No. 12297 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 73 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-VS - 

FRED LLOYD ROMERO, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Robert H. Wilson, Judge presiding. 

Counsel of Record: 

For Appellant : 

Berger, Anderson, Sinclair and Murphy, Billings, Montana 

James J. Sinclair argued, Billings, Montana 

For Respondent: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Jonathan B . Smith, Assistant Attorney General, 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 - 1973 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

On February 7, 1972, defendant, Fred Lloyd Romero, was 

charged by information with the crime of robbery. He plead 

not guilty and his trial was held on April 5, 1972, and on 

April 6, 1972, the jury returned a verdict of guilty of robbery. 

On April 14, 1972, the district court of Yellowstone County 

sentenced defendant to eighteen years in the Montana 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 she unlocked the door to her 

car a man inside pointed a gun at her; she screamed and began 

running away from the automobile. As she was fleeing, the man 

standing near the motel approached her, demanded her purse and 

grabbed it away from her as she either fell or was pushed to 

the ground. Mrs. Cipech observed two men run to and enter an 

old, white station wagon. Both of these men had covered their 

faces with ski-type "masks". 

A few minutes 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 few moments 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 getaway vehicle. The police 

started to follow the station wagon 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 station wagon. As 

the station wagon 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 suspect produced 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-type mask in the jail near the booking area. This skitype mask was received into evidence over defendant's objection. 

Another ski-type mask, identified by Mrs. Cipech as the type 

worn by the robbers was found beneath the suspects' vehicle at 

the point of their arrest. This mask was also received in 

evidence. 

During the trial of defendant, the county attorney asked 

defendant on cross-examination, "Have you ever been convicted 

of a felony or felonies?" Defendant answered, "Yes", and the 

inquiry was 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 just means that 

that is something for you to consider in weighing the testimony 

and his credibility and that's what the instructions that the 
Court has given to you 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, 'thick as thieves.'" 

There was no objection to either statement on the part of def endant. 

On the settlement of instructions defendantls counsel 

objected to court's proposed instruction No. 1, which was given 

as instruction No. 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 last portion of 

that question posed by the Deputy County Attorney 

relating to more than one felony conviction was 

an improper question and the defendant's answer 

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 State may not show a prior felony 

conviction as 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 93-1901-11 has been amended so as to 

prohibit such a procedure. 

Since,the first issue presented is whether or not it 

was reversible error to permit the State to impeach defendant's 

testimony by the use of a prior felony conviction we will set 

out the various statutes before we begin our discussion of this 

issue. They state: 

Section 93-1901-11, R.C.M. 1947: 

"A witness may be impeached by the party against 

whom he was called, by contradictory evidence 

or by evidence that his general reputation for 

truth, honesty, or integrity is bad, but not by 
evidence of particular wrongful acts, except 

that it may be shown by 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: 

"A person convicted of any offense is notwithstanding a competent witness in any cause or 

proceeding, civil or criminal, but the conviction may be proved for the purpose of affecting 

the weight of his testimony, either by the 

record or by his examination as such witness." 

(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 fact must 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 following provisions: 

"(a) The notice must specify the prior convictions alleged to have been incurred by the 

accused. 

"(b) The notice and the charges of prior 

convicti5ns contained therein shall not be made . . 

C ~ublic nor in anv manner 4 be made known to the 

jury before the jury's verdict is returned upon 

the felony charqe provided that if the defendant 

shall testify in his own behalf he shall neverthe less be subject to impeachment as provided 

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, shall be 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 shall be 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 shall be imposed - exelusively by the judge of the court." (Emphasis supplied). 

The rules regarding use of prior felony convictions for 

purposes of impeachment have been established for a long period of 
time. See State v. Schnepel, 23 Mont. 523, 59 P. 927. State 

v. Coloff, 125 Mont. 31, 231 P.2d 343, reviewed these rules 

extensively. In that case the Court states: 

"A defendant in a criminal case, if he is sworn 

and testifies, is subject to the same rules of 

cross-examination and impeachment as any other 

witness. [Citing authority.] 

"If the defendant does not take the stand, a 

prior conviction may not be shown to impeach 

him. [Citing authority.] " 

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 such defendant 

before he pleads guilty, or before he goes to trial if he pleads 

not guilty. Since the new criminal procedure 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-of the 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 not made aware of the notice that the 

State is seeking increased punishment where the defendant has 

a prior felony record. 

However, in accordance with 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 criminal defendant 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's 
prior 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 defendant had been previously convicted 

of a felony, is to read the words of the statute out of context. 

The intent of the legislature is to conform to the long-standing 

rules concerning impeachment of criminal defendants by prior 

felony convictions. If the legislature had intended to make a 

substantive change in the law, this Court does not believe that 

such a change would 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 law with regard to the jury's learning of a prior conviction when increased punishment is sought, 

but also to reiterate the exception that has long been established, 

that such records may be used for impeachment of 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 is whether or 

not the method employed by the State in proving defendant's 

prior conviction and 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 in Montana to ask the 
witness, on cross-examination, in substance, 

'Have you 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. 

"This is 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 

the matter." (Emphasis supplied). 

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 law by immediately 

stopping the inquiry at that point. Since the prosecutor 

complied in substance and almost verbatim 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 State did 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 strongly pointed to the guilt 

of the defendant of the robbery charged and then comment that 

the perpetrators, including the defendant, were "thick as 

thieves", is not 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 defendant was a thief, that he committed the 

robbery in question, was certainly the only function of the State 
in 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 counsel did 

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 State v. 

Gallagher, 151 Mont. 501, 506, 445 P.2d 45: 

" * * * If there was any error at all it was 

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 since been 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 that might 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 conviction must 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 

jail was reversible error. 

Long ago this Court stated in State v. Byrne, 60 Mont. 

"'Weapons, tools, bullets, instruments, or 

other articles which appear from other evidence 

to have been employed in the commission of 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 that he 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 exhibit was within the province of 

the jury. 

The judgment of 

We concur: 

Associate Justices