### No. 93-309 INTHE 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, TheHonorableThomasM. McKittrick,Judgepresiding.

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, 1994Justice John Conway Harrison.deliveredthe 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 hismotions to dismiss 

### on grounds of double jeopardy and on failure of the State of Montana's (State's) witnesses to make an in-court identificationof the perpetrator. We affirm. The issues before this Court are: 1, Did theDistrict Court err indenying Stringer's motion to dismiss on grounds of double jeopardy? 2. Did the District Court err indenying 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 couldhear yelling andbanging inside. OfficerAllenwent to 

### the back of the house,while Officer Smith knocked on the front door,

### whichwas 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 Stringerhewas under arrest. Stringer--whohad drinking--respondedpeaceably 

### at first, offeringhis 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 Stringeruntil back-up help arrived. Because of Stringer's kicking,the officers bound his legs. The officers then carried Stringer,whose arms were handcuffedbehind his back, face down to apolice car in front of the house. Stringerresisted 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, Stringerwas 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 wasgranted 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 apublic defender,and trial was reset for February 10, 1993. At theFebruary 10thtrial, Stringerappearedwithout counsel. At the outset, the District Court Judge asked Stringer if he was ready to proceed. He replied, "1stilldon'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 filewhich indicated that JohnKeith, apublic defender for the City of Great Falls, was going to represent Stringer. Stringerresponded that he had not contactedMr. 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 denovo was finallyheld onMarch 19, 1993. At the trial, Stringerwas representedby Mr. Keith,who moved to dismiss

on the grounds that double jeopardy attached at the February 10th trial. Themotionwas denied. Mr. Keith latermoved todismiss 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 sentencewas suspended,and Stringerwas 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 thatdouble jeopardy attachedat 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 pertinentpart thatprosecution of the same transactionasa 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 isa legal defect intheproceedingsthat wouldmake any judgmententereduponaverdict 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 Stringerwaived his right to object to terminationand 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 therewould 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 timemight be inthe sentence if the defendant was foundguiltyt1 and that the casewould havehad 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 expressedhis desire to continuewithout 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 thedispositionof the causes sohemight 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 iswhat prompted the court tovacate 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 proceedwithout 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 employcounsel,and is entitled tohavecounsel 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 Stringerhad 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 interestsof justice. See Statev. Skurdal (1988), 235 Mont. 291, 767 P.2d 304. Stringer contends, however, that no legaldefect requiring reversalof the judgmentwould have occurred because the only consequence of the court's failure to appoint counsel in this misdemeanor case would be to limit any jail sentencewhich couldbe imposed. See Scottv. Illinois (1979),440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383.Stringer's argument lacksmerit. Stringerrequested 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 offensewarranted jail time--a result which the court acknowledgedwas 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 Statesv. Dinitz (1975), 424U.S. 600, 610, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267, 275. The District Court properly avoided reversible error by terminatingthe trialwhen it did. We hold, therefore, that nobar 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 identificationof the perpetrator? At the conclusion of the State's case, Stringer moved for dismissal of the charges because none of the Staterswitnesses identified Stringeras 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 supportingthis 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 theperpetrator. Capwell, 686 P.2d at 1157. While an in-court visual identification is not required, theremust 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 chargedbeyond 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 identifiedas the person charged in the-information. See United States v. Capozzi (8thCir. 1989), 883 F.2d 608, 617. Courts have held that an in-court identification is not necessarywhere 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; Pricev. 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 wasno in-court identificationofStringer,the District Court could have drawn the inference from the evidence presented that Stringer was the perpetrator. When responding to the State's question regardingthe identityof 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 theeventswhichwerepreviouslydescribedby thepolice officers. Stringer's brother,wife and daughter also testified on Stringer's behalf. Nothing in their testimony raisesany question that the perpetrator was someone other than Stringer. Nobasis existstoreversetheDistrictCourt's ruling denying Stringer's motion to dismiss for failure to identify him as the perpetrator. The District Court was entitled to infer Stringer'sidentity and--in light of the record--correctly determined that Stringer was, in fact, the perpetrator. Affinned.

We concur: 

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