No. 13887 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978

STATE OF MONTANA, Plaintiff and Respondent,-vsTERRANCEALAN PETKO, Defendant and Appellant.

Appeal from: District Court of the Third Judicial District, Honorable Edward Dussault, Judge presiding. Counsel of Record: For Appellant: Edward Yelsa argued, Anaconda, Montana For Respondent: Hon. Mike Greeley,Attorney General, Helena, Montana Charles R. Anderson, argued,Assistant Attorney General,

Helena, Montana John Radonich, County Attorney, Anaconda, Montana

Submitted: June 5, 1978

Filed: 

### 3ui3 

## 1373

ClerkMr. JusticeGene B. Daly delivered the Opinion of the Court:

On January 6, 1977 defendant Terrance Alan Petko was arrested and subsequently charged in the District Court, Deer Lodge County, with two counts: Felony possession of marijuana and possession with intent to sell. The second count was subsequently dropped during trial. The case was tried to a jury,

defendant was found guilty and given a deferred imposition of sentence under the condition thathe pay $500within sixmonths. From this sentence defendant appeals and alleges six specifications of error: 1. Whether thewarrantless arrest of defendant was lawful? 

### 2. Whether the conviction should be reversed because evidence which was viewed by thejury and commented on by witnesses

was subsequently suppressed by the trialjudge? 3. Whether the fact that defendant never entered a formal plea of not guilty is a jurisdictional defect warranting a new trial? 

### 4. Whether the state's expert could properly testify that the evidence seizedwas marijuana? 5. Whether itwas error for the District Court to refuse to give defendant's proposed instructions 

### 7 and 19? 6. Whether a fine of $500 payable within sixmonths 

### is a proper condition pursuant to a deferred imposition of sentence? The events leading to thewarrantless arrest of defendant Petko, were: Officers Bernard May and Kichard Ivankovich were driving south on Maple Street inAnaconda atapproximately 11:30 p.m., Jaunuary 6, 1977. Maple Streetwas well lit by street lights. The officerswere traveling atapproximately 10 to 15miles per hour.In front of 508 Maple the officers observed two persons approaching a blue Rambler automobile. One person was tall, slender, had shoulder lengthhair and was wearing a darkblue coat. The other person was shorter and wore 

### a lighter colored coat. The shorter of the individuals was carrying a large grocery sack and acted

nervous and peculiar atthe officers drove by. The officers continued to observe the two and saw the shorter man place the grocery sack inthe streetbehind the sheel of a truck parked on Maple Street. Then both individuals hurriedly got into a Rambler automobile and left in a northerly direction ata high rate of speed. The officers retrieved the abandoned sack. Inside the sack they found 21 cellophane bags containing a substance which appeared tobe marijuana and a metric scale. The officers then attempted to find the Rambler automobile but were unsuccessful. After radioing the city police and the highway patrol for assistance the officers returned tothe vicinity of 508 Maple and parked near the alley between Maple and Elm. Approximately fifteen or twenty minutes after the initialencounter with the two individuals, the officers observed defendant coming down the alleybehind 508 Maple carrying

a large grocery sack. Defendant was tall, had a slenderbuild and was wearing the same color coat as the person seen in front of 508 Maple. The officersbelieved him tobe the same person they had

seenwhen the.first sack of marijuana was abandoned on Maple Street. When the officers entered the alley defendant started to run, jumped a fence and ran across ElmStreet. As the officers pursued they identified themselves and Officer Ivankovich fired

a warning shot in the air. Defendant slipped, fellto the ground and was apprehended by Officer May. The sack found inthe possession of defendant atthe time of his arrest revealed 

### 24 cellophane bags and one large plastic sackwhich contained a substance that appeared tobe marijuana.Chemical analysis subsequently disclosed the first grocery sack contained 530 grams of marijuana and the second grocery sack found inpossession of defendant contained 858 grans of marijuana. A searchwas conducted of defendant's car and hishouse at508 Maple but the evidence seized thereinwas suppressed on motion of defendant. Defendant was charged with two counts: 

### 1. Felony possession of dangerous drugs under section 54-133, R.C.M. 1947. 2. Criminal possession of dangerous drugs with intent to sellpursuant to section 54-133.1, R.C.M. 1947. Following the District Court's suppression of the marijuana contained inthe firstgrocery sack found in the street the proseuction dismissed the second count since section 54-133.1 requires one kilogram or more. Thereafter thejury was admonished todisregard the firstgrocery sack of marijuana and to consider only the firstcount of felony possession, based upon the second grocery sack of marijuana found inthe possession of defendant. Defendant's conviction for possession of the second grocery sack containing 858 grams of marijuana which was taken from defendant's possession atthe time of his arrest 

### is the subject of this appeal. InIssueNo. 

### 1defendant contends the arrestwas illegal and therefore the search and seizure incident to the arrestwas also illegal and the admission of the fruits of the search attrial constituted reversible error. The criteria for testing the sufficiency of a warrantless arrest, as inthis case, was recently statedby this Court in Statev. Lenon, (1977), Mont

# . ,570 P.2d 901, 34 St.Rep. 1153, 1156, quoting from Statev. Hill, (1976), Mont

# . -9 550 P.2d 390, 33 St. Rep. 496: "'Probable cause to arrestwithout a warrant exists where the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information are sufficient inthemselves towarrant a man of reasonable caution in thebelief that an offense has been or 

### isbeing committed."' The facts and circumstances within the officers' personal knowledge atthe time of defendant's arrestwere: a) Two individuals were seen emerging from 508 Maple Street at 11:30 p.m.; b) Maple Streetwas illuminatedby street lights; c) The two individuals were one tallman, with a slender build, shoulder lengthhair and a dark blue coat, and a shorter

man with a light colored coat; d) The two men acted nervous and suspicious when the officers drove by, and the shorterman hurriedly placed a grocery bag which he was carryingbehind the wheel of a Datsun pickup, and both men jumped into a Rambler automobile and leftata high rate of speed; e) The officers retrieved the abandoned grocery bag and found 21 cellophane bags containing a substance believed tobe marijuana and a metric scale; f) Both officerswere experienced and trained inthe detection of marijuana; g) After an unsuccessful search for the Rambler automobile the officers returned to the vicinity of 508 Maple and fifteen or twenty minutes after their first encounter, they saw defendant walking down the alleybehind 508Maple, carrying a grocery bag similar to the one previously abandoned on Maple Street;h) Defendant met the description of the taller of the two individuals who abandoned the marijuana found on Maple Street. He appeared tothe officers tobe the same individual; and i) Upon seeing the officers defendant attempted to escape, and continued to do so even though the officers' identified themselves tohim. These facts and circumstances would justify a man of reasonable caution tobelieve that an offense has been or was being committed and therewas sufficient probable cause to arrest defendant. Defendant's arrestwas based upon probable cause and therefore a lawful arrest. The seizure of the grocery sack in his possession and inplain view was made pursuant to a valid lawful arrest. The District Court properly denied the motion to suppress this evidence. Regarding IssueNo. 2, the trial court reversed its ruling

on the state's exhibits which consisted of the contents of the firstgrocery bag abandoned on Maple Street and this evidence was shown to thejury and commented upon by witnesses prior to 

### its exclusion. During the time the court delayed ruling upon the admissibility of the exhibits, the bags of marijuana and the metric scalewere displayed before thejury and commented upon by Officer May, Officer Ivankovich and the forensic chemist, Arnold Melnikoff

# . Officer Ivankovich testified atlength on the finding of the evidence, the contents of the bag, and how the scalewas used toweigh fine weights. The scalewas attributed ashaving come out of thehouse of Terrance Petko at

### 508 Maple Street. The question was asked Officer Ivankovich

# - "~ould thisbe something that would be used by somebody who would be packaging in the form of lids?" Officer Ivankovich answered "Yes".

### 530 grams of marijuana and a weight scale, similar toones typically used forweighing marijuana for salewas displayed to thejury and commented on by statewitnesses. When the trialjudge decided tosuppress the above evidence he admonished thejury to disregard the firstgrocery sack of marijuana and to consider only the firstcount, felony possession of marijuana based upon the second grocery sack of marijuana found indefendant's possession. It is apparent the trialcourt committed errorby allowing thejury toview the evidence and permit the witnesses to comment upon it. However, we must examine allof the circumstances surrounding the error and determine if the defendant's right to a fair trialwas substantially prejudiced and therefore entitlehim to a new trial. The District Court did reserve its ruling on the state's exhibits which consisted of the contents of the firstgrocerybag abandoned on Maple Street. This evidence was shown to thejury and commented upon by witnesses prior to 

### its exclusion. Defendant was originallycharged with two counts: felony possession and possession with intent to sell. When the District Court suppressed the marijuana contained in the firstgrocery bag found by the officers on Maple Street, the possession with intent to sellwas dismissed. The conviction on appeal 

### is felony possession, which results from the possession of marijuana inexcess of 

### 60 grams. The second grocery bag, which was in the defendant's possession atthe time of his arrest, contained 858 grams of marijuana! Certainly thejury could not ignore this evidence regardless of viewing the original grocery bag and its contents. If thiswas

a borderline case as to the amount possessed or as topossession, then defendant may have a legitimate argument. But in light of the abundance of evidence presented against him on the felony possessioncharge, there 

### is littlepersuasion inthe argument that defendant 

### is entitled toa new trial. Statev. Bradford, (1978), Mont

# . 35 St. Rep. Issue 3. It appears that the formal entry of a plea by the defendant was never completed. Defendant contends this oversight

on the part of the District Court requires a reversal of his conviction even though defendant was represented by counset a t a l l times, was informed of the charges against him and tried by a jury of his peers. This contention 

### is answered by section 95-1608, R.C.M. 1947, which provides: ''No irregularity in the arraignment which does not affect the substantial rights of the defendant shall affect the validity of any proceeding inthe cause if the defendant pleads to the charge or proceeds to trial without objecting to such irregularity." (Emphasis supplied.) The Revised Commission Comment to section 95-1608 states: "The real question inallcriminal cases on appeal 

### iswhether the substantialrights of the defendant have been adversely affected. The purpose of this section 

### is toprevent reversalwhere the court has strayed from the procedure set forth, but the failure has not hindered the defense. "The burden isupon the defendant to object, if any irregularity inconnection with the arraignment 

### isgoing to affecthis defense. This does not override any of the defendant's substantial constitutional rights even though not objected to." The defendant did not object to any irregularitybefore proceeding to trial and we find no prejudice arising from this - irregularity. Issue 4. Defendant argues the court erred inallowing expert testimony as tothe substance found inthe grocery bags being marijuana. He argues this testimony embraced an ultimate issue tobe decided by thejury. There isno dispute thatMr. Melnikoff was qualified asan expert in his fieldof forensicchemistry and was testifying as an expert witness when he stated that in his mind he had no doubt the evidence seized was marijuana. This was his opinion based on the testshe ran on the substance seized and such testimony was properly received. Rule 704, Montana Rules of Evidence, specifically states: "Testimony inthe form of an opinion or inference otherwise admissible 

### isnot objectionable because it embraces an ultimate issue tobe decided by the trier of fact.'I Though the Montana Rules of Evidence were not ineffect atthe time of this trial Rule 704 

### ismerely a restatement of and 

### isnot intended to change existingMontana law. As Commission Comment to Rule 704 states: 

# "** * Its affect is to specifically abolish the rule against opinions on ultimate issues of fact, not currently followed inMontana. Therefore, this rule 

### is consistent with existingMontana law. Kelly v. John R. Daily Co., 56 Mont. 63,79, 181P. 326 (1919); Statev. Shannon, 95 Mont. 280, 286, 26 P.2d 360 (1933); Statev. Campbell, 146Mont. 251, 258, 405 P.2d 978 (1965); Rude v. Neal, 165Mont. 520, 525, 530 P.2d 428 (1974); and McGuire v. Nelson, 167Mont. 188, 536 P.2d 768, (1975) .'I As this Court stated inMcGuire v. Nelson, (1975), 167Mont. 188, 200, 536 P.2d 768, in rejecting the test of whether the opinion invades the province of thejury: "The true testwould seem tobe whether the subject 

### is sufficiently complex so as tobe susceptible to opinion _evidence,and whether the witness 

### isproperly qualified togive his opinion." Here the proper identification of marijuana requires chemical testing conducted by a qualified person, and Arnold Melnikoff was properly qualified togive such an opinion. Issue 5. Defendant contends the court erred innot giving hisproposed instructions, number 

### 7 and number 19. Defendant's proposed instructionnumber 

### 7 reads:

### "You may not find the defendant guilty as charged unlessyouhave first found that, in addition to the other elements of the crime charged, that said marijuana admitted in evidencehereinwould produce a hallucinogenic effect on a person, and this must be concluded by youbeyond a reasonabledoubt

# ." ~efendant'sproposed instructionnumber 19 reads: "The termDangerous Drugmeans any depressant, stimulant, hallucinogenic,or narcotic drug. "A hallucinogenic drug is a drug which produces hallucinations, that is sensory perceptions not foundedupon subjective reality." Defendant was convicted of felony possession of dangerous drugs pursuant to section 54-133,R.C.M. 1947. Section 54-133 prohibits the possession of any dangerous drug, as defined in action 54-301,R.C.M. 1947. Section 54-301(5) defines "Dangerous drug1'as any drug substance,or immediate precursor in Schedules 

### I through

### V. Schedule I, found in section 54-305, lists marijuana

as a dangerousdrug. Marijuana is grouped with hallucinogenic drugs,but this does not call for the trier of fact to make a specific finding

as to its hallucinogenic capabilities. The legislaturehas made that determination. The determination for the trier of fact is whether the substance introduced at trial is in fact marijuana, as defined by section 54-301(16), which states: "Marijuana (marihuana) means allplant material from the genus cannabis containing tetrahydrocannabinal (THC) or seeds of the genus capable of germination." The presence of THC 

### is essential and this the reason for and the necessity of chemicalanalysis. The jury is not required to find that marijuana admitted into evidence is hallucinogenic but only that itmeets the definition of section 54-301(16). The District Court's InstructionNo. 

### 8 fully explained the elements of this offense.Therefore, the District Court properly denied the defendant's proposed instructions requiring thejury to find that the marijuana would produce an hallucinogenic effect and defining the term hallucinogenic. Issue 

### 6. Whether the District Court committed error in imposing a fineof $500, payable within sixmonths afterMay 31, 1977, after defendant was found guilty of criminal possession of dangerous drugs and the court deferred the imposition of sentence. We hold the imposition of a $500 fine or payment as 

### a condition of probation after deferred imposition of sentence to be a nullity and of no force or effect and that the same be vacated and set aside to conformwith thisCourt's Opinion inStatev. Merlin Babbit

## , (1978), Mont

# . -9 574 P.2d 998, 35 St.Rep. 154. The judgment of the District Court inallother respects 

### is affirmed.

Justice We Concur:

Chief Justice