NO. 87-474
I N THE SUPREME COURT O F THE STATE OF MONTANA
1-988
STATE OF MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
J O H N RONALD P R I C E ,
D e f e n d a n t 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 S i x t h 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 P a r k ,
The H o n o r a b l e Byron Robb, J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
W i l l i a m F r a z i e r , B i g T i m b e r , Montana
For Respondent :
Hon. 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
George Schunk, A s s t . A t t y . G e n e r a l , H e l e n a
W i l l i a m N e l s S w a n d a l , County A t t o r n e y , L i v i n g s t o n ,
Montana; Dan McGregor, Deputy County A t t o r n e y
S u b m i t t e d on B r i e f s : Aug. 18, 1988
Decided: September 2 7 , 1988
Filed: -SEP 2 7 1988'
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Defendant John Ronald Price appeals from judgment of
conviction on two counts of burglary entered by the District
Court of the Sixth Judicial District, Park County, Montana.
We affirm.
On April 10, 1987, Livingston Police responded to a
report of a break-in at the Grace Methodist Church. The rear
door of the church had been forcibly entered and the kitchen
ransacked, but no perpetrator was discovered. Later that
evening, a police officer noticed lights on inside the
church. On closer investigation, the officer sighted two men
and one women in the basement of the church. The officer
recognized one of the men as the defendant John Price, whom
he had met previously. He also believed the woman was
Maryann Burrouqhs, the stepdaughter of the defendant. The
third individual, Cliff Miller, was arrested as he exited the
rear door of the building. The other two accomplices ran
back through the church and made their escape.
After Miller was taken into custody, an investigation
revealed Price's automobile parked across the street from the
church with its passenger door open and a purse located on
the front seat. A bank account book in the names of Maryann
Burroughs and Cliff Miller was found inside the purse.
At approximately 3:00 o'clock that morning, officers
went to the home of the defendant. Though they were unable
to locate him, officers sighted through a window of the
defendant's house a glass punch bowl partially covered by
purple cloth. The officers next secured an arrest warrant
for the defendant. Price was located and arrested later that
morning at the residence of Cliff P?iller and Maryann
Rurroughs. Price was charged with burglary of the Grace
Methodist Church. Maryann Burroughs was also later arrested
and charged with burglary of the Grace Methodist Church.
Both Miller and Burroughs pled guilty to burglary charges.
Price later gave his consent to a search of hjs
residence. Although the search of the house revealed nothina
incriminating, the officers found in the back yard next t.o
the defendant's house a broken glass punch bowl, two purple
choir robes and numerous pre-stamped, pre-addressed envelopes
belonging to the First Baptist Church. Additionally, a gold
and white choir collar was found in the street across from
the defendant's home. Shortly after this investigation, the
First Baptist Church reported a burglary which they believed
occurred on the previous evening. Missing were two purple
choir robes, a choir collar, two or three hundred of the
church's pre-stamped, pre-addressed envelopes and other items
which were never recovered. Price was then charged with the
burglary of the First Baptist Church.
At trial, Miller testified that he had seen a collar
and a box of white envelopes inside the defendant's home on
the night the three entered the Grace Baptist Church. Both
Miller and Burroughs testified that Price was with them in
the Grace Baptist Church. Price denied ever being in either
church. The jury found Price guilty of burglarizing both
churches.
The appellant raises four issues for review:
1. Did the State present substantial credible evidence
to support the verdict with respect to the burglary of the
First Baptist Church?
2. Did the District Court err in not giving
appellant's proposed instruction regarding the credibility of
witness identification testimony.
3. Was the testimony of the accomplices that they had
previously pled guilty to charges arising out of the incident
with which appellant was charged unduly prejudicial?
4. Were the comments by the prosecuting attorney
relating to appellant's post-arrest silence unduly
prejudicial and violative of his Fifth Amendment rights?
Issue No. 1. Did the State present substantial credible
evidence to support the verdict with respect to the burglary
of the First Baptist Church?
Section 4 5 - 6 - 2 0 4 ( 1 ) , MCA, provides:
A person commits the offense of burglary
if he knowingly enters or remains
unlawfully in an occupied structure with
the purpose to commit an offense therein.
In reviewing the jury's verdict in a criminal matter
when it is alleged the evidence is insufficient to support
the verdict, our function is to determine if the verdict is
supported by substantial evidence. We will not disturb a
verdict which is based upon substantial evidence. State v.
Pepperling ( 1 9 7 4 ) , 1 6 6 Mont. 2 9 3 , 3 0 0 , 5 3 3 P.2d 2 8 3 , 2 8 7 ;
State v. Bouldin ( 1 9 6 9 ) , 1 5 3 Mont. 2 7 6 , 2 8 4 , 4 5 6 P.2d 8 3 0 ,
834-35.
As we recognized in State v. Wilson (Mont. 1 9 8 1 ) , 6 3 1
P.2d 1 2 7 3 , 1 2 7 8 - 7 9 , 3 8 St.Rep. 1 0 4 0 , 1 0 4 7 , the proper test
upon review is that articulated in Jackson v. Virginia
( 1 9 7 9 ) , 4 4 3 U.S. 3 0 7 , 3 1 9 , 9 9 S.Ct. 2 7 8 1 , 2 7 8 9 , 6 1 L.Ed..2d
560, 573:
[Tlhe relevant question is whether, after
viewing the evidence in the light most
favorable to the prosecution, any
rational trier of fact could have found
the essential elements of the crime
beyond a reasonable doubt. (Emphasis in
original.)
We added further that "substantial evidence" is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion, citing State v. Graves (Mont. 1981),
622 P.2d 203, 208, 38 St.Rep. 9, 14; and State v. Merseal
(1975), 167 Mont. 412, 416, 538 P.2d 1366, 1368.
Appellant argues the evidence is insufficient because
the State only presented accomplice testimony linking the
appellant with the collars and the envelopes. In support of
this argument he cites 9 46-16-213, MCA, which mandates that
accomplice testimony be corroborated by independent evidence
which tends to connect the appellant with the crime charged.
Appellant correctly argues that, to be sufficient, the
corroboration must do more than show the crime was committed
or the circumstances of its commission. It must raise more
than a suspicion of the defendant's involvement in, or
opportunity to commit the crime charged. However, this Court
will not dissect the facts in order to weigh them for review.
Corroborative evidence need not be sufficient, by itself, to
support a defendant's conviction or even make out a prima
facie case against him. In addition, the independent
evidence need not extend to every fact to which the
accomplice testifies. State v. Manthie (1982), 197 Mont. 56,
61-62, 641 P.2d 454, 457, citing State v. Rose (1980), 187
Mont. 74, 80, 608 P.2d 1074, 1077-78; State v. Owens (1979),
182 Mont. 338, 344, 597 P.2d 72, 75-76; State v. Williams
(1979), 185 Mont. 140, 151, 604 P.2d 1224, 1230.
The evidence presented at trial, examined and judged by
the jury for its credibility, was sufficient to connect the
appellant with the burglary of the First Baptist Church. In
addition to the testimony of Miller that the collar and
envelopes were in the appellant's home on the evening of the
burglaries, the police officers saw a punch bowl covered by
purple cloth in the appellant's home. Discovered in the yard
adjacent to the appellant's home were the stolen envelopes
and choir robes, and a punch bowl. Across the street from
the appellant's home the police discovered the stolen choir
collar.
The resolution of factual matters is for the jury, and
if there is substantial evidence to support the judgment,
this Court must affirm the decision. State v. Gladue (1984),
209 Mont. 235, 239, 679 P.2d 1256, 1258; State v. Graham
(1983), 206 Mont. 49, 54, 669 P.2d 691, 694. Viewing the
evidence in its totality, we find there is substantial
evidence upon which a rational jury could have found
appel-lant guilty.
Issue No. 2.
Did the District Court err in not giving appellant's
proposed instruction regarding the credibility of witness
identification testimony.
Appellant argues it was error for the District Court to
refuse to give his proposed jury instruction regarding the
credibility of witness identification testimony. The
proposed instruction reads in part as follows:
Identification testimony is an expression
of belief or impression by the witness.
Its value depends on the opportunity the
witness had to observe the offender at
the time of the offense and to make a
reliable identification later.
It advised the jury to consider the capacity, opportunity,
recollection and credibility of the witness. Additionally,
it emphasized the burden of proof on the state to prove every
element of the crime, which "specifically includes the burden
of providing beyond a reasonable doubt the identity of the
defendant. . . "
Appellant relies on State v. Hart (Mont. 1981), 6 3 5
P.2d 21, 31, 38 St.Rep. 133, 144, where we noted:
Such an instruction may be proper, if not
mandatory, in certain cases. The
necessity of this type of instruction is
especially clear when there is only a
single eyewitness's unsubstantiated
testimony which identifies the offender.
(Citation omitted.)
Although the eyewitness identification by Officer Walls
was buttressed by the circumstantial evidence and the
testimony of Miller and Burroughs, appellant suggests the
nature of this corroborating evidence rendered the eyewitness
testimony "essentially unsubstantiated," thus necessitating
the proposed instruction. We disagree. Neither § 46-16-213,
MCA, nor our statement in Hart requires evidence be severed
and weighed independently. Contrary to appellant's
suggestion, corroborating evidence need not be corroborated.
Although we question the sufficiency of the defense
counsel's objection at the time of the instruction's refusal,
we believe the judge properly held the jury was adequately
instructed. The State's proposed instruction, given as
Instruction #2, adequately advised the jury regarding the
credibility of the witnesses, with specific instructions that
they may consider a witness's appearance, candor,
intelligence, knowledge of the subject, relation to the state
or defendant, the support or contradiction of other evidence,
the witness's capacity to perceive, recall or communicate,
and the witness's character for truthfulness. Additionally,
Instruction # 5 advised the jury of the elements of the crime
charged and required them to find the defendant not guilty if
any of the elements were not proven beyond a reasonable
doubt. Counsel for appellant made no objection to either of
these instructions. It is not error to refuse a proposed
instruction which is repetitive. State v. Milhoan (Mont.
1986), 730 P.2d 1170, 1176, 43 St.Rep. 2371, 2379.
Issue No. 3.
Was the testimony of the accomplices that they had
previously pled guilty to charges arising out of the incident
with which appellant was charged unduly prejudicial?
We hold under the facts of this case, the appellant was
not unduly prejudiced. Although appellant failed to raise
the issue at trial and is procedurally barred for failing to
do so, at issue is his misplaced reliance on United States v.
Griffin (11th Cir. 1985), 778 F.2d 707. In Griffin, the
trial judge read a codefendant's indictment to the jury in a
conspiracy trial, and told the jury that this codefendant had
been adjudicated guilty. The reviewing court reversed the
conviction, noting such testimony was prejudicial. In this
case, there is an important distinction to be made with
Griffin. Here, appellant's accomplices took the stand and
testified, thereby putting their credibility at issue. Such
testimony comes as an exception to the general principle that
evidence of a codefendant's guilty plea is inadmissible. As
noted in Griffin, "where a codefendant takes the witness
stand, evidence of a guilty plea may be introduced to aid the
jury in assessing the codefendant's credibility." Griffin,
778 F.2d at 710, n. 5. See also, U.S. v. Baez (10th Cir.
1983), 703 F . 2 d 453, 455; and U.S. v. Wiesle (8th Cir. 1976),
542 F.2d 61, 62. This reasoning was also adroitly developed
in U.S. v. Halbert (9th Cir. 1981), 640 F.2d 1000, 1005,
where the court held:
As a result of plea bargaining, it is
often the prosecution which produces a
codefendant and elicits testimony tending
to show the substantive guilt of the
defendant. This is, of course,
admissible. As a part of that testimony,
the trier of fact should know the
witness ' total connection to the
defendant or to the event; ... [A]
question about the guilty plea is
legitimate as the purpose is to support
the reasonableness of the witness' claim
to firsthand knowledge because of
admitted participation in the very
conduct which is relevant.
The Halbert court also noted the use of such testimony by the
defense:
[Tlhe defense may, and often does, bring
this fact out on cross examination ...
[and] may suggest that the witness, like
Judas , is a perfidious erstwhile
associate bent upon delivering the
defendant into the hands of the
prosecution. Or perhaps the defense may
dwell on the benefits the witness expects
to receive by favorable testimony and
upon the motive and need for the witness
to make good on his bargain with the
prosecution.
Halbert, 640 F.2d at 1004-05. While it is not clear why the
prosecution brought this information out, we note that the
defense attorney fully used the statements for exactly these
purposes. In view of this, we find no error.
Issue No. 4.
Were the comments by the prosecuting attorney relating
to appellant's post-arrest silence unduly prejudicial and
violative of his Fifth Amendment rights?
The final issue is directed to the prosecutor's
statements relating to appellant's post-arrest silence. The
deputy county attorney in his closing argument made the
following comments on the post-arrest and pretrial position
of appellant:
What's more, we have got no statement.
Since April this innocent man, according
to his own words, has made no statement
to the police to try and establish that
he is innocent and avoid the necessity of
a court action.
Once again, no statement about this
burglary either. NOW, we can't force
people to come in, but what's the natural
thing? You go, I didn't do it, and here
is why. Well, we didn't get that from
the defendant.
Were it not for the overwhelming evidence of the appellant's
guilt, this case might well have been reversed. This Court
has noted in a number of recent cases the impropriety of such
comments, the latest being State v. Johnson (Mont. 19881,
P.2d , 45 St.Rep. 1653. Therein, Mr. Justice Weber
carefully set forth the views of this Court concerning
comments by prosecutors in view of the United States Supreme
Court's holding in Griffin v. California (1965), 380 U.S.
609, 85 S.Ct. 1229, 14 L.Ed.2d 106; and Chapman v. California
(1967), 386 [ . . 18, 87 S.Ct. 824, 17 L.Ed.2d 705.
JS In
addition, he noted a number of recent opinions of this Court
following the dictates of Griffin. Prosecutors should
carefully note this Court's abhorance of such trial tactics.
The evidence in every case is not so overwhelming that the
comments will be harmless beyond a reasonable doubt. Given
the strength of the State's case, there was no need for these
comments.
We affirm the conviction.
A
We concur: ./
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& e
Justices