STATE OF MONTANA, Plaintiff and Respondent, v. MICHAEL T. BIRTHMARK, Defendant and Appellant.
No. 91-411.
SUPREME COURT OF MONTANA
July 2, 1992
Submitted on briefs May 28, 1992.
253 Mont. 526 | 833 P.2d 1103 | 49 St.Rep. 583
For Plaintiff and Respondent: Marc Racicot, Attorney General; Jennifer M. Anders, Assistant Attorney General, Helena; Christopher G. Miller, County Attorney, Deer Lodge.
The defendant, Michael T. Birthmark (Birthmark), appeals his conviction of possession of a deadly weapon while in prison, pursuаnt to
As a preliminary matter, we note that after the notice of appeal was filed in this case, Birthmark‘s trial counsel filed with thе District Court a motion to withdraw as counsel on the basis of lack of meritorious appealable issues. Counsel‘s motion was accompanied by a Memorandum which referred to possible arguments in support of the appeal. The District Court granted the motion. While the District Court was not the appropriate forum for a motion to withdraw at that stagе of the proceedings, we issued an Order upon receipt of the District Court‘s order granting the motion stating that the Memorandum submitted would be considered an “Anders” brief. Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. We provided Birthmark with an opportunity to respond to his counsel‘s brief.
Following that response, we examined the record, as required by Anders, and concluded that counsel‘s evaluation of the case was sound; therefore, we granted counsel leave to withdraw and allowed Birthmark to proceed pro se with his appeal. The State responded to the “Anders” brief and Birthmаrk‘s supplement thereto.
We consider the following issues raised by Birthmark:
- Did the District Court commit reversible error in admitting certain testimony?
- Is there sufficient evidence in the record to support the defendant‘s conviction?
- Is Birthmark entitled to further representation?
This aсtion stems from an incident in the Montana State Prison in which Officer Neil Lehto discovered a potentially dangerous weapon in Birthmark‘s cell in “A” block, the maximum security unit of the prison. Lеhto found an altered eyeglass arm-piece tucked away in a roll of toilet paper underneath Birthmark‘s sink. The arm-piece appeared to have been strаightened and sharpened.
On September 27, 1990, an information was filed charging Birthmark with the offense of possession of a deadly weapon by a prisoner in violation of
I.
Did the District Court commit reversible error in admitting certain testimony?
Birthmark contends that the District Cоurt erred in admitting certain testimony by Officer Lehto. The State responds that any error in admission of the testimony was harmless.
Birthmark contends that Officer Lehto‘s testimony that the arm-piece had been sharpened was inadmissible. Defense counsel made a general objection to this testimony; no specific grounds were given. Following the objection, counsel wаs allowed to voir dire the witness. When the voir dire became cross-examination and not voir dire, the District Court ended the voir dire.
We note that defense counsel‘s objection tо this testimony was inadequate; no specific basis for the objection was made. “[A]n objection, to be good, must point out the specific ground of the objection ....” State v. Walker (1966), 148 Mont. 216, 223, 419 P.2d 300, 304; Rule 103, M.R.Evid. We conclude that defense counsel‘s general objection was insufficient to preserve the error for appeal.
In addition, Birthmark objected to Officer Lehto‘s testimony cоncerning the purpose for treating the arm-piece as evidence, tagging it and taking steps to preserve it. Defense counsel objected that the question called for a legal conclusion which the witness was not qualified to make. The court overruled counsel‘s objection and Officer Lehto responded:
We send it up to the prison base fоr them to make a determination on this as a dangerous weapon.
Lehto testified that tagging the evidence preserves the matter for future prosecution.
The record rеveals that Officer Lehto‘s testimony concerning these procedures was descriptive only. The question did not call for a legal conclusion, nor did Lehto‘s response cоnstitute such a conclusion. We conclude, therefore, that the admission of Officer Lehto‘s testimony concerning the processing of evidence was not error.
Lehto also was allowed to testify, over objection that the
A: The only conceivable reason that this [altered eyeglass arm-piece] would be in an inmate‘s сell, in my opinion, is to be used as a shank. It was either given to Mr. Birthmark to keep for somebody, or it was made into this position to trade for other contraband —
Birthmark is correct that Lеhto‘s testimony concerning the sharpness of the arm-piece and its possible uses called for speculation. Therefore, admission of this testimony was error. The judge, however, had the testimony stricken from the record and admonished the jury to disregard it. Striking erroneously admitted evidence and admonishing the jury to disregard it serves to cure the error. State v. Smith (1986), 220 Mont. 364, 715 P.2d 1301.
Birthmark further objeсted, on relevancy grounds, to Lehto‘s testimony that specific items were not permitted in “A” block. This testimony was irrelevant and its admission was error. We must decide, therefore, whether the error was prejudicial and affected the substantial rights of the party, or whether the error is harmless.
Lehto‘s testimony was a mere recitation of prison policy which added nothing to the case. It was not related to the controlling facts of the case and did not cast Birthmark, or any action or activity by him, in a negative light. We conclude that no reasonable possibility exists that this improperly admitted evidence contributed to the jury‘s verdict. Accordingly, we hold that any error on the part of the District Court in admitting Officer Lehto‘s testimony was harmless error.
II.
Is there sufficient evidence in the record to support the defendant‘s conviction?
Birthmark claims that he is innocent of the charge of possession of a deadly weapon in prison. The State cоntends that there is sufficient evidence on the record to support the conviction.
The standard of review for sufficiency of the evidence in criminal cases is whether “evidence, when viewed in a light most favorable to the prosecution, would allow a rational trier of fact to find essential
Every prisoner committed to the Montana state prison ... who, while at the state prison ... purposely or knowingly possesses or carries upon his person or has under his custody or control without lawful authority a dirk, dagger, pistol, revolver, slingshot, sword cane, billy, knuckles made of any metal or hard substance, knife, razor not including a safety razor, or other deadly weapon is guilty of a felony.
The evidence is undisputed that Birthmаrk was an inmate at the Montana State Prison and that he possessed the altered eyeglass arm-piece. The only elements of the offense at issue, therefore, arе whether the arm-piece was: 1.) a deadly weapon 2.) knowingly or purposely possessed by Birthmark.
The jury was instructed on the basis of
We must also determine if Birthmark “knowingly” possessed a deadly weapon. “When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence.”
We hold that there was sufficient evidence for the jury to find the elements of the crime beyond a reasonable doubt and, therefore, to support defendant‘s conviction.
Is Birthmark entitled to further representation?
Birthmark requеsts this Court appoint new counsel to handle his appeal. We decline to do so. The requirements of Anders are met by the orders issued and procedures utilized by this Court in the present case. Having determined that no meritorious issues exist on appeal, we hold that Birthmark is not entitled to further representation.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, McDONOUGH and WEBER concur.