NO. 84-351
I N THE SUPREME COURT O F THE STATE O F M O N T A N A
1985
STATE OF MONTANA,
Plaintiff and Respondent,
VS.
PATRICK JAMES CAMPBELL,
Defendant and A p p e l l a n t
Appeal from: D i s t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t
I n and f o r t h e County o f F l a t h e a d
The H o n o r a b l e M i c h a e l K e e d y , J u d g e p r e s i d i n g .
Counsel o f Record:
For Appellant:
Patrick James Campbell, Pro Se, Deer Lodge, Montana
For Respondent:
H o n o r a b l e Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a ,
Montana
Ted L y m p u s , C o u n t y A t t o r n e y , K a l i s p e l l , M o n t a n a
S u b m i t t e d on b r i e f s : October 3, 1985
Decided: December 3 1 , 1 9 8 5
Filed: DEG 3 1 1985
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Appellant, Patrick James Campbell, appeals his convic-
tions in the Eleventh Judicial District on charges of aggra-
vated assault and theft. Appellant also chzllenges his
designation by the District Court as a dangerous offender and
persistent felony of fender. Finally, appel-lant challenges
the contempt order that was also issued by the District
Court. On this appeal, as at trial, defendant is represent-
ing himself.
Appellant purports to raise eighteen issues for our
consideration. In his 108-page brief, appellant gives an
extremely detailed, though jaded, account of the occurrences
during investigation, pretrial and trial. The brief then
fo13.ows a "shotgun" approach in its utilization of legal
arguments--that is, many arguments are thrown out with a
chance that the arguments might fit the factual situation of
the case. In all of his arguments, appellant misses his mark
by either misconstruing the law or not having the facts to
fit the law. Although many of the problems with appellant's
brief may he partially due to the fact of his pro se repre-
sentation, a party that relies on his own legal expertise
must also accept his own legal weaknesses. See State v.
Pnncelet (1980), 187 Mont. 528, 610 P.2d 698. We affirm the
District Court on all issues.
At this time, in view of the length of time that was
required to fully read and consider appellant's arguments and
in consideration of the crowding of this Court's docket, we
feel compelled to comment that the "shotgun a-pproach" to
legal argument is not favored by this Court. Contrived
claims confuse the real issues and waste everybody's time,
effort and money. That said, we now issue the £012-owing
opinion with due regard and proper respect for the legal
rights and claims of appellant.
Appellant labels his reasons for our granting of relief
as follows: (1) impermissibl-e identification evidence;
( 2 ) denial of lineup; (3) illegally obtained physical evi-
dence; (4) denial of reliable psychiatric evaluation;
( 5 ) denial of change of venue hearing; (6) exclusion of
identifiahle racial (ethnic) group from jury; ( 7 ) cumulative
error; (8) failure to fairly and properly instruct jury;
( 9 ) insufficient evidence; (10) imprudent denial of motions
to dismiss; (11) unconstitutional statutory charges;
(12) judicial or prosecutorial overreaching; (13) unlawful
predicate for contempt conviction without jury trial;
(14) disregard of evidence mitigating punishment;
(15) dispensing with constitutional sentencing principles;
(16) invalid prior conviction underlying enhanced punish-
ments; (17) collateral. estoppel and due process bars to
sentencing; and (18) impermissible prosecutorial. vindictive-
ness. We will utilize this same identification of issues as
the basis for organizing this opinion.
On July 12, 1983, Betty Huckins drove her car to
Rosauer's grocery store in Kalispell, Montana. She parked
the car in the parking lot of the store and went inside to
shop. Shortly after entering the store, Huckins noticed a
stranger attempt to drive her car away. Huckins ran outside
and yelled at the man to stop; when he did not, she called
the police. During the phone call, Huckins saw her car pull
up to one of the entrances to the store and stop. She ran to
her car and attempted to get in, but the vehicle moved away
before she could enter. During this attempt to recover her
vehicle, she was able to observe the driver from a distance
of four to six feet.
Officer Dan Bourne of the Ka,-ispellCity Police Depart-
ment was patrolling the area and. noticed the commotion in the
parking lot. Upon arriving at the scene, Officer Bourne saw
Huckins' car leaving the store's parking lot at a high rate
of speed. He pursued the car which then struck a parked car
and lodged against another car to which it became attached.
Officer Bourne stopped his car and ordered the driver to get
out of the Huckins car, but the driver instead tried to free
the Iquckins car by shifting gears and reving the engine.
Officer Bourne then attempted to wrestle the driver from the
car. During the struggl-e, Officer Bourne was able to observe
the driver from a distance of one to two feet. In the mean-
time, the driver was able to free the Huckins car and started
down the street again, dragging Officer Bourne with it.
Officer Bourne released the driver and fell to the pavement.
The fall injured Officer Bourne, but he made it back to his
car and resumed pursuit. The driver of the Huckins car
turned around and returned southbound in the northbound lane
of traffic directly at Officer Bourne. Officer Bourne veered
sharply to the right to avoid a head-on collision. The
police officer turned around to continue the chase, but by
that time he had lost sight of the Huckins car.
In the meantime, Debbie McCartney was listening to a
police scanner at her home and heard broadcasts about a car
stolen at Rosauer's by a man with a backpack. McCartney had
been to Fosauer's that evening, when she had been confronted
by a desperate-acting man with an orange backpack asking her
directions to Cherry Lane or a similarly-named street. She
phoned the Kalispell PoLice Department with her information
about the man with the backpack.
A couple of hours prior to the car theft, Deputy
Updegraff of the Flathead County Sheriff's Office had been
summoned to the Somers area in response to a disturbance.
During his investigation of the disturbance, Deputy Updegraff
encountered a hitchhiker on the highway who possessed an
orange backpack and identified himself as Patrick Campbell.
The name and a physical description of the hitchhiker was
radioed into the sheriff's dispatcher. The hitchhiker then
asked Deputy Updegraff for a ride to Cherry Lynn Road in the
Kalispell area but the deputy was headed the other direction
and refused.
Later than evening, Deputy Updegraff heard the descrip-
tion of the suspect in the car theft broadcast. The deputy
recalled his encounter with the hitchhiker and relayed the
information from the encounter to the officers searching for
the stolen vehicle. The physical descriptions, possession of
a backpack, and inquiries by the suspect into the location of
Cherry Lynn Road served to link the hitchhiker that had
identified himself as Patrick Campbell with the theft of the
Huckins car.
The next day Lake County Undersheriff Joe Geldrich in
Polson was aware that Patrick Campbell was a suspect in the
Kalispell stolen car case and that a warrant had been or was
about to be issued for his arrest. Geldrich knew Campbel.1
was staying in Polson and t.herefore searched around for the
stolen car. He found the car in a Safeway parking lot about
five blocks from Campbell's brother's house where Campbell
was staying. Geldrich then went to the brother's house where
he arrested Campbell.
A few hours after the arrest, Campbell was transported
to Kalispell where Officer Bourne identified him as the car
thief and Deputy Updegraff identified him as the hitchhiker.
Both identifications were the products of one-to-one confron-
tations between the witnesses and suspect. Mugshots were
then taken of Campbell.
The mugshots were used several months later in photo
displays to Huckins and McCartney. Huckins chose Campbell's
photo as the likeness of the man that stole her car and
McCartney chose Campbell's photo as the likeness of the man
that had asked her directions to Cherry Lane.
Finally, at trial, all four of the above witnesses
identified Campbell in person. The identifications were
subject to Campbell's cross-examination which did reveal some
discrepancies and weaknesses in the identification evidence.
The jury, however, evidently did not view these discrepancies
as significant because it returned guilty verdicts on both
the theft and assault charges.
We will now examine the errors that Campbell alleges
occurred at his trial.
1. Impermissible Identification Evidence
Appellant attempts to develop the idea that all of the
courtroom identifications by the witnesses are suppressible.
He contends the identifications are suppressible because:
(1) they are ultimately rooted. in an illegal. arrest; (2) the
Kalispell police failed to conduct a lineup; a.nd (3) the
pretrial one-to-one confrontat-ions, mugshot displays and
television appearances were impermissibly suggestive. We can
find no reversible error in the identification procedures.
Appellant makes extensive argument that identification
evidence taken via illegal arrest is suppressible. To dis-
pose of this argument, we need go no further than point out
that there was nothing illegal about the arrest of appellant.
Appellant claims the arrest was warrantless and that there
was insufficient probable cause to support a warrantless
arrest. However, the record shows that the Kalispell police
did have a warrant for the arrest of appellant at the time of
arrest. It was not necessary that Undersheriff Geldrich have
that warrant in his possession. Section 46-6-203, MCA.
Appellant then argues that the identifications should
be suppressed because he was denied a constitutional right to
a lineup. Appellant offers no precedent for asserting such a
right. We will follow the federal courts of appeal in hold-
ing that there is no constitutional right to appear in a
lineup. See, United States v. Osterag (8th Cir. 1980), 619
F.2d 767, and United States v. Robertson (9th Cir. 1979), 606
F.2d 853. Moreover, appellant was given a mugshot lineup.
Finally, on the matter of suppression of the identifi-
cation evidence, appellant asserts that the one-to-one showup
identifications by the deputy and police officer, the mugshot
display identifications by Huckins and McCartney, and the
television appearance by appell.ant leading to the in-court
identification by Reni Mengwasser were impermissibly sugges-
tive. We agree that in criminal proceedings, "due process
protects the accused against the introduction of evidence of,
or tainted by, unreliable pretrial identifications obtained
through unnecessarily suggestive procedures." State v. Lara
(1978), 179 Mont. 201, 204, 587 P.2d 930; Neil v. Biggers
(1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401. In State
v. Lara, 587 P.2d at 932, we stated our two-prong test for
determining whether or not identification evidence should be
suppressed:
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 substantial likelihood of
irreparable identification . ..
In applying the first-prong of this test to the identi-
fications by Bourne and Updegraff, we recognize that one-to-
one showup identifications are suggestive by their nature.
See, State v. Higley (Mont. 1980), 621 P.2d 1043, 37 St.Rep.
1-942. However, in this case, the suggestiveness was not
impermissive. As such, the identifications fail the first
prong of the test for suppression and were admissible.
Before proceeding to the identifications by the other wit-
nesses we will enumerate the reasons for this conclusion.
First of all, we do not believe the identifications
here were overly suggestive. Officer Bourne and Deputy
Updegraff were trained law enforcement professionals that
routinely encountered suspects in crimina.1 investigations on
a one-to-one basis. As such, they were not as vulnerable to
the suggestive nature of the procedure as the general public
would be. The suggestiveness was also countered by the fact
that they had viewed the suspect close up on the day before
the identification. Neither officer was told that the sus-
pect had. been identified by anyone else. Under these circum-
stances, we cannot see where these witnesses were influenced
by the suggestiveness of the one-to-one showup.
Moreover, there is another factor here which insured
that the due process rights of appellant were protected from
the suggestiveness of the identifications--that is, the
identification testimony of both Bourne and Updegraff was
subject to cross-examina.tion and the weaknesses in the evi-
dence were exposed. The jury was free to award the identifi-
cation testimony whatever value they thought it worth.
In holding that the one-to-one showup identifications
of law enforcement officers were not impermissively sugges-
tive, we make the following cautionary note. The evidentiary
value of an identification taken from a proper lineup will
always be greater than if it was taken from a one-to-one
showup. Law enforcement agencies would be ill advised to
rely solely on one-to-one showups in identifying suspects
with a crime.
We now apply the two-prong test to the mugshot display
identifications by Huckins and McCartney. Appellant claims
that because his mugshot was left-profiled rather than
right-profiled like the other mugshots in the display, the
attention of the viewers was drawn to it. Appellant also
claims that the other pictures in the display were unlike his
so as to render the display impermissively suggestive. The
District Court, after review of the photographs, found these
claims unfounded. We agree. The mugshot display was not
impermissively suggestive so as to render the identification
by Huckins and McCartney inadmissible.
Finally, we reach the identification by Reni
Mengwasser. The girl's identification was reported to the
police only after she had viewed the suspect on television
and her mother told her that he was the one on trial-. This
identification did not occur until six months after the
incident. She testified that she had only seen the suspect
incidentally for several seconds at a distance of fifty
yards. We believe that this identification procedure was
impermissively suggestive under the first prong of our test.
