STATE v LaCARIO
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No. 12395 I N THE SUPREME COURT O THE STATE O M N A A F F OTN 1973 STATE O MONTANA, F P l a i n t i f f and Respondent, -VS - DOMINIC D. LaCARIO, Defendant and A p p e l l a n t . Appeal from: D i s t r i c t C o u r t of t h e S e v e n t e e n t h J u d i c i a l D i s t r i c t Honorable Thomas Dignan, ~ u d g e r e s i d i n g . p Counsel o f Record: For Appellant : Leonard H. Langen a r g u e d , Glasgow, Montana F o r Respondent: Hon. R o b e r t L. Woodahl, A t t o r n e y G e n e r a l , Helena, Montana J. C . W e i n g a r t n e r a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l , Helena ,Montana Gordon T. White, County A t t o r n e y , a r g u e d , Glasgow, Montana - - Submitted : Decided: ,. September 25, 1973 ,?R': ,? 13,ijo PER CURIAM: Defendant Dominic D. LaCario was convicted of two c o u n t s of t h e unlawful s a l e of dangerous drugs i n t h e d i s t r i c t c o u r t of Valley County. The two c o u n t s r e l a t e d t o s e l l i n g LSD t o Bradly and Nendy Rasmussen on A p r i l 1 8 , 1972. One count concerned a s a l e made a t t h e Clansman Lounge i n Glasgow, Montana, t h e o t h e r involved a s a l e made a t t h e Rasmussen apartment, B-2 of t h e Lasar Apartments, i n Glasgow. Bradly Rasmussen age 21, was a n e n l i s t e d member of t h e United S t a t e s Army and s t a t i o n e d i n V i e t Nam. His w i f e , Wendy Rasmussen, age 19, r e s i d e d i n Glasgow, Montana a t apartment B-2 of t h e Lasar Apartments. The couple had a t e n month o l d daughter. Bradly Rasrnussen r e t u r n e d t o Glasgow on A p r i l 3 , 1972. The following evening Wendy Rasmussen t o l d h e r husband t h a t she had had s e x u a l r e l a t i o n s w i t h defendant LaCario and w i t h o t h e r men while Bradly was o v e r s e a s . L a t e r t h a t evening Bradly was i n t r o d u c e d t o defendant a t t h e Clansman Lounge i n Glasgow by Wendy. Bradly was very f r i e n d l y toward defendant and i n v i t e d him t o t h e c o u p l e ' s apartment f o r d i n n e r . Defendant t e s t i f i e d he accepted t h e i n v i t a - t i o n and w h i l e a t t h e Rasmussen apartment Bradly t o l d defendant he knew what had happened w i t h h i s w i f e and t h a t he b o r e defendant no ill w i l l because of i t . The Rasmussens and defendant s o c i a l i z e d on s e v e r a l occasions between t h e d a t e of ~ r a d l y ' sr e t u r n and defendant's a r r e s t . O A p r i l 1 6 , 1972, Bradly v i s i t e d t h e Glasgow p o l i c e den partment, twice a l o n e and once w i t h Wendy, and o f f e r e d t o c o o p e r a t e w i t h t h e p o l i c e i n providing information concerning d e f e n d a n t ' s involvement i n a b u r g l a r y o r i n drug s a l e s . On A p r i l 1 8 , 1972, a t about 4 : 0 0 p.m. w i f e and defendant a t t h e Clansman Lounge. Bradly j o i n e d h i s A f t e r g i v i n g Bradly Rasnussen an LSD t a b l e t and a marijuana c i g a r e t t e , defendant t o l d Bradly t h a t he could o b t a i n approximately 50 t a b l e t s of LSD and would s e l l them t o Bradly. The Rasmussens l e f t t h e Clansman Lounge and went t o t h e police station. They showed t h e c h i e f of p o l i c e t h e LSD t a b l e t and marijuana c i g a r e t t e and o f f e r e d t o c o o p e r a t e w i t h p o l i c e i n apprehending defendant w h i l e making a drug s a l e . The p o l i c e accepted t h e o f f e r and about 9:15 p.m. o f f i c e r s came t o t h e Rasmussens' apartment. given $60 i n marked b i l l s . three The Rasmussens were One o f f i c e r concealed himself i n a c l o s e t , and two o t h e r s waited i n an apartment a c r o s s t h e h a l l . Bradly then went t o t h e Clansman Lounge and found defendant. When t h e two r e t u r n e d t o t h e apartment, defendant took a package c o n t a i n i n g 50 LSD t a b l e t s from h i s pocket and placed i t on t h e t a b l e . gave defendant t h e $ O provided by t h e p o l i c e . G Wendy Defendant was o f f e r e d a marijuana c i g a r e t t e and took a few p u f f s . Police o f f i c e r s then e n t e r e d t h e room, a r r e s t e d defendant and s e i z e d t h e evidence. A f t e r t h e a r r e s t a photo was taken of defendant and t h e Rasmussens i n t h e apartment, O t h e opening day of d e f e n d a n t ' s t r i a l t h e county a t t o r n e y n announced t h a t t h e testimony of p r o s e c u t i o n w i t n e s s e s Bradly and Wendy Rasmussen would b e o f f e r e d i n t h e form of d e p o s i t i o n s "which were taken under Court Rule and I hand t h e Court t h e A f f i d a v i t of t h e County Attorney i n compliance w i t h t h e p r o v i s i o n s of Sec. 95-1802, paragraph ( e ) , showing t h a t t h e two w i t n e s s e s a r e i n f a c t a b s e n t from t h e S t a t e of Montana, and t h a t t h e absence i s due t o t h e assignment of t h e w i t n e s s Bradly I. Rasmussen i n t h e m i l i t a r y s e r v i c e t o F o r t Bliss, Texas. II Defense counsel o b j e c t e d contending i t was very p o s s i b l e t h e s e two w i t n e s s e s would have v o l u n t a r i l y appeared i f r e q u e s t e d , and defendant was e n t i t l e d t o have t h e w i t n e s s e s p r e s e n t . The c o u r t asked t h e county a t t o r n e y i f subpoenas had been i s s u e d f o r these witnesses. He r e p l i e d t h a t he had n o t done s o and b e l i e v e d under t h e terms of t h e s t a t u t e t h a t he was n o t r e q u i r e d t o do so. The t r i a l c o u r t then allowed t h e d e p o s i t i o n s t o be read. An a f f i d a v i t of t h e c l e r k of t h e d i s t r i c t c o u r t o f V a l l e y County was included as a p a r t of t h e r e c o r d on a p p e a l by s t i p u l a t i o n of the prosecution and defense. That affidavit states that on July 18, 1972, six days subsequent to the conclusion of the trial, Bradly and Wendy Rasmussen appeared in person in the district court of Valley County to testify in a criminal cause entitled State of Montana v. Joseph A. Stebleton, defendant. Defendant here presents four issues on appeal: 1 ) Whether the district court erred in allowing the testimony of the Rasmussens to be presented by deposition? 2) Whether a marijuana cigarette and a photograph of defendant taken at the time of his arrest were properly admitted into evidence? 3) Whether the district court erred in refusing to give defendant's proposed instructions numbered 4 and 5 relating to entrapment and proposed instruction number 9 relating to accomplice testimony? 4 Whether the district court erred in denying defendant's ) motions for a directed verdict and for a new trial? Issue ( ) 1. The state relies upon this court's decision in State v. Zachmeier, 153 Mont. 64, 70, 453 P.2d 783, in support of its contentions regarding this issue. A reading of Zachmeier indicates the opposite: "1n support of his contention that defendants have a constitutional right to meet witnesses against him face to face at trial so the jury can observe their demeanor and pass upon their credibility while observing the witness on the stand, the defendant relies primarily on the cases of State v. Storm, 127 Mont. 414, 265 P.2d 971 (1953) and State v. Piveral, 127 Mont. 427, 265 P.2d 969 (1953). It is not necessary to hell on these authorities because this trial was conducted under the new rules of criminal procedure. Section 95-1802(e), R.C.M. 1947, provides: "'At the trial or upon any hearing, a part or all of a de osition, so far as otherwise admissible under tIT+-- ru es of evidence, may be used if it appears: e That the witness is dead; or that the witness is out of the state of Montana unless it appears that the absence of the witness was procured by the party offering - -the deposition; or that the witness is unable to attend - - - - -- -- or testify because of sickness or infirmitvr or t----- ~ tt h e h ----arty offering the deposition-has been unable to procure ! h e attendance of the witness by subpoena * - -- . I 3 **.I - - - I1 In our opinion what the United States Supreme Court said in the above cited case [Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L. Ed. 409 (1895)J with regard to deceased witnesses should also apply with regard to any sworn testimony where the defendant has been afforded an oppbrtunity to cross-examine the witness and where it has also been shown that after due diligence the witness cannot be found, and his absence was not procured by the party offering the testimony. I1 Here, the uncontradicted evidence shows that prior to the trial the witness had removed herself from the jurisdiction of the court, which placed her beyond the reach of process of the court and that after due diligence on the part of the prosecution the residence of the witness could not added) be ascertained.'"(Emphasis In Zachmeier this Court clearly recognized that the exercise of due diligence in attempting to procure personal attendance of a prosecution witness is a prequisite to the introduction of the witness's deposed testimony, even when the witness is out of the state, as underlined in the above quotation. This same issue was discussed by the Colorado Supreme Court in Haynes v. People, 128 Colo. 565, 265 P.2d 995, 997, 4 4 "While depositionsare allowable in criminal cases, the circumstances permitting their use must be extraordinary. The necessity must be clearly established, and the duty of showing that necessity is the burden upon the prosecution. Reynolds v. Fitzpatrick, 28 Mont. 170, 72 P. 510; Healy v. First National Bank of Great Falls, 108 Mont. 180, 89 P.2d 555. In Moormeister v. Golding, 84 Utah 324, 27 P.2d 447, 452, the Supreme Court of that state, under a somewhat comparable statute, said: I It wauid therefore be error to admit a deposition in the absence of a showing that the person offering the deposition has used due diligence to find him, that he could not be found, or that he was not within the reach of process of the court."' Montana has enacted the "Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Proceedings". Sections 94-9001 through 94-9007, R.C.M. 1947. The annotation following section 94-9001 states that the act has also been adopted by Texas. The Sixth Amendment to the United States Constitution and Art. 11, Section 24 of the Montana Constitution (Art. 111, Sec. 16, 1889 Montana Constitution), requires a greater exercise of diligence in the attempt to procure personal attendance of a prosecution witness than was demonstrated by the state in this case. We find the-ning issues on appeal to be without merit with the exception of the issue concerning denial of defense motions and only insofar as this issue would relate to confrontation of witnesses matter hereinabove discussed. The marijuana cigarette, although unrelated to the charges against defendant as an element of the offense, was so contemporaneous with the criminal acts for which he was charged as to be admissible as part of the res geste, which under Montana law can include acts as well as words. State v. Rollins, 149 Mont. 481, 428 P.2d 462; State v. Meidinger, 160 Mont. 310, 502 P.2d 58, 29 St.Rep. 861. The photograph of defendant and the Rasmussens was relevant and,had probative value to describe and identify the persons involved in the criminal proceeding. State v. Harney, 160 Mont. 55, 499 P.2d 802, 29 St.Rep. 627. The fact that the persons in the photograph were otherwise identified by evidence before the court makes this photographic evidence cumulative; it is nonetheless relevant. ~efendant's offered instructions 4 and 5 relating to the defense of entrapment were properly refused. entrapment is an affirmative defense. Under Montana law State v. Parr, 129 Mont. 175, 283 P.2d 1086; State v. White, 153 Mont. 193, 456 P.2d 54. ~aCario's only defense offered and relied upon throughout the trial was a general denial of the acts charged. Defendant's offered instruction 9 relating to accomplice testimony was properly refused. It contained an incorrect statement of the corroboration requirement for accomplice testimony provided for in section 94-7220, R.C.M. 1947, and was repetitive of given Instruction No. 7. The judgment appealed from is reversed and this cause is remanded for further proceedings consistent with this opinion.
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