No. 90-163 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

STATE OF MONTANA, Plaintiff and Respondent,

-vsCURTIS ALAN PAULSON, Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, TheHonorable ThomasM. McKittrick,Judgepresiding.

COUNSEL OF RECORD: For Appellant: Kenneth R. Olson argued; Attorney at Law, Great Falls, Montana. For Respondent: Marc Racicot, Attorney General, Helena, Montana; George Schunk argued, Assistant Attorney General, Helena Montana; Patrick L. Paul, County Attorney, Great Falls,Montana; Stephen E. Hagerman, Deputy County Attorney, Great Falls, Montana.

. ., .$ . , ,. 3 LY.,. : -.. . . ,-.> r-F,.,
, ; < .> ' ..--

"+-, $.. . , ,,L.L ...< - , ..~.. . ..,.,". ..... <-, :;-) :$ >; ;,"!,j>; y.:.,: ],-i Filed: Heard: March 6, 1991 Submitted: April 4, 1991 Decided: September 13, 1991Justice Fred J. Weber delivered the Opinion of the Court. Defendant, Curtis Alan Paulson, was convicted of the offense of criminalpossession of dangerous drugswith the intent to sell,

a felony pursuant to 5 45-9-103,MCA, followinga jury trial in the District Court for the Eighth Judicial District, Cascade County. Defendant appeals. We affirm. The issues as restated are: 1. Must accomplice testimony as to other crimes,wrongs or acts be corroborated before it is admissible? 2. Should this Court adopt a sufficiency of the evidence standard of proof which must be met before evidence of other crimes,wrongs or acts is admissible? 3. Did the District Court err when it admitted testimony of other crimes,wrongs or acts of the defendant? 4. Was the defendantdeniedhis right to effective assistance of counsel under the Sixth Amendment to the United States Constitution? 5. Was the evidence sufficient to support a verdict of guilty

on the charge of criminal possession of dangerous drugs with intent to sell? 6. Does the sentence imposed constitutean excessive sanction in violation of the defendant's rights under the Eighth Amendment to theUnited States Constitution and Art. 11, 5 22 of theMontana Constitution? As background information, we summarize the evidence as submitted by the State. Where necessary, we will set forth 2additional information. The defendant, Curtis Paulson, ran a marijuana importing and distribution business in Great Falls, Montana for a period of at least ten years. This evidence showed the following general pattern of operation. Paulson imported the marijuana from a grower in Hawaii. Themarijuana was delivered by UPS tovarious addresses inGreat Falls. Each package weighed from 15 to 40 pounds and consisted of compressed bales of marijuana. The smell of the marijuana was suppressed through the use of multiple layers of plastic wrapping, duct tape, and baking soda to avoid detection by drug-sniffing dogs at airports. Paulson arranged to have the marijuana packages shipped to different addressesusing incorrect firstnames fortherecipients. Each recipient accepted the package from UPS and then marked the package "Return to Sender1'. The package was allowed to sit for a few days. This precaution was intended to create an alibi if law enforcement personnel traced the packages, obtained a search warrant,and seized theboxes. The recipientcould claim theboxes did not belong to him because the name was incorrect and were waiting to be picked up by UPS. After the cautionary waiting period, Paulson either picked up the marijuana from the recipient

or left the boxes with the recipient for storage until needed for sale. Paulson and the recipient broke up the marijuana as needed for sale, and weighed the marijuana and placed marketable quantities in plastic ziplockbaggies. In November, 1988,the Great Falls Police Department's drug investigation led to a confidential informant who made severalcontrolled buys ofmarijuana fromDoug Smith athis home. A search of Doug Smith's home resulted in seizure of approximately four and one-half pounds of marijuana, a scale, cash,plastic baggies, and otherparaphernalia typicallyused in sale operations. Doug Smith gave a detailed statement to the police and identified Curtis Paulsonashis sourceof themarijuana. This information confirmed other sources that had over the past several years identified to authorities that Curtis Paulson was a major drug dealer in Great Falls. The State Identification Bureau tested the items seized from Doug Smith's home and found Curtis Paulsonls fingerprints on one of the bags of marijuana and on one of the baggies found with the scale. Paulsonpresented evidence to explain his fingerprints on the baggies found in Doug Smith's home through testimony of a witnesswhohad observed Paulsonand Doug Smith cleaning gamebirds in Doug Smith's back yard and placing the birds into baggies for freezing. 

### A searchof CurtisPaulsonlsresidence resulted in the seizure of 1,000-watt grow lamps, a hood, a timer, tubing, planters, a carbon dioxide dispenser, transformers,shippingboxes and labels, falsepicture identificationcards, financial and banking records, and cash. No marijuana was found during the search. I Must accomplice testimony as to other crimes,wrongs or acts be corroborated before it is admissible? Over objections of defense counsel, the State presentedtestimony from two admitted Great Falls drug dealers thatdetailed CurtisPaulson's importationanddistribution scheme inGreat Falls spanning at least ten years. Jar1 Garber and Dale Davidson both had previously receivedUPS shipmentsof marijuana from Hawaii for Paulson in a manner similar to that described by Doug Smith. The testimony indicatedthat Paulsononly used a recipient two or three times and then arranged delivery to a different recipient. Both Garber and Davidsonwereprevious recipientsofmarijuana shipments for Paulson. Neither Garber nor Davidson were involved in any manner in the drug shipments for which Paulson was charged. Paulson argues that 5 46-16-213,MCA, requires corroboration of Smith's accomplice testimony to convict Paulson and therefore the same standard should apply to the accomplice testimony of Garber and Davidson as to other crimes, wrongs or acts. Section 46-16-213,MCA, states: A conviction cannot be had on the testimony of one responsible or leqallv accountable for the same offense, as defined in 45-2-301, unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connectthedefendantwith the commissionof theoffense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. (Emphasis supplied.) Section 46-16-213, MCA, prohibits a conviction on the testimony of a person legally accountable for the same offense unless that testimony is corroborated by other evidence. Neither Garber nor Davidson were chargeable with the crimes for which Paulson was convicted. We conclude there is no basis for applying S 46-16-213,MCA, to the testimony of Garber and Paulson.We hold that as to crimes, wrongs or acts other than those upon which thedefendant is charged, accomplice testimony need not be corroborated before it is admissible. I1 Should thisCourt adopt a sufficiencyof theevidence standard of proof which must be met before evidence of other crimes,wrongs

or acts is admissible? Defendant also argues that thisCourt shouldadopt a rule that before admitting the testimony the District Court must determine that the sufficiency of the evidence would support a finding by a jury that thedefendant committed the other crimes,wrongs or acts. Huddleston v. United States (1988), 485 U.S. 681. Huddleston addressed the issue of the rule or standard to be applied in federal courts in determining the admissibility of other crimes, wrongs or acts evidence under Rule 404(b), Fed.R.Evid. In Montana, the Modified Just Rule determines the admissibility of other crimes, wrongs or acts under Rule 404(b), M.R.Evid. State v. Matt (Mont. 1991), - P.2d 

## -, I 48 St.Rep. 614, 616. Neither the old Just Rule under State v. Just

(1979)

## , 184Mont. 262, 602P.2d 957,nor thenewModified JustRule inMatt incorporate a sufficiency of the evidence standard. While developing the Modified Just Rule in Matt, this Court considered imposing a standard of review in additionto theModified JustRule and concluded that the incorporation of Rules 404(b) and 403, M.R.Evid., into the Modified Just Rule was adequate protection against improper admissibility of Rule 404(b) evidence. ThisCourtconcluded that a separate standard of reviewwas neither necessary

nor compatible with theModified JustRule. Upon reconsideration in this case we decline to impose such a standard of review to be used in addition to the Modified Just Rule in determining the admissibility of Rule 404(b) evidence.

Did theDistrict Court err when it admitted testimonyof other crimes,wrongs or acts of the defendant? The defendant objected to two aspects of other crimes evidence. The firstwas the testimonyby Garber and Davidsonwith regard to the shipment of drugs. The second was the objection to thetestimonyof DetectiveLockerbythat the 1,000-wattgrow lamps, hood, timer, tubing, planters, carbon dioxide dispenser, and transformers were also evidence of a marijuana operation and admissible as other crimes evidence. Defendant asserts the other crimes testimony was highly prejudicial and improperly admitted under the Just Rule. Just, 184 Mont. 262, 602 P.2d 957. We will analyze the contentions on the part of the defendant under the Modified Just Rule as adopted in State v. Matt. The Modified Just Rule states: (1) The other crimes,wrongs or actsmust be similar. (2) The other crimes,wrongs or actsmust not be remote in time. (3) The evidence of other crimes,wrongs or acts is not admissible to prove the character of a person in order to show thathe acted in conformitywith such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.(4) Although relevant, evidence may be excluded if its probative value issubstantially outweighedby thedanger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Element (1)of theModified JustRule requires that the other crimes,wrongs or acts be similar. With regard to the testimony of Garber and Davidson, such evidence related to Paulson's involvement 

### in the distribution and sale of marijuana. Such testimony described methods of shipping marijuana from Hawaii to the witnesses in Great Falls, in a manner directly comparable to themethod used in connectionwith the charged crimes as testified to by Smith. We conclude that element (1)has been met so far as the Garber and Davidson testimony is concerned. Defendant argues that the evidence of the possession of grow equipment is not similar to the charged offense. Detective Lockerby testified the equipment included 1,000-watt bulbs and transformers used to change voltage from 110 volts to about 400 volts as needed, because of the amount of energy required by the light; and that grow equipment of this type and size is circumstantial evidence of an operation consistent with the cultivation of marijuana with intent to sell. We point out that the evidencewas admissible as apart of the corpus delicti of the charged offenses. With regard to element (1) of the Modified Just Rule, the method by which Paulson had the grow equipment shipped

was similar to the method by which Paulson had the marijuana shipped from Hawaii. Detective Lockerby testified that the shipping label on the package used for the shipping of the growequipment was addressed to ItJim Garber,Itat a Great Falls address. He further testified that thepersonwho lived at that addresswas "Jarel Garber.It This allowed recipient Garber to retain the package for several days so that he could contend it was not addressed to him should police authorities investigate. We conclude that the admission of the grow equipment has met the requirements of element (1)of the Modified Just Rule. Under element (2) of theModified Just Rule,defendant argues that the testimony on the part of Garber and Davidson established offenses too remote in time. Garber testified he had received a marijuana shipment two and one-half years before trial. Davidson testified that the defendant had been shipping marijuana from Hawaii for at least ten years. The District Court concluded that the testimonies showed a continuous pattern of conduct by the defendant and were therefore admissible. In State v. Tecca (1986), 220 Mont. 168, 172, 714 P.2d 136, 139, this Court quoted from State v. Doll (1985), 214 Mont. 390, 692 P.2d 473, stating: Whether evidence of prior crimes is too remote is directed to the discretion of the district court and is a matter that goes to the credibility of the evidence rather than its admissibility, unless the remoteness is so great that the proffered evidence has no value. We agree that an isolated incident from nine years ago is too remote; however, where there is a continuing pattern of similar conduct, the remoteness problem is alleviated. 

# . 

# . . The testimony of Garber and Davidson demonstrated that the defendant's conduct had occurred in a consistent manner over a period of close to ten years. We affirm the conclusion of theDistrict Court that the Garber and Davidson testimony was not too remote in time under element (2)of the Modified Just Rule. So far as the evidence on grow equipment shipment is concerned, this evidence clearly was not remote in time. It occurred during the course of the commission of the acts charged. We conclude that the grow equipment evidencewas not too remote in time under element (2) of the Modified Just Rule. The State introduced the testimony of Garber and Davidson for the purpose of showing a common scheme,plan or system. This is

a permissiblepurpose under element (3)of theModified JustRule. Matt, 48 St.Rep. at 616. We conclude that the Garber and Davidson testimony tended to establish a plan and was properly admissible under element (3)of the Modified Just Rule. With regard tothegrowequipment evidence,we havepreviously pointed out that themethod of shipmentwas directly comparable to themethod of shipmentusedwith regard tomarijuana. In addition, the grow equipment of the type and size found at Paulsonls residence is circumstantial evidence of an operation consistent with the cultivationof marijuana with intent to sell. We conclude that the grow equipment testimony was admissible under element (3) of the Modified Just Rule. With regard to element (4) of the Modified Just Rule, the defendant argues that the probative value of the other crimes evidence was substantially outweighed by the unfair prejudice of its admission so the evidence should not have been admitted. We conclude that as to the testimony of Garber and Davidson, and theevidence of the grow equipment, because the first three elements of theModified JustRule have beenmet, theprobative value of the evidence has been established. See State v. Ramstad (1990), 243 Mont. 162, 168, 793 P.2d 802, 806. We must next determine if unfair prejudice under element (4) of the Modified Just Rule is sufficient to outweigh the established probative value. InMatt, by the adoption of the Modified Just Rule, we clarified the procedural protections that are required under that Rule to protect against unfair prejudice. These procedures include: (1) Evidence of other crimes, wrongs or actsmay not be received unless there has been written notice to the defendant that such evidence is to be introduced. The notice to the defendant shall specify the evidence of other crimes, wrongs or acts to be admitted, and the specificRule 404(b) purpose or purposes forwhich it is to be admitted. (2) At the time of the introduction of such evidence, the trial court shall explain to the jury thepurpose of such evidenceand shalladmonish ittoweigh the evidence only for such purposes. (3) In its final charge, the court shall instruct the jury in unequivocaltermsthat such evidencewas received only for the limitedpurposes earlier statedand that the defendant isnotbeing tried andmay notbe convicted for any offense except that charged, warning them that to convict for other offenses may result in unjust double punishment. Matt, 48 St.Rep. at 616. Defendant challenges the adequacy of the Just notices. The State served several Just notices. The initial Just notice generally stated that the State intended to introduce other crimes evidence to show motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Such notices do not meet the specificity required in a Modified Justnotice. See Statev. Croteau (Mont. 1991), -P.2d 

## -, -1 48

However, subsequent Just notices did meet the requirements of the Modified Just Rule. Two of such subsequent notices qualified the general statement by pointing out that the State intended to present other crimes evidence to show: [Aldditionalevidence of drug dealingwhich corroborates Doug Smith's testimony to-wit: showing a common pattern and scheme of Defendant to ship narcotics to individuals other thanhimself using a different first name for that individual;thattheDefendantshippeddrug paraphernalia to [name of witness] in the same manner as shipments of narcotics were made to other people, which ultimately would go to Defendant. (Emphasissupplied.) Two other notices followed the general statementwith: [Tlhe drug dealings of Curtis Paulson and his relationship with Doug Smith, who is the State'switness inthis case, including prior shipmentsofmarijuana sent toSmithand other information dealingwithdrugsbetween them. The specific actions are found in the statement of Doug Smith takenby DetectivesLarryRenman and Bryan Lockerby on May 2, 1989, a copy of which has been supplied to defense counsel. Those Just notices did adequately advise the defendant as to the matters to be included in the testimony of the other crimes witnesses. We conclude that the first procedural requirementunder the Modified Just Rule was met in this case as to both the testimony of Garber and Davidson, and the evidence with regard to the shipment of grow equipment. The District Court clearly satisfied the second procedural requirement of the Modified Just Rule which requires the trial court to explain to the jury the purposes of the evidence and to admonish the jury to weigh the evidence only for such purposes.The required admonition was given to the jury by the District Court at all critical points and on four different occasions.. We conclude that the second procedural requirement of the Modified Just Rule was met. The third procedural requirement is that the court instruct the jury in unequivocal terms. Here, InstructionNo. 16,given at the conclusion of the trial is identical to the instruction this Court has approved as meeting such third procedural requirement. Tecca, 220 Mont. at 174, 714 P.2d at 140. We conclude that the third procedural requirement of the Modified Just Rule was met. We conclude that theprocedural protections contained in the three elements of the Modified Just Rule were met in this case. This leaves for evaluation whether or not unfair prejudice to the defendant outweighed the established probative value as described in element (4) of the Modified Just Rule. 10 James Wm. Moore, Moore's Federal Practice 5 403.10, contains an excellent description of thenature of theunfair prejudice which isrequired under element (4)of the Modified Just Rule: To guide courts in balancing the laprobative valuew and the Itunfairprejudicett of evidence, the Committee states that the latter termmeans evidence which has Itan undue tendency to suggestdecision on an improper basis, commonly, though not necessarily, an emotional one." Application of this thought and the ultimate determination of admissibility are matters left to the discretion of the trial court and will necessarily be decided on a case by case basis. However, by restrictinstheruletoevidence which will cause "unfair prejudicettthe draftsmen meant to caution courts that

- mere prejudicial effect is not a sufficient reason to refuseadmission. Probative evidencewill freauentlvbe prejudicial to a party, but that does not mean that it will cause the fact finder to qround a decision on an emotionalbasis. Thus,evidencewhich tends tohorrify,evoke sympathy or increase a desire to punish due to a prior act of a ~artv and whose probative value is slisht may be ~ro~erlv excluded. (Emphasisadded.) (Citations omitted.) After our review of the cases cited in support of the foregoing quote from Moore's Federal Practice, we conclude that it is an appropriate definitionof unfairprejudice. We therefore adopt the foregoingas theholding of thisCourt indefiningunfair prejudice under element (4)of the Modified Just Rule. In thepresent case, thetestimony of Garber and Davidson,and the testimony with regard to the grow equipment was clearly prejudicial, but because it meets other aspects of the Modified Just Rule, that prejudice alone is not a sufficient reason to refuse admission. We conclude that the evidence isnot of the type which would cause the jury to ground its decision on an emotional basis. The evidence is not of the type which tends to horrify, evoke sympathy or increase a desire to punish and whose probative value is slight. Here both aspects of the evidence are clearly significant to the issue of the commissionby the defendant of the charged crimes. We thereforehold that theprobativevalue of the Garber and Davidson testimony, and the evidence of the grow equipment, is not substantiallyoutweighed by the danger of unfair prejudice or misleading of the jury under element (4) of the Modified Just Rule. Considering the Modified Just Rule as a whole, we conclude that the four substantive elements of the Modified Just Rule, and the procedural elements of the Modified Just Rule, have been properly satisfied in this case. We hold that the testimony of 14Garber and Davidson and the evidence as to the grow equipment was properly admitted by the District Court as evidence of other crimes,wrongs or acts under the Modified Just Rule.

Was the defendantdenied his right to effective assistance of counsel under the Sixth Amendment to the united States Constitution? Defendant presents the following examples for his argument that he was ineffectively represented at trial: failure to formulate a workable trial strategy, failure to present a fingerprint expert, failure to adequately interview witnesses before trial, failure to object to critical evidence, failure to properly instruct the jury, and failure to present an effective closing argument. In Statev. Kolberg (1990),241Mont. 105, 109, 785 P.2d 702, 704,we stated: Ineffective assistance of counsel requires specificacts or omissionswhich prejudice defendant s case and result in the denial of a fair trial 

# . .

# . First the defendant must show thatcounsells performancewasdeficient. This requiresshowingthat counselmade errorssoseriousthat counselwasnot functioningasthe counsel guaranteedthe defendantby the SixthAmendment. Second, the defendant must show that the deficient performance prejudiced the defense. To showprejudice, a defendantmust show that, but for counsel's unprofessional errors, there was reasonableprobability that the result of theproceeding would have been different. 

### A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. (Citationsomitted.) In order for trial errors to rise to the level of ineffective assistance of counsel, those errors must stem from neglect or ignorance rather than from informed, professional deliberation.State v. Morigeau (1982), 202 Mont. 36, 44, 656 P.2d 185, 189. This Court will not second-guess counsel's trial tactics and strategiesand,where no prejudice is shown, counsel sprofessional deliberationswill notbe questioned. Statev. Stewart (1988)

## , 235 Mont. 239, 242, 767 P.2d 296, 298. The record contains no factual basis to support an argument that the alleged failures on thepart of defendant's trial counsel stemmed from neglect or ignorance. Defendant fails topoint to any evidence thatproves his counsel's actions were anything other than trial tactics and strategies, or that his counsel's actions deprived him of a fair trial. We find

no merit in defendant's contention that he was deprived of his right to effective assistance of counsel.

