### No. 

### 13063 

### IN THE SUPREME 

### COURT OF 

### THE 

### STATE OF MONTANA 

### 1976

THE 

### STATE OF MONTAlUA, 

### Plaintiff and Respondent,

MKOLD

### AKMSTRONG

## , Defendant and Appellant.

Appeal. from: 9istrict Court of the Thirteenth JudicialDistrict, Honorable Charles Luedke, Judge presiding. Courlsel of 

### Record : 

### For Appellant: 

### John 

### R. Prater argued, Terry, Montana Donald W. Molloy argued, Law Student, Missoula,

Montana Kubert C. 

### P erargued, Law Student, Mtssoula, Montana 

# rF Daniel 

### A. Piedalue argued, Law Student, Missoula,

Montana

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

Montana k!illiam J. Anderson argued, Assistant Attorney General,

Yelena

## ,Montana Harold Hanser argued, County Attorney, Billings,

Xontana

Submitted: June 

### 4, 1976 Decided

## :ml -- 

## 2,I1071: ",Mr. Justice Frank I. Haswell delivered the Opinion of the Court.

Defendant was convicted by jury verdict of deliberate homicide and robbery in thedistrictcourt, Yellowstone County. Judge Charles Luedke sentenced him toconsecutive prison 

### terms of 100years for deliberate homicide and 40 years for robbery. Defendant appeals from the judgment of conviction. Because no eye-witness accounts of the crimes charged

were presented atthe trial, the state's 

### case was built upon testimony concerning the eventspreceding and following the crimes, the physical evidence related thereto, and evidence 

### regarding police investigation~. We 

### willonly 

### set forth those factspertinent tothis appeal which are established by the record. Atabout 8:00 a.m. on January 22, 1975, the body of the victim of the crimes involved, Lynn Lords, was found in a boiler

room located inan alley inBillings, Montana. There were multiple stabwounds inLords' neck, chest and back; the cause of his death was determined tobe massive blood loss from a wound in the neck. The weapon causing the stabwounds was medically determined to be a relatively heavy-duty knife of some sort. Lords had participated in a poker game 

### atthe Crystal Lounge inBillings on the preceding night, January 21-22, 1975. Heplayed until approximately closing 

### timethen cashed inchips with a value of between two hundred and four hundred dollars. The defendant participated inthe 

### samepoker game, cashed inno

more than about thirty dollars worth of chips atthe end of the game. During the few days prior tothe poker game, the defendant had indicated toatleast two witnesses that he was without funds and had written checks on a bank account with insufficient funds. Hehad recently been laid off from his job.The defendant and Lords separately entered the Crystal Lounge early on the evening of January 21, 1975; they apparently left separately and by differentexits atabout 2:00 a.m., January 22. When defendant firstentered the establishment on January 21he was wearing 

### a blue coat and a gun belt with a pistol and hunting-type knife therein. The belt, gun and knife

were leftatthe bar and the pistol was given toa Crystal employee 

### as security for a loan of money todefendant. The knife

was returned todefendant atabout 12:30 a.m.; the gun was never returned tohim. Shortly after 2:30 a.m., January 22, the defendant drove his vehicle into a service station inBillings. Herequested the attendant toperform certain repair work on the vehicle, for which defendant paid incash, giving a twenty-dollar bill and having considerable other money in his possession. He alsocleaned his vehicle and washed the floor mats and a pair of boots with water. The attendant 

### later retrieved some articlesfrom 

### a wastebasket which defendant had apparently thrown away. On the afternoon of January 22, 1975, defendant 

### was arrested for shoplifting a blue coat from a hardware store in Billings. When he entered the store he 

### was not wearing a coat. The investigation relating to the shoplifting arrest eventually led tothe charges involved inthe instant case. The 

### trial lasted sixdays and involved the testimony of 39 statewitnesses and the admission of 55 stateexhibits and two defense exhibits. Fourteen Billings police officers 

### testified for the stateon various aspects of the investigation of the crimes and of defendant's shoplifting arrest. Counsel for the defense made no opening statement, and rested atthe close 

### of the state's case inchief. The defendant did not testify. The jury returned guiltyverdicts on both crimes charged.

### After sentencing,defendant made motion for a new trial, which

was denied. The issues on appeal are as follows: 1. Were the prosecutor's comments to the jury on closing argument tantamount to comments on the failure of defendant to testify and therefore in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article 11, Section 25, 1972 Montana Constitution? 2. 

