State v. Bergeron, Cr. N

Citation340 N.W.2d 51
Decision Date31 October 1983
Docket NumberCr. N
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Lloyd G. BERGERON, Defendant and Appellant. o. 912.
CourtUnited States State Supreme Court of North Dakota

J.E. Rick Brown, Asst. State's Atty., Grand Forks, for plaintiff and appellee.

Robert J. LaBine, Grand Forks, for defendant and appellant.

SAND, Justice.

This is an appeal by the defendant, Lloyd G. Bergeron (Bergeron), from a conviction for the manslaughter of Victor Brage (Brage).

At approximately 11:30 p.m. on 20 October 1981, Grand Forks police officer Kevin Kallinen received a call reporting that a partially clothed man was lying in the yard of 419 Cherry Street in Grand Forks. He responded to the call, and upon arrival found Brage lying on the sidewalk of 419 Cherry Street a few feet from the north door of the house. A second officer, Bryan Sieber, came to the scene shortly thereafter. Sieber testified that Brage was unconscious and that he was naked from the waist up. Brage was taken to the United Hospital in Grand Forks for treatment.

The police arrested Bergeron at 12:30 a.m. on 21 October 1981, and the Grand Forks County state's attorney's office charged him with aggravated assault. Seven weeks later, on 7 December 1981, Brage died. The charge against Bergeron was changed to murder.

The principal witness against Bergeron at trial was Leona Thompson. Thompson, an alcoholic who was undergoing alcohol treatment at the time of trial, had been intimately involved with Bergeron in 1978. For several weeks prior to the assault, however, she was living with Brage and was with him on the evening of 20 October. Thompson testified that she and Brage had been visiting, drinking, and playing cards together that afternoon and evening. Thompson stated that Bergeron came to Brage's apartment about 9:00 p.m., called out for her about three times, and then said, "Brage, come out here." Neither Brage nor Thompson responded, and Bergeron apparently left. According to Thompson, Bergeron returned sometime after 11:00 p.m., entered the apartment through an unlocked door, pulled Brage from a kitchen chair, threw him on the floor and beat him. Bergeron then told Thompson to get her coat because he was going to call a cab to take them to the Forks Hotel.

At 11:12 p.m., Stanley Ofstedal, a cab driver for the Nodak Cab Co. in Grand Forks, answered a dispatcher's call to proceed to 419 Cherry Street. Ofstedal stated that he arrived at 419 Cherry Street about 11:15. According to Ofstedal, Bergeron exited the north door of 419 Cherry, kicked an object just outside the door, and then temporarily disappeared around the corner of the house. When Bergeron reappeared he was with Thompson and the two of them entered Ofstedal's cab. When the cab reached the Forks Hotel, Ofstedal testified that Bergeron told him that "You never saw me."

While inside the hotel Thompson stated that Bergeron slapped her, swore at her, and then left, telling her to stay at the hotel until he got back.

Meanwhile, William Mutcher, a neighbor who lived next door to Brage, discovered Brage's body on the lawn of 419 Cherry Street and called the police. Mutcher testified that Bergeron arrived at the scene by cab shortly after the ambulance had taken Brage to the hospital. According to Mutcher, Bergeron told him not to tell anybody that he had been back to Brage's apartment.

The State offered the testimony of several witnesses to establish an apparent motive for the assault. William Strate, a law clerk for the Grand Forks County state's attorney's office, testified that Bergeron had been in his office on the morning of 20 October 1981. Bergeron asked Strate to file a complaint against Brage because Brage had allegedly stolen some things from Myrtle Silverman, Brage's and Bergeron's landlord. Strate stated that when he asked Bergeron for details, Bergeron's story kept changing. When Strate suggested that Silverman file the complaint, Bergeron then claimed that the missing items were his. According to Strate, Bergeron appeared "agitated."

Wallace Johnson, a Grand Forks police officer, testified that Bergeron also came to the police department on 20 October and asked Johnson to arrest Brage. Bergeron gave no reason why he wanted Brage arrested. When Johnson refused to arrest Brage, Johnson testified that Bergeron angrily told him that "he [would] take care of Mr. Brage himself."

Stanley Ofstedal, the cab driver who drove Bergeron and Thompson from 419 Cherry to the Forks Hotel, stated that Bergeron told him that Brage had "slapped up" Thompson and that he (Bergeron) was going to "kick the shit out of [Brage]."

Lois Kraft, a longtime friend of Bergeron, testified that Bergeron called her on 20 October and said, in effect, that he was going to get Victor Brage, that Brage was a cop caller and that he would never call a cop on Bergeron again.

Bergeron testified in his own behalf to rebut the charges. Bergeron said that he believed it was Clarence Zelmer, Brage's neighbor, who committed the assault because Zelmer had also been romantically involved with Thompson. Bergeron claimed that he told Ofstedal and Mutcher to disregard his presence at 419 Cherry because the police had been harassing him and he was afraid that they would arrest him for the assault.

Bergeron also called Myrtle Silverman in an attempt to establish an alibi for his whereabouts on 20 October. Although Silverman stated that Bergeron was at her house visiting that evening, she acknowledged that he left about 11:00 p.m.

When he was admitted to the hospital, Brage was in a semicomatose condition. Dr. Joel Johnson, an emergency medical specialist at United Hospital, testified that Brage had swollen eyes, multiple injuries about his face and head, and several fractured ribs on one side of his chest. At 10:00 a.m. on 22 October Brage's blood pressure and pulse rose to "life-endangering levels" and he developed a very high fever. Six doctors, three from each side, testified regarding Brage's medical condition and cause of death. Although the doctors disagreed about the cause of Brage's acute event on 22 October, there was medical testimony that it was directly related to the fact that Brage was seriously injured on 20 October. Brage's condition improved slightly thereafter but he remained in what was basically a vegetative state until his death on 7 December 1981.

The pathologist who performed the autopsy upon Brage testified that the ultimate cause of death was a massive pulmonary embolus. A pulmonary embolus is a blood clot that travels with the bloodstream to the lungs eliminating the bloodstream's oxygen supply and ultimately causes death. The pathologist stated that several conditions can cause a pulmonary embolism but that Brage's injuries, surgery, hospitalization, and immobility "did play a role in [Brage's] death." Brage's supervising physician agreed with the pathologist's conclusion.

A jury found Bergeron guilty of the lesser included offense of manslaughter. The court subsequently sentenced Bergeron to ten years in the state penitentiary, and he appealed the conviction to this Court.

The defendant raised numerous issues in his brief, but during oral argument on appeal singled out the issues we will consider, discuss, and resolve.

The defendant argued that the trial court erred when it denied his motion for a judgment of acquittal pursuant to North Dakota Rules of Criminal Procedure 29(a) on the ground that the evidence was insufficient to support the conviction. In reviewing this we must consider the evidence in a light most favorable to the verdict. State v. Sheldon, 301 N.W.2d 604, 616 (N.D.1980), cert. denied, 450 U.S. 1002, 101 S.Ct. 1711, 68 L.Ed.2d 204 (1981).

The State called fourteen witnesses. One of them, Leona Thompson, was an eyewitness to the assault. Thompson identified Bergeron as the one who pulled Brage from a kitchen chair, threw him on the floor and beat him. Four witnesses testified that Bergeron was angry with Brage. One of them, Lois Kraft, stated that Bergeron told her that he intended "to get Brage." Stanley Ofstedahl placed Bergeron at the scene when he identified Bergeron as the one who exited the house about 11:15 to enter Ofstedal's cab. Bergeron's own alibi witness acknowledged that his presence at the scene was possible, if not probable.

The medical testimony was complex and lengthy. The transcript contains nearly 400 pages of testimony from several medical doctors. Although the testimony was perhaps technical to a lay person, we believe that it was sufficient to sustain a conclusion that the assault placed Brage's life in a drastically compromised position and that his death was a direct and proximate result of the assault.

Considering the evidence in a light most favorable to the verdict, we find the defendant's contention that the evidence was insufficient to support the conviction is without merit.

The defendant next argued that the trial court erred when it refused to give three requested jury instructions regarding proximate cause. Instructions are considered as a whole and if they correctly advise the jury as to the law of the case they are sufficient although parts of them, standing alone, may be erroneous or insufficient. State v. Hendrickson, 240 N.W.2d 846, 852 (N.D.1976).

We have reviewed the instructions submitted to the jury 1 and the instructions requested by the defendant. 2 The instructions as a whole encompassed the theory of the State's case, the defendant's opposition to that theory, and the applicable law. Accordingly, the court did not err when it refused the defendant's requested instructions.

The defendant next argued that the trial court erred by interrupting defense counsel's summation and advice to the jury that if they were confused about any evidence they could request the court to have the court reporter read back the testimony in question. During defense counsel's summation the following exchange occurred between defense counsel and...

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