No. 80-101 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

STATE OF MONTANA, 

Plaintiff and Respondent, 

SHIRLEY BUSBY HART a/k/a 

SHIRLEY ANNE CHITTENDEN, 

Defendant and Appellant. 

Appeal from: District Court of the Sixteenth Judicial District, 

In and for the County of Custer. 

Honorable Alfred B. Coate, Judge presiding. 

Counsel of Record: 

For Appellant: 

Morrison Law Offices, Missoula, Montana 

William Rossbach argued, Missoula, Montana 

For Respondent: 

Hon. Mike Greely,Attorney General, Helena, Montana 

Keith D. Haker, County Attorney, Miles City, Montana 

J. Dennis Corbin argued, Deputy County Attorney, Miles 

City, Montana 

Submitted: November 17, 1980 

Decided: ~~~ 3 0 1381 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendant appeals a Custer County District Court conviction, by a jury, of theft by accountability, for which she 

received a five-year sentence and was ordered to make partial 

restitution. 

Three women entered Mann Credit Jewelers in Miles City, 

Montana, on the afternoon of May 24, 1979. The only employee 

in the store at the time was a clerk, June Carranza. Carranza 

testified that the three women came into the store at about 

the same time but then separated. Two of the women, who 

associated openly and were clearly together, asked the clerk 

to show them some rings in a display cabinet. The third 

woman, identified by Carranza as defendant Shirley Hart, 

browsed throughout the store. She asked to look at some 

wineglasses, which Carranza handed to her. (Fingerprints on 

the wineglasses were later identified in court as those of 

Shirley Chittenden, also known as Shirley Hart.) From the 

wineglasses, defendant went to the cuckoo clocks and asked 

the clerk a series of questions about them, discovering that 

the key and a box for the clock she was interested in were 

downstairs. Hart told the clerk that she would need the box 

because she wanted to mail it. 

Carranza testified that at that point defendant engaged 

in a short, inaudible conversation with one of the two 

women, although from the time the three women entered the 

store, Hart had shown no sign of association with the other 

two women. After this brief conversation, no further 

contact was made between Hart and the other women. As 

Carranza and defendant discussed the clock, the other women 

left the store and looked through the store window at the 

items displayed. 
Carranza then went down into the basement to seach for 

the key to the clock and a box in which to mail it. Once 

downstairs, Carranza heard the sounds of running feet from 

the store above and the sound of what seemed to be the 

bumping of glass. She abandoned her search for the key and 

box and ran back upstairs to find defendant waiting at the 

top of the stairs. Testimony given by the owner of the 

store indicated that the area in which Hart was standing was 

the only area in the entire store where the stairs to the 

basement could be watched. Hart was on the main floor of 

the store during the disturbance which brought June Carranza 

rushing back upstairs, but made no mention to her of any 

irregularities. 

Carranza informed defendant that she could not find 

the box for the clock but that her boss would be back at 

3:30 p.m. and he could certainly help her. Hart told the 

clerk that she had some shopping to do at Penney's and that 

she would return. When defendant left the store it was 

minutes before 3:20. The theft was reported at 3:25. 

Carranza had informed Hart that her employer would be back 

within ten minutes, yet defendant chose to leave and not 

return. The clerk further testified that defendant hurried 

away after leaving the store. 

Carranza then went to clean the display cases and 

discovered that two display trays of rings were missing from 

the front window where the two women had just been examining 

the rings. When police arrived, she gave a description of 

the three women and described what had transpired. Latent 

fingerprints were taken from the display case and from the 

wineglasses. The prints on the display case were those of 

Donna Standley (a/k/a Donna Harris) and Mary Gunsch; those 
on the wineglasses were the fingerprints of Shirley Chittenden 

(a/k/a Shirley Hart), the defendant. 

Two of the State's witnesses testified to defendant's 

either prior or subsequent association with the other two 

women seen in Mann Credit Jewelers on May 24, 1979. The 

exact date of the meeting between these three women was not 

specifically established by any witness, but the State's 

witnesses placed all three in the home of Dixie Strid on or 

near the date of the theft. 

Shirley Hart presents four issues for our review: 

1. Did she receive a fair trial? 

2. Did the prosecution adduce sufficient evidence to 

prove the elements of the charge, thereby justifying the 

District Courtt s decision to deny her motion for a directed 

verdict and the submission of the case to the jury? 

3. Were her constitutional rights violated by her 

absence during the peremptory challenge stage of jury selection? 

4. Was the jury properly instructed? 

FAIR TRIAL 

Hart asserts that she did not receive a fair trial and 

that her due process rights were violated by the conduct of 

the prosecutor and the errors of the trial court. 

Defendant first argues that the prosecution deliberately 

introduced the testimony of Maryona Johnson, knowing that 

the testimony was likely to be perjured. To show the association of defendant and the two other women, the State called 

Johnson to testify that in late May or June she saw Shirley 

Hart at Dixie Strid's house with two women whom she did not 

know and to whom she was not introduced. Johnson was hostile 
and uncooperative throughout her testimony. She was evasive 

as to the date of the encounter at Strid's house. 

Hart contends that Johnson's testimony was more prejudicial than probative and served to deny her right to a fair 

trial. According to Hart, the manner in which Johnson's 

testimony was delivered was so confusing and evasive that it 

gave the appearance that she was attempting to protect 

someone. Defendant submits that the prosecutor realized the 

prejudicial impact of the testimony, insofar as it implied 

that Johnson was trying to protect defendant, and willfully 

continued his examination to strengthen that impression. 

This Court recognizes that due process requires that 

trials be conducted with "dignity, order, and decorum." 

Illinois v. Allen (1970), 397 U.S. 337, 343, 90 S.Ct. 1057, 

25 L.Ed.2d 353. The prosecutor has a responsibility to see 

that the prosecution of a criminal case is fair and just; he 

must be interested in justice, not just convictions. Berger 

v. United States (1935), 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 

1314. See also the Code of Professional Responsibility, EC 

7-13. Misconduct by the prosecutor may form the basis of a 

new trial where the prosecutor's actions have deprived a 

defendant of a fair and impartial trial. State v. Bain 

(1978), 176 Mont. 23, 575 P.2d 919. 

During his opening statement, the prosecutor told the 

jury that he would prove that defendant was in Miles City on 

or near the date of the theft. He said he would establish 

that fact by the testimony of two of her friends, one of 

which was Maryona Johnson. At the outset Johnson was evasive 

and uncooperative. She admitted that she had seen defendant 

in the company of two women at Strid's house in May or June 

of 1979. Defendant objected to the prosecutor's attempt to 
elicit a more cogent testimony on the grounds that the 

prosecutor was attempting to impeach his own witness. 

 he trial judge properly overruled the objection since 

under the rules of evidence an attorney can impeach any 

witness. Rule 607, Mont.R.Evid. A party does not vouch for 

his or her witnesses, except for expert and character witnesses, because a party's witnesses are not chosen but are 

those persons who happen to be present and see the events 

which give rise to the case. Commission Comment to Rule 607 

Mont.R.Evid. Under the facts as they exist before us, we 

can determine no prosecutorial misconduct or prejudicial 

error to defendant with respect to Johnson's testimony. 

Defendant claims secondly that the prosecutor deliberately introduced testimony to impeach a defense witness on 

matters which were known to him to be improper, incompetent, 

and collateral. In the trial court, Hart originally gave 

notice that she planned to call certain alibi witnesses. 

Hart's counsel withdrew that defense and moved the court for 

an order limiting the prosecutor from inquiring into any 

matters concerning that defense. The court ruled that the 

prosecutor would not be allowed to exceed the scope of 

direct examination. Defense called Sandy Karst to testify 

about defendant's physical condition during the spring of 

1979. On cross-examination the prosecutor asked Karst 

whether she had previously made any statement that she was 

with defendant at defendant's home in ~illings on May 24, 

1979. Over objection, Karst replied that she had. ~efendant deems this an improper attempt to impeach a witness and 

violative of the court's order to stay within the scope of 

direct examination. 
The State counters that defendant made her physical 

condition at the time of the theft an issue. On crossexamination, the prosecution attempted to determine if the 

witness's testimony related to defendant's condition on the 

day of the theft. To this extent the cross-examination was 

properly within the bounds of the court order. Since our 

decision in Kipp v. Silverman (1901), 25 Mont. 296, 64 P. 

884, we have consistently determined that cross-examination 

should be allowed an extended range rather than a limited 

one. Further, the latitudes of cross-examination are determined by the trial court. It is not within the authority of 

this Court to disturb the District Court's ruling unless a 

clear abuse of discretion is shown. State v. Gallaher 

(1978), 177 Mont. 150, 580 P.2d 930, 35 St.Rep. 848. See 

also State v. Babella (1978), 177 Mont. 275, 581 P.2d 838, 

35 St.Rep. 985. We respect the District Court's judgment in 

the conduct of the trial and do not find that its discretionary powers were abused. 

Defendant further argues on appeal that the court erred 

in its decision to call Bob Lucas, president of the First 

Security Bank in Miles City, to the stand to clarify the 

testimony of Maryona Johnson. Hart claims that Lucas' 

testimony was completely collateral and wrongfully prejudiced 

her case. The court, however, felt compelled to call Lucas 

to verify Johnson's testimony once her credibility had been 

called into question, especially in view of the fact that 

Johnson was a major witness for the State on the issue of 

association. 

Rule 614(a), Mont.R.Evid., allows the court to call 

witnesses and entitles all parties to examine those witnesses. 

The reason for this prerogative is the usual tendency to 
associate an undesirable witness with one party or the 

other. œ his problem is met by having the bench call the 

witness to obtain his or her knowledge of the relevant 

facts. Commission Comment to Rule 614(a), Mont. R.Evid. 

Because the authority to call witnesses is expressly granted 

the District Court by the rules of evidence, and that authority is largely discretionary, we will not disturb the 

court's decision without a showing of abused discretion or 

manifest prejudice, neither of which are present here. 

Accord, United States v. Leslie (5th Cir. 1976), 542 F.2d 

285 (applying Rule 614(a), Fed.R.Evid., which is identical 

to the Montana rule) . 

Defendant Hart concludes her appeal on the fair trial 

issue by directing our attention to the prosecutor's closing 

statement to the jury. In that statement, Hart argues, the 

prosecutor improperly commented on her refusal to testify 

during trial. The prosecutor argued to the jury: "The 

dates. I ask you to reject those dates. You know what the 

date was. June [Carranza] knows what the date was and the 

defendant knows what the date was." Defendant asks this 

Court to conclude that this statement drew the fact of her 

refusal to testify before the jury, thereby creating in the 

minds of the jury that she was not testifying because of her 

guilt. We do not find her argument persuasive. 

Read in the context of the prosecutor's entire closing 

statement, we do not believe that the reference to the dates 

is properly characterized as a comment on defendant's failure 

to testify on her own behalf. It merely stressed that the 

fact of the theft and the fact of defendant's presence in 

the store on the day of the theft had been proven. It is 

certainly improper for a prosecutor to comment on a defen- 
dant's refusal to take the stand (Griffin v. California 

(1965), 380 U.S. 609, 85 S-Ct. 1229, 14 L.Ed.2d 106), but 

this reference to defendant's knowledge is simply too 

remote an inference to be prejudicial error. Moreover, the 

District Court instructed the jury on defendant's constitutionally protected right to remain silent. Any possible 

error or taint caused by the prosecutor's comment was clearly 

made harmless by the proper instruction of the jury. 

SUFFICIENCY -- OF THE EVIDENCE 

Defendant's second contention is that the evidence 

adduced was insufficient to sustain her conviction of theft 

by accountability and that the District Court committed 

reversible error in submitting the case to the jury. In 

support of this point she argues (1) that the State failed 

to prove that she intended to promote or facilitate the 

theft; (2) that the State's proof of her association with 

the two principals was flawed and insufficient to prove 

intent; (3) that the State failed to prove that the two 

women seen at Dixie Strid's house were indeed the principals 

in the crime; (4) that the State failed to prove that Hart's 

fingerprints were the same as those found at the scene of 

the theft; and (5) that there is not sufficient evidence 

generally to uphold defendant's conviction. 

Every defendant in a criminal action is innocent until 

proven guilty, and it is the burden of the State to prove 

the defendant's guilt beyond a reasonable doubt. State v. 

Proctor (1969), 153 Mont. 90, 454 P.2d 616. But, it is the 

jury's purpose and duty to decide if the State has proved 

its case against the defendant by rendering a verdict on the 

facts presented. State v. Espelin (1937), 106 Mont. 231, 76 
P.2d 629. his Court on appeal is guided by the sound and 

well-reasoned rule that the determination of disputed 

questions of fact and the credibility of witnesses is the 

sole province of the jury. State v. Bubnash (1963), 142 

Mont. 377, 382 P.2d 830; State v. Messerly (1952), 126 Mont. 

62, 244 P.2d 1054; State v. Robinson (1939), 109 Mont. 322, 

96 P.2d 265; State v. Espelin, supra. 

With respect to the issue of intent, we note that the 

jury was instructed on every element of the crime and note 

with particularity the court's Instruction No. 14: "An act 

is done 'knowingly' if done voluntarily and intentionally, 

and not because of mistake or accident or other innocent 

reason . . ." Reviewing the evidence most strongly in favor 

of the State, we conclude that there was sufficient evidence 

for the jury to find that Shirley Hart intentionally committed the crime of theft by accountability. 

Both a fingerprint identification and an eyewitness 

identification placed Hart in Mann Credit Jewelers. June 

Carranza testified that she was in the store at the same 

time as the women later arrested as principals in the theft. 

The evidence also shows that Hart did not associate with the 

other women, except for the brief and inaudible exchange a 

few minutes before the theft. This lack of association is 

inconsistent with the testimony of Maryona Johnson and ~ixie 

Strid that the three women were all together on or near the 

date of the theft. 

The State proved that defendant sent the clerk into the 

basement for a key and a box for a clock that defendant 

intended to mail, thereby creating a situation where no one 

was left on the main floor of the store. The evidence 

showed that defendant positioned herself in the only area in 
the entire store where the stairs to the basement could be 

watched; the only logical area in which a "lookout" would 

stand to make sure that the thieves would have notice of the 

clerk's return from the basement. The evidence showed that 

defendant was in the store during the theft. It further 

showed that defendant said nothing to the clerk of anything 

unusual happening even though the clerk, while in the basement, heard the sounds of running feet and the bumping of 

glass. 

Carranza further testified that, even in view of the 

fact that defendant appeared so interested in the purchase 

of the clock that she wanted a box for it, she left without 

returning. Moreover, although Carranza's employer would be 

returning in a matter of minutes at which time the sale of 

the clock could be made, complete with box and key, defendant hurried away from the store and never returned. Hart's 

actions were not consistent with those of a genuinely interested shopper. They were consistent with the actions of a 

"lookout," whose part in the theft was to get the lone clerk 

off the floor of the store and then watch the stairs while 

her partners in the crime committed the actual theft. 

We are not required to determine Hart's guilt from the 

above facts. When sufficiency of the evidence is assailed, 

it is the province of this Court to view evidence which 

tends to support the verdict and not second-guess the jury 

or concern ourselves with what we may have done as jurors. 

State v. McKenzie (1976), 171 Mont. 278, 557 ~.2d 1023, 

vacated 433 U.S. 905, 97 S.Ct. 2968, 53 ~.Ed,2d 1089, on 

remand 581 P.2d 1205, vacated 99 S.Ct. 3094, cert. denied 99 

S.Ct. 3103. See also Miles v. Commonwealth (1964), 205 Va. 

462, 138 S.E.2d 22. 
The jury was fully instructed on its duty and responsibility in evaluating the evidence of intent. It is reasonable to assume that there existed material questions of fact 

regarding defendant's intent to aid in the theft which, in 

our system of criminal justice, are decided by twelve jurors. 

Finally, the decision to submit a case to the jury and deny 

a motion for directed verdict lies within the ambit of the 

District Court's broad discretionary powers and should not 

be disturbed by this Court on appeal in the absence of a 

clear abuse of discretion. State v. Armstrong (1967), 149 

Mont. 470, 428 P.2d 611. The District Court did not abuse 

its discretion in this case. 

Hart argues that the State introduced no evidence at 

trial that the women seen at Dixie Strid's house were Gunsch 

and Harris, the principals of the crime. The connective 

link, Hart argues, was the taking of judicial notice by the 

court of the State's pleadings against the two women. This, 

submits defendant, is a failure to prove an element of the 

crime, i.e. association, and is reversible error. We disagree. 

First of all, from the testimony of Dixie Strid: 

"Q. Now these four women, referring to Shirley 

Hart, Maryona Johnson and Mary Gunsch and Donna 

Harris, how did they arrive at your house? A. 

Donna and Mary went to my house with me from 

my bar. 

"Q. Do you know how Shirley Hart got there? 

A. She drove my car or Ernest's car. 

"Q. Could you tell me who left first, Shirley 

Hart or Maryona Johnson? A. I don't remember 

for sure, We had several drinks." 

From this testimony and that of Maryona Johnson, we can 

find ample evidence to show that Shirley Hart and the two 

principals, Harris and Gunsch, were indeed associates, at 

some point near the date of the theft. Hart's argument on 
appeal, however, assigns error to the District Court's 

decision to take judicial notice of the pleadings against 

the two women, charging them with the actual theft at the 

jewelry store on May 24, 1979. In essence this means that 

while the State may have proven the association of the three 

women, it did not prove that Harris and Gunsch were the 

principal actors in the theft. 

The taking of judicial notice is governed by the provisions of Rule 201, Mont.R.Evid.: 

"Judicial notice - of facts. 

"(a) Scope of rule. This rule governs judicial 

notice of all facts. 

"(b) Kinds of facts. A fact to be judicially 

noticed must be one not subject to reasonable 

dispute in that it is either (1) generally 

known within the territorial jurisdiction of 

the trial court or (2) capable of accurate and 

ready determination by resort to sources whose 

accuracy cannot be reasonably questioned. 

"(c) When discretionary. A court may take judicial notice, whether requested or not. 

" (d) When mandatory. A court shall take judicial notice if requested by a party and supplied 

with the necessary information. 

" (e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to 

be heard as to the propriety of taking judicial 

notice and the tenor of the matter noticed. In 

the absence of prior notification, the request 

may be made after judicial notice has been taken. 

" (f) Time of taking notice. Judicial notice may 

be taken at any stage of the proceeding. 

"(g) Instructing the jury. In a civil action or 

proceeding, the court shall instruct the jury to 

accept as conclusive any fact judicially noticed. 

In a criminal case, the court shall instruct the 

jury that it may, but is not required to, accept 

as conclusive any fact judicially noticed." 

We can find no error in the District Court's decision 

to take judicial notice of the fact of the pleadings against 

Harris and Gunsch, especially in light of the court's instruc- 
tion on judicial notice. We consider initially just what 

was judicially noticed--the charges against Harris and 

Gunsch. he fact of the charges against these women was not 

"subject to reasonable dispute" and, moreover, the fact of 

the charges was capable of "accurate and ready determination 

by resort to sources whose accuracy cannot be reasonably 

questionedv--namely, the District Court files which contained 

the original copies of the charges against the two principals. 

It is important to note that we are discussing the fact of 

the charges here and not their validity. 

Even if the taking of judicial notice in any way tainted 

the fairness of defendant's trial, any taint would be eliminated by the instruction given to the jury. The District 

Court instructed the jury that it was allowed to accept as 

conclusive any fact judicially noticed but that it was not 

required to do so. See Rule 201 (g) , Mont. R. Evid. Having 

drawn the jury's attention to the pleadings which had been 

judicially noticed, the court made it clear that the court's 

decision was not binding on the jury and that they could 

disregard the fact of the pleadings against Harris and 

Gunsch. It was then the jury's prerogative to accept or 

reject the judicially noticed facts as evidence, and we will 

not disturb its decision. State v. McKenzie, supra; State v. 

Stoddard (1966), 147 Mont. 402, 412 P.2d 827. 

As to Hart's assertion that there was insufficient 

proof that the fingerprints found at Mann credit Jewelers 

were hers, we find her argument more specious than real. 

The gist of the claim is that the ~istrict Court erred in 

taking judicial notice of defendant's aliases, thereby 

explaining why the name on the fingerprint card was "~hirley 

chittenden" while the fingerprints were those of defendant, 
"~hirley Hart." The State relied on the testimony of fingerprint expert, Herbert Bruning. He testified that the fingerprints removed from the glass in Mann Credit Jewelers were 

those of Shirley Busby Hart a/k/a Chittenden. 

When defendant married, she changed only her name, not 

her fingerprints. Referring again to Rule 201, Mont.R.Evid., 

we can determine that the fact of defendant's other used 

names is not subject to reasonable dispute in that they 

would be "capable of accurate and ready determination by 

resort to sources whose accuracy cannot be reasonably questioned," i.e., her birth certificate, marriage certificate, 

baptismal records, etc. We recognize that there are facts 

which, "from motives of policy, the law requires a court to 

judicially notice, or have knowledge of, but of which, in 

reality, it is ignorant." Holtz v. Babcock (1963), 143 

Mont. 341, 390 P.2d 801. When facts are not subject to 

reasonable dispute, such as in this case, the District Court 

saves time and money for all parties by taking judicial 

notice of those facts. See Commission Comment, Rule 201, 

Mont.R.Evid. 

Any merit this argument may have is further diminished 

when considered in the light of June Carranza's eyewitness 

identification of defendant as the third woman in the store. 

The fingerprints were taken from the wineglasses Carranza 

had shown defendant. When these two pieces of evidence are 

considered together, we can see very little merit to the 

claim that the judge should not have taken judicial notice 

of the fact of defendant's aliases, thereby explaining the 

discrepancies between the name on the fingerprint card and 

the current name of defendant. 
Finally, defendant claims generally that there was 

insufficient evidence to uphold her conviction. After a 

review of the evidence in favor of the verdict and a review 

of applicable law, we find fully sufficient evidence for the 

jury to decide that defendant's actions on May 24, 1979, 

were inconsistent with a hypothesis of innocence. 

Mere presence at the scene of the theft, or even failure 

to interfere with a theft which someone is aware is taking 

place, is insufficient to hold one accountable as a principal to the crime. People v. Durham (1969), 74 Cal.Rptr. 

262, 449 P.2d 198. Further, the actor need not take part in 

the overt act of the theft, or the actual taking, to be 

found guilty. People v. Cole (1977), 50 Ill.App.3d 133, 7 

I11.Dec. 848, 365 N.E.2d 133. Although mere presence at the 

scene of the crime and the failure to disapprove or oppose 

the crime do not make a person liable, these factors may be 

considered by the jury, along with other circumstances which 

may indicate whether the person in some way aided in the 

commission of the crime. See People v. Nugara (1968), 39 

I11.2d 482, 236 N.E.2d 693, cert. denied, 393 U.S. 925, 89 

S.Ct. 257, 21 L.Ed.2d 261; People v. Crutcher (1979), 72 

Ill.App.3d 239, 28 I11.Dec. 404, 390 N.E.2d 571. 

Where the evidence discloses, as it does in this case, 

that the defendant had an affiliation with the principals of 

the crime (People v. Cole, supra; People v. Crutcher, supra), 

that the defendant's conduct after the theft is compatible 

with the view that she was fleeing the scene (People v. 

Pendleton (1966), 75 Ill.App.2d 314, 221 N.E.2d 112)r that 

the defendant diverted the attention of the clerk at the 

exact time the theft took place (Snyder v. ~ommonwealth 

(1961), 202 Va. 1009, 121 S.E.2d 452), and that the fiefen- 
dant made no effort to apprise the clerk or the authorities 

of the fact of the theft which had occurred within a few 

feet of her (People v. Crutcher, supra), we become convinced 

that the jury had more than ample evidence of the defendant's 

guilt. The chain of evidence is a series of circumstances: 

presence, diversion, silence, association and flight. These 

elements of the State's proof present a formidable and 

unbroken chain of facts and events. The evidence was 

sufficient, and the case properly submitted to the jury. 

PRESENCE DURING PEREMPTORY CHALLENGE 

Hart claims that her absence during the final stage of 

jury selection violated her due process rights and confrontation rights under the constitution. Specifically, she 

contends that she had a constitutionally guaranteed right to 

be present during the peremptory challenges of the jury. 

In making this argument, Hart cites Snyder v. Massachusetts (1934), 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, 

for the proposition that a defendant has a right to be 

present at all stages of the proceedings where fundamental 

fairness might be thwarted by her absence. See State v. 

Peters (1965), 146 Mont. 188, 405 P.2d 642. This Court has 

held that a defendant's rights are not violated when the 

matters handled during his or her absence were purely legal. 

State v. Peters, supra. Hart argues, however, that the 

peremptory challenges stage of pretrial proceedings is not a 

purely legal exercise. She cites an Idaho decision as 

persuasive authority for the rule that voir dire jury selection process is a vital stage of the proceedings at which 

defendant's presence is essential. Idaho v. Carver (1972), 

94 Idaho 677, 496 P.2d 676. Finally, defendant also con- 
tends that her failure to object or protest her absence did 

not result in a waiver of the right. (See State v. Reed 

(1922), 65 Mont. 51, 210 P. 756, wherein we held that the 

right to be present at all crucial stages of the proceedings 

is a nonwaivable right.) 

We are of the opinion, however, that the act of peremptorily 

challenging the jury is a wholly legal exercise and defendant's 

absence from that stage of the proceedings is in no way 

violative of defendant's rights. Idaho v. Carver, supra, is 

not properly relied on by defendant. In that case, defendant 

was not present at any time during the selection of the jury 

that ultimately tried him. In this case, however, the 

record reflects that Hart was absent only during the peremptory challenges. Although defendant's presence may be 

crucial during the voir dire questioning of the jury, the 

act of the peremptory challenge of jurors is a pro - forma 

execution of the decisions formulated during questioning. 

The absence of defendant was not injurious to either her 

right of due process or her right of confrontation. 

JURY INSTRUCTION 

Defendant's final assignment of error is directed at 

the District Court's refusal of her proposed Instruction No. 

9, regarding the credibility of witness identification 

testimony. That proposed instruction is set forth below: 

"Identification testimony is an expression of 

belief of impression by the witness. Its value 

depends on the opportunity the witness had to 

observe the offender at the time of the offense 

and to make reliable identification later. 

"In appraising the identification testimony of 

a witness, you should consider the following: 

"(1) Are you convinced that the witness had a 

capacity and adequate opportunity to observe the 

offender? 
"Whether the witness had an adequate opportunity 

to observe the offender at the time of the offense will be affected by such matters as how 

long or short a time was available, how far or 

close the witness was, how good were lighting 

conditions, whether the witness had occasion to 

see or know the person in the past. 

" (2) Are you satisfied that the identification 

made by the witness subsequent to the offense 

was a product of his own recollection? You may 

take into account both the strength of the identification, and the circumstances under which 

the identification was made. 

"If the identification by the witness may have 

been influenced by circumstances under which the 

defendant was presented to him for identification 

you should scrutinize the identification with 

great care. You may also consider the length of 

time that elapsed between the occurrence of the 

crime and the next opportunity of the witness 

to see the defendant, as a factor bearing on the 

reliability of the identification." 

The State objected to this instruction because it had 

been offered without any authority. On appeal defendant 

does not argue that the instruction is a correct statement 

of the law but only that she was entitled to an instruction 

on the credibility of a witness's identification of the 

of fender. 

Two points sustain our finding that there was no reversible error in the refusal of the District Court to give 

Hart's jury Instruction No. 9. First of all, the record 

shows that the jury was told by the judge in Instruction No. 

"You are the sole judges of the credibility of 

all the witnesses who have testified in this 

case, and of the weight to be given their testimony. A witness is presumed to speak the truth; 

but this presumption may be repelled by the 

manner in which he testifies, by the nature of 

his testimony, or by evidence affecting his character for truth, honesty or integrity, or his 

motives, or by contradictory evidence; and in 

determining the weight to be given to the testimony of any witness, you have a right to consider 

the appearance of each witness on the stand, his 

manner of testifying, his apparent candor or lack 

of candor, his apparent fairness or lack of fair- 
ness, his apparent intelligence or lack of intelligence, his knowledge - and-means of knowledge - 

on 

the subject upon which he testifies, together 

with all the other circumstances appearing in 

evidence on the trial." (Emphasis added.) 

We are persuaded that the jury was properly and adequately instructed on the credibility of all witnesses, 

including that of the eyewitness, June Carranza. 

We also feel that the circumstances do not dictate the 

giving of Hart's proposed instruction. Such an instruction 

may be proper, if not mandatory, in certain cases. The 

necessity of this type of instruction is especially clear 

when there is only a single eyewitness's unsubstantiated 

testimony which identifies the offender. United States v. 

Masterson (9th Cir. 1976), 529 F.2d 30. But in the case 

before us, June Carranza's testimony was corroborated by the 

presence of defendant's fingerprints on the wineglasses. 

Although the fingerprints are not without dispute, we find 

that even given that dispute as valid, they are sufficiently 

supportive of Carranza's testimony to amply justify the 

refusal of defendant's proposed Instruction No. 9. 

We conclude, therefore, that the conviction of Shirley 

Hart should be affirmed. 

$his cause was submitted prior to January 5, 1981. 

V 

Mr. Justice Daniel J. Shea will file a separate opinion later. 

-20-