State v. Oppelt

No. 13882

I N THE S P E E COURT O THE STATE O MONTANA
UR M F F

1978

THE STATE O MONTANA,
F

P l a i n t i f f and Respondent,

VS .
DAVID OPPELT ,

Defendant and Appellant.

Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
Honorable H. William Coder, Judge presiding.

Counsel of Record:

For Appellant :

James A . Lewis, Public Defender argued, Great F a l l s ,
Montana

For Respondent:

Hon. Mike Greely,Attorney General, Helena, Montana
J . Mayo Ashley, argued, Assistant Attorney General,
Helena, Montana
J . Fred Bourdeau, County Attorney, Great Falls,Montana.

Submitted: April 26, 1978
Decided :
JUR - 8 1978

Filed:

Y 1
Clerk.
M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court:

Defendant appeals from a judgment of conviction of

aggravated burglary, aggravated a s s a u l t , and attempted t h e f t

e n t e r e d by t h e D i s t r i c t Court, Cascade County, upon a jury

verdict.

A t approximately 7:30 a.m., January 15, 1977, t h e Cascade

County s h e r i f f ' s department n o t i f i e d J e r r y Noble, owner and

m a n a g r of Zooks T i r e Center i n Great F a l l s , Montana, t h a t t h e

b u r g l a r alarm f o r h i s s t o r e had sounded. Noble proceeded t o h i s

s t o r e where he observed a man e x i t i n g from t h e shop door. Noble then

parked h i s c a r i n a manner blocking an automobile which was

parked n e a r t h e building.

A t approximately t h i s same time, Leonard Dusek, a Zooks

T i r e Center salesman, a r r i v e d a t work. A s Dusek approached t h e

door of t h e b u i l d i n g , he observed a man i n s i d e t h e s t o r e crouching

behind a counter, about e i g h t t o t e n f e e t from where Dusek stood.

The man rose from h i s crouching p o s i t i o n , Dusek and t h e man

s t a r e d a t each o t h e r , and t h e man then f l e d i n t o t h e shop. Dusek

ran t o t h e n o r t h s i d e of t h e b u i l d i n g and observed t h r e e people, two

were e n t e r i n g an automobile approximately 15 t o 20 f e e t from

where Dusek was standing. Dusek t e s t i f i e d t h e t h i r d person,

defendant, was standing o u t s i d e t h e v e h i c l e and threw a bumper

jack handle a t him.

Noble parked h i s pickup t r u c k a t an angle blocking t h e

intruders' vehicle. Dusek t e s t i f i e d t h a t defendant David Oppelt

obtained a c r e s c e n t wrench from t h e c a r and threw i t a t Noble's

pickup t r u c k , a f t e r which defendant entered the s t o r e and

c o l l e c t e d s e v e r a l t i r e i r o n s which he threw a t Noble's pickup

truck. Noble t e s t i f i e d he g o t a very good look a t t h e fellow
throwing t h e t i r e i r o n s , and t h a t person was defendant.

When t h e two i n t r u d e r s i n t h e v e h i c l e t r i e d t o d r i v e

away, Noble rammed t h e i r c a r with h i s pickup t r u c k , immobilizing

t h e i r vehicle. The two people i n t h e a u t o then ran i n t o t h e shop,

while t h e man who had thrown t h e t i r e i r o n s , wrench and jack

handle f l e d t h e scene.

Noble and Dusek entered t h e shop and, a f t e r an unsuccessful

attempt by t h e i n t r u d e r s t o escape, apprehended t h e two people

who had been i n t h e c a r and a t h i r d person who had been hiding i n

t h e s t o r e behind a t i r e rack. Noble kicked one of t h e i n t r u d e r s

s e v e r a l times i n an attempt t o f o r c e him t o r e v e a l t h e name of

t h e f o u r t h c o n s p i r a t o r who had escaped. The i n t r u d e r s , upon

t h i s persuasive prompting by Noble, i d e n t i f i e d t h e f o u r t h p a r t i c i -

pant i n t h e crime a s "Sonny" Gardipee.

The s h e r i f f ' s department took t h e suspects i n t o custody

and e l i c i t e d from one, Robert Azure, a l i s t of four of h i s

f r i e n d s . Defendant was one of t h e people on t h e l i s t . Within

an hour and a h a l f of t h e crime, Noble and Dusek went t o t h e

s h e r i f f ' s o f f i c e where they gave an account of t h e crime and a

d e s c r i p t i o n of t h e man who had f l e d . Noble described t h e
and 5'1OU,
person a s between 5 ' 8 " / with h a i r t o t h e shoulders and a s l i g h t

build. Dusek described t h e person a s t a l l and t h i n with long

hair.

A deputy s h e r i f f then held photos of defendant and one

o t h e r person from Robert Azure's l i s t of f r i e n d s and showed t h e

photos t o Dusek and Noble. The two persons i n t h e photos f i t

both Noble's and Dusek's d e s c r i p t i o n of t h e f o u r t h c o n s p i r a t o r .

Both Noble and Dusek p o s i t i v e l y i d e n t i f i e d defendant a s t h e

fourth participant.
 On January 19, 1977, t h e s t a t e f i l e d an Information i n

D i s t r i c t Court, Cascade County, charging defendant and the three

p a r t i c i p a n t s apprehended a t the scene of t h e crime with aggravated

a s s a u l t , aggravated burglary, attempted t h e f t , and a l s o with a

count of criminal trespass t o vehicles which was l a t e r dismissed.

On March 28, 1977, the f i r s t day of t r i a l and more than two months

a f t e r they had f i r s t i d e n t i f i e d defendant from the photos, the

county attorney showed Noble and Dusek t h r e e o r four photos from

which they both again selected the photo of defendant a s the photo

of the fourth p a r t i c i p a n t i n the crime.

A t defendant's t r i a l , both Dusek and Noble i d e n t i f i e d

defendant a s the fourth person involved i n the crime. The s t a t e

a t t r i a l raised the i s s u e of l e g a l accountability, and t h e c o u r t

gave i n s t r u c t i o n s placing the theory of l e g a l accountability be-

f o r e the jury, although t h e l e g a l accountability offense was not

charged i n the Information.

Defendant on appeal presen,ts two i s s u e s f o r review:

1. Did Noble and Dusek's in-court i d e n t i f i c a t i o n of de-

fendant r e s u l t from an impermissibly suggestive p r e t r i a l photo-

graphic lineup?

2. Did the court e r r i n allowing the s t a t e a t t r i a l t o r a i s e

the i s s u e of l e g a l accountability, where t h a t crime was n o t charged

i n t h e Information?

The f a c t o r s t o be considered t o determine whether a p r e t r i a l

showup, lineup, o r photo i d e n t i f i c a t i o n i s impermissibly suggestive

have been s e t f o r t h by the United S t a t e s Supreme Court:

'I* ** A s indicated by our cases, the f a c t o r s t o
be considered i n evaluating t h e likelihood of
m i s i d e n t i f i c a t i o n include the opportunity of the
witness t o view the criminal a t the time of the
crime, the witness' degree of a t t e n t i o n , the
accuracy of the witness' p r i o r d e s c r i p t i o n of the
 c r i m i n a l , t h e l e v e l of c e r t a i n t y demonstrated by
t h e witness a t t h e c o n f r o n t a t i o n , and t h e length
of time between t h e crime and t h e c o n f r o n t a t i o n
* * *." Neil v. Biggers, (1972), 409 U.S. 188,
198, 199, 93 S.Ct. 375, 34 L ed 2d 401,411.

See a l s o : Manson v. Brathwaite, (1977), 432 U.S. 98, 114,117,

Applying t h e s e f a c t o r s t o t h i s c a s e , we cannot say t h e

p r e t r i a l photographic i d e n t i f i c a t i o n was s o suggestive a s t o

c r e a t e a s u b s t a n t i a l l i k e l i h o o d of m i s i d e n t i f i c a t i o n .

The witnesses had a s u f f i c i e n t opportunity t o view t h e

person a t t h e t i m e of t h e crime. Noble saw t h e person throwing t i r e

i r o n s from a l o c a t i o n very c l o s e t o t h e pickup t r u c k i n which

Noble was s i t t i n g . Dusek s t a r e d a t t h e person f o r about f i v e

seconds while t h e person was i n s i d e t h e shop beneath a s t r o n g

overhead l i g h t . Dusek again saw t h e person o u t s i d e t h e shop

throwing v a r i o u s a u t o t o o l s .

The witnesses' a t t e n t i o n was focused on defendant. Noble,

when he was s i t t i n g i n h i s pickup t r u c k , t e s t i f i e d t h a t he was

only 15 t o 20 f e e t from t h e person and g o t a "very good" look a t

him. Dusek's a t t e n t i o n was focused on t h e person a s he s t a r e d a t

him when he observed him i n s i d e t h e s t o r e .

The witnesses' p r i o r d e s c r i p t i o n of t h e person a c c u r a t e l y

described defendant, although i t was n o t a s d e t a i l e d a s i t might

have been. Both Noble and Dusek t e s t i f i e d a s t o t h e person's

b u i l d , h e i g h t and h a i r length. Defendant matched t h e w i t n e s s e s '

descriptions.
-
The witnesses demonstrated a high l e v e l of c e r t a i n t y a t

t h e photographic lineup. Each t e s t i f i e d t h a t he had no doubt

a s t o t h e i d e n t i f i c a t i o n ; each quickly picked t h e photo of defendant

as t h e photo of t h e c r i m i n a l .
 F i n a l l y , the length of time between the crime and the

confrontation was s h o r t . Both witnesses i d e n t i f i e d defendant

a t the photographic lineup l e s s than two hours a f t e r t h e crime

was committed.

A claim of prejudice from an allegedly defective i d e n t i -

f i c a t i o n procedure must be evaluated by examining "the t o t a l i t y

of the circumstances surrounding it." S t o v a l l v. Denno, (1967),

388 U.S. 293, 302, 87 S.Ct. 1967, 18 L ed 2d 1199, 1206. De-

fendant claims t h a t several f a c t o r s created a " t o t a l i t y of circum-

stances" which led t o an impermissibly suggestive i d e n t i f i c a t i o n

procedure.

Defendant f i r s t notes t h a t i d e n t i f i c a t i o n was made from a

presentation of only two photographs. Although showing numerous

photos would have been a preferable procedure, i t was not unduly

suggestive i n t h i s case. The United S t a t e s Supreme Court has held

t h a t i d e n t i f i c a t i o n of a criminal even by means of a one-person showup

o r photo presentation does not n e c e s s a r i l y , without more, v i o l a t e

due process. Neil v. Biggers, supra; S t o v a l l v. Denno, supra.

I n t h i s case, the o f f i c e r who conducted the photo i d e n t i f i c a t i o n

s t a t e d the p i c t u r e of defendant and the other man were t h e only two

p i c t u r e s he could obtain from the l i s t of t h e four people Kobert

Azure had given him. Moreover, the photo i d e n t i f i c a t i o n occurred

not a f t e r defendant had beenstaken i n t o police custody, but during

the course of the police i n v e s t i g a t i o n of the crime. This was

merely a proper i n v e s t i g a t i o n procedure r a t h e r than an attempt t o

suggest t o witnesses t h a t a suspect i n custody was t h e one i n t h e

photo and the one who committed the crime. See: United S t a t e s v.

Cantu, (7th C i r . 1972), 501 F.2d 1019, 1020; S t a t e v. Ware, (1976),

113 Ariz. 337, 554 P.2d 1264, 1266. While the use of a l a r g e r

number of photos would surely have strengthened the force of the
identification evidence, the defect in using only two photos
" * * * goes to weight and not to substance", Manson v.

Brathwaite, supra.

Defendant also complains that Noble and Dusek were allowed

to view the photos in the presence of each other, while the

deputy sheriff held the photographs before them, Simultaneous,

rather than independent exhibitions of photos to more than one
witness will render a photographic identification inadmissible
only if the circumstances of the identification procedure are

such as to give rise to a substantial likelihood of misidentifi-

cation. United States v. Hopkins, (D.C.Cir.1972), 464 F.2d 816, 820,
Here, each witness testified that he identified defendant as the
criminal immediately upon seeing the photos, without prompting
from the other witness or from the police officer. In the absence

of any evidence of suggestiveness, this identification procedure

was merely a factor which the jury could consider in evaluating
the strength of the evidence.

Defendant also claims that it was improper to conduct another
photographic lineup prior to trial. In the absence of any evidence

that the state coached the witnesses to pick defendant's picture,

however, the reshowing of the photos was merely a matter on which

the defense could question the witnesses during cross-examination.
Buchanan v. State, (Alaska 1977), 561 P.2d 1197, 1207.
Finally defendant claims that the photographic identification
was unfair because the police never attempted to obtain a photo
of Sonny Gardipee, the man whom the other participants in the crime
named as the criminal who had fled. At trial, however, the officer
who conducted the photographic identification testified that he
knew Sonny Gardipee to be a man 5'9" tall, with short hair,

weighing 230 pounds. Both witnesses described the criminal as

thin with shoulder length hair.
 Considering the totality of the circumstances and applying
the four part analysis of Neil v. Biggers, supra, we cannot say
that the photographic identification was so suggestive as to
create a substantial likelihood of misidentification. Short of

this, any defects in the procedure were merely factors by which
the jury could measure the weight of the identification testimony.

Nor did the court err in allowing the state to introduce
the theory of legal accountability at trial when that theory
was not listed in the Information. This Court recently held
that Montana follows the Illinois rule that "* * * an indictment

need not distinguish an act performed by the accused himself

and the act of another for which he is legally accountable.I I

State v. Murphy, (1977), Mont . , 570 P.2d 1103, 1105,
34 St. Rep. 1174.
The judgment is affirmed.

JUStice
4

We Concur:

%ad.
Chief Justice
a4