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: District Court of the Eighth Judicial District, 

In and for the County of Cascade. 

Honorable John McCarvel, Judge presiding. 

Counsel of Record: 

For Appellants: 

James A. 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 

Thomas M. McKittrick argued, Deputy County Attorney, 

Great Falls, PlMontana 

Submitted: May 22, 1980 

Decided: 0ST Q -' -1Q.I: (- & ,L'- 

'r I 2 

Filed: 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

Defendants Beverly Strain and James Young each appeal 

from a judgment of the Cascade County District Court entered 

on a jury verdict, finding each of them guilty of felony 

theft. 

Defendants were charged with stealing a television set 

from the Sheraton Inn in Great Falls on October 14, 1978. 

Defendants have also been charged by separate informations 

with stealing a television from the Triple Crown Motel in 

Great Falls on October 15, 1978, and with stealing a television 

from the Shasta Motel 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 sufficient to establish her identity. 

Before trial of this cause, Strain moved that she be tried 

separately from Young, 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 

television was stolen. The trial court also admitted evidence 

of the television thefts from the Triple Crown Motel and the 

Shasta Motel. 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 from which the television was 

stolen. The witness could not, however, identify Strain as 

the woman who was with the defendant on that evening. At 

the conclusion of the trial, the trial court provided a 

cautionary instruction to the jury which told them the 

purpose for which evidence of other thefts was admitted and 

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the limited purposes for which it could be considered. The 

defendants' defense was alibi. Although neither defendant 

testified, the same witnesses testified for each defendant 

providing them with an alibi for the theft charge relating 

to the Sheraton Inn and with relation to the Triple Crown 

Motel and Shasta Motel. 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 five years in prison. The trial court initially found 

that both defendants were 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 crimes was 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 jury with relation to their claim that a witness 

prejudiced their right to a fair trial by stating that she 

had been intimidated by defense counsel during a photographic 

identification process prior to trial. The last issue, that 

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of improper designation as dangerous offenders, is now moot 

because the trial court corrected its error and properly 

designated each defendant as nondangerous. 

The modus operandi involving the thefts from each of 

the motels 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 the man requested a ground 

floor room and again informed the personnel that the woman 

had a painful hip condition. The next day it was discovered 

that the television set was missing from the room where the 

couple had 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 set was discovered missing from the room where 

the couple had been assigned. 

The following evidence links the defendants to the 

Sheraton Inn theft, the one in which 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, identified by the appointment card found in 

room 109, bearing Young's name, testified that Young 

was the person for whom 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. 

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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 couple who 

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 they were in custody, Young was positively identified 

as the man who had checked into roams at the Triple Crown Motel 

and the Shasta Motel from which 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 

from which the television set was stolen. An employee of 

the Shasta Motel identified Young as having been the person 

who checked into the room from which the television set was 

stolen. 

The night clerk at the Triple Crown Motel also made a 

probable identification that Strain was 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 

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noted, did not claim to have any evidence connecting Strain 

to the television theft from the Shasta Motel. 

Both defendants attack the photo-identification procedures 

used after the defendants were 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 

identifications were thereby sufficiently tainted as to make 

the identifications inherently untrustworthy. Defendants 

would have us, in this regard, establish a rule that once a 

defendant is in custody, he should have counsel present at 

any photo-identification session, even if the session involves 

an offense not related to that for which a defendant is in 

custody. Defendants rely on People v. 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 State v. 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 the weight of the identification 

testimony. See, State v. Oppelt (1978), 176 Mont. 499, 580 

P.2d 110, 114, 35 St.Rep. 727, 732. Relying on tests set 

forth by the United States Supreme Court, this Court in 

State v. 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-identification process 

was unduly suggestive because she wears glasses and that in 

only one of the four women's pictures shown to the witnesses, 

did the person wear glasses. For this reason, she argues 

that the State invited the photo-display witness to point 

directly to her. We note, however, that although this does 

connote suggestiveness, it did not arise to "a very substantial 

likelihood of irreparable mis-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 Crown Motel with Young. Witness Washburn 

testified that he had seen the woman both with her glasses 

on and off. Although the glasses do constitute a 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 

case, State v. Pendergrass (1980), Mon t . , 615 P.2d 

201, 37 St.Rep. 1370, 1373-1374. See also, United States v. 

Harrison (2nd Cir. 1972), 460 F.2d 270, 271 (per curiam), 

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 identification process. The 

trial court rejected the defendants' offered instructions 

because it believed them to be a comment on the evidence. 

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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 instruction no. 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 instruction may be required where identification testimony is the only evidence 

tending to connect a defendant with 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 room where 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 similar modus operandi, and that television 

sets were missing from each of the rooms occupied by Young, 

the State was able to establish that it was not merely a 

coincidence that a television disappeared from room 109 of 
the Sheraton Inn while defendant was registered to that 

room. Although not specifically offered to prove the issue 

of identification, the evidence unquestionably helped to 

establish that the State charged the right person 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, 

similarly had 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 theft was that the 

night clerk identified her from pictures and in the courtroom 

as having been with defendant when he checked into room 109 

of the Sheraton Inn. The evidence in relation to the Triple 

Crown Motel 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 instruction was required in this case. 

Defendants next argue that the trial court erred in 

admitting testimony concerning television thefts from the 

Triple Crown Motel and the Shasta Motel. Before trial 

began, defendants tried to prevent the admission of this 

evidence by a motion in limine--which was denied. Defendants 

make several arguments. They argue first that the evidence 

had no probative value and was so inherently prejudicial 

that it denied a fair trial to defendants. secondly, they 

argue that the cautionary instruction given was overly broad 

in that it went beyond the stated purpose of the prosecution 
for seeking its admission: that it was offered to prove a 

common scheme or plan. Thirdly, they argue that the trial 

court did not comply with the requirements of State v. Just 

(19791, - Mont. , 602 P.2d 957, 36 St.Rep. 1649. Lastly, 

Strain argues that the jury was permitted to consider her 

involvement in the theft of the television from the Shasta 

Motel even though there was not a shred of evidence to 

connect her to this crime. 

The evidence had probative value. It was offered by 

the State to prove common scheme or plan, and that it did. 

That the evidence was prejudicial cannot be 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 Inn was not 

merely an unfortunate coincidence which circumstantially led 

to the defendants. Although not offered to prove identity, 

the evidence had the effect of helping to prove through 

circumstantial evidence and connecting the defendants with 

the common scheme and plan. The instruction as given 

recited each element of Rule 403, Mont.R.Evid. For this 

reason, it was overly broad, but neither defendant was 

shown prejudice 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 or motive. 

Intent or motive was not really an issue in this case. 

Defendants effectively conceded the thefts as their sole 

defense was alibi. Thus, we fail to see how defendants were 

prejudiced by this instruction. 

The instruction effectively complied with the spirit of 
State v. Just, even though there was 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 

offenses because that is why 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 

instruction at the time the evidence was 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 trial was 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 evidence must be proved beyond a 

reasonable doubt, but we have never so held. Although decided after this case, we held in State v. Just, supra, 602 

P.2d 963, that the other crimes evidence must be clear and 

convincing. It was such. The night clerk at the Triple 

Crown Motel 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, Strain had been identified 

as having been with Young on the night he checked into the 

Triple Crown. This was sufficient to meet the clear and 

convincing standard. 

Nor can we 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 to 
connect the defendant to the theft from the Shasta Motel. 

Furthermore, the jury was instructed that it was 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 it was 

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 there was 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 Shasta Motel. We must assume 

that the jury followed the instructions. 

Next, Strain contends it was 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 offenses would not 

have been admissible at her trial. It is true that evidence 

concerning the theft from the Shasta Motel 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 severance would 

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 

State v. Fitzpatrick (1977), 174 Mont. 174, 569 ~.2d 383, 

392. In considering whether there should be a joint trial, 
the trial courts must, 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 recalling witnesses. 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 

interfere with a fair trial. 

Both defendants were charged with stealing the same 

television set from the Sheraton Inn. The State needed the 

same witnesses to prove the offense against both defendants. 

The Sheraton night 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 

against both defendants. Both defendants raised an alibi 

defense and used the same witnesses to support their claim 

of alibi. Against this background, Strain's argument raising 

the specter of "guilt by association", rings rather hollow. 

The association with Young could have been shown even if she 

had a separate trial. The jury was, we note, instructed 

that it was 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 

instructions cautioning the jury to disregard a witness's 

testimony to the effect that she believed defense counsel 

for the parties had intimidated her during the photoidentification session which occurred before trial. After 
the witness made this statement, defense counsel moved for a 

mistrial but the trial court denied the motion. The court 

stated, however, that it would 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 it would give one of its own. 

Defendants contend that it did not give any instruction and 

thus the case must be reversed. 

The witness was testifying in relation to the theft of 

the television from the Shasta Motel. Because Strain was 

not implicated in this theft, she argues that had her motion 

for severance been granted she would 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 a witness or was involved 

in the theft, or both. 

The trial court did instruct the jury on the issue, but 

did not really meet the problem posed 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 instructions need not and 

should not be given, the jury was 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 wanted 
an instruction telling the jury to disregard the testimony 

of the witness in relation to her claim of intimidation by 

defense counsel. Thi~~notwithstanding, however, we do not 

find reversible error. 

Defense counsel have not urged on this Court that the 

error was so bad that a cautionary instruction could not 

correct it. Rather, they contend that the trial court 

should have given the requested cautionary instruction, but 

failed to do so after stating that one would be given. We 

cannot accept the defendants' claims as to how they were or 

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 to the defendants here in the failure of the 

court to give one. 

As we have previously mentioned, there is no need to 

discuss the issue of the trial court designating defendants 

as dangerous offenders for purposes of parole eligibility. 

Attorneys from both sides have told this Court that the 

error has been rectified and defendants have now been appropriately classified as nondangerous offenders for purposes 

of parole eligibility. 

The judgment of conviction is affirmed as to each 

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defendant. e 

We concur: 

Chief Justice 

Justices