City of Fargo v. Hector

• Decision Date: 27 July 1995
• Docket Number: Cr. N
• Citation: 534 N.W.2d 821
• Parties: CITY OF FARGO, Plaintiff and Appellee, v. Martin Sewall HECTOR, Defendant and Appellant. o. 940325.
• Court: North Dakota Supreme Court

Page 821

534 N.W.2d 821

CITY OF FARGO, Plaintiff and Appellee, v. Martin Sewall HECTOR, Defendant and Appellant.

Cr. No. 940325.

Supreme Court of North Dakota.

July 27, 1995.

Brian W. Nelson, Fargo, for defendant and appellant.

Steven E. Noack, Asst. City Atty., Fargo, for plaintiff and appellee.

SANDSTROM, Justice.

We are asked to decide whether a charge of exhibition driving and a later charge of driving under the influence places a defendant in double jeopardy. We hold the noncriminal exhibition driving charge and the criminal driving under the influence charge do not violate the Double Jeopardy Clause.

I

On March 21, 1994, Fargo police officers saw two men walking in downtown Fargo. One man helped the other to a nearby car. As the car pulled out into the street, the tires squealed. The officers pursued the car, which stopped a short time later in the traffic lane.

Two officers approached the car, one on each side. One officer talked with the driver, Martin Hector, while the other looked after the passenger who was "passed out." The officer noticed Hector had bloodshot eyes, slurred speech, and smelled of alcohol. Hector told the officer he had been drinking. The officer then asked Hector to perform field sobriety tests. Based on the tests, the officer arrested Hector.

The officers charged Hector with exhibition driving, driving under the influence, driving under suspension, and driving without insurance. Hector initially refused a breath test, but agreed after consulting an attorney. The officer refused to give anything but a blood-alcohol test because Hector spent unsupervised time alone with his attorney. Hector refused the blood-alcohol test.

Hector requested the charges be transferred from municipal court to county court. The driving under the influence charge was transferred to county court. The noncriminal exhibition driving offense was not transferred. Hector pled guilty to the driving under suspension charge. The driving without insurance charge was dropped. The municipal court found Hector guilty of exhibition driving.

At the trial on the driving under the influence charge, Hector argued the City was using his exhibition driving offense to prove he was driving under the influence. At the close of trial, Hector proposed a special double-jeopardy verdict form based on Rule 31(e)(2), N.D.R.Crim.P. The court refused the verdict form. The jury returned a guilty verdict.

Hector moved for a new trial based on the trial court's denial of the Rule 31(e)(2) special verdict form and failure to instruct the jury on double jeopardy. The trial court denied the motion.

The trial court had jurisdiction under N.D.C.C. § 27-07.1-17(3). This Court has jurisdiction under Art. VI, § 6, N.D. Const., and N.D.C.C. § 29-28-06(4). The appeal was timely under Rule 4(b)(1), N.D.R.App.P.

II

Hector moved for a new trial based on the trial court's failure to instruct the jury, and submit a requested special verdict form, on double jeopardy. Hector appeals from the trial court's order denying his motion for new trial.

"A defendant challenging denial of a new trial on appeal bears a heavy burden. The decision to grant or deny a new trial is committed to the sound discretion of the trial court and will not be overturned on appeal absent an abuse of discretion. A trial court abuses its discretion when it acts in an arbitrary, unreasonable or unconscionable manner. A trial court acts in an arbitrary, unreasonable or unconscionable manner when its exercise of discretion is not the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination, or, as alternatively stated, when it misinterprets or misapplies the law."

State v. Daulton, 518 N.W.2d 719, 724 (N.D.1994).

Hector moved for a new trial based only on the jury instruction and special verdict form. He is limited to those grounds, and we do not decide issues raised for the first time on appeal. State v. Jordheim, 508 N.W.2d 878, 880 (N.D.1993).

III

A

Hector claims the trial court's failure to instruct the jury on double jeopardy was an abuse of discretion. Hector did not submit a written jury instruction and there is no proposed instruction in the record.

Counsel has a duty to draft a specific instruction and submit it to the trial judge. State v. Olson, 356 N.W.2d 110, 114 (N.D.1984). Counsel must submit written instructions and may not shift the duty of drafting a specific instruction to the trial court. Olson; Rule 30, N.D.R.Crim.P. Hector failed to draft or submit an instruction. The trial court did not have a duty to draft the instruction for Hector.

Even if a double-jeopardy instruction would have been otherwise appropriate, the trial court did not abuse its discretion by not giving such an instruction when the defendant did not submit one.

B

Hector argues the trial court abused its discretion by refusing to submit the special verdict form to the jury. The record refers to the form, but the special verdict form itself is not a part of the record.

Hector based the form on Rule 31(e)(2), N.D.R.Crim.P.

"Whenever the defendant interposes the defense that he has been formerly convicted or acquitted of the same offense or an offense necessarily included therein, or once in jeopardy, and evidence thereof is given at the trial, the jury, if it so finds, shall declare that fact in its verdict."

Rule 31(e)(2), N.D.R.Crim.P. The explanatory note following Rule 31 says subdivision (e) differs from its federal counterpart. The subdivision was added to aid the court in deciding factual issues. "A determination of factual issues in the specific instances provided in this subdivision is deemed to be within the province of the jury. Because it is the court that determines the issue of law, the scope of the jury is not exceeded." Rule 31, N.D.R.Crim.P. Explanatory Note. The rule allows evidence to be presented to the trial court on double jeopardy and, "in some instances, the jury is requested to make a declaration on this in its verdict if it is a fact question." State v. Pendergrast, 340 N.W.2d 454, 457 (N.D.1983). The rule requires the trial court to submit a special verdict form only if it is a fact question.

The trial court ruled, as a matter of law, double jeopardy does not apply here. We, therefore, review the legal merits of Hector's double-jeopardy claim. See Pendergrast.

C

Hector argues he was subjected to double jeopardy because the exhibition driving violation was used to establish an element of the driving under the influence conviction. Hector bases his argument on Amend. V, U.S. Const., Art. I, § 12, N.D. Const., and N.D.C.C. § 29-01-07.

The framers of our state constitution and the legislature in enacting the statute did not intend an interpretation different than the Double Jeopardy Clause of the United States Constitution. State v. Allesi, 216 N.W.2d 805, 817-18 (N.D.1974); State v. Klose, 334 N.W.2d 647, 650 n. 2 (N.D.1983). We apply the clause and statute in the same manner as the United States Supreme Court applies the federal constitution. See Allesi at 818.

The United States Supreme Court recently revised its interpretation of the Double Jeopardy Clause in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). In Dixon, the Supreme Court reiterated its approval of the "same elements" or "Blockburger " test. The test, in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), "inquires whether each offense contains an element not contained in the other; if not, they are the 'same offence' and double jeopardy bars additional punishment and successive prosecution." Dixon, 509 U.S. at ----, 113 S.Ct. at 2856, 125 L.Ed.2d at 568 (quoting Amend. V, U.S. Const.).

In Dixon, the United States Supreme Court then addressed the second prong of the double-jeopardy analysis added by Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). The Grady test provides "if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted, a second prosecution may not be had." Dixon, 509 U.S. at ----, 113 S.Ct. at 2856, 125 L.Ed.2d at 568. After reviewing precedent on double jeopardy and noting the difficulty lower courts were having applying the Grady test, the Supreme Court overruled Grady. Dixon, 509 U.S. at ----, 113 S.Ct. at 2864, 125 L.Ed.2d at 578.

This Court has applied the Grady test, guided by the Supreme Court's interpretation of the Double Jeopardy Clause. See, e.g., State v. Robideaux, 493 N.W.2d 210 (N.D.1992); Sampson v. State, 478 N.W.2d 566 (N.D.1991). This Court has also recognized the unsettled nature of Grady. See Robideaux at 212-13. Because Grady was overruled, we overrule those cases in which this Court relied on Grady analysis: Robideaux; Sampson. We apply the Blockburger test to this case. ¹

Hector violated Fargo Municipal Code 8-0317, exhibition driving.

" 'Exhibition driving' means driving a vehicle in such a manner that it creates or causes unnecessary engine noise, tire squeal, skid or slide upon acceleration, braking or stopping; or that causes the vehicle to unnecessarily turn abruptly or sway; or driving and executing or attempting one or a series of unnecessarily abrupt turns."

Fargo Mun.Code 8-0317(B)(2).

The trial court convicted Hector of driving under the influence, Fargo Municipal Code 8-0310:

"No person shall drive, or be in actual physical control of, any vehicle upon any street, highway, public or private parking lot, or other public or private property in this city if said person is under the influence of intoxicating liquor or controlled substances. Being under the influence of intoxicating liquor or controlled substances shall be as defined by Chapter 39-08 of the North Dakota Century Code...