No. 88-498 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSJESSE 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: 

~cKinley Anderson, 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: ~pril 27, 1989 

Decided: July 11, 1989 
Mr. Justice ~illiam E. 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. ~othing in 

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 f irmed. 

/ 

We Concur: