No. 91-101 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsRICK WEBB, 

a/k/a FREDRICK ROD WEBB, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert S. Keller, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James A. Manley; Manley Law Offices, PolSon, 

Montana. 

For Respondent: 

Hon. Marc Racicot, Attorney General; Carol E. 

Schmidt, Assistant Attorney General, Helena, 

Montana 

Scott B. Spencer, Lincoln County Attorney, Libby, 

Montana 

Submitted on Briefs: September 5, 1991 

Decided: March 19, 1992 

/Clerk 
Justice Karla M. Gray delivered the Opinion of the Court. 

Defendant Frederick Rod Webb appeals the judgment of the 

Nineteenth Judicial District, Lincoln County, Montana, convicting 

him of criminal sale of dangerous drugs in violation of § 45-9-101, 

MCA. This is Webb's second appeal to this Court. We reversed and 

remanded the case on appeal from the first trial. State v. Webb 

(1990), 243 Mont. 368, 792 P.2d 1097. Again, we reverse and 

remand. 

The dispositive issues on appeal, as restated by this Court, 

are: 

1.) Did the District Court err in admitting "other crimes or 

acts" evidence? 

2.) Did the District Court err in admitting certain 

impeachment testimony of a defense witness? 

3.) Did the District Court properly instruct the jury? 

4.) Did the District Court err in admitting evidence of drug 

transactions involving other individuals? 

5.) Did the District Court err in admitting opinion testimony 

regarding the credibility of an informant? 

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

Department conducted a drug investigation in the Libby area using 

Mike Hewson as a temporary undercover agent. This case arises from 

a drug transaction alleged by Hewson to have occurred on the night 

of June 27, 1988, at the home of Vicki LaCoss. The State charged 

Webb with selling Hewson methamphetamine (hereinafter, crank) that 

evening, 

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Hewson and Webb were both at the LaCoss home on June 27, 1988. 

Webb, Hewson, and LaCoss all agree that Hewson arrived first and 

that Webb and LaCoss played cribbage for awhile after his arrival. 

They disagree as to what else happened. 

Hewson claims Webb sold him crank, some of which he gave to 

LaCoss for her participation in arranging the deal. LaCoss and 

Webb contend that Webb did not sell the crank to Hewson, but that 

Hewson did give some crank to LaCoss. 

The second trial of this action was held October 16, 17, and 

18, 1990. The jury found Webb guilty of the offense of criminal 

sale of dangerous drugs. The District Court sentenced Webb on 

October 22, 1990, and released him on bond. This appeal followed. 

I. 

Defendant maintains that the District Court erred in admitting 

"other crimes or acts" evidence. Hewson testified, on direct 

examination, that he passed Webb on his way into the site of an 

earlier alleged drug sale and that a person in the house referred 

to the drug contact who had just left. Webb argues that this 

testimony constitutes "other crimes or acts" evidence for which no 

Just notice was given. State v. Just (1979), 184 Mont. 262, 602 

P.2d 957. 

We have reviewed the record: it does not contain an objection 

relating to other crimes or acts evidence under Just. Webb made a 

motion in limine on February 14, 1989, which objected to "any 

activity allegedly of the Defendant in this matter before June 27, 

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1988. The motion objected to an alleged erroneous identification 

of Webb as more prejudicial than probative; the motion did not 

center on "other crimes or acts." Errors not raised at trial 

cannot be raised on appeal for the first time. State v. Phelps 

(1985), 215 Mont. 217, 696 P.2d 447; State v. Howie (1987), 228 

Mont. 497, 744 P.2d 156. 

11. 

Defendant also argues that the District Court erred in 

admitting certain impeachment testimony of a defense witness. 

LaCoss was an important defense witness from whom the State 

elicited testimony that she frequented a bar identified as a place 

where drug dealers congregated, that she sold drugs to Hewson on 

another occasion, that she associated with known drug dealers, that 

she was involved in other drug transactions, and that she was an 

addict at one time. Webb contends that this evidence violates 

Rules 601-613, M.R.Evid., is irrelevant under Rule 402, M.R.Evid., 

and constitutes an improper attack on character or improper 

evidence of other crimes or acts under Rule 404, M.R.Evid. 

The trial transcript reveals that no objections were made 

during the referenced portions of LaCoss' testimony. Therefore, 

based upon the authority cited above, we will not address this 

second issue. 

111. 

Defendant next maintains that the District Court improperly 

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instructed the jury by refusing two of his proposed instructions: 

Instruction #1: A drug addict informants' [sic] 

testimony 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. 

Instruction #2: 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. 

Webb contends that these instructions are correct statements of law 

as set forth in State v. Gommenginger (1990), 242 Mont. 265, 790 

P.2d 455, and that one of them should have been given. 

The State argues that the court, county attorney and defense 

counsel discussed these two instructions and the county attorney's 

concern was that the instructions were too narrow to apply to 

defense witness LaCoss. On the basis of the discussion, the court 

gave the following instructions: 

INSTRUCTION NO. 2 

... 

In determining what the facts are in the case, it 

may be necessary for you to determine what weight should 

be given to the testimony of each witness. To do this 

you should carefully scrutinize all the testimony given, 

the circumstances under which each witness has testified, 

and every matter in evidence which tends to indicate 

whether a witness is worthy of belief. You may consider: 

... 

2. Any relation which each witness may bear to the 

State or to the Defendant, and the manner in which each 

witness might be affected by the verdict. 

INSTRUCTION NO. 3 

You have already been instructed that you may 

consider the manner in which each witness might be 

affected by the verdict. The fact that a witness is a 

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paid informant or that a witness is a drug addict are 

factors to be considered by you in the context that the 

witness might be affected by the verdict. 

District courts have broad discretion in formulating jury 

instructions. This Court reviews jury instructions as a whole. 

State v. Azure (1979), 181 Mont. 47, 591 P.2d 1125. If the 

instructions fully and fairly present the applicable law, they will 

be deemed to be sufficient. State v. Goodwin (1991), 249 Mont. 1, 

813 P.2d 953. The defense cannot insist that every nuance of its 

theory of the case be given to the jury via instructions. State v. 

Graves (1981), 191 Mont. 81, 622 P.2d 203. 

We have reviewed the jury instructions. While they do not 

contain all the nuances of defendant's proposed instructions, the 

instructions given accurately reflect applicable law and are, 

therefore, sufficient. We hold that the District Court properly 

instructed the jury. 

IV . 

Defendant argues that the District Court erred in admitting 

evidence of drug transactions involving other individuals and 

locations. Hewson testified at some length regarding various other 

drug dealers in the Libby area and their possible connections to 

Webb. Hewson also testified that Webb frequented certain taverns 

which were known to be drug hangouts and that Hewson passed Webb on 

his way to another drug deal at which he was told that the drug 

contact had just left. Hewson also testified that juveniles were 

present at the aforementioned drug sale site. Defense counsel 

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objected repeatedly to the relevancy of this line of testimony and 

was repeatedly overruled. He was then granted a continuing 

relevancy objection to the entire line of inquiry. Webb argues 

that this line of testimony was irrelevant to any issue in the case 

and prejudicial in allowing the jury to associate him with a drugselling ring and to find him guilty by association. 

The State argues that the testimony was relevant to 

establishing Vicki LaCoss as a drug user who set up drug deals with 

drug sellers, to how Hewson met Webb, and to why Hewson was at the 

LaCoss home on June 27, 1988, at the same time as Webb. The State 

further argues that the probative value of this testimony is far 

greater than any prejudice to Defendant, especially in light of the 

court's instruction that "mere proximity to a drug, mere presence, 

or mere association with the person who does sell the drug is 

insufficient alone to support finding of sales." District courts 

have broad discretion to determine whether evidence is relevant. 

State v. Sadowski (1991), 247 Mont. 63, 805 P.2d 537. Relevancy 

determinations by the district court will be overturned by this 

Court only where the district court has abused its discretion. 

State v. Oman (1985), 218 Mont. 260, 707 P.2d 1117. 

Relevant evidence is "evidence having any tendency to make the 

existence of any fact that is of consequence to the determination 

of the action more probable or less probable than it would be 

without the evidence." Rule 401, M.R.Evid. Thus, the focal point 

of relevancy determinations is whether the evidence relates to a 

fact of consequence to a determination of the case. Evidence of 

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matters not pertaining to those at issue is irrelevant and 

inadmissible. Rule 402, M.R.Evid. 

Webb was charged with ttcriminal sale of dangerous drugs" in 

violation of 5 45-9-101, MCA. The facts that are "of consequence" 

in the case at bar are whether Webb and Hewson were at the LaCoss 

residence in Libby, Montana, on June 27, 1988, and whether Webb 

sold Hewson crank at that time and place. Evidence having a 

tendency to make the existence of any of these facts more or less 

probable is relevant. 

Hewson's testimony regarding Webb's associates and their drug 

related activities, the presence of juveniles at a drug sale site 

not at issue in this action, and places Webb may have spent time on 

occasion does not relate to and is not probative of any "fact that 

is of consequence" in this case. When a defendant is put on trial 

for one offense, he should be convicted, if at all, by evidence 

which shows that he is guilty of that offense alone. State v. 

Jackson (1979), 180 Mont. 195, 589 P.2d 1009. 

We conclude that the testimony objected to was irrelevant and 

inadmissible under Rule 402, M.R.Evid. Further, given the 

prejudicial nature of the evidence vis-a-vis the explosiveness of 

the issue of drugs in today's society, the court's error was not 

harmless. Therefore, we hold that the District Court abused its 

discretion and committed reversible error in admitting Hewson's 

testimony concerning other drug dealers, buyers, and transactions. 

V. 

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Defendant next maintains that the District Court erred in 

admitting opinion testimony regarding the credibility of an 

informant. Lincoln County Sheriff's Department Detective Donald H. 

Bernall testified on behalf of the State during rebuttal. He was 

asked: 

Q: Okay. What is your opinion as to Mike 

Hewson's truthfulness or what is your opinion 

as to his truthfulness when he is discussing 

the drug sales that he is undercover on? 

A: That he was telling the truth. 

Webb objects that this testimony violates numerous evidentiary 

rules, including Rule 608(a), M.R.Evid., which reads: 

Evidence of character and conduct of witness. 

(a) Opinion and reputation evidence of character. The 

credibility of a witness may be attacked or supported by 

evidence in the form of opinion or reputation, but 

subject to these limitations: (1) the evidence may refer 

only to character for truthfulness or untruthfulness, and 

(2) evidence of truthful character is admissible only 

after the character of the witness for truthfulness has 

been attacked by opinion or reputation evidence or 

otherwise. 

It is clear that Rule 608(a) allows opinion evidence in support of 

the credibility of a witness only after the witness' character for 

truthfulness has been attacked. Thus, the initial question is 

whether Hewson's character was attacked by the defense before the 

State rehabilitated him with opinion testimony on rebuttal. 

Webb asserts that he did not attack Hewson's character for 

truthfulness. Webb contends that it was the State which put 

Hewson's character into evidence by having him admit, on direct 

examination during the State's case-in-chief, that he was a drug 

addict and by its cross-examination of Webb himself when it asked 

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whether Webb's testimony essentially came down to Mike Hewson 

lying, and Webb responded "That is correct." 

The State contends that Hewson's character for truthfulness 

was attacked on numerous occasions in testimony elicited by the 

defense, not in the form of opinion or reputation, but "otherwise" 

under Rule 608(a), M.R.Evid. These attacks included testimony by 

LaCoss that Hewson had track marks on his arms and was acting in a 

bizarre manner on the night of June 27, 1988, and Hewson's 

responses on cross-examination regarding his drug of choice and 

with whom he dealt when buying drugs. The State argues that any 

testimony relating to Hewson's use of drugs constituted an attack 

on his character for truthfulness. 

A complete review of the record reveals that the defense did 

not offer opinion or reputation evidence about Hewson's character 

for truthfulness or "otherwise" attack his veracity as part of its 

own case. It is true that defense witnesses disputed Hewson's 

version of the events of June 27 and offered contradictory 

testimony. But other courts have held that neither contradictory 

evidence nor extensive cross-examination constitutes an attack upon 

a witness' character for truth and veracity. State v. Deach 

(Wash.Ct.App. 1985), 699 P.2d 811; United States v. Jackson (5th 

Cir. 1979), 588 F.2d 1046, &. denied, 442 U.S. 941 (1979). We 

agree: to conclude otherwise would result in admitting opinion 

testimony regarding veracity in virtually every case. We are not 

prepared to do so. Therefore, we conclude that the defense did not 

attack Hewson's character for truthfulness. 

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While the defense did not place Hewson's character for 

truthfulness in issue, the State did so. Hewson testified 

regarding his drug habit on direct examination by the prosecution. 

During cross-examination of the defendant, the State asked Webb: 

"In essence you are saying that Hewson is lying?" Webb answered: 

"That is correct." Having put Hewson's truthfulness at issue 

twice, the State then offered opinion testimony that he was 

truthful. We recently ruled that the State cannot itself open the 

door for opinion testimony regarding the truthfulness of its own 

witness. In a child abuse case, an expert witness was permitted to 

testify to the credibility of the alleged victim. We stated: 

The State, however, had opened the door to this line of 

questioning by bringing the matter up on direct. Because 

Robby's credibility was not called into question by 

defendant, the District Court committed reversible error 

by allowing the psychotherapist to comment directly on 

his trustworthiness. 

State v. Harris (1991), 247 Mont. 405, 410, 808 P.2d 453, 456. 

The State also argues that defense counsel asked Hewson 

questions about his drug use during a rtslashingrf cross-examination, 

thus enabling the State to present evidence to rehabilitate its 

witness. United States v. Lechoco (D.C. Cir. 1976), 542 F.2d 84; 

Medical Therapy Sciences, Inc. (2d Cir. 1978), 583 F.2d 36. A 

"slashing1' cross-examination includes questioning which carries 

strong accusations of misconduct and bad character which a witness' 

denial will not remove from the jury's mind. E. Cleary, 3 

McCormick on Evidence, 549 (1984). In Medical TheraDv Sciences, 

the court admitted rehabilitating character evidence because the 

cross-examination of the witness included "sharp" and accusatory 

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questioning about prior convictions which were predicated on 

activities characterized as fraudulent. 

A review of the record in the instant case reflects that 

defense counsel asked Hewson three questions involving Hewson's 

drug use and drug dealers with whom Hewson dealt. Hewson did not 

deny the drug use. The total cross-examination preceding and 

prefatory to the specific events of June 27, 1988, covers only one 

and one-half pages. The questions were neither sharp nor 

accusatory, and do not constitute a slashing cross-examination of 

Hewson. 

The State contends that Hewson's testimony on direct 

examination concerning his drug use did not put his character for 

truth at issue but was predicated on the State's right to 

anticipate defense impeachment so that a jury would not surmise 

that the State was attempting to hide information. Medical Therapv 

Sciences, 583 F.2d at 39. The State is correct that it could 

anticipate impeachment testimony. But here, the State takes an 

approach that can only be characterized as of the "have its cake 

and eat it too'' variety: it maintains that its questions regarding 

Hewson's drug use did not call his truthfulness into issue while at 

the same time contending that evidence regarding drug use elicited 

by the defense inherently puts a person's character for 

truthfulness at issue. 

The State, having opened the door to Hewson's veracity, was 

then allowed to put the full weight of Detective Bernall's drug 

enforcement experience behind his opinion testimony regarding 

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Hewson's credibility. Under the facts of this case and the 

strictures of Rule 608(a), M.R.Evid., we hold that the District 

Court erred in admitting this opinion testimony. 

Reversed and remanded. 

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