INTHE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, Plaintiff and Respondent, No. 12479

JOHN MICHAEL SPIELMANN, Defendant and Appellant.



# ............................................ STATE OF MONTANA, Plaintiff and Respondent, No. 12480

LOUIS TONY CHRISTENSEN, Defendant and Appellant.

Appeal from: District Court of the Eighteenth Judicial District, HonorableW. W. Lessley

## ,Judge presiding. Counsel of R.ecord: For Appellants: Smith, Smith and Sewell, Helena, Montana Robert J. Sewell argued, Helena, Montana Anderson and Dasinger, Bozeman, Montana For Respondents: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana 3. C. Weingartner, AssistantAttorney General, argued,

Helena, Montana Thomas A. Olson, County Attorney, Bozeman, Montana Donald E. White, SpecialDeputy County Attorney, argued,

Bozeman, Montana

Submitted: October 2, 1973 Decided:

### ~VZ 

## 9

## lgnMr. Justice Gene B. Daly delivered the Opinion of the Court.

This appeal isbrought by defendants John Michael Spielmann and Louis Tony Christensen, from theirjoint trial in the district court of Gallatin County. Spielmann was convicted of one count of robbery and Christensen of two counts of robbery and of first degree burglary. On November 9, 1972, Spielmann, Christensen and Douglas Green, aged 15, were arrested together. Green plead guilty to charges against him and was committed to the Pine Hills Juvenile facility. Green testified as a prosecution witness atthe trial of Spielmann and Christensen. From the trialrecord these facts appear: Sometime between 10:00 p.m. the night of October 31, 1972, and 2:39 a.m. the morning of November 1, 1972, Christensen and Green burglarized the medical office of Dr. Edward L. King inIfanhatten, Montana, taking various types of drugs, some syringes and other medical equipment. On November 2, 1972, Christensen and Green, atgun point, robbed the Medical 

### ArtsPharmacy inBozeman, Montana, taking all the codeine, morphine and demerol. The pharmacist incharge, D. G. Dunham, was able togenerally describe the two persons and their clothing. He stated thatboth had nylon stockings over their faces. On November 8, 1972, Spielmann, Christensen and Green again burglarized Dr. King's office sometime between 5:45 p.m. and 8:00 p.m., this time taking a black medical bag and various drugs. On November 9, 1972, atabout 9:45 a.m., Spielmann and Green, atgun point, again robbed theMedical Arts Pharmacy wearing nylon stockings over their faces. Mr. Dunham was on duty and recognized Green from the previous robbery. Some redlin, dexedrine and demerol were taken inthe robbery. While the robbery was in progress a customer, 

### Mrs. Aileen Zacher, entered the pharmacy and

## .. observed the twomen who ran from the pharmacy to a waiting car driven by Christensen. At this time a Mrs. AnnaClousing,with her mother and son, were driving south onWillsonAvenue and observedwhat they described as a black-over-white 1964or 1965 Buick leaving the scene of the crime. After police were notified of the robbery,roadblockswere set up around Bozeman. Instructionswere given to look for a Buickwith a black top and white body, about a 1964or 1965model, and two occupants, one ofwhom wore a pencil-linemustache, appeared to be inhis fortiesand wore a khaki coat. The other occupantwas described as a younger, taller man with rather long hair,wearing a khaki colored coatwith a fur collar. TwoMontana highway patrolmen, John Flynn and Kerry Keyser, participated in the search setting a roadblock on 

### U.S. Highway 

### 191 at its intersectionwith Cottonwood Road. At approximately 11:OO a.m. theywere notified to discontinue the roadblock. While proceeding back toward Bozeman on U.S. 191, theynoticed

a black-over-white 1967Buick traveling the opposite direction. The patrolmen turned and cameup behind the Buick,which stopped before the patrol car lights or sirenwere turned on. The driver of the Buick, Christensen,who was in his forties and had a black pencil-line mustache, got out as the two patrolmenwerewalking up on either side. Both patrolmen looked into the Buick and observed Green sitting in the front seat on the passenger side and Spielmann sitting in the back seat. They also observed a khaki jacket with a fur collar on the left side of the rear seat. Patrolman Keyser asked Christensen to come back to the patrol car with him. Flynn remained at the other car talking to the other two men. PatrolmanKeyser contacted Bozeman law enforcement officers concerning the stopped vehicle and remained seated in the patrol

carwith Christensen, questioning Christensen about the absence of license plates on his car. Christensenwas also asked if therewas a gun in the Buick and he replied therewas a gun on the front seatunder somebooks. Patrolman Flynnwalked back to the patrol car from the Buick and asked Christensen if he couldlook into the trunk. Christensen said yes, and yelled to Green to push the button that opened the trunk. Green pushed the releasebutton opening the trunk and init Flynn saw another khaki typejacket. It appears Flynn closed the trunk once, and then again asked Christensen ifhe could look in the trunk. Green again opened the trunk atchristensen's request, and this time Flynn took a black medical bag from the trunk. Officers from the Bozeman citypolice and from the Gallatin County sheriff's office arrived on the scene inresponse to the radio notification from Keyser. Spielmann, Christensen and Green

were placed under arrest and advised of theirrights. On November 10, 1972, Mr. Harold Cain telephoned the Gallatin County sheriff's office and informed them that a bag containing drugs had been found athiswrecking yard the previous day by

a customer, 

### Mr. David Keith. Gerald Mell, a pharmicist who had been employed atthe Medical 

### ArtsPharmacy, testified attrial concerning these drugs and identified them ashaving come from the Medical Arts Pharmacy based upon inventory markings on the containers and the fact the types of drugs corresponded with the types missing after the robbery. Green testified that Spielmann, atChristensen's request, had tossed the bag of drugs out of the

carwindow before the three were apprehended. Spielmann and Christensen retained separate counsel. Both filed identical pretrial motions to suppress the evidence seized inthe November 9 searches of the Buick automobile, and a joint hearing was had. Defendants were tried together without objection by defendants or their respective counsel. On appeal defendants bring three issues of error: (1) Whether the districtcourt erred indenying defendants' motions to suppress evidence obtained in the November 9 searches of the Buick automobile? (2) Whether prejudicial error resulted from the consolidation of the cases for trial?

### (3) Whether the districtcourt erred indenying motions to dismiss on thebasis of insufficient independent evidence to corroborate the testimony of the accomplice? Issue 

### 1. Certain facts appear undisputed. The November 9 searches of the automobileby the patrolmen were not pursuant toa warrant

# 7' lncident toarrest and exceeded the scope of the

11

plain view doctrine" as tomost of the evidence seized. The consent to searchwas given prior tothe defendants being placed under arrest and informed of their rights. However, the fact that searchwas conducted on an automobile traveling on a public highway, pursuant t9 descriptiveinformationknown to the law enforcement officers conducting the search,

11 brings into issue the probable cause exception" developed in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L ed 543; Dyke v. Taylor Implement Mfg. Co., 391U.S. 216, 88 S.Ct. 1472, 20 L ed 2d 538; Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 26 L ed 2d 419, 426, 428; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L ed 2d 564; and various other United States Supreme Court cases which differentiatebetween automobiles and nonmovable premises. The rationale upon which this differentiation 

### is predicated 

### is stated inChambers:

11

In terms of the circumstancesjustifying a warrantless search, the Court has long distinguished between an automobile and a home or office, In Carroll v. United States, 267 US 132, 69 L Ed 543, 45 S Ct280, 39 ALR 790 (1925), the issuewas the admissibilityinevidence of contraband liquor seized ina warrantless search of a car on the highway. After surveying the law from the time of the adoption of the Fourth Amendment onward, the Court held that automobiles and other conveyances may be searched without a warrant incircumstances thatwould not justify the searchwithout a warrant of a house or an office, provided that there 

### isprobable cause tobelieve that the car contains articles that the officers are entitled to seize. The Court expressed itsholding as follows:

111We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been consthed, practi-. cally since thebeginning of the Government, as recognizing a necessary differencebetween a search of a store, dwelling house or other structure in respect of which a proper officialwarrant readily may be obtained, and a search of a ship, motor boat,wagon or automobile, for contraband goods, where it 

### isnot practicable to secure a warrant because the vehicle can be quickly moved out of the locality orjurisdiction inwhich thewarrant must be sought.

"'~aving thus established that contraband goods concealed and illegally transported inan automobile or other vehicle may be searched forwithout a warrant, we come now toconsider under what circumstances such searchmay be made. Jc Jc [Tlhose lawfully within the country, entitled touse the public highways, have a right to free passage without interruption or search unless there 

### isknown to a competent official authorized to search, probable cause forbelieving that their vehicles arecarrying contraband or illegalmerchandise. Jc

# * he he measure of legality of such 

### a seizure 

### is, therefore, that the seizing officer shallhave reasonable or probable cause forbelieving that the automobilewhich he stops and seizeshas contraband liquor therein which isbeing illegally transported.' 

# *** "The Court alsonoted that the search of an auto on probable cause proceeds on a theorywholly different from thatjustifying the search incident toan arrest: 

### he right to search and the validity of the seizure arenot dependent on the right to arrest, They are dependent on the reasonable cause the seizing officerhas forbelief that the contents of the automobile offend against the law.'

II

Arguably, because of the preference for a magistrate's judgment, only the immobilization of the car should be permitted until a searchwarrant I 

### is obtained; arguably, only the lesser' intrusion 

### ispermissible until the magistrate authorizes the 'greater.' But which 

### is the 'greater' and which the Ilesser' intrusion 

### is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we seeno difference between on the one hand seizing and holding a carbefore presenting the probable cause issue to a magistrate and on the otherhand carrying out an immediate searchwithout a warrant. Given probable cause to search, eithercourse isreasonable under the Fourth Amendment

# . II The determination made by the trialcourt before entering its order denying defendants' motions to suppress and the determination this Court must make is: Did the patrolmen conducting the search of the automobile have probable cause tobelieve it

was carrying contraband or stolenproperty from the robbery of the Medical 

### ArtsPharmacy a short time prior to the search' A general definition of probable cause 

### is stated inUnited Statesv. Thompson, 420 F.2d 536, 539 (3rd Cir,):IIOne need not have evidence which would justify a conviction; probable cause exists if the facts and circumstancesknown tothe officerwould warrant a prudent man inbelieving that the offense has been or isbeing committed. On the other hand, probable cause means more than a bare suspicion, the linebetween mere suspicion and probable cause 'must be drawn by an act of judgment formed inthe light of the particular situation and with account taken of allthe circumstances. 1I1 The basis of the probable cause existing inChambers was
a description of a car and occupants furnished by the victim of a service stationrobbery and two teenage observers. Officers

were seeking 

### a blue compact stationwagon carrying four men,

one of whom was wearing a green sweater and one of whom was wearing a trench coat. In the instant case, officers had information which was asparticular and reliable; which matched the defendants, their clothing, and their automobile as closely

as that inChambers. 

### - Accordingly, the trialcourt was correct in denying defendants' motions to suppress evidence obtained inthe initial searches. Issue 2. Whether prejudicial error resulted from consolidation of the cases for trial? Both Spielmann and Christensen retained and were represented by separate paid counsel. Neither defendants nor their respective counsel objected toconsolidation prior to or during trial. Neither of defendants1 trialcounsel participated in this appeal. The case precedent citedby defendants in support of this issue involves instances of failure of the trialcourt to appoint separate counsel or denial of a request to allow separate trials. In light of the undisputed facts thatboth Spielmann and Christensenwere represented attrialby competent counsel of their own choice and that atno timeprior to appeal was this objection raised, we find the trial court did not err inconducting a joint trial. It often happens that a joint trialwith two participating attorneys canbe an advantageous tactic or strategy. Hindsight has great advantage over foresight, in that it isalways 20-20.After electing a particular course of strategy, a defendant cannot assign as error on appeal the fact thathis defensewas unsuccessful, predicated on the supposition that another alternativewould have been successful. Statev. Meidinger, Mont

# .

, 502 P.2d 58, 29 St.Rep. 861; Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13L ed 2d 408. Issue 3. Whether the districtcourt erred indenying motions to dismiss on thebasis of insufficient independent evidence to corroborate the testimony of the accomplice? This issue is predicated on section 94-7220, R.C.M. 1947, which provides:

IIA conviction cannot be had on the testimony of an accomplice, unless he 

### is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration 

### isnot sufficient, if it merely shows the commission of the offense, or the circumstances thereof. " Whether there issufficient independent corroboration of an accomplice's testimony tending toconnect a defendant with the commission of the offense charged is

### a determination of law which must be made by the trialcourt. Statev. Moran, 142Mont. 423, 384 P.2d 777; State Y. Dess, 154Mont. 231, 237, 462 P.2d 186. Here, we find sufficientcorroborating evidence in the record from state'switnesses towarrant submission of this case to the jury: Mr. D.G. Dunham; Mrs. Anna Clousing and her son David; 

### Mrs. Aileen Zacher, who saw the defendants and their car during the commission of a robbery; Dr. Edward King; Mr. Gerald Mell; Mr. Harold Cain; Patrolmen Flynn and Kyser; and Mr. David Keith. The requirement and application of section 94-7220, R.C.M. 1947, was explained inDess: 

# "* +< 

# * Appellant suggests that the evidence, independent of the testimony of an accomplice, must prove him guiltybeyond a reasonable doubt. This isnot the law inMontana, however. Though there must be some independent evidence connecting the defendant to the crime, itneed notbe sufficient alone to sustain a conviction. The jury can consider the testimony of the accomplice and give the testimony whatever weight they desire. In Statev. Donges, 126Mont. 341, 251 P.2d 254 (1952), the Court stated atpage 347, 251 P.2d at page 257:11IThe evidence which corroborated Bungard could be furnished by the defendants. It could be circumstantial. It need not extend toevery fact towhich Bungard testified and need not be sufficient tojustify a conviction or establish a prima facie case of guilt; itbeing sufficient if it tends to connect defendants with the commission of the crime. Whether it tends to do so isa question of law, while 

### itsweight--its efficacy to fortify the testimony of Bungard and render his story trustworthy--is a matter for the consideration of the jury. Statev. Cobb, 

### 76 Mont. 

### 89, 245 P. 265. III From our examination of the record, we find no prejudicial

error. The jury was properly instructed; therewas amply substantial credible evidence properly before it upon which tobase itsverdict of guilty. The judgment of conviction isaffirmed,: ,f'

Justice



# ,"

# /' Chief Justice 

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Justices 

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-;r3-d--dr-L--'-i 

# ----*--->-I.---dHon. Edward T. Dussault, District Judge, sitting for Justice John Conway Harrison.