                                  No. 12136

      I N T E SUPREME C U T O THE STATE OF MONTANA
           H           OR    F

                                    1972



T E STATE O MONTANA,
 H         F

                          P l a i n t i f f and Respondent,

      -vs   -
L R Y FRATES ,
 AR

                          Defendant and Appellant.



Appeal from:      D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
                  Honorable Charles Luedke, Judge p r e s i d i n g .

Counsel of Record:

    For Appellant :

            Towe, Neely and B a l l , B i l l i n g s , Montana.
            Gerald J. Neely argued, B i l l i n g s , Montana.

    For Respondent:

            Honorable Robert L. Woodahl, Attorney General,
             Helena, Montana.
            J. C. Weingartner, A s s i s t a n t Attorney General, argued,
             Helena, Montana.
            Harold F. Hanser, County Attorney, argued, B i l l i n g s ,
              Montana.



                                                 Submitted:          May 16, 1972
M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court.


        Defendant, Larry F r a t e s , appeals from a judgment of convic-
t i o n of t h e crime of c r i m i n a l s a l e of dangerous drugs entered on
June 10, 1971, following j u r y t r i a l and v e r d i c t of g u i l t y i n t h e
d i s t r i c t c o u r t of t h e t h i r t e e n t h j u d i c i a l d i s t r i c t , county of
Yellowstone, t h e Hon. Charles Luedke, d i s t r i c t judge presiding.
Following d e n i a l of h i s motion f o r a new t r i a l , defendant appeals
from t h e judgment of conviction.
        Defendant was a r r e s t e d on t h e n i g h t of March 17, 1971, i n
Room 105 of the Imperial 400 Motel i n B i l l i n g s by o f f i c e r s of
t h e B i l l i n g s p o l i c e department following a s a l e by defendant of
900 LSD t a b l e t s t o an undercover p o l i c e o f f i c e r , Richard S t e l z e r .
Two o f f i c e r s of t h e B i l l i n g s p o l i c e department, Sgt. Jack Samson
and Detective Pat Hagel, occupied t h e adjoining motel room and
heard t h e e n t i r e conversation between defendant and O f f i c e r
S t e l z e r by means of an e l e c t r o n i c "bug" planted i n t h e telephone
i n Room 105, which t r a n s m i t t e d t h e conversation through t h e
telephone i n t h e room they occupied.
       A t t r i a l , defendant admitted h i s a c t i o n s of March 17, 1971,
b u t o f f e r e d testimony and evidence t o support h i s defense of
entrapment by t h e B i l l i n g s p o l i c e         and t h e Yellowstone County
s h e r i f f ' s departments.
       During t r i a l i t developed t h a t a p o l i c e informer, Dale
Anderson, a bartender a t t h e Midway Bar i n B i l l i n g s , had purchased
100 L D t a b l e t s from defendant on two s e p a r a t e occasions w i t h i n
     S
days of t h e crime charged, and played a s i g n i f i c a n t r o l e i n
arranging t h e meeting a t t h e Imperial 400 Motel between O f f i c e r
S t e l z e r and defendant culminating i n t h e s a l e of 900 LSD t a b l e t s
with which defendant was charged.
        Defendant was duly charged with t h e l a t t e r s a l e , t r i e d
by j u r y , convicted, and sentenced t o twenty years i n t h e s t a t e
prison.     Following denial of his motion for a new trial, de-
fendant appeals from his conviction.
     Defendant raises seven issues on appeal:
     1.   The court erred in refusing to give defendant's offered
instruction No. 7.
     2, The court abused its discretion in admitting evidence
where there was an incomplete chain of possession.
     3.   The court abused its discretion in allowing informant
to testify to alleged prior sales.
     4 Entrapment having been shown as a matter of law, the
      .
court erred in not granting a directed verdict of acquittal at
the close of the prosecution's case.
     5.   The court erred in not striking all testimony relating
to conversations taking place in the motel room in question.
     6, The court erred in not granting a new trial or directing
a verdict of acquittal at the close of defendant's case.
     7.   The court erred in overruling defendant's objection to
plaintiff's offered instruction No. 4.
     Directing our attention to Issue 1, we observe that de-
fendant's offered instruction No, 7 is covered by the court's
instruction No. 2, which is the cautionary instruction taken
verbatim from Instruction No. 1, M.J.I.G.    Accordingly there
is no error in the court's refusal of defendant's offered
instruction No. 7 covering the same point in slightly different
language.    State v. Lagge, 143 Mont. 289, 388 P.2d 792; State
v, Logan, 156 Mont. 48, 473 P,2d 833.
     In Issue No. 2, defendant argues the district court abused
its discretion in admitting evidence of dangerous drugs where
there was an incomplete chain of possession.    The evidence
establishes a chain of possession of the LSD tablets from de-
fendant to the arresting officers; from there to tagging, marking
and storing in the evidence vault at the Billings police de-
partment; the packaging and addressing of four of the tablets
to the Bureau of Narcotics and Dangerous Drugs in San Francisco;
t h e r e c e i p t of t h e four p i l l s by t h i s agency; t h e i r examination,
t e s t i n g , and i d e n t i f i c a t i o n by chemist Chan of t h a t agency;
and, t h e r e t u r n of t h e p l a s t i c c o n t a i n e r , t h e mailing box, and
t h e mailing wrapper,bearing the handwriting of one of t h e
B i l l i n g s o f f i c e r s , t o t h e B i l l i n g s p o l i c e department.   Under such
circumstances, t h e absence of t h e d i r e c t testimony of t h e person
who a c t u a l l y mailed them t o San Francisco i s immaterial and i n
no sense breaks t h e chain of possession, precluding t h e i r ad-
m i s s i b i l i t y i n evidence.
       I s s u e No. 3 concerns t h e admission of testimony by informant
Anderson of a l l e g e d p r i o r s a l e s of dangerous drugs by defendant.
       The s t a t e ' s evidence disclosed t h a t Dale Anderson was r e -
quested by t h e B i l l i n g s p o l i c e department t o a s s i s t i t i n curbing
t h e drug t r a f f i c i n B i l l i n g s and t o r e l a y information on drug
t r a f f i c a s a paid informer,           Anderson was given t h e names of
two suspects of p a r t i c u l a r i n t e r e s t t o t h e B i l l i n g s p o l i c e de-
partment, one of whom was Ron Novasio and t h e second, t h e de-
fendant.
       I n l a t e February o r e a r l y March 1971, defendant came t o
t h e Midway Bar i n B i l l i n g s where Anderson was employed a s a
bartender.        Anderson t o l d defendant t h a t he wanted t o go i n t o
a "partnership" with defendant i n t h e i l l e g a l drug f i e l d .
Anderson informed defendant he was not g e t t i n g supplied l i k e he
should, and asked i f defendant could a s s i s t him.                         Defendant
r e p l i e d t h a t he was not s u r e a t t h a t time, b u t he would l e t
Anderson know.           Again, about a week l a t e r , defendant and Anderson
came i n t o c o n t a c t and discussed t h e i r p o s s i b l e agreement.
       On March       9 , 1971, approximately a week and a h a l f a f t e r
t h e i r l a s t meeting, defendant came t o t h e Midway Bar and handed
Anderson a sack containing 100 capsules of LSD.                              Defendant t o l d
Anderson t h e capsules were LSD, which could be s o l d f o r double
t h e amount of money needed t o purchase them.                         Anderson turned
t h e capsules over t o Detective Hagel, who gave Anderson $150
s o t h a t he could pay defendant.                 About a week l a t e r , on March 14,
1971, defendant returned to the Midway Bar and handed Anderson
another sack containing 100 LSD capsules which were again turned
over to Detective Hagel.   It is the evidence of these prior
transactionq admitted at the trial over the objection of defendant,
that is one of the principal assignments of error.
    The general rule in regard to the admissibility of evidence
of other crimes is stated in 29 Am,Jur.2d, Evidence, 5320,p.366:
     "It is a well-established common-law rule that in a
     criminal prosecution proof which shows or tends to
     show that the accused is guilty of the commission of
     other crimes and offenses at other times, even though
     they are of the same nature as the one charged, is in-
     competent and inadmissible for the purpose of showing
     the commission of the particular crime charged * * *."
    ~ontana'sadherence to the above quoted general rule is
recited in State v. Jensen, 153 Mont. 233, 238, 455 P.2d 631,
which states:
    "* * * Montana recognizes the general rule "'that
    when a defendant is put upon trial fox one offense,
    he should be convicted, if at all, by evidence which
    shows that he is guilty of that offense alone; and
    evidence which in any manner shows, or tends to show,
    that he has committed another crime wholly independent.
    even though it be a crime of the same sort, is irrele-•
    vant and inadmissible." Williams v. State, 68 Ok1,Cr.
    348, 352, 98 P,2d 937, 939.' State v. Tiedemann, 139
    Mont. 237, 362 P.2d 529 (1961). The reason for this
    rule is---the defendant is entitled to be informed
    of the crime charged so as to prepare his defense and
    proof of other crimes subjects him to surprise and
    defense of multiple collateral or unrelated issues,
    State v. Nicks, 134 Mont. 341, 332 P.2d 904, (1958).11
    (Emphasis added)
Jensen, then goes on to state a recognized exception to this
general rule:
     11There are recognized exceptions to this general rule:

     similar acts with the same prosecuting witness, State
     vs. Sauter, 125 Mont. 109, 232 P.2d 731 (1951); similar
     acts not too remote in time, State vs. Nicks, supra;
     and 'where the evidence of other crimes tends to establish
     a common scheme, plan or system and where such other crimes
     are similar to, closely connected with and not too remote
     from the one charged, and also where they are so that
     proof of one tends to establish the other.' State v.
     Merritt,      Mont ,      5 ' / P.            State v,
     Gran~berr:?~140 Mo~:~~?O: 367 $:?
     added)
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                                        !1)
                                         8;          .
                                                    " (Emphasis



     The weight of authority, although not pursued in Jensen, is
favorable to this exception to the general rule.     State v, Mc-
Daniel, 80 Ariz. 381, 298 P.2d 798; Warren v. State, 95 Ga.App.
79, 97 S.E.2d 194; S t a t e v , Whiting, 173 Kan. 7 1 1 , 252 P.2d 884;
Commonwealth v. Kline          ,    361 Pa. 434, 65 A.2d 348.
      W recognize t h a t t h e admission of such evidence i s an
       e
exception t o t h e general r u l e and accordingly we a r e o b l i g a t e d
t o look very c a r e f u l l y a t t h e r e l a t i v e probative value of such
evidence, i f any, and weigh             i t against the prejudice inherent
i n t h i s type of evidence i n t h e l i g h t of t h e a c t u a l need t o
introduce such evidence by t h e s t a t e .
      The evidence of t h e two p r i o r s a l e s of LSD t o t h e informer
i n t h e i n s t a n t c a s e i s p a r t of t h e corpus d e l i c t i of t h e crime
with which the defendant i s charged.                  I t i s a p a r t of the t o t a l i t y
of events and occurrences leading t o and culminating i n t h e s a l e
of t h e 900 LSD t a b l e t s t o t h e undercover p o l i c e o f f i c e r of which
defendant was convicted.             I t tends t o e x p l a i n the circumstances
leading t o t h e commission of the crime charged, e s t a b l i s h e s
defendant's i n t e n t t o commit t h e crime charged, and negatives
the defense of entrapment.              As such, i t i s c l e a r l y r e l e v a n t ,
probative and competent evidence tending t o prove t h e crime
charged.     The f a c t t h a t i t i s i n h e r e n t l y p r e j u d i c i a l t o defendant
does n o t d e t r a c t from i t s a d m i s s i b i l i t y under such circumstances,
p a r t i c u l a r l y where, a s h e r e , no element of s u r p r i s e i s involved.
      Defendant argues t h a t such evidence i s n o t admissible i n
t h e s t a t e ' s case-in-chief    a s the defense of entrapment had n o t
been r a i s e d by defendant a t t h i s juncture.             The record b e l i e s
t h i s claim.    Defendant had made h i s opening statement immediately
following t h a t of t h e s t a t e before t h e i n t r o d u c t i o n of any e v i -
dence and although such opening statement i s not t r a n s c r i b e d i n
t h e record on appeal, t h e record i n d i c a t e s t h e defense of entrap-
ment had been r a i s e d t h e r e i n by t h e following remark of t h e t r i a l
judge i n response t o defendant's o b j e c t i o n t o the a d m i s s i b i l i t y
of evidence of the two p r i o r s a l e s of LSD:
       "THE COURT: Well, i t seems t o m t h a t t h e d i e
                                                        e
       i s p r e t t y w e l l c a s t by v i r t u e of t h e opening
       statements made on both s i d e s , t o which n e i t h e r
        made any objection. And t h e r u l e i n Montana i s
        t h a t provided by S t a t e v. Jensen, 153 Mont. 233,
        and under t h e circumstances 1 ' m going t o over-
        r u l e t h e objection. 11
        I s s u e No. 4 i s whether entrapment was e s t a b l i s h e d a s a
matter of law e n t i t l i n g defendant t o a d i r e c t e d v e r d i c t of
acquittal,         The law of entrapment i s s e t f o r t h i n our r e c e n t
d e c i s i o n i n S t a t e v. Karathanos,                 Mon t   .        9   493 P.2d 326,
330, 29 St.Rep.           81, 88, which we quote i n p e r t i n e n t p a r t :
        "Defendant now contends t h a t he was entrapped i n t o
        commitllng t h e o f f e n s e charged. With t h i s contention,
        we cannot agree. Entrapment occurs only when t h e
        c r i m i n a l i n t e n t o r design o r i g i n a t e s i n t h e mind of
        t h e p o l i c e o f f i c e r o r informer and n o t with t h e
        accused, and t h e accused i s l u r e d o r induced i n t o
        committing a crime he had no i n t e n t i o n of committing.
        Only when t h e c r i m i n a l design o r i g i n a t e s , n o t with
        t h e accused, b u t i n t h e mind of government o f f i c e r s
        and t h e accused i s by persuasion, d e c e i t f u l representa-
        t i o n s , o r inducement, lured i n t o t h e commission of a
        c r i m i n a l a c t , can a c a s e of entrapment be made out.
        I n s h o r t , t h e r e i s a c o n t r o l l i n g d i s t i n c t i o n between
        inducing a person t o do an unlawful a c t and s e t t i n g
        a t r a p t o c a t c h him i n t h e execution of a criminal
        design of h i s own conception. The f a c t t h a t t h e
        Yellowstone County s h e r i f f ' s o f f i c e afforded t h e op-
        p o r t u n i t y o r f a c i l i t y f o r t h e commission of t h e
        o f f e n s e , does not come within t h e entrapment r u l e .
        I n t h i s c l a s s of o f f e n s e s , u s u a l l y committed s e c r e t l y ,
        i t i s d i f f i c u l t i f n o t almost impossible t o secure
        t h e evidence necessary t o convict by any o t h e r means
        than by t h e use of decoys, C e r t a i n l y , t h e r e can be
        no o b j e c t i o n t o t h e i r use i f t h e o f f i c e r s do n o t by
        persuasion, d e c e i t f u l r e p r e s e n t a t i o n s o r inducement,
        l u r e a person who otherwise would n o t be l i k e l y t o
        break t h e law, i n t o a c r i m i n a l a c t . S t a t e v. Wong
        Hip Chung, 74 Mont. 523, 241 P, 620; S t a t e v. P a r r ,
        129 Mont. 175, 283 P.2d 1086; 22 C,J.S. Criminal-Law
        5 5 45(1), 45(2), 45(4), p. 137,"
Here, t h e evidence i s c o n f l i c t i n g precluding entrapment a s a
matter of law, and t h e j u r y resolved t h i s c o n f l i c t a g a i n s t t h e
defendant.
        There i s no merit i n defendant's i s s u e No. 5.                         It i s based
on t h e f a i l u r e of t h e s t a t e t o permit inspection and copying
of t h e t a p e recording of t h e conversation between defendant
and t h e undercover p o l i c e o f f i c e r i n t h e motel room a t t h e time
of s a l e .    The uncontradicted evidence shows t h a t t h e tape was
u n i n t e l l i g i b l e , i n a u d i b l e , n o t a v a i l a b l e , and not used p r i o r t o
or a t the t r i a l .       Under such circumstances t h e claimed e r r o r i s
without substance,
         Defendant's i s s u e No. 6 i s encompassed i n t h e o t h e r e r r o r s
  claimed and need not be s e p a r a t e l y discussed,
         I n i s s u e No. 7 , the f i n a l i s s u e , defendant claims t h a t t h e
  word "suspect" a s used i n c o u r t ' s i n s t r u c t i o n No. 1 was e r r o r .
                                                                       1
  I n s t r u c t i o n No. 1 reads i n p e r t i n e n t p a r t :
                             1
         "On t h e o t h e r hand, where a person a l r e a d y has t h e
         r e a d i n e s s and w i l l i n g n e s s t o break the law, t h e
         mere f a c t t h a t law enforcement o f f i c e r s o r t h e i r
         agents provide what appears t o be a favorable oppor-
         t u n i t y i s not entrapment. For example, when law
         enforcement o f f i c e r s o r t h e i r agents suspect t h a t
         a person i s engaged i n t h e i l l i c i t s a l e of dangerous
         drugs, i t i s n o t entrapment f o r law enforcement o f f i -
         c e r s o r t h e i r agents t o pretend t o be someone e l s e
         and t o o f f e r , e i t h e r d i r e c t l y o r through an informer
         o r o t h e r decoy, t o purchase n a r c o t i c s from such
         suspected person."                 (Emphasis supplied)
                                             II
  Defendant contends t h e term                   suspect" was e r r o r and t h e words
  "has reasonable grounds f o r believing" should have been s u b s t i -
  tuted.      The use of t h e word "suspect" i s e n t i r e l y proper where,
  a s h e r e , t h e balance of the i n s t r u c t i o n c l e a r l y i n d i c a t e s t h a t
  t h e impetus f o r commission of t h e crime must emanate from de-
  fendant and t h a t t h e law enforcement o f f i c e r s can do no more
  than c r e a t e t h e opportunity f o r i t s commission by posing a s
  prospective purchasers of contraband.
         The judgment of t h e d i s t r i c t



                                                              Associate J u s t i c e




/M:,f          Justice                        r
