State v. Canon

• Decision Date: 04 October 1984
• Docket Number: No. 83-321,83-321
• Citation: 212 Mont. 157,687 P.2d 705,41 St.Rep. 1659
• Parties: STATE of Montana, Plaintiff and Respondent, v. Henry Calvin CANON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 705

687 P.2d 705

212 Mont. 157

STATE of Montana, Plaintiff and Respondent, v. Henry Calvin CANON, Defendant and Appellant.

No. 83-321.

Supreme Court of Montana.

Submitted on Briefs March 8, 1984.

Decided Aug. 30, 1984.

Rehearing Denied Oct. 4, 1984.

Moses Law Firm, Billings, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Harold F. Hanser, County Atty., Billings, for plaintiff and respondent.

WEBER, Justice.

Defendant Calvin Henry Canon (Canon) was arrested on December 9, 1981 with approximately thirty pounds of marijuana in his possession. On December 15, 1981, Canon was charged in Yellowstone County District Court with criminal possession of dangerous drugs with intent to sell, a felony. Canon's arrest was the result of an undercover drug operation in which the Yellowstone County authorities were assisted by Canon's accomplice, Lois Ruland (Ruland). On February 8, 1983, defendant was found guilty of criminal possession with intent to sell. On April 19, 1983, Canon was fined $15,000 and sentenced to 15 years in prison. We affirm his conviction.

The issues on appeal are:

1. Were the Kentucky telephone tapes properly admitted in evidence?

2. Was certain testimony of Detective Hirschi improperly admitted hearsay evidence?

3. Was evidence of other crimes improperly admitted?

4. Was accomplice Ruland's testimony adequately corroborated?

5. Was entrapment established as a defense?

6. Was the jury properly instructed on unanimous jury verdict and specific intent?

7. Was a new trial warranted because of accomplice Ruland's letter?

8. Were Canon's automobile keys illegally seized and admitted into evidence?

Canon is 51, married and has three grown children. He and Lois Ruland had a 3 year relationship during which they talked of his divorce and marriage to Ruland, but that relationship was terminated. Ruland threatened to get even with him.

In November of 1981, Detective Hirschi of the Yellowstone County Criminal Investigation Division (CID) contacted Ruland at a bar in Billings. Hirschi advised Ruland that he had information she was involved with the Billings drug traffic and asked her to assist in gathering evidence against the leaders of the drug organization in return for immunity from prosecution. Ruland agreed.

Ruland kept Hirschi informed of plans for her next trip to Lexington, Kentucky to pick up marijuana. This was the site chosen by the people involved in the drug organization. Neither Hirschi nor any other member of the CID made the plans for the drug purchase and sale. The plans were made and completed by Ruland, defendant Canon, and those with whom they were working. The CID took pictures of the two suitcases which Ruland took to Kentucky for use in transporting the marijuana. Hirschi accompanied Ruland to Kentucky and asked Kentucky police for assistance. Ruland testified that defendant was involved with the plans for the December 7, 1981 trip to Kentucky and provided money needed to obtain the marijuana and to cover Ruland's expenses.

Ruland testified that prior to the trip to Kentucky, she set aside $13,000 of the $17,400 payment she was to make for the drugs in Kentucky. She intended to take the money and her children and "disappear" from the defendant, the drug organization, and the CID as well.

Problems arose in Kentucky because Ruland did not have the necessary $17,400. A number of telephone calls were made between Ruland in Kentucky and Canon in Montana, which were recorded by Hirschi and the Kentucky police. Finally the necessary funds were obtained and the transaction was completed.

Ruland and Hirschi returned to Billings via Denver, Colorado on December 8, 1981. The airline failed to transfer Ruland's bags which contained the marijuana. When Ruland picked up the two bags containing marijuana at the Billings airport, on December 9, 1981, she was followed by defendant Canon, who stopped her and had her follow him to a parking lot in Billings. The testimony of CID officers and Ruland established that Canon there demanded one of the suitcases containing marijuana and left the scene. Canon was arrested a short time later with the suitcase and approximately 30 pounds of marijuana in his possession.

Defendant testified that he knew none of the people involved in the drug transactions in Florida, Kentucky or Montana. He specifically denied that he had been in any way involved in the sale of drugs or any other type of drug transaction with Ruland. Other pertinent facts will be presented in our discussion of the issues.

I

Were the Kentucky telephone tapes properly admitted in evidence?

Defendant Canon's motion to suppress tape recordings of telephone conversations in Kentucky was denied by the District Court. Detective Hirschi testified that the telephone conversations between Ruland and Canon were recorded with Ruland's consent by a cassette tape recorder with a suction-type plug, which was attached to the receiver of the telephone used by Ruland.

Defendant Canon's contention is that the State should have applied for and obtained court permission to electronically survey and tape the conversations between Canon and Ruland, and that such court permission should have been sought in Montana under the requirements of Montana cases. Canon cites a number of Montana cases which establish that tape recordings and transcriptions obtained through the use of an unauthorized electronic monitoring device may properly be suppressed on constitutional grounds. State v. Hanley (1980), 186 Mont. 410, 608 P.2d 104; State v. Brackman (1978), 178 Mont. 105, 582 P.2d 1216.

Defendant does not discuss the taping of a telephone conversation where one party to the conversation has consented to the taping. Here Detective Hirschi testified that Ruland had consented to the monitoring and tape recording of the telephone calls. That testimony was not challenged in any manner on cross-examination or otherwise. Ruland testified at length and was extensively cross-examined. She specifically testified that she had consented to the recording. She also testified that she was not coerced or pressured in any way into allowing the recordings to be made. We note that the tapes contain damaging evidence in that they tend to prove defendant's involvement in drug transactions, of which he denied having any knowledge.

This issue has been settled in Montana. As this Court stated in State v. Coleman (Mont.1980), 616 P.2d 1090, 1096, 37 St.Rep. 1664, 1668:

"The answer to (defendant) Case's contention here is again found in Hanley, supra, where we held that interception of telephone conversations by police officers is legal if one of the parties to the conversation consents, even an informer. This Court has never held that a court order is necessary to monitor a telephone conversation, where one of the parties to the telephone conversation consents. ... Neither party to a telephone conversation can ordinarily see the other. Neither has any way of knowing whether or not the conversation on the telephone is being overheard by other parties. Neither the Montana nor the federal constitution prohibits such monitoring where one of the participants consents. See 18 U.S.C. Sec. 2511(2)(c)."

We hold that the Kentucky telephone tapes were properly admitted in evidence.

II

Was certain testimony of Detective Hirschi improperly admitted hearsay evidence?

Detective Hirschi testified on the first day of trial. At that time, Lois Ruland was not available. Neither the State nor the defendant knew whether or not she would be present to testify. Detective Hirschi testified on the question of the consent of Lois Ruland in order to meet the standard that a telephone conversation can be monitored where one of the parties consents. Coleman, 616 P.2d at 1096, 37 St.Rep. at 1668. In substance defendant contends that there was no way to prove the consent of Lois Ruland through Officer Hirschi, except by proving the truth of her statements, which are clearly hearsay and therefore inadmissible.

The key points are contained in the questions and answers between the Court and Officer Hirschi prior to the playing of the questioned tapes of the telephone conversations:

"The Court: Preliminary, Mr. Hirschi, I want to ask you, were you present at the time both of these tapes were taken?

"A. Yes, I was.

"The Court: And was Lois Ruland aware that the conversations were being taped?

"A. Yes, she was.

"The Court: And it was done with her agreement?

"A. That's correct.

"The Court: And her consent.

"A. Yes, sure."

Our initial inquiry is whether or not the foregoing statements by Hirschi constitute hearsay testimony.

Hearsay is defined in Rule 801(c), M.R.Evid.:

"Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

The declarant is the person who makes the statement. Rule 801(b), M.R.Evid. Here, Lois Ruland was the declarant. The essence of the challenged testimony of Detective Hirschi is that Ruland was aware the conversations were being taped and that the taping was done with her consent. This testimony established the fact of an agreement between Hirschi and Ruland. It is important to note that Hirschi did not testify as to any statement made by Ruland. We conclude that by definition, the testimony to which objection is made was not hearsay.

Even if we accepted the defendant's contentions that the testimony constituted hearsay, no reversible error was committed. Several days later, Lois Ruland did testify and was cross-examined at length by defense counsel. Her testimony established that she consented to the taping and that there was no coercion in that consent. As a result, the defendant had all of the necessary opportunity to protect himself by cross-examination of Ruland. No prejudice has been demonstrated by the defendant.

We hold that the testimony of Detective Hirschi was properly admitted.

III

Was...