No. 93-309 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsSTUART STRINGER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Keith, Attorney at Law, Great Falls, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, Jennifer 

Anders, Ass't Attorney General, Helena, Montana 

Randy Winner, Ass't City Attorney, Great Falls, 

Montana 

Filed: 

Submitted on Briefs: November 18, 1993 

Decided: February 3, 1994 
Justice John Conway Harrison.delivered the opinion of the Court. 

This is an appeal from the Eighth Judicial District Court, 

Cascade County. Appellant Stuart Stringer (Stringer) appeals from 

the denial of his motions to dismiss on grounds of double jeopardy 

and on failure of the State of Montana's (State' s) witnesses to 

make an in-court identification of the perpetrator. We affirm. 

The issues before this Court are: 

1, Did the District Court err in denying Stringer's motion to 

dismiss on grounds of double jeopardy? 

2. Did the District Court err in denying Stringer's motion to 

dismiss based on the failure of the State's witnesses to make an 

in-court identification of the perpetrator? 

On January 12, 1992, at approximately 3:00 a.m., police 

officers Paul Smith and Jack Allen responded to a disturbance in 

Great Falls, Montana. Upon arrival at Stringer's residence, the 

officers could hear yelling and banging inside. Officer Allen went 

to the back of the house, while Officer Smith knocked on the front 

door, which was ajar. No one answered. 

Officer Smith saw a woman, later identified as Stringer's 

wife, Kathy, on the kitchen floor covering her head with her arms. 

He also heard Stringer, who stood over his wife, yelling he was 

going to kill her. Officer Smith entered the house and announced 

himself again. Stringer heard Officer Smith this time. Officer 

Smith advised Stringer he was under arrest. Stringer--who had 

drinking--responded peaceably at first, offering his hands so 

he could be handcuffed. 

2 

been 

that 
Stringer, 37, then became inexplicably violent, physically 

challenging the arrest. By that time, Officer Allen had returned 

from the back of the house, entered the front door, and assisted 

Officer Smith in restraining Stringer. Because Stringer resisted 

arrest so forcefully, Officer Allen radioed for back-up police 

support. 

Officers Smith and Allen forcibly handcuffed Stringer, who, 

according to officers, was salivating and acting wildly. During 

the struggle, Stringer kicked Officer Allen in the head. The 

officers restrained Stringer until back-up help arrived. Because 

of Stringer's kicking, the officers bound his legs. The officers 

then carried Stringer, whose arms were handcuffed behind his back, 

face down to a police car in front of the house. Stringer resisted 

continuously. He screamed profanities, threatened to kill the 

officers, and disturbed neighborhood residents. 

Stringer was charged by complaint with two misdemeanors: 

disorderly conduct, in violation of 5 45-8-101(1)(c), MCA, and 

resisting arrest, in violation of 3 45-7-301(1) (a), MCA. After 

failing to appear on the date scheduled for trial in city court, 

Stringer was convicted of both charges. Stringer appealed to the 

District Court on June 19, 1992, whereupon trial was set for 

November 2, 1992. 

The November 2nd trial was vacated on the court's motion due 

to a jury trial that was in progress. A new trial was set for 

November 24, 1992. The State and Stringer, who was unrepresented 

by counsel, appeared on November 24th; however, the State was 
granted a continuance because Officer Smith, a material witness, 

was ill. The trial was reset for December 15, 1992; however, 

Stringer was granted a continuance because he needed to get an 

attorney. At that time, the court appointed a public defender, and 

trial was reset for February 10, 1993. 

At the February 10th trial, Stringer appeared without counsel. 

At the outset, the District Court Judge asked Stringer if he was 

ready to proceed. He replied, "1 still don't have a lawyer, sir." 

Because the trial had already been delayed once to allow Stringer 

to retain counsel, the Judge determined that the trial should 

proceed. 

After Officer Smith was sworn and testified, the District 

Court Judge interrupted the proceedings and asked Stringer about a 

letter in the court file which indicated that John Keith, a public 

defender for the City of Great Falls, was going to represent 

Stringer. Stringer responded that he had not contacted Mr. Keith, 

but that he still wanted a lawyer. The court recessed and 

unsuccessfully attempted to locate Mr. Keith. The court then 

vacated the trial to allow Stringer an opportunity to secure 

counsel. 

The trial de novo was finally held on March 19, 1993. At the 

trial, Stringer was represented by Mr. Keith, who moved to dismiss 

on the grounds that double jeopardy attached at the February 10th 

trial. The motion was denied. Mr. Keith later moved to dismiss on 

the basis that Stringer was never identified by the Staters 

witnesses as the perpetrator. That motion was denied as well. 
Stringer was convicted on both charges and sentenced to two 

days in jail. He was ordered to pay a $300 fine for disorderly 

conduct and a $100 fine for resisting arrest. All but one day of 

the jail sentence was suspended, and Stringer was given credit for 

one day of jail time already served. The fines imposed were also 

suspended on the condition that Stringer obey all laws and perform 

forty hours of community service. Stringer appeals. 

Did the District Court err in denying Stringer's motion to 

dismiss on grounds of double jeopardy? 

Stringer argues that double jeopardy attached at the February 

10, 1993, trial, after the first witness was sworn. See 3 46-11- 

503 (1) (d) (ii) , MCA. Section 46-11-503(2), MCA, provides in 

pertinent part that prosecution of the same transaction as a former 

prosecution is barred unless: 

(a) the defendant consents to the termination or 

waives his right to object to the termination; or 

(b) the trial court finds that the termination is 

necessary because: 

(ii) there is a legal defect in the proceedings that 

would make any judgment entered upon a verdict reversible 

as a matter of law; 

(iii) prejudicial conduct makes it impossible to 

proceed with the trial without manifest injustice to 

either the defendant or the state; 

In the present case, the District Court based its denial of 

Stringer's motion to dismiss on this statute. First, the District 

Court found that Stringer waived his right to object to termination 
and consented to the discontinuance of the trial when he stated, 

"Yes, I do want a lawyer." Second, the District Court found that 

the termination was necessary because there would be a legal defect 

in the proceedings which would make any judgment entered upon a 

verdict reversible as a matter of law. The court based this 

finding on the llpossibility that jail time might be in the sentence 

if the defendant was found guiltyt1 and that the case would have had 

built-in error because Stringer was not represented by counsel at 

the time. The court also found that allowing Stringer to continue 

without counsel would have resulted in manifest injustice to 

Stringer. 

Stringer contends that the court's findings were clearly 

erroneous, were unsupported by the record, and resulted from the 

District Court's failure to promptly determine the propriety of 

appointing counsel for Stringer. Stringer argues, and the record 

shows, that Stringer twice expressed his desire to continue without 

counsel at the February 10th trial. 

The waiver rule was designed to prevent defendants from 

alleging a double jeopardy bar to retrial where they, not the 

prosecutors, cause the mistrial or are otherwise responsible for 

terminating the proceedings: "Where the defendant has an active 

hand in arranging the disposition of the causes so he might benefit 

from the results, he waives any double jeopardy claims." Boze v. 

State (Ind. 1987), 514 N.E.2d 275, 277 (citation omitted). 

Although Stringer did not explicitly request a mistrial or 

continuance, his request for counsel is what prompted the court to 
vacate the proceedings. T-he termination of the proceedings 

ultimately worked to Stringer's advantage because it allowed him 

the opportunity to secure Mr. Keith's representation. 

The District Court determined that, pursuant to 5 46-11- 

503(2)(b)(ii), MCA, this case would embody built-in reversible 

error if Stringer were allowed to proceed without counsel. Section 

46-8-101, MCA, which governs the right to counsel in criminal 

trials, provides in pertinent part: 

(2) If the defendant desires counsel, is unable to 

employ counsel, and is entitled to have counsel assigned, 

the court shall assign counsel to the defendant without 

unnecessary delay. 

(3) The defendant, if unable to employ counsel, is 

entitled to have counsel assigned if: 

(a) the offense charged is a felony; 

(b) the offense charged is a misdemeanor and the 

court desires to retain imprisonment as a sentencing 

option; or 

(c) the interests of justice would be served by 

assignment. 

Once the District Court determined that Stringer had properly 

preserved his right to counsel, the State asserts, it had an 

affirmative duty under this statute to determine whether Stringer 

qualified for court-appointed counsel, whether Stringer might be 

subjected to imprisonment, or whether appointment of counsel was 

required in the interests of justice. See State v. Skurdal (1988), 

235 Mont. 291, 767 P.2d 304. Stringer contends, however, that no 

legal defect requiring reversal of the judgment would have occurred 

because the only consequence of the court's failure to appoint 

counsel in this misdemeanor case would be to limit any jail 

sentence which could be imposed. See Scott v. Illinois (1979), 440 

U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383. 
Stringer's argument lacks merit. Stringer requested counsel, 

which triggered the court's obligation to determine whether 

appointment was required. See 3 46-8-101, MCA. Stringer now 

suggests that the District Court should have: 1) sacrificed its 

authority to consider whether the gravity of the offense warranted 

jail time--a result which the court acknowledged was an option in 

this case; and 2) disregarded Stringer's request for counsel and 

allowed "the trial [to] proceed to its conclusion despite a 

legitimate claim of serious prejudicial error." United States v. 

