No. 13882 INTHE 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. JusticeGene B. Daly delivered the Opinion of the Court:
Defendant appeals from ajudgment of conviction of aggravatedburglary, aggravated assault, and attempted theft enteredby the District Court, Cascade County, upon a jury verdict. Atapproximately 7:30 a.m., January 15, 1977, the Cascade County sheriff's department notified JerryNoble, owner and managr of Zooks Tire Center inGreat Falls, Montana, that the burglar alarm forhis storehad sounded. Noble proceeded tohis storewhere he observed a man exiting from the shop door. Noble then parked his car ina manner blocking an automobile which was parked near thebuilding. Atapproximately this same time, Leonard Dusek, a Zooks Tire Center salesman, arrived atwork. AsDusek approached the door of thebuilding, he observed a man inside the store crouching behind a counter, about eight toten feet from where Dusek stood. The man rose from his crouching position, Dusek and the man stared ateach other, and the man then fled into the shop. Dusek
ran to the north sideof 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 athim. Noble parked hispickup truck atan angleblocking the intruders' vehicle. Dusek testified that defendant David Oppelt obtained a crescent wrench from the car and threw it atNoble's pickup truck, afterwhich defendant entered the store and collected several tire irons which he threw atNoble's pickup truck. Noble testifiedhe got a very good look atthe fellowthrowing the tireirons, and that person was defendant. When the two intruders inthe vehicle tried todrive away, Noble rammed their carwith his pickup truck, immobilizing their vehicle. The two people inthe 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, afteran 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 storebehind a tirerack. Noble kicked one of the intruders several times inan attempt to forcehim toreveal 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 intocustody 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 officewhere they gave an account of the crime and a descriptionof the man who had fled. Noble described the and 5'1OU, person asbetween 5'8"/ with hair to the shoulders and a slight build. Dusek described the person as talland 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 toDusek and Noble. The two persons inthe photos fit both Noble's and Dusek's description of the fourth conspirator. Both Noble and Dusek positively identified defendant as the fourthparticipant.

### On January 19, 1977, the state filedan Information in District Court, Cascade County, charging defendant and the three participants apprehended atthe scene of the crime with aggravated assault, aggravated burglary, attempted theft, and alsowith a count of criminal trespass to vehicles which was later dismissed. 

### On March 

### 28, 1977, the firstday 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. Atdefendant's trial, both Dusek and Noble identified defendant as the fourth person involved inthe crime. The state attrialraised the issue of legal accountability, and the court gave instructionsplacing the theory of legal accountability before thejury, although the legal accountability offense was not charged in the Information. Defendant on appeal presen,tstwo 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 attrial to raise the issue of legal accountability, where that crime was not charged inthe Information? The factors tobe considered to determine whether a pretrial showup, lineup, or photo identification is impermissibly suggestive have been set forthby 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 toview the criminal atthe time of the crime, the witness' degree of attention, the accuracy of thewitness' prior description of thecriminal, the level of certainty demonstrated by the witness atthe 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 pretrialphotographic identificationwas so suggestive as to create a substantial likelihood of misidentification. The witnesses had a sufficient opportunity toview the person atthe time of the crime. Noble saw the person throwing tire irons from a locationvery close to the pickup truck inwhich Noble was sitting. Dusek stared atthe 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' attentionwas focused on defendant. Noble, when he was sitting inhispickup truck, testified that he was only 

### 15 to 20 feet from the person and got a "very good" look at him. Dusek's attentionwas focused on the person ashe stared at him when he observed him inside the store. The witnesses' prior description of the person accurately described defendant, although itwas not as detailed as it might have been. Both Noble and Dusek testified as tothe 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 thathe had no doubt
as to the identification; eachquickly 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 atthe photographic lineup less than two hours after the crime
was committed. A claim of prejudice from an allegedly defective identificationprocedure must be evaluated by examining "the totality of the circumstances surrounding it." Stovallv. Denno, (1967), 388 U.S. 293, 302, 87 S.Ct. 1967, 18L ed 2d 1199, 1206. Defendant claims that several factors created a "totality of circumstances" which led to an impermissibly suggestive identification procedure. Defendant firstnotes that identificationwas made from a presentation of only two photographs. Although showing numerous photos would have been a preferable procedure, it was not unduly suggestive inthis case. The United States Supreme Court has held that identification of a criminal even by means of a one-person showup
orphoto presentation does not necessarily, without more, violate due process. Neil v. Biggers, supra; Stovallv. Denno, supra. 

### In this case, the officerwho 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 afterdefendant had beenstakenintopolice 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 towitnesses that a suspect incustody was the one inthe photo and the one who committed the crime. See: United Statesv. Cantu, (7thCir. 1972), 501F.2d 1019, 1020; Statev. Ware, (1976), 113Ariz. 

### 337, 

### 554 P.2d 1264, 1266. While the use of a larger number of photos would surelyhave strengthened the force of the

### identification evidence, the defect in using only two photos

"

# *** goes toweight and not to substance", Manson v. Brathwaite, supra. Defendant also complains that Noble and Dusekwere allowed to view the photos in the presence of each other, while the deputy sheriffheld the photographsbefore 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 identificationprocedure are suchas to give rise to a substantial likelihood ofmisidentification. United Statesv. Hopkins, (D.C.Cir.1972), 

### 464 F.2d 816,820, Here, each witness testified that he identified defendant as the criminal immediatelyupon seeing the photos, without prompting from the otherwitness or from the police officer. In the absence of any evidence of suggestiveness,this identificationprocedure
was merely a factorwhich the jury could consider in evaluating the strength of the evidence. Defendant also claims that itwas 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 onwhich the defense could question thewitnesses during cross-examination. Buchanan v. State, (Alaska 1977), 561 P.2d 1197, 1207. Finally defendant claims that the photographic identification
was unfairbecause the police never attempted to obtain a photo of Sonny Gardipee, themanwhom the other participants in 

### the crime named as the criminalwho had fled. At trial, however, the officer who conducted the photographic identificationtestified that he knew Sonny Gardipee to be a man 5'9" tall, with short hair, weighing 230pounds. Both witnesses described the criminalas thinwith shoulder lengthhair.

### Considering the totality of the circumstances and applying the four part analysis ofNeil v. Biggers, supra,we cannot say that the photographic identificationwas 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 couldmeasure theweight of the identification testimony. Nor did the court err inallowing the state to introduce the theory of legal accountability at trialwhen that theory
was not listed in the Information. This Court recently held that Montana follows the Illinois rule that 

## "*

# *

# * an indictment need not distinguishan act performed by the accusedhimself and the act of another for whichhe is legally accountable.II 

### State

### v. Murphy, (1977), Mont

# . ,570P.2d 1103, 1105, 34St. Rep. 1174. The judgment is affirmed.

JUS

### tice 

# 4

We Concur: 

# %ad.

# a4
Chief Justice