No. 84-564 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsMICHAEL PAMBRUN, 

Defendant and Appellant. 

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APPEAL FROM: ~istrict Court of the Fourth ~udicial ~is&ict,o 

In and For the County of is sou la, Z 

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The Honorable Jack L. Green, Judge ~residiqo 6 

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COUNSEL OF RECORD: m" I-' For Appellant: rms t-' 

William Boggs, Missoula, Montana 07; 0 

Wendy Holton, Helena, Montana 0 

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For Respondent: 

Marc Racicot, Attorney General, Helena, Montana 

Robert L. Deschamps 111, County Attorney, is sou la 

Montana 

Filed: 

submitted: October 20, 1989 

Decided: November 28, 1989 
~ustice William E. Hunt, Sr. 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 5 45-5-401, MCA, of the offense of 

robbery. The ~istrict 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 ~istrict 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 iss sou la, 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 approximately $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 day, defendant made his initial appearance and 

was again advised of his rights. At that time, he requested 

appointed counsel. 

After his initial appearance, defendant telephoned his 

parole officer and requested that his parole officer visit 

him in jail. 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 had 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 $3 

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 ~pril 30, 1984, defendant was 

sentenced to forty years in the Montana State prison. He was 

designated a dangerous offender and a persistent felony 

of fender. 

The first issue raised on appeal is whether the ~istrict 

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 ~rizona 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 ~istrict 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 S 

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. F'irst, 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:OO 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 telephoned 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), 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, 

which stated that a probation officer may testify where the 

probative value of the probation officer's testimony 

outweighed the prejudicial effect and where the testimony is 

relevant. In the present case, defendant's parole officer 

testified as to the series of events that led to defendants 

arrest as well as statements made to him by defendant. The 

defendant conveyed the statements to his parole officer 

freely and voluntarily after he had been twice advised of his 

Miranda rights. As we stated in ~igareda, 777 P.2d at 305: 

While some prejudicial effect is inherent in this 

type of testimony, we cannot say that it outweighed 

the probative value. 

Such is the case here. The statements are relevant as an 

admission that he had knowledge of the assault at the Oxford. 

The District Court did not err in admitting the parole 

officer's testimony concerning defendant's statements. 

The next issue raised on appeal is whether sufficient 

evidence supported defendant's robbery conviction. 

Defendant argues that the evidence was insufficient to 

sustain the conviction as the evidence was based on 

conjecture, suspicion and possibility. We disagree. 

In State v. Hammer (Mont. 1988), 759 P.2d 979, 986, 45 

St.Rep. 1326, 1333, we stated that the standard of review in 

such a case is: 

[Wlhether the evidence, when viewed in a light most 

favorable to the State, is sufficient for a 

rational trier of fact to have found the essential 
elements of the crime beyond a reasonable doubt. 

(Citation omitted. ) 

Here, evidence was presented in the form of testimony 

and exhibits. Testimony included witnesses who saw that 

defendant was a participant in a poker game at the Oxford in 

which Medsker was also a player; that defendant gambled and 

drank for three hours until he went broke; that Medsker 

cashed out $100.50 worth of chips (which totaled 

approximately $141.00 when added to the money in his wallet); 

that Medsker went to the restroom where he was struck in the 

face, knocked to the floor, and robbed of his wallet by an 

unknown assailant wearing blue jeans; that defendant was seen 

in the restroom area about the same time Medsker was robbed; 

that defendant then returned to the bar, wiped off his hands 

and exited the front door; and that defendant was wearing 

blue jeans. 

Officer Robert Charles testified that he interviewed the 

patrons and employees of the bar and, based upon their 

statements, suspected defendant as the perpetrator. Officer 

Charles, who knew that defendant liked to play poker, found 

him playing poker at the Trails West Bar where defendant had 

$70.80 in cash and chips and had just lost about $60.00. He 

testified that when he found defendant, his knuckles on his 

right hand were skinned and bloody and that he noticed 

several spots of blood on defendant's shirt. 

Several pieces of physical evidence were introduced 

including the bloodstained clothing of both the defendant and 

Medsker. Human blood stains were found on defendant's jeans 

and shirt. However, the bloodstains on his jeans were too 

small for analysis and the bloodstains on his shirt neither 

matched the defendant's nor Medsker's blood type. Human 

bloodstains were also found on the bar towel that defendant 

used to wipe his hands before he left the bar. The 
bloodstains were similar to the type found on defendant's 

shirt. It was stipulated that bloodstains found on Medsker's 

shirt were his. 

In State v. Armstrong (1980), 189 Mont. 407, 616 P.2d 

341, we upheld a conviction based on similar facts and 

circumstances. In that case, the homicide victim was robbed 

after cashing in $400.00 in chips he won in a poker game in 

which the defendant participated. The defendant cashed in 

$30.00 in chips. Shortly thereafter, when defendant was 

arrested, he had $319.02 in cash on his person and it was 

established he had spent $100 earlier that day. ~loodstains 

were found on several items belonging to defendant (the 

opinion did not state that the bloodstains matched any 

particular person's blood type). Also, a bootprint similar 

in size and configuration to defendant's boot was found in 

the area of the body. 

In the present case, as in Armstrong, evidence presented 

was circumstantial in nature. In Armstrong, 616 P.2d at 346, 

we stated: 

[~Iircumstantial evidence is not always inferior in 

quality. The determination as to the sufficiency 

of circumstantial evidence to make a case for the 

jury and to sustain a conviction is one to be made 

upon all the facts and circumstances which are to 

be taken into consideration collectively. State v. 

DeTonancour (1941), 112 Mont. 94, 98, 112 P.2d 

1065, 1067. 

circumstantial evidence is sufficient to sustain a 

conviction where it is of such "quality and quantity as to 

legally justify a jury in determining guilt beyond a 

reasonable doubt . . . " State v. Weaver (1981), 195 Mont. 

481, 495, 637 P.2d 23, 31. The evidence presented in this 

case, although circumstantial in nature, was sufficient to 

sustain a verdict of guilty. 
The last issue raised on appeal is whether the ~istrict 

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. 

Here, the jury retired for deliberations at 11 :52 a.m. 

At 5:32 p.m., a note from the jury was delivered to the court 

by the bailiff asking if a hung jury was possible in the 

case. As evidenced by the minutes and note of ruling, all 

counsel were immediately summoned by the court and the 

sheriff brought the defendant into chambers at approximately 

6:20 p.m. 

The following note was prepared by the court and 

approved by the defendant and all counsel: 

A hung jury is possible in any case, but you would 

have to deliberate much longer before we could 

determine that there is a hung jury in this case. 

A hung jury is possible only if there is no 

possibility of reaching a unanimous verdict. 

The minutes indicate that the note was taken to the jury by 

the bailiff but not delivered because the jury informed the 

bailiff that it had reached a verdict. The jury returned to 

court at 6:33 p.m. where it announced a verdict of guilty for 

the charge of robbery. 

Defendant contends that the delay in the court's 

response, in effect, coerced a guilty verdict and prejudiced 

the defendant's right to a fair trail. Defendant argues 

that because the jury did not receive a prompt answer to its 

written query that it "must have supposed . . . that its 

question would be ignored." Defendant's contentions are 

speculative to say the least. 

Section 46-16-503(2), MCA, provides: 

After the jury has retired for deliberation, if 

there is any disagreement among the jurors as to 
the testimony or if the jurors desire to be 

informed on any point of law arising in the cause, 

they must require the officer to conduct them into 

court. When the jurors are brought into court, the 

information requested may be given in the 

discretion of the court. If such information is 

given, it must be given in the presence of the 

county attorney and the defendant and his counsel. 

while the jury was not brought into court, the note 

drafted wa.s prepared by the court and approved by defendant 

and all counsel. Defendant did not object to the manner in 

which the information was to be relayed nor did defendant 

request further inquiry concerning the time it took to draft 

and convey the note. The jury had already reached a verdict 

by the time a reply was drafted. Th/ere was no error. 

Affirmed. 

We Concur: 

Justice