NO. 95-273

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

APPEAL FROM: District Court of the Twentieth Judicial District,

In and for the County of Lake,

The Honorable C. B. McNeil, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, State Appellate Defender,

Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Cregg Coughlin, Assistant Attorney General,

Helena, Montana

Kim Christopher, Lake County Attorney,

Mitchell Young, Deputy County Attorney,

Poison, Montana

Filed:

Submitted on Briefs: November 2, 1995

Decided: December 5, 1995
Justice Charles E. Erdmann delivered the opinion of the Court.

Defendant Bethany Lee Long appeals the judgment of the

Twentieth Judicial District Court, Lake County, convicting her of

three felony counts of criminal sale of dangerous drugs in

violation of 5 45-g-101, MCA (1991). We affirm in part and reverse

in part.

The issues on appeal are as follows:

1 . Did the District Court err in refusing Long's proposed

jury instruction regarding the credibility of informant testimony?

2 . Did the District Court err in sentencing Long without

insuring that evidence offered in mitigation was properly made a

part of the record?

3 . Did the District Court err in reserving its determination

of Long's status as a dangerous or nondangerous offender?

FACTS

The Mission Mountain Drug Task Force based in Ronan employed

Troy Stevens as an undercover informant. Stevens had previously

been charged with criminal possession of marijuana and, as a result

of that charge, agreed to act as an informant if the authorities

would take the charge off his record. Stevens worked off his fine

as a part-time informant and later became a full-time informant for

the Mission Mountain Drug Task Force. The task force paid Stevens'

rent and paid him for each drug buy.

On April 28, 1993, Stevens met an individual he later

identified as Bethany Long at the Club Bar in Ronan. Long told him

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that she had some "smoke" if he was looking to buy some. Stevens

left the bar and contacted agents of the task force who searched

him, attached a body wire, and provided him with money to buy the

drugs. Stevens returned to the bar, met Long, and purchased a

quarter-ounce bag of marijuana. After the drug purchase, Stevens

met again with agents of the task force. On May 7, 1993, Stevens

and Long met at the Midnight Market in Ronan, where Stevens

purchased marijuana under task force supervision. On June 2, 1993,

Stevens called Long at her home to arrange a third marijuana

purchase which was made in Long's vehicle later that day. A task

force agent observed and recorded this third and final transaction

between Long and Stevens, though the agent only had a profile view

of the driver of the car.

The material purchased by Stevens was analyzed by the State

Crime Lab and determined to be marijuana. Long was subsequently

charged with three felony counts of criminal sale of dangerous

drugs in violation of § 45-9-101(l), MCA (1991). Following a jury

trial in January 1995, Long was convicted on all three counts. On

March 10, 1995, the District Court sentenced Long to a term of

twenty years in the Women's Correctional Facility, with thirteen

years suspended. This appeal follows.

ISSUE 1

Did the District Court err in refusing Long's proposed jury

instruction regarding the credibility of informant testimony?

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We review jury instructions in criminal cases to determine

whether the instructions as a whole fully and fairly instruct the

jury on the law applicable to the case. State v. Claric (Mont.

1995), 894 P.2d 946, 949, 52 St. Rep. 377, 378 (citing State v.

Brandon (19941, 264 Mont. 231, 237, 870 P.2d 734, 737; State v.

Lundblade (1981), 191 Mont. 526, 529-30, 625 P.2d 545, 548).

Long's defense at trial was one of general denial and mistaken

identity. Stevens was the only individual who positively

identified her as the individual who sold him marijuana and Long

argues that the issue of Stevens' credibility is crucial to her

case. Long proposed the following jury instruction to the District

Court:

You have heard testimony that Troy Stevens, a

witness, has received compensation and favored treatment

from the state in connection with this case. You should

examine this testimony with greater caution than that of

ordinary witnesses. In evaluating this testimony, you

should consider the extent to which it may have been

influenced by the receipts of compensation and favored

treatment from the state.

The District Court refused Long's proposed instruction and instead

gave the following general instruction regarding witness

credibility:

You are the sole judges of the credibility, that is

the believability, of all the witnesses testifying in

this case, and of the weight, that is the importance, to

be given their testimony. In judging the effect of

evidence you must be fair and impartial and not

arbitrary. While you have discretion in judging the

effect of evidence, you must exercise that discretion in

accordance with these instructions.

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The evidence presented by one witness whom you

believe is sufficient for the proof of any fact in this

case.

You are not bound to decide any fact based upon the

testimony of a larger number of witnesses whose testimony

does not convince you against the testimony of a smaller

number of witnesses or against a presumption, or other

evidence which does convince you.

In determining what the facts are in the case, it

may be necessary for you to determine what weight should

be given to the testimony of each witness. To do this

you should carefully consider all the testimony given,

the circumstances under which each witness has testified,

and every matter in evidence which tends to indicate

whether a witness is worthy of belief. You may consider:

1 . The appearance of each witness on the stand,

his manner of testifying, his apparent candor or lack of

candor, his apparent fairness or lack of fairness, his

apparent intelligence or lack of intelligence, his

knowledge and means of knowledge on the subject upon

which he testifies.

2 . Whether the witness has an interest in the

outcome of the case or any motive, bias or prejudice.

3 . The extent to which each witness is either

supported or contradicted by other evidence in the case.

4 . The capacity of the witness to perceive and

communicate.

5 . Proof that the witness has a bad character for

truthfulness.

If you believe that any witness willfully testifies

falsely as to any material matter in the case, you must

reject such of his testimony as you believe to be false

and you have the right to view the rest of his testimony

with distrust and in your discretion disregard it,

unless, after examination of all the evidence, you find

such testimony worthy of belief. You need not find a

witness's testimony false if he or she while testifying:

unintentionally commits an error in his or her

testimony, or is unintentionally mistaken as

to some matters or facts about which he or she

testifies, or gives evidence concerning

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matters not material in this case without

intention of deceiving the Court or jury.

Long claims that her proposed instruction goes to the essence

of her defense and that denial of the instruction violated her

substantial rights, constituting reversible error. The State

maintains that viewed as a whole the instruction given was proper

and that Long had the opportunity at trial to present the issue of

Stevens' credibility as a paid informant.

District courts are given broad discretion in instructing the

jury and while the defendant is entitled to have instructions on

her theory of the case, she is not entitled to an instruction

concerning every nuance of her argument. State v. Ross (1995), 269

Mont. 347, 358, 889 P.2d 161, 167. If the instructions, as a

whole, fully and fairly present the applicable law, they will be

deemed to be sufficient. State v. Goodwin (1991) 249 Mont. 1, 13,

813 P.2d 953, 961. To constitute reversible error, the district

court's actions must affect substantial rights of the party. State

v. Bradley (1995), 269 Mont. 392, 395, 889 P.2d 1167, 1168.

We have stated that the "testimony of informants should be

scrutinized closely to determine 'whether it is colored in such a

way as to place guilt upon a defendant in furtherance of the

witness's own interests.'" State v. Gommenginger (1990), 242 Mont.

265, 273, 790 P.2d 455, 460 (citing Fletcher v. United States

(D.C. Cir. 1946), 158 F.2d 321, 322). In Gommensinser, however,

the issue was the scope of cross-examination rather than the

sufficiency of jury instructions. We determined that limiting

6
cross-examination of an informant's background could result in the

jury viewing the credibility of the informant in a vacuum. We

stated that the defendant should be afforded latitude in

cross-examining drug informants and should be allowed to introduce

evidence regarding informants' drug use relevant to their motive to

testify falsely. Gommensinser, 790 P.2d at 461. Our review of the

record indicates that Stevens was cross-examined in regard to his

background and status as a paid informant which allowed Long to

establish a possible motive for unreliable testimony.

We directly addressed the issue of jury instructions related

to informant credibility in State v. Webb (1992), 252 Mont. 248,

828 P.2d 1351. Webb proposed two instructions on informant

testimony and credibility which were similar to Long's proposed

instruction. We affirmed the district court's refusal of Webb's

proposed instructions and held that the instructions given by the

court accurately reflected the applicable law. --....-, Webb 828 P.2d at

1354. One of the instructions given in Webb did specifically

address "paid informants," but our approval of that instruction

does not mean that other general instructions would not have

sufficed. The instruction given by the District Court in this

case adequately addresses witness motive, bias or prejudice, and

bad character for truthfulness. Where the proposed instruction is

adequately covered by a given instruction, it is not error for the

trial court to refuse the proposed instruction. State v. Floyd

(1990), 243 Mont. 269, 275, 790 P.2d 475, 479.

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We therefore conclude that the jury instructions as a whole

accurately reflect the applicable law, and therefore, are

sufficient. In refusing the proposed instruction, the District

Court did not abuse its discretion or affect Long's substantial

rights. We hold that the District Court properly instructed the

jury and affirm the lower court on this issue.

ISSUE 2

Did the District Court err in sentencing Long without insuring

that evidence offered in mitigation was properly made a part of the

record?

Letters on behalf of Long were submitted to the District Court

for purposes of mitigation prior to sentencing. The following

exchange between defense counsel and the District Court regarding

the letters took place at the sentencing hearing.

DEFENSE COUNSEL: Your Honor, I believe the Court has

received some letters from relatives; is that correct?

THE COURT: Yes, the Court has. And they've been placed

in the court file.

The letters were never formally offered into evidence and they do

not appear in the record on appeal. Long argues that the District

Court "may" not have considered the letters as mitigating evidence

since they are not in the record and requests us to remand for a

new sentencing hearing. We do not find Long's argument persuasive.

We addressed the issue of pre-sentence information in State v.

McPherson (1989), 236 Mont. 484, 771 P.2d 120. In McPherson, we

held that "a defendant is entitled to have his sentence predicated

8
on substantially correct information." McPherson, 771 P.2d at

123-24 (citing State v. Baldwin (1981), 192 Mont. 521, 524, 629

P.2d 222, 224; State v. Olsen (1980), 189 Mont. 43, 48, 614 P.2d

1061, 1064; State v. Knapp (1977), 174 Mont. 373, 379, 570 P.2d

1138, 1141).

The defendant has an affirmative duty to present evidence

showing inaccuracies in the sentencing information. State v.

Trangsrud (1982), 200 Mont. 303, 308, 651 P.2d 37, 40 (citing State

v. Radi (1979), 185 Mont. 38, 41, 604 P.2d 318, 320). If Long had

wanted to ensure the letters were made part of the record, the

defense counsel needed to do more than merely ask the District

Court if it had received them. Section 46-18-115, MCA (1991),

states that at the sentencing hearing the court shall give the

defendant the opportunity to make a statement and "to present any

information in mitigation of punishment or reason why the defendant

should not be sentenced." Long did not attach the letters to her

sentencing memorandum nor did she move their admission into

evidence. Since the letters were never offered by Long as evidence

there can be no error based on their absence from the record.

Long also argues that the District Court 'I may 'I not have

considered the letters. In McPherson, we stated that this Court

"will not strain at worst-case assumptions in order to find a

mistake and we presume the District Court to be correct."

McPherson, 771 P.2d at 124 (citing State v. Herrera (1982), 197

Mont. 462, 643 P.2d 588). There is nothing in the record which

9
supports Long's speculation that the letters were not considered

and we cannot conclude that her sentence was based on inaccurate or

incomplete information. The District Court did not err on this

issue.

ISSUE 3

Did the District Court err in reserving its determination of

Long's status as a dangerous or nondangerous offender?

The District Court sentenced Long to confinement in the

Women's Correctional Facility for a term of ten years with three

years suspended on Count I; for a term of five years with all

suspended on Count II; and for a term of five years with all

suspended on Count III. The imposed sentences ran consecutively

for a total sentence of twenty years, with thirteen years

suspended. The District Court also reserved the right pursuant to

5 46-18-404(4), MCA (1991), to make the determination of whether

Long is a dangerous or nondangerous offender at the time of a

revocation of the suspended sentence.

