State v. Jahner

• Decision Date: 05 March 2003
• Docket Number: No. 20020143.,20020143.
• Citation: 657 N.W.2d 266,2003 ND 36
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Joseph Paul JAHNER, Defendant and Appellant.
• Court: North Dakota Supreme Court

657 N.W.2d 266

2003 ND 36

STATE of North Dakota, Plaintiff and Appellee, v. Joseph Paul JAHNER, Defendant and Appellant.

No. 20020143.

Supreme Court of North Dakota.

March 5, 2003.

Ladd R. Erickson, Assistant State's Attorney, Mandan, ND, for plaintiff and appellee.

Chad R. McCabe, Vinje Law Firm, Bismarck, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Joseph Paul Jahner ("Jahner") appeals from a criminal judgment entered upon a jury verdict finding him guilty of negligent homicide, reckless endangerment, and driving while under the influence of intoxicating liquor. We conclude Jahner waived his right to object to the trial court's procedure in responding to the jury's request, during deliberations, for a transcript of Jahner's testimony; the trial court did not err in refusing to instruct the jury on the definition of proof beyond a reasonable doubt; and the jury verdict is not legally inconsistent. We affirm.

I

[¶ 2] On December 22, 2000, David Smith, Jr. ("Smith") was killed in a vehicle crash and four other people, including Jahner, were injured. The State alleges Jahner was driving the vehicle at the time of the accident. Jahner contends he was seated in the front passenger's seat of the vehicle. Jahner concedes he was under the influence of alcohol at the time of the accident. Jahner was charged with manslaughter, in violation of N.D.C.C. § 12.1-16-02, for recklessly causing the death of Smith; reckless endangerment, in violation of N.D.C.C. § 12.1-17-03, for recklessly endangering the lives of the other three passengers and the public; and driving under the influence of intoxicating liquor, in violation of N.D.C.C. § 39-08-01.

[¶ 3] Prior to trial, the State requested the jury be instructed with the pattern jury instruction on proof beyond a reasonable doubt. The trial court decided the definition of proof beyond a reasonable doubt would not be given unless the jury asked a question about it during deliberations. On March 12 and 13, 2002, trial was held. While the jury was deliberating, the jurors requested the transcript of Jahner's testimony. In reply to an inquiry from the court the jury indicated they were "in disagreement about Mr. Jahner's memory and the period of time that the memory loss included." The trial court and counsel for both parties agreed to respond to the jury's request with a note instructing the jury to rely on their recollection of the testimony to resolve the disagreement. On March 13, 2002, a jury found Jahner not guilty of manslaughter; guilty of the lesser-included offense of negligent homicide; guilty of reckless endangerment; and guilty of driving while under the influence of intoxicating liquor.

[¶ 4] Jahner appealed from the judgment arguing the trial court erred by failing to provide a full transcript of Jahner's testimony after the jury requested it and by refusing to include the definition of proof beyond a reasonable doubt in the jury instructions. Jahner also argues the conviction for reckless endangerment should be reversed because the jury returned an inconsistent verdict.

II

[¶ 5] Jahner argues the trial court erred under N.D.C.C. § 29-22-05, by failing to provide to the jury the transcript of Jahner's testimony after the jurors requested it during deliberations.

[¶ 6] Section 29-22-05, N.D.C.C., provides:

After the jurors have retired for deliberation, if they desire to be informed on a point of law arising in the case, or to have any testimony about which they are in doubt or disagreement read to them, they, upon their request, must be conducted into the courtroom by the officer who has them in custody. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the state's attorney and the defendant or his counsel, or after they have been called.

After a case has been submitted to the jury, N.D.C.C. § 29-22-05 "unequivocally directs the testimony [requested by the jury] be given at the jury's request." State v. Hartsoch, 329 N.W.2d 367, 372 (N.D.1983). However, to save time and avoid confusion, a trial court may request the jury to specify the testimony it desires to rehear. State v. Christensen, 1997 ND 57, ¶ 11, 561 N.W.2d 631.

[¶ 7] In this case, the jury sent a note to the court requesting "Transcript of Joseph Jahner testimony." The court convened in the courtroom outside the presence of the jury. The court discussed N.D.C.C. § 29-22-05 and stated:

I'm open to suggestions but my intention would be to inform the jurors that if they have a specific question or disagreement about a portion of the testimony, that we can have that read back to them-or I don't know, Lisa, how you do it, if you play it for them or what you would do but in any event-and otherwise, the entire repeat of his whole testimony wouldn't-any problem with that [?]

Defense counsel responded his "preference would be perhaps to put a question to them. Do you have a specific disagreement?" and "maybe even ask with regard to what or something like that so we can get some feeling back from them." The court and the State agreed with defense counsel's approach and sent the following question to the jury: "Do you have a doubt or disagreement over a specific part of Mr. Jahner's testimony. If so, what doubt or disagreement do you have?" The jury responded "[w]e are in disagreement about Mr. Jahner's memory and the period of time that the memory loss included." After some discussion, the court and counsel for both parties agreed the response to the jury would be: "You are to rely on your recollection of the testimony to resolve the disagreement." Defense counsel stated this response was "acceptable to the defense."

[¶ 8] N.D.C.C. § 29-22-05 confers a statutory right upon a defendant to have the jury brought into the courtroom and to have the information requested by the jury given to it. See State v. Ash, 526 N.W.2d 473, 484 (N.D.1995) (Neumann, J., concurring specially)

(noting a defendant's right under N.D.C.C. § 29-22-05 to have all responses to jury questions be given to the jurors in the courtroom is a statutory right). Statutory rights may be waived by the party entitled to the benefit unless a waiver would be against public policy or the statute declares or implies there cannot be a waiver. Brunsoman v. Scarlett, 465 N.W.2d 162, 167 (N.D.1991).

[¶ 9] Litigants seeking "to take advantage of irregularities occurring during the course of a trial, either on the part of the court, the jury, the adverse parties, or anyone acting for or on their behalf, . . . must do so at the time the irregularities occur, in order that the court may take appropriate action, if possible, to remedy any prejudice." Leake v. Hagert, 175 N.W.2d 675, 690 (N.D.1970). As a general rule, "[o]ne who fails to raise an appropriate objection at the trial court level waives [the] right and cannot raise the issue for the first time on appeal." State v. Palmer, 2002 ND 5, ¶ 8, 638 N.W.2d 18. "[T]he doctrine of waiver is applicable to all rights and privileges to which a person is legally entitled, whether secured by contract, conferred by statute, or guaranteed by the constitution, provided such rights and privileges rest in the individual who has waived them and are intended for his benefit." Gajewski v. Bratcher, 221 N.W.2d 614, 628 (N.D.1974).

[¶ 10] Jahner's attorney had the opportunity but failed to object to the trial court's procedure in responding to the jury's request. While N.D.C.C. § 29-22-05 directs that the trial court should have provided Jahner's testimony to the jury at its request, Jahner's attorney did not object and approved the court's response to the jury's request. We conclude Jahner waived his right to claim error for the trial court's procedure in responding to the jury's request.

III

[¶ 11] Jahner argues the trial court committed reversible error by denying the State's request, upon which Jahner relied, to instruct the jury on the definition of reasonable doubt. Alternatively, Jahner argues the trial court committed obvious error by failing to include the definition of proof beyond a reasonable doubt in the jury instructions.

[¶ 12] N.D.R.Crim.P. 30 describes the procedure for requesting and objecting to jury instructions. Under N.D.R.Crim.P. 30(c), counsel must designate the jury instructions that are objectionable and only those instructions so designated are deemed excepted by counsel. State v. Olander, 1998 ND 50, ¶ 9, 575 N.W.2d 658. "`An attorney's failure to object at trial to instructions, when given the opportunity, operates as a waiver of the right to complain on appeal of instructions that either were or were not given.'" Id. at ¶ 10 (quoting State v. Johnson, 379 N.W.2d 291, 292 (N.D.1986)). Because Jahner's attorney did not object at trial to the court's refusal to instruct the jury on the definition of proof beyond a reasonable doubt when he was given the opportunity, we conclude Jahner waived his right to complain on appeal about the jury instructions. Thus, our inquiry is limited to determining if the alleged error constitutes obvious error affecting the substantial rights of the defendant. State v. Murphy, 527 N.W.2d 254, 255 (N.D.1995).

[¶ 13] "Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury." Olander, 1998 ND 50, ¶ 18, 575 N.W.2d 658. We review jury instructions as a whole and consider whether they correctly advise the jury on the law. Id. The United States Supreme Court has stated "[t]he beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course." Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). "[S]o long as the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt, the Constitution does not require...