STATE v ZACKUSE
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NO. 91-449 IN THE SUPREME COURT OF THE STATE OF MONTANA STATE OF MONTANA, Plaintiff and Respondent, -vsJAMES ZACKUSE, Defendant APPEAL FROM: and Appellant. District Court of the Twentieth Judicial District, In and for the County of Lake, The Honorable C. B. McNeil, Judge presiding. COUNSEL OF RECORD: For Appellant: Benjamin Montana For R. Anciaux, Attorney at Law, Poison, Respondent: Hon. Marc Racicot, Attorney General, John Paulson, Assistant Attorney General, Helena, Montana Larry J. Nistler, County Attorney, Mitchell A. Young, Deputy County Attorney, Polson, Montana Submitted on Briefs: Decided: Filed: May 28, 1992 June 1992 30, Chief Justice J.A. James criminal Zackuse sale Twentieth Turnage of the Did the drugs No. 4 as evidence his following presented Did tribal a jury for trial in the We affirm. on appeal as follows: by admitting State's Exhibit of the dangerous Court drugs from the err of the receipt the police Zackuse's investigation officers of exceed constitutional Zackuse's the tribe's drug counts 45-g-101, guilty Zackuse guilty of all imprisonment, with him to From these 1. him following five to No. 4 as evidence District in violation marijuana 30, of ยง and psilocybin separate 1990. a two-day counts. five twenty convictions, drugs with occasions Zackuse pled not on November 28, 1990. trial, a jury On May 29, 1991, the concurrent years pay a $2,500 Did the and violate by information on five to January counts 1991, sentenced informant 1989, five On May 10, ordered of dangerous a confidential to all Court sale MCA. He was accused of selling December 26, by rights? of criminal mushrooms to activities authority On November 21, 1990, Zackuse was charged from convictions Crime Lab? 2. five of the Court. five Lake County. issues District the Opinion appeals District, We rephrase State (Zackuse) dangerous Judicial 1. delivered terms suspended fine to the on of each Lake County found District forty years count, and Drug Fund. Zackuse now appeals. Court err of the receipt by admitting of the 2 dangerous State's Exhibit drugs from the State Crime Lab? Zackuse form, of argues contained custody the that inadmissible of the drug investigating employee, Judith further under and evidence Hoffman Rule reports from the arguments, an examination transcript of the trial 8, 1991, On April the State's indicated that drug At he District Court On April 30, supporting of Evidence in this brief 104(a). case attorney trial had date deputy would Montana had had been set, attorney unavailable Rule of admit Evidence on the well as the testify 803(8), the attorney of attorney this under report. Lab as soon as on maternity brings State's written had Rule evidence deputy Lab The the the Crime 9. a motion Montana 1) 2) was which her Rule filed stated: State May of on Montana of Hoffman, Hoffman on report Zackuse's report Crime a notice matter. brief by 3) under county State and Zackuse's as introduction Hoffman's that to the supporting the records filed hearing, deputy analyzed notified county be been 1991 briefs The excepted written case to the to not analyze attorney this 17, object 1991, to Hoffman's in a April ordered analyst. public record county introduce would Lab necessary. evidence 803(8). and pre-trial a deputy the Evidence The the Crime Lab 4 is excepts order chain (Moriqeau), Crime No. which Lab the a State Exhibit In Crime Morigeau a State rule. is to of (Moffat), 803(8), of intention analysis David State's hearsay a State regarding Moffat Evidence 4, evidence (Hoffman), that of No. between Lori argues Montana Exhibit hearsay officer, and Zackuse State's county the May 9 advised the leave and brief reports cited from the State hearsay Crime rule opposing Lab when parties as evidence the at trial pre-trial person to this for trial, the testified that delivered all testified that Crime turn the deputy at the the he county the or and such a report party to of the attendance counsel Hoffman, did subpoena a brief drug had for in the to on the the of of the to drug according Hoffman. basis of pre-trial to introduce Morigeau. Morigeau investigation, the State evidence he handCrime to Lab. at the custody log, she objected to District Court chain Zackuse's The of Moffat He counsel to the hearsay. at opposition attempted testimony evidence given discussed attorney completion Lab and that it was not Court Zackuse's a response motion the of the an opposing report. deposition through of gave testimony for to District to offer subpoena the file the intention or to exception 1991. report in records time compiling This Hoffman's State its sufficient or attendance, on May 8, At notified of pre-trial motion. hearing has depositions a Hoffman's public State in responsible obtain the in writing obtain not within this sustained objection. Morigeau from the attempted then State to Crime introduce counsel, however, had been not testified Lab. he had received The Hoffman's objected established. that deputy Hoffman's county attorney report The into that the District Court then Zackuse's evidence. basis on the report chain of custody sustained the foundation for objection. The deputy county attorney laid 4 further admission of Hoffman's had delivered State five report sealed envelopes Crime Lab containing had received along with of the drug evidence inside which form, listing included deputy at the time county as State's he delivered attorney Exhibit it moved for No. 4. on the grounds exception of Montana Rule of Evidence concerning its evidence Court that intention to did not include overruled Exhibit No. allowed the admission 218, 806 P.2d necessary for who had handled evidence 518 State to call the evidence. sufficient fall within v. into 5 notice into The District admission Court of later evidence. Evans has been laid rests within (1991), omitted). The foundation its report the foundation as witnesses the to the hearsay form. of the drug if marked and the State's evidence (citation of possession the State is report into 512, The The District of an exhibit court. Crime Lab. objected and allowed a proper of the trial had of the form, of this evidence. that evidence Hoffman's of whether discretion the chain introduce of Hoffman's the introduction establish not 803(8) objection 4 into The determination 227, did the admission Zackuse's State's it log at the State the drug attorney he Crime Lab, testified to the State Zackuse's to the of custody Morigeau the admission admission drug a chain evidence. he case and that the names of the persons the that envelope in this form had the same lab case number that been given for a larger back from Hoffman of the State Crime Lab who had handled this from Morigeau drug evidence the evidence a completed by eliciting at trial for State 247 Mont. In evidence, order it to is not each person admission shows the that of the the investigating officer obtained the evidence, sent lab, it from the crime lab, the lab. received same evidence 220, it sent 227-28, obtained to Lab, to back to 541 P.2d the the drug State Crime State's the Exhibit drug evidence Court did 4 as it from the custody not 4, its evidence State Crime the of Did the police Zackuse's from the State the chain of We hold admission custody that by admitting the State's receipt of investigation officers dangerous argues drugs is exceed agencies. over the He non-tribal authorities constitutional the beyond jurisdiction denied rights the link log drug Zackuse's tribe's in of District Exhibit the of No. evidence the drug chain of activities authority and by violate rights? that enforcement of final Crime he hand-delivered allowed number. he hand-delivered evidence and was the constitutional Zackuse tribal that to drugs. 2. State testified the Morigeau's Lab 168 Mont. back then discretion (1975), investigation, included case as the Morigeau same drug which it Snider it Court and lab abuse was of tribal District No. the received as the crime and identified Here, during Lab, it The lab. 1209. evidence and identified the 1204, the v. State it investigation jurisdiction argues him the him, sale of law and tribal a tribe has actions of the unspecified and subjected criminal of tribal that members, of state a non-tribal no criminal tribal and and federal member, to law. Zackuse's jurisdictional and constitutional arguments lack merit. The fact a tribal the law of brief We therefore We concur: his decline In conclusion, criminal sale this criminal enforcement jurisdiction adequately that of officer has case. this and no relevance in Zackuse federal constitutional discuss further we affirm dangerous was conducted Additionally, state to investigation these James drugs. Zackuse's by determining failed to arguments. arguments. five convictions for June 30, 1992 CERTIFICATE OF SERVICE I hereby certify that the following order was sent by United States mail, prepaid, to the following named: Benjamin R. Anciaux Attorney at Law 107 Sixth Ave. E., P.O. Box 1670 Polson, MT 59860 Hon. Marc Racicot, Attorney General John Paulson, Assistant Justice Bldg. Helena. MT 59620 Larry A. Nistler, County Attorney Mitchell A. Young, Deputy Lake County Courthouse Polson, MT 59860 ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA
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