No. 91-469 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsKIM LAVAR COURCHENE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Richland, 

The Honorable Richard Phillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Wendy Holton, Helena, Montana 

For Respondent: 

Michael Wellenstein, Asst. Attorney General, Helena, 

Montana; Gerald Navratil, Dawson County Attorney, 

Glendive, Montana 

Submitted on Briefs: September 10, 1992 

Decided: December 8. 1992 

~. -~ . .- 

'Clerk 
~ustice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from a jury verdict and sentence in the 

Seventh Judicial District Court, Richland County, finding defendant 

guilty of felony theft and sentencing him to four years suspended 

sentence in the Montana State Prison and assigning restitution in 

the amount of $980.00. We affirm. 

We address the following issues on appeal: 

1. Did the District Court abuse its discretion by accepting into 

evidence Kim Courchenels mug shot as well as testimony identifying 

it as such? 

2. Did the District Court err in permitting a conversation in 

front of the jury concerning "other actsu? 

3. Did the District Court abuse its discretion in permitting 

evidence of a photo line-up when the State used only a single 

photograph of Courchene for identification purposes? 

4. Did the District Court err in failing to instruct the jury on 

the element of voluntariness? 

5. Did the District Court err in instructing the jury on 

alternative definitions of the term "deception" ? 

6. Can defendant reserve his claim of ineffective assistance of 

counsel until after this appeal? 

This case involves the theft of a video camcorder rented from 

the Path store in Sidney, Montana on March 20 or 21, 1990. At that 

time, a young man came into the Path store and sought to rent the 

camcorder for the purposes of video-taping a wedding. Since owner 
Tim Knaff did not know the man, he asked for identification. The 

customer provided an expired Utah driver's license issued to Kim 

Courchene, and later signed the invoice with that name. The 

address listed by the customer was a Sidney address which 

subsequently proved to be false. Following the rental of the 

camcorder, a store employee saw the customer get into a dark green 

Dodge or Ford four-door car with North Dakota license plates. The 

camcorder was never returned to the store. 

subsequent investigation revealed that a Kim Courchene lived 

in North Dakota, at one time with his mother Doris. No vehicle 

such as that described by the store employee was owned by either 

Courchene. Further investigation revealed that Kim Courchene had 

been issued a Utah driver's license in 1981; this expired in 1985. 

A duplicate of this driver's license was issued in 1982 because the 

original had been lost. 

On April 19, 1990, Kim Courchene (Courchene) was charged by 

information in Richland County with the offense of theft. He was 

tried by a jury on May 5 and 6, 1991, and was found guilty of the 

offense charged. On July 22, 1991, the judgment and sentence were 

entered. Courchene was sentenced to a prison term of four years 

which were suspended. Courchene is required to comply with 

standard conditions of probation and in addition, to perform 100 

hours of community service and pay restitution in the amount of 

$980 within a period of 18 months. 

Courchene filed a timely notice of appeal and a motion for 

stay of execution of judgment and a motion to withdraw as attorney 
on July 25, 1991. On August 5, 1991, the motion for stay was 

granted. The motion to withdraw as attorney was renewed in this 

Court on September 26, 1991, and the motion was remanded to the 

District Court for a ruling on October 2, 1991. On October 21, 

1991, the District Court appointed new counsel for the purpose of 

pursuing this appeal. 

Did the District Court abuse its discretion by accepting into 

evidence Kim Courchene's mug shot as well as testimony identifying 

it as such? 

Courchene contends that introduction into evidence of his mug 

shot was prejudicial to his case as it indicated to the jury that 

he had a past criminal record. Further, according to Courchene, 

this error is so egregious that his conviction should be reversed 

by this Court. The State argues that Courchene failed to object to 

this at trial and cannot now raise the issue on appeal. 

Specific objections must be made to portions of testimony 

deemed inappropriate. State v. Anderson (L984), 211 Mont. 272, 686 

P.2d 193. Courchene did not make a specific objection at trial to 

any testimony revolving around mug shots and his subsequent 

prejudice; he is barred from objecting now. Section 46-20-104, 

MCA, procedurally bars review of alleged errors not objected to at 

trial: 

(2) Upon appeal from a judgment, the court may review 

the verdict or decision and any alleged error objected to 

which involves the merits or necessarily affects the 

judgment: Failure to make a timely objection during 

trial constitutes a waiver of the objection except as 
provided in 46-20-701(2). 

Section 46-20-701(2), MCA, states that unless an objection is made 

"[alny error, defect, irregularity, or variance which does not 

affect substantial rights shall be disregarded." Courchene has not 

proved that his substantial rights have been prejudiced. Nor did 

Courchene argue this at trial. Because he did not object at trial, 

Courchene has waived his right to an appellate review. State v. 

Kao (1990), 245 Mont. 263, 800 P.2d 714. 

We conclude that review of the mug shots is not allowed under 

the foregoing statute and authority. Nonetheless we review the 

evidence with regard to the mug shots in order to explain that even 

under a "plain error" theory, the facts in this case cannot warrant 

a reversal. The plain error doctrine which we invoke to review 

this evidence provides a remedy to prevent manifest injustice, even 

when a proper objection has not been made to the trial court. 

State v. Voegele (1990), 243 Mont. 222, 793 P.2d 832. 

It is a general rule that "mug shots" of an accused will be 

allowed into evidence, if they are not unduly prejudicial and have 

substantial independent probative value. 23 C.J.S., Criminal Law 

5 1042 (1989). This type of photograph is admissible when 

identification of the accused as the criminal perpetrator is 

involved. Williams v. State (Ind. 1985), 480 N.E.2d 953. Because 

a police photograph or "mug shot" of defendant may be indicative of 

a prior criminal history, its admission at trial may be prejud 

to him. People v. Thatcher (Colo. 1981), 638 P.2d 760. 

These types of photographs are not per se inadmissable 

icial 

; the 
court has great discretion in using them for identification 

purposes, but only if the prosecution has disguised the photos by 

removing any law enforcement information that may be on the photo. 

23 C.J.S., Criminal Law 5 1043 (1989). Here, the police had taped 

over any justice system information that was printed on the card. 

The mug shots of Courchene that were used were used for 

identification purposes. Even so, at trial neither eye-witness 

could absolutely identify Courchene in person from the photos. 

Despite this lack of identification, Courchene argues that the 

use of the pictures prejudiced him to the jury. Courchene relies 

on a leading case in this area, U.S. v. Harrington (2d Cir. 1973), 

490 F.2d 487. Courchene argues Harrinqton's applicability and 

precedence for reversing his conviction. The reversal of the 

Harrinqton Court was based in part upon the fact that the defendant 

did not take the stand at trial. 

Such was also the case in Barnes v. U.S. (D.C. App. 1966), 365 

F.2d 509, another case relied upon by Courchene. In associating 

mug shots of the defendant with past criminal acts, the Barnes 

Court stated: 

It is well-settled law that the criminal record of a 

defendant may not be introduced into evidence at trial 

unless the defendant takes the stand . . . . 

Barnes, 365 F.2d at 510. 

Courchene took the stand. He testified to being "nailed for 

driving under the influence." At another time he testified that 

police "hauled me to jail and they took my license from me." The 

testimony was provided on direct examination on questioning by his 
own counsel. Defendant Courchene's own testimony established that 

he had engaged in conduct which could have resulted in mug shots 

being taken of him. The facts here significantly differ from both 

Harrinqton and Barnes. 

Further, Courchene's entire defense relied on the fact that he 

was not the person who rented the camcorder. He based this on the 

fact that he had lost his driver's license in 1982 and had to have 

it replaced. His testimony insinuated that it must have been the 

person who found his lost license who stole the camcorder. 

However, his testimony also revealed that the lost license had his 

photo on it, the replacement did not. The testimony of the store 

owner indicated that the driver's license that he saw did not have 

a photo. When asked about this, Courchene had no answer. 

We conclude that the failure on the part of Courchene to 

object to the mug shot testimony waived appellate review under the 

statutes and case law of Montana. We further conclude that even 

when a "plain error" theory is applied, we cannot reverse 

Courchene's conviction because he has not proven that he was 

prejudiced by use of the mug shots. 

We hold that the District Court did not abuse its discretion 

by accepting Courchene's mug shots into evidence. 

Did the District Court err in permitting a conversation in front of 

the jury concerning "other acts"? 

During testimony by Sidney police Officer David Schettine 

(Schettine), he stated that he had shown a photographic line-up to 
a person employed by the Mini-Mart in Sidney. Courchene's counsel 

objected to this on the basis of a Just violation, and the court 

sustained it. State v. Just (1979), 184 Mont. 262, 602 P.2d 957. 

The State went on to argue to the court that it should be permitted 

to use this information. A discussion as to the appropriateness of 

Just to the questioning then took place in front of the jury. 

Courchene contends that the jury was left to speculate as to 

the nature and quality of the other bad acts which the State was 

attempting to admit into evidence. The State contends that 

Courchene did not object at trial and that this Court should not 

entertain this issue. 

We conclude that in the absence of a proper objection in the 

course of trial, this issue should not be considered by this Court. 

State v. Howie (1987), 228 Mont. 497, 744 P.2d 156. 

We hold that this issue will not be ruled upon because it was 

not properly raised at trial. 

111. 

Did the District Court abuse its discretion in permitting evidence 

of a photo line-up when the State used only a single photograph of 

Courchene for identification purposes, thus prejudicing him at 

trial? 

Courchene argues that the evidence established that two of the 

State's witnesses were shown only a single picture of him for 

identification purposes. He, therefore, argues that the conviction 

must be reversed. The record does not support his contentions. 

The record establishes that officer Schettine made a 
photographic line-up containing four pictures, one of which was 

that of Courchene. Officer Schettine testified that he showed a 

four-photograph line-up to both Mr. Knaff and Ms. VanHook, and that 

both of them identified Courchene from the line-up. As a result 

the record contains positive testimony by Officer schettine 

establishing the use of a four-photograph line-up rather than a 

single photo. 

The record also shows that Mr. Knaff's testimony regarding the 

identification was ambivalent; he was not certain how many 

photographs he had seen. Ms. VanHook testified that she was shown 

only one photograph, directly contradicting Officer Schettine. 

We conclude that the record is inconclusive as to which 

identification method was used. The result is that an issue of 

fact as to what transpired was raised and was determined by the 

jury. 

We hold that the District Court did not abuse its discretion 

in permitting evidence of a photo line-up. 

IV. 

Did the District Court err in failing to instruct the jury on the 

element of voluntariness? 

Courchene contends that 5 45-2-202, MCA, provides that a 

material element of every offense is a voluntary act and the 

District Court has the responsibility to instruct the jury on all 

elements of a crime. Courchene admits that he did not submit an 

instruction on voluntariness to the court; neither did the State. 

Again, Courchene contends that this Court should invoke the plain 
error doctrine to reverse his conviction because the District Court 

should have instructed the jury. The State argues that Courchene 

did not object to this at trial and cannot now raise the issue to 

this Court. 

We will not predicate error upon failure to give an 

instruction when the party alleging the error failed to offer the 

instruction. State v. Evans (1991), 247 Mont. 218, 806 P.2d 512. 

The record reveals that Courchene did not submit an instruction on 

voluntariness to the District Court. Further, Courchene did not 

object to the lack of instruction at the District Court. 

Therefore, we decline to consider this issue because it is not 

properly before the Court. 

v. 

Did the District Court err in instructing the jury on alternative 

definitions of the term "deception" ? 

Courchene was charged with theft by deception. Courchene 

argues that the District Court instructed the jury on the five 

different meanings of deception found in 5 45-2-101(17), MCA. 

According to Courchene, only one of these definitions makes any 

sense and the use of all five prejudiced him by confusing the jury. 

The State argues that Courchene not only did not object at the 

trial court level, but that the instruction was his own 

instruction. 

The record reveals that it was defendant Courchene who 

submitted the instruction containing the five meanings of 

deception. We conclude that defendant may not now object to the 
instruction which he specifically requested. 

VI. 

Can defendant reserve his claim of ineffective assistance of 

counsel until after this appeal? 

Courchene seeks to reserve his claim of ineffective assistance 

of counsel until after the direct appeal. He cites two prior 

Orders of this Court as precedent for the filing of a petition for 

post-conviction relief when a claim of ineffective assistance of 

counsel is filed. The State argues that a claim of ineffective 

assistance of counsel must be made on direct appeal if the basis 

for the claim is rooted in the record. According to the State, 

when the court is required to go beyond the record for resolution 

of the issue, then a petition for post-conviction relief is 

appropriate. 

Our statutes mandate that when a petitioner has been afforded 

a direct appeal of the petitioner's conviction, grounds for relief 

which could have been raised during the appeal, may not be raised 

in a petition for post-conviction relief. Section 46-21-105, MCA. 

Courchene raises no specific issues nor states any specific claims 

as to the basis of his claim for ineffective assistance of counsel. 

We conclude that the defendant may not reserve his claim of 

ineffective assistance of counsel with regard to any matters which 

appear in the trial record. We do point out that if defendant has 

claims of ineffective assistance of counsel which encompass matters 

outside the record, it may be that a petition for post-conviction 

relief is appropriate. State v. Black (1990), 245 Mont. 39, 798 
P.2d 530; U.S v. Birges (9th Cir. 1984), 723 F.2d 666. 

Affirmed . 

We Concur: 

Justices - 

Justice R. C. McDonough did not participate in this matter. 
December 8, 1992 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Wendy L. Holton 

Attorney at Law 

44 W. Sixth Ave. 

Helena, MT 59601 

HON. MARC RACICOT, Attorney General 

Micheal Wellenstein, Assistant 

Justice Building 

Helena, MT 59620 

Gerald Navratil 

Dawson County Attorney 

P. 0. Box 1307 

Glendive, MT 59330-1307 

ED SMITH 

CLERK OF THE SUPREME COURT 

BY: