No. 81-350 IN THE SUPREME COURT OF THE STATE OF MONTANA 1982

STATE OF MONTANA, Plaintiff and Respondent,

VS. NORMAN EYNAR HER-RA, Defendant and Appellant.

Appeal from: District Court of the First Judicial District, In and for the County of Lewis and Clark Honorable Gordon Bennett, Judgepresiding. Counsel of Record: For Appellant: Skedd,Ashley, McCabe and Weingartner, Helena,Montana J. Mayo Ashley argued, Helena, Montana For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Charles Graveley, County Attorney, Helena, Montana Kevin Meek, Deputy County Attorney, argued, Helena,Montana

Submitted: February 22, 1982 Decided: April 15, 1982Mr. Justice John C. Sheehy delivered the Opinion of the Court.

Defendantappeals from his jury conviction in the Lewis and Clark County District Court, First Judicial District of two counts of kidnapping and two counts of assault. He was sentenced to tenyears inMontana State Prison on each of the kidnapping chargeswith the sentences to run consecutively, and to sixmonths in the Lewis and Clark County jail on each of the assault charges, those sentences to run concurrently with each other and with the prison sentences. For purposes of parole eligibility, he was designated a dangerous offender. The codefendant, his natural father Charles Leo Dyll,

was convicted of the same crimes and was sentenced to ten years, all of which was suspended on the condition that he commit himself to Fort Sheridan for alcohol treatment and remain a law abiding citizen. The following issues are raised on appeal: 1. Did the State fail to prove an essential element of the crime of kidnapping? 2. Was defendant denied due process of law because the DistrictCourt allowed the victims to make an in-court identificationwhen seven months had elapsed since they had made "hazy"descriptions of him, when there had been no pretrial lineup,and when their parents had pointed him out to them during a break invoir dire? 3. Was defendant's right to a fair trial violated by the District Court's refusal to instruct the jury that there is a mandatory twoyear prison sentence for every conviction of kidnapping? 4. Was Herrera denied equal protection by the disparity between his sentence and that of his codefendant? 5. Did the District Court err by designating Herrera a dangerous offender? -2-On the evening of September 5, 1980, in Lincoln, Montana, two girls (12and 14years old) werewalking along Highway 200 on their way to get an ice cream cone. They heard a voice from the bushes call, "Comehere, sweethearts," and as they attempted to run, a man grabbed them frombehind. While theman who grabbed the girls took them to Leo Dyll's house, Dyll assisted him by prodding them along with his cane. Once inside, the girls were ordered to sit down while the two men drank wine and at one point, were overheard discussing "havingan orgy." When the girls refused to take their clothes off, Dyll told the other man to "go get the gun." He returnedwith a revolver and placed it on the couch between himself and Dyll. The girls were never actually threatenedwith the gun. After an undetermined amount of time, one of the girls was able to distract themen by "shufflingher feet"while the other unlocked the door. They fled to the home of one of their grandparents on the other side of town. When their storywas related to one girl's father, he went to Dyll's house, forced his way inwith two pistols, and held Dyll and defendantNorman Herrera at gunpoint until police arrived and arrested the men. A searchwarrantwas issued, but no gunwas ever found. Kidnapping. Defendant claims that the Statedid not prove the use or threatened use of physical force, and thereby failed to prove an essential element of the crime of kidnapping. Section 45-5-302, MCA. His argument fails for several reasons. The evidence definitely shows that the girls were held in a place of isolation,which is sufficient proof in itself. More importantly, the use of forcewas 

### -well established by the evidence. The girls were physicallydragged to Dyll's residence,and once inside, were forced into their chairs. Furthermore, defendant's reliance on Statev. LaMere (1980) , 

### -Mont

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### , 621 P.2d 462, 37 St.Rep. 1936 is misplaced in this case. That case involved aggravated assault,which does require a showing of reasonable apprehension of seriousbodily injury. No such showing is required to sustain a conviction of kidnapping. That conviction is not affected by the dismissal of aggravated assault charges or by any testimonyby the girls that they were not afraid. Identification. Defendant next argues that he was prejudiced by the identificationprocedure. His motion to prohibit the State's complaining witnesses from identifying him was denied on the firstday of trial. During a break in the subsequent voir dire, the girls were waiting with their parents in a hallway when defendantwas brought to the courtroom. He was then pointed out by one of the parents, thereby negating any possibility of in-court misidentification. This is especially important because of the hazy nature of the girls' descriptions. Although problems with identification

were recognized early, no request was ever made for a formal lineup. The State had planned to conduct a lineup at the trial,while the defense had considered seating defendant inconspicuously in the courtroom. Both girls knew Dyll by

name and sight. Neither seems to have known the defendant, although there is some evidence that one of them may have previously seen him in Dyll'syard. This Court applies a two-pronged test in these situations: "First,was the identification procedure impermissibly suggestive; and, second, if so, did it under the totality of the circumstances have such a tendency to give rise to a substantial likelihood of irreparable misidentificationthat to allow the witness to make an in-court identification would violate dueprocess." State v. Lara (1978),179Mont. 201, 205, 587 P.2d 930, 932. Undoubtedly, the identification procedure here was suggestive. Under the next step,we are guided by factors set out inNeil 

### v. Biggers (1972), 409 U.S. 188, 199-200, 93 Sect.375, 382, 34 L.Ed.2d 401, 411,and quoted by this Court in Statev. Higley (1980)

### , -Mont. 

### , 621 P.2d

"We turn, then, to the central question,whether under the 'totality of the circumstances' the identificationwas reliable even though the confrontation procedure was suggestive. As indicatedby our cases, the factors to be considered in evaluatinq 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 thewitness' prior descriptionof the crikinal, thelevel of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." 

### -- (Emphasisadded.) These factors still make for a very close call. Seven months had elapsed, the descriptionswere admittedly "hazy," and the certainty of the identification is clouded by the parents' hallway remarks. Still, the first two factorswe think are the most important. The girls had more than adequate opportunity to observe the defendant. Their view

was unrestricted, at close range, and for a considerable period of time. As to the second factor, their degree of attentionwas necessarily high. They were made to sit down in a small roomwith twomen who had just abducted them. Even taking into consideration the ages of the girls, and allowing for the prejudice caused by the hallway incident, there was not a substantial likelihood of irreparablemisidentification so as to constitute a denial of due process. See also Statev. Dahl (1980),

### -Mont. 

### , 620 P.2d 361,Mandatory Minimum Sentence. The District Court refused defendant's offered instruction no. 22 which would have told the jury that "there is a mandatory two year sentence for each verdict of guilty of kidnappingwhich may not be suspended

or deferred by the Court." Under section 46-18-103,MCA, all sentences shall be imposed exclusivelyby the judge of the court. Because of that statute,we held in Statev. Zuidema (1971),157Mont. 367, 373, 374, 485 P.2d 952, 955, that punishment is not the

concern of the jurywhose sole function is to determine guilt or innocence. Instructing the jury as to various possibilities of sentence,we said (157Mont. at 374, 485 P.2d at 956), impermissibly suggests to a jury that it should give weight to the possible punishment in reaching a verdict. In State v. French (1975), 166 Mont. 196, 205, 531 P.2d 373, 378,we held a courtwas not required to instruct the jury,where mental disease or defect excluding responsibilitywas an issue, that a person acquitted by

reason ofmental diseasemust be committed to the state hospital. In Statev. Coleman (1978), 177 Mont. 1, 33, 34, 579 P.2d 732, 751,we upheld an instruction that sentencing

was vested in the court and the jurywas not to consider the possible punishment defendant could receive upon a verdict of guilty. The District Court in this case avoided prejudicial

error by refusing the offered instruction in this case. Disparity. Defendant complains of the great disparity between the sentence he received and that received by his codefendaht. Under section 46-18-101, ICA, 

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# . . persons convicted of a crime shall be dealt with in accordancewith their individual characteristics, circumstances, needs, andpotentialities;. 

# . ." Here, Dyll is a 58-year old alcoholic with a wooden leg and no record of violence. Defendant is a 28-year old with a history of involvementwith weapons. Therewas no denial of equal protection. Dangerous Offender Designation. The applicable statute is section 46-18-404,MCA: "46-18-404. Designation as nondangerous offender for purposes of parole eligibility. (1) The sentencing court shall designate an offender a nondangerous offender for purposes of eligibility forparole under part 2 of chapter 23 if: "(a) during the five yearspreceding the commission of the offense forwhich the offender is being sentenced,the offenderwas neither convicted of nor incarcerated for an offense committed in this state or any other jurisdiction forwhich a sentence to a term of imprisonment in excess of 1year could have been imposed; 

### - and "(b) the courthas determined,based on any presentence report and the evidence presented at the trial and the sentencinghearing, that the offender does not represent a substantialdanger to other persons or society." Here, defendantwas told: "And the reason you're designated a dangerous offender is that's about the fourth gun incident youwere in." Tr., Sentencing of Herrera,at 37. A reviewof the record reveals a possible misapprehension of defendant's actual criminalbackground. Because of the apparent confusion as to the crimes involved,we are remanding this case for further hearing on the dangerous offender designation. See Statev. Knapp (1977), 174 Mont. 373, 570

First, there is no convincing evidence on record that this was defendant's "fourthgun incident." Secondly,and

more importantly, the record does indicate that one of the prior convictions consideredwas constitutionallydefective for defendant's lack of counsel. The sentencing courtcannot rely upon a previous criminal record in sentencing if that record contains constitutionally infirm convictions. Ryan 

### v. Crist (1977), 172Mont. 411, 413, 563 P.2d 1145, 1146;United Statesv. Tucker (1972),404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592. Although a written presentence reportmay be deemed unnecessary under section 46-18-111,MCA, and a parole officer testified here at the sentencing hearing, we believe themost important consideration is defendant's right to have his sentencebased upon substantially correct information. Knapp, supra. The designationmay very well be unaffected by a reconsideration of defendant's record. However,where improper matters have been brought before the sentencing court (conviction without counsel), coupled with an apparent misunderstanding as to defendant's involvement with guns, defendant is entitled to a rehearing. Ryan, supra. The judgment is affirmed. The cause is remanded for rehearing on the dangerous offender designation.

Justice

e' We Concur: