No. 14232 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

THE STATE OF MXl'I'ANA, 

Plaintiff and Respondent, 

-vsJUAN MANUEL GON.zALEs LARA, 

Deferadant and Appellant. 

Appeal frm: District Court of the Thirteenth Judicial District, 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellant: 

Poppler and Barz, Billings, mntana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Wntana 

Harold F. Hanser, County Attorney, Billings, Pbntana 

Sulsnitted on briefs: Sept* 20, 1978 

oe~idec$d~> ;,I 

Filed: ' ," 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Don's Food Center in Laurel, Montana, was robbed at 

1:19 p.m. on August 20, 1977. Mrs. Nelson, wife of the 

owner, was working alone in the store at the time of the 

robbery. She testified she did not see the robber as he 

entered the store because she was busy with a customer. 

The robber after a few minutes moved behind a cigarette 

rack where he was partially hidden from Mrs. Nelson's view. 

During this time Mrs. Nelson was working at the cash 

register with her head down. 

The robber then walked over and stopped in front of 

Mrs. Nelson approximately three feet away. As Mrs. Nelson looked 

up, the robber pulled a Halloween-type mask down over his 

face hiding his facial features completely. Mrs. Nelson 

testified she saw his face clearly for about "a second". 

At the trial, Mrs. Nelson described the robber as wearing 

a blue shirt and pants with a stocky build and of apparent 

Mexican descent. The robber brandished a pocketknife with 

an open blade and indicated he wanted the money from the 

cash register. Mrs. Nelson gave him the money, including 

two registered one dollar bills in a special money clip 

which, when the bills were removed, triggered an alarm at 

the Laurel police station. The robber then exited the 

store. 

Mrs. Nelson ran into the living room of their house 

adjoining the store. There she was able to see the robber 

as he ran to and got into a turquoise colored automobile. 

Mrs. Nelson did not see his face again, however, she did see 

the driver of the car. Mrs. Nelson watched the car for several 

blocks until it drove out of sight. 

Testimony was given at trial indicating the automobile 

Mrs. Nelson saw was stopped and its occupants apprehended 

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within fifteen or twenty minutes of the robbery. The appellant 

was one of the two occupants of the automobile. He was placed 

under arrest and read his constitutional rights in English 

and Spanish by an officer of the Montana Highway Patrol. 

The appellant was handcuffed and was sitting in the Highway 

patrolman's patrol car on the front passenger's side. 

Appellant asked the patrolman what was going on and then 

stated he was a hitchhiker whom the driver of the automobile 

had picked up shortly before being stopped. Appellant stated 

he had no knowledge of a robbery. 

Mrs. Nelson then arrived at the scene of the arrest. 

She was accompanied by an officer of the Laurel police 

department to the highway patrol car in which appellant was 

sitting along with the highway patrolman. Mrs. Nelson then 

identified appellant as the individual who had committed the 

robbery. The Highway Patrolman testified at trial that 

the Laurel police officer asked Mrs. Nelson "[Ils this one 

of the fellows that was involved," to which she replied, 

"[Yles, that fellow over on the passenger side is the fellow 

that was in the store." Mrs. Nelson then identified the 

driver of the stopped auto as the driver of the getaway car. 

She also identified the stopped automobile as the getaway 

automobile. 

Appellant was charged with robbery in the District 

Court, Thirteenth Judicial District, Yellowstone County. 

Appellant plead not guilty and received a jury trial. The 

jury returned a verdict of guilty and the court entered 

judgment accordingly. 

Appellant presents two issues for this Court to consider: 

(1) Did the one-on-one showup conducted immediately 

after the arrest of appellant but prior to any initiation 
of prosecutorial proceedings, and conducted without counsel 

for appellant, violate appellant's Sixth and Fourteenth 

Amendment right to counsel? 

(2) Was the identification made by Mrs. Nelson so 

impermissibly suggestive as to violate due process thus 

making any in-court identification inadmissible? 

Appellant first claims his constitutional rights were 

violated when he was subjected to a lineup without the 

presence of counsel. The United States Supreme Court has 

held such is not the case. 

In Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct. 

1877, 32 L.Ed.2d 411, defendant was arrested for burglary 

and taken to the police station. While there, the victim 

identified the defendant and another individual seated at 

a table as the men who had robbed him earlier. No attorney 

was present at that time and no formal charges hsd as yet 

been filed. 406 U.S. at 684, 685, 32 L.Ed.2d 415. The 

Supreme Court affirmed the judgment of conviction stating 

"it has been firmly established that a person's Sixth and 

Fourteenth Amendment right to counsel attaches only at or 

after the time that adversary judicial proceedings have been 

initiated against him." 406 U.S. at 688, 32 L.Ed.2d at 417; 

Moore v. Illinois (1977), U.S. , 98 S.Ct. 458, 464, 

54 L.Ed.2d 424. 

The Court noted it was the initiation of judicial criminal 

proceedings "that marks the commencement of the 'criminal 

prosecutions' to which alone the explicit guarantees of the 

Sixth Amendment are applicable." 406 U.S. at 690, 32 L.E?..2d 

at 418. It then declined to import into a routine police 

investigation an absolute constitutional guaranty applicable 

only after the onset of formal prosecutorial proceedings. Kirby, 

supra. We agree, and in this appeal find the right to counsel 

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had not yet attached at the time the appellant was subjected 

to the identification procedures. See, State v. Miner (1976), 

169 Mont. 260, 546 P.2d 252. 

This is not to say however, that a suspect in appellant's 

position is without constitutional safeguards. Kirby makes 

clear that the "Due Process Clause of the Sixth and Fourteenth 

Amendments forbids a lineup that is unnecessarily suggestive 

and conducive to irreparable mistaken identification." Kirby, 

406 U.S. at 691, 32 L.Ed.2d at 418. Thus, in case such as 

this, where no right to counsel attached to the identification 

procedure because it occurred before the commencement of 

judicial criminal proceedings, "due process protects the 

accused against the introduction of evidence of, or tainted 

by, unreliable pretrial identifications obtained through 

unnecessarily suggestive procedures." Moore, supra; Neil v. 

Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; 

Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L. 

Ed.2d 1199. 

This brings us to appellant's second issue. If we 

determine the identification procedure to be so unnecessarily 

suggestive as to violate due process, then the later incourt identification based on this prior identification must 

be deemed inadmissible as it was tainted by the primary 

illegality. Moore, 98 S.Ct. at 463; Gilbert v. California 

(1967), 388 U.S. 263, 272-273, 87 S.Ct. 1951, 18 L.Ed.2d 

1178; Wong Sun v. United States (1963), 371 U.S. 471, 83 

S.Ct. 407, 9 L.Ed.2d 441. 

The test we must use in making this determination is twopronged. First, was the identification procedure impermissibly 

suggestive; and, second, if so, did it under the totality of 

the circumstances have such a tendency to give rise to a substantial likelihood of irreparable misidentification that to 

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allow the witness to make an in-court identification would 

violate due process. United States ex rel. John v. Casscles 

(2d Cir. 19731, 489 F.2d 20, 23, 24; Neil v. Biggers, 409 

U.S. at 198, 34 L.Ed.2d at 410, 411. 

It cannot be denied the identification procedure used 

in this appeal was suggestive, and was, in all likelihood, 

unnecessarily so. The appellant was sitting handcuffed, in 

a patrol car, next to a uniformed patrolman, at a place where 

there were two other police vehicles, other officers, the 

getaway vehicle and the driver of that vehicle. Such oneon-one confrontations have been pointed out as suggestive 

and widely condemned by the United States Supreme Court. 

Stovall v. Denno, 388 U.S. at 302, 18 L.Ed.2d at 1206; 

Foster v. California (1969), 394 U.S. 440, 443, 89 S.Ct. 

1127, 22 L.Ed.2d 402, 407. Further there were no exigent 

circumstances here to warrant the one-on-one showup as existed 

in Stovall; the police in this case had the suspect in 

custody and could very easily have conducted a much less 

suggestive identification procedure. United States ex rel. 

Kirby v. Sturges (7th Cir. 1975), 510 F.2d 397, 403-404; 

State v. Pendergrass (1978), Mont . I P.2d 

, 35 St.Rep. (No. 14209, decided Oct. 30, 1978). 

Thus, we conclude the procedure used here was unnecessarily 

suggestive. However, the fact the showup was unnecessarily 

suggestive does not in and of itself result in a deprivation 

of due process. Neil v. Biggers, supra; United States ex 

rel. Kirby v. Sturges, 510 F.2d at 404. Under the second prong 

of the test we employ, we must consider whether the totality 

of the circumstances gives rise to the substantial likelihood 

of misidentification and so be violation of due process. In 

this regard "reliability is the linchpin in determining the 

admissibility of identification testimony." Manson v. 

Brathwaite (1977), 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 

140, 154. 

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The Court in Manson mandates weighing the corruptive 

effect of the suggestive procedure against factors to be 

considered in evaluating the likelihood of misidentification. 

Those factors were set out in Neil v. Biggers and 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." 

Neil v. Biggers, 409 U.S. at 199, 34 L. 

Ed.2d at 411; Manson, supra. 

Applying these factors to the facts of this appeal in our 

consideration of the totality of the circumstances, we cannot 

conclude the identification of appellant by Mrs. Nelson at 

the scene of the arrest was so unreliable as to constitute 

a violation of due process. 

During the commission of the crime, Mrs. Nelson testified 

the robber was approximately three feet away across the counter. 

Mrs. Nelson and the robber confronted each other for several 

minutes while the crime was being committed. The robbery 

took place in the early afternoon in a lighted store. Although 

Mrs. Nelson only observed the robber's face for a brief 

moment before it was hidden by the mask, she had ample 

opportunity to observe the robber's other physical characteristics and dress at the time of the robbery and as he ran to the 

getaway car. Mrs. Nelson's attention was not diverted in any 

manner during the robbery. In fact, Mrs. Nelson attempted to 

converse with the robber to ascertain exactly what he wanted. 

When Mrs. Nelson was asked if the appellant sitting in the 

patrol car was one of the individuals involved it was testified 

she replied "Yes, that fellow over on the passenger side is 

the fellow that was in the store." She exhibited no uncertainty 

as to his identity. This identification took place only 
ten to twenty minutes after the robbery had occurred. Thus 

there was not the factor of a long period of time intervening between the criminal act and the identification to 

cloud Mrs. Nelson's impressions. 

Admittedly Mrs. Nelson did not give a description of 

the robber prior to identifying him at the scene of the 

arrest. This, of course, was due in large part to the 

rapidity with which the police apprehended the suspected 

perpetrators. While it would have been better procedure and 

would have insured a less questionable identification, we do 

not find this omission makes the identification unreliable. 

Mrs. Nelson also admittedly only briefly saw the robber's 

face before he covered it with his mask. However, she did 

observe his general build, hair and dress. One federal 

circuit court has noted that the lack of a particular description of a suspect is not fatal to the identification when 

the witness has positively made the identification. The 

Second Circuit Court of Appeals has taken judicial notice 

that there is a "recognition" capability which may be different 

in degree and separate in kind from the "recall" capability. 

Casscles, 489 F.2d at 24. "This is somewhat analogous to 

the phenomenon . . . of not being able to recall a particular 

word to describe something, but of having no difficulty in 

recognizing and knowing the word upon seeing it." Casscles, 

supra. Therefore the lack of any particular description of 

the robber's face in the facts of this appeal is overcome by 

the observation Mrs. Nelson made at the time of the crime 

and the certainty with which she made the identification. 

Considering the totality of the circumstances presented 

by the facts of record in this case, we conclude that while 

the identification procedure was unnecessarily suggestive, 

it did not create a situation in which there was a substantial 

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likelihood of misidentification and therefore was not 

violative of due process. 

Judgment affirmed. 

c Justice 

We Concur: 

Chief Justice