State v. Miner

• Decision Date: 09 February 1976
• Docket Number: No. 13085,13085
• Citation: 546 P.2d 252,33 St.Rep. 201,169 Mont. 260
• Parties: STATE of Montana, Plaintiff and Respondent, v. John Michael MINER, Defendant and Appellant.
• Court: Montana Supreme Court

Page 252

546 P.2d 252

169 Mont. 260

STATE of Montana, Plaintiff and Respondent, v. John Michael MINER, Defendant and Appellant.

No. 13085.

Supreme Court of Montana.

Submitted Dec. 10, 1975.

Decided Feb. 9, 1976.

James A. Tulley, argued, Big Timber, O. J. Paulson, Big Timber, for defendant and appellant.

Robert L. Woodahl, Atty. Gen., Helena, Thomas A. Budewitz, argued, Asst. Atty., Gen., Helena, Kenneth R. Olson, County Atty., Gib Timber, for plaintiff and respondent.

DALY, Justice.

This is an appeal by defendant John Michael Miner from a judgment entered in the district court, Sweet Grass County, Hon. C. B. Sande, presiding. The judgment followed a jury verdict finding Miner guilty of burglary. Miner appeals.

On the night of September 7, 1974, Ullman Lumber Company in Big Timber, Montana was burglarized. Taken in the burglary were approximately $70 in cash and $1100 in checks written to Ullman Lumber Company. The testimony of witnesses indicates this chronology of events: Immediately before the burglary, Sheri Stief and Eileen Brannin, while 'cruising the drag', spotted a man they later identified as defendant walking back and forth in front of Ullman Lumber Company.

Later four teenagers who were conversing in a car directly across the street from the lumber company saw someone inside the store whereupon one of the teenagers, Tim Rostad, left to call the police. While Rostad was absent, the other three teenagers continued to watch the store window, and one of the teenagers, Lila Fuller, saw someone inside the store. Later she identified defendant as the person inside the store.

At about this time, these same teenagers noted someone running through the store and decided to investigate more closely. Driving past the store, they saw two men run through the yard and jump the back fence. Later these teenagers while driving in the vicinity, saw a man walking down a side street, whom they later identified at trial as defendant.

Meanwhile, Tim Rostad had succeeded in alerting the police. Deputy Brannin while conducting a surveillance of the immediate vicinity, spotted a man walking down a side street that he later identified as defendant. After finishing his general surveillance, Deputy Brannin returned to Ullman's where Tim Rostad informed him that a man matching the description of the person he had seen in Ullman's was in a telephone booth nearby. Upon being confronted by Deputy Brannin, this man identified himself as Gary Eugene Radi. At this time, Tim Rostad also identified Radi as the man he had seen inside the Ullman Lumber Company earlier.

A few days later the Sweet Grass County sheriff requested photographs of Radi and his known associates from the Billings police department. From the set of six photos received, witnesses thought the one photo of defendant might have been the man they saw, but they were not sure. Deputy Brannin did identify defendant as the man he had seen from this first set.

On September 11, 1974, a new set of photographs was received. This set contained two pictures each of defendant and Radi and one of another suspect. These photos showed defendant with longer hair and glasses, similar to his appearance at the time of arrest. Upon viewing the two sets of photos, along with miscellaneous photos pulled from the office files, several witnesses made positive identification. Eileen Brannin and Sheri Stief identified defendant as the man they saw walking back and forth outside the lumber company. Lila Fuller identified defendant as the man she observed inside the store. Tim Rostad identified Radi as the man he saw inside the store and later in the near vicinity.

Based upon the above facts Miner was charged with one count of burglary and one count of theft on September 12, 1974. In due course, motions were made to dismiss the Information and to suppress photo identifications made of defendant. After a hearing, the district court denied both motions, and the case proceeded to trial.

The jury returned a verdict of guilty on the count of burglary. Miner was sentenced to ten years in prison. It is from this judgment and sentence that defendant now appeals.

Three issues are presented for review:

1) Whether or not the Information filed against defendant was supported by probable cause?

2) Whether or not the trial court erred in denying defendant's motion to suppress photo identifications made of defendant?

3) Whether or not the trial court erred in giving its Instruction No. 21 as to defendant's accountability for the acts of another?

In the first issue defendant contends the Information filed was not supported by probable cause. We find no merit in this contention. Section 95-1301(a), R.C.M.1947, allows the filing of an Information if after review of the evidence supporting the affidavit the court is satisfied that there is probable cause to believe that an offense has been committed by defendant. The definition of probable cause to arrest is discussed extensively in State ex rel. Pinsoneault v. District Court, 145 Mont. 233, 240, 400 P.2d 269. There the Court held that the expression 'probable cause', as used in the federal Constitution, referring to the issuance of warrants, means that there is a probability that a crime has been committed by the person named in the warrant.

In determining the probability that defendant committed an offense, the guidelines suggested in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, have been noted with approval by this Court. See: State v. Troglia, 157 Mont. 22, 482 P.2d 143. Generally those guidelines state that a mere probability is sufficient for probable cause, a prima facie showing not being necessary. Also affidavits of probable cause are subject to much less rigorous standards than the admissibility of evidence. Finally, judges reviewing such affidavits should use their common sense in determining whether probable cause exists.

With these guidelines in mind, we review the pertinent facts: Three witnesses positively identified defendant as either in the store, walking suspiciously in front of the store immediately prior to the burglary, or walking in the vicinity of the store immediately after the burglary. Deputy Brannin also identified defendant as being in the vicinity immediately after the burglary. Several witnesses saw two men inside the lumber yard with one of the men matching the description of defendant. Gary Radi, a known associate of defendant, was seen in the store and later stopped and questioned in the immediate vicinity.

Of all this evidence going to probable cause, the only point of confusion seems to be as to who was seen inside the store. Defendant contends since three witnesses did not agree with Lila Fuller's identification of defendant as being in the store, there is a breakdown in probable cause. First, probable cause is determined on the basis of probability not percentages. If one witness could positively identify defendant as being in the store this would point to the probability he was indeed involved in the burglary-this is what probable cause is all about. Second, any one piece of evidence is not determinative of probable cause, rather all evidence must be examined before any determination can be made; and upon such examination there are ample facts to support a finding of probable cause to arrest.

Since the facts show defendant present at the time and location of the burglary, his intent is to be determined from the facts and circumstances presented, a jury question. State v. Cooper, 158 Mont. 102, 489 P.2d 99.

In the second issue defendant contends the trial court erred in denying defendant's motion to suppress photo identifications of defendant....