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:

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lerkMr. JusticeFrank I. Haswell delivered the Opinion of the Court.
Defendants were convicted by jury verdict inthe district court, Fergus County, of two counts of offering to selldangerous drugs inviolationof 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 sellmarijuana on two separate occasions toJames Bridgeford,
an undercover narcotics agent fortheFergus County sheriff's department. The firsttransactionwas on the night of October 27, 1974, attheHusky truck stop on the Lewistown by-pass. Defendants drove up tothe truck stop intheir car, bought 

### a couple of dollars worth of gas fromBridgeford who was working there, and asked him if he wanted tobuy a "lid". Defendants left, returned later,

IIarrangements" were made, and defendants waited inBridgeford's car while hewas servicing their car. Thereafter Bridgeford went over tohis carwhere defendants were waiting and they handed him "a lid of grass" ina plasticbaggy 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 stopwhere Bridgeford turned the plasticbaggy over tohim. The second transaction, according to the state, occurred on the night of October 30, 1974. Bridgeford went to a private residence
on Pine Street inLewistown where defendants were living. After talking about marijuana, an arrangement was made forBridgeford to buy another "lid" from them. Defendant Elmer Nelson went over toa plastic pumpkin on a shelf inanother 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. ThereafterBridgeford contacted Deputy Randall Cordle and turned thebaggy over tohim. Defendants' version differs inallmaterial particulars. According todefendants, the alleged events forming thebasis of both charges arecomplete fabrications. They admit going to the truck stop on thenight of October 27, 1974 accompanied by five other persons and getting some gas, but deny returning there later. They categorically deny having any marijuana, sellingor offering to sellany marijuana toBridgeford, or receiving any money from him. Concerning events of October 30, 1974, defendants admit going for a driveup Spring Creek withBridgeford inhis car accompanied by two others and smoking a "joint" of marijuana which they claimBridgeford himself had. Defendants deny they themselves had any marijuana or sold or offered to sellany toBridgeford. They deny the incident involving the plastic pumpkin inthe house
on Pine Street. The only witness inthe state's case-in-chief was Bridgeford. The only exhibit offeredby the statewas a plasticbag of a green substance marked "Evidence description, one baggy of green substance Srl-ievedtobe marijuana bought from Danny and Elmer Nelson, 10-27- 

### 74." After denying 

### its admission inevidence 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 tobe basically the same item, isthat correct? A. Yes, it does. "MR. KNOPP: Your Honor, the Statewould request that the exhibit be entered forpurposes of demonstration, In theparticular charge, it isnot necessary toprove that anything of that nature was conveyed, only that therewas an offer toconvey this particular item. "THE COURT: Inasmuch as it 

### is similar and so on, it could be admitted for that purpose. "MR. PARRISH: I willobject, your Honor, because thewitness isnot 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 asdemonstrative. It was something likethis, and that's thebasis on which I admit this." The two defendants were the only witnesses intheir case-inchief. Inrebuttal, the statecalled two witnesses, 

### Jack Songer, the sheriff of Fergus County, and William A. Spoja, 

### Jr., the Fergus County attorney. Sheriff Songer read a written report tothe sheriff's officemade by deputy Randall Cordle. This report reads: "A. This isdated October 27th, 1974, and the offense 

### is saleof 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 fromDanny and Elmer Nelson. I went to talkwith confidential informant and he told me the following: Confidential informant stated that Nelsons and Steven Gavin came tohis place of employment toget some gasoline. While confidential informant was fillingtheNelson vehicle, Elmer said toconfidential informant, do you want a lid. Confidential informant said yeah, possibly, how much is it going tocost me. Danny said $20.00 because we had togo out of town to get it, and we could only get six lids. Confidential informant saidwhen can I get it. Danny said we don't have it now, but we can get it tonight. Confidentialinformant then statedtome that the suspects left for approximately fifteento twenty minutes and then returned. After returning, Danny told confidential informant we aregoing tolook inyour car, come over when you are done fillingthat car. After confidential informant finished, he did in factwalk over tohis vehicle atwhich 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 thatwas 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 inthe vault. Signed R. Cordle, Deputy Sheriff, Fergus County.I1 The sheriff testified itwas a report given tohim asa routinematter inthe normal course of sheriff's officeprocedures. Sheriff Songer identified the "confidential informant" referred to therein asJimBridgeford. The sheriff also summarized the contents of a second written report submitted to him by deputy Randall Cordle inthe routine procedures of his office inthenormal 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 fromDanny Nelson intheir
car inthe vicinity of the truck route inLewisto~m. The report also indicated that while indefendant Elmer Nelson's house he took out a plastic pumpkin from a shelf and reached inand 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, towhere he was trustedby this office touse 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 reportswas objected toby defendants' counsel on the grounds it was hearsay, incorrect rebuttal, and lacked proper foundation. The objectionswere overruled.County attorney Spoja testifiedwithout objection that "the feeling and information that I had indicated tome Mr. Bridgefordwas 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 therewere funds provided for that specific purpose." On January 17, 1975, defendants Danny and Elmer Nelson
were charged by Information inthe district court, Fergus County, with two counts of selling dangerous drugs toBridgeford on October 27 and 30, 1974, respectively. On May 23, 1975, the deputy county attorneymoved for leave to filean 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 trialwas held on May 29, 1975. The jury verdict found both defendants guilty ascharged. Judgment
was entered. Defendants appeal from thejudgment of conviction. Defendants raise three issues on appeal which we summarize inthismanner: 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 stateprove beyond a reasonable doubt that the substance offered for salewas infact a dangerous drug? We need go no further than the first issue to determine that thejudgment must be vacated and a new trialgranted. However, before we discuss the first issue, we wish tomake 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 admissibleunder the reasoning of Statev. Cooper, 161Mont. 

### 85, 504 P.2d 978. In any event, the state contends, the error is harmless because no prejudice was shown. Defendants argue the testimonywas inadmissible hearsay and prejudice clearly resulted. The contents of the report are clearly hearsay. They
are unsworn statements made out of courtwith no opportunity afforded to confront thewriter and questionhim 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 thehearsay 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 factmade by officers of this state,on a matterwithin 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

# . , 541P.2d 1204, 32 St.Rep. 1050 (1975). We have also previously denied admission inevidence of
An dited, undated and signed accident report of a United States ?orestService engineer in a personal injury actionby a skier dgdinst a skiresort. 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 tobe admitted was not the author of the report but was present atthe 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, 164Mont. 389, 524 P.2d 1101. Also see: Xichardson v. Farmers Union OilCo., 131Mont. 535, 

### 312 P.2d 134, $&here we held an AirForce officer's report inadmissible. The federal rule seems to differ and allows police reports l~utltairling hearsay under 28 U.S .C.A. 

### 51732. The rationale seems to be that the federal statute isdesigned 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 inaccordance with office procedures. It is also inadmissible under the rationale of Cooper. The reason for

our holding isthat deputy Cordle himself, had he been called as
a witness atthe trial, could not have testified to the contents of

### the report. .Thereport is largely statements of defendants to a confidential informerwho 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 statementswere 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 ofMontana's statute is not to render otherwise inadmissible hearsay admissible simplybecause it is contained in a police report. For the foregoing reasons,we hold the contents of deputy Cordle's reportwas 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