State v. Webb

828 P.2d 1351
Procedural entryThis page is a short order in State v. Webb. Read the opinion of the Court — 252 Mont. 248
Montana Supreme Court·Decided September 5, 1992·No. 91-101·Published

Opinion

828 P.2d 1351 (1992)

STATE of Montana, Plaintiff and Respondent,
v.
Rick WEBB, a/k/a Frederick Rod Webb, Defendant and Appellant.

No. 91-101.

Supreme Court of Montana.

Submitted on Briefs September 5, 1992.
Decided March 19, 1992.

*1352 James A. Manley, Manley Law Offices, Polson, for defendant and appellant.

*1353 Marc Racicot, Atty., Gen., Carol E. Schmidt, Asst. Atty. Gen., Helena, Scott B. Spencer, Lincoln County Atty., Libby, for plaintiff and respondent.

GRAY, Justice.

Defendant Frederick Rod Webb appeals the judgment of the Nineteenth Judicial District, Lincoln County, Montana, convicting him of criminal sale of dangerous drugs in violation of § 45-9-101, MCA. This is Webb's second appeal to this Court. We reversed and remanded the case on appeal from the first trial. State v. Webb (1990), 243 Mont. 368, 792 P.2d 1097. Again, we reverse and remand.

The dispositive issues on appeal, as restated by this Court, are:

1.) Did the District Court err in admitting "other crimes or acts" evidence?

2.) Did the District Court err in admitting certain impeachment testimony of a defense witness?

3.) Did the District Court properly instruct the jury?

4.) Did the District Court err in admitting evidence of drug transactions involving other individuals?

5.) Did the District Court err in admitting opinion testimony regarding the credibility of an informant?

During the summer of 1988, the Lincoln County Sheriff's Department conducted a drug investigation in the Libby area using Mike Hewson as a temporary undercover agent. This case arises from a drug transaction alleged by Hewson to have occurred on the night of June 27, 1988, at the home of Vicki LaCoss. The State charged Webb with selling Hewson methamphetamine (hereinafter, crank) that evening.

Hewson and Webb were both at the LaCoss home on June 27, 1988. Webb, Hewson, and LaCoss all agree that Hewson arrived first and that Webb and LaCoss played cribbage for awhile after his arrival. They disagree as to what else happened.

Hewson claims Webb sold him crank, some of which he gave to LaCoss for her participation in arranging the deal. LaCoss and Webb contend that Webb did not sell the crank to Hewson, but that Hewson did give some crank to LaCoss.

The second trial of this action was held October 16, 17, and 18, 1990. The jury found Webb guilty of the offense of criminal sale of dangerous drugs. The District Court sentenced Webb on October 22, 1990, and released him on bond. This appeal followed.

I.

Defendant maintains that the District Court erred in admitting "other crimes or acts" evidence. Hewson testified, on direct examination, that he passed Webb on his way into the site of an earlier alleged drug sale and that a person in the house referred to the drug contact who had just left. Webb argues that this testimony constitutes "other crimes or acts" evidence for which no Just notice was given. State v. Just (1979), 184 Mont. 262, 602 P.2d 957.

We have reviewed the record; it does not contain an objection relating to other crimes or acts evidence under Just. Webb made a motion in limine on February 14, 1989, which objected to "any activity allegedly of the Defendant in this matter before June 27, 1988." The motion objected to an alleged erroneous identification of Webb as more prejudicial than probative; the motion did not center on "other crimes or acts." Errors not raised at trial cannot be raised on appeal for the first time. State v. Phelps (1985), 215 Mont. 217, 696 P.2d 447; State v. Howie (1987), 228 Mont. 497, 744 P.2d 156.

II.

Defendant also argues that the District Court erred in admitting certain impeachment testimony of a defense witness. LaCoss was an important defense witness from whom the State elicited testimony that she frequented a bar identified as a place where drug dealers congregated, that she sold drugs to Hewson on another occasion, that she associated with known drug dealers, that she was involved in other drug transactions, and that she was an *1354 addict at one time. Webb contends that this evidence violates Rules 601-613, M.R.Evid., is irrelevant under Rule 402, M.R.Evid., and constitutes an improper attack on character or improper evidence of other crimes or acts under Rule 404, M.R.Evid.

The trial transcript reveals that no objections were made during the referenced portions of LaCoss testimony. Therefore, based upon the authority cited above, we will not address this second issue.

III.

Defendant next maintains that the District Court improperly instructed the jury by refusing two of his proposed instructions:

Instruction #1: A drug addict informants [sic] testimony should be scrutinized closely to determine whether it is colored in such a way as to place guilt upon a defendant in furtherance of the witness's own interests.

Instruction #2: The testimony of informants should be scrutinized closely to determine whether it is colored in such a way as to place guilt upon a defendant in furtherance of the witness's own interests.

Webb contends that these instructions are correct statements of law as set forth in State v. Gommenginger (1990), 242 Mont. 265, 790 P.2d 455, and that one of them should have been given.

The State argues that the court, county attorney and defense counsel discussed these two instructions and the county attorney's concern was that the instructions were too narrow to apply to defense witness LaCoss. On the basis of the discussion, the court gave the following instructions:

INSTRUCTION NO. 2

.....
In determining what the facts are in the case, it may be necessary for you to determine what weight should be given to the testimony of each witness. To do this you should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to indicate whether a witness is worthy of belief. You may consider:

.....

2. Any relation which each witness may bear to the State or to the Defendant, and the manner in which each witness might be affected by the verdict.

INSTRUCTION NO. 3

You have already been instructed that you may consider the manner in which each witness might be affected by the verdict. The fact that a witness is a paid informant or that a witness is a drug addict are factors to be considered by you in the context that the witness might be affected by the verdict.

District courts have broad discretion in formulating jury instructions. This Court reviews jury instructions as a whole. State v. Azure (1979), 181 Mont. 47, 591 P.2d 1125. If the instructions fully and fairly present the applicable law, they will be deemed to be sufficient. State v. Goodwin (1991), 249 Mont. 1, 813 P.2d 953.

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