No. 14863 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

THE STATE OF MONTANA, Plaintiff and Respondent,

BEVERLY IRENE STRAIN and JAMES DALE YOUNG, Defendants and Appellants.

Appeal from: DistrictCourt of the Eighth Judicial District, In and for the County of Cascade. Honorable John McCarvel, Judge presiding. Counsel of Record: For Appellants: JamesA. Lewis argued and Daniel Donovan argued,

Public Defenders, Great Falls,Montana For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Mary B. Troland argued,Assistant Attorney General,

Helena, Montana J. Fred Bourdeau,County Attorney, Great Falls,Montana ThomasM. McKittrick argued, Deputy County Attorney,

Great Falls,PlMontana

Submitted: May 22, 1980 Decided: 

### 0STQ -'-1Q.I: (- & ,L'- 'rI 2 Filed:

ClerkMr. Justice Daniel J. Shea delivered the Opinion of the Court.

DefendantsBeverly Strain and James Young each appeal from a judgment of the Cascade County District Court entered

on a juryverdict, finding each of them guilty of felony theft. Defendantswere charged with stealing a television set from the Sheraton Inn in Great Falls on October 14, 1978. Defendantshave also been charged by separate informations with stealing a television from the Triple CrownMotel in Great Falls on October 15, 1978, and with stealing a television from the ShastaMotel on October 16, 1978. The televisions

were never recovered. Before trial, the prosecutor dismissed the theft charge against Strain for the apparent reason that the evidence was not sufficientto establish her identity. Before trial of this cause, Strainmoved that she be tried separately fromYoung, but the trial court denied this motion. Witnesses identified Strain and Young as having checked into the Sheraton Inn and having the room from which the televisionwas stolen. The trial court also admitted evidence of the television thefts from the Triple Crown Motel and the ShastaMotel. Witnesses identified Strain and Young as having checked into the Triple Crown Motel and having the room from which the television was stolen. A witness also identified defendant as having checked into the Shasta Motel and having the room fromwhich the televisionwas stolen. Thewitness could not, however, identify Strain as the woman who was with the defendant on that evening. At the conclusion of the trial, the trial courtprovided a cautionary instruction to the jurywhich told them the purpose for which evidence of other theftswas admitted and -2-the limited purposes forwhich it could be considered. The defendants' defensewas alibi. Although neither defendant testified, the samewitnesses testified for each defendant providing themwith an alibi for the theft charge relating to the Sheraton Inn and with relation to the Triple Crown Motel and ShastaMotel. A jury convicted both defendants of stealing the television set from the Sheraton Inn. The trial court sentenced Young to eight years in prison and Strain to fiveyears in prison. The trial court initially found that both defendantswere dangerous offenders for purposes of parole eligibility, but later found this to be an error and properly designated each defendant as nondangerous for purposes of parole eligibility. Both defendants claim that the photographic identification procedures used after their arrest, and the subsequent incourt identification procedures violated their rights to due process of law. They also claim that improper instructions

were given with relation to identification evidence, and that the trial court erred in not giving their offered instructions on this issue. Both defendants also claim that evidence of other crimeswas improperly admi,tted, that the procedures as set forth in State v. Just (19791, Mont

# . I 602 P.2d 957, 36 St.Rep. 1649,were not followed,and furthermore, that the cautionary instruction given was overly broad. In a related claim, Strain asserts that she and Young should not have been tried together and that the trial court erred in not granting her motion for severance. Both defendants also claim that the trial court did not properly instruct the jurywith relation to their claim that a witness prejudiced their right to a fair trial by stating that she had been intimidatedby defense counselduring a photographic identification process prior to trial. The last issue, that



## -3-of improper designation as dangerous offenders, is nowmoot because the trial court corrected its error and properly designated each defendant as nondangerous. Themodus operandi involving the thefts from each of themotels is strikingly similar. On October 14, 1978,a

man and a woman entered the Sheraton Inn and the man requested

a ground floor room explaining that the woman suffered from

a hip ailment. Personnel assigned the couple to room 109. The next day, at about noon,personnel discovered that the television set, a mirror, a table and some bedding were missing from room 109. On October 15, 1978,a couple checked into the Triple Crown Motel, and theman requested a ground floor room and again informed the personnel that the woman had a painful hip condition. The next day itwas discovered that the television setwas missing from the roomwhere the couplehad been assigned. On October 16, 1978, a young couple entered the Shasta Motel and the man requested a

room. The Shasta Motel has only one floor. The next day, a television setwas discovered missing from the roomwhere the couplehad been assigned. The following evidence links the defendants to the Sheraton Inn theft, the one inwhich they were charged and convicted. On the night of the 14th,the night clerks at the Sheraton,Robert Mort, Jr. and Gerald ~raxinger, registered the couple. Mort got a good look at both people. The next day at about noon, a maid at the Sheraton Inn saw a man coming out of room 109 into the parking area. A person from the doctor's office, identifiedby the appointment card found in

room 109,bearing Young's name, testified that Young was theperson forwhom she had made an appointment and that he had given the name Jim Young. Both Young and Strain had interposed an alibi defense through the testimony of Strain's mother and stepfather. Neither of the defendants testified. -4-Both night clerks involved with the registration at the Sheraton Inn on the night of October 14,gave physical descriptions of the couple to the police. At that time, neither man could identify Young from a group of pictures shown to them by the police. After the arrest of Young and Strain,however, Mort positively identified from photographs, both Young and Strain as having been the persons who had checked into room 109 on October 14. At trial,Mort also identified both defendants as having been the couplewho checked into room 109 on October 14. The trial court also admitted evidence in relation to the television theft from the Triple Crown Motel which occurred on October 15,and the television theft from the Shasta Motel which occurred on October 16. The stated purpose was to show a common scheme or plan of operation. At photo displays after the defendants'arrest, and while theywere in custody,Young was positively identified as theman who had checked into roams at 

### the Triple CrownMotel and the Shasta Motel fromwhich television sets were stolen. At trial, an employee of the Triple Crown Motel identified Young as having been the person who checked into the room fromwhich the television setwas stolen. An employee of the ShastaMotel identified Young as having been the person who checked into the room from which the television setwas stolen. The night clerk at the Triple Crown Motel also made a probable identification that Strainwas the woman with Young when he checked into the room on October 15. At trial,he made

a similar probable identification of Strain as the person who was with Young. There was no evidence to establish, however, that Strain was the woman with Young when he checked into the room at the Shasta Motel. The State, it should be -5-noted,did not claim to have any evidence connecting Strain to the television theft from the ShastaMotel. Both defendants attack the photo-identification procedures used after the defendantswere arrested and in custody. Their central contention is that the procedures used unduly suggested to the witnesses that they choose the defendants from the pictures presented, and that the later in-court identificationswere thereby sufficiently tainted as to make the identificationsinherently untrustworthy. Defendants would have us, in this regard, establish a rule that once a defendant is in custody, he should have counselpresent at any photo-identification session, even if the session involves

an offense not related to that forwhich a defendant is in custody. Defendants rely on Peoplev. Richards (1977), 76 Mich.App. 695, 256 N.W.2d 793. They would also have this Court establish a rule that a defendant in custody be entitled to a physical line-up rather than a photographic line-up process. They rely on Statev. Classen (1979),285 Or. 221, 590 P.2d 1198. We decline at this time, to adopt the rules set forth in these cases. Young offers nothing in support of his contention that the photo-identification process was unduly suggestive. Defects in procedure go to theweight of the identification testimony. See, Statev. Oppelt (1978),176 Mont. 499, 580 P.2d 110, 114, 35 St.Rep. 727, 732. Relying on tests set forthby the United States SupremeCourt, this Court in Statev. Pendergrass (1978),

### -Mont. 

### , 586 P.2d 691, 696-697, 35 St.Rep. 1512, 1517-1519, set forth the factors to be considered in assessing reliability. We find no evidence that the State did not comply with the requirements of Pendergrass.Strain contends that the photo-identificationprocess

was unduly suggestive because shewears glasses and that in only one of the fourwomen's pictures shown to the witnesses, did the person wear glasses. For this reason, she argues that the State invited the photo-displaywitness to point directly to her. We note, however, that although this does connote suggestiveness, it did not arise to "avery substantial likelihood of irreparablemis-identification." Pendergrass, supra, 586 P.2d at 686. Each of the women in the photographs resembles the others in general appearance. Each of the photographs also depicts a woman who generally matches the verbal description of the person checking into the Sheraton Inn and Triple CrownMotel with Young. Witness Washburn testified that he had seen the woman both with her glasses

on and off. Although the glasses doconstitutea single distinguishing characteristic,we cannot say that this feature is so unnecessarily striking as to corrupt the entire display procedure and raise the likelihood of misidentification. We discussed the issue in the second Pendergrass Mont

# . case, Statev. Pendergrass (1980), 

## , 615 P.2d 201, 37 St.Rep. 1370, 1373-1374. See also,United Statesv. Harrison (2ndCir. 1972), 460 F.2d 270, 271 (percuriam), cert.den. 409 U.S. 862 (1972). Given this situation, there is no basis for holding the witness's identification testimony, whether positive or tentative, inadmissible at trial. State

v. Oppelt, supra, 176 Mont. 499, 580 P.2d at 114. Defendants also attack the jury instructions given in relation to the identification process, and further contend that the trial court erred in rejecting their proffered instructions in relation to the identificationprocess. The trial court rejected the defendants' offered instructions because it believed them to be a comment on the evidence. -7-The general instruction relied on by the State is a general instruction entitled,Credibility of Witnesses-- - Discrepancies in Testimony. The instruction generally 

### - states the rights and duties of the jury in relation to giving credibility to testimony, which includes the witnesses' opportunity to observe, the witnesses' motive and state of mind. Although we do not consider this instruction a model instruction to cover the defendants' contentions,we find no prejudice here. Defendants' offered instructionno. 8 is undeniably a comment on the evidence, for it suggests that once a witness makes a pretrial photographic identification,he will not change this identification, regardless of the circumstances and even if he believes it to be mistaken. This instruction goes too far and invades the function of the jury. Whether a witness is likely or unlikely to change his mind from a previous identification, is a question for the jury,not the courts to determine as a matter of law. Although a special cautionary instructionmay be required where identification testimony is the only evidence tending to connect a defendantwith commission of the act charged, there is other evidence. The doctor's appointment card found in room 109 of the Sheraton Inn clearly connects Young to the roomwhere the theft occurred. Furthermore, the evidence admitted as to other offenses for the purpose of showing a common scheme or plan did just that. By showing that Young had checked into two other motels with a woman, and using a similarmodus operandi, and that television setsweremissing from each of the rooms occupied by Young, the Statewas able to establish that it was not merely a coincidence that a televisiondisappeared from room 109 ofthe Sheraton Inn while defendant was registered to that

room. Although not specifically offered to prove the issue of identification, the evidence unquestionablyhelped to establish that the State charged the rightperson with theft of the television from the Sheraton Inn. There is no physical evidence directly linking Strain to room 109 of the Sheraton Inn,but evidence of other offenses to show common scheme or plan, admitted in relation to the theft of the television from the Triple Crown Motel, similarlyhad the effect of establishing that Strain was also involved in a common scheme or plan to rid motel rooms of their television sets. The other crimes evidence effectively eliminated a claim of Strain that the only testimony linking her to the Sheraton Inn theftwas that the night clerk identifiedher frompictures and in the courtroom as having been with defendantwhen he checked into room 109 of the Sheraton Inn. The evidence in relation to the Triple CrownMotel reduced the chances that a misidentification occurred in relation to placing Strain at the Sheraton Inn with Young. We thus cannot say that a cautionary instructionwas required in this case. Defendants next argue that the trial court erred in admitting testimony concerning television thefts from the Triple CrownMotel and the Shasta Motel. Before trial began, defendants tried to prevent the admission of this evidence by a motion in limine--whichwas denied. Defendants make several arguments. They argue first that the evidence had no probative value and was so inherently prejudicial that itdenied a fair trial to defendants. secondly, they argue that the cautionary instruction givenwas overly broad in that itwent beyond the stated purpose of the prosecutionfor seeking its admission: that itwas offered to prove a common scheme or plan. Thirdly, they argue that the trial court did not complywith the requirements of Statev. Just

(19791,

### -Mont. 

### , 602 P.2d 957, 36 St.Rep. 1649. Lastly, Strain argues that the jurywas permitted to consider her involvement in the theft of the television from the Shasta Motel even though therewas not a shred of evidence to connecther to this crime. The evidence had probative value. Itwas offered by the State to prove common scheme or plan, and that it did. That the evidencewas prejudicial cannotbe denied; but all prejudicial evidence is not inadmissible evidence. The evidence also tended to prove that the disappearance of the television set from room 109 of the Sheraton Innwas not merely an unfortunate coincidencewhich circumstantially led to the defendants. Although not offered to prove identity, the evidencehad the effect of helping to prove through circumstantial evidence and connecting the defendantswith the common scheme and plan. The instruction as given recited each element of Rule 403,Mont.R.Evid. For this reason, itwas overly broad, but neither defendantwas shownprejudice as a result. We remind the trial courts and counsel,however, that jury instructions should be tailored to the facts of the case. The instruction also stated that the evidence could be considered to prove intent ormotive. Intentormotive was not really an issue in this case. Defendants effectively conceded the thefts as their sole defensewas alibi. Thus,we fail to seehow defendantswere prejudiced by this instruction. The instruction effectively compliedwith the spirit ofState v. Just, even though therewas no requirement here that it do so. We stated in Just, that it does not have retroactive effect. Furthermore, the defendants had advance notice of the State's intent to use the evidence of other offensesbecause that iswhy they filed the motion in limine. Although the trial court did not give the cautionary instruction at the time the evidence was admitted as required by Just, it did give the cautionary instruction at the conclusion of the trial. The failure to give the cautionary instructionat the time the evidencewas admitted was not

error. Before our decision in State v. Just, there was no such requirement. Here, the cautionary instruction given at the end of the trialwas sufficient. Strain also argues that the evidence of her involvement in the Triple Crown theft did not meet the evidentiary standard required for connection to this offense. She argues that the other crimes evidencemust be proved beyond a reasonable doubt,but we have never so held. Although decided after this case, we held in Statev. Just, supra, 602 P.2d 963,that the other crimes evidencemust be clear and convincing. Itwas such. The night clerk at the Triple CrownMotel made a probable identification of Strain as the

woman with Young when he rented the room at the motel. His description of her given to the police matched Strain's actual appearance. Furthermore, Strainhad been identified

as having been with Young on the night he checked into the Triple Crown. Thiswas sufficient tomeet the clear and convincing standard. Nor canwe agree with Strain's contention that the jury

was improperly allowed to consider evidence of the television theft from the Shasta Motel and link her to that theft. The State at no time during the trial sought toconnect the defendant to the theft from the Shasta Motel. Furthermore, the jurywas instructed that itwas to consider the evidence against each defendant as though each were being tried alone. The court also told the jury to relate the evidence only to the defendant against whom itwas received. Although not a model instruction, the jury obviously knew that it could not relate the evidence in relation to the television theft from the Shasta Motel against the defendant, for therewas no evidence to establish her connection to the theft. We note, furthermore, that one instruction set forth the precise elements required to prove the defendant guilty of the theft from the Sheraton Inn. This instruction referred exclusively to the theft from the Sheraton Inn. When considering the instructions as a whole, they clearly did not permit the jury to implicate defendant in the theft of the television from the ShastaMotel. We must assume that the jury followed the instructions. Next, Strain contends itwas error for the trial court to deny her motion to sever her trial from that of Young. From an evidentiary standpoint,she argues that if she had a separate trial, the evidence of other offenseswould not have been admissible at her trial. It is true that evidence concerning the theft from the ShastaMotel would not have been admissible,but the evidence concerning the theft from the Triple Crown Motel would have been admissible under the theory of a common scheme or plan. Thus, a severancewould not have helped her in this regard. Under section 46-11-404(4),MCA, it is within the trial court's discretion whether or not to grant a severance. See Statev. Fitzpatrick (1977), 174 Mont. 174, 569 ~.2d 383, 392. In consideringwhether there should be a joint trial,the trial courtsmust, of course, consider several factors. Joint trials speed the administration of criminal justice,

conserve judicial time, lessen the burden on prospective jurors and obviate the necessity of recallingwitnesses. On the other hand, the trial court must weigh these benefits against the potential prejudice to a defendant which may arise as a result of his being tried with another defendant. There was no real threat of prejudice here which would interferewith a fair trial. Both defendantswere charged with stealing the same television set from the Sheraton Inn. The State needed the same witnesses to prove the offense againstboth defendants. The Sheratonnight auditor positively identified Strain and Young as the couple which registered and checked into room 109 on October 14. The evidence of other offenses, with the exception of the theft from the Shasta Motel, was offered againstboth defendants. Both defendants raised an alibi defense and used the samewitnesses to support their claim of alibi. Against this background, Strain's argument raising the specter of "guiltby association",rings rather hollow. The associationwith Young could have been shown even if she had a separate trial. The jurywas,we note, instructed that itwas to consider each defendants' guilt or innocence separately. We thus find no prejudice in trying both defendants together. The last issue for discussion is the defendants' contention that the trial court in refusing their offered instructionscautioning the jury to disregard awitness's testimony to the effect that she believed defense counsel for the parties had intimidated her during the photoidentification sessionwhich occurred before trial. Afterthe witnessmade this statement,defense counsel moved for a mistrial but the trial court denied the motion. The court stated, however, that itwould appropriately instruct the jury on this problem at the conclusion of the trial. Defendants offered two instructions but both were rejected. The trial court stated that itwould give one of its own. Defendants contend that itdid not give any instruction and thus the case must be reversed. The witnesswas testifying in relation to the theft of the television from the Shasta Motel. Because Strainwas not implicated in this theft, she argues that had her motion for severance been granted shewould not have had to attend the photo-identification session. Thus, she argues that the effect of the witness's accusation of intimidation is that Strain was connected with the theft from the Shasta Motel. Young argues that failure to instruct the jury on the intimidation issue left the impression before the jury that Young had attempted to intimidate awitness orwas involved in the theft, or both. The trial court did instruct the jury on the issue,but did not reallymeet the problemposed by defense counsel. ~ts instruction stated:

"Counsel,during the course of the trial,made reference to the question of whether or not certain witnesses had been intimidated. You are instructed that you are to disregard these statements." The State contends that this instruction covered the issue and being that repetitive instructionsneed not and should not be given, the jurywas properly instructed. We cannot agree that this covered the issue posed by defense counsel--for here the trial court told the jury to disregard the statements of defense counsel. Defense counsel wantedan instructiontelling thejury todisregard the testimony of thewitness inrelation toher claimof intimidation by defense counsel. Thi~~notwithstanding, however, we do not findreversible error. Defense counsel have not urged on thisCourt that the

errorwas sobad thata cautionary instruction could not correct it. Rather, they contend that the trialcourt should have given therequested cautionary instruction, but failedtodo so after statingthatone would be given. We cannot accept the defendants' claims astohow theywereor may have been prejudiced by the testimony not covered by a specific instruction. Every unexpected utterance of a witness does not call for a cautionary instruction. We see

no prejudice tothe defendants here inthe failureof the court togive one. Aswehave previously mentioned, there is no need to discuss the issueof the trial court designating defendants

as dangerous offenders forpurposes of parole eligibility. Attorneys from both sideshave told thisCourt that the

errorhas been rectified and defendants have now been appropriately classifiedasnondangerous offenders forpurposes of parole eligibility. The judgment of conviction is affirmed as toeach

- i defendant. e

Weconcur:

Chief Justice

Justices