No. 14863
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
THE STATE OF MONTANA,
Plaintiff and Respondent,
BEVERLY IRENE STRAIN
and JAMES DALE YOUNG,
Defendants and Appellants.
Appeal from: District Court of the Eighth Judicial District,
In and for the County of Cascade.
Honorable John McCarvel, Judge presiding.
Counsel of Record:
For Appellants:
James A. Lewis argued and Daniel Donovan argued,
Public Defenders, Great Falls, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Mary B. Troland argued, Assistant Attorney General,
Helena, Montana
J. Fred Bourdeau, County Attorney, Great Falls, Montana
Thomas M. McKittrick argued, Deputy County Attorney,
Great Falls,PlMontana
Submitted: May 22, 1980
Decided: 0 S T Q
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Filed:
Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
Defendants Beverly Strain and James Young each appeal
from a judgment of the Cascade County District Court entered
on a jury verdict, finding each of them guilty of felony
theft.
Defendants were charged with stealing a television set
from the Sheraton Inn in Great Falls on October 14, 1978.
Defendants have also been charged by separate informations
with stealing a television from the Triple Crown Motel in
Great Falls on October 15, 1978, and with stealing a television
from the Shasta Motel on October 16, 1978. The televisions
were never recovered. Before trial, the prosecutor dismissed
the theft charge against Strain for the apparent reason that
the evidence was not sufficient to establish her identity.
Before trial of this cause, Strain moved that she be tried
separately from Young, but the trial court denied this
motion.
Witnesses identified Strain and Young as having checked
into the Sheraton Inn and having the room from which the
television was stolen. The trial court also admitted evidence
of the television thefts from the Triple Crown Motel and the
Shasta Motel. Witnesses identified Strain and Young as
having checked into the Triple Crown Motel and having the
room from which the television was stolen. A witness also
identified defendant as having checked into the Shasta
Motel and having the room from which the television was
stolen. The witness could not, however, identify Strain as
the woman who was with the defendant on that evening. At
the conclusion of the trial, the trial court provided a
cautionary instruction to the jury which told them the
purpose for which evidence of other thefts was admitted and
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the limited purposes for which it could be considered. The
defendants' defense was alibi. Although neither defendant
testified, the same witnesses testified for each defendant
providing them with an alibi for the theft charge relating
to the Sheraton Inn and with relation to the Triple Crown
Motel and Shasta Motel. A jury convicted both defendants of
stealing the television set from the Sheraton Inn. The
trial court sentenced Young to eight years in prison and Strain
to five years in prison. The trial court initially found
that both defendants were dangerous offenders for purposes
of parole eligibility, but later found this to be an error
and properly designated each defendant as nondangerous for
purposes of parole eligibility.
Both defendants claim that the photographic identification
procedures used after their arrest, and the subsequent in-
court identification procedures violated their rights to due
process of law. They also claim that improper instructions
were given with relation to identification evidence, and
that the trial court erred in not giving their offered
instructions on this issue. Both defendants also claim that
evidence of other crimes was improperly admi,tted, that the
procedures as set forth in State v. Just (19791, Mont . I
6 0 2 P.2d 957, 36 St.Rep. 1649, were not followed, and further-
more, that the cautionary instruction given was overly
broad. In a related claim, Strain asserts that she and
Young should not have been tried together and that the trial
court erred in not granting her motion for severance. Both
defendants also claim that the trial court did not properly
instruct the jury with relation to their claim that a witness
prejudiced their right to a fair trial by stating that she
had been intimidated by defense counsel during a photographic
identification process prior to trial. The last issue, that
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of improper designation as dangerous offenders, is now moot
because the trial court corrected its error and properly
designated each defendant as nondangerous.
The modus operandi involving the thefts from each of
the motels is strikingly similar. On October 14, 1978, a
man and a woman entered the Sheraton Inn and the man requested
a ground floor room explaining that the woman suffered from
a hip ailment. Personnel assigned the couple to room 109.
The next day, at about noon, personnel discovered that the
television set, a mirror, a table and some bedding were
missing from room 109. On October 15, 1978, a couple checked
into the Triple Crown Motel, and the man requested a ground
floor room and again informed the personnel that the woman
had a painful hip condition. The next day it was discovered
that the television set was missing from the room where the
couple had been assigned. On October 16, 1978, a young
couple entered the Shasta Motel and the man requested a
room. The Shasta Motel has only one floor. The next day, a
television set was discovered missing from the room where
the couple had been assigned.
The following evidence links the defendants to the
Sheraton Inn theft, the one in which they were charged and
convicted. On the night of the 14th,the night clerks at the
Sheraton, Robert Mort, Jr. and Gerald ~raxinger,registered
the couple. Mort got a good look at both people. The next
day at about noon, a maid at the Sheraton Inn saw a man
coming out of room 109 into the parking area. A person from
the doctor's office, identified by the appointment card found in
room 109, bearing Young's name, testified that Young
was the person for whom she had made an appointment and
that he had given the name Jim Young.
Both Young and Strain had interposed an alibi defense
through the testimony of Strain's mother and stepfather.
Neither of the defendants testified.
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Both night clerks involved with the registration at the
Sheraton Inn on the night of October 14, gave physical
descriptions of the couple to the police. At that time,
neither man could identify Young from a group of pictures
shown to them by the police. After the arrest of Young and
Strain, however, Mort positively identified from photographs,
both Young and Strain as having been the persons who had
checked into room 109 on October 14. At trial, Mort also
identified both defendants as having been the couple who
checked into room 109 on October 14.
The trial court also admitted evidence in relation to
the television theft from the Triple Crown Motel which
occurred on October 15, and the television theft from the
Shasta Motel which occurred on October 16. The stated
purpose was to show a common scheme or plan of operation.
At photo displays after the defendants'arrest, and
while they were in custody, Young was positively identified
as the man who had checked into roams at the Triple Crown Motel
and the Shasta Motel from which television sets were stolen.
At trial, an employee of the Triple Crown Motel identified
Young as having been the person who checked into the room
from which the television set was stolen. An employee of
the Shasta Motel identified Young as having been the person
who checked into the room from which the television set was
stolen.
The night clerk at the Triple Crown Motel also made a
probable identification that Strain was the woman with Young
when he checked into the room on October 15. At trial, he made
a similar probable identification of Strain as the person
who was with Young. There was no evidence to establish,
however, that Strain was the woman with Young when he checked
into the room at the Shasta Motel. The State, it should be
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noted, did not claim to have any evidence connecting Strain
to the television theft from the Shasta Motel.
Both defendants attack the photo-identification procedures
used after the defendants were arrested and in custody.
Their central contention is that the procedures used unduly
suggested to the witnesses that they choose the defendants
from the pictures presented, and that the later in-court
identifications were thereby sufficiently tainted as to make
the identifications inherently untrustworthy. Defendants
would have us, in this regard, establish a rule that once a
defendant is in custody, he should have counsel present at
any photo-identification session, even if the session involves
an offense not related to that for which a defendant is in
custody. Defendants rely on People v. Richards (1977), 76
Mich.App. 695, 256 N.W.2d 793. They would also have this
Court establish a rule that a defendant in custody be entitled
to a physical line-up rather than a photographic line-up
process. They rely on State v. Classen (1979), 285 Or. 221,
590 P.2d 1198. We decline at this time, to adopt the rules
set forth in these cases.
Young offers nothing in support of his contention that
the photo-identification process was unduly suggestive.
Defects in procedure go to the weight of the identification
testimony. See, State v. Oppelt (1978), 176 Mont. 499, 580
P.2d 110, 114, 35 St.Rep. 727, 732. Relying on tests set
forth by the United States Supreme Court, this Court in
State v. Pendergrass (1978), - Mont. , 586 P.2d 691,
696-697, 35 St.Rep. 1512, 1517-1519, set forth the factors
to be considered in assessing reliability. We find no
evidence that the State did not comply with the requirements
of Pendergrass.
Strain contends that the photo-identification process
was unduly suggestive because she wears glasses and that in
only one of the four women's pictures shown to the witnesses,
did the person wear glasses. For this reason, she argues
that the State invited the photo-display witness to point
directly to her. We note, however, that although this does
connote suggestiveness, it did not arise to "a very substantial
likelihood of irreparable mis-identification." Pendergrass,
supra, 586 P.2d at 686. Each of the women in the photographs
resembles the others in general appearance. Each of the
photographs also depicts a woman who generally matches the
verbal description of the person checking into the Sheraton
Inn and Triple Crown Motel with Young. Witness Washburn
testified that he had seen the woman both with her glasses
on and off. Although the glasses do constitute a single
distinguishing characteristic, we cannot say that this
feature is so unnecessarily striking as to corrupt the
entire display procedure and raise the likelihood of mis-
identification. We discussed the issue in the second Pendergrass
case, State v. Pendergrass (1980), Mon t . , 615 P.2d
201, 37 St.Rep. 1370, 1373-1374. See also, United States v.
Harrison (2nd Cir. 1972), 460 F.2d 270, 271 (per curiam),
cert.den. 409 U.S. 862 (1972). Given this situation, there
is no basis for holding the witness's identification testimony,
whether positive or tentative, inadmissible at trial. State
v. Oppelt, supra, 176 Mont. 499, 580 P.2d at 114.
Defendants also attack the jury instructions given in
relation to the identification process, and further contend
that the trial court erred in rejecting their proffered
instructions in relation to the identification process. The
trial court rejected the defendants' offered instructions
because it believed them to be a comment on the evidence.
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The general instruction relied on by the State is a
general instruction entitled, Credibility - Witnesses--
of
Discrepancies - Testimony.
in The instruction generally
states the rights and duties of the jury in relation to
giving credibility to testimony, which includes the witnesses'
opportunity to observe, the witnesses' motive and state of
mind. Although we do not consider this instruction a model
instruction to cover the defendants' contentions, we find no
prejudice here.
Defendants' offered instruction no. 8 is undeniably a
comment on the evidence, for it suggests that once a witness
makes a pretrial photographic identification, he will not
change this identification, regardless of the circumstances
and even if he believes it to be mistaken. This instruction
goes too far and invades the function of the jury. Whether
a witness is likely or unlikely to change his mind from a
previous identification, is a question for the jury, not
the courts to determine as a matter of law.
Although a special cautionary instruction may be re-
quired where identification testimony is the only evidence
tending to connect a defendant with commission of the act
charged, there is other evidence. The doctor's appointment
card found in room 109 of the Sheraton Inn clearly connects
Young to the room where the theft occurred. Furthermore,
the evidence admitted as to other offenses for the purpose
of showing a common scheme or plan did just that. By
showing that Young had checked into two other motels with a
woman, and using a similar modus operandi, and that television
sets were missing from each of the rooms occupied by Young,
the State was able to establish that it was not merely a
coincidence that a television disappeared from room 109 of
the Sheraton Inn while defendant was registered to that
room. Although not specifically offered to prove the issue
of identification, the evidence unquestionably helped to
establish that the State charged the right person with theft
of the television from the Sheraton Inn.
There is no physical evidence directly linking Strain
to room 109 of the Sheraton Inn, but evidence of other
offenses to show common scheme or plan, admitted in relation
to the theft of the television from the Triple Crown Motel,
similarly had the effect of establishing that Strain was
also involved in a common scheme or plan to rid motel rooms
of their television sets. The other crimes evidence effec-
tively eliminated a claim of Strain that the only
testimony linking her to the Sheraton Inn theft was that the
night clerk identified her from pictures and in the courtroom
as having been with defendant when he checked into room 109
of the Sheraton Inn. The evidence in relation to the Triple
Crown Motel reduced the chances that a misidentification
occurred in relation to placing Strain at the Sheraton Inn
with Young. We thus cannot say that a cautionary instruc-
tion was required in this case.
Defendants next argue that the trial court erred in
admitting testimony concerning television thefts from the
Triple Crown Motel and the Shasta Motel. Before trial
began, defendants tried to prevent the admission of this
evidence by a motion in limine--which was denied. Defendants
make several arguments. They argue first that the evidence
had no probative value and was so inherently prejudicial
that it denied a fair trial to defendants. secondly, they
argue that the cautionary instruction given was overly broad
in that it went beyond the stated purpose of the prosecution
for seeking its admission: that it was offered to prove a
common scheme or plan. Thirdly, they argue that the trial
court did not comply with the requirements of State v. Just
(19791, - Mont. , 602 P.2d 957, 36 St.Rep. 1649. Lastly,
Strain argues that the jury was permitted to consider her
involvement in the theft of the television from the Shasta
Motel even though there was not a shred of evidence to
connect her to this crime.
The evidence had probative value. It was offered by
the State to prove common scheme or plan, and that it did.
That the evidence was prejudicial cannot be denied; but all
prejudicial evidence is not inadmissible evidence. The
evidence also tended to prove that the disappearance of the
television set from room 109 of the Sheraton Inn was not
merely an unfortunate coincidence which circumstantially led
to the defendants. Although not offered to prove identity,
the evidence had the effect of helping to prove through
circumstantial evidence and connecting the defendants with
the common scheme and plan. The instruction as given
recited each element of Rule 403, Mont.R.Evid. For this
reason, it was overly broad, but neither defendant was
shown prejudice as a result. We remind the trial courts and
counsel, however, that jury instructions should be tailored
to the facts of the case. The instruction also stated that
the evidence could be considered to prove intent or motive.
Intent or motive was not really an issue in this case.
Defendants effectively conceded the thefts as their sole
defense was alibi. Thus, we fail to see how defendants were
prejudiced by this instruction.
The instruction effectively complied with the spirit of
State v. Just, even though there was no requirement here
that it do so. We stated in Just, that it does not have
retroactive effect. Furthermore, the defendants had advance
notice of the State's intent to use the evidence of other
offenses because that is why they filed the motion in limine.
Although the trial court did not give the cautionary instruc-
tion at the time the evidence was admitted as required by
Just, it did give the cautionary instruction at the con-
clusion of the trial. The failure to give the cautionary
instruction at the time the evidence was admitted was not
error. Before our decision in State v. Just, there was no
such requirement. Here, the cautionary instruction given at
the end of the trial was sufficient.
Strain also argues that the evidence of her involvement
in the Triple Crown theft did not meet the evidentiary stan-
dard required for connection to this offense. She argues
that the other crimes evidence must be proved beyond a
reasonable doubt, but we have never so held. Although de-
cided after this case, we held in State v. Just, supra, 602
P.2d 963, that the other crimes evidence must be clear and
convincing. It was such. The night clerk at the Triple
Crown Motel made a probable identification of Strain as the
woman with Young when he rented the room at the motel. His
description of her given to the police matched Strain's
actual appearance. Furthermore, Strain had been identified
as having been with Young on the night he checked into the
Triple Crown. This was sufficient to meet the clear and
convincing standard.
Nor can we agree with Strain's contention that the jury
was improperly allowed to consider evidence of the tele-
vision theft from the Shasta Motel and link her to that
theft. The State at no time during the trial sought to
connect the defendant to the theft from the Shasta Motel.
Furthermore, the jury was instructed that it was to consider
the evidence against each defendant as though each were
being tried alone. The court also told the jury to relate
the evidence only to the defendant against whom it was
received. Although not a model instruction, the jury obviously
knew that it could not relate the evidence in relation to
the television theft from the Shasta Motel against the
defendant, for there was no evidence to establish her connec-
tion to the theft. We note, furthermore, that one instruction
set forth the precise elements required to prove the defendant
guilty of the theft from the Sheraton Inn. This instruction
referred exclusively to the theft from the Sheraton Inn.
When considering the instructions as a whole, they clearly
did not permit the jury to implicate defendant in the theft
of the television from the Shasta Motel. We must assume
that the jury followed the instructions.
Next, Strain contends it was error for the trial court
to deny her motion to sever her trial from that of Young.
From an evidentiary standpoint, she argues that if she had a
separate trial, the evidence of other offenses would not
have been admissible at her trial. It is true that evidence
concerning the theft from the Shasta Motel would not have
been admissible, but the evidence concerning the theft from
the Triple Crown Motel would have been admissible under the
theory of a common scheme or plan. Thus, a severance would
not have helped her in this regard.
Under section 46-11-404(4), MCA, it is within the trial
court's discretion whether or not to grant a severance. See
State v. Fitzpatrick (1977), 174 Mont. 174, 569 ~ . 2 d383,
392. In considering whether there should be a joint trial,
the trial courts must, of course, consider several factors.
Joint trials speed the administration of criminal justice,
conserve judicial time, lessen the burden on prospective
jurors and obviate the necessity of recalling witnesses. On
the other hand, the trial court must weigh these benefits
against the potential prejudice to a defendant which may
arise as a result of his being tried with another defendant.
There was no real threat of prejudice here which would
interfere with a fair trial.
Both defendants were charged with stealing the same
television set from the Sheraton Inn. The State needed the
same witnesses to prove the offense against both defendants.
The Sheraton night auditor positively identified Strain and
Young as the couple which registered and checked into room
109 on October 14. The evidence of other offenses, with the
exception of the theft from the Shasta Motel, was offered
against both defendants. Both defendants raised an alibi
defense and used the same witnesses to support their claim
of alibi. Against this background, Strain's argument raising
the specter of "guilt by association", rings rather hollow.
The association with Young could have been shown even if she
had a separate trial. The jury was, we note, instructed
that it was to consider each defendants' guilt or innocence
separately. We thus find no prejudice in trying both
defendants together.
The last issue for discussion is the defendants' con-
tention that the trial court in refusing their offered
instructions cautioning the jury to disregard a witness's
testimony to the effect that she believed defense counsel
for the parties had intimidated her during the photo-
identification session which occurred before trial. After
the witness made this statement, defense counsel moved for a
mistrial but the trial court denied the motion. The court
stated, however, that it would appropriately instruct the
jury on this problem at the conclusion of the trial. De-
fendants offered two instructions but both were rejected.
The trial court stated that it would give one of its own.
Defendants contend that it did not give any instruction and
thus the case must be reversed.
The witness was testifying in relation to the theft of
the television from the Shasta Motel. Because Strain was
not implicated in this theft, she argues that had her motion
for severance been granted she would not have had to attend
the photo-identification session. Thus, she argues that the
effect of the witness's accusation of intimidation is that
Strain was connected with the theft from the Shasta Motel.
Young argues that failure to instruct the jury on the in-
timidation issue left the impression before the jury that
Young had attempted to intimidate a witness or was involved
in the theft, or both.
The trial court did instruct the jury on the issue, but
did not really meet the problem posed by defense counsel.
~ t s
instruction stated:
"Counsel, during the course of the trial, made
reference to the question of whether or not
certain witnesses had been intimidated. You
are instructed that you are to disregard these
statements."
The State contends that this instruction covered the
issue and being that repetitive instructions need not and
should not be given, the jury was properly instructed. We
cannot agree that this covered the issue posed by defense
counsel--for here the trial court told the jury to disregard
the statements of defense counsel. Defense counsel wanted
an i n s t r u c t i o n t e l l i n g t h e j u r y t o d i s r e g a r d t h e t e s t i m o n y
o f t h e w i t n e s s i n r e l a t i o n t o h e r c l a i m o f i n t i m i d a t i o n by
however, w e do n o t
defense counsel. T h i ~ ~ n o t w i t h s t a n d i n g ,
find reversible error.
Defense c o u n s e l have n o t urged on t h i s C o u r t t h a t t h e
e r r o r w a s s o bad t h a t a c a u t i o n a r y i n s t r u c t i o n c o u l d n o t
c o r r e c t it. Rather, they contend t h a t t h e t r i a l c o u r t
s h o u l d have g i v e n t h e r e q u e s t e d c a u t i o n a r y i n s t r u c t i o n , b u t
f a i l e d t o do s o a f t e r s t a t i n g t h a t one would be g i v e n . W e
c a n n o t a c c e p t t h e d e f e n d a n t s ' c l a i m s a s t o how t h e y w e r e o r
may have been p r e j u d i c e d by t h e t e s t i m o n y n o t c o v e r e d by a
specific instruction. Every unexpected u t t e r a n c e of a
witness does not c a l l f o r a cautionary i n s t r u c t i o n . W e see
no p r e j u d i c e t o t h e d e f e n d a n t s h e r e i n t h e f a i l u r e o f t h e
c o u r t t o g i v e one.
As w e have p r e v i o u s l y mentioned, t h e r e i s no need t o
d i s c u s s t h e i s s u e of t h e t r i a l c o u r t designating defendants
as dangerous o f f e n d e r s f o r p u r p o s e s o f p a r o l e e l i g i b i l i t y .
A t t o r n e y s from b o t h s i d e s have t o l d t h i s C o u r t t h a t t h e
e r r o r h a s been r e c t i f i e d and d e f e n d a n t s have now been appro-
p r i a t e l y c l a s s i f i e d a s nondangerous o f f e n d e r s f o r p u r p o s e s
of p a r o l e e l i g i b i l i t y .
The judgment of c o n v i c t i o n i s a f f i r m e d as t o e a c h
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defendant. e
W e concur:
Chief J u s t i c e
Justices