We also believe that the totality of the circumstances were
conducive to misidentification under the factors considered
in judging reliability that we adopted in State v. Higley,
621 P.2d at 1049. Those factors include the opportunity of
the witness to view the criminal at the time of the crime,
the witness's degree of attention and length of time between
the crime and the confrontation. This witness fails all of
these factors. As such, the testimony by Reni Elengwasser had
a substantial likelihood of misidentification under the
second prong of our test and should have been suppressed.
The error, however, is harmless as the remaining evidence was
sufficient to convict Campbell.
2. Denial of Lineup
We have already disposed of this argument under the
first issue. There is no constit.utiona1 right to a lineup.
3. 11-legally Obtained Physical Evidence
Appell-ant's ba.ckpack was admitted as an exhibit at
trial. We need not consider appell.antls arguments that the
backpack was obtained illegally because having the backpack
as an exhibit was not crucial to the case against him.
4. Denial of Reliable Psychiatric Evaluation
Appellant was given one psychiatric evaluation under
§ 46-14-202, MCA. The statute does not provide for a second
evaluation. The District Court did not err in denying his
motion for a second evaluation, merely because appellant
thought the findings of the first evaluation were unfair.
5. Denial of Change of Venue
The District Court did not deny appellant's motion for
a change of venue. Instead, the record is clear that appel-
lant withdrew his motion for change of venue. The issue is
therefore meritless.
6. Exclusion of Identifiable Racial Ethnic Group from Jury
Appellant claims to be 5/32 Flathead Indian and then
objects to the exclusion of native Americans from the jury
list. We find this issue without merit for three reasons.
First, there is no evidence that people of native American
descent were not on the jury. Second, there is no evidence
that the jury list was made by persons that knew appellant
was part Indian. Finally, there is no evidence that there
was a systematic effort to exclude people of native American
descent from the jury list.
7. Cumulative Error
Appellant alleges that there were fourteen evidentiary
errors committed by the District Court a.nd six improper
prosecutorial remarks to the jury that in combination suggest
that the outcome may have been different if not for the
errors and remarks. We have reviewed the transcript for all
of the alleged errors. We see little that could be consid-
ered error and nothing prejudicial. about the rulings of the
District Court, individually or cumulatively.
We have also examined the alleged improper prosecutori-
al remarks. We see nothing in the record of statements by
the prosecution but fair comment. The cumulative error claim
is th.us without merit.
8. Failure to Fairly and Properly Instruct Jury
We find no error amcng appel-lant's numerous all-egations
cf improper instructions give^ to and instructions improperly
withheld from the jury. The instructic~s~;j-ven
were appro--
priate a ~ 6
according to establishes law. Appellant's prc-
posed instructions that were not given were either repetit-ive
of instructions given or not ifi accordance to established law
or the evidence in this case.
3. Tnsufficient Evidence
There is substantial evidence in the record to support
the verdict of the jury.
10. Lmpru2enl: Denial of Motions to Dismiss
Appellant's motions to dismiss were on the basis of a
failure by prosecution to make out a prima facie czce. In
view of our holding on the sufficiency of the evidence to
suppcrt a conviction, this issue is without merit.
11. Unconstitutional Statutory Charges
Appellant challenges the terms vreascnable apprehen-
sion" in the aggravated assault statute, S 45-5-202, YCA, and
"deprive" in the theft statute, § 45-6-301, KCP, as unconsti-
tutjonally vague.
The "reasonable apprehensicn" terms in the statute have
beer1 construed by the Court before. See, State v. Ceorge
(Font. 1983), 660 P.2d 97, 40 St.Rep. 339; State v. LaMere
(PSont. 1 9 8 0 ) , 621 P.2d 462, 37 St.Rep. 1936.
Section 45-2-101(19), MCA, defines "deprive."
Therefore, these terms do not render the statutes
unc~nstitutionaliyvague.
12. J u d i c i a l o r P r o s e c u t o r i a l Overreaching
The r e c o r d i s c l e a r t h a t both t h e Districts Court a n d
p r o s e c u t o r b e n t c v e r backwards t o accomrr~odate t h e n e e d s a n d
whims o f t h e a p p e l l a n t . A p p e l l a n t ' s numerous a l l e g a t i o n s o f
p r e j u d i c i a l c o n d u c t t c w a r 6 s him end f a l s e and p e r j u r e d t e s t i -
mony a g a i n s t hirc a r e a.11 w i t h o u t m e r i t .
13. Unl-awful P r e d i c a t e f o r Contempt W i t h o u t J u r y T r i a l
Contempt may b e p u n i s h e d s u r r n a r i l y . S e c t i o n 3-1-511,
14Ck. Contempt o r d e r s a r e n o t a p p e a l a b l e . S e c t i o n 3-1-523,
KCA. W e need n o t c o n s i d e r t h i~ s u e f u r t h e r .
s
14. D i s r e g & r d of E v i d e n c e M i t i g a t i n g Punishment
A p p e l l a n t h a s p r e s e n t e d no e v i d e n c e t h a t would f i t him
irL t h e c a t e g o r i e s o f e x c e p t i o n s t o m a n d a t o r y minimum s e n t e n c -
es specified in § 46-18-222, MCA. Indeed, the evidence
i n d i c a t e s he 6oes n o t f i t the categories. W e can find no
error.
15. D j spensing with Constitutional Sentencing Principles
The D i s t r i c t C o u r t ' s s e n t e n c i n g o r d e r and p r e s e n t e n c e
i n v e s t i g a t i o n x e f l e c t t h e judge's conscientious consideration
of appellant's history and the facts of this case. The
sentence is within statutory limits and the judge'? sound
discretion. The judge's sentence was correctly imposed.
16. I r l v a l i d P r i o r C o n v i c t i o n U n d e r l y i n g Enhanced Punishment
A p p e l l a n t c l a i m s t h a t h i s p r i o r f e l o n y c o n v i c t i o n was
i n v a l i 5 because the cffense was committed on the Flathead
Reservation, b u t h e was c o n v i c t e d i n t h e D i s t r i c t C o u r t o f
t h e F o u r t h J u d - i c i a l D i s t r i c t which l a c k e d j u r i s d i c t i o n . This
is not the forur for Zeterrnining whether the court that
issued his prior conviction ha6 jurisdiction.
Appellant has a prior felony conviction for the offense
of armed robbery for which he was sentenced and incarcerated
in the Montana State Prison until his release on July 10,
1981. As such, appellant is a "persistent felony offender"
within the meaning of S 46-18-501, MCA.
17. Collateral Estoppel. 311
.11 Cue Process R a r s to Sentencing
Appellant argues that collateral estoppel and due
process bars his status as both a persistent felony offender
under 6 46-18-501, MCA, and dangerous crffencler under
S 46-18-404, YCA, because the designations serve to sentence
him twice for the same offense. There is no merit to the
argument.
The dangerous of fender status controls parole el-igibil-
ity an6 is inapplicable to sentencing. Appellant has not
been sentenced twice for the same crime.
18. Impermissible Prosecutorial Vindictiveness
Appellant alleges that the prosecution sought increased
seritencir-g under the persistent felony offender status in a
1-ir.dictive response to appellant's refusal to plea bargain.
The argument is strainei? and without merit. Appellant chose
to plead "not guilty1' and to represent himself despite numer-
ous warnings from the prosecution and the judge. Prosecution
then sought no greater sentence than is dictated by the
statutes. A guilty verdict was returned. Appellant must
accept the consequences of that vercict.
Faving thus disposed of appellant's issues we will make
a further comment on the case. Appellant's involvement in
this case trom the investigation through the appeal has
served to make a simple case complicated. The numerous
motions and requests by appellant at the pretrial, trial a n d
sentencing hearing culminating in a lengthy appellate brief
have created a tangled mess. The untangling that was done in
tracing each of appellant's issues through the record was
tedious and time-consuming. One thing became clear early,
however. The District Court Judge did a remarkable job in
accommodating the whims of the appellant during the proceed-
!rigs before him. The situation must have been aggravating to
say the least, but the judge made certain that appellant's
rights were protected. Appellant cannot complain that the
ludicial system put him in his predicament. He has on1.y
hinself to blame.
Affirmed on 211 issues.
We concur:
: P ~hl'ef justice