NO. 84-351 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

PATRICK JAMES CAMPBELL, 

Defendant and Appellant 

Appeal from: District Court of the Eleventh Judicial District 

In and for the County of Flathead 

The Honorable Michael Keedy, Judge presiding. 

Counsel of Record: 

For Appellant: 

Patrick James Campbell, Pro Se, Deer Lodge, Montana 

For Respondent: 

Honorable Mike Greely, Attorney General, Helena, 

Montana 

Ted Lympus, County Attorney, Kalispell, Montana 

Filed: 

Submitted on briefs: October 3, 1985 

Decided: December 31, 1985 

DEG 3 1 1985 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Appellant, Patrick James Campbell, appeals his convictions in the Eleventh Judicial District on charges of aggravated assault and theft. Appellant also chzllenges his 

designation by the District Court as a dangerous offender and 

persistent felony of fender. Finally, appel-lant challenges 

the contempt order that was also issued by the District 

Court. On this appeal, as at trial, defendant is representing himself. 

Appellant purports to raise eighteen issues for our 

consideration. In his 108-page brief, appellant gives an 

extremely detailed, though jaded, account of the occurrences 

during investigation, pretrial and trial. The brief then 

fo13.ows a "shotgun" approach in its utilization of legal 

arguments--that is, many arguments are thrown out with a 

chance that the arguments might fit the factual situation of 

the case. In all of his arguments, appellant misses his mark 

by either misconstruing the law or not having the facts to 

fit the law. Although many of the problems with appellant's 

brief may he partially due to the fact of his pro se representation, a party that relies on his own legal expertise 

must also accept his own legal weaknesses. See State v. 

Pnncelet (1980), 187 Mont. 528, 610 P.2d 698. We affirm the 

District Court on all issues. 

At this time, in view of the length of time that was 

required to fully read and consider appellant's arguments and 

in consideration of the crowding of this Court's docket, we 

feel compelled to comment that the "shotgun a-pproach" to 

legal argument is not favored by this Court. Contrived 

claims confuse the real issues and waste everybody's time, 
effort and money. That said, we now issue the £012-owing 

opinion with due regard and proper respect for the legal 

rights and claims of appellant. 

Appellant labels his reasons for our granting of relief 

as follows: (1) impermissibl-e identification evidence; 

(2) denial of lineup; (3) illegally obtained physical evidence; (4) denial of reliable psychiatric evaluation; 

(5) denial of change of venue hearing; (6) exclusion of 

identif iahle racial (ethnic) group from jury; (7) cumulative 

error; (8) failure to fairly and properly instruct jury; 

(9) insufficient evidence; (10) imprudent denial of motions 

to dismiss; (11) unconstitutional statutory charges; 

(12) judicial or prosecutorial overreaching; (13) unlawful 

predicate for contempt conviction without jury trial; 

(14) disregard of evidence mitigating punishment; 

(15) dispensing with constitutional sentencing principles; 

(16) invalid prior conviction underlying enhanced punishments; (17) collateral. estoppel and due process bars to 

sentencing; and (18) impermissible prosecutorial. vindictiveness. We will utilize this same identification of issues as 

the basis for organizing this opinion. 

On July 12, 1983, Betty Huckins drove her car to 

Rosauer's grocery store in Kalispell, Montana. She parked 

the car in the parking lot of the store and went inside to 

shop. Shortly after entering the store, Huckins noticed a 

stranger attempt to drive her car away. Huckins ran outside 

and yelled at the man to stop; when he did not, she called 

the police. During the phone call, Huckins saw her car pull 

up to one of the entrances to the store and stop. She ran to 

her car and attempted to get in, but the vehicle moved away 

before she could enter. During this attempt to recover her 
vehicle, she was able to observe the driver from a distance 

of four to six feet. 

Officer Dan Bourne of the Ka,-ispell City Police Department was patrolling the area and. noticed the commotion in the 

parking lot. Upon arriving at the scene, Officer Bourne saw 

Huckins' car leaving the store's parking lot at a high rate 

of speed. He pursued the car which then struck a parked car 

and lodged against another car to which it became attached. 

Officer Bourne stopped his car and ordered the driver to get 

out of the Huckins car, but the driver instead tried to free 

the Iquckins car by shifting gears and reving the engine. 

Officer Bourne then attempted to wrestle the driver from the 

car. During the struggl-e, Officer Bourne was able to observe 

the driver from a distance of one to two feet. In the meantime, the driver was able to free the Huckins car and started 

down the street again, dragging Officer Bourne with it. 

Officer Bourne released the driver and fell to the pavement. 

The fall injured Officer Bourne, but he made it back to his 

car and resumed pursuit. The driver of the Huckins car 

turned around and returned southbound in the northbound lane 

of traffic directly at Officer Bourne. Officer Bourne veered 

sharply to the right to avoid a head-on collision. The 

police officer turned around to continue the chase, but by 

that time he had lost sight of the Huckins car. 

In the meantime, Debbie McCartney was listening to a 

police scanner at her home and heard broadcasts about a car 

stolen at Rosauer's by a man with a backpack. McCartney had 

been to Fosauer's that evening, when she had been confronted 

by a desperate-acting man with an orange backpack asking her 

directions to Cherry Lane or a similarly-named street. She 
phoned the Kalispell PoLice Department with her information 

about the man with the backpack. 

A couple of hours prior to the car theft, Deputy 

Updegraff of the Flathead County Sheriff's Office had been 

summoned to the Somers area in response to a disturbance. 

During his investigation of the disturbance, Deputy Updegraff 

encountered a hitchhiker on the highway who possessed an 

orange backpack and identified himself as Patrick Campbell. 

The name and a physical description of the hitchhiker was 

radioed into the sheriff's dispatcher. The hitchhiker then 

asked Deputy Updegraff for a ride to Cherry Lynn Road in the 

Kalispell area but the deputy was headed the other direction 

and refused. 

Later than evening, Deputy Updegraff heard the description of the suspect in the car theft broadcast. The deputy 

recalled his encounter with the hitchhiker and relayed the 

information from the encounter to the officers searching for 

the stolen vehicle. The physical descriptions, possession of 

a backpack, and inquiries by the suspect into the location of 

Cherry Lynn Road served to link the hitchhiker that had 

identified himself as Patrick Campbell with the theft of the 

Huckins car. 

The next day Lake County Undersheriff Joe Geldrich in 

Polson was aware that Patrick Campbell was a suspect in the 

Kalispell stolen car case and that a warrant had been or was 

about to be issued for his arrest. Geldrich knew Campbel.1 

was staying in Polson and t.herefore searched around for the 

stolen car. He found the car in a Safeway parking lot about 

five blocks from Campbell's brother's house where Campbell 

was staying. Geldrich then went to the brother's house where 

he arrested Campbell. 
A few hours after the arrest, Campbell was transported 

to Kalispell where Officer Bourne identified him as the car 

thief and Deputy Updegraff identified him as the hitchhiker. 

Both identifications were the products of one-to-one confrontations between the witnesses and suspect. Mugshots were 

then taken of Campbell. 

The mugshots were used several months later in photo 

displays to Huckins and McCartney. Huckins chose Campbell's 

photo as the likeness of the man that stole her car and 

McCartney chose Campbell's photo as the likeness of the man 

that had asked her directions to Cherry Lane. 

Finally, at trial, all four of the above witnesses 

identified Campbell in person. The identifications were 

subject to Campbell's cross-examination which did reveal some 

discrepancies and weaknesses in the identification evidence. 

The jury, however, evidently did not view these discrepancies 

as significant because it returned guilty verdicts on both 

the theft and assault charges. 

We will now examine the errors that Campbell alleges 

occurred at his trial. 

1. Impermissible Identification Evidence 

Appellant attempts to develop the idea that all of the 

courtroom identifications by the witnesses are suppressible. 

