State v. Berger

• Decision Date: 14 July 1998
• Docket Number: No. 97-074,97-074
• Citation: 290 Mont. 78,964 P.2d 725
• Parties: , 1998 MT 170 STATE of Montana, Plaintiff and Respondent, v. Tiffany Tyan BERGER, Defendant and Appellant.
• Court: Montana Supreme Court

Page 725

964 P.2d 725

290 Mont. 78, 1998 MT 170

STATE of Montana, Plaintiff and Respondent, v. Tiffany Tyan BERGER, Defendant and Appellant.

No. 97-074.

Supreme Court of Montana.

Submitted on Briefs March 26, 1998.

Decided July 14, 1998.

John H. Gilliam; Skjelset & Gilliam, P.L.L.P.; Missoula, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General; Tammy K. Plubell, Assistant Attorney General; Helena, George H. Corn, Ravalli County Attorney; Hamilton, for Plaintiff and Respondent.

TRIEWEILER, Justice.

¶1 The defendant, Tiffany Berger, was charged by information filed in the District Court for the Twenty-First Judicial District in Ravalli County with criminal sale of dangerous drugs, a felony, in violation of § 45-9-101, MCA. Following a jury trial, Berger was convicted of the crime with which she was charged; she moved for a new trial; and then later moved to amend her motion based upon newly discovered evidence. The District Court denied Berger's motion to amend her motion for a new trial, and denied Berger's motion for a new trial. Berger appeals from the orders and judgment of the District Court. We affirm the District Court.

¶2 The issues on appeal are:

¶3 1. Did the District Court err when it found that there was sufficient evidence to corroborate the accomplice testimony?

¶4 2. Did the District Court err when it allowed the State to introduce evidence of Burger's other acts?

¶5 3. Did the District Court err when it found that the State did not suppress exculpatory evidence?

¶6 4. Did the District Court err when it denied Berger's motion for leave to file an amended motion for a new trial?

FACTUAL BACKGROUND

¶7 In September 1994, Emily Davenport, a student at Stevensville High School, reported that on September 15, 1994, a fellow student, Russell Moody, approached her and asked her if she was interested in purchasing illegal drugs. Davenport expressed interest and Moody arranged to get drugs for Davenport through Manuel Bean, a student whom he had known for about one year. Bean agreed to obtain any drugs Moody wanted in exchange for $20. Moody gave Bean $20 and Bean agreed to purchase methamphetamine for Moody, which he then intended to sell to Davenport.

¶8 Shortly after Bean's conversation with Moody, Bean went with Jessica Agner to her home. They arrived at Agner's home at approximately 4:00 p.m., at which time, according to Bean, Agner called an unidentified person's pager. The person eventually called back. According to Bean, at some point during the evening, Agner's boyfriend, Chris Joy, came to Agner's house. Bean testified that no one else came to the house that evening with the exception of a locksmith who was there to work on Agner's car. Bean admitted that he received a quarter gram of crystal methamphetamine from Agner in exchange for $25. According to Bean, he received the drugs in Agner's living room sometime between 7:00 and 8:00 that evening. Bean testified that at no point during that evening was the defendant, Tiffany Berger, present at Agner's house.

¶9 When a law enforcement officer interviewed Bean's mother, Rosa Bean, she explained that she questioned her son about the source of the drugs at issue and he told her that the person who brought the drugs to Agner's house was a "Tiffany" or a "Tina." According to Mrs. Bean, her son explained to her that he, Agner, and the third person exchanged the drugs and money in Agner's bathroom and admitted that he had used some of the drugs while the three of them were in the bathroom. Bean subsequently denied providing his mother with this information. Bean testified that on the day after the drug purchase he took the drugs to school and gave them to Moody.

¶10 At the time the drug transaction occurred, Jessica Agner was sixteen years old, resided with her mother, and was a junior at Stevensville High School. Agner testified that on or about September 19, 1994, Bean came home with her after school. After arriving at her house, Bean told Agner that he wanted to buy some "speed" and asked Agner if she knew anyone who could get it for him. Agner testified that she made some phone calls and eventually called Tiffany Berger's pager number. According to Agner, Berger called back and agreed to supply the "speed" and bring it to Agner's house later that evening.