Was the evidence sufficientto support a verdict of guilty on the charge of criminal possession of dangerous drugs with intent to sell? The defendant argues that his conviction for possession of dangerous drugswith intent to sellwasnot supportedby sufficient evidence because theState failed toprovide sufficient independent corroborating evidence to support the testimony of the accomplice, Doug Smith. In prior caseswe have summarized the guidelines for testing the sufficiency of corroborating evidence: To be sufficient,corroborating evidence must showmore than that a crime was in fact committed or the circumstances of itscommission. Itmust raise more than a suspicion of the defendant's involvement in, or opportunity to commit, the crime charged. But corroborative evidenceneednotbe sufficient,by itself, to support a defendant's conviction or even to make out a prima facia case againsthim. Corroboratins evidencemay be circumstantialandmay come fromthedefendant and his witnesses 

# . . . Corroborating testimony is viewed in a light most favorableto the State. The corroborating evidence need only tend to connectthedefendant with the crimecharged and need not extend to every fact towhich the accomplice testifies. Thus, corroborating evidence is not insufficient merely because it is circumstantial, dis~uted, or ~ossibly consistent with innocent conduct; it is the jury's duty to resolve such factual questions. (CitesOmitted.) [Emphasisadded.] State v. Kaczmarek (1990), 243 Mont. 456, 459-60, 795 P.2d 439,

In the present case Doug Smith's testimony was corroborated by circumstantial evidence. Two of defendant's fingerprintswere found on baggies found in Doug Smith's home that were used for packaging and marketing the marijuana. One of these baggies contained marijuana, the other baggie was found with other drug paraphernalia. Telephone records of the defendant's residence verified that six phones callswere made to the supplier in Hawaii in the two week period prior to one of the shipments of marijuana to Doug Smith's home. UPS records verified Doug Smith's testimony as to the dates of shipments and use of incorrect first names on shipping labels. TheUPSwitness also testified that it takes exactly threebusiness days to receive a shipment from Hawaii. One of the shipments to Doug Smith's home arrived exactly threebusiness days following the sixth phone call made from defendant's residence to the supplier in Hawaii. Doug Smith's testimony was also corroborated by the testimonies of Garber and Davidson. Both of these witnesses gave similar detailed accounts of the method used when they receiveddrug shipments from Hawaii for the defendant. Jar1 Garber testified that he had also received a shipment of drug growing equipment for Paulson. Shipping labels found with the growing equipment at the residence of Paulson were addressed to ''Jimt1 Garber, 1305 5th Avenue Northwest, Great Falls, Montana. Corroborative evidence must clearly (1)be independent, (2) point toward the defendant's guilt, and (3) provide a legally sufficient connection between the defendant and the offense. Kaczmarek, 795 P.2d at 442. Here the evidence meets this three part test, thus corroborating Smith's testimony and tending to establish Paulson's guilt. Theproper standard of review for sufficiency of the evidence in a criminal case is whether, after viewing the evidence in the light most favorableto theprosecution,any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Kaczmarek, 795 P.2d at 442. Having determined that Smith's testimony was sufficiently corroborated by the physical evidence and by the corroborating testimonies of Garber and Davidson, the essential elements of possession of dangerous drugs with intent to sell have been met. Clearly, a rational jury could have found the defendant guilty in this case. We hold that the evidence was sufficient to support a verdict of guilty on the charge of criminal possession of dangerous drugs with intent to sell. VI Does the sentence imposed constitute an excessive sanction inviolation of the defendant's rights under the Eighth Amendment to the United States Constitution and Art. 11, 5 22 of the Montana Constitution? Defendant received a twenty year sentence with five years suspended. Hewill not be eligible for parole for fiveyears. In addition he was assessed a $30,000.00 fine and had his hunting privileges suspended during the twenty year period. Defendant's counsel prepared an affidavit containing computationsbased on sentencing statisticspreparedby theMontana State Judicial Information Center outlining the sentences imposed in 1988 and 1989 for offenses ofpossession of dangerousdrugswith intent to sell. Based on those statistics, defendant argues that his sentence is especially harsh for 

### a first time offender and violates theUnited Statesand Montana Constitutions' prohibitions against imposition of excessive sanctions. Section 45-9-103(3), MCA, sets forth the sentence guidelines for criminal possession with intent to sell. That provision states: A person convicted of criminal possession with intent to sell 

# . . . shall be imprisoned in the state prison for a term of not more than 20 years or be fined an amount not to exceed $50,000, or both. The District Court stated its reasons for defendant's sentence as follows: 1. Testimony during trial established that this was a sophisticated operation wherein the Defendant attempted to insulate his activities through the use of other people. Testimony also revealed that the Defendant has been involved in drug dealings for approximately twelve years.2. The Defendant had a large income which was not explained to the Courtls satisfaction. There was testimony at the Sentencing hearing that much of the Defendant's income had not been reported for tax purposes. Therewas further testimonythattheDefendant was engaged inmoney laundering. 3. The Court considered the harm to society. 4. The Court considered the recommendation contained in the Pre-Sentence Report, but notes that the officer who prepared the reportwas not present during the trial and did not have the benefit of hearing all the testimony. Furthermore, the officer did not have thebenefit of the testimonywhich theStatepresented during the sentencing hearing. 5. This courtheard testimony from Det. Renman, that the total shipment containing some of the drugs introduced at trial had a wholesale value of approximately $27,000.00. The court is of the opinion that there should be no profit from the illegal sale of drugs. Furthermore, the Court feels that it is appropriate that thosedealing indrugs ought topay for someof the costs associated with the detection and prosecution of drug offenders and for these reasons fined the Defendant $30,000.00. 6. The Defendant is an admitted non-user of drugs, yet he was convicted of possession of dangerous drugs with intent to sell. The Defendant is not an addict dealing to supply his own habit. The Defendant's motive is simplymoney. 7. TheProbationand Parole Officer recommendedthat the Defendantwasnot tohuntwith a gunduring the suspended portion of his sentence. This provision was made to comply with Federal Laws prohibiting a convicted felon from possessing a gun. 8. Indeclaring the Defendant ineligible forparole for the first five years of his sentence it was the Courtls intentionthat the Defendant servemore than a token few months in the penitentiary. The facts and seriousness of this casehave caused this Court tobe concerned. The Defendanthad a well planned operationwhich allowedhim to escape the law formany years. Grow lightswere found at the house of the Defendant. The State of Montana characterized the Defendant as a "major drug dealer". The Court cannot fix any mitigating factors other than this is the first time the Defendant has been caught and sentenced.These reasons set forthby the District Court arewell-reasoned and supported by the evidence. The sentence itself is within the guidelines set forth in 5 45-9-103(3), MCA. We hold that the sentence imposed does not constitute an excessive sanction in violation of the defendant's rights under the Eighth Amendment to the United States Constitution and Art. 11, 5 22 of the Montana Constitution. Affirmed.

We Concur: 0 

# +?L*T~& Chief Justic 

# Gd~/ ustice

Justices

### Justice Terry N. 

### Trieweiler dissenting. I dissent from the majority s conclusion that accomplice testimony regarding past crimes,wrongs, or acts of thedefendant, other than those charged, need not be corroborated before it is admissible. I 

### conclude, based upon established precedent and logic, that it does need to be corroborated; and since such testimonywas admitted in this casewithout corroboration, I

### would

reverse the conviction of the defendant. For that reason, I

### would not reach the merits of the other issues raised by the defendant

on appeal. InHuddlestonv. 

### UnitedStates (1988), 485U.S. 681, 99 

### L.Ed.2d 771, 

### 108 S.Ct. 1496, in discussing the circumstances under which evidence of other acts couldbe admitted under Fed.R.Evid. 404(b)

### , the United States Supreme Court stated that: We conclude that such evidence should be admitted if there is sufficient evidenceto support a findingby the jury that the defendant committed the similar act. Huddleston, 485

### U.S. at 685, 99L.Ed.2d at 779-80, 108 S.Ct. at 1499. Under Montana law, the testimony of 

### a co-conspirator, unsupported by independent corroborating evidence, is not sufficient to convict a defendant of the criminal act with which he is charged. The reasons are obvious. Testimony of co-conspirators is among the most unreliable forms of evidence available. Co-conspirators to a criminal act are,by definition, dishonestpeople tobeginwith. Added to their presumed character weaknesses there are invariably inducements for

### their testimony, such as lenient or favorable treatment from the State for their own criminal conduct. For example, inthiscaseall three of the co-conspiratorswho testified that the defendant engaged in prior criminal acts had been caught selling drugs and bargained with the State of Montana for lenient treatment in exchange for their testimony against the defendant. Smith was charged with the same crime for which the defendantwas convicted. The defendant was sentenced to 20 

### years inprisonwith fiveyearssuspendedand requiredto serve aminimum of five years without parole. Smith was sentenced to five years in prison with all fiveyears suspended. Dale Davidson was also charged with possession of drugs with intent to sell,butwaspromised that inexchange forhis testimony the governmentwould recommend amaximum sentence of 18

### months, as opposed to the five years to which he would be exposed without favorable testimony. Jar1 Garber was promised that in exchange for his testimony he would be charged with only one attempt to sell cocaine, rather than three. At the time of defendant's trial, that charge had still not been filed. He gave the following testimony: Q. 

### And what did they say they would do for you? A. Drop two counts of my sales. Q. 

### Sale of cocaine? A. Correct. Q. 

### Are you generally aware of the penalty for possession of cocaine?A. 

### I 

### am.

A. 

### Yeslitis. Q. 

### Haveyoubeen charged? A. 

### No, I have not.

Q. 

### So they gotya. They got you right where theywant you? A. 

### (Nodshead.) 

### If an attorney practicing civil law in the State of Montana went to the lengths that the State regularly goes to in order to 

### induce testimony from co-conspirators he would be subject to 

### disciplinary proceedings for violation of Rule 3.4 

### of Montana's Rules of Professional Conduct. Yet, such conduct is freely permitted in the prosecution of criminal cases when inducing testimony of witnesses as disreputable as those who testified against the defendant in this case. Themajorityseekstodistinguish testimonyof co-conspirators when used simply toprove uncharged prior crimes from testimony of co-conspirators which is offered to prove the crime that has been charged. However, the distinction is one of form rather than substance. The fact is that the evidence of prior crimes was offered inan effort to convict thedefendant of the crimecharged,

even though we have a stated public policy in 

### 5 46-16-213, MCA, 

### that such evidence is unreliable without corroboration.

### The majority has offered no authority for permitting uncorroborated testimony of an accomplice to prove prior crimes, when by statute, such testimony could not have been offered to prove the crime charged. However, there is prior authority for excluding this evidence. Texas has a statute similar to 9 

### 46-16-213, MCA. Article 38.14, Tex. Code Crim. Proc. Ann., dealing with Testimonv of Accom~lice, states: A conviction cannot be had upon the testimony of an accompliceunless corroboratedby other evidence tending to connect thedefendantwith the offense committed;and the corroboration is not sufficient if it merely shows the commission of the offense. The Texas Court of Appeals, in Bustamante

### v. State (Tex. Ct

# . App. 1982), 653 S.W.2d 846, 849,

### rev.dismissed 702 S.W.2d 193 (Tex. Crim. App. 1985), concluded that based on that state's similar statute the trial court erred when it admitted extraneous offenses based solely upon uncorroborated testimony of an accomplice. The court in Bustamante relied upon the 1931 case of 

### Welh v. 

### State (1931)

## , 118 Tex. Crim. 355, 42 S.W.2d 607, which "held that it was necessary to corroborate evidence of extraneous offenses in reversing a conviction for possession of liquor for purposes of sale.It Bustamante, 653 S.W.2d at 848-49. Furthermore, the court in

Bustamante stated: 

### We conclude that the intent of the legislature in enacting Sec. 38.14 Tex. Code Crim. Pro.Ann. was tomake its terms applicable to extraneous offenses as well as to primary offenses. Therefore, in the case before us it was error to admit this uncorroborated evidence of

### extraneous offenses and, having admitted it, to refuse to give the jury a proper limiting charge.

Itmakes no sense to establish by statute a public policy to 

### the effect thatpeople ofMontana cannotbe convicted of a criminal charge based on the uncorroborated testimony of an alleged co-conspirator,but then allow the State to circumvent thatpublic policy by convicting people with uncorroborated testimony of co-conspiratorsregarding acts that are not eventhe subjectof the State's charges. Either the testimony is unreliable or it is not. It cannot be unreliable if offered to directly convict the defendant, and reliable if offered to indirectly convict the defendant. For these reasons I 

### would reverse the judgment against the defendant and remand this case to the District Court for retrial. During retrial Iwould require that the testimonyof thepeoplewho claim tohavebeen partners in the defendant's saleof drugs either be 

### corroborated or excluded. 

# 1 

# Tfi~&&

Ju tice

I 

### concur with the foregoing dissent of Justice Trieweiler.