No. 13882 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . DAVID OPPELT , 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable H. William Coder, Judge presiding. 

Counsel of Record: 

For Appellant : 

James A. Lewis, Public Defender argued, Great Falls, 

Montana 

For Respondent: 

Hon. Mike Greely,Attorney General, Helena, Montana 

J. Mayo Ashley, argued, Assistant Attorney General, 

Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls,Montana. 

Submitted: April 26, 1978 

Decided : JUR - 8 1978 

Filed: 

Y 1 

Clerk. 
Mr. Justice Gene B. Daly delivered the Opinion of the Court: 

Defendant appeals from a judgment of conviction of 

aggravated burglary, aggravated assault, and attempted theft 

entered by the District Court, Cascade County, upon a jury 

verdict. 

At approximately 7:30 a.m., January 15, 1977, the Cascade 

County sheriff's department notified Jerry Noble, owner and 

managr of Zooks Tire Center in Great Falls, Montana, that the 

burglar alarm for his store had sounded. Noble proceeded to his 

store where he observed a man exiting from the shop door. Noble then 

parked his car in a manner blocking an automobile which was 

parked near the building. 

At approximately this same time, Leonard Dusek, a Zooks 

Tire Center salesman, arrived at work. As Dusek approached the 

door of the building, he observed a man inside the store crouching 

behind a counter, about eight to ten feet from where Dusek stood. 

The man rose from his crouching position, Dusek and the man 

stared at each other, and the man then fled into the shop. Dusek 

ran to the north side of the building and observed three people, two 

were entering an automobile approximately 15 to 20 feet from 

where Dusek was standing. Dusek testified the third person, 

defendant, was standing outside the vehicle and threw a bumper 

jack handle at him. 

Noble parked his pickup truck at an angle blocking the 

intruders' vehicle. Dusek testified that defendant David Oppelt 

obtained a crescent wrench from the car and threw it at Noble's 

pickup truck, after which defendant entered the store and 

collected several tire irons which he threw at Noble's pickup 

truck. Noble testified he got a very good look at the fellow 
throwing the tire irons, and that person was defendant. 

When the two intruders in the vehicle tried to drive 

away, Noble rammed their car with his pickup truck, immobilizing 

their vehicle. The two people in the auto then ran into the shop, 

while the man who had thrown the tire irons, wrench and jack 

handle fled the scene. 

Noble and Dusek entered the shop and, after an unsuccessful 

attempt by the intruders to escape, apprehended the two people 

who had been in the car and a third person who had been hiding in 

the store behind a tire rack. Noble kicked one of the intruders 

several times in an attempt to force him to reveal the name of 

the fourth conspirator who had escaped. The intruders, upon 

this persuasive prompting by Noble, identified the fourth participant in the crime as "Sonny" Gardipee. 

The sheriff's department took the suspects into custody 

and elicited from one, Robert Azure, a list of four of his 

friends. Defendant was one of the people on the list. Within 

an hour and a half of the crime, Noble and Dusek went to the 

sheriff's office where they gave an account of the crime and a 

description of the man who had fled. Noble described the 

and 5'1OU, 

person as between 5'8"/ with hair to the shoulders and a slight 

build. Dusek described the person as tall and thin with long 

hair. 

A deputy sheriff then held photos of defendant and one 

other person from Robert Azure's list of friends and showed the 

photos to Dusek and Noble. The two persons in the photos fit 

both Noble's and Dusek's description of the fourth conspirator. 

Both Noble and Dusek positively identified defendant as the 

fourth participant. 
On January 19, 1977, the state filed an Information in 

District Court, Cascade County, charging defendant and the three 

participants apprehended at the scene of the crime with aggravated 

assault, aggravated burglary, attempted theft, and also with a 

count of criminal trespass to vehicles which was later dismissed. 

On March 28, 1977, the first day of trial and more than two months 

after they had first identified defendant from the photos, the 

county attorney showed Noble and Dusek three or four photos from 

which they both again selected the photo of defendant as the photo 

of the fourth participant in the crime. 

At defendant's trial, both Dusek and Noble identified 

defendant as the fourth person involved in the crime. The state 

at trial raised the issue of legal accountability, and the court 

gave instructions placing the theory of legal accountability before the jury, although the legal accountability offense was not 

charged in the Information. 

Defendant on appeal presen,ts two issues for review: 

1. Did Noble and Dusek's in-court identification of defendant result from an impermissibly suggestive pretrial photographic lineup? 

2. Did the court err in allowing the state at trial to raise 

the issue of legal accountability, where that crime was not charged 

in the Information? 

The factors to be considered to determine whether a pretrial 

showup, lineup, or photo identification is impermissibly suggestive 

have been set forth by the United States Supreme Court: 

'I* * * 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 * * *." Neil v. Biggers, (1972), 409 U.S. 188, 

198, 199, 93 S.Ct. 375, 34 L ed 2d 401,411. 

See also: Manson v. Brathwaite, (1977), 432 U.S. 98, 114,117, 

Applying these factors to this case, we cannot say the 

pretrial photographic identification was so suggestive as to 

create a substantial likelihood of misidentification. 

The witnesses had a sufficient opportunity to view the 

person at the time of the crime. Noble saw the person throwing tire 

irons from a location very close to the pickup truck in which 

Noble was sitting. Dusek stared at the person for about five 

seconds while the person was inside the shop beneath a strong 

overhead light. Dusek again saw the person outside the shop 

throwing various auto tools. 

The witnesses' attention was focused on defendant. Noble, 

when he was sitting in his pickup truck, testified that he was 

only 15 to 20 feet from the person and got a "very good" look at 

him. Dusek's attention was focused on the person as he stared at 

him when he observed him inside the store. 

The witnesses' prior description of the person accurately 

described defendant, although it was not as detailed as it might 

have been. Both Noble and Dusek testified as to the person's 

build, height and hair length. Defendant matched the witnesses' 

descriptions. 

- 

The witnesses demonstrated a high level of certainty at 

the photographic lineup. Each testified that he had no doubt 

as to the identification; each quickly picked the photo of defendant 

as the photo of the criminal. 
Finally, the length of time between the crime and the 

confrontation was short. Both witnesses identified defendant 

at the photographic lineup less than two hours after the crime 

was committed. 

A claim of prejudice from an allegedly defective identification procedure must be evaluated by examining "the totality 

of the circumstances surrounding it." Stovall v. Denno, (1967), 

388 U.S. 293, 302, 87 S.Ct. 1967, 18 L ed 2d 1199, 1206. Defendant claims that several factors created a "totality of circumstances" which led to an impermissibly suggestive identification 

procedure. 

Defendant first notes that identification was made from a 

presentation of only two photographs. Although showing numerous 

photos would have been a preferable procedure, it was not unduly 

suggestive in this case. The United States Supreme Court has held 

that identification of a criminal even by means of a one-person showup 

or photo presentation does not necessarily, without more, violate 

due process. Neil v. Biggers, supra; Stovall v. Denno, supra. 

In this case, the officer who conducted the photo identification 

stated the picture of defendant and the other man were the only two 

pictures he could obtain from the list of the four people Kobert 

Azure had given him. Moreover, the photo identification occurred 

not after defendant had beenstaken into police custody, but during 

the course of the police investigation of the crime. This was 

merely a proper investigation procedure rather than an attempt to 

suggest to witnesses that a suspect in custody was the one in the 

photo and the one who committed the crime. See: United States v. 

Cantu, (7th Cir. 1972), 501 F.2d 1019, 1020; State v. Ware, (1976), 

113 Ariz. 337, 554 P.2d 1264, 1266. While the use of a larger 

number of photos would surely have strengthened the force of the 
identification evidence, the defect in using only two photos 

" * * * goes to weight and not to substance", Manson v. 

Brathwaite, supra. 

Defendant also complains that Noble and Dusek were allowed 

to view the photos in the presence of each other, while the 

deputy sheriff held the photographs before them, Simultaneous, 

rather than independent exhibitions of photos to more than one 

witness will render a photographic identification inadmissible 

only if the circumstances of the identification procedure are 

such as to give rise to a substantial likelihood of misidentification. United States v. Hopkins, (D.C.Cir.1972), 464 F.2d 816, 820, 

Here, each witness testified that he identified defendant as the 

criminal immediately upon seeing the photos, without prompting 

from the other witness or from the police officer. In the absence 

of any evidence of suggestiveness, this identification procedure 

was merely a factor which the jury could consider in evaluating 

the strength of the evidence. 

Defendant also claims that it was improper to conduct another 

photographic lineup prior to trial. In the absence of any evidence 

that the state coached the witnesses to pick defendant's picture, 

however, the reshowing of the photos was merely a matter on which 

the defense could question the witnesses during cross-examination. 

Buchanan v. State, (Alaska 1977), 561 P.2d 1197, 1207. 

Finally defendant claims that the photographic identification 

was unfair because the police never attempted to obtain a photo 

of Sonny Gardipee, the man whom the other participants in the crime 

named as the criminal who had fled. At trial, however, the officer 

who conducted the photographic identification testified that he 

knew Sonny Gardipee to be a man 5'9" tall, with short hair, 

weighing 230 pounds. Both witnesses described the criminal as 

thin with shoulder length hair. 
Considering the totality of the circumstances and applying 

the four part analysis of Neil v. Biggers, supra, we cannot say 

that the photographic identification was so suggestive as to 

create a substantial likelihood of misidentification. Short of 

this, any defects in the procedure were merely factors by which 

the jury could measure the weight of the identification testimony. 

Nor did the court err in allowing the state to introduce 

the theory of legal accountability at trial when that theory 

was not listed in the Information. This Court recently held 

that Montana follows the Illinois rule that "* * * an indictment 

need not distinguish an act performed by the accused himself 

and the act of another for which he is legally accountable. II 

State v. Murphy, (1977), Mont . , 570 P.2d 1103, 1105, 

34 St. Rep. 1174. 

The judgment is affirmed. 

JUS tice 

4 

We Concur: 

%ad. a4 

Chief Justice