State v. Clark

• Decision Date: 27 April 1998
• Docket Number: No. 97-096,97-096
• Parties: , 1998 MT 221 STATE of Montana, Plaintiff and Respondent, v. Ronald A. CLARK, Defendant and Appellant. . Heard
• Court: Montana Supreme Court

Page 766

964 P.2d 766

290 Mont. 479, 1998 MT 221

STATE of Montana, Plaintiff and Respondent, v. Ronald A. CLARK, Defendant and Appellant.

No. 97-096.

Supreme Court of Montana.

Heard April 27, 1998.

Submitted April 30, 1998.

Decided Sept. 3, 1998.

Daniel P. Buckley (argued); Berg, Lilly, Andriolo and Tollefson, P.C.; and Brock Albin (argued); Kommers & Roth; Bozeman, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General; Carol Schmidt (argued), Assistant Attorney General; Helena, Marty Lambert, Gallatin County Attorney; Jane Mersen, Deputy County Attorney; Bozeman, for Plaintiff and Respondent.

William F. Hooks; Montana Appellate Defender Office; Helena, for State Bar of Montana Criminal Defense Section, James J. Shea; Bricker, Zakovics, Querin, Thompson & Ritchey, P.C.; Missoula, for Montana Association of Criminal Defense Lawyers, for Amici Curiae.

REGNIER, Justice.

¶1 Ronald Clark appeals from the judgment and sentence entered by the Eighteenth Judicial District Court, Gallatin County, on his convictions for criminal possession of dangerous drugs and drug paraphernalia, driving under the influence of alcohol, failure to remain at the scene of an accident, and failure of duty upon striking an unattended vehicle. For the reasons stated below, we reverse in part, affirm in part, and remand to the District Court.

¶2 Clark presents the following issues on appeal:

¶3 1. Is that portion of Rule 803(8), M.R.Evid., which governs the introduction of written reports from the Montana state crime laboratory unconstitutional?

¶4 2. Did the District Court err in denying Clark's request for a psychological evaluation pursuant to § 46-14-202, MCA?

¶5 3. Did the District Court err in denying Clark's motion for a mistrial made on the grounds that the court erred in permitting a witness for the State to testify as to other crimes, wrongs, or acts by the defendant?

¶6 4. Did the District Court err in denying Clark's motions to set aside the verdict and to dismiss Count 1 of the amended information made on the grounds that the court had failed to arraign Clark on the charges contained within the amended information filed by the State?

FACTUAL AND PROCEDURAL BACKGROUND

¶7 On March 26, 1996, Bozeman police arrested Clark in connection with two automobile accidents which had occurred on the city's streets that morning. On April 3, 1996, the State filed an information charging Clark with two felony counts of criminal possession of dangerous drugs, in violation of § 45-9-102, MCA. The State also charged Clark with misdemeanor counts of criminal possession of drug paraphernalia, in violation of § 45-10-103, MCA, second offense DUI, in violation of § 61-8-401, MCA, failure to remain at the scene of an accident, in violation of § 61-7-104, MCA, failure of duty upon striking unattended vehicle, in violation of § 61-7-106, MCA, and failure to carry proof of insurance, in violation of § 61-6-302, MCA. Clark appeared with counsel at his April 17, 1996, arraignment and pled not guilty to all charges.

¶8 On October 21, 1996, the State filed a motion for leave to file an amended information "to consolidate the charges in counts 1 and 2 and to change the name of the dangerous drug from Methamphetamine to Amphetamine." The court heard oral argument on the State's motion and advised the State to file an amended affidavit of probable cause. The State filed its amended affidavit on October 22, 1996, and the court issued an order the following day granting the State permission to file an amended information. The State accordingly filed an amended information on October 23, 1996, consolidating Counts 1 and 2 of the original information, and charging Clark with criminal possession of amphetamine.

¶9 On October 21, 1996, the same day it filed a motion for leave to amend its information, the State also filed a notice of its intent to offer written crime lab reports in evidence pursuant to Rule 803(8), M.R.Evid. Clark filed a written response, objecting to "the admission of the reports without the proper foundation being laid by the author of the report." Clark argued that the admission of the report in the absence of its author would violate his "right to conduct a cross-examination." On November 21, 1996, the court held a hearing on Clark's various pretrial motions, and ordered from the bench that the State could introduce the crime lab reports without making the author available. The court explained that, pursuant to Rule 803(8), M.R.Evid., if Clark wished to question the author of the crime lab reports, he would have to subpoena her as a witness.

