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, Judge presiding. 

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, 1982 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Defendant appeals 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 ten years in Montana State Prison on each of 

the kidnapping charges with the sentences to run consecutively, 

and to six months 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 

District Court allowed the victims to make an in-court 

identification when 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 in voir 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 two year 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 (12 and 14 years old) were walking along 

Highway 200 on their way to get an ice cream cone. They 

heard a voice from the bushes call, "Come here, sweethearts," 

and as they attempted to run, a man grabbed them from behind. 

While the man 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 "having an orgy." When the girls refused to take 

their clothes off, Dyll told the other man to "go get the 

gun." He returned with a revolver and placed it on the 

couch between himself and Dyll. The girls were never actually 

threatened with the gun. 

After an undetermined amount of time, one of the girls 

was able to distract the men by "shuffling her 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 

story was related to one girl's father, he went to Dyll's 

house, forced his way in with two pistols, and held Dyll and 

defendant Norman Herrera at gunpoint until police arrived 

and arrested the men. A search warrant was issued, but no 

gun was ever found. 

Kidnapping. Defendant claims that the State did 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 force was - well 

established by the evidence. The girls were physically 
dragged to Dyll's residence, and once inside, were forced 

into their chairs. 

Furthermore, defendant's reliance on State v. LaMere 

(1980) , - Mont . - , 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 serious bodily 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 testimony by the girls that they were not afraid. 

Identification. Defendant next argues that he was 

prejudiced by the identification procedure. His motion to 

prohibit the State's complaining witnesses from identifying 

him was denied on the first day of trial. During a break in 

the subsequent voir dire, the girls were waiting with their 

parents in a hallway when defendant was 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's yard. 

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 misidentification 
that to allow the witness to make an in-court 

identification would violate due process." State 

v. Lara (1978), 179 Mont. 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 in Neil 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 State v. Higley (1980) , - Mont. , 621 P.2d 

"We turn, then, to the central question, whether 

under the 'totality of the circumstances' the 

identification was reliable even though the 

confrontation procedure was suggestive. As 

indicated by 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 the witness' prior description of 

the crikinal, the level of certainty demonstrated 

by the witness at the confrontation, and the length 

-- of time between the crime and the confrontation." 

(Emphasis added.) 

These factors still make for a very close call. Seven 

months had elapsed, the descriptions were admittedly "hazy," 

and the certainty of the identification is clouded by the 

parents' hallway remarks. Still, the first two factors we 

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 

attention was necessarily high. They were made to sit down 

in a small room with two men 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 irreparable misidentification so as to constitute a denial of due process. 

See also State v. 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 kidnapping which may not be suspended 

or deferred by the Court." 

Under section 46-18-103, MCA, all sentences shall be 

imposed exclusively by the judge of the court. Because of 

that statute, we held in State v. Zuidema (1971), 157 Mont. 

367, 373, 374, 485 P.2d 952, 955, that punishment is not the 

concern of the jury whose sole function is to determine 

guilt or innocence. Instructing the jury as to various 

possibilities of sentence, we said (157 Mont. 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 court was not required to 

instruct the jury, where mental disease or defect excluding 

responsibility was an issue, that a person acquitted by 

reason of mental disease must be committed to the state 

hospital. In State v. 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 jury was 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, ". . . persons 

convicted of a crime shall be dealt with in accordance with 

their individual characteristics, circumstances, needs, and 
potentialities;. . ." 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 involvement with weapons. 

There was 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 

for parole under part 2 of chapter 23 if: 

"(a) during the five years preceding the 

commission of the offense for which the offender 

is being sentenced, the offender was neither 

convicted of nor incarcerated for an offense 

committed in this state or any other jurisdiction 

for which a sentence to a term of imprisonment in 

excess of 1 year could have been imposed; - and 

"(b) the court has determined, based on any 

presentence report and the evidence presented at 

the trial and the sentencing hearing, that the 

offender does not represent a substantial danger 

to other persons or society." 

Here, defendant was told: 

"And the reason you're designated a dangerous 

offender is that's about the fourth gun incident 

you were in." Tr., Sentencing of Herrera, at 37. 

A review of the record reveals a possible misapprehension 

of defendant's actual criminal background. Because of the 

apparent confusion as to the crimes involved, we are remanding 

this case for further hearing on the dangerous offender 

designation. See State v. Knapp (1977), 174 Mont. 373, 570 

First, there is no convincing evidence on record that 

this was defendant's "fourth gun incident." Secondly, and 

more importantly, the record does indicate that one of the 

prior convictions considered was constitutionally defective 

for defendant's lack of counsel. The sentencing court 
cannot rely upon a previous criminal record in sentencing if 

that record contains constitutionally infirm convictions. 

Ryan v. Crist (1977), 172 Mont. 411, 413, 563 P.2d 1145, 

1146; United States v. Tucker (1972), 404 U.S. 443, 92 S.Ct. 

589, 30 L.Ed.2d 592. 

Although a written presentence report may be deemed 

unnecessary under section 46-18-111, MCA, and a parole 

officer testified here at the sentencing hearing, we believe 

the most important consideration is defendant's right to 

have his sentence based upon substantially correct information. 

Knapp, supra. The designation may 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: