No. 79-115 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

STATE OF MONTANA, Plaintiff and Respondent,

BILLIE LEON PENDERGRASS, Defendant and Appellant.

Appeal from: DistrictCourt of the FirstJudicial

### District, In and for the County of Lewis and Clark. Honorable M. 

### James Sorte, Judge presiding. Counsel of Record: For Appellant: Peter M. Meloy argued, Helena, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Charles Graveley argued, County Attorney, Helena, Montana

Filed: Submitted: May 22, 1980 Decided: CLLC+& /I)/9~ C,

### Mr. Chief Justice Frank 

### I. Haswell delivered the Opinion of the Court. Defendant Bill ieLeon Pendergrass was convicted of attempted robbery and sexual intercourse without consent in October, 1977. The convictions were reversed by this Court and the case was remanded to the Lewis and Clark County District Court inOctober, 1978. State v. Pendergrass (1978), Mont. 

### , 586 P.2d 691, 

### 35 St.Rep. 1512. (Hereinafter Pendergrass- 

### I.) A trial was held and defendant was convicted of sexual intercourse without consent. He again appeals. Around midnight on June 26, 1977, the lone employee at Terry's Convenient Foods inHelena, Montana, was finishing her shift. She had letthe lastcustomer out the front door, locked it, shut offthe outside lights, and was standing atthe checkout counter writing a note to her employer. Suddenly, she was grabbed from behind by someone who put his right arm around her waist and his left arm around her shoulder, covering her face with his left hand which held a knife. 

### A male voice told her not toscream or fight. While forcing her to the back of the store, the man asked the girl where the key was. Thinking that the man intended to robthe store, she replied that the safe was a combination safe. He asked the combination and whether therewas any money left inthe cash registers. The man then forced her into a restroom inthe rear of the store and raped her. The girl, who had been told ina college

course that a victimof such an assault should make every effort not to see her attacker, to minimize the danger of reprisal should he laterfear he might be identified, kept her eyes averted and her hands over her face throughout the entire incident. She does not know what her assailant looked like. The victimtestifiedthat she was grabbed at approximately 12:05 a.m., that ittook less than five minutes for the man to force her tothe back of the store and that the rape lasted -2-perhaps ten minutes. After the rape, the man bound the girl's hands and feet with tiestrings from a grocery apron and asked her where the key tothe front door was. She told himthe key was on the counter. He left her lyingon the restroom floor. After two unsuccessful attempts to find the key, he finally located it and left. The girl, still bound and unclothed, hopped tothe front of the store and contacted the police by telephone. Itwas 12:34 a.m. When police officers arrived at the scene of the crime, a resident of the area informed them that an unfamiliar red pickup truck had been parked infront of his home. He latertestified that he noticedthe truck at approximately 11:30 p.m., that it

was still present at approximately 12:lO a.m. or 12:15 a.m., and that itwas no longer inthe area at approximately 12:30 a.m. when he heard police sirens. Another witness testified that immediately after hearing the police report on his scanner he saw a reddish truck proceeding toward East Helena. At approximately 2:30 a.m. the police, accompanied by the witness who had first described the truck, located the vehicle inan alley inEast He1ena.Several witnesses placed this truck inthe 1800 block on NinthAvenue, one block south of the scene of the crime, between 11:30 p.m. and 12:20 a.m., the period of time inwhich the crime occurred. One of these witnesses testified that he lefthis home towalk toTerry's Convenient Foods, a distance of one block, at approximately 11:30 p.m. On hisway home he noticed a sparkly reddish pickup truck "cruising very slowly" along NinthAvenue. The witness characterized the movements of the truck as "sort of peculiar." He saw awe11-muscled, stockily-built caucasion with high cheek bones and collar length light brown hair get out of the truck and walk towards Terry's. The witness then recorded the truck's license number, 5T-11046. This general description matches that of the defendant, and the defendant isthe registered owner of atruck withthat license number. The witness later tolda police officer that he was not sure thathe would recognize the person 

### if he saw himface toface. However, when thiswitness was shown a photographic array, he selected the defendant's pictureas the one inthe selection of sixwhich "most closely resembled the man Isaw get out of that truck." On cross-examination of thiswitness, defense counsel brought out that each of the persons inthe photographs not selected had different features than the defendant. These distinguishing characteristics included eyeglasses, different hair color, different hair lengths, and different builds. Another witness testifiedthat he saw a man behind the counter atTerry's when he drove past the store at approximately 12:15 to 12:20 a.m. He described the man as being fairlytal1, but under six foot, with collar length, sandy brown hair. Medical evidence obtained from testing semen stains on the victim's clothing and from testing samples taken ina physical examination of the victim shortly after the crime, reveals that the perpetratorwas a type 

### "A" blood type and a secretor, as is the defendant. However, 32%ofthe male population are type "A" secretors. On July 13, 1977, defendant was charged with the crimes of attempted robbery and sexual intercourse without consent inthe Lewis and Clark County District Court. The case came on for trial on October 3, 1977. On October 7, 1977, ajury found defendant guilty of both offenses. Ina judgment entered on November 4, 1977, the District Court sentenced defendant to the Montana State Prison for20 years for the crime of sexual intercourse without consent, and 40 years forthe crime of attempted robbery, the sentences to run consecutively. This Court reversed the convictions and remanded the case for retrial, holdingthat a tape recording of the victim's telephone call to the police for assistance was unduly prejudicial under Rule403, Mont.R.Evid. 

### Atthe commencement of the second trial, on January 22, 1979, the handcuffed defendant was led past the jury panel -4-inthe hallway outside the courtroom by officers of the Lewis and Clark County sheriff's office. Immediately thereafter, the defendant's motion for a mistrial was denied. The following "omnibus" jury instruction was given without objection: "You are instructed that evidence isto be considered not only by itsown intrinsic weight, but also according to the evidence which is within the power of one side to produce and of the other to contradict; and therefore, 

### if weaker and less satisfactory evidence is offered, when it appears that stronger or more satisfactory could have been produced, the evidence offered should be viewed with distrust." The defendant did not take the stand nor call any witnesses. 

### A motion for directed verdicts on both charges was denied. The jury found the defendant guilty of sexual intercourse without consent and not guilty of attempted robbery. He

was sentenced to

### 20 years inthe Montana State Prison. The following issues have been raised on appeal: 1. Whether the photographic identification procedures

were constitutionally infirm. 

### 2. Whether itwas reversible error for the trial court to deny the defendant's motion for a mistrial because the state had caused the defendant to appear inhandcuffs before thejury panel. 

### 3. Whether itwas reversible error for the court to deny the defendant's motion for a directed verdict on the grounds that therewas not sufficient evidence to support the charge of sexual 

### intercourse without consent. 

### 4. Whether itwas reversible error for the trial court to instruct the jury toview weaker evidence with distrustwhen it appears stronger evidence was available. The photographic identification issue was raised in Pendergrass

### - Iand disposed of as follows: "For the guidance of the District Court on retrial, we address the remaining issues which may recur at the second tria1

# . "Defendant contends that the pretria1 photographic identification procedure and the tria1 identificationof the defendant violated hisdue process rights. He argues that of the array of photographs shown the witness prior to trial, only his photograph matched the description the witness had previously given the police. "We have examined the array of photographs and finddefendant's contention without substance. His photograph isnot the only photograph matching the description previously given by the witness. The array isnot unduly suggestive inour view. 

## '

# .. .[u]nless the error is obvious and the prejudice clear, the defendant's remedy is ineffective cross-examination with the identificationquestionthen becoming one of weight to be determined by the jury and not one of admissibility.' State v. Miner (1976), 169 Mont 260, 546 P.2d 252, 256. We find no error here." Pendergrass

# 1,586 P.2d at 695, 35 St.Rep. at 1516. The defendant, inthis appeal, contends that the crossexamination of the identifyingwitness inthe second trial, establishes that the identificationprocedures were unduly prejudicial because of the witness's ability to eliminate the other five photographs due tothe persons' build, glasses, hair length,

or hair color and because the witness merely identified defendant's photograph as most nearly resembling the man he saw. Infinding the defendant's contentionwithout merit, we adhere to our discussion inPendergrass

### - I. Inaddition, this

case differs substantially from the typical photographic array

case where the witness looks at a photograph, makes a positive identification which iscemented inhismind, and then positively identifies the defendant incourt. Here, the witness merely identifiedthe defendant's photograph as the photograph which most closely resembled the man he saw get out of the pickup truck and walk towardTerry's Convenient Foods. No in-court identification

was made. The witness also testified that he tolda police officerthat he was not sure he could identify the man he saw if he saw himface-to-face. Cross-examination brought out the fact that the witness was able to eliminate the other five photographs because of either a difference inbuild, hair color, hair length,

or eyeglasses. Thus, the defendant was able to diminish the weight that ajuror would give to the already limited testimony that defendant's photographwas the one inthe six-photo array"which most closely resembled" the man he saw. Although Manson v. Brathwaite (1977), 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140, isdistinguishable on the facts, we findthe following language inthat opinion to best summarize our disposition of this issue. "Surely, we cannot say that under a11 the circumstances of this case there is'a very substantial 

### likel

### ihood of irreparable misidentification.' (Cite omitted.) Short of that point, such evidence isfor the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mil1. Juries are not so susceptible that they cannot measure intelligentlythe weight of identification testimony that has some questionable feature." 432 U.S. at 116, 97 S.Ct. at2254, 53 L.Ed.2d at 155. The defendant next contends that he was denied a fair trial by the District Court's denial of his mistrial motion. The basis of this contention isthat allowing himto be seen by the jury panel inhandcuffs prior tothe commencement of trial affected the presumption of innocence. A similar issuewas presented to this Court inState v. Baugh (1977), 174 Mont. 456, 571 

### P.2d 779. Fivedays afterthe trial commenced, the defendant was brought intothe courtroom in handcuffs. Defendant's immediate motion for a mistrial was denied; however, a rulingwas reserved until afterthe verdict in order for the District Court to question the jurors as to the creation of any prejudice because of the scene. The court determined that the incident did not affect the jury's deliberation. Inaddressing the issue on appeal this Court stated: "The majority rule isthat, absent unusual circumstances, a prisoner brought into court for trial isentitledto appear free from all bonds or shackles, this right being an important component of a fair and impartial trial. However, inStatev. Jones, 130 N.J. Super. 596, 328 A.2d 41 (1974), the court helddefendant's rightto be free of shackles during trial need not be extended to the right to be free of shackles while being taken back and forth between the courthouse and the jail. Most courts now agree withSawyer that 

### a defendant isnot denied a f a i r t r i a l ands-not entitledtomistriai 

### --- -- solely because

### -- hewas momentarily and inadvertently

### -- seen inhandcuffs

### by jury members."In the instant case counsel for defendant admits the jury was we11 aware of the fact defendant was incustody and not free on bail. There isno indicationthis occurrence was prejudicial. 

### -- Inthe absence -- ofan indication prejudicial consequences, 

### -- such an occurrence does notwarrant thepanting

### - ofa new trial. (Emphasis added.)"174 Mont. at762-463, 571 P.2d at44%783. Inthe present case defendant was "momentarily and inadvertently seen inhandcuffs" by prospectivejury members. There isno indication of prejudicial consequences inthe record. In addition, the jurors knew that an information had been filed and the defendant arrested, and the DistrictCourt gave numerous instructions on the presumption of innocence and the burden of proof. Under these circumstances we find no denial of a fair trial. The defendant also contends that there isnot sufficient evidence to support the conviction of sexual intercourse without consent. This Court also addressed an issue concerning sufficiency of the evidence inPendergrass

### - Iinrelationto the prior attempted robbery conviction. We there stated: 

### "

# .

# .. 'This Court remains ever mindful of one fundamental rule--that questions of fact must be determined solely by the jury, and that given a certain legal minimum of evidence, this Court on reviewwill not substitute itsjudgment for that ofthe jury

# ... On appeal we examine the evidence todetermine whether the verdict issupported by substantial evidence. Inso doing, we view the evidence inthe light most favorable to theState.' State v. Merseal (1975), 167 Mont. 412, 415, 538 P.2d 1366, 1367-1368. (Citing cases.) Substantial evidence isdefined as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' Merseal, 167 Mont. at416, 538 P.2d at 1368." 586 P.2d at697-698, 35 St.Rep. at 1520. Inour present case there isno question that a rape occurred, and the following evidence was adduced at trial which tends to prove that the defendant committed the crime: (1) defendant owns a distinguished red pickup truck which was

seen being parked near the scene of the crime shortly after 11:30 p.m. by a witness; (2) thiswitness observed a man get out of thetruck and begin walking towards Terry's Convenient Foods; 

### (3) he also recordedthe license number which had been issued to the defendant; 

### (4) he further described the man to the police as stockily built, 

### 5'10", caucasianwith light brown, collar-length hair and high cheek bones, and laterselected defendant's picture from six photographs as the one most closely resembling the man he saw; 

### (5) another witness testified that a red truck had been parked infront of his residence between 

### 11:30 p.m. and 

### 12:lO

a.m. but the truck was no longer present at approximately 

### 12:30 a.m.; 

### (6)thiswitness later identified the truck as that of the defendant and this identificationwas corroborated by a house guest of the witness; 

### (7) three other witnesses placed defendant's truck infront of the witness's residence between 

### 11:30 p.m. and 

### 12:20 a.m.; 

### (8) a witness who drove by Terry's testified that he saw a man near the counter inTerry's at approximately 

### 12:20 a.m.; 

### (9) he described the man as six feet or under with sandy-colored hair, between collar and shoulder length; 

### (10) KimGardner, the victim, testified that she had locked the store at 

### 11:56 p.m. and was attacked shortly thereafter by a person hiding inthe store; 

### (11) she also said that the assailant made two unsuccessful attempts to locatea key which she had told himwas on the counter; 

### (12) medical evidence reveals that the defendant's blood type matches that of the perpetrator. Inviewing the preceding evidence inthe lightmost favorable to the State, we find "such relevant evidence as 

### a reasonable mind might accept as adequate to support a conclusion" ofguilt beyond a reasonable doubt. The defendant's final contention isthat the following and jury instruction isconstitutionally infi rm/constitutes reversible error: "You are instructedthat evidence isto be considered not only by itsown intrinsic weight, but also according to the evidence which is within the power of one side to produce and of the other to contradict; and therefore, 

### ifweaker and less satisfactory evidence is offered, when it appears that stronger or more satisfactory could have been produced, the evidence offered should be viewed with distrust." It isargued that this instruction adversely affects the presumption of innocence and a1lows the jury to draw an inference from defendant's failure totake the stand. Although this instruction might be objectionable inacase where the defendant testifies or offers evidence, the instruction isnot prejudicial where, as here, the defendant does not take the stand or offer any evidence. The instruction states 

### "ifweaker and less satisfactory evidence

### - isoffered

# .

# . .the evidence offered should be viewed with distrust." Only the State offered evidence, and pursuant tothis instruction, onlythe State's evidence offered can be viewed with distrust. Nothing inthis instruction affects the presumption of innocence or defendant's right against sel

### fincrimination when he does not take the stand. We must also point out that the DistrictCourt extensively instructed the jury on the presumption of innocence, the burden of proof and the impropriety of drawing an inferencefrom defendant's failuretotake the stand. Affirmed.

ChiefJustice



# y-8-L-A&-3 utices 

# --------