¶11 In the meantime, Chris Joy, Agner's boyfriend, arrived at Agner's house. According to Joy, when he arrived at Agner's house, Agner and Bean were waiting for Berger to arrive. Agner mentioned to Joy that they were waiting for Berger to bring some kind of drugs. Joy testified that later that evening Berger arrived at Agner's house in a small, maroon, four-door car with a broken windshield, that sounded like it had no muffler. He reported that Berger arrived with two males who were approximately eighteen years old. Joy watched as Berger, Bean, and Agner went into the bathroom, where he estimated they stayed for about twenty minutes. Joy visited with the two males who had arrived with Berger until Berger emerged from the bathroom. According to Joy, Berger and the two males visited for a few minutes and then left. Shortly after Berger's departure, at approximately 11:00 p.m., Joy gave Bean a ride home.

¶12 Agner testified that Berger arrived at her house, after Joy's arrival, at around 10:00 p.m. and was driving a small passenger car with out-of-state license plates and a loud muffler. Agner also testified that Berger was accompanied by two males. Agner further reported that after she and Berger visited for a few minutes, the two of them, along with Bean, went into the bathroom. While in the bathroom, Agner gave Berger the money, which Bean had provided, in exchange for a plastic ziplock baggie of "speed." According to Agner, all three of them snorted some of the "speed" before leaving the bathroom. Agner estimated that the three of them were in the bathroom for approximately ten minutes before Berger left with the two males.

¶13 At trial, Agner admitted that she had told her mother, Berger's father, Berger's attorney, and the investigating officer that Berger did not supply the drugs and that she did not know where the drugs came from. At the time she made those statements, she was living at Berger's house. Agner testified, however, that Berger did supply the drugs and explained that she had stated otherwise in an attempt to keep Berger out of trouble and to preserve their friendship.

¶14 Berger did not testify at trial, but prior to trial she gave a statement to a detective with the Ravalli County Sheriff's office in which she admitted going to Agner's house on the night in question. Berger explained that Agner called her pager earlier in the evening, and that at about 11:00 p.m., she went to Agner's house with two male friends whom she identified as "Chris" and "Kelly." Berger recalled that Joy and Bean were at Agner's house. She verified that she was in the bathroom with Agner and Bean and that she snorted some methamphetamine with them. Berger offered no explanation for going to Agner's house late in the evening other than to visit Agner. Berger denied selling Agner or Bean drugs.

¶15 Russell Moody acknowledged that he had received a ziplock baggie of drugs from Bean on the day following the drug transaction at Agner's home. After school, Moody called Emily Davenport who instructed him to bring the drugs to her house. Moody took the drugs to Davenport, and she gave Moody $40. Five days later, Davenport orally ingested some of the methamphetamine and became ill. She was transported to the hospital by ambulance where her blood test revealed evidence of methamphetamine.

¶16 On September 28, 1994, a detective with the Ravalli County Sheriff's office began investigating the illegal drug transaction which culminated in Davenport's hospitalization. The investigation began with Davenport who reported that she received the drugs from Moody. From Moody the detective learned that the drugs came from Bean. From Bean, the investigation proceeded to Agner's house. Both Agner and Joy ultimately reported that Berger supplied the drugs in exchange for money.

¶17 As a result of the investigation, Moody pled guilty to the felony offenses of possession of dangerous drugs, sale of dangerous drugs, and criminal endangerment. Agner pled guilty to the offense of conspiracy to sell dangerous drugs. Berger was charged with the sale of dangerous drugs.

¶18 In late October 1995, Berger's father told her attorney that Robert Rodriguez had called him and vaguely reported having some information about Berger and Agner. Berger's attorney set up an appointment with Rodriguez, which Rodriguez did not attend. On November 7, 1995, Berger's father called her attorney and stated that he had again talked to Rodriguez. Rodriguez had reported to him that he had conversed with Detective Alvin J. Bailey, Jr., and an ATF agent about Berger's case.

¶19 Berger's attorney met with Bailey and the prosecuting attorney on November 8, 1995, approximately one week before Berger's trial. At the meeting Bailey verified that he had contact with Rodriguez, however, he explained that it had nothing to do with Berger's case. After the meeting, Berger's attorney again unsuccessfully attempted to contact Rodriguez.

¶20 At trial, following presentation of the State's evidence, Berger moved the District Court to dismiss the case based on lack of sufficient evidence to corroborate accomplice testimony. The District Court denied this motion and found that Berger's statement to the police and Chris Joy's testimony showed "more than mere suspicion" that Berger did, in fact, commit this crime. Berger was convicted of the crime with which she was charged. Following her conviction, she moved for a new trial.

¶21 Berger's attorney finally met with Rodriguez on December 22, 1995, over one month after Berger's trial. Rodriguez reported that Agner had told him that Berger was innocent and that he had relayed that...