STATE v PAMBRUN
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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 , -vsMICHAEL 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 C ~ Z I n and For t h e C o u n t y of is sou la, a m 5 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 - cq P 2 f -.re 5- :* < m (-. -: -,. COUNSEL O F RECORD: For A p p e l l a n t : William Boggs, Missoula, Montana Wendy H o l t o n , H e l e n a , M o n t a n a - 72 - m" .zD 3 rs m 07; 0 G 3 I' - '-t 0 C, For Respondent: Marc Racicot, Attorney General, Helena, Montana is sou la 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 , Montana submitted: Decided: Filed: O c t o b e r 20, 1989 November 28, 1989 0 ~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 money, then the cashier he noticed put the window. t h e n went cash to he receiving his few f e e t away. defendant standing a was He i n h i s w a l l e t which, money a l r e a d y i n h i s w a l l e t , He As the when added t o t h e t o t a l e d a p p r o x i m a t e l y $141.00. 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 . his assailant before he The o n l y r e c o l l e c t i o n h e had o f 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., t h e Oxford, I d a Mae Dagen, a c a r d d e a l e r a t 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 knot the shoulder, on the sweater that was draped over his 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, observe and walked out anything unique or the f r o n t door. unusual about Dagen d i d n o t 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. 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, nose was broken. At the Police 9:15 p.m., Department investigate the incident. Oxford employees, and r i b s and h i s 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 . approximately Missoula O f f i c e r Robert Charles of arrived at the Oxford to The o f f i c e r i n t e r v i e w e d Medsker, 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 f o r him. Medsker had downtown b a r s 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 d e f e n d a n t was defendant once at again the Trails engaged in Bar where l o s i n g poker a West 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 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 , him 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 The parole poker w i t h had been officer reported a s s a u l t e d a t t h e Oxford. defendant's statements to the charged by police. On December information with the 45-5-401, On MCA. motion to during his conducted 1983, 20, suppress offense of February February A 29, was robbery i n v i o l a t i o n of 24, statements incarceration. on defendant 1984, made to his hearing 1984, defendant parole on and the the filed $ 3 a officer motion was motion was subsequently denied. On March 8 , offense of 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 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 felony a dangerous offender and a persistent 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. ~istrict Court specifically noted that the 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 . which the Defendant d i d n o t o b j e c t t o t h e manner i n 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:
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