### No. 13269 INTHE SUPREME COURT OF THE STATE OF MONTANA 1976

STATE OF MONTANA, Plaintiff and R.espondent

# , -VS

# - JOHN 

### EUGENE HENDRICKS, Defendant and Appellant.

Appeal from: District Court of theFourth JudicialDistrict, Honorable E. 

### Gardner Brownlee, Judge presiding. Counsel of Record: 

### For Appellant: Stimatz and Engel, Butte, Montana Joseph C. 

### Engel, 

### 111argued, Butte, Montana For Respondent

### : Hon. Robert 

### Td. Woodahl, Attorney General, Helena,

Montana John North argued, Assistant Attorney General, Helena,

Montana Edward 

### L. Deschamps, 

### 111 County Attorney, Missoula,

Montana Edward McLean, Deputy County Attorney, argued, Missoula,

Montana

Submitted: September 

### 1, 1976 Decided:

## EjCTi. 

## 3 ;_,., 

### Filed: I.-,Mr. JusticeFrank I. Haswell delivered the Opinion of the Court

# . Defendant appeals from his conviction of theft, aggravated assault, and two counts of saleof dangerous drugs inthedistrict court, Missoula County. On June 5, 1975, Officer BillOlsen, of the Region One Anti-Drug Team, Missoula sheriff's office, and Keith Sorenson of the Glasgow police department, 

### metdefendant inMissoula. According toOlsen's testimony, Hendricks said he would sellhim 1,000 hits of speed. Olsen didn't have enough money,
so then Hendricks said he could get some cocaine. The officers did not have enough money for this either, soHendricks said he would get them some crystalmethamphetamine. Officer Olsen and defendant went toa Missoula bar where Hendricks entered and 

### returned. Hendricks then gave Olsen a paper packet containing powder inexchange for thirtydollars, representing it tobe crystalmethamphetamine. It

### was from this transaction thatone count of saleof dangerous drugs resulted. The powder later proved tobe caffeine, an uncontrolled substance. The second count of criminal saleof dangerous drugs

arose from an incident occurring inthe earlymorning hours of June 8, 1975. A couple of days after buying thepacket of powder, Officer Olsen and Hendricks encountered each other on the 

### street in Missoula. Hendricks asked the undercover officer if he had his money this 

### time. The officer answered that he did, but when he refused to show it Hendricks poked him with a knife, laterresulting inthe aggravated assault charge. Olsen then pulled his gun. Olsen testified that Hendricks, upon seeing the gun, ran from Olsen shouting "Don't shoot! 

## * * * Let's make a deal, 

## * * * I've got the dope. 

## * * *" After Hendricks produced two paper packets from the trunkof his car and handed them toOlsen, Olsen attempted toplace Hendricks under arrest. A scuffle and foot chase ensued. After Hendricks had been apprehended, Olsen returned tothe Hendricks'

car. A young woman passenger in the car was gone and the paper packets and knife could not be found. The theft charge resulted after Hendricks' brother-in

### lawreported topolice he had found 

### items inthe trunk of his

car that proved tobe stolen. Defendant presents two issues forreview: (1) Did the evidence introduced attrial support the convictions of two counts, sales of dangerous drugs, under section 54-132(a), 

### R.C.M. 1947? (2) Is 

### itmanifest error entitling defendant toa new 

### trial on allissues, when a brother-in-law of the trialjudge becomes a member of the jury? With respect to the firstissuedefendant argues the prosecution failed toprove Hendricks intended to 

### selldangerous drugs when the one packet contained caffeine and the contents of the other two packets were not recovered. Section 54-132(a), 

### R.C.M. 1947, provides: "A person commits the offense of a criminal sale of dangerous drugs if he 

### sells, barters, exchanges, 

## gives sell, barter, exchange or give away, manufactures,repares, cultivates, compounds orprocesses any dangerous drug 

### as defined in this act." (~mphasis added.) The two counts of the information by which defendant was charged inthe present case alleged defendant "offered to sell"dangerous drugs on June 5 and again on June 8, 1975. The jury was instructed as follows on thispoint: "You are instructed that if you find inyour deliberations that the defendant offered for sale what he believed tobe a dangerous drug, you must find him guilty irregardlessof whether or not the substance was infacta dangerous drug." This instruction statesessentiallywhat defendant arguesthe law tobe. Itsmeaning 

### is essentially the same asdefendant's offered instruction, but it ismore clearlyworded. Defendant's argument 

### ison a factual basis. Counsel argues that defendant knew the powder was not an illegal drug in spiteof what he may have represented the contents of the paper packets tobe when he sold them to the undercover officer. Counsel argues defendant's only intent was toobtainmoney. Such a factual determination was for thejury and 

### will not be setaside by this Court if there 

### is substantial evidence to support the verdict. We find there is substantial evidence tojustify the jury's verdict that defendant thought he was selling dangerous drugs on June 5 and June 8, 1975. On June 5, defendant obtained the substance from his source only seconds before he delivered 

### it toOfficer Olsen. He therefore did not have the opportunity to 

### test it. The substance in factlooked likecrystalmethamphetamine. Within a block of the point that defendant and Officer Olsen got inthe

car afterobtaining the substance, defendant insisted that Officer Olsen try some of it. Had defendant known that the substance

was not crystalmethamphetamine, it 

### is reasonable tobelieve, he would not have made such a request. The encounter on June 8 occurred by accident. Defendant

was headed southon Ryman Street and Officer Olsen was driving north. Defendant made a U-turn and drove up behind the officer. Had defendant thought that he had sold Officer Olsen caffeine and sugar on June 5, defendant would probably have attempted to avoid him by continuing south on Ryman Street. Defendant displayed the caution which is characteristic of one who deals indrugs. Hewanted to see Officer Olsen's money before allowing the officer to 

### see where he kept the drugs.

### One could certainly infer from this conduct that defendant was afraid that Olsen would seize the drugs and leave without paying. Defendant knifed the officer when he demanded to see the drugs first. If defendant thought that he had only worthless powder in the trunk, he would not have needed to be so cautious. Concerning the second issue,defendant's contention is that he was deprived of a fair trial by an impartial jury because the trial judge's brother-in-law served on the jury. Defendant alleges the prosecuting attorney, Ed McLean, asked the entire jury panel on voir direwhether any of them

were related to any of the court officials and none responded. McLean however, on oral argument,denied he asked the question. The juror in question stated under oath he would have made his relationship known if he had been asked, as he did in the form questionnaire sent to prospective jurors. Defendant's unsupported allegation to the contrary will not support his claim of erroneous answers on voir dire examination of this juror. Statev. Mont

# . , 545 P.2d 1070, 33 

### St.Rep. 95, 100, (1976). (Habeascorpus granted on other grounds, 33 

### St.Rep. 681.) There is no record of the voir dire examination before us. It is the practice in Missoula County to send a form questionnaire to prospective jurors as to their qualification for jury service. On this questionnaire, the juror in question indicated that the Hon. E. Gardner Brownlee, the trial judge in this case, was his brother-in-law. Defendantdid notmake timely objection on voir dire nor exercise his option to a preemptory challenge of this juror. Defendant has not shown authority for disqualification of this juror. Section 95-1909(d)(2), R.C.M. 1947, sets forth the grounds for challenge for cause. Relation to the trial judge

### is not one of the grounds aswas stated in Statev.'- 

# -;CIm-un at



### " 

## * * * unless the juror fallswithin one of the categories of section 95-1909, he 

### willnot be removed for cause without a showing of partiality. 

## * * *" There is no showing of partiality here. Defendant also contends that the trialjudge spoke with his brother-in-law on thejury during the course of the trial resulting inprejudice. The most that can be made of this allegation is that thejuror may have commented tothejudge thatjury service

### was a demanding and tiring experience. If defendant seriouslycontends therewas a discussion of the

### meritsof the case, 

### we find no indication it occurred. Rather, the record indicates the juror and the judge conducted themselves with honor and propriety with a highest regard for fairness to the accused. Defendant has shown neither error nor prejudice, therefore

### we affirm the convictions.

Justice