The District Court's decision to reserve Long's dangerous/

nondangerous designation is a question of law. We review questions

of law to determine if the district court's interpretation is

correct. Farmers Plant Aid, Inc. v. Huggans (1994), 266 Mont. 249,

252, 879 P.2d 1173, 1175.

When the District Court sentenced Long, § 46-18-404(4), MCA

(1991), provided as follows:

If an offender is given a probationary sentence that

is subsequently revoked, the court may make the

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determination of whether the offender is a dangerous or

nondangerous offender at the time of the revocation

proceeding.

"Probation" is defined in § 46-l-202(21), MCA (19911, as "release

by the court without imprisonment of a defendant found guilty of a

crime. The release is subject to the supervision of the department

of corrections and human services upon direction of the court."

Long contends that the plain language of § 46-18-404(4), MCA

(1991), permits the District Court to "reserve" a dangerous/

nondangerous determination only when the defendant has been given

a probationary sentence and the probationary sentence is later

revoked. Since "probation" is defined as "release by the court

without imprisonment," and since Long was sent to prison, she

argues that the District Court had no authority to reserve the

designation for some future point in time.

The State claims Long's interpretation of the statute is

unreasonable and argues that the suspended portion of Long's

sentence is a probationary period, notwithstanding the fact that

the sentence also includes a term of imprisonment. The State

maintains that in order to determine the true intent of the

Legislature, we must construe § 46-18-404(4), MCA (1991), in

conjunction with other statutory provisions to "attain its evident

object or purpose." Long maintains there is no reason to go beyond

the plain language of the statute but that, nevertheless,

legislative history would support her position that the intent of

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the Legislature was to address "probationary" sentences which do

not include a term of imprisonment.

Where the language of a statute is clear and unambiguous, we

look no further than to the plain meaning of the statute for its

interpretation. Howell v. State (1994), 263 Mont. 275, 284, 868

P.2d 568, 573. It is only when the intent of the Legislature

cannot be determined from the language of the statute that this

Court will examine legislative history. United States v. Brooks

(19951, 270 Mont. 136, 139, 890 P.2d 759, 761. We conclude that

the language of 5 46-18-404(4), MCA (1991), is clear and

unambiguous.

Under 5 46-18-404(4), MCA (1991), the district court may

reserve making a dangerous/nondangerous determination only if an

offender initially has been given a probationary sentence. Under

5 46-l-202(21), MCA (1991), a probationary sentence does not

include imprisonment. Since Long was sentenced to a term of seven

years in the Women's Correctional Facility, she was not given a

probationary sentence and § 46-18-404(4), MCA (1991), is

inapplicable.

A district court has no power to impose a sentence in the

absence of specific statutory authority. State v. Hatfield (19931,

256 Mont. 340, 346, 846 P.2d 1025, 1029. We conclude that the

District Court did not have statutory authority to reserve its

designation of Long as a dangerous or nondangerous offender and we

reverse the District Court on this issue.

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Pursuant to our holding on this issue, we order stricken from

the District Court's March 10, 1995, Judgment and Commitment the

language which reserves the right to make a dangerous/nondangerous

determination. Furthermore, our review of the record indicates

that Long satisfies the criteria of § 46-18-404(l), MCA (1991),

necessary to be designated as a nondangerous offender. Therefore,

we designate Long as a nondangerous offender for purposes of parole

eligibility.

Justice

We concur:

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December 5, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

WILLIAM F. HOOKS

State Appellant Defender

P.O. Box 200145

Helena. MT 59620

Deborah Kim Christopher

Lake County Attorney

106 4th Avenue, East

Poison, MT 59860

Joseph P. Mazurek, Attorney General

Cregg Coughlin, Assistant Attorney General

Justice Bldg.

Helena, MT 59620

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA

BY:

Deputy