State v. Stokes

• Decision Date: 21 December 1981
• Docket Number: No. 81-169,81-169
• Citation: 195 Mont. 321,637 P.2d 498
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Respondent, v. Sidney Miles STOKES, Defendant and Appellant.

Page 498

637 P.2d 498

195 Mont. 321

STATE of Montana, Plaintiff and Respondent, v. Sidney Miles STOKES, Defendant and Appellant.

No. 81-169.

Supreme Court of Montana.

Submitted on Briefs Aug. 21, 1981.

Decided Nov. 12, 1981.

Rehearing Denied Dec. 21, 1981.

Herron, Meloy & Llewellyn, Helena, for defendant and appellant.

Mike Greely, Atty. Gen., Charles A. Graveley, County Atty., Helena, for plaintiff and respondent.

MORRISON, Justice.

Defendant, Sidney Miles Stokes, was convicted on January 14, 1981, of robbery, theft, aggravated assault and aggravated burglary. He was sentenced on March 13, 1981, by the First Judicial District Court, to ten years on each of the four counts, to run concurrently. Five years on each count were suspended. The defendant appeals from his conviction on all four counts.

At approximately 8:45 a. m. on November 25, 1980, Caroly Kelly and Fred Ketron surprised a man who was burglarizing Kelly's residence on Van Orsdal Road in the Helena Valley. The burglar's lower face was covered with a pillow case. He forced Kelly and Ketron at gunpoint to lie on the floor and covered the two with blankets. The burglar repeatedly told the two if they looked at him he would kill them. He continued with the theft of items from the residence. After he departed the Lewis and Clark County Sheriff's Department was summoned.

The two victims and a next door neighbor, Jewel Hurley, who had noticed an unusual-looking stranger in front of the house on the morning of the crime, were requested by the sheriff's office to view photographs contained in mug shot books in an attempt to identify the individual. The viewings were conducted separately and within a few days following the burglary. Kelly, Hurley, and Ketron did not discuss with each other, their attendance at these photographic displays.

All three identified the defendant as the person seen on November 25, 1980. The three identifications were made from a mug shot book containing several hundred photographs of different individuals. The defendant's photographs were contained in the book as a result of previous DWI arrests.

No lineup was ever conducted. The defendant testified that he requested a lineup from the sheriff's department. The county attorney's office contended that no such request was ever transmitted to it.

Prior to trial, the defendant made a motion in limine to exclude evidence or references to the fact that the defendant had previously been arrested, charged, or convicted of other crimes. The defendant's motion made specific references to the booking photographs of the defendant which had been identified by Ketron, Kelly, and Hurley.

The District Court denied the motion in limine but agreed to give a cautionary instruction to the jury concerning the photographs of the defendant.

At trial, the State introduced the photographs of the defendant. Ketron, Kelly, and Hurley also made in-court identifications of the defendant. The identifications of the mug shots of defendant and the in-court identifications of defendant comprised all of the evidence submitted by the State, connecting defendant with the burglary.

The defendant relied on an alibi defense, claiming he had been at his mother's house on the other side of town at the time of the burglary. The defendant's mother, brother, wife and a friend testified on his behalf.

At the conclusion of the trial, the defendant submitted two proposed instructions concerning eyewitness testimony. The District Court refused one as being redundant in light of other instructions. The refused instruction related eyewitness testimony to the witness's ability to observe the event.

The jury returned a verdict of guilty on all four counts.

The following issues are presented on appeal:

1). Whether the District Court abused its discretion by failing to exclude the mug shot photographs?

2). Whether the District Court abused its discretion by allowing an in-court identification of defendant?

3). Whether the District Court abused its discretion by refusing the defendant's instruction relating eyewitness testimony to the witness's ability to observe the event?

4). Whether the District Court erred in denying the defendant's motion for directed verdict?

Defendant first contends that allowing the DWI booking photographs of the defendant to go to the jury, necessarily prejudiced the jury because those photographs implied that defendant had committed prior criminal acts. The defendant does not contend that the identifications made by the eyewitnesses using the photographs were tainted or made under suggestive circumstances; only that the mug shots created a prejudicial effect on the jury that could not be erased.

Defendant relies on Rules 404(b) and 609, Mont.R.Evid. in support of his contention. Rule 609, Mont.R.Evid. provides that "For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is not admissible." This rule is clearly inapplicable to the defendant's situation. The booking photographs are not evidence of convictions; they merely indicate that the defendant was booked on prior occasions. Secondly, the photographs were introduced for purposes of identification. No evidence was adduced by the State at trial indicating that the defendant had ever been convicted of any crime, nor was such suggestion made during trial. Therefore the photographs were not used to attack the credibility of the defendant.

Rule 404(b), Mont.R.Evid. provides:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as ... identity ..."

This evidentiary rule must be viewed in conjunction with Rule 403, Mont.R.Evid. which states:

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ..."

In the instant case, the very issue before the jury was identification of the defendant. As a result the photographs used by the eyewitnesses to identify the defendant were relevant evidence. Therefore, the District Court was faced with a determination of whether the photographs, necessary for purposes of identification, were unfairly prejudicial.

It is well-settled in Montana that "... the question of admissibility of ... evidence must in every case be left largely to the sound legal discretion of the trial court, subject to review only in case of manifest abuse." State v. Medicine Bull (1968), 152 Mont. 34, 45, 445 P.2d 916, 922. In the instant case, the District Court chose to allow the photographs to go to the jury, coupled with the following cautionary instruction:

"The fact, as it appears in evidence, that the defendant was arrested and photographed in connection with a charge not related in any way to this case is not to be considered by you as evidence of his guilt in this case, nor is such fact to be considered by you as evidence of the defendant's credibility."

Additionally, the fact that the photographs stemmed from DWI charges was presented to the jury by the defendant. Under these circumstances it is impossible for this Court to say that the admission of these photographs constitutes "a case of manifest abuse." Whatever prejudicial effect was created by the photographs was negated by the cautionary...