                                            No.    84-564

                    I N THE SUPREME COURT O F THE S T A T E O F MONTANA

                                                  1989



STATE O F MONTANA,
               P l a i n t i f f and R e s p o n d e n t ,
          -vs-

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


                                                                                                        C S
A P P E A L FROM:     ~ i s t r i c t o u r t of t h e F o u r t h ~ u d i c i a l i s & i c t , o
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                      I n and For t h e C o u n t y of is sou la,                      Z
                      T h e H o n o r a b l e J a c k L . G r e e n , Judge ~ r e s i d i q o 6
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COUNSEL O F RECORD:                                                                         m"
       For A p p e l l a n t :                                                              rs
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                William Boggs, Missoula, Montana                                             07;                    0
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                Wendy H o l t o n , H e l e n a , M o n t a n a                               G
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          For Respondent:
                 Marc Racicot, Attorney General, Helena, Montana
                 R o b e r t L . D e s c h a m p s 111, C o u n t y A t t o r n e y , is sou la
                 Montana



                                                  submitted:      O c t o b e r 20, 1989
                                                    Decided:      November 28, 1989


Filed:
~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 t h e game broke up, Medsker c a s h e d i n h i s c h i p s f o r
$100.50       at     the      cashier       window.          As    he    was      receiving       his
money,       he noticed            defendant standing a                 few f e e t away.          He
then    put     the     cash       i n h i s w a l l e t which,          when added t o t h e
money a l r e a d y i n h i s w a l l e t ,          t o t a l e d a p p r o x i m a t e l y $141.00.
He    t h e n went       to    the    restroom.            While     i n t h e restroom,           he
n e i t h e r saw anyone n o r h e a r d anyone e n t e r .
        Medsker t u r n e d around and was t w i c e s t r u c k i n t h e f a c e
and knocked t o t h e f l o o r .                 The o n l y r e c o l l e c t i o n h e had o f
his    assailant           before      he        lost     consciousness           was    that     the
a s s a i l a n t was wearing b l u e j e a n s .
        S h o r t l y a f t e r 9:00 p.m.,          I d a Mae Dagen, a c a r d d e a l e r a t
t h e Oxford,        o b s e r v e d d e f e n d a n t coming from t h e back a r e a o f
t h e b a r where t h e r e s t r o o m s w e r e l o c a t e d .             He proceeded t o
t h e end o f        t h e b a r where he wiped h i s hands on a b a r r a g ,
fixed     the       knot      on     the    sweater        that     was       draped     over     his
shoulder,       p i c k e d up two c a n s t h a t were s i t t i n g on t h e b a r ,
moved down t h e b a r where h e spoke w i t h t h e b a r t e n d e r , s e t t h e
cans    down,        and walked            out    the     f r o n t door.         Dagen d i d n o t
observe       anything unique               or     unusual      about       the    defendant       at
t h a t t i m e e x c e p t t h a t t h e b a r r a g h e wiped h i s hands on was
dirty.
        Shortly thereafter,                 Medsker        regained       c o n s c i o u s n e s s and
o b t a i n e d a s s i s t a n c e from t h o s e i n t h e Oxford.                 Medsker had
l a c e r a t i o n s and b r u i s e s on h i s f a c e , neck,            and r i b s and h i s
nose was broken.               H i s w a l l e t c o n t a i n i n g $141.00 was m i s s i n g .
        At    approximately            9:15       p.m.,     O f f i c e r Robert Charles of
the    Missoula         Police        Department           arrived       at    the      Oxford     to
investigate the incident.                         The o f f i c e r i n t e r v i e w e d Medsker,
Oxford employees,              and Oxford p a t r o n s .           From t h e i n t e r v i e w s ,
h e s u s p e c t e d d e f e n d a n t and began a s e a r c h o f               downtown b a r s
f o r him.         O f f i c e r C h a r l e s , who knew d e f e n d a n t l i k e d t o p l a y
poker,         located           defendant           at       the      Trails             West    Bar     where
d e f e n d a n t was          once     again        engaged          in    a       l o s i n g poker     game.
         The o f f i c e r o b s e r v e d t h a t d e f e n d a n t ' s s h i r t was s p o t t e d
with blood,              t h e k n u c k l e s on h i s r i g h t hand were s k i n n e d and
bloody and h e was w e a r i n g b l u e j e a n s .                        Defendant v o l u n t a r i l y
accompanied t h e o f f i c e r t o t h e p o l i c e s t a t i o n , where he was
a r r e s t e d and r e a d h i s Miranda warning.                                  A t t h e time of        his
a r r e s t , d e f e n d a n t had $70.80 on h i s p e r s o n .
         The n e x t day, d e f e n d a n t made h i s i n i t i a l a p p e a r a n c e and
was a g a i n a d v i s e d o f h i s r i g h t s .                 A t t h a t time,           he requested
appointed counsel.
         A f t e r h i s i n i t i a l appearance,                    defendant telephoned h i s
p a r o l e o f f i c e r and r e q u e s t e d t h a t h i s p a r o l e o f f i c e r v i s i t
him i n j a i l .            The p a r o l e o f f i c e r d i d v i s i t d e f e n d a n t i n j a i l ,
where d e f e n d a n t r e l a y e d t h e e v e n t s o f t h e p r e v i o u s e v e n i n g t o
him i n c l u d i n g t h e f a c t t h a t d e f e n d a n t knew an o l d man he had
been p l a y i n g           poker w i t h had been                  a s s a u l t e d a t t h e 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 i n v i o l a t i o n 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 j u r y found d e f e n d a n t g u i l t y o f t h e
offense            of       robbery.            On    ~ p r i l 30,             1984,          defendant     was
s e n t e n c e d t o f o r t y y e a r s i n t h e Montana S t a t e p r i s o n .                     He was
designated              a     dangerous          offender            and        a    persistent          felony
of f e n d e r .
         The f i r s t i s s u e r a i s e d on a p p e a l i s whether t h e ~ i s t r i c t
Court       erred           i n denying d e f e n d a n t ' 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 ~ r i z o n a 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 $ 1 4 1 . 0 0 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
$ 7 0 . 8 0 in cash and chips and had just lost about $ 6 0 . 0 0 .    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
        t h e t e s t i m o n y o r i f t h e j u r o r s d e s i r e t o be
        informed on any p o i n t o f law a r i s i n g i n t h e c a u s e ,
        t h e y must r e q u i r e t h e o f f i c e r t o c o n d u c t them i n t o
        c o u r t . When t h e j u r o r s a r e b r o u g h t i n t o c o u r t , t h e
        information              requested     may        be     given     in      the
        d i s c r e t i o n of t h e court.          I f such information i s
        g i v e n , i t must be g i v e n i n t h e p r e s e n c e o f t h e
        c o u n t y a t t o r n e y and t h e d e f e n d a n t and h i s c o u n s e l .

        while      the      jury   was     not    brought       into court,           the note
d r a f t e d wa.s p r e p a r e d by t h e c o u r t and approved by d e f e n d a n t
and a l l c o u n s e l .     Defendant d i d n o t o b j e c t t o t h e manner i n
which     the     i n f o r m a t i o n was t o be r e l a y e d n o r d i d d e f e n d a n t
r e q u e s t f u r t h e r i n q u i r y c o n c e r n i n g t h e t i m e it t o o k t o d r a f t
and convey t h e n o t e .          The j u r y had a l r e a d y r e a c h e d a v e r d i c t
by t h e t i m e a r e p l y was d r a f t e d .       Th/ere was no e r r o r .
        Affirmed.

                                                                      Justice
W e Concur:
