State v. L. Brasda

2021 MT 121, 486 P.3d 703

Opinion

05/18/2021

DA 19-0326 Case Number: DA 19-0326

IN THE SUPREME COURT OF THE STATE OF MONTANA 2021 MT 121

STATE OF MONTANA,

Plaintiff and Appellee,

v.

LAWRENCE MATTHEW BRASDA,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. CDC 17-402 Honorable John A. Kutzman, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Michael Marchesini, Assistant Appellate Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana

Joshua Racki, Cascade County Attorney, Amanda Lofink, Deputy County Attorney, Great Falls, Montana

Submitted on Briefs: April 14, 2021

Decided: May 18, 2021

Filed:

r--6ta•--df __________________________________________ Clerk Justice Jim Rice delivered the Opinion of the Court.

¶1 Lawrence Matthew Brasda appeals from his conviction after jury trial of felony

possession of dangerous drug (methamphetamine), arguing the District Court abused its

discretion by excluding evidence during the trial.

¶2 We affirm, and restate the issue as follows:

Did the District Court err by prohibiting Brasda’s examination of the State’s crime lab witness about the involvement of a discharged crime lab employee with the drug evidence?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In the early morning hours of July 6, 2017, Great Falls police officers responded to

a traffic complaint of someone “driving a pick-up recklessly around the neighborhood,

doing burn outs, and driving up and down the street.” After locating Lawrence Brasda’s

vehicle, officers contacted Brasda outside his residence. Officer Kristi Walker searched

Brasda, discovering a used glass pipe and baggie containing a hard crystalized substance.

Officer Jacob Smith conducted a field test on the substance, which indicated the presence

of methamphetamine. Smith secured the evidence taken from Brasda in the trunk of his

police cruiser and transported Brasda to a detention center. Smith sealed the evidence and

placed it in a temporary locker. Anne Duncan, an Evidence Technician for the Great Falls

Police Department, later removed the evidence from the temporary locker, logged the items

in the police department’s database, labeled the evidence with identifying information, and

placed it in permanent storage. Brasda was charged with one count of criminal possession

2 of dangerous drugs in violation of § 45-9-102, MCA, and one count of criminal possession

of drug paraphernalia, in violation of § 45-10-103, MCA.

¶4 On July 27, 2017, Duncan submitted the baggie and its contents for testing to the

Forensic Science Division of the Montana Department of Justice (State Crime Lab) in

Missoula, Montana. Upon the return of the evidence from the State Crime Lab on

October 5, 2017, Kelli French, an Evidence Technician for the Great Falls Police

Department, checked in and stored the sealed, tested evidence.

¶5 In November 2017, the Cascade County Attorney filed a notice of intent to call

Derek Thrush of the State Crime Lab to testify as an expert witness “regarding the testing

and results of the chemical analysis of the evidence recovered by law enforcement in this

matter.” In March 2018, Brasda entered a plea agreement, agreeing to plead guilty to

possession of dangerous drugs. However, at the change of plea hearing on April 10, 2018,

Brasda’s counsel instead moved for a continuance, explaining that “evidentiary issues

require potential briefing and/or sample testing,” specifically, that “information involving

Mr. Thrush at the crime lab was learned, and he’s the individual who tested the alleged

contraband in this case.”1 The State did not object, and the District Court granted a six-

week continuance. On May 4, 2018, the District Court vacated the change of plea hearing

and scheduled trial on Brasda’s charges for August 13, 2018.

1 In February 2018, Thrush admitted to investigators “that he had used methamphetamine a number of times over the previous months, and that he obtained the methamphetamine from the Montana Crime Lab where he was employed.” The Missoula County Attorney eventually charged Thrush with multiple counts of criminal possession of dangerous drugs, theft, and official misconduct.

3 ¶6 At the request of the County Attorney, on May 8, 2018, Sheila Byrd, an Evidence

Technician for the Great Falls Police Department, resubmitted the sealed evidence to the

State Crime Lab for additional testing. Travis Doria, a Forensic Chemist for the State

Crime Lab, received the sealed evidence for testing. Doria first conducted a presumptive

test on the material, followed by a chemical analysis with a gas chromatograph-mass

spectrometer. Both tests confirmed the presence of methamphetamine. Doria re-sealed

the evidence and generated a report and case file, which was then reviewed by two other

analysts “for technical and administrative errors.” Following this process, the State Crime

Lab transferred the sealed evidence back to the Great Falls Police Department.

¶7 In June 2018, the County Attorney filed notice of withdrawal of Thrush as an expert

witness, and of substitution of Doria as an expert witness to testify “regarding the testing

and results of the chemical analysis of the evidence recovered by law enforcement in this

matter.” In August 2018, the County Attorney filed a memorandum of law “regarding

chain of custody and motion in limine,” arguing Brasda must affirmatively show any

evidence tampering and requesting the District Court prohibit Brasda from offering

evidence “regarding the testing by Derek Thrush and the facts surrounding his being under

investigation.” Brasda objected to the motion.

¶8 On the morning of trial, prior to voir dire, the District Court held a hearing regarding

evidence of Thrush’s involvement. The District Court ruled Thrush’s involvement was

relevant and probative, “assuming it can be proven with a reliable witness who has personal

knowledge.” Regarding chain of custody, the District Court limited statements about

4 Thrush during voir dire and opening statements to permit the issue to be addressed during

Doria’s testimony.

¶9 Following testimony from Officer Walker, Officer Smith, Duncan, and Byrd, the

prosecution called Doria to testify as an expert that the evidence had been tested and

contained methamphetamine. The District Court dismissed the jury to address the reserved

evidentiary issues. Following questioning of Doria by both parties and the District Court,

the court stated it was

satisfied that [Doria] does not have the necessary personal knowledge to explain why Mr. Thrush isn’t there anymore. If you’re going to put that in, you’re going to need to have somebody other than him, because he does not have personal knowledge. He knows what he knows about this because somebody told him. That’s hearsay, and it’s inadmissible.

Emily Wemlinger, a Quality Manager of the State Crime Lab, was then called to testify

outside the presence of the jury. Wemlinger testified she had learned from secondhand

information that Thrush was under investigation for stealing methamphetamine from the

State Crime Lab. Based on that report, Wemlinger undertook review of Thrush’s previous

work, ultimately ordering that original samples in about 10% of Thrush’s work product be

re-tested for accuracy, which occurred in this case. Both parties and the District Court

questioned Wemlinger, after which the District Court furthered its ruling:

So my understanding of [State v. McCoy, 2012 MT 293, 367 Mont. 357, 291 P.3d 568] and [State v. Weeks, 270 Mont. 63, 891 P.2d 477 (1995)] is that we don’t know whether the sample has been tampered with, because the Defense can’t prove it. The chain of custody is sufficient, and the evidence is admissible. And those cases say that speculation and ‘what if’ isn’t - - about what might have happened to the sample isn’t enough, that defense has got to have solid proof that somebody actually did tamper with the sample. You have proven that he could have tampered with it. You haven’t proven 5 he did on a more likely basis or otherwise. So I’m maintaining my previous ruling. Those two samples are admissible as is the testimony about them.

¶10 The trial concluded the next day, with the jury finding Brasda guilty on both the

felony and misdemeanor counts. Brasda appeals.

STANDARD OF REVIEW

¶11 Trial courts have “broad discretion on evidentiary matters, and ‘[t]he determination

of the adequacy of the foundation for the admission of evidence is within the discretion of

the trial court, and will not be overturned absent a clear abuse of discretion.’” McCoy, ¶ 11

(citing Weeks, 270 Mont. at 75, 891 P.2d at 484); M. R. Evid. 104(a). A court abuses its

discretion when it acts “arbitrarily, without conscientious judgment or in excess of the

bounds of reason, resulting in substantial injustice.” State v. Quinlan, 2021 MT 15, ¶ 16,

403 Mont. 91, 479 P.3d 982 (citing State v. Pelletier, 2020 MT 249, ¶ 12, 401 Mont. 454,

473 P.3d 991). Rulings are in error when a “substantial right of the party is affected.”

M. R. Evid. 103(a).

DISCUSSION

¶12 Did the District Court err by prohibiting Brasda’s examination of the State’s crime lab witness about the involvement of a discharged crime lab employee with the drug evidence?

¶13 Brasda argues the District Court erred by “prohibiting Mr. Brasda from

cross-examining Travis Doria about Derek Thrush’s prior testing and the need for

retesting.” Brasda first argues it was unnecessary for Doria to have personal knowledge of

Thrush’s circumstances, because Doria could provide otherwise inadmissible hearsay

because of “his expert witness status.” 6 ¶14 The Montana Rules of Evidence require different foundations for admission of lay

and expert witness testimony. Lay witnesses are prohibited from testifying “to a matter

unless evidence is introduced sufficient to support a finding that the witness has personal

knowledge of the matter.” M. R. Evid. 602. If a witness has personal knowledge, the

witness may provide “opinions and inferences . . . rationally based on the perception of the

witness” and “helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue.” M. R. Evid. 701. Absent inadmissible hearsay, Doria

lacked personal knowledge to testify about Thrush’s drug use, investigation and

termination, and its subsequent effect on the necessity to re-validate evidence, and

therefore could not testify as a lay witness.

¶15 In contrast, “personal knowledge is not required for expert testimony.” State v.

Wilmer, 2011 MT 78, ¶ 21, 360 Mont. 101, 252 P.3d 178 (citing M. R. Evid. 602). An

expert witness may testify “in the form of an opinion or otherwise,” to “scientific, technical,

or other specialized knowledge” that assists the “trier of fact to understand the evidence or

to determine a fact in issue,” so long as the witness is qualified as “an expert by knowledge,

skill, experience, training, or education.” M. R. Evid. 702.

The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in a particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

M. R. Evid. 703. “Rule 703 thus contemplates that a testifying expert may refer to

otherwise inadmissible hearsay upon a foundational showing that the expert relied on the

7 otherwise inadmissible evidence in forming the expert’s opinion and the information is of

a type reasonably relied upon by experts in the field of expertise.” In re C.K., 2017 MT

69, ¶ 18, 387 Mont. 127, 391 P.3d 735 (collecting cases).

¶16 Here, Doria could not rely on Thrush’s circumstances to provide an expert opinion

on the testing and analyzing of controlled substances. As a forensic chemist employed by

the State Crime Lab, Doria’s “responsibilities includ[ed] the analysis of suspected

controlled substances and clandestine laboratories,” for which his educational and

professional background provided a foundation for expert testimony on the subject. Rule

703 permits an expert witness to rely on otherwise inadmissible evidence “[i]f of a type

reasonably relied upon by experts in a particular field in forming opinions or inferences

upon the subject.” Thrush’s drug use and termination was not evidence a chemist would

reasonably rely on in reaching an expert opinion on chemical analysis of the material at

issue. As differentiated by Doria in his testimony, he does not analyze concerns regarding

the chain of custody: “[i]f there was an issue with the chain of custody, it would be

addressed before analysis or whenever the issue was found. Without a proper chain of

custody, there isn’t a point of us working the evidence in the first place.” Because Doria

testified only as an expert witness “regarding the testing and results of the chemical

analysis of the evidence,” his ultimate opinion required no reliance on Thrush. Thus,

Doria’s personal knowledge about Thrush, or lack thereof, was not a factor within his

expert analysis and testimony, and was not admissible for that purpose.

8 ¶17 Second, Brasda argues “Doria’s knowledge about Thrush’s misdeeds was not

hearsay because it would have been admitted to explain why he retested the sample.”

Brasda contends he wanted Doria “to explain why [he] had to retest the sample after the

Crime Lab had already tested it once,” not to prove that Thrush was a “drug user and thief,”

and that “the out-of-court statements about Thrush’s misdeeds were admissible to explain

why Doria took the action of retesting the sample.”

¶18 We agree with Brasda that such an inquiry would have been permissible under the

Rules of Evidence. “[O]ut-of-court statement[s] offered to prove something other than the

truth of the matter asserted is not hearsay and is, accordingly, generally admissible.” State

v. Laird, 2019 MT 198, ¶ 73, 397 Mont. 29, 447 P.3d 416; see also M. R. Evid. 801(c)

(defining hearsay). Brasda offers a non-hearsay purpose for admission of the testimony on

Thrush’s involvement, that being the reason the evidence was retested by Doria, not for the

truth of Thrush’s alleged acts. Doria was advised of Thrush’s circumstances by his

superiors to explain the need for re-testing of Thrush’s work.

¶19 However, the thrust of Brasda’s request in the District Court was to probe the

witnesses for evidence of contamination of the sample. In that regard, Brasda offered

merely a possibility of contamination, not proof of mishandling or tampering by Thrush.

For chain of custody, the State is required to make a “prima facie showing of a continuous

chain of possession and that there was no substantial change in the evidence while it was

in its possession.” McCoy, ¶ 13, (citing Weeks, 270 Mont. at 75, 891 P.2d at 484). “The

burden then shifts to the defense to show that the evidence has been tampered with while

9 in the State’s custody.” Weeks, 270 Mont. at 75, 891 P.2d at 484 (citing State v. Armstrong,

189 Mont. 407, 432, 616 P.2d 341, 355 (1980); State v. Wells, 202 Mont. 337, 356, 658

P.2d 381, 391 (1983)). Here, as the District Court reasoned:

[W]e don’t know whether the sample has been tampered with, because the Defendant can’t prove it. . . . [T]hose cases say that speculation and ‘what if’ isn’t—about what might have happened to the sample isn’t enough, that defense has got to have solid proof that somebody actually did tamper with the sample. You have proven that [Thrush] could have tampered with it. You haven’t proven he did on a more likely basis or otherwise.

¶20 While Brasda correctly argues on appeal that questions concerning Thrush’s

involvement to demonstrate retesting of the sample were appropriate under the Rules of

Evidence, nonetheless his trial request was premised upon speculation about

contamination, and under these circumstances we conclude the District Court did not abuse

its discretion in barring further inquiry.

¶21 Affirmed.

/S/ JIM RICE

We concur:

/S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ LAURIE McKINNON /S/ INGRID GUSTAFSON