STATE v PETKO
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No. 13887 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 STATE OF MONTANA, Plaintiff and Respondent, -vsTERRANCE ALAN PETKO, Defendant and Appellant. Appeal from: District Court of the Third Judicial District, Honorable Edward Dussault, Judge presiding. Counsel of Record: For Appellant: Edward Yelsa argued, Anaconda, Montana For Respondent : Hon. Mike Greeley, Attorney General, Helena, Montana Charles R. Anderson, argued, Assistant Attorney General, Helena, Montana John Radonich, County Attorney, Anaconda, Montana Submitted: Filed: 3ui3 1373 Clerk June 5, 1978 M r . J u s t i c e Gene B . Daly d e l i v e r e d the Opinion of t h e Court: O January 6 , 1977 defendant Terrance Alan Petko was n a r r e s t e d and subsequently charged i n t h e D i s t r i c t Court, Deer Lodge County, with two counts: Felony possession of marijuana and possession with i n t e n t t o s e l l . sequently dropped during t r i a l . The second count was sub- The case was t r i e d t o a j u r y , defendant was found g u i l t y and given a d e f e r r e d imposition of sentence under t h e condition t h a t he pay $500 within s i x months. From t h i s sentence defendant appeals and a l l e g e s s i x s p e c i f i c a t i o n s of e r r o r : 1. Whether t h e w a r r a n t l e s s a r r e s t of defendant was lawful? 2. Whether t h e conviction should be reversed because evidence which was viewed by t h e jury and commented on by witnesses was subsequently suppressed by the t r i a l judge? 3. Whether t h e f a c t t h a t defendant never e n t e r e d a formal plea of n o t g u i l t y i s a j u r i s d i c t i o n a l d e f e c t warranting a new trial? 4. Whether t h e s t a t e ' s expert could properly t e s t i f y t h a t t h e evidence seized was marijuana? 5. Whether i t was e r r o r f o r t h e D i s t r i c t Court t o r e f u s e t o give defendant's proposed i n s t r u c t i o n s 7 and 19? 6. Whether a f i n e of $500 payable w i t h i n s i x months i s a proper condition pursuant t o a deferred imposition of sentence? The events leading t o t h e w a r r a n t l e s s a r r e s t of defendant Petko, were: O f f i c e r s Bernard May and Kichard Ivankovich were d r i v i n g south on Maple S t r e e t i n Anaconda a t approximately 11:30 p.m., Jaunuary 6 , 1977. Maple S t r e e t was w e l l lit by s t r e e t l i g h t s . The o f f i c e r s were t r a v e l i n g a t approximately 10 t o 15 miles per hour. I n f r o n t of 508 Maple t h e o f f i c e r s observed two persons approaching a blue Rambler automobile. One person was t a l l , s l e n d e r , had shoulder l e n g t h h a i r and was wearing a dark b l u e c o a t . person was s h o r t e r and wore a l i g h t e r colored c o a t . The o t h e r The s h o r t e r of the i n d i v i d u a l s was c a r r y i n g a l a r g e grocery sack and a c t e d nervous and p e c u l i a r a t t h e o f f i c e r s drove by. The o f f i c e r s con- tinued t o observe t h e two and saw t h e s h o r t e r man place t h e grocery sack i n t h e s t r e e t behind t h e s h e e l of a t r u c k parked on Maple Street. Then both i n d i v i d u a l s h u r r i e d l y g o t i n t o a Rambler auto- mobile and l e f t i n a n o r t h e r l y d i r e c t i o n a t a high r a t e of speed. The o f f i c e r s r e t r i e v e d t h e abandoned sack. I n s i d e t h e sack they found 21 cellophane bags containing a substance which appeared t o be marijuana and a metric s c a l e . The o f f i c e r s then attempted t o f i n d t h e Rambler automobile b u t were unsuccessful. A f t e r radioing t h e c i t y p o l i c e and t h e highway p a t r o l f o r a s s i s t a n c e t h e o f f i c e r s returned t o t h e v i c i n i t y of 508 Maple and parked near t h e a l l e y between Maple and E l m . Approximately f i f t e e n o r twenty minutes a f t e r t h e i n i t i a l encounter with t h e two i n d i v i d u a l s , t h e o f f i c e r s observed defendant coming down the a l l e y behind 508 Maple c a r r y i n g a l a r g e grocery sack. Defendant was t a l l , had a s l e n d e r b u i l d and was wearing the same c o l o r coat a s t h e person seen i n f r o n t of 508 Maple. The o f f i c e r s believed him t o be t h e same person they had seen when the. f i r s t sack of marijuana was abandoned on Maple S t r e e t . When t h e o f f i c e r s entered t h e a l l e y defendant s t a r t e d t o run, jumped a fence and ran a c r o s s E l m S t r e e t . A s the o f f i c e r s pursued they i d e n t i f i e d themselves and O f f i c e r Ivankovich f i r e d a warning s h o t i n t h e a i r . Defendant s l i p p e d , f e l l t o t h e ground and was apprehended by O f f i c e r May. The sack found i n t h e possession of defendant a t the time of h i s a r r e s t revealed 24 cellophane bags and one l a r g e p l a s t i c sack which contained a substance t h a t appeared t o be marijuana. Chemical a n a l y s i s subsequently d i s c l o s e d t h e f i r s t grocery sack contained 530 grams of marijuana and t h e second grocery sack found i n possession of defendant contained 858 grans of marijuana. A search was conducted of defendant's c a r and h i s house a t 508 Maple b u t t h e evidence seized t h e r e i n was suppressed on motion of defendant. Defendant was charged with two counts: 1. Felony possession of dangerous drugs under s e c t i o n 54-133, R.C.M. 2. 1947. Criminal possession of dangerous drugs with i n t e n t t o s e l l pursuant t o s e c t i o n 54-133.1, R.C.M. 1947. Following t h e D i s t r i c t Court's suppression of t h e marijuana contained i n t h e f i r s t grocery sack found i n t h e s t r e e t t h e proseuction dismissed t h e second count s i n c e s e c t i o n 54-133.1 r e q u i r e s one kilogram o r more. T h e r e a f t e r t h e jury was admonished t o d i s r e g a r d t h e f i r s t grocery sack of marijuana and t o consider only t h e f i r s t count of felony possession, based upon t h e second grocery sack of marijuana found i n t h e possession of defendant. Defendant's conviction f o r possession of t h e second grocery sack containing 858 grams of marijuana which was taken from defendant's possession a t t h e time of h i s a r r e s t i s t h e s u b j e c t of t h i s appeal. I n I s s u e No. 1 defendant contends t h e a r r e s t was i l l e g a l and t h e r e f o r e t h e search and s e i z u r e i n c i d e n t t o t h e a r r e s t was a l s o i l l e g a l and t h e admission of t h e f r u i t s of t h e search a t t r i a l constituted reversible error. The c r i t e r i a f o r t e s t i n g t h e s u f f i c i e n c y of a w a r r a n t l e s s a r r e s t , a s i n t h i s c a s e , was r e c e n t l y s t a t e d by t h i s Court i n S t a t e v. Lenon, (1977), Mont . , 570 P.2d 901, 34 St.Rep. 1156, quoting from S t a t e v. H i l l , (1976), Mont . 9 1153, 550 P.2d 390, 33 S t . Rep. 496: "'Probable cause t o a r r e s t without a warrant e x i s t s where t h e f a c t s and circumstances w i t h i n t h e o f f i c e r ' s knowledge and of which he had reasonably trustworthy information a r e s u f f i c i e n t i n themselves t o warrant a man of reasonable caution i n t h e b e l i e f t h a t an o f f e n s e has been o r i s being committed."' The f a c t s and circumstances w i t h i n t h e o f f i c e r s ' personal knowledge a t t h e time of defendant's a r r e s t were: a) Two i n d i v i d u a l s were seen emerging from 508 Maple S t r e e t a t 11:30 p.m.; b) Maple S t r e e t was illuminated by s t r e e t l i g h t s ; c) The two i n d i v i d u a l s were one t a l l man, with a s l e n d e r b u i l d , shoulder length h a i r and a dark blue c o a t , and a s h o r t e r man with a l i g h t colored c o a t ; d) The two men a c t e d nervous and suspicious when t h e o f f i c e r s drove by, and t h e s h o r t e r man h u r r i e d l y placed a grocery bag which he was c a r r y i n g behind the wheel of a Datsun pickup, and both men jumped i n t o a Rambler automobile and l e f t a t a high r a t e of speed; e) The o f f i c e r s r e t r i e v e d t h e abandoned grocery bag and found 21 cellophane bags containing a substance believed t o be marijuana and a metric s c a l e ; f) Both o f f i c e r s were experienced and t r a i n e d i n t h e d e t e c t i o n of marijuana; g) A f t e r an unsuccessful search f o r t h e Rambler automobile t h e o f f i c e r s returned t o t h e v i c i n i t y of 508 Maple and f i f t e e n o r twenty minutes a f t e r t h e i r f i r s t encounter, they saw defendant walking down t h e a l l e y behind 508 Maple, c a r r y i n g a grocery bag s i m i l a r t o t h e one previously abandoned on Maple S t r e e t ; h) Defendant met t h e d e s c r i p t i o n of t h e t a l l e r of t h e two i n d i v i d u a l s who abandoned t h e marijuana found on Maple S t r e e t . He appeared t o the o f f i c e r s t o be t h e same i n d i v i d u a l ; and i) Upon seeing t h e o f f i c e r s defendant attempted t o escape, and continued t o do so even though t h e o f f i c e r s ' i d e n t i f i e d thems e l v e s t o him. These f a c t s and circumstances would j u s t i f y a man of reasonable caution t o b e l i e v e t h a t an offense has been o r was being committed and t h e r e was s u f f i c i e n t probable cause t o a r r e s t defendant. Defendant's a r r e s t was based upon probable cause and t h e r e f o r e a lawful a r r e s t . The s e i z u r e of t h e grocery sack i n h i s possession and i n p l a i n view was made pursuant t o a v a l i d lawful a r r e s t . The D i s t r i c t Court properly denied t h e motion t o suppress t h i s evidence. Regarding I s s u e No. 2 , t h e t r i a l c o u r t reversed i t s r u l i n g on t h e s t a t e ' s e x h i b i t s which consisted of t h e c o n t e n t s of t h e f i r s t grocery bag abandoned on Maple S t r e e t and t h i s evidence was shown t o t h e jury and commented upon by witnesses p r i o r t o i t s exclusion. During t h e time t h e c o u r t delayed r u l i n g upon t h e a d m i s s i b i l i t y of t h e e x h i b i t s , t h e bags of marijuana and t h e metric s c a l e were displayed before t h e jury and commented upon by O f f i c e r May, O f f i c e r Ivankovich and t h e f o r e n s i c chemist, Arnold Melnikoff . O f f i c e r Ivankovich t e s t i f i e d a t length on t h e finding of t h e evidence, t h e c o n t e n t s of the bag, and how t h e s c a l e was used t o weigh f i n e weights. The s c a l e was a t t r i b u t e d a s having come out of t h e house of Terrance Petko a t 508 Maple S t r e e t . O f f i c e r Ivankovich - The question was asked " ~ o u l dt h i s be something t h a t would be used by somebody who would be packaging i n t h e form of l i d s ? " Ivankovich answered "Yes". Officer 530 grams of marijuana and a weight s c a l e , s i m i l a r t o ones t y p i c a l l y used f o r weighing marijuana f o r s a l e was displayed t o t h e jury and commented on by s t a t e witnesses. When t h e t r i a l judge decided t o suppress t h e above evidence he admonished t h e jury t o d i s r e g a r d t h e f i r s t grocery sack of marijuana and t o consider only t h e f i r s t count, felony possession of marijuana based upon t h e second grocery sack of marijuana found i n defendant's possession. It i s apparent t h e t r i a l c o u r t committed e r r o r by allowing t h e jury t o view t h e evidence and permit t h e witnesses t o comment However, we must examine a l l of t h e circumstances upon i t . surrounding t h e e r r o r and determine i f t h e defendant's r i g h t t o a f a i r t r i a l was s u b s t a n t i a l l y prejudiced and t h e r e f o r e e n t i t l e him t o a new t r i a l . The D i s t r i c t Court d i d reserve i t s r u l i n g on t h e s t a t e ' s e x h i b i t s which c o n s i s t e d of t h e contents of t h e f i r s t grocery bag abandoned on Maple S t r e e t . This evidence was shown t o t h e jury and commented upon by witnesses p r i o r t o i t s exclusion. Defendant was o r i g i n a l l y charged with two counts : possession and possession with i n t e n t t o s e l l . felony When t h e D i s t r i c t Court suppressed t h e marijuana contained i n t h e f i r s t grocery bag found by t h e o f f i c e r s on Maple S t r e e t , t h e possession with i n t e n t t o s e l l was dismissed. The conviction on appeal i s felony posses- s i o n , which r e s u l t s from t h e possession of marijuana i n excess of 60 grams. The second grocery bag, which was i n t h e defendant's pos- s e s s i o n a t t h e time of h i s a r r e s t , contained 858 grams of marijuana! C e r t a i n l y t h e jury could n o t ignore t h i s evidence r e g a r d l e s s of viewing t h e o r i g i n a l grocery bag and i t s contents. I f t h i s was a b o r d e r l i n e case a s t o t h e amount possessed o r a s t o possession, then defendant may have a l e g i t i m a t e argument. But i n l i g h t of t h e abundance of evidence presented a g a i n s t him on t h e felony possession charge, t h e r e i s l i t t l e persuasion i n t h e argument t h a t defendant i s e n t i t l e d t o a new t r i a l . S t a t e v. Bradford, (1978), Mont . 35 S t . Rep. I s s u e 3. I t appears t h a t t h e formal e n t r y of a plea by t h e defendant was never completed. Defendant contends t h i s o v e r s i g h t on t h e p a r t of t h e D i s t r i c t Court r e q u i r e s a r e v e r s a l of h i s conv i c t i o n even though defendant was represented by counset a t a l l times, was informed of t h e charges a g a i n s t him and t r i e d by a jury of h i s peers. This contention i s answered by s e c t i o n 95-1608, R.C.M. 1947, which provides: ''No i r r e g u l a r i t y i n t h e arraignment which does n o t a f f e c t t h e s u b s t a n t i a l r i g h t s of t h e defendant s h a l l a f f e c t t h e v a l i d i t y of any proceeding i n t h e cause i f t h e defendant pleads t o t h e charge o r proceeds t o t r i a l without o b j e c t i n g t o such i r r e g u l a r i t y . " (Emphasis supplied. ) The Revised Commission Comment t o s e c t i o n 95-1608 s t a t e s : "The r e a l question i n a l l c r i m i n a l cases on appeal i s whether t h e s u b s t a n t i a l r i g h t s of t h e defendant have been adversely a f f e c t e d . The purpose of t h i s s e c t i o n i s t o prevent r e v e r s a l where t h e c o u r t has s t r a y e d from t h e procedure s e t f o r t h , b u t t h e f a i l u r e has n o t hindered t h e defense. "The burden i s upon t h e defendant t o o b j e c t , i f any i r r e g u l a r i t y i n connection with t h e arraignment i s going t o a f f e c t h i s defense. This does n o t override any of t h e defendant's s u b s t a n t i a l c o n s t i t u t i o n a l r i g h t s even though n o t objected to." The defendant d i d n o t o b j e c t t o any i r r e g u l a r i t y before proceeding t o t r i a l and we f i n d no p r e j u d i c e a r i s i n g from t h i s irregularity. Issue 4 . Defendant argues t h e c o u r t e r r e d i n allowing e x p e r t testimony a s t o t h e substance found i n t h e grocery bags being marijuana. He argues t h i s testimony embraced an u l t i m a t e i s s u e t o be decided by t h e jury. There i s no d i s p u t e t h a t M r . Melnikoff was q u a l i f i e d a s an expert i n h i s f i e l d of f o r e n s i c - chemistry and was t e s t i f y i n g a s an e x p e r t witness when he s t a t e d t h a t i n h i s mind he had no doubt t h e evidence seized was marijuana. This was h i s opinion based on t h e t e s t s he ran on t h e substance seized and such testimony was properly received. Rule 704, Montana Rules of Evidence, s p e c i f i c a l l y s t a t e s : "Testimony i n t h e form of an opinion o r inference otherwise admissible i s n o t objectionable because i t embraces an u l t i m a t e i s s u e t o be decided by t h e t r i e r of f a c t .'I Though t h e Montana Rules of Evidence were n o t i n e f f e c t a t t h e time of t h i s t r i a l Rule 704 i s merely a restatement of intended t o change e x i s t i n g Montana law. and i s not A s Commission Comment t o Rule 704 s t a t e s : "* * * Its a f f e c t i s t o specifically abolish the r u l e a g a i n s t opinions on u l t i m a t e i s s u e s of f a c t , n o t c u r r e n t l y followed i n Montana. Therefore, t h i s r u l e i s c o n s i s t e n t with e x i s t i n g Montana law. Kelly v. John R. Daily Co., 56 Mont. 63,79, 181 P. 326 (1919); S t a t e v. Shannon, 95 Mont. 280, 286, 26 P.2d 360 (1933); S t a t e v. Campbell, 146 Mont. 251, 258, 405 P.2d 978 (1965); Rude v. Neal, 165 Mont. 520, 525, 530 P.2d 428 (1974); and McGuire v. Nelson, 167 Mont. 188, 536 P.2d 768, (1975) .'I A s t h i s Court s t a t e d i n McGuire v. Nelson, (1975), 167 Mont. 188, 200, 536 P.2d 768, i n r e j e c t i n g t h e t e s t of whether t h e opinion invades t h e province of t h e jury: "The t r u e t e s t would seem t o be whether t h e s u b j e c t i s s u f f i c i e n t l y complex so a s t o be s u s c e p t i b l e t o opinion _evidence, and whether t h e witness i s properly q u a l i f i e d t o give h i s opinion." Here t h e proper i d e n t i f i c a t i o n of marijuana r e q u i r e s chemical t e s t i n g conducted by a q u a l i f i e d person, and Arnold Melnikoff was properly q u a l i f i e d t o give such an opinion. I s s u e 5. Defendant contends t h e c o u r t e r r e d i n n o t giving h i s proposed i n s t r u c t i o n s , number 7 and number 19. Defendant's proposed i n s t r u c t i o n number 7 reads: "You may not find the defendant guilty as charged unless you have first found that, in addition to the other elements of the crime charged, that said marijuana admitted in evidence herein would produce a hallucinogenic effect on a person, and this must be concluded by you beyond a reasonable doubt ." ~efendant's proposed instruction number 19 reads: "The term Dangerous Drug means any depressant, stimulant, hallucinogenic, or narcotic drug. "A hallucinogenic drug is a drug which produces hallucinations, that is sensory perceptions not founded upon subjective reality." Defendant was convicted of felony possession of dangerous drugs pursuant to section 54-133, R.C.M. 1947. Section 54-133 prohibits the possession of any dangerous drug, as defined in action 54-301, R.C.M. 1947. Section 54-301(5) defines "Dangerous drug1' as any drug substance, or immediate precursor in Schedules I through V. Schedule I, found in section 54-305, lists marijuana as a dangerous drug. Marijuana is grouped with hallucinogenic drugs, but this does not call for the trier of fact to make a specific finding as to its hallucinogenic capabilities. The legislature has made that determination. The determination for the trier of fact is whether the substance introduced at trial is in fact marijuana, as defined by section 54-301(16), which states: "Marijuana (marihuana) means all plant material from the genus cannabis containing tetrahydrocannabinal (THC) or seeds of the genus capable of germination." The presence of THC is essential and this the reason for and the necessity of chemical analysis. The jury is not required to find that marijuana admitted into evidence is hallucinogenic but only that it meets the definition of section 54-301(16). The District Court's Instruction No. 8 fully explained the elements of this offense. Therefore, t h e D i s t r i c t Court properly denied t h e defendant's proposed i n s t r u c t i o n s r e q u i r i n g t h e jury t o f i n d t h a t t h e marijuana would produce an hallucinogenic e f f e c t and d e f i n i n g t h e term hallucinogenic. Issue 6 . Whether t h e D i s t r i c t Court committed e r r o r i n imposing a f i n e of $500, payable within s i x months a f t e r May 31, 1977, a f t e r defendant was found g u i l t y of c r i m i n a l possession of dangerous drugs and t h e c o u r t deferred t h e imposition of sentence. W hold t h e imposition of a $500 f i n e o r payment a s a e condition of probation a f t e r deferred imposition of sentence t o be a n u l l i t y and of no f o r c e o r e f f e c t and t h a t t h e same be vacated and s e t a s i d e t o conform with t h i s C o u r t ' s Opinion i n S t a t e v. Merlin Babbit , (1978), Mont . -9 574 P.2d 998, 35 St.Rep. 154. The judgment of t h e D i s t r i c t Court i n a l l o t h e r r e s p e c t s i s af firmed. Justice W Concur: e Chief J u s t i c e
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