IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, No. 12479 

JOHN MICHAEL SPIELMANN, 

Defendant and Appellant. ............................................ 

STATE OF MONTANA, 

Plaintiff and Respondent, No. 12480 

LOUIS TONY CHRISTENSEN, 

Defendant and Appellant. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W. Lessley , Judge presiding. 

Counsel of R.ecord: 

For Appellants : 

Smith, Smith and Sewell, Helena, Montana 

Robert J. Sewell argued, Helena, Montana 

Anderson and Dasinger, Bozeman, Montana 

For Respondents: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

3. C. Weingartner, Assistant Attorney General, argued, 

Helena, Montana 

Thomas A. Olson, County Attorney, Bozeman, Montana 

Donald E. White, Special Deputy County Attorney, argued, 

Bozeman, Montana 

Submitted: October 2, 1973 

Decided : ~VZ 9 lgn 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This appeal is brought by defendants John Michael Spielmann 

and Louis Tony Christensen, from their joint trial in the district court of Gallatin County. Spielmann was convicted of one 

count of robbery and Christensen of two counts of robbery and 

of first degree burglary. 

On November 9, 1972, Spielmann, Christensen and Douglas 

Green, aged 15, were arrested together. Green plead guilty to 

charges against him and was committed to the Pine Hills Juvenile 

facility. Green testified as a prosecution witness at the trial 

of Spielmann and Christensen. 

From the trial record these facts appear: Sometime between 

10:00 p.m. the night of October 31, 1972, and 2:39 a.m. the 

morning of November 1, 1972, Christensen and Green burglarized 

the medical office of Dr. Edward L. King in Ifanhatten, Montana, 

taking various types of drugs, some syringes and other medical 

equipment. 

On November 2, 1972, Christensen and Green, at gun point, 

robbed the Medical Arts Pharmacy in Bozeman, Montana, taking all 

the codeine, morphine and demerol. The pharmacist in charge, 

D. G. Dunham, was able to generally describe the two persons 

and their clothing. He stated that both had nylon stockings over 

their faces. 

On November 8, 1972, Spielmann, Christensen and Green again 

burglarized Dr. King's office sometime between 5:45 p.m. and 8:00 

p.m., this time taking a black medical bag and various drugs. 

On November 9, 1972, at about 9:45 a.m., Spielmann and Green, 

at gun point, again robbed the Medical Arts Pharmacy wearing nylon 

stockings over their faces. Mr. Dunham was on duty and recognized 

Green from the previous robbery. Some redlin, dexedrine and 

demerol were taken in the robbery. While the robbery was in 

progress a customer, Mrs. Aileen Zacher, entered the pharmacy and 
.. observed the two men who ran from the pharmacy to a waiting car 

driven by Christensen. At this time a Mrs. AnnaClousing, with 

her mother and son, were driving south on Willson Avenue and 

observed what they described as a black-over-white 1964 or 1965 

Buick leaving the scene of the crime. 

After police were notified of the robbery, roadblocks were 

set up around Bozeman. Instructions were given to look for a 

Buick with a black top and white body, about a 1964 or 1965 model, 

and two occupants, one of whom wore a pencil-line mustache, 

appeared to be in his forties and wore a khaki coat. The other 

occupant was described as a younger, taller man with rather long 

hair, wearing a khaki colored coat with a fur collar. 

Two Montana highway patrolmen, John Flynn and Kerry Keyser, 

participated in the search setting a roadblock on U.S. Highway 

191 at its intersection with Cottonwood Road. At approximately 

11:OO a.m. they were notified to discontinue the roadblock. 

While proceeding back toward Bozeman on U.S. 191, they noticed 

a black-over-white 1967 Buick traveling the opposite direction. 

The patrolmen turned and came up behind the Buick, which stopped 

before the patrol car lights or siren were turned on. The driver 

of the Buick, Christensen, who was in his forties and had a black 

pencil-line mustache, got out as the two patrolmen were walking 

up on either side. Both patrolmen looked into the Buick and 

observed Green sitting in the front seat on the passenger side and 

Spielmann sitting in the back seat. They also observed a khaki jacket 

with a fur collar on the left side of the rear seat. Patrolman 

Keyser asked Christensen to come back to the patrol car with him. 

Flynn remained at the other car talking to the other two men. 

Patrolman Keyser contacted Bozeman law enforcement officers 

concerning the stopped vehicle and remained seated in the patrol 

car with Christensen, questioning Christensen about the absence 

of license plates on his car. Christensen was also asked if 

there was a gun in the Buick and he replied there was a gun on 

the front seat under some books. Patrolman Flynn walked back to 

the patrol car from the Buick and asked Christensen if he could 
look into the trunk. Christensen said yes, and yelled to Green 

to push the button that opened the trunk. Green pushed the release button opening the trunk and in it Flynn saw another khaki 

type jacket. It appears Flynn closed the trunk once, and then 

again asked Christensen if he could look in the trunk. Green 

again opened the trunk at christensen's request, and this time 

Flynn took a black medical bag from the trunk. 

Officers from the Bozeman city police and from the Gallatin 

County sheriff's office arrived on the scene in response to the 

radio notification from Keyser. Spielmann, Christensen and Green 

were placed under arrest and advised of their rights. 

On November 10, 1972, Mr. Harold Cain telephoned the Gallatin 

County sheriff's office and informed them that a bag containing 

drugs had been found at his wrecking yard the previous day by 

a customer, Mr. David Keith. Gerald Mell, a pharmicist who had 

been employed at the Medical Arts Pharmacy, testified at trial 

concerning these drugs and identified them as having come from 

the Medical Arts Pharmacy based upon inventory markings on the 

containers and the fact the types of drugs corresponded with the 

types missing after the robbery. Green testified that Spielmann, 

at Christensen's request, had tossed the bag of drugs out of the 

car window before the three were apprehended. 

Spielmann and Christensen retained separate counsel. Both 

filed identical pretrial motions to suppress the evidence seized 

in the November 9 searches of the Buick automobile, and a joint 

hearing was had. Defendants were tried together without objection 

by defendants or their respective counsel. 

On appeal defendants bring three issues of error: 

(1) Whether the district court erred in denying defendants' 

motions to suppress evidence obtained in the November 9 searches 

of the Buick automobile? 

(2) Whether prejudicial error resulted from the consolidation 

of the cases for trial? 
(3) Whether the district court erred in denying motions to 

dismiss on the basis of insufficient independent evidence to 

corroborate the testimony of the accomplice? 

Issue 1. Certain facts appear undisputed. The November 9 

searches of the automobile by the patrolmen were not pursuant 

to a warrant 7' lncident to arrest and exceeded the scope of the 

11 plain view doctrine" as to most of the evidence seized. The 

consent to search was given prior to the defendants being placed 

under arrest and informed of their rights. 

However, the fact that search was conducted on an automobile 

traveling on a public highway, pursuant t9 descriptive information known to the law enforcement officers conducting the search, 

11 brings into issue the probable cause exception" developed in 

Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L ed 543; 

Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 

L ed 2d 538; Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 

26 L ed 2d 419, 426, 428; Coolidge v. New Hampshire, 403 U.S. 443, 

91 S.Ct. 2022, 29 L ed 2d 564; and various other United States 

Supreme Court cases which differentiate between automobiles and 

nonmovable premises. The rationale upon which this differentiation is predicated is stated in Chambers: 

11 In terms of the circumstances justifying a 

warrantless search, the Court has long distinguished 

between an automobile and a home or office, In 

Carroll v. United States, 267 US 132, 69 L Ed 543, 

45 S Ct 280, 39 ALR 790 (1925), the issue was the 

admissibility in evidence of contraband liquor seized 

in a warrantless search of a car on the highway. 

After surveying the law from the time of the adoption 

of the Fourth Amendment onward, the Court held that 

automobiles and other conveyances may be searched 

without a warrant in circumstances that would not 

justify the search without a warrant of a house or 

an office, provided that there is probable cause 

to believe that the car contains articles that the 

officers are entitled to seize. The Court expressed 

its holding as follows: 

11 1 We have made a somewhat extended reference 

to these statutes to show that the guaranty of 

freedom from unreasonable searches and seizures 

by the Fourth Amendment has been consthed, practi-. 

cally since the beginning of the Government, as 

recognizing a necessary difference between a search 

of a store, dwelling house or other structure in 

respect of which a proper official warrant readily 

may be obtained, and a search of a ship, motor boat, 
wagon or automobile, for contraband goods, where 

it is not practicable to secure a warrant because 

the vehicle can be quickly moved out of the locality 

or jurisdiction in which the warrant must be sought. 

" '~aving thus established that contraband 

goods concealed and illegally transported in an 

automobile or other vehicle may be searched for without a warrant, we come now to consider under what 

circumstances such search may be made. Jc Jc [Tlhose 

lawfully within the country, entitled to use the 

public highways, have a right to free passage without interruption or search unless there is known 

to a competent official authorized to search, probable 

cause for believing that their vehicles are carrying 

contraband or illegal merchandise. Jc * 

 he he measure of legality of such a seizure 

is, therefore, that the seizing officer shall have 

reasonable or probable cause for believing that 

the automobile which he stops and seizes has contraband liquor therein which is being illegally 

transported.' * * * 

"The Court also noted that the search of an 

auto on probable cause proceeds on a theory wholly 

different from that justifying the search incident 

to an arrest: 

 he right to search and the validity of the 

seizure are not dependent on the right to arrest, 

They are dependent on the reasonable cause the 

seizing officer has for belief that the contents 

of the automobile offend against the law.' 

II Arguably, because of the preference for a 

magistrate's judgment, only the immobilization of 

the car should be permitted until a search warrant 

I is obtained; arguably, only the lesser' intrusion 

is permissible until the magistrate authorizes the 

'greater.' But which is the 'greater' and which the 

I lesser' intrusion is itself a debatable question 

and the answer may depend on a variety of circumstances. For constitutional purposes, we see no 

difference between on the one hand seizing and 

holding a car before presenting the probable cause 

issue to a magistrate and on the other hand carrying 

out an immediate search without a warrant. Given 

probable cause to search, either course is reasonable 

under the Fourth Amendment . I I 

The determination made by the trial court before entering 

its order denying defendants' motions to suppress and the determination this Court must make is: Did the patrolmen conducting 

the search of the automobile have probable cause to believe it 

was carrying contraband or stolen property from the robbery of 

the Medical Arts Pharmacy a short time prior to the search' 

A general definition of probable cause is stated in United 

States v. Thompson, 420 F.2d 536, 539 (3rd Cir,): 
I I One need not have evidence which would justify 

a conviction; probable cause exists if the facts and 

circumstances known to the officer would warrant a 

prudent man in believing that the offense has been or 

is being committed. On the other hand, probable cause 

means more than a bare suspicion, the line between 

mere suspicion and probable cause 'must be drawn by 

an act of judgment formed in the light of the particular situation and with account taken of all the 

circumstances. 1 I1 

The basis of the probable cause existing in Chambers was 

a description of a car and occupants furnished by the victim 

of a service station robbery and two teenage observers. Officers 

were seeking a blue compact station wagon carrying four men, 

one of whom was wearing a green sweater and one of whom was 

wearing a trench coat. In the instant case, officers had information which was as particular and reliable; which matched 

the defendants, their clothing, and their automobile as closely 

as that in Chambers. - 

Accordingly, the trial court was correct in denying defendants' 

motions to suppress evidence obtained in the initial searches. 

Issue 2. Whether prejudicial error resulted from consolidation of the cases for trial? Both Spielmann and Christensen retained and were represented by separate paid counsel. Neither 

defendants nor their respective counsel objected to consolidation 

prior to or during trial. Neither of defendants1 trial counsel 

participated in this appeal. 

The case precedent cited by defendants in support of this 

issue involves instances of failure of the trial court to 

appoint separate counsel or denial of a request to allow separate 

trials. In light of the undisputed facts that both Spielmann 

and Christensen were represented at trial by competent counsel 

of their own choice and that at no time prior to appeal was this 

objection raised, we find the trial court did not err in conducting a joint trial. 

It often happens that a joint trial with two participating 

attorneys can be an advantageous tactic or strategy. Hindsight 

has great advantage over foresight, in that it is always 20-20. 
After electing a particular course of strategy, a defendant 

cannot assign as error on appeal the fact that his defense was 

unsuccessful, predicated on the supposition that another alternative would have been successful. State v. Meidinger, Mont . 

, 502 P.2d 58, 29 St.Rep. 861; Henry v. Mississippi, 379 

U.S. 443, 85 S.Ct. 564, 13 L ed 2d 408. 

Issue 3. Whether the district court erred in denying motions 

to dismiss on the basis of insufficient independent evidence to 

corroborate the testimony of the accomplice? This issue is predicated on section 94-7220, R.C.M. 1947, which provides: 

I I A conviction cannot be had on the testimony of 

an accomplice, unless he is corroborated by other 

evidence, which in itself, and without the aid of 

the testimony of the accomplice, tends to connect 

the defendant with the commission of the offense; 

and the corroboration is not sufficient, if it merely 

shows the commission of the offense, or the circumstances thereof. " 

Whether there is sufficient independent corroboration of an 

accomplice's testimony tending to connect a defendant with the 

commission of the offense charged is a determination of law which 

must be made by the trial court. State v. Moran, 142 Mont. 423, 384 

P.2d 777; State Y. Dess, 154 Mont. 231, 237, 462 P.2d 186. 

Here, we find sufficient corroborating evidence in the record 

from state's witnesses to warrant submission of this case to the 

jury: Mr. D.G. Dunham; Mrs. Anna Clousing and her son David; 

Mrs. Aileen Zacher, who saw the defendants and their car during 

the commission of a robbery; Dr. Edward King; Mr. Gerald Mell; 

Mr. Harold Cain; Patrolmen Flynn and Kyser; and Mr. David Keith. 

The requirement and application of section 94-7220, R.C.M. 

1947, was explained in Dess: 

"* +< * Appellant suggests that the evidence, independent of the testimony of an accomplice, must 

prove him guilty beyond a reasonable doubt. This 

is not the law in Montana, however. Though there must 

be some independent evidence connecting the defendant 

to the crime, it need not be sufficient alone to sustain 

a conviction. The jury can consider the testimony of 

the accomplice and give the testimony whatever weight 

they desire. In State v. Donges, 126 Mont. 341, 251 P.2d 

254 (1952), the Court stated at page 347, 251 P.2d at 

page 257: 
11 I The evidence which corroborated Bungard 

could be furnished by the defendants. It could be 

circumstantial. It need not extend to every fact 

to which Bungard testified and need not be sufficient to justify a conviction or establish a prima 

facie case of guilt; it being sufficient if it 

tends to connect defendants with the commission of 

the crime. Whether it tends to do so is a question 

of law, while its weight--its efficacy to fortify 

the testimony of Bungard and render his story trustworthy--is a matter for the consideration of the 

jury. State v. Cobb, 76 Mont. 89, 245 P. 265. III 

From our examination of the record, we find no prejudicial 

error. The jury was properly instructed; there was amply substantial credible evidence properly before it upon which to base 

its verdict of guilty. 

The judgment of conviction is af firmed,: 

,f' 

Justice 

," /' Chief Justice 

d 

Justices U 

-;r3-d--dr-L--'-i ---- *--->-I.---dHon. Edward T. Dussault, District 

Judge, sitting for Justice John 

Conway Harrison.