No. 13085 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

STATE OF MONTANA, Plaintiff and Respondent,

-vs

# - JOHN MICHAEL MINER, Defendant and Appellant.

Appeal from: District Court of the SixthJudicial District, Honorable C. R. Sande, Judge presiding. Counsel of Record: For Appellant

### : James A. Tulley argued, Big Timber, Montana O.J. Paulson, Big Timber, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Thomas A. Budewitz argued, Assistant Attorney

General, Helena, Montana Kenneth R. Olson, County Attorney, Big Timber,

Montana

Submitted: December 10, 1975 Decided: 

# .. ,I.-

-- Filed:Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This is an appealby defendant John Michael Miner from

a judgment entered in the district court, Sweet Grass County, Hon. C. B. Sande, presiding. The judgment followed a jury verdict finding Miner guilty of burglary. Miner appeals. On thenight of September 7, 1974, Ullman Lumber Company inBig Timber, Montana was burglarized. Taken in theburglary

were approximately $70 in cash and $1100 inchecks written to Ullman Lumber Company. The testimony of witnesses indicates this chronology of events: Immediatelybefore theburglary, Sheri Stief and Eileen Brannin, while "cruising the drag", spotted a
man they later identified asdefendant walking back and forth in front of Ullman Lumber Company. Later four teenagers who were conversing in

### a car directly

across the street from the lumber company saw someone inside the storewhereupon one of the teenagers, TimRostad, left to call the police. While Rostad was absent, the other three teenagers continued towatch the storewindow, and one of the teenagers, Lila Fuller, saw someone inside the store. Later she identified defendant as the person inside the store. Atabout this time, these same teenagers noted someone running through the store and decided toinvestigatemore closely. Driving past the store, they saw two men run through the yard and jump the back fence. Later these teenagers while driving in the vicinity, saw a man walking down a side street, whom they later identified attrialas defendant. Meanwhile, TimRostad had succeeded in alerting the police. Deputy Brannin while conducting a surveillanceof the immediate vicinity, spotted a man walking down a side street that he later identified as defendant. After finishinghis general surveillance, Deputy Brannin returned to ~llman's where Tim Rostad informed himthat a man matching the description of the person he had seen in ~llman's was ina telephone booth nearby. Upon being confronted by Deputy Brannin, this man identifiedhimself as Gary Eugene Radi. Atthis time, Tim Rostad also identified Radi asthe man he had

seen inside theUllman Lumber Company earlier. A few days later the Sweet Grass County sheriff requested photographs of Radi and his known associates from the Billings police department. From the set of sixphotos received, witnesses thought the one photo of defendant might have been the man they saw, but theywere not sure. Deputy Brannin did identify defendant

asthe man he had seen from this first set. On September 

### 11, 1974, a new setof photographs received. This setcontained two pictures each of defendant and Radi and one of another suspect. These photos showed defendant with longer hair and glasses, similar tohis appearance atthe time of arrest. Upon viewing the two setsof photos, along with miscellaneous photos pulled from the office files, severalwitnesses made positive identification. Eileen Brannin and Sheri Stief identified defendant asthe man they sawwaZliSngback and forth outside the lumber company. Lila Fuller identified defendant as theman she observed inside the store. TimRostad identified Radi

astheman he saw inside the store and later inthe near vicinity. Based upon the above factsMiner was charged with one count of burglary and one count of theft on September 12, 1974. In due course, motions were made todismiss the Information and to suppress photo identificationsmade of defendant. After a hearing, the districtcourt denied both motions, and the case proceeded to trial. The jury returned a verdicr of guilty on the count of burglary. Miner was sentenced to ten years inprison. It is from thisjudgment and sentence that defendant now appeals.Three issues arepresented forreview: 1) Whether ornot the Information filedagainst defendant was supported by probable cause? 2) Whether ornot the trialcourt erred indenying defendant's motion to suppress photo identificationsmade of defendant? 3) Whether ornot the trialcourt erred ingiving 

### its Instruction No. 21 as todefendant's accountability forthe acts of another? In the firstissue defendant contends the Information filed

was not supported by probable cause. We find no merit inthis contention. Section 95-1301(a), R.C.M. 1947, allows the filing of an Information ifafterreview of the evidence supporting the affidavit the court is satisfiedthat there 

### isprobable cause to believe that an offense has been committed by defendant. The definition of probable cause toarrest 

### is discussed extensively in State ex rel. Pinsoneault v. District Court, 145Mont. 233, 240, 400 P.2d 269. There the Court held that the expression "probable cause", asused inthe federal Constitution, referring tothe issuance of warrants, means that there 

### isa probability that a crime has been committed by the person named inthewarrant. In determining theprobability that defendant committed an offense, the guidelines suggested in Spinelliv. United States, 393 U.S. 410, 89 S.Ct. 584, 21L ed 2d 637, have been noted with approval by this Court. See: Statev. Troglia, 157 Mont. 22, 482 P.2d 143. Generally those guidelines statethat a mere probabilityis sufficient for probable cause, a prima facie showing not being necessary. Also affidavits of probable cause are subject to much less rigorous standards than the admissibilityof evidence. Finally, judges reviewing such affidavits should use their common
sense indetermining whether probable cause exists.With these guidelines in mind, we review the pertinent facts: Three witnesses pdtively identified defendant as either in the store, walking suspiciously in front of the store immediately prior to the burglary, orwalking in the vicinity of the store immediately after theburglary. Deputy Brannin also identified defendant asbeing inthe vicinity immediately after the burglary. Severalwitnesses saw two men inside the lumber yard with one of the men matching the description of defendant. Gary Radi, a known associate of defendant, was seen in the store and later stopped and questioned in the immediate vicinity. Of allthis evidence going toprobable cause, the only point of confusion seems tobe as towho was seen inside the store. Defendant contends since threewitnesses did not agree with Lila Fuller's identification of defendant asbeing inthe store, there 

### is a breakdown inprobable cause. First, probable cause isdetermined on thebasis of probability not percentages. If

one witness could positively identify defendant asbeing in the store thiswould point to the probability he was indeed involved in theburglary--this iswhat probable cause is a11about. Second, any one piece of evidence 

### isnot determinative of probable cause, rather allevidence must be examined before any determination can be made; and upon such examination there areample facts to support a finding of probable cause toarrest. Since the facts show defendant present atthe time and location of the burglary, his intent 

### is tobe determined from the facts and circumstances presented, a jury question. Statev. Cooper, 158 Mont. 102, 489 P.2d 99. In the second issue defendant contends the trialcourt erred in denying defendant's motion to suppress photo identifications of defendant. Again, we find no merit in this contention. Defendant alleges the photo lineup procedurewas a violation of his right to counsel because by the time the second set of photos was shownthe proceedings had ceased being investigatory and had become accusatory. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L ed 2d 1149. However, the facts indicate itwas only after the second set of photos was shown that some witnesses positively identified defendant. It was upon thebasis of this positive identification that the Informationwas filed and defendant arrested. A case inpoint as tothe critical stagewhere right to counsel 

### isrequired isKirby v. Illinois, 406 

### U.S. 682, 690, 92 Sect. 1877, 32 L ed 2d 411,418, where two men arrested upon suspicion of a crime but not yet formally charged, were confronted and identifiedby the victim of that crime. The United States Supreme Court upheld the validity of this confrontation in the absence of counsel on thebasis that the critical stage of formal proceedings against the suspects had not been initiated. The Court said: "In this casewe are asked to import into a routine police investigation an absolute constitutional guarantee historically and rationally appliable only after the onset of formal prosecutorial proceedings. We decline to do so. II See also; United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568,

Since the United States Supreme Court saw no need for counsel during a physical lineup after arrestbut prior to the filingof formal charges, this Court seesno reason to require counsel during a photo lineup prior tothe time defendant was arrested. Accordingly, this Court finds the critical stagewhere police procedure changes from investigative to accusatorial was not reached atthe time the photo displays of defendant were made and therefore defendant was not entitled to counsel atthat time. Defendant also contends the photo lineup procedure used

was so suggestive as to almost compel witness identification of 

### him as the guilty party and as such was a violation of the due process clause of the Fifth and Fourteenth Amendments. In Simmons v. UnitedStates, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L ed 2d 1247,1253, the Court in dealing with a photo lineup situation similar to the instant one said:

'I* 

# * 5~The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of crossexamination at trialwhich exposes to the jury the

method's potential for error. We areunwilling to prohibit 

### its employment, either inthe exercise of our supervisory power or 

### stillless, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification

- - - - - -. attrial following a pretriel identificationby photograph willbe setaside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a ver substantial likelihood of irreparablemisidenti ication." (Emphasis supplied.) 

# iL

See also: Stovall v. Denno, 

### 388 

### U.S. 293, 

### 87 S.Ct. 1967, 18

Therefore, unless the error isobvious and the prejudice clear, the defendant's remedy 

### is in effective cross-examinationwith the identification question then becoming one of weight tobe determined by thejury and not one of admissibility. Applying the Simmons test to the facts of this case, this Court perceives

no photo lineup procedure which was so flagrantly suggestive 

### as to require a suppression of the photo identifications. The photos used for identificationwere categorized into three sets. The first set contained pictures of defendant and known associates, including Gary Radi. The second set from which severalwitnesses made positive identification of defendant, contained pictures of defendant and Gary Radi. The third set contained miscellaneous pictures pulled out of the sheriff's office file. These photo setswere shown together not tocreate impressions but rather toverify descriptions and information already gathered. In his final issue, defendant contends that the aiding and abetting instruction given by the district court was improper. The court's Instruction No. 21 reads:"You are instructed that a person isresponsible for theconduct which 

### isan element of an offense if the conduct 

### iseither that of the person himself or that 

### .danother and he eitherbefore orduring the commission of an offense, and with the purpose topromote or facilitate such commission, solicits, aids, abets, agrees or attempts to aid, such other lerson inthe planning or commission of the offense. The source of this instruction 

### is section 94-2-107(3), R.C.M. 1947. Defendant does not contend the instruction does not adequately statethe law but rather that it 

### isnot supported by any evidence which was presented attrial. This Court cannot agree. It 

### is true thatno instruction may be givenwhich 

### isnot supported eitherby some evidence or some logical inference from other evidence which was presented attrial. But, inthis case, there 

### is sufficient support inthe transcript for the giving of this instruction. Defendant was seenwalking back and forth in front of the lumber store immediately prior to theburglary. Defendant fit the description of one of the two men seen inside the lumber yard. He was later seen in the vicinityby severalwitnesses. He 

### isan admitted associate of Gary Radi who was positively identified as being inside the store. If, despitethe testimony of Lila Fuller, thejury actuallybelieved itwas Radi alonewho entered the building, it stillhad sufficient evidence before it tofind that defendant was collaborating with him on the burglary. Where there 

### is substantial evidence to support the jury's verdict, this Court 

### willnot reverse. Statev. Stoddard, 147Mont. 402, 412 P.2d 827; Statev. Cor, 144Mont. 323, 396 P.2d 86; Statev. Robinson, 109Mont. 322, 96 P.2d 265. The judgment of the districtcourt/?s affirmed. r: