### NO. 

### 13039 INTHE 

### 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 

### JoRice appeared,

Bozeman, Montana For Respondent

### : Hon. Robert 

### L. Woodahl, Attorney General, Helena,

Montana John F. North, AssistantAttorney General, argued,

Helena, Montana Donald White, County Attorney, Bozeman, Montana

Submitted: October 14, 1976

Decided: 

## NO\/261976Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. This is an appeal from a jury verdict entered inthe districtcourt, Gallatin County. On December 31, 1974, two men robbed the Oakes Bar inBozeman, Montana. The men wore stocking caps and skimasks throughout the robbery. The taller of the two men with a gun inhis lefthand controlled the robbery, while the other man remained near the back of thebar inthe shadows, alsoarmed with 

### a gun. The shorterman was referred to

### as "Michael" by the tallerman. The owner described the taller man as 5'10" to 6' tall, 185-220 lbs, brown, shoulder length hair, wearing glasses,
a blue orgreen down jacket, and 

### a stocking cap. The two men leftthrough the rear door aftertherobbery. Atabout this

### timea 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 carwith a white top, having no
rear license plate. This witness was joined shortlyby the owner of the Oakes, whereupon they watched this

### car proceed inan easterlydirection. The police were notified and an allpoints 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 licenseplates 

### 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 carwas 

### a blue down jacket, laterworn by Beaudette when questioned inLivingston. On January 2, 1975, the owner of the Oakes Bar, three patrons present during the robbery, and the witness who observedthe get-away car 

### were asked tomake a photographic identification. One ata timethese witnesses were asked tolook 

### at three pictures, and were told that allthreemen 

### were suspects. The owner and one patron selected Beaudette 

### as the taller robber. The other witnesses were unable tomake any identificationwhatsoever. Attrial, the prosecution presented evidence of the pretrial photographic identificationof defendant, as

### wellas
a positive in-court identificationby the owner, and a tentative in-court identification by one patron. Atthe 

### timeof the incourt identifications, defendant was not seated atthe defense counsel table, but in the fourthrow of the spectator portion of the courtroom. Defendant 

### was convicted by the jury and sentenced to40 years inprison. Defendant now appeals that judgment raising a single issue: Whether the conviction resulted from photographic identification procedure that

### was so impermissibly suggestive astogive rise to a very substantial likelihood of irreparable misidentification? Leading United States Supreme Court cases dealing with pretrial identificationprocedures 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 Neilv. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 34 L ed 2d 401, 410. InNeilthere isdictum that there are two distinct 

### tests,
a more stringentone requiring inadmissibility of evidence of pretrial identification, and a more lenient one applied tocases such as Simmons, where only an in-court identification isrelied upon. A thorough analysis from Stovall through Neilis provided

### by Justice Friendly in Brathwaite v. Manson, 527 F.2d 363 

### (2ndCir. 1975). As Justice Friendly points out, there is sound policy to require inadmissibilityof evidence of an impermissibly suggestive pretrial identification, sincemore 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 theminds 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 convictionsbased 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 irreparablemisidentification.'" (Emphasissupplied.) 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, suchprocedure was not so impermissibly suggestive as to 

### give rise to a very substantial likelihood of irreparablemisidentification in court (at which time defendantwas not seated at the defense counsel table, but in the fourth row of the spectator portion of the courtroom). What does appear from the recordis that there are, similar to Statev. Borchert, 156 Mont. 315, 319, 479 P.2d 454, sufficientmaterial facts, other than the incourt identification, to support this conviction. Two men robbed the Oakes Bar, the taller of the two held
a gun inhis lefthand, 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 inwhich defendant

### was riding 

### was stopped east of Bozeman. Atthis timedefendant 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 seatof the carwhich
was worn by defendant later inLivingston. 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 thiscar

### was identical tothe one he saw leave from the back of the Oakes. When the carwas stopped, a highway patrolman observed
a box partially under the front seat. When the car was searched 

### inLivingston, 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 

### willnot reverse. Statev. Miner, Mont

# .

The judgmen

Chief Justice Weconcur:



## ---Hon. Robert ~/'%~kes, District /' Judge, sittifig 

### inplace of 

### Mr. JusticeWesley Castles.