No. 82-127 INTHE SUPREME COURT OF THE STATE OF MONTANA 1983

STATE OF MONTANA, Plaintiff and Respondent,

VS

# . CLIVE LAPP, Defendant and Appellant.

Appeal from: DistrictCourt of the Sixteenth Judicial District, In and fortheCounty of Custer Honorable A. B. Martin, Judge presiding. Counsel of Record: For Appellant: Brown and Huss, Miles City, Montana George Huss argued, MilesCity, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana James M. Scheier argued, Legal Intern, Office of

Attorney General, Helena, Montana Keith D. Haker, County Attorney, Pliles City, Montana

Submitted: November 24, 1982 Decided: February 4, 1983

### Mr. Chief JustlceFrank I. 

### Haswell delivered theOpinion of the Court. Defendant Lapp was charged and convicted of negligent homicide by a Custer Countyjury. He 

### now appeals thejudgment of convictionand thedenialof hismotion tosuppress. We 

### affirm. At 

### around 6:00 a.m. on September 16, 1981, defendant Lapp was involved in a 

### two-car collision in Custer County. Lapp's vehiclewas proceeding eastinthewest-bound laneof Interstate 94, 

### a divided highway, when it 

### collided with a vehicle driven by Merlin Benjamin. Benjamin died as a resultof injuriessustained intheaccident. Lapp was taken tothe hospitalby ambulancebefore the investigating highway patrolman, Robert Bishop, arrived at the scene. Bishop's investigation showed that the Benjamin vehicle had been traveling very slowly at the moment of collision, while the vehicle with license plates registered toLapp was traveling atapproximately 80 m.p.h. Bishop left the accident scene but 

### was called back a short time 

### later. On the second visit, Bishop talked to Dale Cunningham, the other occupant of the Lapp vehicle. Cunningham had left the car after the accident and later returned after Bishop's initial departure. Bishop questioned Cunningham briefly about the accident. Cunningham told the officer his name, stated that he 

### had not been driving and told Bishop thatLapp was thedriver. Cunningham 

### was then taken tothehospital by ambulance. Bishop first questioned Lapp atthe hospital at 10:25

a.m. 

### thatmorning. Lapp had been admitted to the emergency

room for minor injuries and for observation. Bishop asked Lapp his name, date of birth, and whether he had beendriving the vehicle at the time of the accident. Lapp responded with his name and date of birth. He then stated that he was driving, that the accident was "allhis fault," and that they "could do anything theywanted to" withhim. Lapp was not given a Miranda warning prior to questioning. There were two nurses present while Lapp was questioned. At no time prior to, during or immediately after his talk with Lapp did Bishop place defendant under arrest. Lapp's blood-alcohol analysis established a blood alcohol content of approximately .225% at the 

### time of the accident. Bishop further examined both vehicles and discovered a tooth imbedded inLapp's dashboard near thecenter but on the passenger side. It was later established that the toothwas Cunningham's. Lapp presents four issueson appeal: (I)Whether defendant was "incustody" when questioned by Patrolman Bishop; (2)Whether the attending physician should have been allowed to testify as to whether injuries suffered by the other occupant of defendant's car were consistent with his having struck the steering wheel; (3) Whether the jury was properly instructed on the factors to consider in determining the reliability of defendant's admission; and (4)Whether substantialevidence supports theverdict. Lapp first contends that he was "in custody" when questioned by Patrolman Bishop atthe hospital. He argues thatatthatpoint of questioninghehad become thefocusof the investigation and that the questioning had thereforepassed from the investigatory stage to the accusatory stage

as distinguished in Escobedo v. Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Defendant asserts that where such accusatorial attention had focused upon him, the questioning became custodial interrogation and thepatrolman



### was required to give Miranda warnings prior toquestioning. Miranda 

### v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 E.Ed.2d 694. Where the patrolman failed to give such warnings, Lapp concludes that the 

### District Court erred in failing to suppress his statement. Lapp also argues that the circumstances of questioning were such 

### as to significantlydeprivehim of hisfreedom of action. We rejectboth arguments. Lapp's reliance on Escobedo's distinction between investigatory and accusatory stages 

### is misplaced. The United States Supreme Court, in Miranda, defined "custodial irrterrogation" as "questioning initiated by 

### law enforcement officers after a person has been taken into custody or otherwise deprived of hisfreedomof action inany significantway." 384 U.S. 

### at444, 86 S.Ct. 

### at 1612, 16L.Ed.2d 

### at 706. (Emphasis added.) In Footnote 4 following that definition the Court stated: "This 

### is what we meant in Escobedo when 

### we spoke of an investigationwhich had focused

on an accused." Miranda, 384 

### U.S. at444, 86 S.Ct. at1612, 16 L.Ed.2d at706. The Court has since flatly applied the rule tnat "Miranda warnings are required onlywhen therehas been such a restriction on a person's freedom as to render him 'in custody.'" Oregon v. lblathiason (1977), 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714, 719. (Emphasis added.)This Court has followed Oregon v. Xathiason in applying that 

### test. State v. Graves (1981), Mont. I 622 P.2d 203, 207, 38 St.Rep. 9, 12; Statev. Dupre (1982), Nont

# . , 650 P.2d 1381, 39 St.Rep. 1660. InDupre, this Court stated that "[a] custodial interrogation situation requiring Miranda warnings 

### is not created simply because an individual 

### is the focus of an investigation." 650 P.2d at1384, 39 St.Rep. at 1663. The issue then becomes whether Lapp was "deprived of his freedom of action in any significantway." We hold thathe was not. Courts have considered a number of factors in determining whether 

### a suspect 

### is in custody or has been significantly deprived of his freedom of action for purposes of iqiranda warnings. The factors include theplace of interrogation, the 

### time of interrogation, persons present during interrogation, whether Miranda warnings were gratuitously given, the length and mood of interrogation, and whether or not the suspect

### was arrested following questioning. Cummings

v. State (1975), 27 Md.App. 361, 341A.2d 294, 303-305. In Cummings, the court also noted the irrelevancy of the "investigative focus" criteria following Miranda. 341 A.2d at 306. It distinguished Escobedo's subjective rule (whether 

### a police officer thinks that the suspect 

### is the focus of the investigation) from the objective Miranda standard (whetheror not 

### a reasonable person being interrogatedwould feel he was in custody 

### or otherwise significantly deprived of hisfreedom). See also, Lowe v. United States (9thCir. 

### 1969), 407 F.2d 1391, 1397; Williams v. United States (9th Cir. 1967), 381 F.2d 20, 22. The court in Cummings noted that the majority of cases have held that in-hospitalquestioning does not amount tocustodial interrogation. 341 A.2d 

### at301. There the questioning took place ina hospital room at about noon. The suspect's wife and another person were present during the brief and nonaccusatory interview. Re



### was not placed under arrest before, during or after the questioning. The court found that the questioning was noncustodial innature. In the instant case, Lapp was questioned in the emergency room of the hospital with two nurses present. Patrolman Bishop asked Lapp only his name, his date of birth, whether he was driving, what speed he 

### was traveling, and whether he would be willing to take a blood 

### test. He



### was not placed under arrest before, during or immediately following thequestioning. This Court has previously considered in-hospital interrogation. State ex rel. Berger 

### v. District Court 

### (1967), 150 Mont. 128, 432 P.2d 93. There, 

### we noted that the defendantwas not "incustody" inany legal senseof the word. Nor was she otherwise significantly deprived of her freedom. We held that the District Court erred in suppressing statementswhen no coercion

### wasused toovercome the suspect's freedom of choice. Our position has not changed. See also: People v. Gilbert (1967), 8 Plich.App. 393, 154N.W.2d 800; Statev. Sandoval (1969), 92 Idaho 853, 452 P.2d 350; State 

### v. Brunner (1973), 211 Kan. 596, 507 P.2d 233. The District Court properly denied Lapp's motion to suppress upon finding that the questioning was noncustodial innature. Lapp next raises the argument that the attending

### physician should have Seen allowed to testify as towhether injuries suffered by Cunningham were consistent with his having struck the steering wheel. During cross-examination of the physician by defense counsel, the following exchange took place:"Q. Are 

### there anything--is there anything aboutMr. Lapp's injuriesfromyour examination of him, that is 

### consistent with hisbeing the driver? "MR. HAKER: I'm

### going toobject tothat. "THE COURT: 

### Sustained. "BY MR. HUSS: 

### Q. Bave you inyour years of training and as a physician and surgeon, had an opportunity toview victims of automobile accidents? A. Yes. "Q. 

### Approximately how many victims of automobile accidentswould you sayyou've seen? A. 

### Hundreds. 

### Q. In viewing those victims, are you able to--and the types of injuries that they received, areyou able toarrive at any conclusions as to how they received their injuries inan autornobile accident? A. 

### You normally don't do that, because I 

### think it's 

### conjecture on our part, sowe 

### take care of what is 

### wrong and usually focus on that.

### " Deiense counsel then made four attempts to ask the doctor whether the injuriessustainedby Cunningham were consistent with the injuries that can be sustained by striking a steering wheel. The Stateobjected ineach instanceon the basis that the witness had indicated it 

### would be conjecture

on his part to try to state that. The District Court sustained each objection. On 

### the third attempt, the court sustained on thebasis thatdefense counselwas invading the province of thejury. Defendant argues that the physician was not asked to draw the ultimate conclusion thatCunningham had struck thesteerlng wheel with his chest. Rather, the doctor was properly asked asan expertwitness togiveanopinionasto the cause of injuries. We agree that under normal circumstances thedoctor'sopinionastothecauseof Cunningham's injurieswould have been admissible. Statev. Close (1981), Mont

# . , 623 P.2d 940, 946, 38 St.Rep. 177, 184. The 

### District Court erred in sustaining the objection on the basis that the question invaded theprovince of thejury. Where prejudice 

### is alleged ina criminal case, it will not be presumed burmust be established from the record that

a substantial right has been denied. State v. Dupre, 650 P.2d at1386, 39 St.Rep. at1666. In the instant case defense counsel laid an inadequate foundation for eliciting testimony on the cause of the injuries. The physician specifically statedthathe didnot normally form conclusions as to the cause of injuries in automobile accidentsbecause it would only be conjecture on hispart. The objections should have been sustainedon that basis. Further, detailed testimony was elicited on Lapp's fairly minor injuries and on Cunningham's extensive injuries. Finally, the two ambulance attendants testified that Cunningham's injuries

### were consistent with impact with

a steering wheel and that Lapp had no injuries consistent with such impact. There was sufficient evidence before the jury on the extentof both individuals' injuriesand thepossible causes of those injuries toallow 

### a jury determination. Cf. Weber

v. Biddle (1967), 72 Wash.2d 22, 431 P.2d 705, 708. Defendant has failed to demonstrate prejudice. Any error 

### was harmless. State v. Fitzpatrick (1980), Mont. IDefendant next challenges the DistrictCourt's refusal togive a jury instruction detailing factors the jury should consider in determining the reliability of defendant's admission. He contends that the following instruction should have been given: "In considering the weight and effect of prior statements, if any, by a witness inconsistent with the witnesses [sic] testimony attrial, you may consider the witnesses [sic] physical and mental condition atthe time of themaking of such statement, his intoxication or lack of intoxication, whether such statement was given under oath, any bias, prejudice, interest or motive that the witness may have had in making such statement and whether the witness admits or denies the making of suchprior statement." This Court has previously held that "where thejury 

### is adequately instructed no error occurs for failure to give a party's proposed instruction which 

### is already covered." Statev. Smith (1975), 168Mont. 93, 100, 541P.2d 351, 355. In such a situation, counsel has full opportunity to argue the merits of the defense. Here, substance of the refused instruction was adequately covered by Instruction No. 17, which defined admissions and then stated: "You are the exclusive judges astowhether an admission was made by the defendant and if the statement 

### is true in whole or in part. If you should find that such statement 

### is entirely untrue, you must reject it. If you find it is true in part, you may consider thatpart which you find tobe true. "Evidence of an oral admissionof the defendant ought tobe viewed with caution." Defense counsel elicited extensive testimony concerning Lapp's injuries, his disorientation, and all of the circumstances surrounding the admission. The jury wasadequately instructed. Defendant finally challenges the sufficiency of the evidence. He argues that unrefuted evidence presented by the defense expert witness established that 

### it was physically impossible for Lapp tohave beer: in the driver's seat and for Cunningham to have been in the passenger's seat. Defendant's expert witness, a former physics instructor at Miles City Community College, testified that if the rear of the Lapp vehicle swung to the right after impact, the occupants of the car would have been thrown toward theright of the vehicle. Lapp concluded that Cunningham must have been in the driver's seat since his tooth was imbedded in thedashboard tothe rightof the steeringwheel. Defendant alsoargues thatthe injuriessustainedby thetwo occupants of the car are consistent tosupport thedefense contention thatCunningham was the driver. This Court applies the standard set forth by the United States Supreme Court in Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61L.Ed.2d 560, 573, and adopted in State v. Plouffe (1982), Mont. I 646 P.2d 533, 538, 39 St.Rep. 1064, 1070. The Jackson standard 

### is "whether, after viewing the evidence in the lightmost favorable to the prosecution, any rational trier of factcould have found the essentialelements of the crime beyond a reasonable doubt." 646 P.2d at538, 39 St.Rep. at 1070. Applying that standard, we find sufficient evidence tosupport the verdict. When faced with conflicting evidence, this Court will not overturn the a jury's verdict where sufficientevidence to sustain the conviction 

### is contained in the record even

### though enough evidence to prove the contrary conclusion is 

### also present in the record. Statev. Campbell (1980), Mont

# . ,615 P.2d 190, 200, 

### 37 St.Kep. 1337, 1348. The defendant in Campbell was alsocharged with negligent homicide after a death resulting from an accident. Defendant's physics expert testified that the driver of the vehicle would have been thrown from the car asa resultof the collision. Defendant was found inside the vehicle. The State presented conflicting testimony thatincluded a statementby one of the passengers that Campbell was the driver. We 

### upheld Campbell's conviction. Here, the State introduced evidence showing that the license plates on the vehicle were issued toLapp. Defendantand Cunningham each toldPatrolmanBishop thatLapp was driving. Cunningham testified thathe didnotremember ever having driven Lapp's vehicle. Finally, Cunningham's tooth

was imbedded in the dashboard on the passenger sideof the vehicle. Substantialevidence supports the conviction. Af

### firmed. 

# %wJAtp-, Chief Justice

We

### concur:



## / Justices 

### fl