### 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

# - 3986Mr. ~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 nthe DistrictCourt of the Thirteenth Judicial District, Yellowstone County, the Honorable Robert H. Wilson presiding. On April 5, 1979, 

### atapproximately 1:30 a.m., the 1145 Club inBillings, 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 at1145 Club on the night of the robbery, and two off-duty Billings police officers in the bar atthe time of the robbery, Gary Cooper and Dennis Moen, described the robber asbeing 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 vicinitywhich 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 stolenmoney were found hidden under the front fender of a
carwhich was parked ina carport located directlywest of the backdoor of the 1145 Club. At

### trial the bartender, SheilaMurphy, and each of the two off-duty police officers who witnessed the robbery identified the shirtand jeans found indefendant'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 thaton the evening of ~pril 

### 4, 1979, he had dinner with Pam Eller, a girlfriend, and then went tovisit a friend, John Stekar. Sheriff further testified that after knocking on the door of Stekar's residence and getting

no response, he leftand went to the Cattle Company, a local bar, to have a drink. After several drinks, defendant stated that he leftthe bar and while driving down YellowstoneAvenue, got sick and pulled to the side of the road. Itwas here that Sheriff was approached by the Billings police and arrested for the robbery of the 1145Club. The firstissue raised on appeal 

### iswhether the DistrictCourt erred by failing to suppress a letter written by defendant toa friend while incarcerated in the Yellowstone County jail awaiting trial. Shortly after his arrest, Sheriff sent a letter tohis girlfriend, Pam Eller, and one toJohn Stekar. These 

### letters



### were both opened and photocopied by a jailor. A motion to suppress the 

### letters was filedby Sheriff. Ata hearing on the matter, the jailor who "booked" the defendant intojail on April 

### 5, 1979, testified that Sheriff signed a "booking sheet" which authorized 

### jail personnel to open hismail. The trialjudge suppressed the 

### letter written to the girlfriend but admitted into evidence the letter sent toJohn Stekar. The letter to Stekar, although admitted, 

### was not read tothe jury at

### trial. The letter inpertinent part stated: "Well, I guess you know I really screwed up this 

### time. Whatever I get out of this I 

### willdeserve. 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 1972Mont. Const., Art. 11, ~10. Defendant futher contends thatuse of the 

### letter attrialviolated his FirstAmendment right to freedom of speech and his FourthAmendment right to freedom from unreasonable search and seizure. Censorship practiceswith respect tounconvicted 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 Statev. McCoy (Or. 1974), 527 P.2d 725; United Statesv. Wilson (9t5Cir. 1971), 447 F.2d 

### 1, 

### cert. denied, 404 U.S. 1053, 92 S.Ct. 723, 30 L.Ed.2d 742; Statev. Hawkins (1967), 70 Wash.2d 697, 425 P.2d 390, cert. denied, 390 U.S. 912, 88 S.Ct. 840, 19L.Ed.2d 883; People v. Dinkins (1966), 242 Cal.App.2d 892, 52 Cal.Rptr. 134. Courts, inallowing the practice, recognized the need forjail officials to read prisoners' 

### mailinthe contextof the enforcement of jail security and discipline. In formulating the general rule, the courts based their decisions, inpart, 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 factthat 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 FirstAmendment and could not be permitted because the State failed to establish that they were reasonably or necessarily related to theadvancement of some justifiable purpose of imprisonment or prison security. See alsoPalmigiano v. Travisono (D. 

### R.I. 1970), 317 F.Supp 776, inwhich the court condemned a 

### similarpractice on both Firstand 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 letterwritten 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 againstdefendant. Atno 

### timeduring 

### trial did the Statereveal 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 guilteven absent the 

### letter. Therefore, to exclude 

### it would not result ina differentoutcome. With this being the case, 

### we conclude there 

### is no reversible

error. In support of his argument that the practice 

### atissue unduly violates the right of privacy under the 1972Montana Constitution, defendant cites Statev. 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. Wenote, however, that Brackman does not deal with how the right 

### is specifically affected by 

### a person's incarceration, the gravaman of the issue 

### athand. Thus, 

### it

### willnot be considered controlling inregard to this appeal.

### Even assuming defendant's right toprivacy was violated and the letter should have been suppressed, inthisinstance,

as stated above, the failure to exclude the letterwas not reversible error. The second issue raised on appeal is

### whether the Dis

### trictCourt erred inlimiting defendant's right of crossexamination. Sheriff was interrogated by Detective Henry Fox after his arrestand eventually gave a recorded statement later reduced towriting. At

### trial, the Statequestioned DetectiveFox concerning the statement and had the statement marked for identificationpurposes so thatFox could examine it

### while testifying

# . Prior toFox's testimony, defendant requested the court's permission tocross-examine Fox as topart of the statement--namely, whether Sheriff responded inthe affirmativewhen asked if he would submit toa polygraph test. Sheriff sought toquestion Fox about thismatter toestablishhiswillingness tocooperate 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 trialcourt erred indenying hisrequest. Rule 106, Mont.R.Evid., provides thatwhen part of an act, declaration, conservation, writing or recorded statement is 

### introduced by a party, the adverse party can re

### quire, if fairness sorequires, thatany other part of such item

### alsobe admitted. The purpose of thisrule is 

### to avoid a misleading and unfair impression which can resultwhen matters arepresented out of context. See 

### omm mission Comment toRule 106, Mont.R.~vid.This Court isunable to find that an unfair or 

### misleading impression on the minds of the jury results if defendant 

### isunable to inquireon cross-examination as to his willingness to take a polygraph 

### test. The part of defendant's statement testified to by Fox on directexamination related to whether or not defendant owned a gun or the clothing found in the back seat of his car. The fact that defendant alsomade 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 ad

### mi tted. Even assuming there was error by the trial court, to omit the inquiry does not soprejud.ice defendant that a differentdecision would have resulted. Atno time did the prosecution 

### raise the issue that defendant failed to cooperate with the police. Defendant was able to take the stand and inhis own defense testified as to his fullcooperation with the police. The fact thathe was also willing to take a polygraph 

### test would not be determinative in the case, especially when such 

### tests generally arenot allowed

as evidence ina criminal 

### trial. See Statev. Bashor (1980), Mont. 

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

### - Finally, 

### we can find no merit indefendant's final issue, that the District Court erred inrefusing hisproposed Instruction No. 21. Defendant's proposed Instruction No. 21read as follows: "The mere fact thatDonald Sheriff was found in the relative vicinity of the robbery isnot sufficientinand of itself to support a finding of guilty." Defendant contends that the refusal to give thisproposed instruction was error; however, he fails to indicatewhy said action was improper. Inhis brief defendant merely point's out tothe Court that his arrest took place several blocks away from the scene of the robbery. It 

### is true thatmere presence 

### atthe scene of a crime does not establish criminal responsibility. See State

### ex rel. Murphy v. McKinnon (1976), 171Mont. 120, 125, 556 P.2d 906, 909. In this instance, however, we areunable to find that an instruction inthis 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 

### lawand burden of proof, aswell asbeing instructed that defendant may not be convicted on 

### mere conjecture, suspicion orprobability. With this being the case, 

### we find no error inthe trialcourt's decision to omit the proposed instruction. The decision of the DistrictCourt 

### is affirmed.

We concur:

Chief Justice