No. 12297
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1973
THE STATE O M N A A
F OTN,
P l a i n t i f f and Respondent,
-VS -
FRED LLOYD ROMERO,
Defendant and Appellant.
Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
Honorable Robert H . Wilson, Judge p r e s i d i n g .
Counsel of Record:
For Appellant :
Berger, Anderson, S i n c l a i r and Murphy, B i l l i n g s , Montana
James J. S i n c l a i r argued, B i l l i n g s , Montana
For Respondent:
Hon. Robert L. Woodahl, Attorney General, Helena,
Montana
.
Jonathan B Smith, A s s i s t a n t Attorney General, argued,
Helena, Montana
Harold F. Hanser, County Attorney, B i l l i n g s , Montana
C l i f f o r d E. Schleusner, Deputy County Attorney, appeared,
B i l l i n g s , Montana
G. Todd Baugh, B i l l i n g s , Montana
Submitted: January 24, 1973
Decided: FEB 7 - 1n
9
F i l e d : YER 'i - 1973
Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
On February 7, 1972, defendant, Fred Lloyd Romero, was
charged by information with the crime of robbery. He plead
not guilty and his trial was held on April 5, 1972, and on
April 6, 1972, the jury returned a verdict of guilty of robbery.
On April 14, 1972, the district court of Yellowstone County
sentenced defendant to eighteen years in the Montana state
prison. From this judgment and sentence the defendant has ap-
pealed.
From the record it appears that shortly before 2 : 0 0
a.m. on February 4, 1972, Mrs. Mary Cipech, manager of the
Broken Drum Bar, closed the business and proceeded to her car
to go home. As she left the bar she noticed a man standing
near the motel next door. When she unlocked the door to her
car a man inside pointed a gun at her; she screamed and began
running away from the automobile. As she was fleeing, the man
standing near the motel approached her, demanded her purse and
grabbed it away from her as she either fell or was pushed to
the ground. Mrs. Cipech observed two men run to and enter an
old, white station wagon. Both of these men had covered their
faces with ski-type "masks".
A few minutes later Mrs. Cipech saw Jack Hyde, a mer-
chant policeman, driving on the highway in front of the bar,
and she flagged him down. Hyde helped Mrs. Cipech into his
patrol car and listened to the story of the robbery. Hyde
radioed the information to the sheriff's office. Hyde had ob-
served an old white station wagon a few moments earlier driving
towards downtown Billings.
That same night Officer Wamsley and Detective Brennan
were patrolling in an unmarked car. They heard the radio re-
port of Jack Hyde and shortly thereafter spotted a vehicle match-
ing the description of the getaway vehicle. The police
started to follow the station wagon when they noticed a high-
way patrol car parked on the side of the road and a request was
made to the highway patrolman to stop the station wagon. As
the station wagon halted, one person jumped out of the vehicle
and fled on foot. The defendant was apprehended in the car.
While following the suspect vehicle, Officer Wamsley noticed
the passenger in the right front seat hand an object to the
person sitting in the rear seat.
When one suspect fled the car on foot, Detective
Brennan pursued and apprehended him and an immediate search of
the suspect produced a loaded . 3 2 caliber revolver. Another
revolver was found at the scene of the arrest of the three sus-
pects.
The three suspects were booked at the jail during the
shift of jailer Dan Korber. At 6:00 a.m. jailer Korber found
a ski-type mask in the jail near the booking area. This ski-
type mask was received into evidence over defendant's objection.
Another ski-type mask, identified by Mrs. Cipech as the type
worn by the robbers was found beneath the suspects' vehicle at
the point of their arrest. This mask was also received in
evidence.
During the trial of defendant, the county attorney asked
defendant on cross-examination, "Have you ever been convicted
of a felony or felonies?" Defendant answered, "Yes", and the
inquiry was then stopped. During his final argument, the county
attorney said, "The defendant testified that he had been con-
victed of a felony. Now that doesn't mean that he is to neces-
sarily not be believed just because of that, it just means that
that is something for you to consider in weighing the testimony
and his credibility and that's what the instructions that the
Court has given to you say." Later he commented, after a review
of the facts incriminating the defendant, that "Mr. Broderick
and Mr. Romero live up to that old adage, 'thick as thieves.'"
There was no objection to either statement on the part of de-
fendant.
On the settlement of instructions defendantls counsel
objected to court's proposed instruction No. 1, which was given
as instruction No. 5. We will later refer to its applicability
and we quote it:
"Upon cross examination of the defendant the
Deputy County Attorney asked the question of
whether or not the defendant had been convicted
of a felony or felonies. To that question the
defendant answered yes. The last portion of
that question posed by the Deputy County Attorney
relating to more than one felony conviction was
an improper question and the defendant's answer
should not be taken by you as being any inference
or admission whatsoever that he has been con-
victed of more than one felony and you are to
totally disregard any reference in the question
to more than one felony conviction."
Defendant contends the State may not show a prior felony
conviction as authorized under section 93-1901-11, R.C.M. 1947,
to impeach him because of the provisions of our new statute,
section 95-1506, R.C.M. 1947, which allows the State to seek
increased punishment by reason of a prior felony conviction,
contending that section 93-1901-11 has been amended so as to
prohibit such a procedure.
Since,the first issue presented is whether or not it
was reversible error to permit the State to impeach defendant's
testimony by the use of a prior felony conviction we will set
out the various statutes before we begin our discussion of this
issue. They state:
Section 93-1901-11, R.C.M. 1947:
"A witness may be impeached by the party against
whom he was called, by contradictory evidence
or by evidence that his general reputation for
truth, honesty, or integrity is bad, but not by
evidence of particular wrongful acts, except
that it may be shown by the examination of
the witness, or the record of the judqment,
that he has been convicted of a felony."
(Emphasis supplied,).
Section 94-4723, R.C.M. 1947:
"A person convicted of any offense is notwith-
standing a competent witness in any cause or
proceeding, civil or criminal, but the convic-
tion may be proved for the purpose of affecting
the weight of his testimony, either by the
record or by his examination as such witness."
(Emphasis supplied).
Section 95-1506, R.C.M. 1947:
"When the state seeks increased punishment of
the accused as a prior convicted felon under
section 94-4713, notice of that fact must be
given in writing to the accused or his attorney
before the entry of a plea of guilty by the
accused, or before the case is called for trial
upon a plea of not guilty. Such notice must
conform to the following provisions:
"(a) The notice must specify the prior con-
victions alleged to have been incurred by the
accused.
"(b) The notice and the charges of prior
convicti5ns contained therein shall not be made
.
.
~ublicnor in anv manner be made known to the
C 4
jury before the jury's verdict is returned upon
the felony charqe provided that if the defendant
shall testify in his own behalf he shall never-
the less be subject to impeachment as provided
in section 93-1901-11, R.C.M. 1947, as amended.
"(c) If the accused is convicted upon the
felony charge, the notice, together with proper
proof of timely service, shall be filed with the
court before the time fixed for sentence. The
court shall then fix a time for hearing with at
least three (3) days' notice to the accused.
"(d) The hearing shall be held before the
court alone. If the court finds any of the
allegations of prior conviction true, the accused
shall be sentenced under the provisions of sec-
tion 94-4713." (Emphasis supplied).
Section 95-2212, R.C.M. 1947:
"All sentences under this chapter shall be imposed -
ex-
elusively by the judge of the court." (Emphasis supplied).
The rules regarding use of prior felony convictions for
purposes of impeachment have been established for a long period of
time. See State v. Schnepel, 23 Mont. 523, 59 P. 927. State
v. Coloff, 125 Mont. 31, 231 P.2d 343, reviewed these rules
extensively. In that case the Court states:
"A defendant in a criminal case, if he is sworn
and testifies, is subject to the same rules of
cross-examination and impeachment as any other
witness. [Citing authority.]
"If the defendant does not take the stand, a
prior conviction may not be shown to impeach
him. [Citing authority.] "
An examination of the statutes set out above indicates
that the legislature in no way intended to alter the long-estab-
lished rules concerning use of prior felony convictions for im-
peachment. When the State seeks increased punishment of a prev-
iously convicted felon, it must give notice to such defendant
before he pleads guilty, or before he goes to trial if he pleads
not guilty. Since the new criminal procedure code removed all
sentencing functions from the jury and placed them exclusively
with the court, section 95-2212, R.C.M. 1947, there is no longer
any reason for the jury to learn-of the prior felony convictions
of a defendant for purposes of sentencing. The legislature
enacted subsection (b) of section 95-1506, R.C.M. 1947, to in-
sure that the jury is not made aware of the notice that the
State is seeking increased punishment where the defendant has
a prior felony record.
However, in accordance with section 93-1901-11 and
section 94-4723, R.C.M. 1947, and long-standing case law rules
connected therewith, an exception is made in the case of a crim-
inal defendant who chooses to take the stand in his own behalf;
therefore, he is subject to the same rule as any other witness
and his testimony may be impeached by the showing that he was
previously convicted of a felony.
Subsection (b) of section 95-1506, R.C.M. 1947, does
not change any law relative to informing the jury of a defendant's
prior record for impeachment purposes. The statute merely
states that any notice that the State gives of prior convic-
tions may not be used against the defendant at trial, but this
record may still be used, to impeach his testimony, in the
event that he decides to testify in his own behalf.
To argue that subsection (b) of section 95-1506, R.C.M.
1947, was intended to prohibit the State from advising the jury
in any manner that the defendant had been previously convicted
of a felony, is to read the words of the statute out of context.
The intent of the legislature is to conform to the long-standing
rules concerning impeachment of criminal defendants by prior
felony convictions. If the legislature had intended to make a
substantive change in the law, this Court does not believe that
such a change would have been placed in a statute dealing with
the notice required when the State seeks increased punishment
of a previously convicted felony. The subsection in question
was intended to change the law with regard to the jury's learn-
ing of a prior conviction when increased punishment is sought,
but also to reiterate the exception that has long been established,
that such records may be used for impeachment of a criminal de-
fendant who takes the stand.
This interpretation is consistent with a search for
truth and also with the protection of rights of the defendant.
The second issue presented to this Court is whether or
not the method employed by the State in proving defendant's
prior conviction and the comments made by the State in the clos-
ing argument were prejudicial error.
In Coloff, at p. 35, this Court approved the following
method in the use of a prior felony conviction for impeachment
purposes :
"When the credibility of a witness is attacked
under these statutes it has long been the uni-
form trial practice in Montana to ask the
witness, on cross-examination, in substance,
'Have you ever been convicted of a felony?'
If the answer is 'Yes,' further examination
along this line is foreclosed. If the answer
is a denial, the conviction can then be shown
by the record of the judgment.
"This is sound practice and should be followed.
The purpose of the statutes, weakening the
credibility of the witness, is satisfied and
chance for error is eliminated. It is the
natural, practical and best way of handling
the matter." (Emphasis supplied).
In this case the deputy county attorney added the
words "or felonies" to the question. When the question was
answered "Yes" by the defendant, the deputy county attorney
showed that he was complying with the law by immediately
stopping the inquiry at that point. Since the prosecutor
complied in substance and almost verbatim with the method
approved by this Court, we find no prejudicial error was com-
mitted.
Also, the court's instruction No. 5, in our opinion,
cured any prejudice that might have existed in the minds of
the jurors in regard to the addition of the words "or felonies"
to the question posed by the deputy county attorney.
The State did not commit any error when the deputy
county attorney remarked that the defendant had admitted hav-
ing committed a felony and the jury should consider that admis-
sion in their deliberations as affecting the credibility of de-
fendant's testimony.
To review the facts that strongly pointed to the guilt
of the defendant of the robbery charged and then comment that
the perpetrators, including the defendant, were "thick as
thieves", is not to comment on the past record of the defendant
but merely to argue that the defendant was guilty of this robbery.
To argue that the defendant was a thief, that he committed the
robbery in question, was certainly the only function of the State
in the closing argument. No error was committed when the
prosecutor made a reference to the defendant and a co-defend-
ant as being "thick as thieves". We note that different
counsel appears on appeal than at trial. Trial counsel did
not object anywhere, nor, from the record, does it appear even
noted the comment.
This Court also notes the existence of section 95-
2425, R.C.M. 1947, which states:
"Any error, defect, irregularity or variance
which does not affect substantial rights
shall be disregarded.* * * "
In construing this statute, this Court has said in State v.
Gallagher, 151 Mont. 501, 506, 445 P.2d 45:
" * * * If there was any error at all it was
merely technical, and there is a long standing
rule in this jurisdiction--based at the time
of the instant trial, on section 94-8207, R.C.M.
1947, which has since been replaced by section
95-2425--that technical errors or defects will
not provide a basis for reversal in a criminal
prosecution."
We find that any error that might have existed was merely tech-
nical in nature and definitely not sufficient to cause a reversal.
The defendant was convicted by the evidence produced by the State.
Since the defendant has failed to demonstrate to this Court
any prejudice the conviction must be affirmed.
The final issue presented to this Court on appeal is
whether or not the admission of the ski-type mask found in the
jail was reversible error.
Long ago this Court stated in State v. Byrne, 60 Mont.
"'Weapons, tools, bullets, instruments, or
other articles which appear from other evidence
to have been employed in the commission of the
crime are admissible in evidence.'"
The ski-type mask objected to by the defendant in this case
"appeared from other evidence to have been used in the crime."
Dan Korber, the jailer, testified that he had been
through the booking area when he came on shift at 12:00 mid-
night and that the only person booked in between midnight and
8:00 a.m. was.?the defendant and the co-defendants in the robbery.
- 9 -
At 6:00 a.m., shortly after taking the defendant to the book-
ing area, while returning Romero to his cell, Korber found
the ski-type mask which was admitted in evidence.
Sufficient evidence existed in the record to allow
the district court to admit the ski-type mask into evidence.
The weight to be given the exhibit was within the province of
the jury.
The judgment of
We concur:
Associate Justices