State v. Haskins

• Decision Date: 21 December 1994
• Docket Number: No. 93-408,93-408
• Citation: 887 P.2d 1189,269 Mont. 202
• Parties: STATE of Montana, Plaintiff and Respondent, v. Thomas HASKINS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1189

887 P.2d 1189

269 Mont. 202

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

No. 93-408.

Supreme Court of Montana.

Submitted on Briefs Sept. 1, 1994.

Decided Dec. 21, 1994.

[269 Mont. 205] William F. Hooks, State Appellate Defender, Helena, for appellant.

Joseph P. Mazurek, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Larry J. Nistler, Lake County Atty., Polson, for respondent.

NELSON, Justice.

Appellant Thomas Haskins (Haskins) appeals from his November 27, 1989 conviction by a Twentieth Judicial District Court, Lake County jury of four counts of criminal sale of dangerous drugs. We affirm.

BACKGROUND

The factual background and a portion of the procedural background of this case is set forth in State v. Haskins (1992), 255 Mont. 202, 841 P.2d 542, (Haskins I ) and will not be repeated in any detail here except as necessary to address the issues raised. Suffice it to say that Haskins is a non-Indian; that the State criminal offenses of which he was convicted were committed entirely within the exterior boundaries of the Flathead Indian Reservation in Lake County, Montana; that he was arrested for those offenses by law enforcement authorities of the State of Montana; that he was prosecuted and sentenced for those offenses by the State of Montana in district court in Lake County; that the evidence utilized by the State in Haskins' conviction was obtained as a result of an undercover investigation and controlled drug buys conducted by police officers employed by the Confederated Salish and Kootenai Tribes for the Flathead Tribal Police Department, the evidence being then turned over to the State authorities by those officers; and that two of the State's witnesses were Indian tribal police officers.

Haskins' raised thirteen issues in his first appeal. We determined that only eight of those issues had been properly preserved for appeal, and as to those issues, we affirmed. Haskins I, 841 P.2d at 545, 548. On August 18, 1993, Haskins filed a petition for postconviction relief in this Court alleging ineffective assistance of counsel, based on his counsel's failure to preserve the five defaulted issues for appeal. In January 1994, we issued an order permitting Haskins to go forward with the appeal on those five issues and authorized the filing of supplemental briefs. Subsequently, we also granted leave to the Confederated Salish and Kootenai Tribes to appear amicus curiae.

The five remaining issues which we consider on this appeal are:

1. Whether the District Court abused its discretion in not allowing Haskins to call Martin Cramer as an expert witness?

2. Whether undercover officer Robert Nelson was competent to testify?

3. Whether Haskins' conviction should be reversed because it was based solely upon the testimony of an undercover officer who was accountable for the same conduct for which Haskins was convicted?

4. Whether the Confederated Salish and Kootenai Tribes exceeded its jurisdiction in the investigation of Haskins by using undercover officer Nelson?

5. Whether cumulative error warrants a new trial?

DISCUSSION

1. Whether the District Court abused its discretion in not allowing Haskins to call Martin Cramer as an expert witness?

On the opening day of trial, the prosecution filed a motion in limine to prohibit Haskins from calling Martin Cramer (Cramer) as an expert witness. Cramer, a private investigator, had, pursuant to a court order, investigated undercover officer Nelson in another case. Following argument, the District Court granted the State's motion in limine in part and precluded Haskins from calling Cramer to offer expert opinion testimony on whether Nelson's conduct deviated from what Cramer considered to be proper training or instructions for an undercover drug operation. Haskins was, however, allowed to call Cramer to testify about his (Cramer's) own background and training as to proper procedure. The defendant did not call Cramer as a witness and did not raise the District Court's order in his motions for new trial.

The State's motion in limine was premised on its allegation that the prosecutor had first received notice of Haskins' intent to call Cramer on the day of trial and on its contention that the defendant had not complied with the court's pretrial order granting the State's discovery motion under § 46-15-323, MCA.

Under § 46-15-323(4)(b), MCA (1987), the defendant was required to provide the prosecution written notice of certain defenses within 30 days after arraignment and, simultaneously, to make available to the State the names and addresses of experts whom he intended to call at trial together with, among other things, copies of reports and statements generated by those experts in connection with the case. The prosecutor argued that the late notice of Haskins' intention to call Cramer and the failure to provide any written report or resume from Cramer, precluded the State from effectively meeting the proposed expert testimony.

The District Court apparently agreed with the State and, in prohibiting Cramer from offering opinion evidence as an expert, it imposed one of the sanctions authorized under § 46-15-329(4), MCA (1989), that is, "precluding a party from calling a witness, offering evidence, or raising a defense not disclosed."

We hold that the District Court did not err in granting the State's motion in limine in part. In the first place, it is well established that whether a witness is an expert and whether his or her testimony is admissible is largely within the discretion of the trial court and that we will not overturn the trial court's decision on such matters absent an abuse of discretion. State v. Baker (1991), 249 Mont. 156, 160, 815 P.2d 587, 589. Moreover, in State v. Clark (1984), 209 Mont. 473, 682 P.2d 1339, we determined that, under Rule 702, M.R.Evid., a private investigator could not testify as an expert as to the results of his investigation as such testimony would not involve "scientific, technical or other specialized knowledge." Clark, 209 Mont. 473, 682 P.2d at 1345. Accordingly, the District Court was well within its discretion to preclude Cramer from offering expert opinion testimony on the results of his investigation of officer Nelson.

Secondly, we conclude that the court properly sanctioned Haskins for failing to comply with the discovery order and the disclosure requirements of § 46-15-323(4)(b), MCA (1987). In State v. Waters (1987), 228 Mont. 490, 743 P.2d 617, we observed that, consistent with the discovery goals of enhancing the search for truth, § 46-15-329, MCA, endows a district court with the discretion and flexibility to impose sanctions commensurate with the failure to comply with discovery orders and that, absent a clear abuse of discretion, we will not interfere with the trial court's decision. Waters, 743 P.2d at 621. See, also, State v. Van Voast (1991), 247 Mont. 194, 202, 805 P.2d 1380, 1385; and State v. Kaczmarek (1990), 243 Mont. 456, 462, 795 P.2d 439, 443.

Under the circumstances, where Haskins failed to comply with the disclosure requirements of the court's discovery order and § 46-15-323(4)(b), MCA (1987), and where the offered expert opinion testimony was not within the requirements of Rule 702, M.R.Evid., we hold that the District Court did not abuse its discretion in granting the State's motion in limine in part, and in sanctioning Haskins by prohibiting Cramer from offering expert opinion testimony on the results of his investigation of undercover officer Nelson.

2. Whether undercover officer Nelson was competent to testify?

Haskins contends that undercover officer Nelson was not competent to testify as a witness and that the trial court should have so ruled as a matter of law. According to Haskins, "Nelson's inability to tell the truth even though he was under oath is clear evidence of his inability to understand the duty of a witness to tell the truth." In support of his position Haskins cites changes in Nelson's testimony, the witness' apparent disregard of the law, Rule 601, M.R.Evid., and State v. Phelps (1985), 215 Mont. 217, 696 P.2d 447. We conclude that Haskins' arguments are without merit.

Rule 601, M.R.Evid., provides that every person is competent to be a witness unless disqualified on the basis of a judicial finding that the witness is incapable of expression concerning the matter so as to be understood by the judge and jury or incapable of understanding the duty of a witness to tell the truth. The record fails to disclose any judicial finding that Nelson was disqualified under either requirement. Haskins cites no authority that would require the trial court to disqualify the witness, sua sponte, after the witness has testified, simply because of inconsistencies in the witness' testimony. Indeed, were that the rule, the testimony of very few witnesses would survive disqualification.

Nor does State v. Phelps, support Haskins' position. In that case we affirmed the district court's finding that a five year old witness was competent to testify, noting that competence of the witness is unaffected by inconsistencies in perception but rather is determined by capacity of expression and appreciation of the duty to tell the truth. Phelps, 696 P.2d at 453. Moreover, it is axiomatic that inconsistencies in a witness' testimony go to the matter of credibility, not competence to testify. State v. Newman (1990), 242 Mont. 315, 321, 790 P.2d 971, 974.

Finally, Nelson's appreciation of his duty to tell the truth is not necessarily diminished by prior violations of the law. See, Commission Comments to Rule 609, M.R.Evid., "[t]he Commission does not accept as valid the theory that a person's willingness to break the law can automatically be translated into willingness to give false testimony."

Accordingly, we hold that Haskins has not demonstrated reversible error in his claim that undercover officer Nelson was incompetent to testify as a witness....