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 ,
-vs-
DAVID 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 : A p r i l 6, 1989
Decided: J u n e 1, 1 9 8 9
I- - C
Filed: --.
d '
~ 1 )
I ,
,- -1
Clerk
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 conviction entered i n the
Third J u d i c i a l D i s t r i c t Court, Powel..l County, t h e Honorahle
Ted L. Mizner p r e s i d i n g . 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 . We
affirm.
Myron Cunningham, t h e victim, was a prisoner at the
Montana S t a t e P r i s o n i n Deer L,odge, Montana. On August 1 7 ,
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 , 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. On August 21, 1.987, upon l e a r n i n g
the injury would result in the loss of his eye, Mr.
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 upon the assault allegations, defendant was
placed on temporary lock-up status within the maximum
security unit. In compliance with the Inmate Rules and
Guidelines, prison officials conducted a reclassification
hearing. 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 t h e hearing, p r i s o n o f f i c i a l Tom F o r s y t h
commented to defendant that charges may be filed.
Immediately, defendant responded " [ £ ] o r what? I o n l y u s e d my
fist." Thereafter, officials instructed defendant not to
volunteer any information. The hearing 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 . ~iranda .
v
Arizona (19661, 384 U . S . 436, 86 S . C t . 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
of " h i s right of silence and . .
. assure[d] that the
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 regarding alleged incidents. Rather, the
hearings 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. 130, 595 P.2d 1146,
we found that statements made by defendant prior to 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, four police officers arrived a t defendant's home to
execute a search warrant. The warrant authorized the
officers t o s e a r c h Ryan's home for various 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. Upon r e a d i n g a copy o f t h e
warrant, defendant t o l d t h e o f f i c e r , " [wl e l l , you guys have
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 said, "[tlhe guns are in there." When the
o f f i c e r s began checking t h e s e r i a l numbers on t h e various
weapons, defendant told them that there was no sense in
writing them down because he had altered them after
submitting the burglary report. Thereafter, the officers
placed Ryan under arrest and read defendant his Miranda
warnings. On appeal, we found that " [wlhere t h e e n t i r e
situation was free from any coercion or deprivation of
freedom o f a c t i o n by t h e law enforcement o f f i c e r s and t h e
statements were not the result of interrogation, the
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 . " 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 . 492, 9 7
S.Ct. 711, 5 0 L.Ed.2d 714.
A s was p o i n t e d o u t i n Miranda, 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
voluntarily without any compelling
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
be interrogated ... Volunteered
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
statement outside the application of - -
Miranda.
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: