IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
R B 1 w
-vs-
MAY 1 6 19911
NORMAN E. SCHOFFNER,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Allen Beck, Billings, Montana
Norman E. Schoffner, Pro Se, Deer Lodge, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, James
Yellowtail, Assistant Attorney General, State of
Montana, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney, Brent
Brooks, Deputy County Attorney, Billings, Montana
Submitted on Briefs: March 21, 1991
Decided: May 16, 1991
Filed:
w
Justice Karla M. Gray delivered the Opinion of the Court.
The defendant, Norman E. Schoffner, appeals his conviction of
burglary following a jury trial in the District Court of the
Thirteenth Judicial District, Yellowstone County. We affirm.
As a preliminary matter, we note that after the notice of
appeal was filed in this case, the defendant's court appointed
appellate counsel filed a motion to withdraw as counsel on the
basis of lack of meritorious appealable issues. Counsel's motion
was accompanied by an "Anders" brief which referred to possible
arguments in support of the appeal, as required by Anders v.
California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493.
This Court's examination of the record, required by Anders,
resulted in its conclusion that counsel's evaluation of the case
was sound; therefore, we granted counsel leave to withdraw and
allowed the defendant to proceed with the appeal pro se. The
defendant filed his pro se brief with this Court on January 22,
1991, to which the State subsequently responded. We now consider
the issues raised by the defendant.
1. Was the defendant's arrest supported by probable cause?
2. Did the show-up identification conducted immediately after
the defendant's arrest, but prior to the initiation of adversarial
judicial proceedings, violate defendant's Sixth and Fourteenth
Amendment right to counsel?
3. Was the show-up identification impermissibly suggestive
so as to violate the defendant's due process rights?
4. Was the defendant denied effective assistance of counsel?
2
Our review of the record reveals that the defendant's first
three issues were not raised during any stage of the proceedings
in the trial court. It is the law of this State that, absent
statutorily prescribed circumstances not material to the case now
before us, a defendant cannot appeal issues which were not raised
with the trial court. Section 46-20-104 (2), MCA; 5 46-20-701, MCA.
However, in light of the procedure required by the United States
Supreme Court in Anders, we will address these issues on the
merits.
The factual background of this appeal is as follows: At
approximately 5:00 a.m. on October 3, 1988, Greg Straw, Susan Ware,
and Audrey Marlenee were in Straw's second floor apartment located
in Billings, Montana. All three heard the sound of breaking glass
and went to the apartment's front windows to determine the cause.
All three saw a black man they later described as wearing a white
coat and red-colored pants, crawl through a broken window in to the
laundromat directly across the street. Greg Straw immediately
called the police to report the incident. The eyewitnesses
observed the man rummage through the drawers and cabinets inside
the laundromat for a few minutes, crawl back outside the broken
window and walk away. During this time Mr. Straw was on the
telephone with the police dispatcher and relayed the foregoing
information, giving a "blow by blow1'account of the burglary as it
occurred.
Police Officer Allan Bentz was given a description of the
suspect and dispatched to the scene. Officer Bentz observed the
defendant, who was dressed similarly to the description of the
suspect, approximately one block from the scene of the burglary.
Officer Bentz stopped the defendant, and advised him of the reason
for the stop. As a precaution, the officer patted him down for
weapons and discovered that the defendant had a large quantity of
change in his pants pocket. The defendant was then arrested and
read his Miranda rights. At the request of an officer at the scene
of the crime, Officer Bentz then transported the defendant to the
laundromat in his patrol car. At the laundromat, the defendant was
made to stand beside the patrol car. The eyewitnesses positively
identified the defendant as the person they observed inside the
laundromat. The defendant was then taken to City Hall for booking.
At City Hall, a large quantity of change, three $20 bills and one
$5 bill were taken from the defendant's pockets. One of the $20
bills was a 1934 issue with distinctive coloring.
Officer Craig Wrzesinski interviewed the owner of the
laundromat, Wilma Imel, as to the property taken and had her fill
out a stolen property report form. She had discovered that at
least $5 in change had been taken along with $60 to $80 in $20
bills. She described one $20 bill as being a 1934 issue which was
unusually dark in color.
On October 5, 1988, the defendant was charged by information
with the offense of burglary. On October 6, 1988, the State
notified the defendant that it intended to seek designation of the
defendant as a persistent felony offender on the basis of two
previous felony convictions.
Trial began on January 9 , 1989. At trial, both Mr. Straw and
Ms. Ware described their identification of the defendant at the
scene of the crime following his arrest. In addition, both
identified the defendant again in the courtroom as the person they
had observed committing the burglary. The third eyewitness, Ms.
Marlenee, did not testify. On January 10, 1989, the jury found
the defendant guilty of burglary. The District Court subsequently
sentenced the defendant to fifteen years on the burglary conviction
and to another ten years as a persistent felony offender, with the
sentences to be served consecutively.
I.
The defendant contends that he was illegally arrested because
his arrest was not supported by probable cause. We disagree.
The probable cause requirement is satisfied at the time of the
arrest if the facts and circumstances within the officer's personal
knowledge, or imparted to the officer by a reliable source, are
sufficient to warrant a reasonable person to believe that the
suspect has committed an offense. State v. Lee (1988), 232 Mont.
105, 109, 754 P.2d 512, 515; State v. Ellinger (1986), 223 Mont.
349, 352, 725 P.2d 1201, 1202. In this case, one of the
eyewitnesses, Mr. Straw, gave the police dispatcher an ongoing
account of the crime as it occurred, including a description of the
perpetrator. The dispatcher relayed this information in a
broadcast to patrol officers. Officer Bentz testified that he
observed the defendant within one block of the laundromat. The
defendant was dressed similarlyto the broadcast description of the
suspect and was the only person in the area. After stopping the
defendant, Officer Bentz patted him down for weapons and discovered
that the defendant had a large quantity of coins in his pants
pocket. Given these facts and circumstances, there is no question
that probable cause existed to believe the defendant had committed
the offense of burglary. Thus, we find no merit in the defendant Is
contention.
11.
The defendant claims that his constitutional rights were
violated when he was subjected to the post-arrest show-up without
the presence of counsel. The United States Supreme Court has
stated that a person's Sixth and Fourteenth Amendment right to
counsel attaches only "at or after the initiation of adversary
judicial criminal proceedings--whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment."
Kirby v. Illinois (1972), 406 U.S. 682, 689, 92 S.Ct. 1877, 1881,
32 L.Ed.2d 411, 417; see also State v. Lara (1978), 179 Mont. 201,
587 P.2d 930. In addition, the United States Supreme Court noted
in Kirby that although Miranda v. Arizona (1966), 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694, extended the right to counsel, it did
so only in the limited context of custodial interrosations and has
no applicability to identification procedures conducted before the
initiation of adversarial judicial proceedings. Kirby, 406 U.S.
at 687, 92 S.Ct. at 1881, 32 L.Ed.2d at 416. Because no
adversarial judicial proceedings had been initiated against the
defendant at the time he was subjected to the identification
procedure, his right to counsel had not yet attached.
The defendant next contends that the show-up identification
procedure violated his due process rights. He argues that the
suggestive nature of the procedure tainted the in-court
identifications made by Mr. Straw and Ms. Ware. In determining
whether an in-court identification based on a pretrial
identification is admissible, the test we must use is two-pronged.
First, we must determine whether the pretrial identification
procedure was impermissibly suggestive; and second, if
impermissibly suggestive, did the procedure have such a tendency
to give rise to a substantial likelihood of irreparable
misidentification that to allow the witness to make an in-court
identification would violate due process, under the totality of the
circumstances. Neil v. Biggers (1972), 409 U.S. 188, 198, 93 S.Ct.
375, 381, 34 L.Ed.2d 401, 410-11; Lara, 587 P.2d at 932.
The procedure used to identify the defendant was undoubtedly
suggestive. The defendant was brought to the scene of the crime
and made to stand alone near uniformed police officers and a patrol
car. This Court recognized the suggestive nature of this type of
identification procedure in State v. Rudolph (1989), 238 Mont. 135,
141, 777 P.2d 296, 300, stating that:
Indeed, a llshow up" identification requiring a "yes or
no1' answer is a far less desirable situation than
positively picking out a person from an anonymous lineup.
Biqqers, 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, ll[l]awenforcement agencies [are]
ill advised to rely solely on one-to-one showups in
identifying suspects with a crime." Campbell, 711 P.2d
at 1362.
Under the second prong of the test, we must determine whether,
under the totality of the circumstances, the identification
procedure gave rise to a substantial likelihood of irreparable
misidentification. Biqgers sets forth five factors to be
considered in evaluating the likelihood of misidentification.
These factors are:
[Tlhe 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 criminal, the level of certainty demonstrated by
the witness at the confrontation, and the length of time
between the crime and the confrontation.
Biqqers, 409 U.S. at 199-200, 93 S.Ct. at 382, 34 L.Ed.2d at 411.
Both Mr. Straw and Ms. Ware had ample opportunity to view the
defendant during the burglary. Both testified that they observed
the defendant in the laundromat for several minutes and that the
inside of the laundromat was well lit. Mr. Straw and Ms. Ware were
more than casual or passing observers of the burglary. At the
sound of breaking glass, both went to the apartment window
overlooking the laundromat and watched with concern the commission
of the burglary. Mr. Straw gave a I1blow by blow1I account of the
burglary as it occurred. The descriptions given to the police by
both witnesses were accurate regarding the perpetratorls race,
gender, size, and the color of his jacket. Both testified that
during the pretrial identification the light outside the laundromat
was sufficient to permit a clear observation of the defendant and
both were quite certain that the defendant was the person who was
inside the laundromat. The record also reveals that less than ten
minutes passed between the crime and the confrontation and that the
defendant was stopped approximately one block from the laundromat.
The defendant points to discrepancies between the descriptions
given and his actual attire and argues that the witnesses were at
least in error, if not perjurious. He argues that the color of his
pants was closer to purple than to red, as described by the
witnesses, and that he was wearing a baseball cap which neither
witness described initially. Such variations in detail affect the
weight rather than the admissibility of the pretrial
identification. State v. Rudolph (1989), 238 Mont. 135, 142, 777
P.2d 296, 300.
Considering the totality of the circumstances, we hold that,
although suggestive, the identification procedure did not create
a substantial likelihood of misidentification.
IV.
The defendant maintains that he received ineffective
assistance of counsel in that trial counsel (1) failed to meet with
him often enough to prepare an adequate defense; (2) stated that
the defendant had no chance of acquittal and suggested a plea
bargain; (3) failed to contact and interview potential witnesses
whose testimony was essential to giving credibility to the
defendant's assertion of innocence; (4) failed to object to the
prosecution's motion to reschedule the trial date; (5) failed to
object to the testimony of Wilma Imel whom the defendant contends
was never endorsed as a witness prior to trial; (6) failed to
ensure that Audrey Marlenee, an eyewitness, testified at trial; and
(7) failed to challenge the discrepancies between statements made
by witnesses Straw, Ware, and Imel to police on the date of the
offense and their testimony at trial.
In State v. Coates (1990), 241 Mont. 331, 337, 786 P.2d 1182,
1185, this Court made the following observation regarding claims
of ineffective assistance of counsel:
In evaluating ineffective assistance of counsel
claims, this Court utilizes a two-part test set forth in
Strickland v. Washinqton (1984), 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674. First, counsel's performance must
be deficient. To assess deficient performance, this
Court employs the "'reasonably effective assistance1test
of whether a defendant's counsel acted within the range
of competence demanded of attorneys in criminal cases.
(Citation omitted.)" State v. Elliott (1986), 221 Mont.
174, 178, 717 P.2d 572, 575. Second, counsel's deficient
performance must have so prejudiced the defendant as to
deprive the defendant of a fair trial. State v. Leavens
(1986), 222 Mont. 473, 475, 723 P.2d 236, 237. The
standard for evaluating prejudice is whether a reasonable
probability exists that but for counsel's deficient
performance, the trial's outcome would have been
different. Leavens, 723 P.2d at 237. However, in
evaluating a defense counsel's performance, this Court
will not second guess trial tactics and strategy. State
v. LaValley (1983), 203 Mont. 393, 397, 661 P.2d 869,
872.
Our review of the defendant's allegations in the context of
a direct appeal must be confined to the record. Section 46-20-
701, MCA; State v. Black (Mont. 1990), 798 P.2d 530, 532, 47
St.Rep. 1677, 1679. The defendant's first three claims require
consideration of factual matters outside the record; thus, they are
inappropriate in the context of a direct appeal. Black, 798 P.2d
at 533.
The defendant's fourth claim alleges that counsel failed to
object to the prosecution's motion to reschedule the trial date.
The record shows that the District Court continued the December 12,
1988 trial date due to the absence of a State witness. The
granting of the continuance was within the discretion of the
District Court and the defendant has failed to show how he was
prejudiced by the delay.
The fifth claim alleges counsel should have objected to the
testimony of Wilma Imel because she was not endorsed as a witness
prior to trial. This allegation is factually unfounded. A review
of the record indicates Imel was endorsed as a State witness by
stipulation on December 28, 1988.
The defendant next alleges counsel failed to ensure that
Audrey Marlenee, an eyewitness, testified at trial. Although she
did not testify at trial she did give a statement to police on the
date of the offense, identifying the defendant as the perpetrator
of the burglary. Her testimony could reasonably have been expected
to be merely cumulative to that of the other eyewitnesses. The
defendant has failed to show how the absence of this witness
prejudiced his defense or affected the outcome of the trial.
The defendant's last claim alleges that counsel failed to
challenge the discrepancies between statements given to police by
witnesses Straw, Ware and Imel, and their testimony at trial. A
review of the transcript reveals that counsel did not cross-
examine Mrs. Imel. The statements given to police by Mr. Straw and
Ms. Ware did not mention that the defendant was removed from the
patrol car at the scene by the arresting officers and neither
described the perpetrator of the crime as wearing a cap, although
the defendant was wearing one when arrested. Contrary to the
defendant's contention, however, counsel made a concerted effort
to illustrate the discrepancies when cross-examining Mr. Straw and
Ms. Ware. The defendant has failed to show counsel's performance
was deficient in this regard.
Affirmed.
We concur:
Justice Terry N. Trieweiler concurring in part and dissenting in
part.
I concur with the majority's disposition of the first three
issues raised by the defendant.
I dissent from that part of the majority's decision which
refuses to consider the first three bases upon which appellant
contends that he received ineffective assistance of counsel. The
majority's rationale for not considering these allegations is that
to do so would require consideration of factual matters outside the
record. That is correct. There cannot logically be any record of
an attorney's failure to meet with his client and prepare an
adequate defense; or of conversations between defendant and his
counsel; or of counsel's failure to contact potential witnesses.
However, it is not a reasonable use of this Court's resources
to refuse to consider those issues in this appeal and invite a
petition for post-conviction relief to consider the same issues.
The majority cited State v. Black, 798 P.2d 530, 532, 47
St.Rep. 1677, 1679 (Mont. 1990), as authority for its refusal to
consider matters which are not part of the record. However, the
action taken in this case is not consistent with what this Court
did in State v. Black. In that case, even though defendant raised
ineffective assistance of counsel on direct appeal, that appeal was
treated as a petition for post-conviction relief for purposes of
dealing with that issue, and remanded to the District Court for an
evidentiary hearing to allow the defendant to develop the necessary
13
record with which to argue inadequacy of counsel. That defendant's
appeal from the adverse finding of the trial court was then
consolidated with the remaining issues on appeal. The following
quote from State v. Black is illustrative of what was done in that
case:
In this case, although defendant originally raised
the issue of ineffective assistance of counsel on direct
appeal, the resolution of such issue required
consideration of factual matters not contained in the
record thereby making it an inappropriate issue for
direct appeal. Section 46-20-701, MCA; Soe v. E l o t 221
tt lit,
Mont. 174, 178, 717 P.2d 572, 575 (1986). Because
defendant's filing failed to meet the requirements of a
direct appeal, we appropriately treated such filing as
a petition for post-conviction relief, as provided in
§ § 46-21-101 to 203, MCA. We then remanded defendant's
claim to the District Court so that an evidentiary
hearing could be held that would allow defendant to
present those factual matters necessary to his claim.
See Sae v. L v r u e 212 Mont. 31, 33, 685 P.2d 375, 376
tt aedr,
(1984).
State v. Black, 798 P.2d at 532.
I would follow the same procedure followed in the Black
decision in order to avoid duplication of proceedings in this case.