State v. Birthmark , 49 State Rptr. 583 ( 1992 )

NO. 91-411
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Ted L. Mizner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael T. Birthmark, Pro se, Deer Lodge, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Jennifer M.
Anders, Assistant Attorney General, Helena, Montana
Christopher G. Miller, County Attorney, Deer Lodge,
Montana
Submitted on Briefs: May 28, 1992
Decided: July 2, 1992
Filed:
i
' Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
The defendant, Michael T. Birthmark (Birthmark), appeals his
conviction of possession of a deadly weapon while in prison,
pursuant to § 45-8-318, MCA, following a jury trial in the Third
Judicial District Court, Powell County. We affirm.
As a preliminary matter, we note that after the notice of
appeal was filed in this case, Birthmark's trial counsel filed with
the District Court a motion to withdraw as counsel on the basis of
lack of meritorious appealable issues. Counsel ' s motion was
accompanied by a Memorandum which referred to possible arguments in
support of the appeal. The District Court granted the motion.
While the District Court was not the appropriate forum for a motion
to withdraw at that stage of the proceedings, we issued an Order
upon receipt of the District Court's order granting the motion
stating that the Memorandum submitted would be considered an
"Anders" brief. Anders v. California (l967), 386 U.S. 738, 87
S. Ct. 1396, 18 L. Ed. 2d 493. We provided Birthmark with an
opportunity to respond to his counsel's brief.
Following that response, we examined the record, as required
by Anders, and concluded that counsel's evaluation of the case was
sound; therefore, we granted counsel leave to withdraw and allowed
Birthmark to proceed pro se with his appeal. The State responded
to the "Andersn brief and Birthmark's supplement thereto.
We consider the following issues raised by Birthmark:
1. Did the District Court commit reversible error in
admitting certain testimony?
2. Is there sufficient evidence in the record to support the
defendant's conviction?
3. Is Birthmark entitled to further representation?
This action stems from an incident in the Montana State Prison
in which Officer Neil Lehto discovered a potentially dangerous
weapon in Birthmark's cell in "A" block, the maximum security unit
of the prison. Lehto found an altered eyeglass arm-piece tucked
away in a roll of toilet paper underneath Birthmark's sink. The
arm-piece appeared to have been straightened and sharpened.
On September 27, 1990, an information was filed charging
Birthmark with the offense of possession of a deadly weapon by a
prisoner in violation of 5 45-8-318, MCA. A jury trial was held at
which Birthmark was represented by court-appointed counsel
The jury found Birthmark guilty on April 18, 1991. The court
sentenced him to five years' imprisonment with an additional two-
year sentence as a result of the court's finding that Birthmark was
a persistent felony offender. Birthmark appealed.
I.
Did the District Court commit reversible error in admitting
certain testimony?
Birthmark contends that the District Court erred in admitting
certain testimony by Officer Lehto. The State responds that any
error in admission of the testimony was harmless.
Birthmark contends that Officer Lehto's testimony that the
arm-piece had been sharpened was inadmissible. Defense counsel
made a general objection to this testimony; no specific grounds
3
were given. Following the objection, counsel was allowed to voir
dire the witness. When the voir dire became cross-examination and
not voir dire, the District Court ended the voir dire.
We note that defense counsel's objection to this testimony was
inadequate; no specific basis for the objection was made. I1[A]n
objection, to be good, must point out the specific ground of the
objection. . . ." State v. Walker (1966), 148 Mont. 216, 223, 419
P.2d 300, 304; Rule 103, M.R.Evid. We conclude that defense
counsel's general objection was insufficient to preserve the error
for appeal.
In addition, Birthmark objected to Officer Lehto's testimony
concerning the purpose for treating the arm-piece as evidence,
tagging it and taking steps to preserve it. Defense counsel
objected that the question called for a legal conclusion which the
witness was not qualified to make. The court overruled counsel's
objection and Officer Lehto responded:
We send it up to the prison base for them to make a
determination on this as a dangerous weapon.
Lehto testified that tagging the evidence preserves the matter for
future prosecution.
The record reveals that Officer Lehto's testimony concerning
these procedures was descriptive only. The question did not call
for a legal conclusion, nor did Lehto's response constitute such a
conclusion. We conclude, therefore, that the admission of Officer
Lehtols testimony concerning the processing of evidence was not
error.
Lehto also was allowed to testify, over objection that the
4
testimony was speculative, that the arm-piece had been sharpened
and that:
A: The only conceivable reason that this [altered
eyeglass arm-piece] would be in an inmate's cell, in my
opinion, is to be used as a shank. It was either given
to Mr. Birthmark to keep for somebody, or it was made
into this position to trade for other contraband --
Birthmark is correct that Lehto's testimony concerning the
sharpness of the arm-piece and its possible uses called for
speculation. Therefore, admission of this testimony was error.
The judge, however, had the testimony stricken from the record and
admonished the jury to disregard it. Striking erroneously admitted
evidence and admonishing the jury to disregard it serves to cure
the error. State v. Smith (1986), 220 Mont. 364, 715 P.2d 1301.
Birthmark further objected, on relevancy grounds, to Lehto's
testimony that specific items were not permitted in "A" block.
This testimony was irrelevant and its admission was error. We must
decide, therefore, whether the error was prejudicial and affected
the substantial rights of the party, or whether the error is
harmless. Section 46-20-701, MCA. The test for prejudicial error
is whether there is a reasonable possibility that the evidence
might have contributed to the conviction. Brodniak v. State
(1989), 239 Mont. 110, 779 P.2d 71.
Lehto's testimony was a mere recitation of prison policy which
added nothing to the case. It was not related to the controlling
facts of the case and did not cast Birthmark, or any action or
activity by him, in a negative light. We conclude that no
reasonable possibility exists that this improperly admitted
evidence contributed to the jury's verdict. Accordingly, we hold
that any error on the part of the District Court in admitting
Officer Lehtols testimony was harmless error.
Is there sufficient evidence in the record to support the
defendant's conviction?
Birthmark claims that he is innocent of the charge of
possession of a deadly weapon in prison. The State contends that
there is sufficient evidence on the record to support the
conviction.
The standard of review for sufficiency of the evidence in
criminal cases is whether "evidence, when viewed in a light most
favorable to the prosecution, would allow a rational trier of fact
to find essential elements of the crime beyond a reasonable doubt."
State v. Beach (1991), 247 Mont. 147, 805 P.2d 564. Birthmark was
convicted under 1 45-8-318, MCA, which provides:
Every prisoner committed to the Montana state prison ..
.
who, while at the state prison . . .
purposely or
knowingly possesses or carries upon his person or has
under his custody or control without lawful authority a
dirk, dagger, pistol, revolver, slingshot, sword cane,
billy, knuckles made of any metal or hard substance,
knife, razor not including a safety razor, or other
deadly weapon is guilty of a felony.
The evidence is undisputed that Birthmark was an inmate at the
Montana State Prison and that he possessed the altered eyeglass
arm-piece. The only elements of the offense at issue, therefore,
are whether the arm-piece was: 1.) a deadly weapon 2.) knowingly
or purposely possessed by Birthmark.
The jury was instructed on the basis of 45-2-101(71), MCA,
that a weapon is "any instrument, article, or substance which,
regardless of its primary function, is readily capable of being
used to produce death or serious bodily injury.1t The jury had the
altered arm-piece before it. In addition, Lehto testified that the
arm-piece had been classified as a deadly weapon by prison
authorities. We conclude that sufficient evidence was presented
upon which the jury could properly determine beyond a reasonable
doubt that the arm-piece was a deadly weapon.
We must also determine if Birthmark 11knowingly8t
possessed a
deadly weapon. "When knowledge of the existence of a particular
fact is an element of an offense, such knowledge is established if
a person is aware of a high probability of its existence." Section
45-2-101 (33) , MCA. Here, knowledge that the altered arm-piece
could have been construed as a deadly weapon is needed to satisfy
the statute. Testimony was offered that prisoners in "A" block
were allowed nothing that had been altered. Birthmark testified
not only that he altered the arm-piece, but that after doing so,
the arm-piece was sharper. We conclude that there is evidence on
the record that Birthmark was aware of a high probability that the
altered arm-piece could be construed as a deadly weapon.
We hold that there was sufficient evidence for the jury to
find the elements of the crime beyond a reasonable doubt and,
therefore, to support defendant's conviction.
111.
Is Birthmark entitled to further representation?
Birthmark requests this Court appoint new counsel to handle
his appeal. We decline t o do so. The requirements of Anders are
met by the orders issued and procedures utilized by this Court in
the present case. Having determined that no meritorious issues
exist on appeal, we hold that Birthmark is not entitled t o further
representation.
Affirmed.
We concur:
A
ces
July 2, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Michael T. Birthmark
700 Conley Lake Road
Deer Lodge, MT 59722
Hon. Marc Racicot
Attorney General
Justice Bldg.
Helena, MT 59620
Christopher Miller
County Attorney
Powell County Courthouse
Deer Lodge, MT 59722
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY:
Depu