No. 80-117 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsWILLIAM S . DAHL, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, The Honorable 

William J. Speare, Judge presiding. 

Counsel of Record: 

For Appellant: 

Michael J. Whalen, Billings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Harold IIanser, County Attorney, Missoula, Montana 

Submitted on Briefs: July 11, 1980 

Filed: 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Defendant William Dahl appeals from a judgment of the 

Yellowstone County District Court, entered following a jury 

trial, convicting him of robbery. He also appeals from the 

trial court's order designating him as a dangerous offender 

for purposes of parole eligibility. We affirm the 

conviction but remand for redetermination of status for 

parole eligibility. 

Defendant raises three issues. He first challenges the 

order of the trial court refusing to suppress evidence 

relating to pretrial photographic line-up procedures. He 

next challenges the refusal of the trial court to instruct 

the jury that "mere presence at or about the scene where a 

crime is committed does not make one a party to the crime." 

Last, he contends that the trial court erred in concluding 

that section 46-18-404, MCA, required defendant to be 

classified as a dangerous offender for parole eligibility. 

The robbery charge stems from a robbery of a Billings 

Superamerica gas station and convenience store on the 

evening of August 30, 1979. Two men entered the store, 

waited until all the customers were gone, and then 

approached the clerk, Robert Heimer , and demanded the money 

from the cash register. One of the men, later identified as 

the defendant, grabbed him by his shirt collar, pulled him 

to the counter, and putting a knife to his throat, told him 

to hurry up. While the clerk gathered the money, the man 

held him with a knife to the clerk's throat. The clerk 

placed the money in a sack and gave it to one of the men. 

The men also took a cash drawer and then fled. 

The clerk immediately reported the robbery to the 
police and gave them a description of the men--one of the 

descriptions fitting that of the defendant. Two witnesses 

saw the men flee the store and get into a car, and they 

relayed the car's description to the clerk who in turn gave 

the description to the police. A few minutes later, the 

police noticed a vehicle near the Superamerica store which 

matched the description given to them, and they gave chase. 

They followed the vehicle for a short distance before 

the vehicle was driven into an alley and abandoned, the 

occupants fleeing on foot. The police gave chase on foot. 

Sometime later, another officer found the defendant hiding 

under a nearby car and arrested him. The cash drawer and 

money stolen from Superamerica were found near the abandoned 

car, and police also found nearby a paper bag similar to the 

ones used at Superamerica--bearing the defendant's 

fingerprint. Later that evening, while at the police 

station, one of the police officers identified defendant as 

being the driver of the car to which the officers gave 

chase. 

The identification process began after the defendant 

was arrested. He was taken to the Superamerica station in 

the back seat of a police car. The store clerk could not 

then make a positive identification of the suspect, 

apparently due to poor lighting in the car and station area, 

and because defendant was slouched over and exposed only his 

profile. But the store clerk went down to the police 

station later on the same evening and gave a description of 

the man who threatened him with the knife, which description 

very closely matched defendant's actual appearance. He also 

stated to the police while giving the description, that he 

was fairly certain that the man brought to the Superamerica 

station earlier that night had been one of the robbers. 
The next identification process took place some eight 

days after the robbery, after the defendant had been in 

custody, and after counsel had been appointed. The store 

clerk came to the police station to look at a photographic 

line-up for purposes of identification. The police showed 

him six photographs of persons resembling the description of 

the man he had previously given to the police, and the clerk 

immediately identified the defendant as that man. Defendant 

was in custody at the time but was not present for this 

photographic line-up. Defendant's counsel was not present. 

Defendant moved to suppress the photographic identification 

and thus prevent the robbery victim from testifying in court 

that he had identified defendant through a photographic 

line-up presented to him by the police. 

Both the robbery victim and the police officer who 

arranged the photographic line-up, testified that the 

photographs showed both a full face view and a profile view 

of the subjects involved. The police officer testified, 

however, that he also possessed a Polaroid picture of the 

defendant showing only a face view. He agreed that it was 

possible that the robbery victim had seen the Polaroid 

picture before he made the identification from the photographic line-up, but stated he had no knowledge that this 

was so. Defense counsel at no time asked the robbery victim 

if he had been shown the Polaroid picture before making the 

identification from the photographic line-up. 

Defendant's motion to suppress was based on the 

contentions that the robbery victim's ability to identify 

him as the man who held the knife to his throat was tainted 

by the fact that he had seen the defendant shortly after the 

robbery when he was in police custody, and that the robbery 

victim may have seen the Polaroid picture before making the 
photographic line-up identification. The trial court denied 

this motion to suppress, and defendant now urges this as his 

first appeal contention. 

At trial the robbery victim positively identified 

defendant as the man who had held the knife to his throat. 

Defendant testified in his own behalf and admitted that he 

was at the Superamerica station in his automobile when the 

robbery occurred, but denied that he was directly involved. 

His story is that he was giving two friends a ride in his 

car, and one of them asked him to stop at the Superamerica 

store to get some beer. He states he did not know of any 

plans for a robbery, or of any robbery, until his friends 

returned to his car. He claims his friends committed the 

crime without his knowledge. 

The jury convicted defendant of robbery, and the trial 

court sentenced him to fifteen years in prison, also 

designating him, pursuant to section 46-18-404, MCA, as a 

dangerous offender for purposes of parole eligibility. 

Defendant contends that the pretrial photographic 

identification process was so suggestive as to create a 

substantial likelihood of misidentification. He also argues 

that his right to counsel was denied him because counsel was 

not present at the photographic line-up session. 

The touchstone of a denial of due process emanating 

from a photographic identification process is whether the 

process was so suggestive as to present a "substantial 

likelihood of misidentification." State v. Pendergrass 

(19801, Mont. , 615 P.2d 201, 37 St.Rep. 1370; 

Manson v. Brathwaite (1977), 432 U.S. 98, 97 S.Ct. 2243, 53 

L.Ed.2d 140; Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 

375, 34 L.Ed.2d 401. See, for example, State v. Lara 

(1978) I Mont . , 587 P.2d 930, 35 St.Rep. 1699; 
State v. Oppelt (1978), 176 Mont. 499, 580 P.2d 110; where 

we have applied the rules set forth by the United States 

Supreme Court. An in-cour t identification of the defendant 

is permitted if it is determined that the pretrial 

identification process did not violate these rules. 

Here the robbery victim was in an excellent position to 

view the robber. They were very close to each other in a 

well-lit location for at least thirty seconds. His first 

description of the man who held the knife to his throat was 

a fair description of the defendant. Eight days later, when 

he chose the defendant from the photo-array line-up, he did 

so immediately and with assurance. This eight-day lapse 

between the robbery and the photo-identification was not, 

under the circumstances here, sufficient to purge from the 

victim's mind a reasonably precise picture of the attacker's 

identity. Nor, of course, can we ignore the testimony which 

clearly placed the defendant in the car which sped away from 

the Superamerica station after the robbery. The fact that 

his car was identified as belonging to the defendant, and 

that defendant had abandoned his car in an alley a few 

blocks away from the Superamerica station and was found by 

the police hiding under another car, is more than a little 

indicative of his involvement in the robbery. Nor can we 

ignore the fact that the cash drawer and money stolen from 

the Superamerica were found abandoned near the car from 

which defendant had fled, and that defendant's fingerprint 

was found on a paper sack near the car which was similar to 

paper sacks used at Superamerica. These factors must be 

considered along with the identification process, and when 

so considered, they do not point to a substantial chance of 

misidentification. Rather, they point straight at 

defendant's guilt. 
We do not find error in the failure to have defense 

counsel present at the photo-array identification process. 

The United States Supreme Court in U.S. v. Ash (1973), 413 

U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619, has held that the 

confrontation clause is not violated by a photo-array 

identification process, and therefore, that the right to 

counsel does not attach. We have followed - Ash, and have 

refused presently to adopt a stricter rule under our own 

constitution. See State v. Strain and Young, Cause No. 

14863, Decided October 22, 1980. 

Defendant next contends that because his defense 

involved an admission of being at the scene of the crime but 

of not being involved except after the fact, that he was 

entitled to an instruction that "mere presence at or about 

the scene where a crime is committed does not make one a 

party to a crime." He offers no authority for this 

instruction, and neither was he prejudiced by the trial 

court's refusal to give this instruction. Here, the 

instruction fairly covered the issues raised. The charge of 

robbery, plus the jury instructions, required that the jury 

find not only that defendant was present at the scene but 

that he was the person who held the knife to the store 

clerk's throat. Thus, the jury was fully aware that mere 

presence at the scene of a crime is not sufficient to prove 

criminal involvement. The jury believed that defendant 

committed the crime by holding the knife to the store 

clerk's throat, and the evidence is clearly sufficient to 

sustain this belief. 

We agree, however, with defendant's final contention 

that the trial court erroneously determined that under 

section 46-18-404, MCA, he was required as a matter of law 

to designate defendant as a dangerous offender for purposes 
of parole eligibility. Defendant had been previously been 

convicted of a felony. in Wyoming less than five years 

preceding the commission of the crime involved in this case. 

At the sentencing hearing the prosecutor urged the 

court to sentence defendant to impose a twenty-year prison 

sentence and to designate defendant as a dangerous offender. 

Defense counsel urged the court to impose no more than a 

ten-year prison sentence and to designate defendant as a 

nondangerous offender. In response to these 

recommendations, the sentencing court stated that "I am 

going to designate him (the defendant) dangerous, because I 

feel I have no option under the statute." The court 

sentenced defendant to fifteen years in prison and 

designated him as a dangerous offender for purposes of 

parole eligibility. 

Defendant's contention is that the sentencing court was 

not statutorily required to designate him as a dangerous 

offender, and thus, had he chosen to do so, could have 

designated him as nondangerous. The State, on the other 

hand, argues that the statute leaves no discretion in the 

sentencing court, and that under the facts of this case the 

duty of the court to designate defendant as a dangerous 

offender was mandatory. 

For purposes of analysis, we first set forth the 

statute in its entirety. Section 46-18-404, MCA, provides: 

"Designation as nondanqerous ------------- offender for 

purposes --- ofparole --- eligibility. ----- (1) The 

sentencing court shall designate an offender 

a nondangerous offender for purposes of 

eligibility for parole under part 2 of 

chapter 23 if: 

"(a) during the 5 years preceding the 

commission of the offense for which the 

offender is being sentenced, the offender was 

neither convicted of nor incarcerated for an 

offense committed in this state or any other 

jurisdiction for which a sentence to a term 

of imprisonment in excess of 1 year could 
have been imposed; and 

"(b) the court has determined, based on any 

presentence report and the evidence presented 

at the trial and the sentencing hearing, that 

the offender does not represent a substantial 

danger to other persons or society. 

"(2) A conviction or incarceration may not 

be considered under subsection (1) (a) if: 

"(a) the offender was less than 18 years of 

age at the time of the commission of the 

present offense; or 

"(b) the offender has been pardoned for the 

previous offense on the grounds of innocence 

or the conviction for such offense has been 

set aside in a postconviction hearing. 

" ( 3 If the court determines that an 

offender is not eligible to be designated as 

a nondangerous offender, it shall make that 

determination a part of the sentence imposed 

and shall state the determinaton in the 

judgment. Whenever the sentence and judgment 

do not contain such a determination, the 

offender is considered to have been 

designated as a nondangerous of fender for 

parole. " 

Although this statute is not a model of clarity, we 

conclude that it is mandatory only where the circumstances 

require the sentencing court to sentence one as a 

nondangerous offender. 

The statute imposes limitations on a sentencing judge 

in three situations: First, if the judge finds that the 

defendant was not convicted of felony within 5 years 

immediately preceding the offense in question, and also 

finds "that the offender does not represent a substantial 

danger to other persons or society," the defendant must be 

designated as a nondangerous offender. Section 

46-18-404(1)(a) and (b), supra. This part of the statute 

does not require the judge to designate one as dangerous; 

rather, it sets forth the circumstances under which the 

defendant must be designated as nondangerous. 

Second, subsections (2)(a) and (b), set forth the circumstances under which a conviction cannot be considered for 
purposes of triggering a possible determination that one is 

'a dangerous offender . If the offender was less than 

eighteen years of age at the time of the "present offense", 

the prior conviction cannot be used as a basis to trigger a 

finding that the defendant is dangerous. Or, if the 

offender had either been pardoned on the grounds of 

innocence for the previous offense, or had the previous 

offense set aside in a postconviction hearing, the previous 

offense cannot be considered as a basis to trigger a finding 

that the defendant is dangerous. We note here, that 

defendant makes no claim to come under any of these 

provisions of the statute. 

The third situation, however, is determinative of the 

issue here. Section 46-18-404 (3), supra, sets forth the 

requirements for the judgment in order that a designation of 

dangerousness take effect. The first sentence requires that 

if the court designates one as a dangerous offender, the 

court must "make that determination a part of the sentence 

imposed and shall state the determination in the judgment." 

But the second sentence of this subsection requires that a 

different result attach if the sentencing court either 

refuses or fails to make that designation in the judgment. 

It states: 

"Whenever the sentence and judgment do not 

contain such a determination, the offender is 

considered to have been designated as a 

nondangerous offender for purposes of 

eligibility for parole." Section 46-18- 

404(3), MCA. 

We cannot ignore this sentence. To declare a defendant 

ineligible for parole eligibility, the sentencing court is 

statutorily required to designate him as dangerous for that 

purpose. Clearly, by failing to make such designation part 

of the judgment, either by oversight or by an exercise of 

sentencing discretion, the statute declares that the 
defendant involved is to be "designated as a nondangerous 

offender for purposes of parole eligibility." 

Although there is a designation in the judgment that 

the "defendant be punished as a dangerous offender, by 

imprisonment at hard labor . . . for the term of FIFTEEN 

(15) YEARS," the underlying assumption of the sentencing 

court when such judgment was entered is that the statute 

required the sentencing court to designate defendant as a 

dangerous offender. But, as we have reasoned, the 

sentencing court was not required by statute to make this 

designation. By merely failing to make any designation in 

the judgment as to the defendant's status, the defendant 

would be statutorily declared nondangerous. The sentencing 

court did not consider this option when it sentenced the 

defendant. 

The judgment of conviction is affirmed. We remand this 

cause to the District Court for resentencing. 

We Concur: 

........................... Chief Justice 

p-":-*--- Justices 
Mr. Chief Justice Frank I. Haswell, concurring in part and 

dissenting in part: 

I would affirm the judgment and sentence in its entirety. 

I concur in affirming the judgment of conviction for the 

reasons stated in the majority opinion. I dissent from the 

majority construction of section 46-18-404, MCA and remanding the 

cause to the District Court for resentencing the defendant. 

Although the statute is inartfully drafted, it implies, at 

least, that a convicted offender is inelegible for designation as 

a nondangerous offender if he was convicted or incarcerated in 

any jurisdiction for a felony during the preceding five years. 

Section 46-18-404(1)(a), MCA. In this case defendant was convicted of burglary on August 25, 1976, in the State of Wyoming. 

Subsection (3) of the statute simply provides a catchall for the 

benefit of the defendant in cases where the sentencing court 

neglects to incorporate defendant's none1 igibil ity for nondangerous offender status in the judgment. I do not construe 

subsection (3) as a discretionary grant of authority to the sentencing court to confer nondangerous offender status to a convicted felon who has a prior felony conviction within five years. 

Chief Justice