State v. Harney, 12163
| Decision Date | 28 July 1972 |
| Docket Number | No. 12163,12163 |
| Citation | 499 P.2d 802,160 Mont. 55 |
| Parties | The STATE of Montana, Plaintiff and Respondent, v. Jeffrey HARNEY, Defendant and Appellant. |
| Court | Montana Supreme Court |
Maffei & Harrington, Maurice Maffei, argued, Butte, for defendant and appellant.
W. G. Gilbert, III, County Atty., argued, Dillon, Robert L. Woodahl, Atty. Gen., J. C. Weingartner, Asst. Atty. Gen., argued, Helena, for respondent.
The appellant, Jeffrey Harney, was charged with the crime of sale of dangerous drugs. He was convicted and sentenced to three years in the state penitentiary with all but one year suspended. From that conviction he appeals.
Appellant was a resident of Butte, Montana, having been born and raised in that community. In September 1969 he moved to Dillon, Montana, where he enrolled at Western Montana College.
In the spring of 1971, a Dan Jimmerson, who was also a student at Western Montana College, approached the Beaverhead County sheriff's office. Jimmerson said he was concerned with the drug problem in the area and asked if he could assist the local law enforcement personnel in curbing the drug traffic. The sheriff's office accepted his offer and told him to try to associate
In the latter part of March, 1971, Jimmerson went to the apartment of the appellant and told him that he had heard he was going to Missoula to purchase some drugs. Jimmerson asked the appellant to purchase some drugs for him if he was able to make a buy in Missoula. The appellant told him he would. The next day Jimmerson asked appellant if he had been able to secure any drugs; the appellant said he was not able to purchase any at that time.
About two weeks later Jimmerson heard that Harney had some drugs for sale. Jimmerson went again to the apartment of appellant and asked him if he had any drugs for sale. Appellant replied he had some and showed Jimmerson a baggie which was reportedly full of hash. Appelllant agreed to sell Jimmerson two grams for $5.00 each. Jimmerson told appellant he did not have the money at that time and made arrangements to make the buy the following day.
Jimmerson then contacted the local law enforcement officials and they agreed to set up surveillance at the local baseball field where the sale was to take place. At 6:00 p. m. the appellant arrived at the park where they made the sale in his automobile. After the sale both appellant and Jimmerson were arrested by the law enforcement authorities.
The case was tried before a jury, commencing on June 14, 1971, and on June 16, 1971, the jury returned a verdict of guilty. The court fixed August 9, 1971 as the date for the hearing on what the court called 'aggravation and mitigation of sentence'.
On April 6, 1971, when the information was filed, the appellant was twenty years of age. Section 54-132(b), R.C.M.1947, provides that '* * * Any person of the age of 21 years or under convicted of a first violation under this section shall be presumed to be entitled to a deferred imposition of sentence.' Absent evidence to overcome the presumption, appellant was entitled to a deferred imposition of sentence. The hearing, called an 'aggravation and mitigation' hearing, was held, at which time the court heard evidence on behalf of appellant and for the State. Included in the evidence for the State were two affidavits which were allowed into evidence over the objections of appellant. These affidavits accused appellant of previous dealings in drugs. At the conclusion of the evidence the Court held that appellant was not entitled to a deferred imposition of sentence. Appellant was sentenced to three years with all but one year suspended.
Appellant divides the alleged errors on this appeal into basically four parts. We shall discuss them in the same manner. These parts are: (1) Error in admitting certain photographs into evidence; (2) failure of the State to prove the necessary venue; (3) error of the district court in not granting a motion for a directed verdict in favor of appellant on the grounds that there was entrapment as a matter of law; and (4) whether there was sufficient evidence to overcome the presumption that appellant was entitled to a deferred imposition of sentence.
Appellant's first specification of error alleges the admission of certain photographs was prejudicial and they should have been excluded. We find no merit in this argument. The pictures were necessary in order that appellant be properly, affirmatively and conclusively identified. Photographs are admissible whenever relevant to describe a person, place or thing. State v. Logan, 156 Mont. 48, 473 P.2d 833. Appellant had, at the time he was arrested, an 'Afro' type hair style. At the time of the trial, appellant did not have this same type of hair style. These pictures were admitted to bolster the identity of the accused, since his appearance was notably different at the time of the trial than it was at the time he was observed by the witnesses. We do not find that these pictures were introduced to prejudice the jury against appellant. They were allowed because they were relevant to identify the accused.
The next alleged error on appeal is that the State failed to establish the proper venue. After a careful reading and study of the record we find the necessary venue was established.
During the trial, Fred Rebish, who testified that he was a deputy sheriff in Beaverhead County, gave an account of where the arrest took place. He testified that he was familiar with the city park in Dillon, and it was at this park, called Vigilante Park, that the sale took place. Another witness, Raymond Davis, who also stated he was an undersheriff with Beaverhead County, testified as to the arrest of appellant. He also referred to the park where the sale took place and he stated he left a trailer on Thomson Street before making the arrest of appellant.
This Court has already given some guidelines with reference to establishing the proper venue. In State v. Anderson, 156 Mont. 122, 476 P.2d 780, we stated that when it is established that the crime took place in a town within this State, by reference in the record to the town itself, or to buildings and streets within that town, or that the investigating officers from that local law enforcement agency investigated the crime, the court can take judicial notice that the town is within its own appropriate county in establishing venue.
In the instant case, it was established that this sale took place in the city park of Dillon. There was reference to the park, the city, reference to streets within Dillon, and testimony that the arresting officers were from the local Dillon and Beaverhead County sheriff's office. Since it was established that this took place in Dillon, the court was correct in taking judicial notice that Dillon is within Beaverhead County.
Appellant now alleges there was entrapment as a matter of law and that a directed verdict should have been given. We again fail to see any error and uphold the action by the district court. It seems clear that present Montana case law indicates there was no entrapment on ...
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State v. Finley
...extension of this Court's holdings that sound recordings, State v. Warwick, 158 Mont. 531, 494 P.2d 627, and photographs, State v. Harney, 160 Mont. 55, 499 P.2d 802, may be admissible in The decisions of courts in several other jurisdictions support the holding that the audio-video tape in......
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State v. Pendergrass
...appearance is substantially different at the time of trial than at the time observed by the witness, it is relevant. State v. Harney (1972), 160 Mont. 55, 499 P.2d 802. The next issue raised by defendant is whether the trial court erred in admitting evidence of the voice Although there are ......
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State v. Nichols
...the rights of the [defendant] must be protected. Due process must be observed in [sentencing] hearings ..." State v. Harney (Mont.1972), 499 P.2d 802, 805-806, 160 St.Rep. 55, 62. Appellant argues that Montana's statutory structure, under which the sentencing is carried out, indicates the n......
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