No. 89-413 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

STATE OF MONTANA, Plaintiff and Respondent,

-vsFREDERICK ROD WEBB, Defendant and Respondent.

APPEAL FROM: DistrictCourt oftheNineteenthJudicialDistrict, In and for the County of Lincoln, The Honorable Robert Keller, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: Donald L. Shaffer,Attorney at Law, Libby, Montana

f._ JamesA. Manley,Attorney at Law, Polson,Montana

c LO 4 ;For Respondent: Honorable Marc Racicot, Attorney General, Helena, Montana Patricia Schaeffer Jordan, Assistant Attorney General, Helena,Montana Scott B. Spencer, County Attorney, Lincoln County Libby, Montana

Submitted on Briefs: April 5, 1990 Filed: Decided: May 24, 1990 *Justice John Conway Harrison delivered the Opinion of the Court.

Defendant Frederick Webb was convicted of criminal sale of dangerous drugs in the Nineteenth Judicial ~istrict,Lincoln County. Defendant appeals,alleging severalerrorsby theDistrict Court, including improper admission of expert opinion testimony. We reverse and remand. Defendant presents several issues for review. Only the following issue will be addressed,however, sinceit iscontrolling and we find the District Court erred: DidtheDistrict Court improperlyallow opinion testimony by a deputy sheriff, as to the meaning and conclusions to be drawn from a tape-recorded conversation? This case arose out of an undercover drug investigation conducted in Lincoln County, Montana during the summer of 1988, which resulted in the prosecution of a number of persons for sale of dangerous drugs. As part of the investigation the Lincoln County Sheriff's DepartmenthiredMikeHewsontopurchase narcotics

as an undercover agent. The Sheriff's Department provided surveillance for Hewson,who would set up a deal and then contact either Detective Donald Bernall or Detective Klint Gassett of the Sheriff's Department to obtainbackup. On the morning of June 27, 1988,Hewson went to the home of Vicki LaCoss in Libby. Hewson had met with Detective Gassett who gave Hewson five $20bills for a drug buy and made sureHewsonwas wearing a transmitter wire. Gassett monitored the activity from a vehicle parked some distance from LaCossfshome. Whenhe arrived at theLaCossresidence,Hewson,whohad never 2been there before, found Vicki LaCoss and her three-year-old daughter watching television. A short while later the defendant arrived, introductory pleasantries were exchanged, and defendant and Vicki LaCoss began playing cribbage, continuing an on-going competition. Hewson remained at the LaCoss residence for a short time. During this time, the State allegesa drug transaction took place where defendant sold Hewson a gram of methamphetamine

("crank1')for $90 and Hewson gratuitously shared some of the drug with Vicki LaCoss for her part in setting up the deal. As he was leaving the house, Hewson read the license plate number of defendant's blue van into the surveillancetransmitterand Officer Gassett ran a check which revealed the van belonged to the defendant. Hewson later met with Officer Bernall to give him the drugs. On September 14, 1988, defendant was arrested and charged by informationwith two counts. The first count was dismissed,but the second count, charging defendant with the sale of dangerous drugs, was tried to a jury in Lincoln County on February 22-24, 1989. The State's version of what transpired on June 27, 1988 differs greatly from defendant's version. Hewson testified that he had met LaCoss once before and had, by a telephone call,made prior arrangements to complete a drug buy at LaCosslshome on the morning of June 27. LaCoss testified that she had not invited Hewson toherhome thatmorning nor had shemadeprior arrangements for a drug transaction. LaCoss also stated she had not invited defendant to her house on themorning of June 27. Defendant saidhe had come to LaCosslshome to inquire if shewas still planning

a dinner party for that evening. Hewson testified that hebought a "bindle''containing onegram of crank from defendant for $90 and that Hewson and LaCoss then went to a back area of the house where he gave LaCoss some of the drugs. Hewson also testified that there was some discussion between him and the defendant regarding the sale of the crank. LaCossls versionofthetransactiondiffers significantlyfrom Hewson'stestimony. LaCoss testifiedthatHewsonbrought thedrugs to her house; that there was no conversation regarding a drug transaction in defendant's presence; that defendant never saw or was in any way involved in any drug transaction;and that she and Hewson shared drugs in a back area of her house out of defendant's presence. Defendant testified therewas no drug transaction norwas any money exchanged in his presence. Defendant also testified he did not see any drugs in the house nor was he aware that Hewson and LaCoss shared drugs in another part of the house on June 27. A tape, recorded by surveillance, of the activities at the LaCoss home on June 27, 1988 was introduced into evidence and played for the jury. Different versions of the recorded conversation transcribed by the State and the defense were also introduced. On rebuttal,the State called Officer Gassettwho was permitted, over defendant's objection, to give his opinion regarding themeaning of certain parts of the conversation on the tape.On February 24, 1989, the jury returned a verdict of guilty fromwhich defendant now appeals. DidtheDistrictCourt improperlyallowopiniontestimony by a deputy sheriff, as to the meaning and conclusions to be drawn from a tape-recorded conversation? Much of the electronic surveillance tape recording was unintelligible. Neither the State s nor the defendant s transcribed version of the tapemakes any mention of drugs or any sort of drug transaction. The State,however, contended at trial that parts of the conversationalluded to a drug transaction. In an effortto supportthe contentiontheStateoffered thetestimony of Officer Gassett, thedetectivewhomonitored theJune 27 events at the LaCoss home by electronic surveillance. Officer Gassett was allowed to give his opinion as to the significance of certain parts of the recorded conversationbetween Hewson, LaCoss, LaCossts three-year-old daughter, and the defendant:Q. And that is transcribed as Mike Hewson or we waited for him,Vicki LaCoss?

Q. Then there is a thing by [the daughter]. Then Mike Hewson, are you waiting for him. Vicki LaCoss, uh-huh. Q. Okay. Does that sound to you like conversations thatwould tie into a drug deal? A. Yes, sir. Q. And why is that? A. Waiting for in my opinion, they are waiting for delivery of thedrug or whoever is going to bring it over.Q. And it says, Rick Webb says, yes, I kind of thought that you would like that. Now, is that consistent? Does that mean anything to you or do you feel that has any significance? 

### A. I feel that it has significance. Q. What is that? A. In that they are talking about the price and reference to crank; what he paid, $90.00, comes out 

## -- usually a lot of times, you pay $100.00 for it. Q. So you thought of that as being a significant reference to price and in what regard meaning what? A. It is cheaper than expected.

Q. Okay. Now, when we listened to the tape and listened to the tape, it appeared there was people talking at that time? A. Yes, sir. Q. And were they talking loudly, softly or what? A. Softly. Q. And is there any significance to people talking real softly inrelation to drugdeals? A. Yes, sir. Q. What is that? A. In that lots of times in most times that 

### Ihave been involved with drugs and when they get down to actually talking about the drugs, it doesn't matter where they are at, how may people there arepresent, they tend to talk in soft, low tones,not loud. Q. Okay. And is there any significance to people at thepoint of the transactiontalking softly and low tones of voice?A. I think this iswhen, yes. Q. And why is that? A. I think this is where the drugs is being exchanged.

Q. And then there is another thing at 55

[referring to tape recorder counter number] then, [the daughter], and then 58Mike Hewson, thank you? A. Yes, sir. Q. Does that have any significance toyou? A. Yes, sir. Q. What is that? A. In that the crank, one gram of crank cost $100.00. I had given Mike $100.00 in five twenties and thispart here relates that Rick had given him $10.00 for $90.00 for the crank afterMike paid a hundred dollars. Q. Referring to anything in making the statement saying thank you other than what we are talking about here? A. No, he would have been receiving the $10.00 back from Mike in my opinion.

Q. They have transcribed as Rick Webb saying that is a good one, Vicki and how did the State transcribe that one? 

### A. From Mike Hewson and a good one, Rick. Q. Okay. Now, the jury will have to ultimately decide who is sayingwhat. What is your opinion as towhat is being said? A. A good one, Rick. Q. 

### By who?A. By Mike Hewson. 

### Q. Would that have any significance? A. Yes. Q. And what would that be? A. That would be that at this point, he has looked at his drugs or at the crank and the bindle and inmy opinion he is saying that it is good. Q. Is that consistent with what was going on or should have been going on? A. Yes. Q. Is that consistent with what Mike Hewson said went on? A. Yes, sir.

Q. Now, first, there is a specific tone of voice that everybody uses in this conversation; is that correct? A. Yes. Q. You listened to the tapeand everybodywas using a voice intonation; is that right? A. Yes, sir. Q. You knowwhat I am talking about? A. Ibelieve so. Q. Voices goup and down and changedepending on who they are responding to; is that right? A. Yes. Q. And these particular conversations especially about Woodsy was, had a very specific voice coloration; is that right? A. Yes, sir. The State does not maintain on appeal that Officer Gassetttestified as an expert witness in this matter, nor would his testimonyqualifyunder Rule 702 of theMontana Rules of ~vidence, since no scientific, technical or other specialized knowledge was necessary to assist the trier of fact in understanding the evidence. The State does argue, however, that Officer Gassett's testimony is admissible pursuant to Rule 701,M.R.Evid. The rule sets forth two guidelines to be met in order for opinion testimony to be given by laywitnesses: 

### If the witness is not testifying as an expert,his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of thewitness and (b)helpful to a clear understanding of his testimony or the determination of a fact in issue. Rule 701,M.R.Evid. We find that the testimony of Officer Gassett regarding the significance of certain parts of the tape recording fails subsection (b) of Rule 701, M.R.Evid., in that his opinion testimony isnot "helpfulto a clearunderstanding ofhis testimony

or thedetermination of a fact in issue." No language peculiar to drugs or drug deals was used in the tape-recorded conversation. The jury was capable of understanding the plain language of the conversation without the aid of officer Gassett's opinion testimony. Where terms are capable of being understood by the layman,and where the jury is capable of interpreting the language or slang involved, lay witness opinion testimony is improper, as is the lay witness's conclusion or interpretation of the conversation. See,United Statesv. Marzano (7thCir. 1976), 537F.2d 257; DeLoachv. UnitedStates (D.C. Cir. 1962), 307 F.2d 653. We reverse and remand. 

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