State v. Azure

• Decision Date: 20 December 1994
• Docket Number: Cr. N
• Citation: 525 N.W.2d 654
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Andrew S. AZURE, Defendant and Appellant. os. 930411, 930412.
• Court: North Dakota Supreme Court

Page 654

525 N.W.2d 654

STATE of North Dakota, Plaintiff and Appellee, v. Andrew S. AZURE, Defendant and Appellant.

Cr. Nos. 930411, 930412.

Supreme Court of North Dakota.

Dec. 20, 1994.

Thomas K. Schoppert of Schoppert Law Firm, Minot, for defendant and appellant.

Mary Kathleen O'Donnell, State's Atty., Rolla, for plaintiff and appellee.

SANDSTROM, Justice.

Andrew Azure appeals from a judgment of conviction, following a jury verdict of guilty for delivery of alcohol to a minor and fleeing or attempting to elude a police officer. Azure also contends the prosecutor made an improper comment in her closing argument and the trial court's jury instruction on reasonable doubt was contrary to law. Because we conclude the reasonable doubt instruction was insufficient, we reverse.

I

This case was previously before us on separate legal issues. See State v. Azure, 520 N.W.2d 574 (N.D.1994).

Andrew Azure and two adult companions accompanied three underage girls to a Rolette bar on January 15, 1993. The girls expressed doubt about entering the bar. Azure, who was then employed by the Bureau of Indian Affairs as Captain of the Belcourt Police, assured the girls they had nothing to worry about as long as he was with them. Once inside, Azure ordered a round of drinks and paid for it. The bartender serving the drinks noticed the girls appeared young, but did not check their identification because they were with Azure. The group continued to drink, with Azure and one of his companions taking turns purchasing the drinks.

The group left the bar around midnight. Azure purchased alcoholic beverages before leaving and placed a case of beer in the bed of his pickup and brought a bottle of alcohol into the cab. One of Azure's male companions left in a separate car, so the remaining five climbed into the cab of Azure's truck. One of the minors drove the truck, Azure sat in the middle, his companion sat on the right side, and the other two minors sat on their laps. The bottle of alcohol was passed around the cab for all to drink.

A Rolette County deputy sheriff was on duty and received a report of a possible drunk driver, along with a description of the vehicle. The deputy spotted the vehicle going above the posted speed limit. He stopped the vehicle and recognized Azure and the other occupants. The deputy asked Azure to step out of the truck to discuss the matter. Azure replied he did not want to get out because the truck had stopped in the street and was a possible traffic hazard. The deputy told them to drive up to a nearby gravel road and pull off. The truck drove ahead, but did not pull off onto the gravel road. Instead, the truck drove for three to four more miles. At that point, the deputy turned on his red flashing lights. The truck pulled over and the deputy again approached the truck and asked Azure to step out. Azure refused. The deputy told Azure to "wait a minute" and went back to his patrol car to use the radio. The three minors then either climbed out or were pushed out of the truck, and Azure fled the scene. The deputy did not pursue Azure, but placed the intoxicated girls in his patrol car. A North Dakota Highway Patrol Officer was approaching the scene from the opposite direction, but lost control of his vehicle and could not pursue Azure.

Azure was tried by a jury for delivery of alcohol to a minor and fleeing or attempting to elude a police officer. The jury returned a verdict of guilty on both charges on September 30, 1993. On October 12, 1993, Azure filed his motion for a new trial alleging the trial court gave an erroneous instruction on reasonable doubt and the prosecutor made an improper statement during closing arguments. The trial court denied the motion for new trial and Azure appeals.

The trial court had jurisdiction under Art. VI, Sec. 8, N.D. Const., and N.D.C.C. Sec. 27-05-06(1). This Court has jurisdiction under Art. VI, Sec. 6, N.D. Const., and N.D.C.C. Sec. 29-28-06(1), (2). The appeal from the judgment is timely under Rule 4(b), N.D.R.App.P. Azure erroneously contends he is appealing from a denial of his motion for new trial. Azure's motion was not filed within the mandatory seven-day period found in Rule 33(c), N.D.R.Crim.P. The motion was untimely, therefore, the trial court lacked jurisdiction to consider it. State v. Simek, 502 N.W.2d 545 (N.D.1993). The notice of appeal from the judgment of guilt was timely filed, so we review it instead.

