STATE v DePUE
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No. 88-591 IN THE SUPREME COURT O F T H E S T A T E O F MONTANA 1989 S T A T E O F MONTANA, P l a i n t i f f and R e s p o n d e n t , -vsDAVID ARTHUR D e P U E , D e f e n d a n t and A p p e l l a n t . A P P E A L FROM: D i s t r i c t C o u r t of t h e T h i r d J u d - i c i a l D i s t r i c t , I n and f o r t h e C o u n t y of P o w e l l , T h e H o n o r a b l e T e d I,. M i z n e r , Judge p r e s i d i n g . COUNSEL O F RECORD: For A p p e l - l a n t : C.F. Mackay, Anaconda, Montana For R e s p o n d e n t : Hon. M a r c R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , Montana K a t h y Seeley, A s s t . A t t y . G e n e r a l , H e l e n a C h r i s t o p h e r G. M i l l e r , C o u n t y A t t o r n e y , D e e r L o d g e , Montana S u b m i t t e d on B r i e f s : Decided: I - Filed: d ' - C --. ~ 1 ) I ,- , -1 Clerk A p r i l 6, J u n e 1, 1 9 8 9 1989 M r . J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e O p i n i o n o f t h e Court. This appeal arises from a Third J u d i c i a l D i s t r i c t Court, Ted L. Mizner p r e s i d i n g . conviction entered i n the Powel..l County, t h e Honorahle F o l l o w i n g a bench t r i a l , d e f e n d a n t was found g u i l t y o f a g g r a v a t e d a s s a u J t a n d now a p p e a l s . W e affirm. Myron Cunningham, t h e victim, was prisoner a Montana S t a t e P r i s o n i n Deer L,odge, Montana. 1 9 8 7 , a s h e walked t h r o u g h t h e p r i s o n y a r d , at the On August 1 7 , Mr. Cunningham was s t r u c k i n t h e e y e a l l e g e d l y by d e f e n d a n t , David DePue. I n i t i a l l y believing t h e i n j u r y t o be minor, M r . Cunningham r e p o r t e d t o t h e i n f i r m a r y d o c t o r s t h a t h e had been h i t i n t h e e y e w i t h a ba.sebal.1. Later i n t h e evening, M r . Cunningham i n f o r m e d d - o c t o r s t h a t someone had s t r u c k him, b u t r e f u s e d t o identify his assailant. the injury would On August result in the 1.987, upon l e a r n i n g 21, loss of his eye, Mr. defendant was Cunningham i d e n t i f i e d d e f e n d a n t a s t h e a s s a i l a n t . Based placed on security upon assault allegations, lock-up status compliance with temporary unit. Guidelines, hearing. the In prison officials within the conducted the Inmate a maximum Rules and reclassification E s s e n t i a l l y , t h e hearing g i v e s an inmate n o t i c e o f t h e r e a s o n h e i s b e i n g moved t o a n o t h e r p a r t o f t h e p r i s o n . At the outset of commented to t h e hearing, defendant p r i s o n o f f i c i a l Tom F o r s y t h that charges may Immediately, defendant responded " [ £ ] o r what? fist." Thereafter, volunteer any officials information. instructed The hearing (19661, 384 U . S . 436, 86 S . C t . filed. I o n l y u s e d my defendant not to proceeded without d e f e n d a n t h a v i n g been r e a d h i s Miranda w a r n i n g s . Arizona be ~iranda . v 1602, 16 ~ . ~ d . 2694. d At trial, defendant moved to suppress all testimony concerning the incriminating statement, claiming the statement was made in violation of his Miranda rights. After hearing the disputed testimony and oral arguments by both parties, the District Court denied the motion, concluding defendant's statement was not made in response to any "interrogation." Thereafter, the District Court heard evidence, including the testimony of the victim, conflicting statements of two other prison inmates, and medical testimony of the infirmary physician. On August 23, 1988, the District Court entered judgment finding defendant guilty of aggravated assault. The defendant presents two issues for our review: 1. Did the District Court err when it allowed testimony concerning the defendant's incriminating statement made during the reclassification hearing prior to the defendant being informed of his Miranda rights? 2. Did sufficient evidence exist to convict defendant of the offense of aggravated assault? At trial, the District Court admitted the testimony of Tom Forsyth, a prison official present during defendant's reclassification hearing. Mr. Forsyth testified that defendant, after learning that charges may be filed as a result of the alleged assault, immediately remarked "[£]or what? I only used my fist." This comment was made prior to a reading of Miranda guarantees. Defendant contends the statement was improperly admitted. into evidence during his criminal trial and in violation of his privilege against self-incrimination. Miranda requires an individual "taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning," be notified . assure[d] that the of " h i s right of silence and . . . . ." exercise of the right will be scrupulousl.y honored Miranda, 354 U.S. at 478-79, 86 S.Ct. at 1630, 16 I,.Ed.2d at -. 726. We do not question the fact that defendant was in custody when the incriminating statement was made. State V. Dannels (Mont. 1987), 734 P.2d 188, 44 St.Rep. 472. Rather, we examine defendant's assertions of "interrogation." The Defendant argues our decision in State v. Harris (1978), 176 Mont. 70, 576 P.2d 257, controls the outcome of the present appeal. In Harris, prison officials discovered a knife in a cell. shared by inmates Harris and Hendricks. A formal disciplinary hearing was scheduled and each inmate was provided a lay-advisor to assist in the hearings. During Hendricks-hearing, Harris made incriminating statements in response to questions asked by the lay-advisor. These statements were later used against Harris during a criminal trial. On appeal of his conviction, we found the const.itutional guarantees announced in Miranda applicable: [Tlhe prison disciplinary hearing was conducted by prison officials for the purpose of ascertaining inmate responsibility for prison offenses punishable under the Inmate Rules and Guidelines. No notice of potential criminal prosecution was announced to Harris until after he uttered the incriminating statements at Hendricks' disciplinary hearing. The constitutional guarantees of the Fifth Amendment, cannot be subverted under the guise Harris knowingly and voluntarily uttered the incriminating statements. ... Harris, 576 P.2d at 258. Defendant's reliance upon Harris is misplaced. The cited case concerned statements elicited from questions asked during a formal prison disciplinary hearing. In the instant case, no questions were asked defendant, and testimony at trial indicated that prison officials seldom make inquiries of the inmates hearings regarding alleged incidents. Rather, the simply g i v e n o t i c e and d e t e r m i n e f u t u r e placement within the prison. I n S t a t e v . Ryan ( 1 9 7 9 ) , 182 Mont. we found that statements his a r r e s t were n o t t h e p r o d u c t o f c u s t o d i a l i n t e r r o g a t i o n . In Ryan, to execute a officers search officers t o by arrived warrant. s e a r c h Ryan's defendant The home prior 1146, to four police made 130, 595 P.2d a t defendant's warrant home authorized for various the f i r e a r m s which d e f e n d a n t had e a r l i e r r e p o r t e d s t o l e n and f o r which he had r e c e i v e d i n s u r a n c e compensation. warrant, Upon r e a d i n g a copy o f t h e " [wl e l l , you guys have defendant t o l d t h e o f f i c e r , g o t m e anyway. I w i l l j u s t show you where t h e guns a r e a t . " Ryan e s c o r t e d t h e o f f i c e r s t o h i s bedroom, and p o i n t e d a t t h e closet, and "[tlhe said, o f f i c e r s began checking t h e weapons, defendant writing them Ryan told down submitting the placed O n situation was because free we from freedom o f a c t i o n by t h e statements were not that he the in there." and on was read When altered his in after officers Miranda " [wlhere t h e e n t i r e that coercion or deprivation of law enforcement o f f i c e r s and t h e result of interrogation, r e q u i r e m e n t s of Miranda were n o t a p p l i c a b l e . " 711, 5 0 L.Ed.2d o u t i n Miranda, 492, 9 7 714. A s was p o i n t e d the Ryan, 5 9 5 P . 7 d a t 1 1 4 9 , c i t i n g Oregon v . Mathiason (1-97?), 429 U . S . S.Ct. sense them the defendant the t h e various no Thereafter, found any there had report. arrest appeal, are s e r i a l numbers them burglary under warnings. guns a c o n f e s s i o n which i s t r u l y v o l u n t a r y i s n o t f o r e c l o s e d from e v i d e n c e b e c a u s e t h e statement was made before the person c o n f e s s i n g had. been warned o f h i s r i g h t s : [Alny statement given freely and compelling any voluntarily without influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can Volunteered be interrogated statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today. ... Miranda, 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726. Defendant was not questioned at the reclassification hearing. We find defendant's statement was a voluntary Miranda. statement outside the application of Next, we turn to defendant's second claim. Our standard of review when presented with a challenge to the sufficiency of the evidence is " [wlhether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State 17. McDonald (Mont. 19871, 734 P.2d 1216, 1217, 44 St.Rep. 593, 595, citing Tackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 T,.Ed..?d 560, 573; State v. Rodriguez (Mont. 1981), 628 P.2d 280, 38 St.Rep. 578F. This standard gives responsibility to the trier of fact to "[rlesol~re conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. " ,Tackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. Defendant contends the evidence presented at trial was insufficient to support a conviction. Defendant argues that the conviction is based solely on the word of a convicted felon, and for this reason, we should view Mr. Cunningham's testimony with distrust. However, we decline to engage in a battle over the credibility of witnesses. Rather, the credibility of witnesses and the weight assigned to their testimony is left to the trier of fact. State v. Green ( 1 9 8 4 ) , 212 Mont. 20, 605 P.2d 370. Of the three inmates testifying, the District Court chose to accept the victim's testimony. At trial, Mr. Cunningham testified to the ill will which existed between himself and defendant prior to the assault, including an earlier threat. Additionally, Mr. Cunningham stated that after he was hit in the eye, he saw defendant hide something in his pocket, giving Mr. Cunni-ngham the indication that he had been struck with some sort of an instrument. Resides the victim's testimony, other evidence supports the conviction. Dr. Ridgeway testified that the injury resulted from a rupture of the orbit of the left eye. While Dr. Ridgeway stated that a large foreign object embedded in the seam of a baseball could have caused the injury, nonetheless, he doubted that the arc of a thrown ball could have penetrated deep enough, making a baseball an unlikely mechanism. Finally, we view defendant's incriminating statement made during the recl-assification hearing strong evidence to support his conviction. Affirmed. We concur:
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