No. 89-475 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vSCOTT SOR-LOKKEN, 

Defendant and Appellant. 

DEC 18 1990 . t 8 €d SXtt4 ? 

CLERK OF SVPREitRE COURT 

STATE; PF F~~QI.ITAE;IA 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Sanders, 

The Honorable C.B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Roger M. Kehew, Kalispell, Montana 

For Respondent: 

John Paulson, Asst. Atty. General, Helena, Montana 

Robert Slomski, Sanders County Attorney, Thompson 

Falls, Montana 

Submitted on Briefs: November 1, 1990 

Decided: December 18, 1990 

Filed: 
Justice Fred J. Weber delivered the opinion of the Court. 

In the ~istrict Court for the Twentieth Judicial District, 

Sanders County, defendant was convicted of two counts of felony 

assault. Defendant was sentenced to ten years for each count to 

be served concurrently, and determined to be a dangerous offender. 

Defendant appeals. We affirm. 

We restate the issues presented as follows: 

1. Did the District Court err in denying defendant's motion 

to dismiss for lack of justice court jurisdiction to issue an 

arrest warrant on a complaint charging a felony? 

2. Was there a proper determination of probable cause? 

3. Was the photo identification conducted by the State 

suggestive? 

4. Did the District Court err in allowing the testimony of 

David Galarneau over defendant's objection? 

5. Did the District Court err in denying defendant's motion 

for a new trial? 

On July 12, 1988, defendant, Scott Sor-Lokken, and his family 

were traveling eastbound on State Highway 135 in defendant's sedan. 

Penny Shepard was also traveling eastbound on Highway 135 that 

afternoon on her way home to Kalispell. 

Penny testified that she approached defendant's car from 

behind and attempted to pass it on the two-lane highway. Defendant 

refused to allow Penny to go around him or to return to her place 

behind him and held Penny in the oncoming traffic lane. As the two 
cars continued down the highway side by side, defendant began to 

nudge Penny over in an attempt to run her into a concrete wall. 

While this occurred, a vehicle approached from the opposite 

direction. Penny slammed on her brakes and maneuvered behind 

defendant to avoid the oncoming vehicle. She then pushed her 

accelerator to the floor and managed to pass defendant. 

After Penny passed the car, she looked in her rear view mirror 

and noticed a motorcycle for the first time. Monty McIlhargey 

(Monty) was driving the motorcycle and had witnessed the incident 

between Penny and defendant. He decided that the safest course of 

action was to pass defendant quickly, which he accomplished. 

Monty testified that defendant caught up to him and bumped 

him from behind, then attempted to run him off the road. While 

defendant repeatedly attempted to run Monty off the road, one of 

defendant's passengers threw glass Orange Crush bottles at him. 

The bottles struck Monty and his motorcycle. Penny witnessed these 

events through her rear-view mirror. 

At the next town, Paradise, Montana, Penny and Monty reported 

the incident to the Sanders County Sheriff's office. Penny and 

Monty provided the sheriff's office with defendant's personalized 

license plate inscription and gave general descriptions of 

defendant and his car. 

The justice court in Sanders County issued an arrest warrant 

for defendant based upon a sworn complaint filed by the Sanders 

County Attorney. The complaint charged defendant with two counts 
of felony assault in violation of S45-5-202 (2) , MCA. Defendant 

was arrested two days later and appeared before the justice court. 

The State requested the District Court for leave to file an 

information. The motion was granted. The information filed 

charged defendant with two counts of felony assault. Defendant 

was arraigned on September 13, 1988, and entered a plea of not 

guilty to both counts. The District Court conducted the omnibus 

hearing on September 27, 1988. 

On March 15, 1989, defendant filed a motion to exclude the 

testimony of the victims because of the alleged suggestiveness of 

the photographic lineup. He also filed a motion to suppress the 

arrest warrant, contending that the justice court lacked 

jurisdiction to issue the warrant in felony cases and that the 

examination of the complaint failed to establish probable cause. 

The District Court denied his motions. 

On April 12, 1989, defendant moved to exclude the 

identification testimony of the witnesses, based upon the same 

grounds as the previous motions for the exclusion of witness 

testimony. The motion was denied. 

The jury found defendant guilty on both counts of felony 

assault. Defendant filed a motion for a new trial. The District 

Court denied the motion. The District Court then sentenced 

defendant to ten years for each count of felony assault, to be 

served concurrently, and determined that defendant was a dangerous 

offender. Defendant appeals. 
Did the District Court err in denying defendant's motion to 

dismiss for lack of justice court jurisdiction to issue an arrest 

warrant on a complaint charging a felony? 

Defendant contends that a justice court cannot commence a 

felony by complaint. He contends that the procedure violates 

Article VII, Section 5, of the Montana Constitution which states: 

(2) Justice courts shall have such original jurisdiction as may be provided by law. They shall not 

have trial jurisdiction in any criminal case designated 

a felony except as examining courts. 

The State urges that commencing a felony case by filing a 

complaint in a justice court is a procedure long accepted and 

practiced in Montana. The State cites State v. Snider (1975), 168 

Mont. 220, 225, 541 P.2d 1204, 1207, for the rule that a justice 

court does not violate the original trial jurisdiction of district 

court when it exercises jurisdiction in the related nontrial 

proceedings of a felony prosecution. This Court stated: 

The use of the term "trial jurisdiction" constitutes 

a legislative acknowledgement that other types of 

jurisdiction exist in these cases and are not vested 

exclusively in the district courts. 

Montana's existing court system as established by 

the legislature supports a legislative intent to grant 

justices of the peace jurisdiction to issue search 

warrants. There are 56 counties in the state, with 28 

district judges. These district judges serve judicial 

districts comprising from one to seven counties. They 

generally reside and spend the major part of their time 

in the most populous county within their judicial 

district. Because of this court system and its inherent 

geographical limitations, many of the outlying counties 

simply do not have a district judge available on a 

moment's notice to issue search warrants, . . . But . . . every county has one or more justices of the peace. 
Under these known circumstances, the legislature will be 

presumed to have intended to grant justices of the peace 

the right to issue search warrants in the absence of any 

express limitation. 

Snider, 541 P.2d at 225-226. In Snider, the defendant was charged 

with the felony of illegal possession of dangerous drugs. See also 

State v. Garberding, No. 90-128, slip op. (Mont. Nov. 26, 1990). 

We conclude that initiating a felony prosecution by complaint in 

the justice court is an established practice in Montana which is 

not prohibited by statute. We hold that the District Court 

correctly denied defendant's motion to dismiss for lack of justice 

court jurisdiction to issue an arrest warrant on a complaint 

charging a felony. 

I1 

Was there a proper determination of probable cause? 

Defendant maintains that the County Attorney was not examined 

under oath by the Justice of the Peace concerning probable cause 

to believe that defendant committed the crime. He contends that 

a verified complaint reciting the statute is not the same as 

probable cause being sworn to by oath or affirmation. He urges 

that the probable cause for his arrest must be reduced to writing. 

He further contends that since no one had actually identified the 

defendant for nearly a month, no evidence linking him with the 

alleged crime was found within a reasonable time. He argues that 

the circumstantial evidence pointed only to the vehicle involved 

as belonging to him, not as he being the one driving the vehicle. 

The State maintains that the County Attorney was under oath 
when he swore to the complaint. Sanders County Attorney, Bob 

Slomski, testified that Claude Burlingame, the County Attorney at 

the time of the incident, swore to the complaint when it was filed 

and recited the underlying facts relating to probable cause. It 

argues that the fact that the County Attorney was not under oath 

before reciting the facts supporting probable cause does not 

invalidate the arrest. The State further contends that the 

substantial rights of the accused are not at stake and the 

accused's right to counsel does not attach when the State applies 

for leave to file an information. It urges that a district court's 

finding of probable cause may be challenged in a subsequent motion 

to dismiss. Finally, the State maintains that defendant received 

an independent judicial determination of probable cause within a 

reasonable time. The complaint was filed on July 13, 1988. 

Sanders County deputies arrested defendant two days later, and 

defendant appeared in justice court that same day. The State 

applied to the District Court for leave to file an information on 

August 4, 1988, 20 days after the arrest, and filed the information 

on August 5, 1988. 

Section 46-6-201, MCA, provides that an arrest warrant may be 

issued when a written complaint is presented to a court charging 

a person with the commission of an offense and the court examines 

the complainant under oath to determine if there is probable cause 

for the arrest. Article 11, Section 11 of the 1972 Montana 

Constitution requires probable cause supported by oath or 
affirmation reduced to writing. 

The Supreme Court of the United States has held that the issue 

in warrant proceedings is not guilt beyond a reasonable doubt but 

probable cause for believing that a crime has occurred. United 

States v. Harris (1971), 403 U.S. 573, 581-583; State v. 

Garberdinq, 47 St.Rep. at . As the State maintains, that 

standard was met by the witness statements describing defendant 

and defendant's license plate. Even if the defendant's arrest had 

been unlawful, an illegal arrest has no impact on subsequent 

prosecution using evidence not tainted by illegality. State v. 

Woods (1983), 203 Mont. 401, 662 P.2d 579; State v. Ellinger 

(1986), 223 Mont. 349, 725 P.2d 1201. 

Defendant does not have a right to be present when the State 

applied for permission to file an information. This Court has held 

that a defendant's right to counsel was not violated because 

counsel was not appointed until after the information was filed. 

State v. Farnsworth (1989), 240 Mont. 328, 333, 783 P.2d 1365, 

1367. 

Finally, 546-7-103, MCA, requires the preliminary examination 

to be held within a reasonable time unless the district court 

grants leave to file an information. Here, the court made an 

independent determination of probable cause and granted the State 

leave to file an information. The State continued to investigate 

and prepare the case by conducting a photo array and examining the 

crime scene. Defendant remained incarcerated during that time. 
When a defendant remains incarcerated because he cannot meet bail, 

his incarceration is not a factor in calculating reasonable time. 

Farnsworth, 783 P. 2d at 1368. We hold that there was a proper 

determination of probable cause and no rights of the defendant were 

violated. 

I11 

Was the photo identification conducted by the State 

suggestive? 

Defendant maintains that the photographic line-up was 

unreasonably suggestive. The State maintains that the photograph 

was not suggestive and did not deny defendant due process. 

The Sanders County Attorney conducted a photographic lineup 

using a photograph of defendant taken while he was incarcerated. 

He was not wearing a shirt in the photo. The victims, Penny and 

Monty, each separately identified defendant. Later each made incourt identifications of the defendant as well. 

The test for whether the identification procedure was 

suggestive or not has been defined by this Court. A two-pronged 

test determines whether or not the identification should be 

suppressed: 

First, was the identification procedure impermissibly 

suggestive; and, second, if so, did it under the totality 

of the circumstances have such a tendency to give rise 

to a substantial likelihood of irreparable 

misidentification. 

State v. Higley (1980), 190 Mont. 412, 621 P.2d 1043. The only 

way the identification here could be deemed suggestive is by the 
mere fact that defendant was the only man in the photographic lineup that was not wearing a shirt. Examination of the photographs 

does not indicate that fact was suggestive. 

Looking at the second leg of the test, the totality of the 

circumstances, we conclude that the identification was reliable 

even if the identification procedure were considered suggestive. 

The facts to be considered in evaluating the likelihood of 

misidentification include: 

the opportunity of the witness to view the criminal at 

the time of the crime, the witnesst degree of attention, 

the accuracy of the witness' prior description of the 

criminal, the level of certainty demonstrated by the 

witness at the confrontation, and the length of time 

between the crime and the confrontation. (Citations 

omitted. ) 

State v. Hiqley, 621 P.2d at 1049. 

Both witnesses here were victims who viewed the defendant 

during the crime. Both witnesses separately positively identified 

the defendant both from the photographic array and in court. The 

identification with the photo array took place only two weeks after 

the crime. We hold that the photo identification conducted by the 

State was not suggestive. 

Did the District Court err in allowing the testimony of David 

Galarneau over defendant's objection? 

Defendant maintains that the District Court erred in allowing 

the testimony of David Galarneau over his objection. Mr. Galarneau 

is the automobile mechanic who worked on the alleged vehicle used 
in the crime, and testified as to its condition as it existed prior 

to the incident in question. During cross-examination, the State 

inquired as to Mr. Galarneau's failure to appear the day before. 

The testimony relevant to this issue follows. 

Q. You got a subpoena to be in court here? 

A. Yes. 

Q. The subpoena told you to be here yesterday morning; is 

that true? 

A. I never got that one. I had one before I was suppose to 

have been here a couple weeks ago or something. 

Q. Okay. Where were you yesterday? 

Defense Counsel: Objection your Honor. I don't see that 

it s relevant. 

The Court: Overruled. 

Q. Where were you yesterday? 

A. Lake County Jail. 

The State maintains that this line of questioning was used to 

show the witness failed to respond to a previous subpoena which 

went to his credibility. It maintains that a question of 

credibility is a matter for the jury to decide. The State urges 

the defendant objected on grounds of relevancy, and the objection 

was properly overruled since the questioning was relevant and was 

not character evidence. No mention of an arrest or a conviction 

was made. Defendant did not move to strike. 

Evidentiary rulings concerning the admissibility of evidence 

are within the District Court's discretion and will not be 

disturbed absent a showing of an abuse of discretion. The 
presumption that a witness speaks the truth and is credible can be 

rebutted by evidence of the witness' character for truth, honesty, 

and integrity, but evidence bearing on issues of witnesst 

credibility, in order to be admissible, must be more probative than 

prejudicial. State v. Hammer (1988), 233 Mont. 101, 759 P.2d 979. 

The District Court must balance prejudice and probative value. 

Evidence of Mr. Galarneau's failure to answer his subpoena by 

appearing the previous day does not tend to make any fact at issue 

in this action more or less probable than that fact would be 

without the evidence. Thus, defendant has failed to show any abuse 

in the District Court's discretion that the testimony of Mr. 

Galarneau was more prejudicial than probative. We hold that the 

District Court did not err in allowing the testimony of David 

Galarneau over defendant's objection. 

v 

Did the District Court err in denying defendant's motion for 

a new trial? 

Defendant maintains that he was entitled to a new trial 

pursuant to 55 46-16-701 and 46-16-702, MCA. The State filed an 

answer stating that defendant failed to file a supporting brief 

pursuant to Uniform District Court Rule 2, which provides that 

failure to file a brief within five days subjects the moving party 

to a summary ruling. The court denied defendant's motion. 

Defendant argues that a denial of his motion based on Rule 2 

was erroneous because Rule 2 does not apply to criminal cases. 
The State contends that the decision to deny the motion is a matter 

of trial court discretion and shall not be disturbed absent an 

abuse of judicial discretion. The State also urges that 

defendant's motion for a new trial was untimely under !j 46-16- 

702(2), MCA. 

Defendant failed to provide the District Court with sufficient 

information to support his motion for a new trial. We conclude the 

District Court did not abuse its discretion. We hold that the 

District Court did not err in denying defendant's motion for a new 

trial. 

Affirmed. 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 89-475 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-v1 

1 ORDER 

6 

< - , - \ I .% 

IT IS ORDERED that this Court's opinion in the Above case 

dated December 18, 1990, which reads on the bottom of page 6 and 

the top of page 7 as follows: 

The State maintains that the County Attorney was 

under oath when he swore to the complaint. Sanders 

County Attorney, Bob Slomski, testified that Claude 

Burlingame, the County Attorney at the time of the 

incident, swore to the complaint when it was filed and 

recited the underlying facts relating to probable cause. 

It argues that the fact that the county attorney was not 

under oath before reciting the fats supporting probable 

cause does not invalidate the arrest. The State further 

contends that the substantial rights of the accused are 

not at stake and the accused's right to counsel does not 

attach when the State applies for leave to file an 

information. It urges that a district court's finding 

of probable cause may be challenged in a subsequent 

motion to dismiss. Finally, the State maintains that 

defendant received an independent judicial determination 

of probable cause within a reasonable time. The 

complaint was filed on July 13, 1988. Sanders County 

deputies arrested defendant two days later, and defendant 

appeared in justice court that same day. The State 

applied to the District Court for leave to file an 

information on August 4, 1988, 20 days after the arrest, 

and filed the information on August 5, 1988. 

shall be changed to read: 

The State maintains that the County Attorney was 

under oath when he swore to the complaint. ~ustice of 

the Peace Beitz, testified that Claude Burlingame, the 

County Attorney at the time of the incident, swore to the 
complaint when it was filed and recited the underlying 

facts relating to probable cause. It argues that the 

fact that the county attorney was not under oath before 

reciting the fats supporting probable cause does not 

invalidate the arrest. The State further contends that 

the substantial rights of the accused are not at stake 

and the accused's right to counsel does not attach when 

the State applies for leave to file an information. It 

urges that a district court's finding of probable cause 

may be challenged in a subsequent motion to dismiss. 

Finally, the State maintains that defendant received an 

independent judicial determination of probable cause 

within a reasonable time. The complaint was filed on 

July 13, 1988. Sanders County deputies arrested 

defendant two days later, and defendant appeared in 

justice court that same day. The State applied to the 

District Court for leave to file an information on August 

4, 1988, 20 days after the arrest, and filed the 

information on Au ust 5, 1988. 

DATED this /$gay of January, 1991.