No. 14820 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

THE STATE OF MONTANA, Plaintiff and Respondent,

CHARLES W. DOLAN, Defendant and Appellant.

Appeal from: DistrictCourt of the Eighth Judicial District, In and for the County of Cascade. Honorable Joel G. Roth, Judge presiding. Counsel of Record: For Appellant: Robert Ernrnons argued, Great Falls, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Sarah Power, Legal Intern, Attorney General's Office,

argued, Helena, Montana J. Fred Bourdeau, County Attorney, Great Falls, Montana Mark Barer argued, Deputy County Attorney, Great Falls,

Montana

Filed: Submitted: September 9, 1980 /q Decided: J i - 4uJMr. Justice John C. Sheehy delivered the Opinion of the Court.

Defendant Charles W. Dolan appeals from thejudgment of the Eighth Judicial District Court, Cascade County. The defendant was accused by information of robbery and theft. Following a jury trial, the defendant was found guilty of theft but not guiltyof robbery. The District Court entered its sentence and judgment and denied defendant's post-trial motions. In this appeal, defendant claims that a number of errors


### were committed during his trial: 1. The evidence presented by theprosecution attrial

was insufficient toprove a charge of theft. 2. The District Court erred in allowing thejury to consider the testimony of John Grissom, an accomplice in the the£ t. 3. The DistrictCourt erred in 

### its instructions given to thejury. 4. The prosecution's closing remarks tothejury contained impermissible comments on the defendant's decision to present no evidence to rebut theprosecution's case. 

### We find no merit indefendant's argument that reversible

error was committed attrial. We affirm thejudgment of the DistrictCourt. Atapproximately 1:00 a.m. on September 22, 1978, a "holdup" occurred atthe Crossroads Truck Stop inGreat Falls, Montana. A man brandishing a handgun, entered the truck stopand demanded that the cashier give him the truck-stop's money. The cashier described thegunman aswearing black tennis shoes, blue denim jeans, a green jacket, gloves, a red helmet and a white cloth over his face. The truck stopcashier gave the gunman approximately $5,000 inUnited Statesand Canadian currency fromthe cash register and the truck stopoperator's office. The gunman took themoney and fled. The cashier reported the holdup totheGreat Falls police. Detective David Warrington, assigned to investigate the holdup, apprehended John Grissom, a suspect inthe holdup. Grissom admitted his involvement in the holdup toDetective Warrington, stating that he had driven the "getaway car" for the defendant. Following hisconfession toWarrington, Grissom agreed to testify against defendant inexchange for immunity. The prosecution presented sixwitnesses toprove its charges against defendant including the truck stopcashier, the truck stopoperator, two Great Fallsdetectives including Warrington, William Steele, a friend of the defendant, and John Grissom. Grissomlstestimony, however, provided the key evidence linking defendant tothe truck stopholdup. Grissom testified defendant "held-up" the truck stopwearing the same garb as described by the cashier, that defendant showed him the money taken from the truck stop, and that the defendant described to him in detail the holdup sequence of events. Key corroborating evidence of Grissomls theft account

was given by the testimony of William Steele. Atthe timeof the holdup, Steelewas a bartender ata local bar. Steeletestified that he visited with defendant a few days after the holdup while atwork in the bar, and that defendant ordered several rounds of drinks atthebar and paid for each round with Canadian money. When Steele asked defendant where he got the Canadian money, Steele testified defendant firstreplied that the money was left

over from a triptoCanada. Later that evening, however, defendant admitted toSteele that the Canadian money was part of the truck stopholdup money. During the trial, Steelecould not remember whether defendant said, "I

### got themoney from the Crossroads" or"I robbedthe Crossroads". Detective Warrington testified that hispolice report of an interview with Steelemade following the holdup indicated Steeletold the detective that the defendant said, "I held-up the Crossroads." Defendant presented no evidence following the presentation of the prosecution's case. Counsel for defendant made a motion tothe court for a directed verdict, claiming insufficient evidence was presented toprove the prosecution's case. Defense counsel argued that legally insufficient corroborating evidence

was offered to substantiate Grissom's testimony. The District Court acknowledged the corroborating evidence presented was not strong, but the court held the corroborating evidence was legally sufficient to support Grissom's testimony. The District Court denied themotion and allowed the case tobe submitted to thejury following its instructions on the law of the case. The jury found defendant guiltyof theft and not guiltyof robbery. Issue No. 1: Sufficiency of the Evidence Count I1 of the information charges

# ".

. .defendant did purposely or knowingly obtain or exert unauthorized control over property, cash inU.S. and Canadian currency, of a value of more than $150.00, owned by Crossroads Truck Stop, with the purpose of depriving the owner of the property." Count I, the robbery count, charged defendant committed this theftwhile placing the truck stop cashier in fear of immediate bodily injury. In order toprove the robbery charge, theprosecution offered the cashier's testimony of fear of injury. While testifying, the cashier further provided important testimony regarding the amount of money taken by thegunman during the holdup. Defense counsel argues that the jury must have distrusted the cashier's testimony because thejury found defendant not guilty of robbery. Defense counsel asserts thatthe cashier's testimony 

### is critical toprove that 

### a theft was committed. If the jury disbelieved the cashier, the defendant claims the evidence then 

### is insufficient toprove the theft as charged. We reject this argument. The defendant erroneously argues that allof the cashier's testimony must be disregarded. The court instructed thejury specifically about 

### its right to believe or disbelieve any portion of a witness' testimony. In Statev. DeGeorge (1977), 173Mont. 35, 566 P.2d 59, we held that "[tlhisCourt has frequently observed that disputed questions of fact and the credibilityof witnesses willnot be considered on appeal but that determination of such matters 

### is within the province of thejury. As long asthere is substantial evidence to support the verdict, it willnot be disturbed on appeal. (Citationsomitted.)" A review of the record indicates sufficient evidence supports thejury verdict in thiscase. The defendant argues further that the evidence does not show the Crossroads Truck Stoplegally owned the stolenmoney. This argument fails. The prosecution proved through the cashier's and operator's testimony that the truck stoppossessed the money stolen. Proof of possession sufficeshere toprove ownership. See, section45-2-101(40), MCA. In this case, the defendant proposed and the court accepted a jury instruction providing that "owner" should be defined by thejury interms of possession of property. IssueNo. 2: Testimony of JohnGrissom Defendant asserts three errorswere made by theDistrict Court with regard tothe prosecution's use of John Grissom as a witness against defendant. The first alleged error concerns the court's refusal of defendant's motion for discovery of Grissom's "rap sheet". This information, defendant contends, could validly be used todamageGrissom's credibility. In support of thismotion, counsel for defendant cited the opinion of the United StatesSupreme Court in Davis v. Alaska (1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347. The court considered Davis, but rejected defendant's motion. On appeal, defendant citesDavis and contends the court denied defendant due process. We disagree. In Davis, the Supreme Court assured a criminal defendant of his right under the Confrontation Clause of the SixthAmendment to explore through cross-examination the partiality and motivation of a prosecution witness. The Court held that cross-examination should be permitted

# ".

.

# . toexpose to thejury the facts from which jurors, as the sole triersof fact and credibility, could appropriately draw inferences relating to the reliability of the witness." A comparison of the facts of the Davis case with the factspresented in this case, indicates defendant's reliance on Davis in this case is misplaced. The Davis court prohibited defense counsel from exposing to thejury the witness' criminal record. The Davis defendant therefore was unable tomake a record from which to argue at trial the witness' bias or lack of impartiality expected of a witness. Defense counsel in this case was permitted to fully present evidence of Grissom's criminal character and bias. The jury here was aware of the immunity bargain made between the prosecution and Grissom, and of Grissom's complicity in the truck stop theft. The court's denial of defendant's motion was well within its discretion to control cross-examination. The second and third alleged errorspresented by defendant

are direct attacks on the admissibility of Grissom's testimony. Defendant contends insufficient evidence was presented to substantiate Grissom's testimony. Defendant further contends the evidence used to corroborate this testimony 

### is -6-

### inadmissible hearsay evidence. Section 46-16-213, MCA, provides the test for sufficient corroborating evidence of accomplice testimony: "A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, as defined in 45-2-301, unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." In State v. Kemp (1979), Mont

# . , 597 P.2d 96, 36 St.Rep. 1215,we summarized Montana case law of corroboration of accomplice testimony as follows: "The sufficiency of evidence necessary to corroborate accomplice testimony is a question of law. (Citationsomitted.) In defining the quantum and character of proof required to corroborate accomplice testimony, a substantial body of case law has evolved. "To be sufficient, corroborating evidencemust showmore than that a crime was in fact committed or the circumstances of its commission. (Citation omitted.) Itmust raise more than a suspicion of the defendant's involvement in, or opportunity to commit, the crime charged. (Citationomitted.) But corroborative evidence need not be sufficient, by itself, to support a defendant's conviction or even to make out a prima facie case against him. (Citationsomitted.). 

# . . ".

.

# . each case must be examined on its particular facts to determine if the evidence tends, in and of itself, to prove defendant's connection with the crime charged.

### " The key evidence corroborating Grissom's testimony was included in the testimonies of Steele and Warrington. The evidence indicates defendant admitted to Steele that the defendant "robbed" or "held-up" the truck stop, and that Steele reported to Warrington defendant's admitted involvement in the holdup. This evidence is sufficient corroborating evidence for the admissions of Grissom's testimony. We disagree with defendant's contention that this evidence is inadmissible hearsay. This evidence is not hearsay.Rule 801(d)(l)(A), Mont.R.Evid., provides: "(d) Statements which are not hearsay. A statement is not hearsay if1'-- (1) Prior statement by witness. The declarant testifies atthe trial

or hearing and 

### is subject tocross-examination concerning the statement, and the statement is (A) inconsistent with his testimony

# ..." Rule 801(d)(2)(A) Mont.R.Evid. provides: "(d) Statements which are not hearsay. A statement is not hearsay if:



# . . . (2) Admission by a party-opponent. The statement is offered against a party and 

### is (A) hisown statement

# .

# .." The statementmade by defendant toSteele is an admission by a party opponent tothe action. The statement made by Steele to Warrington is a prior statement of thewitness Steele. IssueNo. 3: Jury Instructions Defendant contends the court committed reversible error by rejecting defendant's proposed jury instructions regarding accomplice testimony and oral admissions, and further erred by giving the "Sandstrom" jury instruction. Grissom's testimony was accomplice testimony. Steele's testimony included the admissionby the defendant of his participation inthe holdup. Defendant proposed a number of jury instructions regarding the weight thejury should assign to testimony. Each of the instructionswas rejected by the court. We agree with defendant that cautionary instructions regarding accomplice testimony and oral admissions should have been included in the court's jury instructions. Wedisagreewith defendant's contention that the court's failure togive these instructions amounts toreversible error. Section 26-1-303(4), MCA, provides the following: "The jury is tobe instructedby the court on all proper occasions:

"(4)that the testimony of an accomplice ought to be viewed with distrust, and the evidence of the oral admissions of a party with caution."The cautionary instructionsproffered by defendant were elaborate and misleading. These instructionsdid not employ the simple statutorylanguage of section 26-1-303(4), MCA. The proposed accomplice testimony instructionsplaced unneeded emphasis on the unreliability and involuntary nature of Grissom's testimony. The proposed oral admissions instruction erroneously included "custodial interrogation" language. The error created by the court's omission in 

### its instructions regarding thisevidencewas minimized by other instructions. These instructionswere directed tothe testimony of prosecution witnesses because thedefendant did not present any witnesses. These instructionsprovided: "You are instructed thatyou may also consider any demonstrated bias, prejudice or hostility of a witness toward the defendant indetermining the weight tobe accorded tohis testimony. "In weighing the testimony of any witness, you should take intoaccount his interest or want of interest inthe result of thiscase

# .. . "Every witness 

### is presumed tospeak the truth. This presumption, however, may be repelled by themanner inwhich he testified, by the character of his testimony, or by evidence affecting his reputation for truth, honesty, integrity or hismotives 

# ..." Defendant claims the court committed reversible error by giving the "Sandstrom" instruction tothejury. Instruction No. 17provided: "You are instructed that the law presumes that a person intends the ordinary consequences of hisvoluntary acts." This jury instruction is identical tothe instruction held tobe unconstitutional inSandstrom

### v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61L.Ed.2d 39. In a number of recent

cases we have considered the effectof theSandstrom decision. See, Statev. Hamilton (1980), Mont. 

## , 605 P.2d 1121, 37 St.Rep. 70; Statev. McKenzie (1980), Mont. 

## , 608 P.2d 428, 37 St.Rep. 325; Statev. Wogamon (1980), Mont. 

## , 610 P.2d 1161, 37 St.Rep. 840: and State

### v. Martinez (1980), Mont. 

## , P.2d 

## , 37 St.Rep. 982.In Hamilton, 

### we held the Sandstrom-type instructionsto be harmless error since the evidence of intent inthat case was overwhelming given the factspresented in the case. In this case, the Sandstrom instruction constitutesharmless error. The evidence of intent 

### is overwhelming. The essential issue inthis

case is the identity of themasked gunman, not thegunman's intent. Indeed, the defendant proposed, and the court accepted a specificjury instruction regarding identity: "You are instructed thatthe evidence in thiscase raises the question of whether the defendant was in fact thecriminal actor, and necessitatesyour resolving any conflict or uncertainty intestimony on that issue. "The burden of proof 

### is on theprosecution with reference to every element of the crimes charged, and thisburden includes the burden of proving beyond a reasonable doubt the identity of thedefendant as theperpetrator of the crimes charged." IssueNo. 4 Impermissible Remarks intheProsecution's Closing Argument The defendant claims a portion of the prosecution's closing argument to thejury denied defendant a fair trial. Defendant attacks the remarks in closing argument as an impermissible comment on the fact that defense presented no evidence following the close of the prosecution case-in-chief. The alleged prejudicial remarks are as follows: "(By Mr. Vermillion:) NOW, where does Mr. Dolan say he got the Canadian money--well, first, he tells young BillSteelethathe went on a triptoCanada, now, there has been no evidence brought before you to show thatCharles Dolan was ever inCanada, or that he had made a tripup there, and if he had actuallybeen up inCanada, where was theproof? Canada is not a totallybarren land, with nobody up there, and if he had made a tripup toCanada tobring back sums of Canadian money, why surely therewould have been somebody, and certainly he would have been up there somewhere, you know, where somebody would have seenhim 

# ... "(after a review of prosecution witness testimony, Vermillion continues) NOW, ladies and gentlemen, we had in this case no witnesses calledby thedefense, tocontradict that evidence. Surely theremust be someone, some acquaintance of Mr. Dolan's who could testify as tohisvoice characteristics, and if he did not have such a speech impediment, thatpersoncould have testified, but none was called. "(following defense counsel's closing argument suggesting a reason for the defendant tobe driving near the truck stop)The same remark might be made of the fact that the defense called no witnesses, to say that Chuck Dolan wasn't there that night--" Counsel for defendant objected contending the remarks of the prosecution prejudiced defendant. Following this objection, the court reminded thejury to follow only its instructions on the law. These remarks do not constitute reversible error under the test of prosecutorial comment we employed in Statev. Anderson (1970), 156 Mont. 122, 476 P.2d 780: "The test is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." The remarks made here are similar to the remarks used in Statev. Armstrong (1976), 170Mont. 256, 552 P.2d 616. In Armstronq, this Court acknowledged the prosecution's right to stress the strength of its own evidence: "While it is true that the county attorney often asked rhetorical questions which amounted to comments that there was 'no evidence' or 'no testimony' torebut the inferences raised by the state's evidence, nowhere does it appear that these comments would necessarily imply that defendant was the only sourcewhich could negate state's evidence. The most that can be said of the county attorney's comments is that they referred to the fact that the defense presented no case atall. Certainly the prosecution, as an adversary for the state, cannot be prohibited from arguing the strength of its case tothejury. The manifest fact that the defense presented no testimony of its own may be detrimental tothe defendant, but such fact cannot deny the prosecution its right to stress the strength of its own evidence. (Citation omitted.)

### " For the reasons included above, we affirm the judgment of the District Court. Affirmed.We Concur:

Chief Justice

C



# w Justice

Mr. Justice Daniel 

### J. Shea dissents and will file a written dissent later.