                                                          No.    88-591

                              IN THE SUPREME COURT O F T H E S T A T E O F MONTANA
                                                                1989




S T A T E O F MONTANA,

                                P l a i n t i f f and R e s p o n d e n t ,
               -vs-
DAVID ARTHUR D e P U E ,

                                D e f e n d a n t and A p p e l l a n t .




A P P E A L FROM:               D i s t r i c t C o u r t of t h e T h i r d J u d - i c i a l D i s t r i c t ,
                                I n and f o r t h e C o u n t y of P o w e l l ,
                                T h e H o n o r a b l e T e d I,. M i z n e r , Judge p r e s i d i n g .

COUNSEL O F RECORD:

               For A p p e l - l a n t :

                                C.F.    Mackay,       Anaconda, Montana

               For R e s p o n d e n t :

                                Hon. M a r c R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , Montana
                                K a t h y Seeley, A s s t . A t t y . G e n e r a l , H e l e n a
                                C h r i s t o p h e r G. M i l l e r , C o u n t y A t t o r n e y , D e e r L o d g e ,
                                Montana



                                                                S u b m i t t e d on B r i e f s :    A p r i l 6,   1989

                                                                   Decided:        J u n e 1, 1 9 8 9
                    I-    -                                              C
Filed:              --.
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                                                                Clerk
M r . J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e O p i n i o n o f t h e
Court.


         This      appeal     arises       from a        conviction          entered i n        the
Third J u d i c i a l D i s t r i c t Court,        Powel..l County, t h e Honorahle
Ted L. Mizner p r e s i d i n g .          F o l l o w i n g a bench t r i a l , d e f e n d a n t
was found g u i l t y o f a g g r a v a t e d a s s a u J t a n d now a p p e a l s .            We
affirm.
         Myron       Cunningham,        t h e victim,          was    a     prisoner      at    the
Montana S t a t e P r i s o n i n Deer L,odge, Montana.                          On August 1 7 ,
1 9 8 7 , a s h e walked t h r o u g h t h e p r i s o n y a r d ,           Mr.    Cunningham
was s t r u c k i n t h e e y e a l l e g e d l y by d e f e n d a n t , David DePue.
I n i t i a l l y believing       t h e i n j u r y t o be minor, M r .             Cunningham
r e p o r t e d t o t h e i n f i r m a r y d o c t o r s t h a t h e had been h i t i n t h e
e y e w i t h a ba.sebal.1.           Later i n t h e evening, M r .                Cunningham
i n f o r m e d d - o c t o r s t h a t someone had s t r u c k him, b u t r e f u s e d t o
identify his assailant.                    On August       21,       1.987, upon l e a r n i n g
the     injury       would        result     in    the     loss        of     his       eye,    Mr.
Cunningham i d e n t i f i e d d e f e n d a n t a s t h e a s s a i l a n t .
         Based       upon     the     assault        allegations,             defendant         was
placed       on     temporary        lock-up        status        within          the     maximum
security       unit.         In    compliance           with    the       Inmate     Rules      and
Guidelines,          prison       officials        conducted          a     reclassification
hearing.          E s s e n t i a l l y , t h e hearing g i v e s an inmate n o t i c e o f
t h e r e a s o n h e i s b e i n g moved t o a n o t h e r p a r t o f t h e p r i s o n .
At    the   outset of         t h e hearing,        p r i s o n o f f i c i a l Tom F o r s y t h
commented           to    defendant          that        charges           may      be     filed.
Immediately, defendant responded " [ £ ] o r what?                            I o n l y u s e d my
fist."        Thereafter,          officials        instructed            defendant       not    to
volunteer         any    information.             The    hearing          proceeded without
d e f e n d a n t h a v i n g been r e a d h i s Miranda w a r n i n g s .          ~iranda .
                                                                                          v
Arizona      (19661, 384 U . S .         436, 86 S . C t .       1602, 16 ~ . ~ d . 2694.
                                                                                      d
      At trial, defendant moved to suppress all testimony
concerning    the  incriminating   statement, claiming the
statement was made in violation of his Miranda rights. After
hearing the disputed testimony and oral arguments by both
parties, the District Court denied the motion, concluding
defendant's statement was not made in response to any
"interrogation."     Thereafter, the District Court heard
evidence, including the testimony of the victim, conflicting
statements of two other prison inmates, and medical testimony
of the infirmary physician. On August 23, 1988, the District
Court entered judgment finding defendant guilty of aggravated
assault.
      The defendant presents two issues for our review:
       1. Did the District Court err when it allowed
testimony concerning the defendant's incriminating statement
made during the reclassification hearing prior to the
defendant being informed of his Miranda rights?
      2. Did sufficient evidence exist to convict defendant
of the offense of aggravated assault?
      At trial, the District Court admitted the testimony of
Tom Forsyth, a prison official present during defendant's
reclassification hearing.      Mr. Forsyth testified that
defendant, after learning that charges may be filed as a
result of the alleged assault, immediately remarked "[£]or
what? I only used my fist." This comment was made prior to
a reading of Miranda guarantees.      Defendant contends the
statement was improperly admitted. into evidence during his
criminal trial and in violation of his privilege against
self-incrimination.
      Miranda requires an individual "taken into custody or
otherwise deprived of his freedom by the authorities in any
significant way and is subjected to questioning," be notified
of " h i s right of silence and   .   .
                                     . assure[d] that the
exercise of the right will be scrupulousl.y honored    . . ."
Miranda, 354 U.S. at 478-79, 86 S.Ct. at 1630, 16 I,.Ed.2d at
      -.

726.     We do not question the fact that defendant was in
custody when the incriminating statement was made. State V.
Dannels (Mont. 1987), 734 P.2d 188, 44 St.Rep. 472. Rather,
we examine defendant's assertions of "interrogation."
       The Defendant argues our decision in State v. Harris
(1978), 176 Mont. 70, 576 P.2d 257, controls the outcome of
the present appeal. In Harris, prison officials discovered a
knife in a cell. shared by inmates Harris and Hendricks. A
formal disciplinary hearing was scheduled and each inmate was
provided a lay-advisor to assist in the hearings.      During
Hendricks-hearing,    Harris made incriminating statements in
response to questions asked by the lay-advisor.         These
statements were later used against Harris during a criminal
trial.      On appeal of his conviction, we found the
const.itutional guarantees announced in Miranda applicable:
             [Tlhe prison disciplinary hearing was
            conducted by prison officials for the
            purpose     of     ascertaining    inmate
            responsibility    for   prison  offenses
            punishable under the Inmate Rules and
            Guidelines.     No notice of potential
            criminal prosecution was announced to
            Harris   until after he uttered the
            incriminating statements at Hendricks'
            disciplinary hearing. The constitutional
            guarantees of the Fifth Amendment, ...
            cannot be subverted under the guise
            Harris knowingly and voluntarily uttered
            the incriminating statements.
Harris, 576 P.2d at 258.
      Defendant's reliance upon Harris is misplaced.      The
cited case concerned statements elicited from questions asked
during a formal prison disciplinary hearing. In the instant
case, no questions were asked defendant, and testimony at
trial indicated that prison officials seldom make inquiries
of    the    inmates        regarding          alleged         incidents.           Rather,       the
hearings       simply g i v e n o t i c e and d e t e r m i n e f u t u r e placement
within the prison.
          I n S t a t e v . Ryan ( 1 9 7 9 ) , 182 Mont.                130, 595 P.2d        1146,
we    found       that     statements          made       by    defendant        prior      to    his
a r r e s t were n o t t h e p r o d u c t o f c u s t o d i a l i n t e r r o g a t i o n .       In
Ryan,       four police          officers       arrived         a t defendant's            home    to
execute       a     search       warrant.             The       warrant       authorized          the
officers t o         s e a r c h Ryan's        home       for various          f i r e a r m s which
d e f e n d a n t had e a r l i e r r e p o r t e d s t o l e n and f o r which he had
r e c e i v e d i n s u r a n c e compensation.            Upon r e a d i n g a copy o f t h e
warrant,       defendant t o l d t h e o f f i c e r ,            " [wl e l l , you guys have
g o t m e anyway.          I w i l l j u s t show you where t h e guns a r e a t .                  "
Ryan e s c o r t e d t h e o f f i c e r s t o h i s bedroom, and p o i n t e d a t t h e
closet,       and       said,    "[tlhe        guns       are     in    there."           When    the
o f f i c e r s began     checking t h e            s e r i a l numbers       on    t h e various
weapons,       defendant         told        them     that      there      was     no     sense    in
writing        them       down        because        he     had        altered      them     after
submitting the             burglary          report.           Thereafter,         the    officers
placed       Ryan       under    arrest        and     read       defendant         his    Miranda
warnings.           On    appeal,        we    found        that       " [wlhere t h e e n t i r e
situation         was     free        from     any     coercion          or   deprivation          of
freedom o f         a c t i o n by t h e      law enforcement o f f i c e r s and t h e
statements          were        not     the     result          of      interrogation,            the
r e q u i r e m e n t s of Miranda were n o t a p p l i c a b l e . "            Ryan, 5 9 5 P . 7 d
a t 1 1 4 9 , c i t i n g Oregon v . Mathiason (1-97?), 429 U . S .                        492, 9 7
S.Ct.    711, 5 0 L.Ed.2d             714.
         A s was p o i n t e d        o u t i n Miranda,           a c o n f e s s i o n which i s
t r u l y v o l u n t a r y i s n o t f o r e c l o s e d from e v i d e n c e b e c a u s e t h e
statement         was    made     before        the       person       c o n f e s s i n g had. been
warned o f h i s r i g h t s :
                  [Alny   statement   given   freely   and
                  voluntarily   without   any   compelling
          influences is, of course, admissible in
          evidence. The fundamental import of the
          privilege while an individual is in
          custody is not whether he is allowed to
          talk to the police without the benefit of
          warnings and counsel, but whether he can
          be    interrogated    ...     Volunteered
          statements of any kind are not barred by
          the    Fifth    Amendment    and    their
          admissibility is not affected by our
          holding today.
Miranda, 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at
- -
726.   Defendant was not questioned at the reclassification
hearing.   We find defendant's statement was a voluntary
statement outside the application of -  -
                                     Miranda.
      Next, we turn to defendant's second claim.      Our
standard of review when presented with a challenge to the
sufficiency of the evidence is " [wlhether, after reviewing
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."    State 17.
McDonald (Mont. 19871, 734 P.2d 1216, 1217, 44 St.Rep. 593,
595, citing Tackson v. Virginia (1979), 443 U.S. 307, 319, 99
S.Ct. 2781, 2789, 61 T,.Ed..?d 560, 573; State v. Rodriguez
(Mont. 1981), 628 P.2d 280, 38 St.Rep. 578F. This standard
gives responsibility to the trier of fact to "[rlesol~re
conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate
facts. "  ,Tackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61
L.Ed.2d at 573.
      Defendant contends the evidence presented at trial was
insufficient to support a conviction. Defendant argues that
the conviction is based solely on the word of a convicted
felon, and for this reason, we should view Mr. Cunningham's
testimony with distrust. However, we decline to engage in a
battle over the credibility of witnesses.        Rather, the
credibility of witnesses and the weight assigned to their
testimony is left to the trier of fact.              State v. Green
 ( 1 9 8 4 ) , 212 Mont. 20, 605 P.2d 370.     Of the three inmates
testifying, the District Court chose to accept the victim's
testimony.
             At trial, Mr. Cunningham testified to the ill will
which existed between himself and defendant prior to the
assault, including an earlier threat.             Additionally, Mr.
Cunningham stated that after he was hit in the eye, he saw
defendant hide something in his pocket, giving Mr. Cunni-ngham
the indication that he had been struck with some sort of an
instrument.
             Resides the victim's testimony, other evidence supports
the conviction.           Dr. Ridgeway testified that the injury
resulted from a rupture of the orbit of the left eye. While
Dr. Ridgeway stated that a large foreign object embedded in
the seam of a baseball could have caused the injury,
nonetheless, he doubted that the arc of a thrown ball could
have penetrated deep enough, making a baseball an unlikely
mechanism.           Finally, we view defendant's incriminating
statement made during the recl-assification hearing strong
evidence to support his conviction.
             Affirmed.




We concur:
