State v. Schoffner

• Decision Date: 16 May 1991
• Docket Number: No. 89-386,89-386
• Citation: State v. Schoffner, 811 P.2d 548, 248 Mont. 260, 48 St.Rep. 424 (Mont. 1991)
• Parties: STATE of Montana, Plaintiff and Respondent, v. Norman E. SCHOFFNER, Defendant and Appellant.
• Court: Montana Supreme Court

Page 548

811 P.2d 548

248 Mont. 260

STATE of Montana, Plaintiff and Respondent, v.Norman E. SCHOFFNER, Defendant and Appellant.

No. 89-386.

Supreme Court of Montana.

Submitted on Briefs March 21, 1991.

Decided May 16, 1991.

Allen Beck, Billings, for defendant-appellant.

Norman E. Schoffner, pro se.

Marc Racicot, Atty. Gen., James Yellowtail, Asst. Atty. Gen., State of Mont., Helena, Dennis Paxinos, Yellowstone County Atty., Brent Brooks, Deputy County Atty., Billings, for plaintiff-respondent.

GRAY, Justice.

The defendant, Norman E. Schoffner, appeals his conviction of burglary following a jury trial in the District Court of the Thirteenth Judicial District, Yellowstone County.We affirm.

As a preliminary matter, we note that after the notice of appeal was filed in this case, the defendant's court appointed appellate counsel filed a motion to withdraw as counsel on the basis of lack of meritorious appealable issues.Counsel's motion was accompanied by an "Anders" brief which referred to possible arguments in support of the appeal, as required by Anders v. California(1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493.This Court's examination of the record, required by Anders, resulted in its conclusion that counsel's evaluation of the case was sound; therefore, we granted counsel leave to withdraw and allowed the defendant to proceed with the appeal pro se.The defendant filed his pro se brief with this Court on January 22, 1991, to which the State subsequently responded.We now consider the issues raised by the defendant.

1.Was the defendant's arrest supported by probable cause?

2.Did the show-up identification conducted immediately after the defendant's arrest, but prior to the initiation of adversarial judicial proceedings, violate defendant's Sixth and Fourteenth Amendment right to counsel?

3.Was the show-up identification impermissibly suggestive so as to violate the defendant's due process rights?

4.Was the defendant denied effective assistance of counsel?

Our review of the record reveals that the defendant's first three issues were not raised during any stage of the proceedings in the trial court.It is the law of this State that, absent statutorily prescribed circumstances not material to the case now before us, a defendant cannot appeal issues which were not raised with the trial court.Section 46-20-104(2), MCA;Sec. 46-20-701, MCA.However, in light of the procedure required by the United States Supreme Court in Anders, we will address these issues on the merits.

The factual background of this appeal is as follows: At approximately 5:00 a.m. on October 3, 1988, Greg Straw, Susan Ware, and Audrey Marlenee were in Straw's second floor apartment located in Billings, Montana.All three heard the sound of breaking glass and went to the apartment's front windows to determine the cause.All three saw a black man they later described as wearing a white coat and red-colored pants, crawl through a broken window in to the laundromat directly across the street.Greg Straw immediately called the police to report the incident.The eyewitnesses observed the man rummage through the drawers and cabinets inside the laundromat for a few minutes, crawl back outside the broken window and walk away.During this time Mr. Straw was on the telephone with the police dispatcher and relayed the foregoing information, giving a "blow by blow" account of the burglary as it occurred.

Police Officer Allan Bentz was given a description of the suspect and dispatched to the scene.Officer Bentz observed the defendant, who was dressed similarly to the description of the suspect, approximately one block from the scene of the burglary.Officer Bentz stopped the defendant, and advised him of the reason for the stop.As a precaution, the officer patted him down for weapons and discovered that the defendant had a large quantity of change in his pants pocket.The defendant was then arrested and read his Miranda rights.At the request of an officer at the scene of the crime, Officer Bentz then transported the defendant to the laundromat in his patrol car.At the laundromat, the defendant was made to stand beside the patrol car.The eyewitnesses positively identified the defendant as the person they observed inside the laundromat.The defendant was then taken to City Hall for booking.At City Hall, a large quantity of change, three $20 bills and one $5 bill were taken from the defendant's pockets.One of the $20 bills was a 1934 issue with distinctive coloring.

Officer Craig Wrzesinski interviewed the owner of the laundromat, Wilma Imel, as to the property taken and had her fill out a stolen property report form.She had discovered that at least $5 in change had been taken along with $60 to $80 in $20 bills.She described one $20 bill as being a 1934 issue which was unusually dark in color.

On October 5, 1988, the defendant was charged by information with the offense of burglary.On October 6, 1988, the State notified the defendant that it intended to seek designation of the defendant as a persistent felony offender on the basis of two previous felony convictions.

Trial began on January 9, 1989.At trial, both Mr. Straw and Ms. Ware described their identification of the defendant at the scene of the crime following his arrest.In addition, both identified the defendant again in the courtroom as the person they had observed committing the burglary.The third eyewitness, Ms. Marlenee, did not testify.On January 10, 1989, the jury found the defendant guilty of burglary.The District Court subsequently sentenced the defendant to fifteen years on the burglary conviction and to another ten years as a persistent felony offender, with the sentences to be served consecutively.

I.

The defendant contends that he was illegally arrested because his arrest was not supported by probable cause.We disagree.

The probable cause requirement is satisfied at the time of the arrest if the facts and circumstances within the officer's personal knowledge, or imparted to the officer by a reliable source, are sufficient to warrant a reasonable person to believe that the suspect has committed an offense.State v. Lee(1988), 232 Mont. 105, 109, 754 P.2d 512, 515;State v. Ellinger(1986), 223 Mont. 349, 352, 725 P.2d 1201, 1202.In this case, one of the eyewitnesses, Mr. Straw, gave the police dispatcher an ongoing account of the crime as it occurred, including a description of the perpetrator.The dispatcher relayed this information in a broadcast to patrol officers.Officer Bentz testified that he observed the defendant within one block of the laundromat.The defendant was dressed similarly to the broadcast description of the suspect and was the only person in the area.After stopping the defendant, Officer Bentz patted him down for weapons and discovered that the defendant had a large quantity of coins in his pants pocket.Given these facts and circumstances, there is no question that probable cause existed to believe the defendant had committed the offense of burglary.Thus, we find no merit in the defendant's contention.

II.

The defendant claims that his constitutional rights were violated when he was subjected to the post-arrest show-up without the presence of counsel.The United States Supreme Court has stated that a person's Sixth and Fourteenth Amendment right to counsel attaches only "at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment."Kirby v. Illinois(1972), 406 U.S. 682, 689, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411, 417;see alsoState v. Lara(1978), 179 Mont. 201, 587 P.2d 930.In addition, the United States Supreme Court noted in Kirby that although Miranda v. Arizona(1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, extended the right to counsel, it did so only in the limited context of custodial interrogations and has no applicability to identification procedures conducted before the initiation of adversarial judicial proceedings.Kirby, 406 U.S. at 687, 92 S.Ct. at 1881, 32 L.Ed.2d at 416.Because no adversarial judicial proceedings had been initiated against the defendant at the time he was subjected to the identification procedure, his right to counsel had not yet attached.

III.

The defendant next contends that the show-up identification procedure violated his due process rights.He argues that the suggestive nature of the procedure tainted the in-court identifications made by Mr. Straw and Ms. Ware.In determining whether an in-court identification based on a pretrial identification is admissible, the test we must use is two-pronged.First, we must determine whether the pretrial identification procedure was impermissibly suggestive; and second, if impermissibly suggestive, did the procedure have such a tendency to give rise to a substantial likelihood of irreparable misidentification that to allow the witness to make an in-court identification would violate due process, under the totality of the circumstances.Neil v. Biggers(1972), 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401, 410-11;Lara, 587 P.2d at 932.

The procedure used to identify the defendant was undoubtedly suggestive.The defendant was brought to the scene of the crime and made to stand alone near uniformed police officers and a patrol car.This Court recognized the suggestive nature of this type of identification procedure in State v. Rudolph(1989), 238 Mont. 135, 141, 777 P.2d 296, 300, stating that:

Indeed, a "show up" identification requiring a "yes or no" answer is a far less desirable situation than positively picking out a person from an anonymous lineup.Biggers, supra;State v. Lara, supra;State v. Campbell(1985), 219 Mont. 194, 711 P.2d 1357, cert. denied, 475 U.S. 1127, 106 S.Ct. 1654, 90 L.Ed.2d 197.As we cautioned in Campbell, "[l]aw enforcement agencies [are] ill advised to rely solely on one-to-one...