No. 80-101 INTHE 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, MilesCity, Montana J. Dennis Corbin argued, Deputy County Attorney, Miles

City, Montana

Submitted: November 17, 1980 Decided: 

# ~~~30

## 1381Mr. 

### Justice John Conway Harrison delivered the Opinion of the Court. Defendant appeals 

### a Custer County DistrictCourt conviction, by a jury, of theftby accountability, forwhich she received a five-year sentence and was ordered tomake partial restitution. Three women enteredMann CreditJewelers inMiles

### City, Montana, on the afternoon of May 24, 

### 1979. The only employee inthe storeatthe time

### was a clerk, June Carranza. Carranza testified that the threewomen came into the store 

### atabout the same timebut then separated. Two of the women, who associated openly and were clearly together, asked the clerk to show them some rings in

### a displaycabinet. The third woman, identified by Carranza asdefendant Shirley Hart, browsed throughout the store. She asked to look atsome wineglasses, which Carranza handed toher. (Fingerprints on thewineglasses were later identified incourt as those of ShirleyChittenden, alsoknown asShirley Hart.) From the wineglasses, defendantwent tothe 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 inwere 

### downstairs. Hart

### told the clerk that she would need the box because she wanted tomail it. 

### Carranza testified that atthatpoint defendant engaged ina short, inaudible conversation with one of the two women, although from the time the three women entered the store, Hart had shown no signof associationwith the other two women. After thisbrief conversation, no further contactwas made between Hart and the other women. As 

### Carranza and defendant discussed the clock, the other women leftthe storeand looked through the storewindow atthe 

### itemsdisplayed.

### Carranza then went down into the basement to seach for the key to the clock and a box inwhich tomailit. 

### Once downstairs, Carranza heard the sounds of running feetfrom the store above and the sound of what seemed to be the bumping of glass. She abandoned her search for thekey and box and ran back upstairs to find defendant waiting atthe top of the stairs. Testimony given by the owner of the storeindicated that the area inwhich Hart was standing

### was the only area inthe entire storewhere the stairs to the basement could be watched. Hart was on themain floor of the storeduring the disturbance which brought June Carranza rushing back upstairs, butmade no mention toher of any irregularities. Carranza informed defendant that she could not find the box for the clock but thather boss would be back at 3:30 

### p.m. and he could certainly help her. Hart

### told the clerk that she had some shopping todo atPenney's and that shewould return. When defendant leftthe store it 

### was minutes before 3:20. 

### The theftwas reported at 3:25. 

### Carranza had informed Hart thather employer would be back within tenminutes, yet defendant chose to leave and not return. The clerk further testified thatdefendant hurried away after leaving the store. Carranza then went toclean the display cases and discovered that two display trays of rings

### weremissing from the frontwindow 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 fingerprintswere 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 todefendant's either prior or subsequent association with the other two

women seen inMann Credit Jewelers on May 24, 1979. The exact date of themeeting between these three women was not specifically established by any witness, but the State's witnesses placed allthree inthe home of Dixie Stridon or

near the date of the theft. ShirleyHart presents four issues for our review: 1. Did she receive 

### a fair trial? 2. Did the prosecution adduce sufficientevidence to prove the elements of the charge, thereby justifying the DistrictCourtt

### s decision to deny her motion for a directed verdict and the submission of the case tothe 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 trialand thather due process rights

### were violated by the conduct of the prosecutor and the errorsof the trial court. Defendant firstargues that the prosecution deliberately introduced the testimony of Maryona Johnson, knowing that the testimony was likely tobe perjured. To show the association of defendant and the two other women, the State called Johnson to testify that inlateMay orJune she saw Shirley Hart atDixie Strid's house with two women whom she did not know and towhom she was not introduced. Johnson was hostileand uncooperative throughout her testimony. She was evasive

asto the date of the encounter atStrid's house. Hart contends thatJohnson's testimony was more prejudicial than probative and served to deny her right to a fair trial. According to Hart, themanner inwhich Johnson's testimony was deliveredwas so confusing and evasive that 

### it gave the appearance that she was attempting toprotect

someone. Defendant submits that the prosecutor realized the prejudicial impact of the testimony, insofar as it implied thatJohnson 

### was trying toprotect defendant, and willfully continued his examination to strengthen that impression. This Court recognizes thatdue process requires that trialsbe conducted with "dignity, order, and decorum." Illinoisv. 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 fairand just; he must be interested injustice, 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 trialwhere theprosecutor's actions have deprived a defendant of a fairand impartial trial. Statev. Bain (1978), 176 Mont. 23, 575 P.2d 919. During his opening statement, the prosecutor told the jury thathe would prove that defendant

### was inMilesCity on

or near the date of the theft. He said he would establish that factby the testimony of two of her friends, one of which 

### wasMaryona Johnson. Atthe outsetJohnson was evasive and uncooperative. She admitted that she had seen defendant inthe company of two women 

### atStrid's house inMay 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 prosecutorialmisconduct 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 whichwere 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 aboutdefendant's physical condition during the spring of 1979. On cross-examination the prosecutor asked Karst whether she had previouslymade any statement that shewas 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-examinationwas 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 notwithin the authority of this Court to disturb the District Court's ruling unless a clear abuse of discretion is shown. State v. Gallaher

(1978),177Mont. 150, 580 P.2d 930, 35 St.Rep. 848. See also State v. Babella (1978),177Mont. 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 inMiles 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 credibilityhad been called into question, especially in view of the fact that Johnsonwas 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 toassociate an undesirable witness with one party or the other. œ his problem 

### is

### metby having the bench call the witness toobtain his or her knowledge of the relevant facts. Commission Comment toRule 614(a),Mont. R.Evid. Because the authority to callwitnesses 

### isexpressly granted the DistrictCourt by the rules of evidence, and thatauthority 

### is largely discretionary, 

### wewillnot disturb the court's decisionwithout a showing of abused discretion or manifest prejudice, neither of which arepresent here. Accord, United Statesv. Leslie (5thCir. 1976), 542 F.2d 285 (applyingRule 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, Hartargues, the prosecutor improperly commented on her refusal to testify during trial. The prosecutor argued to the jury: "The dates. I ask you toreject those dates. You know what the datewas. June [Carranza] knows what the datewas and the defendant knows what the datewas." Defendant asks this Court toconclude that this statement drew the factof her refusal to testifybefore the jury, thereby creating inthe minds of the jury that she was not testifying because of her guilt. 

### Wedo not find her argument persuasive. Read in the context of the prosecutor's entireclosing statement, 

### we do not believe that the reference to the dates isproperly characterized as a comment on defendant's failure to testify on her own behalf. Itmerely stressed that the factof the theft and the factof defendant's presence in the store on the day of the thefthad been proven. It

### is certainly improper for 

### a prosecutor to comment on a defen-

### dant's refusal to take the stand (Griffinv. 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 commentwas 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 principalswas flawed and insufficient to prove intent; (3)that the State failed to prove that the two

women seen atDixie Strid's house were indeed the principals in the crime; 

### (4)that the State failed to prove that Hart's fingerprintswere 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 innocentuntil proven guilty, and it is the burden of the State to prove the defendant's guilt beyond a reasonable doubt. State v. Proctor (1969),153Mont. 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 defendantby rendering a verdict on the facts presented. State v. Espelin (1937), 106 Mont. 231, 76P.2d 629. his Court on appeal 

### isguided by the sound and well-reasoned rule that the determination of disputed questions of fact and the credibility of witnesses 

### is the soleprovince of the jury. Statev. Bubnash (1963), 142 Mont. 377, 382 P.2d 830; Statev. Messerly (1952), 126 Mont. 62, 244 P.2d 1054; Statev. Robinson (1939), 109Mont. 322, 96 P.2d 265; Statev. Espelin, supra. With respect to the issue of intent, 

### we note that the jury 

### was instructed on every element of the 

### crimeand note with particularity the court's Instruction No. 

### 14: "An act isdone 'knowingly' if done voluntarily and intentionally, and not because of mistake or accident or other innocent

reason 

# .

# .." Reviewing the evidence most strongly infavor of the State, 

### we conclude that there was sufficient evidence for the jury to find that Shirley Hart intentionally committed the crime of theftby accountability. Both a fingerprint identification and an eyewitness identificationplaced Hart inMann Credit Jewelers. June Carranza testified that she

### was in the store atthe 

### same time as the women later arrested asprincipals in the theft. The evidence also shows thatHart didnot associatewith 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 alltogether on or near the date of the theft. The Stateproved that defendant sent the clerk into the basement for a key and a box for a clock thatdefendant intended tomail, thereby creating a situationwhere no one

was lefton themain floor of the store. The evidence showed that defendantpositioned herself in the only 

### area inthe entire storewhere the stairs to the basement could be watched; the only logical area inwhich a "lookout" would stand tomake sure that the thieves would have notice of the clerk's return from the basement. The evidence showed that defendant was inthe store during the theft. It further showed thatdefendant said nothing to the clerk of anything unusual happening even though the clerk, while inthe basement, heard the sounds of running feet and the bumping of glass. Carranza further testified that, even inview of the 

### fact thatdefendant appeared so interested in the purchase of the clock that she wanted 

### a box for 

### it, she leftwithout returning. Moreover, although Carranza's employer would be returning in a matter of minutes 

### atwhich 

### timethe 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 consistentwith the actions of a "lookout," whose part inthe theftwas toget the lone clerk off the floor of the storeand then watch the stairswhile her partners inthe crime committed the actual theft. We

### are not required todetermine Hart's guiltfrom the above facts. When sufficiency of the evidence 

### is assailed, it 

### is the province of thisCourt toview evidence which tends to support the verdict and not second-guess the jury

or concern ourselves with what we may have done asjurors. Statev. McKenzie (1976), 171Mont. 278, 557 ~.2d 1023, vacated 433 U.S. 905, 97 S.Ct. 2968, 53 ~.Ed,2d1089, on remand 581 P.2d 1205, vacated 99 S.Ct. 3094, cert. denied 99 S.Ct. 3103. See alsoMilesv. Commonwealth (1964), 205 Va. 462, 138 S.E.2d 22.The jury was fullyinstructed on 

### its duty and responsibility inevaluating the evidence of intent. It

### isreasonable toassume that there existed material questions of fact regarding defendant's intent to aid inthe theftwhich, in

our system of criminal justice, aredecided by twelve jurors. Finally, the decision to submit a case to the jury and deny

a motion for directed verdict lieswithin the ambit of the DistrictCourt's broad discretionarypowers and should not be disturbed by thisCourt on appeal inthe absence of a clear abuse of discretion. State

### v. Armstrong (1967), 149 Mont. 470, 428 P.2d 611. The 

### District Court did not abuse itsdiscretion inthis case. Hart argues that the Stateintroduced no evidence at 

### trial that the women seen atDixie 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, 

### isa failure toprove an element of the crime, i.e. association, and isreversible error. We disagree. Firstof 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 atyour house? A. Donna and Mary went tomy house with

### me from my bar. "Q. Do you know how Shirley Hart got there? A. She drove my car orErnest's car. "Q. Could you 

### tell

### mewho leftfirst, Shirley HartorMaryona Johnson? A. I don't remember for sure, Wehad several drinks." From this testimony and thatof Maryona Johnson, 

### we can find ample evidence to show that Shirley Hartand the two principals, Harris and Gunsch, were indeed associates, at

some point near the date of the theft. 

### Hart's argument onappeal, however, assigns error to the DistrictCourt's decision to take judicial notice of the pleadings against the two women, charging them with the actual theft atthe jewelry storeon May 24, 1979. In essence thismeans that while the Statemay have proven the association of the three women, it didnot prove that Harris and Gunsch 

### were the principal actors inthe 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 allfacts. "(b) Kinds of facts. A fact tobe judicially noticed must be one not subject toreasonable dispute inthat

### it 

### iseither (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 courtmay take judicial notice, whether requested or not.

"(d)When mandatory. A court shall take judi

### cial notice if requested by a party and supplied with the necessary information. 

### "(e)Opportunity tobe heard. A party 

### isentitled upon timely request to an opportunity to be heard asto the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made afterjudicial notice has been taken. 

### "(f)Time of taking notice. Judicial noticemay be taken 

### atany stageof the proceeding. "(g)Instructing the jury. In 

### a civil action or proceeding, the court shall instruct the jury to accept as conclusive any factjudicially noticed. In 

### a criminal case, the court shall instruct the jury that it may, but 

### isnot required to, accept as conclusive any factjudicially noticed." We can find no error inthe DistrictCourt's decision to take judicial notice of the factof the pleadings against Harris and Gunsch, especially in light of the court's instruc-tion on judicial notice. Weconsider initiallyjust what

was judicially noticed--the charges againstHarris and Gunsch. he factof the charges against these women was not "subject toreasonable dispute" and, moreover, the factof the charges was capable of "accurate and ready determination by resort to sourceswhose accuracy cannot be reasonably questionedv--namely, the District Court fileswhich contained the original copies of the charges against the two principals. It 

### is important tonote thatwe arediscussing the factof the charges here and not theirvalidity. Even if the taking of judicial notice in any way tainted the fairness of defendant's trial, any taintwould be eliminated by the instruction given to the jury. The District Court instructed the jury that 

### it was allowed to accept as conclusive any factjudicially noticed but that 

### it was not required todo so. See Rule 201(g)

## ,Mont.R.Evid. Having drawn the jury's attention to the pleadings which had been judicially noticed, the courtmade it clear that the court's decision was not binding on the jury and that they could disregard the factof the pleadings against Harris and Gunsch. Itwas then the jury's prerogative to accept or reject the judicially noticed facts asevidence, and 

### we will not disturb 

### its decision. Statev. McKenzie, supra; Statev. Stoddard (1966), 147Mont. 402, 

### 412 P.2d 827. As to Hart's assertion that there was insufficient proof that the fingerprints found atMann creditJewelers



### were hers, we find her argument more specious than real. The gistof 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 "capableof accurate and ready determination by resort to sourceswhose accuracy cannot be reasonably questioned," i.e., her birth certificate, marriage certificate, baptismal records, etc. We recognize that there are facts which, "frommotives 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 argumentmay 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 littlemerit to the claim that the judge should not have taken judicial notice of the factof defendant's aliases, thereby explaining the discrepancies between the name on the fingerprintcard and the current name of defendant.Finally, defendant claims generally that there 

### was insufficient evidence touphold 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 inconsistentwith a hypothesis of innocence. Mere presence atthe scene of the theft, or even failure tointerferewith a theftwhich someone 

### is aware 

### is taking place, 

### is insufficient tohold 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 actof the theft, or the actual taking, tobe found guilty. People v. Cole (1977), 50 Ill.App.3d 133, 

### 7 I11.Dec. 848, 365 N.E.2d 133. Although mere presence atthe

scene of the crime and the failure to disapprove or oppose the crime do notmake a person liable, these factorsmay be considered by the jury, along with other circumstances which may indicate whether the person in some way aided inthe 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 (Peoplev. Pendleton (1966), 75 Ill.App.2d 314, 221N.E.2d 112)r that the defendant diverted the attention of the clerk atthe exact 

### timethe theft took place (Snyder v. ~ommonwealth (1961), 202 Va. 1009, 121S.E.2d 452), and that the fiefen-dantmade no effort to apprise the clerk or the authorities of the factof the theftwhich had occurred within 

### a few feetof her (Peoplev. 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 thather 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. Inmaking 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 tobe present at

### all stages of the proceedings where fundamental fairness might be thwarted by her absence. See Statev. 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. Statev. Peters, supra. Hart argues, however, that the peremptory challenges stageof pretrial proceedings 

### isnot a purely legal exercise. She cites an Idaho decision as persuasive authority for the rule thatvoir direjury selectionprocess is a vital stage of the proceedings atwhich defendant's presence 

### isessential. 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 notproperly 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 InstructionNo. 9,regarding the credibility of witness identification testimony. Thatproposed instruction is set forthbelow: "Identificationtestimony is an expression of belief of impression by the witness. Itsvalue depends on the opportunity the witness had to observe the offender at the time of the offense and to make reliable identification later. "Inappraising 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 toobserve the offender 

### atthe timeof the offense 

### willbe affected by suchmatters ashow long or shorta time

### was available, how far or close the witness was, how good 

### were lighting conditions, whether the witness had occasion to 

### see orknow the person inthe past. 

### "(2) Are

### you satisfied that the identification made by thewitness subsequent to the offense was a product of his own recollection? You may take intoaccount 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 tohim for identification you should scrutinize the identificationwith great care. You may alsoconsider the length of 

### time thatelapsed between the occurrence of the crime and the next opportunity of the witness to 

### see the defendant, asa factor bearing on the reliability of the identification." The Stateobjected to this instructionbecause it 

### had been offered without any authority. On appeal defendant does not argue that the instruction isa correct statement of the law but only that shewas entitled to an instruction

on the credibilityof a witness's identificationof the offender. Two points sustainour finding that therewas no reversibleerror inthe refusal of the District

### Court togive Hart's jury Instruction No. 9. 

### Firstof all, the record shows that the jury was toldby the judge in Instruction No.

"You are the solejudges of the credibility of allthe witnesses who have testified inthis case, and of theweight tobe given their testimony. A 

### witness ispresumed to speak the truth; but this 

### presumption may be repelled by the manner inwhich he testifies, by the nature of his testimony, orby evidence affecting his character for truth, honesty or integrity, orhis motives, orby contradictory evidence; and in determining the weight tobe given to the testimony of any witness, you have a right to consider the appearance of eachwitness 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-meansof knowledge on 

## - - 

### the subjectupon which he testifies, together with all the other circumstances appearing in evidence on the trial." (Emphasisadded.) 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 notmandatory, 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 (9thCir. 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 notwithout 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 InstructionNo. 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-