State v. Gommenginger

• Citation: 790 P.2d 455,47 St.Rep. 681,242 Mont. 265
• Decision Date: 29 March 1990
• Docket Number: No. 89-400,89-400
• Parties: STATE of Montana, Plaintiff and Respondent, v. David Gregory GOMMENGINGER, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 455

790 P.2d 455

242 Mont. 265

STATE of Montana, Plaintiff and Respondent, v. David Gregory GOMMENGINGER, Defendant and Appellant.

No. 89-400.

Supreme Court of Montana.

Submitted on Briefs Jan. 25, 1990.

Decided March 29, 1990.

Stephen J. Nardi, Sherlock & Nardi, Kalispell, for defendant and appellant.

Marc Racicot, Atty. Gen., Patricia Schaeffer, Asst. Atty. Gen., Helena Scott B. Spencer, County Atty., Libby, Susan Loehn, County Atty., Lincoln, for plaintiff and respondent.

McDONOUGH, Justice.

Defendant David G. Gommenginger appeals the judgment of the Nineteenth Judicial District, Lincoln County, Montana, convicting him of three counts of criminal sale of dangerous drugs in violation of Sec. 45-9-101, MCA. We reverse and remand the case for a new trial.

The Defendant raises the following issues on appeal:

(1) Did the District Court err in admitting evidence allegedly regarding the Defendant's character in the State's case-in-chief?

(2) Did the District Court err in limiting the scope of the cross-examination of the State's chief witness?

(3) Was there sufficient evidence to support the convictions of criminal sale of dangerous drugs on Counts III and IV?

During the summer of 1988, the Lincoln County Sheriff's Department conducted an undercover drug investigation of various persons in the area around Libby, Montana. Detective Don Bernall hired an undercover agent, Mike Hewson (the informant), to facilitate the investigation. The informant worked from June 7 to August 28, 1988 under the supervision of Bernall and Officer Clint Gassett. Officer Bernall testified that the informant's salary was not contingent upon obtaining arrests and convictions; he was paid a flat rate for his services and was provided with expense money, including money to buy drugs.

In the State's case-in-chief, Bernall testified that the informant was given a list of potential people to infiltrate that were drug dealers in the community and that the Defendant's name was on that list. The informant also testified in the State's case-in-chief that he was supplied with a list of potential drug dealers, which included the Defendant. The informant then began his investigation by circulating in the bars. He first dealt with a man named Baldwin who then referred him to a woman named Mandy Curtiss as a source for narcotics. Curtiss allegedly became the go between in a series of deals where the informant allegedly bought marijuana, "crank," and cocaine from the Defendant and other persons under investigation.

As a result of the investigation, an information was filed in the District Court on September 15, 1988 charging the Defendant with the following offenses: (1) count I, criminal sale of dangerous drugs, a felony, on July 9, 1988; (2) count II, criminal sale of dangerous drugs, a felony, or in the alternative, conspiracy to commit or accountability for the criminal sale of dangerous drugs, a felony, on July 10, 1988; (3) count III, criminal sale of dangerous drugs, a felony, on July 16, 1988; (4) count IV, criminal sale of dangerous drugs, a felony, or in the alternative, accountability for the criminal sale of dangerous drugs, a felony, on August 3, 1988, all alleged to have been committed in Lincoln County, Montana.

One of Defendant's theories in defense of the charges was that the informant was a drug dependent individual who was double dealing with the Lincoln County Sheriff's Department. Defendant alleges that the informant had his own extensive drug habit that he was supporting while employed by the Sheriff's Department and that he supplied drugs to the Sheriff's office and alleged that they were from the Defendant, whereas in reality he was supplying the drugs himself. This enabled the informant to sustain his habit and avoid the risk of criminal prosecution.

The State offered testimony tending to establish the necessity of narcotic use by an informant in such clandestine operations as means of maintaining an effective cover. In his testimony, the informant stated that he used drugs as part of his cover. In a pretrial statement, Officer Bernall also stated that the informant showed signs of drug dependence, and that he "used a drugger to catch a drugger." On one occasion, the informant's testimony indicates that he supplied and used cocaine with Curtiss, for the alleged purpose of maintaining his cover. On this occasion, the informant took out two hypodermic needles, allegedly in his possession as part of his cover, and directly injected cocaine intravenously with Curtiss.

Based on such evidence, the Defendant sought to prove that the informant's need for drugs to support his habit was the motivation to use his cover as a law enforcement agent to sell and use drugs and still portray himself as an effective informant. The Defendant also sought to introduce evidence of the informant's drug use in the investigations of other suspects in the Libby area and his drug use prior to being employed as an agent. However, the State's motion in limine to exclude evidence of the informant's involvement with drugs and drug dependency was granted as to any instances beyond the scope of the res gestae of the charges against this particular defendant.

At trial the jury found the Defendant guilty of criminal sale of dangerous drugs on counts I, III, and IV of the information and not guilty on count II. His wife later plead guilty to the criminal sale of dangerous drugs that occurred under count IV. Defendant maintains that her testimony absolves the Defendant of any responsibility for that transaction. Defendant has no prior felony convictions or criminal record except for traffic violations. The Defendant was sentenced to 13 years imprisonment in the Montana State Prison and fined $2500.00. His subsequent motion for new trial was denied, and he now appeals the denial of that motion and the sufficiency of the evidence as to counts III and IV, raising the issues enumerated earlier.

I.

Defendant maintains that the trial court erred in admitting evidence of the Defendant's bad character during the State's case-in-chief. On direct examination Officer Bernall testified that the informant was provided with a list of "known" drug dealers in the Libby community to infiltrate and that the Defendant was on that list. On redirect examination Bernall further testified:

Q. (by Mr. Spencer): Partly, what are you also relying on?

A. (by Officer Bernall): My personal knowledge.

Q. Of what?

A. Mr. Gommenginger.

Q. And where did you get that personal knowledge from?

A. From confidential informants and other officers.

Q. And what is the information?

A. That he is a cocaine dealer.

The trial court ruled, and the State maintains, that defense counsel opened up the door for the admission of this testimony with the following statement made during opening:

To begin with, we have an informant who is initially before he begins working told by the detective here, Mr. Bernall, that Greg is someone in whom they are interested in getting a conviction for a drug sale.

So the informant immediately has incentive to pursue my client....

We disagree. Rule 405(a), M.R.Evid. provides that proof of the Defendant's character may be made by testimony as to reputation or in the form of an opinion. Thus, not only is Officer Bernall's testimony hearsay, it contains elements of both opinion and reputation evidence of the Defendant's bad character as relating to his disposition to commit the crime with which he was charged. See State v. Alberts (1969), 80 N.M. 472, 457 P.2d 991, 993; State v. Ramirez Enriquez (1987), 153 Ariz. 431, 737 P.2d 407, 408. Rule 404(a)(1), M.R.Evid., only allows the prosecution to introduce such evidence of an accused's bad character as proof that he acted in conformity therewith to rebut defense evidence of the accused's good character offered to prove the same. Here, defense counsel's opening statement merely stated that law enforcement told the informant that they were interested in getting a conviction against the Defendant for a drug sale. The opening statement did not even deny that the Defendant was a drug dealer. This statement did not put the Defendant's good character or reputation in the community into issue so as to open the door to allow the State to present character evidence in its case-in-chief. See e.g., State v. Atlas (1986), 224 Mont. 92, 728 P.2d 421 (allowing the State to introduce videotaped evidence in its case-in-chief of Defendant's former lover to refute Defendant's opening statement that portrayed him as a loving husband devastated by the death of his wife.)

The testimony of Officer Bernall amounted to evidence of the Defendant's bad character as a drug dealer that would invite the jury to infer the Defendant's guilt based on his alleged reputation as a drug dealer in the Libby community. The Defendant did not put his character into issue, and admission of such evidence constitutes reversible error. See Michelson v. United States (1948), 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168.

II.

The Defendant also argues that the District Court erred in granting the State's motion in limine restricting the cross-examination of the State's chief witness concerning the informant's drug use to the res gestae of the crimes charged. The Defendant argues that this effectively denied him his fundamental right of confrontation guaranteed by the Sixth Amendment of the United States Constitution.

The State contends that cross-examination was properly limited pursuant to their motion in limine and Rule 608, M.R.Evid. The Rule, which is nearly identical to its federal counterpart, provides in pertinent part:

Rule 608. Evidence of character and conduct of witness.

. . . . .

(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of...