State v. Haskins

• Decision Date: 17 December 1992
• Docket Number: No. 90-265,90-265
• Citation: 841 P.2d 542,255 Mont. 202
• Parties: STATE of Montana, Plaintiff and Respondent, v. Tom HASKINS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 542

841 P.2d 542

255 Mont. 202

STATE of Montana, Plaintiff and Respondent, v. Tom HASKINS, Defendant and Appellant.

No. 90-265.

Supreme Court of Montana.

Submitted on Briefs May 7, 1992.

Decided Nov. 12, 1992.

Rehearing Denied Dec. 17, 1992.

Benjamin R. Anciaux, Polson, for defendant and appellant.

Marc Racicot, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Larry J. Nistler, Lake County Atty., for plaintiff and respondent.

HUNT, Justice.

Appellant Tom Haskins was convicted by a jury on four counts of criminal sale of dangerous drugs on November 27, 1989, in the Twentieth Judicial District Court, Lake County. He appeals from those convictions.

We affirm.

Appellant raises the following issues on appeal:

1. Did the District Court abuse its discretion by not granting a trial continuance?

2. Did the outrageous conduct of undercover officer Nelson require a reversal of the convictions?

3. Did the District Court abuse its discretion by denying appellant's motion for a directed verdict?

4. Did the District Court abuse its discretion by not granting appellant's motion for a new trial?

5. Did the District Court abuse its discretion in not granting immunity to appellant's witnesses?

6. Did the District Court abuse its discretion in limiting appellant's scope of cross-examination of Nelson?

7. Did the District Court abuse its discretion in not allowing appellant to call Martin Cramer as an expert witness?

8. Was undercover officer Nelson competent to testify?

9. Did the State knowingly use perjured testimony?

10. Should appellant's conviction be reversed because his conviction was based solely upon the testimony of an undercover officer who was accountable for the same conduct for which appellant was convicted?

11. Did the State fail to provide appellant with exculpatory evidence?

12. Did the Confederated Salish and Kootenai Tribes exceed its jurisdiction in the investigation and prosecution of appellant and its employment of undercover officer Nelson?

13. Does cumulative error by the District Court warrant a new trial?

In September 1988, Robert Nelson was hired by the Confederated Salish and Kootenai Tribes ("the Tribe") as an undercover officer for the Flathead Tribal Police Department. He was to infiltrate the drug scene in Lake County and the Flathead Reservation, gain the confidence of drug users, make purchases of illegal drugs, and gather information on major drug dealers.

Nelson assumed the identity and alias of "Biker Mike" Harris, a rough, crude drifter who drove a motorcycle, wore black leather clothing, and spent his time "hanging out" at bars. While in this role, Nelson made three separate drug buys from appellant.

The first "buy" occurred on December 6, 1988. Nelson was at the Smokehouse Bar in Polson when appellant approached him and asked if he wanted to buy an eighth of an ounce of marijuana for $25. Nelson bought the bag of marijuana from appellant, left the bar, marked and secured the evidence, and delivered the marijuana later that evening to Dave Morigeau, a criminal investigator for the Flathead Tribal Police Department who was Nelson's contact officer.

Another "buy" transpired on December 10, 1988, at the Smokehouse Bar when appellant offered to sell Nelson three tablets of Valium for a dollar. Nelson purchased the drugs from appellant and again delivered them the next evening to Detective Morigeau.

The third "buy" occurred once again at the Smokehouse Bar on December 13, 1988. Nelson agreed to purchase another eighth of an ounce of marijuana from appellant. Appellant stated that he did not have any marijuana with him, but that his wife Sherry would bring the drug with her when she came to the bar later in the evening. Nelson witnessed the appellant's wife enter the bar and give something to appellant. Appellant then approached Nelson and gave him some marijuana. Nelson delivered the substance to Detective Morigeau on December 15, 1988.

The last transaction occurred on January 22, 1989. Appellant had borrowed $10 from Nelson two days earlier and agreed to pay Nelson back with some Darvon and Darvocet pills. This occurred in downtown Polson. Nelson delivered the pills to Detective Morigeau later in the evening. Apparently, a few weeks later, Nelson's cover was "blown" and his effectiveness as an undercover agent in the drug community ceased.

On April 11, 1989, the Lake County Attorney filed an information charging appellant with four counts of criminal sale of dangerous drugs. After several continuances, trial commenced on November 20, 1989, and on November 27, 1989, the jury found appellant guilty on all four counts. On December 20, 1989, appellant was sentenced to four consecutive prison terms of 20 years, with 15 years suspended for each term. The court entered its written judgment and sentence on December 21, 1989.

On December 27, 1989, appellant filed a motion for a new trial which was denied by the District Court on February 8, 1990. On March 7, 1990, appellant filed his notice of appeal. On February 7, 1991, this Court ordered that the appeal be stayed and the case remanded to the District Court for its consideration of a second motion for a new trial based on newly discovered evidence which was filed by appellant while the appeal was pending. An evidentiary hearing was held on April 29, 1991, and on June 12, 1991, the court denied the motion. Appellant appeals from this order.

At the outset, the State contends that several issues raised by appellant are not properly before this Court because appellant failed to file a timely appeal pursuant to Rule 5(b), M.R.App.P. The State acknowledges that appellant's appeal was timely with respect to the District Court's denial of his first motion for a new trial, entered on February 8, 1990. However, the notice is not timely with respect to the judgment. We have stated that this Court is without jurisdiction to hear an appeal where notice of an appeal is filed more than 60 days following the entry of judgment. State ex rel. Graveley v. District Court (1978), 178 Mont. 1, 582 P.2d 775. We conclude that the proper focus of this appeal should be limited to the District Court's denial of appellant's motions for new trial, and that we will only discuss the issues raised in those motions. Therefore, this Court will not discuss issues 7, 8, 10, 12, and 13.

I.

Did the District Court abuse its discretion by not granting a trial continuance?

When reviewing a denial of a motion for continuance, this Court determines whether the district court abused its discretion. State v. LaPier (1990), 242 Mont. 335, 790 P.2d 983. Motions for continuances are to be addressed at the discretion of the district court and are to be considered in light of the diligence shown by the movant. Section 46-13-202(3), MCA.

In this case, appellant requested a third trial continuance on the grounds that the transcripts of the suppression hearings in a related criminal case, and the report of the private investigator, had not been provided to him and would not be available in time to review and conduct any meaningful investigation into the conduct of undercover officer Nelson.

Defense counsel had approximately five months between the time of appointment and the time of trial to prepare a defense. The District Court had granted two previous continuances on behalf of the defense. Appellant has not shown that even with due diligence he would not have been able to obtain the information in the special investigation report prior to trial by either reinterviewing Nelson or interviewing the private investigator. Nor did the appellant file an affidavit showing the materiality of the evidence expected to be obtained during the continuance. State v. French (1988), 233 Mont. 364, 760 P.2d 86. We hold that the District Court did not abuse its discretion in denying appellant a third trial continuance.

II.

Did the outrageous conduct of undercover officer Nelson require a reversal of the convictions?

Appellant raises two subissues under this argument. First, appellant contends that Nelson engaged in various illegal activities while working as an undercover agent, and as a result, appellant's conviction should be overturned. Second, appellant contends that as a result of Nelson's felony conviction in the state of Washington approximately 20 years ago, Nelson was ineligible to be hired by the Tribe and Lake County as a law enforcement officer.

The United States Supreme Court has recognized that there may come a day when:

[T]he conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.

United States v. Russell (1973), 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366.

The existence of police misconduct as a violation of due process is a question of law for the court to decide. United States v. Ramirez (4th Cir.1983), 710 F.2d 535, 539. As a defense, it is a close relative to entrapment and is usually invoked where involvement of undercover agents and informers in contraband offenses reaches a point as to completely prevent a conviction of a predisposed defendant as a matter of due process. Ramirez, 710 F.2d at 539. Although the due process defense is potentially broad, it is limited. Ramirez, 710 F.2d at 539. The protection of the Due Process Clause of the Fifth Amendment comes into play only "when the Government activity in question violates some protected right of the defendant." Hampton v. United States (1976), 425 U.S. 484, 490, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113. The Hampton court concluded that:

If the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under the applicable provision of state or federal law.

Hampton, 425 U.S. at 490, 96 S.Ct. at 1650.

In this instance, appellant has...