No. 80-117 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

STATE OF MONTANA, Plaintiff and Respondent,-vsWILLIAM S

# . DAHL, Defendant and Appellant.

Appeal from: DistrictCourt of the ThirteenthJudicial District, Inand fortheCounty of Yellowstone, The Honorable William J. Speare, Judge presiding.

Counsel of Record: ForAppellant: Michael J. Whalen, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Harold IIanser, County Attorney, Missoula, Montana

Submittedon 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 ajury trial, convicting him of robbery. He also appeals from the trial court's order designating him asa 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 firstchallenges 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 ator about the scene where a crime is committed does notmake 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 classifiedasa dangerous offender forparoleeligibility. 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 themoney from thecash register. One of themen, later identified as the defendant, grabbed him by his shirtcollar, pulled him to the counter, and putting a knife tohis 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 alsotook a cashdrawer and then fled. The clerk immediately reported the robbery to thepolice 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 descriptionto 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 Superamericawere found near the abandoned car, and police also found nearby apaper bag similar tothe

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, apparentlydue topoor lightinginthecar and stationarea, and because defendant was slouched over and exposed onlyhis profile. But the store clerk went down to the police station later on the same evening and gave a descriptionof theman who threatened him with the knife, which description very closelymatched defendant's actual appearance. He also stated to the police while giving the description, that he

was fairly certain that theman brought tothe Superamerica stationearlier thatnighthad 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 ata photographic line-up for purposes of identification. The police showed him sixphotographs of persons resembling thedescriptionof theman he had previously giventothe police, and theclerk immediately identified thedefendant asthatman. 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 thephotographic identification and thusprevent therobberyvictimfrom testifying incourt that he had identified defendant through a photographic line-up presented tohim by thepolice. Both the robbery victim and the police officer who arranged the photographic line-up, testified that the photographs showed both a fullfaceview 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 faceview. 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 atno time asked therobberyvictim if he had been shown the Polaroid picturebefore making the identificationfromthephotographic line-up. Defendant's motion to suppress was based on the contentions that the robbery victim's ability to identify him as theman who held the knife tohis throat was tainted by the factthathe had seenthedefendant shortlyafter the robbery when he was inpolice custody, and that the robbery victimmay have seen the Polaroid picturebeforemaking the

### photographic line-up identification. The trial courtdenied thismotion 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 ofparole eligibility. Defendant contends that the pretrial photographic identification process was so suggestive as to create a substantial likelihood of misidentification. He also argues thathis right to counsel was denied him because counsel was not present at thephotographic 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),432U.S. 98, 97S.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), 176Mont. 499, 580 P.2d 110; where

we have applied the rules set forth by the United States Supreme Court. An in-court identification of the defendant is permitted if it is determined that the pretrial identification process did notviolate 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 clearlyplaced thedefendant 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 inU.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 admissionof being atthe scene of thecrimebut of not being involved except after the fact, that he was entitled to an instruction that "mere presence ator 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 fairlycovered the issuesraised. The chargeof robbery, plus thejury instructions, required that thejury 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 atthe scene of a crime is not sufficienttoprove 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 sustainthisbelief. We agree, however, with defendant's final contention that the trial court erroneously determined that under section46-18-404, MCA, he was required as a matter of law todesignate defendant as a dangerous offender forpurposesof parole eligibility. Defendant had been previously been convicted of a felony.in Wyoming less than five years preceding thecommission of the crime involved inthiscase. At the sentencing hearing the prosecutor urged the court to sentence defendant to impose a twenty-year prison sentence and todesignatedefendant asa dangerousoffender. 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 todesignatehim (thedefendant) 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 paroleeligibility. Defendant's contention 

### isthatthe sentencing courtwas 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 thatunder the factsof thiscase the duty of the court to designate defendant as a dangerous offenderwas mandatory. For purposes of analysis, we first set forth the statutein itsentirety. Section46-18-404, MCA, provides: "Designation asnondanqerous 

### ------------- 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, theoffender was neither convicted of nor incarcerated for an offense committed in this stateor any other jurisdiction for which a sentence to a term of imprisonment in excess of 1 year couldhave been imposed; and "(b) the court has determined, based on any presentence report and theevidencepresented atthe trialand the sentencing hearing, that the offender does not represent a substantial danger toother persons or society. "(2) A conviction or incarcerationmay not be considered under subsection (1) (a)if: "(a) the offender was less than 18years 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 setaside ina 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 sentenceand judgment do not contain such a determination, the offender is considered to have been designated as a nondangerous offender 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 defendantmust be designated asnondangerous. Second, subsections (2)(a)and (b),setforth the circumstances under which a conviction cannotbe considered forpurposes of triggering a possible determination that one is 'a dangerous offender

# . If the offender was less than eighteen years of age atthe time of the "present offense", the prior conviction cannot be used asa basis totrigger 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, theprevious offensecannotbe considered asabasis totrigger 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 thejudgment inorder thatadesignationof dangerousness takeeffect. The firstsentence 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 statethe 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 tomake that designation in the judgment. It states: "Whenever the sentence and judgment do not contain such a determination, theoffender 

### 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 thissentence. To declarea defendant ineligible for parole eligibility, the sentencing court is statutorilyrequired todesignate him asdangerous for that purpose. Clearly, by failingtomake such designationpart of the judgment, either by oversight or by an exercise of sentencing discretion, the statute declares that thedefendant involved is to be "designated as a nondangerous offender forpurposes 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 tomake this designation. By merely failing tomake any designation in the judgment as to the defendant's status, the defendant would be statutorilydeclared nondangerous. The sentencing court did not consider this option when it sentenced the defendant. The judgment of conviction is affirmed. We remand this

cause totheDistrictCourt for resentencing.

We Concur:



## ........................... Chief Justice 

# p-":-*---

JusticesMr. ChiefJustice Frank I.Haswell, concurring inpart and dissenting inpart: Iwould affirmthe judgment and sentence initsentirety. Iconcur inaffirming thejudgment of conviction for the
reasons stated inthe majority opinion. 

### I dissent from the majority construction of section46-18-404, MCA and remanding the

cause tothe District Court for resentencingthe defendant. Although the statute isinartfullydrafted, it implies, at least, that a convicted offender isinelegible for designationas a nondangerous offender if he was convicted or incarcerated in anyjurisdiction for afelony during the preceding fiveyears. Section46-18-404(1)(a), MCA. Inthiscase defendant was convicted of burglary on August 25, 1976, inthe Stateof Wyoming. Subsection (3) of the statute simply provides acatchall forthe benefit of the defendant incases where the sentencing court neglects to incorporate defendant's none1igibilityfor nondangerous offender status inthejudgment. 

### I do not construe subsection (3) as adiscretionary grant of authority tothe sentencing court toconfer nondangerous offender status to aconvicted felonwho has a priorfelony convictionwithinfiveyears.

ChiefJustice