STATE v MCCOLLEY

Download as PDF No. 8 9 - 1 8 1 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 STATE OF MONTANA, Plaintiff and Respondent, -VS- KURT McCOLLEY, Defendant an Appellant. APPEAL FROM: District Court of the Thirteenth Judicial D k s In and for the County of Yellowstone, o z x The Honorable Russell Fillner, Judge presidpg. COUNSEL OF RECORD: For Appellant: Arthur J. Thompson, Billings, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana Elizabeth S. Baker, Asst. Atty. General, Helena Harold Hanser, County Attorney; Teresa M. OIConnor, Deputy County Attorney, Billings, Montana Submitted on Briefs: Decided : Filed: j Clerk Sept. 7, 1 9 8 9 October 2 4 , 1989 Justice Fred J. Weber delivered the Opinion of the Court. Defendant, Kurt McColley, was charged with one count of felony criminal sale of dangerous drugs in the District Court for the Thirteenth Judicial District, Yellowstone County. The jury found defendant guilty as charged. He was sentenced to 20 years in the Montana State Prison, with 10 years suspended. Defendant appeals. We affirm. The sole issue on appeal is whether the conviction may stand when only one of the two sales charged as one offense has been proved by sufficient evidence? Tim Martin, an undercover detective of the Yellowstone County Sheriff's Office, made arrangements with Matt Andre to purchase one-half gram of cocaine on April 1, 1988. Andre and Martin went to the residence of defendant in Billings, Montana. Andre entered the house alone, came out, and informed Martin that he had spoken with "Kurt," who said he would supply the cocaine. Martin and Andre then left defendant's home. Later that same day, Martin returned to Andre's house and picked up a bindle containing one-half gram of cocaine. Several weeks later, Martin arranged with Andre to purchase more cocaine. On April 28, the two men again went to the home of defendant. Surveillance of defendant's residence was conducted by other officers. Martin himself never entered defendant's residence, but during the course of the day Andre was observed entering defendant's house several times. Finally, later that afternoon, Andre returned to his own residence and gave Martin a bindle of cocaine. The bindle was examined for fingerprints. Five fingerprints belonging to defendant were identified. Martin testified, t h a t upon h i s a r r e s t , Andre s a i d t h a t h e o b t a i n e d t h e c o c a i n e from d e f e n d a n t . trial, At Andre denied that p u r c h a s e came from d e f e n d a n t . A t the cocaine from either t h e c l o s e of t h e S t a t e ' s c a s e , d e f e n d a n t moved f o r d i r e c t e d v e r d i c t on t h e ground t h a t t h e r e was i n s u f f i c i e n t e v i d e n c e c o n n e c t i n g t h e d e f e n d a n t t o t h e A p r i l 1st s a l e . accomplice in Defendant argued t h a t s i n c e Andre was an the defendant could drug not be g a i n e d from t h e p o l i c e . transaction, convicted as a matter s o l e l y upon the of law, evidence The motion was d e n i e d . Defendant t e s t i f i e d t h a t a l t h o u g h Andre d i d v i s i t him a t h i s home on A p r i l 28, h e d i d n o t s e l l any c o c a i n e t o Andre on t h a t d a t e o r a t any o t h e r t i m e . witnesses, offense. and defendant was The S t a t e c a l l e d no o t h e r found guilty of the charged He s u b s e q u e n t l y f i l e d a Motion f o r Judgment Not- withstanding t h e Verdict (Judgment N . O.V. ) p u r s u a n t t o 5 46-16-702, MCA, the Verdict. Motion for Directed o r f o r New T r i a l b a s e d on t h e same grounds a s The motion was denied. Defendant m a i n t a i n s t h a t s i n c e h e was charged w i t h one o f f e n s e o f c r i m i n a l s a l e o f dangerous d r u g s , committed on two s e p a r a t e o c c a s i o n s , t h e S t a t e must p r o v e h i s c o n n e c t i o n w i t h both sales. He c o n t e n d s t h a t t h e r e i s n o t s u f f i c i e n t e v i - dence t o s u p p o r t h i s c o n v i c t i o n due t o t h e S t a t e ' s f a i l u r e t o p r o v e h i s c o n n e c t i o n w i t h t h e c o c a i n e s a l e o f A p r i l 1, 1988. Defendant a r g u e s t h a t b e c a u s e Andre o n l y named him on a r r e s t but denied his involvement at trial, the evidence is insufficient. He c l a i m s t h a t t h e r e i s no e v i d e n c e t o c o r r o b - o r a t e Andre's s t a t e m e n t s upon c o c a i n e from d e f e n d a n t . arrest a cannot conviction he received the F u r t h e r m o r e , h e c o n t e n d s t h a t Andre was an accomplice t o t h e t r a n s a c t i o n , MCA, that based on t h e stand unless corroborated. and under S 46-16-213, testimony of a n accomplice Defendant r e l i e s on t h e c a s e o f S t a t e v . Warren (Mont. 1 9 8 1 ) , 628 P.2d 292, 38 St.Rep 773, in which this Court concluded that testimony of an accomplice must be supported by corroborating evidence or acquittal is the only remedy. The State contends it is immaterial to defendant's conviction whether or not there was sufficient evidence to prove defendant was involved in both sales, citing the steadfast rule that "superfluity in an Information does not vitiate." State v. Board (1959), 135 Mont. 139, 143, 337 P.2d 924, 927. They argue that the conviction must stand because the April 28th sale is supported by substantial evidence. The State relies on United States v. Bruno (5th Cir. 1987), 809 F.2d 1097, in which the Court held that "the government need not prove all the charges contained in the indictment, but only a sufficient number of charges in each count so as to make out a violation of the statute relied upon." We agree and expressly adopt this holding. We hold it is unnecessary to prove independently defendant's involvement in both sales when proof of either sale is sufficient to satisfy a prima facie case. Every charge in the information need not be proved to convict defendant of the offense for which he is charged. Corroboration of the April 1st sale is unnecessary when the April 28th sale was proven by sufficient independent evidence. We conclude the District Court was correct in denying defendant's Motions for Directed Verdict and his Motion for Judgment N.O.V. or a New Trial. Affirmed. We concur: