State v. Breding

Decision Date19 January 1995
Docket NumberCr. N
Citation526 N.W.2d 465
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Damien David BREDING, Defendant and Appellant. o. 940038.
CourtNorth Dakota Supreme Court

Richard C. Wilkes, State's Atty., Kenmare, for plaintiff and appellee.

Carl O. Flagstad, Jr., Minot, for defendant and appellant.

VANDE WALLE, Chief Justice.

Damien David Breding appealed from a criminal judgment entered on jury verdicts finding him guilty of two counts of murder and one count of attempted murder, and from an order denying his motion for a new trial. We affirm.

During the early Easter morning hours of March 31, 1991, six-year old twins Jennifer and Jessica Peterson died, and their father, Bradley Peterson, was injured, in a fire that occurred at the Peterson residence in Powers Lake. The twins' babysitter the previous evening, Breding, age 16 at the time of the fire, was subsequently charged with two counts of murder and one count of attempted murder. See N.D.C.C. Secs. 12.1-06-01, 12.1-16-01(1)(c), and 12.1-21-01. The proceedings were transferred from juvenile court to district court.

After several unsuccessful attempts to change venue, a trial was held in Burke County and the jury found Breding guilty on all counts. The trial court denied Breding's motion for a new trial. Breding in his appeal from the convictions and from the order denying his motion for a new trial, alleges that the trial court erred in denying his motions for change of venue; that the jury's verdicts were not supported by the evidence; and that prosecutorial and juror misconduct warranted a new trial.


Breding made several pretrial motions relating to venue. The trial court granted Breding's request to conduct a public opinion poll at State expense and deferred ruling on his motion for change of venue until the poll was completed.

The poll was conducted by Harry Hoffman, Ph.D., of the Bureau for Social and Behavorial Research at Minot State University. The results of the poll indicated that, after eliminating people who either had moved, were too old, were deceased, or were living in Powers Lake, 988 persons were available for jury duty in Burke County. Of the 95 persons polled, "at least 50 percent of the sample learned of the case through 'word of Mouth,' 'Newspaper,' accounts or both (15.8%, 26.3% and 15.8% respectively)." The report also said:

"In terms of having formed an opinion about the case, almost one-half of the respondents (48.4%) indicate that they have not, while 25.3 percent state that they did. Further, 20 percent of the respondents were unwilling to comment on this question. Focusing on the nature of the opinion, slightly over 20 percent (21.1%) feel that Damien Breding is guilty, while 2.1% assume him innocent. Over 65 percent (67.4%) would not comment. Although slightly over one-third of the sample has formed some type of opinion, 51.6 percent still believe they could listen to the evidence and draw an independent decision.

"The question as to whether or not Damien Breding could receive a fair trial in Burke County is addressed next. Approximately one-quarter of the sample believe a fair trial can be conducted within Burke County. However, almost 35 percent (34.7%) feel a fair trial would not be possible in Burke County. Also of importance are the percent of individuals who[ ] are unsure (36.9%)."

The trial court denied the motion for change of venue, reasoning that "while some people have formed an opinion of guilty in this case, there still remains sufficient numbers of people in Burke county who are without opinion and willing to listen to the evidence and give the defendant a fair trial." The court noted that "inquiry of potential jurors in small groups during the voi[r] dire process" would be required.

Voir dire consumed more than two days and involved more than 90 potential jurors. The court questioned potential jurors in small groups and questions were asked about strongly held opinions of guilt or innocence and any prior knowledge of the case. Some potential jurors said they had opinions regarding the case, or that they knew witnesses who were going to testify. These persons were questioned individually and at length by the court and both counsel about their knowledge or opinions and how it would affect their decision. When defense counsel requested removal for cause, the prosecutor did not object. More than 20 persons, including many from Powers Lake, were dismissed for cause based on their direct knowledge of the case. More than 20 others were dismissed for cause based on medical reasons, economic hardship, prior business with the attorneys, and a lack of belief in the presumption of innocence.

Forty-four persons remained after completion of voir dire. The trial court later excused two persons for medical-related reasons and five others because they were needed for farm work to complete harvest. With 37 persons remaining, each side was allowed 12 peremptory challenges, leaving a 12-member jury with one alternate juror. Defense counsel did not renew his motion for change of venue after the jury was chosen, but did assert the trial court's earlier refusals to grant the motions as a ground for a new trial.

Breding asserts that the trial court committed reversible error in refusing to change venue. We disagree.

Rule 21(a), N.D.R.Crim.P., provides:

"(a) For Prejudice in the County or Municipality. The court upon motion of the defendant shall transfer the proceeding as to that defendant to another county or municipality whether or not that county or municipality is specified in the defendant's motion if the court is satisfied that there exists in the county or municipality in which the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial."

A motion for change of venue is addressed to the sound discretion of the trial court, whose decision will not be reversed on appeal absent a showing of abuse of discretion prejudicial to the defendant. State v. Purdy, 491 N.W.2d 402 (N.D.1992). While there are some cases in which prejudice to the defendant is so clear that a change of venue should be ordered promptly, generally voir dire examination is an appropriate occasion to determine whether it is possible to select a fair and impartial jury. State v. Norman, 507 N.W.2d 522 (N.D.1993). Here it was the appropriate time.

Breding asserts that a change of venue should have been granted, not primarily because of pretrial publicity by the media, but because of "the type of publicity small community living generates as a matter of course, i.e. rumor, gossip and speculation." Breding also relies on the severity of the charges against him, the voir dire itself, and the poll results, which he claims were rendered invalid by excluding Powers Lake residents as potential jurors.

The failure to renew a motion for change of venue after voir dire is viewed by some courts as an " 'apparently deliberate waiver.' " See Wylie v. State, 797 P.2d 651 (Alaska App.1990) (quoting Mallott v. State, 608 P.2d 737, 748 (Alaska 1980)). We do not rely on any waiver theory here, however. See Norman, supra. The trial court considered the change of venue issue in its order denying the motion for new trial, and we agree with the court that there was little likelihood of hidden prejudice in the impaneled jury.

Just as knowledge obtained by jurors from common gossip will not automatically disqualify a juror, State v. Olson, 290 N.W.2d 664 (N.D.1980), generalities about small town gossip do not sufficiently support a motion for change of venue. State v. Engel, 289 N.W.2d 204 (N.D.1980). See also Copeland v. State, 457 So.2d 1012 (Fla.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2051, 85 L.Ed.2d 324 (1985); State v. Petersen, 515 N.W.2d 687 (S.D.1994); State v. Gellatly, 22 Utah 2d 149, 449 P.2d 993 (1969). Although the crimes charged were serious, counsel were permitted extensive inquiry into the existence of actual bias toward Breding and whether potential jurors could set aside information, if any, which they had heard about the case. Breding acknowledges that the media reports on the case were not "unusual" considering the severity of the charges and has not pointed us to anything sensational about them. No one from Powers Lake, presumably where most of the gossip occurred, sat on the jury. Even if people from Powers Lake should have been included in the poll, we agree with the State that the results of the poll provided a more realistic view of the people available in Burke County who could reasonably be assumed to be acceptable to sit on the jury.

Breding's argument is essentially that the rumor, gossip, and speculation "small community living generates as a matter of course" should have been sufficient alone to support his motion. However, if we were to accept this argument, a change of venue would be required in every serious criminal prosecution in a rural, sparsely-populated county. This is not the law.

In Slaubaugh v. Slaubaugh, 499 N.W.2d 99 (N.D.1993), we affirmed the trial court's decision to change venue in a civil case based on relationships among the prospective jurors, litigants, and witnesses and the cumulative effect of those connections. We said:

"Juries, rather than individual jurors, decide cases, and jury decisions are not rendered in a vacuum. Consequently, determining whether a fair and impartial trial can be had in a particular location requires an analysis of the jury as a whole and of the community where the trial is to be held. This process allows a trial court to consider the aggregate effect of many factors."

Slaubaugh, supra, 499 N.W.2d at 106.

The trial judge, who is present in the county and is presumed to know the situation, is in a much better position than we are to pass on general claims of prejudicial community gossip and its effect on a defendant's right to a fair trial before an impartial jury. The trial court...

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