No. 12395 

IN THE 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 jo 
PER CURIAM: 

Defendant Dominic D. LaCario was convicted of two counts 

of the unlawful sale of dangerous drugs in the district court of 

Valley County. The two counts related to selling LSD to Bradly and 

Nendy Rasmussen on April 18, 1972. One count concerned a sale made 

at the Clansman Lounge in Glasgow, Montana, the other involved a 

sale made at the Rasmussen apartment, B-2 of the Lasar Apartments, 

in Glasgow. 

Bradly Rasmussen age 21, was an enlisted member of the 

United States Army and stationed in Viet Nam. His wife, Wendy 

Rasmussen, age 19, resided in Glasgow, 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 at the 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 at the Rasmussen apartment Bradly told defendant 

he knew what had happened with his wife and that he bore defendant 

no ill will because 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 in providing information concerning defendant's 

involvement in a burglary or in drug sales. 

On April 18, 1972, at about 4:00 p.m. Bradly joined his 

wife and defendant at the 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 sell them to Bradly. 
The Rasmussens left the Clansman Lounge and went to the 

police station. They showed the chief of police the LSD tablet and 

marijuana cigarette and offered to cooperate with police in apprehending 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 in marked bills. One officer concealed himself in a 

closet, and two others waited in an apartment across the hall. 

Bradly then went to the Clansman Lounge and found defendant. When 

the two returned to the 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 

in the 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 in the form of depositions "which 

were taken under Court Rule and I hand the Court the Affidavit of 

the County Attorney in compliance with the provisions of Sec. 

95-1802, paragraph (e), showing that the two witnesses are in fact 

absent from the State of Montana, and that the absence is due to 

the assignment of the witness Bradly I. Rasmussen in the military 

service to Fort Bliss, Texas. I I 

Defense counsel objected contending it was very possible 

these two witnesses would have voluntarily appeared if requested, 

and defendant was entitled to have the witnesses present. The 

court asked the county attorney if subpoenas had been issued for 

these witnesses. He replied that he had not done so and believed 

under the terms of the statute that he was not required to do so. 

The trial court then allowed the depositions to be read. 

An affidavit of the clerk of the district court of Valley 

County was included as a part of the record on appeal by stipulation 
of 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 

of Valley 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 arrest were properly admitted 

into evidence? 

3) Whether the district court erred in refusing to give 

defendant's proposed instructions numbered 4 and 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 State v. 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 constitutional right to meet witnesses against him 

face to face at trial so the jury can observe their 

demeanor and pass upon their credibility while observing the witness on the stand, the defendant relies 

primarily on the cases of State v. Storm, 127 Mont. 

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 trial was 

conducted under the new rules of criminal procedure. 

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 the witness is dead; or that the witness is out 

of the state of Montana unless it appears that the 

absence of the witness was procured by the party offering 

the deposition; or that the witness is unable to attend - - - - - - - 

or testify because of sickness or infirmitvr - - - - - - - - - - - or th~t the .I 3 - - ----- ---- 

arty offering the deposition-has been unable to procure 

!he attendance of the witness by subpoena * **.I 
I1 In our opinion what the United States Supreme 

Court said in the above cited case [Mattox v. 

United States, 156 U.S. 237, 15 S.Ct. 337, 39 L. 

Ed. 409 (1895)J with regard to deceased witnesses 

should also apply with regard to any sworn testimony where the defendant has been afforded an 

oppbrtunity to cross-examine the witness and where 

it has also been shown that after due diligence 

the witness cannot be found, and his absence was 

not procured by the party offering the testimony. 

I1 Here, the uncontradicted evidence shows that 

prior to the trial the witness had removed herself from the jurisdiction of 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, even when the witness is out of the 

state, as underlined in the above quotation. 

This same issue was discussed by the Colorado Supreme 

Court in Haynes v. People, 128 Colo. 565, 265 P.2d 995, 997, 44 

"While depositionsare allowable in criminal cases, 

the circumstances permitting their use must be 

extraordinary. The necessity must 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. 

In Moormeister v. Golding, 84 Utah 324, 27 P.2d 447, 452, 

the Supreme Court of that state, under a somewhat comI parable statute, said: It wauid 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 he was 

not within the reach of process of the court."' 

Montana has enacted the "Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Proceedings". 

Sections 94-9001 through 94-9007, R.C.M. 1947. The annotation 

following section 94-9001 states that the act has also been adopted 

by Texas. 

The Sixth Amendment to the United States Constitution and 

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 than was 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 issue would relate to confrontation of 

witnesses matter hereinabove discussed. 

The marijuana cigarette, although unrelated to the charges 

against defendant as an element of the offense, was so contemporaneous with the criminal acts for which he was charged as to be 

admissible as part of the res geste, which under Montana law can 

include acts as well as words. State v. Rollins, 149 Mont. 481, 

428 P.2d 462; State v. Meidinger, 160 Mont. 310, 502 P.2d 58, 29 

St.Rep. 861. 

The photograph of defendant and the Rasmussens was relevant 

and,had probative value to describe and identify the persons involved 

in the criminal proceeding. State v. Harney, 160 Mont. 55, 499 

P.2d 802, 29 St.Rep. 627. The fact that the persons in the photograph were otherwise identified by evidence before the court makes 

this photographic evidence cumulative; it is nonetheless relevant. 

~efendant's offered instructions 4 and 5 relating to the 

defense of entrapment were 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 trial was a 

general denial of the acts charged. 

Defendant's offered instruction 9 relating to accomplice 

testimony was 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 

Instruction No. 7. 

The judgment appealed from is reversed and this cause is 

remanded for further proceedings consistent with this opinion.