No. 81-350
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
STATE OF MONTANA,
Plaintiff and Respondent,
VS.
NORMAN EYNAR HER-RA,
Defendant and Appellant.
Appeal from: District Court of the First Judicial District,
In and for the County of Lewis and Clark
Honorable Gordon Bennett, Judge presiding.
Counsel of Record:
For Appellant:
Skedd, Ashley, McCabe and Weingartner, Helena, Montana
J. Mayo Ashley argued, Helena, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Charles Graveley, County Attorney, Helena, Montana
Kevin Meek, Deputy County Attorney, argued, Helena, Montana
Submitted: February 22, 1982
Decided: April 15, 1982
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Defendant appeals from his jury conviction in the Lewis
and Clark County District Court, First Judicial District of
two counts of kidnapping and two counts of assault. He was
sentenced to ten years in Montana State Prison on each of
the kidnapping charges with the sentences to run consecutively,
and to six months in the Lewis and Clark County jail on each
of the assault charges, those sentences to run concurrently
with each other and with the prison sentences. For purposes
of parole eligibility, he was designated a dangerous offender.
The codefendant, his natural father Charles Leo Dyll,
was convicted of the same crimes and was sentenced to ten
years, all of which was suspended on the condition that he
commit himself to Fort Sheridan for alcohol treatment and
remain a law abiding citizen.
The following issues are raised on appeal:
1. Did the State fail to prove an essential element of
the crime of kidnapping?
2. Was defendant denied due process of law because the
District Court allowed the victims to make an in-court
identification when seven months had elapsed since they had
made "hazy" descriptions of him, when there had been no
pretrial lineup, and when their parents had pointed him out
to them during a break in voir dire?
3. Was defendant's right to a fair trial violated by
the District Court's refusal to instruct the jury that
there is a mandatory two year prison sentence for every con-
viction of kidnapping?
4. Was Herrera denied equal protection by the disparity
between his sentence and that of his codefendant?
5. Did the District Court err by designating Herrera a
dangerous offender?
-2-
On the evening of September 5, 1980, in Lincoln,
Montana, two girls (12 and 14 years old) were walking along
Highway 200 on their way to get an ice cream cone. They
heard a voice from the bushes call, "Come here, sweethearts,"
and as they attempted to run, a man grabbed them from behind.
While the man who grabbed the girls took them to Leo
Dyll's house, Dyll assisted him by prodding them along with
his cane. Once inside, the girls were ordered to sit down
while the two men drank wine and at one point, were overheard
discussing "having an orgy." When the girls refused to take
their clothes off, Dyll told the other man to "go get the
gun." He returned with a revolver and placed it on the
couch between himself and Dyll. The girls were never actually
threatened with the gun.
After an undetermined amount of time, one of the girls
was able to distract the men by "shuffling her feet" while
the other unlocked the door. They fled to the home of one
of their grandparents on the other side of town. When their
story was related to one girl's father, he went to Dyll's
house, forced his way in with two pistols, and held Dyll and
defendant Norman Herrera at gunpoint until police arrived
and arrested the men. A search warrant was issued, but no
gun was ever found.
Kidnapping. Defendant claims that the State did not
prove the use or threatened use of physical force, and
thereby failed to prove an essential element of the crime of
kidnapping. Section 45-5-302, MCA. His argument fails for
several reasons. The evidence definitely shows that the
girls were held in a place of isolation, which is sufficient
proof in itself. -
More importantly, the use of force was well
established by the evidence. The girls were physically
dragged to Dyll's residence, and once inside, were forced
into their chairs.
Furthermore, defendant's reliance on State v. LaMere
(1980), - Mont . -, 621 P.2d 462, 37 St.Rep. 1936 is
misplaced in this case. That case involved aggravated
assault, which does require a showing of reasonable apprehension
of serious bodily injury. No such showing is required to
sustain a conviction of kidnapping. That conviction is not
affected by the dismissal of aggravated assault charges or
by any testimony by the girls that they were not afraid.
Identification. Defendant next argues that he was
prejudiced by the identification procedure. His motion to
prohibit the State's complaining witnesses from identifying
him was denied on the first day of trial. During a break in
the subsequent voir dire, the girls were waiting with their
parents in a hallway when defendant was brought to the
courtroom. He was then pointed out by one of the parents,
thereby negating any possibility of in-court misidentification.
This is especially important because of the hazy nature
of the girls' descriptions. Although problems with identification
were recognized early, no request was ever made for a formal
lineup. The State had planned to conduct a lineup at the
trial, while the defense had considered seating defendant
inconspicuously in the courtroom. Both girls knew Dyll by
name and sight. Neither seems to have known the defendant,
although there is some evidence that one of them may have
previously seen him in Dyll's yard.
This Court applies a two-pronged test in these situations:
"First, was the identification procedure
impermissibly suggestive; and, second, if so,
did it under the totality of the circumstances
have such a tendency to give rise to a sub-
stantial likelihood of irreparable misidentification
that to allow the witness to make an in-court
identification would violate due process." State
v. Lara (1978), 179 Mont. 201, 205, 587 P.2d
930, 932.
Undoubtedly, the identification procedure here was
suggestive. Under the next step, we are guided by factors
set out in Neil v. Biggers (1972), 409 U.S. 188, 199-200, 93
Sect. 375, 382, 34 L.Ed.2d 401, 411, and quoted by this
Court in State v. Higley (1980), - Mont. , 621 P.2d
"We turn, then, to the central question, whether
under the 'totality of the circumstances' the
identification was reliable even though the
confrontation procedure was suggestive. As
indicated by our cases, the factors to be con-
sidered in evaluatinq the likelihood of mis-
identification include the opportunity of the
witness to view the criminal at the time of the
crime, the witness' degree of attention, the
accuracy of the witness' prior description of
the crikinal, t h e level of certainty demonstrated
by the witness at the confrontation, and the length
- - between the crime and the confrontation."
of time
(Emphasis added.)
These factors still make for a very close call. Seven
months had elapsed, the descriptions were admittedly "hazy,"
and the certainty of the identification is clouded by the
parents' hallway remarks. Still, the first two factors we
think are the most important. The girls had more than
adequate opportunity to observe the defendant. Their view
was unrestricted, at close range, and for a considerable
period of time. As to the second factor, their degree of
attention was necessarily high. They were made to sit down
in a small room with two men who had just abducted them.
Even taking into consideration the ages of the girls, and
allowing for the prejudice caused by the hallway incident,
there was not a substantial likelihood of irreparable mis-
identification so as to constitute a denial of due process.
See also State v. Dahl (1980), - Mont. , 620 P.2d 361,
Mandatory Minimum Sentence. The District Court refused
defendant's offered instruction no. 22 which would have told
the jury that "there is a mandatory two year sentence for
each verdict of guilty of kidnapping which may not be suspended
or deferred by the Court."
Under section 46-18-103, MCA, all sentences shall be
imposed exclusively by the judge of the court. Because of
that statute, we held in State v. Zuidema (1971), 157 Mont.
367, 373, 374, 485 P.2d 952, 955, that punishment is not the
concern of the jury whose sole function is to determine
guilt or innocence. Instructing the jury as to various
possibilities of sentence, we said (157 Mont. at 374, 485
P.2d at 956), impermissibly suggests to a jury that it
should give weight to the possible punishment in reaching a
verdict. In State v. French (1975), 166 Mont. 196, 205,
531 P.2d 373, 378, we held a court was not required to
instruct the jury, where mental disease or defect excluding
responsibility was an issue, that a person acquitted by
reason of mental disease must be committed to the state
hospital. In State v. Coleman (1978), 177 Mont. 1, 33, 34,
579 P.2d 732, 751, we upheld an instruction that sentencing
was vested in the court and the jury was not to consider the
possible punishment defendant could receive upon a verdict
of guilty. The District Court in this case avoided prejudicial
error by refusing the offered instruction in this case.
Disparity. Defendant complains of the great disparity
between the sentence he received and that received by his
codefendaht. Under section 46-18-101, I C A , ". . . persons
convicted of a crime shall be dealt with in accordance with
their individual characteristics, circumstances, needs, and
potentialities;. . ." Here, Dyll is a 58-year old alcoholic
with a wooden leg and no record of violence. Defendant is a
28-year old with a history of involvement with weapons.
There was no denial of equal protection.
Dangerous Offender Designation. The applicable statute
is section 46-18-404, MCA:
"46-18-404. Designation as nondangerous offender
for purposes of parole eligibility. (1) The
sentencing court shall designate an offender a
nondangerous offender for purposes of eligibility
for parole under part 2 of chapter 23 if:
"(a) during the five years preceding the
commission of the offense for which the offender
is being sentenced, the offender was neither
convicted of nor incarcerated for an offense
committed in this state or any other jurisdiction
for which a sentence to a term of imprisonment in
excess of 1 year could have been imposed; -
and
"(b) the court has determined, based on any
presentence report and the evidence presented at
the trial and the sentencing hearing, that the
offender does not represent a substantial danger
to other persons or society."
Here, defendant was told:
"And the reason you're designated a dangerous
offender is that's about the fourth gun incident
you were in." Tr., Sentencing of Herrera, at 37.
A review of the record reveals a possible misapprehension
of defendant's actual criminal background. Because of the
apparent confusion as to the crimes involved, we are remanding
this case for further hearing on the dangerous offender
designation. See State v. Knapp (1977), 174 Mont. 373, 570
First, there is no convincing evidence on record that
this was defendant's "fourth gun incident." Secondly, and
more importantly, the record does indicate that one of the
prior convictions considered was constitutionally defective
for defendant's lack of counsel. The sentencing court
cannot rely upon a previous criminal record in sentencing if
that record contains constitutionally infirm convictions.
Ryan v. Crist (1977), 172 Mont. 411, 413, 563 P.2d 1145,
1146; United States v. Tucker (1972), 404 U.S. 443, 92 S.Ct.
589, 30 L.Ed.2d 592.
Although a written presentence report may be deemed
unnecessary under section 46-18-111, MCA, and a parole
officer testified here at the sentencing hearing, we believe
the most important consideration is defendant's right to
have his sentence based upon substantially correct information.
Knapp, supra. The designation may very well be unaffected by
a reconsideration of defendant's record. However, where
improper matters have been brought before the sentencing
court (conviction without counsel), coupled with an apparent
misunderstanding as to defendant's involvement with guns,
defendant is entitled to a rehearing. Ryan, supra.
The judgment is affirmed. The cause is remanded for
rehearing on the dangerous offender designation.
Justice
e'
We Concur: