State v. Brasda

• Decision Date: 18 May 2021
• Docket Number: DA 19-0326
• Citation: 2021 MT 121,486 P.3d 703
• Parties: STATE of Montana, Plaintiff and Appellee, v. Lawrence Matthew BRASDA, Defendant and Appellant.
• Court: Montana Supreme Court

486 P.3d 703

2021 MT 121

STATE of Montana, Plaintiff and Appellee,

v.Lawrence Matthew BRASDA, Defendant and Appellant.

DA 19-0326

Supreme Court of Montana.

Submitted on Briefs: April 14, 2021

Decided: May 18, 2021

For Appellant: Chad Wright, Appellate Defender, Michael Marchesini, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Joshua Racki, Cascade County Attorney, Amanda Lofink, Deputy County Attorney, Great Falls, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶1 Lawrence Matthew Brasda appeals from his conviction after jury trial of felony possession of dangerous drug (methamphetamine), arguing the District Court abused its discretion by excluding evidence during the trial.

¶2 We affirm, and restate the issue as follows:

Did the District Court err by prohibiting Brasda's examination of the State's crime lab witness about the involvement of a discharged crime lab employee with the drug evidence?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In the early morning hours of July 6, 2017, Great Falls police officers responded to a traffic complaint of someone "driving a pick-up recklessly around the neighborhood, doing burn outs, and driving up and down the street." After locating Lawrence Brasda's vehicle, officers contacted Brasda outside his residence. Officer Kristi Walker searched Brasda, discovering a used glass pipe and baggie containing a hard crystalized substance. Officer Jacob Smith conducted a field test on the substance, which indicated the presence of methamphetamine. Smith secured the evidence taken from Brasda in the trunk of his police cruiser and transported Brasda to a detention center. Smith sealed the evidence and placed it in a temporary locker. Anne Duncan, an Evidence Technician for the Great Falls Police Department, later removed the evidence from the temporary locker, logged the items in the police department's database, labeled the evidence with identifying information, and placed it in permanent storage. Brasda was charged with one count of criminal possession of dangerous drugs in violation of § 45-9-102, MCA, and one count of criminal possession of drug paraphernalia, in violation of § 45-10-103, MCA.

¶4 On July 27, 2017, Duncan submitted the baggie and its contents for testing to the Forensic Science Division of the Montana Department of Justice (State Crime Lab) in Missoula, Montana. Upon the return of the evidence from the State Crime Lab on October 5, 2017, Kelli French, an Evidence Technician for the Great Falls Police Department, checked in and stored the sealed, tested evidence.

¶5 In November 2017, the Cascade County Attorney filed a notice of intent to call Derek Thrush of the State Crime Lab to testify as an expert witness "regarding the testing and results of the chemical analysis of the evidence recovered by law enforcement in this matter." In March 2018, Brasda entered a plea agreement, agreeing to plead guilty to possession of dangerous drugs. However, at the change of plea hearing on April 10, 2018, Brasda's counsel instead moved for a continuance, explaining that "evidentiary issues require potential briefing and/or sample testing," specifically, that "information involving Mr. Thrush at the crime lab was learned, and he's the individual who tested the alleged contraband in this case."¹ The State did not object, and the District Court granted a six-week continuance. On May 4, 2018, the District Court vacated the change of plea hearing and scheduled trial on Brasda's charges for August 13, 2018.

¶6 At the request of the County Attorney, on May 8, 2018, Sheila Byrd, an Evidence Technician for the Great Falls Police Department, resubmitted the sealed evidence to the State Crime Lab for additional testing. Travis Doria, a Forensic Chemist for the State Crime Lab, received the sealed evidence for testing. Doria first conducted a presumptive test on the material, followed by a chemical analysis with a gas chromatograph-mass spectrometer. Both tests confirmed the presence of methamphetamine. Doria re-sealed the evidence and generated a report and case file, which was then reviewed by two other analysts "for technical and administrative errors." Following this process, the State Crime Lab transferred the sealed evidence back to the Great Falls Police Department.

¶7 In June 2018, the County Attorney filed notice of withdrawal of Thrush as an expert witness, and of substitution of Doria as an expert witness to testify "regarding the testing and results of the chemical analysis of the evidence recovered by law enforcement in this matter." In August 2018, the County Attorney filed a memorandum of law "regarding chain of custody and motion in limine," arguing Brasda must affirmatively show any evidence tampering and requesting the District Court prohibit Brasda from offering evidence "regarding the testing by Derek Thrush and the facts surrounding his being under investigation." Brasda objected to the motion.

