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

## 181990

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APPEAL FROM: District Court of the Twentieth Judicial District, In and for the County of Sanders, The Honorable C.B. McNeil, Judgepresiding.

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. Defendantwas 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 theDistrictCourt err indenying 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 theDistrictCourt err indenying defendant'smotion for a new trial? On July 12, 1988,defendant, Scott Sor-Lokken,and his family

were travelingeastbound on StateHighway 135 indefendant'ssedan. 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 topass it on thetwo-lanehighway. Defendant refused to allow Penny to go around him or to return to her place behind him and held Penny in theoncoming traffic lane. As the twocars 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 inher rearviewmirror and noticed a motorcycle for the first time. Monty McIlhargey

(Monty)was driving themotorcycle and had witnessed the incident between Penny and defendant. He decided that the safest course of actionwas 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. Thebottles struckMonty andhismotorcycle. Penny witnessed these events through her rear-viewmirror. At thenext 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'spersonalized 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 defendantwith two countsof 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 thatdefendant 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 Constitutionwhich states: (2) Justice courts shall have such original jurisdiction asmay 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 inMontana. The State cites Statev. Snider (1975), 168 Mont. 220, 225, 541 P.2d 1204, 1207, for the rule that a justice courtdoes notviolate the original trial jurisdictionof district court when it exercises jurisdiction in the related nontrial proceedings of a felonyprosecution. This Court stated: Theuse of theterm "trialjurisdiction"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 themajor 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 

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. . every county has one or more justices of the peace.Under these knowncircumstances, the legislature willbe presumed tohave intended to grant justicesof thepeace the rightto issue search warrants in the absence of any express limitation. Snider, 541P.2d at 225-226. In Snider, thedefendantwas charged with the felonyof illegal possession of dangerousdrugs. Seealso 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 correctlydenied defendant'smotion todismiss 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 Attorneywasnot 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 theprobable cause forhis arrest must be reduced towriting. 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 oathwhen 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 complaintwhen itwas 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 leaveto filean information. Iturges thatadistrict court's findingofprobable causemay be challenged in a subsequentmotion to dismiss. Finally, the Statemaintains 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, 1988,20daysafter the arrest,and filed the information

onAugust 5, 1988. Section 46-6-201,MCA, provides that an arrestwarrantmay 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 complainantunder oath todetermine if there isprobable cause for the arrest. Article 11, Section 11 of the 1972 Montana Constitution requires probable cause supported by oath oraffirmation reduced to writing. TheSupreme Courtof theUnited Stateshasheld 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 licenseplate. Even if thedefendant's arresthad 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 forpermission to filean information. ThisCourthasheld 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, requiresthepreliminary examination to be held within a reasonable time unless the district court grants leave to file an information. Here, the court made an independent determinationof probable cause and granted the State leave to file an information. The State continued to investigate and prepare the caseby conducting a photo array and examining the crime scene. Defendant remained incarcerated during that time.When a defendant remains incarceratedbecausehe cannotmeet bail, his incarceration is not a factor in calculating reasonable time. Farnsworth, 783 P.2d at 1368. We hold that there was a proper determinationofprobable causeand no rightsof thedefendantwere 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 thetotality 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 themere fact thatdefendantwas theonlyman in thephotographic lineup that was not wearing a shirt. Examination of the photographs does not indicate that factwas 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, thewitnesstdegree 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.) Statev. Hiqley, 621 P.2d at 1049. Both witnesses here were victims who viewed the defendant during the crime. Bothwitnesses separately positively identified the defendant both from the photographic array and in court. The identification with thephoto array tookplace only two weeks after the crime. We hold that thephoto identification conducted by the Statewas 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 thetestimonyof DavidGalarneau overhis objection. Mr. Galarneau is the automobile mechanic who worked on the alleged vehicle usedin thecrime,and testified as to its condition as it existedprior 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. 

### Inever got that one. Ihad one before 

### Iwas 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 Statemaintains 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. Thepresumption that awitness speaks the truth and is credible can be rebuttedby evidence of thewitness' character for truth, honesty, and integrity, but evidence bearing on issues of witnesst credibility,inordertobe admissible, must bemore probative than prejudicial. Statev. Hammer (1988), 233 Mont. 101, 759 P.2d 979. TheDistrict Courtmust balanceprejudiceandprobativevalue. Evidence of Mr. Galarneau's failure to answer his subpoena by appearing theprevious day does not tend tomake any fact at issue in this action more or less probable than that fact would be without the evidence. Thus,defendant has failed to showany 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 failureto filea brief within fivedays subjects themoving party to a summary ruling. The court denied defendant'smotion. Defendant argues that a denial of his motion based on Rule 2

was erroneous because Rule 2 does not apply to criminal cases.The Statecontendsthat thedecision todeny themotion 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. DefendantfailedtoprovidetheDistrictCourtwith sufficient informationto supporthismotion fora new trial. We conclude the District Court did not abuse its discretion. We hold that the District Courtdid not err in denying defendant'smotion for a new trial. Affirmed.IN THE SUPREME COURT OF THE STATE OF MONTANA No. 89-475

STATE OF MONTANA, Plaintiff and Respondent,

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### 1 1 ORDER

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\ 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 theunderlying facts relating toprobable cause. Itargues that the fact that the county attorneywas not under oath before reciting the fats supporting probable cause doesnot 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 defendantreceived an independent judicialdetermination of probable cause within a reasonable time. The complaint was filed on July 13, 1988. Sanders County deputiesarresteddefendanttwo dayslater,anddefendant appeared in justice court that same day. The State applied to the District Court for leave to file an information onAugust 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 timeof the incident,sworeto thecomplaint 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 DistrictCourt forleaveto filean informationonAugust 4, 1988, 20 days after the arrest, and filed the information onAu ust 5, 1988. DATED this /$gay of January, 1991.