IN THE SUPREME COURT OF THE STATE OF MONTANA 

NO. 83-296 

STATE OF MONTANA, 

Plaintiff and Appellant, 

v. 

GREGORY LYNN JOHNSON, 

Defendant and Respondent. 

ORDER 

PER CURIAM: 

The opinion of this Court dated December 16, 1983, 

State of Montana v. Gregory Lynn Johnson, is hereby modified 

to delete the words "at trial" on page three (3), line 

fourteen (14) of the original opinion. 

The Clerk is directed to mail a true copy of this 

order to counsel of record for all parties. 

DATED this 21st day of December, 

J 

Justices 
No. 83-296 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsGREGORY LYNN JOHNSON, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph B. Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

A. Michael Salvagni, County Attorney, Bozeman, 

Montana 

For Respondent : 

Goetz, Madden & Dunn, Bozeman, Montana 

"- 

Submitted on Briefs: September 2, 1983 

Decided: December 16, 1983 

Filed: .ILL j. -: IYU~ 

8 

-- Clerk 
Mr. Justice L.C. Gulbrandson delivered the Opinion of the 

Court. 

This case comes on appeal from an order of the 

District Court of the Eighteenth Judicial District in 

Bozeman, Montana, granting part of defendant's motion to 

suppress evidence. 

The alleged facts in this case indicate the following. 

On the morning of August 23, 1982, the victim, a Bozeman 

realtor, received a phone call from an individual claiming 

to be a Frank Bartlett. The caller requested that the 

victim show him a house that was listed through her real 

estate agency. Arrangements were made to meet at the house 

later that morning. 

The victim arrived just before 11:OO a.m. She entered 

the house to make sure everything was in order before the 

prospective buyer arrived. When she entered the master 

bedroom, a man wearing a ski mask and holding a gun jumped 

out and grabbed her. She grabbed the barrel of the gun and 

pushed it away from her. A struggle ensued. 

The assailant overpowered the victim and threw her to 

the floor. He threw the gun into a nearby closet and laid 

down on top of her. The assailant pulled out a hunting 

knife and tried to remove a strip of tape from its blade to 

cover the victim's eyes. She began to struggle again and 

grabbed at the knife, cutting her hand. 

The struggling ceased and the assailant was again 

lying on top of the victim. The assailant then placed tape 

over the victim's mouth and taped her hands behind her back. 

He then pulled her over to a corner of the room, placed her 

in a sitting position and reached inside her clothing 
touching her breast. The assailant then left. 

The victim freed herself and reported the assault to 

the Gallatin County Sheriff. She gave the Sheriff's office 

a description of the assailant's voice and general 

appearance. 

On September 1, 1982, approximately one week after the 

assault, the Sheriff's office informed the victim that they 

had a suspect and wanted her to come in and listen to his 

voice. The victim went to the Sheriff's office and was 

asked to stand nea.r a door that was slightly opened. She 

listened for approximately five minutes as the suspect 

talked with Sheriff's officers. She could not see the 

suspect. When asked if she could identify the voice, she 

stated, -, 

"Yes, I believe I can identify that 

voice. That voice, if not the same voice 

I heard up at Story Hills on the 23rd, it 

was extremely similar. I would say it 

was the same voice." 

The victim stated she talked with the assailant for 

approximately thirty minutes when the assault occurred. The 

suspect was placed under arrest following the voice 

identification. 

On May 13, 1983, the District Court granted the 

defendant's motion to suppress the voice identification as 

evidence at trial. The District Court relied upon our 

decision in State v. Pendergrass (1978), 179 Mont. 106, 586 

P.2d 691, in making its ruling. 

The State now appeals claiming the District Court 

erred in granting defendant's motion to suppress the voice 

identification. 

The reliability of procedures used in eyewitness 
identification was addressed by the United States Supreme 

Court in a group of cases known as the Wade trilogy. United 

States v. Wade (1967), 388 U.S. 218, 07 S.Ct. 1926, 10 

L.Ed.2d 1149; Gilbert v. California (1967), 388 U.S. 263, 87 

S.Ct. 1951, 18 L.Ed.2d 1178; Stovall v. Denno (1967), 388 

U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. The Wade trilogy 

established a per se rule that excluded all evidence of an 

identification obtained through unnecessarily suggestive 

procedures when a fairer alternative was available. Thus, 

the court in Stovall said: 

"The practice of showing suspects singly 

to persons for the purposes of 

identification, and not as part of a 

lineup, has been widely condemned. 

[footnote omitted]. However, a claimed 

violation of due process of law in the 

conduct of a confrontation depends on the 

totality of the circumstances surrounding 

it. . . 

Stovall, 388 U.S. 302. In Stovall, the court found an 

exigent circumstance exception to the per se rule when they 

approved an identification made after a one-on-one 

confrontation because the witness was in danger of death. 

Subsequent cases have not strictly applied the 

standards expressed in the Wade trilogy, but have adopted a 

more lenient totality of the circumstances approach. Under 

this approach, the admission of testimony concerning an 

unnecessarily suggestive identification procedure does not 

violate due process standards so long as the identification 

possesses sufficient aspects of reliability. Neil v. 

Biqgers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401. 

In Biggers, the court identified certain criteria to be 

considered in determining whether the likelihood of 

misidentification exists: 
"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 evaluating 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 criminal, the level of 

certainty demonstrated by the witness at 

the confrontation, and the length of time 

between the crime and the confrontation." 

Bigqers, 409 U.S. at 199. 

The Bigqers rationale was adopted by the Court in 

Manson v. Brathwaite (1977), 432 U.S. 98, 97 S.Ct. 2243, 53 

L.Ed.2d 140. In Manson, the Court examined the two 

post-Biggers approaches taken by lower courts regarding 

evidence obtained through suggestive identification 

procedures: 

"The first, or per se approach . . . focuses on the procedures employed and 

requires exclusion of the out-of-court 

identification evidence, without regard 

to reliability, whether it has been 

obtained through unnecessarily suggested 

confrontation procedures. (footnote 

omitted) 

"The second, or more lenient, approach is 

one that continues to rely on the 

totality of the circumstances. It 

permits the admiss ion of the 

confrontation evidence if, despite the 

suggestive aspect, the out-of-court 

identification possesses certain features 

of reliability." 

Manson, 432 U.S. at 110. 

The Manson Court rejected the er se rule stating, 

" [tlhe per se rule . . . goes too far since its application 

automatically and peremptorily, and without consideration of 

alleviating factors, keeps evidence from the jury that is 
reliable and relevant." The Manson Court added that 

"reliability is the linchpin" in determining admissibility 

for both pre- and post-Stovall confrontations. The Manson 

Court concluded that the factors set out in Biggers are to 

be applied, "and against these factors is to be weighed the 

corrupting effect of the suggestive identification itself." 

Manson, 432 U.S. at 114. 

In State v. Pendergrass (1978), 179 Mont. 106, 586 

P.2d 691, we applied the Biggers-Manson test to a voice 

identification procedure. In Pendergrass, the defendant was 

accused of committing a rape at a Helena grocery store. 

Thirty-two hours after the incident occurred, the victim of 

the assault was asked to come to the police station. She 

was told that a suspect in the crime was going to be 

questioned, and was given an opportunity to listen to the 

conversation. The defendant and an officer were on one side 

of a room divided, floor-to-ceiling, by filing cabinets with 

the victim stationed on the other side. The officer 

interrogated the suspect as to his activities on the night 

in question. The suspect was not asked to repeat any 

phrases the victim had said her assailant used. When the 

victim was asked her opinion of the defendant's voice, she 

replied either "I think that is the voice" or "I believe 

that is the voice." We concluded that the totality of the 

circumstances surrounding the voice identification gave rise 

to a very substantial likelihood of irreparable 

misidentification and due process required exclusion of the 

evidence. In reaching that conclusion, we used a 

step-by-step application of the Biggers-Manson criteria. 

By applying the five-step Biqgers-Manson test, as 
adopted in Pendergrass, to the facts of this case, we 

conclude that the District Court erred in its decision. 

Specifically, the five factors provide: 

(1) Opportunity of the witness to view the criminal at 

the time of the crime. Here, as in Pendergrass, the victim 

did not see the assailant's face. However, in Pendergrass 

the victim made conscious effort not to see her assailant 

while the victim, in the present case, gave a detailed 

description of his overall appearance. In particular, the 

victim viewed her assailant for approximately twenty minutes 

before her eyes were taped and described him as male, 

approximately 5'6" in height, wearing brown scratched shoes, 

blue jeans, blue hooded sweatshirt, dark curly hair, hazel 

eyes with long eyelashes, strong garlic smell on his breath, 

a heavy smell of aftershave and a soft, hesitating voice. 

These facts indicate the first step of the Pendergrass test 

was satisfied. 

(2) The witness' degree of attention. Clearly the 

victim was paying close attention to the assailant to 

describe him as she did. Indeed, the assailant laid on top 

of the victim for approximately thirty minutes after they 

had scuffled over the gun and knife. In addition, at the 

suppression hearing, the victim testified she was paying 

close attention to the voice. Thus, the second step of the 

Pendergrass test was satisfied. 

(3) The accuracy of the prior description. The 

previous discussion indicates the witness gave a detailed 

description of her assailant. The description was much more 

full and complete than the description given by the victim 

in Pendergrass and the District Court properly determined 
that the third step was satisfied. 

(4) The witness1 level of certainty at the 

confrontation. As previously noted, when the victim in this 

case was asked if she could identify the voice of the 

defendant at the initial confrontation she stated: 

"Yes, I believe I can identify that 

voice. That voice, if not the same voice 

I heard up at Story Hills on the 23rd, it 

was extremely similar. I would say it 

was the same voice." (emphasis added) 

At the suppression hearing, the victim gave the following 

testimony on direct examination: 

"Q. And could you identify this voice? 

"A. At the time I thought it was 

identical to the voice I heard in the 

house. 

"Q. And this was approximately one week 

a£ ter? 

"A. One week after. 

"Q. You've testified that you conversed 

with the assailant for approximately a 

half hour, is that correct? 

"A. Yes, I talked constantly the whole 

time, and he talked back to me. He never 

told me to shut up. 

"Q. And how close to this individual 

were you during these conversation? 

"A. If it wasn't face to face, he was, 

it was always a very close proximity. 

"Q. And during these conversations, were 

you paying attention to this voice? 

"A. Yes 

"Q. Were there any distractions? 

"A. No, well just the gun and the knife. 

"Q. But other than that-- 

"A. No, no distraction. It was 

absolutely silent except for the two 

people talking, the two of us." 
Upon cross examination the victim stated: 

"Q. Well, you are completely sure that 

that was the voice you heard. 

"A. At that time I was." 

The victim also said the following on cross examination: 

"Q. And you were not at that time, that 

is during the assault, focusing on a 

voice. You were concerned about 

protecting yourself and your welfare and 

getting rid of the person. 

"A. That's true, but it got to the point 

where when he was laying on top of me for 

it seemed like an eternity, we talked 

during that time, and his voice was like 

right here and we-- I at that point, I 

think I'm an astute observer. I listened 

and we conversed; and at that point there 

were less distractions other than the 

entire incident. 

"Q. But you were not focusing at that 

time or any other time on his voice 

specifically? 

"A. I was focusing on getting out of 

there alive. " 

The District Court held that the victim made the type of 

equivocal voice identification that we held was inadmissible 

on due process grounds in Pendergrass. In Pendergrass, we 

said: 

"Rather than making an unequivocal 

statement at the time she made the 

identification, the response of the 

witness here was a qualified 'I think 

that's the voice' or 'That sounds like 

the voice.'" 

Pendergrass, 179 Mont. at 117. 

However, the statement of the victim in Pendergrass 

was more equivocal than the statement of the victim in this 

case. Rather than say "I think" or "I believe that's the 

voice," here the victim said she could identify the voice 

and added "I would say it was the same voice." This was an 

unequivocal voice identification that should not have been 
suppressed by the District Court. Moreover, the fact that 

the assailant was lying on top of the victim for 

approximately twenty minutes as he was speaking, makes the 

victim's voice identification even more reliable than the 

identification in Pendergrass. Thus, the fourth step of the 

Biggers-Manson test was satisfied and the voice 

identification should not have been suppressed because of 

the victim's uncertainty. 

(5) The time between the crime and the confrontation. 

In Penderqrass, thirty two hours elapsed between the crime 

and the confrontation. In the present case, approximately 

one week elapsed between the assault and the confrontation. 

We agree with the District Court that seven days between the 

assault and the confrontration should not render the 

identification inadmissible. Indeed, in State v. Dahl 

(Mont. 1980), 620 P.2d 361, 37 St.Rep 1852, we held that an 

eight-day delay between the time of the crime and the 

confrontation was permissible. 

In short, the application of the - Biggers-Manson 

criteria as adopted in Pendergrass, to the facts of this 

case, indicate sufficient indicia of reliability to allow 

the voice identification into evidence. However, our 

decision does not stand for the proposition that the 

identification procedure used by the police in this case was 

ideal. Clearly a "voice line-up," in which the victim must 

make an identification after listening to several voices, is 

the most reliable procedure. Nevertheless, our analysis of 

the totality of the circumstances in this case convince us 

that the victim's voice identification was sufficient, and 

the District Court erred in its ruling. 
We therefore reverse and remand in accordance with our 

decision. 

We concur: 

Mr. Justice Daniel J. Shea, dissenting: 

I dissent. The one-person voice line-up was unduly 

suggestive and I would hold the voice identification to 

be inadmissible.