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 Judicial District, 

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 er argued, 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 ,I 1071: ", 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Defendant was convicted by jury verdict of deliberate 

homicide and robbery in the district court, Yellowstone County. 

Judge Charles Luedke sentenced him to consecutive prison terms 

of 100 years 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 at the trial, the state's case was built upon 

testimony concerning the events preceding and following the 

crimes, the physical evidence related thereto, and evidence regarding police investigation~. 

We will only set forth those facts pertinent to this 

appeal which are established by the record. 

At about 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 in an alley in Billings, Montana. There were multiple 

stab wounds in Lords' neck, chest and back; the cause of his 

death was determined to be massive blood loss from a wound in the 

neck. The weapon causing the stab wounds was medically determined 

to be a relatively heavy-duty knife of some sort. 

Lords had participated in a poker game at the Crystal 

Lounge in Billings on the preceding night, January 21-22, 1975. 

He played until approximately closing time then cashed in chips 

with a value of between two hundred and four hundred dollars. 

The defendant participated in the same poker game, cashed in no 

more than about thirty dollars worth of chips at the end of the 

game. 

During the few days prior to the poker game, the defendant had indicated to at least two witnesses that he was without 

funds and had written checks on a bank account with insufficient 

funds. He had 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 different exits at about 2:00 a.m., 

January 22. When defendant first entered the establishment on 

January 21 he was wearing a blue coat and a gun belt with a 

pistol and hunting-type knife therein. The belt, gun and knife 

were left at the bar and the pistol was given to a Crystal employee as security for a loan of money to defendant. The knife 

was returned to defendant at about 12:30 a.m.; the gun was never 

returned to him. 

Shortly after 2:30 a.m., January 22, the defendant drove 

his vehicle into a service station in Billings. He requested 

the attendant to perform certain repair work on the vehicle, for 

which defendant paid in cash, giving a twenty-dollar bill and 

having considerable other money in his possession. He also cleaned his vehicle and washed the floor mats and a pair of boots with 

water. The attendant later retrieved some articles from 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 to the charges involved in the instant case. 

The trial lasted six days and involved the testimony of 

39 state witnesses and the admission of 55 state exhibits and 

two defense exhibits. Fourteen Billings police officers testified for the state on various aspects of the investigation of 

the crimes and of defendant's shoplifting arrest. Counsel for 

the defense made no opening statement, and rested at the close 

of the state's case in chief. The defendant did not testify. 

The jury returned guilty verdicts 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 commit prejudicial error in 

admitting evidence of other acts or conduct of the defendant? 

3. Did the district court commit prejudicial 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 Fourteenth Amendment to the United States Constitution. Griffin, supra; State v. Hart, 154 Mont. 310, 316, 

462 P.2d 885. The Montana constitutional guaranty affords no 

greater protection than that of the Federal constitution. State 
v. 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 was manifestly 

intended or was of such character that the jury 

would naturally and necessarily take it to be a 

comment on the failure of the accused to testify.'" 

In Hart, we found reversible error in the prosecutor's 

comment that the defendant's attorney did not see fit to offer 

any evidence to controvert 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 (First Cir. 

1965), and Rodriguez-Sandoval v. United States, 409 F.2d 529 

(First Cir. 1969). In both cases convictions were reversed because comment was made that direct testimony of prosecution 

witnesses was not contradicted. In all three cases, the uncontradicted testimony commented upon concerned situations where 

the government witness and the defendant himself were present 

and no other witnesses to the particular occurrences were available. Thus, the inference to be drawn from such comments is that 

the defendant's failure to testify negates the presumption of 

innocence. 

In the instant case the facts are significantly different. 

In the first place the county attorney never made reference to 

defendant's failure to testify nor to defense counsel's failure 

to call defendant to the witness stand. Second, there was no 

reference to the uncontradicted nature of the testimony of any 

witness who was present with the defendant during or immediately 

after the crimes as was the case in Hart, Desmond and RodriguezSandoval. 

While it is true that the county attorney often asked 
rhetorical questions which amounted to comments that there was 

"no evidence" or "no testimony" to rebut 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 at all. Certainly the prosecution, as an adversary for the state, cannot be 

prohibited from arguing the strength of its case to the jury. 

The manifest fact that the defense presented no testimony of its 

own may be detrimental to the 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 to remain silent under 

the United States Constitution, 1972 Montana Constitution, Article 

11, Section 25; Griffin, or Hart. 

We also note here, as we did in State v. Caryl, 

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

assigned to prosecution comments made during trial, that: 

"A measure of the lack of significance of this 

alleged error is found in the failure of the 

defendant to move for a mistrial, submit an 

additional cautionary instruction, request 

the court to admonish the county attorney in 

the presence of the jury, or to take 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 as an evil man with a 

violent disposition, a split personality, and a peculiar affinity 
for weapons. In particular, defendant objects to the testimony of the following: (1) county welfare employee Jo Strobbe 

who testified that on January 21, 1975, the day before the killing, defendant was in her office seeking benefits and displayed an angry demeanor which frightened the witness and caused 

her to leave the room in tears, yet a few moments later defendant's attitude changed to one of polite calm; (2) acquaintance 

Donald Finch and wife Peggy Finch, who both testified that while 

defendant stayed at their home during January 19-21, 1975, defendant carried loaded weapons in the house in the presence of 

their children and slept with his knife and pistol in his bed. 

The state, on the other hand, argues that the above 

testimony was properly admitted to show defendant's intent and 

motive to commit 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 his pistol 

which he later on January 21 "hocked" for money to play poker. 

Defendant relies primarily upon State v. Sanders, 158 

Mont. 113, 489 P.2d 371, for the proposition that admitted evidence must be relevant as tending to prove or disprove facts in 

issue in the 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 to establish the fact that defendant, just 

prior to the crimes, was desperate for money. Such circumstantial evidence may provide an inference for the motive of the 

crimes. See State v. Murdock, 160 Mont. 95, 104, 500 P.2d 387; 

State v. Fine, 90 Mont. 311, 2 P.2d 1016. As we stated in Murdock: 

" * * * Although motive is not an element of 
the crime, motive or lack of motive is a circumstance tending to establish guilt or innocence * * *.I1 

Furthermore, the record does not indicate that any 

testimony regarding defendant's character which was admitted 

as part of the motive evidence was prejudicial to defendant. 

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 rule and its 

exceptions is contained in State v. Jensen, 153 Mont. 233, 239, 

455 P.2d 631. There we held that the test of the exception to 

the rule of exclusion has three elements: "similarity of crimes 

or acts, nearness in time, 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, 1975 bear little relation to the 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 that defendant destroyed the blue 

coat which he was seen wearing on the evening of January 21-22 

because it was bloody, and was trying to replace it on the afternoon of January 22. The fact that the blue coat was allegedly 

shoplifted was ancillary and subordinate to the fact that defendant was apparently replacing his other blue coat. 

The admission of the coat and the testimony surrounding 

it was proper under these circumstances. As we said in State 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 the jury must have so understood the 
testimony." 

And we stated in State v. Cesar, 72 Mont. 252, 255, 232 P. 1109: 

"It is 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. 

(State v. Hopkins, 68 Mont. 504, 219 P. 1106.) The 

test is, not whether the offered evidence tends to 

prove an independent offense, but whether it is 

relevant as tending to prove any fact material to 

the issue in the case before the court.* * *" 

See also: State v. Hughes, 76 Mont. 421, 246 P. 959; State v. 

Quigg, 155 Mont. 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 in the words of the robbery statute, 

section 94-5-401(1)(a), R.C.M. 1947, without defining "theft" as 

used in that section, in the 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 the defendant for a more specific 

instruction, or, indeed, for any "theft" instruction. 

"Failure to instruct in certain particulars 

cannot be assigned as error, where the court 

has properly covered issues, since, in the 

absence of request for instructions, there 

is no ruling to review. * * * 

"It was incumbent upon defendant to offer and 

request more specific instructions had such been 

desired. His failure to do so cannot furnish him 

grounds for reversible error." State v. Watson, 

144 Mont. 576, 582, 584, 398 P.2d 949; see also: 

State v. Peters, 146 Mont. 188, 405 P.2d 642. 

Finally, defendant seeks reversal on the ground that he 

was denied due process of law by allowing the testimony of 14 

police officers on behalf of the state. The gist of his argument 

is that the "excessive number" of police officers appearing on 
the witness stand denied him a fair trial because the high respect which the uniform and the badge commands among conscientious 

citizens greatly outweighs the necessity of the testimony. Defendant simply fails to substantiate this claim by bringing to 

our attention any facts which would show prejudice--and in our 

review of the record we find no such prejudice. In any event, 

defense counsel never requested a limit in the number of police 

witnesses at any stage of the proceedings, nor objected to their 

testimony on such grounds; the question cannot be raised for the 

first time on appeal. State v. Peters, supra. 

Two other specifications of error contained in defendant's original brief are so patently unmeritorious that they 

require no discussion herein. 

Finding no error, the judgment of conviction is affirmed. 

/ chief ~~~tic% , 

Justice