State v. Pambrun ( 1989 )

No. 84-564
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1989
STATE O F MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
MICHAEL PAMBRUN,
D e f e n d a n t and A p p e l l a n t .
C S
A P P E A L FROM: ~ i s t r i c t o u r t of t h e F o u r t h ~ u d i c i a l i s & i c t , o
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I n and For t h e C o u n t y of is sou la, Z
T h e H o n o r a b l e J a c k L . G r e e n , Judge ~ r e s i d i q o 6
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COUNSEL O F RECORD: m"
For A p p e l l a n t : rs
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William Boggs, Missoula, Montana 07; 0
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Wendy H o l t o n , H e l e n a , M o n t a n a G
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For Respondent:
Marc Racicot, Attorney General, Helena, Montana
R o b e r t L . D e s c h a m p s 111, C o u n t y A t t o r n e y , is sou la
Montana
submitted: O c t o b e r 20, 1989
Decided: November 28, 1989
Filed:
~ustice William E. Hunt, Sr. delivered the Opinion of the
Court.
A jury empaneled in the District Court of the Fourth
Judicial District, Missoula County, found Michael Pambrun,
defendant, guilty under 5 45-5-401, MCA, of the offense of
robbery. The ~istrict Court sentenced defendant to the
Montana State Prison for a term of 40 years with credit for
time served. Defendant was designated a dangerous offender
for the purpose of parole eligibility and a persistent felony
offender. Defendant appeals. We affirm.
The following issues are raised on appeal:
1. Whether the ~istrict Court erred in denying
defendant's motion to suppress testimony of his parole
officer concerning statements defendant made to his parole
officer while he was incarcerated.
2. Whether sufficient evidence supported defendant's
robbery conviction.
3. Whether the District Court's delay in answering a
written question from the jury during deliberations
concerning the possibility of a hung jury prejudiced
defendant's right to a fair trial and, thus, constituted
error.
On November 16, 1983, Eugene Medsker got into a game of
stud poker, in which defendant was one of the participants,
at the Oxford Bar and Cafe in iss sou la, Montana. The game
lasted from approximately 6:00 p.m. to approximately 9:00
p.m. Medsker bought $30.00 in chips and proceeded to collect
more in winnings. Defendant bought chips in $20.00 increments
throughout the evening but, as lady luck was not in his
favor, he lost them all.
When t h e game broke up, Medsker c a s h e d i n h i s c h i p s f o r
$100.50 at the cashier window. As he was receiving his
money, he noticed defendant standing a few f e e t away. He
then put the cash i n h i s w a l l e t which, when added t o t h e
money a l r e a d y i n h i s w a l l e t , t o t a l e d a p p r o x i m a t e l y $141.00.
He t h e n went to the restroom. While i n t h e restroom, he
n e i t h e r saw anyone n o r h e a r d anyone e n t e r .
Medsker t u r n e d around and was t w i c e s t r u c k i n t h e f a c e
and knocked t o t h e f l o o r . The o n l y r e c o l l e c t i o n h e had o f
his assailant before he lost consciousness was that the
a s s a i l a n t was wearing b l u e j e a n s .
S h o r t l y a f t e r 9:00 p.m., I d a Mae Dagen, a c a r d d e a l e r a t
t h e Oxford, o b s e r v e d d e f e n d a n t coming from t h e back a r e a o f
t h e b a r where t h e r e s t r o o m s w e r e l o c a t e d . He proceeded t o
t h e end o f t h e b a r where he wiped h i s hands on a b a r r a g ,
fixed the knot on the sweater that was draped over his
shoulder, p i c k e d up two c a n s t h a t were s i t t i n g on t h e b a r ,
moved down t h e b a r where h e spoke w i t h t h e b a r t e n d e r , s e t t h e
cans down, and walked out the f r o n t door. Dagen d i d n o t
observe anything unique or unusual about the defendant at
t h a t t i m e e x c e p t t h a t t h e b a r r a g h e wiped h i s hands on was
dirty.
Shortly thereafter, Medsker regained c o n s c i o u s n e s s and
o b t a i n e d a s s i s t a n c e from t h o s e i n t h e Oxford. Medsker had
l a c e r a t i o n s and b r u i s e s on h i s f a c e , neck, and r i b s and h i s
nose was broken. H i s w a l l e t c o n t a i n i n g $141.00 was m i s s i n g .
At approximately 9:15 p.m., O f f i c e r Robert Charles of
the Missoula Police Department arrived at the Oxford to
investigate the incident. The o f f i c e r i n t e r v i e w e d Medsker,
Oxford employees, and Oxford p a t r o n s . From t h e i n t e r v i e w s ,
h e s u s p e c t e d d e f e n d a n t and began a s e a r c h o f downtown b a r s
f o r him. O f f i c e r C h a r l e s , who knew d e f e n d a n t l i k e d t o p l a y
poker, located defendant at the Trails West Bar where
d e f e n d a n t was once again engaged in a l o s i n g poker game.
The o f f i c e r o b s e r v e d t h a t d e f e n d a n t ' s s h i r t was s p o t t e d
with blood, t h e k n u c k l e s on h i s r i g h t hand were s k i n n e d and
bloody and h e was w e a r i n g b l u e j e a n s . Defendant v o l u n t a r i l y
accompanied t h e o f f i c e r t o t h e p o l i c e s t a t i o n , where he was
a r r e s t e d and r e a d h i s Miranda warning. A t t h e time of his
a r r e s t , d e f e n d a n t had $70.80 on h i s p e r s o n .
The n e x t day, d e f e n d a n t made h i s i n i t i a l a p p e a r a n c e and
was a g a i n a d v i s e d o f h i s r i g h t s . A t t h a t time, he requested
appointed counsel.
A f t e r h i s i n i t i a l appearance, defendant telephoned h i s
p a r o l e o f f i c e r and r e q u e s t e d t h a t h i s p a r o l e o f f i c e r v i s i t
him i n j a i l . The p a r o l e o f f i c e r d i d v i s i t d e f e n d a n t i n j a i l ,
where d e f e n d a n t r e l a y e d t h e e v e n t s o f t h e p r e v i o u s e v e n i n g t o
him i n c l u d i n g t h e f a c t t h a t d e f e n d a n t knew an o l d man he had
been p l a y i n g poker w i t h had been a s s a u l t e d a t t h e Oxford.
The parole officer reported defendant's statements to the
police.
On December 20, 1983, defendant was charged by
information with the offense of robbery i n v i o l a t i o n of $
3
45-5-401, MCA. On February 24, 1984, defendant filed a
motion to suppress statements made to his parole officer
during his incarceration. A hearing on the motion was
conducted on February 29, 1984, and the motion was
subsequently denied.
On March 8 , 1984, a j u r y found d e f e n d a n t g u i l t y o f t h e
offense of robbery. On ~ p r i l 30, 1984, defendant was
s e n t e n c e d t o f o r t y y e a r s i n t h e Montana S t a t e p r i s o n . He was
designated a dangerous offender and a persistent felony
of f e n d e r .
The f i r s t i s s u e r a i s e d on a p p e a l i s whether t h e ~ i s t r i c t
Court erred i n denying d e f e n d a n t ' s motion to suppress the
testimony of his parole officer concerning statements made to
him while defendant was incarcerated. Specifically, his
parole officer testified that defendant told him that
defendant had knowledge that an "old man he had been playing
poker with had been assaulted." The parole officer also
testified that defendant relayed his activities of the night
in question to the parole officer and denied committing the
assault.
Defendant argued that the statements should have been
suppressed since his parole officer did not advise him of his
rights under ~ r i z o n a v. Miranda (1966), 384 U.S. 436, 86
S. Ct. 1602, 16 L. Ed. 2d 694, prior to speaking with the
defendant. He claimed that because he had asserted his right
to counsel at his initial appearance and that because the
parole officer was an agent of the state, that statements
made to his parole officer in absence of counsel should not
have been admitted at trial absent a Miranda warning.
Defendant's motion to suppress statements was denied by order
of the court.
The ~istrict Court specifically noted that the
prosecution proved by a preponderance of the evidence that
defendant's statements and admissions to his parole officer
were voluntary and, as such, came under the purview of S
46-13-301(4), MCA, which requires such proof. Thus, a
Miranda warning was not required. We agree.
As the court noted in its minutes and notice of ruling,
it based its order on three grounds. F'irst, defendant was
given his Miranda warning twice within 24 hours preceding his
conversation with his parole officer--once on November 16,
1983, at approximately 11:OO p.m., when he was arrested, and
again on November 17, 1983, at approximately 3:00 p.m., when
he made his initial appearance. Second, defendant initiated
the contact with his parole officer when he telephoned him
from jail and requested a meeting. Third, the District Court
noted that defendant's statements were not the result of an
interrogation but were conveyed freely and voluntarily.
Further, under State v. Higareda (Mont. 1989), 777 P.2d
302, 46 St.Rep. 1146, we adopted the rationale set forth in
State v. Terrovona (1986), 105 Wash.2d 632, 716 P.2d 295,
which stated that a probation officer may testify where the
probative value of the probation officer's testimony
outweighed the prejudicial effect and where the testimony is
relevant. In the present case, defendant's parole officer
testified as to the series of events that led to defendants
arrest as well as statements made to him by defendant. The
defendant conveyed the statements to his parole officer
freely and voluntarily after he had been twice advised of his
Miranda rights. As we stated in ~igareda,777 P.2d at 305:
While some prejudicial effect is inherent in this
type of testimony, we cannot say that it outweighed
the probative value.
Such is the case here. The statements are relevant as an
admission that he had knowledge of the assault at the Oxford.
The District Court did not err in admitting the parole
officer's testimony concerning defendant's statements.
The next issue raised on appeal is whether sufficient
evidence supported defendant's robbery conviction.
Defendant argues that the evidence was insufficient to
sustain the conviction as the evidence was based on
conjecture, suspicion and possibility. We disagree.
In State v. Hammer (Mont. 1988), 759 P.2d 979, 986, 45
St.Rep. 1326, 1333, we stated that the standard of review in
such a case is:
[Wlhether the evidence, when viewed in a light most
favorable to the State, is sufficient for a
rational trier of fact to have found the essential
elements of the crime beyond a reasonable doubt.
(Citation omitted. )
Here, evidence was presented in the form of testimony
and exhibits. Testimony included witnesses who saw that
defendant was a participant in a poker game at the Oxford in
which Medsker was also a player; that defendant gambled and
drank for three hours until he went broke; that Medsker
cashed out $100.50 worth of chips (which totaled
approximately $ 1 4 1 . 0 0 when added to the money in his wallet);
that Medsker went to the restroom where he was struck in the
face, knocked to the floor, and robbed of his wallet by an
unknown assailant wearing blue jeans; that defendant was seen
in the restroom area about the same time Medsker was robbed;
that defendant then returned to the bar, wiped off his hands
and exited the front door; and that defendant was wearing
blue jeans.
Officer Robert Charles testified that he interviewed the
patrons and employees of the bar and, based upon their
statements, suspected defendant as the perpetrator. Officer
Charles, who knew that defendant liked to play poker, found
him playing poker at the Trails West Bar where defendant had
$ 7 0 . 8 0 in cash and chips and had just lost about $ 6 0 . 0 0 . He
testified that when he found defendant, his knuckles on his
right hand were skinned and bloody and that he noticed
several spots of blood on defendant's shirt.
Several pieces of physical evidence were introduced
including the bloodstained clothing of both the defendant and
Medsker. Human blood stains were found on defendant's jeans
and shirt. However, the bloodstains on his jeans were too
small for analysis and the bloodstains on his shirt neither
matched the defendant's nor Medsker's blood type. Human
bloodstains were also found on the bar towel that defendant
used to wipe his hands before he left the bar. The
bloodstains were similar to the type found on defendant's
shirt. It was stipulated that bloodstains found on Medsker's
shirt were his.
In State v. Armstrong (1980), 189 Mont. 407, 616 P.2d
341, we upheld a conviction based on similar facts and
circumstances. In that case, the homicide victim was robbed
after cashing in $400.00 in chips he won in a poker game in
which the defendant participated. The defendant cashed in
$30.00 in chips. Shortly thereafter, when defendant was
arrested, he had $319.02 in cash on his person and it was
established he had spent $100 earlier that day. ~loodstains
were found on several items belonging to defendant (the
opinion did not state that the bloodstains matched any
particular person's blood type). Also, a bootprint similar
in size and configuration to defendant's boot was found in
the area of the body.
In the present case, as in Armstrong, evidence presented
was circumstantial in nature. In Armstrong, 616 P.2d at 346,
we stated:
[~Iircumstantial evidence is not always inferior in
quality. The determination as to the sufficiency
of circumstantial evidence to make a case for the
jury and to sustain a conviction is one to be made
upon all the facts and circumstances which are to
be taken into consideration collectively. State v.
DeTonancour (1941), 112 Mont. 94, 98, 112 P.2d
1065, 1067.
circumstantial evidence is sufficient to sustain a
conviction where it is of such "quality and quantity as to
legally justify a jury in determining guilt beyond a
reasonable doubt . .
. " State v. Weaver (1981), 195 Mont.
481, 495, 637 P.2d 23, 31. The evidence presented in this
case, although circumstantial in nature, was sufficient to
sustain a verdict of guilty.
The last issue raised on appeal is whether the ~istrict
Court's delay in answering a written question from the jury
during deliberations concerning the possibility of a hung
jury prejudiced defendant's right to a fair trial and, thus,
constituted error.
Here, the jury retired for deliberations at 11 :52 a.m.
At 5:32 p.m., a note from the jury was delivered to the court
by the bailiff asking if a hung jury was possible in the
case. As evidenced by the minutes and note of ruling, all
counsel were immediately summoned by the court and the
sheriff brought the defendant into chambers at approximately
6:20 p.m.
The following note was prepared by the court and
approved by the defendant and all counsel:
A hung jury is possible in any case, but you would
have to deliberate much longer before we could
determine that there is a hung jury in this case.
A hung jury is possible only if there is no
possibility of reaching a unanimous verdict.
The minutes indicate that the note was taken to the jury by
the bailiff but not delivered because the jury informed the
bailiff that it had reached a verdict. The jury returned to
court at 6:33 p.m. where it announced a verdict of guilty for
the charge of robbery.
Defendant contends that the delay in the court's
response, in effect, coerced a guilty verdict and prejudiced
the defendant's right to a fair trail. Defendant argues
that because the jury did not receive a prompt answer to its
written query that it "must have supposed . .. that its
question would be ignored." Defendant's contentions are
speculative to say the least.
Section 46-16-503(2), MCA, provides:
After the jury has retired for deliberation, if
there is any disagreement among the jurors as to
t h e t e s t i m o n y o r i f t h e j u r o r s d e s i r e t o be
informed on any p o i n t o f law a r i s i n g i n t h e c a u s e ,
t h e y must r e q u i r e t h e o f f i c e r t o c o n d u c t them i n t o
c o u r t . When t h e j u r o r s a r e b r o u g h t i n t o c o u r t , t h e
information requested may be given in the
d i s c r e t i o n of t h e court. I f such information i s
g i v e n , i t must be g i v e n i n t h e p r e s e n c e o f t h e
c o u n t y a t t o r n e y and t h e d e f e n d a n t and h i s c o u n s e l .
while the jury was not brought into court, the note
d r a f t e d wa.s p r e p a r e d by t h e c o u r t and approved by d e f e n d a n t
and a l l c o u n s e l . Defendant d i d n o t o b j e c t t o t h e manner i n
which the i n f o r m a t i o n was t o be r e l a y e d n o r d i d d e f e n d a n t
r e q u e s t f u r t h e r i n q u i r y c o n c e r n i n g t h e t i m e it t o o k t o d r a f t
and convey t h e n o t e . The j u r y had a l r e a d y r e a c h e d a v e r d i c t
by t h e t i m e a r e p l y was d r a f t e d . Th/ere was no e r r o r .
Affirmed.
Justice
W e Concur: