City of Fargo v. McLaughlin

• Decision Date: 23 February 1994
• Docket Number: Cr. N
• Citation: 512 N.W.2d 700
• Parties: CITY OF FARGO, Plaintiff and Appellee, v. Jon Bret McLAUGHLIN, Defendant and Appellant. o. 930130.
• Court: North Dakota Supreme Court

Page 700

512 N.W.2d 700

CITY OF FARGO, Plaintiff and Appellee, v. Jon Bret McLAUGHLIN, Defendant and Appellant.

Cr. No. 930130.

Supreme Court of North Dakota.

Feb. 23, 1994.

Erik R. Johnson (argued), Asst. City Atty., Fargo, for plaintiff and appellee.

C. Charles Chinquist (argued), Fargo, for defendant and appellant. Appearance by appellant Jon B. McLaughlin.

MESCHKE, Justice.

We consider whether a police officer may testify about the results of a horizontal gaze nystagmus ["HGN"] test without the State first establishing the scientific reliability of the test by expert testimony. We mainly hold that the trial court did not abuse its discretion in admitting evidence of the HGN test results in this case. We also hold that Jon Bret McLaughlin timely appealed after a motion for new trial, and that the prosecution's evidentiary use of McLaughlin's independent urine test was not obvious error. We affirm McLaughlin's conviction for driving under the influence of alcohol.

Officer Ternes of the Fargo Police Department was investigating a traffic accident when he heard a loud crash. He saw that McLaughlin's vehicle had struck a traffic sign about one block away. When McLaughlin began driving away, Ternes followed in his patrol car and stopped him.

McLaughlin appeared disoriented and sleepy, and smelled strongly of alcohol. McLaughlin failed several field sobriety tests, including the "one-leg stand" test, the "walk and turn" test, and the HGN test. Ternes did not conduct a preliminary breath screening test because McLaughlin had blood and chewing tobacco in his mouth.

Ternes arrested McLaughlin for driving under the influence of alcohol (DUI), and took him to a hospital for treatment of his injuries and to have blood drawn for a blood-alcohol test. McLaughlin refused to consent to a blood test, but at some later point independently obtained a urine test to determine his blood-alcohol level.

McLaughlin was charged with DUI and failure to comply with duty upon striking fixtures. At a jury trial, Ternes was allowed to testify, over objection, about McLaughlin's failure of the HGN test. Ternes also testified that, based upon his observations and McLaughlin's performance on the field sobriety tests, it was Ternes's opinion that McLaughlin was under the influence of alcohol at that time. The State also elicited testimony from Ternes and McLaughlin about the urine test performed at McLaughlin's request. In closing arguments, the State commented upon McLaughlin's failure to present evidence about the result of that independent test.

On January 29, 1993, the jury returned guilty verdicts on both counts, and a judgment of conviction was entered. On February 5, 1993, McLaughlin, acting individually, filed a request to extend the time for filing a motion for new trial. McLaughlin's trial counsel, apparently unaware of McLaughlin's pro se motion, filed a notice of appeal on February 8, 1993. On March 5, 1993, while the appeal was pending, new counsel for McLaughlin filed a motion for new trial. A stipulation to dismiss the appeal was filed so the motion for new trial could be heard in the trial court. The first appeal was dismissed on March 10, 1993. The trial court later denied the motion for new trial, and McLaughlin appealed.

I. APPELLATE JURISDICTION

The procedure employed below raises jurisdictional questions. NDRCrimP 37(b)(1) and NDRAppP 4(b)(1) say that, if a "timely" motion for new trial is made, an appeal from the judgment of conviction may be taken within ten days after entry of an order denying the motion. The notice of appeal in this case was filed within ten days after entry of the order; the question is whether the March 5, 1993 motion for new trial was "timely."

A motion for new trial on grounds other than newly discovered evidence "shall be made within seven days after verdict or finding of guilt or within such further time as the court may fix during the seven-day period." NDRCrimP 33(c). The time limitations of Rule 33 are jurisdictional, and the court is without power to consider an untimely motion for new trial or to extend the time for such a motion except as specifically provided in the Rule. State v. Simek, 502 N.W.2d 545, 546 (N.D.1993); State v. Copeland, 448 N.W.2d 611, 614 (N.D.1989); see also 3 C. Wright, Federal Practice and Procedure: Criminal 2d § 558 (1982); 8A Moore's Federal Practice p 33.02[a] (1993). In this case, McLaughlin filed a motion for extension of time on Friday, February 5, 1993, the seventh day after the verdict.

Before the trial court ruled on the motion for extension, however, McLaughlin's trial counsel filed a notice of appeal on Monday, February 8, 1993, the tenth day after the verdict. The filing of the notice of appeal deprived the trial court of jurisdiction. See State v. Meier, 422 N.W.2d 381, 386 (N.D.1988). ¹ When the trial court regained jurisdiction upon dismissal of the appeal, the court implicitly granted the motion for extension of time by considering and deciding the motion for new trial upon the merits.

To resolve this question, we must construe the language of Rule 33 that says a motion for new trial is permitted "within such further time as the court may fix during the seven-day period." The crucial question is whether the court must actually enter its order extending the time for the motion within the seven-day period, or if it suffices that the motion for extension was filed within seven days.

The time limits in Rule 33 are identical to those in the corresponding federal rule, and federal precedent construing that rule is instructive to assist our interpretation of Rule 33. State v. Copeland, 448 N.W.2d at 614. The only federal case to address this question in an analogous setting holds that a court may rule on the motion to extend after the seven days have passed if the motion for extension was made within the seven-day period. United States v. Hosch, 712 F.Supp. 524 (E.D.La.1989), aff'd, 915 F.2d 1567 (5th Cir.1990). In Hosch, the motion for extension was filed on the seventh day after the verdict, but the clerk did not forward it to the judge until the eighth day. The court held that it had jurisdiction to grant the motion:

The issue, then, is whether the Court has the jurisdictional power to grant the motion now that more than seven "days" after the verdict have passed. The Court has found no cases directly on point. Nonetheless, the Court believes it has jurisdiction to grant an extension, where as here the motion itself was filed timely.

United States v. Hosch, 712 F.Supp. at 524. We agree with that result.

A criminal defendant faces stringent time limits for post-trial motions and appeals. See NDRCrimP 33(c), 34, and 37(b)(1); NDRAppP 4(b). Compare State v. Hanson 452 N.W.2d 329, 330 (N.D.1990) (trial court cannot reduce sentence under NDRCrimP 35(b) more than 120 days after sentence even if defendant timely moved). It would be unrealistic and unfair to require the defendant to move for extension and to secure the order from the court within seven days because situations will certainly arise where the judge is unavailable to issue an immediate order on a timely filed motion. It is not the intent of the rule to penalize a defendant in such situations. Under NDRCrimP 2, the Rules of Criminal Procedure are to be construed to secure fairness in administration.

We construe NDRCrimP 33(c) to allow a court to grant an extension after the seven-day period has expired if the motion for extension was made within the seven-day period. Accordingly, the motion for new trial in this case was timely, and the filing of the notice of appeal within ten days after disposition of the motion properly conferred jurisdiction on this court.

II. EVIDENTIARY USE OF INDEPENDENT TEST

McLaughlin asserts that the trial court erred in admitting testimony about the independent urine test performed at the hospital at McLaughlin's request, and in allowing the prosecutor to comment upon McLaughlin's failure to introduce the results of that test. McLaughlin's trial counsel did not object to the testimony or to the prosecutor's closing comments. A question not preserved by objection in the trial court will not be considered for the first time on appeal. State v. Steffes, 500 N.W.2d 608, 615 (N.D.1993). Nor did McLaughlin raise this question in his motion for a new trial. When a party moves for a new trial, any subsequent appeal by that party is limited to review of grounds presented in the motion to the trial court. State v. Jordheim, 508 N.W.2d 878, 880-881 (N.D.1993). This question was not brought to the attention of the trial court, nor preserved for review.

McLaughlin asserts, however, that this alleged error is obvious error under NDRCrimP 52(b):

Obvious errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.

Our power to notice obvious error is exercised cautiously and only in exceptional situations where the defendant has suffered serious injustice. State v. Purdy, 491 N.W.2d 402, 409 (N.D.1992); State v. McNair, 491 N.W.2d 397, 399 (N.D.1992). In assessing the possibility of error affecting substantial rights under Rule 52(b), we examine the entire record and the probable effect of the alleged error in light of all the evidence. State v. Johnson, 379 N.W.2d 291, 293 (N.D.1986). The admission of the challenged testimony and the prosecutor's comments, considered within the context of the entire record, do not constitute obvious error.

III. EVIDENCE OF GAZE NYSTAGMUS

The principal question on appeal is the admissibility of Ternes's testimony about McLaughlin's performance on the HGN test. The HGN test is one of several field sobriety tests recommended by the National Highway Traffic Safety Administration to aid officers in determining whether a driver is intoxicated. State v. Witte, 251 Kan. 313, 836 P.2d 1110, 1112 (1992), explains:

Nystagmus is "an involuntary rapid movement of the...