No. 89-400 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDAVID GREGORY GOMMENGINGER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert Keller, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Stephen J. Nardi; Sherlock & Nardi, Kalispell, 

Montana 

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C'.J . For Respondent: 

-I Hon. Marc Racicot, Attorney General, Helena, Montana 

Patricia Schaeffer, Asst. Atty. General, Helena I- I J Scott B. Spencer, County Attorney, Libby, Montana 

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Filed: 

Submitted on Briefs: Jan. 25, 1990 

. . :-- Decided: Mar. 29, 1990 

Clerk 
Justice R. C. McDonough delivered the Opinion of the Court. 

Defendant David G. Gomrnenginger appeals the judgment of 

the Nineteenth Judicial District, Lincoln County, Montana, 

convicting him of three counts of criminal sale of dangerous 

drugs in violation of § 45-9-101, MCA. We reverse and remand 

the case for a new trial. 

The Defendant raises the following issues on appeal: 

(1) Did the District Court err in admitting evidence 

allegedly regarding the Defendant's character in the State's 

case-in-chief? 

(2) Did the District Court err in limiting the scope of 

the cross-examination of the State's chief witness? 

(3) Was there sufficient evidence to support the convictions of criminal sale of dangerous drugs on Counts I11 

and IV? 

During the summer of 1988, the Lincoln County Sheriff's 

Department conducted an undercover drug investigation of 

various persons in the area around Libby, Montana. Detective 

Don Bernall hired an undercover agent, Mike Hewson (the 

informant), to facilitate the investigation. The informant 

worked from June 7 to August 28, 1988 under the supervision 

of Bernall and Officer Clint Gassett. Officer Bernall testified that the informant's salary was not contingent upon 

obtaining arrests and convictions; he was paid a flat rate 
for his services and was provided with expense money, including money to buy drugs. 

In the State's case-in-chief, Rernall testified that 

the informant was given a list of potential people to infiltrate that were drug dealers in the community and that the 

Defendant's name was on that list. The informant also testified in the State's case-in-chief that he WLS supplied with a 

list of potential drug dealers, which included the Defendant. 

The informant then began his investigation by circulating in 

the bars. He first dealt with a man named Baldwin who then 

referred him to a woman named Mandy Curtiss as a source for 

narcotics. Curtiss allegedly became the go between in a 

series of deals where the informant allegedly bought marijuana, "crank," and cocaine from the Defendant and other persons 

under investigation. 

As a result of the investigation, an information was 

filed in the District Court on September 15, 1988 charging 

the Defendant with the following offenses: (1) count I, 

criminal sale of dangerous druqs, a felony, on July 9, 1988; 

(2) count 11, criminal sale of dangerous drugs, a felony, or 

in the alternative, conspiracy to commit or accountability 

for the criminal sale of dangerous drugs, a felony, on July 

10, 1988; (3) count 111, criminal sale of dangerous drugs, a 

felony, on July 16, 1988; (4) count IV, criminal sale of 

dangerous drugs, a felony, or in the alternative, 
accountability for the criminal sale of dangerous drugs, a 

felony, on August 3, 1988, all alleged to have been committed 

in Lincoln County, Montana. 

One of Defendant's theories in defense of the charges 

was that the informant was a drug dependent individual who 

was double dealing with the Lincoln County Sheriff's Department. Defendant alleges that the informant had his own 

extensive drug habit that he was supporting while employed by 

the Sheriff's Department and that he supplied drugs to the 

Sheriff's office and alleged that they were from the Defendant, whereas in reality he was supplying the drugs himself. 

This enabled the informant to sustain his habit and avoid the 

risk of criminal prosecution. 

The State offered testimony tending to establish the 

necessity of narcotic use by an informant in such clandestine 

operations as means of maintaining an effective cover. In 

his testimony, the informant stated that he used drugs as 

part of his cover. In a pretrial statement, Officer Rernall 

also stated that the informant showed signs of drug dependence, and that he "used a druqger to catch a drugger. " On 

one occasion, the informant's testimony indicates that he 

supplied and used cocaine with Curtiss, for the alleged 

purpose of maintaining his cover. On this occasion, the 

informant took out two hypodermic needles, allegedly in his 
possession as part of his cover, and directly injected 

cocaine intravenously with Curtiss. 

Rased on such evidence, the Defendant sought to prove 

that the informant's need for drugs to support his habit was 

the motivation to use his cover as a law enforcement agent to 

sell and use drugs and still portray himself as an effective 

informant. The Defendant also sought to introduce evidence 

of the informant's drug use in the investigations of other 

suspects in the Libby area and his drug use prior to being 

employed as an agent. However, the State's motion in limine 

to exclude evidence of the informant's involvement with drugs 

and drug dependency was granted as to any instances beyond 

the scope of the res gestae of the charges against this particular defendant. 

At trial the jury found the Defendant guilty of criminal 

sale of dangerous drugs on counts I, 111, and IV of the 

information and not guilty on count 11. His wife later plead 

guilty to the criminal sale of dangerous drugs that occurred 

under count IV. Defendant maintains that her testimony 

absolves the Defendant of any responsibility for that transaction. Defendant has no prior felony convictions or 

criminal record except for traffic violations. The Defendant 

was sentenced to 13 years imprisonment in the Montana State 

Prison and fined $2500.00. His subsequent motion for new 

trial was denied, and he now appeals the denial of that 
motion and the sufficiency of the evidence as to counts III 

and IV, raising the issues enumerated earlier. 

Defendant maintains that the trial court erred in admitting evidence of the Defendant's bad character during the 

State's case-in-chief. On direct examination Officer 

Bernall testified that the informant was provided with a list 

of "known" drug dealers in the Libby community to infiltrate 

and that the Defendant was on that list. On redirect examination Bernall further testified: 

(by Mr. Spencer): Partly, what are you also 

relying on? 

(by Officer Bernall) : My personal knowledge. 

Of what? 

Mr. Gommenginger. 

And where did you get that personal knowledge 

from? 

From confidential informants and other 

officers. 

And what is the information? 

That he is a cocaine dealer. ---- 

The trial court ruled, and the State maintains, that defense 

counsel opened up the door for the admission of this testimony with the following statement made during opening: 

To begin with, we have an informant who is 

initially before he begins working told by the 

detective here, Mr. Bernall, that Greg is someone 

in whom they are interested in getting a conviction 

for a drug sale. 

So the informant immediately has incentive to 

pursue my client. . . . 
We disagree. Rule 405(a), M.R.Evid. provides that proof 

of the Defendant's character may be made by testimony as to 

reputation or in the form of an opinion. Thus, not only is 

Officer Rernall's testimony hearsay, it contains elements of 

both opinion and reputation evidence of the Defendant's bad 

character as relating to his disposition to commit the crime 

with which he was charged. - See State v. Alberts (1969), 80 

N.M. 472, 457 P.2d 991, 993; State v. Ramirez Enriquez 

(1987), 153 Ariz. 433, 737 P.2d 407, 408. Rule 404(a) (I), 

M.R.Evid., only allows the prosecution to introduce such 

evidence of an accused's bad character as proof that he acted 

in conformity therewith to rebut defense evidence of the 

accused's good character offered to prove the same. Here, 

defense counsel's opening statement merely stated that law 

enforcement told the informant that they were interested in 

getting a conviction against the Defendant for a drug sale. 

The opening statement did not even deny that the Defendant 

was a drug dealer. This statement did not put the Defendant's good character or reputation in the community into 

issue so as to open the door to allow the State to present 

character evidence in its case-in-chief. -- See e.g. State v. 

Atlas (1986), 224 Mont. 92, 728 P.2d 421 (allowing the State 

to introduce videotaped evidence in its case-in-chief of 

Defendant's former lover to refute Defendant's opening state- 
ment that portrayed him as a loving husband devastated by the 

death of his wife.) 

The testimony of Officer Bernall amounted to evidence of 

the Defendant's bad character as a drug dealer that would 

invite the jury to infer the Defendant's guilt based on his 

alleged reputation as a drug dealer in the Libby community. 

The Defendant did not put his character into issue, and 

admission of such evidence constitutes reversible error. - See 

Michelson v. United States (1948), 335 U.S. 469, 69 Sect. 

The Defendant also argues that the District Court erred 

in granting the State's motion in limine restricting the 

cross-examination of the State's chief witness concerning the 

informant's drug use to the res gestae of the crimes charged. 

The Defendant argues that this effectively denied him his 

fundamental right of confrontation guaranteed by the Sixth 

Amendment of the United States Constitution. 

The State contends that cross-examination was properly 

limited pursuant to their motion in limine and Rule 608, 

M.R.Evid. The Rule, which is nearly identical to its federal 

counterpart, provides in pertinent part: 

Rule 608. Evidence of character and conduct of 

witness. 

. . . 

(b) Specific instances of conduct. Specific 

instances of the conduct of a witness, for the 
purpose of attacking or supporting his credibility, 

may not be proved by extrinsic evidence. They may, 

however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired 

into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness. . . . 

Rule 608, M.R.Evid. Under Rule 608, reference to specific 

instances of conduct for the purpose of proving a witness's 

character for truthfulness or untruthfulness is never permitted on direct examination of another witness. State v. 

McLean (1978) 179 Mont. 178, 185, 587 P.2d 20, 25. Specific 

instances of conduct may, however, be introduced through 

cross-examination if the trial court in its discretion determines that the evidence is probative of the witness's credibility. Rule 608, M.R.Evid., McLean, supra. 

Rule 608 (b) is intended to regulate only the use of 

specific instances of conduct offered to prove that the 

witness is generally an untruthful person unworthy of belief. 

On the other hand, bias or motive of a witness to testify 

falsely is not a collateral issue because it bears directly 

on the issue of the defendant's guilt; thus, extrinsic evidence is admissible to prove that the witness has a motive to 

testify falsely. United States v. James (2d Cir. 1979), 609 

F.2d 36, 46; Johnson v. Brewer (8th Cir. 1975), 521 F.2d 556; 

United States v. Kinnard (D.C.Cir. 1972), 465 ~.2d 566, 

573-574; IJnited States v. Barrett (D.Me. 19841, 598 F.Supp. 

469, 475, aff'd (1st Cir. 1985), 766 F.2d 609, 615. See, 
- also, - e.g. State v. Dougherty (1924), 71 Mont. 265, 229 P. 

735; State v. Carns (1959), 136 Mont. 126, 345 P.2d 735- 

Furthermore, an accused's right to demonstrate the bias 

or motive of prosecution witnesses is guaranteed by the Sixth 

Amendment right to confront witnesses. Alford 77. United 

States (1931), 282 U.S. 687, 75 L.Ed. 624, 51 S.Ct. 218; 

Greene v. McElroy, (1959), 360 U.S. 474, 79 S.Ct. 1400, 3 

L.Ed.2d 1377; Davis v. Alaska (1974), 415 U.S. 308, 94 

S.Ct. 1105, 39 L.Ed.2d 347. In -- Alford, the Supreme Court 

held that it was an abuse of discretion and prejudicial error 

to "cut off - in limine all inquiry on a subject with respect 

to which the defense was entitled to a reasonable cross 

examination." 282 U.S. at 694, 51 S.Ct. at 220, 75 L.Ed. at 

629. In Davis, the trial court improperly restricted the 

Defendant's attempt to demonstrate bias or motive of the 

State's witness through cross-examination: 

. . . [wlhile counsel was permitted to ask Green 

whether he was biased, counsel was unable to make a 

record from which to argue why Green might have 

been biased or otherwise lacked that degree of 

impartiality expected of a witness at trial. On 

the basis of the limited cross-examination that was 

permitted, the jury might well have thought that 

defense counsel was engaged in a speculative and 

baseless line of attack on the credibility of an 

apparently blameless witness. . . . 

94 S.Ct. at 1111. Here, limitation of cross-examination 

could also result in the jury viewing the credibility of the 

informant in a vacuum. 
Courts have long recognized that the testimony of informants should be scrutinized closely to determine "whether it 

is colored in such a way as to place guilt upon a defendant 

in furtherance of the witness's own interests." Fletcher v. 

United States (D.C.Cir. 1946), 158 F.2d 321, 322. Such 

scrutiny is particularly important in narcotics cases involving informant's that are habitual drug users: 

Law enforcement officials are open about their use 

of informants, but there is less discussion about 

why their informer's perform. . . . . . . the addict is only valuable if he produces fruitful tips or arranges sales which lead to 

prosecutions. The addict-turned-informer may 

therefore be desperate not only to produce results 

for the police, hut also to avoid retribution from 

powerful figures in the drug trade. This desperation may well lead him to lie, and increases the 

danger that he will misrepresent the involvement of 

those whom he fingers. ... . . . The Government's use of infiltrator's 

and informants to combat the drug trade may well be 

a necessity, and it is not unconstitutional -- per se. 

It has been established that their testimony may he 

used to obtain convictions, even if it is 

uncorroborated. But when they do testify at trial, 

the court must exercise special care to protect the 

defendant's right to the "established safeguards of 

the AngloArnerican legal systemn-- cross-examination 

and proper instructions to the jury. 

Kinnard, 465 F.2d at 571-572 [citations omitted]. In 

Kinnard, the informant's testimony implicating the defendants 

was uncorroborated. Defense counsel attempted to establish 

the informant's addiction through extrinsic evidence of the 

needle marks on the informant's arms as relevant to the 
frequency of his drug use. The Circuit Court of Appeals held 

that the trial court erred in refusing to allow this 

evidence. 

Here, the informant's testimony is uncorraborated as to 

counts I and 111, and uncorraborated as to the charge of 

direct sale under count IV. And while defense counsel was 

permitted to inquire about the informant's needle marks in 

this case, this inquiry was abruptly terminated at the point 

that such evidence could indicate drug usage beyond the res 

gestae, that is beyond the incident of intraveneous drug use 

with Curtiss that was allegedly part of his cover. All other 

inquiry into the informant's alleged drug habits was also 

limited to the res qestae pursuant to the State's motion, 

thus the prosecution was able to maintain or allude that all 

of the informant's drug use was merely part of his cover. 

Because of this limitation, the defense was effectively 

precluded from inquiring into whether the informant was drug 

dependent or addicted and whether such dependence gave him a 

motive to testify falsely. 

Generally, it is within the district court's discretion 

to exercise reasonable control over the mode and order of 

interrogating witnesses and presenting evidence so as to (1) 

make the interrogation and presentation effective for the 

ascertainment of the truth, (2) avoid needless consumption of 

time, and (3) protect witnesses from harrassment or undue 
embarrassment. Rule 611(a), M.R.~vid. Also, evidence that 

is relevant may nevertheless be excluded by the district 

court if its probative value is substantially outweighed by 

the danqer of unfair prejudice, confusion of the issues, 

misleading the jury, or considerations of undue delay, waste 

of time, or needless presentation of cumulative evidence. 

Rule 403, M.R.Evid. However, the trial court's discretion in 

exercising control and excluding evidence of a witness's bias 

or motive to testify falsely becomes operative only after the 

constitutionally required threshold level of inquiry has been 

afforded the Defendant. United States v. Tracey (1st Cir. 

1982), 675 F.2d 433, 437. Therefore, upon remand for new 

trial, the Defendant should be afforded latitude in cross-examination, and be allowed to introduce extrinsic evidence 

regarding the informant's alleged habitual drug use as relevant to his motive to testify falsely, if denied by the 

informant subject to the usual limitations of Rules 403 and 

As his final issue, the Defendant argues that the evidence was insufficient to support a conviction on counts 111. 

and IV. The standard of review of sufficiency of the 

evidence 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. Krum,(Mont. 1989), 777 P.2d 889, 

891, 46 St.Rep. 1334, 1336; State v. Kutnyak (1984), 211 

Mont. 155, 174, 685 P.2d 901, 910. 

With respect to the charges under count IV for direct 

sale and accountability for sale of dangerous drugs, the 

State's evidence tended to establish the following facts: On 

August 3, 1988, Curtiss went to the informant's house and 

asked him if he wanted to buy some "crank," a form of methamphetamine. She attempted to set up a deal through the Defendant's wife. The Defendant's wife was unable to get any 

"crank," hut she told the informant that she could get him 

some cocaine. After some further arrangements, the informant 

gave the Defendant's wife $100.00 and arranged for a delivery 

of cocaine at his house. The informant testified that during 

these arrangements he saw the Defendant's wife talking with 

the Defendant. 

Later, that day, as the informant was talking with 

Officer Bernall over the phone, he saw the Defendant and his 

wife drive up in front of the informant's home. Officers 

Bernall and Gassett later observed the Defendant's vehicle 

parked in the informant's driveway. The Defendant and his 

wife came in, sat on the couch, and the Defendant's wife 

handed the informant a gram of cocaine which he placed on the 

coffee table. She then asked if she could have some for 

setting up the deal. The informant agreed and gave her a 
mirror and a razor blade with which she cut three lines of 

cocaine. The informant testified that the Defendant and his 

wife then each snorted a line but he did not. Officer 

Bernall testified that through the informant's body wire he 

heard the informant tell the others that he wasn't going to 

snort a line because he didn't do it that way. The Defendant 

and his wife left and the informant delivered the remaining 

cocaine to officer Bernall. 

The informant's testimony constitutes direct evidence 

that the Defendant aided or abetted his wife in the commission of the sale. - See S 45-2-302 (3), MCA (~ccountability) ; 

s 45-9-101, MCA (Criminal sale of dangerous drugs.) The 

Defendant drove his wife to the informant's house and was 

present during the transaction. At no point did he attempt 

to terminate his efforts to facilitate the sale. - See S 

45-2-302(3) (b), MCA. The evidence on count IV is at least 

sufficient for a rational trier of fact to find the essential 

elements of the crime of accountability for the criminal sale 

of dangerous drugs beyond a reasonable doubt. Sections 

45-2-302, 45-9-101, MCA; Krum, 777 P.2d at 891; Kutnyak, 685 

With respect to count 111, alleging criminal sale of 

dangerous drugs, the informant's testimony was offered to 

establish the following facts: On July 16th, 1988, the 

informant met with Curtiss in order to set up a cocaine buy. 
No police surveillance was used. The informant and Curtiss, 

along with a friend of Curtiss, eventually went to Harold's 

Tavern, the Defendant's place of business, where they saw a 

vehicle, supplied by Defendant's employer and generally used 

by the Defendant, parked outside. Curtiss and friend went 

into the bar and returned approximately fifteen minutes later 

with a "bindle" (approximately one gram) of cocaine which 

they gave to the informant. The informant testified that 

Curtiss stated the cocaine was from the Defendant. He also 

testified that he gave Curtiss $100.00, which she then took 

into the bar, after taking out some cocaine for setting up 

the deal. The informant then went home and delivered the 

cocaine to the Sheriff's Department about two and one-half 

hours after the transaction. 

Curtiss' testimony regarding the essential elements of 

the offense charged under count 111 wholly contradicts the 

testimony of the informant. She testified that during this 

incident the informant had several bindles of cocaine in his 

possession and that she and a friend entered the bar at his 

request looking for someone to purchase cocaine from the 

informant. She testified that the informant suggested that 

they see if the Defendant was interested in making a purchase. When she failed to find any prospective purchasers, 

she then went back outside the bar, returned the cocaine to 
the informant, took a small amount for her efforts, and 

returned to the bar. 

The only uncontradicted evidence offered through the 

informant's testimony is that the vehicle the Defendant 

usually drove was parked outside the tavern. The informant 

did not observe the alleged sale or the Defendant's presence 

at the tavern, nor did he have any contact with the Defendant 

on that day. The only evidence implicating the Defendant is 

the statement of Curtiss allegedly made to the informant 

that the Defendant was the source of the cocaine the informant alleges she had just delivered. 

The Defendant contends that the alleged statement of 

Curtiss as testified to by the Defendant was inadmissible due 

to lack of foundation for introduction of a co-conspirator's 

statement, under Rule 801 (d) (2) (E) , M.R.Evid. The State 

argues that the necessary foundation establishing the existence of a conspiracy was laid and therefore the out of court 

statement of Curtiss fits under the coconspirator exclusion 

to the hearsay rule. - See Rule 801(d) (2) (E), M.R.Evid.; State 

v. Stever (1987), 225 Mont. 336, 732 P.2d 853. 

To qualify for a hearsay exclusion under Stever, the 

statement must have been made in the course of and in 

furtherance of the conspiracy by a coconspirator of the 

defendant. Rule 801(d) (2) (E) , M.R.Evid., 732 P.2d at 857. 

Furthermore, a separate confrontation clause analysis must 
be satisfied in order to guarantee the reliability of the 

challenged coconspirator statements. Stever, 732 P.2d at 859. 

Relevant criteria to be considered are (1) the declarant's 

knowledge of the identity and role of the defendant in the 

crime; (2) the possibility that the declarant was relying 

upon faulty recollection; and (3) the circumstances under 

which the statements were made, possibly indicating that the 

declarant might be lying about the defendant's involvement in 

the conspiracy; and (4) whether the testimony is so "crucial" 

to the prosecution or "devastating" to the defense as to 

require reversal of the conviction. Stever, 732 P.2d at 859; 

State v. Fitzpatrick (1977), 174 Mont. 186, 569 P.2d 383, 

392; United States v. Snow (9th Cir. 1975), 521 F.2d 730, 

However, we need not determine if the statement is 

excluded from hearsay under the co-conspirator rule in this 

case, for even if properly admitted, the statement is not 

sufficient to support the conviction on count 111. It is the 

same type of statement admitted upon a proper foundation 

under Rule 801 (d) (1) (A) , M. R. Evid. , which provides: 

(d) Statements which are not hearsay. A 

statement is not hearsay if: 

(1 Prior statement by witness. The 

- declarant testifies at --- the trial or hearing and is 

subject to cross-examination concerninq the statement, and the statement is (A) inconsistent with 

his testimony. . . . 
Rule 801 (d) (1) (A), M.R.Evid. -- See e.g., State v. Fitzpatrick 

(1980), 186 Mont. 187, 196, 606 P.2d 1343, 1348; -- see also 

State v. Charlo (1987), 226 Mont. 213, 215, 735 ~.2d 278, 

279. 

Rule 801 (d) (1) (A) , theoretically enables the State to 

make out a prima facie case even if its only evidence is a 

previous inconsistent statement of this type. However, if 

the only evidence of some essential fact is such a previous 

statement, the party's case fails. United States v. Orrico 

(6th Cir. 1979), 599 F.2d 113, 118, citing 4 Weinstein's 

Evidence 801-74. It is doubtful that in any but the most 

unusual cases, a prior inconsistent statement alone will 

suffice to support a conviction since it is unlikely that a 

rational trier of fact could find the essential elements of 

the crime charged beyond a reasonable doubt. Orrico, 599 

F.2d at 118; -- see also - Krum 46 St.Rep. at 1336; Kutnyak, 685 

P.2d at 910. 

Here, the alleged extra-judicial statement of Curtiss 

lacks any indicia of reliability, particularly since Curtiss 

has also been charged for similar offenses arising out of the 

same series of transactions. An unreliable prior 

inconsistent statement should not be the sole, substantive 

evidence upon which a jury should be allowed to base guilt. 

State v. White Water (1981), 634 P.2d 636, 638-39. The 

evidence is insufficient to sustain a conviction on count 
111, and warranted a verdict directed in favor of the Defendant on that count. White Water, 634 P.2d at 639; State v. 

Perez (1952), 126 Mont. 15, 243 P.2d 309. 

The charges under count I11 of the information are 

hereby dismissed, the judgment of the District Court is 

reversed and the cause is remanded for a new trial. 

REVERSED and REMANDED for further proceedings consistent 

with this opinion. 

We Concur: /7-