State v. Ash

Decision Date19 January 1995
Docket NumberCr. N
Citation526 N.W.2d 473
PartiesSTATE of North Dakota, Plaintiff and Appellee v. Leland Thomas ASH, Defendant and Appellant. o. 940048.
CourtNorth Dakota Supreme Court

James M. Vukelic (argued), Asst. Atty. Gen., Bismarck, for plaintiff and appellee.

David F. Senn (argued), Dickinson, and William G. Heth (appearance), Dickinson, for defendant and appellant.

MESCHKE, Justice.

Leland Thomas Ash appealed the jury verdict, an order denying his motion for new trial, and the judgment convicting him of murder. We affirm.

Ash, a Montana resident, was temporarily working in the area of Hettinger, North Dakota, during February 1993. On February 19, Ash and two other men left Hettinger at about 11:00 p.m. and drove to Lemmon, South Dakota. At a tavern there, Ash met Kevin Kern, who had given Ash a ride from Lemmon to Hettinger the previous weekend. After closing time early on February 20, 1993, Ash and Kern went to a party in a private home in Lemmon, until they left to return to Hettinger in Kern's pickup after 4:00 a.m.

While Ash and Kern were stopped at an approach a few miles from Hettinger, Kern was shot in the head behind the left ear by Ash, who later claimed that the shooting was accidental. Ash returned Kern's rifle to its case behind the seat in Kern's pickup, put Kern's body in the passenger side of the pickup, and drove toward Hettinger. Ash left the highway, however. He took Kern's body out of the pickup, dragged it into a field, and covered it with snow.

When Ash attempted to turn the pickup around, it got stuck in a ditch. Ash started running toward Hettinger. He hitched a ride to the Mirror Lake Lodge in Hettinger, where he had been staying. There, Ash told his roommate that he had been in a fight in Lemmon. Ash put his bloody clothes in a garbage bag, that he placed in a garbage dumpster.

Ash was convicted of murder and sentenced to life imprisonment. He appealed with an agglomeration of arguments.

I. Continuance and deposition

Ash contends that the trial court abused its discretion in refusing a continuance early in the trial to allow his attorney to travel to San Antonio, Texas, to take a videotape deposition of a defense expert witness. On December 7, 1993, the first day of trial, Ash's attorney advised the court that on December 6, 1993, Dr. Vincent Di Maio told him that he would not be coming to North Dakota to testify on December 13, 1993, as scheduled. Counsel requested permission to travel to San Antonio and take Di Maio's deposition on Saturday and present it to the court the following Monday or Tuesday. Instead, the court offered two alternatives: Di Maio could testify on Saturday morning, or a videotaped deposition of Di Maio could be recorded in San Antonio, with counsel participating by telephone. Di Maio chose not to come to North Dakota to testify on Saturday, leaving only the option of a videotaped deposition by telephone. Ash argues that this caused problems in getting all the exhibits copied, marked, and made available in San Antonio and disabled Di Maio from reviewing the prior deposition of John O'Neill, a prosecution witness.

The trial had already been postponed once to accommodate Di Maio's schedule, Di Maio had in his possession every exhibit that defense counsel questioned him about, and O'Neill's deposition was available and defense counsel could have provided it to Di Maio. A motion for a continuance rests in the discretion of the trial court and its decision to grant or deny a continuance will not be set aside absent an abuse of discretion. State v. Kunkel, 452 N.W.2d 337 (N.D.1990). We conclude that the trial court's denial of a continuance was not an abuse of discretion. We also conclude that the videotaped deposition of Di Maio recorded in San Antonio, with the attorneys participating by telephone, was a reasonable accommodation of Di Maio's schedule and Ash's right to present a defense. We, therefore, conclude that the trial court did not abuse its discretion in requiring that procedure and in refusing a continuance to allow Ash's attorney to travel to San Antonio for an in-person video deposition.

II. Evidentiary rulings
a.

Ash contends that the trial court erred in allowing two photographs, State's Exhibit No. 1 and State's Exhibit No. 58, into evidence. Exhibit 1 was a family photograph of Kern, his wife, and their children. Ash objected to its admission on the ground that it was irrelevant.

Exhibit 58 is a February 25, 1993, photograph of Ash on his way to court for his initial appearance. Ash's attorney objected to it:

I would object to the picture as being irrelevant at this point. It's just prejudicial and he is being led around by a police officer with the handcuffs on. I don't know what the probative value of the picture is.

The prosecutor responded:

It's not uncommon for someone who has been accused of murder to have handcuffs on, so I don't think that is unduly prejudicial.... Moreover, several witnesses have identified the Defendant as having long hair which matches the description in this photograph, but does not, of course, match the description of the Defendant as he appears today.

The State observed in its appellate brief:

These same witnesses might well have had a difficult time recognizing the defendant at trial as he had lost 40 pounds, cut his hair to less than 1/2 inch in length, and shaved his mustache during the 10 months preceding trial.

The admission or rejection of photographs is within the discretion of the trial court. State v. Ohnstad, 359 N.W.2d 827 Exhibit No. 1 served to identify the victim for the jury by replacing an intangible, formless decedent with a face and personality. The picture imparted to the jury an idea of his size compared to his wife, who was in the picture and in the courtroom, and compared to Ash, also present in the courtroom. This comparison was more illustrative than the statement that he was "[f]ive foot, nine inches" tall and weighed 205 pounds. This picture was relevant to upcoming testimony about Kern's body being placed in a pickup and later dragged into a field, and the exhibit gave the jury insight into the strength required to perform those acts.

(N.D.1984); Larson v. Meyer, 135 N.W.2d 145 (N.D.1965). While NDREv 403 gives a trial court the power to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, that power should be sparingly exercised. State v. Zimmerman, 524 N.W.2d 111 (N.D.1994). Our review of a trial court's evidentiary ruling under NDREv 403 is limited to determining if the court abused its discretion. Zimmerman at 116 points out that "any prejudice due to the probative force of evidence is not unfair prejudice."

Exhibit 58 showed Ash as many of the witnesses saw him at around the time of the crime. Ash's appearance was very much different at the time of trial. The photo better apprised the jury of Ash's strength and muscularity at the time of the crime, than his appearance at trial did.

The challenged photographs were relevant and not unfairly prejudicial. We conclude that the trial court did not abuse its discretion in admitting the photographs into evidence.

b.

While cross-examining Adams County Sheriff Robert Bartz, Ash's attorney asked: "Why is motive an important factor in a homicide case?" The prosecutor objected on relevancy grounds. The trial court ruled:

Mr. Senn, I will allow you to question the witness concerning the actions taken by the witness in an effort to identify motive. I believe that is a proper inquiry. But, as to why motive is important, in other words, why the witness bothered to inquire in the first place, I believe is not a factual question to pose to the witness....

Ash contends that he "was denied his right to present an adequate defense by not being allowed to cross-examine the witness as to why motive was important." We disagree.

The trial court instructed the jury as to motive:

Proof of a motive for commission of a crime is permissible and often valuable, but never essential.... Evidence of motive is sometimes of assistance in removing doubt and completing proof that otherwise might be unsatisfactory.... The absence of motive is a circumstance tending to support the presumption of innocence, and should be given such weight and credibility as you think it deserves.

In State v. Potter, 60 N.D. 183, 233 N.W. 650, 658 (1930) (quoting 16 C.J. 547, Sec. 1048), this court stated the rule on evidence of motive: " '[E]vidence tending to show motive or absence of motive on the part of the accused is relevant and admissible, and ... a wide latitude in the admission of this kind of evidence is permissible.' "

Sheriff Bartz's personal view of the importance of motive in a homicide case is of marginal relevance at best. Ash was given wide latitude in cross-examining Sheriff Bartz about the presence or absence of a motive. We deem it unnecessary to detail the entire course of inquiry of Bartz by Ash's attorney on the matter of motive. It is sufficient that Ash's attorney was able to inquire and to establish that Bartz had tried to discover a motive in this case, but was unable to do so.

We conclude that the trial court did not abuse its discretion in refusing to allow Ash to examine Sheriff Bartz about the importance of motive in a homicide case. From Ash's establishment that Sheriff Bartz had tried to discover a motive, but was unable to do so, together with the trial court's instruction on motive, we conclude that Ash was not prejudiced in any way by the court's refusal to allow examination of Bartz about the importance of motive.

c.

Ash contends that the trial court erred in allowing cross-examination of him about his prior conviction for aggravated assault. The trial court allowed the evidence under NDREv 404, 1 and NDREv 609. 2

In State v. Stevens, 238 N.W.2d 251, 257-58 (N.D.1975) [overruled in part, on other grounds in State v. Himmerick, 499 N.W.2d 568, 572 (N.D.1993) ], this...

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