No. 13085 

IN THE 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 Sixth Judicial 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 appeal by 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 the night of September 7, 1974, Ullman Lumber Company 

in Big Timber, Montana was burglarized. Taken in the burglary 

were approximately $70 in cash and $1100 in checks written to 

Ullman Lumber Company. The testimony of witnesses indicates this 

chronology of events: Immediately before the burglary, Sheri 

Stief and Eileen Brannin, while "cruising the drag", spotted a 

man they later identified as defendant 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 

store whereupon one of the teenagers, Tim Rostad, left to call 

the police. While Rostad was absent, the other three teenagers 

continued to watch the store window, and one of the teenagers, Lila 

Fuller, saw someone inside the store. Later she identified 

defendant as the person inside the store. 

At about this time, these same teenagers noted someone 

running through the store and decided to investigate more 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 at trial as defendant. 

Meanwhile, Tim Rostad had succeeded in alerting the police. 

Deputy Brannin while conducting a surveillance of the immediate 

vicinity, spotted a man walking down a side street that he later 

identified as defendant. After finishing his general surveillance, 

Deputy Brannin returned to ~llman's where Tim Rostad informed him 
that a man matching the description of the person he had seen 

in ~llman's was in a telephone booth nearby. Upon being confronted 

by Deputy Brannin, this man identified himself as Gary Eugene Radi. 

At this time, Tim Rostad also identified Radi as the man he had 

seen inside the Ullman 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 six photos received, witnesses 

thought the one photo of defendant might have been the man they 

saw, but they were not sure. Deputy Brannin did identify defendant 

as the man he had seen from this first set. 

On September 11, 1974, a new set of photographs 

received. This set contained two pictures each of defendant and 

Radi and one of another suspect. These photos showed defendant 

with longer hair and glasses, similar to his appearance at the 

time of arrest. Upon viewing the two sets of photos, along with 

miscellaneous photos pulled from the office files, several witnesses 

made positive identification. Eileen Brannin and Sheri Stief 

identified defendant as the man they sawwaZliSng back and forth 

outside the lumber company. Lila Fuller identified defendant as 

the man she observed inside the store. Tim Rostad identified Radi 

as the man he saw inside the store and later in the near vicinity. 

Based upon the above facts Miner was charged with one 

count of burglary and one count of theft on September 12, 1974. 

In due course, motions were made to dismiss the Information and 

to suppress photo identifications made of defendant. After a hearing, 

the district court 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 in prison. It is from 

this judgment and sentence that defendant now appeals. 
Three issues are presented for review: 

1) Whether or not the Information filed against 

defendant was supported by probable cause? 

2) Whether or not the trial court erred in denying 

defendant's motion to suppress photo identifications made of 

defendant? 

3) Whether or not the trial court erred in giving 

its Instruction No. 21 as to defendant's accountability for the 

acts of another? 

In the first issue defendant contends the Information filed 

was not supported by probable cause. We find no merit in this 

contention. Section 95-1301(a), R.C.M. 1947, allows the filing 

of an Information if after review of the evidence supporting the 

affidavit the court is satisfied that there is probable cause to 

believe that an offense has been committed by defendant. The definition of probable cause to arrest is discussed extensively in 

State ex rel. Pinsoneault v. District Court, 145 Mont. 233, 240, 

400 P.2d 269. There the Court held that the expression "probable 

cause", as used in the federal Constitution, referring to the 

issuance of warrants, means that there is a probability that a 

crime has been committed by the person named in the warrant. 

In determining the probability that defendant committed an 

offense, the guidelines suggested in Spinelli v. United States, 

393 U.S. 410, 89 S.Ct. 584, 21 L ed 2d 637, have been noted with 

approval by this Court. See: State v. Troglia, 157 Mont. 22, 

482 P.2d 143. Generally those guidelines state that a mere probability is 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 admissibility of evidence. 

Finally, judges reviewing such affidavits should use their common 

sense in determining 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, or walking in the vicinity of the store 

immediately after the burglary. Deputy Brannin also identified 

defendant as being in the vicinity immediately after the burglary. 

Several witnesses 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 all this evidence going to probable cause, the only 

point of confusion seems to be as to who was seen inside the store. 

Defendant contends since three witnesses did not agree with 

Lila Fuller's identification of defendant as being in the store, 

there is a breakdown in probable cause. First, probable cause 

is determined on the basis of probability not percentages. If 

one witness could positively identify defendant as being in the 

store this would point to the probability he was indeed involved 

in the burglary--this is what probable cause is a11 about. 

Second, any one piece of evidence is not determinative of probable 

cause, rather all evidence must be examined before any determination can be made; and upon such examination there are ample facts 

to support a finding of probable cause to arrest. 

Since the facts show defendant present at the time and 

location of the burglary, his intent is to be determined from 

the facts and circumstances presented, a jury question. State v. 

Cooper, 158 Mont. 102, 489 P.2d 99. 

In the second issue defendant contends the trial court 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 procedure was a violation of his right to 

counsel because by the time the second set of photos was shown 
the 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 it was only after 

the second set of photos was shown that some witnesses positively 

identified defendant. It was upon the basis of this positive identification that the Information was filed and defendant arrested. 

A case in point as to the critical stage where right 

to counsel is required is Kirby 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 identified by the victim of that crime. The United States 

Supreme Court upheld the validity of this confrontation in the 

absence of counsel on the basis that the critical stage of formal 

proceedings against the suspects had not been initiated. The Court 

said : 

"In this case we 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. I I 

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 arrest but prior to the filing of 

formal charges, this Court sees no reason to require counsel 

during a photo lineup prior to the time defendant was arrested. 

Accordingly, this Court finds the critical stage where police 

procedure changes from investigative to accusatorial was not 

reached at the time the photo displays of defendant were made and 

therefore defendant was not entitled to counsel at that 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. United 
States, 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 trial which exposes to the jury the 

method's potential for error. We are unwilling to 

prohibit its employment, either in the exercise of 

our supervisory power or still less, 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 - - - - - -. 

at trial following a pretriel identification by 

photograph will be set aside on that ground only if 

the photographic identification procedure was so 

impermissibly suggestive as to give rise to a ver 

substantial likelihood of irreparable misidenti ication." (Emphasis supplied.) 

iL 

See also: Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 

Therefore, unless the error is obvious and the prejudice clear, the defendant's remedy is in effective cross-examination with the identification question then becoming one of weight 

to be determined by the jury 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 identification were categorized 

into three sets. The first set contained pictures of defendant 

and known associates, including Gary Radi. The second set from 

which several witnesses 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 sets were shown together not to create impressions 

but rather to verify 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 is responsible for 

the conduct which is an element of an offense if the 

conduct is either that of the person himself or that 

.d another and he either before or during the commission 

of an offense, and with the purpose to promote or 

facilitate such commission, solicits, aids, abets, 

agrees or attempts to aid, such other lerson in the 

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 state the law but rather that it is not supported by any 

evidence which was presented at trial. This Court cannot agree. 

It is true that no instruction may be given which is not supported 

either by some evidence or some logical inference from other evidence 

which was presented at trial. But, in this case, there is sufficient 

support in the transcript for the giving of this instruction. 

Defendant was seen walking back and forth in front of the 

lumber store immediately prior to the burglary. Defendant fit 

the description of one of the two men seen inside the lumber yard. 

He was later seen in the vicinity by several witnesses. He is an 

admitted associate of Gary Radi who was positively identified as 

being inside the store. If, despite the testimony of Lila Fuller, 

the jury actually believed it was Radi alone who entered the 

building, it still had sufficient evidence before it to find that 

defendant was collaborating with him on the burglary. Where there 

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

will not reverse. State v. Stoddard, 147 Mont. 402, 412 P.2d 

827; State v. Cor, 144 Mont. 323, 396 P.2d 86; State v. Robinson, 

109 Mont. 322, 96 P.2d 265. 

The judgment of the district court/?s affirmed. 

r: