96-135

                                                              No. 96-135

                              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                    1996




                                                    THE STATE OF MONTANA,

                                                Plaintiff and Respondent,

                                                                     v.

                                                   CHRISTOPHER GREYWATER,

                                                 Defendant and Appellant.




          APPEAL FROM:               District Court of the Thirteenth Judicial District,
                                     In and for the County of Yellowston,
                                    The Honorable Maurice R. Colberg, Jr.,
                                               Judge presiding.



                                                       COUNSEL OF RECORD:

                                                          For Appellant:

                                     William F. Hooks, Appellate Defender,
                                                Helena, Montana


                                                         For Respondent:

                            Honorable Joseph P. Mazurek, Attorney General;
                             Jennifer Anders, Assistant Attorney General,
                                            Helena, Montana

                            Dennis Paxinos, County Attorney; John Kennedy,
                               Deputy County Attorney, Billings, Montana




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                                    Submitted on Briefs: November 14, 1996

                                                 Decided: January 2, 1997

                                                                  Filed:



                                __________________________________________
                                                   Clerk

            Chief Justice J. A. Turnage delivered the Opinion of the Court.

                   A jury in the Thirteenth Judicial District, Yellowstone
           County, found Christopher Greywater guilty of robbery. Greywater
                                  appeals. We affirm.
                            Greywater raises two issues on appeal.
                 1. Did the District Court err when it refused Greywaterþs
            proposed instruction that theft is a lesser included offense of
                                         robbery?
                2. Did the District Court err when it refused to consider a
              motion in limine to exclude an eyewitness identification of
                                        Greywater?
                                                         FACTS
               On April 3, 1995, at about midnight, Darrell Senner was parked
          in downtown Billings, Montana. He was in town on business and had
           $250 in his billfold, including two $100 bills. As Senner sat in
            his van, a male wearing a black and gray sweater approached and
             asked for a smoke. Senner responded that he did not smoke.
                 The man, later identified by Senner at trial as Christopher
               Greywater, opened the van door and hit Senner in the head.
            Greywater jumped on top of Senner and struck him on the head and
           face. He then spit on Senner and yelled, "You know what the f---
          I want." Senner handed Greywater his billfold. Greywater removed
            the money and ran. Senner followed Greywater and two other men
          down an alley. After emerging from the alley, Senner saw a police
                     car and approached the officer sitting inside.
                Senner spoke with Billings Police Officer Sandra Leonard. He
           described his assailant as a male Native American wearing a black
              and gray sweater, accompanied by two other Native Americans.
             Officer Leonard radioed dispatch with the description. After
          Officer Leonard verified that Senner was staying at the War Bonnet
                                      Inn, she left.
                 Billings Police Officer James Garten was dispatched to the
             downtown area. There, he observed three men walking down the


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             street near where the robbery had occurred. One was wearing a
         black and gray sweater. Billings Police Officer Jeff Chartier also
              noticed the same three men, one of whom was wearing a sweater
           similar to that described by dispatch. The two officers stopped
           their vehicles behind the three men, exited, drew their weapons,
         and ordered the men to the ground. Christopher Greywater was later
           identified as one of the three suspects. He was wearing a black
                                      and gray sweater.
                      As Senner was driving to his motel, he observed several
                handcuffed individuals lying facedown on the sidewalk. He
           recognized one as wearing the sweater worn by the individual who
                                       had robbed him.
                   The police conducted a pat-down search of Greywater. Inside
             his pocket they found a large amount of cash, including a $100
            bill. Two twelve packs of beer and a bag containing a bottle of
          alcohol were lying next to him. Because the alcohol was unopened,
          Officer Leonard suspected that it had been recently purchased. He
                    entered a nearby bar and spoke with James Steinmetz.
                  Steinmetz bartended at the Empire Bar on April 2 and 3, 1995.
          He testified that at about closing time, Greywater entered the bar
            and purchased a case of beer and a bottle of whiskey. Greywater
         paid for the alcohol with a $100 bill, the only $100 bill Steinmetz
                                   had seen that evening.
                    Steinmetz had seen Greywater inside the Empire Bar earlier
              that evening. When Greywater entered after 1 a.m., Steinmetz
         testified that Greywater was excited and in a much better mood than
            he had been previously. After purchasing the alcohol, Greywater
              and two other individuals left the bar in a hurry. Steinmetz
          testified that the black and gray sweater, which the police seized
          after Greywaterþs arrest, was of a similar color and design as the
                  one Greywater had been wearing when he entered the bar.
                  Greywater and the two other suspects were taken into custody,
           placed in separate police cars, and driven to the War Bonnet Inn.
             There, under a lighted canopy near the motel entrance, Officer
           Gartner asked Senner if he recognized any of them. Senner looked
               into the cars containing the other two suspects but made no
              identification. He then looked into the third police car and
            positively identified Greywater as the individual who had robbed
                                             him.
                 Greywater was charged by information with robbery in violation
         of      45-5-401(1)(a), MCA. He pleaded not guilty. Following a jury
             trial, he was found guilty of robbery and sentenced to fifteen
                   years at the Montana State Prison. Greywater appeals.
                                          DISCUSSION
                    1. Did the District Court err when it refused Greywaterþs
            proposed instruction that theft is a lesser included offense of
                                           robbery?



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                   During settlement of jury instructions, Greywater offered a
            proposed instruction that misdemeanor theft is a lesser included
           offense of robbery, citing       46-16-602, MCA (1989), as authority.
          The State objected, citing State v. Kills On Top (1990), 243 Mont.
         56, 793 P.2d 1273, and State v. Albrecht (1990), 242 Mont. 403, 791
                P.2d 760. The District Court refused Greywaterþs proposed
          instruction by applying the "same elements" test in Blockburger v.
             United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306.
              The court then gave the following instructions, offered by the
            State and accepted without objection by Greywater, regarding the
                                      offense of robbery:
                                       Instruction No. 6
                  A person commits the offense of robbery (felony) if, in
                     the course of committing a theft he inflicts bodily
                                     injury upon another.

                                                       Instruction No. 7

                        To convict the defendant of the charge of robbery
                     (felony), the State must prove the following elements:
                              1. That the defendant committed theft; and
                            2. That the defendant while so doing inflicted
                              bodily injury upon Douglas Senner; and
                         3. That the defendant acted purposely or knowingly.
                                              . . .

                                                       Instruction No. 10

                   A person commits the offense of theft if he purposely or
                     knowingly obtains or exerts unauthorized control over
                    property of the owner, and has the purpose of depriving
                                   the owner of the property.

           Greywater asserts that the court erred as a matter of law when it
              refused to instruct the jury that theft is a lesser included
                                  offense of robbery.
                    A criminal defendant is entitled to a requested lesser
         included offense instruction where, based on the evidence, the jury
          rationally could be warranted in convicting on the lesser offense
          and acquitting on the greater offense. Section 46-16-607(2), MCA;
             State v. Smith (1996), 276 Mont. 434, 443, 916 P.2d 773, 778.
            Therefore, we must first determine whether, as a matter of law,
         theft is a lesser included offense of robbery. If so, we must then
              determine whether Greywaterþs proposed jury instruction was
                   supported by the evidence. Smith, 916 P.2d at 778.
                This Court has long employed the Blockburger test to determine
           what constitutes a lesser included offense. The test provides:
                    [W]here the same act or transaction constitutes a


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                   violation of two distinct statutory provisions, the test
                  to be applied to determine whether there are two offenses
                   or only one, is whether each provision requires proof of
                           a fact which the other does not . . . ."

          Blockburger, 284 U.S. at 304. Iannelli v. United States (1975),
         420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294 n. 17, 43 L.Ed.2d 616,
             627 n. 17, further explained the Blockburger test, stating:
              If each requires proof of a fact that the other does not,
                 the Blockburger test is satisfied, notwithstanding a
              substantial overlap in the proof offered to establish the
                                        crimes.

                  Greywater argues that although this Court used the Blockburger
          test in State v. Madera (1983), 206 Mont. 140, 670 P.2d 552, upon
             which Albrecht and Kills On Top were decided, to determine that
              theft is not a lesser included offense of robbery, that Madera
            applies to double jeopardy issues, not to jury instructions. He
                suggests that in the context of lesser included offense jury
               instructions, the focus of the Blockburger test should not be
              limited to a comparison of the statutory elements, but instead
             should include an inquiry into the facts adduced at trial.      We
                                            disagree.
                   In Madera, the defendants were charged and convicted of both
                felony theft and robbery. We held that prosecution for both
            offenses did not violate double jeopardy, concluding that felony
                theft was not a lesser included offense within the charge of
          robbery under Blockburger because felony theft required proof that
           the value of the property taken exceeded a certain dollar amount,
           an element not required for robbery. Madera, 670 P.2d at 557-58.
                   In Albrecht, the defendant argued that the trial court erred
            by refusing to instruct the jury that theft is a lesser included
            offense of robbery. We recognized that Madera involved a double
         jeopardy issue, not a jury instruction. Albrecht, 791 P.2d at 762.
                 However, we refused to deviate from the Blockburger test to
          determine whether theft is a lesser included offense of robbery in
                                the context of jury instructions.
                  We have ruled that theft is not a lesser-included offense
                  of robbery, Madera, 670 P.2d at 558, albeit for different
                        reasoning . . . . Not only does theft require an
                  additional element of proof regarding value, our statutes
                      specify that commission of theft is not required for
                  commission of a robbery. Section 45-5-401, MCA, requires
                   only that the actor "be in the course of committing the
                  theft." Under the statute, in order for a robbery charge
                    to adhere, a person does not actually have to complete
                     the theft but only be in the course of committing the
                                              theft.



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                                  Albrecht, 791 P.2d at 763.
                  We also noted that the Criminal Law Commission Comments to
              45-5-401, MCA, illustrate that theft is not a lesser included
                                      offense of robbery:
                 Common-law robbery was theft of property from the person
                  or in the presence of the victim by force or by putting
                     him in fear either of immediate bodily injury or of
                   certain other grievous harms. [Section 45-5-401, MCA]
                    does not explicitly include the traditional basis for
                classifying robbery as taking property from the person or
                 in the presence of a person, but approaches the crime as
                  one of immediate danger to the person and relies on the
                  condition of violence or threatened violence to distin-
                    guish the crime from ordinary theft. The gist of the
                        offense is taking by force or threat of force.

                    [Section 45-5-401, MCA] would apply where property was
                     not taken from the person or from his presence. For
                   example, an offender might threaten to shoot the victim
                    in order to compel him to telephone directions for the
                      disposition of property elsewhere. Further, it is
                   immaterial whether property is or is not obtained. This
                    seems compatible with the theory of treating robbery as
                        an offense against the person rather than against
                     property. Hence, a completed robbery may occur even
                       though the crime is interrupted before the accused
                    obtained the goods, or if the victim had no property to
                                           hand over[.]

         Albrecht, 791 P.2d at 763, citing Criminal Law Commission Comments,
                                       45-5-401, MCA.
                 In Kills On Top, the defendant similarly claimed that theft
             was a lesser included offense of robbery for purposes of jury
         instructions. We disagreed and reiterated the holding of Albrecht.
                            Kills On Top, 793 P.2d at 1297.
               Albrecht is consistent with numerous cases in which this Court
          has employed the Blockburger test to determine whether one offense
            is a lesser included offense of another in the context of jury
         instructions. See State v. Steffes (1994), 269 Mont. 214, 887 P.2d
             1196 (endangering the welfare of children and deviate sexual
             conduct); State v. Fisch (1994), 266 Mont. 520, 881 P.2d 626
         (negligent endangerment and aggravated assault); State v. Arlington
          (1994), 265 Mont. 127, 875 P.2d 307 (felony assault and aggravated
              assault); State v. Long (1986), 223 Mont. 502, 726 P.2d 1364
         (misdemeanor assault and sexual assault); State v. Gray (1983), 207
              Mont. 261, 673 P.2d 1262 (unsworn falsification and criminal
           mischief); and State v. Ritchson (1981), 193 Mont. 112, 630 P.2d
                          234 (aggravated assault and robbery).


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                   This Court has previously focused on the statutory elements,
          not the facts of a given case, to decide what constitutes a lesser
           included offense for purposes of jury instructions. Steffes, 887
          P.2d at 1207. We look to the statutory elements of the respective
          crimes to determine if each offense requires proof of a fact which
               the other does not to determine if there is a lesser included
                              offense. Madera, 670 P.2d at 558.
                    The offense of robbery is defined by      45-5-401(1)(a), MCA,
         as follows: "(1) A person commits the offense of robbery if in the
            course of committing a theft he: (a) inflicts bodily injury upon
           another." The applicable elements of theft are: (1) purposely or
         knowingly; (2) obtaining or exerting unauthorized control; (3) over
            the property of the owner; (4) with the purpose of depriving the
                     owner of the property. Section 45-6-301(1)(a), MCA.
                    Robbery and theft each require proof of an additional fact
             that the other does not. A conviction of robbery under         45-5-
               401(1)(a), MCA, requires the infliction of bodily injury upon
              another, but does not require the completed act of theft as an
             element. Robbery requires that the person "be in the course of
              committing the theft." Section 45-5-401, MCA. The offense of
              theft requires proof of an additional fact--that the theft was
          completed. Because robbery requires proof of at least one element
          that is not needed to establish the offense of theft, theft is not
            a lesser included offense of robbery. See Albrecht, 791 P.2d at
                                          762-3.
                   Montana statutes, Criminal Law Commission Comments, and case
             law support the District Courtþs conclusion that theft is not a
              lesser included offense of robbery. We hold that the District
                Court correctly instructed the jury on the law applicable to
         Greywaterþs case and properly refused his proposed jury instruction
          that theft is a lesser included offense of robbery. Because we so
           hold, we do not address whether there was sufficient evidence for
                             a jury to convict Greywater of theft.
                    Greywater also argues that the Blockburger test used by the
             District Court is inconsistent with the statutory definition of
         "included offense" contained at         46-1-202(8), MCA. He claims that
            the statutory definition of included offense is broader than the
                                       Blockburger test.
                    When Greywater submitted his proposed jury instruction that
           misdemeanor theft is a lesser included offense of robbery, he did
            so under the purported authority of        46-16-602, MCA (1989). He
         now argues that the District Court refused his proposed instruction
                  contrary to the statutory definition of "included offense"
               contained at     46-1-202(8), MCA. Greywater did not offer his
                 proposed instruction pursuant to     46-1-202(8), MCA, at the
          district court level. A party may not change his theory on appeal
         from that advanced in the district court.          Fisch, 881 P.2d at 629.
                   We decline to address the merits of this argument.


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                  2. Did the District Court err when it refused to consider a
                motion in limine to exclude an eyewitness identification of
                                         Greywater?

                Five days before trial, the defense moved in limine to prevent
           "introduction into evidence any testimony concerning eye witness
         identification of the defendant," on the ground that such testimony
             violated Greywaterþs Fifth Amendment due process rights. The
            defense argued that Sennerþs identification was suggestive and
                          subject to possible misidentification.
                 On the day of trial, counsel discussed Greywaterþs motion in
               limine. The State opposed the motion, arguing that it was
          untimely. Greywaterþs public defender agreed, but asked the court
           to excuse the delay for "good cause" because of his overwhelming
            caseload and because Greywaterþs constitutional rights were at
         stake. The court declined to consider the motion in limine because
           it was untimely, citing State v. Hart (1982), 200 Mont. 185, 650
           P.2d 768. The court also determined that the motion was covered
              under    46-13-101, MCA, and found no good cause for it to be
                                          raised.
                In Hart, the defendant waited until the day of trial to orally
              move to suppress police testimony concerning his pre-Miranda
          statements. Section 46-13-301, MCA, required ten daysþ notice and
         a written motion to suppress. The trial court denied the motion as
           untimely. We affirmed, noting that the defendant was aware from
           the time of his arrest that he had made damaging statements, but
         did not move to suppress them until the day of trial after the jury
                         had been seated. Hart, 650 P.2d at 772.
                               Section 46-13-101, MCA, provides:
               (1) Except for good cause shown, any defense, objection,
               or request that is capable of determination without trial
                  of the general issue must be raised at or before the
                      omnibus hearing unless provided by Title 46.

                    (2) Failure of a party to raise defenses or objections
                   or to make requests that must be made prior to trial, at
                     the time set by the court, constitutes a waiver of the
                                 defense, objection, or request.

                     (3)      The court, for cause shown, may grant relief from
                                 any waiver provided by this section[.]

                The State argues that   46-13-101, MCA, required Greywaterþs
          motion in limine to be raised at or before his omnibus hearing and
           that the courtþs decision not to consider the untimely motion is
           supported by Hart, 650 P.2d at 768. Greywater suggests that his
          counselþs crowded trial calendar provided good cause for the court
            to consider his otherwise untimely motion in limine. He argues


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             that the courtþs refusal to consider his motion was an abuse of
             discretion and limited his ability to pursue the identification
                            issue, his only available defense.
                 The standard of review for a denial of a motion to suppress is
             whether the courtþs findings of fact are clearly erroneous, and
           whether those findings were correctly applied as a matter of law.
          State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021.
            In this case, the District Court dismissed Greywaterþs motion in
               limine as untimely and as lacking good cause. Therefore, we
          determine whether the courtþs conclusions of law were correct as a
                          matter of law. Williams, 904 P.2d at 1021.
                    A motion in limine to prevent an in-court identification is
          essentially a motion to suppress and must be filed within the time
           limits imposed by        46-13-301, MCA (1989). See Hart, 650 P.2d at
           771-72. We have consistently upheld a district court's denial of
           a defendantþs untimely motion to suppress. State v. Hall (1979),
            183 Mont. 511, 514, 600 P.2d 1180, 1182; State v. Briner (1977),
                          173 Mont. 185, 189-90, 567 P.2d 35, 37-38.
                 Hart, Hall, and Briner were decided under the previous version
                of     46-13-301, MCA (1989) and    95-1806, RCM (1947), which
            required notice of a motion to suppress to be given at least ten
          days before trial, unless good cause was shown. In 1991,          46-13-
          301, MCA, was amended to require a motion to suppress to be raised
            at or before the omnibus hearing. See 1991 Mont. Laws, Ch. 800,
              168, 173. The purpose of the omnibus hearing is to encourage
              parties to "expedite the procedures leading up to the trial."
         Section 46-13-110(2), MCA. The holdings of Hart, Hall, and Briner,
           as applied to the good cause exception of        46-13-301, MCA (1989)
         and       95-1806, RCM (1947), are equally applicable to the good cause
                           exception contained at    46-13-101, MCA.
                   Greywaterþs omnibus hearing occurred over three months prior
             to trial. At the omnibus hearing, neither party indicated that
         identification would be a trial issue. Greywaterþs omnibus form is
             marked "n/a" (not applicable) in response to "Motions Requiring
             Separate Hearing." On the day of trial, the judge explained to
           both parties that he had tried to contact them the week before to
             determine if there were "any significant issues related to this
          case." When the judge called the public defenderþs office, he was
         informed by one of the attorneys who had worked on the case in part
          that "it would be a short trial and there are no major issues that
           I know about." We conclude that the trial judge properly refused
             to consider the public defenderþs busy caseload as good cause.
                      Greywater was aware from the time of his arrest that the
            Stateþs case relied in part on Sennerþs identification of him in
          the motel parking lot. Nevertheless, he did not submit his motion
             in limine until October 5, 1995, nearly six months after he was
                       charged with robbery, and five days before trial.
                     Greywater did not comply with    46-13-101, MCA, and cannot


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                demonstrate good cause for his untimely motion. Given the
            requirements of     46-13-101, MCA, the case law interpreting its
              predecessor statutes, and the overall purpose of the omnibus
         hearing, the District Court correctly determined as a matter of law
          that Greywaterþs motion in limine was untimely and was not subject
               to a good cause exception. We hold that the District Court
                properly refused to consider Greywaterþs motion in limine.
                                            Affirmed.

                                                                                  /S/      J. A.        TURNAGE




                                                        We concur:
                                                 /S/ CHARLES E. ERDMANN
                                                    /S/ KARLA M. GRAY
                                                /S/ WILLIAM E. HUNT, SR.
                                                 /S/ W. WILLIAM LEAPHART




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