NO. 93-650 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

TIMOTHY MAGUIRE HATFIELD, 

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: 

Ann C. German, Libby, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, John 

Paulson, Assistant Attorney General, Helena, 

Montana; Scott B. Spencer, Lincoln County Attorney, 

Libby, Montana 

J FB Submitted on Briefs: October 20, 1994 . L -... 

JAN 1 8 1995 Decided: January 18, 1995 

Filed: 
Justice James C. Nelson delivered the Opinion of the Court. 

Appellant Timothy Maguire Hatfield appeals from an order of 

the Nineteenth Judicial District Court, Lincoln County, denying his 

motion for a new trial. We affirm. 

The issues on appeal are: 

1. Whether the District Court abused its discretion in 

denying Hatfield's motion for a new trial. 

2. Whether cumulative error warrants a new trial. 

This case was previously before us in State v. Hatfield 

(1993), 256 Mont. 340, 846 P.2d 1025 (Hatfield I) , wherein Hatfield 

appealed his convictions of the felony offenses of criminal sale of 

dangerous drugs and conspiracy to sell dangerous drugs. In 

Hatfield I, we upheld the conviction for the criminal sale of 

dangerous drugs, and reversed the conviction for conspiracy to sell 

dangerous drugs. 

The facts giving rise to the conviction for criminal sale of 

dangerous drugs are that Hatfield sold a small amount of marijuana 

to Hal Turner. Turner had been hired by the Lincoln County 

Sheriff's Department as an undercover agent to buy drugs from 

anyone who would sell them. On the morning of December 30, 1990, 

Hatfield and another individual, Robert Sprague, went to Turner's 

apartment, where according to Turner, Hatfield sold him a small 

amount of marijuana for $30. It is undisputed that, at the time 

of the sale, the Lincoln County Sheriff' s Off ice was unaware of the 

transaction and was not supervising Turner; nor was Turner wearing 

a body wire. After the sale, Turner contacted Detective Klint 
Gassett, informed him of the transaction and turned the marijuana 

over to him. Equipped with an electronic monitor, Turner went to 

Hatfield's residence that evening in an effort to get a taped 

conversation with Hatfield concerning the earlier drug transaction. 

Hatf ield denies selling the marijuana to Turner, and testified 

at trial that Sprague was the person who sold the marijuana to 

Turner. Hatfield claimed that Turner gave the $30 to him, rather 

than Sprague, because Sprague owed Hatfield money. On January 30, 

1992, a jury found Hatfield guilty of one count of sale of criminal 

sale of dangerous drugs, and one count of conspiracy to sell 

dangerous drugs. Hatfield appealed his conviction to this Court 

and as stated above, we affirmed the conviction for the criminal 

sale of dangerous drugs, reversed the conspiracy conviction, and 

remanded the case to the District Court for resentencing. Hatfield 

I, 846 P.2d at 1025. 

We issued the Remittitur on March 1, 1993. Thereafter, on 

March 8, 1993, Hatfield filed a pro se motion for a new trial 

alleging among other things, that the State failed to disclose the 

employment contract between Turner and the Lincoln County Sheriff s 

Office. Counsel was appointed for Hatfield on October 4, 1993, and 

a hearing on his motion for a new trial was held on November 22, 

1993. The parties stipulated to the following facts in a document 

entitled "Stipulation Regarding Discovery of Contract of Undercover 

Agency," which states: 

Defendant has moved the court for an Order granting 

to him a new trial due to newly discovered evidence, 

discovered following his first trial, to wit, the written 

contract of employment between the Lincoln County 
Sheriff's Office and the undercover agent, Hal Turner. 

It is stipulated that defendant's first attorney, Don 

Shaffer, did not request the production of that contract 

from the State when he was representing defendant. The 

reason for not making that request was that, due to 

previous rulings (in other cases in which Mr. Shaf fer was 

defending persons accused of selling drugs to undercover 

agents working for LCSO) , Mr. Shaffer believed that such 

a request would be futile. 

At the hearing, the State argued that Turner's employment 

contract was not "newly discovered evidenceu because the defense 

knew Turner had an employment contract with the Lincoln County 

Sheriff's Office, and in fact at trial defense counsel cross 

examined Turner about the terms of the contract. After considering 

the arguments of counsel, the District Court denied the motion for 

a new trial at the conclusion of the hearing, and this appeal 

followed. 

DISCUSSION 

1. NEW TRIAL 

Hatfield raises three arguments in support of his motion for 

a new trial. First, he maintains that the State's "suppression of 

the employment contract" was a violation of its duty to disclose 

exculpatory evidence, that the suppression prejudiced Hatfield, and 

that he is therefore entitled to a new trial. Second, Hatfield 

contends that Turner violated the terms of the contract, and the 

State's knowledge of, and acquiescence in, this violation was 

government conduct so outrageous that it violated his due process 

rights. Third, he alleges that he did not discover the existence 

of Turner's employment contract with the Lincoln County Sheriff's 

Office until after trial, and therefore he is entitled to a new 
trial based on this newly discovered evidence. 

STANDARD OF REVIEW 

A district court may grant a criminal defendant's motion for 

a new trial "if required in the interest of justice. " Section 46- 

16-702, MCA. The decision whether to grant or deny a motion for a 

new trial rests within the sound discretion of the trial court, and 

will not be overturned on appeal unless an abuse of discretion is 

shown. State v. Haskins (1992), 255 Mont. 202, 210-11, 841 P.2d 

542, 547, citing State v. DeMers (1988), 234 Mont. 273, 278, 762 

P.2d 860, 863-64. 

A. EXCULPATORY EVIDENCE 

Hatfield argues that the employment contract was exculpatory 

evidence, and therefore, the State had an affirmative duty to 

disclose the contract according to the rule set forth in Brady v. 

Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and 

according to the Staters statutory disclosure obligations set forth 

in § 46-15-322, MCA (1989). 

According to Brady, "the suppression by the prosecution of 

evidence favorable to an accused upon request violates due process 

where the evidence is material either to guilt or to punishment, 

irrespective of the good faith or bad faith of the prosecution." 

Bradv, 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218. In 

addition, §§ 46-15-322 (1) (e) , and 46-15-321 (2), MCA (1989)~ provide 

that the State has an affirmative duty to disclose, upon request, 

Itall material or information that tends to mitigate or negate the 

accused's guilt as to the offense charged or that would tend to 
reduce his punishment therefor." 

Therefore, according to Brady, and §§ 46-15-322(1) (e), and 

46-15-321(2), MCA (1989), the State would only have an affirmative 

duty to disclose the contract if: (a) the defense requested the 

information; Section 46-15-321(2), MCA (1989); and (b) if the 

contract could be generically referred to Irexculpatory evidence," - 

- which we have previously defined as evidence which tends to clear 

the accused of guilt and vitiate the conviction. State v. 

Patterson (1983), 203 Mont. 509, 513, 662 P.2d 291, 293; State v. 

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

Initially, we note that while the defense admitted in the 

llStipulation Regarding Discovery of Contract of Undercover AgencyIr1 

that it did not request production of the employment contract, the 

State affirmatively represented at the omnibus hearing that it had 

provided Hatfield with everything which would tend to negate guilt, 

or tend to reduce his punishment. Therefore, the issue of whether 

Hatfield actually requested the contract is irrelevant. 

Hatfield alleges the employment contract was exculpatory 

evidence because it would have evidenced Turner's violation of the 

contract's terms. According to Hatfield, if he had been able to 

impeach Turner regarding his alleged violation of the contract, he 

could have shown that Turner's account of the sale was "false or 

susceptible to falsity," thereby supporting Hatfield's allegation 

of innocence. 

The employment contract provisions which Hatfield claims 

Turner breached provide that Turner was "not to handle any drugs at 
any time unless specifically directed to do so by the investigating 

officer, " and that he was "not to participate in any investigations 

or any criminal activities unless the investigation is being 

directly supervised by a member of the Lincoln County Sheriff's 

Department." Therefore, according to Hatfield, Turner violated the 

employment contract because the Lincoln County Sheriff's Office was 

not supervising Turner at the time of the sale, and because Turner 

possessed and used marijuana during the sale. Hatfield concludes 

that if he had known of the contract's terms before the trial, he 

could have presented evidence of Turner's alleged violation of the 

contract. 

However, the record does not support Hatfield's argument. 

Turner had been directed to purchase drugs from any person who 

would sell them to him. Turner testified that he was not under the 

immediate supervision of the sheriff's office and was not wearing 

a body wire at the time of the sale because Hatfield and Sprague 

showed up unexpectedly at his apartment. Turner also testified he 

contacted Detective Gassett after the sale, and arranged to turn 

the marijuana over to him. Later that day, Turner went to 

Hatfield's residence equipped with a body wire, to verify the sale. 

In addition, Hatfield was allowed to present his version of events 

concerning the sale, and the jury apparently believed the State's 

account. Accordingly, we conclude that the employment contract 

would not have tended to negate Hatfield's guilt or vitiated his 

conviction. Therefore the State had no duty to affirmatively 

disclose its existence under the Bradv rule or under § 46-15- 
322 (1) (e) , MCA (1989) . 

Finally, we note that the State had no obligation to disclose 

the employment contract under the other provisions of § 46-15-322, 

MCA (1989), according to our recent opinion in State v. Licht 

(1994), 879 P.2d 670, 51 St.Rep. 686. Although Licht addressed § 

46-15-322, MCA, according to its terms under the 1991 Montana Code 

Annotated, and the 1989 statute applies in this case, the 1991 

amendments to § 46-15-322, MCA, did not substantially change the 

statute. Therefore, Lichtls reasoning is relevant here. 

In Licht, we held that the State has the obligation to 

disclose all evidence whether inculpatory or exculpatory if listed 

in subsections (1) (a) through (d) and (2) (a) through (c), of that 

statute, reasoning that it is not up to the State to determine 

whether any such information is inculpatory or exculpatory. Licht, 

879 P.2d at 673-74. Here the employment contract is not the type 

of material or information listed in § 46-15-322, MCA, subsections 

(1) (a) through (d) and (2) (a) through (c) , and accordingly, there 

was no affirmative duty on the part of the State to provide the 

contract to the defense under those subsections. 

B. OUTRAGEOUS GOVERNMENT CONDUCT 

Hatfield also contends that the State's knowledge of, and 

acquiescence in, Turner's alleged violation of the employment 

contract, is outrageous government conduct which resulted in a 

denial of Hatfield's due process rights. This Court has previously 

recognized that illegal conduct of law enforcement may violate the 

due process rights of a defendant. Haskins, 841 P.2d at 546. 
However, having concluded that Turner did not violate the terms of 

his employment contract, it can hardly be argued that he acted 

illegally. Therefore, we conclude that this argument is without 

merit. 

C. NEWLY DISCOVERED EVIDENCE 

Hatfield maintains that he did not know of the employment 

contract's existence until after trial, and that if he had been 

able to present evidence concerning its terms, and Turner1 s alleged 

violation of those terms, it would have affected the outcome of the 

trial. 

This Court analyzes motions for a new trial on the basis of 

newly discovered evidence according to a six-part test set forth in 

State v. Greeno (1959)' 135 Mont. 580, 586, 342 P.2d 1052, 1055, 

and discussed more recently in Matter of J.R.T. (1993), 258 Mont. 

520, 522, 853 P.2d 710, 711. We need to consider only the first 

factor: the evidence must have come to the knowledge of the 

applicant since the trial. We conclude that Hatfield was aware of 

the employment contract prior to trial and therefore his argument 

is without merit. 

We base our conclusion primarily on the llStipulation Regarding 

Discovery of Contract of Undercover Agency," which stated that 

Hatfield's first attorney, Donald Shaffer, did not request the 

document because he thought it would be futile to do so. In 

addition, it appears that Hatfield's counsel at the trial level, 

David Harman, was also aware of the terms of the employment 

contract, as he cross examined Turner concerning the compensation 
terms of his employment, the fact that Turner used marijuana during 

the investigation, and that Turner did not have an electronic 

transmitter or body wire at the time Hatfield sold him the 

marijuana . 

Accordingly, it is apparent that Hatfield had knowledge of the 

employment contract at the time of the trial, and therefore he 

cannot now complain that it is newly discovered evidence. State v. 

Morris (1988), 230 Mont. 311, 320-21, 749 P.2d 1379, 1384-85. 

Having determined that Hatfield was aware of the employment 

contract before trial, that the State had no affirmative duty to 

disclose the contract, and that the contract was not exculpatory in 

any event, we thereby hold that the District Court did not abuse 

its discretion in denying Hatfield's motion for a new trial. 

11. CUMULATIVE ERROR 

Hatfield argues in passing, that cumulative error occurred 

because the jury heard evidence of the conspiracy charge, and that 

conviction was reversed in Hatfield I, and because the State failed 

to disclose the employment contract. According to Hatfield, this 

cumulative error entitles him to a new trial. However, given our 

conclusion that the State had no affirmative duty to disclose the 

employment contract, we are not persuaded by Hatfield's cursory 

argument and hold that he is not entitled to a new trial on the 

basis of cumulative error. 

AFFIRMED. 
We Concur: 

/ 

p~hief Justice