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: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert Keller, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Donald L. Shaffer, Attorney at Law, Libby, Montana 

f ._ James A. Manley, Attorney at Law, Polson, Montana c 

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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 several errors by the District 

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, since it is controlling 

and we find the District Court erred: 

Did the District Court improperly allow 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 Department hired Mike Hewson to purchase 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 obtain backup. 

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 $20 bills for a drug buy and made sure Hewson was 

wearing a transmitter wire. Gassett monitored the activity from 

a vehicle parked some distance from LaCossfs home. 

When he arrived at the LaCoss residence, Hewson, who had never 

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been 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 alleges a 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 surveillance transmitter and 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 

information with 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 LaCossls home on the 

morning of June 27. LaCoss testified that she had not invited 

Hewson to her home that morning nor had she made prior arrangements 

for a drug transaction. LaCoss also stated she had not invited 

defendant to her house on the morning of June 27. Defendant said 
he had come to LaCossls home to inquire if she was still planning 

a dinner party for that evening. 

Hewson testified that he bought a "bindle'' containing one gram 

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 version of the transaction differs significantly from 

Hewson's testimony. LaCoss testified that Hewson brought the drugs 

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 there was no drug transaction nor was 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 Gassett who was 

permitted, over defendant's objection, to give his opinion 

regarding the meaning of certain parts of the conversation on the 

tape. 
On February 24, 1989, the jury returned a verdict of guilty 

from which defendant now appeals. 

Did the District Court improperly allow opinion testimony 

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 tape makes any mention of drugs or any 

sort of drug transaction. The State, however, contended at trial 

that parts of the conversation alluded to a drug transaction. In 

an effort to support the contention the State offered the testimony 

of Officer Gassett, the detective who monitored the June 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 conversation between 

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 that would 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 the drug 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 in relation to drug deals? 

A. Yes, sir. 

Q. What is that? 

A. In that lots of times in most times that 

I have 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 are present, they tend to talk in 

soft, low tones, not loud. 

Q. Okay. And is there any significance to 

people at the point of the transaction talking 

softly and low tones of voice? 
A. I think this is when, 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 58 Mike Hewson, 

thank you? 

A. Yes, sir. 

Q. Does that have any significance to you? 

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 this part here relates that Rick 

had given him $10.00 for $90.00 for the crank 

after Mike 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 saying what. What is 

your opinion as to what 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 in my 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 tape and everybody was 

using a voice intonation; is that right? 

A. Yes, sir. 

Q. You know what I am talking about? 

A. I believe so. 

Q. Voices go up and down and change depending 

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 Gassett 
testified as an expert witness in this matter, nor would his 

testimony qualify under Rule 702 of the Montana 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 lay witnesses: 

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 the witness 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 is not "helpful to a clear understanding of his testimony 

or the determination 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 States v. Marzano (7th Cir. 1976), 537 
F.2d 257; DeLoach v. United States (D.C. Cir. 1962), 307 F.2d 653. 

We reverse and remand. 

y,l Chief Justice 

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