¶8 On the morning of trial, prior to voir dire, the District Court held a hearing regarding evidence of Thrush's involvement. The District Court ruled Thrush's involvement was relevant and probative, "assuming it can be proven with a reliable witness who has personal knowledge." Regarding chain of custody, the District Court limited statements about Thrush during voir dire and opening statements to permit the issue to be addressed during Doria's testimony.

¶9 Following testimony from Officer Walker, Officer Smith, Duncan, and Byrd, the prosecution called Doria to testify as an expert that the evidence had been tested and contained methamphetamine. The District Court dismissed the jury to address the reserved evidentiary issues. Following questioning of Doria by both parties and the District Court, the court stated it was

satisfied that [Doria] does not have the necessary personal knowledge to explain why Mr. Thrush isn't there anymore. If you're going to put that in, you're going to need to have somebody other than him, because he does not have personal knowledge. He knows what he knows about this because somebody told him. That's hearsay, and it's inadmissible.

Emily Wemlinger, a Quality Manager of the State Crime Lab, was then called to testify outside the presence of the jury. Wemlinger testified she had learned from secondhand information that Thrush was under investigation for stealing methamphetamine from the State Crime Lab. Based on that report, Wemlinger undertook review of Thrush's previous work, ultimately ordering that original samples in about 10% of Thrush's work product be re-tested for accuracy, which occurred in this case. Both parties and the District Court questioned Wemlinger, after which the District Court furthered its ruling:

So my understanding of [ State v. McCoy , 2012 MT 293, 367 Mont. 357, 291 P.3d 568 ] and [ State v. Weeks , 270 Mont. 63, 891 P.2d 477 (1995) ] is that we don't know whether the sample has been tampered with, because the Defense can't prove it. The chain of custody is sufficient, and the evidence is admissible. And those cases say that speculation and ‘what if’ isn't - - about what might have happened to the sample isn't enough, that defense has got to have solid proof that somebody actually did tamper with the sample. You have proven that he could have tampered with it. You haven't proven he did on a more likely basis or otherwise. So I'm maintaining my previous ruling. Those two samples are admissible as is the testimony about them.

¶10 The trial concluded the next day, with the jury finding Brasda guilty on both the felony and misdemeanor counts. Brasda appeals.

STANDARD OF REVIEW

¶11 Trial courts have "broad discretion on evidentiary matters, and ‘[t]he determination of the adequacy of the foundation for the admission of evidence is within the discretion of the trial court, and will not be overturned absent a clear abuse of discretion.’ " McCoy , ¶ 11 (citing Weeks , 270 Mont. at 75, 891 P.2d at 484 ); M. R. Evid. 104(a). A court abuses its discretion when it acts "arbitrarily, without conscientious judgment or in excess of the bounds of reason, resulting in substantial injustice." State v. Quinlan , 2021 MT 15, ¶ 16, 403 Mont. 91, 479 P.3d 982 (citing State v. Pelletier , 2020 MT 249, ¶ 12, 401 Mont. 454, 473 P.3d 991 ). Rulings are in error when a "substantial right of the party is affected." M. R. Evid. 103(a).

DISCUSSION

¶12 Did the District Court err by prohibiting Brasda's examination of the State's crime lab witness about the involvement of a discharged crime lab employee with the drug evidence?

¶13 Brasda argues the District Court erred by "prohibiting Mr. Brasda from cross-examining Travis Doria about Derek Thrush's prior testing and the need for retesting." Brasda first argues it was unnecessary for Doria to have personal knowledge of Thrush's circumstances, because Doria could provide otherwise inadmissible hearsay because of "his expert witness status."

¶14 The Montana Rules of Evidence require different foundations for admission of lay and expert witness testimony. Lay witnesses are prohibited from testifying "to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." M. R. Evid. 602. If a witness has personal knowledge, the witness may provide "opinions and inferences ... rationally based on the perception of the witness" and "helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue." M. R. Evid. 701. Absent inadmissible hearsay, Doria lacked personal knowledge to testify about Thrush's drug use, investigation and termination, and its subsequent effect on the necessity to re-validate evidence, and therefore could not testify as a lay witness.

¶15 In contrast, ...