State v. Frates, 12136

• Decision Date: 15 November 1972
• Docket Number: No. 12136,12136
• Citation: 160 Mont. 431,503 P.2d 47,29 St.Rep. 960
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Larry FRATES, Defendant and Appellant.
• Court: Montana Supreme Court

Page 47

503 P.2d 47

160 Mont. 431

The STATE of Montana, Plaintiff and Respondent, v. Larry FRATES, Defendant and Appellant.

No. 12136.

Supreme Court of Montana.

Submitted May 16, 1972.

Decided Nov. 15, 1972.

Towe, Neely & Ball, Billings, Gerald J. Neely, argued, Billings, for defendant and appellant.

Robert L. Woodahl, Atty. Gen., Helena, J. C. Weingartner, Asst. Atty. Gen., argued, Helena, Harold F. Hanser, County Atty., argued, Billings, for plaintiff and respondent.

DALY, Justice.

Defendant, Larry Frates, appeals from a judgment of conviction of the crime of criminal sale of dangerous drugs entered on June 10, 1971, following jury trial and verdict of guilty in the district court of the thirteenth judicial district, county of Yellowstone, the Hon. Charles Luedke, district judge, presiding. Following denial of his motion for a new trial, defendant appeals from the judgment of conviction.

Defendant was arrested on the night of March 17, 1971, in Room 105 of the Imperial 400 Motel in Billings by officers of the Billings police department following a sale by defendant of 900 LSD tablets to an undercover police officer, Richard Stelzer. Two officers of the Billings police department, Sgt. Jack Samson and Detective Pat Hagel, occupied the adjoining motel room and heard the entire conversation between defendant and Officer Stelzer by means of an electronic 'bug' planted in the telephone in Room 105, which transmitted the conversation through the telephone in the room they occupied.

At trial, defendant admitted his actions of March 17, 1971, but offered testimony and evidence to support his defense of entrapment by the Billings police and the Yellowstone County sheriff's departments.

During trial it developed that a police informer, Dale Anderson, a bartender at the Midway Bar in Billings, had purchased 100 LSD tablets from defendant on two separate occasions within days of the crime charged, and played a significant role in arranging the meeting at the Imperial 400 Motel between Officer Stelzer and defendant culminating in the sale of 900 LSD tablets with which defendant was charged.

Defendant was duly charged with the latter sale, tried by jury, convicted, and sentenced to twenty years in the state prison. Following denial of his motion for a new trial, defendant appeals from his conviction.

Defendant raises seven issues on appeal:

1. The court erred in refusing to give defendant's offered instruction no. 7.

2. The court abused its discretion in admitting evidence where there was an incomplete chain of possession.

3. The court abused its discretion in allowing informant to testify to alleged prior sales.

4. Entrapment having been shown as a matter of law, the court erred in not granting a directed verdict of acquittal at the close of the prosecution's case.

5. The court erred in not striking all testimony relating to conversations taking place in the motel room in question.

6. The court erred in not granting a new trial or directing a verdict of acquittal at the close of defendant's case.

7. The court erred in overruling defendant's objection to plaintiff's offered instruction No. 4.

Directing our attention to Issue 1, we observe that defendant's offered instruction No. 7 is covered by the court's instruction No. 2, which is the cautionary instruction taken verbatim from Instruction No. 1, M.J.I.G. Accordingly there is no error in the court's refusal of defendant's offered instruction No. 7 covering the same point in slightly different language. State v. Lagge, 143 Mont. 289, 388 P.2d 792; State v. Logan, 156 Mont. 48, 473 P.2d 833.

In Issue No. 2, defendant argues the district court abused its discretion in admitting evidence of dangerous drugs where there was an incomplete chain of possession. The evidence establishes a chain of possession of the LSD tablets from defendant to the arresting officers; from there to tagging, marking and storing in the evidence vault at the Billings police department; the packaging and addressing of four of the tablets to the Bureau of Narcotics and Dangerous Drugs in San Francisco; the receipt of the four pills by this agency; their examination, testing, and identification by chemist Chan of that agency; and, the return of the plastic container, the mailing box, and the mailing wrapper, bearing the handwriting of one of the Billings officers, to the Billings police department. Under such circumstances, the absence of the direct testimony of the person who actually mailed them to San Francisco is immaterial and in no sense breaks the chain of possession, precluding their admissibility in evidence.

Issue No. 3 concerns the admission of testimony by informant Aderson of alleged prior sales of dangerous drugs by defendant.

The state's evidence disclosed that Dale Anderson was requested by the Billings police department to assist it in curbing the drug traffic in Billings and to relay information on drug traffic as a paid informed. Anderson was given the names of two suspects of particular interest to the Billings police department, one of whom was Ron Novasio and the second, the defendant.

In late February or early March 1971, defendant came to the Midway Bar in Billings where Anderson was employed as a bartender. Anderson told defendant that he wanted to go into a 'partnership' with defendant in the illegal drug filed. Anderson informed defendant he was not getting supplied like he should, and asked if defendant could assist him. Defendant replied that he was not sure at that time, but he would let Anderson know. Again, about a week later, defendant and Anderson came into contact and discussed their possible agreement.

On March 9, 1971, approximately a week and a half after their last meeting, defendant came to the Midway Bar and handed Anderson a sack containing 100 capsules of LSD. Defendant told Anderson the capsules were LSD, which could be sold for double the amount of money needed to purchase them. Anderson turned the capsules over to Detective Hagel, who gave Anderson $150 so that he could pay defendant. About a week later, on March 14, 1971, defendant returned to the Midway Bar and handed Anderson another sack containing 100 LSD capsules which were again turned over to Detective Hagel. It is the evidence of these prior transactions, admitted at the trial over the objection of defendant, that is one of the principal assignments of error.

The general rule in regard to the admissibility of evidence of other crimes is stated in 29 Am.Jur.2d, Evidence, § 320, p. 366:

'It is a well-established common-law rule that in a criminal prosecution proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times, even though they are of the same nature as the one charged, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged * * *.'

Montana's adherence to the above quoted general rule is recited in State v. Jensen, 153 Mont. 233, 238, 455 P.2d 631, 633, which states:

'* * * Montana recognizes the general rule "that when a defendant is put upon trial for one offense, he should be convicted, if at all, by evidence which shows that he is guilty of that offense alone; and evidence which in any manner shows, or tends to show, that he has committed another crime wholly independent, even though it be a crime of the same sort, is irrelevant and inadmissible.' Williams v. State, 68 Okl.Cr. 348, 352, 98 P.2d 937, 939.' State v. Tiedemann, 139 Mont. 237, 362 P.2d 529 (1961). The reason for this rule is-the defendant is entitled to be informed of the crime charged so as to prepare his defense and proof of other crimes subjects him to surprise and defense of multiple collateral or unrelated issues. State v. Nicks, 134 Mont. 341, 332 P.2d 904 (1958).' (Emphasis added)

Jensen, then goes on to state a recognized exception to this general rule:

'There are recognized exceptions to this general rule: similar acts with the same prosecuting witness, State v. Sauter, 125 Mont. 109, 232 P.2d 731 (1951); similar acts not too remote in time, State v. Nicks, supra; and 'where the evidence of other crimes tends to establish a common scheme, plan or system and where such other crimes are similar to, closely connected with and not too remote from the one charged, and...