He contends the identifications are suppressible because: 

(1) they are ultimately rooted. in an illegal. arrest; (2) the 

Kalispell police failed to conduct a lineup; a.nd (3) the 

pretrial one-to-one confrontat-ions, mugshot displays and 

television appearances were impermissibly suggestive. We can 

find no reversible error in the identification procedures. 
Appellant makes extensive argument that identification 

evidence taken via illegal arrest is suppressible. To dispose of this argument, we need go no further than point out 

that there was nothing illegal about the arrest of appellant. 

Appellant claims the arrest was warrantless and that there 

was insufficient probable cause to support a warrantless 

arrest. However, the record shows that the Kalispell police 

did have a warrant for the arrest of appellant at the time of 

arrest. It was not necessary that Undersheriff Geldrich have 

that warrant in his possession. Section 46-6-203, MCA. 

Appellant then argues that the identifications should 

be suppressed because he was denied a constitutional right to 

a lineup. Appellant offers no precedent for asserting such a 

right. We will follow the federal courts of appeal in holding that there is no constitutional right to appear in a 

lineup. See, United States v. Osterag (8th Cir. 1980), 619 

F.2d 767, and United States v. Robertson (9th Cir. 1979), 606 

F.2d 853. Moreover, appellant was given a mugshot lineup. 

Finally, on the matter of suppression of the identification evidence, appellant asserts that the one-to-one showup 

identifications by the deputy and police officer, the mugshot 

display identifications by Huckins and McCartney, and the 

television appearance by appell.ant leading to the in-court 

identification by Reni Mengwasser were impermissibly suggestive. We agree that in criminal proceedings, "due process 

protects the accused against the introduction of evidence of, 

or tainted by, unreliable pretrial identifications obtained 

through unnecessarily suggestive procedures." State v. Lara 

(1978), 179 Mont. 201, 204, 587 P.2d 930; Neil v. Biggers 

(1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401. In State 

v. Lara, 587 P.2d at 932, we stated our two-prong test for 
determining whether or not identification evidence should be 

suppressed: 

First, was the identification procedure 

impermissibly suggestive; and second, if 

so, did it under the totality of the 

circumstances have such a tendency to 

give rise to a substantial likelihood of 

irreparable identification . . . 

In applying the first-prong of this test to the identifications by Bourne and Updegraff, we recognize that one-toone showup identifications are suggestive by their nature. 

See, State v. Higley (Mont. 1980), 621 P.2d 1043, 37 St.Rep. 

1-942. However, in this case, the suggestiveness was not 

impermissive. As such, the identifications fail the first 

prong of the test for suppression and were admissible. 

Before proceeding to the identifications by the other witnesses we will enumerate the reasons for this conclusion. 

First of all, we do not believe the identifications 

here were overly suggestive. Officer Bourne and Deputy 

Updegraff were trained law enforcement professionals that 

routinely encountered suspects in crimina.1 investigations on 

a one-to-one basis. As such, they were not as vulnerable to 

the suggestive nature of the procedure as the general public 

would be. The suggestiveness was also countered by the fact 

that they had viewed the suspect close up on the day before 

the identification. Neither officer was told that the suspect had. been identified by anyone else. Under these circumstances, we cannot see where these witnesses were influenced 

by the suggestiveness of the one-to-one showup. 

Moreover, there is another factor here which insured 

that the due process rights of appellant were protected from 

the suggestiveness of the identifications--that is, the 

identification testimony of both Bourne and Updegraff was 
subject to cross-examina.tion and the weaknesses in the evidence were exposed. The jury was free to award the identification testimony whatever value they thought it worth. 

In holding that the one-to-one showup identifications 

of law enforcement officers were not impermissively suggestive, we make the following cautionary note. The evidentiary 

value of an identification taken from a proper lineup will 

always be greater than if it was taken from a one-to-one 

showup. Law enforcement agencies would be ill advised to 

rely solely on one-to-one showups in identifying suspects 

with a crime. 

We now apply the two-prong test to the mugshot display 

identifications by Huckins and McCartney. Appellant claims 

that because his mugshot was left-profiled rather than 

right-profiled like the other mugshots in the display, the 

attention of the viewers was drawn to it. Appellant also 

claims that the other pictures in the display were unlike his 

so as to render the display impermissively suggestive. The 

District Court, after review of the photographs, found these 

claims unfounded. We agree. The mugshot display was not 

impermissively suggestive so as to render the identification 

by Huckins and McCartney inadmissible. 

Finally, we reach the identification by Reni 

Mengwasser. The girl's identification was reported to the 

police only after she had viewed the suspect on television 

and her mother told her that he was the one on trial-. This 

identification did not occur until six months after the 

incident. She testified that she had only seen the suspect 

incidentally for several seconds at a distance of fifty 

yards. We believe that this identification procedure was 

impermissively suggestive under the first prong of our test. 
We also believe that the totality of the circumstances were 

conducive to misidentification under the factors considered 

in judging reliability that we adopted in State v. Higley, 

621 P.2d at 1049. Those factors include the opportunity of 

the witness to view the criminal at the time of the crime, 

the witness's degree of attention and length of time between 

the crime and the confrontation. This witness fails all of 

these factors. As such, the testimony by Reni Elengwasser had 

a substantial likelihood of misidentification under the 

second prong of our test and should have been suppressed. 

The error, however, is harmless as the remaining evidence was 

sufficient to convict Campbell. 

2. Denial of Lineup 

We have already disposed of this argument under the 

first issue. There is no constit.utiona1 right to a lineup. 

3. 11-legally Obtained Physical Evidence 

Appell-ant's ba.ckpack was admitted as an exhibit at 

trial. We need not consider appell.antls arguments that the 

backpack was obtained illegally because having the backpack 

as an exhibit was not crucial to the case against him. 

4. Denial of Reliable Psychiatric Evaluation 

Appellant was given one psychiatric evaluation under 

§ 46-14-202, MCA. The statute does not provide for a second 

evaluation. The District Court did not err in denying his 

motion for a second evaluation, merely because appellant 

thought the findings of the first evaluation were unfair. 
5. Denial of Change of Venue 

The District Court did not deny appellant's motion for 

a change of venue. Instead, the record is clear that appellant withdrew his motion for change of venue. The issue is 

therefore meritless. 

6. Exclusion of Identifiable Racial Ethnic Group from Jury 

Appellant claims to be 5/32 Flathead Indian and then 

objects to the exclusion of native Americans from the jury 

list. We find this issue without merit for three reasons. 

First, there is no evidence that people of native American 

descent were not on the jury. Second, there is no evidence 

that the jury list was made by persons that knew appellant 

was part Indian. Finally, there is no evidence that there 

was a systematic effort to exclude people of native American 

descent from the jury list. 

7. Cumulative Error 

Appellant alleges that there were fourteen evidentiary 

errors committed by the District Court a.nd six improper 

prosecutorial remarks to the jury that in combination suggest 

that the outcome may have been different if not for the 

errors and remarks. We have reviewed the transcript for all 

of the alleged errors. We see little that could be considered error and nothing prejudicial. about the rulings of the 

District Court, individually or cumulatively. 

We have also examined the alleged improper prosecutorial remarks. We see nothing in the record of statements by 

the prosecution but fair comment. The cumulative error claim 

is th.us without merit. 
8. Failure to Fairly and Properly Instruct Jury 

We find no error amcng appel-lant's numerous all-egations 

cf improper instructions give^ to and instructions improperly 

withheld from the jury. The instructic~s ~;j-ven were appro-- 

priate a~6 according to establishes law. Appellant's prcposed instructions that were not given were either repetit-ive 

of instructions given or not ifi accordance to established law 

or the evidence in this case. 

3. Tnsuf ficient Evidence 

There is substantial evidence in the record to support 

the verdict of the jury. 

10. Lmpru2enl: Denial of Motions to Dismiss 

Appellant's motions to dismiss were on the basis of a 

failure by prosecution to make out a prima facie czce. In 

view of our holding on the sufficiency of the evidence to 

suppcrt a conviction, this issue is without merit. 

11. Unconstitutional Statutory Charges 

Appellant challenges the terms vreascnable apprehension" in the aggravated assault statute, S 45-5-202, YCA, and 

"deprive" in the theft statute, § 45-6-301, KCP, as unconstitutjonally vague. 

The "reasonable apprehensicn" terms in the statute have 

beer1 construed by the Court before. See, State v. Ceorge 

(Font. 1983), 660 P.2d 97, 40 St.Rep. 339; State v. LaMere 

(PSont. 1980), 621 P.2d 462, 37 St.Rep. 1936. 

Section 45-2-101(19), MCA, defines "deprive." 

Therefore, these terms do not render the statutes 

unc~nstitutionaliy vague. 
12. Judicial or Prosecutorial Overreaching 

The record is clear that both the Districts Court and 

prosecutor bent cver backwards to accomrr~odate the needs and 

whims of the appellant. Appellant's numerous allegations of 

prejudicial conduct tcwar6s him end false and perjured testimony against hirc are a.11 without merit. 

13. Unl-awful Predicate for Contempt Without Jury Trial 

Contempt may be punished surrnarily. Section 3-1-511, 

14Ck. Contempt orders are not appealable. Section 3-1-523, 

KCA. We need not consider th~ issue further. 

14. Disreg&rd of Evidence Mitigating Punishment 

Appellant has presented no evidence that would fit him 

irL the categories of exceptions to mandatory minimum sentences specified in § 46-18-222, MCA. Indeed, the evidence 

indicates he 6oes not fit the categories. We can find no 

error. 

15. Dj spensing with Constitutional Sentencing Principles 

The District Court's sentencing order and presentence 

investigation xeflect the judge's conscientious consideration 

of appellant's history and the facts of this case. The 

sentence is within statutory limits and the judge'? sound 

discretion. The judge's sentence was correctly imposed. 

16. Irlvalid Prior Conviction Underlying Enhanced Punishment 

Appellant claims that his prior felony conviction was 

invali5 because the cffense was committed on the Flathead 

Reservation, but he was convicted in the District Court of 

the Fourth Jud-icial District which lacked jurisdiction. This 
is not the forur for Zeterrnining whether the court that 

issued his prior conviction ha6 jurisdiction. 

Appellant has a prior felony conviction for the offense 

of armed robbery for which he was sentenced and incarcerated 

in the Montana State Prison until his release on July 10, 

1981. As such, appellant is a "persistent felony offender" 

within the meaning of S 46-18-501, MCA. 

17. Collateral Estoppel. 3.1111 Cue Process Rars to Sentencing 

Appellant argues that collateral estoppel and due 

process bars his status as both a persistent felony offender 

under 6 46-18-501, MCA, and dangerous crffencler under 

S 46-18-404, YCA, because the designations serve to sentence 

him twice for the same offense. There is no merit to the 

argument. 

The dangerous of fender status controls parole el-igibility an6 is inapplicable to sentencing. Appellant has not 

been sentenced twice for the same crime. 

18. Impermissible Prosecutorial Vindictiveness 

Appellant alleges that the prosecution sought increased 

seritencir-g under the persistent felony offender status in a 

1-ir.dictive response to appellant's refusal to plea bargain. 

The argument is strainei? and without merit. Appellant chose 

to plead "not guilty1' and to represent himself despite numerous warnings from the prosecution and the judge. Prosecution 

then sought no greater sentence than is dictated by the 

statutes. A guilty verdict was returned. Appellant must 

accept the consequences of that vercict. 

Faving thus disposed of appellant's issues we will make 

a further comment on the case. Appellant's involvement in 
this case trom the investigation through the appeal has 

served to make a simple case complicated. The numerous 

motions and requests by appellant at the pretrial, trial and 

sentencing hearing culminating in a lengthy appellate brief 

have created a tangled mess. The untangling that was done in 

tracing each of appellant's issues through the record was 

tedious and time-consuming. One thing became clear early, 

however. The District Court Judge did a remarkable job in 

 accommodating the whims of the appellant during the proceed- 

!rigs before him. The situation must have been aggravating to 

say the least, but the judge made certain that appellant's 

rights were protected. Appellant cannot complain that the 

ludicial system put him in his predicament. He has on1.y 

hinself to blame. 

Affirmed on 211 issues. 

P: ~hl'ef justice 

We concur: