State v. Pambrun

783 P.2d 374, 240 Mont. 62, 1989 Mont. LEXIS 310
Montana Supreme Court·Decided November 28, 1989·No. No. 84-564·Published

Opinion

JUSTICE HUNT

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 § 45-5-401, MCA, of the offense of robbery. The District 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 District 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 Missoula, 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 the game broke up, Medsker cashed in his chips for $100.50 at the cashier window. As he was receiving his money, he noticed defendant standing a few feet away. He then put the cash in his wallet which, when added to the money already in his wallet, totaled [64]*64approximately $141.00. He then went to the restroom. While in the restroom, he neither saw anyone nor heard anyone enter.

Medsker turned around and was twice struck in the face and knocked to the floor. The only recollection he had of his assailant before he lost consciousness was that the assailant was wearing blue jeans.

Shortly after 9:00 p.m., Ida Mae Dagen, a card dealer at the Oxford, observed defendant coming from the back area of the bar where the restrooms were located. He proceeded to the end of the bar where he wiped his hands on a bar rag, fixed the knot on the sweater that was draped over his shoulder, picked up two cans that were sitting on the bar, moved down the bar where he spoke with the bartender, set the cans down, and walked out the front door. Dagen did not observe anything unique or unusual about the defendant at that time except that the bar rag he wiped his hands on was dirty.

Shortly thereafter, Medsker regained consciousness and obtained assistance from those in the Oxford. Medsker had lacerations and bruises on his face, neck, and ribs and his nose was broken. His wallet containing $141.00 was missing.

At approximately 9:15 p.m., Officer Robert Charles of the Missoula Police Department arrived at the Oxford to investigate the incident. The officer interviewed Medsker, Oxford employees, and Oxford patrons. From the interviews, he suspected defendant and began a search of downtown bars for him. Officer Charles, who knew defendant liked to play poker, located defendant at the Trails West Bar where defendant was once again engaged in a losing poker game.

The officer observed that defendant’s shirt was spotted with blood, the knuckles on his right hand were skinned and bloody and he was wearing blue jeans. Defendant voluntarily accompanied the officer to the police station, where he was arrested and read his Miranda warning. At the time of his arrest, defendant had $70.80 on his person.

The next morning, defendant telephoned his parole officer and requested that his parole officer visit him in jail. That afternoon, defendant made his initial appearance and was again advised of his rights. At that time, he requested appointed counsel.

The parole officer did visit defendant in jail, where defendant relayed the events of the previous evening to him including the fact that defendant knew an old man he had been playing poker with [65]*65had been assaulted at the 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 in violation of § 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 jury found defendant guilty of the offense of robbery. On April 30, 1984, defendant was sentenced to forty years in the Montana State Prison. He was designated a dangerous offender and a persistent felony offender.

The first issue raised on appeal is whether the District Court erred in denying defendant’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 Arizona 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 District 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 § 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. First, defendant was given his Miranda warning twice within 24 hours preceding his conversation with his parole officer — once on November 16, 1983, at approximately 11:00 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 [66]*66telephoned 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), [238 Mont. 130,] 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

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State v. Pambrun, 783 P.2d 374, 240 Mont. 62, 1989 Mont. LEXIS 310 (Mo. 1989).

783 P.2d 374 (State v. Pambrun) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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