No. 

### 12228 

### IN THE SUPREME COURT OF 

### THE STATE OF MONTANA 1972

STATE OF MONTANA, Plaintiff and Respondent,

-vs

# - PHLZLIP HARRIS, Defendant and Appellant.

Appeal from: District Court of the Sixteenth Judicial District, HonorableAlfred 

### B. Coate, Judge presiding. Counsel of Record: ForAppellant: Evalyn 

### B. Carson argued, Billings,Montana. For Respondent: William J. Krutzfeldt argued,Miles City,Montana. Robert Woodahl,Attorney General, Helena,Montana. 

### J. C. Weingartner, Assistant Attorney General, argued,Helena,Montana.

Submitted: May 18, 1972 Decided: 

### JuL't

# -1972 FileXr, Justice John Conway Harrison delivered the Opinion of the Court. Defendant, Phillip Harris, was convicted of burglary in the first degree inthe district court of the sixteenthjudicialdistrict, county of Custer, and sentenced to fourteen years, with four years suspended, inthe Montana stateprison. From thisjudgment, defendant appeals. During the fallmonths of 1970, a codefendant of Harris,

one Leon Meidinger, began frequenting Kelly's Gaslite, a bar inMiles City. Working at thebar was Lila Williamson, an acquaintance of Meidinger. Meidinger expressed an interest inwhere the owner of the bar, Earl Kelly, kept hismoney. At the trialMeidinger testified that he had played ina poker game inthebasement of Kelly's Gaslite and was aware that considerable cash was involved inthe game. In November 1970, Meidinger pursuaded Lila Williamson toobtain a duplicate of her key to the bar and hisbrother picked up thekey forMeidinger

# . On December 11, 1970, Lila Williamson contacted a local policeman, Larry Kuchynka, and told him that during thenight of December 11 Kelly's Gaslitebar would be burglarized. Kuchynka notified Kelly, the owner, and then proceeded with local police and sheriff's deputies to stake out the bar. Kelly, before closing thebar after 2 a.m., December 12, thoroughly checked the premises upstairs and down, and found

no one inthe premises. Knowing that he might be burglarized that night, he left the safeunlocked no doubt hoping toprevent wear and tear on the safe. The information given policeman Kuchynka by Lila Williamson proved tobe correct when about fifteenminutes after Kelly closed the Gaslite officers staked out across the street sawdefendant use a key to enter the bar. At trial Kuchynka gave the following description of what took place: "A. We laid there for quite awhile,about 2:45 A.M. a male subject with brown colored coat was observed by himself and the

## - by myself, and the other two officers,walking west down Main Street. He got to the door of the Gaslight and hevery abruptly turned into the door. It appeared he stuck a key or something in the door and pulled it open and stepped inside. "Q. What did you next observe? 

### "A, About 3:00 A.M. wewere laying there awaiting for him to come out. We saw the curtain in the door rustle back and forth and a head appeared looking out the door. At that time 

### I called the other officers in to assist, He looked out the door. The door come flying open and youmight say he jumped out in themiddle of the street and turned east and just startedwalking as casually as anyone else.II Defendant's early morning walk was interruptedby seven law enforcement officers. When they frisked defendant they found a walkie-talkie and a bag full of checks and currency, tied with a cord around defendant's neck. At the time defendantwas ordered to put up his hands the arresting officersheard what turned out to be the duplicate key to Kelly's Gaslite bar fall to the pavement. Following the arrest and search of defendant, the officers went into the Gaslite bar, using defendant's key, and there they were not surprised to find the safe open and empty. They found the dial of the safehad been knocked off and alongside the safewas a hammer, so in spite of owner Kelly's precaution the safewas damaged. Later, Kelly identified checks and currencywhich had been in the safe and which were removed from the bag found hanging around defendant's neckwhen hewas apprehended. As the officers came out of the bar following completion of their investigation there, one of them noted a camperpickup parked across the street cater-corner from the Gaslitebar.The officers recognized the truck; it belonged to Leon Meidinger,

a known personality to law enforcement officers in the area. When one officer flashed his flashlight into the truck,he discovered Meidinger crouched down in the truck. Hewas ordered to get out of the truck and to the officer's surprise a walkie-talkie similar in design and cover to that found on defendant,was in his possession. The officerwho recognized the camper pickup testified he had seen the pickup parked across the street from ~elly'sGaslite 

## '
bar at approximately midnight, though both defendant and Meidinger alleged they did not arrive inMiles City until 2:30 a.m. The pickup had stolen license plates and both defendant and Meidinger admitted stealing the plates at Rosebud, Montana, en route to Miles City. Both defendant and Meidinger were arrested and charged with burglary, Each posted bail of $3,750. While awaiting release on bail, theywere in the sheriff's office talking to relatives. Both Sheriff Damrn and Officer Adrian at that time heard Meidinger say to his brother 

### "I should have knownbetter to pull something like this inmy home town.It Defendant's defense as to why he had entered the Gaslite bar after closing hours was that hewanted to see if therewas

a poker game in the basement of thebar, even though he had never played in the game. He failed to explain thewalkie-talkie or the bag of checks and currency found tied around his neck. On appeal defendant presents six issues for review: 

### 1. Was there entrapment in this case as a matter of law? 2. Was there a "breaking1'and entering and therefore a burglarious entry? 3. Was the defendant compelled to be a witness against himself inviolation ofhis constitutional rights under the Fifth Amendment to the United States Constitution? 4. Was the defendant's right to privacyinvaded in violation of the FourthAmendment to the United States Constitutionwhich prohibits unreasonable search and seizure? 5. Was the punishment of fourteenyears,with four years suspended, at hard labor, cruel and unusual punishment under the facts of this case? 6. Was the introduction of the parole officer's report at the presentence hearing a violation of the defendant's rights under the Sixth Amendment of the United States Constitution and Article 111, Section 16, of the Montana Constitution? We find no merit to defendant's first issue as to entrapment. Entrapment was not argued at the trialnor were instructions requested. State

### v. Parr, 129Mont. 175, 283 P.2d 1086; Statev. ~'Donnell, 138Mont. 123, 354 P.2d 1105. In this case therewas no decoy,no solicitation,nor any inducement to defendant to commit the burglary. This Court in a recent consideration of the plea of entrapment, Statev. Karathanos, Mont

# . , 493 P.2d 326, 331, 29 St.Rep. 81,had this to say:

I1

Entrapment occurs onlywhen the criminal intent or design originates in the mind of the police officer or informer and not with the accused, and the accused is lured or induced into committing a crime he had no intentionof committing, Only when the criminal design originates,not with the accused, but in the mind of government officers and the accused is by persuasion,deceitful representations, or inducement, lured into the commission of a criminal act, can a case of entrapment be made out. In short, there is a controlling distinctionbetween inducing a person to do an unlawful act and setting a trap to catch him in the execution of a criminal design of his own conception." Here, defendant relied on alibi as a defense and the defense of entrapment cannot be heard for the first time on appeal. Sylviav. United States, 312 F.2d 145. ~efendant'ssecond issue questionswhether or not his entrance into the bar constituted a "burglarious entry". Section 94-901,R.C.M. 1947,reads:I1 Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, motor vehicle and aircraft, vessel, or railroad car, with intent tocommit grand or petit larceny or any felony, isguilty of burglary. II Allthat isrequired as elements of the crime of burglary

11 isan entry1'with the "intent" to commit a felony. Statev. Richter, 152Mont. 449, 451 P.2d 833. Here, defendant admitted entering Kelly's Gaslite bar after the hour of 2:30 a.m. and he

was seen by the stake out officers so entering, therefore there isno question as tohis entry. There isample evidence to show defendant's entrywas illegal. He had never been inthe bar before and he used a key obtained by his partner. He leftbehind a safewith the dial removed, a hammer and a punch. He was found with a walkietalkie, identical tothe one found on his partner. Finally, he had the currency sack hung around hisneck. One cannot help but wonder what more proof could have been presented of a felonious intent, We find no merit in defendant's second issue. In his third issue defendant questions the admission into evidence of the fruits of the crime found as the result of a valid search, inviolation of his FifthAmendment rights, His argument that admission into evidence of the contents of the bag, checks and currency, compelled defendant tobe a witness against himself, iswithout merit. In Statev. Benson, 91Mont. 21, 26, 5 P.2d 223, this Court commenting on the admission into evidence of shoes, a gun and shells found lying near defendant when he was arrested, said: h he constitutionalrights of those accused of crime are sufficiently safeguarded under our practice without stretching the search and seizure provision of our Constitutionbeyond recognition of itsframers. The articleswere not obtained by unlawful search and seizure (Const., Art. 111, sec. 7), and theiruse on the trial of defendant did not compel him tobecome a witness against himself (Const., Art.111, sec. 18). (Brownev. United States, (C.C.A.) 290 Fed. 870;Baron v. United States, (C.C.A.) 286 Fed. 822.)" Also see: Statev. Houchin, 149 Mont. 503, 428 P.2d 971; State v. Armstrong, 149 Mont. 470, 428 P.2d 611;State v. Callaghan, 144Mont. 401, 396 P.2d 821. This has long been the rule recongizedby the United States Supreme Court. Weeks

v. United States, 232U.S. 383, 34 S.Ct. 341, 58 

### L ed 652; Harris v. United States, 331U.S. 145, 67 Sect.1098, 91L ed 1399.Defendant's fourth issue relates to whether the search and seizurewas a lawful incident of arrest. He seems to argue that once the officers had determined defendant had no weapon frisking should have been terminated. Had this occurred the searching officers would not have found the money bag, even though it was visible under his coat. Also,he seems to argue that pointing a machine gun at him made the search both unreasonable and illegal. The rule on search incident to a lawful arrest has been stated many times---asearch of the person incidental to a lawful arrest is valid. In Chime1v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 

### L ed 2d 685, 694, the United States Supreme Court said: "When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove anyweapons that the latter might seek to use in order to resist arrest or effect his escape.I I Concerning defendant's objection to the officers cutting the cord fromhis neck and taking the currency bag, all that need be said is that it was part of the "fruits of the crime" and the seizurewas legal. Prestonv. United States, 376 U.S. 364, 84 S.Ct.881, 11

### L ed 2d 777. We find no merit in defendant's fourth issue.~efendant'sfifth issue alleges the length of the sentence given to be cruel and unusual punishment inviolation of his rights under the Eighth Amendment to the United States Constitution. We considered such an argument in Karathanos and held: 

### "It is the general rule that a sentencewithin the maximum authorized by statute is not cruel and unusual punishment. The Ninth Circuit Court of Appeals in Black v. United States, 269 F.2d 38, 43,affirmed a thirty year sentence on a narcotic charge. There appellant, then 51years of age, argued that this amounted to life imprisonment. Themaximum punishment inMontana for the crimewhich defendantwas chargedwith, is life imprisonment. Black was denied certiorari by the United States Supreme Court. 361 

### U.S. 938, 

### 80 S.Ct. 379, 

### 4L.Ed.2d 357. "1n Black is language applicable to this case: 

### he he Eighth Amendmentwas adopted to prevent inhuman,barbarous or torturous punishment. It is possible for the length of a sentence to be so disproportionate to the offense as to fall within the inhibition. Hemans v. United States, 6 Cir., 163 F.2d 228, 237. Ordinarily, however, where the sentence imposed iswithin the limits prescribed by the statute for the offense committed, it will not be regarded as cruel and unusual. Edwards v. United States, 

### 10 Cir., 206 F.2d 855. In our view the aggregate sentence imposed on Black is not so disproportionate to the offense committed as to offend the EighthAmendment ban,111 InMontana the penalty for first degree burglary is imprisonment for not less than one nor more than fifteenyears. Section 94-903,R.C.M, 1947. Defendantwas sentenced to fourteen years with four years suspended and thus the sentence

comes within the maximum authorized. We reject defendant's fifth issue. ~efendant'sfinal issue concerns alleged denial of his rights due to certain evidence being submitted at the presentence hearing. Section 95-2204,R.C.M. 1947, sets out the scope of inquiry regarding the presentencing report:

11

Whenever an investigation is required, the probation officer shallpromptly inquire into the characteristics, circumstances,needs, and potentialities of the defendant;his criminal record and socialhistory; the circumstances of the offense;the time the defendanthas been in detention; and the harm to the victim, his immediate family, and the community. All local and state mental and correctional institutions,courts,and police agencies shall furnish the probation officer on request the defendant's criminal record and other relevant information. The investigation shall include a physical and mental examination of the defendantwhen it is desirable in the opinion of the court.II Both defendant and his counselwere present at the presentence hearing held October 

### 28, 1971, and counsel exercised extensive cross-examinationof thewitnesses. ~efendant's activities submitted as a part of the report disclosed no prior convictions,but did showprior charges of statutory rape,armed robbery and second degree murder. All thiswas properly presented for the court's consideration under the above cited statute. We find no merit in defendant's final issue. Tlle judgment of the district court is affirmed.

sociate Justice



## / Chief ~ustice