State v. Bell

• Decision Date: 15 August 2002
• Docket Number: No. 20010311.,20010311.
• Citation: 649 N.W.2d 243,2002 ND 130
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Rodney BELL, Defendant and Appellant.
• Court: North Dakota Supreme Court

649 N.W.2d 243

2002 ND 130

STATE of North Dakota, Plaintiff and Appellee, v. Rodney BELL, Defendant and Appellant.

No. 20010311.

Supreme Court of North Dakota.

August 15, 2002.

William A. Mackenzie, Jamestown, for defendant and appellant.

Leo A. Ryan, Assistant State's Attorney, Jamestown, for plaintiff and appellee.

NEUMANN, Justice.

[¶ 1] Rodney Bell appeals from a judgment of conviction entered on a jury verdict finding him guilty of possession of a controlled substance with intent to deliver, a class B felony, in violation of N.D.C.C. §§ 19-03.1-23(1) and 19-03.1-05(5)(t). We affirm.

I

[¶ 2] Rodney Bell and Jodee Kirvida lived in Streeter, North Dakota. After receiving three anonymous tips that narcotics were being distributed from their home, the Stutsman County Narcotics Task Force conducted a search of the garbage outside the home. The task force found evidence of drugs in the garbage search and, subsequently, applied for and executed a search warrant of the home. During the search, the task force seized large amounts of marijuana and drug paraphernalia found in a number of rooms throughout the house, and also seized an address book and a business card they believed contained calculations evidencing drug transactions. Bell eventually admitted he had written the calculations, but did not admit they were calculations of drug transactions. On August 14, 2001, Bell was arrested and charged with the possession of a controlled substance with the intent to deliver in violation of N.D.C.C. §§ 19-03.1-23(1) and 19-03.1-05(5)(t).

[¶ 3] On September 20, 2001, Bell filed a motion in limine requesting an evidentiary hearing on the admissibility of the address book and the business card purported to contain evidence of drug transactions, referred to as "owe" documentation. On October 9, 2001, a hearing was held. At the close of the hearing, the trial court concluded the address book and the business card were relevant and not unfairly prejudicial. On October 15 and 16, 2001, a jury trial was held and the jury found Bell guilty. On December 19, 2001, the trial court entered a judgment of conviction based on the jury's verdict.

[¶ 4] Bell appeals, arguing (1) the trial court abused its discretion by admitting the address book and business card into evidence; (2) the trial court abused its discretion in excluding the testimony of Kirvida regarding the charges to which she had pled guilty; (3) there was not sufficient evidence to sustain the verdict; and (4) a new trial should be granted based on ineffective assistance of counsel.

II

[¶ 5] Bell argues the trial court abused its discretion by admitting the address book and business card into evidence without sufficient foundation. Further, he argues, even if adequate foundation was laid and the address book and business card were relevant, admitting them into evidence unfairly prejudiced him.

[¶ 6] A trial court has broad discretion in evidentiary matters and this Court will not reverse its decision absent an abuse of discretion. State v. Jensen, 2000 ND 28, ¶ 10, 606 N.W.2d 507. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. State v. Randall, 2002 ND 16, ¶ 5, 639 N.W.2d 439.

A. Foundation for Officers' Testimony

[¶ 7] Bell argues a lack of foundation for admitting the address book and the business card, claiming the foundation relies on the opinions of Officer Troy Kelly and Special Agent Arnie Rummel, and the State failed to qualify these officers as experts. Bell contends that because the officers were not explicitly qualified as experts, their opinions were not rationally based, and the evidence should have been excluded. Bell relies on Rule 701, N.D.R.Ev., which provides:

If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences that are (i) rationally based on the perception of the witness and (ii) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

[¶ 8] The State argues proper foundation was established, and the evidence was properly admitted under Rule 702, N.D.R.Ev., which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

[¶ 9] A touchstone for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court, so the trial court could intelligently rule on it. State v. Freed, 1999 ND 185, ¶ 13, 599 N.W.2d 858. In Freed, we explained under Rule 103(a)(1), N.D.R.Ev., "error may not be predicated upon a ruling which admits ... evidence unless a substantial right of the party is affected, and... a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context." Id. A party must object at the time the alleged error occurs, so the trial court may take appropriate action if possible to remedy any prejudice that may have resulted. City of Fargo v. Erickson, 1999 ND 145, ¶ 22, 598 N.W.2d 787 (Sandstrom, J., concurring). Failure to object acts as a waiver of the claim of error. Id.

[¶ 10] In his brief on appeal, Bell contends he objected to the items of evidence for lack of a rational foundation. He supports his contention by arguing the officers were not qualified as experts and their opinions, therefore, were irrational under Rule 701. However, Bell did not object to the officers' testimony for lack of a rationally based opinion or a lack of expertise. His objection was based on a lack of foundation for the evidence itself, asserting the State could not prove the address book and the business card were actually "owe" sheets. Bell said nothing about the officers' expertise or qualifications.

[¶ 11] In his written motion in limine, Bell asserted, "allowing the state to introduce the exhibits as `owe' documentation during the jury trial would be unfairly prejudicial to the defendant unless the state provides satisfactory foundation at a pre-trial hearing." During the pre-trial hearing on the motion in limine, the State presented testimony of Officer Kelly, without objection. Officer Kelly testified as to his training and experience. He further testified as to his belief, based on his training and experience, that the address book and business card found during the search of Bell's home were evidence of drug transactions. Bell did not object to Officer Kelly's testifying nor did he challenge Officer Kelly's qualifications in providing an opinion on the address book and business card.

[¶ 12] At trial, both Officer Kelly and Special Agent Rummel testified that based on their experience the address book and the business card were evidence of drug transactions. Bell did not object to the officers' testifying nor did he object to their opinions based on lack of expertise. When the State offered the address book into evidence, the only objection Bell made was: "Your Honor, this item of evidence was subject to a motion earlier, I think I objected to it at that time, same objections as to relevancy as well as unfair prejudice. That's a matter of record so I'm going to renew that objection and we'll go on with it." Then, when the State offered the business card into evidence, Bell's only objection was: "I have no problem with the front ... but same objection on the back as I did at the motion hearing." Bell did not provide a meaningful opportunity for the trial court or opposing counsel to cure any alleged foundational deficiencies based upon the extent of the officers' qualifications or expertise. Bell's objections to the State's offer of the address book and business card into evidence were vague and made no reference to the officers' expertise and qualifications. The objections were insufficient to preserve this issue for appellate review. See Freed, 1999 ND 185, ¶ 13,

599 N.W.2d 858.

B. Unfairly Prejudicial Evidence

[¶ 13] Bell argues even if foundation was properly laid, and even if the evidence was relevant, the address book and business card still should have been excluded on the basis of unfair prejudice.

[¶ 14] Under Rule 403, N.D.R.Ev., "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice...." The trial court has broad discretion to control the introduction of evidence at trial, and this Court's review is limited to deciding if that discretion was abused. State v. Zimmerman, 524 N.W.2d 111, 115 (N.D.1994). A trial court's power to exclude relevant evidence should be exercised sparingly. Id. at 115. As we explained in State v. Randall, 2002 ND 16, ¶ 15, 639 N.W.2d 439:

In determining whether to exclude evidence under Rule 403, courts should "give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value." See [Zimmerman, 524 N.W.2d at 114-15

] (quoting 1 Jack B. Weinstein and Margaret A. Berger, Weinstein's Evidence ¶ 403[03], pp. 403-49, 403-51 (1994)). "Generally, any doubt about the existence of unfair prejudice, confusion of issues, misleading, undue delay, or waste of time, should be resolved in favor of admitting the evidence, taking necessary precautions by way of contemporaneous instructions to the jury followed by additional admonition in the charge." Id. Therefore, the burden is on the objecting party to show that relevant evidence should be excluded under Rule 403. See Kociemba v. G.D. Searle & Co., 683 F.Supp. 1579, 1581 (D.Minn.1988).

[¶ 15] At trial, the officers testified as to the meaning of the...