State v. Paulson
| Decision Date | 06 March 1991 |
| Docket Number | No. 90-163,90-163 |
| Citation | 250 Mont. 32,817 P.2d 1137 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Curtis Alan PAULSON, Defendant and Appellant. . Heard |
| Court | Montana Supreme Court |
Kenneth R. Olson (argued), Great Falls, for defendant and appellant.
Marc Racicot, Atty. Gen., George Schunk (argued), Asst. Atty. Gen., Helena, Patrick L. Paul, County Atty., Stephen E. Hagerman, Deputy County Atty., Great Falls, for plaintiff and respondent.
Defendant, Curtis Alan Paulson, was convicted of the offense of criminal possession of dangerous drugs with the intent to sell, a felony pursuant to Sec. 45-9-103, MCA, following a jury trial in the District Court for the Eighth Judicial District, Cascade County. Defendant appeals. We affirm.
The issues as restated are:
1. Must accomplice testimony as to other crimes, wrongs or acts be corroborated before it is admissible?
2. Should this Court adopt a sufficiency of the evidence standard of proof which must be met before evidence of other crimes, wrongs or acts is admissible?
3. Did the District Court err when it admitted testimony of other crimes, wrongs or acts of the defendant?
4. Was the defendant denied his right to effective assistance of counsel under the Sixth Amendment to the United States Constitution?
5. Was the evidence sufficient to support a verdict of guilty on the charge of criminal possession of dangerous drugs with intent to sell?
6. Does the sentence imposed constitute an excessive sanction in violation of the defendant's rights under the Eighth Amendment to the United States Constitution and Art. II, Sec. 22 of the Montana Constitution?
As background information, we summarize the evidence as submitted by the State. Where necessary, we will set forth additional information. The defendant, Curtis Paulson, ran a marijuana importing and distribution business in Great Falls, Montana for a period of at least ten years. This evidence showed the following general pattern of operation. Paulson imported the marijuana from a grower in Hawaii. The marijuana was delivered by UPS to various addresses in Great Falls. Each package weighed from 15 to 40 pounds and consisted of compressed bales of marijuana. The smell of the marijuana was suppressed through the use of multiple layers of plastic wrapping, duct tape, and baking soda to avoid detection by drug-sniffing dogs at airports.
Paulson arranged to have the marijuana packages shipped to different addresses using incorrect first names for the recipients. Each recipient accepted the package from UPS and then marked the package "Return to Sender". The package was allowed to sit for a few days. This precaution was intended to create an alibi if law enforcement personnel traced the packages, obtained a search warrant, and seized the boxes. The recipient could claim the boxes did not belong to him because the name was incorrect and were waiting to be picked up by UPS. After the cautionary waiting period, Paulson either picked up the marijuana from the recipient or left the boxes with the recipient for storage until needed for sale. Paulson and the recipient broke up the marijuana as needed for sale, and weighed the marijuana and placed marketable quantities in plastic ziplock baggies.
In November, 1988, the Great Falls Police Department's drug investigation led to a confidential informant who made several controlled buys of marijuana from Doug Smith at his home. A search of Doug Smith's home resulted in seizure of approximately four and one-half pounds of marijuana, a scale, cash, plastic baggies, and other paraphernalia typically used in sale operations. Doug Smith gave a detailed statement to the police and identified Curtis Paulson as his source of the marijuana. This information confirmed other sources that had over the past several years identified to authorities that Curtis Paulson was a major drug dealer in Great Falls.
The State Identification Bureau tested the items seized from Doug Smith's home and found Curtis Paulson's fingerprints on one of the bags of marijuana and on one of the baggies found with the scale. Paulson presented evidence to explain his fingerprints on the baggies found in Doug Smith's home through testimony of a witness who had observed Paulson and Doug Smith cleaning game birds in Doug Smith's back yard and placing the birds into baggies for freezing.
