IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsNORMAN E. SCHOFFNER, 

Defendant and Appellant. 

R B 1 w 

MAY 1 6 19911 

APPEAL FROM: District Court of the Thirteenth 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, 1991 
w 

Justice Karla M. Gray delivered the Opinion of the Court. 

The defendant, 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's motion 

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 the show-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's due process rights? 

4. Was the defendant denied effective assistance of counsel? 

2 
Our 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 

statutorily prescribed 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: 00 a.m. on October 3, 1988, Greg Straw, Susan Ware, 

and Audrey Marlenee were in Straw's second floor apartment located 

in Billings, Montana. All three heard 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 

coat and red-colored pants, crawl through a broken window 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 "blow by 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 the 
defendant, 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 defendant had a large quantity of 

change in his pants pocket. The defendant was then arrested and 

read his Miranda rights. At the request of an officer at the scene 

of the crime, Officer Bentz then transported the defendant to the 

laundromat in his patrol car. At the laundromat, the defendant was 

made to stand beside the patrol car. The eyewitnesses positively 

identified the defendant as the person they observed inside the 

laundromat. The defendant was then taken to City Hall for booking. 

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 $20 bill 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 the person 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 the defendant to fifteen years on the burglary conviction 

and to another ten years as a persistent felony offender, with the 

sentences to be served consecutively. 

I. 

The defendant contends that he was illegally arrested because 

his arrest was not supported by probable cause. We disagree. 

The probable cause requirement is satisfied at the time of the 

arrest if the facts and circumstances within the officer's personal 

knowledge, or imparted to the officer by a reliable source, are 

sufficient to warrant a reasonable person to believe that the 

suspect has committed an offense. State v. 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 

defendant was dressed similarlyto the broadcast description of the 
suspect and was the only person in the area. After stopping the 

defendant, Officer Bentz patted him down for weapons 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 find no merit in the defendant Is 

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 State v. Lara (1978), 179 Mont. 201, 

587 P.2d 930. In addition, the United 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 the 
defendant 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 test we must 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 

identification would violate due process, under the totality of the 

circumstances. Neil v. Biggers (1972), 409 U.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 defendant was undoubtedly 

suggestive. The defendant was brought to the scene of the crime 

and made to stand alone near uniformed police officers and a patrol 

car. This Court recognized the suggestive nature of this type of 

identification procedure in State v. Rudolph (1989) , 238 Mont. 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 out a person from an anonymous lineup. 

Biqqers, supra; State v. Lara, supra; State v. 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]aw enforcement 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 the test, we must determine whether, 

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, the accuracy of the witness1 prior description 

of the criminal, the level of certainty demonstrated by 

the witness 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. Ware had 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 laundromat was well lit. Mr. Straw and Ms. Ware were 

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 I1blow by blow1I account of the 

burglary as it occurred. The descriptions given to the police by 

both witnesses were accurate regarding the perpetratorls race, 

gender, size, and the color of his jacket. Both testified that 

during the pretrial identification the light outside the laundromat 
was 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 

minutes passed between the crime and the confrontation and that the 

defendant was stopped approximately one block from the laundromat. 

The defendant points to discrepancies between the descriptions 

given and his actual attire and argues that the witnesses were at 

least in error, if not perjurious. He argues that the color of his 

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 to meet 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 the 
prosecution'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 

ensure that Audrey Marlenee, an eyewitness, testified at trial; and 

(7) failed to challenge the discrepancies between statements made 

by witnesses Straw, Ware, and Imel to police on the date of the 

offense and their testimony at trial. 

In State v. Coates (1990), 241 Mont. 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 

Strickland v. Washinqton (1984), 466 U.S. 668, 104 S.Ct. 

2052, 80 L.Ed.2d 674. First, counsel's performance must 

be deficient. To assess deficient performance, this 

Court employs the "'reasonably effective assistance1 test 

of whether a defendant's counsel acted within the range 

of competence demanded of attorneys in criminal cases. 

(Citation omitted.)" State v. Elliott (1986), 221 Mont. 

174, 178, 717 P. 2d 572, 575. Second, counsel's deficient 

performance must have so prejudiced the defendant as to 

deprive the defendant of a fair trial. State v. Leavens 

(1986), 222 Mont. 473, 475, 723 P.2d 236, 237. The 

standard for evaluating prejudice is whether a reasonable 

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 

consideration of factual matters outside the record; thus, they are 
inappropriate 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. 

The record shows that the District Court continued the December 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 the burglary. Her testimony could reasonably have been 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 to police by 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-examining Mr. 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 for not considering these allegations is that 

to do so would require consideration of factual matters outside the 

record. That is correct. There cannot logically be 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's resources 

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 

consider matters which are not part of the record. However, the 

action taken in this case is not consistent with what this Court 

did in State v. Black. In that case, even though defendant raised 

ineffective assistance of counsel on direct appeal, that appeal was 

treated as a petition for post-conviction relief for purposes of 

dealing with that issue, and remanded to the District Court for an 

evidentiary hearing to allow the defendant to develop the necessary 

13 
record with which to argue inadequacy of counsel. That defendant's 

appeal from the adverse finding of the trial court was then 

consolidated with the remaining issues on appeal. The following 

quote from State v. Black is illustrative of what was done in that 

case: 

In this case, although defendant originally raised 

the issue of ineffective assistance of counsel on direct 

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; Stote v. Elliott, 221 

Mont. 174, 178, 717 P.2d 572, 575 (1986). Because 

defendant's filing failed to meet 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 State v. 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 in order to avoid duplication of proceedings in this case.