No. 13133 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

DANNY NELSON and ELMER CRATON NELSON, 

Defendant and Appellant. 

Appeal from: District Court of the Tenth Judicial District, 

Honorable LeRoy L. McKinnon, Judge presiding. 

Counsel of Record: 

For Appellant: 

Bradley Parrish argued, Lewistown, Montana 

For Respondent : 

Hon. Michael Greely, Attorney General, Helena, 

Montana 

Allen B. Chronister, Assistant Attorney General, 

argued, Helena, Montana 

William Spoja, County Attorney, Lewistown, Montana 

Robert L. Knopp, Deputy County Attorney, argued, 

Lewistown, Montana 

Submitted: January 21, 1977 

Decided: RB 2 4 19n 

lerk 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Defendants were convicted by jury verdict in the district 

court, Fergus County, of two counts of offering to sell dangerous 

drugs in violation of section 54-132, R.C.M. 1947. Both defendants 

appeal. 

The material facts are disputed. The state's version is 

that defendants Danny Nelson and Elmer Nelson, brothers, offered 

to sell marijuana on two separate occasions to James Bridgeford, 

an undercover narcotics agent for the Fergus County sheriff's department. 

The first transaction was on the night of October 27, 

1974, at the Husky truck stop on the Lewistown by-pass. Defendants 

drove up to the truck stop in their car, bought a couple of dollars 

worth of gas from Bridgeford who was working there, and asked him 

if he wanted to buy a "lid". Defendants left, returned later, 

I I arrangements" were made, and defendants waited in Bridgeford's car 

while he was servicing their car. Thereafter Bridgeford went over 

to his car where defendants were waiting and they handed him "a lid 

of grass" in a plastic baggy and he paid them $20. About five 

minutes after defendants left, Bridgeford called Randall Cordle, a 

narcotics agent and deputy sheriff of Fergus County, who came to 

the truck stop where Bridgeford turned the plastic baggy over to him. 

The second transaction, according to the state, occurred on 

the night of October 30, 1974. Bridgeford went to a private residence 

on Pine Street in Lewistown where defendants were living. After 

talking about marijuana, an arrangement was made for Bridgeford to 

buy another "lid" from them. Defendant Elmer Nelson went over to 
a plastic pumpkin on a shelf in another room, extracted a "lid", 

and gave it to defendant Danny Nelson as they were going to the 

car for a drive up Spring Creek. While driving around defendants and 

Bridgeford passed around a "joint" that defendant Elmer Nelson had, 

which Bridgeford simulated smoking. During the drive, defendant 

Danny Nelson put the "baggy" on the seat toward Bridgeford and 

Bridgeford handed him $20. Thereafter Bridgeford contacted Deputy 

Randall Cordle and turned the baggy over to him. 

Defendants' version differs in all material particulars. 

According to defendants, the alleged events forming the basis of 

both charges are complete fabrications. They admit going to the 

truck stop on the night of October 27, 1974 accompanied by five 

other persons and getting some gas, but deny returning there later. 

They categorically deny having any marijuana, selling or offering 

to sell any marijuana to Bridgeford, or receiving any money from 

him. 

Concerning events of October 30, 1974, defendants admit 

going for a drive up Spring Creek with Bridgeford in his car 

accompanied by two others and smoking a "joint" of marijuana which 

they claim Bridgeford himself had. Defendants deny they themselves 

had any marijuana or sold or offered to sell any to Bridgeford. 

They deny the incident involving the plastic pumpkin in the house 

on Pine Street. 

The only witness in the state's case-in-chief was Bridgeford. 

The only exhibit offered by the state was a plastic bag of a green 

substance marked "Evidence description, one baggy of green substance 

Srl-ieved to be marijuana bought from Danny and Elmer Nelson, 10-27- 

74." After denying its admission in evidence for lack of foundation, 

the district court admitted it for demonstrative purposes as shown 

by the following colloquy: 
"Q. Mr. Bridgeford, did you - you obtained the 

substance from Danny Nelson, correct? A. Yes. 

"Q. And did you subsequently transfer that to 

Mr. Cordle? A. Yes, I did. 

"Q. And this appears to be basically the same item, 

is that correct? A. Yes, it does. 

"MR. KNOPP: Your Honor, the State would request 

that the exhibit be entered for purposes of demonstration, In the particular charge, it is not 

necessary to prove that anything of that nature was 

conveyed, only that there was an offer to convey this 

particular item. 

