No. 80-17 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

DONALD A. SHERIFF, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone. 

Honorable Robert Wilson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Calvin Stacey, Billings, Montana 

For Respondent: 

Honorable Mike Greely, Attorney General, Helena, Montana 

Harold Hanser, County Attorney, Billings, Montana 

Filed: 

Submitted on briefs: August 6, 1980 

Decided: ?!Eli 3 - 3986 
Mr. ~ustice Gene B. Daly delivered the Opinion of the Court. 

 his appeal arises from a conviction of the defendant 

of robbery following a jury t r i a l i n the District Court of 

the Thirteenth Judicial District, Yellowstone County, the 

Honorable Robert H. Wilson presiding. 

On April 5, 1979, at approximately 1:30 a.m., the 1145 

Club in Billings, Montana, was robbed by a man wearing a ski 

mask over his face, a red or orange T-shirt and faded blue 

jeans. The robber was carrying a handgun. 

Shirley Murphy, the barmaid at 1145 Club on the night 

of the robbery, and two off-duty Billings police officers in 

the bar at the time of the robbery, Gary Cooper and Dennis 

Moen, described the robber as being about 6'1" or 6'2" tall 

and weighing approximately 130 pounds. 

Shortly after the robbery, a police officer called to 

the scene to investigate approached an automobile in the 

vicinity which was occupied by the defendant, Donald A. 

Sheriff. A search of the car revealed an orange T-shirt, 

damp with perspiration, and a pair of faded Levis on the 

floor behind the front seat. A .38 caliber revolver and the 

stolen money were found hidden under the front fender of a 

car which was parked in a carport located directly west of 

the backdoor of the 1145 Club. 

At trial the bartender, Sheila Murphy, and each of the 

two off-duty police officers who witnessed the robbery 

identified the shirt and jeans found in defendant's car as 

those worn by the robber. In addition, the two off-duty 

police officers testified that Sheriff's voice sounded like 

that of the robber. 

Sheriff testified that on the evening of ~pril 4, 1979, 

he had dinner with Pam Eller, a girlfriend, and then went to 
visit a friend, John Stekar. Sheriff further testified that 

after knocking on the door of Stekar's residence and getting 

no response, he left and went to the Cattle Company, a local 

bar, to have a drink. After several drinks, defendant 

stated that he left the bar and while driving down Yellowstone Avenue, got sick and pulled to the side of the road. 

It was here that Sheriff was approached by the Billings 

police and arrested for the robbery of the 1145 Club. 

The first issue raised on appeal is whether the District Court erred by failing to suppress a letter written by 

defendant to a friend while incarcerated in the Yellowstone 

County jail awaiting trial. 

Shortly after his arrest, Sheriff sent a letter to his 

girlfriend, Pam Eller, and one to John Stekar. These letters 

were both opened and photocopied by a jailor. 

A motion to suppress the letters was filed by Sheriff. 

At a hearing on the matter, the jailor who "booked" the defendant into jail on April 5, 1979, testified that Sheriff 

signed a "booking sheet" which authorized jail personnel to 

open his mail. The trial judge suppressed the letter written to the girlfriend but admitted into evidence the letter 

sent to John Stekar. The letter to Stekar, although admitted, was not read to the jury at trial. 

The letter in pertinent part stated: "Well, I guess 

you know I really screwed up this time. Whatever I get out 

of this I will deserve. I've got to look to the future just 

the same. " 

On appeal defendant argues that the letter he wrote to 

Stekar should have been suppressed based on his right of 

privacy as guaranteed by 1972 Mont. Const., Art. 11, ~10. 

Defendant futher contends that use of the letter at trial 
violated his First Amendment right to freedom of speech and 

his Fourth Amendment right to freedom from unreasonable 

search and seizure. 

Censorship practices with respect to unconvicted prisoners' mail, not raising to the level of deprivation or 

significant impairment of assistance of counsel or of access 

to the courts, generally have not been regarded as objectionable on grounds that such practices constitute an invasion of privacy or an unreasonable search and seizure. See 

State v. McCoy (Or. 1974), 527 P.2d 725; United States v. 

Wilson (9t5 Cir. 1971), 447 F.2d 1, cert. denied, 404 U.S. 

1053, 92 S.Ct. 723, 30 L.Ed.2d 742; State v. Hawkins (1967), 

70 Wash.2d 697, 425 P.2d 390, cert. denied, 390 U.S. 912, 88 

S.Ct. 840, 19 L.Ed.2d 883; People v. Dinkins (1966), 242 

Cal.App.2d 892, 52 Cal.Rptr. 134. Courts, in allowing the 

practice, recognized the need for jail officials to read 

prisoners' mail in the context of the enforcement of jail 

security and discipline. 

In formulating the general rule, the courts based their 

decisions, in part, on Stroud v. United States (1919), 251 

U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103, and place a degree of 

emphasis on the fact that the writer was aware that the mail 

was subject to censorship. 

Mail censorship by jail officials, however, has recently 

come under attack on both First and Fourth Amendment grounds. 

In Procunier v. Martinez (1974), 416 U.S. 396, 94 S.Ct. 

1800, 40 L.Ed.2d 224, the Supreme Court held that California's 

prison regulations, which permitted the reading of incoming 

and outgoing mail, were contra to the First Amendment and 

could not be permitted because the State failed to establish 

that they were reasonably or necessarily related to the 
advancement of some justifiable purpose of imprisonment or 

prison security. See also Palmigiano v. Travisono (D. R.I. 

1970), 317 F.Supp 776, in which the court condemned a similar practice on both First and Fourth Amendment grounds. 

Upon reviewing the above decisions, it is apparent that 

absent a showing of some compelling justifiable purpose in 

the nature of prison security and discipline, the interception and photocopying of the letter written by Sheriff to 

Stekar was violative of the First and Fourth Amendments. 

Here, no such finding was made. 

In this instance, the sole reason the letter was examined and then photocopied was to obtain evidence to be 

used against defendant. At no time during trial did the 

State reveal any relationship between the censorship practice and prison security or discipline. With this being the 

case, the letter should have been excluded. 

Despite the failure to exclude the letter, however, 

Sheriff's conviction must stand. There was ample evidence 

of Sheriff's guilt even absent the letter. Therefore, to 

exclude it would not result in a different outcome. With 

this being the case, we conclude there is no reversible 

error. 

In support of his argument that the practice at issue 

unduly violates the right of privacy under the 1972 Montana 

Constitution, defendant cites State v. Brackman (1978) , 

- Mont. , 582 P.2d 1216, 35 St.Rep. 1103. In Brackman 

the Court made an in-depth analysis of the right of privacy 

under the Montana Constitution. We note, however, that 

Brackman does not deal with how the right is specifically 

affected by a person's incarceration, the gravaman of the 

issue at hand. Thus, it will not be considered controlling 

in regard to this appeal. 
Even assuming defendant's right to privacy was violated 

and the letter should have been suppressed, in this instance, 

as stated above, the failure to exclude the letter was not 

reversible error. 

The second issue raised on appeal is whether the District Court erred in limiting defendant's right of crossexamination. 

Sheriff was interrogated by Detective Henry Fox after 

his arrest and eventually gave a recorded statement later 

reduced to writing. At trial, the State questioned Detective Fox concerning the statement and had the statement 

marked for identification purposes so that Fox could examine 

it while testifying . 

Prior to Fox's testimony, defendant requested the 

court's permission to cross-examine Fox as to part of the 

statement--namely, whether Sheriff responded in the affirmative when asked if he would submit to a polygraph test. 

Sheriff sought to question Fox about this matter to establish his willingness to cooperate with the police. Defendant's request was denied by the trial court. 

On appeal Sheriff contends that Rule 106, Mont.R.Evid., 

is an appropriate basis for finding that the trial court 

erred in denying his request. 

Rule 106, Mont.R.Evid., provides that when part of an 

act, declaration, conservation, writing or recorded statement is introduced by a party, the adverse party can require, if fairness so requires, that any other part of such 

item also be admitted. The purpose of this rule is to avoid 

a misleading and unfair impression which can result when 

matters are presented out of context. See omm mission Comment to Rule 106, Mont.R.~vid. 
This Court is unable to find that an unfair or misleading impression on the minds of the jury results if 

defendant is unable to inquire on cross-examination as to 

his willingness to take a polygraph test. The part of 

defendant's statement testified to by Fox on direct examination related to whether or not defendant owned a gun or the 

clothing found in the back seat of his car. The fact that 

defendant also made a statement showing that he would take a 

polygraph test is not of the nature that to omit it created 

a misleading impression on those statements that were admi tted. 

Even assuming there was error by the trial court, to 

omit the inquiry does not so prejud.ice defendant that a different decision would have resulted. At no time did the 

prosecution raise the issue that defendant failed to cooperate with the police. Defendant was able to take the 

stand and in his own defense testified as to his full cooperation with the police. The fact that he was also willing 

to take a polygraph test would not be determinative in the 

case, especially when such tests generally are not allowed 

as evidence in a criminal trial. See State v. Bashor (1980), 

- Mont. - , 614 P.2d 470, 37 St.Rep. 1098. 

Finally, we can find no merit in defendant's final 

issue, that the District Court erred in refusing his proposed Instruction No. 21. 

Defendant's proposed Instruction No. 21 read as follows: "The mere fact that Donald Sheriff was found in the 

relative vicinity of the robbery is not sufficient in and of 

itself to support a finding of guilty." 

Defendant contends that the refusal to give this proposed instruction was error; however, he fails to indicate 
why said action was improper. In his brief defendant merely 

point's out to the Court that his arrest took place several 

blocks away from the scene of the robbery. 

It is true that mere presence at the scene of a crime 

does not establish criminal responsibility. See State ex 

rel. Murphy v. McKinnon (1976), 171 Mont. 120, 125, 556 P.2d 

906, 909. In this instance, however, we are unable to find 

that an instruction in this regard is essential to a proper 

decision. This case does not involve an attempt to convict 

on mere presence. 

The jury was properly and adequately instructed on the 

applicable law and burden of proof, as well as being instructed that defendant may not be convicted on mere conjecture, suspicion or probability. With this being the 

case, we find no error in the trial court's decision to omit 

the proposed instruction. 

The decision of the District Court is affirmed. 

We concur: 

Chief Justice