State v. Licht, 93-278

• Decision Date: 11 August 1994
• Docket Number: No. 93-278,93-278
• Citation: 266 Mont. 123,879 P.2d 670,51 St.Rep. 686
• Parties: STATE of Montana, Plaintiff and Respondent, v. Ray LICHT, Defendant and Appellant.
• Court: Montana Supreme Court

Page 670

879 P.2d 670

266 Mont. 123

STATE of Montana, Plaintiff and Respondent, v. Ray LICHT, Defendant and Appellant.

No. 93-278.

Supreme Court of Montana.

Submitted on Briefs June 24, 1994.

Decided Aug. 11, 1994.

William Hooks, Appellate Defender, Helena, for appellant.

Joseph P. Mazurek, Atty. Gen., George Schunk, Asst. Atty. Gen., David Rice, Hill County Atty., for respondent.

NELSON, Justice.

The Defendant, Ray Licht, was charged by amended information with two counts of criminal sale of dangerous drugs, both felonies, in violation of § 45-9-101, MCA. After a jury trial held in the Twelfth Judicial District Court, Hill County, Licht was found guilty of both charges on December 4, 1992. Licht appeals from those convictions. We reverse in part and remand for further proceedings consistent with this opinion, and we affirm in part.

Licht raises two issues on appeal:

1. Did the District Court err in refusing to grant a mistrial or a new trial, when it was discovered during trial that the State had failed to reveal a prior electronically monitored meeting in which the informer approached Licht?

2. Did the District Court err in denying Licht's motion to dismiss Count II because the State failed to prove with sufficient evidence that Licht sold, bartered, exchanged, or gave away marijuana to Ernest LaMere?

On May 4, 1992, members of the Tri-Agency Drug Task Force (Task Force) arranged to have a confidential informant, Alex Doney, attempt to purchase drugs from Licht in a controlled buy. The members of the Task Force participating in the purchase attempt were Monte Reichelt, the Chief Deputy of the Hill County Sheriff's Office, and James Brewer, a Deputy Sheriff of the Blaine County Sheriff's office. The officers fitted Doney with an electronic transmitter, commonly known as a body wire, so that they could keep track of Doney and monitor any conversation between Doney and Licht. The officers also gave Doney marked money with the purpose of retrieving it from Licht after the transaction.

The Task Force officers drove Doney to the motel where Licht was staying and dropped him off. Doney approached Licht, who was working on his vehicle, and asked if he had any marijuana for sale. Licht responded that he had some and that it was "twenty dollars a piece." Licht and Doney then got into Licht's vehicle and drove to a discount store's parking lot where Doney gave Licht $40.00 of the marked money and received two grams of marijuana in return. After the transaction took place, Doney got out of the car, and Licht drove away. The Task Force officers immediately picked up Doney who turned over the two gram bags of marijuana to Deputy Reichelt.

After dropping Doney off at a motel, the Task Force officers contacted Jerry Smith, a probation and parole officer, and Steve Marden, a deputy with the Hill County Sheriff's office, to assist them in arresting Licht and in searching his residence, person and vehicle. Licht, however, was not home.

The officers drove around Havre searching for Licht, and spotted his vehicle parked near the Corner Bar. The officers observed Licht get out of his vehicle and enter the tavern. Approximately one minute later Licht and another man, Ernest LaMere, exited the tavern and walked to the back of the building. Deputy Marden and Smith then witnessed an exchange take place between LaMere and Licht. Although neither Marden nor Smith observed what the two men exchanged, Deputy Marden testified at trial that he saw LaMere put the object he received from Licht into his right front pants' pocket. Marden also testified that the two men were acting suspiciously and were looking around as if scanning the area.

Shortly after the transaction, Licht drove away, leaving LaMere at the Corner Bar. Officer Brewer testified that after LaMere left Licht's vehicle, he (LeMere) got into a brown colored Wagoneer that another individual was driving and left the Corner Bar. All four officers followed Licht to a convenience store where he was arrested. Licht had in his possession one of the marked twenty dollar bills the Task Force officers had given to Doney to purchase the drugs.

Officers Marden and Reichelt returned to the Corner Bar and observed LaMere standing by the driver's door of a parked Wagoneer, talking to the driver. The officers approached LaMere and noticed a bulge in his right front pants' pocket. After a pat-down search, the officers determined LaMere had a plastic baggy in his right front pants' pocket and asked him to remove it. LaMere refused the officers' requests to remove the object, therefore, the officers placed him under arrest and removed a plastic bag containing marijuana from LaMere's right front pants' pocket.

Licht was charged with two counts of criminal sale of dangerous drugs, both felonies. An omnibus hearing was held, and an Omnibus Hearing Order was entered granting Licht "complete discovery." A jury trial was held December 3 and 4, 1992. At trial, the State called LaMere as a witness. LaMere testified that he did not buy the marijuana from Licht, but had found it in the mens' room of the Corner Bar. LaMere also testified that on the day he was arrested, he was intoxicated and taking pain medication for a recent stab wound, and therefore had trouble remembering the events clearly. Deputies Reichelt and Marden testified that LaMere did not appear to be intoxicated when they arrested him. Licht never admitted selling marijuana to LaMere or Doney.

During trial, the State asked deputy Reichelt how he recognized Licht's voice over the body wire. Reichelt testified that he recognized Licht's voice because approximately two weeks to one month earlier, the Task Force had Doney attempt to purchase drugs from Licht. Doney wore a body wire during this earlier attempt, and Reichelt testified he heard Licht over the body wire at that time.

Reichelt testified that he could not remember whether records had been kept of this earlier meeting or, if any had been prepared, whether they had been turned over to the State. The testimony at trial was the first time defense counsel had notice that law enforcement had previously attempted to purchase drugs from Licht.

As a result of the testimony concerning the earlier contact, defense counsel moved for a mistrial and asked for a new trial following the State's case-in-chief. Defense counsel argued that the prosecution withheld evidence which would have allowed the defense to present an entrapment defense. The court denied the motion for a mistrial, but apparently was concerned over the lack of documentation and the fact that, if any documentation did exist, the State should have turned it over to defense counsel. The court therefore ordered the Task Force to search their files for any documentation relating to the earlier contact, and to return any such documentation to the court within the hour. The court reserved any further rulings on the matter.

Defense counsel then moved for a directed verdict of acquittal on Count II, for lack of sufficient evidence. The court denied this motion and allowed the jury to deliberate on both counts. The jury found Licht guilty of both charges on December 4, 1992. Licht was sentenced to four years imprisonment on both counts on December 9, 1992.

On December 16, 1992, Licht filed a post-trial motion for a new trial alleging that new evidence establishing entrapment was presented at trial. The court held a hearing on the motion on March 15, 1993. Although the defense did not argue the "new evidence" issue at this hearing, the State at this time revealed that the Task Force had previously used Doney in an attempt to purchase drugs from Licht on April 23, 1992.

The State also admitted that the Task Force had a written report of the April 23rd meeting, which allegedly was inadvertently not turned over to defense counsel prior to trial. The State alleged the written report had been turned over to defense counsel at "the end of the day," pursuant to the court's order directing the Task Force to search their files. The "end of the day" apparently references some time during the last day of the trial. The report itself was never offered into evidence, and no testimony was offered to support or refute the motion for new trial. Therefore, the court denied the motion without hearing any testimony concerning the report, or having it admitted into evidence, and entered a written order to that effect on March 22, 1993. Licht subsequently appealed his convictions to this Court on April 20, 1993.

I. FAILURE TO DISCLOSE

The first issue Licht raises on appeal is whether the District Court erred when it denied his motion for a mistrial, or in the alternative, whether the District Court erred when it denied his motion for a new trial. The grounds for both motions are the same, and raise the issue of whether Licht was prejudiced by the State's failure to disclose, pre-trial, evidence of the prior electronic surveillance.

Section 46-15-322, MCA (1991), sets forth the State's statutory obligation of disclosure in a criminal case. Subsections (1) and (2) of that statute provide:

(1) Upon request, the prosecutor shall make available to the defendant for examination and reproduction the following material and information within the prosecutor's possession or control:

(a) the names, addresses, and statements of all persons whom the prosecutor may call as witnesses in the case-in-chief;

(b) all written or oral statements of the defendant and of any person who will be tried with the defendant;

(c) all written reports or statements of experts who have personally examined the defendant or any evidence in the particular case, together with the results of physical examinations, scientific tests, experiments, or comparisons;

(d) all papers, documents, photographs, or tangible objects that the prosecutor may use at trial or that were obtained from or purportedly belong to the defendant; and

(e) all material or information...