No. 12136 INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

THE STATE OF MONTANA, Plaintiff and Respondent,

-vs

# - LARRY 

### FRATES

## , Defendant and Appellant.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellant: Towe, Neely and Ball, Billings, Montana. Gerald J. Neely argued, Billings, Montana. For Respondent: Honorable Robert L. Woodahl, Attorney General,

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

Helena, Montana. Harold F. Hanser, County Attorney, argued, Billings, Montana.

Submitted: May 16, 1972

### Mr. Justice Gene B. Daly delivered the Opinion of the Court.

Defendant, Larry Frates, appeals from a judgment of conviction of the crime of criminal sale of dangerous drugs entered on June 10, 1971, followingjury trialand verdict of guilty inthe district court of the thirteenthjudicial district, county of Yellowstone, the Hon. Charles Luedke, districtjudge presiding. Following denial of hismotion for a new trial, defendant appeals from thejudgment of conviction. Defendant was arrested on the night of March 17, 1971, in Room 105 of the Imperial 400 Motel inBillings by officers of the Billings police department following a saleby defendant of 900 LSD tablets toan undercover police officer, Richard Stelzer. Two officers of the Billings police department, Sgt. Jack Samson and Detective Pat Hagel, occupied the adjoining motel room and heard the entire conversationbetween defendant and Officer Stelzerby means of an electronic "bug" planted inthe telephone inRoom 105, which transmitted the conversation through the telephone in the room they occupied. 

### At trial, defendant admitted his actions of March 17, 1971, but offered testimony and evidence to support his defense of entrapment by the Billings police and the Yellowstone County sheriff's departments. During trialit developed that a police informer, Dale Anderson, a bartender atthe Midway Bar inBillings, had purchased 100 LSD tablets from defendant on two separate occasions within days of the crime charged, and played a significant role in arranging the meeting atthe Imperial 400 Motel between Officer Stelzer and defendant culminating inthe saleof 900 LSD tablets with which defendant was charged. Defendant was duly charged with the latter sale, tried by jury, convicted, and sentenced to twenty years inthe state

### prison. Following denial of his motion for a new trial,defendant appeals fromhis conviction. Defendant raises seven issues on appeal: 1. 

### The court erred in refusing to give defendant's offered instructionNo. 7. 2, The court abused its discretion in admitting evidence where therewas an incomplete chain of possession. 3. The court abused its discretion in allowing informant to testify to alleged prior sales. 

### 4. Entrapment having been shown as a matter of law, the court erred innot granting a directedverdict of acquittalat the close of the prosecution's case. 5. The court erred in not striking all testimony relating to conversations taking place in the motel room in question. 

### 6, The court erred in not granting a new trial or directing a verdict of acquittal at the close of defendant's case. 7. The court erred in overruling defendant's objection to plaintiff's offered instructionNo. 

### 4. Directing our attention to Issue 1,we observe that defendant's offered instruction No, 7 is coveredby the court's instructionNo. 2,which is the cautionary instruction taken verbatim from InstructionNo. 1,

### M.J.I.G. Accordingly there isno error in the court's refusal of defendant's offered instructionNo. 7 covering the same point in slightly different language. State v. Lagge, 143Mont. 289, 388 P.2d 792; State v, Logan, 156 Mont. 48, 473 P,2d 833. In IssueNo. 2, defendant argues the district court abused its discretion in admitting evidence of dangerous drugswhere there was an incomplete chain of possession. The evidence establishes a chain of possession of the LSD tablets from defendant to the arresting officers; from there to tagging,marking and storing in the evidence vault at the Billings police department; the packaging and addressing of four of the tablets to the Bureau of Narcotics and Dangerous Drugs in San Francisco;the receipt of the four pillsby this agency; their examination, testing, and identification by chemist Chan of that agency; and, the return of the plastic container, the mailing box, and the mailing wrapper,bearing the handwriting of one of the Billings officers, to the Billings police department. Under such circumstances, the absence of the direct testimony of the person who actuallymailed them to San Francisco 

### is immaterial and in

no sense breaks the chain of possession, precluding their admissibility in evidence. Issue No. 

### 3 concerns the admission of testimony by informant Anderson of alleged prior sales of dangerous drugs by defendant. The state's evidence disclosed that Dale Anderson was requested by the Billings police department to assist it incurbing the drug traffic inBillings and torelay information on drug traffic as a paid informer, Anderson was given the names of two suspects of particular interest to the Billings police department, one of whom was Ron Novasio and the second, the defendant. In lateFebruary or earlyMarch 1971, defendant came to the Midway Bar inBillingswhere Anderson was employed as a bartender. Anderson told defendant thathe wanted to go into

a "partnership" with defendant in the illegaldrug field. Anderson informed defendant he was not getting supplied likehe should, and asked if defendant could assisthim. Defendant replied that he was not sure at that time, but he would let Anderson know. Again, about a week later, defendant and Anderson

came into contact and discussed their possible agreement. On March 

### 9, 1971, approximately a week and a half after their lastmeeting, defendant came to the Midway Bar and handed Anderson a sack containing 100 capsules of LSD. Defendant told Anderson the capsuleswere LSD, which could be sold for double the amount of money needed topurchase them. Anderson turned the capsules over to Detective Hagel, who gave Anderson $150

so that he could pay defendant. About a week later, on March 14,

### 1971,defendant returned to the Midway Bar and handed Anderson another sack containing 100 LSD capsuleswhichwere again turned

over to Detective Hagel. It is the evidence of these prior transactionq admitted at the trial over the objection of defendant, that is one of the principal assignments of error. The general rule in regard to the admissibility of evidence of other crimes is stated in 29 Am,Jur.2d, Evidence, 5320,p.366: "It is awell-established common-law rule that in a criminalprosecutionproof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times,even though they are of the samenature as the one charged, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged

# *

# * *." ~ontana'sadherence to the above quoted general rule is recited in Statev. Jensen, 153Mont. 233, 238, 455 P.2d 631, which states: 

# "***Montana recognizes the general rule "'that when a defendant is put upon trial fox one offense, he shouldbe convicted, if at all,by evidencewhich shows that he is guilty of that offense alone; and evidence which in any manner shows, or tends to show, that he has committed another crimewholly independent. even though it be a crime of the same sort, is 

## irrele-• vant and inadmissible." Williams v. State, 68Ok1,Cr. 348, 352, 98P,2d 937, 939.' State

### v. Tiedemann, 139 Mont. 237,362P.2d 529 (1961). The reason for this rule is---thedefendant is entitled tobe informed of the crime charged so as to prepare his defense and proof of other crimes subjectshim to surprise and defense of multiple collateral or unrelated issues, Statev. 

### Nicks, 134Mont. 341, 332 P.2d 904, (1958).11 (Emphasis added) Jensen, then goes on to state a recognized exception to this general rule:

11



### There are recognized exceptions to this general rule: similar acts with the same prosecuting witness, State vs. Sauter, 125 Mont. 109, 232 P.2d 731 (1951); similar acts not too remote in time, Statevs. Nicks, supra; and 'where the evidence of other crimes tends to establish a common scheme,plan or systemandwhere such other crimes are similar to, closely connectedwith andnot too remote from the one charged,and alsowhere they are so that proof of one tends to establish the other.' State

### v. Merritt, Mont, 

### 5'/ P. 

### Statev, Gran~berr:?~140 Mo~:~~?O: 

### 367 $!2!8:6d1;?%$) 

# ." 

### (Emphasis added) Theweight of authority,althoughnot pursued in Jensen, is favorable to this exception to the general rule. Statev, McDaniel, 80Ariz. 381, 298 P.2d 798;Warren v. State, 95 Ga.App.

### 79, 97 S.E.2d 194; Statev, Whiting, 173 Kan. 

### 711, 252 P.2d 884; Commonwealth v. Kline 

## , 361 Pa. 434, 65 A.2d 348. We recognize that the admission of such evidence 

### is an exception to the general rule and accordingly we are obligated to look very carefully atthe relative probative value of such evidence, if any, and weigh it against the prejudice inherent in this type of evidence in the light of the actual need to introduce such evidence by the state. The evidence of the two prior sales of LSD to the informer in the instant case ispart of the corpus delicti of the crime with which the defendant ischarged. It 

### is a part of the totality of events and occurrences leading to and culminating in the sale of the 900 

### LSD tablets to the undercover police officer of which defendant was convicted. 

### It tends to explain the circumstances leading tothe commission of the crime charged, establishes defendant's intent tocommit the crime charged, and negatives the defense of entrapment. As such, it 

### isclearlyrelevant, probative and competent evidence tending toprove the crime charged. The fact that it 

### isinherently prejudicial todefendant does not detract from its admissibilityunder such circumstances, particularly where, ashere, no element of surprise 

### is involved. Defendant argues that such evidence isnot admissible in the state's case-in-chief as the defense of entrapment had not been raised by defendant at thisjuncture. The record belies this claim. Defendant had made his opening statement immediately following that of the statebefore the introduction of any evidence and although such opening statement isnot transcribed in the record on appeal, the record indicates the defense of entrapment had been raised thereinby the following remark of the trial judge inresponse todefendant's objection to the admissibility of evidence of the two prior sales of LSD: "THE COURT: Well, it seems tome that the die is pretty well cast by virtue of the opening statements made on both sides, towhich neither

### made any objection. And the rule inMontana is 

### that provided by Statev. Jensen, 153Mont. 233, and under the circumstances 1'm 

### going tooverrule the objection. 11 

### Issue No. 4 

### iswhether entrapment was established as a matter of law entitlingdefendant toa directedverdict of acquittal, The law of entrapment 

### is set forth inour recent decision in Statev. Karathanos, Mont

# . 9 

### 493 P.2d 326, 330, 29 St.Rep. 81, 88, which we quote inpertinent part: "Defendant now contends thathe was entrapped into commitllng the offense charged. With thiscontention, we cannot agree. Entrapment occurs onlywhen the criminal intent or design originates inthe mind of the police officer or informer and not with the accused, and the accused is

### lured or induced into committing a crime he had no intention of committing. Only when the criminal design originates, not with the accused, but inthe mind of government officers and the accused 

### isby persuasion, deceitfulrepresentations, or inducement, lured into the commission of a criminal act, can a case of entrapment be made out. In short, there 

### isa controllingdistinctionbetween inducing a person todo an unlawful act and setting a trap tocatch him inthe execution of a criminal design of hisown conception. The fact that the Yellowstone County sheriff's office afforded the opportunity or facility for the commission of the offense, does not come within the entrapment rule. In this class of offenses, usually committed secretly, it 

### is

### difficult ifnot almost impossible to secure the evidence necessary toconvict by any other means thanby the use of decoys, Certainly, there canbe no objection totheir use ifthe officers do not by persuasion, deceitful representations or inducement, lure a person who otherwise would not be likely to break the law, into a criminal act. Statev. Wong Hip Chung, 74 Mont. 523, 241 

### P, 620; Statev. 

### Parr, 129Mont. 175, 283 P.2d 1086; 22 C,J.S. Criminal-Law 

### 5545(1), 45(2), 45(4), p. 137," Here, the evidence 

### isconflicting precluding entrapment as a matter of law, and the jury resolved thisconflict against the defendant. There is

### no merit indefendant's issueNo. 5. It 

### is

### based

on the failure of the statetopermit inspection and copying of the tape recording of the conversation between defendant and the undercover police officer inthe motel room atthe time of sale. The uncontradicted evidence shows that the tape was unintelligible, inaudible, not available, and not used prior to

or atthe trial. Under such circumstances the claimed error is 

### without substance,Defendant's issue No. 

### 6 is encompassed inthe other errors claimed and need not be separately discussed, In issueNo. 

### 7, the final issue, defendant claims that the word "suspect" as used incourt's instructionNo. 

### 11was error. Instruction No. 

### 11reads inpertinent part: "On the other hand, where a person alreadyhas the readiness and willingness tobreak the law, the mere fact that law enforcement officers or their agents provide what appears tobe a favorable opportunity 

### isnot entrapment. For example, when law enforcement officers or their agents suspect that a person 

### isengaged inthe illicit saleof dangerous drugs, it

### isnot entrapment for law enforcement officers or their agents topretend tobe someone else and tooffer, either directly or through an informer or other decoy, to purchase narcotics from such suspected person." (Emphasis supplied)

II Defendant contends the term suspect" was error and the words "has reasonable grounds forbelieving" should have been substituted. The use of the word "suspect" 

### is entirely proper where,

ashere, thebalance of the instruction clearly indicates that the impetus for commission of the crime must emanate from defendant and that the law enforcement officers can do no more than create the opportunity for itscommission by posing as prospective purchasers of contraband. The judgment of the district

Associate Justice

/M:,f Justice r