"THE COURT: Inasmuch as it is similar and so on, 

it could be admitted for that purpose. 

"MR. PARRISH: I will object, your Honor, because 

the witness is not sure that is the same one. He 

said it could be. 

"THE COURT: He's not entering it as the same one. 

He's entering it as demonstrative. It was something 

like this, and that's the basis on which I admit this." 

The two defendants were the only witnesses in their case-inchief. In rebuttal, the state called two witnesses, Jack Songer, 

the sheriff of Fergus County, and William A. Spoja, Jr., the Fergus 

County attorney. 

Sheriff Songer read a written report to the sheriff's 

office made by deputy Randall Cordle. This report reads: 

"A. This is dated October 27th, 1974, and the offense 

is sale of dangerous drugs. On the above date, I, Randy 

Cordle, received a phone call from a confidential informant stating that approximately at 2:15 A.M., confidential informant had purchased a quantity of marijuana 

from Danny and Elmer Nelson. I went to talk with confidential informant and he told me the following: Confidential informant stated that Nelsons and Steven Gavin 

came to his place of employment to get some gasoline. While 

confidential informant was filling the Nelson vehicle, Elmer 

said to confidential informant, do you want a lid. Confidential informant said yeah, possibly, how much is it 

going to cost me. Danny said $20.00 because we had to go 

out of town to get it, and we could only get six lids. 

Confidential informant said when can I get it. Danny said 

we don't have it now, but we can get it tonight. Confidential 
informant then stated to me that the suspects left 

for approximately fifteen to twenty minutes and then 

returned. After returning, Danny told confidential 

informant we are going to look in your car, come over 

when you are done filling that car. After confidential 

informant finished, he did in fact walk over to his 

vehicle at which time Danny, now seated in the car, gave 

confidential informant a lid, and confidential informant 

in turn gave Danny $20.00 which Danny had earlier stated 

that was the amount he wanted for the lid. After concluding with confidential informant, I brought the said 

marijuana to the Fergus County Sheriff's Office, and 

locked it in the vault. Signed R. Cordle, Deputy Sheriff, 

Fergus County .I1 

The sheriff testified it was a report given to him as a 

routine matter in the normal course of sheriff's office procedures. 

Sheriff Songer identified the "confidential informant" referred 

to therein as Jim Bridgeford. 

The sheriff also summarized the contents of a second written 

report submitted to him by deputy Randall Cordle in the routine 

procedures of his office in the normal course of business covering 

the events of October 30, 1974. This report was unsigned. The 

sheriff's testimonial summary indicated that at 1:40 a.m. the 

confidential informant bought marijuana from Danny Nelson in their 

car in the vicinity of the truck route in Lewisto~m. The report 

also indicated that while in defendant Elmer Nelson's house he 

took out a plastic pumpkin from a shelf and reached in and removed 

a handful of packaged lids containing marijuana and handed them to 

defendant Danny Nelson. Sheriff Songer also testified that Jim 

Bridgeford's workmanship with the sheriff's office had been 

"reliable, confidential, to where he was trusted by this office 

to use as a confidential informant" and Bridgeford had been deputized 

and issued a gun permit. 

The sheriff's testimony concerning the contents of the two 

written reports was objected to by defendants' counsel on the 

grounds it was hearsay, incorrect rebuttal, and lacked proper 

foundation. The objections were overruled. 
County attorney Spoja testified without objection that 

"the feeling and information that I had indicated to me Mr. Bridgeford was completely reliable. I have no reason whatsoever to 

doubt him." The county attorney also testified that he was aware 

"that Mr. Bridgeford was directly involved with the Nelsons and 

in fact that there were funds provided for that specific purpose." 

On January 17, 1975, defendants Danny and Elmer Nelson 

were charged by Information in the district court, Fergus County, 

with two counts of selling dangerous drugs to Bridgeford on 

October 27 and 30, 1974, respectively. On May 23, 1975, the deputy 

county attorney moved for leave to file an amended Information 

charging the defendants with "offering to sell" dangerous drugs 

on the same dates. Leave was granted and the amended Information 

was filed on the same date. Following pleas of not guilty to 

each charge by each defendant, a jury trial was held on May 29, 1975. 

The jury verdict found both defendants guilty as charged. Judgment 

was entered. Defendants appeal from the judgment of conviction. 

Defendants raise three issues on appeal which we summarize 

in this manner: 

1) Did the district court commit reversible error in 

admitting the sheriff's testimony concerning the contents of the 

written reports of deputy Cordle? 

2) Did the district court commit reversible error in 

permitting improper rebuttal testimony by the sheriff? 

3) Must the state prove beyond a reasonable doubt that 

the substance offered for sale was in fact a dangerous drug? 

We need go no further than the first issue to determine 

that the judgment must be vacated and a new trial granted. However, 

before we discuss the first issue, we wish to make it clear there 
were other errors, e.g., admission of the "baggier' in evidence, and 

failure to have the contents of the baggie analyzed by the state 

criminal identification laboratory so that identification could 

be established at the trial. These errors must not be repeated on 

retrial. 

The first issue is whether the sheriff's testimony concerning 

the contents of the written reports of Deputy Cordle is reversible 

error. 

The state contends the testimony was admissible as an 

exception to the hearsay rule under section 93-901-1, R.C.M. 1947. 

Alternatively, the state argues the authenticity of the reports 

was established and they are admissible under the reasoning of 

State v. Cooper, 161 Mont. 85, 504 P.2d 978. In any event, the 

state contends, the error is harmless because no prejudice was 

shown. 

Defendants argue the testimony was inadmissible hearsay 

and prejudice clearly resulted. 

The contents of the report are clearly hearsay. They 

are unsworn statements made out of court with no opportunity 

afforded to confront the writer and question him as to their 

veracity. In fact, certain statements therein are hearsay twice 

removed. Thus unless the contents of the statement fall.. within 

one of the exceptions to the hearsay rule, they are inadmissible 

in evidence. 

The state contends the contents of the report are 

admissible under a statutory exception to the hearsay rule, section 

93-901-1, R.C.M. 1947. That statute provides: 

"written reports or findings of fact made by officers 

of this state, on a matter within the scope of their 

duty as defined by statute, shall, in so far as relevant, 

be admitted as evidence of the matter stated therein." 
Yeretofore this Courl~ held Chdc tlze I.~rltrerl reporc >I the 

3tdte chelilist in the state criminal investigation laboratory concerning the physical and chemical testing and identification of 

a substance as marijuana was admissible under this statute. State 

Y. Snider, Ivlont . , 541 P.2d 1204, 32 St.Rep. 1050 (1975). 

We have also previously denied admission in evidence of 

An dited, undated and signed accident report of a United States 

?orest Service engineer in a personal injury action by a skier 

dgdinst a ski resort. In that case the injuries occurred when a 

ski lift cable derailed and threw the skier to the ground. The 

witness through whom the report was sought to be admitted was 

not the author of the report but was present at the time the inspection was made, (the subject of the report). We held the report 

was inadmissible hearsay under section 93-901-1, R.C.M. 1947. 

"essl v. Bridger Bowl, 164 Mont. 389, 524 P.2d 1101. Also see: 

Xichardson v. Farmers Union Oil Co., 131 Mont. 535, 312 P.2d 134, 

$&here we held an Air Force officer's report inadmissible. 

The federal rule seems to differ and allows police reports 

l~utltairling hearsay under 28 U.S .C.A. 5 1732. The rationale seems 

to be that the federal statute is designed to abrogate the common 

law hearsay rule. See: Bridger v. Union Railway Company, 355 

?.3d 382, as illustrative of the federal approach. 

In our view under Montana's statute, the contents of the 

zwo reports by deputy Cordle are inadmissible hearsay, notwiths~anding the fact the reports were official reports given the sheriff 

as a routine matter in accordance with office procedures. It is 

also inadmissible under the rationale of Cooper. The reason for 

our holding is that deputy Cordle himself, had he been called as 

a witness at the trial, could not have testified to the contents of 
the report. .The report is largely statements of defendants to a 

confidential informer who relayed the statements on to a deputy 

sheriff. This is patently hearsay and inadmissible through the 

lips of either the sheriff or deputy Cordle. The confidential 

informant to whom the statements were made testified to their 

contents, but the official character of the report does not permit 

the sheriff or deputy Cordle to report the statements on the 

witness stand to bolster the credibility of the confidential informant . 

The purpose of Montana's statute is not to render otherwise inadmissible hearsay admissible simply because it is contained in 

a police report. 

For the foregoing reasons, we hold the contents of deputy 

Cordle's report was improperly admitted in evidence, was prejudicial 

to defendants, and the convictions cannot stand. 

The judgment of the district court is vacated and the cause 

remanded to the district court, Fergus County, for a new trial. 

Justice