NO. 84-351 INTHE 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 

# DEG31

## 1985Mr. 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 designationby the District Court as a dangerous offender and persistent felony offender. 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 ofhis 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),187Mont. 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 considerappellant'sarguments 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 claimsof appellant. Appellant labelshis 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 identifiahle 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)impermissibleprosecutorial.vindictiveness. We will utilize this same identificationof 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 sawher 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 hervehicle, she was able to observe the driver from a distance of four to six feet. Officer Dan Bourne of theKa,-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'sparking 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 Bournewas able to observe the driver from a distance of one to two feet. In themeantime, the driverwas 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 Bourneveered sharply to the right to avoid a head-on collision. The police officer turned around to continue the chase, but by that timehehad lost sightof 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. Shephoned the Kalispell PoLice Department with her information about themanwith 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. Duringhis investigationof thedisturbance,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 Updegraffheard 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 stolenvehicle. The physicaldescriptions,possession of
abackpack, and inquiriesby 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 thenwent to the brother's house where he arrested Campbell.

### A few hours after the arrest, Campbellwas transported to Kalispell where Officer Bourne identified him as the car thief and Deputy Updegraff identifiedhim as the hitchhiker. Both identificationswere theproducts 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 thathad 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-examinationwhich 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 athis trial.

1. Impermissible IdentificationEvidence 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 televisionappearanceswere 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 therewas nothing illegalabout the arrestof 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 thatUndersheriffGeldrich have thatwarrant inhispossession. Section 46-6-203,MCA. Appellant then argues that the identifications should be suppressed because hewas denied a constitutional right to
a lineup. Appellant offers noprecedent 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 (8thCir. 1980), 619 F.2d 767,and United Statesv. Robertson (9thCir. 1979), 606 F.2d 853. Moreover, appellant was given a mugshot lineup. Finally, on the matter of suppressionof the identification evidence,appellant asserts that the one-to-one showup identificationsby the deputy and police officer, themugshot display identifications by Huckins and McCartney, and the television appearance by appell.ant leading to the in-court identification by Reni Mengwasserwere impermissibly suggestive. We agree that in criminal proceedings, "due process protects the accused against the introductionof evidence of,
or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures." Statev. Lara

(1978), 179 Mont. 201, 204, 587 P.2d 930; Neil v. Biggers (1972), 409U.S. 188, 93 S.Ct. 375, 34L.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 likelihoodof irreparable identification

# .

# . . In applying the first-prongof this test to the identificationsby 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.1investigations on
a one-to-one basis. As such, they were not asvulnerable to the suggestive nature of the procedure as the generalpublic would be. The suggestivenesswas 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 suspecthad.been identifiedby anyone else. Under these circumstances,we cannot see where thesewitnesseswere influenced by the suggestivenessof the one-to-one showup. Moreover, there is another factor here which insured that the due process rights of appellantwere protected from the suggestiveness of the identifications--that is, the identification testimony of both Bourne and Updegraff was

### subject to cross-examina.tionand the weaknesses in the evidence were exposed. The jurywas 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, wemake the following cautionarynote. 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 themugshot 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 thedisplay 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 identificationwas 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 firstprong of our test.

### We also believe that the totality of the circumstanceswere 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 testimonyby Reni Elengwasserhad
a 

### substantial likelihood of misidentification under the second prong of our test and should have been suppressed. The error, however, isharmless as the remaining evidencewas sufficientto convictCampbell.

2. 

### DenialofLineup We have already disposed of this argument under the first issue. There is no constit.utiona1right to a lineup.

3. 

### 11-legallyObtained PhysicalEvidence Appell-ant's ba.ckpack was admitted as an exhibit at trial. We need not consider appell.antlsarguments that the backpack was obtained illegally because having the backpack
as an exhibitwas not crucial to the case againsthim.

4. DenialofReliable Psychiatric Evaluation Appellant was given one psychiatric evaluation under § 

### 46-14-202,MCA. 

### The statute does notprovide 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. Denialof Change ofVenue 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 thereforemeritless.

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, individuallyor cumulatively. We have also examined the alleged improperprosecutorial remarks. We see nothing in the record of statements 

### by the prosecutionbut fair comment. The cumulative error claim is th.uswithoutmerit.8. Failure to Fairly and Properly InstructJury We find no error amcng appel-lant'snumerous 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 givenwere either repetit-ive of instructionsgiven or not ifiaccordance to established law
or theevidence in this case.

3. Tnsufficient Evidence There is substantial evidence in the record to support the verdict 

### of 

### the jury.

10. Lmpru2enl: Denial ofMotions 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 iswithoutmerit.

11. UnconstitutionalStatutory 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 unconstitutjonallyvague. 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~nstitutionaliyvague.12. Judicial orProsecutorialOverreaching The record is clear that both the Districts Court and prosecutor bent cver backwards to accomrr~odatethe needs and whims of the appellant. Appellant's numerous allegations of prejudicialconduct tcwar6s him end falseand perjured testimony againsthirc area.11 withoutmerit.

13. Unl-awful Predicate forContempt Without Jury Trial Contempt may be punished surrnarily. Section 3-1-511, 14Ck. Contempt orders are not appealable. Section 3-1-523, KCA. Weneed not consider th~ issue further.

14. Disreg&rdof Evidence MitigatingPunishment Appellant has presented no evidence thatwould fithim irLthecategoriesof exceptionstomandatoryminimum sentences specified in § 46-18-222, MCA. Indeed, the evidence indicates he 6oes not fitthe categories. We can find no
error.

15. Djspensing with Constitutional Sentencing Principles The District Court's sentencing order and presentence investigation xeflectthejudge'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 theFourth Jud-icialDistrict which lackedjurisdiction. Thisis not the forur for Zeterrnining whether the court that issued his prior convictionha6 jurisdiction. Appellant has a prior felony conviction for the offense of armed robbery forwhich 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. 3.1111Cue 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 dangerousoffender status controlsparole el-igibility an6 

### is inapplicable to sentencing. Appellant has not been sentencedtwice for the same crime.

18. Impermissible Prosecutorial Vindictiveness Appellant alleges that theprosecution sought increased seritencir-g under the persistent felony offender status in a 1-ir.dictiveresponse to appellant's refusal to plea bargain. The argument is strainei?and withoutmerit. Appellant chose to plead "notguilty1' and to representhimself despite numerous warnings from theprosecutionand the judge. Prosecution then sought no greater sentence than is dictated by the statutes. A guilty verdict was returned. Appellant must accept the consequencesof thatvercict. Faving thus disposed of appellant's issueswewill make
a further comment on the case. Appellant's involvement inthis 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 tangledmess. The untangling thatwas 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 situationmust 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 toblame. Affirmed on 211 issues.

~hl'efjustice 

# P:

We concur: