No. 12395 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

STATE OF MONTANA, Plaintiff and Respondent,

-VS

## - DOMINIC D. LaCARIO,Defendant and Appellant.

Appeal from: District Court of the Seventeenth Judicial District Honorable Thomas Dignan, ~udge presiding. Counsel of Record: For Appellant: Leonard H. Langen argued, Glasgow, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana J. C. Weingartner argued, Assistant Attorney General,

Helena,Montana Gordon T. White, County Attorney, argued, Glasgow,

Montana

- - Submitted: September 25, 1973

Decided:
,. 

### ,?R': ,? 13,i joPER CURIAM: Defendant Dominic D. LaCario was convicted of two counts of theunlawful sale of dangerous drugs inthe district court of Valley County. The two counts related to sellingLSD toBradly and Nendy Rasmussen on April 18, 1972. One count concerned a salemade atthe Clansman Lounge inGlasgow, Montana, the other involved a salemade atthe Rasmussen apartment, B-2 of the Lasar Apartments, in Glasgow. Bradly Rasmussen age 21, was an enlisted member of the United StatesArmy and stationed inViet Nam. His wife, Wendy Rasmussen, age 19, resided inGlasgow, Montana at apartment B-2 of the Lasar Apartments. The couple had a ten month old daughter. Bradly Rasrnussen returned to Glasgow on April 3, 1972. The following evening Wendy Rasmussen told her husband that she had had sexual relations with defendant LaCario and with other men while Bradly was overseas. Later that evening Bradly was introduced to defendant atthe Clansman Lounge in Glasgow by Wendy. Bradly was very friendly toward defendant and invited him to the couple's apartment for dinner. Defendant testified he accepted the invitation and while atthe Rasmussen apartment Bradly told defendant he knew what had happened with hiswife and that he bore defendant

no ill willbecause of it. The Rasmussens and defendant socialized

on several occasions between the date of ~radly's return and defendant's arrest. On April 16, 1972, Bradly visited the Glasgow police department, twice alone and once with Wendy, and offered to cooperate with the police inproviding information concerning defendant's involvement ina burglary or indrug sales. On April 18, 1972, atabout 4:00 p.m. Bradly joined his wife and defendant atthe Clansman Lounge. After giving Bradly Rasnussen an LSD tablet and a marijuana cigarette, defendant told Bradly that he could obtain approximately 50 tablets of LSD and would sellthem to Bradly.The Rasmussens left the Clansman Lounge and went tothe police station. They showed the chief of police the LSD tablet and marijuana cigarette and offered tocooperatewith police inapprehending defendant while making a drug sale. The police accepted the offer and about 9:15 p.m. three officers came to the Rasmussens' apartment. The Rasmussens were given $60 inmarked bills. One officer concealed himself ina closet, and two others waited in an apartment across the hall. Bradly then went tothe Clansman Lounge and found defendant. When the two returned tothe apartment, defendant took a package containing 50 LSD tablets from his pocket and placed it on the table. Wendy gave defendant the $GO provided by the police. Defendant was offered a marijuana cigarette and took a few puffs. Police officers then entered the room, arrested defendant and seized the evidence. After the arrest a photo was taken of defendant and the Rasmussens inthe apartment, On the opening day of defendant's trial the county attorney announced that the testimony of prosecution witnesses Bradly and Wendy Rasmussen would be offered inthe form of depositions "which

were taken under Court Rule and I hand the Court theAffidavit of the County Attorney incompliance with the provisions of Sec. 95-1802, paragraph (e), showing that the two witnesses are infact absent from the State of Montana, and that the absence isdue to the assignment of thewitness Bradly I. Rasmussen inthe military service toFort Bliss, Texas. II Defense counsel objected contending itwas very possible these two witnesses would have voluntarily appeared ifrequested, and defendant was entitled tohave thewitnesses present. The court asked the county attorney if subpoenas had been issued for thesewitnesses. He replied that he had not done so and believed under the terms of the statute that he was not required todo so. The trialcourt then allowed the depositions tobe read. An affidavit of the clerk of the district court of Valley County was included as a part of the record on appeal by stipulationof the prosecution and defense. That affidavit states that on July 18, 1972, six days subsequent to the conclusion of the trial, Bradly and Wendy Rasmussen appeared in person in the district court ofValley County to testify in a criminal cause entitled State of Montana v. Joseph

### A. Stebleton,defendant. Defendant here presents four issues on appeal: 

### 1) Whether the district court erred in allowing the testimony of the Rasmussens to be presented by deposition? 2) Whether a marijuana cigarette and a photograph of defendant taken at the time of his arrestwere properly admitted into evidence? 3) Whether the district court erred in refusing to give defendant's proposed instructionsnumbered 

### 4and 5 relating to entrapment and proposed instruction number 9 relating to accomplice testimony? 

### 4) Whether the district court erred in denying defendant's motions for a directed verdict and for a new trial? Issue 

### (1). The state relies upon this court's decision in Statev. Zachmeier, 153 Mont. 64, 70, 453 P.2d 783, in support of its contentions regarding this issue. A reading of Zachmeier indicates the opposite: "1n support of his contention that defendants have a constitutionalright to meet witnesses against him face to face at trial so the jury can observe their demeanor and pass upon their credibilitywhile observing thewitness on the stand, the defendant relies primarily on the cases of State v. Storm, 127Mont. 414, 265 P.2d 971 (1953) and State v. Piveral, 127 Mont. 427, 265 P.2d 969 (1953). It is not necessary to hell on these authorities because this trialwas conducted under the new rules of criminalprocedure. Section 95-1802(e), R.C.M. 1947,provides: "'At the trial or upon any hearing, a part or all of a de osition, so far as otherwise admissible under t 

### IT+--

e ru es of evidence,may be used if it appears: That thewitness is dead; or that thewitness is out of the state of Montana unless it appears that the absence of thewitness was procured by the party offering the deposition; or that thewitness is unable to attend

- - - --- - or testifybecause of sickness or infirmitvr or th~t the

-----------.I 3 -- ----- 

### ---- arty offering the deposition-hasbeen unable to procure !he attendance of the witness by subpoena

## * **.II1In our opinionwhat the United States Supreme Court said in the above cited case [Mattoxv. United States, 156U.S. 237, 15 S.Ct. 337, 39 

### L. Ed. 409 (1895)J with regard to deceased witnesses should also applywith regard to any sworn testimony where the defendant has been afforded an oppbrtunity to cross-examine thewitness and where it has also been shown that after due diligence the witness cannotbe found,and his absencewas not procured by the party offering the testimony.

I1

Here, the uncontradicted evidence shows that prior to the trial thewitness had removed herself from the jurisdictionof the court, which placed her beyond the reach of process of the court and that after due diligence on the part of the prosecution the residence of the witness could not be ascertained.'"(Emphasis added) In Zachmeier this Court clearly recognized that the exercise of due diligence in attempting to procure personal attendance of a prosecution witness is a prequisite to the introduction of the witness's deposed testimony, evenwhen the witness is out of the state, asunderlined in the above quotation. This same issuewas discussed by the Colorado Supreme Court inHaynes v. People, 128 Colo. 565, 265 P.2d 995, 997,

### 44

"While depositionsare allowable in criminal cases, the circumstancespermitting their use must be extraordinary. Thenecessitymust be clearly established,and the duty of showing that necessity is the burden upon the prosecution. Reynolds v. Fitzpatrick, 

### 28 Mont. 170, 72 P. 510;Healy 

### v. First National Bank of Great Falls, 

### 108 Mont. 180, 89 P.2d 555. InMoormeister v. Golding, 

### 84 Utah 324, 27 P.2d 447, 452, the Supreme Court of that state, under a somewhat comI parable statute, said: Itwauid therefore be error to admit a deposition in the absence of a showing that the person offering the deposition has used due diligence to find him, that he could not be found,or that hewas notwithin the reach of process of the court."' Montana has enacted the "Uniform Act to Secure the Attendance ofWitnesses from without a State in Criminal Proceedings". Sections 94-9001through 94-9007,R.C.M. 1947. The annotation following section 94-9001states that the act has also been adopted by Texas. The SixthAmendment to the United States Constitutionand Art. 11, Section 24 of the Montana Constitution (Art. 111, Sec. 16,1889 Montana Constitution), requires a greater exercise of diligence in the attempt to procure personal attendance of a prosecution witness thanwas demonstrated by the state in this case. We find the-ning issues on appeal to be without merit with the exception of the issue concerning denial of defense motions and only insofar as this issuewould relate to confrontation of witnesses matter hereinabove discussed. The marijuana cigarette, althoughunrelated to the charges against defendant as an element of the offense, was so contemporaneouswith the criminalacts forwhich hewas charged as to be admissible as part of the res geste,which under Montana law can include acts aswell aswords. State v. Rollins, 149 Mont. 481, 428 P.2d 462; State v. Meidinger, 160Mont. 310, 502 P.2d 58, 29 St.Rep. 861. The photograph of defendant and the Rasmussens was relevant and,hadprobative value to describe and identify the persons involved in the criminalproceeding. State v. Harney, 160Mont. 55,499 P.2d 802, 29 St.Rep. 627. The fact that the persons in the photograph were otherwise identified by evidence before the courtmakes this photographic evidence cumulative; it isnonetheless relevant. ~efendant'soffered instructions 

### 4and 5 relating to the defense of entrapmentwere properly refused. Under Montana law entrapment is an affirmative defense. State v. Parr, 129 Mont. 175, 283 P.2d 1086; State v. White, 153 Mont. 193, 456 P.2d 54. ~aCario's only defense offered and relied upon throughout the trialwas a general denial of the acts charged. Defendant's offered instruction 9 relating to accomplice testimonywas properly refused. It contained an incorrect statement of the corroboration requirement for accomplice testimony provided for in section 94-7220,R.C.M. 1947,and was repetitive of given InstructionNo. 7. The judgment appealed from is reversed and this cause is remanded for further proceedings consistent with this opinion.