State v. Berger

• Citation: 234 N.W.2d 6
• Decision Date: 06 October 1975
• Docket Number: No. 509,509
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Kenny BERGER, Defendant and Appellant. Crim.
• Court: United States State Supreme Court of North Dakota

Page 6

234 N.W.2d 6

STATE of North Dakota, Plaintiff and Appellee, v. Kenny BERGER, Defendant and Appellant.

Crim. No. 509.

Supreme Court of North Dakota.

Oct. 6, 1975.

Syllabus by the Court

1. Surprise as grounds for a continuance is a question addressed to the sound discretion of the trial court and its ruling will not be disturbed on appeal in the absence of a showing of abuse of discretion.

2. If the surprise alleged does not have a material effect on the movant's cause, there is no abuse of discretion in denying the motion for continuance.

3. A motion for continuance during a criminal trial is a matter within the sound discretion of the trial court, and the trial court's ruling will not be disturbed unless there has been an abuse of discretion.

4. Since no accused person has any recognizable legal interest in being tried with another, it is not an abuse of discretion to deny a motion for continuance designed to reconsolidate trials previously severed.

5. Rule 14, N.D.R.Crim.P., allows either the accused or the prosecution to seek a severance when its case has been prejudiced.

6. Granting a severance upon motion of the prosecution is a matter within the discretion of the trial court, and this Court will reverse such an order only upon a showing of abuse of discretion.

7. If it appears that the prosecution is prejudiced by continued joinder, there is no abuse of discretion in granting the prosecution's motion for severance where the defendant claims merely an unsupported possibility that favorable testimony might have been produced through his cross-examination of the original codefendants, who could have refused to testify.

8. In determining on appeal the question of the sufficiency of the evidence to support the judgment of the trial court that the defendant was guilty, this Court is required to determine whether there is substantial evidence to support the judgment.

L. E. Greenwood, Dickinson, for defendant and appellant.

Donald L. Jorgensen, Asst. State's Atty., and Albert J. Hardy, State's Atty., Dickinson, for plaintiff and appellee; argued by Mr. Jorgensen.

ERICKSTAD, Chief Justice.

Kenny Berger, defendant and appellant herein, was convicted of assault and battery in violation of Section 12--26--02, N.D.C.C., in a nonjury trial heard by Judge Thomas Ewing of the Stark County Court of Increased Jurisdiction. Pursuant to Rule 13, N.D.R.Crim.P., a consolidated trial of Robert, Frank, and Donald Berger, as well as of the appellant, was begun at 9:30 a.m., January 31, 1975, and three of the State's witnesses had testified before the court discovered that it had neglected to arraign Donald, Frank, and Robert Berger. When the three would not waive the arraignment, the court severed the trial of the three Bergers from the trial of Kenny Berger and ultimately declared a mistrial as to the three.

Counsel for Kenny moved for a continuance at the time of the severance and again when Kenny's trial was reconvened after the arraignment of the three other Bergers. Both motions were denied. When Kenny's trial continued, his counsel refused to cross-examine four witnesses 'for fear of waiving possible prejudice to the appellant.' At the close of the State's case on January 31, 1975, Kenny's counsel moved for a mistrial, a dismissal, and a continuance; the first two motions were denied, while the motion for continuance was granted 'for time to prepare a defense' until 1:30 p.m., February 6, 1975.

Kenny testified on his own behalf and was the only witness called by the defense. He testified that he had learned of the party being held to celebrate Gail Burton's birthday from a friend of hers at 8:00 or 8:30 p.m. and that the friend had invited them to stop in. He further testified that at 3:30 a.m. he and four or five others arrived at Gail Burton's house in a car driven by Donald Berger.

Testimony during the State's case indicated that some furniture had been broken, that the telephone had been torn from its connection, and that Anthony McKeown, Gail Burton's sixteen-year-old son, had been held by Kenny while one or two of Kenny's companions struck Anthony. Kenny's testimony was that he had remained outside the house briefly, during which time some of his companions entered the house, and that when he subsequently entered the house he observed a scuffle that lasted a minute or two. He said that he urged his companions to leave: '* * * I said let's get out of here, there is no party here, and I walked out and we left.'

Kenny specifically denied either striking or holding Anthony McKeown, but the trial court found him guilty of assault and battery on the 'unequivocal' testimony 'that at least four persons saw Mr. Berger, this Defendant, holding Anthony McKeown while others did in fact beat on him.' The court sentenced him to the Stark County jail for a period of six months with five of those months suspended upon conditions. Execution of the sentence was stayed pending this appeal.

Kenny asks this court to review

'(1) Whether an element of 'surprise' sufficient for granting a reversal or new trial was introduced into the trial?

'(2) Whether there was an abuse of discretion on the part of the Trial Judge in:

'a. firstly, denying a continuance;

'b. secondly, granting the continuance too late;

'c. thirdly, granting an insufficiently long continuance?

'(3) Whether the evidence was sufficient to establish the Appellant's guilt beyond a reasonable doubt?'

We have previously determined that all three questions are addressed to the trial court's discretion and that our function is only to determine whether there has been an abuse of discretion:

'Applications for a new trial on the ground of surprise are addressed to the sound discretion of the court and its ruling will not be disturbed in the absence of a showing of abuse of discretion.' Syllabus 5. Bohn v. Eichhorst, 181 N.W.2d 771, 773 (N.D.1970).

'The granting or refusing of an application for a postponement of a criminal trial is a matter within the sound discretion of the trial court. (Citations omitted.)

'We have reviewed the entire record and have concluded that the trial court did not abuse its discretion (in denying defendant's motion for a postponement). * * * ' State v. DePriest, 206 N.W.2d 859, 862, 863 (N.D.1973).

'In passing upon a motion for a new trial based on the insufficiency of the evidence, the trial court is clothed with a wide discretion, and its determination in regard thereto will not be disturbed unless there appears to have been an abuse of that discretion.' Syllabus 3. Id., at 860.

We have also ruled that granting a separate trial upon motion of a defendant lies within the discretion of the trial court and depends upon circumstances from which it is apparent to the court that the ends of justice require a separate trial. State v. Whiteman, 79 N.W.2d 528, 533 (N.D.1956); Accord, State v. Erickson, 231 N.W.2d 758 (N.D.1975). Rule 14, N.D.R.Crim.P., allows either the accused or the State to seek a severance where its case is prejudiced. 'The application of this rule to a particular set of circumstances rests in the sound discretion of the trial judge * * *' Brown v. United States, 126 U.S.App.D.C. 134, 375 F.2d 310, 315 (1967), Cert. denied 388 U.S. 915, 87 S.Ct. 2133, 18 L.Ed.2d 1359; Accord, United States v. Hutchinson, 488 F.2d 484 (8th Cir. 1973), Cert. denied 417 U.S. 915, 94 S.Ct. 2616, 41 L.Ed.2d 219; Garris v. United States, 135 U.S.App.D.C. 251, 418 F.2d 467 (1969); Roth v. United States, 339 F.2d 863 (10th Cir. 1964); Goodman v. United States, 273 F.2d 853 (8th Cir. 1960).

Since granting a severance upon motion of the prosecution is a matter within the discretion of the trial court, we will reverse such an order only upon a showing of abuse of discretion resulting in prejudice to the defendant. See Garris v. United States, supra, 418 F.2d at 469; White v. United States, 395 F.2d 170, 175--176 (8th Cir. 1968), Cert. denied 393 U.S. 844, 89 S.Ct. 127, 21 L.Ed.2d 115; Roth v. United States, supra, 339 F.2d at 865; United States v. Dioguardi, 20 F.R.D. 10, 13 (S.D.N.Y.1956).

Rule 50, N.D.R.Crim.P., provides that the trial court 'may make such orders for advancement or continuance of a criminal action or proceeding as may be necessary in the interest of justice.' The commentary to rule 50 declares that the statement

'* * * is intended to echo the A.B.A. Standards which provide that a continuance should be granted 'only upon a showing of good cause and only for so long as necessary, taking into account not only the request or consent of the prosecution or defense, but also the public interest in prompt disposition of the case.' (A.B.A. Standards for Criminal Justice, Speedy Trial, § 1.3 (Approved Draft, 1968).)'

The accused is guaranteed the right to a speedy trial. United States Constitution, Article VI; North Dakota Constitution, Section 13. However, 'a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. Chandler v. Fretag, 348 U.S. 3 (75 S.Ct. 1, 99 L.Ed. 4).' Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849--850, 11 L.Ed.2d 921, 931 (1964), Reh. den. 377 U.S. 925, 84 S.Ct. 1218, 12 L.Ed.2d 217. In Ungar v. Sarafite, the United States Supreme Court said:

'There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.' Id., 376 U.S. at 589, 84 S.Ct. at 850, 11 L.Ed.2d at 931.

Counsel alleges that Kenny was surprised by the severance and asserts that he had planned his defense strategy upon an agreement by all the codefendants to testify. After the severance counsel noted that the other three Bergers, on the advice of their attorney, refused to testify for Kenny.

As to civil actions, we have defined...