No. 92-236 IN THE SUPREMECOURTOFTHE STATE OFMONTANA 1992

STATE OFMONTANA,

Plaintiff and Respondent, SE@1.. j$j@

-vsJOHNMICHAEL SHAW,

Defendant and Appellant.

APPEAL FROM: District Court of the Nineteenth Judicial District,

In and for the County of Lincoln, The Honorable Robert S. Keller, Judge presiding.

COUNSELOFRECORD:

For Appellant: S. Charles Sprinkle, Douglas & Sprinkle, Libby, Montana For Respondent: Hon. Marc Racicot, Attorney General, Jennifer Anders, Assistant Attorney General, Helena, Montana Scott Spencer, Lincoln County Attorney, Libby, Montana

Filed: Submitted on Briefs: October 8, 1992 Decided: December 1, 1992Justice John ConwayHarrison delivered the Opinion of the Court.

This is anappeal from the District Court of the Nineteenth Judicial District, Lincoln County, the Honorable Robert S. Keller presiding. Appellant John Michael Shaw (Shaw) appeals from a judgment entered onajury verdict finding himguilty of conspiracy to sell dangerous drugs, afelony, inviolation of §45-4-102, MCA. Wereverse andremand. Theissues are: 1. Didthe District Court err in allowing rebuttal testimony

over defense counsel's objections that the testimony violated the notice requirements of State v. Just (1979), 184Mont. 262, 602 P.2d 957, asmodified in State v. Matt (1991), 249Mont. 136, 814 P.2d 52 (the Modified Just Rule), andthat the testimony exceeded the scope of cross-examination? 2. Didthe District Court err in refusing Shawls Proposed Jury Instruction No. 21? TheLincoln County Sheriff's Office conducted anundercover drug investigation from September 1990to May1991. Klint Gassett served asthe primary detective inthe investigation andHalTurner served as the undercover agent. During the course of that investigation, the sheriff's office obtained sufficient evidence to charge Rodney Reynolds (Reynolds). In order to further the investigation, Gassett offered Reynolds adeal in which Reynolds would work as an agent for the sheriff's office in return for a recommended suspended sentence andafine. Reynolds agreed. 2The officers provided Reynolds with the names of people,

including Shawand Brian Kair, from whomthey wanted Reynolds to try to purchase drugs. Reynolds andShawhadknowneach other for

a number of years. Reynolds did not know Kair well enough to approach himdirectly, sohedecided to gothrough Shawasameans of introduction because ShawandKair kneweach other well. Reynolds approached Shawat the Libby softball fields after practice onMay2, 1991, andasked Shawif hecould get himapound of marijuana or somecocaine. Reynolds testified at trial, "He [Shawl said he'd check it out." Shawtestified asfollows: I told him that the whole teamwasgoing to godownto the Mint and I was sure that there was somebody down there that would sell drugs, andthat I could probably line him upwith somebody that I knew onthe team, or whatever. After practice, Shawwent to the Mint with other teammembers because the Mint sponsored his softball team. Reynolds also went to the Mint later that day. Whenheentered the bar, heapproached Shawandthe two of themwent into the restroom for privacy. Shaw then left the restroom to get Kair. Upto that point Shawhadmade

no effort to contact anyone about the drugs. WhenShawand Kair returned to the restroom, Shawtold Kair that Reynolds wanted to buysomedrugs. Reynolds andKair then discussed drugs for ten to fifteen minutes. Although Shawlistened to the conversation, he did not take part in it. Reynolds andKair agreed to meet at the Legion Bar two days later. Shawdid not makefurther contacts or participate in the deal after making the introduction. Reynolds andKair met at the Legion Bar onSaturday asthey hadplanned. Kair did not have the drugs at that time, but set 3Sunday or Monday as afollow-up date. Reynolds then called Kair on

Sunday to see if he could get a sample of the marijuana. Later that day he went to Xair's residence where he gave Kair's wife, Jenny, $400 as payment for afour ounce sample of marijuana. The marijuana was supposed to bedelivered onMonday. This is the last time Reynolds had contact with any of the people involved. OnMay 7, 1991, the Lincoln County Attorney filed acomplaint charging Shawwith conspiracy to sell dangerous drugs, afelony, in violation of § 45-4-102, MCA. A jury found Shaw guilty of the crime charged.

Did the District Court err in allowing rebuttal testimony over defense counsel's objections that the testimony violated the notice requirements of State v. Just (1979), 184 Mont. 262, 602 P.2d 957, as modified in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52 (the Modified Just Rule), and that the testimony exceeded the scope of cross-examination? During the trial, the State recalled Detective Gassett. During that portion of his testimony, Detective Gassett stated that

asearch warrant had been issued for the Kair residence. Oncrossexamination, defense counsel, Mr. Sprinkle, brought out the fact that asearch warrant was not issued on Shaw's residence. Q. [By Mr. Sprinkle] And you never executed a search warrant on John's house and recovered any drugs or paraphernalia, did you? A. Wedidn't have any reason to do the search warrants onJohn's house. On redirect examination, the county attorney, Mr. Spencer, then

4elicited the following testimony from Detective Gassett.

Q. Youwere asked oncross some question about searching Shawls house. Did you hear that? A. Yes. Q. What was that question again? A. Did wedo asearch warrant on Shaw's residence, or why didn't wedo asearch warrant. Q. Looking for paraphernalia or something? A. Yeah. Q. And you did not, did you? A. No, wedid not. Q. Does that mean you did not have reason to believe that, other than what Rodney Reynolds said, that Brian Shawwas involved in drugs? A. John Shaw? Q. John Shaw. I'm having aterrible time with these names. Dyslexia, I guess. A. Just because we didn't do a search warrant doesn't mean anything. Q. Did you in fact have other evidence that tends to show that John Shawwas involved in drugs? At this point, Mr. Sprinkle objected to the question as, among other things, beyond the scope of cross-examination and prejudicial. In conference, Mr. Sprinkle argued that his line of questions to Detective Gassett went to show the jury that no evidence existed, other than the events of May 2, 1991, onwhich to charge Shaw with conspiracy. The State argued, and the court agreed, that Mr. Sprinkle had opened the door with his question about the search warrant. When the questioning continued, the following exchange

5occurred:

Q. [ByMr. Spencer] NOW,Klint, whenwebroke wewere talking about -- I'm not sure whatweweretalking about, but talking about the search warrant, and is that the only basis you had, or whatever. You recall that question? A. Yes, sir. Q. Now-- and that is yes or no. Doyou have other basis for your determinations that we're talking about here with John Shaw? A. Yes. Q. Are those based on -- is that based oninformation provided to you aspart of this undercover operation by Hal Turner? A. Yes. Q. Is Hal Turner the undercover agent that washired? A. Yes, from September to Mayof '91. Q. Right. I'm not sure if I ever asked that. At this point Mr. Sprinkle objected to the testimony onthe basis of lack of notice as required byJust. (Wepoint out that the proper authority would have been u.) The District Court overruled this objection andMr. Spencer continued. Q. Oneadditional question. Is this also based on documented information youhave of several years ago? A. Yes. Q. Point of fact, eight years ago? A. Yes. Wedisagree with the District Court's rulings onthis matter. Wefind that this testimony exceeded the scopeof cross-examination andwas allowed in violation of the notice requirements of the Modified Just Rule.

6Rule 611(d), M.R.Evid., governs the scope of redirect

examination. It provides: Re-examination and recall. Awitness may be re-examined as to the same matters to which the witness testified only in the discretion of the court, but without exception the witness may be re-examined as to any new matter brought out during cross-examination.

. . . The trial court "has wide discretion in determining the scope and extent of re-examination as to the new matters brought out on cross-examination." Cline v. Durden (1990), 246 Mont. 154, 161, 803 P.2d 1077, 1081; State v. Heaston (1939), 109 Mont. 303, 316, 97P.2d 330, 336. Wetherefore look to whether the District Court abused its discretion by allowing the above testimony from Detective Gassett. Oncross-examination, Mr. Sprinkle asked aseries of questions intended to show that no evidence existed, other than the introduction and conversation of May 2, 1991, to establish that Shawwas involved in this conspiracy to sell drugs. In doing so he merely asked Detective Gassett whether asearch warrant had been issued for Shawls residence. Throughout the trial, he had not denied that Shaw was ever involved in drugs. However, the court determined that this line of questioning was intended to imply that Shawls involvement in this matter was purely coincidental. The court then ruled that Mr. Sprinkle opened the door to testimony about Shawls prior acts or wrongs of eight years ago. The State relies onState v. Simtob (1975), 168 Mont. 495, 544 P.2d 1210, and State v. Mix (1989), 239Mont. 351, 781 P.2d 751, in arguing that Mr. Sprinkle opened the door to this testimony. In Simtob, the defendant's witness testified that the defendant did

7not use or traffic in drugs. Oncross-examination the State was

allowed to bring out the fact that the defendant had been in prison, andonrebuttal the State wasallowed to present evidence that the defendant had a reputation as a major drug dealer in Montana. This Court upheld the District Court's ruling that defense counsel had brought the defendant's character and reputation in issue and that cross-examination and rebuttal testimony were proper. InMix, the defendant testified asto his general character as apeace loving man. This Court upheld the District Court's ruling which allowed the State to present rebuttal testimony concerning the defendant's priorattacks onthe victim because the defendant hadopened the door to evidence regarding his peaceful character. Wedonot find Simtob or Mix to becontrolling. Wedonot find that this single question regarding asearch warrant canbeconstrued asasuggestion that Shawwasinnocent of all drug related activity or that it brought his character into issue. Therefore, the evidence was inadmissible under Rule 404(a)(l), M.R.Evid., which allows the State to rebut adefendant's character evidence with its own evidence. Aswehold that the State could not introduce character evidence onthese facts, the rule noted in Mix, whereby evidence of other crimes, wrongs, or acts maybe introduced under Rule 404(a)(l) without meeting the Just notice requirements, does not apply. TheState further argues that the requirements of Just (more accurately Matt) donot apply because Detective Gassett's testimony did not constitute "other crimes" evidence under Rule 404(b), 8M.R.Evid. That rule provides:

Other crimes, wrongs, acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such asproof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. TheState relies onState v. Sorensen (1990), 243Mont. 321, 792P.2d 363, where this Court rejected the defendant's argument that a photograph of a person standing in a marijuana patch constituted other crimes evidence. The officer in that case testified that hethought the manin the picture wasthe defendant. In that case we noted that it is not a crime to stand in what appears to beamarijuana patch, the defendant took full advantage of his opportunity to argue to the jury that the manin the picture

wasnot him, andthe photo's prejudicial effect wasquestionable in relation to all the other evidence presented at trial. In contrast, in the present case Detective Gassett was allowed to testify directly that hehad documented evidence tending to show that Shawwas involved in drugs. This is more than a "mere suggestion of illegal or improper conduct" asargued bythe State. It is anaffirmative statement that the authorities haddocumented evidence of Shawls prior drug related activity. Assuch, Shawwas entitled to notice that the information would be brought out at trial. Wehold that the District Court abused its discretion by allowing the State to introduce this evidence. II Did the District Court err in refusing Shawls Proposed Jury 9Instruction No. 21?

Shawwas charged with violating the conspiracy statute. That statute provides: 45-4-102. Conspiracy. (1) Aperson commits the offense of conspiracy when, with the purpose that an offense be committed, he agrees with another to the commission of that offense. Noperson may be convicted of conspiracy to commit anoffense unless an act in furtherance of such agreement has been committed by him or by a coconspirator.

. . . Shaw sought to have the following instruction given to the jury: There can be no conspiracy between adefendant and one who only feigns acquiescence in acrime: however, if an undercover agent acts in conjunction with more than one person to violate a law, his participation will not preclude a conviction of the others for a conspiracy among themselves. During the settling of instructions, the State argued, andthe court agreed, that "[y]ou can have aconspiracy between two people,

one of which is an undercover agent who has no intention of breaking the law. That's settled case law." However, the State admits to the contrary in its brief, and cites extensive case law

on the matter. It is well established that: "There is neither a true agreement nor ameeting of the minds when an individual 'conspires' to violate the law with only one other person and that person is a government agent."

. . .Anindividual must conspire with at least one bona fide co-conspirator to meet the formal requirements of aconspiracy. United States v. Schmidt (9th Cir. 1991), 947 F.2d 362, 367 (citation omitted); United States v. Kelly (11th Cir. 1989) 888 F.2d 732 (it is legally impossible to conspire with a government

10agent); United States v. Giry (1st Cir. 1987), 818 F.Zd 120 (it

takes two to conspire and a government informer is not a true conspirator), cert. denied, 484U.S. 855 (1987). The State argues that the proposed instruction is only relevant in cases involving one defendant, and that it was not relevant in this case where there were two individuals other than the government agent involved--Shaw andKair. Wedisagree given that the State argued on numerous occasions during its closing argument that a conspiracy could have arisen between Shaw and Reynolds. That is not the law. Shaw was entitled to an instruction that limited the jury to finding aconspiracy between Shawand Kair; in fact, the instruction was necessary given the State's argument to the jury. Thefirst part of this instruction

serves that purpose. Furthermore, contrary to the State's argument, the proposed instruction does encompass the situation wheremorethan oneindividual andagovernment agent are involved. Thesecond part of the instruction covers that situation. Wehold that the District Court erred in refusing to give Shawls Proposed Wereverse foregoing. Jury Instruction No. 21.

andremand for anewtrial in conformity with the

Weconcur: ,

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