II

Azure's first grounds for reversal is a statement the prosecutor made in closing argument. The alleged improper argument was: "Ms. Giron, Mr. Wawryk, Ms. Foss, Ms. Davis, Mr. Coleman, Ms. Azure, Mr. Hardy, Mr. Henry, Ms. Baker, this is your community. Send a message from this courtroom that your community, law enforcement officer are not above the law." At the outset, we note the transcript is riddled with errors, thus, it is not clear whether counsel's verb usage was inaccurate or even if punctuation was correctly placed in this quoted portion. We hold, however, that neither the statement as it appears in the record, nor as it is construed by Azure requires reversal.

The control and scope of closing arguments are left to the discretion of the trial court. A verdict will not be reversed on the ground the prosecutor exceeded the scope of permissible closing argument, unless the defendant establishes the prosecutor's comments were improper and prejudicial. State v. McKinney, 518 N.W.2d 696, 700 (N.D.1994). Error is prejudicial if it causes substantial injury to the defendant such that a different decision would have resulted absent the error. State v. Marks, 452 N.W.2d 298, 302 (N.D.1990). At the time of the improper argument, the defendant must object and request a curative instruction so that the objection is not waived. McKinney at 701. We seldom reverse on appeal because it is generally presumed the jury will follow the trial court's admonition and disregard the improper statement. State v. Paulson, 477 N.W.2d 208, 210 (N.D.1991). In this case, following the prosecutor's statement, Azure objected and requested an instruction from the court. The trial court then admonished the jury to disregard the statement about a message to the community.

Upon reviewing the record, it appears Azure waived any objection to the prosecutor addressing each juror by last name. After the statement, Azure's counsel objected:

"Your honor I move to strike that as being improper prosecutorial comment. That is absolutely not the issue in this case. They are not here to send any message. It goes way beyond the facts of this case. I move that that's improper argument on behalf of the State. I request the court to strike that. It's not the issue in this case."

Azure did not contest the addressing of each juror by name. Further, Azure only requested the court strike the comment. The trial court complied and had the argument stricken. Azure did not move for a mistrial. Thus, Azure received all that he requested and we must review the argument for plain error.

We hold that addressing jurors by name, even though improper, was not prejudicial. We find no authority, and Azure cites none, to support reversal for merely addressing all of the jurors by last name with no attempt to single out a juror for special treatment or to appeal to that juror's fear or prejudice. See generally Annotation, Prejudicial Effect of Counsel's Addressing Individually or by Name Particular Juror During Argument, 55 A.L.R.2d 1198 (1957, Supp.1987 & Supp.1994). In this case, the prosecutor did not single out a specific juror. Rather, she addressed all of them in the same manner the phrase "ladies and gentlemen of the jury" is used to address jurors.

Azure cites two cases to support his argument the prosecutor's request to send a message is prejudicial. In People v. Williams, 65 Mich.App. 753, 238 N.W.2d 186 (1975), the prosecutor said during closing argument: "Ladies and gentlemen of the Jury, you have an opportunity to effect the drug traffic in this city. You have a voice. You have a chance to use it." Williams at 187. Similarly, in People v. Biondo, 76 Mich.App. 155, 256 N.W.2d 60 (1977), the prosecutor used an argument generally termed "civic duty" to persuade the jury to save the city from financial ruin. Biondo at 61-62. In both cases the court reversed the defendants' convictions because the statements were prejudicial. See Williams at 188 ("[T]he prosecutor appealed to the jurors' fears and encouraged them to go outside the evidence and decide the case on the basis of their desire to alleviate the drug problem."); Biondo at 63 ("Appealing to the social fears of the jury can hardly be said to be relevant to the sole issue of the trial, that being Mr. Biondo's guilt or innocence."). Each of these cases stands for the proposition the jury should convict on the basis of a defendant's guilt, and not on the potential consequences upon the community of the jury's decision. "Predictions about the effect of an acquittal on lawlessness in the community also go beyond the scope of the issues in the trial and are to be avoided." ABA, Standards for Criminal Justice: Prosecution Function and Defense Function Standard 3-5.8 commentary at 109 (3d ed. 1993).

But the prosecutor's argument in this case did not call for the jury to consider the effects of acquittal upon the community. The statement was not intended to inflame the jury, but rather to explain to the jurors they were to judge a law enforcement official by the same standards as apply to the community. See United States v. Koon, 34 F.3d 1416, 1444 (9th Cir.1994). A prosecutor's request the jury act as the "conscience of the community" and to "decide what conduct is acceptable by your police" was not improper and "did not place upon the jurors the burden of maintaining social order." Koon. Captain Azure was accused of using his status to obtain service for the minors at the bar and to elude other law enforcement officials. The prosecutor...