IN THE SUPREME COURT O F THE STATE O F MONTANA
NO. 83-296
STATE O F MONTANA,
P l a i n t i f f and A p p e l l a n t ,
v.
GREGORY LYNN JOHNSON,
D e f e n d a n t and R e s p o n d e n t .
O R D E R
P E R CURIAM:
The opinion of this Court dated December 16, 1983,
S t a t e o f Montana v. G r e g o r y Lynn J o h n s o n , i s h e r e b y m o d i f i e d
to delete the words "at trial" on page three (3), line
f o u r t e e n ( 1 4 ) of t h e o r i g i n a l o p i n i o n .
The Clerk is d i r e c t e d t o mail a true copy of this
o r d e r t o c o u n s e l of r e c o r d f o r a l l p a r t i e s .
DATED t h i s 2 1 s t d a y o f December,
J
Justices
No. 83-296
I N THE SUPREME COURT OF THE STATE OF MONTANA
1983
STATE O MONTANA,
F
P l a i n t i f f and A p p e l l a n t ,
-vs-
GREGORY LYNN JOHNSON,
Defendant and Respondent.
APPEAL FROM: District Court of t h e Eighteenth 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 G a l l a t i n ,
The H o n o r a b l e J o s e p h B. G a r y , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
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
A. M i c h a e l S a l v a g n i , C o u n t y A t t o r n e y , Bozeman,
Montana
F o r Respondent :
G o e t z , Madden & Dunn, Bozeman, Montana
"-
Submitted on B r i e f s : September 2 , 1983
Decided: December 1 6 , 1 9 8 3
Filed: .ILL j. -: I Y U ~
8
--
Clerk
Mr. J u s t i c e L.C. Gulbrandson d e l i v e r e d t h e Opinion of the
Court.
This case comes on appeal from an order of the
District Court of the Eighteenth Judicial District in
Bozeman, Montana, granting part of defendant's motion to
suppress evidence.
The a l l e g e d f a c t s i n t h i s c a s e i n d i c a t e t h e f o l l o w i n g .
On t h e morning of August 23, 1982, the victim, a Bozeman
realtor, r e c e i v e d a phone c a l l f r o m a n i n d i v i d u a l c l a i m i n g
to be a Frank Bartlett. The caller requested that the
v i c t i m show him a h o u s e t h a t was l i s t e d through her real
e s t a t e agency. A r r a n g e m e n t s were made t o meet a t t h e h o u s e
l a t e r t h a t morning.
The v i c t i m a r r i v e d j u s t b e f o r e 1 1 : O O a.m. She e n t e r e d
t h e h o u s e t o make s u r e e v e r y t h i n g was i n o r d e r b e f o r e t h e
prospective buyer arrived. When she entered the master
bedroom, a man w e a r i n g a s k i mask and h o l d i n g a g u n jumped
o u t and g r a b b e d h e r . She g r a b b e d t h e b a r r e l o f t h e gun and
p u s h e d i t away f r o m h e r . A s t r u g g l e ensued.
The a s s a i l a n t o v e r p o w e r e d t h e v i c t i m and t h r e w h e r t o
the floor. H e t h r e w t h e gun i n t o a n e a r b y c l o s e t a n d l a i d
down on t o p o f her. The a s s a i l a n t p u l l e d out a hunting
k n i f e and t r i e d t o remove a s t r i p o f t a p e f r o m i t s b l a d e t o
cover t h e v i c t i m ' s eyes. She b e g a n t o s t r u g g l e a g a i n a n d
g r a b b e d a t t h e k n i f e , c u t t i n g h e r hand.
The struggling ceased and the assailant was again
l y i n g on t o p o f t h e v i c t i m . The a s s a i l a n t t h e n p l a c e d t a p e
o v e r t h e v i c t i m ' s mouth and t a p e d h e r h a n d s b e h i n d h e r b a c k .
H e then p u l l e d her over t o a corner of t h e room, p l a c e d h e r
in a sitting position and reached inside her clothing
touching her breast. The assailant then left.
The victim freed herself and reported the assault to
the Gallatin County Sheriff. She gave the Sheriff's office
a description of the assailant's voice and general
appearance.
On September 1, 1982, approximately one week after the
assault, the Sheriff's office informed the victim that they
had a suspect and wanted her to come in and listen to his
voice. The victim went to the Sheriff's office and was
asked to stand nea.r a door that was slightly opened. She
listened for approximately five minutes as the suspect
talked with Sheriff's officers. She could not see the
suspect. When asked if she could identify the voice, she
stated, ,
-
"Yes, I believe I can identify that
voice. That voice, if not the same voice
I heard up at Story Hills on the 23rd, it
was extremely similar. I would say it
was the same voice."
The victim stated she talked with the assailant for
approximately thirty minutes when the assault occurred. The
suspect was placed under arrest following the voice
identification.
On May 13, 1983, the District Court granted the
defendant's motion to suppress the voice identification as
evidence at trial. The District Court relied upon our
decision in State v. Pendergrass (1978), 179 Mont. 106, 586
P.2d 691, in making its ruling.
The State now appeals claiming the District Court
erred in granting defendant's motion to suppress the voice
identification.
The reliability of procedures used in eyewitness
identification was addressed by the United States Supreme
Court in a group of cases known as the Wade trilogy. United
States v. Wade (1967), 388 U.S. 218, 07 S.Ct. 1926, 10
L.Ed.2d 1149; Gilbert v. California (1967), 388 U.S. 263, 87
S.Ct. 1951, 18 L.Ed.2d 1178; Stovall v Denno
. (1967), 388
U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. The Wade trilogy
established a per se rule that excluded all evidence of an
identification obtained through unnecessarily suggestive
procedures when a fairer alternative was available. Thus,
the court in Stovall said:
"The practice of showing suspects singly
to persons for the purposes of
identification, and not as part of a
lineup, has been widely condemned.
[footnote omitted]. However, a claimed
violation of due process of law in the
conduct of a confrontation depends on the
totality of the circumstances surrounding
it. ..
Stovall, 388 U.S. 302. In Stovall, the court found an
exigent circumstance exception to the per se rule when they
approved an identification made after a one-on-one
confrontation because the witness was in danger of death.
Subsequent cases have not strictly applied the
standards expressed in the Wade trilogy, but have adopted a
more lenient totality of the circumstances approach. Under
this approach, the admission of testimony concerning an
unnecessarily suggestive identification procedure does not
violate due process standards so long as the identification
possesses sufficient aspects of reliability. Neil v.
Biqgers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401.
In Biggers, the court identified certain criteria to be
considered in determining whether the likelihood of
misidentification exists:
"We turn, then, to the central question,
whether under the 'totality of the
circumstances' the identification was
reliable even though the confrontation
procedure was suggestive. As indicated
by our cases, the factors to be
considered in evaluating the likelihood
of misidentification include the
opportunity of the witness to view the
criminal at the time of the crime, the
witness' degree of attention, the
accuracy of the witness' prior
description of the criminal, the level of
certainty demonstrated by the witness at
the confrontation, and the length of time
between the crime and the confrontation."
Bigqers, 409 U.S. at 199.
The Bigqers rationale was adopted by the Court in
Manson v. Brathwaite (1977), 432 U.S. 98, 97 S.Ct. 2243, 53
L.Ed.2d 140. In Manson, the Court examined the two
post-Biggers approaches taken by lower courts regarding
evidence obtained through suggestive identification
procedures:
"The first, or per se approach . . .
focuses on the procedures employed and
requires exclusion of the out-of-court
identification evidence, without regard
to reliability, whether it has been
obtained through unnecessarily suggested
confrontation procedures. (footnote
omitted)
"The second, or more lenient, approach is
one that continues to rely on the
totality of the circumstances. It
permits the admiss ion of the
confrontation evidence if, despite the
suggestive aspect, the out-of-court
identification possesses certain features
of reliability."
Manson, 432 U.S. at 110.
The Manson Court rejected the e r se rule stating,
" [tlhe per se rule . . . goes too far since its application
automatically and peremptorily, and without consideration of
alleviating factors, keeps evidence from the jury that is
reliable and relevant." The Manson Court added that
"reliability is the linchpin" in determining admissibility
for both pre- and post-Stovall confrontations. The Manson
Court concluded that the factors set out in Biggers are to
be applied, "and against these factors is to be weighed the
corrupting effect of the suggestive identification itself."
Manson, 432 U.S. at 114.
In State v. Pendergrass (1978), 179 Mont. 106, 586
P.2d 691, we applied the Biggers-Manson test to a voice
identification procedure. In Pendergrass, the defendant was
accused of committing a rape at a Helena grocery store.
Thirty-two hours after the incident occurred, the victim of
the assault was asked to come to the police station. She
was told that a suspect in the crime was going to be
questioned, and was given an opportunity to listen to the
conversation. The defendant and an officer were on one side
of a room divided, floor-to-ceiling, by filing cabinets with
the victim stationed on the other side. The officer
interrogated the suspect as to his activities on the night
in question. The suspect was not asked to repeat any
phrases the victim had said her assailant used. When the
victim was asked her opinion of the defendant's voice, she
replied either "I think that is the voice" or "I believe
that is the voice." We concluded that the totality of the
circumstances surrounding the voice identification gave rise
to a very substantial likelihood of irreparable
misidentification and due process required exclusion of the
evidence. In reaching that conclusion, we used a
step-by-step application of the Biggers-Manson criteria.
By applying the five-step Biqgers-Manson test, as
adopted in Pendergrass, to the facts of this case, we
conclude that the District Court erred in its decision.
Specifically, the five factors provide:
(1) Opportunity of the witness to view the criminal at
the time of the crime. Here, as in Pendergrass, the victim
did not see the assailant's face. However, in Pendergrass
the victim made conscious effort not to see her assailant
while the victim, in the present case, gave a detailed
description of his overall appearance. In particular, the
victim viewed her assailant for approximately twenty minutes
before her eyes were taped and described him as male,
approximately 5 ' 6 " in height, wearing brown scratched shoes,
blue jeans, blue hooded sweatshirt, dark curly hair, hazel
eyes with long eyelashes, strong garlic smell on his breath,
a heavy smell of aftershave and a soft, hesitating voice.
These facts indicate the first step of the Pendergrass test
was satisfied.
(2) The witness' degree of attention. Clearly the
victim was paying close attention to the assailant to
describe him as she did. Indeed, the assailant laid on top
of the victim for approximately thirty minutes after they
had scuffled over the gun and knife. In addition, at the
suppression hearing, the victim testified she was paying
close attention to the voice. Thus, the second step of the
Pendergrass test was satisfied.
(3) The accuracy of the prior description. The
previous discussion indicates the witness gave a detailed
description of her assailant. The description was much more
full and complete than the description given by the victim
in Pendergrass and the District Court properly determined
that the third step was satisfied.
(4) The witness1 level of certainty at the
confrontation. As previously noted, when the victim in this
case was asked if she could identify the voice of the
defendant at the initial confrontation she stated:
"Yes, I believe I can identify that
voice. That voice, if not the same voice
I heard up at Story Hills on the 23rd, it
was extremely similar. I would say it
was the same voice." (emphasis added)
At the suppression hearing, the victim gave the following
testimony on direct examination:
"Q. And could you identify this voice?
"A. At the time I thought it was
identical to the voice I heard in the
house.
"Q. And this was approximately one week
a£ter?
"A. One week after.
"Q. You've testified that you conversed
with the assailant for approximately a
half hour, is that correct?
"A. Yes, I talked constantly the whole
time, and he talked back to me. He never
told me to shut up.
"Q. And how close to this individual
were you during these conversation?
"A. If it wasn't face to face, he was,
it was always a very close proximity.
"Q. And during these conversations, were
you paying attention to this voice?
"A. Yes
"Q. Were there any distractions?
"A. No, well just the gun and the knife.
"Q. But other than that--
"A. No, no distraction. It was
absolutely silent except for the two
people talking, the two of us."
Upon cross examination the victim stated:
"Q. Well, you are completely sure that
that was the voice you heard.
"A. At that time I was."
The victim also said the following on cross examination:
"Q. And you were not at that time, that
is during the assault, focusing on a
voice. You were concerned about
protecting yourself and your welfare and
getting rid of the person.
"A. That's true, but it got to the point
where when he was laying on top of me for
it seemed like an eternity, we talked
during that time, and his voice was like
right here and we-- I at that point, I
think I'm an astute observer. I listened
and we conversed; and at that point there
were less distractions other than the
entire incident.
"Q. But you were not focusing at that
time or any other time on his voice
specifically?
"A. I was focusing on getting out of
there alive. "
The District Court held that the victim made the type of
equivocal voice identification that we held was inadmissible
on due process grounds in Pendergrass. In Pendergrass, we
said:
"Rather than making an unequivocal
statement at the time she made the
identification, the response of the
witness here was a qualified 'I think
that's the voice' or 'That sounds like
the voice.'"
Pendergrass, 179 Mont. at 117.
However, the statement of the victim in Pendergrass
was more equivocal than the statement of the victim in this
case. Rather than say "I think" or "I believe that's the
voice," here the victim said she could identify the voice
and added "I would say it was the same voice." This was an
unequivocal voice identification that should not have been
suppressed by the District Court. Moreover, the fact that
the assailant was lying on top of the victim for
approximately twenty minutes as he was speaking, makes the
victim's voice identification even more reliable than the
identification in Pendergrass. Thus, the fourth step of the
Biggers-Manson test was satisfied and the voice
identification should not have been suppressed because of
the victim's uncertainty.
(5) The time between the crime and the confrontation.
In Penderqrass, thirty two hours elapsed between the crime
and the confrontation. In the present case, approximately
one week elapsed between the assault and the confrontation.
We agree with the District Court that seven days between the
assault and the confrontration should not render the
identification inadmissible. Indeed, in State v. Dahl
(Mont. 1980), 620 P.2d 361, 37 St.Rep 1852, we held that an
eight-day delay between the time of the crime and the
confrontation was permissible.
In short, the application of the -
Biggers-Manson
criteria as adopted in Pendergrass, to the facts of this
case, indicate sufficient indicia of reliability to allow
the voice identification into evidence. However, our
decision does not stand for the proposition that the
identification procedure used by the police in this case was
ideal. Clearly a "voice line-up," in which the victim must
make an identification after listening to several voices, is
the most reliable procedure. Nevertheless, our analysis of
the totality of the circumstances in this case convince us
that the victim's voice identification was sufficient, and
the District Court erred in its ruling.
We therefore reverse and remand in accordance with our
decision.
We concur:
Mr. Justice Daniel J. Shea, dissenting:
I dissent. The one-person voice line-up was unduly
suggestive and I would hold the voice identification to
be inadmissible.