No. 88-508
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1989
STATE O MONTANA,
F
p l a i n t i f f and Respondent,
-vs-
R N A L MARK RUDOLPH,
A D L
Defendant and A p p e l l a n t .
APPEAL F O :
R M ~ i s t r i c Court of t h e Fourth ~ u d i c i a l i s t r i c t ,
t ~
I n and f o r t h e County o f is sou la,
The Honorable James B. w h e e l i s , Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For A p p e l l a n t :
~ i l l i a mBoggs, is sou la, Montana
For Respondent :
Hon. Marc R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , Montana
R o b e r t F.W. S m i t h , A s s t . A t t y . G e n e r a l , Helena
R o b e r t Deschamps, 111, County A t t o r n e y , iss sou la,
Montana; C r a i g F r i e d e n a u e r , Deputy County A t t o r n e y
S u b m i t t e d on ~ r i e f s : J u n e 8 , 1989
Decided: J u l y 11, 1989
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Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court.
Randall Rudolph appeals his conviction of robbery in the
Fourth Judicial District, Missoula County. The four issues he
raises on appeal are:
1. Was the show-up identification of him as a co-assailant
impermissibly suggestive so as to violate his due process rights;
2. Was it an abuse of discretion to deny defendant's
protective order regarding witness Trowbridge;
3 . Was the State impermissibly allowed to admit into evidence
a nondisclosed statement of the defendant;
4. Was it an abuse of discretion to refuse the admission of
witness C. Rude's testimony.
We affirm.
On the evening of December 8, 1986, Greg Jasperson was
assaulted in downtown Missoula near the corner of Pattee and Main
Streets. His assailants, two males of average height and stocky
build, beat him until he fell to the ground and then kicked him
about the head until he became unconscious. The assailants robbed
him of the contents of his pockets and then briskly walked away
proceeding south down Pattee Street.
Various stages of this crime were viewed by three eyewit-
nesses. Witness Thieler came out of the Bon, a nearby clothing
store, and got in her car which was in the Bon parking lot. She
exited the parking lot onto Pattee Street and immediately noticed
two men kneeling over a body on the sidewalk by the Executive Motor
Inn. She assumed the two men were aiding the man on the sidewalk
until she saw one of the men kick the body with his boot until it
rolled into the gutter.
By this time Thieler's car was at the stop sign of Pattee and
Main. She watched the two men walk briskly south down Pattee
Street. She kept them in sight in her rearview mirror long enough
to note that they did not go into the Elks Club, but rather kept
going southward on Pattee toward the Missoula Sheraton. Thieler
testified at trial the although she was trying to note where the
men went, she momentarily lost sight of them while she turned her
head to check for traffic.
Thieler then drove around the block and returned to the Bon
to seek assistance for the victim. She enlised the assistance of
a man she knew at the Bon. However, by the time they returned to
the body, several people were already assisting the victim and she
was advised that the police had been called. The police arrived
momentarily.
Orlando Gonzales also witnessed part of the crime. Gonzales
was walking north on Pattee Street near the Elks Club when he
passed by two men going through a wallet. Gonzales assumed that
the two were discussing a purchase and were talking about how much
money they had.
As Gonzales approached the Executive Inn parking lot, he
noticed what appeared to be a tlbumltlying in the street. When he
got closer, he discovered it was a well-dressed man who had
obviously been hurt. He ran into the office of the Executive Inn
where the receptionist was phoning the police at that minute.
The third witness was Leon Furnish. He was sleeping in a room
at the Executive Inn when he was awakened shortly after 9:00 p.m.
by loud cries for help. He ran to the window and on the street
below saw two men kicking a man who had fallen to the sidewalk.
The victim raised his hands to protect his eyes and teeth and
cried, ''please don't kick me, why are you kicking me."
The attackers kicked the back, sides and head of the victim.
Furnish then saw the assailants search the pockets and take the
contents. As they stood up to leave, one of the attackers shoved
the body into the street with his boot. They then walked down
Pattee Street in a southerly direction and out of Furnish's view.
As they walked off, Furnish noted that one man wore a hat of some
type which appeared to have something "flapping" out from under-
neath it.
Furnish called the hotel desk and told the receptionist to
call the police and call an ambulance for the man who had been
beaten outside.
The police call came in at 9:15. At 9:18, the police arrived
at the scene. By that time, several passers-by had gathered,
covered Greg with a sleeping bag and were administering first aid.
The police asked if anyone had seen the attack or noticed
anyone leaving the area. Thieler and Gonzales both explained that
they saw two men, dressed in heavy dark coats, one with long
flowing blonde hair and a cap on and one with dark hair walking
south on Pattee. The police left immediately proceeding south on
Pattee to search the area.
At the southern end of Pattee Street near the Missoula
Sheraton (approximately six blocks away), the police spotted two
men, one with dark hair and one with long blonde hair and a black
stocking cap. These two men were stopped and questioned by one
police officer while another officer returned to the crime scene
to question the witnesses.
The two eyewitnesses at the scene, Thieler and Gonzales, were
asked if they would go with the police to see if they could
identify two men which were stopped by the police. They agreed and
were transported by police car, Thieler in the front seat and
Gonzales in the back seat. The witnesses were separated by a
plexiglass screen and did not confer with one another.
When they reached the Montana Power substation near the
Sheraton, where the other patrolman was detaining the two men,
Thieler and Gonzales remained in the car. The two men were placed
approximately fifteen feet from the front of the patrol car with
its headlights shining on them. The two men gave a profile view
and view of their backs. Witness Thieler asked if one of them
would put his hat back on. The patrolman with the witnesses
radioed to the other officer and asked if either suspect had a cap,
whereupon Rudolph produced his black stocking cap and donned it.
Thieler then quickly made a positive identification stating
that the long blonde hair coming out from under the black stocking
cap created the exact figure which she saw.
Gonzales likewise identified the two suspects as the men he
passed who were going through the wallet. Gonzales based his
identification on the stature and build of the two men as well as
the warm, dark clothing they were wearing.
Rudolph was tried separately from the co-defendant and was
convicted of robbery by a jury on October 19-21, 1987. He was
sentenced to fifteen years in the Montana State Hospital in lieu
of prison incarceration. He was also designated a dangerous
offender. Rudolph appeals, questioning many procedural aspects of
the identification and the trial.
I. IgShowup" Identification
Rudolph asserts that the conviction was based solelv on the
"show upv1 identification held that night and that procedure
violated his due process rights by being impermissibly suggestive.
We disagree.
The importance of the eyewitness identification is under-
scored, Rudolph asserts, by the lack of corroborating evidence and
inconsistencies in the State's case. All accounts of the incident
state that the two assailants proceeded south along Pattee Street
walking on the east sidewalk. However, the victimls wallet was
found the next day across the street from the attack on the west
side of Pattee Street. Witness Thieler admitted losing sight of
them momentarily while she looked both ways for traffic at the
intersection. The State argued that it must have been just long
enough for one of them to dispose of the wallet.
The second inconsistency deals with the money stolen from the
victim. Jasperson testified that only a small amount of money was
stolen: five to eight dollars. However, when stopped just moments
after the attack, Rudolph had less than two dollars in his
possession.
Thirdly, Rudolph's clothing, a dark green ski jacket, black
cap, blue jeans and boots, were not retained by the police for
evidence because Rudolph asked to keep his clothes, stating that
he had no other clothes with him in Missoula. Thus, when he was
released from jail, he was given his clothes. He was then unable
to produce them at trial; however, all witnesses, as well as
Rudolph, agree to the description of his apparel that night.
Therefore, it was not possible to check the clothing for blood
or hair samples, although no blood stains were noted in the police
report. The officers testified that they did not recall any blood
on Rudolph's clothes or boots that night.
Lastly, at trial Gonzales and Thieler were unable to identify
Rudolph by means of a facial photo lineup. Each stated that their
identification was based, not on a view of the faces, but rather
on stature (height, weight and build) , hair (color, length and
facial hair), and clothing (style, color, and the cap). Thus, the
identification became a key factor in the prosecution's case.
To pass constitutional muster, a pretrial identification must
not be (1) impermissively suggestive, nor (2) have such a tendency
for misidentification under the totality of the circumstances that
it violates due process rights. This two-prong test was set forth
in State v. Lara (1978), 179 Mont. 201, 587 P.2d 930, and is
controlling on this issue.
In State v. Lara, defendant participated in a ''show up1'
wherein he was identified by the victim as the armed robber
involved in a one person robbery of a Laurel food store. The
Laurel police apprehended Lara within fifteen to twenty minutes of
the robbery and he was identified by the victim at the scene of the
arrest shortly thereafter.
Regarding that identification, we stated:
Considering the totality of the circumstances
we conclude that while the identification
procedure was unnecessarily suggestive, it did
not create a situation in which there was a
substantial likelihood of misidentification
and therefore not violative of due process.
Lara, 587 P.2d at 933.
We also find Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct.
375, 34 L.Ed. 2d 401, instructive on this issue. Bisqers sets forth
five factors relating to the circumstances under which pretrial
identifications are made. Trial courts should consider the
following in evaluating the risk or likelihood of misidentifica-
tion:
.. . the opportunity of the witness to view
the criminal at the time of the crime, the
witness1 degree of attention, the accuracy of
the witness1 prior description of the crimin-
al, the level of certainty demonstrated by the
witness at the confrontation, and the length
of time between the crime and the confronta-
tion.
Biqqers, 409 U.S. at 199-200.
Thielerls testimony regarding her identification certainly
passes any test set up by the Lara case and by the Bissers factors.
Thieler stated that she was concerned the attackers would see her
watching them, so she drove forward slowly and then proceeded to
watch them for several minutes in her rearview mirror. Thus, her
opportunity to view the attackers was good, even if she did not
view their faces specifically.
Her attention was keen and her description to the police was
accurate regarding the assailants' gender, size, hair color and
length, and clothing style and color. Also lending credibility to
the validity of the identification was the very close proximity in
time and distance from the crime scene. The suspects were appre-
hended just blocks away from the scene and only moments after the
police arrived. Further, all witnesses testified that the downtown
streets were deserted that particular winter night, shortly after
9:00 p.m. Not only did they fit the description, the two suspects
detained were also the only two pedestrians within many blocks of
the crime scene.
Rudolph's own testimony regarding his actions on that night
was incredible. Although in the immediate vicinity, Rudolph
testified that he had no knowledge whatsoever of the crime,
including the fact that he heard no cries for help, no sirens, and
saw no lights flashing from emergency help vehicles.
The State concedes that the identification process was
suggestive by the mere fact that the two people were stopped so
close to the scene, so soon, and that only those two were shown to
the witnesses. Indeed, a "show upgt identification requiring a "yes
or no" answer is a far less desireable situation than positively
picking out a person from an anonymous lineup. Bissers, supra;
State v. Lara, supra; State v. Campbell (1985), 219 Mont. 194, 711
P.2d 1357, cert. denied, 475 U.S. 1127, 106 S.Ct. 1654, 90 L.Ed.2d
197. As we cautioned in Campbell, [1]aw enforcement agencies
[are] ill advised to rely solely on one-to-one showups in identify-
ing suspects with a crime." Campbell, 711 P.2d at 1362.
Suggestive as it was, based on Lara and the factors set forth
in Bissers, we conclude that this identification did not have such
a tendency for misidentification so as to violate Rudolph's due
process rights under the immediate circumstances of this case.
We conclude the Bissers factors were also met by eyewitness
Gonzales and that his identification was also constitutionally-
sound. Gonzales did not view them as long as Thieler and his
identification seemed apprehensive initially. However, Gonzales
passed the suspects on a narrow sidewalk near the crime scene and
observed them long enough and carefully enough to notice their
gender, size, clothing and what they were doing. His opportunity
to view them and the attention he displayed lend reliability to his
identification. Also helpful is the close proximity which was
discussed above regarding witness Thieler. We find no error in
admitting into evidence the results of this "show upt' identifica-
tion. We note here that witness Furnish did not participate in
the identification that night, but he did testify at trial as to
what he observed that night.
Lastly, we are not disturbed by the minor discrepancies in the
witnesses' descriptions which were asserted by defense counsel.
These discrepancies go more to the credibility of each witness and
the weight the jury will give their testimony, rather than to the
constitutionality of admitting the identification based on varying
testimony of other witnesses. See Campbell, supra.
11. Protective Order
Defense counsel moved for a protective order to conceal the
contents of Keith Trowbridge's testimony to prevent the State from
"capitalizing" on it by changing their strategy. The motion was
denied. We agree.
Keith Trowbridge, an employee of the Firestone Service Station
located directly across the west side of the street from the crime
scene, would testify that he found the victim's wallet in the alley
behind the Firestone property the morning after the robbery.
Defense counsel anticipated that the State's case would have
Thieler keeping the assailants in constant view on the east side
of the street from the time they left the body until they were out
of sight. Defense counsel did not want to alert the prosecution
to this discrepancy in locations because the police report stated
that the wallet was found at the Firestone station and yet the
State had not interviewed any of Firestone's employees.
Defense counsel makes much of the fact that after this motion
was denied, Thielerls testimony was actually that she momentarily
lost sight of the two assailants (in which time one of them may
have crossed the street). Defense asserts that the issue of
continuous or noncontinuous observation by Thieler never would have
come up at trial but for the disclosure of witness Trowbridge, and
thus his defense was sabotaged. We disagree.
Admitting or refusing evidence lies within the sound discre-
tion of the trial judge. Those rulings will not be overturned
unless there is a showing of an abuse of discretion by the trial
judge in issuing his ruling. State v. Courville (Mont. 1989), 769
P.2d 44, 46 St.Rep. 338; Cooper v. Roston (Mont. 1988), 756 P.2d
1125, 45 St.Rep. 978. No such showing can be made in this case.
Protective orders should issue when the disclosure of a
witness's identity would result in a risk or harm outweighing anv
usefulness of the disclosure to any party. Section 46-15-328(1),
MCA. (Emphasis added.) Obviously, there are two flaws with
defendant's motion. First, there was no risk or harm to the
witness shown by the defense. Indeed, no harm could result to the
witness by the disclosure of his identity--as he was already
generally identified in the police report and was not in danger.
Secondly, the statute seeks to weigh the usefulness of the
disclosure gained by either party. Defense asserted that the harm
done to its case was the impeachment of witness Thieler being
blunted and that harm far outweighed the disclosurelsusefulness.
We disagree. As noted by the trial judge, a greater showing of
harm or imbalance must be made in order to invoke such an extra-
ordinary restriction. It is obvious from the record the State was
aware that the wallet was found at the Firestone Station and could
have interviewed the employees had they seen fit to do so. Under
these facts, we affirm the trial court's denial of extraordinary
relief in the form of a protective order.
111. Nondisclosed Statement
When questioned as to why Rudolph's clothes were returned to
him, rather than seized for evidence, Officer Wicks testified it
was because Rudolph stated he had no other clothes in Missoula, all
his belongings were in Kalispell. It is undisputed that this
hearsay statement by Rudolph previously had not been disclosed and
the State fully acknowledges its duty under section 46-15-
322(1) (b), MCA, to disclose "all written or oral statements of the
..
accused . " However, the State asserts that the defense cannot
raise the issue of this undisclosed hearsay on appeal because it
did not object at trial; or, in the alternative, that the defendant
was not prejudiced by allowing the hearsay remark into evidence.
We agree.
The verbatim exchange at trial was as follows:
Q. [By prosecutor Friedenhauer]: Go ahead,
why did you release the clothes?
A. [By Officer Wicks]: Mr. Rudolph indicated
to me that was the only set of clothes he had
in Missoula, that he left all his other be-
longings behind in Kalispell.
Several questions prior to this exchange, defense objected to
the State's line of questioning regarding the co-defendant. The
generic objection (which stated no grounds) was overruled by the
court. The court, however, went on to admonish the State to limit
its questioning to Rudolph only. Whereupon, the exchange in
question occurred. We find no basis in the record for defense
counsel's assertion that the hearsay statement was admitted over
his objection.
No objection by defense counsel was made following this
exchange either. Therefore, defendant cannot now claim that the
District Court abused its discretion and committed reversible error
by allowing the statement into evidence.
IV. Testimony Exclusion
Our standard of review for this issue is identical to the
previous issue: an abuse of discretion must be shown before a
District Court's ruling on evidentiary questions will be
overturned.
Defendant argues that the District Court abused its discretion
in refusing to admit the testimony of witness C. Rude. Defense
counsel made an offer of proof in chambers asserting that Rude
would testify to his eavesdropping on a conversation which occurred
in Missoula during early December 1986. The conversation related
by two men, now in trouble with the Washington state authorities,
was regarding a man they had I1rolledtt downtown Missoula, taking
in
a small amount of money from the victim.
The District Court analyzedthe proposed testimony in relation
to the crime with which Rudolph was charged. The judge found the
proposed testimony was too vague regarding the time of the occur-
rence and the actual crime committed (wrolledlt was the best
recollection Rude could give and he did not recall the day of the
ltcrimel1). Thus, after finding the proposed testimony too tenuous
and remote from Rudolph's case, the judge excluded the evidence for
failing the relevancy requirements. We agree.
Relevancy is defined in Rule 401, M.R.Evid., as follows:
... evidence having any tendency to make the
existence of any fact that is of consequence
to the determination of the action more proba-
ble or less probable than it would be without
the evidence.
Rude's testimony sought to exculpate Rudolph by incriminating two
other unknown individuals upon whom he had been eavesdropping.
The similarities between the crime overheard by Rude and the
one attributed to Rudolph are few: two men perpetrated the
offenses (one dark haired and one blonde), in downtown Missoula,
in December of 1986, for a small amount of money.
The unknown factors of the evidence include what crime was
committed, upon whom, when and by whom. These far outweigh the
similarities of the two occurrences. Thus, defense is counsel is
unable to prove that the proposed testimony is so close in time,
place and similar in style so as to be relevant to the question of
Rudolph's innocence or guilt. Absent a closer connection between
the two occurrences, or at the very least, a definition of the
crime committed by the other unknown assailants, we find no abuse
of discretion in refusing this testimony.
In summary, we conclude that the "show up*'pretrial identifi-
cation of Rudolph was constitutionally sound and that the trial
court did not abuse its discretion regarding the evidentiary
rulings contested at trial.
Judgment affirmed.
Chief Justice
We concur: