State v. Bragg

Decision Date29 August 1974
Docket NumberCr. N
Citation221 N.W.2d 793
PartiesThe STATE of North Dakota, Plaintiff and Appellee, v. Robert Dale BRAGG, Defendant and Appellant. o. 445.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. Testimony of a parole officer as a parole officer substantially prejudiced the rights of the defendant in that the jury could have inferred that defendant was a person with a past criminal record.

2. Where this court determines that a curative instruction purporting to eradicate prejudicial effect of prior error would be an insufficient palliative, fact that defendant demurs to the giving of such instruction does not constitute a waiver of defendant's extant objection to the prior error.

3. Generally, in order to preserve an evidentiary ruling for appellate review, the propriety of the ruling must have been appropriately raised in the trial court.

4. Under the facts in this case, fact that criminal defendant invoked his Fifth Amendment privilege of remaining silent in face of accusatory question by law enforcement officer is not admissible into evidence.

5. Obvious errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. Rule 52(b), N.D.R.Crim.P.

6. Trial judge did not abuse his discretion in ruling that defendant's impecunious condition eleven days before date of offense was relevant.

Daniel J. Chapman, Bismarck, for defendant and appellant.

Rodney S. Webb, State's Atty., Grafton, for plaintiff and appellee.


The appellant, Robert Dale Bragg (hereinafter 'defendant'), has appealed to this court from the verdict of a jury finding him guilty and final judgment upon a conviction of the crime of burglary in the District Court of Walsh County. The defendant was arrested and bound over for trial on an information alleging that he broke into the business office of the Grafton State School at Grafton, North Dakota, on or about July 24, 1972, and that he stole $439.90 in cash and $1,270.56 in checks from a safe-cabinet located therein. The defendant had insufficient funds to employ an attorney and an attorney was appointed to represent him in connection with the preliminary proceedings and trial of the matter.

The case was tried in December of 1972. Immediately prior to the presentation of the State's case, defendant's attorney moved In camera to limit the testimony of the State's first witness, Clark J. Monroe, a North Dakota state parole officer, to prevent the jury from inferring that the defendant had a prior criminal record. The trial judge denied this motion but noted that he would give a cautionary instruction to the jury to vitiate the effects of any such inference.

At trial Mr. Monroe testified that he was a state parole agent; that he had spoken to the defendant on or about July 13, 1972; that the defendant had told him at that time that the defendant had no money and was unemployed; and that he (Monroe) had checked with the personnel officer of the State School, where defendant had previously been employed, and had verified the unemployment of the defendant.

The State's next witness, Officer Celestine Novak of the Grafton Police Department, then testified as to the results of his investigation. During the course of his testimony, he was shown a number of photographs of the scene of the crime and was asked what each depicted. The following colloquy ensued:

'Q Number Six (photograph, 1 of 10 comprising State's Exhibit No. 1) shows what?

'A Number Six shows the safe that the defendant entered.

'THE COURT: Just a moment now. I think that--would counsel approach the bench.

'(Discussion had off the record at the bench.)

'THE COURT: Ladies and gentlemen of the jury, the Court is going to order stricken from the record the statement of the witness 'the safe that the defendant entered.' Whether or not the defendant entered that safe is the whole question for the jury to determine in this trial. It is a prejudicial statement by the witness to state that the defendant entered the safe. So, therefore, that statement will be stricken.'

Defendant made no objection of record to the statement nor to the sufficiency of the curative action taken by the trial judge.

Officer Novak also testified on direct examination that he had interviewed the defendant on July 27, 1972. His testimony was as follows:

'Q What did you say to Mr. Bragg and what did he say to you?

'A I asked him about the burglary at the State School.

'Q What was his response?

'A And he stated that it was none of my business.'

Defendant's attorney then objected to this testimony, on the basis that there was no showing that the defendant had been advised of his rights prior to the questioning being testified to. Officer Novak then testified that defendant had been given the Miranda warnings prior to the questioning and defendant withdrew his objection.

Officer Novak further testified that his investigation showed that the defendant had made certain purchases, which together with a bank deposit, totaled $495, on or shortly after July 24, 1972. No objection was made to this testimony.

Other witnesses for the State tended to establish that the defendant's fingerprints were found on the header above the business office door at the State School.

Pat Berg, a former employee at the State School, testified that she had seen the defendant in the Administration Building of the School shortly after midnight on July 24, 1972.

After conviction, another attorney was appointed for defendant and this appeal was brought on defendant's behalf.

Defendant raises the following issues for review by this court:

1. Was it error to permit the parole officer to testify without limiting his testimony, and, if so, does the effect of such testimony constitute prejudicial error?

2. Did the testimony of Officer Novak on direct examination that 'Number Six shows the safe that the defendant entered' constitute prejudicial error such that its prejudicial effect could not be cured by its being stricken with an admonition to the jury?

3. Does prejudicial error exist when an investigating officer testifies that he advised the defendant of his right to remain silent and then testifies that the defendant was uncooperative and responded that it was none of the officer's business 4. Were sufficient precautions taken to permit the prosecution witness to make an identification of the defendant in the absence of any lineup of other persons wearing a full beard such as the defendant wore? Is such an allegation reviewable by this court in light of the fact that no objection was made to any identification procedures at time of trial?

                to a question concerning the crime in question, said testimony thus amounting to a comment on the defendant's right to remain silent?   More specifically, can this court review such an allegation of error when no objection was made to said testimony at time of trial

5. Did the court err in determining that testimony that the defendant was impecunious two weeks before the alleged offense was relevant?

6. Did the court err in admitting hearsay evidence as to excessive spending by the defendant shortly after the alleged offense and is such error reviewable given the fact that no objection to such hearsay evidence was made?

7. Is the evidence sufficient to sustain the conviction?

8. Was appellant afforded effective appointed counsel?


Prior to the presentation of any evidence in the case at bar, counsel for the defendant, in chambers, objected to the use of the defendant's parole officer as a witness for the State. Counsel stated that, because the case against the defendant was circumstantial, the introduction of the defendant's past criminal record would unduly prejudice the jury, and, furthermore, the testimony was irrelevant. The State responded that the testimony of the parole officer was to be used to introduce relevant evidence and insisted that his employment identification was necessary as it went to the witness' credibility.

The trial court found for the State and said:

'Now, I of course recognize in identifying the witness as a parole officer you are in effect saying that the man has committed a previous crime and therefore he is on parole or on probation but this could be overcome by the cautionary instruction to the jury also.

'I recognize he has to be identified. It seems to me he can be identified very simply as a parole agent for the State of North Dakota period. I also intend, unless the defense would object to it, to give a cautionary instruction to the jury to the general effect. . . .-- there is no evidence that the defendant has any criminal record and that they should view the conversation with Mr. Monroe as an ordinary conversation between two persons unrelated to any prior criminal offenses if there are any. . . .'

Mr. Monroe, the parole officer, was then sworn and he testified that he had had a conversation with the defendant on July 13, 1972, and that he (Monroe) thereby learned, among other things, that the defendant had no money; and, upon further investigation, that he learned that the defendant's employment with the State School at Grafton had been terminated.

At the conclusion of the trial, during which the defendant did not testify, a cautionary instruction was not given because of a request by defense counsel that such instruction be omitted. Defense counsel stated:

'. . . I feel that a cautionary instruction however worded may draw attention to it, to Mr. Monroe's testimony, and I feel at the present time the jury may very well not draw an inference that Mr. Bragg has a previous criminal record.'

We hold that the trial court erred in overruling defendant's motion In limine and allowing the prosecution to put before the jury circumstantial evidence from which the jury could reasonably infer that the defendant had a prior criminal record. We further hold that such error was...

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