text:
    DANIEL LEE JESS, Petitioner and Appellant, v. STATE OF MONTANA, DEPARTMENT OF JUSTICE, MOTOR VEHICLE DIVISION, Respondent and Respondent.
    No. 91-573.
    Submitted on Briefs July 23, 1992.
    Decided November 12, 1992.
    As Modified on Denial of Rehearing Dec. 10, 1992.
    49 St.Rep. 951.
    255 Mont. 254.
    841 P.2d 1137.

      For Petitioner and Appellant: Gary R. Thomas, Thomas Law Office, Red Lodge.
    For Respondent: Marc Racicot, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; and John Bohlman, Special Assistant Stillwater County Attorney, Columbus.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant Daniel Lee Jess appeals from an order of the Thirteenth Judicial District Court, Stillwater County, denying his petition for reinstatement of his driver’s license pursuant to § 61-8-403, MCA.

We affirm.

Three issues are presented to this Court for our consideration.

1. Did the District Court err in holding that appellant has the burden of proof for seeking reinstatement of his driver’s license following its suspension under § 61-8-403, MCA?

2. Was there sufficient evidence in the record to support the District Court’s conclusion that the arresting officer had reasonable grounds to suspect that appellant had been driving under the influence of alcohol?

3. Did the officers have reasonable grounds to make an arrest?

On May 25,1991, Daniel Lee Jess, accompanied by a friend, drove Jess’s pickup truck from Columbus to Rapelje to perform contract work. On Jess’s return home from Columbus, he was observed by another motorist who had followed him for a long distance and who testified that Jess was driving erratically and his vehicle was “all over the road.” She stated that at one point he started to veer off the road and nearly hit a bridge near Kaiser Creek. She also testified that she saw the driver drink something, but could not identify what it was. When the witness arrived at Columbus, she immediately went to the sheriff’s office and gave the dispatcher the description of the pickup, the license plate number, and reported that she had recognized Jess as the driver of the pickup. She also described what she believed to be erratic driving.

While the witness went to the sheriff’s office, Jess and his companion drove to a bar in Columbus and began drinking there. The dispatcher radioed the information given by the witness to Officer Woods. Deputy Salte was in the dispatch office when the witness made her complaint. Approximately five minutes later, the officers located the pickup outside the bar. Neither officer had seen appellant drive his pickup truck.

Following a discussion inside the bar, Officer Woods requested that appellant come outside. Officer Woods told appellant that a witness had reported a drunken driver. After another conversation ensued, Officer Woods requested that appellant accompany her in the police car to the sheriff’s office. It is in dispute as to whether Officer Woods demanded or requested that appellant go to the sheriff’s office. Appellant did accompany the officer to the sheriff’s office. Both officers observed that appellant had slurred speech, bloodshot eyes, and was staggering, and concluded that he was under the influence of alcohol. Officer Woods informed appellant that if the witness did not sign a complaint against him, then he would be returned to the bar. Appellant believed that he was arrested at this point and was compelled to go to the sheriff’s office.

Upon arrival at the sheriff’s office, there was a problem with locating the witness and appellant was placed in a booking room. Approximately 15 minutes later, they located the witness and she signed a written statement. Officer Woods then placed appellant under arrest. Appellant refused the breathalyzer test and his license was immediately suspended for one year.

Appellant filed for a reinstatement hearing which was held on August 26, 1991. On September 23,1991, the court entered its order and memorandum denying reinstatement of appellant’s license. Appellant appeals this decision.

I.

Did the District Court err in holding that appellant has the burden of proof for seeking reinstatement of his driver’s license following its suspension under § 61-8-403, MCA?

Appellant raises a constitutional challenge to § 61-8-403, MCA. He readily admits that this challenge was not raised in District Court, nor was the Montana Attorney General properly notified. Therefore, we will not discuss appellant’s constitutional challenge.

As to the burden of proof issue, appellant contends that even though a proceeding brought under § 61-8-402, MCA, is civil in nature, the determinations made by the District Court are traditional criminal issues in which the State always has the burden of proof. This is an issue of first impression before this Court.

Under Montana’s implied consent law, a person who is arrested for operating a motor vehicle while under the influence of alcohol is considered to have given his consent to a breathalyzer test for the purpose of determining the amount of alcohol in his blood. A person who refuses to consent to a breathalyzer test will face immediate seizure of his driver’s license and formal suspension of his driving privileges by the Department of Justice. § 61-8-402(3), MCA.

Upon suspension of a driver’s license for failure to take a breathalyzer test, the individual may appeal to the district court for review under § 61-8-403, MCA, which states:

The department shall immediately notify any person whose license or privilege to drive has been suspended or revoked, as hereinbefore authorized, in writing and such person shall have the right to file a petition within 30 days thereafter for a hearing in the matter in the district court in the county wherein such person resides or in the district court in the county in which this arrest was made. Such court is hereby vested with jurisdiction and it shall be its duty to set the matter for hearing upon 10 days’ written notice to the county attorney of the county wherein the appeal is filed and such county attorney shall represent the state, and thereupon the court shall take testimony and examine into the facts of the case, except that the issues shall be limited to whether a peace officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public, while under the influence of alcohol, drugs, or a combination of the two, whether the person was placed under arrest, and whether such person refused to submit to the test. The court shall thereupon determine whether the petitioner is entitled to a license or is subject to suspension as heretofore provided. [Emphasis added.]

We have stated that a hearing held under § 61-8-403, MCA, is “a civil proceeding, separate and distinct from a criminal trial ....” Gebhardt v. State (1989), 238 Mont. 90, 95, 775 P.2d 1261, 1265. During this civil proceeding, the judge is limited to only reviewing the propriety of the suspension of the driver’s license for refusing to submit to a breathalyzer test. The issues are clearly defined by statute and require a lower burden of proof than the criminal proceeding. § 61-8-403, MCA, limits the inquiry to the following issues:

(1) whether the arresting officer had reasonable grounds to believe the following:
(a) that the petitioner had been driving or was in actual physical control of a vehicle;
(b) that the vehicle was on a way of this State open to the public; and
(c) that the petitioner was under the influence of alcohol;
(2) whether the individual was placed under arrest; and
(3) whether the individual refused to submit to a chemical test.

Gebhardt, 775 P.2d at 1265.

In a criminal proceeding for driving under the influence, the judge or jury actually decides the ultimate issue, of whether, beyond a reasonable doubt, the defendant had been driving or was in actual physical control of a vehicle on the ways of this state open to the public while under the influence of alcohol. Gebhardt, 775 P.2d at 1265. We have also stated that the ability to operate a motor vehicle on a public highway is not a fundamental right, but a revokable privilege that is granted upon complying with statutory licensing procedures. State v. Skurdal (1988), 235 Mont. 291, 767 P.2d 304.

Unfortunately, § 61-8-403, MCA, does not clearly state who has the burden of proof in the civil proceeding. Both parties cite to numerous state jurisdictions to support their position. Even so, we believe that § 26-1-401, MCA, is the applicable statute. It states the following:

The initial burden of producing evidence as to a particular fact is on the party who would be defeated if no evidence were given on either side. Thereafter, the burden of producing evidence is on the party who would suffer a finding against him in the absence of further evidence.

We have previously interpreted this statute to mean that “the party asserting a right in any case has the burden of proving each of the material allegations stated in the complaint.” McDonald v. Peters (1954), 128 Mont. 241, 243, 272 P.2d 730, 731. The State’s action of immediately seizing the driver’s license is authorized upon the appellant’s refusal to comply with the implied consent statute, and review of the revocation is initiated only at the request of the appellant. § 61-8-402 and -403, MCA. There is a presumption of correctness to the State’s action until otherwise shown to be improper. § 61-8-402, MCA. Thus, it is the appellant who is asserting the right to reinstatement of his driver’s license by filing a petition with the District Court. If he fails to file his petition or produce any evidence, then the suspension remains in effect. The burden of proof falls upon the appellant to prove the invalidity of the State’s action, rather than require the State to justify its act of revocation. We hold that the District Court did not err in requiring that appellant have the initial burden of proof.

II.

Was sufficient evidence in the record to support the District Court’s conclusion that the arresting officer had reasonable grounds to suspect that appellant had been driving under the influence of alcohol?

Appellant claims that the officers did not have the requisite “particularized suspicion” to investigate him. In determining whether an officer is justified in making an investigatory stop, the State must prove the existence of a “particularized suspicion.” In the Matter of the Suspension of Driver’s License of Blake (1986), 220 Mont. 27, 712 P.2d 1338. This can be accomplished by proving “(1) objective data from which an experienced officer can make certain inferences; and (2) a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing.” Blake, 712 P.2d at 1340. An officer has reasonable grounds if the facts and circumstances within the personal knowledge of the arresting officer would be sufficient to warrant a reasonable person to believe that the defendant is under the influence of alcohol. Gebhardt, 775 P.2d at 1265. In addition, we have stated that an arresting officer may rely on information conveyed by a reliable third person. Boland v. State (1990), 242 Mont. 520, 792 P.2d 1. In State v. Sharp (1985), 217 Mont. 40, 46, 702 P.2d 959, 962, the majority of the Court held that information conveyed by a “citizen informant” is considered presumptively reliable. In that case, the citizen informant reported a possible DUI and gave the license number of the vehicle, its description, and the direction it was travelling. If an officer receives a complete vehicle description, the officer has a particularized reason to question a suspect. State v. Ellinger (1986), 223 Mont. 349, 352, 725 P.2d 1201, 1203.

In this instance, the witness followed appellant’s truck for a considerable amount of time and observed the vehicle swerving on the road, go partially off the road, and nearly hit a bridge. The witness reported to the dispatcher the license plate number, the description of the truck, and that she recognized the driver as appellant. She described the erratic driving and the direction the pickup was heading. She also stated that the passenger was wearing a red hat. The dispatcher relayed the information to Officer Woods. Deputy Salte testified that he was in the dispatcher’s office when the witness gave the information to the dispatcher. The information was corroborated when, within five minutes, the officers located appellant’s vehicle parked at the bar. At a minimum, the citizen tip provided the officers with probable cause to investigate.

Upon entering the bar, Officer Woods located appellant, as well as his friend who was wearing a red hat, and asked appellant to step outside, to which he agreed. At this point, both officers observed that appellant had slurred speech, trouble keeping his balance, and smelled of alcohol. Appellant admitted to driving on the road and he testified that he had had two beers to drink at the bar. We hold that there was sufficient evidence to conclude that Officer Woods had reasonable grounds to suspect that appellant had been driving under the influence of alcohol and had reasonable grounds to detain him.

III.

Did the officers have reasonable grounds to make an arrest?

A founded suspicion to stop for investigative detention may ripen into probable cause to arrest through the occurrence of facts or incidents after the stop. Sharp, 702 P.2d 963. For an arrest to be valid, we must determine whether an officer had probable cause to make an arrest. This is accomplished by determining if at the time of the arrest the facts and circumstances within the officer’s personal knowledge, or upon information imparted to him by a rehable source, are sufficient to warrant a reasonable person to believe that the suspect has committed an offense. Ellinger, 725 P.2d at 1202.

Both officers testified that based upon their observations they believed that appellant was under the influence of alcohol. Appellant accompanied Officer Woods to the sheriff’s office where the officer spoke with the witness to confirm the information relayed by the dispatcher. At this point, Officer Woods believed she had probable cause and placed appellant under arrest. Appellant then became belligerent and refused to take a breathalyzer test. We hold that Officer Woods had probable cause to make the arrest.

We affirm.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, TRIEWEILER and WEBER concur.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    PAUL EASTMAN, Petitioner and Appellant, v. TRANSPORT INSURANCE COMPANY AND GARRETT FREIGHTLINES, INC., Insurer, Defendant Employer and Respondents.
    No. 91-436.
    Submitted on Briefs February 6, 1992.
    Decided November 12, 1992.
    49 St.Rep. 936.
    255 Mont. 262.
    843 P.2d 300.

      For Appellant: Richard J. Martin, Alexander, Baucus & Linnell, Great Falls.
    For Respondents: Sara R. Sexe, Marra, Wenz, Johnson & Hopkins, Great Falls.
   JUSTICE GRAY

delivered the Opinion of the Court.

Paul Eastman appeals from the Workers’ Compensation Court’s determination that he did not prove by a preponderance of the evidence that an August, 1981, injury caused his disability and from the order denying a new trial. We affirm.

We state the issues on appeal as follows:

1. Did the Workers’ Compensation Court err in concluding that the August, 1981, injury did not cause claimant’s disability?

2. Did the Workers’ Compensation Court err in denying the petition for new trial?

Paul Eastman (Eastman) was employed as a pick up and delivery driver for Garrett Freightlines (later ANR Freight Systems) from 1964 until March 31,1990, when the Great Falls terminal closed. His job required the loading and delivery of heavy freight.

During the course of his employment, Eastman sustained four injuries to his neck. Eastman’s first injury occurred on July 19,1979, when falling freight struck his neck. On May 21, 1980, Eastman injured his neck while stacking tires. On March 19, 1981, Eastman fell down the steps of the loading dock. Truck Insurance Exchange was the insurer on risk at the time of these injuries. After each injury, Eastman received medical treatment from Dr. Pardis, a Great Falls chiropractor.

On August 31,1981, Eastman injured his neck a fourth time while stacking pallets. Respondent Transport Insurance Company (Transport) was the insurer on risk. Eastman did not miss any work as a result of the injury. However, Eastman filed a claim for, and Transport paid, compensation for medical expenses. Eastman received chiropractic treatment from Dr. Pardis until Transport required him to have an independent medical examination. Eastman was examined by Dr. Gaston Syrenne, a neurosurgeon, in April, 1982. Dr. Syrenne’s diagnosis was mild neck sprain superimposed upon a degenerative disc disease and neurological deficit at C5-6.

Between 1983 and 1987, Eastman filed six additional workers’ compensation claims. These claims concerned injuries to Eastman’s middle back, legs and elbow. During this time, Eastman received no treatment on his neck. Eastman continued to perform the heavy duties of a pick up and delivery driver until the terminal closed in March of 1990. During this time, Eastman did not miss work due to his neck condition.

In 1988, Dr. Hachigan, a physician treating injuries to Eastman’s knee and foot, referred Eastman to Dr. James Hinde for treatment of continuing problems in Eastman’s neck and right shoulder. Dr. Hinde, a physiatrist, specializes in rehabilitating persons whose physical functions have been impaired by trauma, stroke or spinal chord injury. He diagnosed degenerative arthritis of the discs and joints in the neck (cervical spondylosis). Dr. Hinde stated that since 1982, Eastman’s mild cervical spondylosis had become severe due to biomechanical forces operating over a decade on an injured spine, causing further disc narrowing and further malalignment. Dr. Hinde confirmed a deficit at C5-6 and referred Eastman to Dr. Paul Gorsuch, a neurosurgeon. Dr. Gorsuch performed anterior disc removal and fusion surgery on June 29, 1990.

On June 19,1990, Eastman petitioned the Workers’ Compensation Court for medical expenses, temporary total disability benefits, and permanent partial or permanent total disability benefits, claiming that his disability arose out of the August, 1981, injury. The hearing examiner concluded that Eastman did not prove by a preponderance of the credible evidence that the August, 1981, injury caused his disability. The Workers’ Compensation Court adopted the examiner’s Findings of Fact and Conclusions of Law and Proposed Judgment. Subsequently, the Workers’ Compensation Court denied Eastman’s petition for new trial, finding that the August, 1981, injury was only a temporary aggravation of Eastman’s pre-existing degenerative disc disease. Eastman now appeals the judgment and order denying a new trial.

Did the Workers’ Compensation Court err in concluding that the August, 1981, injury did not cause claimant’s disability?

The Workers’ Compensation Court determined that Eastman did not prove by a preponderance of the evidence that his current neck condition was caused by the August, 1981, injury. According to the court, Eastman’s neck condition resulted from the gradual degeneration of his spondylosis and occasional aggravations to his neck.

The Workers’ Compensation Court considered reports or deposition testimony from three physicians. Dr. Gaston Syrenne first saw Eastman on April 8, 1982, and noted that Eastman probably had developed a mild degenerative joint disease by that time. Dr. Syrenne opined that degenerative arthritis was the main cause of Eastman’s continuing neck pain. Dr. Syrenne noted that Eastman attributed the neck pain to an August, 1981, injury; however, Eastman described the precipitating injury to Dr. Syrenne as a fall down five steps at the dock, an injury that occurred on March 19, 1981.

Dr. James Hinde treated Eastman in 1988 and 1989. Dr. Hinde testified that since 1982, Eastman’s mild cervical spondylosis had become severe. Dr. Hinde attributed Eastman’s neck condition to many incidents, including everyday trauma and work activities, repetitive trauma and individual traumatic events. Dr. Hinde could not attribute Eastman’s cervical spondylosis to a specific injury. Like Dr. Syrenne, Dr. Hinde testified that Eastman had attributed his neck and shoulder condition to a fall down five steps at the dock.

Dr. Paul Gorsuch concurred with Dr. Hinde that Eastman’s degenerative condition was difficult to attribute to a specific event. Rather, Dr. Gorsuch attributed Eastman’s condition to degenerative disc disease, cervical spondylosis, heavy work conditions and various trauma to his neck. Based on Eastman’s representation that his pain intensified with the August, 1981, injury, Dr. Gorsuch initially concluded that that injury was primarily responsible for Eastman’s condition. However, Dr. Gorsuch testified that if Eastman had the same symptoms prior to the injury, the injury was not a primary factor in Eastman’s pain. Once Dr. Gorsuch learned of prior neck injuries, he testified that the August, 1981, injury was relatively mild and less likely to exacerbate Eastman’s symptoms.

Based on this medical evidence, the Workers’ Compensation Court determined that the August, 1981, injury did not cause Eastman’s current condition. Our standard for reviewing a decision of the Workers’ Compensation Court is to determine if substantial evidence supports its findings and conclusions. When there is substantial evidence to support the Workers’ Compensation Court, this Court cannot overturn the decision. Wood v. Consolidated Freightways, Inc. (1991), 248 Mont. 26, 28, 808 P.2d 502, 504.

In this case, Eastman must prove by the preponderance of the credible evidence that 1.) he suffered an injury arising out of and in the course of his employment; and 2.) the injury was the proximate cause of his disabling condition. Frost v. Anaconda Company (1985), 216 Mont. 387, 390, 701 P.2d 987, 988. Taken as a whole, the medical evidence supports the Workers’ Compensation Court’s determination that the August, 1981, injury did not cause Eastman’s current condition. Eastman’s neck condition predated the August, 1981, injury. Eastman received 65 chiropractic manipulations on his neck prior to that date. As a result of the August, 1981, injury, Eastman resumed chiropractic treatment with Dr. Pardis. At Transport’s request, Eastman received medical treatment from Dr. Syrenne in April and May of 1982. The record reflects that this treatment was successful. Eastman testified that after Dr. Syrenne’s treatment, his symptoms, as a whole, subsided. He sought no medical attention or treatment for his neck from 1983 through 1987. Eastman continued to perform the heavy manual labor of a pick up and delivery driver until March of 1990, when the Great Falls terminal closed. During this time, Eastman did not miss any work as a result of his neck condition. Eastman testified that he would have continued working in that position if the terminal had remained open.

In July of 1989, Dr. Hinde reported that Eastman’s condition related to the August, 1981, injury. Similarly, Dr. Gorsuch wrote Eastman’s counsel in August of 1990 and attributed Eastman’s pain symptomatology to the August, 1981, injury, although he determined that that injury did not cause Eastman’s degenerative neck condition. Dr. Hinde’s report and Dr. Gorsuch’s correspondence subsequently were discredited by the doctors themselves. Drs. Hinde and Gorsuch testified to the importance of an accurate and detailed medical history in treating and determining the cause of a medical condition. However, Eastman failed to inform Dr. Hinde and Dr. Gorsuch of essential facts before each physician concluded that the August, 1981, injury caused his current condition. Eastman did not inform Drs. Hinde and Gorsuch of the July, 1979 or May, 1980, injuries, or injuries subsequent to August, 1981; that the fall down the dock steps occurred in March, 1981; that the August, 1981, injury involved reaching for freight; or the substantial number of chiropractic manipulations of his neck before and after the August, 1981, injury. Once these facts were disclosed, Dr. Hinde could not attribute Eastman’s mild spondylosis in 1982, or its progression to severe spondylosis, to a specific injury. Dr. Gorsuch testified that the August, 1981, injury was relatively mild compared to previous neck injuries and was therefore mechanically less likely to cause the exacerbation of his symptoms.

Eastman relies on deposition testimony from Dr. Hinde and Dr. Gorsuch to establish that it was medically possible for the August, 1981, injury to cause his current disability by aggravating his pre-existing condition. Eastman contends that where a claimant proves that it is medically possible for an injury to aggravate a pre-existing condition, the claimant has met his burden of proving causation under the Workers’ Compensation Act.

Eastman’s contention is an oversimplification of well-established principles concerning medical possibility evidence. It is true that when a claim is based on an aggravation of a pre-existing injury, as Eastman bases this claim, proof of medical possibility, in conjunction with other evidence, can support a grant of workers’ compensation benefits. Hash v. Montana Silversmith (1991), 248 Mont. 155, 160, 810 P.2d 1174, 1177. However, we do not consider medical possibility evidence in a vacuum.

“ ‘Medical possibility is to be weighed just as any other evidence; if supported by other, independent evidence it is ‘acceptable’ to be used by the court in making its determination. Medical possibility evidence by itself, though, does not mandate the conclusion that the claimant has met his burden of proof under the Act.”

Currey v. 10 Minute Lube (1987), 226 Mont. 445, 449, 736 P.2d 113, 116 (citing Wheeler v. Carlson Transport (1985), 217 Mont. 254, 261, 704 P.2d 49, 53-54); Laber v. Skaggs Alpha Beta (1991), 247 Mont. 172, 177, 805 P.2d 1375, 1378.

Eastman contends that his medical possibility evidence is supported by the records of Drs. Pardis and Syrenne and his own testimony. The record reflects that Eastman has not been examined by either physician for his neck condition since 1983. Their records are not probative concerning the issue of whether Eastman’s August, 1981, injury caused his current disability. Eastman’s own statements attribute his current disability to the injury involving a fall down loading dock steps or, alternatively, to the August, 1981, injury. Such inconsistent statements do not provide significant corroboration of the medical possibility evidence. Accordingly, applying Currey to the record before us does not mandate a conclusion that Eastman has met his burden of proving the causal link between the August, 1981, injury and his current condition.

We conclude that substantial credible evidence supports the Workers’ Compensation Court’s determination that Eastman did not prove by a preponderance of the credible evidence that his disability was caused by the August, 1981, injury. The Workers’ Compensation Court did not err.

Did the Workers’ Compensation Court err in denying the petition for new trial?

Eastman filed a petition for new trial alleging that the Workers’ Compensation Court omitted certain findings of fact, considered erroneous findings of fact, and failed to address his theory of aggravation of a pre-existing condition. The Workers’ Compensation Court denied the petition.

The Workers’ Compensation Court’s authority to grant a new trial is found in A.R.M. 24.5.344 and guided by the general rules of civil procedure. Anew trial maybe granted in cases tried by the court when an irregularity in the proceedings, accident or surprise, or newly discovered evidence materially affects substantial rights of a party. Sections 25-11-102(1), (3), (4); 25-11-103, M.R.Civ.P. (1991). Here, the Workers’ Compensation Court determined that the findings were supported by substantial, credible evidence and that there were no grounds for a new trial.

Eastman contends that the Workers’ Compensation Court erred in determining in its order denying the petition for new trial that the August, 1981, injury was merely a temporary aggravation of Eastman’s pre-existing condition. Eastman asserts that the finding of temporary aggravation negates the Workers’ Compensation Court’s original findings and is not supported by the record. We disagree.

The finding of temporary aggravation is consistent with the Workers’ Compensation Court’s judgment denying benefits. Both the finding and the judgment are based on the same salient fact; namely, that the August, 1981, injury did not cause Eastman’s current condition. The finding of a temporary aggravation is supported by the record. Eastman experienced headaches, sore neck and shoulder, and numbness in arms and hands prior to August, 1981, indicating that his neck condition predated the injury. Eastman testified that his symptoms, as a whole, subsided after Dr. Syrenne’s treatment. Between 1982 and 1988, Eastman’s mild cervical spondylosis became severe. Dr. Hinde and Dr. Gorsuch attributed the deteriorization to natural degeneration, as well as other factors.

Allen v. Treasure State Plumbing (1990), 246 Mont. 105, 803 P.2d 644, is on point. In Allen, the claimant suffered successive injuries to his back, once in 1974, and again in 1977. The claimant filed a claim for permanent partial disability with the Workers’ Compensation Court in 1987. The Workers’ Compensation Court found, and we affirmed, that the 1977 injury was only a temporary aggravation of the claimant’s pre-existing condition and was not the cause of claimant’s disability in 1987. Thus, the insurer on risk in 1977 was liable only for benefits reasonably related to the temporary aggravation of claimant’s condition. Here, Transport has paid the benefits reasonably related to the August, 1981, injury.

We conclude that substantial credible evidence exists to support the Workers’ Compensation Court’s finding that the August, 1981, injury temporarily aggravated Eastman’s pre-existing condition. The finding of a temporary aggravation is consistent with the Workers’ Compensation Court’s determination that the August, 1981, injury did not cause his current disability. We hold that the Workers’ Compensation Court did not err in denying Eastman’s petition for new trial.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, TRIEWEILER and McDONOUGH concur.


author: JUSTICE McDONOUGH

text:
    PATRICK F. MANEY, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Respondent.
    No. 92-124.
    Submitted on Briefs August 20, 1992.
    Decided November 23, 1992.
    49 St.Rep. 980.
    255 Mont. 270.
    842 P.2d 704.

      For Petitioner and Appellant: Robert C. Melcher, Morrison, Young, Melcher, Brown & Richardson, Havre.
    For Respondent and Respondent: Marc Racicot, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena; David G. Rice, County Attorney, and Patricia Jensen, Deputy, Havre.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Petitioner, Patrick F. Maney, appeals from the Twelfth Judicial District Court, Hill County, order denying reinstatement of his driver’s license. We affirm.

The issues on appeal are:

1. Whether in making a lawfiil citizen’s arrest, a peace officer acting outside the officer’s territorial jurisdiction must transfer custody to another officer who has jurisdiction.

2. Whether the implied consent statutes apply when the arresting officer makes a lawful citizen’s arrest outside the officer’s territorial jurisdiction.

On October 11, 1991, Chinook City Police Officer Tim Gomke saw an approaching vehicle make a sudden lateral movement and flash its lights. Officer Gomke clocked the vehicle at 31 mph in a 40 mph zone. As the vehicle passed the officer, he recognized it as one he had seen at a local bar two hours earlier. He had run a registration check on the vehicle at that time.

Officer Gomke, believing that the driver had a revoked license, followed the vehicle out of the Chinook city limits for about three and one-half miles. He observed the vehicle traveling too slowly and swerving from the centerline to the fogline. Officer Gomke testified that he suspected the driver was impaired by alcohol and realized he should get the vehicle off the road immediately. The officer activated his emergency lights after he radioed for backup. The vehicle did not stop promptly, rather it proceeded for about a mile before it pulled over. The driver was identified as Patrick F. Maney.

Because Maney’s breath smelled of alcoholic beverage, Officer Gomke required him to perform field sobriety maneuvers. Meanwhile, Blaine County Deputy Sheriff Shawn Kovacich had arrived on the scene. He witnessed Maney’s performance of the sobriety maneuvers. Deputy Kovacich and Officer Gomke agreed that Maney was impaired by alcohol so Officer Gomke arrested Maney. Immediately after the arrest, Officer Gomke radioed to the dispatcher at the Blaine County sheriff’s office that he had a D.U.I. suspect in custody. Officer Gomke then transported Maney to the sheriff’s office in Chinook. Deputy Kovacich followed.

At the sheriff’s office, Officer Gomke re-administered sobriety tests to Maney while Deputy Kovacich observed. The sobriety tests again showed that Maney was alcohol impaired. Maney refused Officer Gomke’s request to submit to a breathalyzer test. Officer Gomke, therefore, confiscated Maney’s driver’s license and the State suspended the license as prescribed by the implied consent statute Section 61-8-402, MCA.

Maney petitioned the State to restore his license pursuant to Section 61-8-403, MCA. This appeal follows the District Court’s denial of the petition.

Our standard of review of a district court’s conclusions of law is plenary and we determine whether the district court’s conclusions are correct. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

Judicial review of the propriety of the suspension of a driver’s license is limited to the following:

(1) whether the arresting officer had reasonable grounds to believe the following:
(a) that the petitioner had been driving or was in actual physical control of a vehicle;
(b) that the vehicle was on a way of this state open to the public; and
(c) that the petitioner was under the influence of alcohol;
(2) whether the individual was placed under arrest; and
(3) whether the individual refused to submit to a chemical test. [Emphasis in original.]

Gebhardt v. State (1989), 238 Mont. 90, 95, 775 P.2d 1261, 1265.

In the present case, the District Court found that Officer Gomke had reasonable grounds to stop petitioner’s vehicle. The court also found that after Officer Gomke and Deputy Kovacich observed petitioner they had reasonable grounds to believe he was intoxicated. There is no doubt that petitioner was in control of his vehicle on a public way. Further, there is no doubt that he refused to submit to a chemical test. Therefore, if Officer Gomke placed petitioner under lawful arrest and if the implied consent law applies in this circumstance, then the suspension of petitioner’s driving privileges must be upheld.

I

To make a lawful citizen’s arrest, must a peace officer acting outside the officer’s territorial jurisdiction transfer custody to another officer who has jurisdiction?

In Montana, as in most states, a peace officer may lawfully make an arrest outside of the officer’s jurisdiction if a private citizen could have made a lawful arrest under the circumstances. State v. McDole (1987), 226 Mont. 169, 172, 734 P.2d 683, 685. In this case, the stop occurred approximately four and one-half miles outside Chinook’s city limits. Officer Gomke could, therefore, make a lawful arrest by following the requirements for a citizen’s arrest.

In 1991 the legislature revised the citizen’s arrest statute to read as follows:

(1) A private person may arrest another when there is probable cause to believe that the person is committing or has committed an offense and the existing circumstances require the person’s Immediate arrest.
(2) A private person making an arrest shall immediately notify the nearest available law enforcement agency or peace officer and give custody of the person arrested to the officer or agency.

Section 46-6-502, MCA.

The validity of the stop and Officer Gomke’s authority to make a citizen’s arrest are not contested in the present case. Petitioner contends that his arrest was unlawful because Officer Gomke did not transfer custody of petitioner to another officer. We hold that, under the circumstances, Officer Gomke did not have to transfer custody to effectuate a valid citizen’s arrest.

Section 46-6-502(2), MCA, requires that a person making a citizen’s arrest immediately notify either the nearest available law enforcement agency or peace officer. Officer Gomke chose to notify the nearest law enforcement agency — the Blaine County sheriff’s office in Chinook.

As required by § 46-6-502(2), MCA, Officer Gomke radioed the Blaine County dispatcher immediately after making the arrest. Officer Gomke promptly transported petitioner to the Blaine County sheriff’s office for booking. As soon as Officer Gomke entered the Chinook city limits he was within his jurisdiction and it would make no sense to require Officer Gomke to transfer his prisoner to another officer who also had jurisdiction.

Officer Gomke was a peace officer with jurisdiction in the city of Chinook. The Blaine County sheriff’s department is in Chinook. Officer Gomke notified the sheriff’s department and promptly transported his prisoner to the sheriff’s department. He therefore did not need to formally transfer custody to a deputy sheriff to make a lawful citizen’s arrest.

II

Do the implied consent statutes apply when the arresting officer made a lawful citizen’s arrest outside the officer’s territorial jurisdiction?

Suspension or revocation of a driver’s license pursuant to the implied consent statute is a civil administrative sanction, not a criminal penalty. Petition of Burnham (1985), 217 Mont. 513, 518, 705 P.2d 603, 607 (citing cases). The purpose of suspending a person’s driving privileges is not punishment, rather it is to protect the unsuspecting public. In re France (1966), 147 Mont. 283, 288, 411 P.2d 732, 734; Blake v. State (1987), 226 Mont. 193, 197, 735 P.2d 262, 264. The court should not interpret a statute so as to defeat its purpose, rather it should achieve the social purpose for which the statute was enacted. Montana Talc Co. v. Cyprus Mines Corp. (1987), 229 Mont. 491, 498, 748 P.2d 444, 449. This conforms to Section 1-2-103, MCA, which provides that statutes “are to be liberally construed with a view to effect their objects and to promote justice.”

The implied consent statute, Section 61-8-402, MCA, states:

(1) Any person who operates or is in actual physical control of a vehicle upon ways of this state open to the public shall be deemed to have given consent... to a test of his blood, breath, or urine for the purpose of determining any measured amount or detected presence of alcohol in his body if arrested by a peace officer for driving or for being in actual physical control of a vehicle while under the influence of alcohol.... The test shall be administered at the direction of a peace officer having reasonable grounds to believe the person to have been driving or in actual physical control of a vehicle upon ways of this state open to the public, while under the influence of alcohol.... The arresting officer may designate which test or tests shall be administered.
(3) If a driver under arrest refuses upon the request of a peace officer to submit to a test designated by the arresting officer as provided in subsection (1), none shall be given, but the officer shall, on behalf of the department, immediately seize his driver’s license. [Emphasis added.]

Section 61-8-402, MCA.

Petitioner contends that the implied consent statute requires an arrest by a peace officer and that a peace officer request the suspect to submit to a chemical test. We agree.

Petitioner further contends that Officer Gomke lost his status as a peace officer when he made a citizen’s arrest outside of his territorial jurisdiction. We disagree.

A peace officer is “any person who by virtue of the person’s office or public employment is vested by law with a duty to maintain public order and make arrests for offenses while acting within the scope of the person’s authority.” Section 46-1-202(17), MCA. A person who is employed as a law enforcement officer falls within this definition even when outside the geographical area in which the officer has jurisdiction. A person is a peace officer by virtue of holding the particular job.

A law enforcement officer is in fact still a peace officer even when making an arrest under authority of the citizen’s arrest statute. Montana’s implied consent statute makes no reference to the jurisdiction of the arresting officer. It merely requires an arrest by a peace officer.

Once Officer Gomke left his jurisdiction he could make arrests only as a private person. To sustain the suspension of a driver’s license, however, it makes no difference that Officer Gomke acted under the authority granted to a citizen when making the arrest because he was a peace officer in fact.

Officer Gomke, a peace officer, lawfully arrested petitioner and requested that he take a breathalyzer test. Therefore, the implied consent statute applies in this case. As required by Section 61-8-403, MCA, and case law, the State proved that: (1) a peace officer had reasonable grounds to believe petitioner was driving -under the influence of alcohol, (2) a peace officer placed petitioner under lawful arrest, (3) petitioner refused a peace officer’s request to take an alcohol detecting test. See Matter of Suspension of Driver’s License of Blake (1986), 220 Mont. 27, 31, 712 P.2d 1338, 1341.

The District Court, therefore, properly sustained the revocation of petitioner’s driving privileges. Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT, TRIEWEILER, GRAY and WEBER concur.


text:
    DEBRA O’LEYAR, Plaintiff and Respondent, v. DENNIS B. CALLENDER, M.D., Defendant and Appellant.
    No. 92-191.
    Submitted on Briefs August 27, 1992.
    Decided December 1, 1992.
    49 St.Rep. 1008.
    255 Mont. 277.
    843 P.2d 304.

      For Defendant and Appellant: Bruce R. Toole and John T. Dyre, Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
    For Plaintiff and Respondent: John C. Hoyt and Alexander Blewett, HI, Hoyt & Blewett, Great Falls.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from an Eighth Judicial District Court, Cascade County jury trial award of $2,000,000 in a medical malpractice action. We affirm.

There are several issues on appeal:

1. Did the trial court err in disallowing expert opinion testimony by Dr. Davis?

2. Did the trial court err in admitting the photographs of the pathology slides?

3. Was there improper jury voir dire?

4. Were improper comments made by the trial court?

5. Did the trial court err regarding the direct examination of Dr. Callender?

6. Did the trial court properly instruct the jury?

7. May Callender impeach the jury verdict through affidavits?

Debra O’Leyar (Ms. O’Leyar) is a woman with Hidradenitis Suppurativa (HS), a disease of the apocrine glands. HS results in abscesses and boils which can be quite uncomfortable or painful. When Ms. O’Leyar went to her gynecologist, Dr. Dennis Callender (Dr. Cal-lender), in July of 1988 for her regular yearly checkup, she was suffering from the symptoms of HS. Dr. Callender noticed an HS lesion and the two discussed treatment for the outbreak of HS. Dr. Callender referred Ms. O’Leyar to Dr. Baldridge, a Great Falls dermatologist, who referred her back to Dr. Callender.

Dr. Callender ultimately performed laser surgery on Ms. O’Leyar to remove areas of HS infection. The night before surgery, as instructed by Dr. Callender, Ms. O’Leyar used a magic marker to mark the places in her groin area where she could feel HS. There was a dispute concerning whether Dr. Callender excised the area that Ms. O’Leyar marked or a larger area. The surgery was conducted and thereafter, Ms. O’Leyar had severe complications, resulting in anal stenosis and fecal incontinence.

I

Did the trial court err in disallowing expert opinion testimony by Dr. Davis?

Dr. Davis, Callender’s chief expert, was not allowed to give testimony concerning nerve damage affecting the sphincter muscle. Upon Callender’s counsel asking the following question, O’Leyar’s counsel objected: “If the testimony was that Dr. Callender injured nerve fibers, and that the injury of these nerve fibers rendered the entire surface of the nerve — service of the nerve to the sphincter muscle making it dysfunctional, would you agree or disagree?” O’Leyar’s counsel requested voir dire to establish a foundation for Davis to testify concerning the sphincter muscle. O’Leyar contended that because of Davis’ earlier deposition statement, he was incompetent to testify regarding the sphincter muscle. Dr. Davis had previously stated that “the sphincter muscle is a very complex system, which I have not studied in a long time, so, I am sorry, I am incompetent in that area.”

Callender’s counsel argued that the question was permissible because he was actually asking questions about the pudendal nerve, which services the sphincter muscle. The court, however, concluded Dr. Davis was incompetent in this area by his own admission and could not testify in that particular area. Callender’s counsel requested to make an offer of proof and this was done in chambers.

Was Dr. Davis incompetent to testify regarding the sphincter muscle? Even though Dr. Davis may deal with the pudendal nerve in his work, he was asked to talk about the nerve in its relation to the sphincter muscle. Dr. Davis specifically stated that he was incompetent to testify concerning the sphincter muscle. “[T]he party presenting a witness as an expert must establish, to the satisfaction of the trial court, that the witness possesses the requisite knowledge, skill, experience, training, and education to testify as to the diagnosis and treatment in question....” Glover v. Ballhagen (1988), 232 Mont. 427, 430, 756 P.2d 1166, 1168. “[T]he determination of the qualification of a skilled or expert witness is a matter largely within the discretion of the trial judge and, in the absence of a showing of abuse, ordinarily will not be disturbed.” Goodnough v. State (1982), 199 Mont. 9, 18, 647 P.2d 364, 369. We conclude the trial court did not abuse its discretion.

II

Did the trial court err in admitting photographs of the pathology slides?

Pathologist, Dr. Dachs, made slides of the tissue removed from Ms. O’Leyar shortly after the laser procedure and issued a pathology report concerning the tissue slides. At a later date, Ms. O’Leyar’s attorney contacted Dr. Dachs and asked him to review the slides for the presence of nerve fibers or muscle bundle. Dr. Dachs viewed the slides again and reported to Ms. O’Leyar’s counsel, via a letter, stating that he had seen nerve fibers and muscle bundles in the slides. Ms. O’Leyar’s counsel asked Dr. Dachs to take photographs of the slides for use at trial.

Callender’s counsel states that he learned about the letter and photographs of the slides dining the deposition of Dr. Scott on October 21, 1991. Ms. O’Leyar’s use of those photographs became an issue in chambers during the course of the trial. During this recess in chambers, Callender’s counsel stated that he made copies of the photographs within a few days to a week of Dr. Scott’s deposition and sent them to Dr. Davis. The court responded to counsel’s statement by saying “that’s 3 weeks.” Callender’s counsel responded “I am not complaining about that, I am complaining about Zander’s attack on him (Davis) and trying to impeach him for having a slightly different opinion when he did his deposition, because the slides weren’t available and that’s not fair.” The court concluded that Callender’s counsel could rehabilitate Dr. Davis by explaining that he did not have the slides when he gave his opinion during his deposition. Callender’s counsel was amenable to this and no further objection was heard.

However, by Callender’s counsel’s own admission, the photos were known and available to him within at least 15 days before trial. According to the pretrial order, dated August 6, 1991, the trial was rescheduled and all discovery was to “be completed 15 days prior to the trial.” Even if it took Callender’s counsel a week to prepare copies of the photographs, the pictures would have been available to the defense 15 days before trial and within the calendar scheduled in the pretrial order.

III

Did the court allow improper voir dire?

Ms. O’Leyar’s counsel discussed Ms. O’Leyar’s HS condition, her past successful treatment of that condition and Dr. Callender’s treatment of the HS by using laser surgery. He also related that Dr. Callender had never before used laser surgery for this type of procedure. Also, he described the complications of the surgery and her current life as a result of those complications. These are the salient facts that form the basis for Ms. O’Leyar’s action against Dr. Cal-lender. The judge concluded that this voir dire was within acceptable limits. “It has long been held in this state and other jurisdictions that a trial judge has wide discretion in conducting voir dire.” State v. Poncelet (1980), 187 Mont. 528, 541, 610 P.2d 698, 706.

Callender also contends that it was prejudicial for Ms. O’Leyar’s counsel to relate to the jury that the judge had previously granted summary judgment on the issue of consent to remove Ms. O’Leyar’s hemorrhoid tags. (When Dr. Callender was operating on Ms. O’Leyar’s HS areas, he removed hemorrhoid tags near her anus as a “courtesy.”) This information streamlined the issues for the jury and made them aware that they did not have to consider whether the doctor had his patient’s consent to remove her hemorrhoid tags - this issue had been previously decided. We conclude the trial judge did not err in his handling of the voir dire.

IV

Were improper comments made by the trial court?

Rule 103(a)(1), M.R.Evid., states that "... Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1)... [i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context...” In this case, there was only one objection to a comment made by the judge.

This objection was made to a comment which occurred during cross examination of Dr. Davis. Dr. Davis was asked his opinion concerning the depth of Dr. Callender’s surgery for the HS. Dr. Davis asked if he could use the slides to answer the question. The court replied, “Just answer the question.” Callender’s counsel then stated, “We object to that, Your Honor.” Counsel made no attempt to explain the objection or to put the judge on notice that his comments might be reviewed on appeal.

Furthermore, Rule 611(a)(2), M.R.Evid., states “... [t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to ... (2) avoid needless consumption of time.” It is within the judge’s discretion to adjust the tempo and flow of the proceedings.

V

Did the trial court err regarding the direct examination of Dr. Callender?

Although Callender’s attorney argues that it was error to preclude examination of Dr. Callender by his attorney directly after he was examined as an adverse witness by Ms. O’Leyar’s attorney, he made no objection to the court’s action at the time. “This Court has made it clear that where a defendant does not object at trial to the remarks and conduct of the trial judge, the issue will not be considered upon appeal.” State v. Martin (1987), 226 Mont. 463, 467, 736 P.2d 477, 480.

Furthermore, Rule 611, M.R.Evid., states that “[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to ... (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time .... ” The Commission Comments on the rule state that “order of presentation refers to the alteration of the normal order of presentation of evidence by the parties at the discretion of the court.” (Emphasis added.)

Further comments to Rule 611, M.R.Evid. suggest that the order of trial is a matter of discretion for the court, and has been since R.C.M. 93-1901-9 and cases interpreting the statutes. Wyant v. Dunn (1962), 140 Mont. 181, 368 P.2d 917, remains as viable today as it did when it was written.

In Wyant, the Court concluded that the trial court did not abuse its discretion when it denied the defendant the right to reexamine the defendant immediately after an adverse examination by the plaintiff. The defendant was called by his counsel later that day and he was examined fully as to his examination as an adverse witness. Wyant, 368 P.2d at 920-921.

The trial court may use its discretion to rearrange the order of the trial. In fact, Callender was called the very next day and was given a full opportunity to provide testimony and evidence to support his case as well as to counter the plaintiff’s case.

VI

Did the trial court properly instruct the jury?

Callender argues that the “mere fact of injury” instruction should have been given to the jury because there was no instruction given to prevent the jurors from believing “that because the injuries were so severe, there must have been negligence.” Ms. O’Leyar counters that the instructions provided still made her prove that Callender “violated the standard of care described in these instructions or that he failed to obtain informed consent” and that these instructions set forth appropriate Montana law and were not objected to at trial.

We conclude that the jury instructions were properly given. Instruction 11 states “[pjlaintiff contends that through his failure to provide proper care in operating on plaintiff, that defendant was negligent, and this negligence caused her damages. In this regard, plaintiff has the burden or proving:

“(1) That the defendant was negligent.
“(2) That the plaintiff was injured.
“(3) That defendant’s negligence was a proximate cause of plaintiff’s damage.
“(4) The amount of money that will compensate the plaintiff for her damage.”

This instruction Informs the jury that if the defendant fails to provide “proper care” to the plaintiff, then he has been negligent. It establishes a threshold over which the plaintiff’s proof must pass before the doctor is considered “negligent.” This threshold is clearly more than presenting a severe injury and expecting the jury to believe that the injury must be the result of negligence merely because of its severity. The plaintiff must prove that the doctor did not provide “proper care.”

Instruction 13 provides: “[fit is the doctor’s duty to use that skill and learning as ordinarily used in like cases by other doctors practicing in that same specialty and who hold the same national board certification, at the time the services were provided. The violation of this duty is negligence.” This instruction also supports the argument that the defendant is not negligent unless he fails to give proper care and uses skills comparable to other doctors in good standing.

Instruction 17 advises the jury that the proper test for determining negligence in a doctor’s actions is “whether the doctor’s performance met the accepted standards of skill and care . . .” The instructions given were sufficient.

VII

May Callender impeach the jury verdict through affidavits?

Rule 606 concerns the competency of juror as witness and is at issue here. Rule 606 (b), M.R.Evid. provides:

(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
However, as an exception to this subdivision, a juror may testify and an affidavit or evidence of any kind be received as to any matter or statement concerning only the following questions, whether occurring during the course of the jury’s deliberations or not: (1) whether extraneous prejudicial information was improperly brought to the jury’s attention; or (2) whether any outside influence was brought to bear upon any juror; or (3) whether any juror has been induced to assent to any general or special verdict, or finding on any question submitted to them by the court, by a resort to the determination of chance.

Callender contends that the jury considered extraneous matters during its deliberations and therefore, the case should be remanded for a new trial. We disagree with Callender.

Rule 606(b) contemplates that a juror may not testify upon matters occurring during the jury’s deliberations or anything upon his or other juror’s minds, emotions or mental processes that is connected with reaching a decision on the verdict. The rule is concerned with extraneous information brought to the attention of the jury. Examples of extraneous information include: comments by the bailiff, telephoning a relative for information, and visiting the scene of an accident. See Henrichs v. Todd (1990) 245 Mont. 286, 800 P.2d 710; Schmoyer v. Bourdeau (1966), 148 Mont. 340, 420 P.2d 316; Goff v. Kinzle (1966), 148 Mont. 61, 417 P.2d 105.

However, in this case, we are not concerned with extraneous information — there is no allegation that someone outside of the jurors discussed jury issues with the jurors. What the defendant wants this Court to consider are the internal mechanisms of the jurors’ decision making process. This is improper according to Rule 606(b), M.R.Evid., which does not allow juror testimony regarding the thought processes of the jurors during deliberation.

“Internal” processes are out of the reach of juror affidavits which impeach the jury verdict. As we stated in Harry v. Elderkin (1981), 196 Mont. 1, 8, 637 P.2d 809, 813, “[wjhere external influence is exerted on the jury or where extraneous prejudicial information is brought to the jury’s attention, juror affidavits can be the basis for overturning the judgment if either party was thereby deprived of a fair trial. ... (Citations omitted.) On the other hand, juror affidavits may not be used to impeach the verdict based upon internal influences on the jury, such as a mistake of evidence or misapprehension of the law.” (Emphasis added.)

AFFIRMED.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT and TRIEWEILER concur.


author: CHIEF JUSTICE TURNAGE

text:
    IN THE MATTER OF THE ESTATE OF BERGER O. MEBUST, Deceased.
    No. 92-316.
    Submitted on Briefs November 5, 1992.
    Decided December 1, 1992.
    49 St.Rep. 1019.
    255 Mont. 287.
    843 P.2d 310.

      For Appellant: Matthew W. Knierim and Francis Gallagher, Gallagher, Archambeault & Knierim, Glasgow.
    For Respondent: Warren C. Wenz and Kirk D. Evenson, Marra, Wenz, Johnson & Hopkins, Great Falls; Keith Maristuen, Bosch, Kuhr, Dugdale, Martin & Kaze; Waldo Spangelo and James Spangelo, Spangelo Law Firm, Havre.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Kristina Hanson, a niece of decedent Berger O. Mebust, appeals from an order of the District Court for the Twelfth Judicial District, Hill County, concerning distribution of Mebust’s estate. We affirm.

The issue is: How does representation occur under Montana law when the only surviving heirs of an intestate decedent are the children and grandchildren of predeceased brothers and sisters?

Berger O. Mebust died intestate in February 1991. He left no surviving spouse or parents and had no children. He had three brothers, Pete, Hans, and Einar, and one sister, Lillian, all of whom predeceased him.

Pete had two children, both of whom are deceased, one leaving three children who survive and another leaving four children who survive. Hans had three children, all of whom survive. Einar had one child who survives. Lillian had five children, four of whom survive and one who is survived by a child.

In October 1991, the District Court entered an order indicating its intent to divide the estate into eleven equal shares, one for each of Mebust’s nieces and nephews. It further indicated its intent to distribute a one-eleventh share to each of the eight surviving nieces and nephews and to divide the one-eleventh share of each of the three deceased nieces and nephews among his or her surviving children. The court allowed any interested person to argue why a different distribution should be made.

Four of the heirs, including appellant Kristina Hanson, petitioned the court to divide the estate into four equal shares, one for each of Mebust’s brothers and sister, and to distribute the estate to the issue of such deceased sibling based on such sibling’s one-fourth share. Under that scheme of distribution, Hanson, as the only child of Einar, would receive a one-fourth, rather than a one-eleventh, share of the estate.

After considering the arguments, the District Court reaffirmed its decision that under Montana’s statutes, the distributable estate should be divided into eleven shares. The court certified its decision pursuant to Rule 54(b), M.R.Civ.R, to allow for immediate appeal to this Court.

Section 72-2-203, MCA, the applicable intestate succession statute, provides:

The part of the intestate estate not passing to the surviving spouse under 72-2-202, or the entire intestate estate if there is no surviving spouse, passes as follows:
(3) if there is no surviving issue or parent, to the brothers and sisters and the children or grandchildren of any deceased brother or sister, by representation;
(4) if there is no surviving issue, parent, brother, sister, or children or grandchildren of a deceased brother or sister, to the next of kin in equal degree, except that where there are two or more collateral kindred in equal degree but claiming through different ancestors, those who claim through the nearer ancestors must be preferred to those claiming through an ancestor more remote.

The District Court ruled that subsection (3) applies in this case. Hanson argues that both subsection (3) and subsection (4) apply.

Hanson supports her interpretation with an argument concerning the legislative intent and history of Section 72-2-203, MCA. However, Montana has long recognized that where the language of a statute is clear and unambiguous, other rules of statutory construction do not apply. See, e.g., State ex rel. Swart v. Casne (1977), 172 Mont. 302, 307, 564 P.2d 983, 985-86.

By its clear and unambiguous terms, subsection (4) of Section 72-2-203, MCA, applies only if there are no surviving “issue, parent, brother, sister, or children or grandchildren of a deceased brother or sister.” In this case, as the District Cotut pointed out, there are surviving children and grandchildren of Mebust’s deceased brothers and sister. Therefore, we conclude the District Court was correct in applying only subsection (3).

The District Court applied the definition of “representation” provided at Section 72-2-204, MCA:

If representation is called for by this code, the estate is divided into as many shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent, each surviving heir in the nearest degree receiving one share and the share of each deceased person in the same degree being divided among his issue in the same manner.

Hanson claims the specific provisions of subsections (3) and (4) of Section 72-2-203, MCA, override the above definition of “representation.” Relying on her argument concerning legislative intent, she asserts those provisions declare that the children or grandchildren of any deceased brother or sister will take the share their parent would have taken had the parent survived the decedent.

We have stated that clear statutory language controls over other rules of statutory construction and that subsection (4) does not apply in this case. Subsection (3) does not define “by representation,” but the clear language of Section 72-2-204, MCA, does, and applies wherever “representation is called for by this code.” Hanson’s argument therefore fails.

Applying Section 72-2-204, MCA, to this case, the nearest degree of kinship in which there are surviving heirs is that including Mebust’s nieces and nephews. Therefore, we hold that the District Court was correct in dividing the estate into equal shares for the nieces and nephews and, where the niece or nephew predeceased Mebust, dividing that person’s share among his or her issue.

Affirmed.

JUSTICES HUNT, TRIEWEILER, McDONOUGH and WEBER concur.


author: JUSTICE HUNT

text:
    DAVID A. KREBS, Plaintiff and Appellant, v. RYAN OLDSMOBILE, Defendant and Respondent.
    No. 92-251.
    Submitted on Briefs September 10, 1992.
    Decided December 1, 1992.
    49 St.Rep. 1016.
    255 Mont. 291.
    843 P.2d 312.

      For Plaintiff and Appellant: W. Scott Green, Billings.
    For Defendant and Respondent: Steven J. Lehman, Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
   JUSTICE HUNT

delivered the opinion of the Court.

Plaintiff David A. Krebs brought a wrongful discharge from employment action in the District Court of the Thirteenth Judicial District, Yellowstone County, against defendant Ryan Oldsmobile. Both parties brought motions for summary judgment. The District Court granted Ryan Oldsmobile’s motion for summary judgment and denied Krebs’ motion. We affirm in part and reverse in part.

We phrase the issues before the Court as follows:

1. Did the District Court err in granting Ryan Oldsmobile’s motion for summary judgment?

2. Did the District Court err in denying Krebs’ motion for summary judgment?

David A. Krebs was employed by Ryan Oldsmobile from July 25, 1989, until January 10,1990, when he was discharged. On January 4, 1990, Krebs provided information to the Montana Criminal Investigation Bureau (MCIB) concerning alleged illegal drug activity by several employees of Ryan Oldsmobile. At this time, Krebs agreed to continue to provide information on illegal activity at Ryan Oldsmobile and to attempt to pinchase illegal drugs from the employees of Ryan Oldsmobile who were allegedly selling drugs. There is no evidence indicating that Krebs was to be paid for providing this information.

On January 9, 1990, a vehicle owned by a known fugitive from justice was dropped of at Ryan Oldsmobile. Krebs called the MCIB and informed them of the vehicle. Sometime after Krebs made the call to MCIB, Dick Ryan of Ryan Oldsmobile pressed the redial button on the phone Krebs had used and learned that Krebs had called a law enforcement agency.

The following day, January 10, 1990, Dick Ryan and Pat Ryan, along with several employees of Ryan Oldsmobile schemed to “set up” Krebs. Pat Ryan announced that he was going to meet the fugitive at a local business in the vicinity of Ryan Oldsmobile. The purpose of this scheme was apparently to determine if Krebs would report to law enforcement information regarding this fictitious meeting with the fugitive. Krebs did phone the MCIB and informed them that Pat Ryan would be meeting at a nearby business establishment with the fugitive. An employee of Ryan Oldsmobile hit the redial button on the phone used by Krebs and learned that Krebs had again called a law enforcement agency. The employee informed Pat Ryan who immediately sought out Krebs and fired him.

The scheme devised by Pat Ryan to confirm his belief that Krebs would report illegal activity if given the chance also got Mr. Ryan into trouble with law enforcement officials and federal prosecutors. Acting on this information, law enforcement personnel surrounded the local business establishment in an attempt to capture the fugitive. They did not capture anyone.

On January 11,1990, one day after he had been fired, Krebs called Pat Ryan. The telephone conversation was recorded and the following is a transcript of that conversation:

Krebs: How are you doing? Hey, I am wondering what the deal is here. What, you’re so upset about, what is, you know, what’s the story here, as far as, as me working? What’s, what’s up?
Ryan: Well, number one is the misuse of the dealer plate, Dave. You know that you can’t run dealer plates on your, on your truck. Number two, you’re a [expletive deleted] snitch and we don’t want you around here, basically.
Krebs: How’s that? I mean, I don’t...
Ryan: Every time we make a move, you call the [expletive deleted] FBI. We caught you [expletive deleted] redhanded twice.
Krebs: I’m sorry, you’re wrong.
Ryan: You ... (unintelligible) ... Well, I know that I’m not wrong, Dave. No matter what you say, I know you’re [expletive deleted] boldfaced lying.
Krebs: Uh...
Ryan: I set you up yesterday, partner. You went over to the service department, you made a phone call, we hit redial after you left and it was some federal crime bureau. The same thing happened the night before when Dick and Alisse set you up, Dave. You went into Harkin’s office. After you left Dick hit redial, same [expletive deleted] group of people. It’s funny how I walk out and the place is surrounded by FBI agents. I laughed my [expletive deleted] off, and there you were watching all the action. You come get your [expletive deleted] check, get your plate back and I need your key too. That’s all I have to say to you.
Krebs: Uh...
Ryan: Tell... Tell Carl nice try.
Krebs: That doesn’t make ....

Krebs brought a wrongful discharge from employment action on September 10, 1990. Ryan Oldsmobile alleged that Krebs did not get along with other employees, that he disrupted the operation, and that various other legitimate business reasons existed which justified Krebs’ discharge. The District Court granted Ryan Oldsmobile’s motion for summary judgment and denied Krebs’ motion for summary judgment.

I

Did the District Court err in granting Ryan Oldsmobile’s motion for summary judgment?

A district court judge may grant summary judgment when: [T]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.

Sherrodd, Inc. v. Morrison-Knudsen Co. (1991), 249 Mont. 282, 284, 815 P.2d 1135, 1136; Rule 56(c), M.R.Civ.P The party moving for summary judgment has the initial burden of showing that there is a complete absence of any genuine issue of material fact. To satisfy this burden, the movant must make a clear showing as to what the truth is so as to exclude any real doubt as to the existence of any genuine issue of material fact. Kober v. Stewart (1966), 148 Mont. 117, 417 P.2d 476. Summary judgment is never an appropriate substitute for a trial if a factual controversy exists. Reaves v. Reinbold (1980), 189 Mont. 284, 615 P.2d 896. If there is any doubt as to the propriety of a motion for summary judgment, it should be denied. Rogers v. Swingly (1983), 206 Mont. 306, 670 P.2d 1386. Upon reviewing a grant or denial of a motion for summary judgment, this Court applies the same standard as the district court.

Krebs brought an action claiming that his termination from employment violated the Montana Wrongful Discharge From Employment Act (Wrongful Discharge Act) found at Section 39-2-901 through 914, MCA. Section 39-2-904, MCA, of the Wrongful Discharge Act sets forth the elements of wrongful discharge, and provides that:

A discharge is wrongful only if:

(1) It was in retaliation for the employee’s refusal to violate public policy or for reporting a violation of public policy;
(2) The discharge was not for good cause and the employee had completed the employer’s probationary period of employment; or
(3) The employer violated the express provisions of its own written personnel policy.

The clear and unambiguous language of the statute provides that proof of any one of the three elements will support a wrongful discharge action. The elements of the statute applicable to Krebs’ claim of wrongful discharge were correctly set out by the District Court in its order and memorandum granting summary judgment to Ryan Oldsmobile. The District Court stated that:

In the present case, Krebs concedes that Ryan did not violate the express provisions of a written personnel policy since it had none, nor was he a probationary employee. Therefore, in order for Kreb’s [sic] to establish a claim under Montana’s wrongful discharge act he must prove that his discharge was was [sic] not for good cause or that his discharge was in retaliation for reporting a violation of public policy.

The District Court then determined that Krebs failed to present any genuine issues of material fact which would preclude summary judgment on Ryan Oldsmobile’s contention that the discharge was for good cause. The District Court also granted summary judgment to Ryan Oldsmobile on the issue of whether Krebs’ termination was in retaliation for reporting a violation of public policy. The court stated that although “a good faith reporting of a statutory violation which never occurs or is unfounded can serve as a basis for a wrongful discharge claim,” summary judgment was appropriate in this situation. The court concluded that due to the nature of Krebs’ conduct in this case he was not protected by the Wrongful Discharge Act. The court added that even if Krebs’ conduct was covered by the Wrongful Discharge Act, there was no question that he was not discharged in retaliation for reporting a violation of public policy.

We will first consider the court’s summary judgment order in favor of Ryan Oldsmobile on the issue of good cause. Section 39-2-903(5), MCA, provides that:

“Good cause” means reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer’s operation, or other legitimate business reason.

Ryan Oldsmobile presented evidence to the District Court which, if proven to be true, could support their contention that Krebs was discharged for good cause. However, Krebs also presented evidence tending to show that he was not discharged for good cause. The evidence offered by Krebs clearly presents a genuine issue of material fact which remains to be determined, thus precluding summary judgment on the issue of whether good cause existed for the discharge.

The District Court then recognized that the Wrongful Discharge Act protects a good faith “whistle blower.” However, the court stated that the Wrongful Discharge Act would not cover “a paid government agent (-undercover police officer) whose sole purpose is to investigate and report public policy violations to their primary employer.” The court concluded that Krebs’ status was more akin to that of an undercover police officer, and therefore, the statute forbidding termination of an employee for the reporting of a violation of public policy did not apply to Krebs. We disagree. Krebs was clearly an employee as defined in Section 39-2-903(3), MCA. Krebs approached law enforcement in order to volunteer information. He was not sought out or placed by law enforcement. Krebs was not promised remuneration. Krebs provided information on only three occasions. Krebs’ relationship with law enforcement lasted a total of six days. Finally, Krebs was paid a grand total of $40 for the information provided and this sum was paid several weeks after he was discharged. To hold that an individual who provides information concerning violations of public policy will not be covered by the Wrongful Discharge Act if they agree to cooperate, even minimally with law enforcement, would be to thwart the very purpose of the statute. The statute states that a discharge in retaliation for reporting a violation of public policy is a wrongful discharge. Krebs’ conduct was protected ■under the Wrongful Discharge Act.

In this case, the recorded telephone conversation, by itself, is sufficient to create a genuine issue of material fact as to whether Krebs was discharged in retaliation for reporting a violation of public policy. Summary judgment was not appropriate in light of the contested factual issues.

Summary judgment is proper when there is no genuine issue of material fact as to whether an employee was discharged for good cause or in retaliation for reporting a violation of public policy. However, in this case there are genuine issues of material fact which remain to be decided by the trier of fact. The District Court’s granting of summary judgment to Ryan Oldsmobile is reversed.

II

Did the District Court err in denying Krebs’ motion for summary judgment?

Ryan Oldsmobile denies that Krebs was wrongfully discharged and argues that numerous reasons existed which justified Krebs’ discharge. Ryan Oldsmobile has raised genuine issues of material fact which are in dispute relating to Krebs’ discharge and which are clearly sufficient to survive Krebs’ motion for summary judgment. The District Court’s denial of Krebs’ motion for summary judgment is affirmed.

This matter is affirmed in part and reversed in part and remanded to the District Court for a trial to determine whether Krebs was discharged for “good cause” and for a determination of whether Krebs was discharged in retaliation for reporting a violation of public policy.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, McDONOUGH and WEBER concur.


author: JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOHN MICHAEL SHAW, Defendant and Appellant.
    No. 92-236.
    Submitted on Briefs October 8, 1992.
    Rehearing Denied January 5, 1993.
    Decided December 1, 1992.
    49 St.Rep. 1012.
    255 Mont. 298.
    843 P.2d 316.

      For Defendant and Appellant: S. Charles Sprinkle, Douglas & Sprinkle, Libby.
    For Plaintiff and Respondent: Marc Racicot, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; and Scott Spencer, Lincoln County Attorney, Libby.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Nineteenth Judicial District, Lincoln County, the Honorable Robert S. Keller presiding. Appellant John Michael Shaw (Shaw) appeals from a judgment entered on a jury verdict finding him guilty of conspiracy to sell dangerous drugs, a felony, in violation of Section 45-4-102, MCA. We reverse and remand.

The issues are:

1. Did the District Court err in allowing rebuttal testimony over defense counsel’s objections that the testimony violated the notice requirements of State v. Just (1979), 184 Mont. 262, 602 P.2d 957, as modified in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52 (the Modified Just Rule), and that the testimony exceeded the scope of cross-examination?

2. Did the District Court err in refusing Shaw’s Proposed Jury Instruction No. 21?

The Lincoln County Sheriff’s Office conducted an undercover drug investigation from September 1990 to May 1991. Kline Gassett served as the primary detective in the investigation and Hal Turner served as the undercover agent. During the course of that investigation, the sheriff’s office obtained sufficient evidence to charge Rodney Reynolds (Reynolds). In order to further the investigation, Gassett offered Reynolds a deal in which Reynolds would work as an agent for the sheriff’s office in return for a recommended suspended sentence and a fine. Reynolds agreed.

The officers provided Reynolds with the names of people, including Shaw and Brian Kair, from whom they wanted Reynolds to try to purchase drugs. Reynolds and Shaw had known each other for a number of years. Reynolds did not know Kair well enough to approach him directly, so he decided to go through Shaw as a means of introduction because Shaw and Kair knew each other well.

Reynolds approached Shaw at the Libby softball fields after practice on May 2, 1991, and asked Shaw if he could get him a pound of marijuana or some cocaine. Reynolds testified at trial, “He [Shaw] said he’d check it out.” Shaw testified as follows:

I told him that the whole team was going to go down to the Mint and I was sure that there was somebody down there that would sell drugs, and that I could probably line him up with somebody that I knew on the team, or whatever.

After practice, Shaw went to the Mint with other team members because the Mint sponsored his softball team. Reynolds also went to the Mint later that day. When he entered the bar, he approached Shaw and the two of them went into the restroom for privacy. Shaw then left the restroom to get Kair. Up to that point Shaw had made no effort to contact anyone about the drugs. When Shaw and Kair returned to the restroom, Shaw told Kair that Reynolds wanted to buy some drugs. Reynolds and Kair then discussed drugs for ten to fifteen minutes. Although Shaw listened to the conversation, he did not take part in it. Reynolds and Kair agreed to meet at the Legion Bar two days later. Shaw did not make further contacts or participate in the deal after making the introduction.

Reynolds and Kair met at the Legion Bar on Saturday as they had planned. Kair did not have the drugs at that time, but set Sunday or Monday as a follow-up date. Reynolds then called Kair on Sunday to see if he could get a sample of the marijuana. Later that day he went to Kair’s residence where he gave Kair’s wife, Jenny, $400 as payment for a four ounce sample of marijuana. The marijuana was supposed to be delivered on Monday. This is the last time Reynolds had contact with any of the people involved.

On May 7, 1991, the Lincoln County Attorney filed a complaint charging Shaw with conspiracy to sell dangerous drugs, a felony, in violation of Section 45-4-102, MCA. A jury found Shaw guilty of the crime charged.

I

Did the District Court err in allowing rebuttal testimony over defense counsel’s objections that the testimony violated the notice requirements of State v. Just (1979), 184 Mont. 262, 602 P.2d 957, as modified in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52 (the Modified Just Rule), and that the testimony exceeded the scope of cross-examination?

During the trial, the State recalled Detective Gassett. During that portion of his testimony, Detective Gassett stated that a search warrant had been issued for the Kair residence. On cross-examination, defense counsel, Mr. Sprinkle, brought out the fact that a search warrant was not issued on Shaw’s residence.

Q. [By Mr. Sprinkle] And you never executed a search warrant on John’s house and recovered any drugs or paraphernalia, did you? A. We didn’t have any reason to do the search warrants on John’s house.

On redirect examination, the county attorney, Mr. Spencer, then elicited the following testimony from Detective Gassett.

Q. You were asked on cross some question about searching Shaw’s house. Did you hear that?
A. Yes.
Q. What was that question again?
A. Did we do a search warrant on Shaw’s residence, or why didn’t we do a search warrant.
Q. Looking for paraphernalia or something?
A. Yeah.
Q. And you did not, did you?
A. No, we did not.
Q. Does that mean you did not have reason to believe that, other than what Rodney Reynolds said, that Brian Shaw was involved in drugs?
A. John Shaw?
Q. John Shaw. I’m having a terrible time with these names. Dyslexia, I guess.
A. Just because we didn’t do a search warrant doesn’t mean anything.
Q. Did you in fact have other evidence that tends to show that John Shaw was involved in drugs?

At this point, Mr. Sprinkle objected to the question as, among other things, beyond the scope of cross-examination and prejudicial. In conference, Mr. Sprinkle argued that his line of questions to Detective Gassett went to show the jury that no evidence existed, other than the events of May 2, 1991, on which to charge Shaw with conspiracy. The State argued, and the court agreed, that Mr. Sprinkle had opened the door with his question about the search warrant.

When the questioning continued, the following exchange occurred:

Q. [By Mr. Spencer] Now, Kline, when we broke we were talking about — I’m not sure what we were talking about, but talking about the search warrant, and is that the only basis you had, or whatever. You recall that question?
A. Yes, sir.
Q. Now — and that is yes or no. Do you have other basis for your determinations that we’re talking about here with John Shaw?
A. Yes.
Q. Are those based on — is that based on information provided to you as part of this undercover operation by Hal Turner?
A. Yes.
Q. Is Hal Turner the 'undercover agent that was hired?
A. Yes, from September to May of’91.
Q. Right. I’m not sure if I ever asked that.

At this point Mr. Sprinkle objected to the testimony on the basis of lack of notice as required by Just. (We point out that the proper authority would have been Matt.) The District Court overruled this objection and Mr. Spencer continued.

Q. One additional question. Is this also based on documented information you have of several years ago?
A. Yes.
Q. Point of fact, eight years ago?
A. Yes.

We disagree with the District Court’s rulings on this matter. We find that this testimony exceeded the scope of cross-examination and was allowed in violation of the notice requirements of the Modified Just Rule.

Rule 611(d), M.R.Evid., governs the scope of redirect examination. It provides:

Re-examination and recall. A witness may be re-examined as to the same matters to which the witness testified only in the discretion of the court, but without exception the witness may be re-examined as to any new matter brought out during cross-examination ....

The trial court “has wide discretion in determining the scope and extent of re-examination as to the new matters brought out on cross-examination.” Cline v. Durden (1990), 246 Mont. 154, 161, 803 P.2d 1077, 1081; State v. Heaston (1939), 109 Mont. 303, 316, 97 P.2d 330, 336. We therefore look to whether the District Court abused its discretion by allowing the above testimony from Detective Gassett.

On cross-examination, Mr. Sprinkle asked a series of questions intended to show that no evidence existed, other than the introduction and conversation of May 2, 1991, to establish that Shaw was involved in this conspiracy to sell drugs. In doing so he merely asked Detective Gassett whether a search warrant had been issued for Shaw’s residence. Throughout the trial, he had not denied that Shaw was ever involved in drugs. However, the court determined that this line of questioning was intended to imply that Shaw’s involvement in this matter was purely coincidental. The court then ruled that Mr. Sprinkle opened the door to testimony about Shaw’s prior acts or wrongs of eight years ago.

The State relies on State v. Simtob (1975), 168 Mont. 495, 544 P.2d 1210, and State v. Mix (1989), 239 Mont. 351, 781 P.2d 751, in arguing that Mr. Sprinkle opened the door to this testimony. In Simtob, the defendant’s witness testified that the defendant did not use or traffic in drugs. On cross-examination the State was allowed to bring out the fact that the defendant had been in prison, and on rebuttal the State was allowed to present evidence that the defendant had a reputation as a major drug dealer in Montana. This Court upheld the District Court’s ruling that defense counsel had brought the defendant’s character and reputation in issue and that cross-examination and rebuttal testimony were proper.

In Mix, the defendant testified as to his general character as a peace loving man. This Court upheld the District Court’s ruling which allowed the State to present rebuttal testimony concerning the defendant’s prior attacks on the victim because the defendant had opened the door to evidence regarding his peaceful character. We do not find Simtob or Mix to be controlling.

We do not find that this single question regarding a search warrant can be construed as a suggestion that Shaw was innocent of all drug related activity or that it brought his character into issue. Therefore, the evidence was inadmissible under Rule 404(a)(1), M.R.Evid., which allows the State to rebut a defendant’s character evidence with its own evidence. As we hold that the State could not introduce character evidence on these facts, the rule noted in Mix, whereby evidence of other crimes, wrongs, or acts may be introduced under Rule 404(a)(1) without meeting the Just notice requirements, does not apply.

The State further argues that the requirements of Just (more accurately Matt) do not apply because Detective Gassett’s testimony did not constitute “other crimes” evidence under Rule 404(b), M.R.Evid. That rule provides:

Other crimes, wrongs, acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The State relies on State v. Sorensen (1990), 243 Mont. 321, 792 P.2d 363, where this Court rejected the defendant’s argument that a photograph of a person standing in a marijuana patch constituted other crimes evidence. The officer in that case testified that he thought the man in the picture was the defendant. In that case we noted that it is not a crime to stand in what appears to be a marijuana patch, the defendant took full advantage of his opportunity to argue to the jury that the man in the picture was not him, and the photo’s prejudicial effect was questionable in relation to all the other evidence presented at trial. In contrast, in the present case Detective Gassett was allowed to testify directly that he had documented evidence tending to show that Shaw was involved in drugs. This is more than a “mere suggestion of illegal or improper conduct” as argued by the State. It is an affirmative statement that the authorities had documented evidence of Shaw’s prior drug related activity. As such, Shaw was entitled to notice that the information would be brought out at trial.

We hold that the District Court abused its discretion by allowing the State to introduce this evidence.

II

Did the District Court err in refusing Shaw’s Proposed Jury Instruction No. 21?

Shaw was charged with violating the conspiracy statute. That statute provides:

45-4-102. Conspiracy. (1) A person commits the offense of conspiracy when, with the purpose that an offense be committed, he agrees with another to the commission of that offense. No person may be convicted of conspiracy to commit an offense unless an act in furtherance of such agreement has been committed by him or by a coconspirator.

Shaw sought to have the following instruction given to the jury:

“There can be no conspiracy between a defendant and one who only feigns acquiescence in a crime; however, if an undercover agent acts in conjunction with more than one person to violate a law, his participation will not preclude a conviction of the others for a conspiracy among themselves.”

During the settling of instructions, the State argued, and the court agreed, that “[y]ou can have a conspiracy between two people, one of which is an undercover agent who has no intention of breaking the law. That’s settled case law.” However, the State admits to the contrary in its brief, and cites extensive case law on the matter. It is well established that:

“There is neither a true agreement nor a meeting of the minds when an individual ‘conspires’ to violate the law with only one other person and that person is a government agent.” ... An individual must conspire with at least one bona fide co-conspirator to meet the formal requirements of a conspiracy.

United States v. Schmidt (9th Cir. 1991), 947 F.2d 362, 367 (citation omitted); United States v. Kelly (11th Cir. 1989) 888 F.2d 732 (it is legally impossible to conspire with a government agent); United States v. Giry (1st Cir. 1987), 818 F.2d 120 (it takes two to conspire and a government informer is not a true conspirator), cert. denied, 484 U.S. 855, 108 S.Ct. 162, 98 L.Ed.2d 116 (1987).

The State argues that the proposed instruction is only relevant in cases involving one defendant, and that it was not relevant in this case where there were two individuals other than the government agent involved — Shaw and Kair. We disagree given that the State argued on numerous occasions dining its closing argument that a conspiracy could have arisen between Shaw and Reynolds. That is not the law. Shaw was entitled to an instruction that limited the jury to finding a conspiracy between Shaw and Kair; in fact, the instruction was necessary given the State’s argument to the jury. The first part of this instruction serves that purpose. Furthermore, contrary to the State’s argument, the proposed instruction does encompass the situation where more than one individual and a government agent are involved. The second part of the instruction covers that situation.

We hold that the District Court erred in refusing to give Shaw’s Proposed Jury Instruction No. 21.

We reverse and remand for a new trial in conformity with the foregoing.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT, TRIEWEILER, WEBER and McDONOUGH concur.