A search of Curtis Paulson's residence resulted in the seizure of 1,000-watt grow lamps, a hood, a timer, tubing, planters, a carbon dioxide dispenser, transformers, shipping boxes and labels, false picture identification cards, financial and banking records, and cash. No marijuana was found during the search.
Must accomplice testimony as to other crimes, wrongs or acts be corroborated before it is admissible?
Over objections of defense counsel, the State presented testimony from two admitted Great Falls drug dealers that detailed Curtis Paulson's importation and distribution scheme in Great Falls spanning at least ten years. Jarl Garber and Dale Davidson both had previously received UPS shipments of marijuana from Hawaii for Paulson in a manner similar to that described by Doug Smith. The testimony indicated that Paulson only used a recipient two or three times and then arranged delivery to a different recipient. Both Garber and Davidson were previous recipients of marijuana shipments for Paulson. Neither Garber nor Davidson were involved in any manner in the drug shipments for which Paulson was charged.
Paulson argues that Sec. 46-16-213, MCA, requires corroboration of Smith's accomplice testimony to convict Paulson and therefore the same standard should apply to the accomplice testimony of Garber and Davidson as to other crimes, wrongs or acts. Section 46-16-213, MCA, states:
A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, as defined in 45-2-301, unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. (Emphasis supplied.)
Section 46-16-213, MCA, prohibits a conviction on the testimony of a person legally accountable for the same offense unless that testimony is corroborated by other evidence. Neither Garber nor Davidson were chargeable with the crimes for which Paulson was convicted. We conclude there is no basis for applying Sec. 46-16-213, MCA, to the testimony of Garber and Paulson.
We hold that as to crimes, wrongs or acts other than those upon which the defendant is charged, accomplice testimony need not be corroborated before it is admissible.
Should this Court adopt a sufficiency of the evidence standard of proof which must be met before evidence of other crimes, wrongs or acts is admissible?
Defendant also argues that this Court should adopt a rule that before admitting the testimony the District Court must determine that the sufficiency of the evidence would support a finding by a jury that the defendant committed the other crimes, wrongs or acts. Huddleston v. United States (1988), 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771. Huddleston addressed the issue of the rule or standard to be applied in federal courts in determining the admissibility of other crimes, wrongs or acts evidence under Rule 404(b), Fed.R.Evid.
In Montana, the Modified Just Rule determines the admissibility of other crimes, wrongs or acts under Rule 404(b), M.R.Evid. State v. Matt (Mont.1991), 814 P.2d 52, 55, 48 St.Rep. 614, 616. Neither the old Just Rule under State v. Just (1979), 184 Mont. 262, 602 P.2d 957, nor the new Modified Just Rule in Matt incorporate a sufficiency of the evidence standard. While developing the Modified Just Rule in Matt, this Court considered imposing a standard of review in addition to the Modified Just Rule and concluded that the incorporation of Rules 404(b) and 403, M.R.Evid., into the Modified Just Rule was adequate protection against improper admissibility of Rule 404(b) evidence. This Court concluded that a separate standard of review was neither necessary nor compatible with the Modified Just Rule. Upon reconsideration in this case we decline to impose such a standard of review to be used in addition to the Modified Just Rule in determining the admissibility of Rule 404(b) evidence.
Did the District Court err when it admitted testimony of other crimes, wrongs or acts of the defendant?
The defendant objected to two aspects of other crimes evidence. The first was the testimony by Garber and Davidson with regard to the shipment of drugs. The second was the objection to the testimony of Detective Lockerby that the 1,000-watt grow lamps, hood, timer, tubing, planters, carbon dioxide dispenser, and transformers were also evidence of a marijuana operation and admissible as other crimes evidence. Defendant asserts the other crimes testimony was highly prejudicial and improperly admitted under the Just Rule. Just, 184 Mont. 262, 602 P.2d 957.
We will analyze the contentions on the part of the defendant under the Modified Just Rule as adopted in State v. Matt. The Modified Just Rule states:
(1) The other crimes, wrongs or acts must be similar.
(2) The other crimes, wrongs or acts must not be remote in time.
(3) The evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
(4) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,...
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