State v. Boushee
| Citation | 284 N.W.2d 423 |
| Decision Date | 26 September 1979 |
| Docket Number | Cr. N |
| Court | United States State Supreme Court of North Dakota |
| Parties | STATE of North Dakota, Plaintiff/Appellee, v. Douglas BOUSHEE, Defendant/Appellant. o. 681. |
Murray, Olson, Larivee & Bohlman, Grand Forks, for defendant/appellant; argued by Bruce E. Bohlman, Grand Forks.
Thomas B. Jelliff, Sp. Counsel, Grand Forks, for plaintiff/appellee.
The defendant, Douglas Boushee ("Boushee"), brought this appeal from a judgment of conviction from the Grand Forks County District Court. The case was tried to a jury which found Boushee guilty of the crime of possession of marijuana with intent to deliver, in violation of §§ 19-03.1-05(4)(m), 19-03.1-23(1)(b), and 12.1-32-01(2) of the North Dakota Century Code. 1 Boushee was sentenced to five years' imprisonment in the State Penitentiary, with two years suspended upon payment of a $5,000 fine. The jury acquitted Boushee on two other related charges. We affirm.
Boushee is a farmer in the Emerado area. He has admittedly used marijuana for the past ten years and has smoked about three to four ounces per month. On the afternoon of February 23, 1978, at about 4:00 p. m., he left his trailer home on the farm and drove to the Red Dog Saloon in Larimore to drink with some friends. Before leaving home he smoked two marijuana cigarettes or "joints". The marijuana was homegrown by Boushee and some friends and is of a variety commonly known as "ditch weed".
After leaving home, Boushee "lit up" another joint and drove to the Red Dog Saloon in Larimore. He arrived there about 5:00 p. m. and drank whiskey and rum for about two hours with a friend. Around 7:00 p. m., Boushee and some friends left the bar and drove out into the country and smoked three more marijuana cigarettes. They returned to the Red Dog Saloon about 7:45 p. m., and Boushee drank whiskey and coke or rum and coke for another two hours.
Boushee then left the Red Dog Saloon and drove to Bump's Bar in Arvilla to watch a pool tournament. He smoked another joint of marijuana on the way. He was drinking beer and watching the pool tournament when he received a call from Jeannie Cole, the wife of his friend Raymond Cole. She told him that she wanted to purchase two pounds of marijuana for some friends from Devils Lake. Boushee was reluctant to sell it to her, saying he did not have that much available and urging Boushee smoked another marijuana cigarette on the way to Emerado and arrived at Johnny's Bar some time shortly after midnight. He was talking with some friends when Jeannie Cole entered with two men whom she introduced to Boushee as her "friends" from Devils Lake (the two men were actually undercover agents Jerald Kemmet and C. Daniel Smith of the North Dakota Attorney General's Drug Enforcement Unit). After some discussion, Boushee agreed to "scrape together" about a pound of marijuana.
her to get it from one of Raymond's other "connections". He told her he didn't want to be hassled because he was "pretty hammered or drunk" but he finally agreed to meet her at Johnny's Bar in Emerado.
Boushee and Mrs. Cole left the bar together and he drove to his farm to get the marijuana. He proceeded to assemble a pound of marijuana by mixing some fragments of the drug kept in an old soap box with some leaves and stalks torn from a marijuana plant which he found in a grain bin. He then placed this mixture in a ziplock bag. Boushee and Mrs. Cole then returned to the bar in Emerado where the two agents were waiting. Boushee stopped his pickup in the street in front of the bar. Agent Smith approached the truck and Boushee handed him the marijuana. Smith asked Boushee how much money he wanted and Boushee replied $120. At that point the agents arrested Boushee.
After the arrest, the two agents and other police officers went to Boushee's home and conducted a search pursuant to a warrant issued by the Grand Forks County Court of Increased Jurisdiction. The officers seized several items, including a trash bag found outside the door of the trailer home containing nine pounds of marijuana, a "hash-oil making machine", 2 and various smoking devices and other paraphernalia.
The defendant was charged in three Informations with the following:
(1) Information 7316 charged Boushee with Possession of Marijuana with Intent to Deliver. This charge derived from the seizure of the nine-pound bag of marijuana found outside of Boushee's trailer home during the search made on February 24, 1978, at approximately 3:30 a. m., pursuant to the warrant.
(2) Information 7317 charged Boushee with Possession of Marijuana with Intent to Deliver. This charge involved the one pound of marijuana which Boushee sold to Agent Smith at 1:30 a. m. in front of Johnny's Bar, at Emerado, at a price of $120 on the 24th of February, 1978.
(3) Information 7318 charged Boushee with the crime of Manufacture and Possession with Intent to Manufacture or Deliver a Controlled Substance. This Information charged Boushee with possession of a hash-oil making machine with chemicals and vials for the refinement and preparation of hash oil, along with several vials of refined resin (hash oil), which were found in the search at his trailer home at 3:30 a. m. on February 24, 1978.
The three Informations were consolidated for trial. The jury acquitted Boushee on Information 7316 and Information 7318, but returned a verdict of guilty on Information 7317. It is from this conviction that Boushee appeals.
The first issue raised on appeal is whether or not the trial court erred in denying Boushee's motion to separate the trials. Boushee concedes that the decision of the trial court to consolidate Informations for trial would be reversible error only if there was a clear abuse of discretion by the trial judge. However, Boushee contends that there was an abuse of discretion shown by the prejudice that resulted to Boushee by consolidation of the Informations.
The trial judge consolidated the actions in accordance with Rules 8 and 13 of the North Dakota Rules of Criminal Procedure. Rule 8(a), N.D.R.Crim.P., provides:
"(a) Joinder of offenses. Two or more offenses may be charged in the same indictment, information, or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
Rule 13, N.D.R.Crim.P., provides:
As this court said in State v. Gann, 244 N.W.2d 746, 750-751 (N.D.1976):
See United States v. Harris, 211 F.2d 656 (7th Cir. 1954), Cert. denied, 348 U.S. 822, 75 S.Ct. 34, 99 L.Ed. 648; State v. Berger, 234 N.W.2d 6 (N.D.1975); State v. Erickson, 231 N.W.2d 758 (N.D.1975).
Boushee contends that there has been an abuse of discretion because consolidation has resulted in prejudice to him. Rule 14, N.D.R.Crim.P., provides for relief from prejudicial joinder as follows, in pertinent part:
"If it appears that a defendant or the prosecution is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever relief justice requires. . . ."
The trial judge determined not to grant a severance because all of the cases were of the same or similar character, the same witnesses would be testifying, all of the charges were drug-related and connected together by the sole identity of the defendant, and the closeness in time and place in which they were committed. He also found that the offenses indicated a common scheme or plan to distribute marijuana. The essence of Boushee's argument is that consolidation of the three Informations would tend to confuse the jury. However, the jury in this case indicated its ability to keep the evidence separate by the fact that it was able to acquit Boushee on two of the three consolidated charges.
As the Second Circuit Court of Appeals said in United States v. Borelli, 435 F.2d 500, 502 (2d Cir. 1970), Cert. denied, 401 U.S. 946, 91 S.Ct. 963, 28 L.Ed.2d 229 (1971) "he (the defendant) must demonstrate substantial prejudice from a joint trial, not just a better chance of acquittal at a separate one, and . . . a trial court's refusal to grant severance will rarely be disturbed on review". A similar position has been adopted by the Seventh Circuit Court of Appeals in United States v. Tanner, 471 F.2d 128, 137 (7th Cir. 1972), Cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220.
The defendant bears the difficult burden of demonstrating that he has been prejudiced by joinder. He must show something more than the mere fact that a separate trial would have afforded a better chance We determine that consolidation in the instant case has not caused a result unfair to Boushee. This is in accordance with our ...
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