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: DistrictCourt of theNineteenthJudicial District, 

### In and for the County of Lincoln, The Honorable Robert S. Keller, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: 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

/ClerkJustice 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 inviolation 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 crimesor 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 theDistrictCourt err inadmitting opiniontestimony 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 Hewsonas a temporaryundercover 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 sellingHewsonmethamphetamine (hereinafter,crank) that evening, 2Hewson andWebbwere both at the LaCosshome onJune 27, 1988. Webb, Hewson, and LaCoss all agree that Hewson arrived first and that Webb and LaCossplayed cribbage for awhile afterhis 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 releasedhim on bond. This appeal followed.

I. Defendant maintains that theDistrictCourt erred inadmitting

"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 "othercrimes or acts" evidence forwhich no 

### Just notice was given. State 

### v. Just (1979), 184 Mont. 262, 602 P.2d 957. Wehave reviewed therecord: itdoesnot containan objection relating to other crimes or acts evidenceunder

## Just. Webb made a motion in limine on February 14, 1989, which objected to "any activity allegedly of the Defendant in thismatter before June 27,
31988. Themotion 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 sheassociatedwith knowndrug 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 irrelevantunder 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

4instructed 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 scrutinizedcloselytodeterminewhether it iscolored in such a way as to place guilt upon a defendant in furtherance of the witness's own interests. Webb contends that these instructionsare correct statementsof 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 instructionsand 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: INSTRUCTIONNO. 2



# ... In determining what the facts are in the case, it may be necessary for you to determinewhat weight should be given to the testimony of each witness. To do this you should carefully scrutinize all the testimony given, thecircumstancesunderwhich eachwitnesshas testified, and every matter 

### in evidence which tends to indicate whether awitness 

### isworthy of belief. 

### Youmay consider:



# ... 2. Any relationwhich each witness may bear to the State or to the Defendant, and the manner in which each witness might be affected by the verdict.
INSTRUCTIONNO. 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 5paid 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 fullyand fairlypresent theapplicablelaw, theywill be deemed tobe sufficient. State

### v. Goodwin (1991), 249 Mont. 1, 813 P.2d 953. The defense cannot insist that every nuance of its theory of the casebe given to the juryvia instructions. State

### v. Graves (1981), 191Mont. 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. Hewsontestifiedat somelengthregardingvarious other drug dealers in the Libby area and their possible connections to Webb. Hewson also testified that Webb frequented certain taverns whichwere knowntobe drughangouts and thatHewsonpassed Webb on his way to another drug deal at which he was told that the drug contact had just left. Hewson also testified that juvenileswere present at the aforementioned drug sale site. Defense counsel
6objected 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 thatthis lineof testimonywas irrelevantto 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 establishingVicki LaCoss asa drug userwho setup drug dealswith drug sellers,tohow Hewsonmet 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 greaterthananyprejudice toDefendant,especially in lightof the court's instruction that "mereproximity 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 "evidencehaving anytendencytomake 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 focalpoint of relevancy determinations is whether the evidence relates to a fact of consequence to a determination of the case. Evidence of

7matters 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 factsthat 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 tomake the existence of any of these factsmore or less probable 

### is relevant. Hewson's testimony regardingWebb's associatesand theirdrug related activities, the presence of juveniles at a drug sale site not at issue in this action, and placesWebb may have spenttime on occasion does not relate to and isnot 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 concludethat the testimony objected towas 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 otherdrug dealers, buyers, and transactions.

V.

8Defendant next maintains that the District Court erred in admitting opinion testimony regarding the credibility of an informant. LincolnCounty Sheriff's DepartmentDetectiveDonaldH. 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 objectsthatthistestimonyviolatesnumerousevidentiary 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 witnessmay be attacked 

### or supported by evidence in the form of opinion or reputation, but subjectto these limitations: (1)the evidencemay refer onlytocharacter fortruthfulnessoruntruthfulness,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 thatRule 608(a) allows opinion evidence in supportof the credibility of a witness only after thewitness' character for truthfulness has been attacked. Thus, the initial question 

### is whether Hewson's character was attackedby 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

9whether 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 trackmarks 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"attackhisveracity aspart 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 courtshave held that neither contradictory evidencenor extensivecross-examinationconstitutesanattackupon 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 invirtually every case. We are not prepared todo so. Therefore,we conclude that thedefensedid not attack Hewson's character for truthfulness.

10While the defense did not place Hewson's character for truthfulness in issue, the State did so. Hewson testified regarding his drug habit ondirect examinationby theprosecution. During cross-examination of the defendant, the State asked Webb: "In essenceyou 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. Ina child abuse case,an expertwitnesswas permitted to testify to the credibility of the alleged victim. We stated: The State, however,had opened the door to this line of questioningbybringing thematterup ondirect. Because Robby's credibility was not called into question by defendant,the District Court committed reversibleerror 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 questionsabouthisdruguseduringa 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 strongaccusationsofmisconductandbad characterwhich awitness' 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 11questioning 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 Statewas attempting tohide 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: itmaintains that its questionsregarding Hewson'sdrug use did not callhis truthfulness into issuewhile 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
12Hewson'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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