                             No.    89-475
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1990


STATE OF MONTANA,
           Plaintiff and Respondent,                    DEC 1 8 1990
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                                                  CLERK OF SVPREitRE COURT
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                                                     STATE; PF F~~QI.ITAE;IA
SCOTT SOR-LOKKEN,
           Defendant and Appellant.



APPEAL FROM:   District Court of the Twentieth Judicial District,
               In and for the County of Sanders,
               The Honorable C.B. McNeil, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Roger M. Kehew, Kalispell, Montana
           For Respondent:
                John Paulson, Asst. Atty. General, Helena, Montana
                Robert Slomski, Sanders County Attorney, Thompson
                Falls, Montana

                             Submitted on Briefs:       November 1, 1990
                                             Decided:   December 18, 1990
Filed:
Justice Fred J. Weber delivered the opinion of the Court.

     In the ~istrictCourt for the Twentieth Judicial District,
Sanders County, defendant was convicted of two counts of felony
assault.   Defendant was sentenced to ten years for each count to
be served concurrently, and determined to be a dangerous offender.
Defendant appeals.   We affirm.
     We restate the issues presented as follows:
     1.    Did the District Court err in denying defendant's motion
to dismiss for lack of justice court jurisdiction to issue an
arrest warrant on a complaint charging a felony?
     2.    Was there a proper determination of probable cause?
     3.    Was the photo identification conducted by the State
suggestive?
     4.    Did the District Court err in allowing the testimony of
David Galarneau over defendant's objection?
     5.    Did the District Court err in denying defendant's motion
for a new trial?
     On July 12, 1988, defendant, Scott Sor-Lokken, and his family
were traveling eastbound on State Highway 135 in defendant's sedan.
Penny Shepard was also traveling eastbound on Highway 135 that
afternoon on her way home to Kalispell.
     Penny testified that she approached defendant's car from
behind and attempted to pass it on the two-lane highway. Defendant
refused to allow Penny to go around him or to return to her place
behind him and held Penny in the oncoming traffic lane. As the two
cars continued down the highway side by side, defendant began to
nudge Penny over in an attempt to run her into a concrete wall.
While this occurred, a vehicle approached from the opposite
direction.   Penny slammed on her brakes and maneuvered behind
defendant to avoid the oncoming vehicle.        She then pushed her
accelerator to the floor and managed to pass defendant.
     After Penny passed the car, she looked in her rear view mirror
and noticed a motorcycle for the first time.          Monty McIlhargey
(Monty) was driving the motorcycle and had witnessed the incident
between Penny and defendant. He decided that the safest course of
action was to pass defendant quickly, which he accomplished.
     Monty testified that defendant caught up to him and bumped
him from behind, then attempted to run him off the road.         While
defendant repeatedly attempted to run Monty off the road, one of
defendant's passengers threw glass Orange Crush bottles at him.
The bottles struck Monty and his motorcycle. Penny witnessed these
events through her rear-view mirror.
     At the next town, Paradise, Montana, Penny and Monty reported
the incident to the Sanders County Sheriff's office.        Penny and
Monty provided the sheriff's office with defendant's personalized
license plate      inscription and   gave   general   descriptions   of
defendant and his car.
     The justice court in Sanders County issued an arrest warrant
for defendant based upon a sworn complaint filed by the Sanders
County Attorney.    The complaint charged defendant with two counts
of felony assault in violation of S45-5-202 (2), MCA.              Defendant
was arrested two days later and appeared before the justice court.
     The State requested the District Court for leave to file an
information.        The motion was granted.         The information filed
charged defendant with two counts of felony assault.               Defendant
was arraigned on September 13, 1988, and entered a plea of not
guilty to both counts.        The District Court conducted the omnibus
hearing on September 27, 1988.
     On March 15, 1989, defendant filed a motion to exclude the
testimony of the victims because of the alleged suggestiveness of
the photographic lineup.       He also filed a motion to suppress the
arrest     warrant,    contending    that   the    justice     court   lacked
jurisdiction to issue the warrant in felony cases and that the
examination of the complaint failed to establish probable cause.
The District Court denied his motions.
     On     April     12,   1989,   defendant     moved   to   exclude   the
identification testimony of the witnesses, based upon the same
grounds as the previous motions for the exclusion of witness
testimony.    The motion was denied.
     The jury found defendant guilty on both counts of felony
assault.    Defendant filed a motion for a new trial.           The District
Court denied the motion.            The District Court then sentenced
defendant to ten years for each count of felony assault, to be
served concurrently, and determined that defendant was a dangerous
offender.    Defendant appeals.
     Did the District Court err in denying defendant's motion to
dismiss for lack of justice court jurisdiction to issue an arrest
warrant on a complaint charging a felony?
     Defendant contends that a justice court cannot commence a
felony by complaint.     He contends that the procedure violates
Article VII, Section 5, of the Montana Constitution which states:

          (2)    Justice courts shall have such original
     jurisdiction as may be provided by law. They shall not
     have trial jurisdiction in any criminal case designated
     a felony except as examining courts.
     The State urges that commencing a felony case by filing a
complaint in a justice court is a procedure long accepted and
practiced in Montana.   The State cites State v. Snider   (1975),   168

Mont. 220, 225, 541 P.2d 1204, 1207, for the rule that a justice
court does not violate the original trial jurisdiction of district
court when it exercises jurisdiction in the related nontrial
proceedings of a felony prosecution.   This Court stated:
         The use of the term "trial jurisdiction" constitutes
    a legislative acknowledgement that other types of
    jurisdiction exist in these cases and are not vested
    exclusively in the district courts.
         Montana's existing court system as established by
    the legislature supports a legislative intent to grant
    justices of the peace jurisdiction to issue search
    warrants. There are 56 counties in the state, with 28
    district judges. These district judges serve judicial
    districts comprising from one to seven counties. They
    generally reside and spend the major part of their time
    in the most populous county within their judicial
    district. Because of this court system and its inherent
    geographical limitations, many of the outlying counties
    simply do not have a district judge available on a
    moment's notice to issue search warrants,    . . . But     .
     .. every county has one or more justices of the peace.
     Under these known circumstances, the legislature will be
     presumed to have intended to grant justices of the peace
     the right to issue search warrants in the absence of any
     express limitation.
Snider, 541 P.2d at 225-226.   In Snider, the defendant was charged
with the felony of illegal possession of dangerous drugs. See also
State v. Garberding, No. 90-128, slip op. (Mont. Nov. 26, 1990).
We conclude that initiating a felony prosecution by complaint in
the justice court is an established practice in Montana which is
not prohibited by statute.      We hold that the District Court
correctly denied defendant's motion to dismiss for lack of justice
court jurisdiction to issue an arrest warrant on a complaint
charging a felony.
                                 I1

     Was there a proper determination of probable cause?
     Defendant maintains that the County Attorney was not examined
under oath by the Justice of the Peace concerning probable cause
to believe that defendant committed the crime.    He contends that
a verified complaint reciting the statute is not the same as
probable cause being sworn to by oath or affirmation.      He urges
that the probable cause for his arrest must be reduced to writing.
He further contends that since no one had actually identified the
defendant for nearly a month, no evidence linking him with the
alleged crime was found within a reasonable time.   He argues that
the circumstantial evidence pointed only to the vehicle involved
as belonging to him, not as he being the one driving the vehicle.
     The State maintains that the County Attorney was under oath
when he swore to the complaint.        Sanders County Attorney, Bob
Slomski, testified that Claude Burlingame, the County Attorney at
the time of the incident, swore to the complaint when it was filed
and recited the underlying facts relating to probable cause.           It
argues that the fact that the County Attorney was not under oath
before reciting the facts supporting probable cause does not
invalidate the arrest.       The State further contends that the
substantial rights of the accused are not at stake and the
accused's right to counsel does not attach when the State applies
for leave to file an information. It urges that a district court's
finding of probable cause may be challenged in a subsequent motion
to dismiss.    Finally, the State maintains that defendant received
an independent judicial determination of probable cause within a
reasonable time.     The complaint was filed on July 13, 1988.
Sanders County deputies arrested defendant two days later, and
defendant appeared in justice court that same day.             The State
applied to the District Court for leave to file an information on
August 4, 1988, 20 days after the arrest, and filed the information
on August 5, 1988.
     Section 46-6-201, MCA, provides that an arrest warrant may be
issued when a written complaint is presented to a court charging
a person with the commission of an offense and the court examines
the complainant under oath to determine if there is probable cause
for the arrest.      Article 11, Section 11 of the 1972 Montana
Constitution    requires   probable   cause   supported   by    oath   or
affirmation reduced to writing.
     The Supreme Court of the United States has held that the issue
in warrant proceedings is not guilt beyond a reasonable doubt but
probable cause for believing that a crime has occurred.            United
States v.      Harris   (1971),   403   U.S.   573,   581-583;   State v.
Garberdinq, 47 St.Rep. at           .    As the State maintains, that
standard was met by the witness statements describing defendant
and defendant's license plate.      Even if the defendant's arrest had
been unlawful, an illegal arrest has no impact on subsequent
prosecution using evidence not tainted by illegality.            State v.
Woods (1983), 203 Mont. 401, 662 P.2d 579; State v. Ellinger
(1986), 223 Mont. 349, 725 P.2d 1201.
        Defendant does not have a right to be present when the State
applied for permission to file an information. This Court has held
that a defendant's right to counsel was not violated because
counsel was not appointed until after the information was filed.
State v. Farnsworth (1989), 240 Mont. 328, 333, 783 P.2d 1365,
1367.
        Finally, 546-7-103, MCA, requires the preliminary examination
to be held within a reasonable time unless the district court
grants leave to file an information.           Here, the court made an
independent determination of probable cause and granted the State
leave to file an information.      The State continued to investigate
and prepare the case by conducting a photo array and examining the
crime scene.     Defendant remained incarcerated during that time.
When a defendant remains incarcerated because he cannot meet bail,
his incarceration is not a factor in calculating reasonable time.
Farnsworth, 783 P.2d at 1368.         We hold that there was a proper
determination of probable cause and no rights of the defendant were
violated.
                                  I11

     Was    the    photo   identification    conducted   by    the   State
suggestive?
     Defendant     maintains   that    the   photographic     line-up   was
unreasonably suggestive. The State maintains that the photograph
was not suggestive and did not deny defendant due process.
     The Sanders County Attorney conducted a photographic lineup
using a photograph of defendant taken while he was incarcerated.
He was not wearing a shirt in the photo.         The victims, Penny and
Monty, each separately identified defendant.        Later each made in-
court identifications of the defendant as well.
     The    test   for whether   the    identification procedure        was
suggestive or not has been defined by this Court.           A two-pronged
test determines whether or not the identification should be
suppressed:
     First, was the identification procedure impermissibly
     suggestive; and, second, if so, did it under the totality
     of the circumstances have such a tendency to give rise
     to    a   substantial    likelihood     of    irreparable
     misidentification.
State v. Higley (1980), 190 Mont. 412, 621 P.2d 1043.            The only
way the identification here could be deemed suggestive is by the
mere fact that defendant was the only man in the photographic line-
up that was not wearing a shirt.     Examination of the photographs
does not indicate that fact was suggestive.
     Looking at the second leg of the test, the totality of the
circumstances, we conclude that the identification was reliable
even if the identification procedure were considered suggestive.
The facts to be considered in evaluating the likelihood of
misidentification include:
     the opportunity of the witness to view the criminal at
     the time of the crime, the witnesst degree of attention,
     the accuracy of the witness' prior description of the
     criminal, the level of certainty demonstrated by the
     witness at the confrontation, and the length of time
     between the crime and the confrontation.      (Citations
     omitted. )
State v. Hiqley, 621 P.2d at 1049.
     Both witnesses here were victims who viewed the defendant
during the crime.   Both witnesses separately positively identified
the defendant both from the photographic array and in court.    The
identification with the photo array took place only two weeks after
the crime. We hold that the photo identification conducted by the
State was not suggestive.


     Did the District Court err in allowing the testimony of David
Galarneau over defendant's objection?
     Defendant maintains that the District Court erred in allowing
the testimony of David Galarneau over his objection. Mr. Galarneau
is the automobile mechanic who worked on the alleged vehicle used
in the crime, and testified as to its condition as it existed prior
to the incident in question.        During cross-examination, the State
inquired as to Mr. Galarneau's failure to appear the day before.
The testimony relevant to this issue follows.
     Q.     You got a subpoena to be in court here?
     A.     Yes.

     Q.     The subpoena told you to be here yesterday morning; is
            that true?
     A.     I never got that one. I had one before I was suppose to
            have been here a couple weeks ago or something.
     Q.     Okay.   Where were you yesterday?
     Defense Counsel:       Objection your Honor.     I don't see that
                            it s relevant.
     The Court:        Overruled.
     Q.     Where were you yesterday?
     A.     Lake County Jail.
     The State maintains that this line of questioning was used to
show the witness failed to respond to a previous subpoena which
went to his credibility.        It maintains that a question of
credibility is a matter for the jury to decide.        The State urges
the defendant objected on grounds of relevancy, and the objection
was properly overruled since the questioning was relevant and was
not character evidence.     No mention of an arrest or a conviction
was made.   Defendant did not move to strike.
     Evidentiary rulings concerning the admissibility of evidence
are within the District Court's discretion and will            not be
disturbed absent a showing of an abuse of discretion.              The
presumption that a witness speaks the truth and is credible can be
rebutted by evidence of the witness' character for truth, honesty,
and   integrity, but   evidence bearing    on   issues   of   witnesst
credibility, in order to be admissible, must be more probative than
prejudicial.   State v. Hammer (1988), 233 Mont. 101, 759 P.2d 979.
      The District Court must balance prejudice and probative value.
Evidence of Mr. Galarneau's failure to answer his subpoena by
appearing the previous day does not tend to make any fact at issue
in this action more or less probable than that fact would be
without the evidence. Thus, defendant has failed to show any abuse
in the District Court's discretion that the testimony of Mr.
Galarneau was more prejudicial than probative.     We hold that the
District Court did not err in allowing the testimony of David
Galarneau over defendant's objection.
                                 v
      Did the District Court err in denying defendant's motion for
a new trial?
      Defendant maintains that he was entitled to a new trial
pursuant to 5 5 46-16-701 and 46-16-702, MCA.    The State filed an
answer stating that defendant failed to file a supporting brief
pursuant to Uniform District Court Rule 2, which provides that
failure to file a brief within five days subjects the moving party
to a summary ruling.   The court denied defendant's motion.
      Defendant argues that a denial of his motion based on Rule 2
was erroneous because Rule 2 does not apply to criminal cases.
The State contends that the decision to deny the motion is a matter
of trial court discretion and shall not be disturbed absent an
abuse of judicial discretion.       The State also urges        that
defendant's motion for a new trial was untimely under     !j   46-16-

702(2),   MCA.
     Defendant failed to provide the District Court with sufficient
information to support his motion for a new trial. We conclude the
District Court did not abuse its discretion.     We hold that the
District Court did not err in denying defendant's motion for a new
trial.
     Affirmed.
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                            No. 89-475

STATE OF MONTANA,
           Plaintiff and Respondent,
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     IT IS ORDERED that this Court's opinion in the Above case
dated December 18, 1990, which reads on the bottom of page 6 and
the top of page 7 as follows:
          The State maintains that the County Attorney was
     under oath when he swore to the complaint.        Sanders
     County Attorney, Bob Slomski, testified that Claude
     Burlingame, the County Attorney at the time of the
     incident, swore to the complaint when it was filed and
     recited the underlying facts relating to probable cause.
     It argues that the fact that the county attorney was not
     under oath before reciting the fats supporting probable
     cause does not invalidate the arrest. The State further
     contends that the substantial rights of the accused are
     not at stake and the accused's right to counsel does not
     attach when the State applies for leave to file an
     information. It urges that a district court's finding
     of probable cause may be challenged in a subsequent
     motion to dismiss. Finally, the State maintains that
     defendant received an independent judicial determination
     of probable cause within a reasonable time.           The
     complaint was filed on July 13, 1988. Sanders County
     deputies arrested defendant two days later, and defendant
     appeared in justice court that same day.       The State
     applied to the District Court for leave to file an
     information on August 4, 1988, 20 days after the arrest,
     and filed the information on August 5, 1988.
shall be changed to read:
         The State maintains that the County Attorney was
    under oath when he swore to the complaint. ~usticeof
    the Peace Beitz, testified that Claude Burlingame, the
    County Attorney at the time of the incident, swore to the
complaint when it was filed and recited the underlying
facts relating to probable cause. It argues that the
fact that the county attorney was not under oath before
reciting the fats supporting probable cause does not
invalidate the arrest. The State further contends that
the substantial rights of the accused are not at stake
and the accused's right to counsel does not attach when
the State applies for leave to file an information. It
urges that a district court's finding of probable cause
may be challenged in a subsequent motion to dismiss.
Finally, the State maintains that defendant received an
independent judicial determination of probable cause
within a reasonable time. The complaint was filed on
July 13, 1988.       Sanders County deputies arrested
defendant two days later, and defendant appeared in
justice court that same day. The State applied to the
District Court for leave to file an information on August
4, 1988, 20 days after the arrest, and filed the
information on Au ust 5, 1988.
DATED this /$gay     of January, 1991.