### Did the district court commitprejudicial error in admitting evidence of other acts or conduct of the defendant? 3. Did the district court commitprejudicial error 

### in admitting into evidence a coat and testimony pertaining to the alleged theft of the coat? 4. Did the district court err in its failure to instruct the jury on the elements of theft in the course of its instructions on the elements of robbery? 5. Was the testimony of 14 police officers so unnecessary and unduly prejudicial as to deny the defendant a fair trial? The first issue concerns certain remarks made by the county attorney during his closing argument to the jury. It is beyond question that the prosecution is strictly prohibited from commenting on a defendant's failure to testify, for such comment may negate the presumption of a defendant's innocence in violation of his right to remain silent under the Fifth Amendment of the United States Constitution. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L ed 2d 106. This federal constitutional right inures to the benefit of defendants in state courts by reason of the FourteenthAmendment to the United States Constitution. Griffin, supra; Statev. Hart, 154 Mont. 310, 316, 462 P.2d 885. The Montana constitutional guaranty affords no greater protection than that of the Federal constitution. Statev. Anderson, 156 Mont. 122, 125, 476 P.2d 780. In Anderson this Court said that the 

### test of the propriety of a prosecutor's comments is: 

## "'

## * 

## * * whether the language used 

### wasmanifestly intended orwas of such character that the jury would naturally and necessarily take it tobe a comment on the failureof the accused totestify.'" InHart, 

### we found reversible error inthe prosecutor's comment that the defendant's attorney did not see fittooffer any evidence tocontrovert the story of a policeman who 

### testified to searching the defendant and finding incriminating evidence. The foundation of that decision was that any controverting evidence 

### " 

## * * * could only come from the defendant himself 

## * * *.I1 In so holding, the Court relied upon two federal 

### cases: Desmond v. United States, 345 F.2d 225, 14 ALR3d 718 (FirstCir. 1965), and Rodriguez-Sandoval v. United States, 409 F.2d 529 (FirstCir. 1969). In both 

### cases convictions 

### werereversed because comment was made that direct testimony of prosecution witnesses was not contradicted. In allthree cases, the uncontradicted testimony commented upon concerned situations where the government witness and the defendant himself 

### werepresent and no other witnesses tothe particular occurrences 

### were available. Thus, the inference tobe drawn from such comments is that the defendant's failuretotestify negates the presumption of innocence. Inthe instant 

### case the facts are significantly different. In the firstplace the county attorney never made reference to defendant's failure totestify nor todefense counsel's failure tocalldefendant tothe witness stand. Second, therewas no reference totheuncontradicted nature of the testimony of any witness who was present with thedefendant during or immediately after the crimes as

### was the

### case in

### Hart, Desmond and RodriguezSandoval. While it 

### is true that the county attorney often askedrhetorical questions which amounted tocomments that therewas "no evidence" or "no testimony" torebut the inferences raised by the state's evidence, nowhere does it appear that these comments would necessarily imply that defendant was the only

source which could negate state's evidence. The most that can be said of the county attorney's comments is that they referred to the fact that the defense presented no case atall. Certainlythe prosecution, 

### as an adversary for the state, cannot be prohibited from arguing the strengthof 

### its case tothe jury. The manifest fact that the defense presented no testimony of 

### its

own may be detrimental tothe defendant, but such fact cannot deny the prosecution its right to stress the strength of 

### its own evidence. Compare: United States ex rel. Leak v. Follette, 418 F.2d 1266 ( 2d-.Cir. 1969), cert. den. 397 U.S. 1050, 90 S.Ct. 1388, 25 L ed 2d 665. Thus, we hold that the county attorney's comments regarding the absence of controverting evidence in this case did not constitute a violation of defendant's right toremain silentunder the United States Constitution, 1972 Montana Constitution, Article 11, Section 25; Griffin, or Hart. We alsonote here, aswe did in Statev. Caryl, Mont. 

## , 543 P.2d 389, 32 St.Rep. 1207, 1221, where error 

### was assigned toprosecution comments made during trial, that: "A measure of the lack of significance of this alleged error 

### is found in the failureof the defendant tomove for a mistrial, submit an additional cautionary instruction, request the court toadmonish the county attorney in the presence of the jury, or totake any further corrective action." In the second assignment of error, defendant contends that evidence was improperly admitted which served the sole purpose of characterizing the defendant asan evilman with 

### a violent disposition, 

### a splitpersonality, and a peculiar affinityfor weapons. Inparticular, defendant objects tothe 

### testimony of the following: 

### (1)county welfare employee Jo Strobbe who testified that on January 21, 1975, the day before the killing, defendant 

### was inher office seeking benefits and displayed an angry demeanor which frightened thewitness and caused her toleave the room in

### tears, yet a few moments later defendant's attitudechanged toone of polite calm; (2) acquaintance Donald Finch and wife Peggy Finch, who both testified thatwhile defendant stayed attheir home during January 19-21, 1975, defendant carried loaded weapons in the house inthe presence of their children and sleptwith his knife and pistol inhis bed. The state, on the other hand, argues that the above testimony 

### was properly admitted to show defendant's intent and motive tocommit the 

### crimes charged; that 

### is, the testimony of Strobbe showed his destitute financial condition and the 

### testimony of the Finches showed the high regard he had for hispistol which he later on January 21 "hocked" formoney toplay poker. Defendant 

### relies primarily upon Statev. Sanders, 158 Mont. 113, 489 P.2d 371, for theproposition that admitted evidence must be relevant 

### as tending toprove or disprove facts in issue inthe case, and that evidence of past acts or conduct tending to show only bad character are collateral, irrelevant and prejudicial. Sanders 

### is distinguishable. Here, unlike Sanders, the testimony was admitted on the basis of relevancy. The testimony taken as a whole tends toestablish the fact that defendant, just prior tothe 

### crimes, 

### was desperate formoney. Such circumstantialevidence may provide an inference for themotive of the crimes. See Statev. Murdock, 160Mont. 95, 104, 500 P.2d 387; Statev. Fine, 90 Mont. 311, 2 P.2d 1016. Aswe stated inMurdock: 

### " 

## * * * Although motive 

### is not an element ofthe crime, motive or lack of motive is a circumstance tending toestablish guiltor innocence 

## * * *.I1 Furthermore, the record does not indicate that any testimony regarding defendant's character which was admitted

aspart of themotive evidence was prejudicial todefendant. The third assignment of error 

### is that evidence of other crimes committed by an accused is inadmissible to show commission of the crime charged. A discussion of the general ruleand 

### its exceptions 

### is contained in Statev. Jensen, 153Mont. 233, 239, 455 P.2d 631. There 

### we held that the testof the exception to the rule of exclusion has three elements: "similarity of crimes or acts, nearness intime, and tendency to establish a common scheme, plan or system." Defendant contends that testimony and exhibits concerning his arrest for shoplifting a blue coat on January 22, 1975bear 

### littlerelation tothe Jensen 

### test of admissibility. This argument misses the point. The testimony regarding the shoplifting offense

### was admitted for the legitimate purpose of showing the destruction of evidence by the defendant. That is, the prosecution implied thatdefendant destroyed the blue coat which he was seen wearing on the evening of January 21-22 because 

### it 

### was bloody, and 

### was trying toreplace it on the afternoon of January 22. The fact that the blue coat 

### was allegedly shoplifted was ancillary and subordinate tothe fact thatdefendantwas apparently replacing his other blue coat. The admission of the coat and the testimony surrounding it was proper under these circumstances. Aswe said inState

### v. Francis, 58 Mont. 659, 671, 194 P. 304: 

### " 

## * * * This testimony tended to show a destruction or suppression of evidence by the defendant, and was clearly admissible as

### a circumstance tending toward defendant's guilt. From the 

### record it 

### is clear that 

### it was introduced for no other purpose and thejury must have sounderstood thetestimony." And 

### we stated in Statev. Cesar, 72 Mont. 252, 255, 232 P. 1109: "Itis the general rule that, upon the 

### trial of one accused of a specific offense, evidence of distinct and independent crimes 

### is not admissible, and the reason for the rule 

### is so apparent that 

### it does not call for any discussion. But the rule 

### is equally

### well settled that, if evidence tends to prove the commission of the offense charged, 

### it 

### is not rendered inadmissible because 

### it tends also to prove that the accused committed another 

### crime. (Statev. Hopkins, 68 Mont. 504, 219 P. 1106.) The 

### test is, not whether theoffered evidence tends to prove an independent offense, but whether 

### it 

### is relevant astending toprove any factmaterial to the issue inthe case before the court.* 

## * 

# *" See also: Statev. Hughes, 76 Mont. 

### 421, 246 P. 959; Statev. Quigg, 155Mont. 119, 467 P.2d 692. The fourth assignment of error is that the district court committed reversible error in instructing the jury on the elements of robbery substantially inthewords of the robbery statute, section 94-5-401(1)(a), R.C.M. 1947, without defining "theft" as used inthat section, inthe words of the theft statute section 94-6-302(1), R.C.M. 1947. This contention 

### is without 

### merit. The record reveals no request by thedefendant for a more specific instruction, or, indeed, for any "theft" instruction. "Failure toinstruct incertain particulars cannot be assigned 

### as error, where the court has properly covered issues, since, inthe absence of request for instructions, there 

### is no ruling toreview. 

## * * *

"Itwas incumbent upon defendant tooffer and request more specific instructions had such been desired. Hisfailuretodo so cannot furnish him grounds for reversible error." Statev. Watson, 144Mont. 576, 582, 584, 398 P.2d 949; see also: Statev. Peters, 146 Mont. 188, 405 P.2d 642. Finally, defendant seeks reversal on the ground thathe

was denied due process of 

### lawby allowing the testimony of 14 police officerson behalf of the state. The gistof his argument 

### is that the "excessive number" of police officers appearing on

### the witness stand denied him a fair trialbecause the high respectwhich theuniform and thebadge commands among conscientious citizens greatlyoutweighs the necessity of the testimony. De

### fendant simply failsto substantiate this

### claimby bringing to

our attention any factswhich would show prejudice--and inour review of the record we find no suchprejudice. In any event, defense counsel never requested a 

### limitin the number of police witnesses at

### any stageof the proceedings, nor objected totheir testimony on such grounds; the question cannot be raised for the firsttime on appeal. Statev. Peters, 

### supra. Two other specifications of error contained indefendant's original brief are sopatently unmeritorious that they require no discussion herein. Finding no error, thejudgment of conviction is affirmed.



## / chief ~~~tic% , 

### Justice