¶10 Clark was tried before a jury on November 26 and 27, 1996. The jury returned its verdict on November 27, 1996, convicting Clark of criminal possession of dangerous drugs, criminal possession of drug paraphernalia, DUI, failure to remain at the scene of an accident, and failure of duty upon striking unattended vehicle. ¹

¶11 On December 30, 1996, Clark filed a post-trial motion to set aside the verdict on Count 1 of the amended information, and dismiss that charge with prejudice. The court denied Clark's motion on January 6, 1997, and sentenced him the following day. The court sentenced the defendant to five years in prison, with all but thirty-three days suspended, on his conviction for Count 1, criminal possession of dangerous drugs. Clark received a concurrent sentence of six months in jail, with all but thirty days suspended, on his conviction for Count 2, criminal possession of drug paraphernalia. As to Counts 3, 4, and 5, the court ordered that Clark be committed to the county jail for a period of thirty days for each offense, with those sentences to be served concurrently with his sentence under Count 1. Clark filed his notice of appeal on January 7, 1997.

ISSUE 1

¶12 Is that portion of Rule 803(8), M.R.Evid., which governs the introduction of written reports from the Montana state crime laboratory unconstitutional?

¶13 Rule 803(8), M.R.Evid., provides as follows:

To the extent not otherwise provided in this paragraph, records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: (i) investigative reports by police and other law enforcement personnel; (ii) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (iii) factual findings offered by the government in criminal cases; (iv) factual findings resulting from special investigation of a particular complaint, case, or incident; and (v) any matter as to which the sources of information or other circumstances indicate lack of trustworthiness. However, written reports from the Montana state crime laboratory are within this exception to the hearsay rule when the state has notified the court and opposing parties in writing of its intention to offer such report or reports in evidence at trial in sufficient time for the party not offering the report or reports (1) to obtain the depositions before trial of the person or persons responsible for compiling such reports, or (2) to subpoena the attendance of said persons at trial.

¶14 As noted above, it was on October 21, 1996, that the State first filed notice of its intent to offer written crime lab reports into evidence pursuant to Rule 803(8), M.R.Evid. The State indicated it intended to offer "the report of forensic scientist Annalivia Harris, relating to the substances taken from the defendant on March 26, 1996, in evidence during the trial of this action." Clark filed a written response on November 13, 1996, in which he objected "to the admission of the reports without the proper foundation being laid by the author of the report." Clark additionally objected to the admission of the report in the absence of its author on the grounds that such a procedure violated his right to conduct a cross-examination. In reply, the State urged the District Court to apply Rule 803(8), M.R.Evid., and admit the crime lab report without requiring Harris to testify. The State argued "[t]here will be no prejudice to the defense if Ms. Harris does not testify," because all she would "say is contained in her report."

¶15 On November 14, 1996, the District Court held a hearing regarding the State's proposed use of the crime lab report prepared by Harris. The State argued the report was admissible pursuant to Rule 803(8), M.R.Evid., and asked that "the Court require the defendant to subpoena Ms. Harris if [he]want[s] her here." Having heard argument by the parties, the court deferred its ruling on the admissibility of the crime lab report. On November 21, 1996, during a hearing on various pretrial motions, the court ruled from the bench that "the State can introduce the report." With respect to Harris's presence at trial, the court instructed defense counsel with the following in accordance with Rule 803(8): "If you want that person here, Mr. Buckley, you subpoena her."

¶16 On appeal, Clark argues that that portion of Rule 803(8), M.R.Evid., which governs the introduction of Montana state crime lab reports is unconstitutional, and asserts the District Court thus erred in permitting the State to introduce the crime lab report without calling its author as a witness. More specifically, Clark first argues that portion of the rule which required him to subpoena Harris as a witness in the event he wished to cross-examine her, impermissibly shifted the burden of proof from the State to the defendant in violation of both the Montana and United States Constitutions. Clark next argues that, because the rule authorized the State to introduce Harris's crime lab...