Dinitz (1975), 424 U.S. 600, 610, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 

267, 275. 

The District Court properly avoided reversible error by 

terminating the trial when it did. We hold, therefore, that no bar 

to retrial exists under § 46-11-503 (2) (b) (ii) , MCA. Because we 

determine that the court properly avoided reversible error, no 

further inquiry into the double jeopardy issue is necessary. 

I I 

Did the District Court err in denying Stringer's motion to 

dismiss based on the failure of the State's witnesses to make an 

in-court identification of the perpetrator? 

At the conclusion of the State's case, Stringer moved for 

dismissal of the charges because none of the Staters witnesses 

identified Stringer as the perpetrator. The State agrees that the 

officers who testified during the State's case-in-chief did not 

specifically identify Stringer as the perpetrator or otherwise 

physically indicate Stringer's presence in the courtroom. 
While Stringer could find no Montana case law supporting this 

argument, he did find where the Wyoming Supreme Court dealt with 

this issue. See Capwell v. State (Wyo. 1984), 686 P.2d 1148. In 

Cawwell, the court found that the burden of proof on the State to 

prove all elements of the offense includes identification of the 

defendant as the perpetrator. Capwell, 686 P. 2d at 1157. While an 

in-court visual identification is not required, there must be some 

basis for establishing the identity of the defendant as the 

perpetrator. Capwell, 686 P.2d at 1157. 

In Cawwell, the court found that the witnesses testified from 

their personal knowledge of the identity of the defendant. 

Capwell, 686 P.2d at 1157. In the case before us, Stringer argues 

that the State's witnesses, the officers, have no personal 

knowledge of Stringer's identity. Merely calling him by name, 

Stringer asserts, fails to establish any basis for personal 

knowledge of Stringer's identity. 

The State agrees that the prosecution must prove all elements 

of the crime charged beyond a reasonable doubt, including the fact 

that the party charged was the person who committed the offense. 

See Capwell, 686 P.2d at 1157. However, as the State correctly 

asserts, Cawwell stands for the proposition that the method of 

identification used in a criminal trial is largely within the 

discretion of the trial court. See Capwell, 686 P.2d at 1157. 

According to the State, there is no requirement that the 

accused be identified in court as the perpetrator. Rather, it is 

only necessary that the person committing the crime be identified 
as the person charged in the- information. See United States v. 

Capozzi (8th Cir. 1989), 883 F.2d 608, 617. 

Courts have held that an in-court identification is not 

necessary where the evidence is sufficient to permit an inference 

that the defendant on trial is the person who committed the 

offense. United States v. Morrow (4th Cir. lggl), 925 F.2d 779, 

781; Price v. State (Ga. Ct. App. 1986), 348 S.E.2d 740, 742. In 

fact, a state can satisfy its burden of proving identity through 

circumstantial evidence. State v. Mecum (Neb. 1987), 404 N.W.2d 

431; Creech v. State (Tex. Ct. App. 1986), 718 S.W.2d 89. 

Although there was no in-court identification of Stringer, the 

District Court could have drawn the inference from the evidence 

presented that Stringer was the perpetrator. When responding to 

the State's question regarding the identity of the suspect, Officer 

Smith testified that the person was "[llater identified as Stuart 

Stringer." Furthermore, all the officers referred to the 

perpetrator as "Mr. Stringer." 

At no time during the trail was there any question of 

misidentification. Stringer took the stand and gave his own 

version of the events which were previously described by the police 

officers. Stringer's brother, wife and daughter also testified on 

Stringer's behalf. Nothing in their testimony raises any question 

that the perpetrator was someone other than Stringer. 

No basis exists to reverse the District Court's ruling denying 

Stringer's motion to dismiss for failure to identify him as the 

perpetrator. The District Court was entitled to infer Stringer's 
identity and--in light of the record--correctly determined that 

Stringer was, in fact, the perpetrator. 

Af f inned. 

We concur: n