State v. Higareda , 238 Mont. 130 ( 1989 )

No. 88-498
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
STATE OF MONTANA,
Plaintiff and Respondent,
-VS-
JESSE JAMES HIGAREDA,
Defendant and Appellant.
APPEAL FROM: The District Court of the ~ighteenth~udicial~istrict,
In and for the County of all at in,
The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
~cKinleyAnderson, Bozeman, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
George M. Schunk, Asst. Atty. General, Helena
A. Michael Salvagni, County Attorney, Bozeman, Montana
Marty Lambert, Deputy County Attorney, Bozeman
submitted on ~riefs: ~ p r i l27, 1989
Decided: July 11, 1989
Mr. Justice ~ i l l i a mE. Hunt, Sr. , delivered the opinion of
the Court.
A jury empaneled in the District Court of the Eighteenth
Judicial District, Gallatin County, found Jesse James
Higareda, the defendant, guilty under S 45-6-204, MCA, of the
offense of burglary. The District Court sentenced defendant
to the Montana State Prison for a term of 15 years with five
years suspended and credit for time served. Defendant
appeals. We affirm.
The issues raised on appeal are:
1. Whether the ~istrict Court erred in denying
defendant's motion to suppress statements made to an
arresting officer.
2. Whether the ~istrict Court erred in admitting
testimony of defendant's parole officer during a jury trial.
On February 29, 1988, at approximately 3:00 a.m., two
men entered the Country Lanes Bowling Alley, two miles west
of Bozeman, through an air conditioning duct on the roof of
the building. The men triggered a silent alarm to which the
alla at in County Sheriff's Department responded. Anthony May,
defendant's partner, was apprehended in the building at that
time. The safe, a cash register, a cigarette machine, a pool
table, and poker machines had been looted. Several buckets
of quarters had been set aside and burglary tools were found
in the building.
At approximately 3:30 p.m. that same day, the sheriff's
department was again called to the Country Lanes to
investigate a report of a man, later identified as the
defendant, hiding above a false ceiling in the building.
Police officers surrounded the building. The defendant, who
attempted t.o flee, was then arrested in a nearby field. He
was placed in a patrol car and brought back to Country Lanes
where he was identified by the manager as the person who had
been spotted in the ceiling.
At that point, the arresting officer asked defendant
what the name of his partner was in the Country Lanes
burglary, to which defendant replied, "Didn't he tell you?"
He further stated to the officer that if his partner did not
give the police his name, the defendant was not going to
either.
Defendant was then transported to the Gallatin County
Sheriff's Department where he telephoned his parole officer.
He told his parole officer, "I really screwed up." He also
told the parole officer of his conversation with the
detective.
On March 15, 1988, an information was filed in the
District Court charging defendant with burglary in violation
of S 45-6-204, MCA. Defendant pled not guilty during his
March 17, 1988, arraignment. On April 7, 1988, a hearing was
held to consider defendant's motion to suppress the
statements he made to the arresting officer. The motion was
denied and a jury trial commenced on June 6, 1988. Defendant
was found guilty of the charge and, on June 27, 1988, was
sentenced to the Montana State Prison for a term of 15 years
with 5 years suspended and credit for time served.
The first issue raised on appeal is whether the District
Court erred in denying defendant's motion to suppress
statements made to an arresting officer.
The arresting officer, after taking defendant in
custody, asked defendant what the name of his partner was in
the Country Lanes burglary. The defendant replied, "Didn't
he tell you?" The officer explained that he thought
defendant's partner had given him a false name to which
defendant replied that if his partner had not given the
officer his name that defendant would not either. Defendant
contends that because he was never advised of his rights
prior to the questioning, as required under Arizona v.
Miranda (1966), 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694,
the statements should be suppressed. After a hearing on the
matter, the motion to suppress was denied.
We held in In Re Matter of J.W.K. (Mont. 1986), 724 P.2d
164, 167, 43 St.Rep. 1483, 1486, that the standard to be
applied in a motion to suppress is whether the District Court
predicated its decision on substantial credible evidence.
The record reflects that defendant did not recall being
advised of his rights after being taken into custody. In
fact, at the suppression hearing defendant testified that he
believed he had been advised of his rights prior to
questioning but that he was confused. Moreover, the
arresting officer testified that he did indeed advise
defendant of his rights before defendant was questioned.
Further, the District Court in a suppression hearing
must look at the totality of circumstances surrounding the
statements. J.W.K., 724 P.2d at 167. The circumstances may
include the experience, conduct, and capacity to understand
warnings. See State v. Blakney (1982), 197 Mont. 131, 138,
641 P.2d 1045, 1049. Here, the only unusual circumstance
alleged by defendant was his language difficulty. ~othingin
the record, however, reflects an inadequate ability of
defendant to communicate or understand the English language.
In fact, during the suppression hearing, defendant was asked
to convey his understanding of his rights and replied, "The
right to an attorney, right to remain silent, the right to
have an attorney present during any questioning, I guess.
That's about it." The District Court properly denied
defendant ' s motion to suppress in view of the circumstances
and based on the testimony of the arresting officer and the
defendant.
The second issue raised on appeal is whether the
District Court erred in admitting testimony of defendant's
parole officer during a jury trial.
Under S 2-2-102(6), MCA, a public officer is defined as
any state officer. State officers are defined under §
2-2-102(8), MCA, as all elected officers and directors of the
executive branch of state government. Although the Parole
and Probation Division comes under the executive branch of
government, a parole officer is neither an elected officer
nor director. Therefore, a parole officer is not a state
officer as defined above and thus, no privilege under §
26-1-810, MCA, extends to communications made to parole
officers.
Defendant argues that his parole officer's testimony was
unduly prejudicial since it showed that defendant had been
convicted of a crime. Although the issue is one of first
impression in Montana, washington allowed a parole officer to
testify at a parolee's trial. In State v. Terrovona (1986),
105 Wash.2d 632, 716 P.2d 295, a probation officer was
permitted to testify in a murder trial since the testimony
tended to establish a motive for murder. The Court found
that because the probative value of the probation officer ' s
testimony outweighed the prejudicial effect, the trial court
did not abuse its discretion in allowing the testimony. The
Court found the testimony relevant. See also State v.
Chavez (1988), 111 Wash.2d 548, 761 P.2d 607 and; State v.
Brown (1987), 47 Wash.App. 565, 736 P.2d 693. We so adopt
this rationale where such testimony is relevant.
Rule 401 M.R.Evid., provides in part:
Relevant evidence means evidence having any
tendency to make the existence of any fact that 1s
of consequence to the determination of the action
more probable or less probable than it would be
without the evidence.
In the present case, the defendant's parole officer
testified that defendant stated, "I really screwed up," and
that he had not revealed the name of his partner to the
police. The defendant voluntarily made the statements after
he had been arrested and advised of his rights as discussed
earlier. Defendant initiated the conversation when he
telephoned his parole officer to inform the parole officer of
his arrest. Although defendant was required to inform his
parole officer of arrest, the statements he made during the
telephone conversation were not a result of an interrogation
but were made freely and conveyed voluntarily. while some
prejudicial effect is inherent in this type of testimony, we
cannot say that it outweighed the probative value. The
statements are relevant as an admission of guilt. The
District Court properly admitted testimony of defendant's
parole officer.
~f firmed.
/
We Concur: