not establish the offense of criminal sale of dangerous drugs

beyond a reasonable doubt.

In support of his argument Licht notes the following: (1) none

of the officers actually witnessed Licht give LaMere marijuana, or

LaMere give Licht money: (2) LaMere testified that he found the

marijuana on the floor of the men's room in the Corner Bar, and did

not pay anyone for it; (3) Licht did not admit selling marijuana to

LaMere; and (4) LaMere had plenty of opportunity to get the

marijuana from any number of sources prior to and after the

officers saw Licht and LaMere talking outside the Corner Bar.

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Licht also notes that none of the officers were watching LaMere

after the exchange, as they all left to find Licht. In addition,

Officer Brewer testified that he saw LaMere leave the Corner Bar in

a brown Wagoneer which was driven by another individual.

When the issue on appeal is whether there was sufficient

evidence to support a jury verdict, the standard of review is

whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. State

v. Lyons (1992), 254 Mont. 360, 363, 838 P.2d 397, 399.

Section 45-9-101(l), MCA (1991), in pertinent part, defines

the offense of criminal sale of dangerous drugs as follows:

A person commits the offense of criminal sale of

dangerous drugs if he sells, barters, exchanges, gives

away, or offers to sell, barter, exchange, or give away

. . . any dangerous drug, as defined in 50-32-101.

Accordingly, the prosecution had to prove that LaMere received

the marijuana the officers found in his possession from Licht. At

trial the following evidence was presented to prove that Licht

committed the criminal sales charge set forth in Count II. Several

officers observed Licht enter the Corner Bar and then exit the

tavern with LaMere approximately one minute later. Deputy Marden

and Smith witnessed an exchange take place between LaMere and

Licht. Although neither Marden nor Smith observed what the two men

exchanged, Deputy Marden testified at trial that he saw LaMere put

the object he received from Licht into his right front pants'

pocket, the same pocket where the officers found the marijuana.

Marden also testified that the two men were acting suspiciously and

12
were looking around as if scanning the area.

It is well established that the resolution of factual matters

is for the jury, and if the verdict is supported by substantial

evidence this Court must affirm the decision. State v. Price

(1988), 234 Mont. 144, 148, 762 P.2d 232, 235. (Citations omitted).

The fact that the evidence presented was circumstantial does not

preclude a finding that Licht sold drugs to LaMere. State v. Lynn

(1990), 243 Mont. 430, 435, 795 P.2d 429, 433. We conclude that

the evidence presented, along with the fact that Licht was arrested

for selling marijuana to Doney on the same day as the transaction

with LaMere took place, provides substantial evidence upon which a

rational jury could have found Licht was guilty of all the

essential elements of the offense of criminal sale of dangerous

drugs.

REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS

CONSISTENT WITH THIS OPINION; AFFIRMED IN PART.

We Concur: