State v. Derbyshire
| Decision Date | 03 February 2009 |
| Docket Number | No. DA 08-0107.,DA 08-0107. |
| Parties | STATE of Montana, Plaintiff and Appellee, v. James DERBYSHIRE, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Jim Wheelis, Chief Appellate Defender, Joslyn Hunt, Assistant Appellate Defender, Helena, Montana.
For Appellee: Hon. Steve Bullock, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Brant Light, Cascade County Attorney, Joel Thompson, Deputy County Attorney, Great Falls, Montana.
¶ 1 James Derbyshire was convicted in the Eighth Judicial District Court, Cascade County, of one count of criminal possession of dangerous drugs (marijuana) with intent to distribute, a felony, in violation of § 45-9-103, MCA (2005). He appeals, arguing that the District Court erred in denying his pretrial motion to exclude evidence of his status as a probationer. We agree with Derbyshire and further conclude that the State has not demonstrated the error was harmless. We accordingly reverse Derbyshire's conviction, vacate the District Court's judgment, and remand this case for a new trial.
¶ 2 As alleged in the State's probable-cause affidavit, federal and state officers executed a search of Derbyshire's residence and vehicle on March 7, 2007. Derbyshire was present during the search. The officers found three baggies of marijuana and a digital scale in his pickup and two baggies of marijuana in his jacket (which he was not wearing at the time). They also found some marijuana hidden in a bedroom ceiling tile. In sum, the officers allegedly found 639.46 grams of marijuana. The State further alleged that Derbyshire admitted he had been dealing marijuana since January 2007.
¶ 3 The case proceeded to trial on December 6, 2007. At a conference held that morning, the prosecutor informed the court that he would be calling a federal probation officer and a state probation officer as witnesses. Both officers had been involved in the search of Derbyshire's residence and vehicle. The prosecutor noted that he had instructed the officers not to discuss the reasons why Derbyshire was on probation, but he acknowledged that "certainly the fact that they are probation officers is going to get the jury's ear." Thus, he stated he would not have a problem with the court's giving a cautionary instruction concerning evidence of prior bad acts.
¶ 4 Defense counsel objected, arguing that there should be "no reference at all to my client being on probation." Counsel pointed out that Derbyshire was not contesting the legality of the search, and he suggested that the witnesses could identify themselves as "officers" or "agents" of the State. But the prosecutor contended that it was impossible for the officers to testify without mentioning that they were "probation" officers. He explained that he intended to ask questions about their experience and their ability to identify the marijuana found during the search. Defense counsel replied that "they can do that without identifying that they're probation officers." Counsel suggested the officers could testify Counsel also pointed out that identifying them as a federal probation officer and a state probation officer would imply that Derbyshire had been convicted of not just one, but two felonies.
¶ 5 The District Court ruled that the officers could identify themselves as "probation officers." The court reasoned that "the general rule is that if there is part of a transaction that involves probation officers that — in which that is certainly the situation here then the State's not required to excise their evidence in order to put their case on trial." The court granted defense counsel's request for a continuing objection to such testimony.
¶ 6 After the jury was selected and preliminary instructions were given, but prior to the prosecutor's opening statement, the District Court (outside the jury's presence) revisited the issue of "probation" references. The court inquired whether the prosecutor could present the State's evidence "without making reference to the fact that it was a probation search." The court also inquired whether the officers could testify simply "that they are, in fact, law enforcement officers, and that they conducted this search in that regard." The court suggested that redacting the references to Derbyshire's status as a probationer might be prudent so as to avoid "a legitimate issue of appeal."
¶ 7 The prosecutor, however, responded that "I'm perfectly comfortable with this going up on appeal as to the prejudice." He argued that it was necessary to identify the officers as "probation officers" in order to explain why and on what basis they searched Derbyshire's residence and vehicle, what steps they took in executing the search, how they determined that the substance they found was marijuana, and how they knew that Derbyshire was the only person living in the residence. He noted that he intended in his opening statement to tell the jury not to decide the case based on Derbyshire's status as a probationer, but he maintained that the fact the officers were "probation" officers conducting a "probation" search was admissible under the transaction rule (discussed below) because this evidence was inextricably linked to and explanatory of the search.
¶ 8 The District Court agreed, reasoning that "the involvement of the probation officer was part of the transaction of the whole investigation here." The court also reasoned that the officers' status as "probation officers" would be "relevant as to why they had certain knowledge" and "why they did certain things the way that they did." Thus, the court denied Derbyshire's motion to exclude "probation" references, though the court again granted defense counsel's request for a continuing objection to any such references. In addition, recognizing that there was "an inherent prejudice" in identifying the witnesses as "probation officers" and Derbyshire as a "probationer," the court indicated that it would give the jury a cautionary instruction. In this regard, the prosecutor suggested that "a modification of the regular 404(b) instruction" would be sufficient (a reference to the jury instruction typically given when evidence is admitted under M.R. Evid. 404(b)).
¶ 9 The District Court then recalled the jury, and the prosecutor gave his opening statement. At the outset, he told the jury:
On March 7, 2007, Great Falls Police Detective Rob Lopez, a narcotics investigator, was asked to assist in conducting a search of the residence of James Derbyshire, the defendant here today. Derbyshire at the time — the reason for the search was that information had been received that Derbyshire was possibly involved in drugs. Derbyshire at the time was a probationer, and as such his residence was subjected to search on reasonable suspicion, less of a — less of a requirement than those of us.
And let me just be clear on something from the get-go. The State, the defense, and the Court are asking you to weigh this case based only on the evidence presented, and, in fact, you must do so, and not based in any way on this defendant's status as a probationer. I just want to make that very clear, and she'll instruct you on that as well.
With that said I'll continue. . . .
The prosecutor then recounted the search of Derbyshire's residence and vehicle as well as the statements Derbyshire made to Detective Lopez. The prosecutor mentioned two of the probation officers (Jim Brills and Kevin Heiferman) a number of times, referring to them alternatively as "probation officers," "police officers," or simply "Officer Brills" and "Officer Heiferman."
¶ 10 The State called Detective Lopez as its first witness. Among other things, Lopez testified to the following. He was aware on the day of the search that Derbyshire was a "probationer." He discussed with "probation officers" whether Derbyshire was possibly engaged in drug activity. He and "the probation office" agreed on how to proceed. They did not need a warrant to search Derbyshire's residence because he was a "probationer." The "probation officers" involved in the search "were two federal probation officers, Officer Antonson and Officer Heiferman and two state probation officers which would have been Officer Brills and Officer Hydes." Upon their arrival, Derbyshire came out of the residence because one of the "probation officers" had called him and asked him to come down to "the probation office" for a meeting. The "probation officers" conducted the search of the residence. The "probation officers" found an illegal substance. The "probation officers" gave Lopez the items they had found. While Lopez was interviewing Derbyshire, the "probation officers" were still at the residence conducting the search. When Lopez returned to the residence, the "probation officers" turned over additional drugs. It is pretty common for the police to assist with "probation searches."
¶ 11 Over the course of Lopez's testimony on direct examination (spanning 37 pages of a double-spaced transcript), "probation" appears 18 times. Notably, the word does not appear during his testimony on cross-examination. In addition, it is noteworthy that the prosecutor used the word far more often than Lopez. Indeed, Lopez generally referred to Antonson, Heiferman, Brills, and Hydes as "officers," not "probation officers."
¶ 12 At the conclusion of Lopez's testimony, the court gave the following instruction:
The State has presented evidence that the Defendant was on probation at the time of the search, and this evidence has been submitted for the sole purpose...
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