No. 82-127 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

CLIVE LAPP, 

Defendant and Appellant. 

Appeal from: District Court of the Sixteenth Judicial District, 

In and for the County of Custer 

Honorable A. B. Martin, Judge presiding. 

Counsel of Record: 

For Appellant: 

Brown and Huss, Miles City, Montana 

George Huss argued, Miles City, 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 Justlce Frank I. Haswell delivered the Opinion of 

the Court. 

Defendant Lapp was charged and convicted of negligent 

homicide by a Custer County jury. He now appeals the judgment of conviction and the denial of his motion to suppress. 

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 vehicle was proceeding east in the west-bound lane of 

Interstate 94, a divided highway, when it collided with a 

vehicle driven by Merlin Benjamin. Benjamin died as a 

result of injuries sustained in the accident. 

Lapp was taken to the hospital by ambulance before 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 

to Lapp was traveling at approximately 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 that Lapp was the driver. Cunningham was then taken to the hospital by ambulance. 

Bishop first questioned Lapp at the hospital at 10:25 

a.m. that morning. 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 been 
driving 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 "all his fault," 

and that they "could do anything they wanted to" with him. 

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 in Lapp's dashboard near the center 

but on the passenger side. It was later established that 

the tooth was Cunningham's. 

Lapp presents four issues on appeal: 

(I) Whether defendant was "in custody" 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 substantial evidence supports the verdict. 

Lapp first contends that he was "in custody" when 

questioned by Patrolman Bishop at the hospital. He argues 

that at that point of questioning he had become the focus of 

the investigation and that the questioning had therefore 
passed 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 the patrolman 

was required to give Miranda warnings prior to questioning. 

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 significantly deprive him of his freedom of action. We reject both 

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 his freedom of action in any significant way." 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.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 investigation which had focused 

on an accused." Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, 

16 L.Ed.2d at 706. The Court has since flatly applied the 

rule tnat "Miranda warnings are required only when there has 

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; State v. Dupre (1982), 

Nont . , 650 P.2d 1381, 39 St.Rep. 1660. In Dupre, 

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 at 1384, 39 St.Rep. at 1663. The issue then 

becomes whether Lapp was "deprived of his freedom of action 

in any significant way." We hold that he was not. 

Courts have considered a number of factors in determining whether a suspect is in custody or has been signif icantly deprived of his freedom of action for purposes of 

iqiranda warnings. The factors include the place 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, 341 A.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 

(whether or not a reasonable person being interrogated would 

feel he was in custody or otherwise significantly deprived 

of his freedom). See also, Lowe v. United States (9th Cir. 

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-hospital 
questioning does not amount to custodial interrogation. 341 

A.2d at 301. 

There the questioning took place in a 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 in nature. 

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 the questioning. 

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 defendant was not "in custody" in any legal sense of the 

word. Nor was she otherwise significantly deprived of her 

freedom. We held that the District Court erred in 

suppressing statements when no coercion was used to overcome 

the suspect's freedom of choice. Our position has not 

changed. See also: People v. Gilbert (1967), 8 Plich.App. 

393, 154 N.W.2d 800; State v. 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 in nature. 

Lapp next raises the argument that the attending 
physician should have Seen allowed to testify as to whether 

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 about Mr. Lapp's injuries from your 

examination of him, that is consistent 

with his being the driver? 

"MR. HAKER: I'm going to object to that. 

"THE COURT: Sustained. 

"BY MR. HUSS: Q. Bave you in your years 

of training and as a physician and surgeon, had an opportunity to view victims 

of automobile accidents? A. Yes. 

"Q. Approximately how many victims of 

automobile accidents would you say you've 

seen? A. Hundreds. 

Q. In viewing those victims, are you 

able to--and the types of injuries that 

they received, are you able to arrive at 

any conclusions as to how they received 

their injuries in an autornobile accident? 

A. You normally don't do that, because I 

think it's conjecture on our part, so we 

take care of what is wrong and usually 

focus on that. " 

Deiense counsel then made four attempts to ask the doctor 

whether the injuries sustained by Cunningham were consistent 

with the injuries that can be sustained by striking a 

steering wheel. The State objected in each instance on 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 the basis that defense counsel was invading the 

province of the jury. 

Defendant argues that the physician was not asked to 

draw the ultimate conclusion that Cunningham had struck the 
steerlng wheel with his chest. Rather, the doctor was 

properly asked as an expert witness to give an opinion as to 

the cause of injuries. We agree that under normal circumstances the doctor's opinion as to the cause of Cunningham's 

injuries would have been admissible. State v. 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 the province of the jury. 

Where prejudice is alleged in a criminal case, it will 

not be presumed bur must be established from the record that 

a substantial right has been denied. State v. Dupre, 650 

P.2d at 1386, 39 St.Rep. at 1666. 

In the instant case defense counsel laid an inadequate 

foundation for eliciting testimony on the cause of the 

injuries. The physician specifically stated that he did not 

normally form conclusions as to the cause of injuries in 

automobile accidents because it would only be conjecture on 

his part. The objections should have been sustained on 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 

extent of both individuals' injuries and the possible causes 

of those injuries to allow 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. I 
Defendant next challenges the District Court's refusal 

to give 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 at trial, you may consider the 

witnesses [sic] physical and mental condition at the time of the making 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 such prior statement." 

This Court has previously held that "where the jury is adequately instructed no error occurs for failure to give a 

party's proposed instruction which is already covered." 

State v. Smith (1975), 168 Mont. 93, 100, 541 P.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 as to whether 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 that part 

which you find to be true. 

"Evidence of an oral admission of the defendant ought to be viewed with caution." 

Defense counsel elicited extensive testimony concerning Lapp's injuries, his disorientation, and all of the 

circumstances surrounding the admission. The jury was 
adequately 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 to have 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 the right 

of the vehicle. Lapp concluded that Cunningham must have 

been in the driver's seat since his tooth was imbedded in 

the dashboard to the right of the steering wheel. Defendant 

also argues that the injuries sustained by the two occupants 

of the car are consistent to support the defense contention 

that Cunningham 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, 61 L.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 

light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime 

beyond a reasonable doubt." 646 P.2d at 538, 39 St.Rep. at 

1070. Applying that standard, we find sufficient evidence 

to support the verdict. 

When faced with conflicting evidence, this Court will 

not overturn the a jury's verdict where sufficient evidence 

to sustain the conviction is contained in the record even 
though enough evidence to prove the contrary conclusion is 

also present in the record. State v. Campbell (1980), 

Mont . , 615 P.2d 190, 200, 37 St.Kep. 1337, 1348. The 

defendant in Campbell was also charged 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 as a result of the collision. Defendant was found inside the vehicle. The State 

presented conflicting testimony that included a statement by 

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 to Lapp. Defendant and Cunningham each told Patrolman Bishop that Lapp was 

driving. Cunningham testified that he did not remember ever 

having driven Lapp's vehicle. Finally, Cunningham's tooth 

was imbedded in the dashboard on the passenger side of the 

vehicle. Substantial evidence supports the conviction. 

Af f irmed. 

%wJAtp-, 

Chief Justice 

We concur: 

/ Justices fl