No. 12297 IN

### THE SUPREME COURT OF THE STATE OF MONTANA 1973

THE STATE OF MONTANA, Plaintiff and Respondent,

-VS

# - FRED LLOYD ROMERO, Defendant and Appellant.

Appeal from: District Court of theThirteenthJudicialDistrict, Honorable Robert H. Wilson, Judge presiding. Counsel of Record: For Appellant

### : Berger, Anderson, Sinclairand Murphy, Billings, Montana James J. Sinclairargued, Billings, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Jonathan B

# .Smith, AssistantAttorneyGeneral, argued,

Helena, Montana Harold F. Hanser, County Attorney, Billings, Montana Clifford E. Schleusner, Deputy County Attorney, appeared,

Billings, Montana G. Todd Baugh, Billings, Montana

Submitted: January 

### 24, 1973 Decided: 

### FEB

### 7

# -19n Filed: 

### YER 'i

# -1973Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. On February 7, 1972,defendant,Fred Lloyd Romero,was charged by informationwith the crime of robbery. He plead not guilty and his trial was held onApril 5, 1972,and on April 6, 1972, the jury returned a verdict of guilty of robbery. OnApril 14, 1972, the district court of Yellowstone County sentenced defendant to eighteen years in theMontana state prison. From this judgment and sentence the defendant has appealed. From the record it appears that shortly before 2:00

a.m. on February 4, 1972,Mrs. Mary Cipech,manager of the Broken Drum Bar, closed the business and proceeded to her car to go home. As she left the bar she noticed a man standing

near the motel next door. When sheunlocked the door to her

car a man inside pointed a gun at her; she screamed and began running away from the automobile. As shewas fleeing, theman standing near the motel approached her, demanded her purse and grabbed it away fromher as she either fell or was pushed to the ground. Mrs. Cipech observed twomen run to and enter an old,white stationwagon. Both of these men had covered their faces with ski-type "masks". A fewminutes later Mrs. Cipech saw Jack Hyde, a merchant policeman, driving on the highway in front of the bar, and she flagged him down. Hyde helped Mrs. Cipech into his patrol car and listened to the story of the robbery. Hyde radioed the information to the sheriff's office. Hyde had observed an old white station wagon a fewmoments earlier driving towards downtown Billings. That same night Officer Wamsley and Detective Brennan

were patrolling in an unmarked car. They heard the radio report of Jack Hyde and shortly thereafter spotted a vehicle match-ing the description of the getawayvehicle. The police started to follow the stationwagon when they noticed a highway patrol car parked on the side of the road and a request was made to the highway patrolman to stop the stationwagon. As the stationwagon halted, one person jumped out of the vehicle and fled on foot. The defendant was apprehended in the car. While following the suspect vehicle, Officer Wamsley noticed the passenger in the right front seat hand an object to the person sitting in the rear seat. When one suspect fled the car on foot,Detective Brennan pursued and apprehended him and an immediate search of the suspectproduced a loaded .32 caliber revolver. Another revolver was found at the scene of the arrest of the three suspects. The three suspects were booked at the jail during the shift of jailer Dan Korber. At 6:00 a.m. jailer Korber found

a ski-typemask in the jail near the booking area. This skitype mask was received into evidence over defendant's objection. Another ski-typemask, identified by Mrs. Cipech as the type

worn by the robberswas found beneath the suspects' vehicle at the point of their arrest. Thismask was also received in evidence.During the trial of defendant, the county attorney asked defendant on cross-examination, "Haveyou ever been convicted of a felony or felonies?" Defendant answered, "Yes",and the inquirywas then stopped. During his final argument, the county attorney said, "The defendant testified that he had been convicted of a felony. Now that doesn't mean that he is to necessarily not be believed just because of that, it justmeans that that is something for you to consider in weighing the testimony and his credibility and that's what the instructions that theCourt has given toyou say." Later he commented, after a review of the facts incriminating the defendant, that "Mr. Broderick and Mr. Romero live up to that old adage, 'thickas thieves.'" Therewas no objection to either statementon the part of defendant. On the settlement of instructions defendantlscounsel objected to court's proposed instructionNo. 1,which was given

as instructionNo. 5. We will later refer to its applicability and we quote it: "Upon cross examination of the defendant the Deputy County Attorney asked the question of whether or not the defendant had been convicted of a felony or felonies. To that question the defendant answered yes. The lastportion of that question posed by the Deputy County Attorney relating tomore than one felony convictionwas an improper question and the defendant'sanswer should not be taken by you as being any inference or admission whatsoever that he has been convicted of more than one felony and you are to totally disregard any reference in the question to more than one felony conviction." Defendant contends the Statemay not show a prior felony convictionas authorized under section 93-1901-11,R.C.M. 1947, to impeach him because of the provisions of our new statute, section 95-1506,R.C.M. 1947,which allows the State to seek increased punishment by reason of a prior felony conviction, contending that section 93-1901-11has been amended so as to prohibit such a procedure. Since,thefirst issuepresented is whether or not it was reversible error to permit the State to impeachdefendant's testimony by the use of a prior felony convictionwe will set out the various statutesbefore we begin our discussion of this issue. They state: Section 93-1901-11,R.C.M. 1947: "Awitness may be impeachedby the party against whom he was called,by contradictory evidence or by evidence that his general reputation for truth, honesty, or integrity isbad, but not byevidence of particular wrongful acts, except that itmay be shownby the examination of the witness, or the record of the judqment, that he has been convicted of a felony."

(Emphasis supplied,). Section 94-4723,R.C.M. 1947: "Aperson convicted of any offense is notwithstanding a competentwitness in any cause or proceeding, civil or criminal,but the convictionmay be proved for the purpose of affecting the weight of his testimony,either by the record or by his examination as suchwitness."

(Emphasis supplied). Section 95-1506,R.C.M. 1947: "When the state seeks increased punishment of the accused as a prior convicted felon under section 94-4713, notice of that factmust be given in writing to the accused or his attorney before the entry of a plea of guilty by the accused, or before the case is called for trial upon a plea of not guilty. Such notice must conform to the followingprovisions: "(a) The notice must specify the prior convictions alleged to have been incurred by the accused. "(b) The notice and the charges of prior convicti5nscontained therein shall not be made

. . ~ublic nor in anv manner be made known to the C 4 jury before the jury'sverdict is returned upon the felony charqeprovided that if the defendant shall testify in his own behalf he shallneverthe less be subject to impeachmentasprovided in section 93-1901-11, R.C.M. 1947, as amended. "(c) If the accused is convicted upon the felony charge, the notice, together with proper proof of timely service, shallbe filed with the court before the time fixed for sentence. The court shall then fix a time for hearing with at least three (3)days' notice to the accused. "(d) The hearing shallbe held before the court alone. If the court finds any of the allegations of prior conviction true, the accused shall be sentenced under the provisions of section 94-4713." (Emphasis supplied). Section 95-2212,R.C.M. 1947: "All sentences under this chapter shallbe imposed 

# -ex

### elusivelyby the judge of the court." (Emphasissupplied). The rules regardinguse of prior felony convictions for purposes of impeachment have been established for a long period oftime. See State v. Schnepel, 23 Mont. 523, 59 P. 927. State

v. Coloff, 125Mont. 31, 231 P.2d 343, reviewed these rules extensively. In that case the Court states: "Adefendant in a criminal case, if he is sworn and testifies, is subject to the same rules of cross-examinationand impeachmentas any other witness. [Citingauthority.] "If the defendant does not take the stand, a prior convictionmay not be shown to impeach him. [Citingauthority.]

### " An examination of the statutes set out above indicates that the legislature in no way intended to alter the long-established rules concerning use of prior felony convictions for impeachment. When the State seeks increased punishment of a previously convicted felon, it must give notice to suchdefendant before he pleads guilty,or before he goes to trial if he pleads not guilty. Since the new criminalprocedure code removed all sentencing functions from the jury and placed them exclusively with the court, section 95-2212,R.C.M. 1947, there is no longer any reason for the jury to learn-ofthe prior felony convictions of a defendant for purposes of sentencing. The legislature enacted subsection (b) of section 95-1506,R.C.M. 1947, to insure that the jury is notmade aware of the notice that the State is seeking increased punishment where the defendant has

a prior felony record. However, in accordancewith section 93-1901-11 and section 94-4723,R.C.M. 1947, and long-standing case law rules connected therewith, an exception is made in the case of a criminaldefendant who chooses to take the stand in his own behalf; therefore, he is subject to the same rule as any other witness and his testimony may be impeached by the showing that he was previously convicted of a felony. Subsection (b) of section 95-1506,R.C.M. 1947, does not change any law relative to informing the jury of a defendant'sprior record for impeachment purposes. The statute merely states that any notice that the State gives of prior convictions may not be used against the defendant at trial, but this record may still be used, to impeach his testimony, in the event that he decides to testify in his own behalf. To argue that subsection (b) of section 95-1506,R.C.M. 1947,was intended to prohibit the State from advising the jury in any manner that the defendanthad been previously convicted of a felony, is to read the words of the statuteout of context. The intent of the legislature is to conform to the long-standing rules concerning impeachmentof criminal defendantsby prior felony convictions. If the legislaturehad intended to make a substantive change in the law, this Court does not believe that such a changewould have been placed in a statute dealing with the notice required when the State seeks increased punishment of a previously convicted felony. The subsection in question

was intended to change the lawwith regard to the jury's learning of a prior convictionwhen increased punishment is sought, but also to reiterate the exception that has long been established, that such recordsmay be used for impeachmentof a criminal defendant who takes the stand. This interpretation is consistent with a search for truth and also with the protection of rights of the defendant. The second issue presented to this Court iswhether or not themethod employed by the State in proving defendant's prior convictionand the comments made by the State in the closing argument were prejudicial error. In Coloff, at p. 35, this Court approved the following method in the use of a prior felony conviction for impeachment purposes:"When the credibility of a witness is attacked under these statutes it has long been the uniform trial practice inMontana to ask thewitness, on cross-examination, in substance, 'Haveyou ever been convicted of a felony?' If the answer is 'Yes,' further examination along this line is foreclosed. If the answer is a denial, the conviction can then be shown by the record of the judgment. "Thisis sound practice and should be followed. The purpose of the statutes,weakening the credibility of the witness, is satisfied and chance for error is eliminated. It is the natural,practical and best way of handling thematter." (Emphasissupplied). In this case the deputy county attorney added the words "or felonies" to the question. When the question was answered "Yes"by the defendant, the deputy county attorney showed that he was complying with the lawby immediately stopping the inquiry at that point. Since the prosecutor complied in substance and almostverbatim with the method approved by this Court,we find no prejudicial error was committed. Also, the court's instruction No. 5, in our opinion, cured any prejudice that might have existed in the minds of the jurors in regard to the addition of the words "or felonies" to the question posed by the deputy county attorney. The Statedid not commit any error when the deputy county attorney remarked that the defendant had admitted having committed a felony and the jury should consider that admission in their deliberations as affecting the credibility of defendant's testimony. To review the facts that stronglypointed to the guilt of the defendant of the robbery charged and then comment that the perpetrators, including the defendant, were "thickas thieves",isnot to comment on the past record of the defendant but merely to argue that the defendant was guilty of this robbery. To argue that the defendantwas a thief, that he committed the robbery in question,was certainly the only functionof the Statein the closing argument. No error was committed when the prosecutor made a reference to the defendant and a co-defendant as being "thick as thieves". We note that different counsel appears on appeal than at trial. Trial counseldid not object anywhere, nor, from the record,does it appear even noted the comment. This Court also notes the existence of section 95- 2425,R.C.M. 1947,which states: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.* 

## * * " In construing this statute,this Court has said in Statev. Gallagher, 151Mont. 501, 506, 445 P.2d 45: 

### " 

## * * * If therewas any error at all itwas merely technical,and there is a long standing rule in this jurisdiction--based at the time of the instant trial, on section 94-8207,R.C.M. 1947,which has sincebeen replaced by section 95-2425--that technical errors or defects will not provide a basis for reversal in a criminal prosecution." We find that any error thatmight have existed was merely technical in nature and definitely not sufficient to cause a reversal. The defendant was convicted by the evidence produced by the State. Since the defendant has failed to demonstrate to this Court any prejudice the convictionmust be affirmed. The final issue presented to this Court on appeal is whether or not the admission of the ski-type mask found in the jailwas reversible error. Long ago this Court stated in Statev. Byrne, 60Mont.

"'Weapons, tools, bullets, instruments,or

other articles which appear from other evidence to have been employed in the commissionof the crime are admissible in evidence.'" The ski-type mask objected to by the defendant in this case "appeared from other evidence to have been used in the crime." Dan Korber, the jailer, testified thathe had been through the booking area when he came on shift at 12:00 midnight and that the only person booked in between midnight and 8:00 a.m. was.?the defendant and the co-defendants in the robbery. -9-At 6:00 a.m., shortly after taking the defendant to the booking area, while returning Romero to his cell,Korber found the ski-type mask which was admitted in evidence. Sufficient evidence existed in the record to allow the district court to admit the ski-type mask into evidence. The weight to be given the exhibitwas within the province of the jury.The judgment of

We concur:

Associate Justices