IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, Plaintiff and Respondent,

-vsNORMAN E. SCHOFFNER, Defendant and Appellant. 

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APPEAL FROM: DistrictCourt of theThirteenth Judicial District, In and for the County of Yellowstone, The Honorable Diane G. Barz Judge presiding.

COUNSEL OF RECORD: For Appellant: Allen Beck, Billings, Montana Norman E. Schoffner, Pro Se, Deer Lodge,Montana For Respondent: Hon. Marc Racicot, Attorney General, James Yellowtail, Assistant Attorney General, State of Montana, Helena,Montana Dennis Paxinos, Yellowstone County Attorney, Brent Brooks, Deputy County Attorney, Billings, Montana

Filed: Submitted on Briefs: March 21, 1991 Decided: May 16, 1991w Justice Karla M. Gray delivered the Opinion of the Court.

Thedefendant,Norman E. Schoffner, appeals his conviction of burglary following a jury trial in the District Court of the Thirteenth Judicial District, Yellowstone County. We affirm. As a preliminary matter, we note that after the notice of appeal was filed in this case, the defendant's court appointed appellate counsel filed a motion to withdraw as counsel on the basis of lack of meritorious appealable issues. Counsel'smotion

was accompanied by an "Anders" brief which referred to possible arguments in support of the appeal, as required by Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. This Court's examination of the record, required by Anders, resulted in its conclusion that counsel's evaluation of the case was sound; therefore, we granted counsel leave to withdraw and allowed the defendant to proceed with the appeal pro se. The defendant filed his pro se brief with this Court on January 22, 1991, to which the State subsequently responded. We now consider the issues raised by the defendant. 1. Was the defendant's arrest supported by probable cause? 2. Did theshow-up identification conducted immediately after the defendant's arrest,but prior to the initiation of adversarial judicial proceedings, violate defendant's Sixth and Fourteenth Amendment right to counsel? 3. Was the show-up identification impermissibly suggestive

so as to violate the defendant'sdue process rights? 4. Was the defendant denied effective assistance of counsel? 2Our review of the record reveals that the defendant's first three issues were not raised during any stage of the proceedings in the trial court. It is the law of this State that, absent statutorilyprescribed circumstances not material to the case now before us, a defendant cannot appeal issues which were not raised with the trial court. Section 46-20-104(2)

### ,MCA; 5 46-20-701,MCA. However, in light of the procedure required by the United States Supreme Court in Anders, we will address these issues on the merits. The factual background of this appeal is as follows: At approximately 5:00a.m. on October 3, 1988,Greg Straw, SusanWare, and Audrey Marlenee were in Straw's second floor apartment located in Billings,Montana. All threeheard the sound of breaking glass and went to the apartment's front windows to determine the cause. All three saw a black man they later described as wearing a white coatand red-coloredpants, crawl through abrokenwindow in to the laundromat directly across the street. Greg Straw immediately called the police to report the incident. The eyewitnesses observed the man rummage through the drawers and cabinets inside the laundromat for a few minutes, crawl back outside the broken window and walk away. During this time Mr. Straw was on the telephone with the police dispatcher and relayed the foregoing information,giving a "blowby blow1'account of the burglary as it occurred. Police Officer Allan Bentz was given a description of the suspect and dispatched to the scene. Officer Bentz observed thedefendant, who was dressed similarly to the description of the suspect, approximately one block from the scene of the burglary. Officer Bentz stopped the defendant,and advised him of the reason for the stop. As a precaution, the officer patted him down for weapons and discovered that the defendanthad a large quantity of change in his pants pocket. The defendant was then arrested and read hisMiranda rights. At the requestof an officer at the scene of the crime, Officer Bentz then transported the defendant to the laundromat in his patrol car. At the laundromat,thedefendantwas made to stand beside the patrol car. The eyewitnessespositively identified the defendant as the person they observed inside the laundromat. The defendantwas then takento CityHall forbooking. At City Hall, a large quantity of change, three $20 bills and one $5 bill were taken from the defendant's pockets. One of the $20 bills was a 1934 issue with distinctive coloring. Officer Craig Wrzesinski interviewed the owner of the laundromat,Wilma Imel,as to the property taken and had her fill out a stolen property report form. She had discovered that at least $5 in change had been taken along with $60 to $80 in $20 bills. She described one $20bill as being a 1934 issue which was unusually dark in color. On October 5, 1988, the defendant was charged by information with the offense of burglary. On October 6, 1988, the State notified the defendant that it intended to seek designation of the defendant as a persistent felony offender on the basis of two previous felony convictions.Trial began on January 9,1989. At trial,both Mr. Straw and Ms. Ware described their identification of the defendant at the

scene of the crime following his arrest. In addition, both identified the defendant again in the courtroom as theperson they had observed committing the burglary. The third eyewitness,Ms. Marlenee, did not testify. On January 10, 1989, the jury found the defendant guilty of burglary. The District Court subsequently sentenced thedefendantto fifteenyearson theburglary conviction and to another ten years as a persistent felony offender,with the sentences to be served consecutively. I. The defendant contends thathewas illegally arrested because his arrest was not supported by probable cause. We disagree. Theprobable causerequirement is satisfied at the timeof the arrest if the factsand circumstances within the officer'spersonal knowledge, or imparted to the officer by a reliable source, are sufficient to warrant a reasonable person to believe that the suspecthas committed an offense. Statev. Lee (1988), 232 Mont. 105, 109, 754 P.2d 512, 515; State v. Ellinger (1986), 223 Mont. 349, 352, 725 P.2d 1201, 1202. In this case, one of the eyewitnesses, Mr. Straw, gave the police dispatcher an ongoing account of the crime as it occurred, including a description of the perpetrator. The dispatcher relayed this information in a broadcast to patrol officers. Officer Bentz testified that he observed the defendant within one block of the laundromat. The defendantwasdressed similarlyto thebroadcast description of thesuspect and was the only person in the area. After stopping the defendant,Officer Bentzpatted himdown forweapons and discovered that the defendant had a large quantity of coins in his pants pocket. Given these facts and circumstances, there is no question that probable cause existed to believe the defendant had committed the offense of burglary. Thus,we findnomerit in thedefendantIs contention.

11. The defendant claims that his constitutional rights were violated when he was subjected to the post-arrest show-up without the presence of counsel. The United States Supreme Court has stated that a person's Sixth and Fourteenth Amendment right to counsel attaches only "at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Kirby v. Illinois (1972), 406 U.S. 682, 689, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411, 417;see also Statev. Lara (1978),179 Mont. 201, 587 P.2d 930. In addition, theUnited States Supreme Court noted in Kirby that although Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694,extended the right to counsel, it did

so only in the limited context of custodial interrosations and has

no applicability to identification procedures conducted before the initiation of adversarial judicial proceedings. Kirby, 406 U.S. at 687, 92 S.Ct. at 1881, 32 L.Ed.2d at 416. Because no adversarial judicial proceedings had been initiated against thedefendant at the time he was subjected to the identification procedure, his right to counsel had not yet attached.

The defendant next contends that the show-up identification procedure violated his due process rights. He argues that the suggestive nature of the procedure tainted the in-court identifications made by Mr. Straw and Ms. Ware. In determining whether an in-court identification based on a pretrial identification is admissible,the testwemust use is two-pronged. First, we must determine whether the pretrial identification procedure was impermissibly suggestive; and second, if impermissibly suggestive, did the procedure have such a tendency to give rise to a substantial likelihood of irreparable misidentification that to allow the witness to make an in-court identificationwould violatedueprocess,under the totalityof the circumstances. Neil v. Biggers (1972),409U.S. 188, 198,93 S.Ct. 375, 381, 34 L.Ed.2d 401, 410-11; Lara, 587 P.2d at 932. The procedure used to identify the defendantwas undoubtedly suggestive. The defendant was brought to the scene of the crime andmade to stand alonenear uniformed police officersand apatrol

car. This Court recognized the suggestive nature of this type of identification procedure in State

### v. Rudolph (1989)

### , 238Mont. 135, 141, 777 P.2d 296, 300, stating that: Indeed, a llshow up" identification requiring a "yes or no1' answer is a far less desirable situation than positively picking outaperson fromananonymouslineup. Biqqers, supra; State

### v. Lara, supra; Statev. Campbell(1985), 219 Mont. 194, 711 P.2d 1357, cert. denied, 475 U.S. 1127, 106 S.Ct. 1654, 90 L.Ed.2d 197. As we cautioned in Campbell, ll[l]awenforcement agencies [are] ill advised to rely solely on one-to-one showups in identifying suspects with a crime." Campbell, 711 P.2d at 1362. Under the second prong of thetest,wemust determinewhether, under the totality of the circumstances, the identification procedure gave rise to a substantial likelihood of irreparable misidentification. Biqgers sets forth five factors to be considered in evaluating the likelihood of misidentification. These factors are: [Tlhe opportunity of the witness to view the criminal at the time of the crime, the witness1 degree of attention,theaccuracyofthewitness1prior description of the criminal, the level of certainty demonstrated by thewitness at the confrontation,and the length of time between the crime and the confrontation. Biqqers, 409 U.S. at 199-200, 93 S.Ct. at 382, 34 L.Ed.2d at 411. Both Mr. Straw and Ms. Warehad ample opportunity to view the defendant during the burglary. Both testified that they observed the defendant in the laundromat for several minutes and that the inside of the laundromatwaswell lit. Mr. Strawand Ms. Warewere

more than casual or passing observers of the burglary. At the sound of breaking glass, both went to the apartment window overlooking the laundromat and watched with concern the commission of the burglary. Mr. Straw gave a I1blowby blow1Iaccount of the burglary as it occurred. The descriptions given to the police by both witnesses were accurate regarding the perpetratorlsrace, gender, size, and the color of his jacket. Both testified that during thepretrial identificationthe light outsidethe laundromatwas sufficient to permit a clear observation of the defendant and both were quite certain that the defendant was the person who was inside the laundromat. The record also reveals that less than ten minutespassed between thecrimeand theconfrontationand that the defendantwas stopped approximately oneblock from the laundromat. Thedefendant pointstodiscrepanciesbetween thedescriptions given and his actual attire and argues that the witnesses were at least in error, if notperjurious. He argues that the color ofhis pants was closer to purple than to red, as described by the witnesses, and that he was wearing a baseball cap which neither witness described initially. Such variations in detail affect the weight rather than the admissibility of the pretrial identification. State v. Rudolph (1989), 238 Mont. 135, 142, 777 P.2d 296, 300. Considering the totality of the circumstances,we hold that, although suggestive, the identification procedure did not create

a substantial likelihood of misidentification.

IV. The defendant maintains that he received ineffective assistance of counsel in that trial counsel (1)failed tomeet with him often enough to prepare an adequate defense; (2) stated that the defendant had no chance of acquittal and suggested a plea bargain; (3) failed to contact and interview potential witnesses whose testimony was essential to giving credibility to the defendant's assertion of innocence; (4) failed to object to theprosecution's motion to reschedule the trial date; (5) failed to object to the testimony of Wilma Imel whom the defendant contends

was never endorsed as a witness prior to trial; (6) failed to

ensurethatAudrey Marlenee,an eyewitness, testified at trial;and (7) failed to challenge the discrepancies between statementsmade by witnesses Straw, Ware, and Imel to police on the date of the offense and their testimony at trial. In State

### v. Coates (1990), 241Mont. 331, 337, 786 P.2d 1182, 1185, this Court made the following observation regarding claims of ineffective assistance of counsel: In evaluating ineffective assistance of counsel claims, this Court utilizes a two-part test set forth in Stricklandv. Washinqton (1984),466U.S. 668, 104 S.Ct. 2052, 80L.Ed.2d 674. First, counsel'sperformancemust be deficient. To assess deficient performance, this Court employsthe "'reasonablyeffectiveassistance1test of whether a defendant's counsel acted within the range of competence demanded of attorneys in criminal cases.

(Citationomitted.)" Statev. Elliott (1986),221Mont. 174, 178,717P.2d 572,575. Second,counsel'sdeficient performancemust have so prejudiced the defendant as to deprive the defendant of a fair trial. Statev. Leavens

(1986), 222 Mont. 473, 475, 723 P.2d 236, 237. The standard for evaluating prejudice is whetherareasonable probability exists that but for counsel's deficient performance, the trial's outcome would have been different. Leavens, 723 P.2d at 237. However, in evaluating a defense counsel's performance, this Court will not second guess trial tactics and strategy. State v. LaValley (1983), 203 Mont. 393, 397, 661 P.2d 869, 872. Our review of the defendant's allegations in the context of

a direct appeal must be confined to the record. Section 46-20- 701, MCA; State v. Black (Mont. 1990), 798 P.2d 530, 532, 47 St.Rep. 1677, 1679. The defendant's first three claims require considerationof factual matters outside the record;thus,they areinappropriate in the context of a direct appeal. Black, 798 P.2d at 533. The defendant's fourth claim alleges that counsel failed to object to the prosecution's motion to reschedule the trial date. Therecord shows that theDistrict Court continued theDecember 12, 1988 trial date due to the absence of a State witness. The granting of the continuance was within the discretion of the District Court and the defendant has failed to show how he was prejudiced by the delay. The fifth claim alleges counsel should have objected to the testimony of Wilma Imel because she was not endorsed as a witness prior to trial. This allegation is factually unfounded. A review of the record indicates Imel was endorsed as a State witness by stipulation on December 28, 1988. The defendant next alleges counsel failed to ensure that Audrey Marlenee, an eyewitness, testified at trial. Although she did not testify at trial she did give a statement to police on the date of the offense, identifying the defendant as the perpetrator of theburglary. Her testimony could reasonablyhavebeen expected to 

### be merely cumulative to that of the other eyewitnesses. The defendant has failed to show how the absence of this witness prejudiced his defense or affected the outcome of the trial. The defendant's last claim alleges that counsel failed 

### to challenge the discrepancies between statements given to police by witnesses Straw,Ware and Imel, and their testimony at trial. A review of the transcript reveals that counsel did not cross-examine Mrs. Imel. The statements given topoliceby Mr. Straw and Ms. Ware did not mention that the defendant was removed from the patrol car at the scene by the arresting officers and neither described the perpetrator of the crime as wearing a cap, although the defendant was wearing one when arrested. Contrary to the defendant's contention, however, counsel made a concerted effort to illustrate the discrepancies when cross-examiningMr. Straw and Ms. Ware. The defendant has failed to show counsel's performance

was deficient in this regard. Affirmed.

We concur:

### Justice Terry 

### N. Trieweiler concurring in part and dissenting in part.

### I concur with the majority's disposition of the first three issues raised by the defendant. I 

### dissent from that part of the majority's decision which refuses to consider the first three bases upon which appellant contends that he received ineffective assistance of counsel. The majority's rationale fornot consideringthese allegations is that todo sowould require consideration of factualmatters outside the record. That is correct. There cannot logicallybe any record of

an attorney's failure to meet with his client and prepare an adequate defense; or of conversations between defendant and his counsel; or of counsel's failure to contact potential witnesses. However, it is not a reasonable use of this Court'sresources to refuse to consider those issues in this appeal and invite a 

### petition for post-conviction relief to consider the same issues. The majority cited State v. Black, 798 P.2d 530, 532, 47 

### St.Rep. 1677, 1679 (Mont. 1990), as authority for its refusal to considermatters which are not part of the record. However, the action taken in this case is not consistent with what this Court did in Statev. Black. In that case, even though defendant raised ineffective assistance of counsel ondirect appeal,thatappealwas treated as a petition for post-conviction relief for purposes of dealingwith that issue,and remanded to the District Court for an evidentiary hearing toallowthedefendant todevelop thenecessary 13

### recordwithwhich toargue inadequacyof counsel. Thatdefendant's appeal from the adverse finding of the trial court was then consolidated with the remaining issues on appeal. The following quote from Statev. Black is illustrative of what was done in that case: In this case, although defendant originally raised the issue of ineffectiveassistance of counsel ondirect appeal, the resolution of such issue required consideration of factual matters not contained in the record thereby making it an inappropriate issue for direct appeal. Section 46-20-701, MCA; 

### Stotev.

### Elliott, 221 

### Mont. 174, 178, 717 P.2d 572, 575 (1986). Because defendant's filing failed tomeet the requirements of a direct appeal, we appropriately treated such filing as a petition for post-conviction relief, as provided in §§ 

### 46-21-101 to 203,MCA. We then remanded defendant's claim to the District Court so that an evidentiary hearing could be held that would allow defendant to present those factual matters necessary to his claim. See Statev. 

### Laverdure, 212 Mont. 31, 33, 685 P.2d 375, 376 (1984). State

### v. Black, 798 P.2d at 532. I would follow the same procedure followed in the Black decision inordertoavoidduplicationofproceedings in thiscase.