NO. 13039 

IN THE SUPREME COURT (IF THE STATE OF MONTANA 

1976 

THE STATE OF MONTANA, 

Plaintiff and Appellant, 

-vs - 

BRYON PAUL BEAUDETTE, 

Defendant and Respondent. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellant : 

Perry 3. Moore argued and Robert Jo Rice appeared, 

Bozeman, Montana 

For Respondent : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

John F. North, Assistant Attorney General, argued, 

Helena, Montana 

Donald White, County Attorney, Bozeman, Montana 

Submitted: October 14, 1976 

Decided: NO\/261976 
Mr. Chief Justice James T. Harrison delivered the Opinion 

of the Court. 

This is an appeal from a jury verdict entered in the 

district court, Gallatin County. 

On December 31, 1974, two men robbed the Oakes Bar 

in Bozeman, Montana. The men wore stocking caps and ski masks 

throughout the robbery. The taller of the two men with a gun 

in his left hand controlled the robbery, while the other man 

remained near the back of the bar in the shadows, also armed 

with a gun. The shorter man was referred to as "Michael" by the 

taller man. The owner described the taller man as 5'10" to 6' 

tall, 185-220 lbs, brown, shoulder length hair, wearing glasses, 

a blue or green down jacket, and a stocking cap. The two men 

left through the rear door after the robbery. 

At about this time a man outside the Oakes Bar observed 

two men, one carrying a gun, run out the rear door of the Oakes 

Bar and enter a brown GM type car with a white top, having no 

rear license plate. This witness was joined shortly by the owner 

of the Oakes, whereupon they watched this car proceed in an 

easterly direction. The police were notified and an all points 

bulletin was issued giving a description of the car and the two 

robbers. 

Shortly thereafter, a brown GM type automobile with a 

white top, bearing no license plates was stopped east of Bozeman. 

Three men were in the car, Gary Radi, John Michael Miner, and 

defendant, Byron Paul Beaudette. Defendant was 6'1" tall, weighed 

220 lbs., had long brown hair, and wore glasses. In the back 

seat of the car was a blue down jacket, later worn by Beaudette 

when questioned in Livingston. 

On January 2, 1975, the owner of the Oakes Bar, three 

patrons present during the robbery, and the witness who observed 
the get-away car were asked to make a photographic identification. One at a time these witnesses were asked to look at 

three pictures, and were told that all three men were suspects. 

The owner and one patron selected Beaudette as the taller 

robber. The other witnesses were unable to make any identification whatsoever. 

At trial, the prosecution presented evidence of the 

pretrial photographic identification of defendant, as well as 

a positive in-court identification by the owner, and a tentative 

in-court identification by one patron. At the time of the incourt identifications, defendant was not seated at the defense 

counsel table, but in the fourth row of the spectator portion 

of the courtroom. Defendant was convicted by the jury and sentenced to 40 years in prison. 

Defendant now appeals that judgment raising a single 

issue: Whether the conviction resulted from photographic identification procedure that was so impermissibly suggestive as to give 

rise to a very substantial likelihood of irreparable misidentification? 

Leading United States Supreme Court cases dealing with 

pretrial identification procedures and subsequent in-court identifications are Stovall v. Denno, 388 U.S. 293, 87 Sect. 1967, 18 

L ed 2d 1199; Simmons v. United States, 390 U.S. 377, 384, 88 

S.Ct. 967, 19 L ed 2d 1247, 1253; Foster v. California, 394 U.S. 

440, 89 S.Ct. 1127, 22 L ed 2d 402; and Neil v. Biggers, 409 

U.S. 188, 196, 93 S.Ct. 375, 34 L ed 2d 401, 410. 

In Neil there is dictum that there are two distinct tests, 

a more stringent one requiring inadmissibility of evidence of 

pretrial identification, and a more lenient one applied to cases 

such as Simmons, where only an in-court identification is relied 

upon. A thorough analysis from Stovall through Neil is provided 
by Justice Friendly in Brathwaite v. Manson, 527 F.2d 363 

(2nd Cir. 1975). As Justice Friendly points out, there is 

sound policy to require inadmissibility of evidence of an impermissibly suggestive pretrial identification, since more 

probative value is often times given to such than an in-court 

identification. The reason is that the pretrial identification 

is usually made immediately after the crime, when it is still 

fresh in the minds of the witnesses, and such identification 

is not subject to cross-examination as is the in-court identification. 

However, in this case we are confined to the admissibility of the in-court identification, since defendant did not 

object to the pretrial photographic evidence, and his proposed 

instruction questioned only the reliability of the in-court 

identification. Therefore, we must apply the appropriate test 

for those cases where the prosecution relies solely upon an incourt identification, as mandated by Neil, citing Simmons: 

"' * * * we hold that each case must be considered 

on its own facts, and that convictions based on 

eyewitness identifications at trial following a 

pretrial 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 very substantial 

likelihood of irreparable misidentification.'" 

(Emphasis supplied.) 

The photographic identification procedure used here (only 

3 pictures presented, and each witness informed that such pictures 

were of the robbery suspects) cannot be praised by this Court, 

since it was somewhat suggestive. However, considering the entire 

record, such procedure was not so impermissibly suggestive as to 

give rise to a very substantial likelihood of irreparable misidentification in court (at which time defendant was not seated 

at the defense counsel table, but in the fourth row of the spectator portion of the courtroom). What does appear from the record 
is that there are, similar to State v. Borchert, 156 Mont. 315, 

319, 479 P.2d 454, sufficient material facts, other than the incourt identification, to support this conviction. 

Two men robbed the Oakes Bar, the taller of the two held 

a gun in his left hand, wore a blue or green down jacket, and 

was described as 6' tall, 185-220 pounds, wore glasses, and 

had brown shoulder length hair. The two men got into a brown GM 

type car with a white top, without rear license plates and headed 

east. Shortly thereafter, a brown GM type car, with a white top 

and no license plates in which defendant was riding was stopped 

east of Bozeman. At this time defendant was 6'1" tall, weighed 

220 lbs., had long brown hair, wore glasses, and was left-handed. 

Also there was a blue down coat on the back seat of the car which 

was worn by defendant later in Livingston. During the robbery, 

the taller man referred to the shorter one as "Michael". Also 

in the car was John Michael Miner, sometimes referred to as "Mike" 

by friends. The witness who observed the get-away car, testified 

this car was identical to the one he saw leave from the back of 

the Oakes. When the car was stopped, a highway patrolman observed 

a box partially under the front seat. When the car was searched 

in Livingston, the box was missing. Furthermore, a second eyewitness made a tentative in-court identification. 

Where there is substantial evidence to support the jury's 

verdict, this Court will not reverse. State v. Miner, Mont . 

The judgmen 

Chief Justice 

We concur: 

--- 
Hon. Robert ~/'%~kes, District 

/' Judge, sittifig in place of Mr. 

Justice Wesley Castles.