No. 79-115 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

STATE OF MONTANA, 

Plaintiff and Respondent, 

BILLIE LEON PENDERGRASS, 

Defendant and Appellant. 

Appeal from: District Court of the First Judicial 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 ie Leon 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 in October, 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 appeal s. 

Around midnight on June 26, 1977, the lone employee at 

Terry's Convenient Foods in Helena, Montana, was finishing her 

shift. She had let the last customer out the front door, locked 

it, shut off the outside lights, and was standing at the 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 

to scream 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 

rob the store, she replied that the safe was a combination 

safe. He asked the combination and whether there was any money 

left in the cash registers. 

The man then forced her into a restroom in the rear of the 

store and raped her. The girl, who had been told in a college 

course that a victim of such an assault should make every effort 

not to see her attacker, to minimize the danger of reprisal 

should he later fear 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 victim testified that she was grabbed at approximately 

12:05 a.m., that it took less than five minutes for the man to 

force her to the back of the store and that the rape lasted 

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perhaps ten minutes. 

After the rape, the man bound the girl's hands and feet 

with tie strings from a grocery apron and asked her where the key 

to the front door was. She told him the key was on the counter. 

He left her lying on the restroom floor. After two unsuccessful 

attempts to find the key, he finally located it and left. The 

girl, still bound and unclothed, hopped to the front of the store 

and contacted the police by telephone. It was 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 in front of his home. He later testified 

that he noticed the 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 it was no longer in the 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 in an alley in East 

He1 ena. 

Several witnesses placed this truck in the 1800 block on 

Ninth Avenue, one block south of the scene of the crime, between 

11:30 p.m. and 12:20 a.m., the period of time in which the crime 

occurred. One of these witnesses testified that he left his home 

to walk to Terry's Convenient Foods, a distance of one block, at 

approximately 11:30 p.m. On his way home he noticed a sparkly 

reddish pickup truck "cruising very slowly" along Ninth Avenue. 

The witness characterized the movements of the truck as "sort of 

peculiar." He saw a we1 1-muscled, stockily-buil t 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 is the 

registered owner of a truck with that license number. The witness later told a police officer that he was not sure that 
he would recognize the person if he saw him face to face. 

However, when this witness was shown a photographic array, he 

selected the defendant's picture as the one in the selection of 

six which "most closely resembled the man I saw get out of that 

truck." On cross-examination of this witness, defense counsel 

brought out that each of the persons in the 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 testified that he saw a man behind the 

counter at Terry's when he drove past the store at approximately 

12:15 to 12:20 a.m. He described the man as being fairly tal 1, 

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 in a physical 

examination of the victim shortly after the crime, reveals that 

the perpetrator was a type "A" blood type and a secretor, as is 

the defendant. However, 32% of the male population are type "A" 

secretors. 

On July 13, 1977, defendant was charged with the crimes of 

attempted robbery and sexual intercourse without consent in the 

Lewis and Clark County District Court. 

The case came on for trial on October 3, 1977. On October 

7, 1977, a jury found defendant guilty of both offenses. In a 

judgment entered on November 4, 1977, the District Court sentenced defendant to the Montana State Prison for 20 years for the 

crime of sexual intercourse without consent, and 40 years for the 

crime of attempted robbery, the sentences to run consecutively. 

This Court reversed the convictions and remanded the case 

for retrial, holding that a tape recording of the victim's 

telephone call to the police for assistance was unduly prejudicial under Rule 403, Mont.R.Evid. 

At the commencement of the second trial, on January 22, 

1979, the handcuffed defendant was led past the jury panel 

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in the 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 is to be considered not only by its own 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 in the Montana State Prison. 

The following issues have been raised on appeal: 

1. Whether the photographic identification procedures 

were constitutionally infirm. 

2. Whether it was reversible error for the trial court to 

deny the defendant's motion for a mistrial because the state had 

caused the defendant to appear in handcuffs before the jury panel. 

3. Whether it was reversible error for the court to deny 

the defendant's motion for a directed verdict on the grounds that 

there was not sufficient evidence to support the charge of sexual 

i ntercourse without consent. 

4. Whether it was reversible error for the trial court to 

instruct the jury to view weaker evidence with distrust when it 

appears stronger evidence was avail able. 

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 tri a1 . 

"Defendant contends that the pretri a1 photographic identification procedure and the tri a1 

identification of the defendant violated his 
due 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 

find defendant's contention without substance. 

His photograph is not the only photograph 

matching the description previously given by 

the witness. The array is not unduly suggestive 

in our view. ' . . .[u]nless the error is 

obvious and the prejudice clear, the defendant's 

remedy is in effective cross-examination with 

the identification question then 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, in this appeal, contends that the crossexamination of the identifying witness in the second trial, 

establ ishes that the identification procedures were unduly prejudicial because of the witness's ability to eliminate the other 

five photographs due to the 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. 

In finding the defendant's contention without merit, we 

adhere to our discussion in Pendergrass - I. In addition, this 

case differs substantially from the typical photographic array 

case where the witness looks at a photograph, makes a positive 

identification which is cemented in his mind, and then positively 

identifies the defendant in court. Here, the witness merely 

identified the defendant's photograph as the photograph which most 

closely resembled the man he saw get out of the pickup truck and 

walk toward Terry's Convenient Foods. No in-court identification 

was made. The witness also testified that he told a police 

officer that he was not sure he could identify the man he saw if 

he saw him face-to-face. Cross-examination brought out the fact 

that the witness was able to eliminate the other five photographs 

because of either a difference in build, hair color, hair length, 

or eyeglasses. Thus, the defendant was able to diminish the 

weight that a juror would give to the already limited testimony 

that defendant's photograph was the one in the 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, is distinguishable on the facts, we 

find the following language in that opinion to best summarize our 

disposition of this issue. 

"Surely, we cannot say that under a1 1 the circumstances of this case there is 'a very 

substantial li kel i hood of irreparable 

misidentification.' (Cite omitted.) Short of 

that point, such evidence is for 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 mil 1. Juries are 

not so susceptible that they cannot measure 

intelligently the weight of identification 

testimony that has some questionable feature." 

432 U.S. at 116, 97 S.Ct. at 2254, 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 is that allowing him to be seen by the 

jury panel in handcuffs prior to the commencement of trial 

affected the presumpt ion of innocence. 

A similar issue was presented to this Court in State v. 

Baugh (1977), 174 Mont. 456, 571 P.2d 779. Five days after the 

trial commenced, the defendant was brought into the courtroom in 

handcuffs. Defendant's immediate motion for a mistrial was 

denied; however, a ruling was reserved until after the 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. 

In addressing the issue on appeal this Court stated: 

"The majority rule is that, absent unusual 

circumstances, a prisoner brought into court for 

trial is entitled to appear free from all bonds 

or shackles, this right being an important component of a fair and impartial trial. However, 

in State v. Jones, 130 N.J. Super. 596, 328 A.2d 

41 (1974), the court held defendant's right to 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 

with Sawyer that a defendant is not denied a 

f a i r t r i a l --- ands-not entitledto mistriai -- solely because -- he was momentarily and inadvertently -- seen in handcuffs by jury members. 
"In the instant case counsel for defendant 

admits the jury was we1 1 aware of the fact 

defendant was in custody and not free on bail. 

There is no indication this occurrence was 

prejudicial. -- In the absence -- of an indication 

prejudicial consequences, -- such an occurrence 

does not warrant the panting - ofa new trial. 

(Emphasis added.)"174 Mont. at 762-463, 571 

P.2d at 44%783. 

In the present case defendant was "momentarily and inadvertently seen in handcuffs" by prospective jury members. There 

is no indication of prejudicial consequences in the record. In 

addition, the jurors knew that an information had been filed and 

the defendant arrested, and the District Court 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 is not sufficient 

evidence to support the convict ion of sexual intercourse without 

consent. This Court also addressed an issue concerning sufficiency of the evidence in Pendergrass - I in relation to 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 

review will not substitute its judgment for that 

of the jury . . . On appeal we examine the evidence to determine whether the verdict is supported by substantial evidence. In so doing, we 

view the evidence in the light most favorable to 

the State.' State v. Merseal (1975), 167 Mont. 

412, 415, 538 P.2d 1366, 1367-1368. (Citing 

cases.) Substantial evidence is defined as 

'such relevant evidence as a reasonable mind 

might accept as adequate to support a 

conclusion.' Merseal, 167 Mont. at 416, 538 

P.2d at 1368." 586 P.2d at 697-698, 35 St.Rep. at 

1520. 

In our present case there is no 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) this witness observed a man get out of the 
truck and begin walking towards Terry's Convenient Foods; (3) he 

also recorded the license number which had been issued to the 

defendant; (4) he further described the man to the police as 

stockily built, 5'10", caucasian with light brown, collar-length 

hair and high cheek bones, and later selected 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 in front 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) this witness later identified the truck as that of the 

defendant and this identification was corroborated by a house 

guest of the witness; (7) three other witnesses placed 

defendant's truck in front 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 in Terry'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) Kim Gardner, the victim, testified that she had 

locked the store at 11:56 p.m. and was attacked shortly 

thereafter by a person hiding in the store; (11) she also said 

that the assailant made two unsuccessful attempts to locate a key 

which she had told him was on the counter; (12) medical evidence 

reveals that the defendant's blood type matches that of the 

perpetrator. 

In viewing the preceding evidence in the light most 

favorable to the State, we find "such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion" 

of guilt beyond a reasonable doubt. 

The defendant's final contention is that the following and 

jury instruction is constitutional ly infi rm/constitutes reversible error: 

"You are instructed that evidence is to be considered not only by its own 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." 

It is argued that this instruction adversely affects the 

presumption of innocence and a1 lows the jury to draw an inference 

from defendant's failure to take the stand. Although this 

instruction might be objectionable in a case where the defendant 

testifies or offers evidence, the instruction is not prejudicial 

where, as here, the defendant does not take the stand or offer 

any evidence. The instruction states "if weaker and less satisfactory evidence - is offered . . . the evidence offered should be 

viewed with distrust." Only the State offered evidence, and pursuant to this instruction, only the State's evidence offered can 

be viewed with distrust. Nothing in this 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 District Court extensively 

instructed the jury on the presumption of innocence, the burden of 

proof and the impropriety of drawing an inference from defendant's 

failure to take the stand. 

Affirmed. 

Chief Justice 

y-8-L-A&-3 u tices --------